CHAPTER-II

CHAPTER-II
ANATOMY OF ADMINISTRATIVE ACTION

2.1 Introduction
The basic and traditional functions of the state are those of securing the
community against external aggression and internal strife and of keeping itself going
out of taxation. In addition, the modern state has during the last century, coincident
with the extension of franchise and the rise of modern political parties acquired many
more functions. These may be broadly put into two categories, I the regulatory and the
service providing. Amongst the former is control of use of land, of various industrial
processes, of commercial activity such as insurance, of public health, of road traffic
etc. Amongst the later are the provisions of physical services such as roads, railways,
gas, electricity, telephones and water; and provisions of other services such as
education, the health services, the social services, social insurance, social training
services and advisory services of various kinds. In addition, it is generally agreed that
some degree of management of the economy is a necessary activity of the modern state
which therefore has to concern itself with such matters as the level of unemployment,
prices, wages etc. These modern functions of the state are of course in addition to the
traditional functions referred to and these have themselves multiplied in size and
greatly broadened in scope.
Administrative law is to do with the public authorities. Their functions are
varied and the law concerning them is extensive. Administrative law is concerned with
the ways the powers are acquired, where public authorities get their powers from and
what is the nature of those powers. Is the exercise of power subject to any particular
procedure, is it to be exercised in any particular form? If yes, what is the effect of
failing to do so? How can we ensure that powers are used only for the purpose for
which they were given and that they are used energetically and efficiently? The role of
the courts in providing, as an independent system, some check on the exercise of
public powers is very much the concern of administrative law; and it may be looked as
an instrument of control of administrative action is one of the contents of

22
 CHAPTER-II

administrative law. But administrative action is of different kinds and no proper

treatment is possible without classifying the acts. of administrative authorities under
several heads.

As administrative law is to do with government and public administration, it must be

seen against the background or in the setting of our constitutional arrangements and
principles. This brief consideration starts with the 'Doctrine of the Separation of
Powers'. This is particularly associated with the name of Montesquieu who in his l'
Espirit des Lois (1748) argued that in every government there are three sorts of powers,
the legislative the executive (or administrative); and the judicial; and that to ensure the
liberty of the subject they ought to be in the hands of separate institutions for 'there
would be an end of everything where the same man or body to exercise these three
powers, that of enacting laws, that of executing the public resolutions, and of trying the
causes of individuals.'
In India on a casual glance at the provisions of the constitution, one may be inclined to
say that the doctrine of separation of power is accepted. The Supreme Court has also
expressed the opinion that the doctrine of separation of powers has been accepted in the
constitution of India? But, if we study the constitutional provisions carefully, it is clear
that the doctrine of separation of powers has not been accepted in its strict sense. There
is no provision in the Constitution itself regarding the division of functions of the
government and the exercise thereof. Thus, the doctrine of separation of powers is not
accepted fully in the Constitution, and we agree with the following observations of
Mukherjea J. in the Ram Jawaya v. State of Punjab,
The Indian Constitution has not indeed recognised the doctrine of
separation of powers in its absolute rigidity but the functions of the
different parts and branches of the government have been sufficiently
differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organ or part of
the state, of functions that essentially belong to another
Thus, according to the Indian Constitution, there are three organs of the
Government; (1) Legislature; (2) Executive; and (3) Judiciary. These three organs
essentially perform three classes of governmental functions viz (i) legislative; (ii)
executive or administrative; and (iii) judicial. The function of the legislature is to enact

23
 CHAPTER-II

the law; the executive is to administer the law and the judiciary is to interpret the law
and to declare what the law is. Even if it is not so easy to draw a theoretical line
between them to isolate one concept from the other, or in many cases to distinguish
between them in practice. The committee on Minister's Power5 tried to clarify the
distinction between the administrative and judicial by saying that an administrative
decision is wholly within the complete consideration of public policy. A true 'judicial
decision on the other hand, presupposes an existing dispute between two or more
parties which dispute is disposed of by a finding on any facts in dispute "and an
application of the law of the land to the facts as found". The essential distinction in the
committee's view was, therefore, that between law and policy : a true judicial decision
involving no policy consideration; and a true administrative decision no judicial
element. The validity of this distinction has been challenged, professor Robson has
argued that the judicial is fundamentally indistinguishable from the administrative in
view of the element of discretion involved in both, "Judicial administrative is merely a
specialised form of general administration which has acquired an air of detachment"6
on the other hand D.M. Gordon 7 sees the essential difference to be between the judicial
on the one hand and the legislative and the administrative on the other, in that the
former applies a pre-existing objective standard laid down by the law, whereas
legislative and administrative decisions are based, not on legal rights, but on policy and
expediency. And a body which makes law according to its own will is a legislative
body. It would be wrong however, to give the impression that the Committee on
Ministers' power suggested that the classification was a rigid one. The idea of the
quasi-judicial should also be noted. The committee defined this as "Only an
administrative decision some stage or element of which possesses judicial
characteristics.” This need to resort to the qua reinforces the view that a precise
distinction between the three kinds of powers is difficult in theory and impossible in
practice. Nevertheless, we shall come across many situations where the classification of
power may have important consequences.

24
 CHAPTER-II

During the present few decades there has been a vital change in the functions of
the state and the distinction between legislative and administrative; or between
administrative and judicial has become blurred, thus, administrative is the meeting
point of three types of governmental functions.

The supreme Court of India, in Jayanatial Amritlal v. F. N. Rana has also

observed that it cannot be assumed that the legislative functions are exclusively
performed by the legislature, the executive functions by the executive and judicial
functions by the judiciary. According to A. T. Markose. Administration exercises a
variety of powers, administrative action may therefore, be legislative or judicial or
neither i.e., it could be a discretionary no judicial order or merely a ministerial act. The
administration in modern state cannot be run on dogmatic turpitude functions. It is no
more to say that the administration does not decide on it does not legislate. In
Halsbury's Laws of England1 also it is stated that however the term 'the executive' or
'administration' is employed, there is no implication that the functions of the executive
are confined exclusively to those of an executive or administrative character. To day,
the executive performs variegated functions viz. to investigate, to prosecute, to prepare
and to adopt schemes, to issue and cancel licences etc. (administrative); to make rules,
regulations and by laws, to fix prices etc.(legislative); to adjudicate on disputes, to
impose fine and penalty etc. (judicial). In Modern Times, various functions are
performed by the administration, so the administrative process cuts across the
traditional classification of governmental powers due to the by-product of intensive
form of government and combines into one all the powers which were
traditionally exercised by three different organs of the state i.e. the
legislature, executive and the judiciary. This begs the question 'what is executive
power'. Simple as it appears, but the Supreme Court did not find it to be so when it had
to analyse the executive functions, in Ram Jawaya v. State of Punjab. It was once
thought that the function of the executive was simply to execute the laws. But with the
advent of the 'welfare state' and the growth of industrialization with its concomitant
problems, the state has ceased to be a mere 'police state' and the functions of executive

