13

ADMINISTRATIVE LAW

S.N. Singh"

I INTRODUCTION

THE MOST notable development in the field of administrative lawduring 1985 has been the enactment and enforcement of the AdministrativeTribunals Act, 1985 under which the central administrative tribunalwith its principal bench at New Delhi and additional benches at NewDelhi, Allahabad, Bombay, Calcutta and Madras started working fromNovember 1, 1985. The tribunal is a quasi-judicial body. The powersof all courts except that of the Supreme Court under article 136 in respectof all matters falling within the jurisdiction of the tribunal had beenexcluded. The Supreme Court, however, in S.P. Sampat" Kumar v. Unionof India! directed as an interim order that despite ouster clause, the writpetitions under article 32 would be dealt with by that court; that in futurethe appointment of judicial member of the tribunal would be made inconsultation with the Chief Justice of India; that each bench of the tri­bunal would consist of one judicial member and one non-judicial memberand in case of difference of opinion between them, the case would be refer­red for decision to the chairman of the tribunal; and that where no benchof the tribunal was located at the place where there was seat of the HighCourt, applications/petitions under the Act could be filed in the registryof the High Court. The government had agreed before the court thatadditional benches of the tribunal would be set up at the seats of thoseHigh Courts where the work-load of cases so justified with a view tomaking justice easily accessible. In the light of the above interim directionsof the court, the Act was amended by the Administrative Tribunals (Amend..ment) Ordinance, 1986, with effect from January 22, 1986. This Ordi­nance has since been replaced by the Administrative Tribunals (Amend..ment) Act, 1986.

The Supreme Court has expressed a serious view of the phenomenalrise in service disputes in the last three decades. Ranganath Misra Jhas pointed out that serious attention should be paid to discover thereasons therefor and take remedial steps as frequent litigation between

... LL.M. (Banaras). Ph.D. (Dolhi), Reader. Law Centre II, University of Delhi,Delhi.

1 (1985) 4sec 458.

VoL xxn

the state and its employees ultimately affects the efficiency and moraleof the service.! In a large number of cases, the actions of administrativebodies are found to be arbitrary, mala fide or otherwise illegal but thecourts, except for striking down the impugned actions, have not taken theadministration to task. If the courts sincerely want to improve efficiencyand discipline and reduce litigation, they win have to develop a new juris­prudence of personal acccountability and liability of the erring ofncialsresponsible for illegal actions with a view to providing deterrence againstsuch actions.

The most leading and controversial case of the year was Union ofIndia v, Tulsiram patel,3 which dealt with the application of the principlesof natural justice under article 311 (2). Very few cases created so muchfurore as this case from almost aU walks of people. The cases on delegatedlegislation compel us to suggest that more discipline is required on thepart of subordinate law-making bodies while framing rules and regula­tions in view of the fact that very often they have been found ultra vires,arbitrary and discriminatory. The Supreme Court decisions on thequestion of the existence of quid pro quo for levy of 'fee' have createdgreat confusion. The principle of promissory estoppel needs clarification bya Constitution Bench of the Supreme Court in view of the :conflict of opi­nions between different Division Benches of the court. The observationsof Bhagwati CJ in Union of India v. Godfrey Phi/ips India Ltda4 have creat...ed confusion on the principle of promissory estoppel.

The Supreme Court has deprecated the practice prevalent in Calcutta HighCourt regarding grant of ex parte interim stay on the basis of oral appli­cation." The court has taken a very practical view of refund of moneycollected under a law declared invalid after collection. The court hasheld that an amount collected from consumers be paid to the governmentby the assessees which they could not refund to the actual consumers.The money did not belong to the assessees and, therefore, any amountrefunded to them would amount to unjust enrichment."

II DELEGATED LEGISLATION

Arbitrariness, unreasonableness and discrimination

The cases reported reveal a clear judicial tendency to frown upon dele­gated legislation conferring arbitrary and naked powers to the administra­tion under article 14.

2 Karam Pal v, Union of India, AIR 1985 SC 774 at 779·80.a AIR 1985 SC 1416a, (1985) 4 sec 369.i Mis. Samartas Trading Co. PYla Ltd. v. S. Samuel, AIR 1985 SC 61; see also Asstt,

Col/ector, Ctntral Bxels« v, Dunlop IndiaLtd., AIR 1985 SC330.• See U,P. SIlIte Electrlcit1.lJDtJrd v, CII, Board, Mu.ssoorlt, AIR. 1985 SC 883 and

Stat, of MP v, 'Vyankat/al. AIR. 19'85 SC 901.

250 Annual Survey oj Indian Law [1985

In West Bengal State Electricity Board v, Desh Bandhu Ghosh,' theservices of the respondent, who was a permanent employee of the appellantas deputy secretary, were terminated under the most widely wordedregulation 34 of the West Bengal Electricity Board's Regulations whichread:

In case of a permanent employee, his services may be terminatedby serving three months' notice or on payment of salary for thecorresponding period in lieu thereof.

The termination order was with immediate effect on payment of threemonths' salary in lieu of notice. The order did not give any reasonsfor the termination of service. While quashing the termination orderand regulation 34 on the ground of arbitrariness, the Supreme Courtobserved:

On the face of it, the regulation is totally arbitrary and confers onthe Board a power which is capable of vicious discrimination. Itis a naked 'hire and fire' rule, the time for banishing which alto ..gether from employer-employee relationship is fast approaching.Its only parallel is to be found in the Henry VIII clause sofamiliar to administrative lawyers."

The court was not impressed by the submission that the parentlegislation, viz., the Electricity (Supply) Act, 1948 contained sufficientguidelines for the exercise of power under the impugned regulation orthat the power was vested in superior officials who were expected toexercise the same in a reasonable way. It would be recalled that theSupreme Court in Moti Ram Deka' had held that rules 148(3) and 149(3) of the Indian Railway Establishment Code, which were worded inidentical words as the above regulation 34, were violative of article 311(2) but the validity of the said rules was not tested under article 14. Tothat extent both these cases provide a complete answer to the validity ofthe provision like regulation 34 under articles 14 and 311(2). Thetermination of service in the instant case could not be considered astermination simpliciter.

The court in many cases upheld the validity of delegated legislationon the ground that adequate substantive and procedural safeguards wereprovided. One such safeguard is the existence of a corrective machineryby way of appeal or revision against an order of an authority. The courthas quashed legislation as being arbitrary for not containing such aprovision.!" It is, however, important to mention that delegated legisla..

7 AIR 1985 SC 722.8 Id, at 723.9 Mot; Ra111 Deka v, North East Frontier Railway, AIR 1964 SC 600; see also Werkmen,

Hindustan Steel Ltd. v, Hindustan Steel Ltd., AIR 1985 SC 251.10 See Chandrakant v. Jasltt Singh, AIR 1962 SC 204; Hari Chand v. Mizo District

Council, AIR 1967 SC 829.

Vol. XXI] Administrative Law 251

tions were quashed in those cases not On the sole ground of absence of acorrective machinery. The absence of an appellate/revisional authority isonly one of the several safeguards against arbitrary exercise of power and theabsence of such a provision may be ignored by the court if other adequatesafeguards exist under the legislation. Section 54 of the Bombay TownPlanning Act, 1955 read with rule 27 framed thereunder conferred power onthe local authority to evict occupants oflands, inter alia, by summary proce­dure. The Act and the rules did not contain any provision for appeal!revision against the order of the local authortiy. Tulzapurkar J upheldthe validity of the Act and the rules under article 14 and observed:

[Mjere absence of a corrective machinery by way of appeal orrevision by itself would not make the power unreasonable orarbitrary, much less would render the provision invalid. Regardwill have to be had to several factors, such as, on whom the poweris conferred, whether on a high official or a petty officer, what is thenature of the power-whether the exercise thereof depends uponthe subjective satisfaction of the authority or body on whom it isconferred or is it to be exercised objectively by reference to someexisting facts or tests, whether or not it is a quasi-judicial powerrequiring that authority or body to observe principles of naturaljustice and make a speaking order.... Moreover all these factorswill have to be considered in the light of the scheme of theenactment and the purpose intended to be achieved by the concern­ed provision.'!

The court held that the scheme related to making and execution of townplanning schemes. The power of summary eviction was to be usedagainst those occupants who were not entitled to occupy the plots. Thepower was conferred upon the local authority which was a highly respon­sible body. The power was to be exercised by reference to final schemeand after observing the principles of natural justice. The impugned pro­visions of the Act and the rules were, therefore, not arbitrary and discrimi­natory. If, however, the power were exercised for extraneous or irrelevantconsiderations or on mala fide grounds, the order would be subject tojudicial revi ew of the courts.

In Raj Pal Sharma v, State 0.( Haryana'? in order to attract young­men to join military service at the time of Chinese aggression in 1962,the Punjab Government framed the Punjab Government National Emer­gency (Concession) Rules, 1965 under article 309. These rules wereadopted by the State of Haryana. Rule 4 provided that the period ofmilitary service would be counted for the purposes of increment, seniority

11 MIs. Babubhai de Co. v. State of Gujarat, AIR 1985 SC 613 at 61 S.11 AIR 1985 SC 1263. '

Annual ~urvey of'Indtan Law lt9g~

and pension for a person who joined civil service after leaving militaryservice. In 1976, the said rule was amended by adding a proviso to theeffect that a person who had been released from military service oncompassionate grounds would not be entitled to any concession underit. The Supreme Court, reiterating its earlier view expressed in K.C.Arora v. State of HaryanaJs held that though the state had power toclassify persons for legitimate purposes, yet all those persons released frommilitary service constituted one class and it was not possible to single outsome of them for a differential treatment There was no reasonableclassification between persons released on compassionate grounds andthose released on other grounds. The proviso added to rule 4 was, there­fore, violative of articles 14 and 16.

The rules made by educational institutions regarding admissions andexaminations have also been quashed on the ground of arbitrariness anddiscrimination. The weightage of marks in admissions is given as amatter of governmental policy of protective discrimination to bring atpar less privileged classes of citizens or as an incentive. Such protection,however, has to be in consonance with the object sought to be achievedthereby. In Raj Kumar, 14 the Supreme Court had struck down the rulesframed by the government and followed by the public service commissionin recruiting officers on the ground that the rule that a candidate comingfrom rural area and who had passed sse examination held at villagesor places with 'C' type municipality was to be deemed as a rural candidateand was to be given weightage of 10 per cent in total marks was arbitraryand bad no nexus with the object of selection of candidates having apti­tude to work in rural area. This case has been followed by the BombayHigh Court with regard to admissions to medical colleges. The MedicalColleges of the Government of Maharashtra Rules for Admission(1983-84) provided for addition of marks to give weightage to certaincategories of students for admission to medical colleges in the state. Theseincluded students affected by defence/irrigation project, studentswho were freedom fighters or children of freedom fighters or childrenof regular fighting forces, students adopting family planning measures,students offering services during vacations under the voluntary healthservice scheme, students having done National Cadet Corps (Nee) trainingand students for excellence in sports and cultural activities. TheBombay High Court in Rajashri v. State of MaharashtraP held that the

1a (1984) 3 sec 281; see also I.S. Rukmani v. GoYI. of Tamil Nadu, AIR 1985 SC785.

l' SIDteofMaharashtra v, Raj Kumar, AIR 1982 SC 1301.1. AIR 1985 Bom 31. This case has been followed by another Bench or the same High

Court in Syed Kablruddin v, Dean, Govt, Medtca! Col/ege, Nagpur, AIR 1985Bom. 199. Reference may also be made to Sm"tabell v, Gujarat Hurling Coulfcll.AIR. 1985 Ouj. 81, in which liviDS of Iraco marks to candidata who had appearedin part of thenursin.examination was hel. to be discrlmhtatory,

Vo1. XXI] Administrative Law 253

addition of three marks for the students affected by defence or irrigationproject was wholly discriminatory because the nature of public purposefor which lands were acquired could not furnish a rational ground forclassification. It had no nexus with the medical education or nationalhealth. The weightage for other categories was, however, upheld. TheAndhra Pradesh High Court bas likewise quashed the rules framed by thegovernment providing for reservation of all scats in super specialities inmedical colleges in favour of service personnel excluding all other qualifiedcandidates."

