Administration and the Principles of Constitution

Difference between Administrative Law and Constitution

To the early English writers on administrative law there was no difference between
administrative law and constitutional law. Therefore, Keith observed:
It is logically impossible to distinguish administrative from constitutional law
and all attempts to do so are artificial.
However, according to Holland, the constitutional law describes the various
organs of government at rest, while administrative law describes them in motion.
Therefore according to this view, the structure of the legislature and the executive
comes within the purview of constitutional law, but their functioning comes within
the sphere of administrative law.
According to Jennings view, “administrative law deals with the organisation,
functions, powers and duties of administrative authorities while constitutional law
deals with the general principles relating to the organisation and powers of various
organs of the State and their mutual relationships and relationship of these organs
with the individual. In other words, constitutional law deals with fundamentals
while administrative law deals with the details.

Importance of Written Constitution and easy to

differentiate
In countries which have written constitutions, the difference between
Constitutional law and Administrative law is not so blurred as it is in England.
In such countries, the source of constitutional law is the Constitution while
the source of administrative law may be statutes, statutory instruments,
precedents and customs.

“Watershed”in Administrative Law

Today administrative law is recognised as a separate, independent branch of the
legal discipline, though at times these two may overlap.
The correct position seems to be that if one draws two circles of
administrative law and constitutional law, at a certain place they may overlap and
this area may be termed as the “watershed” in administrative law.

Watershed and Indian

Position
In India, in the watershed one can include the whole control mechanism provided
in the Constitution for the control of administrative authorities, i.e. Articles 32,
136, 226, 227, 300 and 311.
It may also include the study of those administrative agencies which
are provided for by the Constitution itself, i.e. Inter-State Council (Art. 263);
Finance Commission (Art. 280); Inter-State Water Dispute Authority (Art. 262);
Public Service Commissions (Art. 315) and Election Commission (Art. 324).
It may further include the study of Constitutional
Limitations on Delegation of Powers to the administrative authorities and also those
provisions of the Constitution which place fetters on administrative action, i.e.
fundamental rights.

Administrative Discretion
Administrative Functions: General Introduction
Functions dischargeable by the administration may either be ministerial or
discretionary. A ministerial function is one where the relevant law prescribes the
duty to be performed by the concerned authority in certain and specific terms
leaving nothing to the discretion or judgment of the authority. It does not involve
investigation into disputed facts or making of choices. The authority concerned
acts in strict obedience to the law which imposes on it a simple and definite duty
in respect of which it has no choice.
Because of the complexity of socioeconomic conditions which the
administration in modern times has to contend with the range of ministerial
functions is very small and that of discretionary functions much larger.

Necessity of
Discretionary Powers
It is realised that a government having only ministerial duties with no discretionary
functions will be extremely rigid and unworkable and that, to some extent, officials
must be allowed a choice as to when, how and whether they will act. The reason
for this attitude is that, more often than not, the administration is required to
handle intricate problems which involve investigation of facts, making of choices
and exercise of discretion before deciding upon what action to take.
Concept and Meaning of Discretion

Discretion implies power to make a choice between alternative courses of action.

Discretion is the all-pervading phenomenon of modern age. Discretion is
conferred in the area of rule-making or delegated legislation, e.g., when the
statutory formula says that the government may make rules which it thinks
expedient to carry out the purposes of the Act, in effect, a broad discretion and
choice are being conferred on the government to to make rules. The legislature
hardly gives any guidance as to what rules are to be made. Similarly, discretion is
conferred on adjudicatory and administrative authorities on a liberal basis, that
is, the power is given to apply a vague statutory standard from case to case.

Discretion in the True Sense

Quite often, the legislature bestows more or less an unqualified or uncontrolled

discretion on the executive. Administrative discretion may be denoted by such
words or phrases as “public interest”, “Public Purpose”, “prejudicial to public
safety or security”, “satisfaction”, “belief”, “efficient”, “reasonable” etc.

Four Reasons of conferring discretion on administrative authorities

There are at least 4 good reasons for conferring discretion on administrative

authorities:
(1) The present-day problems which the administration is called upon to deal
with are of complex and varying nature and it is difficult to comprehend them all
within the scope of general rules.
(2) Most of the problems are new, practically of the first impression. Lack of any
previous experience to deal with them does not warrant the adoption of general
rules.

Reasons for conferment of discretionary powers

(3) It is not always possible to foresee each and every problem but when a
problem arises it must in any case be solved by the administration in spite of the
absence of specific rules applicable to the situation.
(4) Circumstances differ from case to case so that applying one rule mechanically
to all cases may itself result in injustice.

Judicial approach in India For Administrative Discretion

Though courts in India have developed a few effective parameters for the proper
exercise of discretion it lacks the activism of the American Courts. Judicial control
mechanism of administrative discretion is exercised at 2 stages:
(i) Control at the stage of delegation of discretion
(ii) Control at the stage of exercise of discretion

Control at the stage of delegation

The court exercises control over delegation of discretionary powers to the

administration by adjudicating upon the constitutionality of the law under which
such powers are delegated with reference to the fundamental rights enunciated
in Part-III of the Indian Constitution. Therefore, if the law confers vague and wide
discretionary power on any administrative authority, it may be declared ultra
vires Article 14 and 19 and other provisions of the Constitution.

Control at the stage of exercise

In India, unlike the U S there is no Administrative Procedure Act providing for

judicial review on the exercise of administrative discretion. Therefore, the power
of judicial review arises from the constitutional configuration of Courts. Courts in
India have always held the view that judge-proof discretion is a negation of the
rule of law. Therefore they have developed various formulations to control the
exercise of administrative discretion. These formulations may be conveniently
grouped into 2 broad generalisations:
(i) That the authority is deemed not to have exercised its discretion at all, or
there is failure on its part to exercise discretion.
(ii) That the authority has not exercised its discretion properly, or there is an
excess or abuse of discretion.

