Lecture 3

Classification of Administrative Actions

It is customary to divide functions of government into three classes:

legislative, executive (or administrative) and judicial.
-Wade and Phillips

The dividing line between an administrative power and a quasi-

judicial poweris quite thin and is being gradually obliterated..In
recent years the concept of quasi-judicial power has been under-
going a radical change. What was considered as an administrative
power some years back is now being considered as a quasi-judicial
power.
-Justice Hegde

Duty to act judicially would arise from the very nature of the func-
tions intended to be performed; it need not be shown to be super-
added. If there is power to decide and determine to the prejudice
of a person, duty to act judicially is implicit in the exercise of such
power.
-Justice Shah

Synopsis
General 42 General. 51
Need for classification... 42 Object. . 52
executive and judicial Lis.. 52
Legislative, 53
functions:General Distinction... 43 Quasi-lis
Legislative functions.. , 44 Duty to act judicially... 54
Legislative and judicial Leading cases
functions: Distinction.. . .44 Test..
Legislative and administrative Duty to act fairly. . .. . 58

functions: Distinction . . 46 Quasi-judicial functions:

Judicialfunctions.. . . .48 Illustrations. ... 59
Quasi-judicial functions .. 48 Administrative functions:
Judicial and quasi-judicial Illustrations.. . . 59
functions: Distinction. . .. S0 Administrative
50 instructions... . 59
Administrative functions..
Administrative and
quasi-judicial functions:
Distinction ... 51
 A C T I O N S

ADMINISTRATIVE

CLASSIFICATION OF

42
I GENERAL

legislature, 2) evo.

1)
of the
government:
perform three cla
classes of
administr o
three organs essentially
There a r e organs administra
These three executive or

and 3) judiciary. legislative, 2) the lau the

f u n c t i o n s : 1) is to e n a c t
governmental the legislature
of of
judicial. The
function
the law; and
functionof
the function
and 3) executive is to
administer
the law is.,
declare what
function
of the law and to
Amnritlal Shodha.
interpret the in Jayantilal han
judiciary is to
Supreme-Gourt
But as observed by the- the legislative functionsare
be assumed that
. Rama'yit
F.N. eannot executive functions by the ev.
eX-
by the legislature,
exclusively performed jtcdieiary, In Halsbury's Laws of
ecutive and judiciat
functions-by the "the executive" or
is-stated-that-hawsoeyer the term
England aBso, it there is no implication
that the func.
"the administration" is employed,
to those of an executive or
tions of the executireareconfined exclusively
administrative character
functions, viz. to investi.
Today, the executive performs variegated
and to adopt schemes, to issue and cancel
gate, to prosecute, to prepare
licences, etc. (administrative); to make rules, regulations and bye-laws, to
fix prices, etc. (legislative); to adjudicate on disputes, to impose fine and
penalry, etc. (judicial). Schwartz rightly states that rule-making (quasi-
legislative) and adjudication (quasi-judicial) have become the chief weap-
ons in the administrative armoury." Quasi is a smooth cover which we
draw over our confusion as we might use a conterpane to conceal a
disordered bed."
emphasis supplied)
2 NEED FOR
CLASSIFICATION
A question which arises for our consideration is
performed by the executive authorities are whether the functions
judicial or quasi-legislative in purely administrative, quas
as there is no character. The answer is indeed difhcult,
tions from one
prerise, perfect and scientific test to
to
another.
merge in legislative Administrative and
distinguish these func
to fade into activity and, quasi-judicial decisions ten
and
present an conversely, legislative activitY te
judicial activity. further
judic A appearance of
arises in administrative or qua
an 1-
procecding may times
The courts have not
difficulty
at
combine various a case in
which aa single
pose of making such been able to aspects of the three sing
formulate
classification. functio any definite test for
I. AIR 1964 SC
the ur-
pu
2.
(4th Edn.) Vol.648, 655:
I, 20. (1964)SCR 294.
5
3.
French
Administrative
4. Federal
Administrative
Law
(1984) 34.
Law and
the
Fd ro8T Trade Comircis Common Lau
 1d nevitable
flow from it; as many consequend
e.g.at the executive
authority
exercises judicial quasa or
judicialfunction, it must follow the principles
amenable to a writ of certiorari or prohibition, butnatural
of
if it is ajustice and or
legislative is
quasi-legislative function, natural justice has no application. If the action
of the executive authority is
legislative in character, the requirement or
publication, laying the table, etc. should be complied with, but it1
on
not necessary in the case of a
pure administrative action. Again, it the
function is administrative, delegation is
cannot be
permissible, but if it is judicial, it
delegated. An exercise of legislative power may not be held in-
valid on the ground of
unreasonableness, but an administrative decision
can be challenged as being unreasonable. It is, therefore, necessary to
determine what type of function the administrative
authority pertorms.
3 LEGISLATIVE, EXECUTIVE AND JUDICIAL
FUNCTIONS: GENERAL DISTINCTION
Willes' attempted to draw general distinction between legislative, execu-
tive and judicial functions in the following words:
Mr Green has defined the legislative power as the
power to create rights,
powers, privileges, or immunities, and their correlatives, as well as status,
not dependent upon any previous rights, duties, etc. (or for the first time),
that is, apparently, the power of creating antecedent legal capacities and li
abilities. He defines judicial power as the power to create some right or duty
dependent upon a previous right or duty, that is, apparently the power to
create legal
remedial capacitiesand liabilities.
He finds difficulty in defining
executive power, except as including all governmental power which is not
part of the process of legislation or adjudication, that is, the power which
is concerned mostly with the management and execution of public affairs.
In Vora Fida Ali v. State of Bombay', the Gujarat High Court observed:
All that the Court can do is to consider the act in question and to decide
on an application of broad and general considerations whether the act is a
legislative or an executive or a judicial act without making any attempt to
formulate rigid or exhaustive tests for determining the nature or character
of the act.
It is accepted that any attempt to rigidly define and demarcate three
functions of the government is almost impossible. However, for review of
actions of executive government, this conceptual distinction is meaning-
ful.7 The Indian Constitution has not made an absolute or rigid division
of functions between the three agencies of the State.3

Treatise on Constitutional Law.

