CONTENTS

ADMINISTRATIVE ACTIONS 3
Definition 3
Attributes of Administrative Law – 3
Interface between Admin law and admin actions – 4
Whether a single body/person can perform all the administrative actions? 4
What are admin actions? 4
Necessity of classification of AA 4
Classification of Administrative Actions – 6
Certain controls – 7
Classification of DL into various categories (on the basis of nature of action): 9
Attributes of Quasi-legislative actions: 10

QUASI-JUDICIAL ACTIONS 12
Difference between Judicial and Quasi-judicial actions 12
Attributes of QJA: 12
First Test 13
Difference between First Test and Second Test 13
Criticism of Second Test 14
Quasi-Judicial Actions: 14
Properties of QJA 16

PURE ADMINISTRATIVE ACTIONS 17

PAA without civil consequences: 18
PAA with Civil Consequences: 18

DIFFERENCES BETWEEN VARIOUS ADMINISTRATIVE ACTIONS 21

Grounds for difference b/w QJA and PAA: 21
Delegated Legislation and PAA – 21
Examples for classification 22

CASES (22.10.2020 - 23.10.2020) 23

Ridge v Baldwin - 23
Mangalam Organics v UoI - 23
State of AP v SMK Parashurama Gurukul 1973 - 23
Kumari Neelima Mishra v Dr Harinder Kaur Paintal 1990: 24

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 Dev Dutt v UoI 2008: 24
Tejshree Ghag v Prakash Parashuram Patil 2007 - 25
Mangalam Organics v UoI - 25

ADMINISTRATIVE DISCRETION 26
Availability of discretionary power in case of QLA/DL 26
Availability of discretionary power in case of QJA 27
Green Light Theory and Administrative Discretion 30
Necessity of discretionary power: 30
Factors to be taken into consideration before exercise of discretionary power 31

Controls over admin discretion: 33

Parliamentary control 33
Failure to exercise discretion: 34
Use of discretion on dictation 34

Practical Difficulties 36

Misuse or Abuse of Discretion: 36

Improper Use 36
Non-compliance of process 37
Irreverent Consideration 37
Ultra Vires 37
Unreasonable 37
Mala fide 38

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 ADMINISTRATIVE ACTIONS

Definition

Administrative law – it is an interface between the state and the public for the protection of
people from the arbitrary exercise of power. It governs the administrative actions performed by
the administrative authorities (three organs of the state)

Three organs of the state – functions performed by these organs for the governance (judiciary –
adjudicates, legislature – legislate new rights and liabilities and amend them and executive -
enforces existing rights and liabilities)

Attributes of Administrative Law –

- It is the branch of public law

- It is dynamic in nature – it was earlier limited to only three administrative actions but
now it has evolved because of the actions of the judiciary – now it is further classified
into two parts - pure administrative actions with civil consequences and administrative
actions without civil consequences

- It is a mechanism of control – JR

- It deals with only the actions of the state – it deals with the interface between admin
actions and admin authorities

- It is governed by some fundamental principles – PNJ, Discretionary power, SOP,

ROL, JR, fair hearing – there is no specific act enacted in India that defines admin law or
its fundamentals - it is not codified but has evolved and developed with the judicial
interpretations [In US – Administrative Procedures Act that deals with PNJ, in UK –
Statutory Instruments Act regulating delegated legislation]

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Interface between Admin law and admin actions –

- The starting point/application point of admin law – it deals with the jurisdiction of
the admin law which is limited to admin actions performed by admin authorities – admin
law covers only admin actions

Whether a single body/person can perform all the administrative actions?

– SEBI, Companies Act 2013, RBI etc. – these statutory laws are such where a single body
performs all admin actions – however SOP is recognized as basic structure but that extends to
only primary functions performed by three organs of the state – thus all these statutory laws are
not in violation of principle of SOP. Hence, a single body/person can perform all the admin
actions.

Doctrine of SOP is not applicable to admin actions but there are restrictions on concentration of
power.

What are admin actions?

- Actions performed by admin authorities

- Admin actions performed by three organs of the state (jurisdiction) – it doesn’t

include judicial and legislative actions but quasi-judicial and quasi legislative.

Necessity of classification of AA

1. To know the nature and scope of actions

Delegated legislation – no adjudications, quasi-judicial actions – no regulation making – clear

demarcation of admin actions

Exams regulations, guidelines, CIC, rule and regulations – it amounts to delegated legislation

2. For the purpose of determining the procedure to be followed

Natural justice – fair justice

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Quasi – legislative – no notice is required

Mandatory in case of quasi-judicial actions

Delegated legislation – consultation, approval, notification in official gazettes

Pure AA with Civil consequences – developed in the case Ridge v. Baldwin 1964 AC 40 – PNJ
in case of prejudices that is caused to individual – this case was followed by SC in India - State
of Orissa v. Bina pie

KT Plantation Pvt. Ltd. v. State of Karnataka 2011 9 SCC 1 – delegated legislation which is
legislation in character cannot be questioned on grounds of PNJ especially in absence of any
statutory requirement

Land acquisition laws – it is needed that local authorities like gram panchayats are consulted
before making laws. However, in case of Delegated legislation no such requirement is there – no
relevant provision prescribing right to hearing for the purpose of legislation (and not for
adjudication)

3. Remedies – in house or external remedies

Nature of remedies will dictate the procedural requirements.

There are grounds on which the actions may be challenged – PNJ in delegated legislation and
PAA without Civil Consequences.

Quasi-judicial actions – challenged under Article 226 before the court - Writs – that are issued in
the cases depend on the nature of actions

Appropriate writ that can be issued in QJA - Writ of certiorari and prohibition – Lack of
jurisdiction, excess of jurisdiction and failure to exercise jurisdiction – the grounds on which
these writs can be issued. It is at the discretion of the court to pass these writs.

Certiorari Prohibition

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 Appellate courts reviewing the decision of It is similar to writ of Certiorari however it
the lower courts that is against the order is available at the earlier stage i.e. order
already passed by the inferior court passed before the final order.

Can writ of Mandamus be issued by the courts in case of delegated legislation? Writ of
Mandamus deals with directing the executive to perform some duty or not – HC can issue
Mandamus writ in case of mandatory public duty. Otherwise, the HC cannot issue Mandamus.