Grounds of Abuse of Discretion

Under this general heading of judicial control, there fall quite a few specified and
separate grounds which are as below-
 Mala fides
 Irrelevant considerations
 Leaving out relevant considerations
 non-application of mind
 non-compliance with procedural requirements
CONTRACTUAL LIABILITY
Liability of the Government

Liability of the Government Prior to commencement of the Constitution

Before commencement of the Constitution also, the liability of the

government for breach of contract was recognised. The East India Company
was established in India, essentially for commercial activities. As early as in
1785, in Moodalay v. Morton, The Supreme Court of Calcutta held that the
east India Company was subject to the jurisdiction of Muniucipal Courts in all
matters and proceedings Undertaken by them as a private trading company.
In a number of Statutes also, such liability of the government had been
recognised. Thus the, the provisions were made in the Government of India
Acts of 1833, 1858, 1915 and 1935.

Constitutional Provisions relating to Contractual Liability

Contractual liability of the Union of India and the States is recognised by the
Constitution itself in the Articles- 294, 298, 299 and 300. Article 298 expressly
provides that the executive power of the Union and of each State shall extend
to the carrying on of any trade or business and the acquisition, holding and
disposal of property and the making of contracts for any purpose.

Execution of Contracts-Mode & Manner

Article 299(i) prescribes the mode and manner as following way-

All contracts made in the exercise of the executive power of the Union or of
a State shall be expressed to be made by the President, or by the Governor of
the State, as the case may be, and all such contracts and all assurances of
property made in the exercise of that power shall be executed on behalf of
the President or the Governor by such persons and in such manner as he may
direct or authorise.

Consequences of Contracts not being in Conformity with Article-299(1)

General Proposition- A ‘contract’ not in conformity with Article-299(1) is not

as such enforceable either against the government or the contracting party as
no rights accrue thereunder in favour of one party nor any liability is incurred
by the other.
In Uttar Pradesh v. Murari Lal AIR 1971 SC 2210 Supreme Court ruled that a
contract not complying with 299(1) being void and ‘ no contract in the eye of
the law’, Section 230(3) of the Contract Act could not become applicable. In
this case the horticulturist in the department of Agriculture, govt. of U.P.
negotiated with the plaintiff for storing government potatoes in his cold
storage. The plaintiff reserved the requisite space for the purpose but no
potatoes were sent. He sued the government and the horticulturist for the
rent. The state defence was that there was no contract conformable with Art.
299(1) and so it was not liable. On appeal S.C. held that if there is no contract
in eye of law s. 230(3) could not become applicable. The same is true of s.
235.
In Union of India v. N.K. Private Ltd. An application by the
contracting party under s. 20 of the Arbitration Act for reference of a dispute
to arbitration under a contract with the government was held not
maintainable as there was no valid and binding contract, the letter of
acceptance of the offer of the party being signed by a person not authorised
to execute contracts for and on behalf of the President.
In Timber Kashmir Pvt. Ltd. V. Conservator of Forests AIR 1977SC 151 the
Kashmir Government filed 3 applications under the Arbitration Act to refer
disputes arising out of three agreements between it and the appellant
company to arbitration under the arbitration clauses of the said agreements.
The company objected on the ground that the arbitration clause was, in each
case, a part of an agreement which was not duly executed in accordance with
constitutional provision. (S. 122(1) of the Jammu and Kashmir Constitution
which is equivalent to Article 299(1) of the Indian Constitution) The Supreme
Court overruled the objection as it found the said contracts to be valid.

Quasi-contractual liability

The provisions of Article 299(1) of the Constitution are mandatory and if they
are not complied with, the contract is not enforceable in a court of law at the
instance of any of the contracting parties. In these circumstances, with a view
to protecting innocent persons, courts have applied the provisions of Section
70 of the Indian Contract Act, 1872 and held the government liable to
compensate the other contracting party on the basis of quasi-contractual
Liability.

Section 70 of Indian Contract Act, 1872

Section 70 provides that if the goods delivered are accepted or the work done
is voluntarily enjoyed, then the liability to pay compensation for the
enjoyment of the said goods or the acceptance of the said work arises.
Thus, where a claim for compensation is made by one person against
another under Section 70, it is not on the basis of any subsisting contract
between the parties, but on the basis of the fact that something was done by
one party for the other and the said work so done has been voluntarily
accepted by the other party.

Object of Sec.-70 and the conditions precedent for the applicability

Object- The object of Section 70 is to prevent “unjust enrichment”.

Conditions must be fulfilled- 1. A person must have lawfully done something
for another person or delivered something to him.
2. He must not have intended to do such act gratuitously.
3. The other person must have accepted the act or enjoyed the benefit.

The case State of W.B. v. B.K. Mondal AIR 1962 SC 779 and s.- 70

At the request of a government officer, the contractor constructed a building.

The possession was obtained by the officer and the building was used by the
government, but no payment was made to the contractor. It was contended
that as the provisions of Art. 299(1) of the Constitution had not been
complied with, the contract was not enforceable. The S.C. held that the
contract was unenforceable but the government was liable to pay to the
contractor under Section 70 of the Indian Contract Act, 1872 on the basis of
quasi-contractual liability.
The principle laid down in B. K. Mondal has been followed in several
cases thereafter.

Some relevant cases of Unjust Enrichment and holding of the court

In Shiv Shankar Dal Mills v. State of Haryana AIR 1980 SC 1037, market fee
was collected under the provision which was struck down by the Supreme
court in an earlier case. A prayer was, therefore, made by the traders to
refund the amount collected from them. The court held that though
collection of market fee from traders was illegal, they could demand only such
amount that had not passed on to the customers In Godfrey Phillips India Ltd.
V. State of U.P., (2005) 2 SCC 515 the Constitution Bench of Supreme Court
held that the State Govt. had no power to impose luxury tax. The action of
 levy of luxury tax on tobacco and tobacco products was, therefore declared
illegal and ultra vires beyond the legislative competence of the State
legislature. Regarding refund of tax collected by State Government, however
the court observed that if the dealers had collected the amount from
consumers or customers, they could not retain the said amount.

Contract of Service

A contract of service between State and a private person is not governed by

Article 299 of the Constitution. At the initial stage of appointment in a
government service, no doubt there is a contract between the parties. There
is an offer and acceptance of employment. But once a person is appointed, he
or she acquires a status and the relationship is no more governed by a
contract, but by an appropriate legislation or rules under proviso to Article
309 of the Constitution.