1
Halsbury's Law of England, 4th Ed. (1973) vol. 1, p. 20

25
 CHAPTER-II

has ceased to be merely the carrying out of the laws made by legislature. The executive
has to initiate policy and if is open to the executive to undertake measure in various
spheres either without legislation or in advance of legislative sanction. The executive
function has thus come to be the residuary function of the state. It is clear that a very
wide area of activities is comprised within the sphere of 'administrative action' and that
even an administrative authority is an authority which is other than the courts or the
legislatures of the country, the residuary functions of the administration may
themselves partake of the legislative or the judicial quality. A question which arises for
our consideration is whether the functions performed by the executive authorities are
purely administrative, quasi-judicial or quasi-legislative in character. The answer is
very difficult, as there is no precise, perfect and scientific test to distinguish these
functions from one another. A further difficulty arises in a case in which a single
proceeding may at times combine various aspects of the three functions. The courts
have not been able to formulate any definite test for the purpose of making such
classification. The meanings attributed by the courts to the terms 'judicial', 'quasi-
judicial' and 'administrative' for administrative law purposes have been inconsistent.
Lawyers are, of course quite familiar with the notion that a legal term may convey a
range of meaning and that within that range the meaning appropriate for the resolution
of a particular dispute may well depend upon the context in which the term has to be
applied. Thus, such classification is essential and inevitable as many consequences flow
from it, e.g., if the executive authority exercises judicial or quasi-judicial functions it
must follow the principles of natural justice and is amenable to the writ of certiorari or
prohibition, but if it is an administrative, legislative or quasi legislative function, this is
not [Link] the action of the executive authority is legislative in character, the requirement
of publication, laying on the table etc. should be complied with but it is not necessary in
the case of a pure administrative action. It is therefore to determine what type of
function the administrative authority performs.

2.2 Classification of Administrative Action

Administrative action is a comprehensive term and defies exact definition. In

modern times the administrative process as a by-product of intensive form of

26
 CHAPTER-II

government cuts across the traditional classification of governmental powers and

combines into one all the powers which were traditionally exercised by three
different organs of the State.
The administration is the meeting point of the three types of governmental
functions, namely legislative, judicial and administrative. Usually, the executive
performs the reside of all those functions which are not vested in the other two
branches of the government i.e., the legislature and the judiciary. In the
administrative process, all the three functions, which are traditionally vested in the
three different organs of government are telescoped into one single authority.18
Classification of administrative action for the purpose of determining the
procedure to be followed or the remedy available may not be necessary in view of the
fact that a good deal of rigidity in this regard has disappeared. Certiorari was
available only against judicial bodies and therefore, it was necessary to determine the
nature of an administrative authority and its function. Rules of natural justice were
attracted only to quasi-judicial authorities and therefore dichotomy between quasi-
judicial and administrative developed. But these constraints now have disappeared
and therefore these discussions have become less relevant.2 Classification even now
may be necessary for determining the scope of judicial review and ground on which
an administrative action can be challenged. Judicial review of legislative action is
much more restricted than that of other administrative actions, for example,
legislative action cannot be challenged on the ground that the subordinate legislation
has not been made after giving a hearing to those whose interests are likely to be
prejudiced by rules, regulations etc. Similarly, mandamus cannot be issued to compel
the executive to perform its legislative function in fact, no mandamus can be issued in
respect of legislative function.

There is a general agreement among the writers or administrative law lawyers that any
attempt of classifying administrative action on any conceptual basis is not only
impossible but also futile. However, the fiction of 'quasi' has accordingly been invented to
distinguish these acts of the administrative authorities from the acts of the legislature and
the judiciary. Thus, 'quasi' is a smooth cover which we draw over our confusion as we
might use a counterpane to conceal a disordered bed.3 Even then a student of

2
Sathe S.P„ Administrative Law (1991) p. 126.
3
Federal Trade Commission v. Ruberoid Co. (1952) 343 US 470/488.

27
 CHAPTER-II

administrative law is compelled to delve into the field of classification because the
present day law especially relating to judicial review freely employs conceptual
classification of administrative action. Thus, speaking generally, an administrative action,
can be classified into three categories:
1. Quasi-legislative action or rule-making action;

2. Quasi-judicial action or Rule-decision action; and

3. Purely Administrative action or Rule application action.

2.2.1 Quasi-legislative action

Legislature is the law-making organ of any State. In some written constitution

like the American and Australian Constitutions, the law-making power is expressly
vested in the legislature. However, in the Indian Constitution though this power is
not so expressly vested in the legislature, yet the combined effect of Articles 107 to
111 and 196 to 201 is that the law-making power can be exercised for the union by
parliament and for the states by the respective state legislature. It is the intention of
the constitution makers that this law-making power must be exercised by those
bodies alone in whom this power is vested.
But in the Twentieth Century today these legislative bodies cannot give that
quality and quantity of laws which are required for the efficient functioning of a
modern intensive form of government. Therefore, the delegation of law-making
power to the administration is a compulsive necessity. When any administrative
authority exercises the law-making power delegated to it by the legislature , it is
known the rule-making action of the administration or quasi-legislative action. When
an instrument of a legislative nature is made by an authority in exercise of power
delegated or conferred by the legislature it is called 'subordinate legislation, it is
subordinate in the sense that the powers of the authority which makes it are limited
by the statute which conferred the power and, consequently it is valid only in so far as
it keeps within those limits, whereas a law made by legislature is not limited by any
law made by any other body, except where there is a written constitution imposing
limitations upon the legislature as in Indian. The makers of subordinate legislation, in
other words, may be its immediate authority, but its ultimate authority is a superior
legislature which conferred the power to make the legislation.

28
 CHAPTER-II

Quasi-legislative is the function of subordinate legislation or that of making

rules, regulations and other statutory instruments to fill in the details of legislative
enactments in order to make the execution of the laws possible.4
Quasi legislative action of the administration partakes the characteristics which
a normal legislative action possesses. Such characteristics may be generality,
prospectivity and behaviour which bases action on policy consideration and gives a
right or a disability. These characteristics are not without exception. In some cases,
administrative rule-making action may be particularized retroactive and based on
evidence. According to Chinnappa Reddy, j. a legislative action has four
characteristics: (i) Generality; (ii) prospectivity; (iii) public interest; and (iv) right and
obligations flow from it.5