In a few cases, the courts have repelled the contention of arbitrarinessand discrimination. Rule 4 of the Telegraphic Engineering Service (ClassII) Recruitment Rules, 1966 provided that the recruitment to the postof assistant engineer shall be entirely by promotion on the basis of selectionof junior engineers through a qualifying departmental examination. Thedepartmental examination was open only to those junior engineers whowere recruited and absorbed in that grade against the vacancies of a year,ordinarily not less than five years prior to the year of announcementof the said examination. These rules were superseded by 1981 rules whichprovided that normally only one examination, consisting of two partscalled qualifying-cum-competitive examination, would be held for promo­tion. The note to the amended rule 4 further provided that the first twoexaminations were to be competitive for which the eligibility was restrictedto only those officers who had already qualified in the departmental quali­fying examination held before the commencement of the amended rules.In V.I. Thomas v, Union of India,I? the appellant junior engineers belongedto 1973 batch and having completed five years of service, they wereeligible to appear in the departmental qualifying examination under the1966 rules but no such examination was held till the commencement ofthe 1981 rules and, therefore, they could not be allowed to take thequalifying-cum-competitive examination under the 1981 rules. Theappellants, therefore, challenged the 1981 rules as denial of equalityof opportunity in the matter of promotion. The Supreme Court notedthat by 1982, more than 4,000 junior engineers of pre-1973 batches hadbecome eligible to take the examination for about 300 vacancies. The court,therefore, held:

It is a known principle of service jurisprudence that even thoughminimum eligibility criterion is fixed enabling one to take theexamination yet the examination can be confined on a rationalbasis to recruit up to a certain number of years. That constitutesrecognition of long experience and not permitting some iratejunior to score a march. If by 1982, nearly 4,000 Junior Engineersof pre-1973 batches had become eligible for taking competitive

11 s.Sa1l,o,h Kuma, v, Stat' 01AP. AIR. 1985 AP 228.u Alit 198' SC 1055,

254 Annual Survey of Indian Low [1985

examination, the department would be perfectly justified in keep­ing the examination open only to persons who have put in suchlong service and leaving others to wait for the next examination.If for taking examination this aspect introduces classification, it isbased on rational and intelligible differentia which has a nexus tothe object sought to be achieved. IS

The court found that the note to the amended rule 4 was valid as it soughtto ensure some ratio of candidates to the number of vacancies. The court,therefore, did not find anything arbitrary or discriminatory in the note.It may be noted that the nexus established in this case related to thenumber of candidates vis-a-vis the number of vacancies to be filled. If thenumber of vacancies arc large or unlimited, the nexus theory willnot apply to deprive all eligible candidates from being aJIowed to takeup the examination for promotion. This case does not indicate how theinterest of those junior engineers could be protected who had put in verylong experience in their cadre but who could not qualify in the qualifyingdepartmental examination held under the 1966 rules. Moreover, the courthas failed to indicate in precise terms what should be the actual criterionto allow the candidates to appear in the examination keeping in view thenumber of vacancies: Should it be in the ratio of 1:5 or 1:10 or someother ratio?

Ultra 'Vires

Article 371D empowers the President by order to provide for equi­table opportunities, and facilities, inter alia, in the matter of educationfor the people belonging to different parts of the State of Andhra Pradeshhaving regard to the interest of the state as a whole. Under this provision,the President has issued the Andhra Pradesh Educational Institution (Regu­lation of Admissions) Order, 1974, which provides for reservation of 85per cent of the available seats in the educational institutions in the statein favour of local candidates, except in respect of an institution declaredas a state-wide institution. The term 'available seats' has been definedunder the order to mean, in relation to any Course of study, the numberof seats provided in that course for admission at any time after excludingthose reserved for candidates from outside the state. The rules of admis­sion to post-graduate courses (MD) in Ayurveda at the GovernmentAyurvedic College, Hyderabad (which was not a state-wide institution)approved by the government provided that of all the seats, 50 per centshall be reserved for outside candidates. On the basis of the entranceexamination conducted by the college for admission in the academic year1983·84 to the MD Ayurveda course, a candidate was not selectedbecause of reservation of 50 per cent seats for outside candidates. The

;18 [d. at 10S8-59.

VoL xXI] Administrative Law 255

candidate challenged the validity of the rules as ultra vires article 37lD andthe Presidential Order. The court rejected the contention on the ground thatunder the Presidential Order a specific and clear exclusion of the candi­dates from ouside the state had been made and, therefore, it was onlyfrom out of the balance of 50 per cent of seats, after excluding 50 per centfor outside candidates, that the reservation of 85 per cent for local candi­dates was to be worked out. The rules were, therefore, not ultra vires theorder or article 371D. The court further held that reservation of 50 percent seats to outside candidates did not offend article 15(4) as it relates tocaste, viz., scheduled caste, scheduled tribe and backward class.>

Thus of the total seats, 50 per cent were reserved for candidatesoutside the State of Andhra Pradesh and out of the remaining 50 per centseats, 85 per cent were reserved for local candidates. For regulating ad­mission to 15 per cent of the remaining seats, rule 7(9) of the A.P.Regulation of Admission of Students into Medical Colleges/GovernmentDental Colleges Rules, 1983 framed under the A.P. Educational Insti­tutions (Regulation of Admission and Prohibition of Capitation Fee) Act,1983, prescribed four categories of candidates who were eligible foradmission: All local candidates; the candidates who had resided in thestate for ten years; children of parents in the employment of central/stategovernment, public sector corporations, local bodies, universities andother similar quasi-public institutions within the state; and spouses ofthose in the employment of central/state government, public sector under­takings, local bodies, universities and educational institutions recognisedby government, a university or other competent authority and similarother quasi-government institution within the state.. Thus under thesefour categories, residence within the state was the criterion. In State ofA.P. v.. K. Narayan." the question was whether this remaining 15 percent seats were open to all candidates and therefore rule 7(9) was ultravires the Presidential Order or the parent statute. The Division Benchof the Andhra Pradesh High Court, reversing the judgment of the SingleJudge" noted the background and the objective behind the inclusionof article 371D in the Constitution which was to protect the regionalinterests. It was further noted that the central government had powerto fill up 12 seats by nominating candidates from anywhere and thus thenomination could protect the interests of the outsiders. The court,therefore, held that there was nothing bad in rule 7(9) reserving all the15 per cent seats on the basis of residence within the state. The courtheld this despite adverse comments of the Supreme Court in two decisionss-

11 S. Prakash Reddy v, Principal Govt, Ayurvedic College, Hyderabad, AIR 1985 AP110.

20 AIR 1985 AP 343421 K. Narayanan v. State 0/ AP, AIR 1985 AP 149.2t Pradeep Jain v. Union of India, AIR 1984 SC 1420; and Jagdish Saran v. Union of

India, AIR 1980 SC 820.

256 Annual Surrey of Indian Law [1985

against reserving all seats to the total exclusion of candidates from out­side the state. The court, however, took shelter behind the SupremeCourt order in Reita Nirankari v, University of De/hi,23 in which the courtbad observed that the States of Andhra Pradesh and Jammu and Kashmirhad been given special status under the Constitution and the question ofreservation in those states required independent consideration by the court.Such consideration has yet to be given by the Supreme Court. In fairnessto the judges of the High Court, it must be pointed out that they werefully conscious of the unity and integrity of the Nation in matters ofdenial of admission to outsiders and, therefore, they wanted a uniformpolicy on this matter to be framed by the Medical Council of India underthe guidance of the central government.

In some cases, delegated legislation has been tested under article]9(1) (g). Thus, in K. Panduranga v, State of Andhra Pradeslr« in orderto protect the interests of the consumers, in exercise of its powers under theA.P. Catering Establishments (Fixation and Display ofPrices of Foodstuffs)Order, 1978, the government issued various notifications and directions fixingmaximum sale price of specified foodstuffs, requiring the hoteliers to supplyseven hot and fresh specified items between fixed hours, requiring hoteliersto supply scheduled items irrespective of whether they were carryingon business in those items or not and directing the hoteliers to keep theirestablishments open and declaring the closure illegal and liable to penalty.These restrictions imposed under the notifications and order were allegedto be arbitrary and unreasonable under articles 14 and 19(1)(g) and wereultra vires the Essential Commodities Act, 1955 (parent statute). As thefixation of price of specified items had been upheld by the SupremeCourt in Welcome Hotel v, State of A.P.25, that question was not openfor the High Court. The court noted seven items, namely, idly, vada,upma, sada dosa, coffee, tea and meals, which were required to be servedhot and fresh. The degree of hotness required was the degree at which aperson could eat or drink them. With regard to freshness, these items shouldbe prepared just before service. For deciding the degree of hotness and fresh­ness, therefore, there was no need to prescribe any separate guidelines andin the absence of any guidelines, the hoteliers could not claim a fundamentalright to sell stale and uneatable foodstuffs. With respect to thetimings at which foodstuffs were to be sold, it was held by the court thatthe time was prescribed irrespective of the need of the public i na particulararea in which the hotel was located and, therefore, this was an unreasonablerestriction which was to be adhered to subject to the business hours ofthe catering establishments. The court also considered it unreasonableto require the hoteliers to sell all the scheduled items throughout their busi-

.1 AIR 1984 SC 1569••• AIR 1985AP 268: ••• al.o A. GlrIdharilll1 v, Slat, 01 Tamil N.du, AIk 1985

Mad. 234.I' At.. t"3 se 1015.

Vol. XXI] Administrative Law 257

ness hours. With regard to the direction that all hoteliers will have tosell all the seven items irrespective of whether they carried on businessin them or not, the court held that the Essential Commodities Act did notempower the government to compel a person to produce essentialcommodities. It was only when an essential commodity had been pro­duced that powers under that Act could be exercised for storage, transport,disposal, distribution, usc or consumption. Under the delegated power,the state government could not direct the petitioners (hoteliers) to pro­duce any or all those seven items of foodstuffs. But once they producedthem, the government had power to regulate their price, purity, etc. byissuing directions. The court, therefore, held that any law Of directioncompelling a person to carryon a business against his will violated article19(1) (g). This part of the court's decision is in line with the SupremeCourt decision in Excel Wear v. Union of India.26

Dealing in liquor could not be claimed by a person as his fundamen­tal right under article 19(1)(g) and, therefore, the formation of a publicsector corporation exclusively licensed for possession and supply of foreignliquor in wholesale in the state could not be considered as an unreasonablerestriction on that right. With a view to effectuate its abkari policy of1981, rule 3 of the Kerala Abkari Shops (Disposal in Auction) Rulesframed under the Kerala Abkari Act, was amended by the governmentto permit the Kerala State Civil Supplies Corporation Limited to run twoforeign liquor shops in the State of Kerala. In pursuance of anotherpolicy decision of 1984, the Kerala State Beverages (Manufacturing andMarketing) Corporation Ltd. was incorporated with a view to procuringspirit and arrange blending, bottling, sealing and supply of arrack andalso for dealing in the sale of foreign liquor. The rules were amendedaccordingly in 1984. It was, inter alia, contended that the grant ofmonopoly right to public corporation to deal ]0 foreign liquor violatedthe petitioners' right under article 19(1)(g). The court rejected thecontention on the ground that the state had power to monopolise tradein liquor and petitioners did not have any fundamental right to carryon that business as established by numerous decisions of the SupremeCourt. The amendment of the rules in 1984 was, therefore, not in viola­tion of article 19(1)(g).27

Section 28(2)(d) of the Karnataka State Universities Act, 1976 pro­vides that each department of studies shall have a head who may be aprofessor or a reader in the absence of a professor and whose duties andfunctions would be prescribed by the ordinances. If there were morethan one professor or reader, the head is to be appointed according tothe provisions made in the ordinances. In the absence of any professor

•• AlIt 1979 SC 25.27 Mani Senan v. State of Kerala, AIR 1985 Ker. 111; sec also M]s, Doon Apartment

(P) Ltd. v, Union of India, AIR 198$ Del. 333.

258 Annual Survey of Indian Law [1985

or reader, the dean shall work as head of the department. Section 37(j)empowered the making of ordinance for the management of colleges andother institutions founded or maintained by the university. The syndicateof Bangalore University framed ordinances 11.1 to 11.3. Under ordinance11.1, the senior most professor or reader could ordinarily be appointedas the head of the department and the syndicate was empowered to reviewthe appointment and change the head at any time. Ordinance 11.2 consti­tuted a departmental council for each department. In K. Venkatagirigowdav. Bangalore Universityr" it was held by the Karnataka High Court thatsection 28(2)(d) did not empower the syndicate to make ordinance forthe appointment of a head if only one professor or reader was there,It had power to do so only when more than one professor or reader wasthere in a department. Since ordinance 11.1 confers absolute andunguided power on the syndicate to appoint either a professor or a reader,the provision was ultra vires section 28(2)(d). The syndicate couldappoint a reader as head even though a professor was available and thiswas not permitted under the Act. That ordinance did not regulate theduties and functions of the head of department. Likewise, ordinances11.1 and 11.2 did not relate to management of colleges or institutions.The syndicate had no power to constitute departmental councils and there..fore, the ordinances were ultra vires sections 37(j) and 28(2)(d).