Writ of Quo Warrant – when a public authority is not competent to occupy the authoritative post
then this writ can be passed

Can Policy matters be subject to be JR – it forms a part of delegate legislation - Wednesbury test
or irrationality test BALCO v. Employees case – as a general rule Policy matters are beyond the
scope of JR – however exception if there is a contravention of constitution or violation of
enabling legislation or any other provision on the grounds of irrationality and illegality (but
cannot be subject to JR on grounds of procedural impropriety or PNJ)

Classification of Administrative Actions –

Admin law regulates relations between the state and its people

State of NCT of Delhi v. Sanjeev 2005 AIR 2080 para 15 – defined admin actions -
Administrative action is stated to be referable to broad area of Governmental activities in which
the repositories of power may exercise every class of statutory function of executive, quasi-
legislative and quasi-judicial nature.

Classification:

1. Quasi legislative (delegated legislation, subordinate, secondary legislation),

2. Quasi-judicial (adjudicating actions),

3. Pure administrative actions (with and without civil consequences)

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Delegated Legislation: 1) primary law making activity – enacted by legislature – schedule 7 –
power to make primary legislation also includes power to delegate but this power of making
prim legislation cannot be delegated

2) secondary legislation can withdraw such power – always limited and controlled – the
legislation is required to create control mechanism and where it does not exist it will be a case of
abdication of power

Ø Article 145 – power emerged from constitution – it is taken as primary legislation

activities in reality because no one can oppose it – E.g. - RTI act which has been
superseded by the SC Rules – according to sir, it (SC rules HC rules etc.) is a part of
delegated legislation

Certain controls –

- Judicial control

- Parliamentary control (two committees as Lok Sabha and Rajya Sabha maintains
control over DL)

Two types of delegated legislation

1. Discretionary Delegated legislation

1. In this, the administrative authority may frame regulations or come out of scheme.

2. In such cases, writ of mandamus cannot be directed.

2. Mandatory Delegated Legislation

1. In this delegated legislation, there is no discretion available and it is a mandate.

2. Eg – Sexual Harassment Act, ICC shall be created – no discretionary power

3. In such cases, writ of mandamus can be directed.

DDA v CIC 2009 Delhi HC – power to frame rules only on specified area

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Sub-delegation is possible only in case of a statutory backing/some provision – but as a general
rule sub-delegation is not possible coz powers are vested only to A authority and cannot be given
to B – where B takes any action it will be illegal

AK Kraipak v UOI AIR 1970 SC 150 – related to application of PNJ esp rules against bias –
admin action with civil consequences

1. RTI Act, 2005

a. Powers are given to the central government to frame rules. But the Central
Government and the CIC framed regulations. This was struck down by the Delhi HC
in 2009 since there was no power to frame regulations.

2. Similarly, Administrative Tribunals Act, Section 35, 36,36A of the Act – they provided
for retrospectivity – enacted from back dates

a. Do you think primary or secondary delegated legislation can be provided for with
retrospective dates?

3. SEBI Act, 1992 has empowered Central Govt to frame rules and SEBI to frame
regulations. Find out the difference between the two.

a. Central power has the power to frame rules. The regulations can be framed only
by the SEBI Act. Rules have been formed by central government to regulate an
institution externally. They are unique. Regulations are to internally control an
institution. Delegated legislations are always controlled and limited and are important
part of Quasi-legislative actions. Unlimited powers cannot be delegated. Guidelines
are not binding; they are only for the purposes of advising. Regulations and rules are
binding.

4. Whether the judiciary can direct the legislature to enact primary or secondary legislative
activity?

a. There is a well-established principle – whether writ of mandamus can be issued to

frame legislative activities?

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 b. The judiciary can recommend, suggest, request the legislature or the executive to
change various schemes but it cannot dictate. Otherwise, it would be a violation of
separation of power principle.

5. Whether sub-delegation of delegated power is allowed?

a. Only if there is an enabling provision (law providing for it), then it can be done.
Otherwise the general rule is that it cannot be done.

b. The Essential Commodities Act provides for such a sub-delegation. If the power
of sub-delegation is given to the administrative body, it can be sub delegated to the
Food Inspector. (example).

St. John, Teacher’s Training Institution v. Regional Director - Para 10 - The power to make
subordinate legislation is derived from the enabling Act and it is fundamental that the delegate
on whom such a power is conferred has to act within the limits of authority conferred by the Act.

Classification of DL into various categories (on the basis of nature of action):

- Supplementary delegated legislation – the mandate of DL is to supplement or

contingent the primary legislation.

- Contingent

- Interpretative

How can the judiciary control, direct and facilitate law making activity of admin authorities? Can
the judiciary compel the executive to make, repeal or amend the laws?

- In case of discretionary legislation there is no scope of direction or compelling to

make the law while in case of Mandatory legislation the judiciary can issue the writ of
mandamus to direct the legislature to make laws.

Managalum Organics v. UOI AIR 2017 SC 2406 – judgment deals with the Distinction
between PAA and DL – it also observed the compelling power of judiciary to direct the
legislature to make a law – para 32 - no court can direct a legislature to enact a particular law.

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Similarly, when an executive authority exercises a legislative power by way of a subordinate
legislation pursuant to the delegated authority of a legislature, such executive authority cannot
be asked to enact a law which it has been empowered to do under the delegated legislative
authority.

Attributes of Quasi-legislative actions:

- Creates rights and liabilities – in state as well as in individuals – this is also the case
of legislations (primary legislative activities performed by legislature) – by the way of
making, amending of the laws by admin authorities.

- There has to be some provision/sanction/power in the enabling act to create rights

and liabilities by the delegated legislation. Right and liabilities are created under some
sanction/provision in the enabling legislation.

- Creation of institutions/statutory body/public institutions/corporations – controlled

and regulated by the state – Sundardas Kanhaiyalal Bhatija v. Collector, Thane –

- Principles of Natural Justice – Procedural requirements – there is no provision of

PNJ in delegated legislation however there are some provisions that provide for rights
such as right to hear by the authorities. (PNJ is to be followed in adjudication but not in
DL) SC has held in various judgments that observance PNJ is not required in DL.

- Other procedural requirements for DL – consultation, prior approval and formation

of committees.

