Administrative law presentation

Administrative law is the body of law that governs the activities of administrative
agencies of government. Government agency action can include rulemaking,
adjudication, or the enforcement of a specific regulatory agenda. Administrative
law is considered a branch of public law. As a body of law, administrative law
deals with the decision-making of administrative units of government (for example,
tribunals, boards or commissions) that are part of a national regulatory scheme in
such areas as police law, international trade, manufacturing, the environment,
taxation, broadcasting, immigration and transport. Administrative law expanded
greatly during the twentieth century, as legislative bodies worldwide created more
government agencies to regulate the social, economic and political spheres of human
interaction.

Definition by Ivor Jennings

According to Ivor Jennings in his "The law and the constitution, 1959",
"administrative law is the law relating to the administrative authorities".

This is the most widely accepted definition, but there are two difficulties in
this definition.
(1) It is very wide definition, for the law which determines the power and
functions of administrative authorities may also deal with the substantive aspects
of such powers.
For example:- Legislation relation to public health services, houses, town and
country planning etc.. But these are not included within the scope and ambit of
administrative law and
(2) It does not distinguish administrative law from constitution law.

Administrative Action
Administrative action is the residuary action which is neither legislative nor
judicial. It is concerned with the treatment of a particular situation and is
devoid of generality. It has no procedural obligations of collecting evidence and
weighing argument. It is based on subjective satisfaction where decision is based
on policy and expediency. It does not decide a right though it may affect a right.
However, it does not mean that the principles of natural justice can be ignored
completely when the authority is exercising “administrative powers”. Unless the
statute provides otherwise, a minimum of the principles of natural justice must
always be observed depending on the fact situation of each case.
In case A.K. Kraipak v. Union of India[ii] , the Court was of the view that in
order to determine whether the action of the administrative authority is quasi-
judicial or administrative, one has to see the nature of power conferred, to whom
power is given, the framework within which power is conferred and the consequences.
Administrative action may be statutory, having the force of law, or non-statutory,
devoid of such legal force. The bulk of the administrative action is statutory
because a statute or the Constitution gives it a legal force but in some cases it
may be non-statutory, such as issuing directions to subordinates not having the
force of law, but its violation may be visited with disciplinary action. Though by
and large administrative action is discretionary and is based on subjective
satisfaction, however, the administrative authority must act fairly, impartially
and reasonable.
Grounds for Judicial Review of Administrative Actions are 1. Illegality
2. Irrationality
3. Procedural impropriety
4. Proportionality

Private Law Review

The action of awarding contract by a public authority falls within the purview of
public law but the terms of contract regarding rates, time specified for completion
of work and other similar condition in the contract between public authority and
the private individual as also the quantum of damages for breach of the contract,
all fall within the purview of private law in respect of which no judicial review
will be permissible.
Thus, grant of licences, imposition of fees, classification of land, rules relating
to dealership of essential commodities, etc. which fall within the domain of public
law, can be the subject-matter of judicial review. Judicial review should not be
mistaken for the appeal. The right of appeal is a statutory right which can be
invoked when it is so provided in the relevant Act whereas the right to seek
judicial review is available even when there is a finality clause or ouster clause
in an Act that the order passed by an authority thereunder is final and shall not
be questioned in a court of law or that the civil court has no jurisdiction to
entertain a suit in respect of any matter required to be dealt with by the
authority under the Act. In the face of such a provision in any Act, an ordinary
civil court has no jurisdiction to entertain a suit for adjudication of any
question arising under such an Act but the extraordinary jurisdiction of the High
Courts and the Supreme Court, conferred by the Constitution, is not barred. Chandra
Kumar case[xvii] is a glaring example.
One important aspect to be borne in mind is that in judicial review the courts are
mainly concerned with the competence of the authority and the mode in which the
authority takes the decision and not the decision taken by the authority. They are
not concerned with the merits of the decision. The courts do not substitute their
opinion or decision in place of the impugned decision of the authority but in
appeal the appellate court does have the power to consider the merits of the case
and substitute its own decision for that of the subordinate court or tribunal. It
is profitable to be apprised of the words of Lord Hailsham L.C., in the case of
Chief Constable of N.W.[xviii]: "Judicial review is concerned not with decision but
with decision-making process. Unless that restriction on the power of court is
observed, the court will under the guise of preventing the abuse of power, be
itself guilty of usurping power."
STATUTORY JUDICIAL REMEDIES
Apart from the Constitutional remedies contained in Arts. 32, 136, 226 and 227,
certain statutes also provide for seeking remedies through the Courts by aggrieved
persons against the administration. These statutory judicial remedies are of two
types:
(i) general statutory remedies;
(ii) specific statutory remedies provided by specific statutes for agitating
questions thereunder.
The latter may take several forms. The purpose of this chapter is to discuss some
of these statutory judicial remedies available against administrative bodies.
(i)GENERAL STATUTORY REMEDIES
The classical remedy which a person has to vindicate his legal right against an
administrative authority is by way of filing a civil suit in a Court claiming the
proper relief. Although with the institution of the writ system by the
Constitution, the importance of this remedy has been devalued, yet it has not lost
all its significance, and may have to be taken recourse to by a person affected by
an administrative action if desires a relief which he may not possibly get by
invoking
the writ jurisdiction. For example, a writ is not available to enforce payment of
money or a claim for damages accruing from a civil liability and such a matter is
better determined through a civil suit may also be preferable to a writ petition
when determination of a claim against the administration involves decision on
questions of fact on the basis of evidence produced by the parties. The High Courts
are extremely reluctant to undertake such a task in writ proceedings and hence a
suit may have to be filed in such a situation.