It is on the basis of these characteristics that one can differentiate between

quasi-legislative and quasi-judicial action. A quasi-judicial action in contradiction
to a quasi-legislative action is particularly based on the facts of the case and declares a
pre-existing right. However, in certain situations, like wage or rate fixing, it is not
26
capable of easy differentiation. In express New Paper v. Union of India, The
supreme court left the question open as to whether the function of the wage
Commission under the working Journalists' (Conditions of Service) Act, 1956 is
quasi-legislative function or quasi-judicial function. However, the delegation to the
government of power to fix the price of levy sugar was held to be quasi-legislative
functions. 6
It is, no doubt, true that any attempt to draw a distinct line between legislative
and administrative function is difficult in theory and impossible in practice. Though
difficult, it is necessary that the line must be drawn as different legal rights and
consequences may ensue7 as Schwartz said, "If a particular function is termed
'legislative' or 'rule-making' rather than judicial or 'adjudication', it may have
substantial effects upon the parties concerned. If the function is treated as legislative
in nature, there is no right to a notice and hearing unless a statute expressly requires
them. 8 In the leading case of Bates v. Lords Hailsman9 Megarry, J10 has observed that

4
Supra note 17 at 655.
5
Union of India v. cynamide India Ltd. supra note 15 26 AIR 1958 SC 578.
6
Sita Ram Sugar Co. Ltd, v. Union of India (1990) 3 SCC 233; See also Sri Malaprabha Coop. Sugar
Factory Ltd. v. Union of Indiat (1994) 1 SCC 648.
7
Union of India v. Cynamide india Ltd., AIR 1987 SC 180 at 1806. 31 Administrative law
8
Supra note 30.

29
 CHAPTER-II

"the rules of natural justice do not run in the sphere of legislation, primary or
delegated." Wade11 has also said, "there is no right to be heard before the making of
legislation, whether primary or delegated unless it is provided by statute
Though the rules of natural justice do not apply to legislative action yet
reasonableness and fair play in action must be observed as Article 14 of the
Constitution equally applies to legislative actions. Quasi-legislative actions are
controlled by Parliament and the courts.

2.2.2 Quasi-Judicial Action

Today the bulk of the decisions which affect a private individual come not
from courts but from administrative agencies exercising adjudicatory powers. The
reason seems to be that since administrative decision making is also a by-product of
the intensive form of government, the traditional judicial system cannot give to the
people that quantity and quality of justice which is required in a welfare State.
In some jurisdictions the term 'quasi-judicial' is used to denote administrative,
adjudicatory or decision-making process. But because the term 'quasi-judicial' is vague
and difficult to define, it is falling in disuse. Therefore, the use of this term is being
carefully avoided.
Administrative decision-making may be defined as a power to perform acts
administrative in character, but requiring incidentally some characteristics of judicial
traditions. On the basis of this definition, the following functions of the administration
have been held to be quasi-judicial functions
1. Disciplinary proceedings against students. 12

2. Disciplinary proceedings against an employee for misconduct.

3. Confiscation of goods under the Sea Customs Act, 1878. 13

4. Cancellation, suspension, revocation or refusal to renew licence or permit
by licensing authority. 14

9
(1972)3 All ER 1019.
10
[d. at pp. 1023-24.
11
Administrative Law (1988) p. 573.
12
Bhagwan v. Ramchand, AIR 1965 SC 1767,
13
East India Commercial Co, v. Collector of Customs, AIR 1962 SC 1893.
14
Fedco Ltd. v. Bilgrami, AIR 1960 SC 415; Raman and Raman v. State of madras, AIR 1956 SC 463 :
Natraja Mudatiar v. State Transport Authority, (1978)4 SCC 290.

30
 CHAPTER-II

5. Determination of citizenship.15

6. Determination of statutory disputes.16

7. Power to continue the detention or seizure of goods beyond a particular

period.17

8. Refusal to grant I no objection certificate' under the Bombay

Cinemas (Regulations) act 1953. 18

9. Forfeiture of pensions and gratuity.19

10. Authority granting or refusing permission for retrenchment. 20

11. Grant of permit by Regional Transport Authority. 21

Attributes of administrative decision-making action or quasi-judicial action and the

distinction between judicial, and administrative action.
The Donoughmore committee on Minister's powers (1932) analysed the
characteristics of a 'true judicial decision' and summed up the attributes, the presence
or absence of which stamped a decision as administrative decision-making or quasi-
judicial action. The Committee was of the view that a true judicial decision
presupposes a link between two or more parties and then involves four requisites

1. Presentation of the case.

2. Ascertainment of questions of fact by means of evidence given by the
parties.
3. Ascertainment of questions of law on the basis of submission of legal
arguments.
4. A decision which disposes of the whole matter by applying the law to
the facts.
A quasi-judicial decision involves the first two determinants, may or may involve the
third but never involves the fourth determinant, because the place of the fourth
determinant is in fact taken by administrative action, the character of which is

15
Ayubkhan v. Commr, AIR 1965 SC 1623.
16
C.S.T. v. super Cotton works, (1989)1 SCC 643.
17
Lakhanpal v. Union of India, AIR 1967 SC 1507; Asstt. Collector of Customs v. Bibhuti Bhushan,
(1989)3 SCC 202.
18
State of Gujarat v. Krishna Cinema, (1970)2 SCC 744.
19
State of Punjab v. Iqbal Singh, (1976)2 SCC 1.
20
Workmen v. Meenakshi Mills, (1922)3 SCC 336.
21
Mitiesh Garg v. Union of India, (1992)1 SCC 168.

31
 CHAPTER-II

determined by the minister's free choice involving expediency, discretion and policy
considerations.
Decisions which are administrative stand on a wholly different footing from quasi-
judicial as well as from judicial decisions. In the case of administrative decisions,
there is no legal obligation to consider and weigh submission and arguments, or to
collect any evidence, or to solve any issue. The grounds upon which the action is
taken and the procedure for taking the action are left entirely to the discretion of the
authority.
This approach of the Committee seems fallacious because the judges cannot be
regarded as mere norm-producing slot machines, they do take into consideration
policy, socio-economic and political philosophy, expediency and exercise discretion
while deciding a case. In the Twentieth Century, it is admitted at all hands that the
judiciary is like any other branch of the government because litigation like legislation
and administration is a stage in the accommodation of interests. On the other hand, in
certain areas of administrative adjudication, like tax, the administration applies law to
the facts in the same manner as sometimes the judges do. Therefore, it is wrong to
suggest that any admixture of policy in the policy in the virgin purity of a judicial
determination immediately reduces it to the rank of quasi-judicial decision.
As the English 'law and policy' determinant is devoid of sufficient
classification, in the same manner the American 'position of-the-judge' approach is not
without exception. In the American approach, a court is where a judge sits as arbiter-
impartial and with no interest in the suit between the two parties. The institution and
presentation are the responsibilities of the parties. In an administrative decision, on the
other hand, the judge is rarely one who is disinterested in the case and sits detached
like a judge. One may be tempted to argue and rightly so, that this classification
matrix would also fail in the case of independent tribunals where the presiding officer
does sit in judge like detachment.
Therefore, only that classification determinant can be reasonable which is institutional
rather than functional. There are administrative agencies exercising adjudicatory
powers which are as full courts: it is only the will of the legislature that these are not
classified as courts.