Admin instructions issued by individual admin authority cannot supersede/dilute the rules and
regulations of DL – no such admin directions can be issued to override DL that creates rights and
liabilities however in practical aspects certain admin discretions supersede the

UOI v Ashok Kumar Agarwal – it is a settled proposition of law that an authority cannot issue
orders/office memorandum/ executive instructions in contravention of the statutory Rules.
However, instructions can be issued only to supplement the statutory rules but not to supplant it.
Such instructions should be subservient to the statutory provisions.

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Admin Authorities issuing notification for grating of lease for immovable property (residential
place etc.)

- Would it be covered under delegated legislation – yes it will be covered since it is

creating rights in favor of the lease and liabilities in the state

Withdrawal of premature withdrawal of lease/benefits – it will also be covered under DL but

some instances of such withdrawal can be covered under PAA with Civil consequences (when
parties are required to be heard or consulted) and PAA without civil consequences (when the
lease or benefits are withdrawn after completion of the time period for which they were created)

Creation of departments/centers/schemes – it would be DL since it is creating rights

Price fixation – like MSP, minimum wages, price for agriculture produce etc. – fixation and
revision of such prices – what would happen in case MSP is not given/non-compliance with
MSP – PAA with civil consequences since the rights of the commoner is not executed rather
breached by the state and the state then has to give justification

UOI v. Cynamide India Ltd. – SC held that price fixation is legislative function – delegate
legislation and forms the case of civil consequences since the parties are required to be heard,
consulted.

Fixation of fee – application, admission, renewal, examination etc. – also forms the part of DL

Article 19(1)(c) – right to form of Unions/associations – it is fundamental right – NLU case – the
workers formed a trade union – the admin passed the resolution that no such trade union could be
formed lest you should face sanctions in your jobs – court was approached and that resolution
was withdrawn hence recognizing the fact that one can form unions and associations which
cannot be taken away by any resolution.

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 QUASI-JUDICIAL ACTIONS

Difference between Judicial and Quasi-judicial actions

1. Quasi-judicial authority perform quasi-judicial actions where matters are to be

adjudicated – it not a strictly formal process rather an informal process that is it need not
follow the evidence law/crpc/cpc but it focuses on principles of Natural Justice.

(Section 193, 225 – QJA shall be deemed to be a court for the purpose of these requirements)

QJA cannot be at par with judicial courts [but certain powers relating to contempt of court –
criminal and civil – of CAT/SAT/Armed Forces Court are similar to that of HC and SC and
superior to that of Sessions court/magistrate court etc. – these legal fictions have been created in
order to maintain the smooth functioning of the court but that does not make them at par with
judicial court]

SK Sampath Kumar v. UOI and Madras Bar Association case and L. Chandra Kumar v. UOI
– to understand the power of QJA

2. Courts are bound by the procedural requirements but QJC they are not bound to follow
the procedure strictly

3. Power to enforce final order – QJA doesn’t exercise much of that power but courts have
such coercive power to enforce its orders/decrees.

QJA – KB Atkin L, J in R. v. Electricity Commissioners 1924 – whenever any body of persons

having legal authority to determine questions affecting rights of subjects, and having the duty to
act judicially act in excess of their legal authority they are subject ot the controlling jurisdiction
of the KBD exercised in these writs.

Attributes of QJA:

- Legal authority –

- To determine questions affecting the rights of subjects

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 - Must have the duty to act judicially

Justice S R Das: Province of Bombay v. Kushaldas S. Advani para 160-161

First Test

1. If a statute empowers an authority, not being a court in the ordinary sense

2. To decide disputes arising out of a claim made by any party under the statute which claim
is opposed by another party and

3. To determine the respective rights o the contesting parties who are opposed to each other

4. It is the duty of the authority to act judicially (to follow the specific process and PNJ, act
objectively on the facts of the issue and adjudicate disputes between the parties)

Namit Sharma case – Relating to RTI Act – judicial officers should be appointed as information
commissioners since they have judicial mind

5. The decision of the authority is a QJ act

Second test (situation where there are no two opposing parties but only one contesting party and
the second party is the Authority itself)

1. If a statutory authority has power to do any act which will prejudicially affect the subject

2. Then although there are not two parties apart from the authority nd the contest is between
the authority proposing to do the Act and the subject opposing itt

3. Provided the authority is required by the statute to act judicially

4. The final determination of the authority will yet be a quasi-judicial act

Difference between First Test and Second Test

- First test involves adjudication – there are two parties and there is a dispute between
the parties that requires adjudication

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 - Second test – it doesn’t involve dispute between the parties – It involves the acts of
authority itself that is likely to affect the rights of the party (prejudicially) Writ of
Certiorari and Prohibition cannot be issued in it

Criticism of Second Test

● J. Kania – case of Kushaldas – 2nd test determination of facts involving parties where writ
of certiorari cannot be issued therefore it cannot be treated as

● J. Fazl Ali – what is ‘prejudicially’ – not defined anywhere

1959 J. Subba Rao in Gullapalli Nageshwar Rao v APSRTC – consti bench READ

Justice Kania – Determination of facts affects parties – QJA –

Quasi-Judicial Actions:

State of AP v. SMK Parasurama Gurukul – facts: - respondents have applied for post of
trustees for a temple – they came for interview but were rejected without giving any reason –
they approached the court and said that the appointment of trustees was an action of QJA and
without issuing speaking order it was a violation of PNJ – The court and the HC issued the order
in favor of respondents.

Issue – whether appointing trustees under an act amounts to QJA?

- There was no dispute – there were some grievances of the parties but there was no
dispute involved in the case between the parties

- According to SC this was a case of PAA

- Para 5 – the stakeholders were not required to be heard but merely informed that they
are selected or rejected. (but when you see Civil consequences there has to be

Shivji Nathubhai v. UOI 1960

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 - There must be a dispute between the parties that requires the adjudication by the
authority

- The AA must be objective satisfaction of the authority

- There must be a duty to act judicially

AK Kraipak v. UOI 1970 SC 150

- Facts of the case: One of the candidates was also a part of selection committee (and
also part of final discussion on selection and appointment) and selection was done on the
basis of record available to the Selection committee. This candidate topped the list and
hence the procedure was objected by the seniors. There was no observance of PNJ in the
appointment procedure. The argument was raised by the aggrieved party that it is QJA
and PNJ ought to be followed such as rule against bias.