Excessivedelegation

Section 28 of the Gold (Control) Act, 1968 provides that no licenseddealer shall, unless authorised by the administrator to do so, carryonbusiness as a money-lender or banker on the security of any article, orornament or both or permit any other person to carryon money-lending,banking or any other business, in the same premises in which he carried onbusiness as such dealer. It was contended in Union of India v. AnnamRamalingamu that section 28 suffered from the vice of excessive delegationand conferred arbitrary power on the administrator without any guidelines.Tulzapurkar J repelled the contention on the ground that the object andthe scheme of the Act provided sufficient guidance for the exercise ofpower by the administrator. The Act was enacted to provide for the con­trol of production, manufacture, supply, use, distribution and possessionof gold in the economic and financial interests of the community. Thevarious restrictions imposed under the Act were to be viewed in the lightof the above objectives. While exercising power, the administrator wasrequired to have regard to the policy and purposes of the Act. The orderof the administrator was subject to the revisional power of the central

28 AIR 1985 Kant. 1.II AIR 1985 SC 1013. The guidelines for exercise of delegated power could he deduced

from the aims and objects of the statute and its provisions: S Kandaswamy Ch~ttiar

v.. State o/TN_IAIR 1985 SC 257.

Vol. XXI] Administrative Law 259

government. Section 28't therefore, did not confer uncanahsed power onthe administrator. While considering the nature of the restriction, Tulza­purkar J observed:

It docs not impose any blanket or absolute prohibition upon adealer from carrying on money-lending, banking or any otherbusiness in the same premises in which he carries on business as adealer but he is prevented only from carrying on business asmoney-lender or banker on the security of any article, ornamentor both unless authorised by the Administrator. Even the restric­tion in the case of a third person in carrying on business as amoney-lender, banker or any other business in the same premisesis not absolute inasmuch as the Administrator can authorise thethird person to carryon the business in the licensed premises ofthe dealer and while implementing such limited restrictions orgranting relief against the same he will be guided by the policyand purposes of the Act and by the prime consideration thatcircumvention of the other provisions of the Act shall not bepermitted. Having regard to this position which obtains in thecase sec. 28 cannot be struck down on the ground of excessivedelegation of legislative power and its validity has to be upheld."

Does the power to 'regulate' include the power to 'prohibit'? Thisquestion was answered in the affirmative by the Supreme Court inNarendra Kumar v, Union of India" and that view has been reiterated byA.P. Sen J in K. Ramanathan v, State ofTamil Nadu.32 With a view toovercoming the problem of serious shortfall in the procurement ofpaddy in the State of Tamil Nadu due to drought in certain areas,the government introduced a monopoly procurement scheme toprocure maximum stock of paddy banning purchases by traders.For this purpose: clause 3(lA) of the Tamil Nadu Paddy (Restriction onMovement) Order, 1982 issued under section 3 of the Essential Commodi­ties Act, 1955 read with the Government of India, Ministry of Agriculture(Department of Food) Order, GSR 800 dated June 9, 1978 providedthat no person shall transport, move or otherwise carry or prepare orattempt to transport, move or otherwise carry or aid or abet in the trans­port, movement or otherwise carrying of paddy outside some specifiedareas in the state. It was contended that the prohibition imposed underclause 3(lA) was not permitted under section 3(2) (d) of the EssentialCommodities Act under which the delegated power was exercised by thestate government since that provision empowered only the regulation ofan essential commodity by the government. The clause was, therefore, in

30 Id. at 1015; see also Pyar« Lal Y. State ofPunjab, AIR 1985 P & H 37.31 AIR 1960 SC 430.u AIR 1985 SC 660,

260 Annual Survey of Indian Law (1985

excess of the delegated power conferred under the Act and the centralgovernment's order. A.P. Sen J held that the state government had exercis­ed the power not under the specific heads enumerated under section 3(2)(d) but under the general power conferred under section 3(1) which pro­vides for regulation as well as prohibition, supply and distribution ofessential commodities and trade and commerce therein. Further, the word'regulate' did not have any rigid meaning so as to exclude 'prohibition'in all cases.33

The judge further observed that it was not unreasonable for thegovernment to introduce the scheme of compulsory procurement with aview to building up the buffer stock for distribution through the publicdistribution system. Clause 3 (lA), therefore, did not suffer from the viceof excessive delegation.

Procedural requirement-publication

If a statutory provision requires the publication of any notice in alocal newspaper for the benefit of those who are likely to be affected there­by but the language of the notice is not prescribed, it is reasonable toexpect that the language of the notice would be the local language in thelocal newspaper. In State of Orissa v, Sridhar Kumar P: section 417..A ofthe Orissa Municipal Act, 1950 empowered the state government to issuenotification in respect of any specified area other than a municipalitydeclaring that it was necessary to make administrative provision for all orany of the purposes of the Act for that area. It required that the stategovernment shall cause to be published in the official gazette and also atleast in one newspaper circulating in the area a proclamation announcing theintention of the government to issue such notification and inviting all personsresiding within such area to submit their objections, if any, in writing tothe district magistrate within one month from the date of publication of theproclamation in the official gazette. The section required the districtmagistrate to send the objections received by him along with his owncomments to the government which is required to take into accountthose objections before the publication of notification. The governmentpublished a proclamation in the gazette in English in respect of certainareas under section 417-A without specifying any provisions of the Actintended for administrative provision in the proposed areas. The procla­mation was also published in Enghsh in a local Oriya newspaper, theDaily Samaj. After the publication of the notification, the residents of theconcerned areas challenged its validity on the grounds that the proclama­tion was vague as it did not indicate as to which of the provisions of theAct were intended for administrative provision and that the proclamation

83 See id. at 668; see also Lohia Machines Ltd. v, Union of India, AIR 198' SC421-., AIR 1985 SC 1411; see also Dalsukhbhai Pitambardas & Co. v, AgriclI!tllrQ/ Produce

Market Committee, AIR 1985 Gl.lj 38.

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was in the Oriya language and, therefore, they wereprevented from makingeffectiverepresentation against the proposed notification. The SupremeCourt accepted both the contentions of the respondents. R.S. Pathak Jheld that the proclamation was vague as it did not indicate which of theprovisions of the Act were intended for administrative provision and inthe absence of such precision and clarity, the residents could not properlyavail of their right of representation against the proposed notification.The judge further held that having regard to the object with which a pro­clamation was required to be published in a local newspaper, the publica­tion must have been in the local language of the area in which the news­paper circulated since the legislature attached great importance to theviews of the residents who were to be affected by the proposed notifica­tion. Thus not only the local newspaper should be in the local languagebut the contents of the proclamation should also be in the same language.The decision marks a distinct advance over several other decisions in whichthe requirement of publication and medium of publication have so far beenconsidered as only directory provisions particularly where the matterrelated to local bodies. Likewise, if a statute requires individual serviceof notice for acquisition of land on all owners or persons interested andthe publication of notice in the official gazette at least 30 days in advanceand pasting of notice at some conspicuous place in the locality, non­compliance would invalidate the acquisition proceedings."

III PROMISSORY ESTOPPEL

Bhagwati CJ has rehabilitated his decision in Moti/al31 and discardedKailasam J's views in Jit RamF' The law of promissory estoppel hasswung in favour of Motilal after the Supreme Court decision in Union ofIndia v. Godfrey Phi/ips India Ltd. 38 This case was decided by a three­judge Bench. It must, however, be mentioned that only Bhagwati CJ f

discussed the question of promissory estoppel while the other twojudges, R.S. Pathak and A.N. Sen, JJ simply "agreed" with the views ex­pressed by the chief justice. In this case, the respondents manufacturedcigarettes and used three packings for selling their cigarettes to wholesaledealers at the factory gate-initial packing in the paper/cardboard packetsof 10 and 20; in the second packing, the packets were packed againtogether in paper/cardboard cartons/outers; and finally, the cartons/outerswere placed in corrugated fibreboard containers. The question was whetherthe cost of final packing in corrugated fibreboard containers could be inclu-

81 Urban Improvement Trust v; Balveer Singh, AIR 1985 Raj. 71; see also Banwart Lal v;Financial Commissioner (Taxation), Punjab. AIR 1985 P & H 61.

38 Moti/al Padampat Sugar Mills Co. Ltd. v. State of UP, AIR 1979 SC 621.•, Jlt Ram Shiv Kumar v, State of Haryana, AIR 1980 SC 1285. For a study of

these cases. see MP Jain. The Evolving Indian Administrative Law 135..63 (1983).88 Supra note 4.

262 Annual Survey of Indian Law [1983

ded in the value of cigarettes for the purpose of assessment of excise dutyunder section 4(4) (d)(i) read with the explanation to the Central Excises andSalt Act, 1944. It is to be mentioned that on the representation ofcigarettemanufacturers' association, the under-secretary, central board of excise andcustoms by his letter dated May 24, 1976 had intimated the associationthat "instructions have been issued to the collector of central excise thatthe cost of corrugated fibreboard containers in question docs not form partof the value of cigarettes for the purposes of excise duty." Relying on thatcommunication, the respondents did not recover from the wholesale dealersto whom they sold cigarettes any amount by way of excise duty attribu­table to the cost of such containers. On November 2, 1982, another com­munication was sent by the board to the collector in which it was point­ed out that the earlier advice was inconsistent with the existing legal posi­tion. The question, therefore, was whether the respondents were Hable topay excise duty on the sale of cigarettes between May 24, 1976 and Nove­mber 2 t 1982 and thereafter on the basis that the cost of containers wasincludible in the value of goods. One of the contentions of the respondentwas that the government was bound by its representation contained in theletter dated May 24:t 1976 on the ground of promissory estoppel. Thechief justice held that the reliance of the respondents 011 the promissoryestoppel was well founded."

This equitable doctrine has been evolved to mitigate the rigours oflaw and to prevent injustice. It was observed by the chief justice that thedecision in Motilal/" "marks a significant development in the law relatingto the doctrine of promissory estoppel" and that it could now he used notonly as a shield but also as a sword. The doctrine was not based on anycontract" and therefore even when a contract was not in compliance witharticle 299, the government could stiJI be held bound on the ground ofpromissory estoppel. For the application of this doctrine, no distinctioncould be made between a private individual and public body.

The application of the doctrine of promissory estoppel against thegovernment in exercise of their governmental, public or executive functionscould not be defeated on the plea of executive necessity or freedom offuture executive action. To this extent, the view expressed by Kailasam Jin Jlt Ram,42 which was contrary to Bhagwati J's views in Motilal,43 wasdiscarded by the chief justice:

We find it difficult to understand how a Bench of two Judges in

3t See id. at 383.4,0 Supra Dote 36.oil Reference may be made to Gujarat State Financial Corporation v. Lotus Hotels PYJ.

Ltd, AIR 1983 SC 848, in which even a contract was enforced on the ground ofpromissory estoppel but this case has not been noted in the present case.

'" Supra note 37." Supra note 36.

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Jit Ram case could possibly overturn or disagree with what wassaid by another Bench of two Judges in Motilal Sugar Mills case.If the Bench of two Judges in Jit Ram case found themselvesunable to agree with the law laid down in Motilal Sugar Millscase, they could have referred Jit Ram case to a larger Bench, butwe do not think it was right on their part to express their disagree­ment with the enunciation of the law by a coordinate Bench ofthe same Court in Motilal Sugar Mills. We have carefully consi­dered both the decisions in Motilal Sugar Mills case and Jit Ramcase and we are clearly of the view that what has been laid downin Motilal Sugar Mills case represents the correct law in regard tothe doctrine of promissory estoppel and we express our disagree­ment with the observations in Jit Ram case to the extent that theyconflict with the statement of the law in Motilal Sugar Mills caseand introduce reservations cutting down the full width and ampli­tude of the propositions of law laid down in that case. 44

The chief justice further held that the doctrine was not of universalapplication. It had no application against the legislature in exercise oflegislative functions. The government or public authority could not bedebarred from exercising a statutory prohibition. A promise or representa­tion could not be enforced against law or which was outside the authorityor power of the government officer or of the public authority to make.Moreover, the doctrine being equitable, it must yield when the equity sorequired. With reference to the facts of the present case, the chief justiceheld that the representation contained in the letter of May 24, 1976 wasacted upon by the respondents and such representation was within thepower of the board and the central government under rule 8 of the CentralExcise Rules 1944 under which exemption from duty in specialcases could be granted. The board and the central government were,therefore, clearly bound to exclude the cost of containers from the valueof goods for imposing excise duty from May 24, 1976 to November 2,1982 on the ground of promissory estoppel. The cost of containers wasotherwise held to be includible in the cost of goods for the assessment ofexcise duty except for the above period.

R.S. Pathak and A.N. Sen, JJ merely agreed with the chief justice onthe question of promissory estoppel but they did not agree with him on thequestion of inclusion of cost of containers in the cost of goods for assess­ment of excise duty. Both held that the cost of containers could not beincluded in the cost of goods. In view of this, it is submitted, therewas absolutely no need for these judges to express any opinion onthe question of promissory estoppel. If the respondents were notliable for payment of excise duty in respect of the cost of containers

" Supra note 4 at 387.

