ADMINISTRATIVE ACTION

A FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF THE

COURSE ADMINISTRATIVE LAW, 6TH SEMESTER DURING THE
ACADEMIC YEAR 2018-2019

SUBMITTED BY:
ABHISHEK SINGH
Roll No. - 1606
B.B.A LL.B

SUBMITTED TO:
PROF. DR. SYED MOHAMMAD ALI
FACULTY OF ADMINISTRATIVE LAW

MARCH, 2019
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA NAGAR,
MEETHAPUR, PATNA-800001
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled
“ADMINISTRATIVE ACTION” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Prof. Dr. Syed Mohammad Ali.
I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible
for the contents of my Project Report.

(Signature of the Candidate)

ABHISHEK SINGH
Chanakya National Law University, Patna
 ACKNOWLEDGEMENT
“IF YOU WANT TO WALK FAST GO ALONE
IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my heart to
all those who have helped me to put these ideas, well above the level of simplicity and into
something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered teacher
Prof. Dr. Syed Mohammad Ali whose support and guidance was the driving force to successfully
complete this project. I express my heartfelt gratitude to him. Thanks are also due to my parents,
family, siblings, my dear friends and all those who helped me in this project in any way. Last but
not the least; I would like to express my sincere gratitude to our Administrative Law teacher for
providing us with such a golden opportunity to showcase our talents. Also this project was
instrumental in making me know more about the Classification of Administrative action. This
project played an important role in making me understand more about the relation between law
and economics.
Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- ABHISHEK SINGH
- 6th Semester
- B.BA LL.B
 TABLE OF CONTENTS

Declaration……………………………………………………………………………………i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………....……………….iii

Aims and Objectives……………………………………………………………………….…iv

Hypothesis................................................................................................................................iv

Research Methodology......................................................................................................…..iv

1. Introduction………………………………………………………………………….

2. Scope of Administrative Action .…...................................…......

3. Judicial Control of Administrative Action..........................................................................

4. Conclusion..............................................................................................................

Bibliography……………………………...………………………….....………........………
 AIMS AND OBJECTIVES

The Aims and Objectives of this project are:

1. To study the necessity of Administrative Action.
2. To study the kinds of Administrative Action.
3. To compare the ambit of Administrative Action of India to other Countries.

HYPOTHESIS

The researcher considers the following hypothesis:

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 the principles of natural justice must always be observed
depending on the fact situation of each case.

RESEARCH METHODOLOGY

Primary method of research was adopted in the making of this project.

Various literary works and Books from the library and the internet were used extensively in
collecting the data essential for this study.
The method of writing used in this project is primarily analytical.
 INTRODUCTION
Administrative action is a comprehensive term and defies exact definition. In modern times the
administrative process is a by-product of intensive form of government and 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. Therefore, there is general
agreement among the writers on administrative law that any attempt of classifying administrative
functions or any conceptual basis is not only impossible but also futile. Even then a student of
administrative law is compelled to delve into 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 four categories:
1. Rule-making action or quasi-legislative action.
2. Rule-decision action or quasi-judicial action.
3. Rule-application action or administrative action.
4. Ministerial action
There is a great variety of administrative powers, such as to investigate, to prosecute, to make
rules and regulations, to adopt schemes, to fix prices, to issue and cancel licences, to adjudicate
on disputes etc. When an administrative action partakes of some judicial characteristics, it is
characterised as ‘quasi-judicial’. Decisions of a court of law are judicial in nature, though in
certain matters the judges may act administratively. Administrative authorities act either in an
administrative or a quasi-judicial manner but never in judicial manner for, by and large, they lack
the impartiality and objectivity of a judge and it is therefore best, in order to avoid confusion, to
apply the expression judicial to a court and not to an administrative authority.
A question which often arises in administrative law is whether the function performed by a body
is administrative, quasi-judicial or legislative in character. The answer to this question bristles
with difficulties as there is no precise test to distinguish the three functions* A further difficulty
in such classification is created by the fact that a single proceeding may at times combine some
aspects of all the three functions. “It is indeed difficult in theory and impossible in practice to
draw a precise dividing line between the legislative on the one hand and the purely
administrative on the other; administrative action so often partakes of both legislative and
executive characteristics. The true nature of statutory provisions and of regulations made
thereunder is not infrequently still further complicated by the addition of a quasi-judicial aspect.1

SCOPE OF ADMINISTRATIVE ACTION

1. RULE-MAKING ACTION OR QUASI-LEGISLATIVE ACTION:

Legislature is the law-making organ of any state. In some written constitutions, 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 III 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 legislatures. It is the intention of the Constitution-makers that those bodies
alone must exercise this law-making power in which 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 as the rule-making power delegated to it by the legislature, it is known as the rule-
making action of the administration or quasi-legislative action and commonly known as
delegated legislation.

