Admnistrative Law

8/10/2019 Admnistrative Law

1/34

1. Principles of Administrative Law A complete Study by Hamid Khan.

This law is concerned with state power. State is powerful while individual is weaker person. Thislaw is related with the affairs of public functionaries with common public. It provides remedy topublic against the wrongs or their ultra vires . Government cannot act except in accordance to

law. Government has to seek toward the constitutional provisions, which allows to do or not todo certain acts.

Government may interfere in the life of common man. It may cause either progress or problem.Good governance is a form of government in which government runs the affairs of statesmoothly and upto the entire satisfaction of people. Constitution, public, fundamental rights,rule of law, democracy, justice are respected.

Bad or mal-governance is reverse of good governance. Dictatorship, disorder, violation,injustice, provisional constitution order, slavery are the essential elements of it.

Government has unlimited powers which should remain with government but use of suchpowers makes government corrupt. Power should not be vested in one hand.

Government employees or servants or public functionaries should be controlled to avoid ultravires . They may be restricted to commit wrongs. Administrative law deals with it.

How the government is controlled and how the employees are made efficient? Government iscontrolled by the institutions of the government. There are two means to control them, i.e.,political and legal means.

Political sources include vote, no confidence, impeachment in presidential system, dissolutionof assemblies, revolution, sedition, agitation, media either electronic or print, articles, publicmeetings, editorials, reporting while legal source includes writ petition. Being the student oflaw we are not concerned with political means. Legal process is our area of study.

Every institution or public functionary is bound by law to act in accordance with law orconstitution. Law must support their act. Any act of government involving ultra vires can be gotdeclared null and void under Article 4 of the Constitution. Any act exceeding their powers shallbe inoperative or inactive.

Acts of public functionaries include jurisdiction and justification in accordance to law.Government has huge power and when government decides against someone then only lawcan protect individual.


2/34

If public functionary commits wrong, government institution commits ultra vires then individualeither may be torpid (dormant, silent, taciturnity) or institutes writ petition to enforce his right.Judicial or departmental processes are also subject of administrative law.

Mere constitution is a dead law but administrative law is spirit of constitution. Constitution

brings emerges of educational institute but administrative law activates and keeps running suchinstitution. Administrative law is not a law in the sense of legislative enactment but in the formof decisions but legislative and administrative laws have same applicability in courts.

There are three types of litigation such as:

1. Civil litigation in which both parties are private individuals.

2. Criminal litigation or trial in which government and individual are parties with exceptionwhere both parties may be private individuals in the crimes which is compound-able.

3. Administrative litigation in which individual renders government defendant or respondent.

Individual is at option to bring writ petition when public functionary commits wrong or violateshis rights. But individual leaves not option when government held him accused. He has toprotect himself to prove innocence. A single individual cannot protect his skin solely and here alawyer helps him out and law profession comes into action to aid him.

Definition administrative law: Every law, which lays down relationship between public andexecutives, is called administrative law. Any law including the law relating to all constitutional

laws, statutory, bye-laws, judicial proceedings, customs, and policies is called administrativelaw.

Our administrative law is not only codified but scattered. State acts through her publicfunctionaries. Administrative law constitutes check and balance. It protects citizen from thecruelty of public functionaries.

To understand the administrative law, theory propounded of Montesque is necessary tounderstand. According to his theory following are the main points:

1. Three functions of the government.

2. Three organs of the government.

3. Separation among them.

4. Check and balance.


3/34

They must act in their own sphere or areas. This theory limitizes the powers of publicfunctionaries and protects public. It has seen different changes with the passage of time. Thistheory also includes separation with two provisions, i.e., power should not invest in one handand there should be no interference to each other. Where more power is granted there

maximum applies power corrupts and absolute power corrupts absolutely. All organs of the government perform their additional functions in addition to their originalfunctions. It minimizes arbitrary powers reasonably.

Separation

No power should invest in one hand No interference to ensure check & balance

Where there is democracy in truer sense there is no power invested in one hand. There arethree organs of government, which perform three functions. They each also perform twoadditional functions. Hierarchy is as under:

Government

Executive Judiciary Legislature

Judicial Legislature Executive Legislature Executive Judicial

Executives perform judicial functions when they hold enquiry and perform legislativefunctions when they make rules and regulations.

Judiciary performs executive functions when make appointments and performs legislativefunctions when make rules and regulations.


4/34

Legislature performs executive functions when make appointments and performs judicialfunctions when hold enquiry against judges or the person who commits high treason.

Growth of administrative law: Following are the factors responsible for the growth ofadministrative law:

1. Increasing responsibilities:

2. Complex legislation:

3. Complexities of judiciary:

4. Public interest in speedy decisions:

5. Law and order situation:

6. Easy methodology:

7. Good governance:

8. Economic growth:

9. Suffering of public work:

10. Law of experts:

11. Objectives of administrative law: Following are the objectives of administrative law:

a) Control of government powers:

b) Remedy to aggrieved person:

c) Equal status of state and public:

d) Effective use of government power:

e) Public utility:

f) Determination of government and public disputes:

g) Determination of social problems:

h) Performance of administration - improvement:

i) Maintenance of Rule of law:

Growth of delegated legislation:


5/34

1. Definition:

2. Who grants such power:

3. Against separation of power:

4. Growing factors:

a) Liberty to agencies:

b) Inability of government:

c) Lack of time:

d) Lengthy process of legislation:

e) Incapacity of parliamentarians:

f) Requirement of speedy decision/urgent needs:

g) Law and order:

h) Economic growth:

i) Ever changing society:

j) Suffering of policy work:

k) Technicality:

l) Experience:

m) Complexity:

n) Flexibility:

When all organs perform functions apart from their original functions, it is called quasi function.When constitution invests power then government cannot intervene in quasi functions of theorgans. All executive functions remain challenge-able.

France follows Droit (legal right) Administrative law while America follows the AdministrativeProcedure Act, 1947.

Law and order can be maintained by the institution against the institution. They may adoptlegal proceedings against each other. Who should be equipped with the knowledge ofadministrative law? Every one has to get its knowledge including private sector, public limited


6/34

companies, lawyers, students, general public, and politicians etc. Observance of theadministrative law is guarantee of good governance. Understanding of the administrative lawplays an important role in the society. It leaves good gesture in society. People are not bad butbad control makes them bad.