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 CHAPTER-II

However, it does not mean that because purple is the confused mixture of red
and blue, so there is no distinction between red and blue.22 Administrative decision-
making action is not required to follow the elaborate judicial procedure it is sufficient
if, in the absence of any statutory requirement, the action is rendered by following the
minimum procedure of natural justice.
There was a time when the view prevailed that the rules of natural justice have
application to a quasi-judicial proceeding as distinguished from an administrative
proceeding. The distinguishing feature of a quasi-judicial proceeding in this behalf is
that the authority concerned is required by law under which it is functioning to act
judicially. Duty to act judicially was spelt out in Rex v. Electricity Commissioner23 by
Lord Atkins thus
"Where ever anybody of persons having legal authority to
determine questions affecting the rights of the subjects, and
having the duty to act judicially, acts in excess of its legal
authority, they are subject to the controlling jurisdiction of the
King's Bench Division."
Lord Hewart C.J., in Rex v. Legislative Committee of the Church Assembly24 read this
observation of Lord Atkin to mean that the duty to act judicially should be an
additional requirement existing independently of the authority to determine questions
affecting the right of the subject's something super added to it. This gloss placed by
Lord Heart, C.J. on the dictum of Lord Atkins, to use the words of Krishna lyer,
bedevilled the law for a considerable time and stultified the growth of the doctrine of
natural justice. Therefore, the court held that thé duty to act judicially need to be
superadded and it may be spelt out from the nature of the power conferred, the manner
of exercising it and its impact on the rights of the person affected.25 The court was
constrained in every case that came up before it to make a search for the duty to act
judicially, sometimes from tenuous material and sometimes the service of the statute
and this led to oversubtlety and over-refinement resulting in confusion and uncertainty
in the law.26

22
Wade H.W.R., 10 comb. Law J. 216.
23
(1924)1 KB 171.
24
(1928)1 KB 41 1.
25
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
26
Ibid.

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 CHAPTER-II

This doctrinal approach of the Courts in India and England not only made the
law confused and uncertain but also eluded justice in many cases.
However, in England, a turning point came with Ridge v. Baldwin, 27 when Lord
Reid pointed out that the gloss of Lord Hewart was based on misunderstanding of the
observations of Lord Atkins. Lord Reid observed : "If Lord Hewart meant that it is
never enough that a body has a duty to determine what the rights of the individual
should be, but that there must always be something more to impose on it a duty to act
judicially, then that appears to me impossible to reconcile with the earlier authorities.28
Lord Reid held that the duty to act judicially must arise from the very nature of the
function intended to be performed and it need not be shown to be superadded. Krishna
29
lyer, J. quoted Prof. Clark from his article on 'Natural Justice, substance and
Shadow”, who is of the view that the observation of Lord Reid has restored light to an
area 'benighted by the narrow conceptualism of the previous decade.'

This development of law is traceable in India also where the Supreme Court
even earlier than Ridge v. Baldwin was of the view that if there is power to decide and

determine to the prejudice of a person, the duty to act judicially is implicit in the exercise
of power.30 In fact, the foundation of applying natural justice and administrative actions
had been laid in the dissent of Justice Subba Rao in Radheyshyam Kare v. State of
M.P.,31 is significant to note when he held that "In competency carries a stigma with it
and what is more derogatory to the reputation of the members of the Committee than to
be stigmatized as incompetent to discharge their statutory duties? Would it be reasonable
to assume that public men in a democratic country are allowed to be condemned
unheard?" This dissent became strikingly pronounced in A.K Kraipak v. Union of
India.32 In this case the Supreme court held that though the action of making selection for
government service is administrative, yet the selection committee is under a duty to act
judicially. The Court observed that the dividing line between an administrative power

27
(1964) AC 40.
28
Wade, Administrative Law 6th Edn. P, 848.
29
Ibid.
30
Board of High School v. Ghanshyam, AIR 1962 SC 11 10.
31
AIR 1959 SC 107.
32
(1969)2 SCC 262; AIR 1970 SC 150.

34
 CHAPTER-II

33
and quasi-judicial power is quite thin and being gradually obliterated. In D.K. [Link]
34
v. J.M.A. Industries Ltd. the Supreme Court further observed that the distinction
between quasi-judicial and administrative action which had become thin is now
totally eclipsed and obliterated. Proceeding a step further the Supreme Court clearly held
in CB Boarding and Lodging House v. State of Mysore35 that it is not necessary to
classify an action of the administrative authority as quasi-judicial or administrative
because the administrative authority is bound to follow the principles of natural justice in
any case. In this case, the question was whether the power to fix a minimum wage under
the Minimum Wages Act is quasi-judicial or administrative.36

2.2.3 Purely Administrative Action

At the very outset, it has been pointed out that the expression administrative
act or' function' is a comprehensive expression, comprising three different categories
namely, quasi-legislative, quasi-judicial and purely administrative. The expression as
used in this work, therefore refer to those acts or functions of administrative
authorities which are neither legislative nor adjudicative in character. In Ram Jawaya
v. State of Punjab37 speaking for the Supreme Court, Mukherjea C.J. observed that
"It may not be possible to frame an exhaustive definition of
what executive function means and implies. Ordinary the
executive power connotes the residue of governmental
functions that remains after legislative and judicial functions
are taken away.”

Thus, administrative functions are those functions which are neither legislative nor
judicial in character. But a general distinction is made in quasi-legislative, quasi-
judicial and purely administrative actions as certain legal consequences flow from this
distinction.
While a quasi-legislative act done by the administration consists in making rules
regulations by laws and the like having general application which simulate a statute
made by the legislature itself, a purely administrative act is concerned with the

33
Ibid.
34
(1993)3 SCC 259.
35
(1969)3 SCC 84; AIR 1970 SC 2042.
36
See also D.F.o. South Kheri v. Ram Sanehi (1971)3 SCC 864; AIR 1973 SC
37
AIR 1955 SC 549. 69 'd. at 555.