5
AIR 1961 Guj 151, 170-171: (1961) 2 Guj LR 343, 380-381.
6.
Benjafield & Whitmore, Australian Administrative Law (1966) I02.
7 antilal Amritlal Shodhan v. F.N. Rana, AIR 1964 SC 648, 655: (1964) 5
8.
 ADMINISTRATIVE ACTIONS
44 CLASSIFICATION OF

Paton rightly states, "Thus, no test for distinguishing the thres

ree
ers of the government is at once intellectually satisfying and functioypow.
useful."9

4 LEGISLATIVE FUNCTIONS

Legislative functions of the executive consists of making rules. reo.

tions, bye-laws, etc. It is, no doubt, true that any attempt to
tinct line between legislative and administrative
draw adi
functions is difficue a
theory and impossible in practice. Though ditheult, it is in
he line must be drawn as different necessary thar
As Schwartz1° said:
and legal rights consequences ensue
sue
If a
particular function is termed "legislative'
judicial "adjudication'
or
, it may have
or
'rule-making' rather than
concerned. If substantial ettects upon the
the function is treated as
in nature, there is parties
to a notice and hearing unless
legislative no right
a statute expressly requires them.1
In the
leading
of Bates v. Lord
case
Megarry J observed that "the rules of Hailsham of St.
Marylebone,
sphere legislation, primary or
of natural not run in justice do
the
no
right to be heard before the delegated". Wade" also said, "There is
making of
delegated, unless it is provided by legislation, whether primary or
Fixation of price, statute."
declaration of
tion of
establishment of Municipalplace to be a market yard, imposi-
a
tax,
provision, extension of limits of
be legislative functions." Corporation under the
committee, etc. arestatutory
a town area
held to
(a)
Legislative and judicial functions:
There is no
"bright ine"
Distinction
function. between
In Prentis legislative function
and judicial
tinction bet Atlanticv.
Coast Line Co.5,
A
weer legislative and judicial Holmes J points out the
judicial inquiry functions in the dis
on
present or investigates,
past facts declares and following words:
its
purpose and end. and under laws enforces liabilities as they
supposed already to exist. stand
Legislation on the other
9. Textbook hand looks to That
of
Jurisprudence the future anai5
Administrative
10.

Administrative Law (4th

(1976) Edn.) 338.
Action 143-144;
II. Union of India v.(1995) 1oo6-1008. see
also, De
SC 1802, 1806-1811.
Cynamide India Ltd., Smith, Judicial Review of
12.
(1972) WLR 1373, 1 (1987) 2 SCC
India v.
Cynamide lndia Ltd.,1378:(1987)(1972)SCC3 Al ER 1o19, 720, 74I-742: AIR 1907
13. Wade &&
Forsyth, Administrative 720: AlR 19871023-1o24; see also,
14. See, for detailed
2

discussion and Law (2009) 469. SC 1802. Union o

Chap. 3. case-law, Authors'
15. 53 L Ed 15oL 211
US 210
(1908). Administrative Law (2012)
 LEGISLATIVE FUNCTIONS 45

changes existing conditions by making a new rule to be applied thereafter

to all or some part of those subject to its
power."
According to him, the key factor is the element of time. A rule (legislative
function) prescribes future pattern of conduct and creates new rights and
liabilities, whereas a decision (judicial function) determines rights and
liabilities on the basis of present or past facts, and declares the pre-exist-
ing rights and liabilities. In the words of Green, "The legislative function
then is general and relates to the future, whereas the judicial function is
specific, final and ordinarily relates to the past." Adjudication deals with
what the law is, while rule-making deals with what the law will be.
According to some other jurists, however, the element of applicability
is relevant in distinguishing a legislative function from a judicial func-
tion. Prof. Dickinson says:
What distinguishes legislation from adjudication is that the former affects
the rights of individuals in the abstract and must be applied in a further

proceeding before the legal position of any particular individual will be

definitely touched by it; while adjudication operates concretely upon indi
viduals in their individual capacity.
acts by determinations of general applicability ad-
Legislature usually
dressed to indicated but unnamed and unspecified persons and situations.
A court of law, on the other hand, acts by decisions that are specific in ap-
and addressed to particular individuals or situations."
plicability
emphasis supplied)
Green states:
legislative function make all
Perhaps it would be better to say that it is a to
substantive law, and a judicial function finally to determine constitutional
facts.
jurisdiction and the application of substantive law to specific
of the cases, the aforesaid two theories help in dis-
No doubt, in most
certain situations,
tinguishing legislative and judicial functions, but in sometimes
they create some difficulties and seem to be defective, e.g.it cannot be
administrative adjudication creates some future rights; yet
said to be performing a legislative function. Conversely, if the test of ap-
etc. which are required
plicability is adopted, rate-making, price-fixing,
to be done after hearing the parties, may
be classified as judicial, while,
in fact, they are legislative in character and the object of hearing is only
to collect necessary information.
have all the three elements. It may
Moreover, a single function may
and partly judicial. For example,
be partly legislative, partly executive

see also, Express Newspaper (P)

Ltd.v. Union
16. Ibid, US 226-227: L Ed 158-159;
1959 SCR 12.
ofIndia, AIR 1958 SC 578, 61o:
and Supremacy of Law (1927) 21.
17. Administrative Justice
India v. Cynamide
India Ltd., (1987) 2 SCC 720: AIR 1987 SC 1802;
18. Union of AIR
Area Committee, Tulsipur, (1980) 2 SCC 295:
Tulsipur Sugar Co. Ltd. v. Notified
1980 SC 882.
 Charges tor
any railroad, its function is viewed as legislative. But where the questi.
for decision is whether a shipment of a mixture to coffee and chicor
should be charged the rate established for coffee or the lower rate es
tablished for chicory, the question is more nearly judicial. Where the
problem is merely the calculation of the total freight charges due for
a particular shipment, the determination can fairly be described as an
administrative act.