What is administrative law itself? Not only laws but customs, policies, rules and regulations,executive precedents, judicial precedents are also part of administrative law. Ouradministrative law is scattered. Adverse discrimination is legal under Article 25 of theconstitution. When arbitrary powers are controlled at political level then legal method becomesuseless. Arbitrary powers are invested to Prime Minister in UK while US President is helplessbefore government due to scrutinized system of USA.

Difference between Constitution and Administrative Law: Some of the differences are asfollows:

Constitution Administrative Law

1. Creation of organs

Constitution just creates organs with thepower of delegation.

1. Power to organs

This law gives powers to organs.

2. Dead law

It is dead law, as it does not operate anyinstitution.

2. Alive law.

It makes institutions active and thus givesthem life.

3. Law of rest

This law creates institution at once andthen gets sleep.

3. Law of motion

It gives movement to the institutions oncecreated by constitution and keeps themoperative forever.

4. Macro level

It deals all things at bigger level.

4. Micro level

It deals all things at lower level.

5. Limited scope

It is limited in scope.

5. Widen scope

It is widen in scope.


7/34

Constitution Administrative Law

6. Skeleton

It is mere skeleton and remains

incomplete.

6. Entire body

It is apart from the skeleton and makes it

complete. It is fleshy part of the body.

7. Supreme

Constitution is supreme law of the landand can cancel other inferior law but nolaw can repeal it.

7. Ordinary

It is ordinary law in nature and cannotrepeal the provisions of the constitution.

8. Origin

Its origin is parliament

8. S

Only administrative authority creates it.

9. Subject

It deals with only three organs.

9. S

It deals with only administrative matters.

10. Power to delegate

Can delegate powers.

10. S

Cannot relegate.

Executive function: All the functions of the public functionaries are called executive functions.They are four in kinds as follows:

Executive Functions

Executive or PureAdministrativeAction

Quasi LegislativeAction

Quasi JudicialAction


8/34

Discretionary Action Ministerial (clerical)Action

Administrative action: Use of discretionary power is called administrative action. It is suchaction, which has choice, option, or wisdom and based upon reason. It is also control-able in

accordance to law, which is near to justice so that no ultra vires can be committed. Powerscannot be used without procedure. Decision, which is based on injustice or not justifiable, isdeclared void (ineffective, null and void, non-operative, not binding). Discretionary actions areliable to discuss in administrative law. What is discretion? Where a person has option or choicefrom many things is called discretion and its use is called administrative action.

Discretionary action must not be based on bias-ness. Law of suitability plays effective role inadministrative law. It mitigates the chances of corruption. A person having high qualification isliable to be preferred. Mere seniority is not enough criteria of judgement. If mere seniority is

sole determination point then high qualification shall become useless. A person cannot bedebarred on the grounds of high qualification. Higher qualification is not punishment. Whereminimum qualification is merit, person of high qualification is preferable. Mere highqualification on the perception of his revert (return to previous condition) is not cause ofrejection.

Discretionary actions are also appeal-able on the grounds of violation of principles of natural justice. They cannot be taken blindly. Justification is the test to use discretionary actions. If theyare beyond the law, they can be challenged. All executive functions are review-able.

Discretionary actions must follow three rules, i.e., suitability, seniority, or election. Law bindsadministrator. Judicial process dominates executive functions because executive actions aredelegated and judicial process is superior.

Condition of compulsory service cannot be ordered because it forms bonded labour which isagainst the law. If consideration of bond has been paid then it would be lawful. Extra benefitsprovided justify it.

Ministerial action is laborious, without choice, option, and wisdom thus it is not liable toinclude in executive powers. Proposal is not choice. Ministerial powers are not subject of

administrative law.

Quasi legislation: When rules are made to administer the law and order situation within thelimitation prescribed by law is called quasi legislation thus disciplinary action is termed as quasilegislation rather than quasi judicial action. It is secondary or departmental legislation. Rulesand regulations form quasi legislation. Incoming and outgoing timings, recess time, leave policy


9/34


10/34

same procedure in the transmitted house, retransmission to the originated house, transmittedhouse may make any modification or suggests alterations etc. Reconsideration of bill issometimes considered the death of bill. This is lengthy and complex procedure of lawmaking.Parliament cannot afford detailed lawmaking thus transfers it to administrative authorities.

Despite legislation of entire laws, its delegation becomes imperative for legislation thus shetransfers her powers to administration.

People who come in parliament are not generally technocrats and most of them are landlordsand fudals. They do not understand the requirement of bye-laws or subordinate laws. Theycreate merely skeleton or mother legislation. They are mostly neither educated nor interestedand expert in detailed lawmaking. All the time they protect their own interests. They restrictthe imposition of agricultural income tax. They create public functionaries. Public functionaries,onward work for detailed lawmaking. Parliamentarians assign authority to different bodies,which they create such as Water and Sanitation Agency, Water and Power Development

Authority, Lahore Development Authority, Punjab University, Capital Development Authority,Accountant Generals Office etc. Since experts run these agencies therefore delegatedlegislation vests to them. They make detailed lawmaking to run day to day affairs. Thislawmaking also meets the urgent need of the time.

Legislation remains unable to meet the needs of urgency. She does not know how the papers ofstudents are marked, how the water and electricity connection is disconnected and restored,how the account in bank is opened and closed, what shall be the rate of profit (interest) etc.Only concerned departments can make such rules to meet their requirements.

Society is ever changing and requires up-gradation every time. It is very difficult for legislationto meet the requirement of the society. Only relevant agencies can fulfill this requirementtherefore they are empowered to do so to satisfy the need and wants of society rapidly.

This is the age of economics and economics need rapid decisions. Complex lawmakingprocedure cannot meet its urgent demands however it may cause hurdle in economic growthand development. Prosperity and progress need decisions on spot.

