CHAPTER-V

JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS THROUGH

WRITS : GROUND OF REVIEW

A. Introduction/

Judicial review means review by courts of administrative

action with a view to ensuring their legality. Administrative

authorities are given powers by statutes and such powers must be

exercised within the limits of the powers drawn by such statutes. In

judicial review of administrative action the courts merely enquire1

whether the authority has decided according to law. In review,

reviewing authority does not go into the merit of the decision while in

appeal the appellate authority can go into the merits of the decision.

Thus, judicial review according to de Smith, is "inevitably sporadic

and peripherial”1 in judicial review, the courts undertake scrutiny of

administrative action on the touchstone of doctrine of 'ultra vires’.

As has already been stated,2 the Supreme Court and the High

Courts have power to review administrative actions through writs in

the nature of mandamus, certiorari, prohibition etc. under Article 32

and 226 of Constitution respectively. In India, these writs have been

borrowed from England where they have had a long and chequered

history of development and consequently, have gathered a number

of technicalities,3 Indian Courts, generally follow the technicalities of

English law. However, the Indian constitutional provisions are so

broad in language that they indicate that Indian courts are not bound

to follow the technicalities of the English law surrounding these writs.

But in practice, the attitude of the Indian courts is by and large

conditioned by the English approach and it is not often that the

1 de Smith, Judicial Review of Administrative Action (1980), p. 1.2 See Supra chapter IV. f3 Bassappa v. Nagappa, AIR 1954 SC 440; Dwarka Nath v. I.T.O. AIR 1966 SC

81.

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courts show a tendency to depart from the technicalities of the

English law. The courts have generally been prone to follow the

principles developed in England. While the administration expands

and perfects new techniques to interfere with individual freedom

under the impulse of the concept of a socialistic society; the tools at

the disposal of the courts to control the administrative action remain

samewhat antiquated. The result is the anomalous position that an

individual aggrieved by administrative action may always not gets

relief through court action.

Historically, the basis of judicial review in England is the

doctrine of ultra-vires or excess of jurisdiction. The attempts by the

courts to extend this narrow concept to the modern problems of the

administrative process has introduced certain technicalities and

artificialities in the law relating to judicial review. The courts take the

position that writ jurisdiction is of a supervisory nature and cannot be

equated with an appeal to the court from the body in question.

Thus, the doctrine of ultra vires provides a half way basis of judicial

review between review on appeal and no review at all. In an appeal

the appellate authority not only quash the administrative decision,

but can go into the merits of the decision of the authority appealed

against and may substitute its own judgement in its place, while in

the case of ultra vires the powers of the courts are limited only to

quash the administrative decision if it is in excess of power of the

authority, or directing to act according to law and courts keep away

from examining the merits of the pase. Thus, an appeal.on a point of

law or fact is wider in scope and court has a wider jurisdiction. Thus,

the half way review, extent of which is not always clear, creates

uncertainty about judicial intervention in administrative action.

Sometimes, the courts may feel like intervening because they feel

strongly about the injustice of the case before them; sometimes they

are not sure of injustice and uphold the decision of the

administration. Courts lack frankness to admit this clearly which

leads them to state their conclusion in terms of artificial

conceptualism and vague formulae. The result often manifests itself

in inconsistent decisions and judicial uncertainty.

On the whole, the judicial review of administrative action is

undertaken with a view to ensuring that administrative agencies act

according to their allocated jurisdiction and according to the

principles of natural justice. The main ground for invalidating an

administrative action is ultra vires. However, over the years, the

courts have developed various grounds on which they could

intervene, yet the law regarding judicial review of administrative

action through writs is complicated, involved and deficient. This

point will become clear after the discussion of the grounds on which

they can be issued.

B. GROUNDS OF REVIEW THROUGH WRITS.

1. Jurisdictional Principle : Doctrine of ultra-vires.A study of judicial control revolves round the question~of how

■!*

far the courts can go in an examination of the decisions or actions of

the administrative authorities in proceedings of review as distinguish

from those of appeal. To seek an answer to this question, the

subject has to be pursued in the context of the historical facts and

influence that guided and shaped it; the climate of values and

opinions that nurtured it; the spectrum of circumstances in which it

has to operate; and the state of development it has attained.

The law, regarding the judicial review of administrative action in India was derived historically from the common law, the dominant

feature of which was the enforcement of controls over the powers of

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public authorities through the ordinary court of law. Thus, from the

earliest times, the proceedings instituted before borough courts were

removable into the king’s court at Westminster.4 The superior courts

used to maintain a very tight control over the justices of the peace,

who exercised a wide range of duties, including repairs of highways,

bridges and other administrative matters. When most of the

administrative powers of the justices of the peace were transferred

to the local authorities in 1888, the courts maintained similar control

over the latter. While exercising their control over the lower courts

and tribunals, the courts claimed a right to determine the proper

jurisdiction of the former and to keep them within their jurisdiction. In

this process of review, there emerged the principle of jurisdiction,

otherwise known as ‘ultra-vires’ which marked off an area in which

the lower tribunals are absolute judges, but are not allowed to cross

the wall. The jurisdictional principle embodies a dichbtomy-those

cases in which a tribunal decides within its jurisdiction and those in

which it decides outside its jurisdiction, judicial control being

available only in latter class of cases.

The jurisdictional principle which determines the reviewability

of an administrative action is often expressed as ‘want or excess of

jurisdiction; The underlying doctrine is known as ‘ultra-vires’. The

doctrine of ultra-vires, as explained by Lord Selborne L.C. in one

case, ought to be reasonably, and not unreasonably understood and

applied, and whatever may fairly be regarded as incidental to, or

consequential upon, those things which the Legislature has

authorised ought not (unless expressly prohibited) to be held ultra-

vires.5 An obvious example of the ultra-vires principle was the case

Holdsworth, A History of English Law, Vol. 2(1936) pp. 395-405. Attorney-General v. Great Eastern Railway Co. (1880)5 AC 473 at 478.

244

where the London Country Council having statutory powers to

purchase and work tramways, ran omnibuses. The House of Lords

held that the London Country Council had no jurisdiction to run

omnibuses which was not incidental to running of tramways.6

Similarly, a local authority with power to acquire land other thani

‘park, garden or pleasure ground’ acts in excess of their jurisdiction

in acquiring land which is part of a park.7

Thus, the possibility of judicial review hinges on the question

whether their can be said to be an excess of jurisdiction. The

position has been somewhat modified by the ruling in Anisminic Ltd. v. Foreign Compensation Commission8 that any error of law (intra-

vires or ultra-vires) could effect the jurisdiction. Therefore as far as

errors of law(as distinct from error of fact) are concerned the

distinction between jurisdictional errors and non-jurisdictional errors

was being abandoned. However, this has not been clearly

established. In Pariman v. Keepers and Governors of Harrow

School,9 Lord Denning M.R. stated that following Anisminic there

was no longer any distinction between errors intra-vires and errors

ultra-vires. Finally, in S E Asia Fire Bricks v. Non-Metallic Union10

the Privy Council finally rejected the view that distinction between

errors intra-vires and errors ultra-vires had been abandoned.

(a) Scope of the Doctrine

In theory the jurisdictional principle enables the courts merely

to prevent from acting in excess of powers, but in reality they have

increasingly entered into the heart of the subject matter by interferingI

on grounds of unreasonableness, bad faith extraneous

6 London Country Council v. Attorney-General (1902) AC 165.7 White and Collins v. Min. of Health (1939)2 KB 838.8 (1969) AC 147.9 (1979) QB 56.10 (1981) AC 363.

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consideration, unfairness, manifest injustice and fair-play etc. All

these heads of challenge have been grouped together under the

singe principle of ultra-vires.

Thus, the doctrine of ultra-vires is the basic doctrine inr

administrative law. It is considered as the foundation of judicial

power to control actions of the administration. Ultra-vires refers to

action which is outside or in excess of powers of decision-making

bodies. While judges continue to use the term ultra-vires, it is

nowadays too limited a term to encompass the whole ambit of

judicial review. It may be preferable, therefore, to regard judicial

review as the decision-making process by the courts. By way of

example in R. v. Hill University Visitors exparte,11 Lord Brown

Wilkinson adopted the traditional language of ultra-vires.

If the decision maker exercises his powers . outside the jurisdiction conferred, in manner which is procedurally irregular or is wednesbury unreasonable, he is acting ultra-vires his powers and therefore unlawful.

The doctrine of ultra-vires is consistent with to some extent the

concept of rule of law, therefore, the concept of ultra-vires is

nowadays regarded by many as an inadequate rationale for judicial

review. Thus, the preferred view is that the courts need not resort to

fiction such as the intention of the parliament or the technicalities of

‘jurisdictional facts’ and ‘error of law’ but that rather the courts will

intervene whenever there has been an unlawful exercise of power.

As Dawn Oliver expresses the matter judicial review has moved on

from the ultra-vires rule to a concern for the protection of individuals

and for the control of powers.12

(1993)2 AC 237."Is the Ultra-vires rule the Basis of Judicial Review", (1987) Public Law 543.

246

(b) Basis of the DoctrineAction for judicial review of administrative action, employing

concepts of intra-ultra vires and the rules of natural justice ensure

that the executive acts within the law. It is for the court to determine

following the granting of an application for judicial review-whether

the body in question has acted intra-vires or ultra-vires (i.e. inside or

outside its power). The principal classes of action may be pursued;

those which allege that there has been a breach of statutory

requirements and those alleging that a decision has been reached in

an unreasonable manner or in disregard of the rules of natural

justice. These broad headings have traditionally been divided into a

number of sub-headings. By way of illustration, a body may act

ultra-vires if it uses its powers for the wrong purpose,13 or if it abuses

its power14 or if adopts a policy which is so rigid that it fails to

exercise its discretion with which it has been invested.16 The law

imposes standards of reasonableness upon administrative bodies

and failure to act in a reasonable manner may caused a body to act

ultra-vires,16 a body may act ultra-vires if it is conferred with

delegated powers but delegates them further to another,17 Statute

may require that administrators adopt particular procedure in the

exercise of these powers; should they not do so, and the procedures

are judicially deemed to be ‘mandatory’ (compulsory) rather than

‘directory’ (advisory) a body will be held to be acting ultra-vires. If a

public body under a duty to act fails to act at all the court can order it

do so. The rules of natural justice must also be observed in decision

Attorney-General v. Fulham Corporation (1921)1 Ch. 440.Westminster Bank v. Minister of Housing and Local Government (1971) AC 508. Padfield v. Minister of Agriculture Fisheries and Food (1968) AC 997.Association Provincial Picture House Ltd. v. Wednesbury Corporation (1948) 1 KB 223.Bernard v. National Dock Labour Board (1953)2 QB 18.17

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making; where an individual has a right or interest at stake becauseof an administrative decision he is entitled to fair treatment.18 All of

these grounds for review have been rationalised by the House of

Lords into three principal categories; illegality, irrationality, andprocedural impropriety.19 Lord Diplock remarked20 that today

“One can conveniently classify under the three heads the grounds on 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 added further grounds.”

Lord Diplock further elucidated the concepts :

By illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision­making power and give effect to it. Whether he had or not is par excellence a justifiable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the State is exercisable.By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury’ unreasonableness.21 It applies to a decision which 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. Whether ~ a decision falls within this category is question that judges by their training and experienceshould be well equipped to answer......I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with

Wheeler v. Leicester City Council (1985) AC 1054.Council of Civil Service Unions v. Minister for the Civil Service (GCHQ Case), (1985) AC 374.Ibid p. 410.Associated Provincial Picture Houses Ltd. Wednesbury Corporation (1948) 1 KB 223.

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procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe the procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even there such failure does not involve any denial of natural justice.That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow' members of the European (Economic) community....22

This classification has been proved very popular with the

courts. It encapsulates neatly the well established varieties of error

of law, which are grounds for judicial review. It was also accepted

that further grounds for judicial review. It was also accepted that

further grounds for review, such as ‘proportionality’ might emerge.

We may summarise the various aspects of each category in the

following table

Grounds for Judicial ReviewIllegality Irrationality Procedural

ImproprietyActing wrongly Failing to ActError of Law Fettering

discretionUnreasonable­ness

Failing to followcorrectprocedure

Using powers for the wrongpurpose

Taking into: irrelevant ■■ considerations or failing to take into accountrelevant

Unreasonableconditions

Breaching the rules of natural justice/fairness

Council of Civil Services Unions v. Minister for the Civil Services (1985) AC 374 at 410-411.

22

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considerations -

Acting in bad faith

Wrongful delegation ofpower

Failing torespect legitimate expectation

Failure toexercisediscretion

Failing to give reasons for a decision

While Lord Diplock offered a rationalisation of the headings of

review, the question of terminology and classification remains

difficult and sometime obscure. This problem should be recognised

at the outset. It should also be borne in mind that the categories are

by no means watertight and discrete; at many instances there will

appear overlaps between the headings. By way of illustration a

decision maker may act ultra-vires by taking into account irrelevant

consideration he or she may also be acting irrationally. However,

the classification does not' fit’ tidily into Lord Diplock classification,

but nevertheless is helpful as an organising device.

(c) Unreasonableness an-umbrella concept.

Acting for improper motives, failing to take into account of

relevant consideration, failing to respect the requirement of natural

justice, fetter a discretion by adopting a rigid policy will all amount to

unreasonableness as understood by courts. The term

‘unreasonableness’ may thus be seen as an ‘umbrella concept'

which subsumes all the headings of review. Lord Greene- M R in

Associated Provincial Picture House Ltd. v. PWednesbury Corporation23 alluded to the many grounds of attack which could be

made against a decision, citing unreasonableness, bad faith,

dishonesty, paying attention to irrelevant circumstances, disregard of the proper decision making procedure and held that each of these

23 (1948) KB 223.

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could be encompassed within the umbrella ‘unreasonableness : The

test propounded in the instance case was that whether an authority

had acted, or reached a decision, in a manner ‘ so unreasonable

that no reasonable authority could ever have come to it.’

Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretion often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done.For instance, a person entrusted with .a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider.He must exclude to consider. If he does not obey those rules! he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly there may be same thing so absurd that ho sensible person could ever dream that it lay within the powers of the authority....The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely, have refused to take into account and once that question is answered in favour of the local authority it may still be possible to say that, although the local authority have kept within the four comers of the matters which they, ought to consider, they unreasonable that no reasonable authority could ever have come to it. In such a case, again, I thin the court can interfere.24

‘Irrationality’ is a concept which takes the courts further from

reviewing the procedures by which a decision has beer) made and

testing its legality, and close to substituting the courts’ own view of

the merits of the decision. The term ‘irrationality’ and

‘unreasonableness’ appear to be used at the judge’s on

24 Ibid at 229.

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preference.25 Alternative expressions such as ‘arbitrary and

capricious’, ‘frivolous or vexatious and ‘capricious and vexatious’ are also used on occasions to express the same concept.26 Acting

perversely’ has also been used to judicially express the idea of

unreasonableness.27

Thus, the standard of reasonableness imposed by the court is

high: to impose too low a standard would in effect mean the

substitution of judicial discretion for administrative discretion.

It is for this reason that Lord Greene, states that a decision is

unreasonable if it’ so absurd that no sensible person could ever

dream that it lay within the powers of the authority, and Lord Diplock

in council of Civil Service Unions v. Minister for Civil ’Services28

regarded 'unreasonableness as entailing a decision’... so

outrageous in its defiance of logic or of accepted moral standards

that no sensible person who had applied his mid to the question to

be decided could have arrived at it.’

A decision of authority may also be unreasonable if conditions

are attached to the decision which are difficult or impossible to

perform. In Hall and Co. Ltd. v. Shoreham by Sea Urban district

Council,29 Lord Denning MR in the Court of Appeal held that

planning conditions.... must fairly and reasonably relate to the

permitted development and must not be so unreasonable that it can

be said that parliament clearly cannot have it intended that they

should be imposed."30

R.V. Devon County Council Ex parte G(1989) AC 573 at 577.HWR Wade and C F For syth, Administrative Law, p. 391.Hillingdon London Borough Council ex parte Pulhoper (1986) AC 484.(1985) AC 374 at 410.(1964) 1 WLR 240; See also Pyx Grentite Col Ltd. v. Minister for Housing and Local Govt. (1958)1 QB 554.Ibid at 572.30

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(d) Scope of the Doctrine of Ultra-vires in IndiaHistorically, the basis of judicial review in England is the

doctrine of ultra-vires or excess of jurisdiction. The doctrine of ultra-

vires is the basic weapon for judicial control of administrative

authorities; since it has its ramifications through the length and

breadth of administrative law; it has been called "the central principal

of Administrative law."31

As in England, so in India, the doctrine of ultra-vires has

attained a high level of sophistication, so that the courts are enabled

not merely to control actions which are obviously outside jurisdiction,

but to examine the reasonableness, motives and relevancy of

considerations. Courts have also exercised controls on various

aspects of discretionary powers. Procedural errors are also held

jurisdictional if the procedural requirement is mandatory as

distinguished from directory.

Administrative actions in India are subject to judicial review in

cases of illegality, irrationality or procedural impropriety.32 In state of

A.P. v. Me Dowell & Co.33 the Apex Court while deaiing with the

administrative actions and judicial review, laid down that the scope

of judicial review in case of administrative action is limited to three

grounds : (i) unreasonableness which more appropriately be called

irrationality; (ii) illegality; (iii) procedural impropriety.

In this way, the doctrine of ultra-vires can be exercised as

follows :

Wade, Administrative Law (1977) p. 40.Tata Cellular v. Union of India (1994)6 SCC 651; AIR 1994 SCW 3344; Pragoty Supply Co. & Co.-op. Society Ltd. v. State, AIR 1996 Gau 17.AIR 1996 SC 1627.33

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1. Illegality : this means that the decision-maker must correctly

understand the law that regulates his decision-making process

and must give effect to it.

2. Irrationality : this means that the decision is so outrageous in its

defiance of logic or of accepted moral standard that no sensible

person could have arrived at such decision.

3. Procedural Impropriety: this means that the procedure for taking

administrative decision and action must be fair, reasonable and

just.

4. Proportionality : This means that in any administrative decision

and action the end and means relationship must be rational.

5. Unreasonableness : this means that either the facts do not

warrant the conclusion reached by the authority or the decision is

partial and unequal in its operation.

Thus, judicial review of administrative action is permissible

only when actions suffers from vice of arbitrariness,

unreasonableness or unfairness. It is permissible to strike down an

action if there are malafides, bias, arbitrariness, bordering or

perversity or such unreasonableness as no reasonable man will

contemplate.34 Doctrine of ultra-vires is, therefore, not confined to

cases of plain excess of powers, it also governs abuse of power, as

where something is done unjustifiably, for the wrong reasons or by

wrong procedures. In law, the consequences are exactly the same;

an improper motive, or a false step in procedure makes an

administrative act just as illegal as does a flagrant excess of

authority.

Paharpur Cooling Towers Ltd. v. Bangaigaon Refinery and petrochemicals Ltd., AIR 1994 Del. 322.

34

254

The doctrine of ultra-vires is the principal instrument for

judicial control of administrative authorities. It embraces all kinds of

administrative acts done’ in excess of powers.’ Otherwise known as

‘jurisdictional principle’. However, in judicial review court does not sit

as a court of appeal but merely review the manner in which the

decision was made. The Supreme Court in Tata Cellular v. Union of

India,35 laid down that judicial review is concerned with reviewing not

the merits of the decision but the decision making process itself. If a

review of administrative decision is permitted, it will be substituting

its own decision which itself may be fallible. The duty of the court is to confine itself to the question of legality. Its concern should be36

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.

Untrammeled judicial review is not desirable.37 Arbitrariness based

on doctrine of proportionality is still no ground.38 It is also no ground

that the administrative action is not justified on merit.39 Court has to

confine itself with manner in which decision was made or order was

passed. It is not at all concerned with the merits of the decision.40

(e) Error of Jurisdiction

It is a basic principle of administrative law that no body can act

beyond its power this lies at the basis of judicial review on the

(1994)6 SCC 651.Mansukhlal v. State (1997)7 SCC 622.Paharpur Cooling Tower Ltd. v. Bangaigaon Refinery and Petrochemicals Ltd., AIR 1994 Del. 322.State of A.P. v. Me Dowell & Co., AIR 1996 SC 1627.K.L. Trading Co. Pvt. Ltd. v. State, AIR 1996 Gau 17.S.R Bommai v. Union of India, AIR 1994 SC 1919.

38

39

40

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ground of lack of jurisdiction. Similarly, no authority can exceeds the

power given to it. It refers to cases where authority has jurisdiction

but it exceeds its permitted limits, any action taken by it in excess of

its power is invalid. Thus, when an authority is empowered to grant

a stage carriage permit for a maximum period of 3 years, it cannot grant the same for five years. J.K. Chaudhary v. R.K. Datta,41 is

illustrative of this point. In this case, the governing body of a college

affiliated to the Gauhati university dismissed its Principal, Mr. Datta

on the ground of misconduct. The Executive Committee of the

Gauhati university after hearing representations ordered

reinstatement. The court issued certiorari to quash the decision on

the ground of excess of jurisdiction, because the jurisdiction of the

university under Section 21(9) of the Gauhati university Act was

confined to “teacher" which term, as interpreted by the Supreme

Court did not include the “principal”. The university, thus acted(■

without jurisdiction, or excess of jurisdiction.

Lack of jurisdiction may also arise when an authority has no

jurisdiction over the subject-matter or the parties. For example in

News papers Ltd. v. State Industrial Tribunal,42 the government had

referred a dispute which was not an “industrial dispute” for

adjudication to an industrial tribunal. It was held that the tribunal had

no jurisdiction to make an award in the dispute. In Chetkar v.

Vishwanath,43 the chancellor of the Patna university annulled a

resolution passed by the syndicate. The Supreme Court set aside

the chancellor’s order because it was passed without jurisdiction.

The jurisdiction was assumed by the chancellor wrongly by

misinterpreting the Act and the statute. However, an authority

41

42

43

AIR 1958 SC 722. AIR 1957 SC 532. AIR 1970 SC 1858.

256

having jurisdiction under one section of a statute cites a wrong

section of law as a source of its jurisdiction this provides no basis for

the issue of prohibition or certiorari.44 Thus, the Supreme Court in

State of Sikkam v. Dorjee Tsheringe Bhutia,45 held that where

source of power can be traced exercise of power can not be set

aside on the ground that it was done under a different provision.

A jurisdictional error may arise when a body having jurisdiction

fails to exercise the same. For example, under land Acquision Act,

before the State Govt, issues a notification acquiring property under

Section 6 an enquiry was to be held by the collector under section 5-

A. In Mayapati v. State of Haryana,46 where enquiry was hold by the

general assistant and not the collector. It was held by the P & H

High Court that enquiry by general assistant was without jurisdiction.

Consequently Section 6 notification, would also be illegal, for

hearing of objections under Section 5-A, by collector was sine quo

non of all further proceedings.

Lack of jurisdiction may also arise when an authority is not

properly constituted. If an authority is not properly consisted, than it

cannot have any jurisdiction to act. In Ammal v. Ramma,47 where

the statute requires three members to constitute a tribunal, a tribunal

composed of only two members was held to be acting without

jurisdiction by Madras High Court.

Lack of jurisdiction may also arise from the absence of some

preliminary fact or same fact collateral to the actual matter which the

body concerned may have to try and is a condition precedent to the

assumption of jurisdiction. Such a fact is known “jurisdictional fact’ a

Isha Beevi v. Tax Recovery Officer, AIR 1975 SC 2135. AIR 1991 SC 1933.AIR 1973 P & H 356.AIR 1953 Mad. 129.

257

concept just discussed.48 It may also be noted that lack of

jurisdiction in a body cannot be cured by the consent of the parties

because it goes to the root of the matter.

