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Administrative LawLong Questions & Answers1Q. Define Administrative law and explain its nature and scope. How administrative law is related with constitutional law?Ans. Administrative law is relating to administration carried by administrative authorities. They are also called as executives or b...

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LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

Administrative Law Long Questions & Answers 1Q. Define Administrative law and explain its nature and scope. How administrative law is related with constitutional law? Ans. Administrative law is relating to administration carried by administrative authorities. They are also called as executives or bureaucrats. There are three main pillars of democratic administrative system. And these are as follows: 1.

Legislatures

2.

Judiciary

3.

Executive.

1.

Legislatures :- it includes elected members of parliament and state assemblies. They carry on law making functions according to procedure laid down in constitution. Therefore it is called as Law making body.

2.

Judiciary :- This is independent organ in administrative system. It includes all the courts and judges. Judiciary has power to interoperate and enforce law made by legislatures.

3.

Executives :- It includes all officials in government departments public companies and corporations, institutions who carry on functions to exist both the organs. Therefore executive is sub ordinate organ.

Administrative aw is defined by different authors as follows:-

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

1.

Jenning :- Administrative law is the law relating to organisation powers and duties of administrative authorities.

2.

Prof J.W. Wady: Administrative law is control of government powers done by officials or public authorities.

3.

Davis :- Administrative law is relating to power and procedures do all administrative agencies.

4.

M.P Jain:- Administrative law deals with structure, power and functions and procedure to be followed in exercising these powers by the executives.

Nature of Administrative Law: 1.

It is codified law

2.

Administrative law is common law in all the countries.

3.

Administrative law developed out of necessity of the people.

4.

It regulates the powers and functions of executives.

5.

It lays down limitations for executive functions.

6.

There is no scope to make any amendment in administrative law and its growth is depend on necessity of the society.

Scope of Administrative Law:- It is very wide because major role is carried by executives in administration. If executives may not corporate then both the organs cannot carry functions. Executive carry three types of functions because there is wide scope to them and these functions are: 1.

Legislative Function

2.

Judicial Function

3.

Purely Executive Function.

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

1.

Legislative Function:- Executive have power to make rules and regulations called as Subordinate legislation. Rules of executive should not be in contravention of supreme legislation. Eg : Traffic commissioner makes traffic rules, DEO makes School rules, Director of Higher Education makes College rules.

2.

Judicial Function :- Executive have been delegated petty judicial powers such as traffic inspector have power to impose penalty, ticket examiner can impose penalty on passenger who is travelling without ticket, collector can make hearing and take bond of good behaviour from habituated criminals.

3.

Purely Executive Function:- there are some functions which are purely executive and they are also called as ministerial functions. Eg : Police can book criminal case and file charge sheet and court have to punish accused. This is executive function of police. Eg : Tax officer book the case for black money and file in the court which is executive function.

Relation between Administrative and Constitutional Law: Administrative law and constitutional law are co related. And overlapping such as under constitution also powers have been delegated to some executives. Eg : Powers of election commissioner, power of public service commission, powers of human right commission. Following are the points of difference between Administrative law and constitutional law.

1

Administrative Law Administrative law is not codified.

Constitutional law Constitutional law is codified having articles

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

2 3 4 5

It is not enacted by legislatures. There is no scope for amendment. There are no fundamental rights. It is subordinate law.

It is enacted by legislatures. There is scope for amendment. There are fundamental rights. It is supreme law.

This is detail about Administrative law, its natures and scopes and distinguish between administrative law and constitutional law.

2Q. Critically examine doctrine of separation of powers specified inn administrative law? Ans. Doctrine of Separation of powers was introduced by “French Jurist Montesquieu”. According to this author separation of powers is necessary for better administration. There are three types of powers and these are 1.

Legislative Powers

2.

Judicial Powers

3.

Executive Powers.

In directive principles of state policy also mentions that state have to prevent concentration of powers. In ancient period all powers where concentrated in the chair of the king and therefore it was said that “King can do no wrong”. King was not answerable in any court. In modern period many countries have adopted Doctrine of separation of powers.

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

Reasons of Separation of Powers: 1.

If there is no separation of powers then there is possibility of dictatorship.

2.

There cannot be better administration without separation of powers.

3.

There should be check and control over powers of every organ.

4.

There should be less scope for arbitrary powers.(means manmani)

5.