Indulgence of legislature in ordinary lawmaking restricts it in the policy work. Where policywork suffers, routine work badly affects. Law of parliament cannot be changed till its nextsession. In order to overcome this situation this power is delegated. It follows easy ways toenact laws. Complex procedure is not adopted for enactment thus it meets the urgent needs ofsociety.

Separation of power:

1. Definition:


11/34

2. Organs of government:

a) Legislation:

b) Executive:

c) Judiciary:

3. Theories:

a) Prevention of liberty:

b) One organ and one power:

c) Non-interference:

d) Discharge of own duty:

4. Defect of separation of power:

a) Impossible apparent separation:

b) Obstruction in administrative law/growth:

c) Historically wrong:

d) Hindrance in welfare of state:

e) Obstruction in speedy legislation:

Modes of law making: There are two modes of law making. Under one mode such power isdelegated to sole authority while on the other hand body exercises this power. These modesare categorized as formal and informal legislation.

1. Formal quasi legislation: Where law making power is vested to body or group of personsand they are made bound to make law with unanimous or majority decisions, it is called formalquasi legislation. Mother legislation vests this power. Rules are made in the process of formalquasi legislation. Bodies make them. They are not made upon the wish of single person.

2. Informal quasi legislation: Where one person is authorized to make law is called informalquasi legislation. Authority derives this power from Enabling Act. Notification and circulars arekinds of informal quasi legislation. Lengthy process is no requirement for the process of lawmaking. They are, some times, made on trial basis. Withdrawal of this quasi legislation is easy.


12/34

Classification of delegated legislation: What will be name of law enacted? Enabling Actprovides such provision whether it will be termed as rule, regulation, bye-law etc. In certaincircumstances authority is empowered to determine the nomenclature of the law. Authoritydetermines own at her wish. Following are the title based terminologies, which are used to

differentiate the things:1. Rules: The term rules is defined in the General Clauses Act, 1897, as made in exercise ofpower conferred by any enactment and includes regulations made as rules under anyenactment. These rules may be made applicable to a particular individual or to the generalpublic. It may include rules of procedure or the rules of substantive law.

2. Orders: Under this category, general principle is laid down. This term has two kinds, quasi- judicial decisions and legislative decisions. As far as former is concerned, it is administrativelawmaking process while latter is administrative action. Orders have also its two kinds, i.e.,

binding and non-binding. It is such type of administrative action, which refines the policy.

3. Regulations: General Clauses Act defines the laws and nomenclatures. Rules include theregulations. Government may make rules for detailed legislation. This power fixes the date forthe enforcement of an Act or to grant exemption from the Act or to fix prices. Generallygovernment departments and autonomous bodies make regulations such as Water andDevelopment Authority, Punjab University, Pakistan International Airline, Water and SanitationAuthority etc.

4. Schemes: Such legislation, which gradually enforces, e.g., Wahdat Colony scheme etc.

Under this category law authorizes the administration to lay down a framework within whichthe detailed administrative action is to proceed. One package is introduced which is granted inparts. How the seats in university shall be filled in is another instance of scheme.

5. Circulars: Banking or financial institutions issue circulars to inform public certain actionssuch as National Bank of Pakistan, Central Board of Revenue, State Bank of Pakistan etc.

6. Notifications: It is same as instructions. Government issues notification to inform public itsdecision such as holidays or ban or permission on double pillion. Financial institutions, banks,Central Board of Revenue etc. issue notifications.

7. Bye-laws: This term is used for the ruling of the semi-government authorities establishedunder the Acts of legislature. Local government enacts bye-laws.

8. Directions: This rule making power may be recommendatory or mandatory. Undermandatory, these have the force of law.
http://www.nasirlawsite.com/act&ordi/clauses.htmhttp://www.nasirlawsite.com/act&ordi/clauses.htmhttp://www.nasirlawsite.com/act&ordi/clauses.htmhttp://www.nasirlawsite.com/act&ordi/clauses.htm


13/34

9. Instructions: Act of administrative authority in which directives are issued is calledinstruction. Under this quasi legislation kind attention is diverted toward certain issue. Thisquasi law making does not afford exception and has effect over entire subjects. It is permanentin nature. All the employees having qualification B. A. shall be given allowance of Rs. 700/- is

general law thus is covered under instructions.10. Statute: It is Act of assembly. There are exceptions to this rule. It can also be delegated toautonomous bodies such as Punjab University. Syndicate of every university makes statue.

Need of distinction: Different names are used to differentiate purpose and the agencies, whichpass them. This distinction is not necessary but creates convenience of understanding. Neitheruniform formula of nomenclature nor the specific name is binding. It is the sweet will ofparliament whether she differentiates among them or not. It is not binding on parliament tofollow any procedure for distinction. Parliament can do everything whatever she wants.

Abuse of power: When parliament gives power to subordinate agencies then it goes against theconcept of separation of power. It is general opinion that this power may not be given todepartments because they may exploit the people. Rights of citizens are affected badly. Peoplegives mandate to the elected people. Elected people represent common people. They aregenerally considered trustworthy. They take interest in lawmaking. They are accountable. Theycan be questioned. Their mandate is reviewed at the time of elections. They protect publicinterest. Pubic may control them. Parliament makes basic law. Parliament makes law to holdPh. D.

People to whom power of legislation is delegated are non-representative. They are bureaucratsand technocrats. They are highly qualified, experienced, and skilled. They are educationist,doctors, engineers, accountants, and lawyers, etc. Despite the above attributes they do nottake care of public interest, generally. They are not accountable. They cannot be questioned.They do not contest in election but undergo from selection. Public interest is no moreimportant in discharge of their obligations and performing duties. Public has no control overthem. They create detailed law. They frame detailed law as to how admission shall be given inPh. D. They frustrate the law or makes law in their own favour.

There was a Noor Khan, horse keeper, the personal servant, resident of Chakwal, having 53years experience, engaged with an English man during their occupancy over Sub-Continent.English man published an advertisement stating the same qualification meeting with NoorKhan. There was only Noor Khan who could meet the requisite qualification. In such a waybureaucracy exploits the public. They make schemes in such a manner therefore schemes arefailed.