(f) Working of the jurisdictional principle.The analysis of the jurisdictional principle in the context of

English law gives a deceptive appearance of logical coherence and

theoretical soundness. But in practice, the courts always face the

dilemma of deciding whether any given question is jurisdictional or

not. The courts in India have experienced the same difficulty in

distinguishing between reviewable jurisdictional matters and

unreviewable errors committed within jurisdiction. Thus, in

Custodian of Evacuee Property v. Abdul Shukoor49 where the

custodian of evacuee property held that certain persons were

“evacuee” within the meaning of Section 2(c) of Mysore

Administration of Evacuee Property (Emergency) Act, 1949, the

Supreme Court refused to review the decision on the ground that the

orders in question being within jurisdiction. Such a decision, it was

held although erroneous is not open to review. But in Gorkha Ram

v. Custodian General.50 Where the Custodian General acting under

the administration of Evacuee Property Act, declared a property,

“evacuee property”, the court decided that the property was not

“evacuee property” and quashed the order of the Custodian General

to the contrary effect. The review was grounded on jurisdictional

error. In both cases the impugned orders were passed by the

Custodian of the Evacuee Property. In both cases they acted under

the similar statute i.e. The Administration of Evacuee Property Acts.

In both cases the problem was one of statutory jurisdiction and

48

49

50

Infra.AIR 1961 SC 1087. AIR 1961 SC 1805.

258

interpretation of key words in the statute; ‘evacuee’ in one case and

‘evacuee property’ in another. Yet in one case the court refused

review, holding the issue non jurisdictional and in another

substituted its judgement, treating the case as jurisdictional.

The fluidity of the concept is demonstrated by the extent to

which there has been a divergence of judicial opinions in treating

disputes as jurisdictional. The controversy at times reached a peak.The decision of the Supreme Court in UjjamBai v. State of U.P.51 is a

typical example of those in which the question was greatly agitated.

In that case, petition was filed in the Supreme Court under Article 32

on the ground that a Sales tax Officer by misconstruing a provision

in a taxing statute imposed sales tax and thereby affecting the

petitioner’s Fundamental Right under Article 19(1) (g). Seven judges

bench of the Supreme Court had the task of deciding whether the

tax authorities acted outside their jurisdiction by misconstruing the

terms of a statutory notification and thereby assessing a trader to

sales tax. Mr. Justice Mudholkar, whose views represented the

majority opinion expressed himself as follows :

“A mere misconstruction of a provision of law does not render the decision of a quasi-judicial tribunal void (as being beyond its jurisdiction). It is a good and valid decision in law until and unless it is corrected in the appropriate manner.S o long as that decision stands, despite its being erroneous, it must be regarded as one authorised by law and where, under such a decision a person is held liable to pay a tax that person cannot treat the decision as a nullity and contended that what is demanded of him is something not authorised by law. The position would be the same even though upon a proper -

51 AIR 1962 SC 1621.

259

construction the law under which the decision was given did not authorise such a levy.”52

The last sentence of these observations touches the crux of

the matter. Is it correct to say that a person who has no authority to

function ‘on a proper construction of an Act’ would still be within his

jurisdiction if he purported to comply with that Act even though he

misconstrued it? Is it not possible that an authority can exercise

jurisdiction by a wrong construction of a statutory provision which it

does not possess at all? The majority view of the Supreme Court in

this case seems to have answered the first question in the

affirmative and the second question in the negative. But the truth is

that the determination of whether any given fact or point of law is

jurisdictional is always a matter of construction of statutes and

statutory rules under which the decision is given. Thus an authority

may have jurisdiction to decide certain disputes under an Act and it

may make an order affecting a particular subject-matter which on a

correct interpretation it cannot make. The point may be illustrated

thus;53 A provision of the sales tax Act says that the sale of bidis is

not taxable; but the sales Tax officer on his own construction of the

provision holds that handmade bidis are taxable; on a proper

construction, the Act does not confer any power on Sales Tax Officer

to tax such bidis. In such a case, on one interpretation of the

provision of law, he had exercised jurisdiction in respect of a subject

matter which he possesses, but upon a proper construction the law

under which the decision was given did not authorise such a levy.’

In one sense he merely misconstrues a provision of law, but in

another sense he acts without jurisdiction in taxing goods which are

Id. at 1686.The illustration was cited by Mr. Justice Subba Rao in his dissenting judgement in Ujjain Bai case, Ibid.

260

not taxable under the Act. According to the majority decision in

Ujjan Bai case such a decision is not reviewable as it does not

involve any jurisdictional question. Thus, the court expressed the

view that a mere misconstruction of a provision of law does not

render the decision of an authority void as being beyond jurisdiction.

Despite the repeated pronouncements as to the vital

distinction of jurisdictional and non jurisdictional errors, the courts’,

decisions are characterized by a remarkable degree of inconsistency

and indifference to the orthodox conceptualism and a treatment of

these two kinds of errors as identical. Thus, in Union of India v.

India Fisheries Ltd.54 Where the Income tax Officer was in error in

Applying Section 49.E of the Income Tax Act, 1922 and setting off

the refund due, the Supreme Court upholding the decision of the

High Court to exercise its jurisdiction under Article 226 of the

Constitution observed,55 ... if we interpret Section 49-E as we have

done, it is a clear case of lack of jurisdiction. At any rate, there is an

error apparent on the face of the order. If the distinction between

errors of jurisdiction and errors within jurisdiction is so cardinal that

one renders a decision a nullity and the others leaves its validity

intact and an error is either of jurisdiction or of the merits, how can a

decision suffers from both lack of jurisdiction and an error apparent

on the face of the order. It is a contradiction in terms to say that a

tribunal having no jurisdiction commits an error in this jurisdiction,

just as saying that a decision of the tribunal. having jurisdiction

suffers from jurisdictional error. A tribunal either has or has not

jurisdiction to act. Therefore, the error has to be of one type or the

other, but cannot be both. According to the Supreme Court the error

54

55AIR 1966 SC 35. Id. at 37.

261

in this case was merely one of a misconstruction of a provision

which does not render the decision of a tribunal void as being

beyond jurisdiction. Yet the Supreme Court in the instant case

described the error as ‘a clear lack of jurisdiction’. The truth is that

the court has forgotten the distinction so often declared to be vital.

The soundness of the doctrine of jurisdictional cbntrpl has

further suffered from corrosion through sheer contradiction of the

courts in labelling the same question at one time as non-

jurisdictional and at another time jurisdictional, despite their own

admonition as to the vital distinction between the two. A salutary instance is the case of Tata Iron & Steel Co. v, S.R. Sarkar,56 There

the commercial Sales Tax Officer had to ascertain, before he could

order payment of tax under the Central Sales Tax Act whether he

was satisfied (a) that the goods at the time of transfer of the

documents of title were in movement from the State of Bihar to the

State of West Bengal; (b) that the place where the sale was affected

under Section 4,(2) of the Central Sales Tax Act, 1956, was within

the State of West Bengal. The C.S.T.O. failed to apply what the

Supreme Court described as the ‘correct tests’ and made

assumptions which were not warranted’. The order of assessment

was held to disclose an error of law apparent on its face ‘on a true

construction of the provisions of the Central Sales Tax Act.’

Apparently this was a case of ultra-vires being either of 'collateral

fact’ wrongly decided, or of irrelevant considerations being taken into

account. But the Supreme Court treated it as a case of error of law

apparent on the face of the record and issued certiorari under Article

32. The decision was based on the finding that the sale in question

was an interstate sale which in view of the provisions of Article 229

56 AIR 1961 SC 65.

262

of the constitution and Section 3 of the Central Sales Tax Act, 1956

could not be taxed by the State.The Supreme Court cited with approval the decision in Tata

Iron & Steel Co. Ltd. v. S.R. Sarkar,57 in a subsequent case State

Trading Corporation of India v. State of Mysore58 in which the same

issue namely whether the sale in question was interstate sale and

therefore liable to be taxed by the State in view of the same

provisions of the constitution and the Central Sales Tax Act, 1956

was raised. But this time, the Supreme Court interfered on a

different ground, i.e. on the ground that the Tax Officer gave himself

jurisdiction to tax the sale by deciding a collateral fact wrongly,

namely the fact that sale was not interstate sale. Thus, the same

question was treated by the Supreme Court on two different grounds

in two cases in one case an error of law apparent on the face of the

record and in another as ‘jurisdictional fact’. The’ former is

recognised as an error within jurisdiction, although the courts have

asserted their right to issue certiorari in such a case. The distinction

between errors of law apparent on the face of the record and

jurisdictional error remains significant for many reasons. The effect

of the former is to leave a decision valid, although erroneous, till it is

set aside is an appropriate proceedings, while the latter renders a

decision a nullity. While a void decision can be impeached in the

collateral proceeding, a valid decision cannot be disturbed by any

authority other than the appropriate one. As a direct consequences

of this distinction, some remedies such as declaration and

mandamus are not appropriate remedies to impugn a decision

tainted with error of law apparent on the face of the record. The

AIR 1961 SC 35 Ibid. AIR 1963 SC 548.

263

arbitrary employment of the jurisdictional doctrine in cases involving

identical questions of law and fact has further erased the distinction

between jurisdictional and non-jurisdictional matters.

Thus, in almost all cases in which administrative action is

challenged on account of jurisdictional error the courts are faced with

the problem of statutory interpretation. To determine whether an

authority has exceeded its jurisdiction or not it is often necessary for

the courts to interpret the law and to intervene if the authority has

not acted in accordance with their interpretation. A distinction is

accordingly made between “an error of law affecting jurisdiction” and

“an error of law going to the merits of the case”. The former is

reviewable in all cases on the ground of ultra-vires, while the later

will be reviewable only when it is apparent on the face of the record

(a concept just discussed). Thus, courts exercise broader review

powers in relation to error of law within jurisdiction. However, this

distinction introduces an element of artificiality as it is not always

rationally possible to distinguish between the two types of errors of

law. In practice much depends on the attitude of the courts.

According to de Smith, “At bottom, therefore, the problem of defining

the concept of jurisdiction for the purposes of judicial review has

been one of public policy rather than one of logic.”59 Suppose an

Income Tax Authority having power to impose tax on income and not

on capital gains, imposes tax on a transaction which involves capital

gains. In one sense, it may be regarded as an error of law on merits

because that authority has power over the individual involved and to

determine whether the transaction in question amounts to “capital

gains” or “income”. But in another sense, it may be regarded as an

error effecting jurisdiction of the authority to tax as it has power to

59 de Smith, Judicial Review of Administrative Action (1980) p. 112.

264

tax only the Income and not capital gains, and, therefore, taxing

capital gains may be treated as a case of the authority exceeding its

power. So, it is not easy to maintain a distinction between mistake

of law pure and simple and mistake of law going to the root of the

jurisdiction of the body concerned.

Thus, the question is: what errors do, and what do not carry

an authority outside jurisdiction? In short, what counts as

“jurisdictional error”? In tackling the question “what counts as” “jurisdictional error?” The Anisminic case’ is a "legal landmark”60

After House of Lords ‘decision in Anisminic case, the distinction

between these two types of errors has become untenable.

In Anisminic, the Egyptian Government paid a some of money

to U.K. Government to meet claims against it in respect of loss

caused by its sequestration of British property during the Suez

Crisis. Anisminic Ltd. Claimed compensation. Under the relevant

statutory Instrument the Foreign Compensation Commission

(F.C.C.)61 were directed to treat a claim as established if the

claimant satisfied them that, inter alia, both he and any “successor in

title” of his were British nationals. F.C.C. interpreted “successor in

title” to mean “subsequent owner” or “assignee”. On that basis

TEDO was Anisminic Ltd.’s successor in title and was not a British

nation, so Anisimic Ltd.’s claim failed. A majority (3:2) of the House

of Lords held on the contrary, that “successor in title” meant “person

succeeding to property on death or (in the case of a company)

liquidation." On that basis Anismic Ltd. had no successor in title and

TEDO’s nationality was immaterial. F.C.C. had accordingly, erred in

Per Lord Diplock in Re Racal Communications Ltd. (1981) AC 374 at 382. Established by Foreign Compensation Act, 1950, Sec. 1. (English Act)

265

its construction of the statutory instrument. The majority1 Of House of

Lords held that error was jurisdictional: why?

The statutory instrument directed F.C.C. to award

compensation if they were satisfied that prescribed conditions,

including one relating to the nationality of the applicant and any

successor in title, were fulfilled. Clearly, the question whether the

conditions were fulfilled was remitted (authorised) to F.C.C. So, pre.

Anisminic approach to jurisdictional error, the court could hardly

have characterised the issue as “collateral" i.e. outside F.C.C.’s

jurisdiction. But the crux of the new approach adopted in Anisminic

is a shift of focus from the substance of an issue as being “collateral”

or otherwise to the juridical nature of an issue as being one of law or

otherwise. Accept that it is for F.C.C. to say whether the prescribed

conditions are fulfilled. That issue is within their authority, but it does

not follow that F.C.C. has jurisdiction to interpret authoritatively the

statutory words prescribing the conditions - i.e. to construe the

relevant statutory instrument. The majority in Anisminic hold that

F.C.C.’s remit (authority) did not extend to authoritative

determination of the meaning of the statutory conditions of

entitlement. F.C.C.’s erroneous construction of the “successor in

title” condition thus carried them outside their jurisdibtion. The

commission “failed to deal with the question remitted to it and

decided some question which was not remitted to it".62

It may be plain from what had just been said that the

Anisminic case establishes that certain errors of law are

jurisdictional. For the error in the case was plainly of that type : an

erroneous elucidation of the phrase "successor in title”, But one will

look in vain in the judgements in Anisminic for any general

62 Per Lord Reid, (1969)2 A.C. at 171.

266

proposition that error of law as such prima facie carries an

administrative tribunal outside its jurisdiction.

The case law has advanced considerably since Anisminic. In

Attorney General v. Ryan,63 the Privy Council applied the anisminic

principle in an appeal from the Behamas. It was a citizenship case

and the decision of the minister was challenged. Lord Diplock on

behalf of the Privy Council ruled that natural justice was necessary in

citizenship cases and that failure to accord natural justice to an

applicant for citizenship makes a decision of the minister a nullity.

He observed :

It has long been settled law that a decision affecting the legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision-making authority.64

The matter has not stopped with Anisminic and the trend of

broadening “jurisdictional error” has continued so as to practically

obliterate any distinction between” jurisdictional error” and. error of

law”. Lord Denning advanced this approach in Pearlman v. Harrow

School.65 And Lord Diplock in Re Racal communications66. He said :

...if the administrative tribunal or authority have asked themselves the wrong question and answered that they have done something that the Act does not empower them to do and their decision is a nullity”67

Lord Denning followed this approach in R.V. Chief Immigration

Officer, ex p. Kharrazi, where he quashed a determination by an

immigration officer because he had interpreted the law very narrowly

(1980)2 W.L.R. 143. Id, at 152.(1979)3 Q.B. 56. (1980)2 All E.R. 634. Id. at 638..

267

and thus made an error of law making his decision ultra-vires. In

O’Railly v. Mackman68 said that it

“liberated English public law from the fetters that the courts had theretofore imposed on themselves... by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction and errors of law committed by them within their jurisdiction”69

It appears that since Anisminic, any error of law by an

administrative tribunal or authority is prima facie jurisdictional Issues

of fact, degree or policy on the contrary, are for the authority to

decide. This statement is based substantially on obiter dicta of Lord

Diplock in Re Recal Communication Ltd.70 decided after 12 years

after Anisminic. Lord Diplock said :

“The break through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity”.71

As we shall see, these dicta take account of case law developed

since Anisminic. The post-Anisminic case law relates to errors of

law relating to (i) misstatements (ii) misapplication of legal rules (iii)

and the errors of law at the fact finding stage which have been held

to be jurisdictional errors.

(1983)2 AC. 237. Id. at 278.(1981)A. 374.Id. at 383.

268

(i) misstating the law; An authority errs in law if it errs in its

statement of a rule or its elucidation of a statutory word or phrase will

the error be jurisdictional? An authority will commonly elucidate (i.e.

indicate its understanding of the meaning of) statutory words by

addressing itself to certain question which appear to it to require

answers if the rule is to be applied to the facts before it. So e.g. in

Anisminic case FCC decided that “as TEDO was not a British

national and as TEDO was the “successor in title" or assignee of the

appellants (the claim failed). FCC had asked themselves whether

TEDO was the assignee of the company on the basis that

“successor in title" meant “assignee”. This then, was the error of

elucidate which as the majority of House of Lords, held, caused FCC

to ask themselves the wrong question and carried them outside

jurisdiction.

In the same view in Islam v. Hillingdon L.B.C.72 the applicant

had been evicted from one room rented accommodation when he

was joined by his wife and children from Bangladesh. The local

authority decided that he had become homeless intentionally

“heaving deliberately arranged for his wife and children to leave

accomodation (in Bangladesh) which it would have been reasonable

for them to continue to occupy". The statute, however,, referred to

“accomodation... which it would have been reasonable for (the

applicant) to continue to occupy” (Housing (Homeless Persons) Act,

1977 Sec. 16): so the authority had asked itself the wrong question :

and on this basis alone the House of Lords would have quashed the decision.73

(1983)1 AC 688. Id. at 715.

269

As already observed Anisminic itself was a case where an

error of law of the type we are considering was characterised as

jurisdictional. After Anisminic it seemed probable that such errors, at

any rate when perpetrated, by an administrative tribunal or authority,

and subject to specific contrary indications in particular statutes,

would be held to be jurisdictional. The case law since Anisminic suggests strongly that this is the proposition74

(ii) Errors of Law in applying Law to facts : To the extent that a

particular authority’s misstatements of law carry that authority

outside jurisdiction, to the same extent should its errors of law in

applying to facts do so. The reasoning is as follows. If the error of

application is on a point where applying the law to the facts requires

the skill of a trained lawyer, the error is error of law because the

issue is purely one of law. The error is as much by definition an

error of law as is a misstatement of a rule of law. Accordingly, it

would appear artificial to distinguish here between the effects of

errors of law in applying law to facts and errors of misstating of law.

In administrative law, though, the application of law to facts will

commonly be a matter as much for a layman properly instructed on

the law as for a lawyer.

In Coleen Properties Ltd. v. Minister of Housing75 a local

authority had clearance powers over land adjoining a slum.

Clearance area if the acquisition of the adjoining land was

“reasonably necessary for the satisfactory development or use of the

cleared area". At a public inquiry the authority had simply asserted

the necessity of the acquisition of particular adjoining land whereas

the owner of the land had led contrary expert opinion. The Minister

In R.V. Deputy Governor of Comphill Prison ex P, King (1985) Q. B. 735. (1971)1 W.L.R. 433.

270

confirmed the order against the inquiry inspector’s recommendation.

But the court of Appeal quashed the order because there was no

material upon which the Minister could have come to his conclusion.In R.V. Environmental Secretary ex p. Powis,76 on the other

hand, the court of Appeal refused to quash the Secretary’s ruling

under a similar statutory provision that the acquisition of certain land

was reasonably necessary for the authority’s purposes. The Minister

had considered material on the basis of which that conclusion could

properly be reached.

(iii) Error of law at the fact finding stage : If an authority finds thatt .

particular events occurred, although it is seised of no, admissible

evidence that they did in fact occur, the authority errs in iaw. But is

the error jurisdictional? In 1922 in R. Nat Bell Liquors Ltd.77 Lord

Summer was emphatic that it was not. “To say that there is no

jurisdiction to convict without evidence is the same thing as saying

that there is jurisdiction if the decision is right, and now if it is

wrong...”78 But this view, oft-cited as it is and authoritative as it

appears, must now be treated with reserve. Moreover, in 1922 there

was no doctrine that errors of law as such were prima facie

jurisdictional. There is now substantial authority for this proposition

as it relates to errors of law. The courts have referred generally to

"error of law” and there is no obvious reason why errors of law at the

fact finding stage should not be included. Indeed, there is one class

of cases where it is well established that an authority which in effect

finds facts on no admissible evidence thereby goes outside

jurisdiction. Whatever may be the effect of a findings of fact, though

(1981)1 W.L.R. 584. (1922)2 A. C. 128 (PC) Id. at 152.

271

erroneously, will in genera! be held to fall within an authority’s

jurisdiction.Thus, after Anisminic, the distinction between "error of

jurisdiction” and “error of law” has become untenable and in India, a

view has been expressed that the distinction be done away with andj

all errors of law be regarded as reviewable.

After Anisminic, it is unnecessarily complicating the law to

keep alive any distinction between “jurisdictional error” and “error of

law”. All errors of law result in decisions being taken outside the

jurisdiction. It is much simpler to evolve a broad concept of

“jurisdictional error" and include therein the concept of “error of law”

as well. Denial of natural justice is already included within the

concept of “jurisdictional error" as is clear from Ryan.

If the concept of “error of law” is included within the concept of

“jurisdictional error”, then the concept of “error of law” apparent on

the face of the record” Discussed below, will become redundant,

and no longer there will be need to decide whether an error of law is

patent or latent. This will make the law of judicial review simpler, as

one can simply ask the court to review a decision on grounds of

excess or abuse of jurisdiction. Any way there is no compulsive

reason for the courts in India to continue to adhere to the old

orthodox, conceptualistic thinking in England. They can very well

follow the lead given by Lord Denning and Diplock.

2. Review of Law.

In English law, control of inferior jurisdiction on matters of law

turns upon two different principles. Firstly, there is the principle of

jurisdictional control. Secondly, the rule of error of law apparent on

the face of the record has been devised as an exception to the

above principle. Both these principles enable the courts to exercise

272

control on question of law. One of the curious features of the

English law of judicial control is that although the jurisdictional

principle is the central base of control it is little discussed outside the

context of ‘jurisdictional fact’. Judges and commentators alike

overlook the fact that the principle of ultra vires, when invoked on

undisputed facts, necessarily involves question of law, i.e. question

of legal limits of powers. Yet the whole emphasis of review of law is

on the principle of ‘error of law apparent on the fact of the record’,

which covers only one segment of the subject. In R.V. Shoreditch

Assessment Committee79 Farfell L.J., while justifying the principle of

jurisdictional control observed :it is immaterial whether the decision

of the inferior tribunal the question of the existence or non-existence

of its jurisdiction is founded on law or fact.’ Therefore, a discussion

on review of law must also embrace the legal aspect of the general

doctrine of ultra vires. The doctrine of ultra vires enables the courts

to review question of law in innumerable contexts. It is not possible

in the present work to deal exhaustively with the extent of review

over question of law permitted by the doctrine of ultra vires. It would

suffice to say that review on this ground extends as much to

questions of law as those of fact.

The approach of the Indian Court in reviewing administrative

determinations on matters of law finds its expression in three

different ways. ■ Firstly, the courts review the inferior tribunals’

decision on matters of law by means of the jurisdictional principle.

Secondly, they review actions on the principle of error of law

apparent on the fact of the records. Thirdly, they resort'to review’ on

a true interpretation of statute’ without reference to either to

jurisdictional principle or to error apparent on the fact of the record.

79 (1910)2 KB 859, 880.

273

So, in India, just as in English law, courts often review questions of

law but designate them as ‘jurisdictional law’. In S.T. Corporation of

India v. State of Mysore,80 the jurisdiction of the tax authorities

depended on whether or not the sale in question was an ‘inter-state

sale’ as defined in Section 3(a) of the Central Sales Tax Act. In view

of the provisions of the constitution (Article 269) and the Central

Sales Tax Act, (Act of 1956), the State could not tax such a sale.

The cement concerned in the sale was actually moved from one

state to another a fact which was not denied. Therefore, the

question was whether on the undisputed facts the sale was an ‘inter­

state sale’ within the meaning of the statutory provision. The

Supreme Court held that the Taxing Officer gave himself jurisdiction

to tax the sale by wrongly deciding this question. The Supreme

Court described this question as a ‘collateral fact'. But this was

obviously a case of ‘jurisdictional law’. It is necessary to emphasize

that, 'despite the general habit of discussing the rule as one dealing

with a certain class of facts, it extends equally to certain class of

questions of law.'

(i) Error of Law apparent on the face of the record.Error of law apparent on the face of the record as a ground of

review of law has received sufficient attention in legal literature. It is

distinguished from the principle of jurisdiction in that it is not founded

on any notion of jurisdictional control and consequently forms an

exception to the latter. Review is confined to errors apparent on the

face of the record. Historically, however, this requirement was not

originally insisted upon. In the seventeenth century error of law could

J.