Existence of Administrative Law in America in 18th Century

Administrative law was in existence in America in the 18th Century when the first
federal administrative law was embodied in the statute in 1789, but it grew
rapidly with the passing of the Interstate Commerce Act, 1877.

Publication of books and arousal of Interest in Bench and Bar

In 1893, Frank Goodnow published a book on Comparative Administrative Law

and in 1905, another book on the Principles of Administrative Law of the United
States was published.
In 1911, Ernst Freund’s Casebook on Administrative Law was published. The
Bench and the Bar also took interest in the study of administrative law.

Effective Steps taken in that Regard

A special Committee was appointed in 1933 which called for greater judicial
control over administrative agencies. After the reports of Roscoe Pound
Committee of 1938 and the Attorney General’s Committee in 1939, the
Administrative Procedure Act, 1946 was passed which contained many provisions
relating to the judicial control over administrative actions

President Elihu Root and Warning in his addressing in 1946

In his address to the American bar Association in 1946, President Elihu Root
warned the country by saying:
There is one special field of law development which has manifestly become
inevitable. We are entering upon the creation of a body of administrative law
quite different in its machinery, its remedies and its necessary safeguards from
the old methods of regulation by specific statutes enforced by the courts…… If
we are to continue a government of limited powers, these agencies of regulation
must themselves be regulated.

Consequence of ignorance of advice of wise counsel

The advice of wise counsel was unfortunately ignored by the leaders of the Bar.
The powers of administrative bodies continued to grow day by day and
eventually they became the “fourth branch” of the government.

Development of Administrative Law in France

French administrative law or droit administratif is a branch of law which deals

with the powers and duties of various administrative agencies and officials.
According to Dicey this system is based on 2 principles:-
1. An individual in his dealings with the State does not, according to the french
legal system, stand on the same footing as that on which he stands in dealing
with his neighbour; and
2. The Government and its officials are independent of and free from the
jurisdiction of the ordinary civil courts.

Conseil d’Etat affording much more protection to the aggrieved parties

In France Conseil d’Etat afforded much more protection to the aggrieved parties
than regular courts afforded to such persons in England.
 The official transgressing the bounds of law or acting contrary to
the rules of natural justice in his dealings with the citizen is subject to a greater
and more effective control in France than in some Anglo-Saxon countries.

No place to Sovereign Immunity in the French System

The doctrine of sovereign immunity is absent in the French System. Admission to

full State liability to the subject in France is the miraculous change in law effected
by the jurisprudence evolved by the Conseil d’Etat. No statute stated it, only the
judge did declare it in a series of decisions of the Conseil d’Etat.

DOCTRINE OF LEGITIMATE
EXPECTATION
Arbitrary exercise of power and Judicial Review

General Introduction of Doctrine

The doctrine of legitimate expectation belongs to the domain of public law and
is intended to give relief to the people when they are not able to justify their
claims on the basis of law, in the strict sense of the term, though they have
suffered a civil consequence because their legitimate expectation had been
violated. It is something between a “right” and “no right” and is different
from anticipation, desire and hope.
The term “legitimate expectation” was first used by Lord Denning in 1969 and
from that time it has assumed the position of a significant doctrine of public
law in almost all jurisdictions.

Indian Position of the Doctrine

In India, the Supreme Court has developed this doctrine in order to check
the arbitrary exercise of power by the administrative authorities.
In private law, a person can approach the court only when his right
based on statute or contract is violated, but this rule of locus standi is relaxed
in public law to allow standing even when a legitimate expectation from a
public authority is not fulfilled. Therefore this doctrine provides a central
space between “no claim” and a “legal claim”, wherein a public authority can
be made accountable on the ground of an expectation which is legitimate.
 This doctrine becomes a part of the principles of natural justice, and no
one can be deprived of his legitimate expectations without following the
principles of natural justice.

Negative and Positive Contents of the Doctrine

The doctrine has negative and positive both contents. If applied negatively, an
administrative authority can be prohibited from violating the legitimate
expectations of the people, and if applied in a positive manner, an
administrative authority can be compelled to fulfill the legitimate expectations
of the people. This is based on the principle that public power is a trust which
must be exercised in the best interest of its beneficiaries- the people.

Illustrative cases
In Breen v. Amalgamated Engg. Union, (1971) 2 QB 175, Lord Denning stated that
if aperson seeks a privilege to which he has no claim, he can be turned away
without a word. He need not be heard. But if he is deprived of his livelihood, he
should be afforded a hearing. Likewise, if he has some right of interest or
legitimate expectation of which it would not be fair to deprive him without
hearing then he should be afforded hearing.

Navjyoti Coop. Group Housing Society v. Union of India AIR 1993 SC 155
As per the policy of the government, allotment of land to housing society was to
be given on the basis of “first come first served”. It was held that the societies
who had applied earlier could invoke the doctrine of legitimate expectation.

Doctrine of Proportionality
One mode of exercising the power of Judicial Review

General Introduction

With the rapid growth of administrative law and the need & necessity to control
possible abuse of discretionary powers by various administrative authorities,
certain principles have been evolved by courts. If an action taken by any
authority is contrary to law, improper, unreasonable or irrational, a court of law
can interfere with such action by exercising power of judicial review. One of such
modes of exercising power is the doctrine of proportionality.
Explanation for the Doctrine

In Council of Civil Service Unions v. Minister for the Civil Service 1985 AC 374 (HL)
Lord Diplock observed:
One can conveniently classify under 3 heads the grounds on which
administrative action is subject to control by judicial review. The first ground I
would call ‘illegality’ the second ‘irrationality’ and the third ‘procedural
impropriety’. I have in mind particularly the possible adoption in the future of the
principle of ‘proportionality’.

Proportionality is “concerned with the way in which the decision maker has
ordered his priorities, the very essence of decision making consists in the
attribution of relative importance to the factors in the case.”
In the human rights context, proportionality involves a “balancing
test” and the “necessity test”. The former scrutinises excessive and onerous
penalties or infringement of rights or interest whereas the latter takes into
account other less restrictive alternatives.

Nature and Scope of the Doctrine

The doctrine ordains that administrative measures must not be more drastic than
is necessary for attaining the desired result. If an action taken by an authority is
grossly disproportionate, the said decision is not immune from judicial scrutiny.
Apart from the fact that it is improper and unreasonable exercise of power, it
shocks the conscience of the court and amounts to evidence of bias and
prejudice. The doctrine operates both in procedural and substantive matters.