Rule-making action of the administration par takes all the characteristics, which a normal
legislative action possesses. Such characteristics may be generality, prospectively and a
behavior that 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.2

1
Lectures on Administrative Law by Justice C.K. Takwani.

2
C.K. Allen, Law and Order (1985)
2. RULE-DECISION ACTION OR QUASI-JUDICIAL ACTION:

Today the bulk of the decisions which affect a private individual come not from courts but
from administrative agencies exercising ad judicatory 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 of justice,
which is required in a welfare State. 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:3

i. Disciplinary proceedings against students.

ii. Disciplinary proceedings against an employee for misconduct.
iii. Confiscation of goods under the sea Customs Act, 1878.
iv. Cancellation, suspension, revocation or refusal to renew license or permit by licensing
authority.
v. Determination of citizenship.
vi. Determination of statutory disputes.
vii. Power to continue the detention or seizure of goods beyond a particular period.
viii. Refusal to grant ‘no objection certificate’ under the Bombay Cinemas (Regulations)
Act, 1953.
ix. Forfeiture of pensions and gratuity.
x. Authority granting or refusing permission for retrenchment.
xi. Grant of permit by Regional Transport Authority.

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

distinction between judicial, quasi-judicial and administrative action.

3
B. Schwartz, an Introduction to American Administrative Law, Indian Law Institute, Cases and Materials on
Administrative Law in India. Volume 1 (1996), Delhi.
3. RULE-APPLICATION ACTION OR ADMINISTRATIVE ACTION:
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 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 of India, 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.

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 the principles of natural justice must
always be observed depending on the fact situation of each case.

No exhaustive list of such actions may be drawn; however, a few may be noted for the sake of
clarity:4

# Making a reference to a tribunal for adjudication under the Industrial Disputes Act.
 Functions of a selection committee.

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 statute 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. Though by and large administrative action is discretionary and is based on

4
http://aclawresearch.blogspot.com/
 subjective satisfaction, however, the administrative authority must act fairly, impartially and
reasonable.

Therefore, at this stage it becomes very important for us to know what exactly is
the difference between Administrative and quasi-judicial Acts.

Thus broadly speaking, acts, which are required to be done on the subjective satisfaction of
the administrative authority, are called ‘administrative’ acts, while acts, which are required to
be done on objective satisfaction of the administrative authority, can be termed as quasi-
judicial acts. Administrative decisions, which are founded on pre-determined standards, are
called objective decisions whereas decisions which involve a choice as there is no fixed
standard to be applied are so called subjective decisions. The former is quasi-judicial decision
while the latter is administrative decision. In case of the administrative decision there is no
legal obligation upon the person charged with the duty of reaching the decision to consider
and weigh submissions and arguments or to collate any evidence. The grounds upon which he
acts and the means, which he takes to inform himself before acting, are left entirely to his
discretion. The Supreme Court observed, “It is well settled that the old distinction between a
judicial act and administrative act has withered away and we have been liberated from the
pestilent incantation of administrative action.

4. MINISTERIAL ACTION
A further distillate of administrative action is ministerial action. Ministerial action is that
action of the administrative agency, which is taken as matter of duty imposed upon it by the
law devoid of any discretion or judgment. Therefore, a ministerial action involves the
performance of a definitive duty in respect of which there is no choice. Collection of revenue
may be one such ministerial action.
i. Notes and administrative instruction issued in the absence of any
ii. 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.5

5
https://www.legalindia.com/question/what-are-the-classification-of-administrative-action/
 JUDICIAL CONTROL OF ADMINISTRATIVE ACTION
Hon’ble judges exercise judicial power with the power and authority of judicial review i.e. a
court’s power to review the actions of other branches of government, especially the court’s
power to invalidate legislative and executive actions as being unconstitutional.6 Judicial Review
of Administrative action is part of enforcing the constitutional discipline over the administrative
agencies while exercising their powers. It has origin in England which travelled in common law
countries. India too inherited the idea of judicial review from England. India had laid its structure
on English prerogative with pattern which was issued by the court of King's Bench with a view
to exercise general superintendence over the due observance of law by officials/ authorities while
performing judicial or non-judicial functions.
India is lucky enough to have a Constitution in which the fundamental rights are enshrined and
which has appointed an independent judiciary as the bulwark of the citizen’s liberties against the
forces of authoritarianism.7 To take recourse of judicial review is the evolution of the nature
human thought. Law must be in conformity with the constitution. ‘If Law exceeds in its limit, it
is not law but a mere pretence of law. Law must be just, virtuous and capable of bringing human
prosperity and not arbitrary, unjust, violative of the constitution. “In law, rightly established a
great part of the well being of humanity consists; under unjust laws, there is servitude and
oppression and unbearable misery of citizens from which, in the end, the dissolution of the state
follows.8
Judicial Review is a great weapon through which arbitrary, unjust, harassing and un
constitutional laws are checked. Judicial review is the cornerstone of constitutionalism, which
implies limited Government.9 In this connection Prof. Rao remarks: “In a democracy public
opinion is passive, and in India it is still worse, and that is all the reason why it is imperative that
judiciary should come to our rescue. Otherwise the Constitution becomes ill balanced, and leans
heavily on Executive Supremacy, and tyranny of the majority; and that was not the intention of
the Makers.”10 The provision for judicial review has been foresightedly in built in our