There should be limitation or boundaries for powers of every organ.

Organs of Division of Powers:Powers have been divided into three organs. 1.

Legislative Powers

2.

Judiciary Powers

3.

Executive Powers

1.

Legislative Powers:- Legislatures are members of parliament and state assembly. They are elected representatives of the people. Legislatures carry on functions to enact legislations according to procedure under constitution. They have also repeal the law by opinion of majority members of the parliament or the assembly makes law for particular state. Therefore legislatures is law making body.

2.

Judiciary Powers:- Judiciary includes all the courts and judges. Supreme court and high courts have been established according to provisions of constitution. Judiciary have to interoperate the law, enforce the law, follow the procedure and deliver the judgement according to law enacted by legislatures. Therefore judiciary is law enforcement organ.

3.

Executive Powers:- They are also called as administrative authorities, public authorities, bureaucrats. Executives carry functions allotted by Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

legislatures under the legislation. Executive includes all public officers who carry on public functions and public duty which are delegated to them under the law. Criticism :- There is separation of powers but these powers are overlapping and mixing. Separation of powers are theoretically possible but practically impossible. There cannot be water tight compartment. In separation of powers. Following are the points relating to criticism in enforcement of doctrine of separation of powers. 1.

Legislatures and Judiciary:- Legislatures and Judiciary are also overlapping in some matters. President is legislature but he has powers to appoint high court and supreme court judges, remove the judge according to procedure punishment given by any court can be altered, or condoned by president. This is interference in Judiciary. If any act is unreasonable, improper then court can set aside it. TADA was held as un constitutional and set aside by supreme court.

2.

Judiciary and Executive:- Anny action taken by executive can be confirmed, altered, set aside by the court. If officer terminates sub ordinate then court can order to take him back in the service. This is interference of judiciary in executive functions. Executive have also powers to impose penalty which is judicial function. Therefore judiciary and executive functions are also overlapping.

3.

Executive and Legislature:- Executives can makes rules and regulations which is legislative functions. Such as helmet have to be used by the persons riding vehicles have been made by traffic commissioner, rules of admission, examinations, award of degree

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

are made by university which is legislative function. Any power delegated to executives under the act can be reduced, altered, withdrawn by legislature after making amendment in the act and these powers are overlapping. This is detail about doctrine of Separation of powers and points of criticism where powers are overlapping and mixing in administrative system. 3Q. Explain the provisions of delegated legislation and its kinds? How delegated powers are controlled substantiate your answer with leading cases? Ans. Delegate means to give, legislation means law making or rule making or other powers to executives. Under delegated legislation various powers are delegated to administrative authorities such as rule making power, judicial powers to settle disputes and purely executive powers. There is also check and control over delegated powers. Delegated legislation is like a vehicle and control on powers is like a brake which is necessary to prevent accidents or made administration. Therefore in administrative system bureaucrats are delegated various powers under respective statutes acts. Reasons or causes of Delegated Legislation: Following are the reasons to delegate powers to executives. 1.

Expert Knowledge:- In many field expert knowledge is necessary. Executives have such knowledge and they carry administration by using expert knowledge.

2.

Divisions of Powers :- There is division of powers or separation of powers accepted in administrative system. Therefore executives are delegated powers.

3.

Necessity :- Necessity or requirement of every department is different and executives fulfil it by using there powers.

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

4.

Administrative Problems:- There are day to day administrative problems of the people which can be solved by administrative authorities and it reduce burden of cases of the courts.

5.

Emergency Situation:- When any emergency situation arises then it can be controlled by executives when they are delegated powers.

6.

More in Number:- There are more numbers of executive and therefore they carry heavy burden in administration by using there powers.

Kinds of Delegated Legislation:There are 5 kinds of delegated legislation. 1.

Colonial legislation

2.

Judicial legislation

3.

Executive legislation

4.

Autonomous legislation

5.

Municipal legislation.

1.

Colonial Legislation: This law was enacted by kings applicable in respective territory.

2.

Judicial legislation: Supreme court makes rules for all courts in India. High court for all courts in state. Eg : Appointment of staff, holidays in court, transfers, allotment of work.

3.

Executive Legislation : Executive are superior officers makes rules for respective dept. binding on people.

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

Eg : Rules of traffic made by traffic commissioner , rules of DEO for school education, rules of tax commissioner. 4.

Autonomous Legislation: These rules are made by autonomous bodies such as bank, LIC, university , Railway and Airlines.