(b) Legislative and administrative functions: Distinction

Distinction between legislative and administrative functions is
very diff.
cult to draw. Different tests have been formulated by
jurists and scholars.
According to institutional test, that which the legislature enacts is
legislative", and that which the administration applies is "administra-
tive". Thus, an Act of Parliament is
"legislative" and an order of depor
tation is "administrative". But "in between is a wide area where
either
label can be given according to taste".19
The second test puts emphasis on extent and
applicability
Whereas legislative power is the power to make rules for
of the Act.

eral and for prospective application, administrative

subjects in gen-
power is exercised in
the application of such law to
specific cases and particular situations .20
De Smith21 also says that a
legislative act is the creation and
tion of a general rule of conduct without reference promulga-
to particular cases,
while an administrative act is the
ticular case. But this test is also not
application of a general rule to a par-
of distinguishing what is
complete. The difficulty here is that
general
the difference is only a matter of
from what is specific or
particular, as
degree. Administrative adjudication
may also be of general application.
of particular Conversely, there may be a legislation
application only. Thus, this is only a brbad distinction, not
always true.
Thus, on the one hand, in Blackpool Corpn.
Regulations, 1939, the Minister of HealthLocker22,
Defence
v. under the
gated requisitioning powers. One of the conditions wasby circular dele-
a

not be that there should

requisitioning of furniture. This condition was violated when A's
house was requisitioned. The
the circular were question was whether the instructions in
legislative, restricting the delegated power, or merely
administrative directions as to how the power should be exercised. The
19. Griffith && Street,
Principles of
Ltd. Union of India, (1990) 3 SCC Administrative Law (1973) 5o; Sitaram Sugar Co.
v.
223, 246-247: AIR SC 1277.
20. Ibid; see also, Union
of India v. Cynamide India 1990
AIR 1987 SC 1802, 1806-1807; Ltd., (1987) 2 SCC 720, 735
SCC 727, Managing Director, ECIL v. B.
Karunakar, (1993) 4
777-778: AIR
21. Judicial Revieuw
1994 SC ro74.
of Administrative Action (1995) Io06.
22. (1948)1 KB 349: (1948) I All ER 85 (CA).
 LEGISLATIVE FUNCTiONS 47
Court of Appeal held that the
and must be complied with. conditions were legislative in character
As it was not
On the other hand,
however, in Lewishamdone, the requisition was bad.
Town Clerk v. Robertss, the Metropolitan Borough and
house was delegated to a localpower requisition part of
to
particular a a
be an administrative act and notauthority. The Court of Appeal held it to
Similarly, in Baldev Singh v. Statelegislative
a
act.

certain areas within the of H.P24, an action of inclusion of

istrative, while in
Municipal Corporation was held to be admin-
Sunderjas Kanyalal Bhatija v. Collector5, such action
was held to be
legislative.
According to the Committee on Ministers'
teristics of a legislative function are Powers, the chief charac
its generality and
legislative act looks to the prospectivity.
futuTe and changes the existing
A
conditions by
making a new rule to be applied thereafter to all or some part of those
subject to its power and determines what shall in future be the mutual
rights and responsibilities of the parties by prescribing a binding rule of
conduct, while an administrative order is issued to specific persons only.
But this test is also not sufficient.
Thus, a power vested in a Board of Education to make grants to sec-
ondary schools if they satisfied the Board that they were being efficiently
maintained might appear, on the face of it, to be plainly executive or
administrative, but if the Board were to elaborate in detail the conditions
under which it would regard a school as qualifying for a grant and issue
circulars setting out such conditions for the information of schools, this
would seem to be in substance the formulation of a general rule. Thus,
the function of the Board may be regarded as legislative from one point
of view and as administrative from another. (emphasis supplied)
The Committee has rightly observed:
It is indeed difficult in theory and impossible in practice to draw a precise
between the function on the one hand and purely
legislative
dividing line
administrative on the other."
flow from the
According to De Smith28, the following legal consequences
aforesaid distinction:
All ER 815 (CA).
23. (1949) 2 KB 608: (1949) 1
SC 1239.
24. (1987) 2 SCC 510: AIR 1987
SC 261.
25. (1989) 3 SCC 396: AIR 199o
26. Friedmann & Benjafield, Principles of
Australian Administrative Law (1962) 41. SC
India v. Cynamide India
Ltd., (1987) 2 SCC 720, 735: AIR 1987
27. Union of observations of the Supreme Court in Union of
the following
I802, 18o6-1807; see also 2 SCC 720, 735:
AIR 1987 SC 1802, 1806; "With
India v. Cynamide lndia Ltd., (1987) is a tendency for the line between legislation
proliferation of delegated legislation, there Administrative, quasi-judicial decisions
vanish into an illusion.
and administration to tends to fade into
activity and, conversely, legislative activity
tend tomerge in legislative activity."
of an administrative or quasi-judicial
and present an appearance
28. Judicial Review Administrative Action (1980) 71-73.
of
 ADMINISTRATIVE ACTIONS
48 CLASsIFICATION OF

1. If an order is legislative in character, it has to be published

certain manner, but this is not necessary if it is of an admin in
tive nature.
Ifan order is legislative in character, the court will not issue.
e av
of certiorari to quash it, but if an order is an administrative
ve o
der and the authority was required to act judicially, the
can
quash by issuing a writ of certiorari.
it
3. Generally, subordinate legislation cannot be held invalid for un.
reasonableness, unless its unreasonableness is evidence of mal un-
fide or otherwise shows the abuse of power. But in case of
unrea.
sonable administrative order, the aggrieved party 1s entitled
to a
legal remedy.
Only in the most exceptional circumstances can legislative pow.
ers be sub-delegated, but administrative powers can always be
sub-delegated.
5. The duty to give
to legislative orders.
reasons applies to administrative orders but not

5 JUDICIAL FUNCTIONS

According to the Committee on Ministers' Powers", a

tion presupposes an pure judicial func-
existing dispute between two or more parties and it
involves four requisites:
I. The presentation (not necessarily oral) of their case by the parties
to the dispute.
2
2. If the dispute is
means of evidence adduced
a
question of fact, the
ascertainment of fact by
with the assistance of by the parties to the dispute and often
argument by or on behalf of the
evidence. on parties,
3If the
dispute between them is a question of
legal argument by the law, the submission ot
4. A decision which
parties.
the facts disposes of the whole matter by
the facts
in
dispute and "an application of the law offinding upon
found, including, where
so the land to
disputed question of law". required, a
ruling upon any
Thus, when these elements are
even though it
might present, the decision is a
e.g. by a Minister,
have been made
by judicial decision
Board, an Executive
an
authority other than a court,
or an
administrative tribunal. Authority, Administrative Oficer
(a) Quasi-judicial functions
The word
"quasi" means "not
exactly". Generally,
29. Report of the Committee on
Ministers' Powers (19321CMD
an
authority is
 JUDICIAL FUNCTIONS 49

described as "quasi-judicial" when it has some of the attributes of judi

cial functions, but not all. In the
words of the Committee on Ministers
Powers, "the word 'quasi', when prefixed to a
that the thing, which is described by the
legal term, generally means
word, has some of the
tributes denoted and connoted by the legal term, but that it haslegal at
not all
of them"50, e.g. if a transaction is described as a
quasi-contract, it
means
that the transaction in question has some but not all the attributes of a
contract.