6
Black’s Law Dictionary, 8th Ed. p.864
7
Dr. C.D.Jha’s Judicial Review of Legislative Acts, Second Edition, 2009 p. VII
8
Marsilius, Defensor Pacis, Book 1 on Law Ch. XII, From William Y Elliott & Neil A Mc Donald: Western
Political Heritage, Prentice Hall Inc, USA 1963, p 314.
9
SC Dash, The Constitution of India, A comparative study, Chaitany a Publishing House, Allahabad, 1960, p 334.
10
K.V.Rao Parliamentary Democracy in India, The World Press Pvt. Ltd. Calcutta, 1961 p 213.
constitution, in order that the integrity of the Constitution may be preserved against the hasty or
ill- considered changes, “the fruit of passion or ignorance” as Justice Frankfurter has rightly said,
man being what he is cannot safely be trusted with complete power in depriving others of their
rights. Had it not been for the prescience of our Constitution-makers, our fundamental rights and
liberties would by now have been in sorry tatters.11
In the process of judicial review of legislative and executive action, the courts pick out the
golden thread of reason and meaning in a law; they shape and mould the law, reveal its fitness
and nuances, smooth the angularities, strike down the bad law or illegal action, and most
essential to all, exert the strong moral forces of restraint in times when expediency is all.12
India has solid constitutional base and control mechanism running with the written Constitution
with entrenched fundamental rights whose enforcement is itself guaranteed. The Supreme Court
of India explained the purpose of the Constitution of India in conferring the writ issuing power in
the following words: "The makers of the Constitution having decided to provide for certain basic
safeguards for the people in the new set up, which they call the Fundamental Rights, evidently
thought it necessary to provide also a quick and inexpensive remedy for enforcement of such
rights and, finding that the prerogative writs which the Courts in England had developed and
used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly
suited for the purpose, they conferred, new and wide powers on the High Courts of issuing
directions, orders or writs, primarily for the enforcement of Fundamental Rights, the power to
issue such directions, "for any other purpose" being also included."
Article 32(2) and Article 226(1) provide mechanism for enforcement of fundamental rights
against the administrative authorities through judicial review.
1. HABEAS CORPUS:
"The dynamic role of judicial remedies imparts to the habeas corpus writ a versatile
vitality and operational utility that makes the healing presence of the law live up to its
reputation as bastion of liberty even within the secrecy of the hidden cell."13 ( Krishna
Iyer J.)

11
Ibid
12
Ibid p.VII
13
Ibid, 493-494(SCC)
The writ of habeas corpus has been described as a great and efficacious writ in all manner of
illegal confinement.14 This latin expression habeas corpus subi di cendum literally mean 'you
must have the body'. Halsbury's Laws of England defines it, "writ of Habeas Corpus is a
prerogative process for securing the liberty of the subject by affording the effective means of
immediate release from unlawful or unjustifiable detention and is available against the
executive."15 In words of Marshall C.J. of the U.S. Supreme Court it is "a great constitutional
privilege." The writ is the most effective means of checking the arbitrary arrests effected by
statutory authority. It was termed as magna carta of British liberty or as a palladium of liberty of
common man.
There are certain specialties of Habeas Corpus writ: writ of habeas corpus is not
affected by the res judicata.16 Repeated petition can be filed under Article 32 itself.17 Even the
rule of constructive res judicata does not apply in habeas corpus case.18 The Supreme Court
expressed the opinion that even if the appeal against the decision of the High Court in the
Supreme Court is dismissed, a fresh habeas corpus petition can be filed in certain circumstances,
that is to say, (i) there has been change in the circumstances; or (ii) ground which were not
19
available when the earlier petition was decided, have subsequently become available. Habeas
Corpus petition can be moved by the dentenus himself or by his next friend or relative. Under the
public law remedy, the superior courts have evolved the cases of constitutional tort and in cases
of illegal detention; they award compensation to the detenue.20
There are also some additional features of Habeas Corpus petitions: The allegation of illegal
arrest must be supported by an application with affidavit to that effect; The Court will examine
the prima facie case, if found then issue rule nisi calling upon the person against whom
allegations have been made to show cause and produce the person detained in Court. If court
finds detention is illegal then the detenue is set free. The detention will be vitiated if it proved to
be malafide and is made with some ulterior purpose.21 The writ of Habeas corpus is an effective
remedy for immediate release of a person from unlawful or illegal detention. Habeas corpus