35
 CHAPTER-II

treatment of a particular situation. Thus, a distinction often made between legislative

and administrative acts is that a legislative act is the creation and promulgation of a
general rule of conduct without reference to particular cases; an administrative act
cannot be exactly defined but it includes the adoption of a policy, the making and
issue of a specific directions, and the application of a general rule to a particular case
in accordance with the requirements of policy of expediency or administrative
practice. The following legal consequences flow from this distinction.
a) In certain circumstances an order has to be published as a statutory
instrument if it is of a legislative nature but not if it is of an executive (i.e.
administrative) character. But this test adopted for discriminating between the
legislative and executive often appear to be pragmatic (is it in the public interest
that this order should be published?) rather than conceptual.
b) It has generally been assumed that the courts will not award certiorari to
quash a legislative order. Now that the courts no longer insist upon the need to
characterize administrative decisions reviewable by certiorari as judicial in nature,
it would perhaps be surprising, if they were to exclude from reach of the remedy
administrative decisions of a legislative nature.
c) Courts may declare administrative act to be invalid for manifest
unreasonableness, but it is not so clear that they have jurisdiction to hold a
statutory instrument to be invalid for unreasonableness per se. However, bye laws,
a form of delegated legislation, have always been reviewable for manifest
unreasonableness.
d) Authority to sub delegate legislative powers wilt be held to be implied
only in the most exceptional circumstances. The courts are somewhat less
reluctant to read into a grant of administrative authority to sub-delegate. It is,
therefore, necessary to determine what type of functions the administrative
authority performs.
e) The duty to give reason for their decision does not extend to decisions in
connection with the orders or schemes of a legislative and not of an executive
character.
Though the distinction between quasi-judicial and administrative action has
become blurred, yet it does not mean that there is no distinction between the two. If
two persons are wearing a similar coat, it does not mean that there is no difference

36
 CHAPTER-II

between them. The difference between quasi-judicial and administrative action may
not be of much practical consequence today but it may still be relevant in determining
the measure of natural justice applicable in a given situation.
In A.K. Kraipak v. Union, the Court was of the view that in order to determine
whether the action of the administrative authority is quasi-judicial or administrative,
one has to see the nature of power conferred, to whom power is given, the framework
within which power is conferred, and the consequences. In State of AP. v. S.M.K.
Parasurama Gurukul, replying to the question whether the power of the government to
appoint trustees under Section 15 of the A.P. Charitable and Hindu Religious
Institutions and Endowments act, 1966 is quasi-judicial or administrative, the court
held the function as administrative and laid down that if there is lis between the
parties, and the opinion is to be formed on objective satisfaction, the action is quasi-
judicial, otherwise administrative. In the same manner in G.G, Patel v. Gulam Abbas
the Court came to the conclusion that since there is nothing in the Act to show that the
collector has to act judicially or in conformity with the recognised judicial norms and
as there is also nothing requiring the Collector to determine question affecting the
right of any party, the function of the Collector in giving or withholding permission of
transfer of land to a non-agriculturist under Section 63(11) of the Bombay Tenancy
and Agricultural lands Act, 1947 is administrative. The Delhi High Court applying the
same parameters held that the function of the Company Law Board granting authority
to shareholders to file a petition in the High Court is an administrative and not a quasi-
judicial function.7\ Moving forward in the same direction the Supreme Court further
held that the function of the Government under Sections 10, 12(5) and 1 1A to make
or refuse a reference to the Industrial Tribunal and the power to grant or refuse a
licence are administrative in nature. Therefore, administrative action is the residuary
action which is neither legislative nor judicial. It is concerned with the treatment of a
particular situation and is devoid of generality. It has no procedural obligations of
collecting evidence and weighing argument. It is based on subjective satisfaction
where decision is based on policy and expediency. It does not decide a right though it
may affect a right. However, it does not mean that the principles of natural justice
can be ignored completely when the authority is exercising administrative powers".
Unless the statute provides otherwise, a minimum of principles of natural justice must
always be observed depending on the fact situation of each case.

37
 CHAPTER-II

The new judicial trend is to insist that even if an authority is not acting in a
quasi-judicial capacity, it still must act fairly. The courts have propounded the
proposition that whether the function being discharged by the administration may be
regarded as 'quasi-judicial' or 'administrative', it must nevertheless be discharged with
38
fairness. The courts are increasingly shedding the use of the terms 'quasi-judicial'
and 'natural justice' and instead adopting the concept of fairness. The advantage of the
new judicial trend is that procedural fairness can be imposed on all decision-making
bodies without having to characterise their functions as quasi-judicial. Fairness or fair
play has thus become the norm rather than an exception, in administrative process at
the present day. In Maneka Gandhi v. Union of India, Bhagwati, J. , has emphasized
that natural justice is great "humanising principle" intended to invent law with
fairness and to secure justice and, over the years, it has grown into a widely pervasive
rule affecting large areas of administration, The soul of natural justice is "fair play in
action" and that is why it has received the widest recognition throughout the
democratic world, This being the test of applicability of the doctrine of natural
justice, there can be no distinction between a quasi-judicial and an administrative
function for this purpose. The aim of both administrative inquiry and quasi-judicial
inquiry is to arrive at a just decision and "if a rule of natural justice is calculated to
secure justice, or, to put it negatively, to prevent miscarriage of justice, it is difficult
to see why it should be applicable to quasi-judicial inquiry and not to administrative
inquiry. It must logically apply to both. The concept of fairness has become a much
more widely applicable procedural requirement. However, in spite of great expansion
in the range39 of the administration where fair procedure is applied, the two concepts-
quasi-judicial and natural justice-occur quite often in judicial opinions. For certain
purposes the concept of quasi-judicial is still relevant. It therefore seems that the two
concepts 'fairness" and "quasi-judicial" would continue to hold the field. It is also
possible to argue on the basis of case law, that whereas those acting in a quasi-
judicial manner have to observe the principles of natural justice those acting
administratively have only to act fairly. Such a view distinguishing between
administrative and quasi-judicial will retain the distinction between fairness and

38
See Infant K(H), (1967)1 All E.R. 226. Sachs, L.J*I in Pergamon Press, (1970)3 All E.R. 5351
541421 stated . " .it is .not necessary to label the proceeding 'judicial;- 'quasi-judicial; 'administrative;
'investigatory'; it is the characteristics of the proceedings that matter not the precise compartments into
which they fail.
39
Nagarajan v. State of Mysore, AIR 1966 SC 1942.

38
 CHAPTER-II

natural justice. Such a distinction may be justified on the ground that certain bodies
for example tribunals have to follow more formal procedures, than a purely
administrative body.
No exhaustive list of such actions may be drawn; however, a few may be noted
for the sake of clarity:
1. Issuing directions to subordinate officers not having the force of law,
2. Making a reference to a tribunal for adjudication under the Industrial
Disputes act. 40
3. Interment, externment and deportation.
4. Granting or withholding sanction to file a suit under Section 55(2) of the
Muslim Wakf Act, 1954. 41
5. Granting or withholding sanction by the Advocate General under Section
92 of the Civil Procedure Code, 42
6. Fact-finding action.
7. Requisition, acquisition and allotment. 43
8. Entering names in the surveillance register of the police. 44
9. Power of the Chancellor under the U.P. State Universities Act, 1973 to
take decision on the recommendation of the Selection Committee in case
of disagreement of the Executive Council with such recommendation.45
10. Functions of a selection Committee. 46
11. Decision to extend time for anti-dumping investigation. 47
Administrative action may be statutory, having the force of law, or non-
statutory, devoid of such legal force. The bulk of the administrative action is statutory
because a stature or the Constitution gives it a legal force but in some cases it may be
non-statutory, such as issuing directions to subordinates not having the force of law,
but its violation may be visited with disciplinary action. 48Though by and large