14/34

In Mustafa Town, residential scheme for the teachers of Punjab University was introduced withsuch conditions so that opponent teacher may not get its benefit. Therefore scheme could notget its ultimate objectives. There is no check over the powers of administration. They do notrequire ratification of their enactment. Their enactment does not undergo from different

stages. Their rules are not published and made part of cupboards.Control of delegated legislation: There are certain checks, which control the powers ofadministration with regard to delegated powers. They are as under:

1. Parliamentary control: Enabling Act of parliament provides such provisions whichdelegates and controls the powers of administrative authorities. Authorities draw their powerfrom Enabling Act of parliament. How powers shall be exercised and what procedure shall beadopted to exercise such powers is provided in Enabling Act. In other means all authorities haveto follow Enabling Act in all respects which control them. This defines all procedures. Practically

this control is inactive so far.

Parliament is the superior authority in state, which makes laws. This is the parliament, whichdelegates certain powers of law making to authorities through Enabling Act. Enabling Actprovides all powers, authorities, definitions, and area to act, making the Act comprehensive. Allauthorities have to follow the Act. Neither blind power is delegated nor it is left unchecked.Conditions are imposed. Limits are provided. Which power is not exercised in such a mannerprovided in law and does not conform it, has no validity thus is null and void.

Law making is very lengthy and complex process. It involves readings, standing committees,

amendments proposed by members, voting and transmission to other house, joint session,reconsideration, and finally assents of president etc. Legislation cannot afford to follow thisprocess for each and every law required to run day to day affairs, therefore, this authority oflaw making is delegated with certain provisions to avoid its abuse.

Ratification is another parliamentary control over the delegated legislation. All authorities haveto get ratified their legislation from legislature. This provision is provided when powers aredelegated. Some time no entire house ratifies it, but merely committee of the house considersit. Simple majority is required to ratify it.

Question and answer process during the interval period in parliament is also a check, whichcontrols the arbitrary powers of delegated legislation. Concerned minister has to answer thequestion.

Private members also can put questions and amendments before voting for ratification. Theycritically examine the requirement of the law being ratified. They may also object the contractssuch as motor way, high way, and housing schemes etc.


15/34

Private members not only put questions but also may put private bills, which is effective controlover the delegated legislation.

Motion of no confidence is another check to control arbitrary power but this action is not takenso far in Pakistan, but as far as provision of the control of arbitrary powers are concerned, it is a

way to do so.

2. Judicial control: Personal relief to the aggrieved party is granted in judicial process.Whoever makes writ takes the advantage of relief.

This control comes, under four categories. They are as follows:

(1) If delegated legislation is against constitution: Delegated legislation may be ultravires the Constitution. Legislation declares such legislation null and void after its dueconsideration.

(2) If Enabling Act is against constitution: Delegated legislation may be ultra vires theEnabling Act. This ultra vires goes against the Constitution. Legislation declares such legislationnull and void after detailed going through.

(3) If delegated legislation is against Enabling Act: An instrument of subordinate legislationmay levy no tax, fee, or other pecuniary imposition unless the Enabling Act specificallyauthorizes such imposition. Where the statute authorizes a local authority to levy tax onbuildings on the b asis of the annual rental which a hypothetical tenant may pay in respect ofthe building, the authority cannot make a rule authorizing levy of tax at a uniform rate

according to the floor area of the premises, irrespective of its letting value.

(4) Unreasonableness of delegated legislation: Another aspect of substantive ultra vires ofdelegated legislation is the question of its reasonableness. If the law enacted is unreasonable,courts declares it null and void after due investigation.

3. Procedural control: Parliament lays down the procedure by which abuse of administrativepower is controlled. Procedural control mechanism has the potential to meet the above notedrequirement by allowing specific audit of rules by those for whose consumption they are made.Procedural control mechanism operates in three components such as antenatal publicity,

consultation, and postnatal publicity.

(1) Antenatal publicity: It is communication to interested groups before enactment.Publication attracts suggestions or proposals etc. What shall be punishment of offence, whatshall be examination criteria, what shall be study hours, what shall be the degree name, are theinstances in which prior communication to interested parties is made.


16/34

(2) Consultation: Where procedure lays down the prior consultation with potential victims,it must take place before enactment. S. 22(f) of Industrial Relations Ordinance, 1969, providessuch power to commission for the enactment with prior consultation of government. It is ademocratic process thus increases acceptability and affectivity. Where obligatory consultation

is not made, enactment is declared null and void. President, Vice Chancellor, FederalGovernment, Provincial Government has to consult with their respective bodies before goinginto legislation. These institutions are presumed guardians of their respective subjects. Answerof this consultation may contain only yes or not.

(3) Postnatal publication: Under this mode, communication to public at large is made afterthe law has been made in its final shape. For example , prospectus is provided to studentsbefore awarding the admission. It contains laws, which have been made thus communicated tothose over whom they shall be applicable after getting admission.

Postnatal communication is a necessary element in the rule making process because the dictumthat ignorance of law is no excuse is based on the justification that laws are accessible to thepublic.

Judicial review: General principles of law are applicable to judicial review, in respect ofexecutive acts. Judicial review prevents the abuse of administrative powers. If administrativepowers are abused what remedy shall be available? Where option is available there abuse ofpower exists. Judicial review controls arbitrary powers. It confines or limitizes the use ofarbitrary powers. It also ensures its fair use and provides justice against abuse, if any.

The scope of judicial review has often depended on whether a given function is classified as judicial or administrative in nature. The functionaries of State derive their powers from theConstitution or laws and are required to act clearly within the defined parameters of law.

In administrative action, question whether rights are given or not arises but as far as judicialreview is concerned, right cannot be taken away. Where administrative action takes away theright, judicial action declares it void. Quasi action may declare someone blacklist. Wheresomeone is deprived from his rights, reasons are mentioned. Someone can be terminated fromservice. Grant of license or induction is vested right of administration.

In judicial process opportunity is provided to aggrieved party. Allegations are proved onevidence. Judicial review follows procedure.

Executive action does not follow any procedure. Procedure may cause delay in action, whichmay result in loss. Omission of procedure is guarantee of expedience of action. Embargo cannotbe imposed on discretionary powers.