14
Blackstone
15
V.M. Shukla's, Legal Remedies Eastern Book Co. (7th ed.) 1998 p. 45.
16
Ghulam Sarwar v. Union of India A.I.R. 1967 S.C. 1335.
17
Sunil Dutt v. Union of India (1982) 3 SCC 405.
18
Lallubhai v. Union of India (1981) 2 SCC 427; Kirit Kumar v. Union of India (1981) 2 SCC 436.
19
T.P. Maideen Koya v. Government of Kerala
20
Rudal Shah v. State of Bihar (1983) 4 SCC 141
21
Ghulam Sarwar v. Union of India A.I.R. 1967 S.C. 908.
petition cannot be suspended during emergency.22 The habeas corpus will be available against
the State as well as the private individual in private custody. Thus, a child is forcibly kept from
his parents, or if a man is wrongfully kept in confinement as a lunatic or if a nun is not allowed
to leave convent, the writ of habeas corpus will lie.
The habeas corpus petition does not lie, if detention is not illegal prima facie, if it
is done in accordance with procedure, under proper law and does not infringe the requirement of
Article 22 of the Constitution. The writ will not be allowed if there is no illegal restraint. "The
question for a habeas corpus court is whether the subject is lawfully detained. If he is, the writ
cannot issue, if he is not, it must issue."23No writ will be in regard to a person who is undergoing
an imprisonment on a sentence of a Court in a criminal trial on the ground of erroneousness of
the conviction.24
Anyway habeas corpus writ has been favoured as most effective weapon for the
release of detenue detained under illegal order of the executive authority. The Court's sensitivity
is clear in the manner of allowing it even on the letter of a co-prisoner about the torture of the
other prisoner and it opened new vistas of the issuance of the writ of habeas corpus.25There is
no strict rule as who can file an application for habeas corpus. Apart from the detenue himself his
father, mother, brother, sister or even his relative or friend can move an application.

2. MANDAMUS:
Mandamus is ordinarily understood as a command which is of English origin. It is one of the
prerogative writs issued by English Courts. It is a judicial command for securing judicial
enforcement of public duty. It provides guarantee of observance of public duty by an
administrative authority. Mandamus is a judicial remedy which is in the form of an order from a
superior court to any Government, Court, Corporation or public authority to do or forbear from
doing some specific act which that body is obliged under law to do or refrain from doing, as the
case may be, and which is in the nature of a public duty and in certain cases of a statutory duty. 26
In England it is pre-eminently a discretionary remedy. Thus, the mandamus is "neither a writ of

22
Article 359 as amended by the Constitution 44 th Amendment Act, 1978.
23
Prabhu Narain Singh v. Supt. Central Jail, ILR (1961) 1 All. 427.
24
Janardan Reddy v. State of Hyderabad A.I.R. 1951 S.C. 217.
25
Sunil Batra II v. Delhi Administration A.I.R. 1980 S.C. 1579.
26
Dr. A.T.Markose, Judicial Control of Administrative Action
course nor a writ of right, but that it will be granted if the duty is in the nature of a public duty
and especially affects the right of an individual, provided there is no more appropriate remedy".27
It has positive connotation. But, in India there is no such limitation. It would lie to restrain an
authority from acting unlawfully.
The applicant for mandamus must show that he has legal right to compel the
opponent to do or refrain from doing something. In words of the Supreme Court, there must be in
the applicant a right to compel the performance of some duty cast on the opponent.28 Thus, there
must be a duty cast on some administrative authority. It must have three qualities: First, the duty
must be of a public nature. It is of public nature when (i) it arises under a statute or common law;
and (ii) it does not correspond to a private right. Second, the duty must not be of a purely
ministerial nature i.e. the person against whom it is sought should not be person acting under the
order of his superiors, and Third, the duly must be of an imperative or absolute character. It
must be mandatory and not discretionary in nature.
Before the claim of mandamus is made there must be prior demand for relief and
its refusal by the authority.29 The rationale behind it is that the party against whom mandamus is
sought should have had the opportunity of considering. However, in public interest litigation the
courts do not insist upon it.
Mandamus is based on sufficiency of legal interest of the person claiming it and
has been issued in variety of cases. It has been issued against an authority threatening to realize
illegal tax.30 It is not issued against private but in some cases it is allowed even if the person on
whom statutory duty is imposed is not a public official. It can be issued against a company
constituted by a statute for the purposes of fulfilling public responsibilities31 or a college
management constituted under the Trusts Act.32
Mandamus can be issued on grounds similar to the grounds used for the issuance of
certiorari or prohibition, viz. error of jurisdiction, lack of jurisdiction, excess of jurisdiction,