264 Annual Survey of Indian Law [1985

under the rules, where was the question of their liability for the periodfrom May 24, 1976 to November 2, 1982? Hence their "agreement" withthe chief justice on the question of promissory estoppel could not be con­sidered anything more then obiter. In fact, there was no need for thesejudges to express any opinion, not even an 'agree' opinion, on the questionof promissory estoppel since their decision on the main question wasenough to dispose of the case. Thus only the chief justice could be consi­dered to have discarded lit Ram and upheld his own views in Motilal, Infairness, it was not proper for the chief justice to do so. Since Motilal washis decision and it had not found favour with the court in lit Ram, chiefjustice should have constituted a larger Bench of the court to decide thatquestion. In any case, as the legal position stands today, lit Ram couldnot be considered to have been overruled by Godfrey Philips India Ltd.'ill)It is necessary to point out that the conflicting opinions in Motila/ and litRam have already created utter confusion in the mind of High Courtsjudgesw and that confusion has further been aggravated by Godfrey PhilipsIndia Ltd. There is, therefore, an urgent need to constitute a ConstitutionBench at the earliest opportunity to review all these decisions and clarifythe law on promissory estoppel.

Venkataramiah J has held in D.R. Kohli v. Atul Products Ltd:j 7 thatthe doctrine of promissory estoppel applied only when a representation/promise had been relied upon and a person had suffered a detriment byacting upon the same. If a person merely took benefit of the promise/representation without any detriment, the government could not be estop-ped from withdrawing the benefit. In this case, the benefit related toexemption from payment of excise duty. By the Finance Act, 1961, item14 D was added with effect from March 1, 1961 in the first schedule to theCentral Excises and Salt Act which read: Synthetic organic dyestuffs(including pigment dyestuffs) and synthetic organic derivatives used in anydyeing process. After that addition, the respondent became liable to payexcise duty on two of its products, viz., cibagenes and cibanogenes. Later On

November 23, 1961, the central government issued a notification under rule8(1) of the Central Excise Rules exempting four types of dyes falling underitem 14D from the "whole of the excise duty leviable thereon if and only ifsuch dyes are manufactured from any other dye on which excise duty orcountervailing customs duty has already been paid." On the basis of thisnotification, the respondent wrote a letter dated December 22, 1961 to thesuperintendent of excise proposing to pay excise duty on fast colour bases(one of the four exempted dyes) purchased by it from local manufacturerswho had manufactured the same prior to March 1, 1961, when that itemwas not subject to excise duty. The superintendent by his letter datedJanuary 4/6, 1962 agreed to accept excise duty on fast colour bases purcha-

U Supra note 4.USee SN Singh, "Administrative Law", XX ASIL 499 at 537 (1984).• 7 AIR 1985 SC 537.

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sed by the respondent from the local manufacturers after March I, 1961.The result was that the respondent got exemption from payment of exciseduty on the final products manufactured by it by using such basic dye(fast colour bases) by voluntarily paying excise duty on it which was muchless as compared to the duty it would have paid on its final products. Thedepartment later on realised its mistake and issued notices on the respon­dent for the recovery of deficit amount on the final products manufacturedby the respondent on the ground that such products were not exempt frompayment of excise duty merely on the basis that the duty was voluntarilypaid on the basic dyes which were in stock or purchased from the marketas on February 28, 1961 when such payment of duty on the stock of basicdye was not warranted. TIle respondent relied upon the letter of thesuperintendent dated January 4/6, 1962 and contended that the depart­ment was bound by that letter on the ground of promissory estoppel. Thecourt refused to apply estoppel on the ground that the respondent had notdone anything prejudicial to its interest by relying on the letter. It hadacted only after the exemption notification was .issued. It was not its casethat but for the exemption it may not have manufactured the dyes. Thedepartment was not expected to advise the respondent in such a matter.It may be stated that even if the letter could be considered to be a repre­sentation, the principle of promissory estoppel did not apply against thedepartment in this case because of t\VO reasons: firstly, the letter (or theaction of not levying duty on the final products of the respondent) wascontrary to the legal provisions, viz., notification dated November 23, 1961and secondly, the advice contained in the letter was not within the powersof the superintendent. The advice being ultra vires the powers of thesuperintendent, the government was not bound by the same. It may,however, be noted that the respondent did not plead before the court thatthe final products manufactured by it .were sold to other persons withoutrealising enhanced amount of excise duty relying on the letter of thesuperintendent. After all, the burden of excise duty, being an indirecttax) falls only on the purchaser and not on the manufacturer, why shouldthe department not be held bound by the representation on the basis ofwhich the respondent did not recover the amount from the purchasers?

A recent tendency of the government noticed in several cases is thatafter a person has acted upon a promise/representation made by the govern­ment, there is a sudden change in the governmental policy. The doctrineof promissory estoppel has not been applied consistently by the HighCourts in such cases and they have given conflicting decisions in almostsimilar fact-situations and legal provisions." These conflicting decisionshave resulted because of confusion created by Motilal'" and lit Ram. 50 The

48 See SN Singh, "Administrative Law", XIX ASIL 482 at 513 (1983) and XX ASILsupra note 46 at 537, 540.

•• Supra note 36.li 0 Supra note 37.

26b Annual Survey of Indian Law [1985

conflicting approach of the High Courts is found in two cases reportedthis year. In A.K.. Thangadurai v. D.F.O., Madurai,61 the petitioners werelessees of forest land from the government for cardamom cultivation. Theyapplied for the renewal of their leases, paid renewal fees and premium asdemanded; they were in possession of the leasehold lands and had incurredsubstantial expenditure for improving the lands. Long thereafter, thegovernment issued certain orders adopting the policy of granting forestleases of two hectares or less for cardamom cultivation only to small far­mers, landless persons and tribals depending for their livelihood on suchcultivation alone. As a result of this policy decision, the renewal of leasesto the petitioners was refused. The Madras High Court, relying onLotus Hotels Pvt. Ltd.,52 held that the doctrine of promissory estoppelwas applicable in this case for those petitioners who had paid full renewalfees and the premium long before the issue of the impugned orders. Thecourt further held that those who had not paid the full amounts were notentitled to invoke the doctrine of promissory estoppel because it was onlywhen full amounts were paid that the renewal could readily and reasonablybe expected by them and who had continued in possession of the landson that basis.

The doctrine of promissory estoppel, however, was not applied by Bala...krishna Menon J in Jacob Philip v. Union of India,53 on the ground ofchange in governmental policy of procurement and distribution of cementand also because of new statutory orders issued by the government inpursuance of the said policy. In this case, the petitioners were givenpermits for the purchase of 200 bags of cement on controlled rates underthe Kerala Cement Distribution (Licensing and Regulation) Order, 1974and the petitioners paid full price for the cement. The licensing order waslater on amended and the permits issued to the petitioners were cancelledbefore they could get the cement. The cancellation was done because theamended order specifically provided that levy cement was not to be given,inter alia, for the construction of cinema houses, hotels, banks, restaurants,commercial and multi-storeyed buildings. The levy cement was to beallotted only for priority sector and weaker sections to which the petitionersdid not belong. The court held that estoppel did not apply against thestatutory orders.

With regard to educational institutions, estoppel was applied inSwapna Rani v, Utkal University," in which the petitioner was admitted toB.A. course of the university on the basis of college leaving certificate and

nAIR 1985 Mad 104; see also Subha3h Chandra v. Secretary. DDA. AIR 1985 Del.466.

Gi Supra note 41.63 AIR 1985 Ker. 255.ft' AIR 1985Ori. 37. See. however, Pradlp v. Gujarat University, AIR 1985 Guj~ 99,

where the doctrine of estoppel was not applied in case of a wrong admissionwhich was later 00 cancelled.

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provisional certificate issued by the university indicating that she had passedher intermediate examination in arts. Subsequently it was noticed that shehad wrongly been admitted as she had not passed the intermediate exami­nation and, therefore, she was asked to pass intermediate examinationbefore she was allowed to take up B.A. examination. Applying the doctrineof promissory estoppel, the court directed the university to permit thepetitioner to take up her B.A. examination. This rule was, however, notapplied in respect of admission of a candidate to B.Sc. (Ag.) course whichwas not made on merits. The court was much disturbed by the fact thatmore meritorious candidates had been ignored and the petitioners, whowere less meritorious, were admitted over and above the prescribed numberof candidates." The court also refused to issue directions to the universityto increase the number of seats as was done by the Supreme Court inPunjab Engineering Co/lege, Chandigarh v. Sanjay Gulati,5G in which "spotadmissions" were the subject of adverse comments by the court. Thecourt also refused to permit the wrongly admitted candidates to take uptheir examination.

IV NATURAL JUSTICE

Bias

A minister is not disabled from exercising his statutory powers to issuedirections for fare hike for transportation under section 43 of the MotorVehicles Act, 1939 merely because the beneficiaries of the fare hike wouldbe government transport undertakings. In Akhil Bharatiya Grahak Pancha­yat (Bombay Branch) v, State of MaharashtraF' on the proposals receivedby the state government from many government transport undertakingsincluding the Maharashtra State Road Transport Corporation (MSRTC),a statutory body and the BEST, draft notifications were issued by thestate government proposing increase in fares and inviting objectionsagainst the proposal. The concerned minister overruled the objectionsand thereafter final notifications were issued increasing the fares. It wascontended by the petitioner that the minister could not hear and decidethe matter as he had interest in the government transport undertakingswhich were to be benefited by such increase. Negativing the contention, thecourt held that MSRTC, though an agency of the state, was an indepen­dent statutory corporation and BEST and other transport undertakings

Ii Achchey La/ v. Vice-Chancellor, Gorakhpur University, AIR 1985 All. 1.61 AIR 1983 SC 580; see SN Singh, supra note 48 at 548; see also Dasaratht v. State

ofAP, AIR 1985 AP 136 (no estoppel for abolition of a government post of poetlaureate); Nava Bharat Ferro Alloys Ltd. v. A.P.S.E. Board, AIR 1985 AP 299 (noestoppel against the recovery of revised higher rates for electricity after the expiryof the agreed period of supply at concessional rate).

67 AIR 1985 Bom. 14; sec also MIs. Krishna Bus Service P. Ltd. v. State ofHaryana;AIR 1985 SC 1651; Mls. Laxmi Motor Service v, RTA, Goa, AIR 1985 Born. 4J6~ 1

268 Annual Survey ofIndian Law [1985

were owned by local authorities. The minister was not interested in thempersonally. The Act enjoined a duty upon the state government to issuedirections under section 43. Under the business rules, the minister of theconcerned department was obliged to hear and decide the matter on behalfof the state government The court in this case rightly did not allow thestatutory provisions to be frustrated on the ground of bias which, if at all,was extremely remote."

The rule against bias has to give way to executive necessity.w In aKerala case60 the facts were: On June 12, 1984, 12 judges of the KeralaHigh Court participated in a meeting to select candidates for appointmentof district judges. A lady candidate, who was not recommended forappointment, challenged the selection in the Kerala High Court. Thematter came up for hearing before D.L. Bhat and Bhaskaran, JJ who hadparticipated in the judges' meeting.. The petitioner contended that thejudges who had participated in the meeting should not hear the petitionsince justice should not only be done, but must be seen to be done. Further,the judges who were members of the committee, which rejected the peti­tioner, could not remain unbiased if they were to decide the writ petitionchallenging the said selection. The petitioner, however, did not attributepersonal bias against the judges. The court noted that in the past,administrative decisions of the Kerala High Court were successfullychallenged before the same High Court under article 226. It was, there­fore, held:

The plea therefore that a participation of the Judges on theadministrative side disqualifies them from hearing the matter onthe judicial side cannot be accepted. It has also to be noted thatthe recommendation under Art. 233 is not that of any Judge ofthe High Court; but of a superior Court, the collective constitu­tional entity, the High Court. The High Court cannot be said tobe prejudiced simply because it did not recommend a person to beappointed as a District Judge. When the High Court makes therecommendation and it is challenged before the same Court, theJudges of that Court are bound to hear the petition "ex necessi­tate" - a region where the principle of natural justice, in anycase, have to yield. Moreover, the petitioner herself chose theforum and filed the writ petition in the High Court. Having doneso, it is not open to her to raise any preliminary objection,"

51 See Kondala Roo v. Andhra Pradesh SRT Corporation) AIR 1961 SC 82; TO Mudaliarv, Stat~ o/TNj AIR 1973 SC 974.

it J. Mohapatra &: Co. v. State of Orlssa, AIR 1984 SC 1572; SN Singh, supra note 48at 526_ For a detailed discussion on this subject, see HWR Wade, AdministrativeLaw 426 (5th ed., 1982); SA de Smith, Judicial Review 0.( Administrative Action 276(4th ed., 1980).