Some Illustrative Cases

Hind Construction & Engineering Co. Ltd. V. Workman AIR 1965 SC 917
In this case, some workers remained absent from duty treating a particular
day as holiday. They were dismissed from service. The industrial tribunal set
aside the action. Confirming the order of the tribunal, the Supreme Court
observed that the absence could have been treated as leave without pay. The
workman might have been warned and fined. It is impossible to think that any
reasonable employer would have imposed the extreme punishment of dismissal
on its entire permanent staff in this manner.

Ranjit Thakur v. Union of India AIR 1987 SC 2386

An Army Officer did not obey the lawful command of his superior officer by not
eating food offered to him. Court Martial proceedings were initiated and a
sentence of rigorous imprisonment of one year was imposed. He was also
dismissed from service, with added disqualification that he would be unfit for
future employment. The said order was challenged inter alia on the ground that
the punishment was grossly disproportionate. Upholding the contention and
emphasising that “all powers have legal limits” Venkatachaliah j rightly observed:

The question of the choice and quantum of punishment is within the

jurisdiction and discretion of the court-martial. But the sentence has to suit the
offence and the offender. It should not be vindictive or unduly harsh. It should
not be so disproportionate to the offence as to shock the conscience and amount
in itself to conclusive evidence of bias.

Sardar Singh v. Union of India AIR 1992 SC 417

A jawan serving in Indian Army was ranted leave and while going to his home
town, he purchased 11 bottles of rum from army canteen though he was entitled
to carry only four bottles. In court martial proceedings, he was sentenced to
undergo rigorous imprisonment for 3 months and was also dismissed from
service. His petition under Article 226 of the Constitution was dismissed by the
High Court. The petitioner approached the S. Court. Holding the action arbitrary
and punishment severe, the court set aside the order.

Development of Adm. Law

Indian Administrative Law: Emergence

The Indian Administrative Law principles emerge across the board, and are to be
found, discovered and even invented, wherever allegations of arbitrary exercise
of power are raised and judicially dealt with.

Reasons for growth of Administrative Law in India

Administrative Law is a by-product of intensive form of government. During the
last century, the role of the government has changed in almost every country of
the world, from laissez faire to paternalism and from paternalism to
maternalism.
Today the expectation from government is not only that it will
protect its people from external aggression and internal disturbance but also
that it will take care of its citizens from the cradle to the grave.
Therefore, the development of Administrative Process and the
Administrative Law has become the cornerstone of modern political philosophy.

Historical Growth and Development in England

In England, by and large, the existence of administrative law as a separate branch

of law was not accepted until the advent of the 20th century. In 1885, Dicey
rejected the concept, altogether. In his famous thesis on the rule of law, he
observed that there was no administrative law in England.
In 1914, however, Dicey changed his views. In the last edition of his
famous book, Law and the Constitution, published in 1915, he admitted that
during the last 30 years, due to increase of duties and authority of English
officials, some elements of droit had entered into the law of England. But even
then, he did not concede that there was administrative law in England. However,
after two decisions of House of Lords in Board of Education v. Rice (1911 AC 179)
andLocal Government Board v. Arlidge (1915 AC 120) in his article “The
Development of Administrative Law in England”, he observed, “Legislation had
conferred a considerable amount of quasi judicial authority on the administration
which was a considerable step towards the introduction of administrative law in
England.”

Appointment of Donoughmore Committee

In 1929, the Committee on Minister’s Powers headed by Lord Donoughmore was

appointed by the British Government to examine the problems of delegated
legislation and the judicial and quasi judicial powers exercised by the officers
appointed by the Ministers and to suggest effective steps and suitable safeguards
to ensure the supremacy of the rule of law.

Donoughmore Committee’s Recommendations and after effects

In 1932, the Donoughmore Committee submitted its report and made certain
recommendations regarding better publication and control of subordinate
legislation, which were accepted by parliament with the passage of the Statutory
Instuments Act, 1946.

Tortious and Contractual Liabilities of Crown

In 1947, the Crown Proceedings Act was passed by the British parliament which
made the government liable to pay damages in case of tortious and contractual
liability of the Crown. Thus, the abandonment of the famous doctrine, “the King
can do no wrong”, considerably expanded the scope of administrative law in
England.

Efforts for better control and supervision of administrative Decisions

In 1958, the Tribunals and Enquiries Act was passed for the purpose of better
control and supervision of Administrative decisions, and the decisions of the
administrative authorities and tribunals were made subject to appeal and
supervisory jurisdiction of the regular courts of Law.
Social & Economic Policies of Govt. and increase of Delegated Legislation,
tribunalisation

In the 20th century, social and economic policies of the government had
significant impact on private rights, housing, employment, planning, education
health and several other matters. Neither the Legislature could resolve those
problems nor Crown’s Court could provide effective remedies to aggrieved
parties. That had resulted in increase of delegated legislation and also
tribunalisation.

Judicial Control :few

specified grounds

Grounds of Abuse of Discretion

Under this general heading of judicial control, there fall quite a few specified
and separate grounds which are as below-
(a) Mala fides
(b) Irrelevant considerations
(c) Leaving out relevant considerations
(d) non-application of mind
(e) non-compliance with procedural requirements
Mala fides
Every power must be exercised by the authority reasonably and lawfully.
However it is rightly said, “every power tends to corrupt and absolute power
corrupts absolutely”. It is, therefore, not only the power but the duty of the
courts to see that all authorities exercise their powers properly, lawfully and in
good faith. If the power is not exercised bona fide, the exercise of power is bad
and the action illegal.
Definition and Types
Though precise and specific definition of the expression mala fide is not
possible, it means ill-will, dishonest intention or corrupt motive. A power may
be exercised maliciously, out of personal animosity, ill-will or vengeance or
fraudulently and with intent to achieve an object foreign to the statute.
Malice is of 2 types: “malice in fact” and “malice in law”