27
R.V. Dusheath (1950) 2 All ER 741 at p. 743 per Lord Goodard C.J.
28
Union of India v. Orient Enterprises (1998) 3 SCC 501.
29
Annapoorna Farming and Fishery Ltd. v. State A.I.R. 953 Cal. 756.
30
Himmat Lal v. State of M.P. A.I.R. 1954 S.C. 403.
31
Praga Tools Corporation V.C.A. Imanul (1969) 1 SCC 585.
32
Andi Mukta Sadguru, Shree S.M.V.S. J. M.S. Trust v. V.R. Rudani (1989) 2 SCC 691.
jurisdictional facts, violation of the principles of natural justice and error of law apparent on the
face of record and abuse of jurisdiction.
There are certain limitations on issue of the writ of mandamus: An alternate remedy may
dissuade courts from issuing mandamus; it is not issuable against a private individual or person
working in ministerial capacity. The court will not interfere with merit of the decision based on
administrative discretion unless it is made without or excess of jurisdiction or is malafide or is
based on extraneous consideration.33 Manadamus cannot lie against legislature to enact certain
laws or not to enact for which it is competent to enact.34 The Courts are reluctant to issue
mandamus against high constitutional dignatories like President and Governors. The position is
not clear. In S.P. Gupta v Union of India 35all judges except Venkatramaiah J. were of the view
that writ of mandamus could not be issued against the President of India for fixing the strength of
Judges in the High Courts and filling the vacancies. But, in Advocates on Records Association v.
Union of India36, Venketaramaiah J.'s approach in S.P. Gupta prevailed and the Supreme Court
ruled that the judges strength is a justiciable issue and appropriate measures including the
issuance of mandamus can be taken for that purpose. But, again in C.G. Govindan v. State of
Gujarat37 the Court refused to issue mandamus against Governor to approve the fixation of
salaries of the Court staff by the Chief Justice of the High Court under Article 229. It is
submitted that in view of judicial opinion that Governor and President mean the state or union
Government, the view of Venkataramaiah J. in S.P. Gupta and the Supreme Court in Advocates
on Records Association is welcome.
The scope of mandamus is also increasing in view of requirement of fairness in
administrative decisions. A Court can examine fairness of decision inspite of finality clause.
Now the requirement and emphasis is not on duty to act judicially, as to act fairly.38

33
Nalini v. D.M. (1950-51) 55 CWN 297.
34
State of J. and K. v. A.R. Zakki 1992 Supp (1) SCC 548
35
A.I.R. 1982 S.C. 149.
36
(1993) 4 SCC 441.
37
(1998) 7 SCC 625.
38
M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar (1981) 1 SCC 664.
3. CERTIORARI:
Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a
cause or matter pending before them to the superior Court to be dealt with there and if the order
of inferior Court is found to be without jurisdiction or against the principles of natural justice, it
is quashed:
“Certiorari is historically an extraordinary legal remedy and is corrective in
nature. It is issued in the form of an order by a superior Court to an inferior
civil tribunal which deals with the civil rights of persons and which is public
authority to certify the records of any proceeding of the latter to review the
same for defects of jurisdiction, fundamental irregularities of procedure and for
errors of law apparent on the proceedings.”
The root of Certiorari lies in Certiorare meaning ‘to inform’. It may be defined as judicial order
operating in personam and made in the original legal proceedings directed by the Supreme Court
or High Court to any constitutional, statutory or non-statutory body or person, requiring the
record of any action to be certified by the Court and dealt with according to law. 39 Originally it
was meant to inform the King by certifying record of any matter. In India it may be defined as a
judicial order issued by the Supreme Court under Article 32 or by a High Court under Article
226 of the Constitution to an inferior court or any authority exercising judicial or quasi-judicial40
or administrative41 functions to the Court of records of proceedings pending therein for scrutiny
and decide the legality or validity of the orders passed by them. If the decision is bad it is
quashed.42
Certiorari is issued only against the judicial or quasi-judicial orders and not against
purely administrative or ministerial order. The Supreme Court of India clarified its stand that"
One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the writ
can be availed of only to remove or adjudicate on the validity of judicial acts. The expression
"judicial acts" includes the exercise of quasi-judicial functions by administrative bodies or

39
I.P. Massey, Administrative Law, 7th ed. 2008 p. 404.
40
Prabodh Verma v. State of U.P. A.I.R. 1985 S.C. 767.
41
A.K. Kraipak v. Union of India A.I.R. 1970 S.C. 150.
42
Hari Vishnu Kamath v. Ahmad Ishaque A.I.R. 1955 S.C. 233.
authorities or a person obliged to exercise such functions, and is issued in contrast with what are
purely ministerial acts".43
Thus, the first and foremost task to ascertain what judicial decision is. In India the
apex Court44 has adopted with approval the test of deciding judicial act as enumerated by English
Committee on Ministers' Powers (1932): "A true Judicial decision pre-supposes an existing
dispute between two or more parties, and then involves the following requisites:
1) the presentation (not necessarily oral) of their case by the parties to the dispute;
2) if the dispute between them is a question of fact, the amendment of the fact by means of
evidence adduced by the parties;
3) if the dispute between them is a question of law, by the submission of the legal arguments by
the parties; and
4) a decision which disposes the whole matter by a finding upon the facts in dispute and an
application of the law of the land to the facts as found, including where required, a rule upon any
disputed question of law.45
The second issue to be considered is what are quasi-judicial acts? The jurisdiction
of the court to issue certiorari depends on fact where power has been exercised by a court or
tribunal i.e. exercise of judicial or quasi-judicial functions. Therefore, a distinction is to be made
between such acts and purely administrative acts. The problem of doing so is most complex and
baffling. Lord Atkin pointed out three essentials to decide the quasi-judicial nature of the act; (i)
that there is a body of persons, who have legal authority to determine question, (ii) that the
questions which they have to determine affects the rights of subjects, and (iii) that the body of
persons is under a duty to act judicially.
The Indian judiciary has adopted the same test with approval.46 In modern times the
judiciary has interpreted the expression to act judicially in such a dynamic way that the
distinction between the quasi-judicial and administrative act has become blurred. The Supreme
Court of India following the British Judicial opinion47 on the point made it clear that – "The rule