According to the Committee, a quasi-judicial decision equally presup

poses an existing dispute between two or more parties and involves (T)
and (2) above but does not necessarily involve (3) and never involves (4).
The place of (4) is, in fact, taken by administrative action, the character
of which is determined by the Minister's choice.
For instance, suppose a statute empowers a Minister to take action
if certain facts are proved, and in that event gives him an absolute dis-
cretion whether or not to take action. In such a case, he must consider
the representations of the parties and ascertain the facts-to that extent
the decision contains a judicial element. But, the facts once ascertained,
his decision does not depend on any legal or statutory direction, for ex

bypothesi he is left free within the statutory boundaries to take such

administrative action as he may think fit, that is to say, that the matter is
not finally disposed of by the process of (4).
It does not
This has, however, been subject to criticism by jurists.
test
on a wrong hypothesis. The
ive a complete and true picture. It is based
ommittee characterised the judicial function as being devoid of any
the law to the proven
discretionary power but obliged to merely applyalso exercise discretion.
courts of law
facts. In reality, it is not so. The
administrative actions than in judicial func-
It may be more pervasive in
A quasi-judicial function stands
tions but the difference is of degree only. function. A
function and an administrative
mid-way between a judicial of
decision in terms
the administrative
quasi-judicial decision is nearer

and n e a r e r the judicial

of
decision in terms
element
its discretionary (emphasis supplied)
its end-product.31
procedure and objectivity of decisions, two character-
that in all quasi-judicial
It is also not true their by the parties, and
of case
istics are common, viz. I) presentation evidence adduced by
questions of fact by m e a n s of
c h a r a c t e r i s t i c is absent and
on
2) the decision in many cases, the hrst
the parties. Firsthy, not between two
or m o r e contesting
decide a m a t t e r
the authority may an authority effecting
and another party, e.g.
itself
but between itself is o n e of the
parties of land. Here the authority
compulsory acquisition not represent
its case to any
m a t t e r . It does
the
and yet it decides
parties SC 222: 195o SCR 621;
Kbushaldas S. Advani, AIR 1950
of Bombay
v.
AIR 1999 SC 1786.
(1999) 4 SCC 43:
Province
30.
n Raia Mahendra Pal, istratiue Lauw (1973) I4I.
 ACTIU
ADMINISTRATIVE

C L A S S I F I C A T I O N
OF
50
court or authority. Secondly, there may be cases in w h i c h n oneevid.
questions
vidence iis
has to determine thea
the authority
of fact after hearing
to be
taken the
andparties,
yet e.g. rate-making or price-fixing,
-fixing. Th:
Thinstra-
required
regular court,
admin:
an
unlike a
of facts,
after the
ascertainment so ascerta
to the facts so ascertaine
not bound
to apply the law
tive authority
is
arrived at according to
considerations of puk
lerations of pub
be
and the decision can
factors are unknown to an
administrative discretion, these Or-
policy or
law.
dinary court of
quasi-judicial functions: Distinction
Judicial and
(b)
A quasi-judicial function differs from a purely judicial function in the
he
following respects:32
I. A quasi-judicial authority has some of the attributes of a court, but
not all of them; nevertheless there is an obligation to act judicially
2. A lis inter partes is an essential characteristic of a judicial func.
tion, but this may not be true of a quasi-judicial function.
A court is bound by the rules of evidence and procedure while a
quasi-judicial authority is not.
4. While a court is bound by precedents, a quasi-judicial authority
is not.
5. A court cannot be a judge in its own cause (except in contempt
cases), while an administrative authority vested with quasi-judicial
powers may be a party to the controversy but can still decide it.
The distinction between judicial and
on the fact that in
quasi-judicial functions rests mainly
deciding cases, courts apply pre-existing law whereas
administrative authorities exercise discretion. This
cious. The most that can be said is that is, however, falla-
the discretions of the courts
differ in nature and extent from the discretions may
Nevertheless, the asserted discretion is reduced to of the administrator.
one of degree only.
(emphasis supplied)
6 ADMINISTRATIVE FUNCTIONS
In Ram
Jawaya Kapur State
Court, Mukherjea CJ observed: of Punjab34, speaking for the Supreme
v.

It may not be
function means
possible to frame an exhaustive
residue of and implies. Ordinarily the definition of what executive
executive
governmental functions that remain power
functions are taken away.35 after legislativeconnotes
and judicai
32. Basu, Administrative Law (emphasis supplied)
33. & (1996) 214-216.
Benjafield Whitmore, Principles
34. AIR 1955 SC of
549:
35. Tbid, AIR 555. See (1955) 2 SCR 225. Australian Administrative Law
alsn A (1966) 105.
 ADMINISTRATIVE FUNCTIONS 51
Generally, the following characteristics are inherent in administrative
functions:

I. An administrative order is generally based governmental

on
or expediency. policy
2 In administrative
decisions, there is no legal obligation to adopt
judicial approach to the questions to be decided, and the decisionsa
are usually
subjective rather than objective.
3 An administrative
authority is not bound the rules of evidence
and procedure unless the relevant statute by
an obligation. specifically imposes such
4. An administrative authority can take a
decision in exercise of a
statutory power or even in the absence of a statutory provision,
provided such decision or act does not contravene provisions
of law.
5 Administrative functions may be delegated and sub-delegated un-
less there is a specific bar or prohibition in the
6. While taking
statute
a decision, an administrative authority may not only
consider the evidence adduced by the parties to the dispute, but
may also use its discretion.
7. An administrative authority is not always bound by the principles
of natural justice unless the statute casts such duty on the author-
ity, either expressly or by necessary implication or it is required to
act judicially or fairly.
8. An administrative order may be held to be invalid on the ground
of unreasonableness.
An administrative action will not become a quasi-judicial action
merely because it has to be performed after forming an opinion as
to the existence of some objective fact.
10. The prerogative writs of certiorari and prohibition are not always
available against administrative actions.