80 AIR 1963 SC 548.

274

grant certiorari Without being ‘on the face of the record' : Henderson• R1writes

“One decisive set of facts emerges from the seventeenth century precedents : There is, no case in the reports before 1695 in which kings’ bench refused to review an objection based' on the language of the applicable statute whether or not the objection appears ‘on the face’ of the order. Many orders, on the other hand, were quashed because’ it does not appear’ that statutory requirement had been followed, whether or not that requirement was properly jurisdictional by modern criteria.”

Henderson, however, goes on to observe, ‘yet it is probable

that “the face of the record’ rule existed’.

The first case in which the ‘face of the record’ was applied to a

statutory requirement was Wootton Rivers v. St. Peter’s

Marlborough.82 In this case the order of two justices was impugned

for removing a poor woman to her legal settlement in spite of the

objections and they did not state that she did not rent a tenement

worth 10 per annum a statutory requirement of removal orders. Lord

Holt said in this case that every requirement of a statute that

operates ‘by way of jurisdiction’ must appear in an order based

thereon. This statement shows that the notions of jurisdiction and

error of law were inextricably mixed up.

R. v. Inhabitants of Woodsterton83 is the first case in which

‘the face of the record’ rule was unambiguously applied to a■U

statutory requirement. There an order of two justices of the peace to

an overseer of the poor to make certain payments for poor relief was

upheld in spite of the non-compliance with the statutory requirement

Foundation of English Administrative Law (1963) p. 147. '3 Salk 254, 5 Mod 149(1695/6).Barnard KB 207, at 247(1732-33).

275

of cause notice. After 1870 this principle of judicial control seldom

worked and in fact its very existence was almost forgotten, until it

was revived by the decision in the R. v. Northumberland

Compensation Appeal Tribunal.84 Lord Denning said in this case :

“We have a simple case of error of law by a tribunal, error which they frankly acknowledge.It is an error which deprives Mr. Shaw of the Compensation to which he is by law entitled. So long as the erroneous decision stands, the compensating authority dare not pay Mr. Shaw- the money to which he is entitled lest the auditor should surcharge them. It would be quite intolerable if in such a case there were no means of correcting the error."85

The tribunal committed the error in question by counting only

the second period of service, whereas under law they should have

counted both the periods while calculating statutory compensation

for Mr. Shaw.

Even after the revival of the principle, its impact was ‘relatively

slight’ until the Tribunal and Inquires Act, 1958. This was firstly

because a wide range of errors was held to go to jurisdiction, and

secondly every few tribunals were required by statute to. state

reasons for their decisions. The Tribunals and Inquiries Act, 1958,

have effected a material change in the law. Section 12 of the Act

provides that each of the tribunals specified in the First Schedule

must furnish a statement, either oral or written, of the reasons for its

decision, if requested to do so. A similar obligation is imposed on

the ministers in respect of matters which could be made the subject

of statutory inquiry (section 12(1)). Again, any statement of the

reasons for a decision given by any of the specified tribunals or by a

(1952)1 KB 338. Id at 354.

276

minister ‘shall be taken to form part of the decision and accordingly

to the incorporated in the record (section 12(3)). The meaning of

‘record’ has been widened to include oral reasons. In English law,

therefore, judicial review on the ground of error of law apparent on

the fact of the record is very wide.

However, since the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission86 where the

error of law committed by the tribunal was held to have destroyed its

jurisdiction, the distinction between errors ultra vires and errors intra

vires is said to have declined. It is said that ‘since Anisminic, the

requirement that an error of law within the jurisdiction must appear

on the face of record is now obsolete.87 Lord Diplock has said extra-

judicially that the Anisminic case “renders obsolete the technical

distinction between errors of law which go to ‘jurisdiction’ and errors

of law which do not. In doing so it enlarges the material that can be

made available to the court on certiorari to found an inference that

those responsible for an administrative decision have erred in law.

Thus, the technicalities as to what constitutes the ‘record’ for the

purposes of review no longer matter’’88 Lord Diplock repeated his

view as to the diminishing importance between errors intra-vires and

errors ultra-vires in O’Reily v. Mackmen.89 In early Indian law,

apparent or otherwise was not recognised as a ground of review,

and the jurisdictional error was the only ground of review. Thus in

Kumarswami v. Munirathana Mudali90 an application for a writ of

(1969)2 AC 147.Per Robert Goff L. in Greater Manchester Cornor Ex p. Tal (1984) 3 All ER 204 at 249(Obiter). i(1974) 33 CLJ 233 at 243.(1983)2 AC 237 at 278.ILR (1932)55 Mad. 942.

277

Certiorari to have the order of the Revenue Board Quashed was

dismissed. Beasley C.J said :

“With regard to the issue of writ of certiorari, it has been laid down by this court, following the decisions of English courts that a writ of certiorari will only issue where it is shown that the court, whose order is sought to be made the subject of the writ, has acted either without jurisdiction or in excess of it.”91

Similarly in T.S.S. Pillai v. Ahmad Miran92, it was held that if, in

an enquiry by an election commissioner, an error is made which

goes beyond the jurisdiction of the tribunal or is done without

jurisdiction, and is not merely a wrong view of law, then a writ can be

granted. The most surprising thing is that error of law as a ground of

certiorari was denied by citing those English cases in some of which this principle was asserted. Thus, in Shanmuga v. Subbordaya93

several petitions for certiorari challenging an order of the Election

Commissioner as incorrect interpretation of Section 49 of Madras

District Municipalities Act, 1920 were dismissed.

The plausible explanation of the refusal of certiorari on the

ground of error of law in that period is that the principle suffered a

decline in English law as well after 1870. Another factor responsible

for the obscurity of this principle is that it was treated ip, many casest

as jurisdictional error a situation analogous to the seventeenth

century English law. Thus, in Krishnaswami Aiyar v. Mohanlal

Binjani94 where under the Madras Buildings (Lease and ’control) Act,

1946, Section 7, the chief Judge of the court of small causes found

that an envelop containing a cheque for rent was refused by the

Id. at 944; See also Assam v. Bijli Sahds, (1932) 57 Mad. 571 at 576. AIR 1934 Mad. 357.AIR 1933 Mad. 133.(1948)11 MLJ 559.

278

landlord but granted an order for eviction on the ground that thev

tender was invalid; the order was quashed by certiorari on the

ground of error apparent on the face of the proceedings. But the

ground was hold to be one of error of jurisdiction.

The uncertainty not only persisted even after the adoption of

the constitution but also deepened after the decision in Parry & Co.

v. Commercial Employees Association95 and Ebrahim Aboobakar v.

Custodian. General of Evacuee property New Delhi96 cases. In the

former case the Supreme Court held that the Madras High Court

could not issue a writ of certiorari to quash a decision passed within

its jurisdiction by a labour commissioner under the Madras shops

and establishments Act, 1947, on the ground that the decision was

wrong. In Ebrahim’s case the Supreme court said that if a statutory

tribunal acted within its jurisdiction, a mistake would not furnish

grounds for certiorari. As a result even after error of law apparent on

the face of the record was revived in English law in Rov. Northumber

land compensation appeal tribunal,97 the Allahabad High Court

refused to apply this principle in Sheo Kumar v. G Oak,98 on the

ground that the Supreme Court had not recognised it. The Supreme

Court mentioned error of law apparent on the face of the record in

T.C. Bassappa v. T. Nagappa" as a ground of certiorari. Veerappa

v. Raman & Ramman Ltd.100 is the earliest case inrwhich the

Supreme Court referred to ‘error apparent on the face of the record’

as one of the grounds on which the High Court could exercise

powers under Article 226 but it was not made clear, whether the

AIR 1952 SC 179. AIR 1952 SC 319. (1952)1 All E.R. 122 AIR 1953 All. 633. AIR 1954 SC 440. AIR 1952 SC 192.

279

error was error of law. However, after Bassapa’s case this principle

was recognised by the courts without any hesitation. Thus, the

Supreme Court issued certiorari under Article 32 of the constitution

in Tata Iron & Steel Co. v. S. R.Sarkar101 on the principle of error of

law apparent on the face of the record to sat aside an assessment

order. However in UjjaimBai102 the Supreme Court refused to accept

this principle as a ground of review under Article 32 saying that a

misconstruction of a statute not involving jurisdictional error does not

infringe fundamental right and consequently does not entitle anyone

to seek the interference of the Supreme Court. The effect of this

reasoning seems to be that error of law apparent on the face of the

record is no longer available under Article 32 of the constitution.

The High Courts, however, can issue certiorari on this ground under

article 226 of the constitution.

(ii) Problem of distinction between ordinary error of law and

error of law apparent on the face of the record :

The error of law apparent on the face of the record as a

principle of judicial review was established in India, but it brought in

its train the problem as to where to draw the line between ordinary

error of law and error of law apparent on the face of;.the record.

Venkatarama Ayyar, J. dealt with the problem, in Hari Vishnu v. Ahmad Ishaque103 thus :

“Mr Pathak for the first respondent contended on the strength of certain observations of Chagla C.J. in Butuk K. Vyas v. Surat municipality104 that no error could be said to be apparent on the face of the record if it was not self evident and if it required an examination or argument to

101 AIR 1961 SC 65.107 Ujjain Bai v. State of U.P., 1962 SC 1621 ; See also Pioneer Traders v. Chief

Controller, Imp. & Exp., AIR 1963 SC 734.AIR 1955 SC 233.AIR 1958 SC 398.104

280

establish it. This test might afford a satisfactory basis for decision in majority of cases. But ther.e must because in which even this test might break down because judicial opinions also differ, and an error that might be considered by one judge as self evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case”.

It will be seen from the above remarks that Judge could not

lay down any objective test. In Nagendra Nath Bora v.

Commissioner of Hills Division2, Sinha J., (as he than was)

distinguished between ‘essential requirements of law’ and 'more

formal or technical errors’ as a test. In Stayanarayanan v.

Malikarjun105 Das Gupta J., makes another, attempt to define it.

“An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be error apparent on the face of the record. As the above discussions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments’’106

The test suggested above, namely the distinction between the“ K,

essential requirements of law and ‘mere formal error and the nature

of the arguments may also break down, for what is an essential

requirement to one judge may appear to be a mere formal

requirement of law to another. Similarly, what is complex to one

judicial mind may be clear and obvious to another; it depends upon

the equipment of a particular judge. The truth is that the concept

105

106AIR 1960 SC 137. Id. at 141-42.

281

has a subjective element that defies any precise definition. As Subba Rao J put it in K.M. Shanmugan v. S.R. V.S.(P) Ltd.107 In the

ultimate analysis the said concept is comprised of many

imponderables : It is not capable of precise definition, as no

objective criterion can be laid down, the apparent nature of the error,

to a large extent, being dependent upon the subjective element

whether' the case falls on the one side or the other of the dividing

line will depend on the statutory construction in any given case.

Thus, the position, is that an error is apparent on the face of

the record, if it can be ascertained merely by examining the record

without having to have recourse to other evidence. No error of law

can be said to be apparent on the face of the record if it is not self

evident or manifest, or if it requires an examination or argument to

establish it; or if it has to be established by a long drawn out process

of reasoning on points where there may conceivably be two opinion.

In other words, an error which has to be established by lengthy and

complicated argument is not error of law apparent on the face of the

record108 But test is not articulate and it may fail at times because

what may be considered by one judge as seif evident might not be

considered by another.109

That if on a question of law two opinions are possible (e.g. on

an interpretation of a statutory provision or of a regulation)110 and the

tribunal has adopted one of the two possible views its decision does

not disclose an error of law apparent on the face of the record.* * 111

Thus, in Satyanarayanan v. Malikaarjun112 where a tribunal made an

107 AIR 1963 SC 1626.108 Satyanarayan v. Malikarjun, AIR 1960 SC 137.109 Hari Parkash v. Md. Ishaque, AIR 1955 SC 233.150 Principal, Patna College v. K.S. Raman, AIR 1966 SC 707 at 713.111 Amrik Singh v. B.S. Malik, AIR 1966 Punj 344 at 348; See also Sayad Yakoob v.

Radha Krishan, AIR 1976 Kar. 158.112 AIR 1960 SC 137.

282

order for possession in favour of the lessor without a previous notice

to the lessee as required by Section 14 of the Bombay Tenancy and

Agricultural Lands Act, 1948 on the view that the alleged error was

not an error apparent on the face of the record, since two opinions

on the question (of the requirement of previous notice were possible.

This seems to be a very much narrower view of the principle as

understood in England. In English Law, if the reviewing court can

find from the record (i) that a tribunal has determined a point of law

and (ii) that the determination is mistaken, the principle of error of

law is invoked. Thus Lord Pearce said in Armah v. Govt, of

Ghana113 that “the High Court has always had power by writs of

habeas corpus and by certiorari to correct any error of law provided

that it is able to see that the error has occurred...” Indian law is

more akin to the policy of the American courts in upholding an

agency determination if it has a ‘reasonable basis in law’, than to the

English principle of error of law apparent on the face of the record by

which the English courts correct any error of law provided that ‘it is

able to see that the error has occurred.’

However, the courts may interfere if only one interpretation of

the law is possible and the body has not adopted the same; or if the

construction adopted by it is perverse, i.e. no reasonable men would

adopt. In Ambika Mills v. Bhatt;114 the construction placed by the

tribunal on two clauses of an agreement between the Ahmedabad

Mills owners' Association and the Textile Labour Association was

held to be patently and manifestly erroneous,’ It is not a case where

two alternative conclusions are possible; it is a case of plain

misreading of the two provisions ignoring altogether the very object

"3 (1966)3 All ER 177 at 199-200; See also R. v. Greater Manchastor Comer exp.Tal, (1984)3 All ER 240.

"A AIR 1961 SC 970.

283

with which two separate provisions are made.113 In Hind Trading

Co. v. Union of India,116 the Supreme Court quashed an order of

collector of customs by issuing certiorari holding that when a tribunal

come to a conclusion which could not reasonably be entertained by

them if they properly understood the relevant enactment then they\

fall into error in point of law.”

If an adjudicatory body disposes of a matter without applying

its mind, to a material circumstance which has been duly brought to

its notice, it amounts to a patent error of law.117 Ruling of a High

Court is binding on every judicial and quasi-judicial body within the

jurisdiction of that High Court unless the same has been reversed

by the Supreme Court which, is the Highest Court of the land. Thus,

if such ruling of the High Court is disregarded by quasi-judicial body,

it amounts to an error of law apparent on the face of the record. In

K.P. Nanjunath v. State of Karnataka,118 the High Court quashed the

order of the state government made in its adjudicative capacity,

because it had disregarded the ruling of the High Court. The court

emphasized that even the government acting in adjudicative

capacity is no exception in regard to its obligations to follow the High

Court rulings.

In the same manner, if an authority ignores relevant

consideration, take into account irrelevant considerations, in

reaching its decisions, it amounts to a patent error of law. These

flaws in the decision making may even be regarded as jurisdictional

errors following A'nisminic approach.

Id. at 974.AIR 1970 SC 1858.Kays Concerns v. Union of India, AIR 1976 SC 1525. s;AIR 1976 Karn. 158; See also Collector of Customs v. Pednakar, AIR 1976 SC 1408.

284

A court may not intervene when a body disregards not a

mandatory provisions of law but executive instructions or directions

which have no force of law.119

The principle of error of law on the face of the record is further

strengthened by the requirement to state reasons for decisions. Ifi

the reasons are given then the court can detect errors from the reasons. However in India, like in English law,120 there is no general

legislation requiring a tribunals to state reasons for their decision, but

the Indian courts have imposed this obligation on judicial and quasi­

judicial bodies,121 and where an appeal has been provided for

against the decision122 as the right of appeal might be rendered

nugatory without the disclosure of reasons. Reasons so given, must

be adequate, intelligent and certain otherwise the decision will have

to be set aside for failure to give reasons.123 This is necessary for, in

the absence of reasons, it is not possible for the courts whether an

error has been committed or not. As a result, the principle of error of

law apparent on the face of the record, in so far as it is recognised (it

can be invoked under Article 226 but not under Article 32 of the

constitution) has been strengthened.

(iii) Insufficiency of Evidence

While ‘no evidence’ is a ground of review, the Supreme Court

has observed that if there is some evidence to support the findings

“the adequacy or reliability of that evidence is not a matter which can

be permitted to be canvassed before the High Court,”124 in

Abdullah v. S.T.A. Tribunal, AIR 1959 SC 896.In English Law, Section 12 the Tribunal and Inquiries Act, 1971 (re enacted Section 12 of the 1958 Act) requires the tribunals specified in the First Schedule to state reasons for their decisions.Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India, AIR 1976 SC 1785. Nagendra Nath Bora v. Commr. of Hills Divn., AIR 1958 SC 398 at 406.R v. Mental Health Review Tribunal, (1986)1 All ER 99.State of A.P. v. Venkat Rao, AIR 1975 SC 2151 at 2155.

285f .

proceedings for judicial review. While a decision based on no

evidence, on an a misreading of material evidence or, a decision so

grossly unreasonable that no reasonable person could reach it

would be liable to set aside,125 judicial control for insufficiency of

evidence is not countenanced. It seems that error of law apparent

on the face of the record could not be invoked for this purpose.

The Supreme Court explained the substance of this rule in

State of Haryana v. Rattan Singh,126 In this case a bus conductor of

the Haryana Road Transport Corporation with Rattan Singh as

conductor was taken over by a flying squad. The Inspector found

eleven passengers without tickets though that they had paid money

for it. However, the Inspector did not record the statements of those

persons as required under the rules. After, the formality of inquiry,

the services of the conductor was terminated. All the courts upto the

High Court quashed the decision on the ground of insufficiency of

evidence and violation of rules of natural justice as none of the

eleven witnesses was examined and the Inspector did not record the

statements of witness as required by law. On appeal by the State,

the Supreme Court reversed the decision and held that the simple

point in the case was, was there some evidence or was there no

evidence not in the technical sense governing the regular court

proceedings but in a fair common sense way as a man of

understanding and wordly wisdom would accept. Viewed from this

angle sufficiency of evidence in proof of findings of a domestic

tribunal is beyond scrutiny. The evidence of the inspector is some

evidence.

125

126Michael L. v. Jahnsons Pumps Ltd., AIR 1975 SC 661.AIR 1977 SC 1512; See also J.P. Jain v. State Bank of India, AIR 1982 SC 673.

286

The end result of the decision is that if there is some evidence

in some corner of the record, the decision invalid though it may not

be any evidence at all in accordance with accepted norms of a judicial decision. Nand Kishore Prasad v. State of Bihar,127

highlights the problem. In this case the appellant was a clerk in the

District Magistrate’s Office. He was prosecuted before a criminal

court for embezzling a certain amount, but was acquitted.

Therefore, disciplinary administrative proceedings were initiated

against him and the appellant was found guilty, and hence removed

from service. Upholding the decision of the administrative authority

in a writ proceeding, the Supreme Court held that this was not a

case of number evidence’ but of evidence which was inadequate to

carry a conviction in a criminal court. In disciplinary proceedings,

however, the order passed cannot be interfered with on the ground

that the evidence would be sufficient in a criminal trial. It is true this

‘no evidence' rule resulting in inadequate basis for action has not

earned any credibility for administrative justice.

This approach calls for comments. Insufficiency of evidence is

a question of law and not of fact. Thus, Lord Reid said in R.V.

Brixton Prison Governor, Ex part Armah128, “whether or not there is

evidence to support a particular decision is always a question of

law..."129 Therefore, if it appears from the record of the proceedings

that a particular decision cannot be supported by sufficient evidence

that would be a case of error of law apparent on the face of the

record appropriate for judicial review. Ameteep Machine Tools v. State of Haryana;130 was such a case where it was accepted that a

AIR 1978 SC 1277. (1968) AC 192.Id. at. 234.AIR 1980 SC 2135.

287

finding that a person was ill and could not have instigated or

participated in a strike on a particular day was one which proceeded

from the material on record. The Supreme Court characterised the

finding as one of fact and decline to interfere. A better approach

would have been to treat the issue as one of law and if the finding

lacked sufficient evidence the court ought to have intervened on the

ground of error of law apparent on the face of the record.

In England, courts do not disturb the findings >of fact by an

administrative authorities unless it is based on no evidence. Coleen

Properties Ltd. v. Minister of Housing and local Government131 is an

illustrative case on the point. In this case a first-class building was

included in a clearance order for undertaking a housing project. The

Housing Act, 1957 provided that a first class building cannot be so

included unless it is ‘reasonably necessary’ for the whole scheme.

The inspector who gave the hearing recommended the exclusion of

this building. The minister overruled the inspector’s, findings and

confirmed the clearance order. The court quashed the minister’s

order on the ground that there was no evidence of ‘necessity’ before

the minister. However, now a shift is visible in the approach of

courts in England from the ‘no-evidence’ rule to 'sufficient-

evidence/substantial-evidence’ rule. Their Lordships of the House of

Lords in R.V. Home Secy. Ex Parte Khwaja132 held that while

exercising a power of judicial review, court must see that there is

'sufficient evidehce’ on record and thus the ‘no-evidence rule’ was

not applied for review of administrative action.

In another way the objection of judges determining the

sufficiency of evidence in judicial control is a practical one and not a

131

132(1971)1 WLR 1, 33 (1984)1 AC 74(HL)

288

jurisprudential one. This is that evidence in the normal run’of cases

which is not part of the record unless so incorporated by the tribunal

of its own volition. Without the requirement to maintain a complete

record of the tribunal proceedings it is not possible for the review

courts to determine the sufficiency of evidence. However, courts

give the impression that review ability of evidence is a matter of substantive law rather than procedure.133

(iv) Meaning of ‘the record’:The scope of the error of law apparent on the face of the

record as a ground of judicial control depends on the meaning

attached to the word 'record'. Thus, the question is whether the

‘record’ for this purpose ought to mean anything more than the order

or decision recorded. Lord Denning, L.J. in R. v. Northumberland

Comp. App. Tribunal134 in this regard said :

I think the record must contain at least the document which initiates the proceedings, the pleadings, if any and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. It the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision,"

Denning L.J. Stated also;135

Notwithstanding the strictness of the rule that the error of law must appear on the face of the record, the parties could always by agreement overcome this difficulty. If they both desired a ruling of the court... on a point of law which had been decided by the tribunal but which had not been entered on the record, the parties could agree that the question should be argued and determined as if it were expressed in the order.

'Sufficiency of evidence is not for the court to decide' State of Haryana v. Rattan Singh, AIR 1977 SC 1512.(1952)1 All ER 122 at 131.Ibid.135

289L

Denning L.J. further stated;136

“Affidavits were always admissible to show that the record was incomplete as for instance that a conviction omitted the evidence of one of the witnesses... if it had been necessary, the court could have ordered the record to be completed.”

Thus, additional material could form part of the record,whether supplied on the order of the court137 or voluntarily as by

filing an affidavit138 or as a letter explaining the reasons for the

decision sometimes afterwards.139 In R v. Preston Supplementary

Benefit Appeal Tribunal, Ex parte Moore,140 Lord Denning MR

asserted, “The ‘record’ is generously interpreted so as to cover all

the documents in the case”, and in R. v. Crown court at

Knightsbridge, Ex parte International Sporting Club (London) Ltd.,141

held that the ‘record’ was not restricted to the formal order but

extended to the reasons given by the Judge in his oral judgment and

set out in the official transcript there. The argument that only if the

inferior court choose to embody its reasons in its order then they

become part of the record. Similarly, the ‘record’ includes any

document referred to in the impugned order or decision.

But in Indian law as it stands at present ‘record’ has a more

restricted meaning than it has in English law. It does not extend to

any documents other than the decision impugned in a given case, in

S.K. Dutt v. A.I. Jute Mills Co. Ltd.142 the single judge directed the

assessment records of the Clive Investment Trust Company Ltd. to

be produced before him and said that the record in that case "would

R v. Medical Appeal Tribunal Ex parte Glimore, (1957)1 QB 574 at 582.R v. Southampton justices ex parte Green, (1976) QB 11 at 22.R v. Supplementary Benefits Commission ex parte Singer, (1971)1 WLR 713. (1975)2 All ER 807 at 810.(1982) QB 304.AIR 1957 Cal. 514.