43
T.C. Basappa v. T. Nagappa A.I.R. 1954 S.C. 440.
44
Bharat Bank v. Employees of Bharat Bank A.I.R. 1950 S.C. 123; Maqbool Hussain v. State of Bombay A.I.R.
1953 S.C. 325.
45
Ibid, A.I.R. 188
46
Province of Bombay v. Khushaldas Advani A.I.R. 1950 S.C. 222.
47
Ridge v. Baldwin 1964 A.C. 40 Lord Reid ruled that "the necessity to follow Judicial procedure and observe
principles of natural justice flow from the nature of the decision …."
that party to whose prejudice the order is intended to be passed is entitled to a hearing applied
alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon
matters involving civil consequences. It is one of the fundamental rules of our constitutional set
up that every citizen is protected against exercise of arbitrary authority by the State or its
officers.”48
49
Again, in D.F.O. South Kheri v. Ram Sanehi singh the Supreme Court affirming
the above decision said that "Granting that the order was administrative and not quasi-judicial
the order had still to be made in a manner consonance with rules of natural justice when it
affected the respondent; right to property."50

The writ of certiorari can be issued on the following grounds:

I. Lack of jurisdiction: It goes to the root of the decision of deciding authority rendering
invalid. It may arise in five ways:
1) If the deciding authority is illegally constituted.51
2) If the authority commits an error in its decision on jurisdictional facts and thereby
assumes jurisdiction which never belonged to it.52
3) If the authority is incompetent to take action in respect of a locality, party or subject
matter.53
4) If law which provides jurisdiction is itself unconstitutional.
5) If basic requirements like giving notice has been disregarded.54
II. Excess of Jurisdiction: It covers those cases where deciding authority possesses
jurisdiction but he has exceeded jurisdiction. The decision of the University's Executive
Committee was quashed for exceeding jurisdiction. Under relevant Act only teachers
could be reinstated but the Committee had exercised power with respect to the Principal.
III. Abuse of Jurisdiction: The decision of the deciding authority can be quashed if it has
jurisdiction but has abused it. It can be said to be abused it when he exercises power for

48
State of Orissa v. Dr. (Miss) Binapani A.I.R. 1967 S.C. 1269.
49
(1971) 3 SCC 864.
50
Ibid, SCC 866 para 5
51
Rafiq Khan v. State of U.P. A.I.R. 1954 All. 3;
52
Budh Prakash Jai Prakash v. S.T.O. A.I.R. 1952 All. 764.
53
Nalini Ranjan v. Ananda Shankar A.I.R. 1952 Cal. 112.
54
I.P. Massey, Administrative Law, 2008, p.405.
 an improper purpose, or extraneous considerations, or in bad faith or leaves out a relevant
consideration.
IV. Violation of the principles of natural justice: There are two main rules of natural
justice-first rule against bias including in itself personal bias, pecuniary bias, subject
matter bias, departmental bias, preconceived notion bias and rule of audi alteram partem
i.e. let the other party be heard – it includes the right to know adverse evidence, right to
present case, right to rebut evidence, right to cross – examination and legal
representation, right to reasoned decision. Error of Law apparent on the face of
record: Error of law may attract certiorari but it must be a "manifest error apparent on
the face of the proceedings, e.g. when it is based on the clear ignorance or disregard of
the provisions of law".55 Thus, it is not wrong decision but patent or self-evident error of
law which will attract certiorari.56 In Syed Yakoob V. K.S. Radhakrishnan57,
Gajendragadkar J. speaking for majority of the Court observed that, "An error of law
which is apparent on the face of the record can be corrected by a writ, but not an error of
fact, however, grave it may appear to be." Such cases may fall (i) erroneously refusing to
admit admissible and material evidence; (ii) erroneously admitting inadmissible evidence
which influenced the finding, and (iii) a finding of fact based on no evidence."
V. Fraud: Fraudulent proceedings of decision may form ground for certiorari. There are no
cases in India where certiorari has been asked on account of fraud. The cases are found
in British Administrative law where on the ground of fraud the Court has granted the writ
of certiorari. The superior Courts have an inherent jurisdiction to set aside orders of
convictions made by inferior tribunals if they have been procured by fraud or collusion a
jurisdiction that now exercised by the issue of certiorari to quash Where fraud is alleged,
the Court will decline to quash unless it is satisfied that the fraud was clear and manifest
and was instrumental in procuring the order impugned
There are certain limitations on the issue of writ of certiorari: Writ of certiorari
requires exercise of supervisory jurisdiction and an appellate jurisdiction. It means that the courts
will not review the finding of facts reached by inferior courts or tribunals even if they cannot