60 Mary Teresa Dias v, Hon'ble Acting Chief Justice, AIR 1985 Ker. 245.01 [d. at 250.

Vol. XXI]

Enquiry and bearing

Administrative Law 269

D.A. Desai J's humanitarian justice has loomed large in most of theservice disputes decided by the Supreme Court. In service matters, theSupreme Court has not taken termination orders lightly on their facevalue. The judges have pierced the veil of termination orders to find outthe real purpose and effect: whether the termination was simpliciter,whether it had the effect of casting a stigma and whether it resulted in thedeprivation of livelihood of a low-paid employee. If the service of anemployee is terminated on the ground that his services were no longerrequired (termination simpliciter as envisaged under the contract ofservice), the court has enquired whether the post had been abolished orjunior employees bad been retained or inconvenient persons had beenthrown out in the garb of being surplus. If a proper enquiry into thecharges of misconduct or indiscipline has not been held in accordance withthe principles of natural justice, the court has itself looked into theevidence on record and other materials which led to the passing of thetermination order. If the termination of service was not found to besimpliciter and it had serious adverse consequences, the court has invari­ably insisted on the observance of the principles of natural justice. Thus,holding of a fair enquiry and termination for good reasons have been heldto justify termination order.

In K.C. Joshi v. Union of India,6z the appellant was an active memberof the trade union. On the successful completion of the probation periodof six months in his service as a store keeper, he was continued throughan order "on regular basis until further orders. ,. Subsequently, his serviceswere terminated by payment of one month's pay in lieu of notice. Thestand taken by the employer before the High Court was that the appellant'sservices were terminated on the ground of unsatisfactory work but noenquiry was held before the passing of the impugned termination order.The Supreme Court on a perusal of several communications containingappreciation of the appellant's work came to the conclusion that all of asudden, the appellant's work did not become unsatisfactory. The chargehad been cooked up to do away with the service of an active trade unionworker but the principles of natural justice had not been followed beforedoing so. Such punitive action could not be taken without an enquiryin accordance with the rules of natural justice. Desai J accordingly heldthe termination order invalid. Likewise, the termination of service forloss of confidence without holding an enquiry was held to be in violationof the principles of natural justice. Ranganath Misra J in Chandu La/ v.P.A. W·. Airways Inc. s3 held that loss of confidence in an employee pointed

It AIR 1983 SC 1046; see also Ani! Kumar v. Presiding Officer, AIR 1985 SC 11214Show cause notice is also necessary for imposing the penalty of forfeiture of pastservice: Shiv Shanker v. Union of India, AIR 1985 SC 514.

61 AIR 1985 SC 1128.

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out an adverse facet In his character since the allegation meant that he hadfailed to live up to the expected standard of conduct which led to loss ofconfidence. It amounted to dereliction of duty and it cast a stigma andhence enquiry was mandatory. In the absence of enquiry the same wasquashed. However, as there was loss of confidence in the employee, thecourt granted compensation instead of reinstatement.

In Murari Mohan v. Secretary, Govt, of India,84. the appellant wascompulsorily retired. The venue of enquiry was suddenly changed with theresult that the appellant could not produce his witnesses there. He hadalso not been given opportunity of examining records used against him.The court held that the enquiry was a sham and in violation of rules ofnatural justice and quashed the order.

The application of the principles of natural justice has expressly beenexcluded in three situations of dismissal, removal or reduction in rank ofa civil servant under the second proviso to article 311(2): (a) Where theaction is based on the ground of conduct which had led to conviction ona criminal charge; (b) when the disciplinary authority is "satisfied for somereason, to be recorded in writing, it is not reasonably practicable tohold such enquiry"; and (c) in the interest of the security of state. 15 InShankar Doss v. Union of Indiat' the Supreme Court held that when anemployee was given the benefit of the Probation of Offenders Act, 1958,for having committed the crime under most compelling circumstances, itwas not fair, just and reasonable to dismiss him under clause (a) above.For the purpose of clause (b), no doubt the decision of the disciplinaryauthority as to whether it was reasonably practicable to hold the enquiryhad been made final, but the powers of courts are not completely ousted.

In Workmen, Hindustan Steel Ltd. v. Hindustan Steel Ltd."? a workmanwas dismissed from service by the Hindustan Steel Ltd. without holding anenquiry and hearing under the standing order of the company which em­powered dismissal without enquiry and hearing if the general manager wassatisfied for reasons to be recorded in writing that it was inexpedient oragainst the interests ofsecurity to continue to employ the workman. Thecourt held that this provision did not enjoin the general manager to recordreasons for dispensing with the enquiry but only for the purpose of satisfy­ing himself as to why it was inexpedient or against the interest of the secu-

It AIR 1985 SC 931; see also Gaur; Shankar v, State of Orissa, AIR 1985 Ori. 30.II The statutory and non-statutory organisations have made similar provisions in their ..

regulations, bye-Jaws, standing orders, etc. See rule 19 or the Central Civil Services(Classification, Control and Appeal) Rules, 1965; rule 14 of the Railway Servants(Discipline and Appeal) Rules, 1968 and rule, 37 of the Central Industrial SecurityForce Rules, 1969. The validity of terminations under these rule was decided bythe Supreme Court in Tulsiram Patel, supra note 3, which has been discussedbelow.

IS AIR 1985 SC 772.1'1 Supra note 9.

Vol. XXI] Administrative Law 271

rity to continue to employ the workman. The power was arbitrary,uncanalised and drastic. If enquiry is dispensed with, the court must besatisfied that the holding of enquiry would be counter-productive or itmight cause irreparable and irreversible damage. The court found nojustification for dispensing with the enquiry.

These cases leave no scope for doubt about the anxiety of the apex courtto protect the interest of the employees by insisting upon the observanceof tbe rules of natural justice. Tulsiram Patel'" has, however, changed theentire complexion of the law of natural justice. This case was referred toa Constitution Bench of five judges in view of conflicting observationsmade by two three-judges Benches in Gopalakrishna Naidut" and Challap­pan70 respectively. In Gopa/ Krishna Naidu, it was held that if the servicesof a civil servant were terminated, or he was dismissed or reduced in rankunder any of the three clauses to the proviso (now second proviso) to article311(2), the disciplinary authority need not hear the civil servant and theorder passed would be ex parte, on the basis of facts which might be placedbefore him by the department. In Challppan, however, the court interpretedthe provision of rule 14 of the Railway Servants Rules [which is almostsimilar to the three clauses to second proviso of article 311(2)] without refe­rence to article 311(2) and its provisos. The court held that even if a railwayemployee had been convicted of an offence, he could not be dismissedfrom service on that ground without hearing him on the question of thenature of punishment proposed to be imposed on him though no elaborateenquiry was necessary to establish the charge as contemplated by article311(2). It is significant to note that the court refrained from expressingany opinion on the issue whether the dismissal, etc. of a person under clause(a) of second proviso to article 311(2) completely dispensed with the hold­in of an enquiry since that case had not come before the court under article311(2).

In Tulsiram Patel, a number of appeals, writ petitions and cases trans­ferredfrom various High Courts were disposed of. In all of them, emplyeeswere dismissed or removed from service without holding any enquiry underrules similar to clause (a) or (b) of second proviso to article 311(2). It was,inter alia, contended by the civil servants that article 311 was subject toarticle 14 which implied the principles of natural justice. A show cause noticeasking the explanation of the civil servants on the charges and on thequestion of proposed penalty was required under article 14 and absenceof such notice rendered the dismissal, etc. invalid. It was further contendedthat even if an enquiry was dispensed with under the second proviso toarticle 311(2), an opportunity was still required to be given to the civilservant to make representation on the quantum of penalty. Madon J after

S~ Supra note 3.Ii M. Gopalkrishna Naidu v. State 01 MP, AIR 1968 SC 240.70 Divlsional Personnel Officrr v. TR Challappan, AIR 1975 SC 2216.

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analysing all the major cases decided by the court under article 14, speak..ing for the majority, observed:

[Vjiolation of a rule of natural justice results in arbitrarinesswhich is the same as discrimination; where discrimination is theresult of State action, it is a violation of Article 14: therefore, aviolation of a principle of natural justice by a State action is aviolation of Article 14. Article 14, however, is not the sole repo­srtory of the principles of natural justice."

The judge outlined the varIOUS facets of fair heanng In cases ofdismissals but pointed out that the principles of natural justice are notof universal application and could be excluded expressly or by necessaryimplication. The judge observed:

This principle of natural justice having been expressly excludedby a Constitutional provision, namely, the second proviso toclause (2) of Article 311, there is no scope for reintroducing it bya side-door to provide once again the same inquiry which theConstitutional provision has expressly prohibited. Where aclause of the second proviso is applied on an extreneous groundor a ground having no relation to the situation envisaged in thatclause, the action in so applying it would be mala fide, and, there­fore, void. In such a case the invalidating factor may be refer­able to Article 14. This is, however, the only scope which Article14 can have in relation to the second proviso, but to hold thatonce the second proviso is properly applied and clause (2) of Article311 excluded, Article 14 will step in to take the place of clause (2)would be to nullify the effect of the opening words of the secondproviso and thus frustrate the intention of the makers of theConstitution. The second proviso is based on public policy andis in public interest and for public good ... 72

Madon J further held that no law required a hearing on the proposedpenalty under second proviso to article 311(2).73 Discarding Challappan'sapproach, the majority held that rule 14 c f the Railway Servants Rulescould not be considered in isolation and apart from the second proviso toarticle 311(2). No rules or legislation made under article 309 couldimpinge upon the pleasure of the President or Governor under article 310(1).Likewise, they could not restrict the safeguards provided by clauses (1)and (2) of article 311. Similarly they could not restrict the operation ofthree exclusionary clauses covered under the second proviso.

71 Supra note 3 at 1460.» u. at 1462-63.7' For this view, the court referred to ACe Ltd. v. TC Shrivastava, AIR 1984 SC 1227;

see SN Singh, supra note 46 at 522.

Vol. XXI] Administrative Law 273

For this VIew, the court drew analogy from the ex parte orders of thecourts, which are passed without notice or hearing the other party. Thecourt observed that such orders are passed by application of mind whichwould be done by the disciplinary authority also if it dismisses a civilservant under the second proviso to article 311(2). This analogy of thecourt does not seem to be reasonable and needless confusion has beencreated by it. A court passes an ex parte order either as an interimmeasure to be confirmed after hearing the other party or when the partyfails to defend itself after notice. In case of the interim ex parte order,the party is heard at a subsequent stage. In case the party does not turnup after notice, it is presumed that he is not interested and therefore, thecourt has to decide the case. However, when a disciplinary authoritydismisses a civil servant under any of the clauses of second proviso, theorder will neither be interim nor the civil servant win get an opportunityto defend himself. How then arc court's ex parte orders comparable withan order passed under the second proviso?

The majority no doubt completely negatived the requirement of hearingunder second proviso but suggested two safeguards against arbitrary orillegal exercise of power. First was the departmental appeal permittedunder the rules. It should be noted that no appeal could be preferred whenthe order was passed on the satisfaction of the President or the Governor,as the case might be, under clause (c) of second proviso. Moreover, whena person had no opportunity of any kind before the disciplinary authorityto prove his innocence or plead for lesser punishment, what purpose wouldactually be served by filing an appeal against the dismissal order? Howeffective such appeal would be? The second safeguard was judicial reviewof the impugned order on various grounds, such as arbitrariness, grossdisproportion between the offence and penalty of dismissal and mala fideexercise of power. On this aspect, the court in fact noted two recent dec­isions: Shankar Dass" in which the penalty of dismissal was consideredto be harsh and reinstatement was ordered and Arjun Chaubey.": in whichthe action of dismissal was considered to be vitiated on the ground of per­sonal bias. The dissenting view of Thakkar J does not contain any detailedreasons to accept Challappan's approach as correct.

Tulsiram Patel halts the onward march of the law of fairness andnatural justuce which had enjoyed almost an unhindered growth a-nddevelopment for last over two decades. This case also strikes a blow toarticle 14 which guarantees rule of law to all persons in this country. Onehas to anxiously wait for a dynamic Bench of the highest court in future toreverse the impact of this decision unless the same is done by Parliament.After all, the civil servants, who enjoy constitutional safeguards in their

74. Supra note 66.71 Arjun Chaubey v. (Inion of India, AJR 1984 SC 1356; se~ SN Singh, supra note 46

at 5,5,

274 Annual Surrey of Indian La\A,' [J98S

service matters, cannot be placed in a situation worse than other employeeswhich is the position under Tulsiram Patel.