(a) Administrative and quasi-judicial functions: Distinction

(i) General
Acts of an administrative authority may be purely administrative or may
be legislative or judicial in nature. Decisions which are purely adminis-
trative stand on a wholly different footing from judicial as well as quasi-
judicial decisions and they must be distinguished. This is a very dificult
task. "Where does the administrative end and the judicial begin? The
 ACTIONS
2 CLASSIFICATION OF ADMINISTRATIVE

and the courts are still in the proces.

the process
problem here is one of demarcation
of working it out."
Tyre Manufacturers Assn, v. Designated
Very recently, in Automotive
observed that for determining whether
Authority37, the Supreme Court
administrative power or a quasi-judiCial power, regard mu
power is an

be had to
I. the nature of the power conferred,
2. the person persons on whom
or it is conferred,

3. the framework of the law conferring such power,

ensuing from the exercise of such power, and
4. the consequences
in which such power is expected to be exercised.
5. the manner

(ii) Object
With the increase of power of administrative authorities, it may be neces.
sary to provide guidelines for the just exercise thereof. To prevent abuse
of power and to see that it does not become a "new despotism", courts
have evolved certain principles to be observed by adjudicating authorities.

(iti) Lis
To appreciate the distinction between administrative and quasi-judi-
cial functions, we have to understand two expressions: 1) "lis", and 2)
"quasi-lis".
In Province of Bombay v. Khushaldas S. Advani", Das J observed:
f a statute empowers an authority...to decide disputes arising out of
a claim made by one party under the statute, which claim is opposed by
another party and to determine the respective rights of the contesting par
ties, who are opposed to each other, there is a lis....
One of the major grounds on which a function can be called
quasi-judi-
cial as distinguished from pure administrative is when there is a lis inter
partes and an administrative authority is required to decide the dispute
between the parties and to adjudicate upon the lis. Prima facie, in sucn
cases the
authority will be regarded as acting in a
quasi-judicial manner.
Certain administrativeauthorities have been held to be quasi-judicial
authorities and their decisions were
wherein such lis was
regarded as quasi-judicial decisionss
rent" between
present, e.g. a Rent Tribunal determining "ra
a landlord and tenant,40 an Election Tribunal deciaing
36. MacDermott, cited by Basu, Commentary on the Constitution of India, Vol. B
(1975) 151; see also, Labour Relations Board v.
134: AIR I1949 PC 129, 133: 53 CWN John East Iron Works Ltd., I949 *
389 (PC).
AH election
deciding dispute
an
bet ADMINISTRAT IVE
permit industrial dispute2 candidates
or
val NCTIONS 53
to one ot
applicants. Licensing TribunalIndustrial
a an
the
Tribunal
(iv) Quasi-lis
granting licence a

But it is not in all

lis inter cases that
partes. the
decides a
There may
lis not administrative authority has
be cases
in
itself and another between which an
decide to
administrative
two or
more
take any decision party. But there also, ifcontesting parties but authority
a

sion would be which will the

authority between
quasi-judicial prejudicially
is
a
to act judicially.
decision affect any empowered
person, such
to

Thus, where an provided the authority is deci-

ing authority makes an order required
a
an
employee,* retusing to grant,
licence,46 cancelling granting legal aid,44 dismiss-
revoking,
means," rusticating examination result of suspending
an
student for
cancelling
a
or

character. pupil,3 etc., such decisions

a
using unfair
In all these
cases there are
quasi-judicial in are

no
authority, "and the other
party to
two
the
parties before the administrative
itself. Yet, as the
decision given by suchdispute, if any, is the authority"
rights of a person, there is a
situation authority adversely affects the
administrative authority has to decide resembling
the
a lis. In such
cases, the
into account the
of the party before objectively
matter after
exceeds or abusesobjections it, and if such taking
certiorari can be issued authority
its powers, a writ of
Therefore, Lord Greene, MR" rightly calls it a quasi-lis. against it.

4I. Sangram Singh v. Election Tribunal, AIR 1955 SC 425:

42. Bharat Bank Ltd. (1955) 2 SCR I.

43. Raman
v.
Enployees, AIR 1950 SC 188: 1950 SCR 459.
Raman Ltd. v. State of Madras, AIR 1959 SC
227; Mahabir Prasad Santosh Kumar v. State of U.P., (1970) 694: 1959 Supp (2) SCR
I SCC
SC 1302. 764: AIR 1970
44. R. v. Manchester Legal Aid Committee, ex p R.A. Brand Co.
QB 413: Ltd., (1952) 2
(1952) 1 AlI ER 480.
45. Ridge v. Baldwin, 1964 AC 40: (1963) 2 WLR 935: (1963) 2 All ER 66 (HL).
46. Fedco (P) Ltd.v. S.N.
Bilgrami, AIR 1960 SC 415: (1960) 2 SCR 408.
47. Board of High School o Intermediate Education v. Ghanshyam Das Gupta,
AIR 1962 SC II1o: 1962 Supp (3) SCR 36; Board of High School and Intermediate
Education, U.P. v. Chitra Srivastava, (1970) 1 SCC 121: AIR 1970 SC 1039
48. Suresh Koshy George v. University of Kerala, AIR 1969 SC 198: (1969) I SCR
Hira Nath Mishra v. Rajendra Medical College, (1973) 1 SCC 8o: AIR 1973
S 260 Jawaharlal Nehru University v. B.S. Narwal, (r980) 4 SCC 480: AIR 198o
SC 1666.
49. Jobnson B. & Co. v. Minister of Health, (1947) 2 All ER 395: 177 LT 455; see
also, Indian National Congress (1) v. Institute of Social Welfare, (2002) 5 SCC 685: AIR
 ACTIONS
4 CLASSIFICATION OF ADMINISTRATIVE

