Mobile View

doctrine of u Search
   Advanced Search Search Tips
View Complete document
Anand Prakash And Anr. vs Assistant Registrar, ... on 27 January, 1966
Showing the contexts in which doctrine of ultra vires appears in the
document
Change context size 
Small
 
Current 
Large
 
Larger

5. The main point canvassed, however, relates to the jurisdiction of the

arbitrator to pass interim orders in the nature of an injunction or stay. It
is submitted that an arbitrator is a statutory authority He has not been
conferred anv such jurisdiction or power. The impugned injunction
order was ultra vires the powers ot the arbitrator.

6. In order to consider the submission in its proper perspective it is

necessary to see the scope and incidents of
the doctrine of ultra vires The term 'ultra vires' simply means "beyond
powers" or "lack of power" The term 'ultra vires' signifies a concept
distinct from "illegality" In the loose or the widest sense every thing that
is not warranted by law is illegal hut in its proper or strict connotation
"illegal" refers to that quality which makes the act itself contrary to law.
The term 'ultra vires' points to the capacity or power of the person to do
that act. It is not necessary that an act to be ultra vires must also be
illegal. It may be but it may as well, not be. An act may be illegal
because it is prohibited by law or for reasons like fraud, undue influence
or because it may be opposed to public policy. These reasons are not
occasioned by the absence of any power in the person to do the act. The
essence of the doctrineof ultra vires is that the act is done in excess of
the powers possessed by the person in law. This doctrine proceeds on
the basis that the person has limited powers. In S. R. Das's 'Law
of Ultra Viresin British India' Tagore Law Lectures. 1903, the law is
stated thus at page 12 "In speaking of an ordinary citizen we do not
speak of any action being ultra vires To an ordinary citizen whatever is
not expressly forbidden by the law is permitted by the law. It is only
when the law has called into existence a person for a particular purpose
or has recognised its existence -- such as the holder of an office, a body
corporate etc -- that the power is limited to the authority delegated
expressly or by implication and to the object for which it was created In
the case of such a creation the ordinary law applicable to an individual
is somewhat reversed Whatever is not permitted, expressly or by
implication, by the constating instrument, is prohibited, not by any
express prohibition of the Legislature but by
the doctrine of ultra vires "

If a person exists for a limited purpose alone and that purpose is defined
by the law whether expressly or by implication,
the doctrine of ultra vires governs him and confines him to that
purpose The person can act within the four corners of its constating
instrument The doctrine prevents him from acting bevond the conferred
powers.

7. An arbitrator under the Co-operative Societies Act is a creature of

that Act and the rules framed thereunder. Chapter XIV of the Rules
deals with arbitration. The various kinds of disputes, that can be referred
are mentioned in Rule 115 Under Rules 116 and 117 the matter can be
referred to the Registrar or to an arbitrator or to joint arbitrators Rule
118 lays down the procedure to be followed by the arbitrator. He has to
fix dates and place for hearing of the dispute He has the power to
administer oath and to require by summon (1) the attendance of the
parties concerned and of witnesses and (2) the production of books and
documents relating to the matter in dispute Under Rule 122 a person or
a witness failing to comply with the summon issued by the arbitrator is
liable to the penalties prescribed by Paragraph 7(2) of the second
schedule to the Code of Civil Procedure 1908: that the arbitrator has not
been given any power to inflict or enforce those penalties The arbitrator
has to bring the matter to the notice of the relevant civil court and the
civil court ran proceed as if if had issued the summons Under Rule 128,
the arbitrator has to make a memorandum of the statements of parties
and the witnesses as are examined. He has to give a decision or award
upon the evidence so recorded and after consideration of any
documentary evidence produced by either party. He is further required
to give the decision or award in accordance with justice, equity and
good conscience. The powers of the arbitrator in giving a decision or
award are circumscribed, by several conditions He has to fix the date
and place ot hearing the dispute, to afford the parties an opportunity of
hearing. He has then to record the evidence adduced by the parties The
arbitrator can give his decision or award only upon a consideration of
the evidence recorded or produced These rules make it clear that the
arbitrator has no power to give a decision or award before fixing a date
for hearing the dispute and before recording any evidence In the instant
case, the sole arbitrator passed the impugned order soon after the
petition for arbitration was instituted. He had not till then fixed any date
for the hearing of the dispute nor afforded any opportunity to the parties
to adduce any evidence There was no evidence before him upon a
consideration of which he could give a decision or award. The
impugned order, therefore cannot he treated as a decision or award
authorised by Rule 123.