40
State of Madras v. C.P. Sarathy, AIR 1953 SC 53.
41
Abdul Kasim [Link]. Dawood, AIR 1961 Mad. 244.
42
A.K. Bhaskar v. Adovate-General, AIR 1962 Ker. 90.
43
Province of Bombay v. Khushaldas Advani, AIR 1950 SC 222.
44
Malak Singh v. State of Punjab, AIR 1981 SC 760
45
Neelima Mishra v. Harinder Kaur, (1990)2 SCC 746
46
National Institute of Mental health and Neuro-Sciences v. K. Kalyana Raman. 1992 Supp(2) SCC 481.
47
Designated Authority (Anti-Dumping [Link]) Ministry of Commerce v. Haldor Topsoe As. (2000)6
SCC 626.
48
Raman and Raman v. State of Madras, AIR 1959 SC 694; See generally A.K. Kraipak v. Union of India,
AIR 1970 SC 150; (1969)2 SCC 262.

39
 CHAPTER-II

administrative action is discretionary and is based on subjective satisfaction, however,

the administrative authority must act fairly, impartially and reasonably.

2.3 Administrative Instructions

The technique of issuing instructions is an integral part of modern
administrative process. In addition to rules and other forms of delegated legislation,
the administration issues directions or instructions. Administrative authorities churn
out instructions through letters, circulars, orders, memoranda: pamphlets, public
notices, press notes etc. At times, instructions may even be published in the
government gazette.
Instructions are issued for a variety of purpose. Mostly, the purpose of
directions or instructions is to inform the people of the policy decisions which the
government takes from time to time in various areas and which may affect the public.
Instructions are issued to lay down procedures for various purposes to be followed by
the administration or public. They are also used to fill in the gaps in the area of wide
discretionary powers conferred on administration. In certain situations, administration
may prefer to use instructions rather than rule. A department may be faced with a new
problem for which no past experience is available to it and may for the time being
have to experiment with the method of trial and error until some stable norms are
evolved which may be capable of being laid down in the form of rules. Until a
particular problem has been worked out for a sufficient period, norms and standards
may have to be kept in somewhat flexible and in such a situation, directions rather
than rules may be more expedient from administrative point of view. Instructions may
also be used when the factors for operation of the administration are fluid and subject
to rapid changes. Instructions provide the administration with a certain degree of
flexibility as it does not have to follow the formalities involved in rulemaking e.g.,
publication in gazette, laying before parliament etc.
The executive power includes both the determination of policy as well as
carrying it into execution. Thus, the power to. issue instructions flow from the general
executive power of the administration.
Administrative instructions may be specific or general and directory or
mandatory. What kind of instruction it depends largely on the provisions of the statute
which authorises the administrative agency to issue instructions? The instructions

40
 CHAPTER-II

which are generally issued not under any statutory authority but under the general
power of administration are considered as directory and hence are unenforceable, not
49
having the force of law. In Fernandez v. State of Mysore, the court held the Mysore
P.W.D. Code of Instructions as not having the force of law because this is issued
under no statutory authority but in exercise of general administrative power. However,
though the violations of such instructions may not be enforceable in a court of law, yet
their violation may expose the officer concerned to disciplinary action. The
determination of statutory or non-statutory source of administrative direction is a
complex question.50
Even in those situations where administrative instructions have a statutory
source, their binding character depends on multiple factors. In Raman and Raman v.
State of Madras51 the supreme court came to the conclusion that the administrative
instructions, despite their issuance under section 43-A of the Motor Vehicles Act,
1939, do not have the force of Law. However, another decision of the Supreme Court
in Jagjit Singh v. State of Punjab sets the pace in a new direction. In this case, the
State Government requested the Punjab Public Service Commission to select and
recommend six candidates for filling six vacancies in the Punjab Civil Services
(Executive Branch). A competitive examination was held and the appellant, who
was a member of Scheduled Caste, secured third position among the Scheduled Caste
candidates. Since only 20 per cent of the reserved quota was available, the first two
successful candidates were issued appointment letters. Later on, one of the candidate
was selected in I.A.S. and he resigned. Since the appellant was next in merit on the
selection list. he applied to the government for appointment in the vacancy. This claim
was based on the State Government's instructions contained in a circular. The claim
was rejected by the government and a petition filed in the High Court was dismissed.
The Supreme Court, allowing the appeal, held that the government instructions not
only deprecate the existing practice of including the resultant vacancy in the normal
pool but go on to lay down in unmistakable terms that if the services of a
government servant belonging to SC or ST are terminated, the resulting vacancy
should not be included in the normal pool but should be filled up on an adhoc basis
from the candidates belonging to those categories. In the face of these clear
49
AIR 1959 SC 753.
50
I.N. Saksena v. State of M.P. AIR 1967 SC 1264; Kumari Regina v. A.H.E. School, (1972)4 SCC 188;
AIR 1971 SC 1920.
51
AIR 1959 SC 694.

41
 CHAPTER-II

instructions, nothing contrary from the State Government can be accepted. The thrust
of the case is that if the administrative instructions do not run counter to the statutory
rules, they are binding and their violation can be enjoined through a court of law.
Undoubtedly, the government in exercise of its executive authority cannot supersede a
statutory rule or regulation but it can certainly effectuate the purpose of regulation by
supplementing it. 52

The law relating to the statutory status and the enforceability of administrative
instructions or directions is in a highly nebulous state because the approach of the
courts has so far been residual and variegated. Judicial meanderings in this area of
high legal visibility is scathing. The following decisions of the Supreme Court clearly
53
depict court legerdemain. In V. T. Khanzode v. Reserve Bank of India, the question
before the court was whether the staff regulations issued by the Reserve Bank of India
fixing the basis of seniority of its employees could be modified by a mere circular
issued by it later on. The Court reiterated the well-settled proposition that
administrative instructions, which by their very nature do not have statutory force,
cannot modify statutory rules and regulations, and held that since the staff regulations
were not issued under Section 58 of the Reserve Bank of India Act, 1934 they were
not rules but merely administrative directions which could be amended by any
administrative circular.
However, a different position was taken by the Court in Amitabh Shirivastava
v. State of M.P.54 where the court allowed the enforceability of administrative
instructions even in view of the fact that they modified statutory rules. In the instant
case, the state Government had prescribed certain qualifying marks by statutory rules
for admission to medical colleges in the state. The petitioner did not qualify for
admission on the basis of these rules. Subsequently, the qualifying percentage of
marks was lowered by an executive order, on the basis of which the petitioner became
eligible for admission. The Supreme Court allowed admission to the petitioner by
enforcing an administrative instruction as against the rules. The only justification
which the court found for its ruling appears to be that the government did not object to
the enforceability of an administrative direction at the instance of an individual.
However, in decisions the Supreme Court held that exclusive instructions can

52
Gurdial Singh v. State of Punjab, (1979)2 SCC 368; AIR 1979 SC 1622.
53
(1982)2 SCC 7; AR 1982 SC 917.
54
(1982)1 SCC 514 ; AIR 1982 SC 827.