Malice in Law
When an action is taken or power is exercised without just or reasonable cause
or for purpose foreign to the statute, the exercise of power would be bad and
the action ultra vires.
“Malice in law” may be assumed from the doing of a wrongful act
intentionally without just cause or excuse or for want of care.
Illustrative Cases
Municipal Council of Sydney v. Campbell (1925 AC 338) under the relevant
statute the Council was empowered to acquire land for “carrying out
improvements in or remodelling any portion of the city”. The Council acquired
the disputed land for expanding a street. But in fact the object was to get the
benefit of probable increase in the value of land as a result of the proposed
extension of the highway. No plan for improving or remodelling was proposed
or considered by the Council. It was held that the power was exercised with
ulterior object and hence it was ultra vires.
Irrelevant considerations
A power conferred on an administrative authority by a statute must be
exercised on the considerations relevant to the purpose for which it is
conferred. Instead if the authority takes into account wholly irrelevant or
extraneous considerations the exercise of power by the authority will be ultra
vires and the action bad.
In Ram Manohar Lohiya v. State of Bihar AIR 1966 SC under the relevant
rules, the authority was empowered to detain a person to prevent subversion
of “public order”. The petitioner was detained with a view to prevent him from
acting in a manner prejudicial to the maintenance of “law and order”. The
Supreme Court set aside the order. In State of M.P. v. Ramashanker
Raghuvanshi AIR 1983 SC services of a teacher were terminated on the ground
that he had taken part in RSS and Jan Sangh avtivities. Observing that to deny
employment to an individual because of his political affinities would be
violative of Article 14 and16 of the Constitution, the Supreme Court set aside
the order.

Leaving Out Relevant Considerations

An administrative authority cannot take into account irrelevant or extraneous
considerations. Similarly if the authority fails to take into account relevant
considerations, then also, the exercise of power would be bad.
In Rampur Distillery Co. Ltd. V. Company Law Board AIR 1970 SC the
Company Law Board refused to give its approval for renewing the managing
agency of the Company. The reason iven by the Board for not giving its
approval was that the Vivian Bose Commission ad severely criticized the
dealings of the managing director, Mr. Dalmia. Court conceded that the past
conduct of directors were a relevant consideration but before taking a final
decision, it should take into account Their present activities also.
 In Ashadevi v. K. Shivraj AIR 1979 SC 447, an order of detention was passed
against the detenu under the conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 (COFEPOSA) . The order was based on the
detinue’s confessional statements before the Customs authorities. But the said
confessional statements were subsequently retracted by the detinue before the
order of detention. The S.C. held that the question whether the earlier
statements recorded were voluntary was not was a “vital” fact which ought to
have been considered by the detaining authority before passing the order of
detention.

Non Application of Mind

Where discretion has been conferred on an authority, it is expected to exercise
the same by applying its mind to the facts and circumstances of the case in
hand, otherwise its action or decision will be bad and the authority is deemed
to have failed to exercise its discretion.
In Merugu Satyanarayana v. State of Andhra Pradesh, AIR 1982 SC 1543 a
preventive detention case, the Court found that the detaining authority had
acted mechanically and abdicated its powers to subordinates when the
affidavit in justification of the detention was filed by a subordinate and not the
detaining authority itself. The Court stated that the subordinate authority does
not say how he came to know about the subjective satisfaction of the District
magistrate. From this
the Court concluded that detaining authority (D.M.) had completely abdicated
its functions.
In Nandlal v. Bar Council of Gujarat AIR 1981 SC 477 while analysing one
case the court concluded that The advocates Act, 1961 provides that if on a
receipt of a complaint against an advocate, the State bar council has “reason to
believe” that the advocate has been guilty of misconduct it shall forward the
case to its disciplinary Committee. It was held that in forwarding a case to the
disciplinary committee the Council can not act mechanically; it must apply its
mind to find out whether there is any reason to believe that any advocate has
been guilty of misconduct.

Non- compliance with Procedural requirements

An exercise of discretionary power may be bad because the authority has not
complied with the procedural requirements laid down in the statute, provided
the court holds the procedure to be mandatory. It is for the Court to decide
whether a procedural requirement is mandatory or directory.
In M.M. Gupta v. state of J. & K. AIR 1982 SC 1579, it has been held that
under Art. 233 of the Constitution the Governor is under an obligation to make
effective consultation with High court for appointment of District Judge, such a
requirement is mandatory.
In Jashwant Singh Mahura Singh v. Ahmedabad Municipal Corporation AIR
1991 SC 2130, while considering the requirement of serving special notice on
the person interested in any plot comprised in scheme and giving opportunity
of hearing to the persons affected by the scheme as envisaged by Rule 21 (3)
and (4) of Bombay town Planning Rules 1955: it has been held that such a
requirement is mandatory being in consonance with principles of natural
Justice as well as Arts. 14 and 21.

Meaning and Definition of

Administrative Law
Defined by many authors and thinkers
Administrative Law has a tremendous social function to perform.
Administrative Law becomes that body of reasonable limitations and
affirmative action parameters which are developed and operationalized by the
legislature and the courts to maintain and sustain a rule-of-law society.

Basic Idea
1. Checking abuse or detournement of administrative power;
2. Ensuring citizens an impartial determination of their disputes by officials;
3. Protecting citizens from unauthorised encroachment on their rights and
interests and
 4. Making those who exercise public power accountable to the people.

Basic Bricks of foundation of any Administrative Law

It is impossible to attempt any precise definition of Administrative law which
can cover the entire range of administrative process because in almost every
country, irrespective of its political philosophy, the administrative process has
increased so tremendously that today we are living not in its shade but
shadow. (As I.P. Massey opined)

Difficulty in defining the Administrative law

Administrative Law is the law relating to the administration. It determines the
organisation, powers and duties of the administrative authorities.
Criticism- It does not include the remedies available to an aggrieved person
when his rights are adversely affected by the administration.
Ivor Jennings’s Definition
Administrative Law is the law relating to the control of governmental power.
According to him the primary object of Administrative Law is to keep
powers of the government within their legal bounds so as to protect the
citizens against their abuse. The powerful engines of authority must be
prevented from running amok.
According to Wade
Administrative law is the law concerning the powers and procedures of
administrative agencies, including especially the law governing judicial review
of administrative action.
According to him, administrative agency is a governmental authority,
other than a court and a legislature which affects the rights of private parties
either through administrative adjudication or rule making.