The principles of natural justice have been held applicable in manyother situations also. An order of demolition of a structure has a veryadverse effect on its owner and occupier and therefore, before demolition,hearing should be given to the owner and occupier." No hearing, ishowever, required for demolition of a wall or building which is in immin­ent danger." The cancellation of a licence entails civil consequences and,therefore, the principles of natural justice are applicable;" In PhanindraBora v, Assam Board of RevenueP for the settlement of a country spiritshop, hearing was held by the Assam board of revenue. Fresh materialand information were called for and investigation was held behind the backof the applicants. The court held this to be a violation of the rules ofnatural justice. The removal of name of an office bearer of co-operativesociety requires hearing." Hearing must be given before granting exemp­tion under the Urban Land (Ceiling and Regulation) Act, 1976.81 Themembers of the general public are entitled to be heard in case of fare hikefor road transport. They are also entitled to inspection of materials ordata on the basis of which hike is proposed.P It has also been held thathearing is necessary to all concerned before the registrar gives effect to theresolutions passed by one of the two rival groups of a co-operativesociety.s"

1\/ In Vibhu Kapoor v. Council of I.S,C. Examination.": a tenth class minorstudent was charged with copying in the examination from the answer bookof another candidate. The respondent cancelled his examination resultwithout any enquiry as to how the answers in two answer books could bemore or less similar. The invigilators were also not examined. The actionwas taken merely on a suspicion by the awarding committee. The fullBench of the Delhi High Court quashed the order as being in violation ofthe principles of natural justice.

It is now well established that the principles of natural justice are notapplicable to legislative functions and price fixation is a legislative action.This principle was ignored by the Delhi High Court in M]«. CyanamidIndia Ltd. v. R.N. Das85 with regard to re-fixation of the price of bulk

" Pratap v, Gandhidham Development Authority, AIR 1985 Guj. 68.77 Siddhartha v. Calcutta Municipality, AIR 1985 Cal. 153.78 Raj Kumar v, Licensing Authority, AIR 1985 AlL 325.79 AIR ]985 Gau. 15.80 Narasingha Charon Acharya v ~ State ofOrissa. AIR 1985 Ori. 62.81 Manilal v, State ofGujarat, AIR 1985 Guj, 47.82 Akhil Bharatiya Grahak Panchoyat (Bombay Branch) v, State of Maharashtra, supra

note 57,83 Narain Misra v, State of Orissa, A1R ]985 Pat. 9,84 AIR 1985 Del. 142~

85 AIR 1985 Del. 179.

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drugs under the Essential Commodities Act. It was held that whilefixing or re-fixing the sale price of bulk drugs, the government has to dis­close the basis of such fixation and give a reasonable opportunity ofhearing to the drug manufacturers to decide questions regarding categorisa­tion of formulations, return on capita), cost of production, etc. TheSuperme Court has not insisted hearing on such questions in price fixation ..AI] that is necessary is to fix the prices on the basis of relevant factors andnot arbitrarily. As against this decision, the Allahabad High Court inBhashir Kumar v, Union of India86 held that persons affected by the fixationof tariff rates for insurance premia were not entitled to a hearing as the tarifffixation was a legislative function.

The application of the principles of natural justice could be excludedby implication. The central government of government companies havebeen empowered under sectons 5(2) and 7(3) of the Esso (Acquisition ofUndertakings in India) Act, 1974 to renew a lease of land on the sameterms and conditions as the original lease. The court in Trade Centre D. &B. Pvt. Ltd. v. Union ofIIIdid' 7 held that the principles of natural justicewere not applicable while considering renewal as the terms and conditionsof renewal were statutory and no alteration/modification was contemplated.Likewise, the suspension of a person from an office did not require obser­vance of the principles of natural justice." A municipal counsellor has novested right to get extension after the expiry of his term, and therefore,the principles of natural justice were not applicable before appointing anadministrator to administer the municipal corporation.P

Notice

The contents of notice, persons who are entitled to notice and thetime tor giving notice are all significant to ascertain whether the principlesof natural justice have properly been followed or not. The notice requiredunder section l05-B of the Bombay Municipal Corporation Act, 1888, toan allottee of municipal premises for eviction need not be given to all thepersons residing with the allottee." When notice is required to be given toa co-operative society, the rules of natural justice are not violated if noticeis not given individually to all the members of the society proposing amal­gamation of the society." On the other hand, in Sub-Divisional Controller,F. &; S. v. Amulya Ratanv? the "tuodified ration dealership" agreement

88 AIR 1985 All. 183.87 AIR 1985 Bom. 4.88 Radhe)' Shyam v, State of Rajasthan, AIR 1985Raj. 65; see also Sujeeth PI Ferrao

v. University of Mysore, AIR 1985 Kant. 250.U Sudam v, Kolhapur Municipal Corporation, AIR 1985 Bom 114.90 Ajit v. General Manager, BEST Undertaking, AIR 1985 Born, 362.91 Daman Sinrh v. State ofPunjab, AIR 198' SC 973; but see Urban Improvement Trust

v, Balveer Sin,h, supra note 35, where the Rajasthan High Court held that notice toindividual owners or persons interested was necessary in land acquisitlon cases.

92 AIR 1985 Cal. 2~1,

276 Annual Sur),ey of Indian La",' {1985

was cancelled on the ground of violation of two of its clauses but the showcause notice did not contain the charge of violation of those clauses. Thecancellation order was quashed on the ground that the notice was notproper. Likewise, in Union of India v. Narayanbhais" the notice of dis­connection of telephone merely stated that the telephone would be discon­nected after seven days and the telephone was actually disconnected afterseven days. It was held that the notice should have indicated why and forwhat reason disconnection was intended. The reasons would have helpedthe subscriber to controvert them and the authority concerned could havetaken a decision after considering all the materials. In the absence ofreasons, the notice was not proper.

Post..decisiouaJ bearing

The concept of post-decisional hearing laid down by the SupremeCourt in Maneka Gandhis» was followed by it in Liberty Oil Mills. 9s TheConstitution Bench of the Allahabad High Court applied it in KailashNath v. State of U.P.96 In this case, the gun licences of the petitionerswere cancelled by the district magistrate and they were directed to deposittheir guns forthwith under the Arms Act, 1959 as the district magistratewas satisfied that there was an immediate apprehension of breach of peacefrom them. The impugned orders were passed without any enquiry. Thecourt held that the licence for acquisition and possession of firearms wasmaterially different from a licence for manufacture, sale, etc. of firearms.Whereas the latter conferred a right to carryon trade and business forearning livelihood, the former was merely a privilege, the grant of which didnot involve the adjudication of the right of an individual nor did it entailcivil consequences. It was held that rejection of an application for grantof a licence might become legally vulnerable if the order was passed arbi­trarily, capriciously or without application of mind. The cancellation of(a licence, however, leads to grave consequences and the principles of naturaljustice are applicable in such a case. The power was quasi-judicial andsame had to be exercised very cautiously after recording reasons andsupplying them to licence holders except when it was found to be inexpe­dient to do so. Keeping in view the circumstances under which theimpugned orders were passed, the court held that the cancellation withoutnotice was justified but the ingredients of natural justice were not satisfieduntil the petitioners were subsequently afforded an opportunity of hearingand making representations against the impugned orders, The impugnedaction was held to be interim in nature which was to be confirmed after

93 AIR 1985 Guj. 31. This decision upheld the order of the single judge of (hat courtreported in AIR 1984 Gu]. 206.

94 Maneka Gandhi v, Union of India, AIR 1978 SC 597.95 Liberty Oil Mills v, Union of India, AIR 1984 SC 1271; see SN Singh, supra note 46

at 532.t8 AIR 1985 All 291; see also M!s. CyanamidIndia Ltd v R.lv. Das, supranote 85,

Vol. XXI] Administrative Law 277

hearing the licence holders. The Andhra Pradesh High Court has similarlyheld that if a notification was issued under the A.P. Slum Improvement(Acquisition of Land) Act, 1956, declaring an area as slum, no civil con­sequences flow from the notification until another notification requiringthe land Was issued and therefore the principles of natural justice werenot attracted at the stage of first notification. That notification could bechallenged after the acquisition notification was issued.t?

Reasons

The Supreme Court in Anil Kumar v. Presiding Officer,98 held that adisciplinary enquiry has to be a quasi-judicial enquiry held in accordancewith the rules of natural justice and the enquiry officer is under a duty toact judicially. The appellant was charged with two lapses: (i) Neglectingduty and delaying repair work assigned to him which resulted in consider­able loss; and (ii) wilful refusal of the lawful orders of superior officer andleaving place of work without permission amounting to misconduct, negli­gence of duty and indiscipline. The report of the enquiry officer merelystated the charges, dates of enquiry proceedings, names of witnesses andthe conclusion that "non-obeying of the instructions of his seniors andleaving the place of work without proper permission is a serious case ofmisconduct, negligence of duty and indiscipline." On the basis of thatreport, the general manager terminated appellant's services. The SupremeCourt was disturbed at such enquiry which revealed gross non-applicationof mind of the enquiry officer to the evidence on record. D.A. Desai Jobserved:

Where a disciplinary enquiry affects the livelihood and is likely tocast a stigma and it has to be held in accordance with the princi­ples of natural justice, the minimum expectation is that the reportmust be a reasoned one. The Court then may not enter into theadequacy or sufficiency of evidence. But where the evidence isannexed to an order-sheet and no correlation is established bet­ween the two showing application of mind, we are constrainedto observe that it is not an enquiry report at all. Therefore, therewas no enquiry in this case worth the name and the order of termi­nation based on such proceeding disclosing non-application ofmind would be unsustainable."

The court found the report of the enquiry officer as non-speaking. The

17 Co-operativeHousing Society, C.B. v. Commissioner, Hyderabad Municipal Corpn.,AIR 1985 AP 277.

•• Supranote 62; see also Raj Bahadur Pathak v, State ofMP, AIR 1985 MP 238 an~

Lakshmi Dlvl v, SUItt ofJ & K, AIR 1985 J & K 49.tt Supra Dote 62 at 1123.

278 Annual Survey of Indian Law [1985

conclusion was not supported by reasons and therefore the impugned orderwas quashed.lw

V ADMINISTRATIVE DISCRETION

Arbitrariness, unreasonableness and discrimination

The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 aimsat regulation of letting and control of rent of residential and non-residen­tial buildings and prevention of unreasonable eviction of tenants. Section29 empowers the government to exempt any building or class of buildingsfrom all or any of the provisions of the Act subject to such co nditions asthey deem fit. By a notification, the government exempted all buildings ownedby the Hindu, Christian and Muslim religious and charitable public trusts.The tenants challenged the notification on the ground, inter alia, that it wasdiscriminatory under article 14 inasmuch as the beneficial provisions ofthe Act would be available to the tenants of other buildings but not tothem and that section 29 conferred unfettered and unguided power togrant exemption. The Supreme Court analysed all the provisions of theAct along with its aims and objects and found adequate guidance in theAct. Tulzapurkar J held that the power under section 29 could be exer­cised legitimately in areas or cases where the mischief sought to be remedi­ed under the Act was neither prevalent nor apprehended and in caseswhere uniform application of law was likely to result in unnecessary orundue hardship to landlords or in cases where the beneficial provisionswere likely to be abused by the tenants for whom they were intended.w­It was held that public religious and charitable trusts constituted a wellrecognised distinct group since they not only served public purposes butthe disbursement of their income was governed by the objects for whichthey were created. Their buildings formed a distinct class from buildingsowned by private landlords. The classification had an intelligent differen­tia. The court drew support for this view from P. J. Irani v. State ofMadra~.102 With respect to nexus between the exemption granted by thegovernment and its purpose, the court pointed out that the object of exem­ption was to enable the religious institutions to increase their rental incomewith a view to fulfilling their religious and charitable objectives. Withoutsuch increase, the very purpose of the endowments was being nullifieddue to escalation of prices and the exploitation of the legislation by thetenants, by fixation of fair rent. The income from such buildings wasvery low because of the fixation of fair rent. These objectives of exemption

100 The court in this case relied upon two earlier decisions In 1\4P Industries Ltd. v,Union of India, AIR 1966 SC 671 and Mahabir Prasad v. State of UP, AIR 1970 SC1302; sec also K.C. Joshi v, Union ofIndia, supra note 62.

101 S. Kandaswamy Chettiar v. State of Tamil Nadu, supra note 29.lot AIR 1961 SC 1731; sec also M]s. Punjab Tin Supply Co. v. Central Government, AIR

1!J84 SC 87; SN Singh, supra note 46 at 507.

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put forth by the government before the court were not controverted bythe appellants and therefore the court accepted the government's conten­tion that undue hardship and injustice had been done to religious andcharitable institutions by uniform application of the Act and the exemptionin favour of buildings owned by them was germane to the policy and pur­poses of the Act. The same Bench of the Supreme Court further upheldthe exemption granted under the above provision in favour of buildingsowned by the cooperative societies. loa A close study of these cases pro­mpts one to observe as to why the Act itself could not exempt all build­ings owned by religious institutions and cooperative societies from itspurview instead of conferring discretionary powers on the government todo so.