"Where an Act confers a jurisdiction, it impliedly also grants the power

of doing all such acts or employing such means as are essentially
necessary to its execution "

11. Lord Selborne in Attorney General v G. E. Rly. Co., (1880) 5 AC

473 (478) laid down the canon of construction of
the doctrine of ultra vires as follows:

"I agree with Lord Justice James that this doctrine ought to be

reasonably, and not unreasonably understood and applied, and that
whatever may fairly be regarded as incidental to. or consequential upon
those things which the Legislature has authorized, ought not (unless
expressly prohibited) to be held by judicial construction, to
he ultra vires Referring to these observations of Lord Selborne
Jagannath Dass. J. observed: Bishnu Charan v Stale of Orissa, AIR 1952
Orissa 11 at p. 16:

To complete the citations, the same view was expressed by

Gajendragadkar C. ,T. in Central Bank's case, AIR 1964 SC 743 these
authorities establish that incidental or consequential powers are
available in order to enable the statutory authority to achieve the object
for which it has been created The tribunal is considered to have power
to do all such things as are reasonably incidental to and may properly be
done to advance the main purpose, though such powers may not have
been literally conferred. He can employ such means and do such acts as
are necessary to successfully implement the conferred power These
subsidiary powers are known as incidental or consequential powers and
are implied in a statutory tribunal by the doctrine of ultra vires
Mobile View

doctrine of u Search
   Advanced Search Search Tips
View Complete document
V. Ramiah vs The State Bank Of India By Its ... on 23 December, 1966
Showing the contexts in which doctrine of ultra vires appears in the
document
Change context size 
Small
 
Current 
Large
 
Larger

13. Before proceeding to the main argument, the interpretation of the

true character of the final memorandum, and the case-law cited on that
aspect, we may conveniently deal with the question of the resolution of
apparent conflict in the case-law on the scope of our interference, in a
situation of this kind. It may be best to condense the argument of Sri
Tiruvenkatachari on this aspect, before attempting to resolve the
conflict. According to Sri Tiruvenkatachari, there would appear to have
been some misconception, even with regard to the precise scope of the
dicta in Rex v. Electricity Commissioners L.R. (1924) 1 K.B. 171.
While the passage in the judgment of Atkin, L.J., relating to the
controlling jurisdiction of the King's Bench Division, "Wherever any
body of persons having legal authority to determine questions affecting
the rights of subjects, and having the duty to act judicially, act in excess
of their legal authority", has received wide notice, and is almost a
classic formula, equal attention, has not been paid, according to him, to
the dicta of Bankes, L.J., in the same decision that, "As statutory bodies
were brought into existence exercising legal jurisdiction, so the issue of
the writ came to be extended to such bodies". In other words, there are
several pre-requisites for the exercise of this jurisdiction even with
regard to statutory bodies. There must be a decision, that decision must
relate to the exercise of some function of a legal character, and it must
affect some right. Further, according to learned Counsel, the scope of
this interference in writ jurisdiction is, more or less, defined by
the doctrine of ultra vires. Where a particular act or exercise of power
or function exceeds legal authority, infringes some legal restriction, is
either incompetent or mala fide or, being frankly quasi-judicial
contravenes some norm of natural justice, it may be struck down; but
not otherwise. Learned Counsel has stressed the dichotomy in the case-
law, particularly in the United Kingdom, on this particular point. It was
also noticed by Ramachandra Iyer, C.J., in T.G.M. Pillay v. Indian
Institute of Technology , in the brief form that Vine's case (1956) 3 All
E.R. 939 : L.R. (1957) A.C. 488, was not a straight forward case on the
Law of Master and Servant, but on infringement of statute, taking away
the very basis of the decision, while Barberis Case (1958) 1 All E.R.
322, was a mere breach of contract, remediable only in an action for
damages. The following incidents in the developments of the case-law,
on this aspect, would appear to be of interest and significance.

