Brief Private Law Remedies in Administrative Law

PRIVATE LAW REMEDIES
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TABLE OF CONTENTS:
PRIVATE LAW REMEDIES IN ADMINISTRATIVE LAW..........................2
1. DAMAGES ............................................................................................................2
 GROUNDS FOR AN ACTION OF DAMAGES:.................................................................3
 TYPES OF DAMAGES: .......................................................................................................4
i) SPECIAL DAMAGES:.......................................................................................................4
ii) GENERAL DAMAGES: ....................................................................................................4
iii) PUNITIVE DAMAGES: ................................................................................................4
 OBJECT OF AWARDING DAMAGES:..............................................................................5
 ON WHAT GROUNDS DAMAGES CAN BE CLAIMED? ...............................................5
2. INJUNCTION:.....................................................................................................6
i) DEFINITON:.........................................................................................................................6
ii) INTRODUCTION: ................................................................................................................6
iii) KINDS OF INJUNTION:......................................................................................................6
a) PERMANENT OR PERPETUAL INJUCTION: ...............................................................6
b) TEMPORARY INJUNCTION:..........................................................................................8
c) MANDATORY INJUNCTION:.........................................................................................9
iv) REQUIREMENTS TO BE FULFILLED FOR MAINTAINING A SUIT FOR
INJUNCTION:..............................................................................................................................10
v) DISCRETIONARY REMEDY: ..........................................................................................10
vi) OBJECT OF GRANTING AN INJUNCTION: ..................................................................11
vii) PRINCIPLES THAT REGULATE THR RELIEF OF INJUNCTION:..............................12
3. DECLARATION:.............................................................................................12
i) DEFINITION:......................................................................................................................12
ii) INTRODUCTION: ..............................................................................................................13
iii) CIRCUMSTANCES OF DECLARATORY RELIEF:........................................................13
iv) BAR TO SUCH DECLARATION:.....................................................................................14
 HURDLES OR DIFFICULTIES IN THE REMEDY OF DECLARATION IN
PAKISTAN:..............................................................................................................................14

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PRIVATE LAW REMEDIES IN ADMINISTRATIVE LAW
In Administrative law remedies are available for redressing the wrong , if any caused to
citizens by any administrative action.
The term remedy in this context refers to the “varieties of awards/relieves that may be
granted by the reviewing court following an application for judicial review. Thus, the relief
that the applicant seeks from the reviewing court is what we call remedy.”
For technical and historical reasons, Remedies are broadly classified into public law
remedies and private law remedies. Those included within the category of public law
remedies also known as prerogative orders are certiorari (a quashing order), prohibition
(prohibiting order), mandamus (mandatory order), Quo Warrant, and Habeas Corpus.
On the other hand ,Private law remedies of administrative action include:
 DAMAGES
 INJUNCTION
 DECLARATION
According to Cane, the private law remedies are so-called because they were originally used
only in private law but later came to be used in public law.1
1. DAMAGES
First Of all we need to understand the Basic difference between the terms Damage and
Damages.
Damage is defined as “a loss or injury to a person’s reputation or property”.
Damages can be defined as “compensatory remedy for damage caused to any person.
Damages are awarded by court to person who has suffered a loss or harm due to the
unlawful act of another.”
In legal parlance, the term damages is usually used interchangeably with the term
compensation.
The purpose of awarding damages in this context is to repair the pecuniary or non-pecuniary
harm inflicted upon the complainant because of administrative wrongs.
1
(Cane, p. 66).