- According to SC there is no difference between administrative actions and QJA. It

all depends on the nature of the functions/functional aspects.

Para 13 – For determining whether a power is an administrative power or a quasi-judicial

power one has to look to the nature of the power conferred, the person or persons on whom
it is conferred, the framework of the law conferring that power, the consequences ensuing
from the exercise of that power and the manner in which that power is expected to be
exercised.

- Nature of action involved in this case – appointment of certain individual without

following the proper procedure of PNJ – QJA, QL or PAA (it is residuary category that is
those not covered under QJA and QL it comes within the ambit of PAA) – it was held to
be PAA with civil consequences

Senior candidates were rejected without giving any reasons which is required to be done.

- Determining factors for classification of an action as QJA or Administrative action:

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 1. Nature of power conferred – need to see the enabling legislation – if the power is given
for the adjudicating purposes that it is QJA, if it gives power to create rights and
liabilities then it is QL and if it is for administrative purposes (appointing members of
admin authorities like CAT/SAT/JAT) then it is PAA with and without civil
consequences

ATA 1985 – powers are given for adjudication on service and recruitment matters and the
process – hence CAT performs QJA while adjudication. Consumer Protection Act confers power
to adjudicate matters relating to consumer disputes.

Nomenclature is not important but the functional aspects of the same is important.

2. To whom power is given

3. The framework within which power is conferred

4. Exercise of powers

- Certain principles relating to QJA and attributes of PAA

Properties of QJA

- There must be a ‘lis’ (dispute or different grievances) between the parties – There is
a difference or dispute which is related to the subject matter of admin law

(application for grant of license - it can be accepted or rejected – it will be a case of PAA with
civil consequences and not an instance of QJA – it involves the PNJ because without observance
of PNJ there is likelihood of abuse of power)

- Determination of rights and liabilities of parties by the Admin authority – QJA is

required to decide the rights of the parties or inversely decide whether there was an abuse
of power by admin authorities – this power to adjudicate cannot be delegate or given to
sub-ordinate authorities

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 - Due process must be followed in order to ensure fair trial and no miscarriage of
justice happens – no discretionary power is given to the authorities in relation to QJA

- No delegation of such powers – general rule is that the delegate action cannot be
delegated unless enabling act provides for it – but in the case of QJA there is no scope of
sub-delegation

- Regulate its own process as per the Act or Rules – Administrative Tribunals Act
1985 section 8 which provides for the rules to be followed by the Tribunals – it talks
about jurisdiction, powers of authorities and process for application etc.

- Informal process – not bound by CPC, CrPC etc. – it is nonetheless bound by basic
principles like

- Objectivity in actions – Fairness – based on facts

- Some trappings of civil courts – IPC and CrPC – QJA while performing its functions
are empowered with the powers similar to that of Civil court.

PURE ADMINISTRATIVE ACTIONS

Those actions that are neither QJA nor QLA – that is the residue of administrative actions are
known as PAA.

With civil consequences

Without civil consequences

Notification for inviting applications for appointment at teaching posts – it is not QL since it
does not create any rights or liabilities of parties, then it is not QJA since there is no lis. Further
there is no requirement to follow the PNJ or issue speaking orders while rejecting the application
and hence it falls within the PAA without civil consequences

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Participation of the candidate in a course – appearance in entrance exam – issuance/publication
of merit list – all of these are Administrative actions without civil consequences

(Categorization of actions depends on the facts and circumstances of the case – factual matrix
has to be looked into – publication of merit list, answer key but the authorities did not take into
consideration the grievances of the candidates regarding objections with selection procedure –
then it is a case of PAA with civil consequences)

However when the authority modifies the list and removes the name of the candidate without
giving any reasons – PAA with civil consequences

Further the selection procedure entails civil consequences since it affects the rights of people at
large – PAA with civil consequences

Notification for land acquisition – PAA without CC

Notification for appointment of COI – PAA without CC

PAA without civil consequences:

- No determination of disputes (may affect rights)

- No creation of rights

- No procedural requirements

- Can be delegated

PAA with Civil Consequences:

If admin actions involves deprivation, disadvantage or prejudice to the interest of the parties then
such admin actions would be PAA with CC.

Ridge v. Baldwin – House of Lords held that all admin actions affecting the public at large or
affecting individuals causing prejudice/adversely affecting the parties- such actions would be
PAA with CC – these actions must follow the PNJ – this case related to the termination of

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services and it was held that termination of any person from the service has to follow PNJ and
proper procedure.

State of Orissa v. Beena Pani – modification in date of birth without hearing the parties – the
inquiry was made without hearing the parties – PAA with CC

Mohinder Singh Gill v. CEC 1978 – Para 71 defines the PAA with CC by Justice Krishan Iyer
- 'Civil consequence' undoubtedly cover infraction of not merely property or personal rights
but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive
connotation, everything that affects a citizen in his civil life inflicts a civil consequence.

DFO South Khari v. Ram Snehi Singh 1973

- Application of PNJ in CC

Gorkha Security Services v. NCT 2014

Black listing of individuals or companies – that is the parties are barred from performing some
activities such as applying to a tender.

Hypothetical - book publisher submitted some quotations with the tender – the publisher was
given the tender but later on due on some discrepancies in the tender the publisher was black-
listed without giving any hearing or notice or reason as to why it was done – since this action is
detrimental to the reputation of the publisher and other rights – and hence the person cannot be
blacklisted without prior process/application of PNJ

Raghunath Thakur v. State of Bihar

PAA with CC – PNJ need to be required – some attributes of PNJ are required and not all facets
of the PNJ need to be applied in all the actions/activities – it depends on the nature of the actions

Kumari Neelima Mishra v. Harinder Kaur AIR 1990 SC 1402 – UP State Universities Act

Selection Committee had recommended the name of Neelima Mishra which the Executive
Council did not approve rather recommended the name of another person – the matter then was
sent to Chancellor who approved SC’s name and rejected EC’s recommendation.