55
Hari Vishnu Kamath v. Ahmad Ishaque A.I.R. 1955 S.C. 233.
56
Dr. Chetkar Jha v. Dr. D.P. Verma, A.I.R. 1970 S.C. 1832
57
AIR 1964 SC 477
substitute a new order in its place. In Hari Bishnu Kamath V. Ahmad Ishaque58the Supreme
Court explained: "The court issuing certiorari to quash, however, could not substitute its own
decision on the merits or give directions to be complied with by the court or tribunal. Its work
was destructive, it simply wiped out the order passed without jurisdiction, and left the matter
there."59
i. High Court's judicial orders are open to be corrected by certiorari; a writ is not available
against the High Court.60
ii. A writ of certiorari is available for issuance of declaring an Act or ordinance i.e.
legislative enactment unconstitutional or void.61
iii. Certiorari is always available against inferior courts and not against equal or higher court
i.e. it cannot be issued by a High Court against any High Court or benches, much less to
the Supreme Court and any of its benches.62

4. PROHIBITION:
The writ of prohibition is based on the principle to keep and stick always the inferior authorities
(judicial or otherwise) to their proper jurisdiction. It is a writ whereby a court of superior
jurisdiction exercises power over an inferior or quasi-judicial tribunal. It is issued with a view to
control them and checks them from continuing their proceedings
(i) in excess, or
(ii) abuse of their jurisdiction; or
(iii) in violation of the rules of natural justice; or
(iv) in contravention of the law of the land.
In this way prohibition appear, to be analogous to certiorari but chief difference
lies at the stages at which these writs are issued. That is to say certiorari is issued when act is
completed and prohibition is issued during the pendency of the matter by authority to prevent it
from proceeding with it.63 Lord Goddard C.J. observed: "It would not be at all desirable to lay
down a definite rule when a person should go to the tribunal or when he should come here for

58
A.I.R. 1955 S.C. 233.
59
Ibid AIR 240
60
Naresh S. Mirajkar v. State of Maharashtra A.I.R. 1967 S.C.1
61
Prabodh Verma v. State of U.P. (1984) 4 SCC 251.
62
Surya Dev Rai v. Ram Chandra Rai (2003) 6 SCC 675.
63
Hari Vishnu Kamath v. Ahmad Ishaque A.I.R. 1955 S.C. 233.
prohibition where the objection is that the tribunal has no jurisdiction for myself I should say
that where there is a clear question of law not depending upon particular facts there is no reason
why the applicant should not come direct to this court for prohibition rather than wait to see if
the decision goes against him, in which case he has to move for a certiorari."64
Existence of alternate remedy is not very much material for the writ of prohibition.
As pointed out by the Hon’ble Supreme Court in case of Bengal Immunity Co. Ltd. 65
it may be
relevant for Certiorari, but where an inferior tribunal is shown to have usurped jurisdiction
which does not belong to it that consideration is irrelevant and the writ of prohibition has to issue
as of right.

5. QUO WARRANTO:
'Quo Warranto' means in short 'by what authority'. It is issued to determine the right of a person
in office to hold office and directing him to disclose under what authority he is holding that
office. Thus, it is judicial order issued by the superior courts – the Supreme Court and High
Courts to know the genuineness of the occupancy of an office by a person and to ascertain
whether a person has occupied an independent public office genuinely or has usurped such an
office or franchise or liberty. The purpose of the writ of quo warranto is to determine the
genuineness to hold that office.66
There are certain pre-requisites for the successful claim of Quo Warranto. The
office held by the person must be a public office i.e. an office in which public has an interest.
The offices created under the Constitution of India or specific statutes are deemed to be public
office. The Courts have opportunity to declare the following offices as public offices and
therefore, amenable to the writ jurisdiction. The office of the Chief Engineer of a Corporation.67
The office of the Speaker of Legislative Assembly.68 The office of Advocate-General of a
State..69The office of a Judge of a High Court.70The office of the Prime Minister of India or Chief