42
 CHAPTER-II

supplement a statute or cover areas to which the statute does not extend. But they
cannot run contrary to statutory provisions or whittle down their effect. 55
56
Bishamber Dayal Chandra Mohan v. State of U.P. is yet another case in the
series which involved the question whether the fundamental rights could be curtailed
by an administrative instruction. In the instant case the State of Uttar Pradesh had
issued the U.P. Food grain Dealers (Licensing and Restriction of Hoarding) Order,
1976 under the Essential Commodities Act, 1955 which provided for the licensing of
trade in food grains, The U.P. Food grains (procurement and Regulation of Trade)
Order, 1978 further provided for the permitted stock quantity and search and seizure.
It may be noted that none of these orders provided for any restriction on the intra-state
or inter-state movement of food grains. However, by a tele printer message sent by the
Secretary to the government to the regional food controllers inter-district movement of
food grains was prohibited except with the permission of the competent authority.
Wheat belonging to various petitioners was seized which was being transported in
violation of this teleprinter message. This case involved a constitutional question
whether the instructions conveyed through the teleprinter had the force of law, the
court started evaluating the reasonableness of these restrictions on the exercise of
fundamental right contained in Article 19(1) (g) and 301. It is well established that
the state cannot interfere with the free exercise of the fundamental right of the people
without the authority of law. In this situation neither the Act nor the two orders
contained anything which authorised the government to impose restrictions on the free
movement of food grains. Instead of facing legal problem squarely with the intention
of developing :substantive parameters of law, the court evaded the whole issue saying,
"their remedy lies in a suit for damages for wrongful seizure 57
The administrative direction issued by a body incorporated under a statute are
certainly not laws, no matter if these are issued under statutory provisions. At best
these may be compared with the articles of association of a company which have no
force of law. 58
Even if administrative instructions have no force of law but if these are
consistently followed for a long-time government cannot depart from it at its own

55
State of M.P. v. G.S. Dali and Flour Mills, 1992 supp. (1) SCC 150;
56
(1982)1 SCC 39; AIR 1982 SC 33.
57
Jain S.N., Legal Status of Administrative Directions — Three Recent Cases add to the Confusion, 24 JILI
126 (1982).
58
Co-operative Bank v. Industrial Tribunal, AIR 1970 SC 245; (1969)2 SCC 43.

43
 CHAPTER-II

sweet will without rational justification because this would be a clear violation of
Article 14 and 16 of the Constitution59
However, no specific instructions can be issued to authority exercising quasi-
judicial power or any other statutory power, laying down the manner in which this
power is to be exercised. It has always been considered as an interference in the
independent exercise of power by the agency and also is against the principles of
administrative due process.60

If administrative instructions are intended to make a representation to the people then

anyone who acts on the representation can hold the agency bound by it on the ground
of equitable estoppel. 61

Even if the administrative instruction is binding, the effect of its non-compliance on

the legality of the decision would depend on the fact situation. Therefore:
administrative instruction to obtain prior permission of government for making an
award under the Land Acquisition Act if the value exceeds Rs. 20,000 per acre though
binding but held that violation thereof does not constitute an infirmity in the
acquisition of land itself. In Union of India v. Charanjit S. Gill summarized the law
thus
1. Note and administrative instructions issued in the absence of any statutory
authority has no force of law, nor can supplement any provision of law, Act, or
rule and regulation.
2. By Administrative Instructions government has power to fill up gaps in the rules
if the rules are silent on the subject and are not inconsistent with the existing
rules.
3. If administrative instructions are not referable to any statutory authority, they
cannot have the effect of taking away rights vested in the person governed by
the Act.
The present law regarding directions is in an unsatisfactory condition. There appears
to be no stable principle to distinguish "directions" from "rules". Further, the law
regarding enforceability of directions is in a confused state. While, generally
speaking, directions are non-enforceable, a number of exceptions have come to be
59
Amarjit Singh v. State of Punjab, (1975)3 SCC 503.
60
Rajagopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573; Sri Rama Vilas Service v.
Road Traffic Board, AIR 1948 Mad. 400.
61
Union of India v. Anglo-Afghan Agencies Ltd., AIR 1968, S.C. 718 : See Jain S. & M. P.. Principles of
Administrative Law (1973) pp. 494-505.

44
 CHAPTER-II

grafted on this principle. It is difficult in the present state of law to be definitive

whether a particular direction will be held by the courts to be binding or not. There is
a good deal of adhocism in judicial approach in this area as courts deal with each case
on its merits. The area of "directions" is open to judicial legislation and is still in an
evolutionary stage.
By and large, direction operate in an area which the courts regard as suited for
administrative regulation rather than legislative regulation. That is why, most of the
cases pertaining to directions arise in the area of service matters. This is an area
where government cannot administratively and making of rules is not compulsory.
Directions are issued under government's administrative powers, and not
under its legislative powers. The extent of administrative powers of a modern
government is not capable of any precise definition62 and so the area of issuing
directions is also correspondingly large.
While issuing of directions is an essential and normal administrative technique
in the modern times, and administration today cannot perhaps do without resorting to
this technique, the weakness and limitation of the system from the point of view of
the administration should not be minimized: One through directions any constitutional
fundamental or legal right of an individual cannot be curtailed. A benefit conferred on
an individual by a statutory provision cannot be diluted by a direction.
Two, direction cannot be used to control the discretion of quasi-judicial bodies.
Three, there are limits to which directions can interfere with the exercise of
discretion conferred on an authority through law. 63
For validity of a law conferring wide discretion on administrative authority’s
vis-a-vis Article 19 can be considered only with reference to a provision having
statutory force and not directions.
All the same the position of an individual vis-a-vis directions is no less
inconvenient and confusing .-
First in many situations it is difficult for an individual to ascertain the true
character of notice published in the official gazette. As has been seen above, judicial
pronouncements on the subject are not always consistent. At times an individual may
be at a loss to know whether a public notice constitutes a rule or a direction.