17/34

Judiciary can declare appointment void if irregularity is observed but cannot name the personto appoint. Right of appointment again vests to administration. Within limit of law, any personcan be appointed. Suitability can also be preferred. Judiciary cannot interfere in such matters.Discretionary powers solve day to day problems. Illegality in administrative action makes it

void.1. Error of jurisdiction: When decision is made beyond the limit of law or authority is callederror of jurisdiction. Where order is made without having any authority is error of jurisdiction.

2. Error of procedure: Where particular method is not applied in doing particular thing iscalled error of procedure. Where appointment is made without advertisement and call ofapplications contains error of procedure. Violation or omission of procedure is error ofprocedure. Where procedure is not adopted or wrongfully used?

a) Mala-fide : Different motives make the administrative action mala-fide . Acquisition of landfor the purpose of public benefit is right justification but its use for commercial purpose is mala-

fide . Immediate purpose if proved remote comes under mala-fide . Where dishonesty iscommitted is mala-fide . Benefit given to one on the price of loss to other is mala-fide . Transferis the right of administration, but transfer cannot be made for the adjustment of blue eyedperson. Where there is discrimination there is mala-fide intention.

b) Improper purpose: Anything, which is taken for specific purpose should remain for thatpurpose. It should not be utilized for any purpose for which it was taken. Specific purposeshould be taken into account. If land is acquired for the construction of grid station, it should be

used for the construction of grid station. Construction of golf club or residence is improperpurpose for which land was not acquired. If the specific purpose is not met, decision can bepronounced void. Any act of public functionary is supposed within the limits of law. Any person,who alleges it in contravention to the policy, should prove its illegality or improper purpose.The power given to public functionary is administrative autonomy for expediency.Administrative autonomy should not go beyond the limits of law. Ultra vires can be challengedand got declared void, but remedy is not provided. Here law does not mean the Act ofParliament but mere judicial precedents.

c) Irrelevant consideration: Consideration of the act must be relevant. Act must beinterconnected. If a subscriber applies for the connection of telephone connection andauthority imposes condition that connection shall be provided if he let department allowpassing cable from his house is irrelevant consideration. If college authority refuses to makecard for students on the reason that sufficient staff is not available is irrelevant. Arrangement ofstaff is duty of college and not of the students.


18/34

d) Relationship of the facts to consideration: Any matter, which is being considered, shouldbe relevant and must have some relationship. If police can make peaceful apprehension, use offorce leads irrelevancy. If alleged accused runs away and avoids apprehension, then police canuse force to arrest him. Such use of force has relationship of the facts to consideration.

e) Mixed consideration: Executive authority exercises power. Reasoning of use of powermay or may not relevant. Relief is granted where consideration is mixed with relevancy andnon-relevancy. If sewerage facility is provided due to avoidance of public nuisance and nearnessof office is termed as mixed consideration. If sewerage is provided due to avoidance of publicnuisance it is relevant consideration. Where sewerage is provided due to nearness of office isirrelevant consideration. Where both considerations are put together is called mixedconsideration.

f) Ignoring relevant consideration: Where strong relevant factor is ignored and less

important factor is considered is called ignoring relevant consideration. Irrelevant matters aretaken into account rather than relevant ones. Where societies are formed in college based oninterview and experience of individuals and the experience considered is short in the presenceof long experience, it is called ignoring of relevant consideration. It is challenge-able. Defectiveselection is liable to announce void.

g) Colorable exercise of power: Any abuse in nomenclatures with colorable exercise ofpower. Any abuse gives its own colour.

h) Un-reasonability: Every action should be reasonable. All people must be treated equally.

Treatment of one should remain with others. Equity & equality is justice. Confirmation ofemployee is discretion of administration but causing delay in confirmation without anyreasonable cause is unreasonable. Also discrimination in confirmation is abuse of power. Whereother employees are confirmed after successfully completion of probation, no one should beleft alone.

i) Refusal of discretionary power: Where law gives powers but it is not used with owndetermination is called refusal of discretionary power.

i) Non-consideration of the matter of the authority itself: Where higher authority passes

out of turn order to do something and lower authority accepts such order irrespective ofdiscretionary power is termed refusal of discretionary power.

ii) Acting under dictation: Where authority having discretionary powers fails to act uponown determination and interference of others decides matter is denoted acting underdictation.


19/34

iii) Imposition of limitation on the discretionary powers: If the action is taken blindly withouthearing of other party is called imposition of limitation on the discretionary powers. Wherepolicy negates discretion comes under this heading.

iv) Acting mechanically: Every officer is bound to examine carefully whichever he has to sign.

If he relies upon junior and signs without examining the document is action mechanically.Where use of mind lacks is mechanical act. Mere signatures are insufficient. Noting is necessarywhich shows consideration before approval. Grounds of approval should be mentioned own.

3. Error of judgement: Decision by the Quasi-Judicial Authorities not based on reason, i.e.,unreasoned decision.

a) Absence of the principles of natural justice: Administrative decisions are based on theprinciples of natural justice. Where these principles are not adopted, judgement remains witherror.

b) Decision made having mala-fide intention: Where judgement is made prior to hearmatter under dispute is termed mala-fide intention to pass judgement thus void.

i) Personal interest: Where justice admits personal interest of the authority passing it ispersonal interest thus it is error of judgement. Judgement must be without having personalinterest. Personal interest weakens the essence of justice.

ii) Prejudiced: Where an employee makes complaint against higher authority and higherauthority ceases his electric or water supply, it is termed as act with prejudice thus comes

under error of judgement. It may be of two ways as under:

(1) Decision made not in accordance with law: Law is total ignored and judgement made lacksapplication of law.

(2) Decision falls only on the sweet will of Quasi Judicial Authorities but not on law: Not onlylaw is ignored but decision is made merely on the sweet will of the management.

(3) Abuse of administrative autonomy: Every decision by such authorities has the respectfulstatus in the eyes of Court except if such authorities cross the limits of law/commits ultra vires

of the law.