K C Davis
Administrative Law may be described as –
 “Those rules which are recognised by the Courts as law and which relate to
and regulate the administration of Government.”
Garner
Administrative Law deals with the structure, powers and functions of the
organs of administration, the limits of their powers, the methods and
procedures followed by them in exercising their powers and functions, the
methods by which their powers are controlled including the legal remedies
available to a person against them when his rights are infringed by their
operation.
Jain and Jain
Taking into account the ambit and scope explored through all these definitions,
we may define administrative law as following: ( As C. K. Takwani ventures)-
Administrative law is that branch of Constitutional Law which deals with
powers & duties of administrative authorities, the procedure followed by them
in exercising the powers and discharging the duties and remedies available to
an aggrieved person when his rights are affected by an action of such
authorities.

Conclusion regarding Definition of Administrative Law

RULE OF LAWConcept and connotations

Introduction
The concept of the rule of law is an animation of natural law and remains as a
historic ideal which makes a powerful appeal even today to be ruled by law not
by a powerful man.
“Rule of Law” is to be understood neither as a “rule” nor a
“law”. It is generally understood as a doctrine of “state political morality”
which concentrates on the rule of law in securing a “correct balance” between
“rights” and “powers”, between individuals, and between individuals and the
State in any free and civil society. This balance may be drawn by “law” based
on freedom, justice, equality, and accountability. Therefore, it infuses law with
moral qualities as opined by Alex Carrol (Constitution and Administrative Law
2nd Edn., 2002).

Rule of Law derived from…

The term “rule of law” is derived from the French phrase la principe de legalite
(the principle of legality) which refers to a government based on principles of
law and not of men . In this sense the concept of la principe de legalite was
opposed to arbitrary powers.

Difficulty in giving exact definition

The rule of law is a viable and dynamic concept and, like many other such
concepts, is not capable of any exact definition. This, however, does not mean
that there is no agreement on the basic values which it represents. The term
rule of law is used in contradistinction to “rule of man” and “rule according to
law”.

Different nomenclatures for Rule of Law in Jurisprudence

In Jurisprudence, romans called it “jus naturale”; Mediaevalists called it the
“Law of God”; Hobbes, Locke and Rousseau called it “Social Contract” or
“natural law”; and the modern man calls it the “rule of law”.

The Concept of Rule of Law in the light of some decided cases

The basic Concept of the Rule of Law is not a well-defined legal concept. The
courts generally would not invalidate any positive law on the ground that it
violates the contents of the rule of law. However, in ADM Jabalpur v. Shivakant
Shukla, (1976) 2 SCC 521 (Popularly known as the Habeas Corpus) the majority
opinion was against the petitioner’s demand but the existence of rule of law
was recognised.
The narrow issue before the S.C. was whether there was any “rule of
law” in India apart from and irrespective of Article 21 of the Constitution.
Despite the unfortunate order to the effect that the doors of the court during
an emergency are completely shut for the detenus, it is gratifying to note that
the concept of the rule of law can be used as a legal concept.

Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

In the opinion of some of the judges constituting the majority in the
Kesavananda Bharati case, the rule of law was considered as an “aspect of the
doctrine of basic structure of the Constitution, which even the plenary power
of Parliament cannot reach to amend.

Indira Nehru Gandhi v.Raj Narain (AIR 1975 SC 2299)

Through this case Supreme Court invalidated clause (4) of Article 329-A
inserted in the Constitution by the Constitution 39th Amendment Act, 1975 to
immunise the election dispute to the office of the Prime Minister from any kind
of judicial review.
Khanna & Chandrachud JJ held that Article 329-A violated the concept of
basic structure. Other Justices held that Art. 329-A clause (4) offends the
concept of rule of law. Ray CJ held that since the validation of the Prime
Minister’s election was not by applying any law, therefore it offended the rule
of law.

Conclusion Regarding Indian position

Our Constitution envisages a rule of law and not a rule of men. It recognises
that, howsoever high one may be, he is under the law and the Constitution. All
the constitutional functionaries must, therefore, function within the
constitutional limits. – as held in Pancham Chand v. State of H.P. (2008) 7SCC
117 In a system governed by rule of law, there is nothing like absolute or
unbridled power exercisable at the whims and fancies of the repository of
power. There is nothing like a power without any limits or constraints. That is
so even when a court or other authority may be vested with wide discretionary
power, for such discretion has to be exercised only along well-recognised and
sound juristic principles with a view to promoting fairness, inducing
transparency and aiding equity. – as held in Maya Devi v. Raj Kumari Batra
(2010) 9 SCC486 Thus the concept of Rule of Law in India is duly recognized by
the Constitution and is firmly established by judicial pronouncements.

Object of the study of Administrative Law

Scope, content and ambit of Administrative Law

Administrative Law deals with the structure, powers and functions of the
organs of administration; the limits of their powers; the methods and
procedures followed by them in exercising their powers and functions; the
method by which their powers are controlled including the legal remedies
available to a person against them when his rights are infringed by their
operation.
Necessity
It has to be accepted as necessary evil in all progressive societies, particularly in
a welfare State where many schemes for the progress of society are prepared
and administered by the government. So the administrative process has come
to stay.

Reconciliation of Social Welfare with the Rights of Individual Subjects

The execution and implementation of the progressive schemes may adversely
affect the rights of citizens. The actual problem is to reconcile social welfare
with the rights of the individual subjects.
As has been rightly observed by Lord Denning-
“Properly exercised, the new powers of the executive lead to the welfare State;
but abused they lead to the Totalitarian State.”

American Approach to Administrative Law

As per Kenneth Culp Davis- Administrative Law is the law concerning the
powers and procedures of Administrative agencies, including especially the law
governing judicial review of administrative action.
 According to him an administrative agency is a governmental authority
other than a court and other than a legislative body which affects the rights of
private parties through either adjudication or rule -making.

Modern British Approach to Administrative Law

As per Sir Ivor Jennings: Administrative Law is the law relating to the
administration. It determines the organization, powers and duties of
administrative authorities.
(Jennings, THE LAW AND THE CONSTITUTION 217 5th ed., 1959)
This is the most commonly accepted view and has been adopted, with slight
changes by many leading scholars of today.