64
R v. Tottenham and District Rent Tribunal (1956)2 All ER 863(DC)
65
A.I.R. 1955 S.C. 661
66
University of Mysore v. Govind Rao A.I.R. 1965 S.C. 491.
67
Ashgar Ally v. Birendra (1945) 4 SC WN 658.
68
Anand Behari v. Ram Sahay A.I.R. 1952 M.B. 31.
69
G.D. Karkare v. T.L. Shevde A.I.R. 1952 Nag. 333.
70
Queen Express v. Ganga Ram (1894) 16 All. 136. In P.L. Lakhan Pal v. Ajit Nath Ray, Chief Justice of India,
A.I.R. 1975 Delhi 166, Delhi High Court did not issue quo warranto finding that it would have been futile.
Minister of a State..71The office of the member of a municipal Board.72The office of the
University official73 i.e. a Professor.
1. The writ of Qua Warranto cannot be claimed as a matter of right. It is discretionary.
2. The office must be substantive in nature. In R. V. Speyer74 the word 'substantive' was
interpreted to mean an 'office independent to title'. In a post though occupied at the
pleasure of Government, but being permanent in character is amenable to writ
jurisdiction.
3. The office must be held in contravention of law. Only a case of irregularity will not
attract Qua Warranto.75
It is not necessary in Quo Warranto that the petitioner must be aggrieved. It can be
maintainable at the instance of any person, although he is not personally aggrieved or interested
in the matter.76 In G.D. Karkare V. T.L. Shevede77, the Nagpur High Court observed: "In the
proceeding for a writ of Quo Warranto the applicant does not seek to enforce any right of his as
such, nor does he complain of any non-performance of duty to him. What is in question is the
right of the non-applicant to hold the office and an order that is passed is an order ousting him
from that office."
A writ of Quo Warranto has some limitations:
1. Since it is discretionary unreasonable delay may cause refusal of the issuance of Quo
Warranto.
2. In election case acquisence may be ground for refusal of Quo Warranto.78
3. In case of futile impact, it may be refused. In P.L. Lakhanpal V. A.N. Ray, CJI79, the Quo
Warranto was refused at it would have been futile in view of resignation of the three
senior justice of the court.

71
U.N.R. Rao v. Indira Gandhi A.I.R. 1971 S.C. 1002
72
Amarendra v. Narendra Basu A.I.R. 1953 Cal. 114.
73
Ram Singh Saini v. H.N. Bhargava (1975) 4 SCC 676.
74
(`1916) 1 K.B. 595.
75
State of Assam v. Ranga Muhammad A.I.R. 1967 S.C. 903 transfer and posting of two judges was found merely
irregular, hence writ was not issued.
76
G. Venkateshwara Rao v. Govt. of A.P. A.I.R. 1966 S.C. 828.
77
A.I.R. 1952 Nag. 333 at p. 334.
78
But, in K. Bheema Raju v. Govt. of A.P. A.I.R. 1981 A.P. 29 it was held that delay should not deter the Court in
granting relief as - continuance gives cause of action every day and every hour till be is ousted.
79
A.I.R. 1975 Delhi 66.
 4. If appointment is not against the norms – constitutional and statutory Quo Warranto
cannot be issued. In H.S. Varma V. T.N. Singh,80 the appointment of a non-member of
State legislature as C.M. was found valid in view Article 164(4) which allows such
appointment for six months and consequently Quo Warranto was refused. However, if a
candidate is otherwise disqualified Qua Warranto can be issued against the Chief
Minister.81

80
H.S. Verma v. T.N. Singh (1971) 1 SCC 616.
81
B.R. Kapoor v. State of T.N. (2001) 7 S.C.C. 231.
 CONCLUSION

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 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
of 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-movements of essential commodities,
their prices, distribution, etc. under this provision the administration can make orders of
legislative as well as administrative nature. 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. (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.82 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. 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

82
Tulsipur Sugar Co. v. The Notified Area Committee, Tulsipur, AIR 1980 SC 883
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 have 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.
Judicial review of administrative action is inherent in our Constitutional scheme which is based
on rule of law and separation of powers. It is considered to be the basic features of our
Constitution, which cannot be abrogated even by exercising the Constituent power of parliament.
It is the most effective remedy available against the administrative excesses. Well it is positive
sense among the masses that if the administration undertakes any work or acting under discretion
power conferred upon it either by statutory rules or under the provisions of the Constitution of
India. If it is failure to exercise discretion or abuse of discretion power to settle its score or gain
any private profit due to this discretion power, then only option before the public is to go to
judiciary under Article 32,136 or Article 226 of the Constitution of India. The main purpose of
judicial review is to ensure that the laws enacted by the legislature conform to the rule of law.
Judicial review has certain inherent limitations. It is more suited for adjudication of disputes than
for performing administrative functions. It is for the executive to administer the law and function
of judiciary is to ensure that government carries out its duty in accordance with the provision of
the Constitution of India.
 BIBLIOGRPHY

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2. D.D. Basu, Comparative Administrative Law (1988)
3. M.A. Fazal, Judicial Control of Administrative Action in India, Pakistan and Bangladesh
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4. Wade, Administrative Law (Seventh Edition, Indian print 1997), Universal Delhi.
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