The judicial attitude towards controlling arbitrary executive action isnoticeable in matters of distributing state largesse also. 110 Ram andShyam Co. v, State of Haryanaw» a public auction was held for grantinglease for minerals by the respondent. The highest bid of the appellantwas accepted by the presiding officer but the bid was not confirmed by thegovernment. Instead, the government granted the lease to a person whohad written a letter to the chief minister making allegations against theappellant. No opportunity was given to the appellant to rebut the allega­tions nor was he asked to offer higher bid than the person whom thegovernment had given the lease. Desai J held that the unilateral offer oflease, made secretly, was arbitrary.

In Bombay Hawkers' Union. v. Bombay Municipal Corporationwt thehawkers were carrying on the trade of hawking their wares in GreaterBombay by standing or squatting on public streets causing serious impedi­ments to the free movement of pedestrians and vehicular traffic. The peti­tioners contended that they had a fundamental right to carryon their trade,business or calling under article 19(1)(g) and the respondent was arbitrarilyrefusing to grant/renew their hawking licences which resulted in the removalof the petitioners along with their goods from their places of business.The court repelled the contention on the ground that no citizen had a rightto carryon trade so as to cause nuisance, annoyance or inconvenience tothe other members of the general public. The public streets were meantfor use by the general public and not for carrying on private trade. Bycarrying on trade on streets by squatting, the hawkers could paralyse allcivic life. Therefore, the restriction on their business was a reasonablerestriction in public interest.

In service matters, the principles of arbitrariness and discriminationhave been applied by the courts in selection, promotion, seniority, transfer

loa MIs. S.M. Mahendra& Co. v; Stale ofTamil Nadu, AIR 1985 SC 270; seealso Unionof India v. Annam Ramaltngam, supra note 29.

106 AIR 1985 SC 1147.101 AIR 1985 SC 1206.

280 Annual Survey of Indian Law [1985

and dismissal cases. In Prakash Chandra Agarwal v. State ofBihar.r"the Bihar Public Service Commission held competitive examination forappointment of munsiffs in the state. Some candidates who had securedless marks than the appellant were appointed. Venkataramiah J held thisto be a violation of articles 14 and 16. However, the relaxation of rulesallowing promotion on temporary basis to upper division and selectiongrade clerks who had put in 20 years of service and had exhausted allchances of appearing at the subordinate accounts service examination orhad become ineligible to appear at the same was not considered discrimi­natory.''"

Mala fides

In Co/lector (District Magistrate), Allahabad v. Raja Ram,108 a plot ofof land was sought to be acquired in 1975 for "public purpose" for exten­sion of Hindi sangrahalaya of the Hindi Sahitya SammelIan, Prayag.Later all, the notification was amended so as to include another plot ofland. The court noted that a piece of land already allotted for the abovepurpose in 1953 was lying vacant and no sangrahalaya was established.The land in question was purchased by the respondent for construction oftheatre which was objected to by the sammellan. Since the respondent gota certificate of approval for construction of cinema building, the acquisi­tion proceedings were initiated at the instance of sammellan. The courtheld that the need for land for sangrahalaya was a "figment of imaginationconjured up to provide an ostensible purpose for acquisition." Therewas adequate land with the sarnmellan for the use of sangrahalaya whichwas lying vacant for over a quarter of a century. The court was not con­vinced that the land was being acquired for achieving any of the objectsof sammellan. The purpose was actuated by a desire not to have a cinematheatre in the vicinity of the sammellan. It was, therefore, held that thegovernment/collector did not exercise power for the purpose for which itwas given and they were guilty of legal mala fides. It is significant topoint out that the court did not pay much attention to the fact the sam­melIan was not made a party in the writ petition but it was allowed tointervene in the Supreme Court and even address oral arguments which isnot ordinarily permissible.

In Manmohan Singh v. Commissioner, Union Territory, Chandigarh.vn

lOG AIR 1985 SC 1709; see also Slate 01 Mysore v. R.S. Kosi, AIR 1985 SC 651 (orderof repatriation held discriminatory); D K. Mitra v. Union 01 India, AIR 1985 SC1558 (altonmenr of senionty to direct recruits appointed several years after prornoteesheld as discriminatory). Reference may also be made to G S. Lamba v. Union ojIndia, AIR 1985 SC 1019; Workmen, Food Corp". of India v. Food Corpn. of India.AIR 1985 SC 670; Satish Kumar v. Principal. S.N. Medica! Cotleg« d; Hospital, Agra;AIR 1985 All. 306; Urban Improvement Trust v. BalveerSingh, supra note 35.

107 Debranjan Ray v. Comptroller and Auditor General of India, AIR 1985 SC 306.108 AIR 1985 SC 1622; see also State of UP v. Raja Ram. AIR 1985 SC 1108.lOt AIR 1985 SC 364.

Vol. XXI] Administrative Law 281

D.A. Desai J quashed the termination orders passed mala fide againsta headmaster and a teacher under the contract of service on the groundthat their services were no longer required. The court found thatthe services of both (permanent and confirmed) teachers were termi­nated by a succeeding managing committee after seven years since theywere appointed by an outgoing committee. The court found no tenablereason for dispensing with the meritorious services of the two. In case ofthe headmaster, even an enquiry was instituted after serving him a chargesheet but the same was withdrawn and the clause of the contract was invok­ed. The action was held to be clearly mala fide.

The cases decided by the High Courts indicate that generally the pleaof mala fides had not been accepted. Thus in Shraddha Kumar; v. LucknowUntversity,110 a disciplinary committee was appointed by the executivecouncil of the respondent to enquire into various complaints against thepetitioner. It was contended that some members of the council werehostile to the petitioner and there was no reasonable basis for holdingenquiry. The court noted that the council included university officers,chancellor's nominees and representatives from university court. It washeld that a body with such a mixed composition was bound to have somemembers favourably or unfavourably disposed towards one or more partiesinvolved in the controversy. The play of subjective factors in the decision ..making process could not be ruled out. It was unrealistic to try to inves­tigate the motivations of various members. Mere mala fides of somemembers would not, therefore, vitiate the decision. Its validity has to bejudged on the basis of objective factors. This decision goes contrary to theSupreme Court decisions in which it has clearly been laid down that thebias/prejudice of some members in a committee operates in a subtle man­ner and influences the entire committee.

Excessive and sub-delegation

In S. Kandaswamy Chettiar v. State of 1'. N.,lll it was, inter alia, con­tended that section 29 of the Tamil Nadu Buildings (Lease and RentControl) Act suffered from the vice of excessive delegation of discretionarypower. Section 29 provides that "the government may, subject to suchcondition as they may deem fit, by notification, exempt any building orclass of buildings from all or any of the provisions" of that Act. It wascontended that no guidelines were provided for exercise of power and theimpugned notification granting exemption to all buildings owned byreligious and charitable institutions was arbitrary. Rejecting the conten­tion, the court found sufficient guidance in the aims of the legislation and

110 AIR 1985 All. 71; see also M.R. Shende v. Slate ofMaharashtra, AIR 1985 Born.J09; Radkey Shyam v, State of Rajasthan, supra note 88; Nova Bharat Ferre AlloysLtd. v, A.P.S.£. Board, Hyderabad, supra note 56.

111 Supra note 29; sec also Gorieb v. Fox, (1926) 7J Law Ed 1228.

282 Annual Survey of Indian Law [1985

its provision for the exercise of power.

When ~ power is to be exercised at the "satisfaction" of the govern­ment, the power could be delegated if there is an express provision to thateffect. 112 In the absence of any express provision, it was held by theRajasthan High Court that the power to conduct enquiry could not bedelegated by the deputy district development officer to the assitant districtdevelopment officer under rule 12(5) of the Rajasthan Panchayat andNyaya Panchayat General Rules, 1961. The exercise of power on thebasis of the report of assistant officer was, therefore, not valid.!'"

Even where delegation is expressly permissible, the government has todelegate the power on a person who can exercise the same properly in theinterest of the general public. In Haryana, the government transport wasin competition with private transport and both were subject to conditionsand restrictions under the Motor Vehicles Act. Under section 129, thegovernment has power to authorise a police officer or other person autho....rised in that behalf to exercise powers of inspecting, searching, seizing anddetaining motor vehicles found guilty of violating the provisions of the Act.The government authorised the general manager, Haryana roadways toexercise powers exercisable by deputy superintendent of police. The courtheld that the powers were serious restrictions on the fundamental rightsguaranteed by article 19(1)(g) and, therefore, they could be consideredreasonable restrictions only when they were exercised reasonably in theinterest of the general public. Such power should be entrusted to a per...son who could exercise them fairly and without bias. The general managerwas a rival in the business to private transporters and was intimately con ...nected with the running of government vehicles in the state. He was notexpected to discharge his duties in a fair and reasonable manner. Therewas a possibility of his being overzealous in discharging his duties inrelation to private vehicles while at the same time, he might be too lenientin respect of government vehicles. This might result in great inconve­nience to the general public. Being directly responsible for the runningof government vehicles, his appointment was not reasonable for exercisingpowers under the Act. ~14

Subjective satisfaction

In M.P. Irrigation Karamchari Sangh v. State of M.P.,115 the state

1tt Co-operative Houslns Society CE v. Commissioner, Hyderabad Municipal Corpn.,supra note 97.

113 Naraln Singh v, DDO, PaU, AIR 1985 Raj. 211; see also Thaneshwar v. Jlla Sahakar!Kendrlya Bank, AIR 1985 MP 187.

114, M]s. Krishna Bus Service P. Ltd. v. Stale of Haryana, supra note 57.116 AIR 1985 SC 860; see also Ram Avtar v. State ofHaryana, AIR 1985SC 915;

Workmen ofSyndicate Bank v. GOVI. of India, AIR 1985 SC 1667; Jal Singh v, Stat«ofJ &: J{, AIR 1985 SC 764 (preventive detention quashed on the ground of non..application of mind).

Vol. XXI] Administrative Law 283

government had refused to make reference of an industrial dispute tothe industrial tribunal for adjudication under section 10(1) of the Indus­trial Disputes Act, 1947. The dispute related to a demand by workmenfor chambal allowance, dearness allowance equal to that of thecentral government employees and 20 days wages for strike period.The reasons for refusal of reference were that the state governmentwas not in a position to give dearness allowance equal to centralgovernment employees and the rules regulating conditions ofservice of workmen did not provide for payment of chambal allowanceand the workmen were getting fixed pay. The court conceded a limitedjurisdiction to examine patently frivolous demands but the adjudication ofdemands should be left to the tribunal to decide. The court held thatthe government had merely to make a 'reference' and not to 'adjudicate'.In the present case, the government in fact adjudicated the dispute onthe ground that no additional burden could be borne by it. The reasonsgiven by the government for refusal to make reference were thereforeheld to be beyond its powers. The demands of workmen were not frivolousor perverse and, therefore, the government was directed to make the refe­rence. It is thus clear that the conferment of discretionary power in sub..jective terms does not completely oust judicial review.

The subjective satisfaction must be arrived at on the basis of objectivefactors. Section 3(1) of the A.P. Slum Improvement (Acquisition of Land)Act, 1956 provides that when the government "are satisfied that any areais or may be a source of danger to the public health, safety or convenienceof its neighbourhood by reason of the area being low lying, insanitary,squalid or otherwise, they may by notification in the A.P. Gazette declaresuch area to be a slum area." It has been held that the governmentshould examine whether the above objective tests were satisfied beforedeclaring an area as slum.I'" The question of 'public purpose' howevercould not be decided by the court; it must be decided by the administra­tive authority itself.117 For arriving at a prima facie satisfaction, reasonsneed not be recorded because such satisfaction is not final before taking anaction.!"

Relevant and irrelevant conslderatloas

In a large number of cases relating to industrial disputes, grant oflicences and preventive detention, the Supreme Court has quashed theinpugned action on the ground that the same was based on irrelevantconsiderations. The refusal to make reference of an industrial dispute

111 Co-operative Housing Society, CE v, Commissioner, Hyderabad Municipal Corpn.,supra note 97; see also Brljmohan v. State ofMPt AIR 1985 MP 215; CIz. V. Reddy v.Jr. Transport Commissioner, AIR 1985 AP 361.

117 VAPM Commtttee v. Vyara Nagar Panchayat, AIR 1985 Guj. 204; see also FranciscoFerreira Martins v. Union ofIndia, AIR 1985 Bam. 312.

118 .Al/s Barish Tara Reftie/aries(P) Ltd. v. Certificate Officer, AIR 1985 Cal. 56.