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Damages are purely a private law remedy that can be claimed by the victim of a wrongful act
in accordance with the dicta of private law.
A Reference here may be made to the case of Cooper v Board of Works for the Wands
worth District (1836), whereby it was held that;
“Damages may also be awarded in judicial review but only if the applicant also has
private law rights”.
 GROUNDS TO MAINTAIN AN ACTION FOR AWARD OF DAMAGES:
 In order to obtain an award of damages it is necessary to show a private law
wrong because, damages cannot be awarded simply on the basis that a government
body has acted illegally.
 The relevance of the remedy in public law is that public bodies can commit
private law wrongs, and so damages are a remedy available against public bodies.
For example, damages for breach of contract can be obtained against a
government department. Conversely, whereas a declaration or injunction is
available to restrain a breach of natural justice or to declare the invalidity of a
decision made in breach of the rules of natural justice, damages are not available
for breach of natural justice as such, because this is a wrong recognized only in
public law.
 If a breach of natural justice also amounted to a breach of contract, damages
might be available for the breach.
 Hence, when the grounds justifying judicial review at the same time constitutes
private wrongs, damages may be awarded to the applicant provided that s/he
proved a compensable injury caused to her/his interest as per the governing
private laws.
FOR EXAMPLE:
If municipal board fails to maintain pipelines with due care than it shows the
negligence of municipal board and in result of damage caused to private house than
the municipal board can be held liable.

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 TYPES OF DAMAGES:
Following are main types of damages;
i) SPECIAL DAMAGES:
Special Damages are awarded for monetary losses suffered by aggrieved person. Special
damage is compensation given to aggrieved person for loss of earnings, medical expenses and
repair bills.
ii) GENERAL DAMAGES:
General damages are awarded to aggrieved person for personal injury or harm. It
includes physical or mental pain or suffering or injury to reputation.
iii) PUNITIVE DAMAGES:
Punitive damages are basically awarded in order to deter the defendant as punitive damages
also termed as exemplary damages so it is awarded by court to set as example in order deter
the wrongdoer. It is awarded in special cases and it is higher than the amount of
compensatory damages.
A reference here may be made to the historical case of Rookes v. Barnard (1964)2
, whereby
Lord Devlin suggested that: “Exemplary or punitive damages are an appropriate
remedy for the arbitrary or unconstitutional acts of the government
authorities.”
Furthemore, Indian supreme court held that Exemplary damages can be awarded against
public servants whose acts are arbitrary, discriminatory, illegal or mala fide as in the famous
case of COMMON CAUSE REGD.SOCIETY V. UNION OF INDIA [AIR 1997 SC 1886],
Punitive damages were awarded against a minister, when it was found that, Allotment of
petrol pump from the discretionary quota by a minister was found to be arbitrary,
discriminatory, mala fide, hence his action was quashed and exemplary damages of RS.50
lakhs were awarded against the minister.
2
(1964) AC 1129

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 OBJECT OF AWARDING DAMAGES:
The remedy action for damages protects the rights of citizens against public authorities. If
administrative authorities infringe the right of citizen then they are liable to pay damages to
the injured person.
 ON WHAT GROUNDS DAMAGES CAN BE CLAIMED?
1. Excess of power
2. Negligence or nuisance
3. Breach of statutory duty
4. Misfeasance of public office
5. Mala fide acts
If an Administrative authority acts wrongfully or misuse their powers than they are liable to
pay damages. The corporation or individual both can be liable for damages in all civil
matters. Hence, Negligence or nuisance caused by failure to perform a statutory duty has
been held to render a public authority liable for the damages.
As in the case of Brijbala v. Patna Muncipal corp., [AIR 1959 Patna. 273], “where the
failure of Muncipal corporation to maintain and repair drainage resulted in nuisance, the
corporation was held liable for the damages.”
Furthermore in the case of
RAMIZ AHMED V. PUNJAB PROVINCE, [PLD 1964 Lah.736]
“where the Plaintiff suffered the injuries in a road accident owing to the negligence of the
employees of Govt in stacking Bajri, it was held that the stacking of Bajri in a negligent
manner for repairs to a highway amounts to the wrongful act and Plaintiff is entitled to the
damages.”