(v) Duty to act judicially

The real test which distinguishes a quasi-judicial act from an adminit..
ninistra
tive act is the duty to act judicially and, therefore, in consideringwhes
dering whethe
a particular statutory authority is a quasi-judicial body or merely an
an ad.
ministrative body, what has to be ascertained is whether the statute
authority has the duty to act judicially. ory
The question which may arise for our consideration is as to when th:.
duty to act judicially arises. As observed by Parker J, "the duty to ac
judicially may arise in widely different circumstances which it would act ha
impossible, and indeed, inadvisable, to attempt to deine exhaustively"
Whenever there is an express provision in the statute itself
requires the administrative authority to act judicially, the action ofwhich
authority would necessarily be a quasi-judicial function. But this such
sition does not say much, for it is to some
extent a tautology to
propo-
the function is say that
quasi-judicial (or judicial) if it is to be done
judicially 51
Therefore, the real question is: Is it that
quasi-judicial, the relevant statute mustnecessary for an action to be
expressly require the administra-
tive authority to act
Before
judicially?
we discuss this question, it will be
lowing observations of Atkin LJ in R. v. necessary to quote the fol-
London Electricity Joint Committee
Electricity
Co. Ltd.52, as Commissioners, p
ex
ment of law on
this aspect is based
on
varying
subsequent develop-
subsequent cases thereon: interpretations placed by
Whenever any body of persons
tions having legal
in excess of
their
of subjects and havingauthority
affecting the rights to determine
the duty to act ques
tion of the legal authority, they are judicially act
King's Bench Division subject to the controlling
exercised in these writs.33 jurisdic
From the
observations above, it is clear
hibition) may emphasis supplied)
be issued if that a writ of
I. The
the
following conditions certiorari (and pro
body must have are
fulAilled:
2. It
must have legal authority.
power to
subject. determine questions
3. It must
4. It must
have duty to affecting rights of
have acted in act judicially.
excess of
authority.
 ADMINISTRATIVE FUNCTIONS 55
In 1928, Lord Hewart CJ" read the
mean that the duty to act aforesaid observations of Atkin
to
LJ
ment existing independently judicially
of the
should be an additional
require-
affecting the rights of the "authority to determine
questions
gloss placed by Lord Hewart subjects"-something
CJ on the dictum
superadded to it. The
it stultihed the of Lord Atkin LJ was
improper as
growth of the principles of natural
had led to many anomalies and justice. It
came before inequitable situations. In every case that
it the court had to
make a search for duty to act
in interpreting the
provisions of the statute which resulted in judicially
and uncertainty in law. But as Wade" confusion
rightly says, the correct
in
it was simply a corollary, the
automatic consequence of the analysis
determine questions affecting the rights of power "to
such power, there must be the
subjects". Where there is any
duty to
judicially.
act
The law was finally settled in the historic
case of
wherein Lord Reid pointed out how Hewart Ridge v. Baldwin's,
CJ misunderstood the ob-
servations of Atkin LJ and observed:
If Lord Hewart meant that it is never
to determine what the
enough that a body simply has a duty
rights of an individual should be, but that there must
always be something more to impose on it a duty to act judicially before it
can be found to observe the
principles of natural justice, then that appears
to me
impossible to reconcile with the earlier authorities.37
Generally, statutes do not expressly provide for the duty to act judicially
and, therefore, even in the absence of express provisions in the statutes
the duty to act judicially should be inferred from
the cumulative effect of the nature of the rights affected, the manner of the
disposal provided, the objective criterion to be adopted, the phraseology
used, the nature of the power conferred, of the duty imposed on the author-
ity and the other indicia afforded by the statute.53

vi) Leading cases

Let us consider some leading cases to illustrate this proposition.
In Nakkuda Ali v. M.F. de S. Jayaratne", the Controller of Textiles
cancelled a licence of a textile dealer on the ground that the holder was
unfit to continue as a dealer. Before passing the impugned order, he was
not heard by the Controller. In an action against the Controller, the Privy

S4. R. v. Legislative Committee of the Church Assembly, ex p Haynes-Smith, (1928)

I KE
411, 415: 1928 All ER Rep 696.
55. Wade && Forsyth, Administrative Lawv (2009) 5I4-5 17.
56. 1964 AC 40: (1963) 2 WLR 935: (1963) 2 All ER 66 (HL).
57. Ridge v. Baldwin, 1964 AC 40, 75: (1963) 2 WLR 935 (HL).
S8. Dwarka Nath v. ITO, AIR 1966 SC 81, 86: (1965) 3 SCR 536 (per Subba Rao J).
s9 195I AC 6 TLR TA (PC. (Collector of Darieelino v C Machertic .
 ADMINISTRATIVE
ACTIONS
S6 CLASSIFICATION OF

of
the Controller cancellation
licenco
ence
of a
Council held that the action by and the dealer had nno
action of withdrawal of privilege
was an executive under a duty to ac
and the Controller was not act
rightto hold the licence
judicially. ex p Parkerso

Similarly, in R.Metropolitan Police Commr.,

v.
a
ot alleged misconduc
cab-driver's licence was
revoked on the ground
to him to rebut
the allegations
without giving reasonable opportunity
the order on the ground that the
made against him. The court upheld
which could be revoked at any time hy
licence was merely a permission
was not required
to act judicially.
the grantor, and in doing so he
to lose his licence is to suf.
But as Schwartz6 says, for an individual
to the spirit of
fer an "economic death sentence" and is wholly contrary
Anglo-American and this is an unwarranted restric-
administrative law
tion upon the application of the rules of natural justice. De Smith62 also
states:

Demolition of a property-owner's uninhabitable house might be for him

a supportable misfortune; deprivation of a licence to trade might mean a
calamitous loss of livelihood; but the judicial flavour detected in the former
function was held to be absent from the latter.
Province of Bombay v. Khushaldas S. Advani63 was the first lead-
ing Indian decision on the point. Under Section 3 of the Bombay Land
Requisition Ordinance, 1947, the Provincial Government was empow-
eredto requisition any land for
any public purpose "if in the opinion
of the Government" it was necessary or
tended that the government while
expedient to do so. It was con-
deciding whether requisition was for
a
public purpose, had to act judicially. The High Court of Bombay up-
held the said contention.
Reversing the decision of the High Court, the
Supreme Court held by a majority that the
requisitioning property was not quasi-judicial, governmental
for the
function of
on the
subjective decision was based
to act judicially. satisfaction
of the
government and it was not
required
In
called upon
Radheshyam Khare
State of M.P.64, the
v.
consider the C.P. and
which contained two
to
Berar
Supreme Court was

ment provisions. Section 53-AMunicipalities Act,

I922
to
supersede
months for
a
municipality for a temporary period not empowered the
govern
securing "a general exceeding
municipality", while Section improvement in the administration of 10
the
municipality for an 57 empowered the th
indefinite period for government to suspend
60.
an
incompetentor ultra virc
(1953)1 WLR 1150:
6.
62.
Administrative Law, (1953) 2 All ER
717 (DC).
Judicial Review
AIR 19sQ SCa0 of
i15.
63. Administrativg Actin
action, Section 57 ADMINISTRATIVE FUNCTIONS 57
iven to the expressly provided for a
oot Contain such municipality betore reasonable opportunity to be
not
provision. The
making order, while Section
an
nower under Section majority held that unlike 53-A did
53-A was administrative Section 57, the
Subba Rao J (as he in nature.
senting judgment, His then was),held
however, took liberal view. In a
not be
Lordship that the duty
dis- a
expressly conterred by a statute. It to act
judicially may
ture of rights attected, the manner of the may be inferred from the na-
criterion to be
adopted, the disposal provided, the objective
conferred or the duty on the
phraseology used, the nature of the power
statute authority or other indicia afforded by the
After the historic pronouncement
of the House of Lords in
Baldwins6, Ridge v.
Supreme Court followed the law laid down therein.
our
State of Orissa v. Binapani Dei", In
then was) observed: speaking for the court, Shah J (as he

Duty to act
judicially would, therefore, arise from the
nature of the
function intended to be performed: it need not be shownvery
to be superadded.
If there is power to decide and determine to the prejudice of a person, duty
to act judicially is implicit in the exercise of such power."
(emphasis supplied)
Again, in Maneka Gandhi v. Union of Indias", the court reiterated the
said view and held that the duty to act judicially need not be superadded
and it may be spelt out from the nature of the power conferred, the man-
ner of exercising it, and its impact onthe rights of the person affected.
Recently, in Sahara India (Firm) v. CIT0, the Supreme Court held that
with the growth of administrative law, the old distinction between judi-
act and administrative act has withered away. Hence, evena pure ad-
Clal
ministrative action entailing civil consequences must be consistent with
the rules of natural justice.
(vi) Test
functions from
No "cut and dried" formula to distinguish quasi-judicial
down. The dividing line between the
administrative functions can be laid
obliterated. For determining
two powers is quite thin and being gradually

65. Ibid, AIR 133-134

AC 40: (1963) 2 WLR 935:
(1963) 2 All ER 66 (HL).
66. 1964
2 SCR 625.
67. AIR 1967 SC 1 269: (1967)
68. Ibid, AIR 1271.
AIR 1978 SC 597, 672.
69. (1978) I SCC 248, 287: 2 SCC 262
see also,
A.K. Kraipak v. Union of India, (1969)
SCC 151; SCC 379: AIR 1981 SC 136;
70. (2008) 14 Kapoor v. Jagmohan, (r98o) 4
AlR 197o SC 150; S.L. SCC 405: AlR 1978 SC 851;
Election Commr., (1978)
I
Mohinder Singh Gill v. Chief (1991) 2 SCC
Weaker SectionWelfare Assn. V. State of Karnataka,
Scheduled Caste o
604: AIR 1991 SC 1117.
 8 CLASSIFICATION OF ADMINISTRATIVEA

whether a
power is an administrative power
or a quasi-judicial
al power,
one has to look to the nature
of the power conferred, the person
the perso
the framework of the law confa,Or
persons on whom it is conferred,
ensuing from the
exercise of thar
at ferri
po ng
that power, the consequences
is expected to be exercised. powe
and the manner in which that power
The requirement of acting judicially in essence is nothing but aa
re
and not arbitrarily or capriciously. TL
quirement to act justly and fairly
procedures which are considered inherent in the exercise of quasj-in
cial power are merely those which facilitate it not ensure a just and f
decision. In recent years, the concept of quasi-judicial power has he
een
undergoing a radical change. What was considered as an administra
stra
tive power some years back is now being considered as a quasi-judicial
power.
Whether a particular function is administrative or quasi-judicial must
be determined in each case on an examination of the relevant statute and
the rules framed thereunder and the decision depends upon the facts
and
Circumstances of the case.72
At one time prerogative remedies of certiorari and
confined to "judicial" functions pure and
prohibition were
of these
simple, of public bodies. Both
options are now available in relation to functions which may be
regarded as "administrative" or even "legislative". As it is said,
it is not
the label that determines the exercise of
quality and attributes of the decision. Onjurisdiction
of the court but the
the whole the test of
bility has replaced that of classification of function justicia.
the
appropriateness of a decision for
as a determinant of
judicial review.3
(emphasis supplied)
(viii) Duty to act fairly
Since "fairness in
action" is required from government and all its
cies, the recent irend is
fairly", "Duty to act fairly" from "duty to act agen
is judicially" to "duty to
act
even in those cases where indeed a broader notion and can be
fairly"), which has there is no lis. It is
this appliea
action", legitimate given rise to certain new
concept ("duty to act
doctrines, e.g. "fair play
expectations, proportionality etc.74
71. A.K.
154 TulsipurKraipak v. Union
of
AIR 1980 SC Sugar Co. Ltd. v. India, (1969) 2 SCC 262,
882. Notified Area 268-269: AIR 1970 S 0,
72. Ibid. See also, Committee, Tulsipur, (1980)
AIR 1958 SC 398, 408:
Nagendra Nath Bora 295 2
S
73. De Smith, 1958 SCR v.
Commr. of Hills
Judicial 1240. Division and
ana Appeals,
74. See, for detailed Review of APP
Administrative Actian
discussion, Lectura (Taa
 A

Illustrations
functions:
i)
Quasi-judicial functions:75
functions a r e held to be quasi-judicial
The following students.
against
Disciplinary proceedings misconduct.
I.
of a n employee o n
the ground of
2.
Dismissal
Confiscation of goods. renew
licence or
3.
3 revocation o r refusal to
Cancellation, suspension,
4.
authority.
permit by licensing
Cancellation o f e x a m i n a t i o n .