28-i Annual Survey of Indian Law [1985

regarding Imposition of punishment of stoppage of three incrementson a workman was held to be vitiated on the ground that the refusalwas based on the irrelevant ground that the action was based onmisconduct proved through a departmental enquiry.I'" In State ofU.P. v, Raja Ram Ja iR1val,120 the licensing authority refused to grant alicence for constructiag a permanent building for cinematograph exhibi­tion. The refusal WIS based on the sole ground that it was not in publicinterest to do so. The court noted that the "public interest" involvedwas the objection of Hindi Sahitya Sammellan not to have a cinemain its vicinity. The court held that the public interest in this case wasshown to be co ...extensive with the likes and dislikes of the sammellan, Thedislikes of a body howsoever prestigious it might be was not a substitutefor public interest. It was, therefore, held that the refusal of the licensingauthority was based on irrelevant considerations.r" The Supreme Courthas quashed preventive detention on the basis that irrelevant and stalegrounds were the basis of action. In Ajay Dixit v, State of U.P.,lSZdetention order under National Security Act, 1980 was passed in 1984on several grounds. One was that the detenu along with his companionshad surrounded a person in 1981 and committed the offence ofattempt to murder under section 307 of the Indian Penal Code. Thedetenu was, however, acquitted of that offence before his detention. Thecourt held that ground to be irrelevant and stale. Other grounds ofdetention were likewise unfortunate. The court, therefore, quashed thedetention.

Vagueness

If an action is taken on vague and unspecific grounds, same cannotbe upheld. In Nepal Singh v, State of U.P.123 the services of the appellantwere terminated on the ground that he was a "corrupt Officer, who isnot straight-forward. Married two wives against Government Servants'Conduct Rules. Does not do his duty sincerely. Wherever he goescreates problems." The allegation of having two wives had not beenproved despite an enquiry made earlier. The other grounds were consi­dered by the court as vague which were not adequate to sustain theimpugned order which had been passed without any enquiry.

Delay

The courts have taken a very serious view of delay in administrative

111 fVorkmen of Syndicate Bank v.. GOVt. of India, supra note liS; see also Workmen,Hindustan Steel Ltd. v, Hlndustan Steel Ltd., supra note 9.

120 Supra note 108; see also Collector (District Magistrate), Allahabad v, Raja Ram, supranote 108.

111 See also George Mampilly v, Stale ofKerala, AIR 1985 Ker. 24; M.K. Prasannan v,RTA, Kattayam, AIR 19851Cer. 56.

111 AIR 1985 SC 18; see also Avtar Singh v, State ofJ & K, AIR 1985 SC 581.us AIR 1985 SC 85.

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actions. In Yogeshwar v. State Transport Appellate Tribunal,124 a notificationwas published in November, 197] under section 68-D of Motor VehiclesAct, inviting objections to a draft scheme providing for exclusive opera­tion of government's own stage carriages on many routes. No actionwas, however, taken thereafter but the members of the general public andprivate motor transporters became subject to several constraints due tothe publication of the scheme. For example, no permit could be granted/renewed except temporary permits after the publication of a draft noti­fication of a scheme. In December, 1979, temporary permits were issuedto some private operators after the regional transport authority wassatisfied that there was necessity for granting them. These permits werecancelled at the orders of state transport appellate tribunal. It was heldby Venkataramiah J that any inordinate delay in issuing the final notifi­cation was bound to upset the purposes of providing an efficient, ade­quate, economical and properly coordinated transport service to thecommunity. Delay in the performance of statutory duties amounts to anabuse of the process of law. In this case, however, the court did notquash the proceedings under section 68-D since no such prayer had beenmade. The court instead issued directions to the state government to takea decision on the draft notification on or before JulY,31 1985, failingwhich the scheme would stand quashed. The cancellation of temporarypermits issued in favour of the appellants was, however, quashed. Like­wise, in Nokhia v. State of H.P.,125 delay of seven years in payment ofcompensation for land acquired from poor persons was ordered to bemade good by payment of 12 per cent interest as equitable compensa­tion, interest and solatium. In Jau Ram v. State of H.P.121 the land ofan old woman was acquired by the government without payment ofcompensation for 12 years. The court directed payment of Rs, 4000/­by way of special compensation in addition to normal compensation. Itis heartening to note that the courts have taken a humane view in thesecases.

VI JUDICIAL REVIEW

Authorities amenable to writ jurisdiction

After the Supreme Court decisions in Son! Prakash v. Union of India 1Z7

Ajay Rasia v. Khalid Mujib,128 even a government company and a co­operative society have been considered amenable to writ jurisdiction of

lU AIR 1985 SC 5]6: see also CII. V. Reddy v. Jt Transport Commissioner. supra note116.

Ul} AIR 1985 HP 88.11$ AIR 1985 HP 25.117 AIR 1981 SC 212.UI AIR 1981 SC 487; sec also Pyare Lal v. Managing Director, J & K Industries LId"

AIR 1985 J & K 33,

286 A nnual Sui i eJ of Indian Law [1985

the courts. This principle has SInce been consistently applied by thecourts. The statutory bodies, such as Oil and Natural Gas Commission.!"Bihar State Electricity Board.P" and Food Corporation of India131 havebeen held to be 'state' and amenable to writ jurisdiction for their arbitraryand illegal actions. A privately managed aided school getting grant upto95 per cent of its expenditure has been held to be answerable for itsillegal actions since its teachers enjoyed protection under the PunjabAided Schools (SCCUfJty of Service) Act, 1969 and the schools were sub­ject to the regulations made by the education department of the govern­mcnt.!"

Locus standi

The Andhra Pradesh High Court refused locus standi to a person whoclaimed to be interested in the proper implementation of the provisions ofthe Urban Land (Ceiling and Regulation) Act, 1976.133 In that case, thepetitioner challenged the order of exemption passed under the Act but hewas neither personally affected thereby nor could he be assigned any govern­ment land. Likewise, a competitor in business has no locus standi tochalJenge the grant of permit to run a rice miJI.l34 But when the manu­facturer of zafrani zarda was subject to the provisions of Bihar AgriculturalProduce Markets Act, 1960 levying market fee, the manufacturer hadlocus standi to challenge the levy.13S

The Bombay High Court has held that a beneficiary or third party hadno locus standi to challenge the orders of lokayukta passed under theMaharashtra Lokayukta and Upa Lokayuktas Act, 1971 because the com­plaint related to public servant and the third party did not come intopicture unless a notice was issued to him by lokayukta and hearing wasafforded to him. But in this case, since the petitioner was given a fair hear­ing by the lokayukta, he had locus standiP"

121 K.C. Joshi v, Union of India, supra note 62.180 Surya Narain Yadav v, B.S.E. Board, AIR 1985 SC 941.131 Workmen, Food Corpn. of India v. Food Corpn. of India, supra note 106.132 Manmohan Singh v. Commissioner, Union Territory, Chandigarh, supra note 109; see

also Vibhu Kapoor v. Council 01 I.S.C. Examinatton, supra note 84. Referencemay also be made to N.K. Ramiah v. Yadava Kalvi Nithi, AIR 1985 Mad. 211, inwhich a private college committee was held to be outside the court's writ jurisdiction.This decision seems to be contrary to the principles of law laid down by the SupremeCourt in a series of cases.

13a K. Narayana v. Govr. of AP, AIR 1985 AP 64; see also Mohinder Singh v. State ofJ & K, AIR 1985 J & K 37; K. Rajendran v. os«. ofTN, AIR 1985 Mad. 44.

134 V.P. }~fohd. Kutty v, T. Kunhikoya Haji, AIR 1985 Ker. 33.135 AI/s. Prabhat Zarda Factory v. State ofBihar, AIR 1985 Pat. 241. See, however,

Dy, Director, Administration, A.R.C., GOl'!. of India v. Birendra Kumar, AIR 1985Ori. 213.

138 Vishwasrao v, Lok Ayukta, State of Maharashfra, AIR 1985 Born. 136,

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In matters of public injury, however, the courts have taken a veryliberal view of locus standi. Thus the appointment of a Vice-Chancellorcould be challenged by a member of legislature and an educationist whohave interest in public affairs and education.!"

Laches

In Arun Kumar v. ..5.E. Railway,138 the appellant, a clerk In south­eastern railway, made representations in 1967 claiming to be placed inthe seniority list below the existing confirmed and officiating staff in therelevant grade but not below the temporary staff in accordance with rule312 of the railway establishment manual. In 1973, in response to hisreminder, he was informed about the rejection of his representation. Hefiled a writ petition in 1985 challenging the validity of his name beingplaced below the temporary staff. The High Court found the petitionerguilty of laches. The Supreme Court held that the appellant had a rightto get seniority over temporary staff in view of rule 312. The appellantwas not guilty of delay, much less inordinate delay, in view of the factthat the railway administration itself was guilty of delay in comrnunica­ting a decision on petitioner's representations and thus depriving himof his legitimate right. Likewise, delay of four years in filing a writpetition was ignored by the Karnataka High Court in view of the adverseconsequences to the petitioner.!" However, unexplained delay of eventwo years after the process of acquisition of land was over was held to befatal to the maintainability of the writ petition.!"

Exhaustion of alternative remedy

With regard to exhaustion of alternative remedy, o. ChinnappaReddy J in Asstt. Collector, Central Excise v. Dunlop India Ltd.1«! ob­served:

Art. 226 IS not meant to short circuit or circumvent statutoryprocedures. It is only where statutory remedies are entirely iIl­suited to meet the demands of extraordinary situations, as forinstance where the very vires of the statute is in question or where

]~7 Balbir Singh v. G'D Tapase, AIR 1985 P & H 244; abo see George Mampilly v.State 01 Kerala, supra note 121; B. V. Narayana Reddy v. State of Karnataka, AIR1985 Kant. 99.

Ja8 AIR 1985 SC 482.139 Mohammad Ismail v. Slate ofKarnataka, AIR 198.5 Kant. 123; sec also Karlmnagar~ District RSM Assn. v . State of AP, AIR 1985 AP 240; Ananda Roo v, Joint Col/ec-

tor, Eluru, AIR 1985 AP 162.140 Keshav Pal v. State 01 Bihar, AIR 1985 Pat. 70. The court relied for its view on

Babu Sing" v. Union of India, AIR 1979 SC 17J 3.Hi Supra note 5,

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private or public wrongs arc so intricably mixed up and theprevention of public injury and the vindication of public justicerequire it that recourse may be had to Art. 226.... But then theCourt must have good and sufficient reason to by-pass thea ltcrnativc remedy provided by statute ,142

The court did not consider a revenue matter to be such as to by-pass thestatutory remedy. Moreover, the court was disturbed at the spate ofinterim orders passed by the High Courts and then prolong the pro­ceedings at the instance of private parties affecting public interest. Thatcase related to payment of excise duty of Rs. 6.05 crore. The court vacatedthe stay order granted by the Calcutta High Court.

The High Courts have likewise dismissed writ petitions as not main­tainable on the ground that alternative available remedy had not beenexhausted by way of appeal, revision or otherwise.Iw

There are, on the other hand, many cases in which writ petitionshave been entertained despite existence of alternative remedy and thecourts have not insisted on their exhaustion. Thus, in Ram and ShyamCo. v. State of Haryana.r" a lease for minor minerals was granted at theinstance of the state chief minister. The rules provided for appeal tothe state government against the grant of a lease. The Supreme Courtheld that the provision of appeal in such a case would be ineffective anda writ petition against illegal grant of lease was maintainable.

Under section 12 of the U.P. Urban Buildings (Regulation of Letting,Rent and Eviction) Act, 1972, the tenant of a non-residential building isdeemed to have ceased to occupy the premises in certain cases and suchpremises are deemed to be vacant. The Supreme Court in Ganpat Roy v,Addl. District Magistrate,t(5 held that the tenant had no efficacious oradequate alternative remedy under the Act to challenge the finding ofdeemed vacancy and, therefore, a writ petition was maintainable.

1&. Id. at 332.143 See, for instance, Budha Ram v. State of Rajasthan, AIR 1985 Raj. 104; G. Rajendra

v. Dy. Commissioner, Belgaum, AIR 1985 Kant. 118; Homesh Kumar v. VC, A/igarhMuslim University, AIR 1985 All. 166; Mis. Laxmi Motor Service v, R.T.A., Goa,supra note 57; Vlrupaksha v. A.N. Potil, AIR 1985 Kant. 249; Suvalal v. Addl.Commissioner, Indore, AIR 1985 MP 183.

144 Supra note 104; see also Mohan Vasta v. State of Gujarat, AIR 1985 Guj. 115.1£1 AIR 198; SC 1635; see also Sher Chand v, State 01 Punjab, AIR 1985 P & H 337;

Thaneshwar v. Jila Sahakari Kendriya Bank Maryadit, supra note 113; SuraJ Bhanv,yatrj Kar Adhlkari, AIR 1985 All. 143.