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There was no speaking order issued on selection of a candidate – it was held that this amounted
to Quasi-judicial Function and hence PNJ ought to have been followed (contended by the
Petitioner and respondent contended that it was PAA)

Issue was related to the nature of action performed by the Chancellor –

Section 31(8) (a) – Reference to the Chancellor in case there is a dispute between the Executive
Council and Selection Committee – and the decision of the Chancellor shall be final

Ratio of the judgment – They have referred to PNJ in admin actions having civil consequences –
but they have not applied the theory of civil consequences to the given factual matrix. There was
no dispute but only administrative action based on recommendation. It was held to be PAA.

2017 Judgment – Mangalam Organics Ltd. v. UOI – difference between PAA with CC and
QJA

Dev Dutt 2008

Related to ACR – The plaintiff had given application but his application was rejected and juniors
were promoted

DPC rejected the application providing a sufficient reason that is he didn’t have Good ACR is
one particular year and hence not considered. Nature of actions

State of AP v. SMK Parashurama Gurukul – Section 15 of AP Charitable and Hindu

Religious Institutions and Endowments Act 1966 – appointment of non-hereditary trustee –
respondent not appointed

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 DIFFERENCES BETWEEN VARIOUS ADMINISTRATIVE ACTIONS

Ridge v Baldwin 1963 - QJA involves obligation to adopt a judicial approach, whether express or
implied. Difference only w.r.t. procedural requirements - no obligation to decide and adjudicate
in PAA (not even follow PNJ).

Neelima Mishra case - procedural requirements and application of judicial mind - will be a QJA,
otherwise will be a PAA.

AK Kraipak 1970 - para 13: determining factors - take into account nature of power and how that
power is exercised - if given for the purpose of adjudication, then it will be QJA. If power is
given to frame rules and regulations, within the enabling Act, then it will be DL. PAA is residue
of other actions.

Indian National Congress v Institute for Social Welfare: AIR 2002 SC 1158 - What distinguishes
an administrative act from quasi-judicial act is, in the case of quasi-judicial functions under the
relevant law the statutory authority is required to act judicially. Where law requires that an
authority before arriving at a decision must make an enquiry, such a requirement of law makes
the authority a quasi-judicial authority.

Grounds for difference b/w QJA and PAA:

1. Adjudication;

2. Procedural requirements (limited application of PNJ to PAA);

3. Delegation (QJA is never delegated to anybody);

4. Objectivity (PAA without CCs may be taken subjectively).

Delegated Legislation and PAA –

1. Sub-delegation only if there is some provision for DL;

2. Discretion to make DL for discretionary, may be compelled for mandatory DL;

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3. Procedural requirements;

4. Subjectivity.

Denial of permission for special repeats: PAA without CCs - cannot claim as a right.

Deletion of name from roll; rejection of reference of industrial disputes by the AG to Labour
Court (u/s 10, Industrial Disputes Act) - dispute only w.r.t. employment terms, AG sanction is
not concerned with the dispute; forfeiture/deduction of salary; determination of seniority list - all
of them are PAA with CCs.

Giving HRA at higher rates by mistake and taking it back, without PNJ - PAA without CCs. But
if interest is levied, then it will be PAA with CCs.

Rejection of RTI Application - PAA with CCs. But appeal to rejection order - QJA (since there is
a dispute w.r.t. rejection).

Examples for classification

Notification to increase number of teaching posts/intake of students - Delegated Legislation.

Notification of admission to PG courses - PAA without CCs

Termination of employment - PAA with CCs

Cancellation of illegal licence, admission, certificate - PAA without CCs

Challenging illegal promotion before CAT - QJA

EC/GC resolution to supersede primary legislation: Delegated Legislation.

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 CASES (22.10.2020 - 23.10.2020)

Ridge v Baldwin -

all administrative actions likely to adversely affect a person should follow PNJ - termination of
employment, for example. How a recruitment process may have civil consequences -
shortlisting, screening, giving eligibility criteria - detriment may be caused - even though they
have discretion, it must be logical and exercised reasonably.

What is to be checked: Mandate of enabling Act, people’s interest at large, control arbitrary
exercise of power.

Mangalam Organics v UoI -

AK Sikri - distinction between pure administrative action and quasi-legislative action.

For example: Dispute raised for non-appointment before Central Administrative Tribunal - it is
now to be adjudicated - whether justified or not, whether fair appointment, whether PNJ were
followed. Rule against bias in public appointments covered by AK Kraipak - how the power has
been vested, functional aspects which have been vested.

Need to give proper justification to determine whether an action is QLA, QJA, or PAA - check
whether respective attributes are being met - QJA lis before a forum/tribunal, QLA creation of
rights and liabilities.

Appointment of officers through Gazette Notification: taken as QLA - creation of rights and
liabilities - document enlisting procedure exists - gives other requirements too.

State of AP v SMK Parashurama Gurukul 1973 -

appointment of trustees - their request was ignored, and they challenged the appointment
process. - argued that this appointment involved QJA, and hence a speaking order was needed.
State argued that this was a PAA, and PNJ was not needed. HC set aside the entire process, State
filed appeal.

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SC considered Section 15 of AP Charitable and Hindu Religious Institutions and Endowments
Act 1966 - appointment of non-hereditary trustees - what kind of an action is it? Held by the SC -
this was PAA (no civil consequences) - take into consideration accountability of the selection
committee - not referred to civil consequences in any case - referred to all prior cases. SelComm
was not obligated to issue a speaking order.

Kumari Neelima Mishra v Dr Harinder Kaur Paintal 1990:

Applications invited for post of reader - SelComm unanimously recommended the appellant’s
name: but the Executive Council did not approve, since she did not have PhD degree, but had
high-quality research work and publications. Matter referred to the Chancellor, he approved the
selection. But, he did not produce a speaking order, other applicants felt that this was a QJA -
filed a writ petition, which got listed 10 years later.

SC held, administrative order with civil consequences must be made consistent with audi alteram
partem - PAA with CCs subject to PNJ. Referred to Bina Pani and Ridge v Baldwin. G
Nageshwara Rao v APSRTC - QJA implies that act is not wholly judicial - duty cast on executive
authority to conform to norms of judicial proceeding in exercising executive power.

Based on factual matrix - she did meet the mentioned criteria - hence, there was not really a
disagreement/dispute between EC and SelComm - according to SC, action performed by
Chancellor is a PAA in this case (no PNJ). The Chancellor’s power u/the Statute does involve
adjudication upon a dispute - but there was no dispute in this case (ignorance of criteria does not
amount to a dispute).