Comparison between British & American Approach and Necessity of Fair

Procedures
The British Administrative Law does not lay so much emphasis on procedures of
administrative bodies as does the American Administrative Law. It is however
necessary to underline the importance of procedures in Administrative Law.
The current thinking is that procedures have great significance in
Administrative Law because proper procedures are necessary for proper
Discharge of administrative powers.
Evolution of fair procedures is thus necessary to minimize the abuse of
administrative powers.
Therefore the basic question at the present time is: how can
the legal ideas of fair procedure and just decision be infused into the
administrative powers of the state?

Concluding Remarks
In modern onslaught of administration, the individual is affected in many ways in
the name of “public good” and “public interest”. The individual is in the weakest
defensive position against the mighty power of the administration. It is, therefore,
important function of the Administrative Law to ensure the government’s powers
are exercised according to law, on proper legal principles,
according to the rules of reason and justice; and not on the mere caprice or whim
of the administrative officers, and that the individual has adequate remedies when
his rights are infringed by the administration.

Separation of Powers
Importance for Administrative Law
Introduction
“If the ‘rule of law’ as enunciated by Dicey hampered the recognition of
Administrative law in Britain, for a while, the doctrine of ‘Separation of Powers’
had an intimate impact on the growth of administrative process and
Administrative Law in the United States.” –as M.P. Jain and S.N. Jain is of the
opinion.
Davis also stated (in Administrative Law Treatise, Vol. I 1958),
“Probably the principal doctrinal barrier to the development of the
administrative process has been the theory of separation of powers”.
It is generally accepted that there are 3 main categories of governmental
functions: 1) the legislative 2) the executive and 3) the judicial. Likewise, there
are 3 main organs of the government in a State: 1. the Legislature 2. the Executive
and 3. the Judiciary.
According to the theory of Separation of Powers, these 3 powers and
functions of the government must, in a free democracy, always be kept separate
and be exercised by 3 separate organs of the government.

Historical Background
The doctrine of separation of powers has emerged in several forms at
different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th
centuries, French philosopher John Bodin and British politician Locke expressed
their views about the theory of Separation of Powers. But it was Montesquieu
who for the first time formulated this doctrine systematically, scientifically and
clearly in his book Esprit des Lois 1748.
Montesquieu’s Doctrine
He opined-
When the legislative and executive powers are united in the same person, or in
the same body of magistrates, there can be no liberty, because apprehension may
arise, lest the same monarch or senate should enact tyrannical laws, to executive
them in a tyrannical manner. Again there is no liberty if the judicial power be not
separated from the legislative and the executive powers. Were it joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary
control, for the judge would then be the legislator. Were it joined with the
executive power, the judge might behave with violence and oppression.
Miserable indeed would be the case, were the same man or the same body,
whether of the nobles or of the people, to exercise those 3 powers, that of enacting
laws, that of executing the public resolutions and that of judging the crimes or
differences of individuals.
Effect of the Doctrine
The doctrine of separation of Powers as propounded by Montesquieu had
tremendous impact on the development of administrative law and functioning of
governments.
It was appreciated by English and American jurists and accepted by politicians.
Blacksone in his book Commentaries on the Laws of England (1765) observed
that if legislative, executive and judicial functions were given to one man, there
was an end of personal liberty.

The Constituent Assembly of France declared in 1789 that there would

be nothing like a Constitution in the country where the doctrine of Separation of
Powers was not accepted.
Defects
Though, theoretically, the doctrine of separation of powers was very sound, many
defects surfaced when it was sought to be applied in real life situations. Mainly,
the following defects were found in this doctrine:
1. There was no separation of power under the British Constitution. According to
Prof. Ullman “England was not the classic home of separation of powers.”
Donoughmore Committee also observed that in the British Constitution there is
no such thing as the absolute separation of the legislative, executive and judicial
powers.
2. This doctrine is based on the assumption that the three functions of the
Government are independent of and distinguishable from one another. But in fact,
it is not so. There are no watertight compartments.
3. It is impossible to take certain actions if this doctrine is accepted in its entirety.
For example, if the legislature can only legislate, then it can not punish anyone
committing a breach of its privilege. The Courts can not frame rules of procedure
to be adopted by them for the disposal of cases. Separation of powers thus, can
only be relative not absolute.
4. The modern State is a welfare State and it has to solve complex socio-economic
problems. As per Frankfurter J. “Enforcement of a rigid conception of separation
of powers would make modern government impossible.”
5. As per the modern approach to the doctrine the discretion must be drawn
between “essential” and “incidental” powers and one organ of the government can
not usurp or encroach upon the essential functions belonging to another organ, but
may exercise some incidental functions thereof.
6. Fundamental object behind Montesquieu’s doctrine was liberty and freedom of
an individual, but that can not be achieved by mechanical division of functions
and powers. For freedom and liberty it is necessary that there should be rule of
law and impartial and independent judiciary and eternal vigilance on the part of
the subjects.
Importance
In the strict sense the Doctrine of Separation of Powers is undesirable and
impractical, therefore it is not fully accepted in any country. The object of the
doctrine is –to have a government of law rather than of official will or whim.
The most important aspect of the doctrine is judicial independence
from administrative discretion. “There is no liberty, if the judicial power be not
separated from the legislative and executive.” Friedmann (1996)
Doctrine in Practice
1. In United States- the doctrine has been accepted and strictly adopted by
the founding fathers of the U. S. Constitution and is considered to be the
heart of the Constitution
There the legislative powers are vested in the Congress, the executive
powers in the President and the judicial powers in the Supreme Court and the
court subordinates there to. While drafting American Constitution the Doctrine
was adopted but with the growth of administrative process, the rigours of the
doctrine have been relaxed. The President now performs legislative functions by
sending messages to the congress and by exercise of the right of veto. The
Congress has judicial power of impeachment and the Senate exercises executive
powers in considering treaties and in making certain appointments. The Congress
has delegated legislative powers to various administrative authorities and
regulatory agencies and these bodies exercise various functions.
2. In England- Although Montesquieu based his doctrine of separation of powers
taking into account the British Constitution, as a matter of fact at no point of
time was this doctrine accepted in its strict sense in England.
Though the three powers are vested in three organs and each has its own
peculiar features, it cannot be said that there is no “sharing out” of the powers of
the government. For Ex. the Lord Chancellor is the Head of the Judiciary,
Chairman of the House of Lords (Legislature), a member of the executive and
often a member of the Cabinet.
The Judges exercise executive functions under the Trust Act and in
supervision of wards of court and also legislative functions in making rules of
courts regulating their own procedure.
The House of Commons is not exclusively concerned with legislative activities,
as it exercises judicial powers also in cases of breach of its own privileges.
Indian Position
Relevant cases –
Golak nath v. State of Punjab AIR 1967 SC 1643
Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
Ram Jawaya Kapur v. State Of Punjab AIR 1955 SC 549
Supreme Court Advocates-on records Assn. v. Union of India (2016) 5 SCC 1
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