Judicial review of administrative action:

1. What is judicial review:

2. Why judicial review:


20/34

3. When review is made:

a) Re-delegation:

b) Acting under dictation:

c) Want of jurisdiction:

d) Irrelevant consideration:

e) Mala-fide action:

f) Improper use of power:

g) Avoid principles of natural justice:

h) Personal liking:

i) Personal interest:

4. Limitation of review:

a) Avoid replacement of administrative action:

b) Avoid imposition of opinion:

c) Confined review on question:

d) It is not appeal but circumstances:

5. Object of review:

a) Prevention of excessive use of power:

b) Protection of constitutional rights:

c) Discourage of abuse of power:

d) Establishment of rule of law:

e) Prevention of alternative legislation:

f) Preference of duty on interest:

g) Adherence of principles of natural justice:


21/34


22/34

A quasi-judicial authority adopts the principles of natural justice while discharging the mattersin decision making. These principles are not applicable in courts of law. This law is binding forquasi-judicial authority. This law is exercised during the determination of public rightparticularly when it is taking off. But where the legal justice is exercised there principles of

natural justice do not apply. Where such principles are not followed, decision made by theauthority is declared null and void.

On the other hand legal justice involves the provisions of law enacted by legislature andfollowed by the civil and criminal courts. It is applicable only in courts of law and not elsewhere.It consists on man made laws which are altered as and when required. They follow legalprocedure violence of which renders them illegal.

Procedure on natural justice: Application of natural justice remains defective if the followingprocedure is not applied:

1. Notice: This is the summoning the other party. Rule of natural justice includes propernotice to be served to the party, opportunity to be given to the party of hearing and defence.

2. Communication of allegations: Allegations imposed must be communicated to the party.No one should be surprised. Allegations should come into notice of the person who has todefend his case.

3. Fair right of hearing: There is a maxim audi alteram partem means hearing of the otherside. No one should be condemned being unheard. It is one of the principle of natural justice.Hearing should be detailed and opportunity of hearing in writing should also be given.Reasonable time is given for inquiry. Normally 7 to 14 days are given to hold inquiry. Placewhere hearing is to be conducted should also be reasonable. It may either be place of workingor office of the inquiry officer. Officer of the same department should avoid holding inquiry.Respondent is provided full opportunity to express himself. Production of witnesses and cross-examination to witnesses is also one of the requirement of the principles of natural justice.Opportunity of documentary proof is provided. Unnecessary discussion is not allowed.The courts have held that giving notice to the party concerned is not adequate in all cases. Theparty should also be afforded reasonable opportunity of producing his defence.

4. Communication of judgement: Once the case has been decided, its communication ismade to respondent. Secret decisions are not allowed. Reasons are also communicated onwhich decision is made. Mere communication of decision is insufficient if the reasons are notattached with it. Appeal to higher authority is made within ten (10) days.

5. Rule against bias: Judge cannot be Judge of his own cause. There are three kinds of biasessuch as:


23/34


24/34

It is related to the suffering of particular locality and only the person from that locality maybring writ against public functionary. Person from remote area cannot bring writ.

iii) Suo motu : This is the action of Court either at its own motion or on application. Thisremedy is not provided under constitution but inherent powers of Court govern it. S. 561 A of

Code of Criminal Procedure deals with it. Also S. 151 of Code of Civil Procedure deals it.

iv) Public interest litigation: This type of remedy is different than of all. Where aggrievedparty exists but due to any problem, it is not able to put writ petition, there any relevant partycomes to assist him in litigation. Person living in Peshawar cannot move writ petition for theaggrieved person at Lahore. It is discretion of Court to provide remedy upon the recognition ofright. Any lawyer can move writ petition where WASA commits default in filling of pits on roadsmade during line lowering. Lawyers himself are not aggrieved party in a case where they putwrit to Court for public benefit.

Mere suffering of one is person is insufficient. There must be suffering of some other persons.Demolition of post office from the present location of Gulberg near Home Economics College toanother is one of example . Writ was issued without remedy.

People who were suffering with the pollution arising out from Margalla Hills were shifted toanother place in result of writ made by the social society of Islamabad.

b) Alternative remedy: What a person shall do where a public functionary commits wrong?He has to move writ for review. But writ for review cannot be moved until the civil suit,Ombudsman, and administrative remedies are not exhausted. Where justice is slow andexpensive and no effective remedy is available, alternative remedy fills the space. Directapproach to High Court is discouraged. Alternative-remedy without adequate remedy is denialof justice. Upon the commission of wrong of public functionaries, remedy provided byOmbudsman and civil courts are not considered sufficient.

Article 199 of the Constitution and S. 9 of Code of Civil Procedure, debar to Civil and High Courtto hear case where writ jurisdiction lies to tribunal. Where employee is bound to invoke toPunjab Civil Service Tribunal, he cannot make writ to Civil or High Court. Direct approachconstitutes contempt of Court.

c) Discretionary remedy: According to Code of Civil Procedure all suits nature of which is civilshould go to civil courts except which are expressly or impliedly barred. Sometime judiciaryrecognizes the right but remains fail to provide remedy. Dissolution of governments has alwaysbeen opposed without remedy to the government dissolved. This can also be termed remedywithout remedy.


25/34

d) Doctrine of Laches: It means negligence or unreasonable delay in asserting or enforcing aright. The equitable doctrine, that delay defeats equities, or that equity aids the vigilant and notthe indolent. A Court of equity has always refused its aid to stale (old, dry) demands, where aparty has slept upon his rights and acquiesced (agree, comply, consent) for a great length of

time. Nothing can call forth this Court into activity but conscience, good faith and reasonablediligence, when these are wanting the Court is passive and does nothing.

When an equitable right is analogous to a legal right, which is subject to a period of limitation inbrining actions to enforce it, the Court of equity may by analogy apply the same provision tothe equitable right.

e) Illegality not unsuitability: Only question of law, e.g., Public Functionary posted a personto do job on rotation basis, he cannot file a petition in Court that this job is not suitable for him.But where authority transfers a person mala-fide , he can file petition in Court and challenge

such mala-fide intention but it should be appeared on the record.

i) Either law determines the rights and duties or not: Court can interfere where rights andduties both are involved.

ii) Not on the question of suitability: Suitability is not the sole methodology to determinepromotion, but it can be the point of determination.

f) Relief if public functionary commits ultra vires of the law: Where public functionaryremains fail to implement law and commits ultra vires of law, he is liable to punish.

g) Court cannot resist public functionary but in case of ultra vires of the law: Underdiscretionary power of the public functionaries, Court cannot interfere in their matters but onlycan divert their attention to prevent the commission of wrongs.

h) Court cannot replace the administrators discretion: But only on the merit/illegal act.

i) Decision by Court only dependable on illegality by Public Functionary and notsuitability: Where public functionary commits wrong so far as legality is concerned, Court canprevent them in doing such thing but suitability is apart from the jurisdiction of the Court.