290

include the record which has been called for including the

assessment order”. On appeal this definition of record was rejected

by Division Bench. Thus, it was held that if a court approached for a

writ of certiorari itself calls for records of other proceedings, although

those may be in some way connected with the proceeding before it,

such records cannot be said to be the ‘record’ for the purpose of a

writ of certiorari; and it was also held that an error appearing from

those subsidiary records called for by the court itself will not be an

error on the face of the record as contemplated by law relating to this

writ.

In Josedha Saha Ltd. v. S.K. Chatterjee,143 the order of the

Assistant Collector of Appraisement was attacked on the ground that

the provisions of Section 30 of the sea Customs Act 1878 had not

been followed in that no mention was to be found in the order of the

wholesale cash price or the trade discount, nor was there any

determination as to the wholesale cash price less trade discount for

which goods of the like kind and quality are sold or are capable of

being sold at the time and place of importation. It was held that, in

order to sustain those objections before the High Court, the

petitioner would have to take the court to the calculations and

computations made by the Assistant Collector of Appraisement,

which did not appear on the face of the order; and therefore it could

not be said that there was an error on the face of the proceedings. If

the court had to look beyond the order into other documents thus it

could not be called an error on the face of the proceedings. However, in Rajendra Prasad v. State of Punjab,144 the Punjab High

Court, by a Full Bench decision broadened the meaning of 'record’

AIR 1961 Cal. 195. AIR 1966 Punj. 185.

291

to include not only the reasons forming the basis of the order (the

impugned order had been made by the revenue authorities) but also

certain additional documents. In English Law even oral reasons are

counted as record. In R.V. Chestray145 a decision of justices was

quashed for error of law on the face of the record | when error

appeared only in the reasons given orally at the time of conviction.

But there does not seem to be any case in India to the effect that

oral reasons are counted as record and the cases already discussed

suggest the contrary law.

Thus, the future prospect of error of law on the face of the

record as a principle of judicial control will be determined by the

judicial policy the courts adopt. The courts presently seem to be

taking a restricted view in this respect. Sinha J., (as he then was)

speaking for the scope of error of law apparent on the face of the

record in Nagendra Nath Bora v. Commissioner of Hill Division146

observed :

“Certiorari... is not meant to take the place of appeal where the statute does not confer a right of appeal. Its purpose is only to determine on an examination of the record, whether the - inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of law which it was meant fo administer. Mere formal or technical errors even though of law, will not be sufficient to attract this extra ordinary jurisdiction”.147

The above observation of Sinha J. that certiorari is not meant

to take the place of an appeal where the statute does riot confer a

right of appeal only reflects a judicial policy of a narrower view of this

principle.

145

146

147

(1961)2 QB 152. (1958) SCR 1240. Id. at 1270.

292

The principle of error of law apparent on the face of the record

has been, to a large extent, denuded of its utility by review of

tribunal’s decisions” on a true interpretation of the statute.” By

granting review” on a true interpretation of statute”, the courts in

effect, exercise a power of statutory appeal on points of iaw which is

not necessarily confined to error of law apparent on the face of the

record. In spite of this development that the rule of error of law

apparent on the face of the record is likely to retain its utility, as it

provides a basis for review of no evidence, wrong evidence and

wrong conclusions from evidence.

The rule as to ‘judicial review on the limited ground of patent

error of law has been adopted in India from England. There was no

compulsive reason for the Indian courts to adopt this technical British

concept, as these courts were not obliged to follow the English law.

In England, the court’s jurisdiction to correct patent error has in the

past been of great importance. Today, however, it seems that its

importance is dwindling to the point , of obsolescence. Essentially

because, those errors which can be detected by a perusal of the

“record” will almost invariably be errors of law. But the courts now

have a very wide jurisdiction (whether by way of statutory appeal or

via the Anisminic characterization of error of law as jurisdictional) to

correct errors of law as such, i.e. irrespective of whether or not they

appear on the face of the record. If one may obtain review on the

basis of error of law simpliciter there will be no need to invoke a

jurisdiction which requires one to show not only error of law but also

that the error appears on the face of the record.

But will there not be cases where there is no right of appeal

and where the Anisminic presumption does not apply and where,

consequently, one who seeks review will need to invoke the patent

293

error jurisdiction? This seems unlikely. The Anisminic presumption

will, apparently, be rebutted only where Parliament has indicated

clearly that it is not to apply as for example, where Parliament has

expressly with drawn a right of appeal on point of law which would

otherwise have been available. The fact is though, that the

legislature is hardly likely to go to these lengths without taking steps

to exclude the patent error jurisdiction also - as it did in both

Pearlman148 and South East Asia Firebricks.149 It is unlikely then,

that the patent error jurisdiction will remain unimpaired by Parliament

in a case where the Anisminic presumption has been ousted. It

follows that if the anisminic presumption extends (unless rebutted) to

all authorities subject to supervisory jurisdiction it is unlikely that

there will be occasions where it will be strictly necessary for a

litigation to resort to the patent error jurisdiction. It would, however,

be premature at this time to assert categorically that the Anisminic

presumption is so wide ranging as to render the patent error

jurisdiction entirely obsolete. If an error of law does appear on the

face of the record it may be sensible to put one’s case in these terms

rather than to invite dispute on whether the anisminic presumption in

principle applies and, if so, whether it is rebutted.150 Nevertheless,

“the artificial distinction between patent and latent errors of law... is

^ very unsatisfactory”151 and a Queen’s Bench Divisional Court has

pronounced it “obsolete”152

As seen above, it is not always easy to distinguish between a

patent and a latent error. It would be much simpler if the courts

discard the distinction between latent and patent errors of law and

148 Pearlman v. Keepers of Harrow School (1979)Q. B. 56.149 South East Asia Fire Bricks v. Non Metallic etc. union, (1981) A.C. 374.150 In R. V. Knightsbridge Crown Court ex p. I. S.C. Ltd. (1981)3 W.L.R. 640.151 Smith, Judicial Review of Administrative Review (1980) p. 139.152 Per Golf L.J. in R.V. Greater Manchester Corner ex p Tal (1985) Q.B. 67 at 82.

294

become the final judge of all errors of law. As well be seen later, in

the case of review of discretionary powers, the courts have hardly

bothered to find whether error of law is manifest or not. They have corrected all errors of law constituting abuse of discretion.153

However, following Queen Bench decision in England (mentioned

above) Indian Courts should also discard this artificial distinction

between latent and patent law. This will make the law of judicial

review simpler and both may be considered on the ground of excess

or abuse of jurisdiction Any way there is no compulsive reason for

Indian Courts to continue to old, and orthodox thinking in England.

Where the Queen Bench has also pronounced the distinction

between patent and latent law obsolete.154 The same proposition

should also be followed by Indian Courts.

If the distinction between errors committed within jurisdiction

and errors outside jurisdiction is abandoned a number of

consequences will ensue. First, as indicated above the court will

look at material outside the record to detect errors of law. Secondly,

judicial control would not be restricted to errors of law apparent on

the face of the record or an excess or refusal of jurisdiction but

would extend to any error of law committed within the jurisdiction of

a deciding body.155 If this line of reasoning is followed in- India it

could have far-reaching implications. As we will see, in Indian Law it

is far more difficult to establish errors of law apparent on the record

than simple errors of law. Thirdly the extent of protection afforded by

the ouster clauses’ appearing in statutory provisions for decisions

which turn out to be erroneous, ultra vires or intra vires could bei

153 See S.N. Jain, Scope of Judicial Review to correct Errors of Law through Mandamus and Certiorari, 6 J.l. L.l. 316(1964). Also infra Chapter VI.

154 Supra note 152155 R. v. Registrar of Companies Ex. P. Central Bank of India, (1986)1 All ER

105(CA).

295

assimilated. Finally, where the court has a discretion to grant a

remedy it could decline to do so irrespective of whether the errors

goes to jurisdiction or not.156

3. Review of facts(i) Review of Jurisdictional Fact. T

Following the distinction between questions ot fact and

questions of law, the English courts have refused to review decisions of inferior tribunals based on conflicting evidence.157 Tne practice

became so firmly entrenched in judicial decisions as to reveal at one

time a tendency towards excluding review of facts even if they went

to jurisdiction. The courts have, however, succeeded in extricating

themselves from the influence of the above tendency and have established their authority to review facts if they are collateral.158

Thus, there appeared an exception to the general unreviewability of

questions of fact. This is known in American law as ‘jurisdictional

fact’ and in English law as collateral fact.’ The doctrine of

jurisdictional fact,’ comments one author, ‘was the key notion out of

which in the seventeenth century the common system of judicial

review emerged and in terms of which it is finally crystallised159 In

an earliest statement in Bunbury v. Fuller,160 Coleridge J. stated the

doctrine as under1:

“...It is a general rule that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limits to its jurisdiction depends and however its decision may be final on all particulars making up together that subject

R. v. Knightsbridge Crown Court Ex. P. Marcrest Ltd. (1933)1 All ER 1146.A diction of Coleridge J. in Joseph v. Henry (1850) 196J (QB) 369.R. v. Norfolk Ex p. Wayland union (1909)1 QB 463; R. v. Board of Control Ex p. Rutty (1956)2 QB. 109.Louis L.Jaffe, Judicial Control of Administrative Action (1965) p. 624.Exch. 111, 140(1853).

159

160

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which if true is within its jurisdiction and however necessary in many cases it may be for it to make a preliminary inquiry whether some collateral matter be or be not within the limits, yet upon preliminary question, its decision must always be open to inquiry in superior court.”

Thus, lack of jurisdiction may also arise from absence of some

preliminary facts which must exist before a tribunal exercises its

jurisdiction. There are two types of facts : facts which an authority

has to determine to dispose of a dispute before it; and facts which

must exist before an authority could exercise jurisdiction in a matter.

The latter are known as "jurisdictional" or 'collateral" facts. The

existence of these facts is a sine quo non or a condition precedent to

the assumption of jurisdiction by a body over a dispute and to decide

it on merit. To put it simply, the fact or facts upon which an

administrative body’s power to act depends can be called

“jurisdictional facts”. If the jurisdictional facts does not exist, the

court or the tribunal cannot act. If an inferior court or a tribunal

wrongly assumes the existence of such a fact a writ of certiorari can

be issued. Thus, the underlying principle is that by erroneously

presuming such existence, cannot confer, upon itself jurisdiction

which is otherwise not vested in it under the law.161

However, in United States the courts have evolved a new rule

governing the review of findings of facts. A finding of fact by an

administrative agency is set aside if it is not supported, by

substantial evidence,162 a phrase that was defined by Chief Justice

Hughes as meaning ‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’163 As a result of

the emergence of the 'substantial evidence’ rule the courts' power to

161

162

163

Raza Anand v, State of UP, AIR 1967 SC 1081.Davis, Administrative Law Treatise, Ch. 29.Consolidated Edison C. v. N.L. R.B. 305 us 197 (1938), 229..

297

review findings of facts is no longer limited to ‘jurisdictional facts’.

The main difference which marks it off from the English rules about

administrative findings is that it is not founded on any notion of

jurisdiction. Instead of allowing complete freedom within jurisdiction

and imposing complete control over what is ‘jurisdictional’, it

compromises by allowing a certain amount of latitude to all findings,

without asking whether they are ‘jurisdictional or not.

Despite the high tide of substantial-evidence rule, the doctrine

has continued to play its role in American administrative law and the

courts have resorted to trial de novo of ‘jurisdictional facts’. The

familiar problem of distinguishing between jurisdictional and non-

jurisdictional facts has experienced. Thus, in U.S. v. Ju Toy,164 the

U.S. Supreme Court refused to decide the issue whether the person

was a citizen or alien and held that as ‘the necessary result of the

power of congress to pass exclusion laws’, the person claiming the

right to enter the United States as a citizen was not entitled to trial de

novo as to citizenship. But in subsequent case, Ng. Ejlung Ho v.

White,165 involving the same facts and the same issue the US

Supreme Court treated the issue of citizenship as jurisdictional and

ordered trial de novo of the issue. Justice Brandies, speaking for the

unanimous court, observed, “jurisdiction in the executive to order

deportation exists only if the person arrested is an alien. The claim

of citizenship is thus a denial of an essential jurisdictional facts.

Crowell v. Benson,166 is celebrated case on jurisdictional fact,

in which the U.S. Supreme Court, dealing with an award made by

the compensation commission held that the question whether there

existed the relationship of master and servant was one of those

164

165

166

(1905) 198 US 253. (1922) 259 US-276. (1932) 285 US 22.

298

‘where the determinations of fact are fundamental or “jurisdictional”

in the sense that there is a condition precedent to the operation of

the statutory scheme’ Chief Justice, Hughes commented that, “if the

agency determination on this question were final, it would sap the

judicial power as it exists under the Federal constitution and.,

establish a Government of a bureaucratic character alien to our

system...."

The doctrine of ‘jurisdictional fact has, however, been ignored

by the courts in such a large number of cases’ apparently

‘jurisdictional that a leading author has been prompted to remark

that it is probably no longer the law.167 The doctrine has been

eclipsed by the predominance of the substantial evidence rule has

relegated the ‘jurisdictional fact’ doctrine to the bade ground. It is

now functus officio’168 and need only be carried, so to speak, as a

spare wheel.169

Indian courts have followed the English rather than the

American doctrine of review of facts. Thus, the doctrine of

'jurisdictional fact’ provides the main plank on which the superior

court’s power to examine the factual basis of administrative

determinations. The principle can be traced to some of the early

privy council decisions. In Gopal Chander Chatterjee v. Gonamani

Dass,170 a case decided in 1892, the Judicial committee held that a

notice under Section 248 of the Civil Procedure Code (to bring the

official assignee before the court) is necessary in order that the court

should obtain jurisdiction to sell property by way of execution as

against the legal representative of the deceased judgment debtor.

Davis, Administrative Law Trestise, Chap. 29.03.Louis L. Jaffe, Judicial Control of Administrative Action (1965) p. 643-45. HWR Wade, 82 LQR (1966), 226,237.(1892) 20 C 370 cited in Raghunath Das v. Sunder Das, AIR 1954 PC 129.

299

Thus, the issuance of notice under the statute was essential for the

exercise of jurisdiction and the absence of such a notice deprived

the court of its jurisdiction.

The doctrine of 'jurisdictional fact’ was applied again in

Raghunath Das v. Sunder Das.171 There also the Judicial

Committee held, following its previous decision in Gopal’s case, that

a notice under Section 248 of the Civil Procedure Code is necessary

in order that the court shall obtain jurisdiction to sell property by way

of execution as against the legal representative of the deceased

judgement debtor. If the court gets the jurisdiction by service of

notice it has jurisdiction to sell the property in question, even though

its decision as to who is legal representative is erroneous. It was

held that in the instance case no proper notice was served under

Section 248 of the Civil Procedure Code 1882. However, in

Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa,3 a case

that came before the Privy council in 1900 involving the same facts

as in Gopal’s case it was held that, a notice under Section 248 of the

Civil Procedure Code, 1882 having been served, the court had

power to determine that for the purpose of the execution of

proceedings the party served with the notice was in fact the legal

representative.

These Privy Council decisions introduced into Indian law the

English doctrine of review of collateral facts. The courts have in the

post constitution era, asserted their authority to review facts on theV)

existence of which the jurisdiction of a tribunal depends.1" Thus, it has

been held in Roshan Lai v. Ishwar Dass172 that absence of

jurisdiction may arise from the absence of some essential

Supra.AIR 1962 SC 646; This was revision case but the doctrine stated is equally applicable to review.

171

172

300

preliminary matters or of facts collateral to those forming the subject

matter of the tribunal’s enquiry, but whose existence is a condition

precedent to the assumption of jurisdiction. Thus, the place of

jurisdictional fact in judicial review is indeed of significant

importance. It affords a useful check on administrative excess.

A Statute may or may not give power to a body to determine

the judicial facts for itself. When no such power is conferred, judicial

review extends to consideration of the evidence by the court upon its

own independent judgement, as if it is in an appeal and to decide the

existence of jurisdictional facts. The reason for this approach is that

the jurisdiction of the body depends on a correct decision as to

jurisdictional facts and that be wrongly deciding a jurisdictional fact,

a body cannot give jurisdiction to itself which it does not possess

under the law.173

In Munni Devi v. Gokal Chand174 the relevant statute provided

powers to the district magistrate to allot a vacant shop. The Act

further provided that no order made by the District magistrate shall

be called in question in any court. It was held by the court that

whether a. shop is vacant or not is a jurisdictional fact which could

not be decided finally by the magistrate himself, and by reaching an

erroneous decision on this point, he could not clothe himself with a

jurisdiction which he did not possess. The order as to vacancy could

thus be challenged.

In State of M.P. v. D.K. Yadav175, under the relevant statute all

jagirs including lands, forests, trees, tanks, wells etc. were abolished

and vested in the State. However, all tanks, trees, private wells and

buildings on “occupied land" were excluded from the provisions of

173

174

175

Naresh v. State of Maharashtra, AIR 1967 SC 1. AIR 1969(2) SCC 879.AIR 1968 sC 1186.

301

the statute. If they stood on “unoccupied land” they stood vested in

the State. The Supreme Court held that the question whether the

tanks, and wells etc were on “occupied land” or on “unoccupied

land” was jurisdictional fact, and the High Court could determine this

jurisdictional question upon its independent judgement.Similarly in Shauquin v. Desa Singh,176 the relevant statute

empowered the Chief settlement commissioner to cancel an

allotment of land if he was “satisfied” that the order of allotment was

obtained by means of "fraud, false representation or concealment of

any material fact.” The Supreme Court held that the satisfaction of

the statutory authority was a jurisdictional fact and the power can be

exercised only on the existence thereof.

The statute which empowers a tribunal to act may give it a

jurisdiction if a specified state of facts exists. In that case, if the

tribunal exercises the statutory jurisdiction in the absence of that

state of facts, it acts without jurisdiction. Sections 33 and 33-A of the

Industrial Disputes Act, 1947 provide that an Industrial tribunal may

take cognizance of an employee’s complaint that his employer has,

inter alia, altered the conditions of service, in regard to which there is

an industrial dispute pending before the tribunal and adjudicate upon

the complaint as though it were a dispute before it. It was held in

Bata Shoe Co. Ltd. v. Ali Hasan177 that the conditions laid down are

collateral ones on which the jurisdiction of the tribunal depends. In a

petition under Article 226 of the constitution the High Court is entitled

to determine upon its independent judgement whether the conditions

have been established. In Newspaper Ltd. v. State Industrial tribunal,178 the Supreme Court stated the doctrine as follows.

176

177

178

AIR 1970 SC 672. AIR 1956 Patna 518 AIR 1957 SC 532.

302

The jurisdiction of an Industrial Tribunal under the Industrial Disputes Act, 1947 is independent upon the dispute being an ‘industrial dispute’ as defined in the Act. The Tribunal has to determine, before exercising jurisdiction, whether the dispute is an industrial dispute and this finding is liable to be challenged in a proceeding for certiorari or prohibition and where the decision of the tribunal is wrong the proceedings before it are liable to be quashed179

Thus, the principle of 'jurisdictional fact' operates as an

exception to the rule of unreviewability of facts. In Raza Textiles Ltd.

Rampur v. Income Tax Officer,180 the Income Tax Officer demanded

the payment of income tax from a company rejecting the contention

that it was a non-resident firm. It was argued before the court that

the Income tax Officer was the sole judge of whether the tax payerti

was a non-resident firm. The Supreme Court states the-proposition.

No authority, much less a quasi judicial authority, can confer jurisdiction on itself by _ deciding a jurisdictional fact wrongly. The question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for writ of certiorari"181

A statute may, however, clearly authorise a body to decide the

jurisdictional fact for itself. For instance, under the Bombay Land

Requisition Act 1948, the government could requisition any premises

which is vacant. The Act specifically empowers the government to

make enquiries as to the vacancy and to make a declaration to that

effect, and makes its declaration to that effect, and makes its

declaration to the vacancy a conclusive evidence of the declaration

so made.182 In such a situation, the scope of judicial review is

Id. at 539.AIR 1973 SC 1362.Id. at 1363.See LeelavatiV/s State of Bombay AIR 1957 SC 521.

303

restricted. The court can review jurisdictional fact only to the extent

to which it reviews ordinary facts this means that the basis for court’s intervention will merely be the no legal evidence” rule.183

However, if an inferior court or a tribunal acts within the

jurisdiction vested in it, the writ of certiorari cannot be issued against it. In Ebrahim Aboobakar v. custodian General,184 the Supreme

Court observed.i,

“It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess-,,of

»185

Again, if the authority itself is given power to decide the

preliminary fact and it decides it wrongly, a writ of certiorari does not

lie. The order can be corrected only in appeal or revision, if it is

provided under the relevant statute.

It must, however, be remembered that the Legislature

vests the administrative body to decide question of jurisdiction only

in rare and exceptional cases. It is, therefore, the duty of the

judiciary to inquire as to whether a particular fact is jurisdictional or

not.

(a) Problem of distinction between jurisdictional facts and other

facts.

It is clear that the doctrine of jurisdictional facts is established,

in Indian law. What is not clear both in English law and in Indian law

is on what basis certain facts are classed apart as jurisdictional

facts. At times, the courts are found to contradict themselves in

183

184

185

Maharashtra v. Babulal, AIR 1967 SC 1353. AIR 1952 SC 319.Id. at p. 322.

304

such characterization. For instance a local authority in England may

make a clearance order, where they are satisfied that the houses in

that area are unfit for human habitation, and the order requires

confirmation by the minister. In one case,186 the court treated the

meaning of ‘house’ as a jurisdictional condition. But in subsequent

case,187 the court, held that the question whether a property was a

house or not just like the question whether it was fit or unfit for

human habitation was for the minister to decide finally. In other

words the questions were non-jurisdictional.

This justifies the discussion that follows how to distinguish

‘jurisdictional facts’ from 'other facts’ a distinction that determines the

reviewability of a question.

(b) Test to discern the distinction.

There have been various attempts by the commentators to

find a satisfactory test to discern the distinction between reviewable

jurisdictional facts and unreviewable non-jurisdictional facts. Thus,

Professor Jaffe expresses the view that jurisdictional matters are the

matters on which the legislature’s attention is focused' and that the

word ‘jurisdiction’ expresses the gravity of the error.188 But the

matters on which legislature focused its attention are assigned to the

machinery created under the respective statutes and they could

hardly be called jurisdictional matters. If the superior court are to

adjudicate upon these issues the jurisdiction cannot be any less than

appellate. As to the test of the ‘gravity of error’ it is more likely to

result from the wrong decision on the merit of the case than from the

jurisdictional error. Thus an erroneous cancellation of a licence by

Re But (1939)1 KB 5703.Ashbridge Investment Ltd. v. Minister of Housing & Local Government (1965)1 WLR 1320.Jaffe, Judicial control of Administrative Action (1965) pp. 631-633.188

305

the authority can lead to the loss of a man’s livelihood. Therefore,

the conclusion is inescapable that the tests formulated by Jaffe fail

to provide a satisfactory basis to draw distinction between

jurisdictional and non-jurisdictional matter.

Dr. Rubinstein189 also seeks to formulate a test in the following

terms; Matters which are essentially the crux of the adjudication are

to be placed within jurisdiction. He cites a few instances such as

whether a person is guilty, entitled to a certain benefit, or liable to

pay a certain duty. It may be at once pointed out that this test, even

if accepted by the courts, does not effect any improvement upon the

present state of law, because the element of indefiniteness and

arbitrariness which characterizes the present law. In each case it

will depend on the view the reviewing court takes as to ‘yvhat matters

are essentially the crux of the adjudication’ just as in each case it is

for the court to decide what matters are ‘jurisdictional’.

Lord Esher, M.R. formulated in R. v. Commissioner for special

Purposes of the Income Tax,190 the test to drew distinction between

two kinds of enabling powers, one by which ‘an inferior court or

tribunal or body’ is empowered to adjudicate only if certain facts exist

but by which it is open to further question by a higher court as to

whether those facts are established; the other by which the tribunal

is empowered to delimit its own jurisdiction by determining, without

possibility of challenge, the prerequisite facts themselves. C.K. Allen

has described this test as “statutory enabling powers”.191 The

English Courts have applied lord Esher’s test in many cases and

uphold administrative determinations, holding them to be final, e.g.

the decision of a reinstatement tribunal that a claimant is an

189

190

191

Rubinstein Amnon, Jurisdiction and Illegality, (1965} p. 213. (1888)21 QB 313, 319.Sir C.K. Allen,, Law and orders (1965) p. 267.