Dev Dutt v UoI 2008:

non-communication of ACR - was considering applying for promotion. Needed “very good”
ACR, but had only “good” ACR: not informed of that, hence not selected. The Departmental
Promotion Committee had issued a speaking order. Dev Dutt claimed that if aware, he would
have made representations and tried to get “very good” ones as needed. Filed a writ petition, that
was dismissed - respondent said that only adverse ACR is to be intimated. DPC’s action is of
what category?

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ACR forms the basis for other benefits and promotions: non-communication led to detrimental
impact and robbed him of the opportunity to get promotions. Always involves civil consequences
- should be communicated in all cases, whether good or bad (with proper justification).

Tejshree Ghag v Prakash Parashuram Patil 2007 -

transfer of government officials - some issues about reduction in payscale. Challenged the action
before the State Administrative Tribunal, on the ground that transfer was not valid - no speaking
order, not heard before reducing pay - rejected by Tribunal. HC held, clubbing of posts was
violation of Articles 14, 16 and 311 of Constitution. Whether notice was required to be given
before such transfer which caused detriment?

“The orders of transfer were passed by Authority in purported exercise of its executive power.
Executive power can be exercised only in terms of the extant rules. It is well-settled that where
executive order results in civil consequences, principles of natural justice are required to be
complied with prior thereto.” Civil consequences - because there was reduction in pay. If a
regular transfer without any change in salaries - then only PAA.

Difference b/w PAA and delegated legislation: 1. creation of rights and liabilities in case of DL.
2. No scope for further sub-delegation for DL (unless there is some provision in the enabling
Act).

Mangalam Organics v UoI -

para 33: (i) If an order is legislative, it has to be published in a certain manner, but not necessary
if administrative.

(ii) If an order is legislative, the court will not issue a writ of certiorari to quash it, but if it is an
administrative order and the authority was required to act judicially, the court can quash by
issuing a writ of certiorari.

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(iii) Generally, subordinate legislation cannot be held invalid for unreasonableness, unless its
unreasonableness is evidence of mala fide or otherwise shows the abuse of power. But in case of
unreasonable administrative order, the aggrieved party is entitled to a legal remedy.

(iv) Only in most exceptional circumstances can legislative powers be sub-delegated, but
administrative powers can be sub-delegated.

(v) Duty to give reasons applies to administrative orders but not to legislate orders.

ADMINISTRATIVE DISCRETION

Prof. Dicey was very critical of providing Admin authorities with discretionary power since he
thought it would lead to abuse of power and dilute rule of law.

However, discretionary power is essential in contemporary times.

Nexus between Admin actions and discretionary power – admin discretion is always exercised
while performing admin actions. Discretionary power, however, is controlled and cannot be
exercised unrestrictedly.

Availability of discretionary power in case of QLA/DL

– DL can be classified into two categories:

1. Discretionary DL – discretion is given to legislators to create rights and liabilities

2. Mandatory DL – The legislation has to/shall enact rules and legislation – there is no
discretion

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Availability of discretionary power in case of QJA

– In the procedure requirements there is no scope of discretion, certain principles have to be

followed (bound to follow PNJ: rule against bias etc., issue speaking order) However, there are
various discretions given to the QJA, it ‘may’ exercise:

- Power to grant ex-parte decision

- Power to set aside ex-parte decision

- Power to review its own decision – suo moto

In case of adjudication – there is no discretion. It ‘shall’ adjudicate service matters and ‘shall’
not delegate the adjudication functions to other authorities.

Section 10 Industries Dispute Act – ‘if’ govt. is of the opinion that industrial dispute exists then
it (1) ‘may’ make reference to (2) appropriate forum – dual discretionary power provided

(Making reference is PAA with CC however the availability of discretionary power doesn’t
determine the nature of admin actions. Where there is a mandate to observe PNJ – there is no
discretionary power)

Has to look at the terminology – ‘may’, ‘if it deems fit’, ‘appropriate’ etc

Discretionary power is always limited and controlled. If the legislation is drafted in broad terms
so as to give wide discretionary power then there arises problems upon scrutiny.

Discretion is the reflection of freedom or liberty or choices or alternatives available to the admin
authorities.

RD Shetty v. International Airport Authority of India SC 1991 – Para 48 – “exercise of

discretion is inseparable part of sound administration. Therefore, the state which itself is the
creation of Constitution cannot shed its limitation at any sphere of state activity.”

Role of the Legislature: Is discretion available?

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Legislature is the master of Discretionary power – it may provide discretionary power to the
Quasi-admin authorities and it may amend, extend or repeal the discretionary power provided. If
there is enabling legislation, the admin actions can exercise

Discretionary power – UoI v. Kuldeep AIR 2004 SC 827 – Para 20-21 – “In its ordinary
meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act
according to one's own judgment; unrestrained exercise of will; the liberty of power of acting
without other control than one's own judgment. But, when applied to public functionaries, it
means a power or right conferred upon them by law, of acting officially in certain circumstances
according to the dictates of their own judgment and conscience, uncontrolled by the judgment or
conscience of others. Discretion is to discern between right and wrong; and therefore whoever
hath power to act at discretion, is bound by the rule of reason and law.

- Admin discretion is inevitable part of good administration – no auth can function w/t
discretionary power – there must be some statute granting such disc power – it cannot be
created by admin legislation

- Legislative control and judicial control

Bangalore Medical Trust v B.S. Muddappa AIR 1991 SC 1902 ¶48 - Much was attempted to
be made out of exercise of discre- tion in converting a site reserved for amenity as a civic
amenity. Discretion is an effective tool in administration. But wrong notions about it results in
iII-conceived conse- quences. In law it provides an option to the authority concerned to adopt
one or the other alternative. But a bet- ter, proper and legal exercise of discretion is one where
the authority examines the fact, is aware of law and then decides objectively and rationally what
serves the interest better. When a Statute either provides guidance or rules or regulations are
framed for exercise of discretion then the action should be in accordance with it. Even where
Statutes are silent and only power is conferred to act in one or the other manner, the Authority
cannot act whimsically or arbi- trarily. It should be guided by reasonableness and fairness.

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Para 48 – discretion is an effective tool in administration.