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2. INJUNCTION:
i) DEFINITON:
“ The injunction is an order of court that restrains a party from committing or omitting
any act”.
ii) INTRODUCTION:
Injunction is a remedy in the judicial process by which one who has invaded or is threatening
to invade the rights, legal or equitable of another, is restrained from continuing or
commencing such wrongful act.
Simply, “injunction means that one of the parties to a certain action must either do
something or refrain from doing something.”
Once the court makes its decision, the parties must abide by the ruling. If the party fails to
adhere to the injunction, there can be stiff monetary penalties and even imprisonment in
certain instances.
iii) KINDS OF INJUNTION:
In Pakistan the remedy of injunction is regulated by the Specific Relief Act, 1877 and this
act provides three catogeries or kinds of injunction as mentioned below:
 Permanent injunction(Perpetual injunction)
 Temporary injunction, and
 Mandatory injunction
These are described in detail below:
a) PERMANENT OR PERPETUAL INJUCTION:
“An injunction which is issued for the permanent time is called as the perpetual or
permanent injunction.”
Permanent injunction is regulated by the section 53 and 54 of Specific relief act, 1877,
whereby it is provided that, a permanent injunction is issued in terms of decree after proper
hearing of the case and satisfaction of the court.
According to section 53 of the Specific relief act:
“A perpetual injunction can only be granted by the decree made at the
hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined

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from assertion of a right, or from the commission of an act, which would be contrary to
the rights of the plaintiff.”
A reference here may be made to the case of
Raja Ram v. State of Uttar Pradesh [AIR 1963All. 449] whereby the permanent injunction
was issued against the defendants and it was held that:
“ The notice issued by the magistrate under section 18(3) of the Electricity act, requiring to
demolish the portion of plaintiff’s building was invalid and the plaintiff is entitled to
permanent injunction .”
 GROUNDS ON WHICH PERMANENT INJUNCTION MAY BE GRANTED
ACCORDING TO SECTION 54 OF THE SPECIFIC RELIEF ACT, 1877
According to section 54 of the Specific relief act, clearly mentions the grounds for the
issuance of the Permanent injunction as following:
When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment
of, property, the Court may grant a perpetual injunction in the following cases
(namely):
(a) where the defendant is trustee of the property for the plaintiff ;
(b) where there exists no standard for ascertaining the actual damage
caused, or likely to be caused, by the invasion;
(c) where the invasion is such that pecuniary compensation would not
afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be obtained for
the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial
proceedings.

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Hence, a perpetual injunction may be granted to prevent a breach of an obligation existing in
the favor of the applicant, whether expressly or by implication.
In the case of the Malik khizar hayat khan v. Punjab province, [PLD 1955 Lah,88],
“The permanent injunction was granted restraining the defendant(Government ) from
assessing the compensation in accordance with the inapplicable enactments.”
b) TEMPORARY INJUNCTION:
“An injunction which is issued for a specific period of time is called as temporary or
interlocutory injunction.”
Temporary injunction is provided under section 53 of the Specific Relief Act, 1877 in
following words:
“ Temporary injunctions are such as are to continue until a specified time,
or until the further order of the Court. They may be granted at any period of a suit, and
are regulated by the [Code of Civil Procedure, 1908 (Act V of 1908).]”
Furthermore, an Application for grant of temporary injunction may be moved under section
53 of SRA read with Order 39 Rule 1 and 2 of the Civil Procedure code, 1908.
Order 39 rule 1 and 2 provides that :
Order-XXXIX, Rule-1. Cases in which temporary injunction may be granted.-
Where in any Suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view
to defrauding his creditors,
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit,the court may by Order grant a
temporary injunction to restrain such act, or make such other Order for the purpose of staying
and preventing the wasting, damaging, alienation, sale, removal or disposition of the property
or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any
property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until
further orders.

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Order-XXXIX, Rule-2. Injunction to restrain repetition or continuance of breach.-
(1) In any suit for restraining the defendant from committing a breach of contract or other
injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at
any time after the commencement of the suit, and either before or after judgment, apply to the
court for a temporary injunction to restrain the defendant from committing the breach of
contract or injury complained of, or any breach of contract or injury of a like kind arising out
of the same contract or relating to the same property or right.
(2) The court may by Order grant such injunction, on such terms, as to the duration of the
injunction, keeping an account, giving security, or otherwise, as the court thinks fit.
 GROUNDS FOR THE ISSUE OF TEMPORARY INJUNCTION:
As mentioned above ,Order 39 rule 1 and 2 of CPC, regulates the temporary injunction.
A Plaintiff has to satisfy following 3 ingredients for maintaining an application for the
grant of temporary injunction :
 He has a prima facie case,
 Balance of inconvenience is in his favour, that is , he is in the possession
of the property in dispute or exercising the right claimed,
 Irreparable loss or injury would be caused to him if temporary injunction
is not granted to him, that is, his relief is not capable of pecuniary
evaluation, and
 He binds himself to pay damages to the defendant in case his claim is not established
in the final adjudication.
c) MANDATORY INJUNCTION:
“A mandatory injunction is an order of the court , restraining a person from future
wrongful act.”
Section 55 of the Specific relief act deals with the grant of the mandatory injunction and
it states that: “When, to prevent the breach of an obligation, it is necessary to compel
the performance of certain acts which the Court is capable of enforcing, the Court may