306

employee,192 the refusal of the local authority to grant

superannuation to a person on the ground that he is not an

employee,193 the determination by the council of architects as to

whether a person is eligible for registration as an architect194 etc. In

attaching finality to the determinations of the administrative bodies in

these cases the courts were guided by Lord Esher’s test of statutory

enabling powers’. Decisions which were upheld were held to be of

the second type mentioned by Lord Esher M.R. on the other hand,

the doctrine of ‘jurisdictional fact’ was applied where the tribunal was

held to be of Esher's first type. Thus, in R. v. City of London Rent

Tribunal, ex parte Housing195 it was held that a rent tribunal’s

jurisdiction to reduce rent is contingent on the existence of tendency,

which is a fact collateral to the question specifically assigned to its

jurisdiction, namely the fixing of a reasonable rent. Parkar J said

that rent tribunals are rather of the first type mentioned by Lord

Esher.

Indian court, in a large number of cases, have similarly

withdrawn from review following the dictum of Lord Esher. Thus, where the statute196 provides for eviction of a tenant on certain

grounds including non-payment of rent by the Rent Controller the

Supreme Court held that the case falls under the second category of

Lord Esher and the statute confers upon the controller final

jurisdiction to determine preliminarily question whether there has

been non-payment of rent as well as that final question of eviction,

R. v. Ludlow, Ex. P. Barnsley Corpn. (1947)1 QB 634.Wilkinson v. barking corpn. (1948)11 B 721.R v. Architects' Registration Tribunal, Ex p Jagga, (1945)2 All ER 131. (1951)1 KB 641.Bihar Building House (rent and eviction) control Act (III of 1947).

307

so that the decision cannot be challenged on the ground that the

preliminary question has been wrongly decided.197

This shows, the elusiveness of Lord Esher’s test of

jurisdictional fact. While the Rent tribunals are regarded by the

English courts as those of the second type. In Ebrahim Aboo Baker

v. Custodian General of Evacuee property,198 the custodian General

on appeal certain evacuee property on the basis that the appeal was

competent, that a certain person had locus standi to appeal, and that

the appeal was against the first order of the additional custodian

(there being two orders in existence). It was contended that the

Custodian General could not give himself jurisdiction by a wrong

decision on a point collateral to the subject matter on which his

jurisdiction depended but the Supreme Court held that’the Act gave

the Custodian General jurisdiction not limited by the existence of any

particular state of facts a power to determine appeal as well as the

preliminary issues such as whether an appeal was competent,

whether a person had locus standi to appeal, and whether an appeal

was in substance from one order or another.

Section 63-A of the Motor Vehicle Act, 1939 provides that:

The state government may of its own motion or on application made to it, call for records of any _ order passed or proceedings taken under this chapter by any authority or officer subordinate to it for the purpose of satisfying itself as to. the legality or propriety of such order or proceedings and after examining such records may pass such order in reference thereto as it thinks fit.;

In Raman & Raman v. State of Madras,199 the Supreme Court

held that the State Government was to decide issue as to whether

Brij Raj v. Sham & Co. (1951)2 SCR 145. AIR 1952 SC 319.AIR 1956 SC 463.

308

any order was illegal, irregular, or improper and then to pass such

order as it thinks fit. Hence, it would not be open to a court

exercising the power of review to interfere merely, because it might

be of opinion that the view taken by state Govt, as to impropriety of

the order was erroneous.

Finality of determination has also been sometimes deduced

from such expression as ‘conclusive evidence’. Thus, Section 5 of

Bombay Land Requisition Act (Act of 1948) which empowers the

State Govt, to requisition premises which have remained vacant for

a specified period, provides that the declaration of such vacancy by

the state government, after such inquiry as it deems fit shall be the

conclusive evidence of the fact of the vacancy. The Supreme Court

held in Leelavati v. State of Bombay200 that the finding of the State

Govt, on the question could not be challenged in review because the

legislature had conferred the final power upon the Government to

determine this question. Similarly, where the findings of a fact is left

to the subjective satisfaction of the administrative authority, the court

may not interfere with factual determination.201

The Indian courts have borrowed the dictum of Lord Esher,

M.R. from English Law and applied it in order to ascertain whether

any given facts are jurisdictional. It is, however, difficult to found

Lord Esher’s test on any logical basis. The test reveals a restricted

view of collateral facts. It suffers from logical inconsistency and

inherent dangers of granting absolute immunity to the inferior

jurisdiction. The distinction drawn by Lord Esher is not, therefore

workable in practice as the preliminary intent with regard to review of

jurisdiction is rarely, if ever clearly manifested.

AIR 1957 SC 521.Hubli Electricity Co. v. State of Bombay, AIR 1949 PC 136.

309

There are two difficulties involved in “jurisdictional fact”. One,

whether a particular fact is jurisdictional or not. Two, whether the

statute gives power to the concerned authority conclusively to

decide the jurisdictional fact. Pointing out the .difficulty “in

formulating an exhaustive rule to tell when there is lack of power and

when there is an erroneous exercise of it”,202 the Supreme Court

has said that ultimately the matter is one of public policy rather than

of logic. Viewed from the aspect of public policy as reflected in the

provisions of the statute concerned, the court held in the instant

case that a wrong decision on a question of ordinary residence for

the purpose of entering a person’s name in the electoral roll should

not be treated as a jurisdictional error. The court stated that the

statute in question had entrusted to an authority, other than a court

or a tribunal trying an election petition the exclusive power to decide

the matter finally.

Ultimately, it is for the courts themselves to determine whether

a statute confers jurisdiction on an authority to determine collateral

facts and whether the courts would exercise broader or narrower

powers of judicial review over such facts. There is now a tendency

to abandon the distinction between “jurisdictional facts” and other

facts which go to the merits. The reason is that there is no logical

test to draw such distinction. The courts tend to treat all facts as

non-jurisdictional. In U.S.A. as we have already discussed, the

courts have evolved 'substantial evidence’ rule and the powers of

the court to review of facts is no longer limited to ‘jurisdictional fact’.

There, by and large such distinction has been abandoned and there

is only one category of facts in USA viz. non-jurisdictional.203

202

203H. M. Trivedi v. V.B. Raju, AIR 1975 SC 2802. Schwartz., Administrative Law (1976) p. 634-38.

310

(ii) Review of other facts :

The idea of review of facts other than jurisdictional facts has

been least acceptable to the judges. They refuse to exercise judicial control where it involves reviewing sufficiency of evidence.204

Similarly, a right to quash for excess of jurisdiction does not extend

to circumstances where the decision is against the weight of the

evidence.205 While in the sphere of questions of law the courts have

shown very little hesitation to extend the doctrine of ultra-vires, they

have demonstrated a consistent opposition to do the same in the

realm of question of fact.

In reviewing facts the courts have refused to review decisions

in appreciation of documentary evidence and conflicting evidence

and have consistently refused to weigh the evidence ‘before the inferior jurisdiction.’206 Thus, where the Deputy Custodian-General

took into account all the reports, proposals and orders appearing on

the record and came to the conclusion that an order of cancellation

of allotment must have been passed on a certain date, though the

order did not appear on the record, the decision was upheld in Kaushalya Devi v. Bachittar singh207. Similarly, in state of Orissa v.

Murlidhar,208 where the High Court purported to re-appreciate the

evidence recorded by a competent tribunal for itself under Article

226 of the constitution, the decision of the High Court was reversed

by the Supreme Court. The Supreme Court held that reappreciation

of evidence is outside the jurisdiction of the High Court in writ proceedings. In Syed Yakoob v. Radhakrishnan,209 t?he facts were

204

205

206

207

208

209

R v. Galway justices (1906) 2 IR 446.Griffith and Streat, Principles of Administrative Law (1967) p. 23.Kaushalya v. Bachittar Singh, AIR 1960 SC 1168, State of Orissa v. Murlidhar, AIR 1963 SC 404; Sales Tax Officer v. Shiv Rattan, AIR 1966 SC 146.Supra.Supra.AIR 1964 SC 477.

311

as follows: In dealing with the rival claims of A and B for stage

carriage permits on certain routes, the Transport Authority and

Transport Appellate tribunal were mainly influenced by the fact that

A had a workshop at one terminus of the route in question, whereas

B had a workshop and place of business only at an intermediate

station of the route and did not possess a workshop at either of the

terminus of the route and hence issued the permit to A. B in moving

the High Court for a writ of certiorari urged that in coming to the

conclusion that he had no workshop at the terminus, the Appellate

Tribunal had failed to consider material evidence adduced by him A

writ was issued by High Court in favour of B. On Appeal, it was held

by the Supreme Court (majority view) that the question whether B

had a workshop at a terminus of the route was a pure question of

fact and the High Court had no jurisdiction to interfere with the

finding of the tribunal and correct it by certiorari.

It is a general rule that even court of appeal should not

appreciate evidence and interfere with findings of facts by trial

courts. The Supreme Court has discouraged such interference by

the High Courts. Unless the reason given by the trial court were

moonshine, flimsy or irrational, they could not be rejected.210 This

principle is also applicable to judicial review of administrative

actions.

The writ jurisdiction is supervisory in nature, thus a court

exercising the same is not act as an appellate authority, and it would

not ordinarily review findings of facts by tribunals,211 for if it were do

so, these authorities would become merely transmitting agencies of

evidence to the court and much of the advantage of administrative

210

211M. M. Amonkar v. S.A. Johir, AIR 1984 SC 931.Custodian of Evacuee Property v. Khan Chand, AIR 1961 SC 1087.

312

adjudication will be lost.212 In State of A.P. v. Rama Rao,213 it was

held by the Supreme Court that a High Court in a proceeding under

Article 226 of the constitution was not constituted a court of Appeal

over the decision of the authority holding a departmental enquiry

against a public servant, and in Sales tax Officer v. M/s Shiv

Ratan214 the Supreme held that if assessing authority acting under a

taxing statute wrongly determined facts, its findings could be

corrected by the Appellate authority. The High Court does not enter

into the question in the exercise of its writ jurisdiction. Error of facts,

thus, however, grave cannot be corrected by a writ of certiorari.215

The most important , limitation on judicial review of

administrative tribunals and quasi-judicial bodies is that the courts do

not interfere with an administrative body's determination of facts

except when its conclusion is not supported by any evidence at all.

Findings of facts reached by an inferior court or tribunal as a result of

the appreciation of evidence cannot be re-opened or questioned in

its writ proceedings. In State of A.P. v. Venkata Rao7216 the

Supreme Court has observed that the tribunal is the judge of the

facts and if there is some legal evidence to support the findings, ‘the

adequacy or reliability of which cannot be permitted to be canvassed

before the High Court in any writ petition. The Gauhati High Court in

M/s Pakaria Min Samabai Smiti v. State of Assam N& 35,217 has

observed that in the case of administrative action, there cannot be

reappraisal of facts while exercising power of judicial review. Thus,

See Jain M.P. & S.N., Principles of administrative Law (1997) p. 541.AIR 1963 SC 1723; See also State of Haryana, v. Rattan Singh, AIR 1977 SC 1512; Sudhoo v. M/S Hajilal Mohd. Biri Works, AIR 1990 SC 1971,AIR 1966 SC 142.Jagdish Prasad v. Angoori Devi AIR 1984 SC 1447; See also Brijender Nath Bhargava v. Harish Wadhwan, (1988)1 SCC 454.AIR 1975 SC 2151 at 2155.AIR 1997 Gau. 125.

)

normally, court will not interfere with findings of facts unless the

judgement is perverse.218 In a recent case Mohan Amba Prasad

Agnihotri v. Bhaskar Balwant Aher,219 the Supreme Court has held

that the court cannot interfere with a findings of fact recorded by a

tribunal unless there is no evidence to support the findings or the

finding is perversed.

(a) No evidence :Although the courts have generally refused to review facts

other than collateral facts, absence of evidence has always been

recognised as sufficient justification for interfering with the finding of

facts even when they are within the jurisdiction of the tribunal. But

as explained earlier, error of law was not recognised as a principle of

judicial control in early Indian law. As a result no evidence was held

to constitute jurisdictional defect. The earliest case in which this

principle was affirmed seems to be R. v. Bhimraj Marwarry220 where

a man was convicted under the Stat. 9 Geo.JVC. 74, Section 75 for

having some counterfeit coins in his possession without lawful

excuse. On a motion for certiorari the conviction was attacked one

of the grounds being that there was no evidence that the coins were

counterfeit. Though it was held on facts that the magistrate had

evidence before him to support the conviction. Wellis J. observed

(obiter) that had the magistrate acted without evidence he would

have been acting without jurisdiction. In Sankarayana v. Miran

Sahib,221 the Election Commissioner decided that the result of an

election was affected by the refraining of the first respondent from

standing as a candidate. It was held that as there was no evidence

Bhura Dula Mall v. Basantibai, AIR 1994 SC 1243; Dhondiram v. Ramchandra, (1994) 3 SCC 355.AIR 2000 SC 931.(1859)3 Indian Decisions 458.(1934) ILR 57 Mad. 582.

219

220

221

314

as to the intention on the part of the respondent to stand as a

candidate, the election commissioner had no jurisdiction to arrive at

that decision and it was liable to be quashed. In Vedachala v.

C.R.T. Board,222 an order of the Provincial Government was

quashed on certiorari as having been passed without jurisdiction,

one of the ground being that the order was not justified on facts

contained in the proceedings while in English law no evidence was

treated as an error of law apparent on the face of the record, in

Indian law it was held to go to jurisdiction.

This position continued to prevail even after the adoption of

republican constitution. Thus, in Ram Niranjan v. Addl District

Magistrate223 although section 3 of U.P. Land Utilization Act (V of

1948) required a notice to the landlord, an ex parte order of

allotment was made without a proper notice, as required under the

statute, having been served. It was held that the finding that the

landlord had been served with notice was based on evidence which

was not admissible in law. The ex parte order passed was held to

be without jurisdiction.

Basappa v. Nagappa224 in which the Supreme Court seems to

suggest that absence of evidence constitutes error of law apparent

on the face of the record. In subsequent cases, however, it was

definitely laid down that a finding based on no evidence suffers from

error of law apparent on the face of the record. The earliest decided

case in which no-evidence was held to be error of law is Gulam

Mohiuddin v. State of West Bengal,225 a case before the Calcutta

High Court where the petitioner was suspended for alleged

AIR 1948 Mad 454. AIR 1952 All 822. AIR 1954 SC 440. AIR 1964 Cal. 503.

315

misconduct. One of the charges was that he was ‘seen moving

about with women of ill fame and questionable character keeping

company with bad elements and thus leading a life unbecoming of a

Government servant.’ The evidence in support of his ‘leading a life

unbecoming of a Government servant’ was that 'he drinks’ and did

so in a hotel where 'drinks were supposed to be surreptitiously

served’. The evidence of his mixing with women of ’questionable

character’ was that he was found in a hotel with two girls who were

receptionists who also used to drink and sometimes accept offers of

drinks from customers’.

The order of suspension was quashed as being based on no

evidence. It was observed in this case that, in order to hold a

person guilty on circumstantial evidence, the circumstances or the

circumstance must be such as would irresistible lead to an

interference of guilt of the person charged with the offence. Thus

where a disciplinary action has been taken against a public servant

and the inference of guilt drawn by the tribunal from circumstances is

not an irresistible one, then there is an error of law which may be

rectified by a writ. In Rajendra Prasad v. State of Punjab,226 the

Punjab High Court held that, although the High Court cannot

interfere in a writ petition with an error of fact, it can correct a finding

of facts based on no evidence, as that would be an error of law. The

High Court set aside as being based on no evidence, the finding of

fact by the Revenue Authorities that the petitioner had been in self-

cultivation of certain field numbers on the date of the

commencement'of the relevant Act.

226 AIR 1966 Punj. 185.

316

In union of India v. H.C. Goei,227 where a public servant was

dismissed for having allegedly attempted to offer a bribe to the

deputy director so that the latter might support his representation

regarding his seniority to the Union Public Service Commission, the

Supreme Court upheld the decision of the High Court quashing the

order on the ground that it was not supported by any evidence at all.

The court did not say whether it was a case of error of law. In

Kaushalya Devi v. Bachittar Singh228 however, the Supreme Court

said (obiter) that a finding based on no evidence is an error of law

apparent on the face of the record. Again, in H.S. and I.E. Board of

U.P. v. Bagleshwar,229 the Supreme Court held (obiter) that an order

passed by a tribunal holding a quasi-judicial inquiry which is based

on no evidence is an order erroneous on the face and such order is

liable to be quashed by the High Court under Article 226 of the

constitution.

The Supreme Court has repeatedly stated that absence of

evidence is a ground for judicial intervention. However, we consider,

whether the ‘no evidence rule’ ought to be founded on the ultra vires

principle, error of law apparent on the face of the record (i.e. error

intra-vires) or on the principles of natural justice. The courts have

held that a finding is perverse when it is based on no evidence,230 or

is based on conjunctures231; or on a material point.232 In

Achutananda Baidya v. Prafulla Kumar,233 it was held that if

evidence on record in respect of a question of fact is not taken into

227 AIR 1964 SC 364.228 AIR 1960 SC 1168.229 AIR 1966 SC 875.230 Prem Chand v. State of Punjab, AIR 1971 P & H 50; Shardaben v. Pandya, AIR

1971 Guj. 151; Cromption v. Workmen, AIR 1959 SC 1089; Union of India v. H.C. Goel, AIR 1964 SC 364.

231 State of West Bengal v. Atul, (1991) Suppl. 1 SCC 414 para 11.232 R v. Birmingham compensation tribunal, 91952)2 All ER 100.233 AIR 1997 SC 2077.

317

consideration at all and without reference to such evidence, the

finding of facts by tribunal must be held to be perverse. This suggests that the rule is associated with the ultra vires principle.

However, the courts have usually used the words ‘perverse findings

of facts’ and error of law apparent on the face of the record’ (i.e.

error intra-vires) interchangeably.234

It may be submitted that the ‘no evidence rule’ ought to be

based on the ultra-vires principle (i.e. lack of jurisdiction) rather than

error of law apparent on the face of the record. The reason for this

is as follows; Article 32 which confers a fundamental right to move

the Supreme Court for the enforcement of the Fundamental Rights

guaranteed by part III of the constitution is an important jurisdiction

of judicial control. However, in Ujjaim Bai v. State of UP, the

Supreme Court ruled that errors of law or fact intra vires could not be

impugned under Article 32. Consequently errors of law.apparent on

the face of the record as a ground of review under Article 32 is ruled

out. If the ‘no evidence’ rule is founded on error of law apparent on

the face of the record this too would be unreviewable for review

under Article 32. This would be an unfortunate limitation on the

applicability of the rule of no evidence. The position would also be

anomalous in that while in review proceedings under Article 226 the

High Courts could apply the no evidence rule for the protection of

fundamental rights (as well as other rights) the Supreme Court could

not do so in review jurisdiction under Article 32 of the constitution.

(b) Wrong Grounds and Insufficient Grounds

The courts are prepared to review not only on grounds of no

evidence but also on those of wrong evidence. Thus, in Syed

Yakoob v. Radha Krishnan, a case already noted, the supreme

234 Sathe S.P. Administrative Law, (1984) p. 246.

318

Court observed (obiter) that the superior court will intervene where a

tribunal has acted on no evidence or has refused to admit

admissible evidence or has admitted inadmissible evidence. These

were held to be the cases of error of law apparent on the face of the

record. But the court declined review in the instant case on the

ground that insufficiency of evidence adduced to sustain the finding

does not constitute an error of law apparent on the face of the

record. This position has been maintained by the Supreme Court in

a number of cases.235 This is in contrast with the development in

English law that insufficiency of evidence to sustain a finding raises

an error of law which the reviewing court will correct, if it can find the

error.236

(c) Recent TrendsThe courts are seeking to override the deep-seated prejudice

against review of facts in a number of ways. Thus, although they

have said that they are not prepared in review to correct errors in

‘appreciation’ of documentary evidence and in drawing inferences,237

yet they do not hesitate to draw their own conclusions of facts from

the record and documents, as opposed to those of the relevant

authorities. Thus, in Carl still N.B.H. v. State of Bihar,238 the Sales

Tax authorities sought to tax the materials supplied in the execution

of a contract on the ground that such supply was a sale. The liability

to tax depended on pure works contract. The Patna High Court

dismissed the petition challenging the proceedings, holding that the

facts on which the issue depended had not been ascertained. But

the Supreme Court, by a majority opinion, allowed the appeal and

State of Madras v. G. Sundram, AIR 1965 SC 1103; State of Oris.sa v. Murlidhar, AIR 1963 SC 404; State of AP v. Rama Rao, AIR 1963 SC 1723./Armah v. Govt, of Ghana, (1966)3 All ER 177.Nagendra Nath Bora v. Commr. of Hills Divn. AIR 1958 SC 398.AIR 1961 SC 1615.

236

237

238

319

held that on a true construction of the agreement in question it was a

contract entire and indivisible for the construction of specified work

for a lump sum and not a contract of sale of materials as such.

Thus, the Supreme Court relied on documentary evidence, i.e. the

deed of agreement, for its conclusions.

The courts have also claimed their authority to interfere with

the finding of fact which is erroneous or contrary to the record and to

decide questions on materials placed before them. In P. T. Services

v. State Industrial Court239 where the Labour commissioner (while

dealing with the dismissal of an employee by the management)

concluded from the absence of signature of the Inquiry officer on the

paper that no inquiry had been held by the management, the

Supreme Court held that no reasonable judge of facts could come to

this conclusion. This was held to be a case of error of law apparent

on the face of the record. This shows that the courts have

imperceptibly begun to review questions of fact whenever they can

be so reviewed on the materials on the record available to them.

Secondly, the courts have asserted their right to examine the

factual basis of administrative action on the authority of the principle

of natural justice. Thus, on a writ petition240 challenging the order of

the Minister made under Section 68-D27 of the Motor Vehicle Act,

1939, the High Court, on the affidavit evidence, came to the

conclusion that the Minister was incompetent to deal with the matter

on the grounds of his personal bias and therefore the order should

be set aside, on appeal the supreme Court upheld the decision of

the High Court. The judgement of the Supreme Court throws some

239

240AIR 1963 SC 114.A.P.S. R.T. Corpn. v. Satyanarayana Transport, AIR 1965 SC 1303.

320

light on the extent of the reviewing courts power to appreciate

affidavit evidence.Finally, in cases involving the complaints of breach of

Fundamental Rights,241 and various heads of general ultra vires (e.g.

malafide), the courts have asserted their authority to resort to cross

examination of the parties and their witnesses to ascertain the

factual basis of the complaints in review. Thus, they have said that,

where it is not possible for the court to arrive at a definite conclusion

because of the existence of allegations and counter allegations

contained in affidavits filed by the parties, it would be not only

desirable but in the interest of justice for it to be the duty of the court

to summon a party for cross-examination in order to arrive at the

truth.

Thus, the courts have contrary to the general policy of

unreviewability of questions of fact, undertaken to inquire into the

probative value of evidence in review.

Thus, from the foregoing analysis it is obvious that the scope

of judicial review is much broader in question of law than in question

of fact. The courts intervene with findings of fact only in exceptional

circumstances. The distinction between questions of law and fact is,

therefore crucial as the scope of judicial review depends on this.