We require statutory Provisions so that admin actions can exercise discretionary powers

Section 20 RIT Act – deals with imposition of penalty on Public Information Officer upon denial
of providing info – the Information Commissioner ‘shall’ impose penalties on PIO when not
supplied with sufficient and reasonable info for such denial.

However in real practice PIO is made personally liable for violation of the law and also is given
the power to provide info without seeking permission from anyone else and if the required info is
not under him then he shall direct the application to the appropriate authority that has the
required info.

Angad das v UOI (2010) 3 SCC 463 – Angad was head constable in CRPF and some notice was
issued to him. As per the notice he was required to explain why the DOB provided at the time of
appointment was wrong. Subsequently he was forced to take retirement. He submitted an
‘application of request’ to DIG. DIG changed the request letter to appeal and ordered termination
of services without pension requirements. DG also approved the order of DIG. SC held that it is
not upto DIG to assume discretionary power when it is not provided by the enabling act. DIG
had no power to change letter of request to an appeal.

The admin authorities cannot create discretionary power. It has to come from the enabling act
and cannot be exercised by Admin authorities if it is not provided under the enabling act.
Discretionary power is not inherent.

This issue also discussed by State of UP and ors v Renu Sagar Power corp AIR 1998 SC 143
¶13

Subhas Chandra Agarwal v. PIO – Subhas asked for information about number of judges who
have disclosed their assets. The info was denied. The matter was brought before

ICC (Protection of Women at Workplace) – it is mandatory to have ICC constituted at

workplace. There is no discretion.

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Green Light Theory and Administrative Discretion

Green Light Theory – it deals with empowering the authorities with power to perform their
actions through different tools. Admin discretion is a kind of tool that empowers the authorities
to exercise discretion.

This discretionary power is always limited and controlled.

(1985) 2 SCC 349 Sant Raj v OP Singla – nature and scope of discretionary power – ¶4

“Whenever, it is said that something has to be done, within the discretion of the authority, then
that something has to be done, according to the rules of reason and justice and not according to
private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but
legal and regular and it must be exercised within the limit to which an honest man to the
discharge of his office ought to find himself. Discretion means sound discretion guided by law. It
must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful”

● Mandatory delegated legislation there is no scope of discretionary power

● QJA:

- Application of PNJ no discretionary power

- There must be some provisions/ enabling act that allows for exercising discretionary
power

Necessity of discretionary power:

- For effective and efficient governance – better decision making

- To meet emergency – discretionary power of arresting/ confiscating etc in case of

urgency where immediate action is required

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 - To facilitate executive – admin discretion empowers admin auth – they are in better
position to take decisions coz they are experts – no discretion will affect independence of
admin auth

- Other justifications might also be there

Factors to be taken into consideration before exercise of discretionary power

Clariant international limited v. SEBI AIR 2004 SC 4236 ¶26, 28, 29 - The discretionary
jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object
sought to be achieved and the reasons for granting such wide discretion. Must be exercised
within the four-corners of the statute.

The Board further having a discretionary jurisdiction must exercise the same strictly in
accordance with law and judiciously. Such discretion must be a sound exercise in law. The
discretionary jurisdiction, it is well- known, although may be of wide amplitude as the
expression "as it deems fit" has been used but in view of the fact that civil consequence would
ensue by reason thereof, the same must be exercised fairly and bona fide. The discretion so
exercised is subject to appeal as also judicial review, and, thus, must also answer the test of
reasonableness.

o Example: S 10 industrial dispute act – reference of ind dispute power with labour
comm. – basic objective to encourage settlement of dispute – adjudication is last resort – in case
the reference is made without making efforts of conciliation is not right and objective/ aim of the
enabling act must be looked into before exercising the discretionary power

1. Purpose for which it is given

2. Objectives sought to be achieved

3. Reasons for discretionary power

4. Parameters of discretion

5. Other

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 - Consti

- Enabling act

- Other statutory provisions

UOI v Shree Gajanan Maharaj Sansthan AIR 2002 SC 44 – resp approached bom HC to
bring amendment of 1982 into force (implement) (ind dispute act) – by this amendment act
charitable institutions were exempted so the resp wanted enforcement – HC directed the govt to
bring it into force – central gov approaches SC – issue whether the discretionary power of
bringing the amendment act into force can be directed by the court

• Whether such power can be exercised under the direction/ dictation of some agency – NO

• Admin action of discretionary power can be challenged in two cases – failure to exercise
OR abuse of discretionary power

• SC held that judiciary cannot issue the writ of mandamus to direct admin auth to bring an
action into force – “When enforcement of a provision in a statute is left to the discretion of the
Government without laying down any objective standards no writ of mandamus could be issued
directing the Government to consider the question whether the provision should be brought into
force and when it can do so. Delay in implementing the will of the Parliament may draw adverse
criticism but on the data placed before us, we cannot say that the Government is not alive to the
problem or is desirous of ignoring the will of the Parliament”

• Muni Suvrat-Swami Jain Sangh v Arun Nathuram Gaikwad AIR 2007 SC 38 – Bom
HC order demolition of unauthorized construction of temple constructed in residential area
without permission of municipal corp. – acc to resp they visited municipal copr. office then also
no action was taken to demolish it thus Bom HC ordered demolition

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 - Issue before SC whether writ of mandamus can be issued for demolition of unauthorized
construction s351 of Bom Mun Corp. Act 1888 – the corp had discretion to demolish
buildings – BMC said application of temple was pending and we will take action later

- Though the resp alleged bribe being taken by BMC but they were not able to prove this
fact – SC held BMC cannot be compelled to exercise the discretionary power – it cannot
be clogged by any order of the court

Admin discretion cannot be compelled to be exercised in a specific manner such as ordering

demolition of a structure which is at the discretion of the admin agencies under Section 351.

Judiciary cannot direct/compel the admin authorities to exercise discretionary power in a

particular manner. If there is a failure on the part of admin authority, then first it has to be proved
and after that the judiciary can only direct the admin authority to take appropriate actions
according to relevant provisions of the law.

Admin discretion shall only be exercised by the individual with whom such power is vested with.
Judiciary or the superior admin authorities cannot compel or direct that individual to exercise
such discretion. Admin discretion further cannot be sub-delegate or transferred.