5 Determination of citizenship.
6.
of statutory disputes.
Determination
of Members of Parliament/
Determination as to the disqualification
8.
Legislative Assembly.
Forfeitureof pension or gratuity.
9. statute.
a s s e s s m e n t under a taxing
IO. An order of

Illustrations
Administrative functions:
(ax)
administrative functions:76
functions are held to be
The following
detention.
I. An order of preventive
of property.
2. An order of acquisition o r requisition
commission of inquiry.
3. An order setting up a Industrial
make reference under the
to
4. An ordermaking o r refusing
Disputes Act, I947 servant.
sanction to prosecute a public
5. An order granting
refusing to grant permission of
sale by agri-
6. An order granting or

culturist in favour of non-agriculturist.

7. An order of externment.
8. An order entering name in police register.
Power issue licence or permit.
9 to
Io. Withdrawal from prosecution.

ADMINISTRATIVE INSTRUCTIONS
7
Subject to the provisions of the Constitution, the Union and the States can
exercise executive powers by issuing administrative instructions. Such
administrative instructions are in theform of rules,
regulations,notifica-
tions, etc. Broadly speaking, they have no statutory force and in all cases
Such administrative instructions may not confer a justiciable right which

75. See, for detailed discussion and case-law, Authors' Administrative Law
Chap. 3: see also VC Ramachandran. Law of Writs lacoe (2012)
 ACTIONS
6U CLASSIFICATION OF ADMINISTRATIVE

can be enforced in a court of law against the administration.77 At

Same time, it cannot be said that such administrative instructions
the
never
confer ajusticiable right in favour of aggrieved
an party. It would be toe
too
wide a proposition of law. There are certain administrative orders whick
confer rights and impose duties. If non-observance of non-statutory r
results in discrimination or arbitrariness, an aggrieved party can
get re.
liet trom a court of law.78
competent
 CHAPTER III

CLASSIFICATION OF FUNCTIONS

SYNOPSIS
1. Threefold Classification.... 41 2. Identification of a Legislative Order. 42

1. THREEFOLD CLASSIFICATION

at times to classify action

taken by the
An administrative lawyer has
viz.: legislative, administrative and quasi-
Administration into three categories,
used now). Although many thoughtful
judicial (or adjudicative, the term commonly classification of functions discharged by
the
scholars have decried such a conceptual make such a
it is usually too difficult or artif+cial to
Administration, and although made some attempt to
and although in recent years the courts have between
classification,
and reliance on, such a classification (especially
reduce the need for, state of
quasi-judicial), the fact remains that in the present
administrative and as much of
to avoid such a labelling exercise,
Administrative Law, it is not possible classification. For
execut+ve government is still based on such a
the law relating to on the one
on hand, and
one hand, and
between legislative function,
example, distinguishing hand,
other hand, assumes
assumes practical
practical
on the
function,
Publication: Usually, a legislative
administrative/quasi-judicial
alia for the following reasons:(i) administrative
significance inter in the official gazette, but not an
order is required to be published is of a general nature
and applies to many
that the former
to a specified
order, the r e a s o n being be widely known, but the latter applies affected
persons and hence
it should
it is enough if it is served on the
therefore, under the
individual o r individuals and, reference to the position
illustrated by
This can be Central Government may by
person or persons. 1955. Under S. 3, the their prices,
Essential Commodities Act, of essential commodities,
an
regulate several things--movement
make either a legislative or
order Under S. 3, the Administration
can an order
which lays down that
distribution, etc. from S. 3(5),
administrative order.
This becomes clear has to be notified
in the
a 'class of persons be served
nature'; or one affectingto a 'specified' individual need only
ofa 'general an order
directed
Many examples
can
official gazette, but in
the gazette.
without being published A d m i n i s t r a t i o n can issue either a
concerned person which the
on the provisions under
be found of statutory order.
administrative
egislative or an
to be followed by
the Adminis-
have
Different procedures may arise procedural
differences
(ii) Procedure: orders of different kinds. There shall see later, for making a
tration in making the order in question. As
e
of of natural justice,
depending on the must follow principles
nature

order, the
quasi-judicial
Administration
the action in question
which
is being taken is
statute under
even when the specific

1X.
1. See, infra, Chapter
Chanter VI.
 42 CHAP III-CLASSIFICATION OF FUNCTIONS

silent on the point. But, in case of exercise of legislative power, the Administration
need not follow natural justice:5 the Administration must follow only such procedura
ion
norms as may be stipulated in the relevant statute, there being no obligatory implied
procedural requirements to be followed in such a case.6
(iii) Judicial Review: As will be seen later, the scope of judicial review is narrower
in respect of legislative function than in case of administrative or quasi-judicial
function. For example, while mala fides may be pleaded as a ground for challenging
an administrative action, it is doubtful that the same ground may be invoked to
challenge a legislative order.7
(iv) Sub-delegation: Differences between legislative and non-legislative functions
also may become meaningful when questions of sub-delegation of powers arise.
All the above-mentioned points are considered in greater detail at proper places in
the book.
Before going further with the matter of classification of functions, it needs to be
pointed out that an extremely complicated problem of to-day's Administrative Law is
that of terminological inexactitude. For example, the term 'administrative' is used in
is
twO senses. One, a broad sense, e.g., every thing pertaining to the Administration
acministrative. Thus, the expression Administrative Law denotes the law pertaining
exercised by the
to the A dministration and deals with the whole gamut of powers all kinds of
Administration. In the broad sense, the word administrative denotes
and the
bodies participating in the administrative process (other than the legislature
courts). and all kinds of functions discharged by
them, whether legislative
administrative, quasi-judicial or of any other kind. Two, the
word 'administrative 1s
used in a narrow sense, limited category of functions discharged
i.e., it denotes only a
in juxtaposition to legislative and quaSi-Judicial
by the Administration--functions 'administrative' is used that one
functions. It is from the context in which the word
been said on this point
can the sense in which the word is used. More has
identify
later in the book.

2. IDENTIFICATION O A LEGISLATIVE ORDER

: l sontusion. The terms