How to distinguish between the two? Take the question whether or

not there is an Industrial Dispute under the Industrial Dispute act,

1947. It has been held that an industrial dispute is notjan individual

dispute but one which is supported by a substantial number of the

workmen. How many workers are supporting the dispute is a

question of fact but whether this number is sufficient to bring the

dispute within the meaning of an industrial dispute is a question of

241 K.K. Kochuni v. State of Madras, AIR 1959 SC 725.

321

law. A dispute may involve only a question of law, or only a question

of fact, or may involve both when it is characterised as a mixed

question of fact and law. Davis points out that when the dispute is

about what happened or the conditions or circumstances or motives,

it would be a question of fact: when the dispute has to do with the>

meaning to be assigned to a legal concept or a refinement of that

meaning in the light of the particular facts it would be a question of

law.242 Jaffe also speaks in the same vein when he says; “A finding

of fact is the assertion that a phenomenon has happened or is or will

be happening independent of or anterior to any assertion as to its

legal effect. It can, for example, be made by a person who is

ignorant of the applicable law.”243

In Meenakshi Mills Ltd. v. C.l.T.,244 the appellant had made

sales and purchases through various companies to avoid Income

Tax. It was held by the income tax tribunal that intermediaries were

appellant’s dummies and benamidars and that the sales standing in

their names were fictitious and sham. It was argued before the court

that inferences drawn from the facts established were question of

law. Here, the question was whether an inference drawn from facts

was a question of law or fact? It was held by the court that the

conclusion that the intermediaries were benamidars was a matter of

inference various primary basic facts, such as, who paid the

consideration, who was in enjoyment of properties and the like and

no application of any legal principle was involved to determine the

question of benami transactions. An inference from facts would be a

question of fact or of law according as the point for determination is

IV Administrative Law Treaties (1958) p. 190 Quoted by Jain MR & SN., Principle of Administrative Law (1997) p. 544.Judicial Review : Question of Law 69 Hav. L.R. 239-241(1955-6). Quoted by Jain & Jain, Ibid.AIR 1957 SC 49,244

322

one of pure fact or mixed question of law and fact. The conclusions

of the court in Meenakshi Mills case were :

1. When the point for determination is a pure question of law, such

as construction of a statute or of title, it will be a question of law.

2. When the point for determination is a mixed question of law and

fact, the findings on facts found will be a question of fact, the

legal effect of the findings will be a question of law.

3. When the finding is one of fact, the fact that it is itself an

inference from other basic facts will not alter its character as one

of fact.

It is not always that inferences from facts are to be considered

question of fact. When it is to be determined whether certain facts

come within the statutory standard, it will be a mixed question of fact

and law and inferences drawn from those facts will be a question of

law. In K.C. Thapar v. C.l.T.245 the question was whether

compensation received by the assessee for termination of one of its

managing agencies was income or capital receipt. Within the

meaning of the Income Tax Act, 1922. It was held that the question

whether a receipt was capital or income was a mixed question of law

and fact and the conclusion about the ultimate nature of the receipt

drawn from the facts was a question of law.

(d) ‘Substantial Evidence’ Rule

As regards the scope of judicial review of facts it will appear

that “no evidence” rule is very restrictive and leaves little

manocurability to the courts in the matter. The rule has been

adopted in India from England. The United States, on the other

hand follows the more broad-based rule of “substantial evidence”.

245 AIR 1971 SC 1590.

The U.S. Supreme Court in consolidated Edison Co. v. NLRB,246 has

explained that “substantial evidence is more than scintilla. It means

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion”. Schwartz States." Substantial

evidence is such evidence as might lead a reasonable man to make

a finding. The evidence in support of a fact finding is substantial

when from it an inference of the existence of the fact may be drawn

reasonably. In such a case, the reviewing court must uphold the

finding, even if it would have drawn a contrary inference from the

evidence”.247 The substantial evidence is thus a test of the

reasonableness, not of the rightness, of administrative findings of

facts.

The courts continue to maintain that correction of wrong

findings of fact is a matter for the appellate authorities and not for

the review court. However, in view of the fact that no evidence rule

is now firmly established for judicial control of administrative action,

the question as to whether the courts ought to adopt the American

doctrine of “substantial evidence” deserves consideration. This

would permit the review courts to weigh up the evidence irrespective

of whether facts are jurisdictional. It can be argued that the

adoption of the substantial evidence rule would be the logical step

from the “no evidence” principle. Secondly where important rights of

the individuals are at stake the distinction between review and

appeal could be dispensed with. Against this approach it might be

argued that the substantial evidence rule is used in United States in

the context of highly formalised administrative procedures and this

may not be suitable in far less formal systems used by most

246

247(1938) 305 U.S. 197, at 229. Administrative Law (1976) p. 595.

324"\r

administrative bodies and tribunal in India. Furthermore, it might not

be desirable to turn a summary procedure of judicial review into

ordinary trial process with the result that the advantage of such a

summary procedure would be lost. Substantial evidence rule also

presupposes a legal requirement to maintains a record of

proceedings by the tribunals and administrative authorities.

Notwithstanding these arguments there is a case for the

introduction of the substantial evidence principle selectively in the

sphere of important individual rights. As far as the Indian

Constitution is concerned two such areas have been marked out.i

These are the spheres of personal liberty and the freedoms

guaranteed by Article 19 of the constitution. Lastly, there is nothing

which stands in the way of the Indian courts opting for the American

rule. If substantial evidence” rule is substituted for the “no evidence”

rule, it would enable the courts to have more effective supervision on

administrative bodies than what they exercise to day and this would

be more in accord with the enlightened democratic thinking of the

present era.

4. Procedural Impropriety. '

An administrative action or decision may be challenged on the

ground of procedural irregularity or unfairness. In such cases a

public authority is alleged to have breached a statutory duty to

observe particular requirements of form or procedure - e.g. that it

should proceed within a certain time; with notice to particular

persons, giving particular persons the opportunity to state their

cases; and giving reasons for its decision etc. we begin (section A)

with cases of failure to observe procedural requirements expressly

prescribed by statute. In section B, under the heading “Natural

justice-the duty to Act fairly”, we then consider circumstances in

which the courts will infer that legislature intends a statutory authority

to observe certain minimum standards of procedural fairness even

though the statute makes no express provision on the matter.

At the outset we should ask why it may be important for a

public authority to observe procedural requirements. Essentially,

these requirements are geared to enabling persons to participate at

a satisfactory level in the making of official decisions and the taking

of official action which concerns them. One criterion of what will

count as a “satisfactory” level of participation will be whether or not

the procedure adopted will give persons concerned sufficient insight

into the decision - making process to enable them to detect any

substantive irregularities of the kind dealt with in the preceding

pages. Reviewable errors of law, whether misstatements or

misapplications of legal rules or failures to exercise discretion on

proper bases, are unlikely to be able to detected unless the

procedure adopted by an authority causes some light to be shed on

its decision-making process, considering as we are the possibility of

challenges to the legality of official action, the fulfillment of such

procedural requirements as the giving of notice, a fair hearing and

reasons for decisions may seen as prerequisites to the detection of

any substantive illegality.

A. Express Statutory Procedural Requirements. 1

Statute or rules and regulations made under statutory authority,

frequently make detailed provision for procedures to be followed by

a public authority in the course of discharging its duties or exercising

its powers. If an authority fails to observe an express procedural

requirement, what steps may be taken by a person affected to rectify

the situations?

326

(j) Mandatory and directory requirements.In responding to challenges to the legality of official action based on

failure to observe express procedural requirements, the courts have

long tended to classify the requirements themselves as either

‘mandatory’ or ‘directory; To say that a requirement is mandatory

means that failure to observe it makes the authority’s act or decision

invalid, and the court will grant an appropriate remedy. If on the

other hand, a requirement, is classified as ‘directory’, failure to

observe it will not render the act or decision invalid, although there

may be means of securing compliance or sanctions for failure to

comply. The classification of procedural requirements as mandatory

or directory is used in the context of all the various modes and

jurisdictions by which judicial review may be obtained, i. e.

supervisory review, whether the challenge is direct of collateral, and

appellate review. So according to the circumstances, breach of a

mandatory requirement may take an authority ultra-vires, or be a

ground of success in civil or criminal proceedings or constitute a

defence to; or count, as an appealable error of law. in short, the

mandatory/ directory distinction is a general device by which the

courts in the exercise of their review jurisdiction acknowledge that

the importance and effect of breaches of procedural requirements

will vary greatly according to the nature of requirements and the

context in which they appear,

How, do the courts make the distinction in particular cases? A

statute may, of cburse, state expressly or imply clearly what is to be

the consequence of a failure to comply with a particular procedural

requirement. It may be apparent from statutory wording that to give

327

public notice or proposals to restructure an area’s schools248 to

register publicly a planning application249 is a condition precedent to

the action concerned. But the truth is that in the vast majority of

cases where legislature imposes procedural requirements, it does

so, without considering or providing for the consequences of

breach.250 In the absence of statutory guidance in this matter the

courts have taken a somewhat impressionistic approach,

considering on a case to case basis “the importance of the provision

that has been disregarded, and the relation of that provision to the

general object intended to be secured by the Act.”u251. the result is

“an inextricable tangle of loose ends.”252

Thus, to what extent an administrative action in violation of a

prescribed norm of procedure will be invalid is a complex question.

No universal rule can be laid down in this regard. The supreme court

has been stressing time and again that the question whether a

procedure is mandatory of directory is not capable of generalization

and that in each case the court should try and get at the real

intention of the legislature by analysing the entire provision of the

enactment and the scheme underlying it.253 In Ramchandra v.

Govind Jyoti.254 The supreme court held that no universal rule can

be framed to decide if a statutory provision is mandatory or directory,

the courts must interpret it according to the question as to whether a

Brandbury v. Enfield L.B.C.(1967)1 WLR 1311(Statute required public notice before proposals submitted to minister and provided that “authority shall not do anything" until proposals approved by him.Steeples v. Derbyshire C.C.(1984)3 All ER 468(authority empowered to act only after expiry of prescribed period following registration).De smith, judicial review of Administrative Action (1980) p.142Howord v. Bodington (1877) 2p.d. 203 per Lord Panzance at p.211de Smith judicial review of administrative action (1980) p.142H.N.Rishad v. state of Delhi, AIR 1955 SC 196; T.V. Usman v.FoodInspector^ 994)1 SCC750,(1975)1 SCC559.

328

particular rule is mandatory or directory no test or invariable

formulae to determine this question can be laid down. For this

purpose, the object of the particular provision is required to be

considered.255 Some illustrations may be taken here.

Article 320(3) of the constitution lays down that while taking

disciplinary action against a civil servant in a state, the state public

service commission, "shall be consulted". Interpreting the provisions, the supreme court in state of U.P.v. Madbodhanlal256 held that it is

only directory and not mandatory and non-compliance with it would

not vitiate the action of the government. But in Guruswamy v. state

of Mysore257 the procedure was held to be mandatory where the

rules made by the government provided for grant of liquor licences

through auction but the excise commissioner accepted an offer

privately. A statute required that an application for stage carriage

permit shall be made not less than six weeks before the date on

which it was desired that the permit shall take effect. It was held in

Shirnivassa Reddy v. State of Mysore258 that it would be wrong to

grant a permit on an application made during a period shorter than

the prescribed period.

In Virendra Kumar v. Union of India,259 an order of termination

of service from the Army on ground of health was set aside because

of failure to observe procedural rules. The court emphasized, “In

service jurisprudence, procedural safeguards are of prime

significance." In Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corpn.260, the Supreme Court held that when someone’s

Machhua Matsya Vikas Sahkari Simiti Ltd. v. State AIR'1986 All 300. AIR 1957 SC 912.AIR 1954 SC 592.AIR 1960 SC 350.AIR 1981 SC 947.AIR 1991 SC 2130.

329

property is being taken over in course of implementation of a town

planning scheme a notice to that person has to be mandatorily given

to ensure that Article 14 & 21 of the constitution are not violated. In

C. B. Gautam v. Union of India,261 while construing section 269 UD

of Income Tax Act, 1961, the Supreme Court ruled that wherever

there is a statutory requirement of a copy of some order to be

passed with reasons to be recorded in writing be served on the

party, the copy served must contained reasons as the same is a

mandatory requirement.In Harpal Singh Chauhan v. State of U.P.,262 the Supreme

Court held that the requirement under section 24 of the Code of

Criminal Procedure, 1973 of the State Government's consultation

with the District Judge while preparing a panel of advocates for the

appointment of public prosecutor for the district is obligatory in

nature.

The Supreme Court had the opportunity of examining this

question in Bank of Patiala v. S.K. Sharma.263 In this case an order

was passed imposing punishment on an employee after an enquiry

in violation of a procedural norm laid down in Rule 68(b) (iii) Bank

Officers' Service Regulation which provided that the copies of the

Statement of witnesses must be provided to the employee at least

three days before the enquiry. In this case though the employee

had been given an opportunity to examine the file and take notes but

copies of the statements of witnesses had not been provided as

such. Upholding the validity of administrative action the Apex Court

discussed in detail the legal consequences of the violation of a

procedural norm. The court held :

261

262

263

(1993)1 SCC 378. AIR 1993 SC 2436. (1996)3 SCC 364.

330

1. An order passed imposing punishment on an employee

consequent upon a disciplinary/departmental enquiry in violation

of the rules/regulation/statutory provisions governing such

enquiries should not be set aside automatically. The

court/tribunal should enquire whether (a) the provision violated is

of substantive nature, or (b) whether it is procedural in character.

2. In case of violation of a procedural provision the position is that

procedural provisions are generally meant for affording a

reasonable and adequate opportunity to the delinquent

employee. They are generally conceived in his interest.

Violation of any and every procedural provision cannot be said to

automatically vitiate an enquiry held or order passed. Except in

cases falling under no notice, ‘no opportunity and no hearing’

categories, the complaint of violation of procedural provision

should be examined from the point of view of prejudice, viz,

whether such violation has prejudiced the delinquent employee

in defending himself properly and effectively. If it is found that he

has been so prejudice appropriate orders have to be made to

repair and remedy the prejudice including setting aside the

enquiry and/or the order of punishment. If no prejudice is

established to have resulted therefrom, it is obvious, no

interference is called for. In this connection, it may be

remembered that there may be certain procedural provisions

which are of a fundamental character, whose violation is by itself

a proof of prejudice. The Court cannot insist an proof of

prejudice in such cases. For example where there is an express

provision providing that after the evidence ' of the

employer/government is over, the employee shall be given an

opportunity to produce evidences in his defence, and if in a given

case the delinquent employee has not been afforded that

opportunity even when requested, the prejudice is self-evident.

No proof of prejudice is required in such a case.

3. The whole question can also be looked from the point of view

whether the procedural provision is directory or mandatory. In

the case of a procedural provision which is directory and not

mandatory in character, the complaint of violation lias to be

examined from the stand point of substantial compliance. An

order passed in violation of such a provision can be set aside

only where such violation has occasioned prejudice to the

delinquent employee.

In case the violation of a procedural provision is of a

mandatory character, it has to be ascertained whether the provision

is conceived in the interest of the person proceeded against or in the

public interest. If it is in the interest of the person, then it must be

seen whether the delinquent employee has waived the said

requirement, either expressly or by his conduct. If he is found to

have waived it, then the order of punishment cannot be set aside on

violation of that provisions. If, on the other hand, it' is found that

delinquent employee has not waived it or the provision could not be

waived by him because it is conceived in the public interest, the

court shall make appropriate directions, including the setting aside of

the order of punishment.

4. where the inquiry is not governed by any specific rules or

regulations and the authority is simply to follow the principles of

natural justice, then a distinction must be made between’ no

opportunity’, order would undoubtedly be invalid and authority

may be asked to take proceeding afresh according to law. In

case of ‘no adequate opportunity’ effect of violation must be

JJZ

examined from the stand point of prejudice caused to the

delinquent employee. If pre-judice has been caused court may

pas necessary orders including the quashing of he order of

punishment. '■

5. There may be situations where the interest of the state or public

interest may call for the curtailing of the rules of fair hearing. In

such situation, the court will have to balance public/state interest

with the requirement of fair hearing and arrive at an appropriate

decision.

6. The test of prejudice and substantial compliance shall not apply

in case of violation of a substantive provision of law. For

example, provisions regarding the constitution of the enquiry

committee must be strictly complied with and violation of such a

provision would render the administrative order in valid.

7. The principles shall not apply in cases where bias is alleged.

Nevertheless “some classes of procedural requirements are

so important that they will nearly always be held to be mandatory.”264

Thus, where statute imposes on a public authority a duty to inform265

or consult266 or give a hearing to267 persons likely to be affected by

proposed action, the requirement will usually be treated as

mandatory. This approach is reinforced where the effect of the

action on the individual concerned may be in the naturd of a penal

sanction268 or loss of property or privilege.269 In these contexts, too,

statutory time limits are likely to be held mandatory. In Howard v.

de Smith, Judicial Review of Administrative Action (1980) p. 144.Brandbury v. Enfield L.B.C., (1967)1 WLR 1311. ))Agricultural etc. Training Board v. Aylesbury Mushrooms Ltd (1972)1 W.LR. 190. Ridge v. Baldwin (1964) AC 40, and see per Lord Diplock in O'Reilly v. Mackman (1983) 2 A.C. 237 at 276.Howard v. Bodington (1877)2 P.D. 203 at 213-214.See cases of note 267 supra. ,

jjj

Bodington,270 for example, where a clergyman was informed only

after eight weeks instead of the statutory maximum of 21 days, of a

complaint laid against him by his parishioners, the proceedings were held void. Similarly, in Edwick v. Sunbury-on-Thames U.D.C.271 a

refusal of planning permission was held void (and an enforcement

notice thus ineffective) where it was communicated to the applicant

more than two years outside the two months limit for response to an

application.

On the other hand, where the consequence of invalidating

acts done in neglect of a statutory requirement would be to “work

serious inconvenience, or injustice to persons who have no control

over those entrusted with the duty, and at the same time would not

promote the main object of the Legislature, it has been the practice

to hold such provisions to be directory only...”272 So where “the

extreme result (of holding action invalid) is not required for the

effective achievement of the purposes of the statute.”273 a procedural

requirement may be treated as directory only. So, where failure to

give reasons for a decision as required274 or failure to give details, as

required, of points of appeal275 can be remedied by other means,

that failure will not be fatal to the validity of the proceedings.

(ii) Substantial Compliance/no substantial prejudice.

There are increasing indications of the courts’ willingness in

appropriate cases to refrain from a rigid classification of a particular

procedural requirement as in itself mandatory or directory and,

instead, to consider the nature and consequences of breach in a

(1877)2 P.D. 203.(1962)1 Q.B. 229.Normandin (1917) A.C. 170 at 175.Per Winn J. in Brayhead Ltd. v. Berks C.C. (1964)2 Q.B. 303. As in Brayhead case, Ibid.As in Howard v. Environment Secretary (1975) QB 235.

334

particular case in Coney v. Choyce,276 for example, a trivial and

partial failure to comply with the public notice requirements regarding

school restructuring (held mandatory in the case Brandbury v.

Enfield L.B.C.)277 was held not to invalidate the action taken. And in James v. Minister of Housing and Local Government278 the court

ruled that a shorter delay did not’ invalidate a planning permission granted out of time (distinguished Edwick).279 In both these cases,

the court reclassified the requirement in question as 'directory”.

Surely though, the better approach would be to recognise a third

category of procedural requirement where failure to comply is

capable of nullifying on act or decision but will not necessarily do

so280 whether it does or not would depend on such considerations as

the extent of the failure and of the prejudice, if any sulfured by the

parties concerned.

This approach may be particularly helpful in time limit case. It

may perhaps be applied also in the context of a statutory duty to

give reasons for decisions. Normally, no doubt, breach of such a

duty would cause substantial prejudice and it would be proper for a

review court to characterize the failure as an error of lav/, or failure to

comply with the requirements of an Act. It would be otherwise where

no substantial prejudice had been suffered (e.g. because the

reasons for a decision were already known to the individual

concerned). On the question of how detailed the reasons need to be

the courts in effect already take a "substantial compliance”

approach. The reasons must be reasons which deal with the

276 (1975)1 W.L.R. 422.277 Supra note 265.278 (1966): WLR 135.279 Supra note 271.280 Lord Denning in effect took this approach in James; he accepted that in an

extreme case such as Edwick the breach of time limit could lead to invalidity; (1966)1 WLR 135 at 142.

VtfJ J J

substantial points281 that have been raised. And although they can be brief,282 mere recitation of the statutory words is not enough.283

The important matter is that it must be apparent from what (the

authority) states by way of reasons first of all that they have

considered all the points which are at issue and they should indicate

the evidence on which they have come to their conclusion ; i.e. there

must be a link between the material on which certain conclusions are

based and the actual conclusions284.

B. Natural Justice : The Duty to Act Fairly.(1) Nature and source of the duty.

Suppose that a statute empowers a public authority to act in a

fashion which impinges on some aspect of what a person might

regard as his legitimate interest or expectations. In this vague

phrase ‘interests' would no doubt include not only individual liberty

and property rights protected by private law but also, for example,

official licences or permissions of various sorts and, perhaps, the

preservation of civic and rural amenity in its many aspects. One

may have some, albeit imprecise, notion that one should at any rate

be given a fair hearing before these interests are adversely affected

by the exercise of official power. Similarly, one may regard oneself

as having a ‘legitimate expectation’ to, albeit imprecisely defined,

“fair treatment” in the official processing of one’s claims, complaints

and applications for official licences and permissions.

As we observed in the previous section, there is often express

statutory provision relating to procedures to be followed by a public

authority in the exercise of its powers and discharge of its duties.

Union of India v. M.L. Capoor, AIR 1974 SC 87.M.J. Sivani v. State of Karnataka (1995)6 SCC 289.Imperial Chemical Industries v. Registrar of Trademarks, AIR 1981 Del. 190. Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622; See also Union of India v. ML Cooper, AIR 1974 SC 87.

283

284

336

The remainder of this concept is concerned with the position where

there is no express provision for interested parties to be heard

before action affecting them is taken. We shall see that there is a

wide variety of circumstances in which, in the absence of such

express provision, the courts infer that the legislature must have

intended that certain elements of fair procedure should be observed.

These elements of fair procedure have long been referred to as

rules, or principles, of “natural justice”. However, for reasons which

will appear, that phrase is now becoming unfashionable: the current

tendency is to speak instead of a duty to act fairly.

Breach of the rules of natural justice when they apply, i.e.

failure to act fairly when required to do so, is treated by the courts ini.

broadly the same way as breach of an express ‘ mandatory

procedural requirement (which we saw, renders an act or decision

invalid). It may, then, be helpful to think of the demands imposed by

the implied duty to act fairly as "implied mandatory requirements.’’265

Further, because of the wide variety of circumstances in which the

duty to act fairly has been held to exist, the precise details of the

duty will vary greatly from one kind of situation to another. In India,

natural justice has entered into the constitutional area because of

recent holding that Article 14 of the constitution bans all arbitrary

action; and to deprive a person of his life and property without giving

him an opportunity to defend himself is patently an arbitrary

action286. We shall consider the aspects of the notion of fairness

under the broad headings of “the right to a hearing” and “the rule

against bias”.

205

286WADE H.W.R. Administrative Law (5m Ed., 1982) p. 415.D.T.C. v. Mazdoor Congress, (1991) Supp. 1 SCC 600(Paras 202-229).

U /

(2) When is there a duty to act fairly?To what kinds of decisions or, in what situations are the rules

of natural justice applicable? There was a time when in England

they, were said to be applicable only when the act in question was

classified as judicial rather than executive or administrative. This

meant that in deciding whether natural justice had to be observed in

any particular case and what it required, one asked, first was the act

in question judicial in nature. If the answer was no, natural justice

did not have to be observed. If yes, next question was what did

natural justice require in this particular case. This approach is

illustrated by the following cases.

In Nakkuda Ali v. Jayaratne287, the Controller of Textiles in

Ceyion had power to cancel the licence of a dealer in textiles where

he had ‘reasonable grounds to believe’ that the dealer was unfit to

continue in business. The Privy Council held that the controller, in

withdrawing, the dealer’s licence, was not acting judicially, in that he

was not ‘determining a question’, but was taking executive action so

that he was not bound to give the dealer a hearing. In R. v.

Metropolitan Police Commr. exp. Parker,288 a cab driver’s licence

was revoked by the Commissioner. The court held that the

commissioner’s function was administrative and that neither he nor a

committee set up to advise him was bound to hear any evidence

from the cab driver.

In Ridge v. Baldwin,289 one of the seminal cases in modern

administrative law, Ridge the Chief countable was tried for

conspiring to corrupt the course of justice but acquitted.

287

288

289

(1951) AC 68.(1953)2 All ER 717; Also see Exp. Fry. (1954)2 All ER 118. (1964) AC 40.