62
See Ram Jawaya v. State of Punjab, AIR 1955 SC 549.
63
See Manalal Jain v. State of Assam, AIR 1962 SC 368.

45
 CHAPTER-II

Second, by and large, directions have been held to be unenforceable. To some

extent, this principle serves to protect individual's right from being affected by the
issue of directions. But, at times, directions may confer some benefits, privileges and
concessions on individuals or impose some obligations on the administration, and this
also the affected individual cannot enforce against the administration. From every
point of view, rules give a better safeguard to individual's rights than directions. The
Lok Sabha committee on Subordinate legislation has at times emphasised that certain
administrative directions ought to be substituted by rules. 64 But it does not appear to
be feasible to eliminate directions completely in favour of rules because of the
exigencies of modern administration. It is, therefore, becomes essential to adopt some
safeguards in this area, somewhat on the same lines as advocated in the area of
rulemaking. First, an indication should be given whether a press note or public notice
is a direction or a rule. This will go a long way avoiding confusion in this area. Second
all directions should be published in some convenient and easily accessible form, so
that an individual may know the departmental position on various matters affecting
him, and so he can represent his case better and more effectively before the concerned
authorities, he can organise his own affairs in the light of the directions. Further
publicity would also act as a restraint on the capriciousness of individual officials.
Though, even a published direction may be legally disregarded by the administration,
it would do so only for a good reason, otherwise it might subject itself to adverse
public criticism.
Last but not of the least importance, is the need to transform directions into
rules when norms laid down in the directions have been stabilized and have ceased to
be of transitory significance. The department concerned should constantly endeavour
to formalise directions, at least such of them as have stood the test of time, into rules
which are more stable enforceable against the administration, and provide a better
security to the individual and hence are preferable from an individual's point of view.

2.4 Review
The functions of public authorities may be broadly classified as (i) legislative;
(ii) administrative (or executive); and (iii) judicial. However, in India where there is a
written constitution, the classification raises constitutional issues connected with the

64
Twentieth Report (V. L.S.)IO (1976).

46
 CHAPTER-II

doctrine of Separation of Powers. In such a context conceptual analysis of particular

power is very important. This doctrine emphasises that the function of legislature is to
enact the law; the executive is to administer the law and the judiciary is to interpret the
law and to declare what the law is.
But in modern times the administrative process as a by product of intensive
form of government cuts across the traditional classification and combines into one,
all the powers which were traditionally exercised by three different organs of the
State. Thus, the administration, is the meeting point of the three types of governmental
functions namely legislative, judicial and administrative. Usually the executive
performs the residue of all those functions which are not vested in the other two
branches of the government, i.e. the legislature and the judiciary. Therefore, there is a
general agreement among the writers on administrative law that any attempt of
classifying administrative functions on any conceptual basis is not only impossible but
also futile. Even an administrative lawyer has at times to classify action by the
administration into "administrative", "Legislative", "judicial" or "quasi-judicial." The
fiction of 'quasi' has accordingly been invented to distinguish these acts of the
administrative authorities from the acts of the legislature and the judiciary.
Although thoughtful scholars decry such a conceptual classification of
functions as it is at times too difficult or artificial, and although some attempts have
lately been made to reduce the need for, and reliance on, such a classification
(especially between administrative and quasi-judicial). The evolution of the concept
of 'fairness' or 'fair play' in administrative action has discarded the distinction between
quasi-judicial and administrative. But the fact remains that in the present state of
administrative law, it is not possible to do away completely with this exercise ot
labeling a function as administrative, legislative or quasi-judicial. For example,
distinguishing between administrative, quasi-judicial and legislative functions
assumes significance inter alia because of the following reasons
i. publications: Usually, legislative orders are required to be published in the
official gazette but not those of an administrative nature which refer to a
particular individual and which need to be served only on the individual
concerned. In this respect} a reference to the Essential commodities Act, 1955
may be instructive. Under sec. 3, the central government may by 'order'
regulate several things-movement of essential commodities, their prices,
distribution, etc. under this provision the administration can make orders of
47
 CHAPTER-II

legislative as well as administrative nature. This becomes clear form sec. 3 (5),
which lays down that an order of a 'general nature' or one affecting 'a class of
persons' has to be notified in the official gazette, but an order directing to a
"specified" individual needs only be served on him without being published in
the gazette.
ii. Procedures to be followed by the administration: For instance, in the case of
adjudication, the administration must follow principles of natural justice
even though the statute under which the action is being taken is silent on the
point, while in the case of legislation only such norms of procedure need be
followed as are stipulated in the relevant statute. 65
iii. Grounds of judicial review: For example, mala fides may be pleaded as a
ground for challenging an administrative action, but it is extremely unlikely
that such a challenge may prevail in the case of delegated legislation.
iv. Difference between legislative and non-legislative functions also may become
meaningful when questions of sub delegation of powers arise.
Thus, classification is necessary for determining the scope of judicial review
and ground on which an administrative action can be challenged. However, judicial
review of legislative action is much more restricted than that of other administrative
actions. For example, legislative action cannot be challenged on the ground that the
subordinate legislation has not been made after giving a hearing to those whose
interests are likely to be prejudiced by rules, regulations etc. Similarly, mandamus
cannot be issued to compel the executive to perform its legislative function, in fact, no
mandamus can be issued in respect of legislative function.
Even the concept of ‘fairness’ has not made the task of the courts easier,
though it has done away with the requirement of labelling. The courts have still to
decide whether particular administrative proceeding is of the type where the concept
of fairness is to be applicable and, if so, what exactly fairness requires in that context.
In other words, the courts have to decide whether the proceedings are such that the
basic components of natural justice are to be applied, or it is “fairness” which is to be
applied, and if so, to determine its contents in the situation in hand, or the
administrative action is such that it does not call for either the applicability of natural
justice or fair procedure.

65
Tulsipur Sugar Coe v. The Notified Area Committee, Tulsipur, AIR 1980 SC 883.

48
 CHAPTER-II

Judicial acts may be identified by reference to their formal, procedural or

substantial characteristics or by a combination of any of them. An act may be judicial
because it declares and interprets pre-existing rights or because it changes these rights
provided that the power to change them is not unfettered. A duty to act judicially in
conformity with natural justice may be inferred from the impact of an administrative
act or decision on individual rights. Although sometimes used in a narrow sense, the
term ‘judicial’ in cases involving review by certiorari and prohibition has generally
been used in a very wide sense and now seems to have been dropped altogether as a
requirement for the availability of these remedies. In natural justice cases, variation in
linguistic usage have been particularly spectacular and frequently puzzling, but it is
generally more profitable to concentrate on what the court has done than on what it
has said. In cases where the absolute privilege accorded to judicial proceedings has
been claimed in respect of proceedings before statutory tribunals, the courts have
fairly consistently given a narrow interpretation to the term ‘judicial’. Where the
meaning of judicial has been brought into issue for other purposes (e.g., tort liability
and collateral impeachment) the judgement has been singularly deficient in
conceptual analysis but it would seem that judicial acts are to be understood as
including certain discretionary functions that would have been called administrative.
At this -point terminological and conceptual problems may, appear to be
overwhelming. However, we shall see that to an increasing extent courts exercising
powers of judicial review in administrative law are abandoning servitude of their own
concepts and asserting mastery over them.

49