Remedies of administrative action

Answer:

Definition of remedy:

According to Black’s Law Dictionary-

“The means of enforcing a right or preventing or redressing a wrong, legal or equitable relief”.

 

Mr. Hamid Khan, a renowned lawyer, divided the remedies provided for redressing the wrongs done to citizens by the actions of administrators into two categories-

Public law remedies:

1.     Writ of certiorari or quashing order

2.     Writ of prohibition

3.     Writ of mandamus

Private law remedies:

1.     Actions for damages

2.     Injunctions

3.     Declarations

 

PUBLIC LAW REMEDIES:

In English law, the expression ‘prerogative remedies’ refers to the writs of habeas corpus, certiorari, prohibition, mandamus, and quo warranto.

The writ of quo warranto has been abolished and injunctions may now issue from the Queen’s Bench Division is similar circumstances.

In Pakistan and India, such writs, derive their authority form the constitutional provisions. In Pakistan, apart from departmental appeal on the executive side, the judicial remedy lies only with the prerogative writs, which the superior courts are empowered in issue.

1.Writ of certiorari or Quashing order:

A quashing order nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its power. The most common order made in successful judicial review is a quashing order.

If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings or very rarely, if there is no purpose in sending the case back, it may take the decision itself.

Certiorari jurisdiction is based on the principles that the superior courts must examine if jurisdiction is correctly exercised by an inferior court or tribunal and in accordance with law. In cases of abuse or excess of jurisdiction, the orders passed are liable to be correctly by the high court in exercise of judicial review and the constitutional jurisdiction. The exercise of certiorari jurisdiction draws no distinction between the persons performing judicial or quasi-judicial functions.

2.Writ of prohibition

A prohibiting order is like a quashing order in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively by telling an authority not to do something in contemplation.

Writ of prohibition prohibits a person from doing something more than his authority. The rationale of prohibition is that prevention is better than cure and it, therefore, comes into play at an earlier stage than certiorari.

Examples of where prohibiting orders may be appropriate include stopping the implementation of a decision in breach of natural justice, or to be prevent a local authority licensing indecent films, or to prevent the deportation of someone whose immigration status has been wrongly decided.

3.Writ of mandamus

A mandatory order compels public authorities to fulfil their duties. Whereas quashing and prohibition orders deal with wrongful acts, a mandatory order addresses wrongful failure to act. A mandatory order is like a mandatory injunction as they are orders from the court requiring an act to be performed. Failure to comply is punishable as a contempt of court.

For instance, of where a mandatory order might be appropriate include compelling an authority to assess a disabled person’s needs, to approve building plans, or to improve conditions of imprisonment.

Writ of mandamus is a judicially remedy issued in the form of an order or direction from the supreme court or a high court to any constitutional, statutory or non-statutory agency or body  to do some specified act which the agency or body is obliged to do under the law and which is in the nature of or public duty or a stator duty.

A mandatory order may be made in conjunction with a quashing order, for instance of, where  local authority’s decision is quashed because the decision was made outside its powers, the court may simultaneously order the court to remake the decision within the scope of its powers.

Mandamus is a private command to perform a certain act and has no negative function which is peculiar province of certiorari and prohibition. The command may issue to a purely administrative body. [District Magistrate vs Raza Kazim PLD 1961 SC 178]

Mandamus has been employed to restore to office persons wrongfully removed. [P.V. Blooer 1760]

A writ of mandamus may be issued in negative form. In India and Pakistan, however, mandamus is issued is useful in both positive and negative form.

Thus the court have used it to restrain the authorities from imposing or authorizing the imposition of a tax, to prevent them from enforcing a certain order cancelling a license to direct them not to enforce bye-laws to stop take over orders, to command the authorities not to carry out police inspection of private houses and to restrain government officials from enforcing the provisions of void status.

 

 

PRIVATE LAW REMEDIES

1.     Actions for damages

In Britain, damages are available as remedy in judicial review in limited circumstances. Compensation is not available merely because a public authority has acted unlawfully. For damages to be available there must be either:

·       A recognized private law cause of action such as negligence or breach of statutory duty. or,

·       A claim under European law or the Human Rights act, 1998.

In Pakistan and India, a distinction is made as a result of historical developments between the local authorities and the statutory corporations, on the one hand, and the state, on the other for purpose of and action for damages where the plaintiff suffered injuries in a road accident owing to the negligence of the employees of the government in staking bajri, it was held that the staking of bajri in a negligent manner for repairs to a highway cannot be said to be a sovereign act and cannot be protected as such.

2.    Injunctions

An injunction is an order made by the court to stop a public body from acting in an unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do something. In modern English law, however, it is a relatively unimportant method reviewing administrative action. It has never been available against the crown. The Crown Proceedings Act, 1947, reaffirms this position under section 21(1). Under recent rulings of the British courts, the scope of injunctions has become wider in English law, therefore, it is available against the crown.

In Pakistan and India, remedies of injunctions have been regulated by the Specific Relief Act 1877. In India, this act has been repealed by the Specific life Act,1963 but in Pakistan, in continues to apply. This act provides for perpetual injunction, mandatory injunction, and temporary injunction.

·       According to section 54 of Specific Relief Act, 1877: a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

·       Temporary injunction can be granted at any stage of the suit and are regulate by order 39 of the Civil Procedure Code,1908.

·       According to section 55 of Specific Relief Act 1877: a mandatory injunction can be issued to prevent of certain acts which the court is capable of enforcing.

The plaintiff in suit for injunction, whether perpetual or mandatory, can also claim damages either in addition to, or in substitution of, such injunction the court may in its discretion, award damages.

 

3.     Declarations

A declaration  is a judgment by the court which clarifies the respective rights and obligations of the parties to the proceedings, without actually making any order, unlike the other remedies the court is not telling the parties to do anything in declaratory judgment.

The origin of declaratory action in English law is said to equitable. It was originally available in the court of Chancery only where the plaintiff sought in addition to the declaration of some consequential relief.

Declaratory suits can also be filed against government bodies, local authorities, and statutory authorities Declaration can be issued by the courts in matter dealt with by the administrative authorities where entitlement to any legal character or right is involved. Suits can be filed seeking declaration that acts or orders of municipal or local authorities are Ultra vires.

The declaratory actions are more popular a remedy in English law than in Pakistan and India, as a means of challenging decisions of administrative tribunals. In these countries the debate has been run between the jurists and the superior courts also, that whether declaratory suit can be brought outside the four corners of section 42 of Specific Relief Act, 1877 or not. Some of the jurists are in opinion that section 42 is exhaustive for declaratory suits, but on the other hand some of the jurists say that section 42 of Specific Relief Act ,1877 is not exhaustive, therefore the declaratory suit can be brought outside the four corners of section 42 of Specific Relief Act ,1877.