V'

338

Nevertheless, the trial judge severely criticised his conduct, his

position was clearly untenable. The Watch Committee then

dismissed him using a statutory power which empowered them to

dismiss any constable whom they think negligent in the discharge of

his duty.’ Ridge was not present at their meeting nor was he. given

notice of the proposal to dismiss him, particulars of grounds on which it was based, or an opportunity of putting his cas^e. The court

of Appeal, relying on Nakula Ali (above) (and upholding the High

Court) held that the committee was acting only in administrative

capacity. But the House of Lords disagreed and held the dismissal

void on the basis that the officer had not been given the fair hearing

to which, under the rules of natural justice, he was entitled.

In the period before Ridge v. Baldwin some courts

emphasizing the judicial overtones of the phrase “natural justice"

had held that the rules applied only where a public authority could be

said to be “acting judicially” Ridge v Baldwin eradicated this “judicial

fallacy".290 Then came another change in judicial attitude. In Infant

K(H), the court of Appeal propounded the proposition that whether

the function being discharged by the administration may be regarded

as “quasi-judicial” or “administrative” it must nevertheless be

discharged with fairness. Since, then the horizons of the right of

hearing, whether as a part of natural justice or of fairness have been

expanding. The courts have adopted a liberal approach in this

connection and have imposed the requirement of hearing on a wide

range of decision-making process.291

The emphasis, then, is upon the substance and effect of

statutory power. This emphasis shows how the answer to the

290

291Wade HWR., Administrative Law (5th edn. 1982) p. 463. (1967)1 All ER 226.

339

question “when do the rules of natural justice apply?" is linked.to the

bases upon which we have discussed in previous pages, the courts

will review decisions on issues of law, fact and degree and on

1 matters of policy. Judicial review is widely available to correct errors

of law in both these contexts. The substantive limits of statutory

powers thus drawn are reflected in and buttressed by the procedural

protection afforded by the rules of natural justice.

The development in India have been similar to those in

England. The courts in India have realised the need to give a

hearing to the effected person to the utmost limit. As the Supreme

Court has observed in Mohinder Singh Gill v. Chief Election

Commissioner.292

To-day our jurisprudence, the advances made by natural justice for exceed old frontiers and if judicial creativity be lights penumbral areas it is only for improving the quality of government by injecting fair play into its wheels... Law lives not in a world of abstractions but in a cosmos., of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity.

The Court spoke in the same vein in Swadeshi Cotton Mills v. Union of India.293

...This rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum^ extent possible, with situational modifications.

The extension of the principle of natural justice i.e. right of hearing to

the person affected by administrative process has been

292

293AIR 1978 SC 851.AIR 1981 SC 818 at 832.

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consummated by extension of the scope of quasi-judicial and natural

justice as well as by discarding the distinction between “quasi-

judicial” and "administrative" and invoking the concept of fairness in

administrative action. Hearing has thus become norm, rather than

an exception, in administrative process at the present day. It was in

1970, in Kraipak294 that the Supreme Court made a categorical

statement that the distinction between quasi-judicial and

administrative ought to be discarded for the purposes of giving a

hearing to the affected party. Hegde J. said there :

The dividing line between an administrative, and a quasi-judicial power is quite thin and is being gradually obliterated... The concept of rule of law would lose its validity if the instrumentalities of the state are not enlarged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily and capriciously... In recent years the concept of judicial power has been undergoing a radical change. What was considered as anadministrative power some years back is now being considered as quasi-judicial power.295

At another place, the Supreme Court observed “The horizon of

natural justice is constantly expanding". There are two strands of

thought in these statements; (i) Duty to act fairly lies on any

administrative authority whether administrative or quasi-judicial; (ii)

the concept of quasi-judicial has been expanding in modern times.

These trends have been strengthened through many later

pronouncements., For example in Maneka Gandhi v. Union of

India,296 Bhagwati J., has emphasized that natural justice is a great.

294

295

296

A.K. Kraipak v. Union of India, AIR 1970 SC 150. Id. at 154.AIR 1978 SC 597.

341

“humanising principle” intended to invest law with fairness and to

secure justice and over the years, it has grown into widely pervasive

rule affecting large areas of administrative action. The soul of

natural justice is “fair play in action” and that is why, it Has received

the widest recognition throughout the democratic world. This being

the test of applicability of the doctrine of natural justice, There can

be no distinction between a quasi-judicial and an administrative

function for this purpose. The aim of both administrative enquiry and

quasi-judicial enquiry is to arrive at a just decision, and “if a rule of

natural justice is calculated to secure justice, or to put it negatively,

to prevent miscarriage of justice, it is difficult to see why it should be

applicable to quasi-judicial enquiry and not to administrative enquiry.

It must logically apply to both."297

In India, it is settled that any public authority must act fairly,

justly, reasonably and impartially, even in the absence of any

statutory requirement to that effect. In Neelima Misra v. Harinder

Kaur,298 the question before Supreme Court was whether before

exercising the power under section 31 (8)(9) of U.P. State

Universities act, 1973, the Chancellor was required to observe the

principle of natural justice. Holding the power of appointment as

administrative in nature, the court held that the chancellor was not

required to act judicially though he was required to act fairly,-for the

purpose of which the power is conferred by complying with the

mandate of Article 14 and 16 of the constitution.299 *f"

Thus, when, it is said that natural justice is applicable also to

purely administrative proceedings (which involve ‘civil

consequences) what is meant is not that the authority must act

297

298

299

Id. at 626.AIR 1990 SC 1402. Id at 1410.

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‘quasi-judicially’ but that in every case, it must act ‘fairly’ that is its

action must be free from even any appearance of unfairness,

unreasonableness and arbitrariness. In Hindustan Petroleum

Corporation v. H.L. Trehan300 the Supreme Court made it absolutely

explicit that even when the authority has statutory power to take

action without hearing it would be arbitrary to take action without

hearing and thus violative of Article 14 of the constitution. -In the same manner in D.K. Yadav v. J.M.A. Industries Ltd.301 the Supreme

Court further held that even where statutory standing orders

empowered the management to terminate the services of an

employee who overstayed the leave period without hearing, the

termination of services would be violative of Article 21 of the

constitution as such a procedure established by law which deprives

a person of his livelihood cannot be said to be just, fair and

reasonable under Article 21 of the constitution.

Natural justice is a pervasive facet of secular law where a

spiritual touch enlivens legislation administration and adjudication to

make fairness a creed of life. It has many colours and shades many

forms and shapes and save where valid law excludes it, applies

when people are adversely affected by acts of the administrative

authority. It is the bone of a healthy government, recognised from

the earliest times and not a mystic testament of judge made law.

Indeed, from the legendary days of Adam and Kautilya’s Arthshstra,

the rule of law has had this stamp of natural justice which make it

social justice. However, natural justice contents yield to change with

exigencies of different situations which are not alike.1 They are

neither cast in a rigid mould nor can they be put in a legal straight

300

301(1989)1 SCC 764. (1993)3 SCC 259.

>

343

Jacket. They are not immutable and can be adapted, modified and

excluded by statute, rules or constitution; except where such

exclusion is not charged with the vice of unreasonableness and

consequential voidness.302

Fairness, good faith and want of bias are necessary in

administrative action. There shall be no arbitrariness or

capriciousness. Procedural fairness is an implied mandatory

requirement to protect arbitrary action.303 If procedure offends the

fundamental fairness or established ethos or traditions or shocks the

conscience it becomes unconstitutional.304

Though the Indian constitution does not use the expression

natural justice, the concept of natural justice divested of all its

metaphysical and theological trappings pervades the whole scheme

of constitution. The concept of social and economic justice, in the

preamble of the constitution, conceptually speaking, is the concept

of fairness in social and economic activities of society which is the

basis of the principles of natural justice. Article 311 contains all the

principles of natural justice without using the expression as> such.

Duty to act fairly is part of fair procedure envisaged under Article 14

and 21 of the constitution. Every activity of a public authority or

those under public or obligation must be informed by reason and

guided by public interest.305

Now the principles of natural justice are firmly grounded in art.

14 and 21 of the constitution. With the introduction of the concept of

substantive and procedural due process in Article 21 of the

Satyavir Singh v. Union of India, AIR 1986 SC 555; See also Ravi S. Naik v. Union of India (199^) supp. (2) SCC 641; Jannat-e-lslamic Hind v. Union of India, (1995)1 SCC 428; Shiv Sagar Tiwari v. Union of India, (1997)1 SCC 444.Rashlal Yadav v. State, (1994)5 SCC 267-277.Tata Cellular v. Union of India, (1994)6 SCC 651,700.L.I.C. v. Consumer Education and Research Centre (1995)5 SCC 482, 500.

344

i/i

constitution all that fairness which is included in natural’justice can

be read into Article 21 when a person is deprived of his life and

personal liberty. In other areas, it is Article 14 which now

incorporates the principle of natural justice. Article 14 now applies

not only to discriminatory class legislation but also to arbitrary or

discriminatory state action. Because violation of natural justice

results in arbitrariness, therefore, violation of natural justice is

violation of the equality Clause of article 14. This all suggests that

now, the principles of natural justice are grounded in the

constitution.306

Therefore, the principle of natural justice cannot be wholly

disregarded by law because this would violate the fundamental

rights guaranteed by Articles 14 and 21 of the constitution. It was for

this reason that the Supreme Court barely saved Section 314 of the

Bombay Municipal Corporation Act, 1888 which empowered the

commissioner to get illegal constructions and structures removed or

demolished without notice by holding that Section 314 does not

contain command, it only gives discretion to the commissioner which

must be reasonably exercised.307 In State of U.P. v. Vijay Kumar

Tripathi,308 the Supreme Court further held that principles of natural

justice must be read into the provision of a law. Such ia course is

necessary where the rule excludes, either expressly or by necessary

implication, the application of principles of natural justice. In the

same manner in Saij Panchayat v. State of Gujarat,309 where the

government had transferred panchayat area as notified area, the

court held that though the law did not . provide for hearing before

306 Satyavir Singh v. Union of India, AIR 1986 SC 555; see also State of Maharashtra v. S.K. Durgule, AIR 1985 SC 119.

307 Olga Tellis v. Bombay Municipal Corpn. (1985)3 SCC 545.308 1995 Supp. (1) SCC 552.309 (1999)2 SCC 372; See also Piara Singh v. State of Punjab, (2000)5 SCC 765.

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transfer of land yet denial of such opportunity is not in consonance

with the scheme of law governing our society. The validity of the law

that excludes the principles of natural justice becomes suspect. The

principle of natural justice are not violated where the opportunity of being heard was afforded but not utilised310

Thus, even if discretion can be exercised in administrative

action, it must be fair and reasonable. So, discretion must be

exercised reasonably, rationally, in public interest and in conformity

with the conditions or guidelines announced to safeguard interests of

the public and the nation.311

In the Indian case law, the terms fairness or fair play and

natural justice are used interchangeably.312 The question raised

now is whether in the specific administrative proceeding affecting an

individual, there ought to be an opportunity of hearing given to the

effected individual, and not whether the proceeding affecting an

individual, there ought to be an opportunity of hearing given to the

affected individual, and not whether the proceeding in question is

"administrative or "“quasi judicial." The new concept has made

hearing a much more widely applicable procedural requirement.

Hearing is now insisted upon in a wide variety of administrative

proceedings and this would not have been possible if the concept of

quasi-judicial and natural justice had applied.

It may also be pointed out here that the law regarding natural

justice has moved much farther ahead than even Ridge v. Baldwin

and the concept of privilege now stand discredited in the common law world.313 The “privileges” of old have become transformed into

Nagar Palika, Nataur v. U.P. Public service Tribunal (1998)2 SCC 400.Delhi Science Forum v. Union of India, AIR 1996 SC 1356.See Maneka Gandhi v. Union of India and Mohinder Singh Gill v. Chief Election Commissioner, Supra.Schwartz, Administrative Law (1984) p. 225-43.313

346

“rights” of to-day. A licence to trade may have characterized as a

privilege in 1951 but certainly it is regarded as right to-day and in

India, it is more than right. The new nomenclature is now commonly adopted; and in G.C. H Q case Lord Roskill314 went so far as to

suggest that the phrase “natural justice” though "hallowed by time

and much judicial repetition”, was often widely misunderstood and

therefore as often misused” and perhaps might now be allowed to

find a permanent resting place and be better replaced by speaking

of a duty to act fairly”315. Today common law courts are conceding

right of hearing even in case of administrative functions or of denial

of legitimate expectation”316

Thus, in such a context there seems to be no need to put the

clock back in India and go back to the old English cases which are

no longer regarded as authority in their home. In administrative law

where judicial thinking in common law countries has made a long

stride since 1963, there is no point in citing old English cases in

India. This only causes confusion which needs to be avoided at all

cost. There is no need to go behind Ridge case by our courts.317

(3) Legitimate Expectation.

In recent years the courts have tended to define the

circumstances in which ‘privileges’ are protected by the rules of

natural justice by reference to the notion of ‘legitimate expectations;

Legitimate expectation is the latest recruit to the long list of concepts

314 Council of Civil service Unions v. Minister for the Civil Services (1985)AC 374 at 414.

315 See also Lord Diplock in Bushell v. Environmental Secretary (1981) AC 75 at 95.316 Att. Gen of Hong Kang, v. Ng. Yuen Shin, (1983)2 AC 629.317 The Supreme Court in Chingleput Bottlers v. Majestic Bottling Co., AIR 1984 SC

1130, sought to draw a distinction between "right" and privilege for the purpose of application of natural justice and seems to place "licences” in the latter category. The court observed that there was a duty to observe the audi alteram partem rule may not apply to cases which relate not to right or legal expectations put to mere privilege or licences. The right-privilege dichotomy was created by Nakuda Ali case. There .is no reason or need to resurrect Nakuda Ali in India.

347

fashioned by the courts for the review of administrative actions.

Legitimate expectation would arise when there is an express

promise given by a public authority that there is a regular practice of

certain thing which the claimant can reasonably expect to continue.

It therefore, follows that the concept of legitimate expectations

consists of inculcating an expectation in the citizen that under certain

rules and scheme, he would continue to enjoy certain benefits of

which he would not be deprived unless there is some overriding

public interest to deprive him of such an expectation. The term

“legitimate expectation" was first used by Lord Denning in 1969 and

from that time it has assumed the position of a significant doctrine of

public law in almost all jurisdictions.318 The emerged concept of

legitimate expectation in administrative law has now gained sufficient

importance. It belongs to the domain of public law and is intended to

give relief to the people when they are not able to justify their claims

on the basis of law in the strict sense of the term though they had

suffered a civil consequences because their legitimate expectation

has been violated.

(a) Emergence in England

In England, the term ‘legitimate expectation’ was first used by

Lord Denning in Schmidt v. Secretary of State for Home Affairs,319

wherein the government had cut short the period already allowed to

an alien to enter and stay in England, the court held that the-person

had legitimate expectation to stay in England which cannot be

violated without following a procedure which is fair and reasonable.

In this manner Lord Denning used the term ‘legitimate expectation’

as an alternative expression to the word ‘right’.

318

319See Generally Clerk, R.t In Pursuit of Fair Justice, AIR 1996 (Ji11. (1969)1 All ER 904(CA).

348

However, it was in Breen v. Amalgamated .Engineering Union (now Amalgamated Engineering and Foundry workers’ union),320

that the doctrine of legitimate expectation found its legitimate place.

In this case, the District committee of a trade union had refused to

endorse a member’s election as shop Steward. The court held that

if a person claims a privilege he can be turned away without hearing,

but here a person has something more than a mere privilege a

legitimate expectation that his election would be approved unless

there are relevant reasons for not doing so, therefore, the natural

justice principles are attracted to the case in order to ensure

fairness.In the same manner in the case of Melnnes v. Onslow Fane321

also the doctrine of legitimate expectation found fine exposition. In

the case of the British Boxing Board of Control a domestic tribunal

had rejected an application for entrance licence without hearing.

The court speaking through Megrry V. C. made a distinction between

application, forfeiture and legitimate expectation situations in licence

cases. On the one extreme are application cases where person has

no right to the grant of his application. On the other extreme are

forfeiture cases in which a person's existing right is violated and

therefore, he is clearly entitled to the benefit of principles of natural

justice. In betwden these extreme situations lies a third situation of

legitimate expectation cases. This situation may cover cases of

renewal of licence. In this situation a person can legitimately expect

that his licence will be renewed and if his licence is notrenewed he

has a right to know what makes him unsuitable now when he was

suitable earlier-principles of natural justice.

320

321(1971)1 All ER 1148 (CA). (1978)3 All ER 211 (Ch. D).

349

The Privy Council in A.G. of Hong Kong v. Ng. Yuen Shiu322

while quashing the removal order passed by the Hongkong

Immigration Authority without notice and hearing also held that there

is a violation of the legitimate expectation of the immigrant based on

announcement of the authority that while examining the cases of

illegal immigration each case would be decided on its own merit and,

therefore, removal cannot be passed without fair hearing.

The basic principles in the branch were enunciated by Lord

Diplock in Council of Civil Service Union v. Ministry of Civil

Services(commonly known as CCSU case),323 it was observed in

this case that for legitimate expectation to arise, the decision of the

administrative authority must affect the person by depriving him of

some benefit or advantage which either (i) he had in the past been

permitted by the decision-maker to enjoy and which he can

legitimately expect to be permitted to continue to do until there has

been communicated to him some rational grounds for withdrawing it

and which he has been given opportunity to comment; or (ii) he has

received assurance from the decision maker that they will not be

withdrawn without giving him first an opportunity of advancing

reasons for contending that they should not be withdrawn.

The procedural part of it relates to a representation that a

hearing or other appropriate procedure will be afforded before the

decision is made. The substantive part of the principle is that if

representation is made that a benefit a substantive nature will be

granted or if the person is already in receipt of the benefit that it will

be continued and not be substantially varied, than the same could

be enforced. In this case Lord Fracer observed that the civil

322

323(1982)2 All E.R. 346(PC).(1984) 3 All ER 935(HL); (1985) AC 3/5 (408-409).

350

servants had legitimate expectation that they would be consulted

before their trade union membership was withdrawn because prior

consultation in the past was the standard practice whenever

conditions of service were materially altered. In this case the

administrative authority had withdrawn a long standing practice by a

mere oral instruction. Lord Diplock even ruled that they had a

legitimate expectation that they would continue to enjoy the benefit

of the trade union membership, the interest in regard to which was

protectable.

In a sense, the doctrine of legitimate expectation imposes a

duty to act fairly on administrative authority and is not restricted to

situations where expectationer is to be consulted or be given an

opportunity to make representation .

The principle of a substantive and procedural legitimate

expectation, has been accepted as a part of the English law in

several cases. For example in R. v. secretary of state for Home

Department ex parte Khan,324 it was held that if the authority had

made a statement that a certain criterion or procedure would be

followed the people can legitimately expect that it would be followed

in the decision making process of the authority, therefore, the

authority is under an obligation to follow that criterion or procedure.

In this case, in violation of the provisions of the circular regarding

entry of adopted children in England, the authority had refused entry

to the adopted child of Khan. The court quashed the order of the

authority as it was on considerations of policies which were not in

existence when the circular had been issued.

324 (1985)1 All ER 40(CA).

351

In R. v. Secretary of State for Home department ex parte

Ruddock,325 in violating the established criteria for the issuance of

interception order the Home Department had issued warrant for the

interception of telephone calls of the applicant. Though the court did

not grant relief as nothing unfair or improper was found yet the duty

to act fairly where legitimate expectations are involved was firmly

affirmed.In R. v. Secretary of state for transport ex parte Greater

London Council,326 the doctrine was applied in tax cases. The court

held that a tax-payer had legitimate expectations to make

representation that he should not pay tax at the maximum rate.

Though the doctrine as evolved in England is still in an

evolutionary stage yet one thing is certain that it is an equity doctrine

and, therefore, the benefit of the doctrine cannot be claimed as a

matter of course. It is a flexible doctrine which can be moulded to

suit the requirements of each individual case. The court did not

apply the doctrine where applicant’s own conduct was unlawful or

claim was unworthy. In Cinnamond v. British Airports Authority,327

the court upheld the decision of the authority to prohibit the entry of

taxi drivers into the airport because of their own past conduct which

invited fines.

In Lloyd v. Mahon,328 the House of Lords further held that the

doctrine does not include within its ambit a right to oral hearing.

Courts have also not protected expectations by judicial review when

nothing unfair was found on the part of the authority or legitimate

(1987)2 All ER 518 (QBD). (1985)3 All ER 300 (QBD). (1980)2 All ER 368 (CA). (1987)1 All ER 1118 (HL).

352

public interest demanded otherwise.329 The doctrine, however, has

been applied to statutory as well s non-statutory authorities.330

(b) Emergence in India

With the aforesaid back ground we shall now examine the

extent to which the principle of legitimate expectation has been

accepted in India. The capacity of the Apex Court to import legal

doctrines and to plant them in a different soil and climate and to

make them flourish and bear fruits is tremendous. The importation

of the doctrine of legitimate expectation is recent. The first reference

to the doctrine is found in State of Kerala v. K.G. Madhavan Pillai,331

In the instant case, the government had issued a sanction to open a

new unaided school and to upgrade the existing ones. However,

after 15 days a direction was issued to keep the sanction in

abeyance. This order was challenged on the ground of violation of

the principle of natural justice. The court held that the sanction order

created legitimate expectation in the respondents which was violated

by the second order without following the principles of natural justice

which is sufficient to vitiate an administrative order.

The doctrine was further applied in SC and WS welfare

Association v. State of Karnataka,332 where the government had

issued a notification notifying areas where slum clearance scheme

will be introduced. However, the notification was subsequently

amended and certain areas notified earlier were left out. The

Supreme Court held that the earlier notification had raised legitimate

expectation in the people living in an area which had been left out in

Supra note 323 & 325. Supra note 326.AIR 1989 SC 49. (1991)2 SCC 604.

a subsequent notification and hence legitimate expectation cannot

be denied without a fair hearing.Thus where a person has legitimate expectation to be treated

in a particular way which falls short of an enforceable right, the

administrative authority can not deny him his legitimate expectation

without a fair hearing. Legitimate expectation of fair hearing may

arise by a promise or by an established practice.333

Again in case of Navjyoti co-op Group Housing Society v.

Union of India334 on the doctrine of legitimate expectation it has been

held that person enjoying certain benefits/advantage under the old

policy of the government derive a legitimate expectation even

though they may not have any legal right under the private law in the

context of its continuance. "The doctrine of legitimate expectation

imposes in essence a duty on the public authority to act fairly by

taking into consideration all the relevant factors relating to such

legitimate expectation that may have a number of different

consequences is that the authority ought not to act to defeat the

legitimate expectation without some overriding reasons of public

policy to justify its doing so. Within the conspectus of fair dealing in

the case of legitimate expectation, the reasonable opportunity to

make representation by the parties likely to be affected by any

change of consistent past policy came in. In a case of legitimate

expectation if the authority proposes to defeat a person’s legitimate

expectation it should afford him an opportunity to make a

representation in the matter.In the case of Food Corporation of India v. Mfe Kamdhenu

Cattle Feed Industries,335 it has been held that non arbitrariness,

333

334

335

See also State of H.P. v. Kailash Mahajan, (1992) Supp. (2) SSC 351. (1992)4 SCC 477; AIR 1993 SC 155.(1993)1 SCC 71; 76; AIR 1993 SC 1601.

354

fairness in action and due consideration of legitimate expectation of

the affected party are the essential requisites for a valid state action.

It has also been held that whether expectation is legitimate is a

question of fact which has to be determined in the larger public

interest.

The Supreme Court in the case of Union of India v. Hindustan

Development Corporation,336 elaborately considered this law. In this

case it has been held that the principle of legitimate expectation

gave the sufficient locus standi to seek judicial review and that the

doctrine was confined mostly to a right to fair hearing before decision

which resulted in negativing a promise or withdrawing an

undertaking was taken. It did not involve any crystallized right. The

protection of such legitimate expectation did not require the

fulfillment of expectation where the overriding public interest. In this

case several English and Australian cases were referred to and

conclusions were then reached.337j

In this case in the absence of any fixed procedure for fixing

price and quantity for the supply of foodgrains, the Government

adopted a dual pricing system (lower price for big suppliers and

higher price for small suppliers) in the public interest in order to

break the cartel. The court held that there is no denial of legitimate

expectation as it is not based on any law, custom or past practice.