18. On this aspect, therefore, it does appear that the dichotomy is itself
referable to the question whether a statutory body, being bound to act
quasi-judicialy, infringes any norm, or acts incompetently, or in excess
of a power under a binding law; in brief, the doctrine of ultra vires.
But where the statutory body acts in the same way as any private
individual may do, by terminating the employment under contract, by
borrowing money or lending money, or as a tenant or a landlord of
premises, the ordinary rule would be that the common law remedies
available to the aggrieved party would exclude writ jurisdiction,
precisely as in the case of a private individual. Sri Kumaramangalam
appeared, at one stage of the arguments, to be somewhat widening the
scope of this proposition, by this reference to the following passage in
"Administrative Law" by J.F. Carner (1963 Edition) at pages 96 to 98.
The passage runs as follows:

Apart from express statutory provisions, review by the Courts of a

decision of an administrative agency has always been based, in our legal
system, on an allegation that the agency has exceeded its powers, has
acted ultra vires. This is fundamentally a simple doctrine, based on the
common law All Governmental power must be recognised by the law
especially where that power is exercised in some manner which affects
adversely the property or the liberty of a subject, and that recognition is
given only to power that emanates from a single source, the Queen in
Parliament. Breach of 'natural justice' (as understood by the common
law and to be hereafter explained), lack of jurisdiction, faulty procedure,
bad faith, have all been put forward in certain contests as justification
for judicial intervention, but all of these, in so far as they may be
recognised at all by the Courts, are really but specialised applications of
the ultra vires doctrine; Parliament did not and could not have
intended to confer power that could be exercised in such a manner as to
flout "natural justice." The various aspects of ultra vires can
nevertheless be conveniently considered in this manner, if for no other
reason than that this traditional treatment enables the principles
established in the many decisions of the Courts to be considered in an
orderly fashion. It is in this field of the extent of Governmental powers
that the Courts have a traditional and important part to play in the
control of administrative agencies.

The principles according to which the Courts are prepared to apply

the ultra vires doctrine and review the exercise of the administrative
judicial or legislative acts of an administrative agency are as follows:

(a) Breach of the principles of 'natural justice';

(b) Excess of power (or 'substantial' ultra vires);

(c) Errors of procedure;

(d) Palpable errors of law;

(e) Failure to perform a duty;

(f) Bad faith; or abuse of power.

19. But, in our view, this passage is not in any sense radically different
from the submissions of Sri Tiruvenkatachari for the respondent Bank.
In other words, the scope of the doctrine of ultra vires is unambiguous,
and the dichotomy in the case-law is perfectly explicable. Therefore, if
the order in the present case is to be construed as a bona fide exercise of
the power derived from contract to terminate the employment, it cannot
be struck down in writ jurisdiction. It is not as if the appellant is without
his remedies. He has his remedies in common law, for damages for
wrongful dismissal, and, in a given case, such damages may indeed be
considerable. He has a perfect right to contend that, if the Bank proposes
to exercise its power under the contract to terminate his employment,
simpliciter, it should not couple this act with observations on the alleged
misconduct of the appellant, which is itself the conclusion of an enquiry,
allegedly vitiated by a failure to observe the principles of natural justice.
In other words, the Bank may certainly dispense with the services of its
employee, under a contract. It may not even be constrained to give him
a certificate, or a testimonial of unblemished conduct. But it cannot
virtually make averments against the conduct of the employee, when
dispensing with his service under contract. If it does so, that may
amount to wrongful dismissal or a breach of contract, and be actionable
under common law. Unless the interpretation is sustained that the final
order is not this, but merely a mask for a punishment imposed in
disciplinary jurisdiction, the refusal of the learned Judge (Veeraswami,
J.) to interfere will have to be supported by us, as perfectly justified.
Mobile View

doctrine of u Search
   Advanced Search Search Tips
View Complete document
Union Of India Etc vs Bhanudas Krishna Gawde And Ors. ... on 25
January, 1977
Showing the contexts in which doctrine of ultra vires appears in the
document
Change context size 
Small
 