2. Ordinary judicial (private) remedy: Section 9 of Code of Civil Procedure provides suchtype of remedy.

3. Administrative remedy: Higher authority of the same department or organization isreferred to do justice. Termination of three students from Punjab University Law College can bereferred for review to Vice Chancellor who is the highest authority in the university.


26/34

4. Tribunal remedy: High Court is not directly approached until the higher authority has notbeen exhausted before going to Court.

5. Ombudsman remedy: This remedy is available for all cases which are individual in nature.Where case is pending in Court of law, this office is unable to hear against such case. Parallel or

simultaneously remedies are not provided. Before going to Ombudsman, it should be provedthat chance of relevant authority has been availed.

Public remedy: Under Articles 184 and 199, no discretion is allowed. Courts are bound to givedecision. Relief may not be granted. Limitation does not matter, either in writs and criminalcases. They may be brought in Court within reasonable time period.

Public functionaries have right to decide cases. Courts have no right to interfere in theirfunctions. Court may declare their decisions null and void but in all cases, public functionarieshave to settle cases and not the courts. Also they have to adhere the limitation of law. Theyenjoy administrative autonomy. They determine suitability in public interest. Relief is grantedwhere ultra vires are committed. Courts do not substitute or replace the decisions of publicfunctionaries but may declare void.

Writs under Constitution: Public remedy means the remedy as against the public functionaries.They are five in nature by law as follows:

1. Mandamus : It reveals from mandatory. It means, we command. A high prerogative writwhich issued in the Kings name from the High Court of Justice on application to the KingsBench Division, to some person or body to compel the performance of a public duty, where noother effective means of redress was available. It has been replaced by an order of mandamus.

Under this writ, Court orders to public functionary to act in such a manner complained. It bindspublic functionary by law to do certain act necessarily. If he refuses to do, writ of mandamus isinstituted. It was issued against Army Courts during the regime of Nawaz Sharif.

When issued: When public functionary fails to do which is his duty.

Object: It objects to compel the public functionary to do duty or certain thing.

Against whom issued: Public functionary who negates his duty to do.

Who may apply: Any aggrieved person may apply for the issuance of this writ.

2. Prohibition : It is reverse of mandamus. Under this writ, Court binds the public functionarynot to act in such a way complained against. Where public authority acts, which is prohibited,writ of prohibition is issued. Court prevents authority to do certain act. It is just like stay order.


27/34

A writ formerly issuing out of the High Court to restrain an inferior Court from exceeding itspowers. Prohibitions were of three kinds, i.e., an absolute prohibition was peremptory, andwholly tried up the inferior jurisdiction, a temporary prohibition (a prohibition quousque ) wasoperative only until a particular act was done, and was ipso facto discharged on the act being

done, a limited or partial prohibition (a prohibition quoad ) extended only to that part of theproceeding which exceeded the jurisdiction of the inferior Court, allowing it to proceed as tothe residue.

Meaning of prohibition: It means not to act in such a way adopted.

When issued: When public functionary having no powers to do certain thing.

Object: It objects to keep in limits the public functionary.

Against whom: It is issued against public functionary to whom prohibition is required. It is not

issued against private person.

Who may apply: Any aggrieved person may apply.

3. Habeas corpus : It is illegal detention made by public functionary or government official.High Court orders writ for production of the person so detained.

Where a private person makes such wrongful detention or restriction, it amounts kidnappingthus the writ of habeas corpus cannot be got issued.

S. 100 of Code of Criminal Procedure empowers Magistrate for the issuance of orders for thesearch of person wrongfully detained.

It is a prerogative writ directed to a person who detains another in custody and commands himto produce or have the body of that person before the Court.

Meaning of habeas corpus:

When in illegal custody:

When in government custody:

Order against whom: Government and private.

Who may apply: Everyone may apply for the issuance of writ of habeas corpus.

No in criminal cases:

4. Quo Warranto : It is a common writ against any public functionary as to why he has actedwithout jurisdiction or authority. His action is mala-fide . His action is declared as void if not


28/34

justified before law. When power or authority is used without any lawful justification then writof quo warranto lies. Constitution of Army courts during Nawaz Sharifs regime is oneof example whose nullity was declared under this writ. Where any appointment is made withoutlawful justification is also subject of this writ.

Meaning of quo warranto: Act without jurisdiction. How you posses jurisdiction? As to why youhave acted without jurisdiction?

When issued: When appointment is illegal.

Against whom issued: Can be issued against Prime Minister, Advocate General, Judges of HighCourt, Attorney General, Speaker of National Assembly, Chairman of Senate, and AccountantGeneral.

Object: This objects to discourage the illegal possession of position and act without jurisdiction.

Who may apply: Any aggrieved person may apply for the issuance of writ of quo warranto.

5. Certiorari : A writ directed to an inferior Court of record, commanding it to certify to theQueen in the High Court of Justice some matter of a judicial character. It was used to removecivil causes or indictments from inferior courts of record into the High Court, that they may bebetter tried, or if there has been abuse or error, re-tried.

Every administrative action is review-able except in two cases, i.e., disciplinary forces such aspolice, army, airport security force etc. and tribunal cases. In two cases right of writ is not

available.What is certiorari: Request for the record of case. It made by a High Court to lower court thatpreviously reviewed the case.