• State of UP v Renusagar ¶13 AIR 1988 SC 1737

Controls over admin discretion:

1. Parliamentary control

Primary legislation is owner of admin discretion – the legislation can repeal/ amend/ grant
discretionary power

Committee of subordinate legislation at rajya sabha and lok sabha – the committees are not so
effective

Judicial control – judicial review of exercise of discretionary power

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 2. Failure to exercise discretion:

Non application of mind – not considered relevant facts/ laws

Refusal to exercise discretionary power

Padfield v ministry of agriculture 1968 AC 997 House of Lords – s19 agriculture and
marketing act 1958 – discretion for appointment of committee to look into grievance of farmers
– some farmers from south eastern milk producers requested for construction of such committee
coz they were unhappy with price reduction – minister refused – ques whether the minister can
be compelled by writ of mandamus to exercise discretionary power – Court said writ can be
issued because he did not consider the mandate or scheme of the act (which was to address the
concerns) – he ignored relevant facts and decision was not justified – parliament conferred
discretion on the minister so that it could be used to promote policy and objective of the act to be
determined by the construction of the act – his discretion was not unlimited and if it appears that
his refusal amounted to frustrate the objective of the act than court can interfere an direct the
minister to appoint the committee

Wednesbury corp. court of appeal 1948 – irrationality – 3 main principles

Surrendering discretionary power – licensing officer instead of taking action himself

transferred the application to higher auth (director) and then it was rejected – It is illegal coz
admin discretionary cannot be sub-delegated – it is clear violation of enabling act

Acting under direction of superior authority

3. Use of discretion on dictation

Commissioner of Police, Bombay v. Gordhan Das Bhanji AIR 1952 SC - it is related to

Bombay Police Act 1902, Rule 250 of the act – the respondent had applied for license for
construction of theatre which was issued. Later on the direction of State govt. the license was
revoked. This revocation/withdrawal of license was challenged.

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Nature of Action – PAA with CC – it involves PNJ which was not followed

Admin discretion – Commissioner of Police of Bombay had the discretion to grant the license or
not however CP didn’t exercise such discretion rather took actions on the direction of superior
authorities.

Para 38 of the judgment – “It is clear to us from a perusal of these rules that the only person
vested with authority to grant or refuse a license for the erection of a building to be used for pur-
poses of public amusement is the Commissioner of Police. It is also clear that under Rule 250 he
has been vested with the absolute discretion at any time to cancel or suspend any license which
has been granted under the rules. But the power to do so is vested in him and not in the State
Government and can only be exercised by him at his discretion. No other person or authority can
do it.”

Purtabpore Co. Ltd. v. CC, AIR 1970 SC 1896 – Essential Commodities Act – some orders
were issued by the govt. Sugar Control Order 1955

Issues involved – para 11 and 23

1. Nature of the action – excluding the reserved area (99 villages) against the respondent
company – SC held that such actions were QJA and PNJ are required to be followed
(there were disputes between the parties and it was brought to CM) however before CC
there was no dispute which only acted under the direction of the CM orders

2. Abdication – whether CC followed the statutory rules and laws or acted under the
direction of CM? CC had the discretion to exclude or include certain areas in favor of the
parties however CC did not exercise such discretion available to him but under the
direction and order from CM.

“The power exercisable by the Cane Commissioner under cl. 6(1) is a statutory power. He alone
could have exercised that power. While exercising that power he cannot abdicate his
responsibility in favour of anyone--not even in favour of the State Government or the Chief
Minister. It was not proper for the Chief Minister to have interfered with the functions of the
Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner

35
has been exercised by the Chief Minister, an authority not recognised by cl. (6) read with cl. (11)
but the responsibility for making those orders was asked to be taken by the Cane
Commissioner.”

Practical Difficulties

Even though admin discretion is given to the admin authorities and can be exercised only by
them however in practicality it is difficult for them to refuse or not follow the orders given by the
superior officials or CM.

Legal Principle – in case there is

Bently Nevada LLC v. ITO, Delhi High Court – related to Income Tax Act

Misuse or Abuse of Discretion:

1. Improper Use

- Application of admin actions for different purpose

When discretionary power is given for A purpose and it is exercised for B purpose then that
amounts to abuse or misuse of discretionary power and subject to judicial review.

Land Acquisition Act, 1894 – Authorities have the discretion to acquire areas for public purposes
but any action of acquiring lands that deviates from objective of public purposes will amount to
abuse of admin discretion.

Promotion of Legal Education and Research – can there be an appointment of unqualified people
for such work the purpose of which is to promote legal education and research? – Nature of the
action – a professional is appointed but he is unqualified however the objective/purpose of the
same is met – Legal position: it will be treated as abuse or misuse of discretionary power

Promote Good Governance and not promote corruption

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 2. Non-compliance of process

- Publication in Official Gazettes – it acquires legal sanction after such publication

- Consultation

3. Irreverent Consideration

HC Gargi v. State of Haryana 1987 – order was issued for compulsory retirement on the
grounds of doubtful integrity – this order was based on only the some ACR which records
average performance and not integrity

Wednesbury Corporation Judgment

1. Admin authorities are required to take into account all relevant and material facts

2. Admin authorities are required to ignore irrelevant facts

3. Admin authorities have to exercise discretionary reasonably

4. Ultra Vires

No discretion power – excess of discretionary power – it amounts to violation of other statutes

and Constitution etc.

Power to frame regulations but supersedes – article 14, 16 and 21

5. Unreasonable

Discretion should be exercised reasonably and fairly – there should not be any discrimination

RTI Act – there is discretion to attach application fees when applying for public information –
however the authorities impose the amount of Rs. 10,000 as application fees for the information
on public interest –

- Justification by govt. – such fees has been imposed in order to discourage

frivolous application

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Purpose of RTI Act – to facilitate information in public domain – and imposition of such fees
would defeat the purpose of the Act and amounts to unreasonable.

Exam regulations – Discretion to give Grace Marks, SPL, SPL RE – the purpose of exam
regulations is to promote academic performance and high quality education and granting of high
grace marks would defeat the purpose of education hence would be unreasonable

6. Mala fide

State of Punjab v. VK Khanna 2000 – action taken by CM was challenged – VK Khanna was
punished for not favoring CM in the past -

Discretion must be exercised in the matter of facts, with good faith and not with any ill-will or
bad faith

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