Current 
Large
 
Larger

(3) that the principle of legality and the doctrine of ultra vires are not

abrogated even during the times of emergency and the exercise of power
under section 5 of the Act must have a reasonable nexus with the
purpose for which the power is conferred;
(4) that if according to the majority judgment in Additional District
Magistrate, Jabalpur v. Shiva Kant Shukla(1) even habeas corpus could
issue in cases where the order is not duly authenticated then the
conditions of detention can certainly be scrutinized and relief can be
granted if those conditions are found to be illegal or ultra vires;

The learned Additional Solicitor General has, in his rejoinder,

contended that while total release is of course different from regulating
conditions of detention, the former not being available by virtue of the
Presidential Orders dated 27th June, 1975 and January 8, 1976 issued
under Article 359 (1) of the Constitution which are uncondi- tional even
conditions of detention cannot be enforced by moving a court during the
period of emergency and that the contention based upon the principles
of legality and reason- ables and doctrine of ultra vires is
misconceived. The Additional Solicitor General has further submitted
that legality has to be understood as meaning the authority of law and it
so understood, a person detained in accordance with the conditions
framed under section 5 of the Act cannot complain that the conditions
are illegal or ultra vires, broader challenges based on fundamental
rights not being available; that the principle of reasonableness and
the doctrine of ultra vires have no bearing on subordinate legislation
framed under emergency laws; that the court cannot grant relief on
vague and indeterminate philosophical theories like the totality of law;
that as the line of demarcation between preventive and punitive
detention which is easily perceivable at the stage of detention becomes
progressively elusive and hazy when one comes to conditions of
detention. there is little scope for generalisation; that curtain has to be
drawn round a detenu to ensure effective- ness of detention which
cannot be sacrificed in the interest of security of the State; that the
observations made by the majority in Shivakant Shukla's case (supra)
regarding the area of judicial interference which are sought to be relied
upon on behalf of the detenus relate to the obvious eases where the
Executive itself could not and would not seek to defend a detention
order and can be of no assistance in the present cases where the detenus
seek to enforce a right to do something or to get something which is not
con t:erred on and given to them by law; that any right to personal
liberty or any facet or aspect thereof has to be found in some
constitutional provision to be enforced in normal times and ex-hypothesi
to become unenforceable during an emergency and reference to Articles
15, 25 and 26 of the Constitution completely ignores the fact that these
rights postulate a free citizen and cannot be enforced independent- ly
of Article 21 or Article 19 of the Constitution and in any case, the rights
claimed in the present cases have no relation to those Articles.
Mobile View

doctrine of u Search
   Advanced Search Search Tips
View Complete document
S.R. Bommai vs Union Of India on 11 March, 1994
Showing the contexts in which doctrine of ultra vires appears in the
document
Change context size 
Small
 
Current 
Large
 
Larger

73. At this stage, a reference to the nature and scope of judicial review
as understood in similar situations is helpful. In Administrative Law
(Sixth Edition) by H.W.R.

Wade, in the chapter 'Constitutional Foundations of the Powers of the

Courts' under the heading 'The Sovereignty of Parliament', the effect of
Parliament's intervention is stated thus: (at p. 29) 'There are many cases
where some administrative order or regulation is required by statute to
be approved by resolutions of the Houses. But this procedure in no way
protects the order or regulation from being condemned by the court,
under the doctrine of ultra vires, if it is not strictly in accordance with
the Act. Whether the challenge is made before or after the Houses have
given their approval is immaterial.' 3 (1977) 3 SCC 592 : AIR 1977 SC
1361: (1978) 1 SCR 1 10 1992 Supp (2) SCC 651 11 (1992) 4 SCC
506 SCR 413 : AIR 1965 SC 745 Later at p. 41 1, Wade has said that 'in
accordance with constitutional principle, parliamentary approval does
not affect the normal operation of judicial review'. At p. 870 while
discussing 'Judicial Review', Wade indicates the position thus:

"There are many cases where some administrative order or regulation is

required by statute to be approved by resolutions of the Houses. But this
procedure in no way protects the order or regulation from being
condemned by the court, under the doctrine of ultra vires, if it is not
strictly in accordance with the Act. Whether the challenge is made
before or after the Houses have given their approval is immaterial. (p.
den act. This use should also be prevented.