Scope and Extent of Private Law Review

The general rule of law is that when an infringement of a legal right is alleged, a
cause of action arises, and unless there is a bar to the entertainment of the suit,
the ordinary civil courts are bound to entertain the claim. To enable a person to
file a civil suit s. 9 of the Code of Civil Procedure provides that the Courts
shall have jurisdiction to try "all suits of civil nature excepting suits of which
their cognizance is either expressly or impliedly barred." This provision confers
jurisdiction on civil courts to hear and decide all disputes of a civil nature. But
this is circumscribed by the rider that a suit barred expressly or implicitly may
not lie. A suit may be barred impliedly or expressly by a statute against
administrative authority. Further suits against the Government for damages arising
out of a tort or breach of a contract though could be filed under s. 9, C.P.C., are
subject to a few constitutional restrictions and this matter is again examined in
the next two chapters. If there is no implied or express bar, a civil suit can be
filed against an administrative authority and proper relief sought against it. For
example, a suit may be filed for refund of tax which has been paid under a law,
which is later declared unconstitutional and the plaintiff has not passed on the
burden of tax to others.[lxiii]
In many situations involving wrongs done to persons by administrative authorities,
damages may not be an appropriate remedy, or the person concerned may be more
interested in making the administration comply with the law in question so that
either it desists from taking, an action which may be injurious to the person
concerned, or it rights a wrong done to him. Suits for injunctions and declarations
under the Specific Relief Act, 1963 are the remedies appropriate to achieve the
desired ends. These remedies have been considered below.
The remedies mentioned here, viz.; a civil suit to claim damages, or a suit for an
injunction or a declaration, are essentially private law remedies which have been
pressed into service in the area of public law as well.

Types of Private Law Review

Private Law Review as we have already seen, covers all judicial reviews except
Public Law Reviews whose remedies are mostly by way of writs. The remedies of
Private Law Reviews are ordinary or equitable remedies. They may be classified as:

01. Injunctions
02. Declarations
03. Action for Damages
04. Other Remedies

01. Injunction
An injunction is a preventive remedy. It is a judicial process by which one who has
invaded or is threatening to invade the rights of another is restrained from
continuing or commencing such wrongful Act. In India, the law with regard to
injunctions has been laid down in the Specific Relief Act, 1963. Injunction may be
prohibitory or mandatory.
Prohibitory Injunction
Prohibitory injunction forbids the defendant to do a wrongful act, which would
infringe the right of the plaintiff. A prohibitory injunction may be interlocutory
or temporary injunction or perpetual injunction.
Interlocutory or temporary injunction
Temporary injunctions are such as to continue until a specified time or until the
further order of the court. (S. 37 for the specific Relief Act). It is granted as
an interim measure to preserve status quo until the case is heard and decided.
Temporary injunction may be granted at any stage of a suit. Temporary injunctions
are regulated by the Civil Procedure Code. Temporary injunction is provisional in
nature. It does not conclude or determine a right. Besides, a temporary injunction
is a mere order. The granting of temporary injunction is a matter of discretion of
the court.
Perpetual injunction
A perpetual injunction is granted at the conclusion of the proceedings and is
definitive of the rights of the parties, but it need not be expressed to have
perpetual effect, it may be awarded for a fixed period or for a flexed period with
leave to apply for an extension or for an indefinite period terminable when
conditions imposed on the defendant have been complied with; or its operation may
be suspended from a period during which the defendant is given the opportunity to
comply with the conditions imposed on him, the plaintiff being given leave to reply
at the end of that time. Mandatory injunction
When to present the breach of an obligation, it is necessary to compel the
performance of certain acts which the court in capable of enforcing, the court may
in the discretion grant an injunction to prevent the breach complained of an also
to compel performance of the requisite acts. (S. 39 of the Specific Relief Act.)
The mandatory injunction may be taken as a command to do a particular act to
restore things to their former condition or to undo, that which has been done. It
prohibits the defendant from continuing with a wrongful act and also imposes duty
on him to do a positive act. For example construction of the building of the
dependent obstructs the light for which the plaintiff is legally entitled. The
plaintiff may obtain injunction not only for restraining the defendant from the
construction of the building but also to pull down so much of the part of the
building, which obstructs the light of the plaintiff.

02. Declaration (Declaratory Action & Declarations under Specific Relief Act)

Declaration may be taken as a judicial order issued by the court declaring rights
of the parties without giving any further relief. Thus a declaratory decree
declares the rights of the parties. In such a decree there is no sanction, which an
ordinary judgment prescribes same sanctions against the defendant. By declaring the
rights of the parties it removes the existing doubts about the rights and secures
enjoyment of the property. It is an equitable remedy. Its purpose is to avoid
future litigation by removing the existing doubts with regard to the rights of the
parties. It is a discretionary remedy and cannot be claimed as a matter of right.

Declaratory Action

A declaratory action or decree denotes that action of the Court wherein it declares
the rights of the parties without living further relief. It differs from an
ordinary judgment which can be enforced through execution proceedings. A
declaratory judgment does not prescribe any sanction against the defendant. The
rationale behind such a judgment is that coercion is not always necessary for
obeying a verdict of a court and often the parties would obey the law without any
sanction. This is particularly true of public authorities. If the existing doubt
regarding the legal rights is removed, then it can be supposed that public
authorities would act according to law. In fact, every decision against the
government is a sort of declaration because it is up to it to obey the same or not,
the judiciary possessing no physical power of its own to enforce obedience.
The purpose of declaration is to avoid future litigation by removing existing
causes or controversies.

Declarations under Specific Relief Act

S. 34 of the Specific Relief Act, 1963 provides that any person entitled to any
legal character, or to any light as to any property, may institute a suit against
any person, denying, or interested to deny, his title to such character or right,
and the Court may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any further relief. No
court would, however, make any such declaration where the plaintiff, being able to
seek further relief than a mere declaration of title, omits to do so. To seek a
declaration, therefore, two things are essential:
(1) The plaintiff is entitled to any legal character, or any right as to any
properly, and the same is being denied by any person.
(2) The plaintiff is not able to seek further relief in addition to declaration.
But if he is able to seek a further relief, then the Court would not grant a mere
declaration.
Under s. 35 of the Act, a declaration made by the court is binding only on the
parties to the suit and persons claiming through them.

03. Action for Damages

If any injury is caused to an individual by wrongful or negligent acts of the

Government servant the aggrieved person can file suit for the recovery of damages
from the Government concerned. This aspect of law has been discussed in detail
under the topic liability of Government or state in torts.

Damages are available as a remedy in judicial review in limited circumstances.