Private remedy: This is also called ordinary civil remedy. When case is tried in civil Court thenremedy of High Court extinguishes. These remedies are available in UK and USA frequently butnot available in Pakistan and India. In UK and USA public functionary can be sued as commonperson. In Pakistan lengthy process is involved into it. Two months notice is required to publicfunctionary before going to Court. Head of Department responds in relation to notice. If such

permission is not granted, no suit shall lie. State affairs are protected and kept concealed fromdisclosure. These both are also called judicial or constitutional remedies. Rests are called quasi- judicial remedies.

District Judge has not sufficient powers to compel public functionary to produce relevantrecord. High Court may require such record. Institution of suit against public functionary is not


29/34

easy job. There are three types of private remedies available against the wrong committed bypublic functionaries. These can be categorized as follows:

1. Declaration: It declares the act of public functionary void. Since the act is wrong thusdeclared void. It merely declares right.

The origin of declaratory action in English law is said to be equitable. A declaratory actionsignifies a judicial remedy, which conclusively determines the rights of the parties. Any personentitled to any legal character, or to any property, may institute a suit against any persondenying or interested to deny, him title to such character or right. And the Court may in itsdiscretion make therein a declaration that he is so entitled, and the plaintiff needs no in suchsuit as for any further relief.

Declaratory suits can also be filed against government bodies, local authorities, and statutoryauthorities. Grant of declaratory decree is a matter of discretion with a Court. A party whocomes to the Court with unclean hands is not entitled to declaratory decree. Declaratory reliefcan be refused where the declaration sought appears to it either useless or anfractuous one(turned into the wind).

2. Damages: Damages are available in civil courts against public functionaries. They can beprayed as in tort. Where fine is imposed to public functionary, it causes their dismissal fromservice. Damages do not cause removal from service.

In Pakistan and India, a distinction is drawn as a result of the historical developments betweenthe local authorities and the statutory corporations, on the one hand, and the state, on theother for the purposes of an action for damages.

3. Injunctions: Order 39, Rules 1 and 2 of Code of Civil Procedure govern injunctions.Perpetual injunctions are granted under Specific Relief Act. It is merely prevention to do certainact, which is prohibited. It is prohibited in UK under Crown Proceedings Act, 1947. But these aregranted in Pakistan. They are not considered as effective remedy. Civil Court may issueinjunctions against public functionaries.

Historically, the injunction has been as wide as prohibition in its functions in English law.Injunction is a judicial process by which one who has invaded or is threatening to invade therights, legal or equitable of another, is restrained from continuing or commencing suchwrongful act.

Federal Ombudsman : It is forum for quasi-judicial remedy. Office of the Ombudsman does notwork like tribunals. This office does nothing except compromise as between the parties. This
http://www.nasirlawsite.com/act&ordi/mohtasib.htmhttp://www.nasirlawsite.com/act&ordi/mohtasib.htmhttp://www.nasirlawsite.com/act&ordi/mohtasib.htm


30/34

office just passes order compliance of which seeks the sweet will of the department concerned.This order just determines rights and not their enforcement. It is not judicial setup.

Appeal: Appeal can be made against the order of Ombudsman before president. Order of thepresident is considered final.

Constitution: President appoints Ombudsman for a period of five years. No subsequent appointis made. Status of the Ombudsman is as equal to the judges of Supreme Court.

Qualification: He must be the Judge of the Supreme Court or qualified as the Judge of SupremeCourt.

Jurisdiction: Its jurisdiction covers all the departments of federal government. Complaintsagainst negligence, mal administration, corruption, inefficiency, abuse of power, misuse ofauthority and processes are the areas, which are subjects of federal Ombudsman.

Enforcement of orders: Implementation of the order of Ombudsman depends upon the sweetwill of government. This office has no direct power to enforce its orders as tribunals have. Onlythe will of the government is the sole way to enforce its orders.

Most favourite complaints: WAPDA, WASA, Education, Labour, Telephone, and Sui Gas etc. arethe most favourite department against whom public lodges complaints usually.

Limitation: Limitation Act is not applicable for the institution of complaints beforeOmbudsman. But complaint should be lodged as soon as possible. Delay does not cause failure

of administration of justice. No Court fee is applicable on complaints.Verification: Verification is the one of important part of the complaints lodged beforeOmbudsman. It states that this case is neither pending in courts, nor this case has been decidedin courts. Here principle of res subjudice is applicable. All the contents of the complaint are trueand correct. Complaint was made to the authority concerned for remedy but it is left withoutremedy.

Exemptions: Security forces are exempt to complain. Special procedure for application is notnecessary. Complaints against corporations are also cannot be lodged. Grievance should be

individual and not of the nature of public. Complaint should be against the department and notagainst individual.

Annual report: Both federal and provincial Ombudsmen prepare their annual reports andsubmit them before president and governor respectively.

1. Judge of own cause: There is a maxim that no one should be Judge of his own cause. It isin contrast of the principles of natural justice. Following are the reasons:


31/34


32/34

e) Communication of allegations:

f) Communication of judgement:

g) Rule against bias:

h) Punishment only on allegations alleged:

i) Right of higher authority:

j) Authority of different department:

k) Evidence:

l) Defence:

m) Representation through advocate:

n) Right of denial:

4. Consequences:

a) Appeal shall lie:

b) Abuse of power:

c) dissatisfaction:

d) writs:

e) declaration:

f) damages:

g) injunctions:

h) remand:

i) re-trial:

Rule of law:

1. definition:

2. Sources of rule of law:

a) Constitution:


33/34

b) Customs:

c) Conventions:

d) Religion:

3. Principles:

a) Everyone is subject of law:

b) Equal:

c) In-discrimination:

d) Protection of rights:

e) Double jeopardy:

f) Retention of property:

g) Impartiality:

h) No torture for confession:

4. Defects:

a) Exception with regard to king: He can do no wrong.

b) Prerogative powers of king: He can issue passport.

c) Discretionary powers: King can give or cease citizenship.

d) Postal censorship: Letters can be checked.

e) Public Authorities Protection Act: It protects public authorities.

5. Meaning of Rule of Law:

a) Law and Order:

b) Determination of rules:

c) Extinction of discretionary powers:

d) Legal procedure:

e) Application of natural justice:


34/34

f) Review against administrative action:

g) Authority of civil court rather than tribunals:

Admnistrative Law

Documents

Transcript of Admnistrative Law