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in its discretion grant an injunction to prevent the breach complained of, and also to
compel performance of the requisite acts.”
Hence, A mandatory injunction can be issued to prevent the breach of an obligation and to
compel the performance of the certain acts which court is capable of enforcing.
A reference here may be made to the case of the Malik khizar hayat khan v. Punjab
province, [PLD 1955 Lah,88], whereby,
“The permanent injunction was granted restraining the defendant(Government ) from
assessing the compensation in accordance with the inapplicable enactments, and also a
mandatory injunction was granted directing the defendant to award compensation in
accordance with the applicable law.
iv) REQUIREMENTS TO BE FULFILLED FOR MAINTAINING A SUIT
FOR INJUNCTION:
An injunction will not be granted unless the party seeking the injunction can prove that they
will cause irreparable injury if the court does not grant the injunction. Irreparable injury
means that the harm inflicted on one party is so bad that no monetary or other type of
payment is a good enough reward for putting up with the circumstances. In addition, the party
must show there is no other remedy available. Furthermore, the party must demonstrate that if
the court balances the parties' interests, the balance will tilt in favor of the party seeking the
injunction.
v) DISCRETIONARY REMEDY:
It has discretionary character. As section 52 of the Specific Relief act provides that:
“The Preventive relief is granted at the discretion of the Court by
injunction, temporary or perpetual.”
Hence, An injunction is an equitable remedy, which means that:
“The Court is never obliged to grant an injunction and will use its discretion to
only grant an injunction where it appears to be just and convenient to do so. It lies at the
discretion of the court to enjoin a party from breaking his obligation, for example, by
breaking a contract or committing a tort such as trespass or nuisance.”

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vi) OBJECT OF GRANTING AN INJUNCTION:
Injunction is the remedy in private law, as Injunctions have been awarded to private
individuals also merely on the ground that a public authority was proposing to act ultra vires.
But it has played useful part in field of public law as well. This remedy in public law is used
as against unauthorized action by governmental bodies (ministers, officials and public
bodies), as they are against private persons and they are quite often granted to prohibit
wrongful or unlawful action.
vii) GROUNDS FOR THE REFUSAL OF INJUCNTION:
Lastly, It is essential to mention the grounds upon which the application for grant of
injunction may be refused. Section 56 of the Specific relief act provides the grounds for
the refusal of injunction.
According to section 56 of the Specific Relief Act, 1877:
An injunction cannot be granted –
(a) to stay a judicial proceeding pending at institution of the suit in which the injunction is
sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to stay proceedings in a Court not subordinate to that from which the injunction is
sought;
(c) to restraint persons from applying to any legislative body;
(d) to interfere with the public duties of any department of 2[the 3[Federal Government], 4
* * * or any Provincial Government], or with the sovereign acts of a Foreign Government;
(e) to stay proceedings in any criminal matter;
(f) to prevent the breach of a contract the performance of which would not be specifically
enforced;
(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it
will be a nuisance;
(h) to prevent a continuing breach in which the applicant has acquiesced
(i) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;