The court said that it is not possible to give an exhaustive list

wherein legitimate expectations arise but by and large they arise in

promotion cases, though not guaranteed as a statutory right in cases

of contracts, distribution of largess by the government and in

somewhat similar situations.

336

337(1993)3 SCC 499; AIR 1994 SC 1988.See also P.T.R. Exports v. Union of India, (1996)5 SCC 268.

Explaining the meaning and the legitimacy of the

doctrine, the Supreme Court held :

"Time is a three-fold present: the present as we experience it, the past as a present memory and future as a present expectation.For legal purpose, the expectation cannot be the same as anticipated. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However, earnest and sincere a wish, a desire or a hope may be and however, confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A furious hope cannot amount to a legitimate expectation. The legitimacy ok an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in a natural and regular sequence. Again, it is distinguishable from a mere expectation. Such expectation should be justifiably legitimate and protectable.Every such expectation does not by itself fructify into a right and, therefore, it does not amount to a right in a conventional sense.”338

The court further held that unless the fair hearing is not a pre­

condition for the exercise of power the doctrine has no role to play

and the court should not interfere with the exercise of discretion by

the administrative authority. The court must allow full choice to the

authority which the legislature is presumed to have intended. Thus,

the extent of judicial review of administrative action is very limited.

The doctrine of legitimate expectation is “not the key 'Which unlocks

the treasury of“ natural justice and it ought not to unlock the gates

which shuts the court out of review on the merits.” The court should

Union of India v. Hindustan Development Corpn. (1993)3 SCC 499 at 540.

356

exercise self-restraint and restrict the claim of denial of legitimate

expectation to the legal limitations.339

In case of Madras city Wine Merchant association v. State of

Tamil Nadu,340 the matter related to renewal of liquor licences rule

which were statutorily altered. It was therefore held that the repeal

being a result of a change in the policy by legislation, the principle of

non-arbitrariness was not invokable.

The principle of legitimate expectation confers noon person a

right which is enforceable in case of its denial. But whether an

expectation is legitimate or not is a question of fact which has to be

determined not according to claimant’s perception but in the larger

public interest.Thus, in U.T. Chandigarh v. Dilbag Singh,341 the Supreme

court held that selectees are not entitled to an opportunity of hearing

before cancellation of the- list even though they have legitimate

expectation but they have no indefeasible right to be appointed in

absence of any rule to that effect. On the other hand, in U.P. Awas

Evam Vikas Prashid v. Gyan Devi,342 the court held that the local

body which has the right to lead evidence under Section 20(2) of the

Land Acquisition Act for the purpose of determining compensation

can legitimately expect to receive notice about the pendency of the

proceedings and its right to lead evidence and if this legitimate

expectation is denied the court can intervene.

Again in M.P. Oil Extraction Co. v. State of M.P.,343 the

Supreme Court held the State’s Policy to extend renewal of an

agreement to selected industries which came to be located in

339 Supra note p. 336.340 (1994)5 SCC 509.341 (1993)1 SCC 154.

(1995)2 SCC 326.(1997)7 SCC 592; AIR 1998 SC 145.343

357

Madhya Pradesh on the invitation of the State, as against the local

industries was not arbitrary and the said selected industry had a

legitimate expectation of renewal under the renewal clause.

Then there is a case by Three Judges namely the National

Building construction corporation v. Raghunathan.344 This case

related to service matter where persons working on deputation in

Iraq were given 125% of basic pay as foreign allowance. After

revision of pay scales by the Fourth Pay commission, this allowance

was withdrawn. The Supreme Court rejected the contention of

violation of legitimate expectation on the ground that peculiar

situation prevailing in Iraq justified change in policy. Thus, unless the

change of policy is clearly irrational or perverse, court will not

interfere. The Supreme Court brought in the of ‘detriment’ in

legitimate Expectation Theory and held that enforcement of any

legitimate expectation required; (i) reliance on representation;

resultant detriment. The court further observed that though the

government has the power to change its policy in public interest yet

the court can look into the question of proportionality of change of

policy and can see whether legitimate expectation has been properly

balanced against the need for change. However, Court’s discretion

must not transgress Wednesbury principle. Court cannot judge the

merit of the policy. Therefore, unless the change of policy is so

outrageous that no sensible person who had applied his mind to the

question to be decided could have arrived at it. Court will not

interfere because flexibility necessarily inherent in this principle must

not be sacrificed on the alter of legal certainty.

In this case it was observed that the doctrine of legitimate

expectation had both substantive and procedural' aspects. In

344 (1998)7 SCC 66: AIR SC 2277.

essence, the Supreme Court laid down a clear principle that required

reliance as representation and resultant detriment in the same way

as claims based on promissory estoppel. This principle is very akin

to “reasonableness” and natural justice.

Elaborating the law further in Punjab Communication Ltd. v.

Union of India,345 the Apex Court observed that legitimate

expectations may be procedural and substantive both. The

procedural part of it relates to a representation that a hearing or

other appropriate procedure will be afforded before any change in

decision is made. The substantive part of the principle relates to the

representation that a benefit of a substantive nature will be granted

or will be continued. Procedural legitimate expectation cannot be

withdrawn without giving a person some opportunity of advancing

reasons for contending that it should not be withdrawn unless some

rational grounds for withdrawing it has been communicated to the

person and on which he has been given opportunity to comment.

The principle of legitimate expectation in the substantive sense that

the decision-making authority can normally be compelled to give

effect to his representation unless overriding public interest demands

otherwise has become the part of Indian law no matter it has still not

been accepted in many jurisdictions.346 On the other hand European

Courts go a step further and try to balance legitimate interest with

the demand of public interest. !

Very recently, the Supreme Court in the case of Dr. Mrs.

Chanchal Goyal v. State of Rajasthan347 observed that in a service-

matter unless there was specific waiver of conditions attached to the

original appointment order, mere continuance in service did not

345

346

347

(1999)4 SCC 727; AIR 1999 SC 1801.Canada Assistance Plan, Re, (1991)83 DLR (4th) 297. (2003) 102 RJR 788.

359

imply such waiver. No legitimate expectation could be founded on

such unfounded impressions.The above survey of cases shows that the doctrine of

legitimate expectation in the substantive sense has been accepted

as part of our law and that the decision maker can normally be

compelled to give effect to his representation in regard to the

expectation based on previous practice or past conduct unless some

overriding public interest comes in the way. As a doctrine it takes its

place besides such principles as rules of natural justice, rule of law,

non-arbitrariness, reasonableness, fairness promissory estoppel,

fiduciary duty and, perhaps, proportionality to check the abuse of the

exercise of administrative power.348 However, as an equity doctrine

it is not rigid and operates in areas of menifest injustice. It enforces

a certain standard of public morality in all public dealings. However,

considerations of public interest would outweigh its application. It

would immensely benefit those who are likely to be denied relief on

the ground that they have no statutory right to claim relief.

In India, the Apex Court has developed this doctrine in order

to check the arbitrary exercise of power by the administrative

authorities. In private law a person can approach the court only

when his right based on statute or contract is violated but this rule of

locus standi is relaxed in public law to allow standing even when a

legitimate expectation from a public authority is not fulfilled.

Therefore, this doctrine provides a central space between ‘no claim’

and a ‘legal claim’ wherein a public authority can be made

accountable on the ground of an expectation which is legitimate.

With the passage of time we are getting enlightened to the

various fundamental rights as guaranteed by the constitution under

348 Union of India v. Hindustan Development Corpn. (1993)3 SCC 499.

360

article 14 of the constitution. We have a right to equality but the

executive and administrative excesses many a time deprive us of

this. There is therefore constant demand that the administrative

action must be fair, reasonable and non-arbitrary. This is an

enlargement principles of natural justice.. The doctrine of legitimate

expectation has its genesis in the field of Administrative Law.

Precisely speaking the Government and its departments, in

administering the affairs of the country are expected to honour their-

statements of policy or intention and treat the citizen equally without

any iota of abuse of discretion. The policy statement cannot be

disregard unfairly or applied selectively. Unfairness in the form of

unreasonableness is akin to violation of natural justice. It was in this

context that the doctrine of legitimate expectation finds its origin.

Like, the bulk of the administrative law, the doctrine of

legitimate expectation is also a fine example of judicial' creativity.

Nevertheless it is not extra-legal and extra-constitutional. The

doctrine has negative and positive contents both. If applied

negatively an administrative authority can be prohibited from

violating the legitimate expectations of the people and if applied in a

positive manner an administrative authority can be compelled to fulfil

the legitimate expectations of the people. This is based on the

principle that public power is a trust which must be exercised in the

best interest of its beneficiaries - the people.

This is a procedural right which in certain contingencies

becomes substantive right. It is rather a safety value against the

abuse of discretion by the over zealous administrative authority.

Ostensibly it may not have a sound and fury but certainly it

signifies a lot on the right of equality in the modern progressive

society with fast changing social values and a new economic order,

361

new concepts have surfaced, their judicial redress is sought of it

legal injury as legal wrong is inflicted by the acts and omissions of

the executive and the administrative authorities. The doctrine of

legitimate expectation is such a concept but judicial attempts need

be made to delineate parameters that embrace both “promissory

estoppel” and legitimate expectation so that they may -.not interplay

and interact to the determinant of the remedy seeker.

(4) What Counts as acting fairly?The concept of ’fairness’ has not made the task of the courts

easier. The court have still to decide whether a particular

administrative proceeding is of the type where the concept of

fairness is to be applicable and ,if so ,what exactly fairness requires

in that context. In other words, the courts have to decide whether the

proceedings are such that the basic components of natural justice

are to be applied or it is ’fairness’ which is to be applied, and if so, to

determine its contents in the context of the situation in hand, or the

administrative action is such that it does not call for either the

applicability of natural justice or fair procedure.

Thus we turn now to the content of natural justice: from the

question “when is there a duty to act fairly?” to the question “what

counts as acting fairly when there is a duty to do so?” It is not

possible to lay down rigid rules as to when the principles of natural

justice are to apply; nor as to their scope and extent349. The

requirements of natural justice must depend on the circumstances of

the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, arid so forth.350

Nevertheless, some general indication may be given of what, in

349

350

Per Lord Denning M.R. in R.v. Gaming Board ex P. Benaim (1970)2 Q.B. 417 at 430.Russel v. Duke of Norfolk (1949)1 All Er 109 at 118 (Per Tucker L.J.).

\

362

particular circumstances, may count as acting fairly. In Ridge v.

Baldwin Lord Hodson observed351 that c

“.... three features of natural justice stand out...(1) the right to be heard by an unbiased tribunal,(2) the right to have notice of charges " of

misconduct,(3) the right to be heard in answer to those charges”Clearly the duty to act fairly applies in many circumstances

where no question of ‘misconduct’ arises. So, a more generalised

statement would refer to “the opposing case” rather than to “charges

of misconduct". The right to notice and to a hearing are features of

the co-called audi alteram partem rule (“hear the other side”); and

the rule against bias commonly appears as nemo judex in causa sua

(no one a judge in his own case”). Before considering separately

hearings and bias, we may recall that natural justice is generally

called in aid only in circumstances where statute -has not made

detailed provision for a fair procedure.

(a) The right to a hearing.

(i) prior notice-Generally speaking a right to a hearing

“necessarily extends to a reasonable opportunity to prepare your

case before you are called on to present it, i.e. to prior notice of the

proceedings at which the matter is to be considered. But on the part

of the obstructive conduct of the person affected, or where in special

circumstances the person will not be prejudiced, prior notice may be

unnecessary.

(ii) The Opposing case-Prior notice must obviously include such

features of the opposing case as will fairly enable a person to

marshal his own case. Equally obviously, many details (of evidence,

(1964) AC 40 at 132.For cases where reasonable attempt to serve notice (as distinct from actual service) may suffice. See de Smith, Judicial Review of Administrative Action (1980) p. 197.

351

352

submission etc.) will appear only at the hearing itself. Moreover, in

certain circumstances the courts have permitted considerations of

public policy to justify concealment of certain aspects of the opposing case, e.g. in Malak Singh v. State of Punjab.353 The

Supreme Court held that surveillance in Register of police is a

confidential document.

(iii) Non-disclosure of relevant material - An individual will have been

deprived of a fair hearing before a court or tribunal where his

opponent has failed to disclose information in his possession which

would be of assistance to the individual.354 This may appear at first

sight to be merely an extension of the right to know the opposing

case; but it seems that the principle goes beyond this. It may apply

also where the fault is that of the individual’s own legal advisers, and

possibly that of the individual himself. In all these cases, of course

the tribunal itself is faultiess-but the real question is whether there

was in truth, a breach of the rules of natural justice, A hearing is not

fair if there is relevant material available which is not placed before

the tribunal.

(iv) Details of procedure... The actual extend of a person’s

knowledge of and ability to answer an opposing case will turn very

much on the details of the procedure adopted by the deciding

authority, e.g. whether the hearing is oral or, on contrary, by way of

written submissions; if it is oral; whether or not there is a right to

legal or other representation and a right to call and to cross examine

witnesses. There is often detailed statutory provision on matters of

procedure. But in cases where statute is silent the courts have

353

354AIR 1981 SC 760.Dhankeshwari Cotton Mills v. E.l.T. AIR 1955 SC 65.

364

refrained from any general statement beyond that “what procedure is

to be in detail must depend on the nature of the tribunal.

Hearing will commonly be oral and failure to give an oral

hearing may be a denial of natural justice where in all the

circumstances or the case it seems “possible that if the applicant

had an oral hearing...further matters could have been advanced on

his behalf. But there are many situations where a case may be put

adequately in writing and where, accordingly, the courts have

refused to rule that an oral hearing is essential.

Again, whether or not(in the absence of statutory provision) to

permit parties to be represented at an oral hearing will commonly fall

within a deciding authority’s procedural discretion, -taking into

consideration facts and circumstances of every case355

Finally, especially in penal and other cases, where questions

of fact are in issue, a fair hearing will normally include the right to call

witnesses, and to cross-examine356 those called by the other side.

But a tribunal chairman may limit the number of otherwise. But a

tribunal chairman may limit the number of witnesses, e.g. on the

basis that he has good reason for considering that the total number

sought to be failed is an attempt.... to render the hearing of (a)

charge virtually impracticable or where... it would be quite

unnecessary to call so many witnesses to establish (a) point.

(v) Reasons for decisions... It is plain that the value of a right to a

hearing will be considerably diminished if it does not extend to a

right to know the reasons upon which a decision is ultimately based.

In particular, of course, it is difficult effectively to challenge a

Ramchander Tripathi v. U.P. Service Tribunal (1994)5 SCC 180 State Bank of India, v. Mahendra Kumar Sehgal, (1994) Supp. 2 SCC 463.State of J & K v Bakshi Ghulam Mohammad, AIR 1955 SC 65; Surjit Singh Chhabra v. Union of India (1997)1 SCC 508.

365

decision (by way of appeal or otherwise) if one is not apprised of the

reasons for it. Statutory procedural rules very commonly require

reasons to be given. But in the absence of express statutory

provisions and where reliance must replaced on the rules of natural

justice, it is said that there is not "any general principle of law which

imposes on a decision-maker a duty to make known the reasons for

his decisions. However, at present, the case law indicates that there

is courts’ wide insistence that official decisions should be based on

proper grounds. It would surely complement this approach if the

courts were to state that the giving of reasons is in general a

constituent of natural justice,357 although the extent of the duty will

depend on the particular circumstances of a case.

(b) The rule against bias

(i) General Considerations. - Where the rule against bias applies, a

person exercising official power breaks the rule if either (a) he has a

pecuniary interest in (i.e. stands to gain financially from) a decision

or (b) there is real likelihood that he is predisposed to decide in a

particular way. The case law establishes in effect that the very

existence of pecuniary interest is taken without more to show a real

likelihood of bias; and that, in the absence of pecuniary interest, it is

sufficient to demonstrate a real likelihood of bias in the

circumstances of the case. In either event it is unnecessary to show

that a person was actually biased.

(ii) pecuniary interest... Where it applies, the rule against bias

is broken if the decision-maker has “any direct pecuniary interest,

however small, in the subject of inquiry. So in a well-known case,

Lord Chancellor Cottenhan had decided a land title dispute in favour

357 Siemen Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785; See also Maneka Gandhi v. Union of India, AIR 1978 SC 597; T.R Thakur v. Union of India (1996)3 SCC 690; Krishanlal v. Union of India, (1998)2 SCC 392.

366

of a company in which, as it later appeared, he owned shares. The

House of Lords allowed an appeal on the basis of Lord Cottenham’s

pecuniary interest.358

(iii) Real Likelihood pecuniary interest apart, the rule against

bias is broken when it can be shown that in the circumstances of the

case there is a “real likelihood" of bias on the part of the deciding

authority. After some judicial oscillation, it appears now settled that

the test of the existence of “real likelihood’ is whether a reasonable

person in possession of such relevant information as he might

readily have ascertained would have thought that bias was likely.

On this test it is immaterial whether or not the review court is, on the

basis of the facts established before it, of the opinion that there was

actually a real likelihood of bias.359

There is of course, infinite number of circumstances in which

the "real likelihood” test may be satisfied. For example in Fakruddin

v. Principal custodian,360 the Supreme Court held that when a judge

who was the lawyer of the client whose case he decides, there is

real likelihood of bias. In State of U.P. v. Mohd.361 Nooh where

Presiding officer himself becomes a witness, there is certainly a real

likelihood of bias. In A.K. Kripak v. Union f India,362 where a member

of selection committee himself was also a candidate, the Supreme

Court held that there was a real likelihood of bias.

358

359

360

361

362

Dimes v. Grand Junction Canal Properties, (1852)3 H.L.C. 759.Wade HWR, Administrative Law (5lh Edn. 1982), p. 450-432; de Smith, Judicial Review of Administrative Action (4th ed, 1980) p 262-264.(1995)4 SCC 538. AIR 1958 SC 86. AIR 1970 SC 150.

367

(5) Effect of breach of duty to act fairly.

(a) Bases of Challenge.The rules of natural justice are, as we have seen implied

statutory procedural requirements. On what bases may a victim of a

breach of the rules challenge that breach in the courts?

It is clearly established by authority that for purposes of

supervisory review, breach of the rules is to be regarded as

tantamount to jurisdictional error or acting ultra vires, thus rendering

an act or decision void rather than violable. Thus, a “no certiorari”

clause is no bar to supervisory review based on denial of natural

justice, And a party may make such a denial the basis of a collateral

challenge.

(b) The void/voidable distinction.(i) Substantial injustice. There appears to be some difficulty in

reconciling the proposition that breach of the rules of natural justice

renders a decision void with commonsense principle that only

breaches likely to have caused a substantial miscarriage of justice

should be remedied. But the remedies of supervisory review are all

discretionary and the question of substantial miscarriage can

properly be dealt with in the exercise of this discretion. In its

exercise of appellate jurisdiction, a court may have express statutory

power to dismiss the appeal, if they consider that no miscarriage of

justice has actually occurred. Failing this, a court may well take the

view(albeit arguably inconsistently with the principle that any denial

of natural justice renders a decision void) that the appeal should be

allowed only in the event of a substantial miscarriage. In case of

collateral challenge, e.g. a suit for damages, the court may indeed

have no discretion as to remedy. But again, in such a case one

might expect that a court might decline to accede to the challenge

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where so substantial injustice had been done. Finally, under the

“statutory supervisory review” jurisdiction, a party complaining of

breach of a procedural requirement must show ‘substantial

prejudice’.

(ii) Waiver-There \k authority for the proposition that a breach of the

rule against bias may be waived (so precluding subsequent

challenge); and it may be likewise where a fair hearing is denied. At

first sight this may appear inconsistent with the proposition that

denial of natural justice renders a decision void because outside

jurisdiction. For as a general rule jurisdictional defects cannot be

waived; So as to confer a power where none exists, any more than

estoppel can operate to curtail a power which has been conferred.

The courts’ approach to waiver of denials of natural justice may be

seen, however, as another example of their refusal to be hidebound

by the unsatisfactory concept of voidness, or ‘nullity’ Now the rules

of natural justice may be seen as conferring personal benefit on

individuals who, accordingly, should be entitled to waive their

observance. In these circumstances it appears sensible to treat a

person who has waived a breach of the rules of natural justice as not

being, in the circumstances, any more entitled to challenge the

decision in question than a person who has delayed his challenge

inordinately or who has no sufficient interest in the matter.

(iii) Double jeopardy - Under the rule against double jeopardy “a

man cannot be tried for a crime in respect of which he has previously

been acquitted or convicted. Suppose that a court, in acquitting a

defendant, denies natural justice to the prosecution by, for example,

refusing to hear a competent witness. It appears that the acquittal is

not to be regarded as void so as to deny to the acquitted defendant

the protection of the rule. But if a court wrongly declines jurisdiction

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(e.g. by refusing to hear the prosecution’s case at all) the363prosecution may obtain mandamus requiring the court to proceed.

For, no trial having occurred, the defendant was never in jeopardy of

conviction.The courts’ treatment of the notion of 'voidness’ in each of the

above three contexts illustrates well a judicial tendency already

noted. For while the words ‘void’ and ‘voidable’.

“may be helpful in argument (they) may be misleading in effect if

relied on to show that the courts, in deciding the consequences of a

defect in the exercise of power are necessarily bound to fit the facts

of a particular case.... into rigid legal categories or to stretch or

cramp them on a bed of procrustes invented by lawyers for the

purposes of convenient exposition.’’364

C. REVIEW

The basic ground of judicial review in England is the principle

of jurisdiction, otherwise known as ultra vires. But this jurisdictional

principle embodies a dichotomy of distinction between error of

jurisdiction and error within jurisdiction i.e. errors ultra vires and

errors intra vires. While former is reviewable at all, latter is

reviewable when error is of law which is apparent on the face of the

records. However, in English law an attempt has been made to

abandon the distinction between errors ultra vires and errors intra

vires as far as points of law are concerned. This was done in

Anisminic case.365 As it is not certain how for this will go.366 The

American courts have discarded the jurisdictional and non

Re Harington (1984) AC 743.Per Lord Hailsham in London & Clydeside Estate Ltd. v. Aberdeen District Council (1980)1 W.L.R. 182 at 189.(1969) AC 147.S. E. Asia Fire Bricks v. Non-Mettalic Union, (1981)AC 363.

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jurisdictional distinction on question of facts by adopting the

‘substantial evidence’ doctrine.

In India the principle of errors of law apparent orrthe face of

the record has been to a large extent, denuded of its utility by review

of decision on a 'true interpretation of a statute’. By granting review

on a ‘true interpretation of a statute’, the courts, in effect exercise a

power of statutory appeal on points of law which is not necessarily

confined to error of law apparent on the face of the record, is likely to

retain its utility, as it provides a basis for review of no evidence,

wrong evidence and wrong conclusion from evidence.

The courts in India have to chalk out their own path within the

constitutional framework in which they operate. The discussion

shows that the courts in India have gone too far to put the clock

back. They have created a mass of case law which it is hard to fit in

with English principles. The courts may well follow in the footsteps

of the American courts to create new rules and principles to

accommodate practice with theory; creative enterprise rather than

nostalgia for the past, is needed to weed out anarchy and chaos

from law. Law nbeds nourishment for its health and vitality from both

the judges and legislature; and the task of putting it on the even keel

of order and harmony has to be undertaken by both the judges and

the law makers.>; )

In the context of natural justice, the experiences of the courts

show that however much we would like to throw out the

administrative/judicial distinction it inevitably returns. Some areas of

administrative activity are found inappropriate for the application of

natural justice and all that is involved in it(viz. absence of bias,

notice, oral hearing, cross examination, giving of reasons, and

necessity to decide on the basis of record etc.). These are labelled

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as administrative. However, it is important to put the basis of the

distinction on clearly formulated set of criteria. It might be found

necessary to subject even the ‘administrative acts’ to some

procedural safeguards. The concept of the duty to 'act fairly’ is

useful for that purpose. But its contents and scope ought to be

clearly articulated to avoid its haphazard application.