5.

Municipal Legislation : These rules are made by municipal Councillors effective with in municipal jurisdiction. Eg : Rules of property tax, road widening, municipal gardens, schools and dispensary.

Control of Delegated Legislation: There are three methods by which delegated legislation or delegated powers can be controlled. 1.

Legislative Control

2.

Judicial Control

3.

Procedural Control

1.

Legislative Control:- When powers are delegated but they are misusing it or doing corruption then legislatures can control it by following methods:1.

There is discussion about the powers in parliament of it is central act. And in assembly if it is state act.

2.

They can make amendment and reduce or alter the powers.

3.

They can repeal the act and withdraw all the powers.

4.

They can impose limitations over the powers.

5.

Superior authority is appointed to check and control powers of subordinates.

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

2.

Judicial Control:- Powers delegated to executives are subject to judiciary security. Court can examine legality, validity, reasonableness of use of powers. If powers used are illegal or ultra virus or violation of procedure then court can set aside administrative action. Eg: Principle of the college have the power to do admissions. If he makes violation of rules and reservation then court can set aside all the admission because there is misuse of powers.

3.

Procedural Control:- There is procedure laid down for the executives. If

4. procedure is not followed then any administrative action can be set aside by the court. Eg : Police officer have power to arrest any person on suspicious ground but there is a procedure that arrested person to be produced for remand within 24hrs of the arrest. If it is violated then under the writ of Habeous corpus court can order to release arrested person. Eg : Superior officer have power to take action against sub ordinate for any misconduct there is a procedure to hold departmental enquiry before taking action other wise court set aside the powers.

Case :- 1. Kartar singh v/s State of Punjab. RTO increased vehicle taxes by 25% this power of RTO was challenged in the court. The court held that it is excessive use of powers done by RTO. Any increase or decrease in taxes is the power of legislatures and not executives. Therefore action of RTO was set aside by the court. Case :-2. R.K Khanna v/s Union of India.

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

Petitioner was accountant in central government service superior officer terminated his service on the ground that he has done misappropriation in the amount. The court held that there was no departmental enquiry which is necessary to take action. There is violation of procedure and termination order was set aside by the court. Case :-3. Hamdard Davakhana v/s Union of India. Plaintiff company manufactured tablet to increase sexual power. It gave advertisement of partly naked photos of male and female to increase the sale of tablet. Police prohibited the advertisement by using there powers. The court held that valgure advertisement is crime u/s 294 of IPC and powers used by police was uphold by the court. This is detail about delegated legislation, its reasons, kinds and control over it in administration. 4Q. What are the principles of Natural Justice? Explain your answer with relevant cases? Ans. Natural justice means any act of fairness. Principles of natural justice have universal application in administration and court cases no fair judgement can be given with out obliging principles of natural justice. These principles are based on truth and consciousness. There are four principles of natural justice. 1.

No man should be judged in his own case.

2.

nobody should be condemned un heard(Audi Alteram Partem).

3.

He who hears should decide.

4.

Justice not only to be done but seem to have been done.

1.

No Man Should be Judged in his Own Case:-

Law Students Federation – Administrative Law Study Material (III Semester) – Dec, 2015.

LL.B. (3-YDC) Second Year, III Semester, Regular. Paper – III Administrative Law

Meaning of this principle is that any interested party should not decide a case because there is possibility of partiality. This principle is also called as rule against bias. There are three kinds of bias.

1.

1.

Personal Bias

2.

Pecuniary Bias

3.

Bias in Subject Matter.

Personal Bias:- Meaning of this rule is that if judge is having any relationship with the party or the advocate appearing in that case then he should not decide it. Eg : Judge is father in law of the advocate or the party in particular case. He should not decide that case because there is personal bias because of relationship.

2.

Pecuniary Bias:- Pecuniary means relating to finance or money. If judge his having any pecuniary interest in the case then he should not decide that case. Eg : Judge is share holder or debenture holder of a company he should not decide case of that company because he has invested money in the company and there is pecuniary bias.

3.

Bias in Subject Matters:- If judge is honorary body member of any institution, university then he should not decide case of the institution because there is interest in subject matter of litigation. Therefore according to this principle judge should not be interested person in the litigation or dispute which is going to decide.

2.

Nobody Should be Condemned Unheard (Audi Alteram partem):According to this ...