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(j) when the conduct of the applicant or his agents has been such as to disentitle him to the
assistance of the Court;
(k) where the applicant has no personal interest in the matter
Hence, on the basis of above-mentioned grounds an injunction can be refused and cannot be
granted.
viii) PRINCIPLES THAT REGULATE THR RELIEF OF INJUNCTION:
The general principles that regulates the relief of injunction are following,
 It is pre-eminently a discretionary remedy
 The exercise of this discretion is not arbitrary, but it is regulated by settled principles.
 A plaintiff who seeks injunction must be able to satisfy the court that his own acts and
dealings in matter have been fair and honest and free from any taint of fraud or
illegality, otherwise he is not entitled to the relief.
 Where the plaintiff establishes his right and there is actual or threatening violation
thereof, injunction would be granted as a matter of course, unless it is found, in
circumstances of the case, inexpedient and unjust
 The court in determining the fact whether injunctions should be granted or not is
generally guided by the consideration of the balance of convenience in each case
 It cannot be granted to interfere with the public duties of any department of the central
government or provincial government or with sovereign acts of a foreign government.
The expression “public duty” does not include tortious act of an officer of
government.
3. DECLARATION:
i) DEFINITION:
The declaration signifies a judicial remedy, “which conclusively determines the rights
of the parties.”
“Declaration refers to a judgment of a court or an award of an arbitration tribunal that
is binding adjudication of the rights or other legal relations of the parties which does
not provide for or order enforcement.”

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THE SECTION 42 OF THE SPECIFIC RELIEF ACT DEALS WITH THE
DECLARATION:
Section 42 of the specific relief act deals with the remedy of declaration and it states that:
“Any person entitled to any legal character, or to any right as to property,
may institute a suit against any person denying, or interested to deny , his
title to such character or right, and the court may in its discretion make
therein, a declaration that he is so entitled, and the plaintiff need not in
any such suit ask for the further relief.”
Therefore, This is simply asking the court to make a ruling on what the law is. It is used in
both public and private laws and is available in wider circumstances than the prerogative
orders.3
It declares what the legal rights of the parties to the action are and differs from other judicial
remedies in that it declares the law without any sanction and has no coercive effect.
ii) INTRODUCTION:
The declaratory suits can also be filed against the government bodies, local authorities and
statutory authorities. Declarations can be issued by the courts in the matters dealt with by the
administrative authorities, where the entitlement to any legal character or right is involved.
Mutations passed by the revenue authorities can be set aside by declaratory decrees.
iii) CIRCUMSTANCES OF DECLARATORY RELIEF:
a) Application for declarations of legitimacy, in family and probate legal proceedings.
b) Under insurance policies, for a determination of whether a pevil is covered by a
particular policy
c) Declaratory suits can also be filed against government bodies, local authorities
d) Declarations can be issued by the courts in the matters dealt with by the
administrative authorities
3
(Blakemore & Greene, p.122.)

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DISCRETION OF COURT AS TO DECLARATION OF STATUS OR RIGHT:
According to section 42 of Specific Relief Act, 1877 the grant of declaratory decree is a
matter of the discretion with a court. It provides that;
Any person entitled to any legal character or to right as to any property, may institute A suit
against any person denying, or interested to deny his title to such character or right and the
court may in its discretion make therein a declaration that he is so entitled and the plaintiff
need not in such suit able for any further relief.
iv) BAR TO SUCH DECLARATION:
Provided that no court shall make any such declaration where the plaintiff being able
to seek further relief that make declaration of title omits to do so. Hence, declaratory
relief may also be refused when the other appropriate or alternative legal remedy is available
to the plaintiff as it was held in the case of SI Syndicate v. union of india [AIR 1975 SC 460]
That courts do not grant a declaration when it has no utility.
 HURDLES OR DIFFICULTIES IN THE REMEDY OF DECLARATION IN
PAKISTAN:
The declaration is more popular and highly invoked as a remedy in the England and USA as
compared to Pakistan and India , as a means of challenging the decisions of administrative
authorities.
The difficulties pointed out in the way of declaratory actions in Pakistan are:
 That it is not a speedy and efficacious remedy.
 That it is an statutory remedy and can be excluded by the statute.
 That the, two months notice is required to be given under section 80 of the civil
procedure code, 1908 before filing suit for declaration against the Government or
public officer.
X----------------------------------------X---------------------------------------------------------X
BY: NARESH KUMAR
Member of Visiting Faculty at
Institute of Law University of Sindh Jamshoro

Brief Private Law Remedies in Administrative Law

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