Tortious Liability of the State Basis-

Vicarious Liability
Tortious Liability depends on the Doctrine of Vicarious Liability

The State is a Legal entity and not a living personality, it has to act through
human agency, i.e. through its servants. When we discuss the tortious liability of
the State, it is really the liability of the state for the tortious acts of its servants
that has to be considered.

In other words, it refers to the situation when the State can be held
vicariously liable for the wrongs committed by its servants or employees.

Basis of Vicarious Liability

The master may be held liable vicariously for act or omission of another person
(torts committed by his servant) in the course of employment.

The doctrine of Vicarious liability is based on 2 maxims:

1. Respondeat superior (let the principal be liable)

2. Qui facit per alium facit per se (he who does an act through another does it
himself)

Indian Position in Historical Background

In India “king can do no wrong” was never fully accepted.
Absolute immunity of the Government was not recognised in the
Indian Legal system in the past. Kings were always subject to
the rule of law and to the system of justice prevalent at the
time. According to Manu, it was the duty of the king to uphold
the law as he himself was subject to law like any other ordinary
citizen.

Sovereign and non-sovereign functions

Before commencement of the Constitution- Since East India Company had dual
character, (i. a trader ii. As a sovereign) distinction was sought to be made
between “sovereign functions” and “non sovereign functions” of the State.
Whereas in respect of the former, the company was liable in tort, in respect of the
latter, it was not.

P O Steam Navigation Co. v. Secretary Of State

This case of 1868 is considered to be the 1st leading decision of the Calcutta High
Court on the point.

In that case a servant of the plaintiff company was taking a horse driven carriage
belonging to the Company. While the carriage was passing near the government
dockyard, certain workmen employed by the government, negligently dropped an
iron piece on the road. The horses were startled and one of them was injured.

The plaintiff company filed a suit against the defendant and claimed Rs. 350 as
damages. The defendant claimed immunity of the Crown and contended that the
action was not maintainable.

The Calcutta High Court held that the action against the defendant was
maintainable because the East India Company was not sovereign in function and
awarded the damages.

Secretary of State for India v. Hari Bhanji 1882

In this case the plaintiff had to pay enhanced rate of excise duty on salt because of
delay in transit by employees of Port Authorities. The plaintiff sued the defendant-
State to recover the said amount. The defendant claimed immunity.

The court held that distinction based on sovereign and non-sovereign function of
the company was not well founded . The correct test was whether the act could be
said to be an “act of State” subject to the province of Municipal Law.

After Commencement of the Constitution

State of Rajasthan v. Vidyawati AIR 1962 SC 933, a jeep was owned and
maintained by the State of Rajasthan for the official use of the collector of a
district. Once the driver of the jeep was bringing it back from the workshop after
repairs. By his rash and negligent driving of the jeep a pedestrian was knocked
down. He died and his widow sued the driver and the State for damages.
Constitution Bench of the SC held the State vicariously liable for rash and
negligent act of the driver.

Kasturi Lal Ralia Ram Jain v. State of U.P. AIR 1965 SC 1039
In this very case certain quantity of gold and silver was seized by police
authorities from one R on suspicion that it was stolen property. It was kept in
government malkhana which was in the custody of a Head constable. The Head
Constable misappropriated the property and fled to Pakistan. R was prosecuted
but acquitted by the court. A suit for damages was filed by R against the State for
the loss caused to him by the negligence of police authorities of the State. The
suit was resisted by the State. Following the ratio laid down in P O Steam
Navigation Co. case S. C. held that the State was not liable as police authorities
were exercising sovereign functions.
Some other Important and Relevant cases

State of Gujarat v. Memon Muhammed Haji Hasan AIR 1967 SC 1885

N. Nagendra Rao v. State of A.P. AIR 1994 SC 2663

Shyam Sunder v. State of Rajasthan AIR 1974 SC 890

Railway board v. Chandrima Das AIR 2000 SC 988

Observation of the Law Commission

Correct Proposition of Law on the subject is observed by the Law
Commission in such a way as following:
There is no convincing reason why the Government should not
place itself in the same position as a private employer subject to the
same rights and duties as are imposed by statute.

Tribunalisation in India
Decision-making or Adjudicatory Power of the
Administration
Need for Administrative Adjudication
Administrative decision making is a by-product of an intensive form of
government and consequential socialisation of law.Vast expansion of State activity
has taken place in India since 1947. Though on the day of Independence the
political battle was won, but the war against poverty, illeteracy and disease had
just started. The government embarked on ambitious, massive plans of public
health, education, planning social security, transport, agriculture, industrialisation
and national assistance. It was impossible to carry out these programmes and
determine the legal questions involved therein with the assistance of law courts
because of their highly individualistic and ritualistic approach. Therefore, if social
control over this area of action was desirable, administrative decision making was
the only answer. Another practical reason for the growth of administrative
decision making was the desire to provide a system of adjudication which was
informal, cheap and quick. Litigation before a court of law is not only time
consuming but is a luxury of the rich. The Supreme Court lamented on the
failure of Justice in Mahabir Jute Mills v. Shibban Lal Saxena (AIR 1975 SC 2057)
where after a long-drawn out legal battle, the case was finally decided after a
period of 25 years, when most of the 400 persons who claimed justice on the
ground of wrongful dismissal had died, and the new appointees in their place had
completed 25 years of service. Therefore as it become clear that the weight of
social legislation would be intolerable, both for people and the Court, the burden
had to be shared by the administrative adjudicatory system.