Compensation is not available merely because a public authority has acted
unlawfully. For damages to be available there must be either:
(a) A recognized ‘private’ law cause of action such as negligence or breach of
statutory duty or;
(b) A claim under Human Rights Act.
(c) Any another legally recognized right.
The formula that no suit shall lie for anything done or purported to be done in
good faith under the Act has been held to include an 'omission' as well.Sec 117 of
the Factories Act, 1948 provides indemnity in respect of 'anything done or intended
to be done under this Act'. It was held that protection conferred can only be
claimed by a person who can plead that he was required to do or omit to do
something under the Act or that he intended to comply with any of its provisions.
The clause cannot confer immunity in respect of actions which are not done under
the Act but are contrary to it.This formula bars suits for damages and compensation
for administrative acts done under the Act. In this connection, the Bombay Port
case may be referred to.
The plaintiff had imported certain goods. The Bombay Port Trust delivered a part of
the goods to the plaintiff but could not deliver the rest as they were not
traceable. He brought a suit after the six-month time limit. As stated earlier, the
court had ruled that “omission to do an act" was covered by the expression "act
done". The plaintiff argued that the failure to do what the Act mandated: the Port
Trust to do, viz., to deliver the goods goods, could not be "in pursuance of this
Act." It was held that though the authority might have neglected to comply with the
law, yet the ouster clause gave protection to it, as the act of non-delivery was in
the discharge of official duty under the Act. There has to be a reasonable or
legitimate connection between the act or omission and the discharge of official
duty. The short delivery of the goods was in purported exercise of the bailee's
obligation under the Act and was covered by s. 87.
The ouster clause will not cover the case of breach of contract. In Bombay Housing
Board v. Karbhase Naik & Co.it was held that non-payment of an amount of money due
to the respondent on the basis of breach of contract between him and an
administrative authority could not be said to be an act done or purported to be
done in pursuance of the Act under which the said authority functions but is an act
under the contract. While the authority may have entered into the contract in
pursuance of the Act, the breach of contract cannot be regarded as having any
reasonable connection with any duty cast upon the authority by the Act. Therefore,
the privative (ouster) clause would not apply. Similarly, the ouster clause will
not prevent a person from suing the government for the recovery of the price for
the goods supplied to it, under s. 70 of the Indian Contract Act, 1872.

04. OTHER REMEDIES

Specific Statutory Remedies
Apart from the general remedies mentioned above, a statute imposing a specific
obligation on a person, or conferring power on an administrative body, may provide
a specific mechanism of its own to invoke the jurisdiction of a Court in some way
at some stage of the proceedings for some purposes.
For example, s. 18 of the Land Acquisition Act, 1894 enables a person, whose land
has been acquired, but who has not accepted the award of compensation for the same,
by written application to the collector, to "require that the matter be referred by
the collector, for the determination of the court." He may claim this right whether
his objection be to the measurement of the land, or the amount of compensation, or
the persons to whom it is payable, or the apportionment of the compensation amongst
the persons interested. After a reference by the collector to the court, the matter
assumes a judicial complexion. The Court may award any compensation between the
amount awarded by the collector and the amount claimed.[cxxix] Whenever such an
application is made to the Collector to make a reference of the question of
compensation to the court, it is the duty of the collector to make the reference
unless there is a valid ground for rejecting the application, as for instance, it
is time barred.[cxxx] The condition regarding limitation is a sine qua non for a
valid reference by the collector. It would, therefore, appear that when a person
concerned makes a request to the collector to make a reference to the court for
determining the question of compensation, and if the collector does not take any
action on it, the person concerned would be entitled to go to the High Court under
Art. 226 for a writ of mandamus asking the collector to discharge a duty which he
is bound to do under the law. The collector's duty to make the reference is
mandatory and not discretionary unless he has a valid ground to refuse to make the
reference. In a case where the compensation is determined by Land Acquisition
Officer on account of acquisition of land, on filing of an application under
Section 18 of Land Acquisition Act, 1894 by the claimant, the Collector is under an
obligation to make a reference.

CONCLUSION
Originally, though more powerful and available to the common man than
constitutional remedies, equitable remedies had played a great role in bringing in
their life the light of justice through equitable remedies. However, when Indian
Judiciary became more powerful by issuing writs frequently and without delay, the
comparatively complicated procedure in ordinary remedies of Private Law Review made
it unattractive. However, there are certain areas where Judiciary reserves writs
and allows ordinary remedies. In such areas the importance of Private Law Review as
explained above is greatly appreciated.
The reluctance of the Higher Judiciary to look into facts, where administrative
action is challenged, and the concept that remedy is not a matter of right even
where administrative action is found defective, when combined with the notion of
issuing prayed remedies to the aggrieved parties only in grave violations of
procedure, and the acceptance of the discretionary power of administrative action
and the denial of prayer on the ground of expenditure of public moneys, very often
compel the aggrieved party to resort to Private Law Reviews.
If our courts could avoid inordinate delay in pronouncing their final judgments in
suits for injunctions, declarations, damages and other remedies, administrative
action may be challenged more easily, through established ordinary legal procedure.