Answer:- Nature of administrative action- An administrative act is
a discretionary one. It involves the discretion of the administrative authority
who is required to do the act. This
discretion is governed by the consideration of public policy or by a defined
statement of policy which the administrative authority is required to
effectuate while exercising its power. There should be a judicial application of
policy. Some illustrations of wide powers of purely administrative nature may
be noted here. Under the Requisitioning and Acquisition of Immovable Property
Act, 1932, the Central Government is authorized to requisition private immovable
property for the “purposes of the Union”. But the term “ for the purposes of
the Union” has not been defined. Thus a large amount of discretion has been
vested in the Government for the requisition of private property for a purpose
deemed necessary by it. Here it is an instance for purely administrative act.
Under East Punjab Public Safety Act, 1949, the state Executive is authorized to
extern a person from a particular area on its subjective satisfaction, to the
effect that it was necessary to do so to prevent him from acting in a manner
prejudicial to public safety of maintenance of public order. Thus we find that
here an administrative act involved the element of subjective satisfaction.
Again the element of subjective satisfaction is deemed necessary as an
administrative order of detention of any person under Preventive Detention Act
in certain circumstances.”Section 3 of the Bombay Land Requisition Ordinance
permitted the Bombay Government, if in its opinion, it was necessary or
expedient to do so, to make an order in writing to requisition of any land for
any public purpose.” It was held by the Supreme Court in Province of Bombay v. Khusaldas Advani, [A.I.R. 1950 S.C. 222] that
whether an order of requisition was necessary or expedient or not in a
particular case is a matter of ‘subjective’ opinion for the Government. Also
the decision of the Government about ‘public purpose’ was an administrative
act.
Thus the elements of discretion are
the determining features of an administrative action. Merits of the exercise or
discretion are immune from judicial review. The well-known case of Radhey Shyam v. State of M.P.[A.I.R. 1959
S.C. 107] is noteworthy. There were complaints of maladministration of the
affairs of the Municipal Committee of Dhamtari in Madhya Pradesh. An enquiry
was held by Additional Deputy Collector into those complaints. Later the State
Government taking action under Section 53-A of the C.P. Berar Municipalities
Act, 1922 appointed an Executive Officer of the Committee. This action of the
Government was challenged in the courts. Under the said section the Government
was authorized to appoint an Executive Officer of the Committee if it was not
competent to perform its duties and if the State Government considered that a
general importance in the Municipal Administration is likely to be secured by
such appointment. The Supreme Court by a majority refused to interfere. Chief
Justice Das, held that the action taken by the Government was an administrative
action: It is up to the State Government to decide propriety of the appointment
of an executive officer. Therefore such a provision involved the element of
discretion and hence was an administrative act.
There are three requisites each of which must be fulfilled in order that an act
of the body may be quasi-judicial act, namely, that the body of persons (1)
must have legal authority; (2) to determine question affecting the rights of
subjects, and (3) must have the duty to act judicially. These tests were
approved in Radheyshyam v. State of M.P., [A.I.R. 1959 S.C. 107].
“The test for ascertaining whether an
act authorized by the Statute is a quasi-judicial act or an administrative act
whether the Statute has expressly or impliedly imposed upon the statutory body
a duty to act judicially.” It is in regard to this element that great
uncertainty exists because the difficulty arises in determining in what
circumstances it may be said that the duty to act judicially is impliedly
imposed. Many a time the distinction becomes very fine and courts finds it
difficult to determine whether the last test is met out. The question whether
or not there is a duty to act judicially must be decided in each case in the
light of the circumstances of particular case and the construction of
particular Statute with the assistance of general principles laid down in judicial
decisions. In Khusal Das Advani’s case,
[A.I.R. 1950 S.C. 222], two propositions for ascertaining if the authority
is required to act judicially are well established:-
(1) In absence of anything to the contrary in
the Statute, it is the duty of the authority to act judicially and the decision
of authority is quasi-judicially act; or
(2) If the statutory authority has power to do
any act which would prejudicially affect the subject, then, although there are
not two parties apart from the authority and the contest is between the
authority proposing to do the act and the subject opposing it, the final
determination of the authority will be quasi- judicial act provided the
authority is required by the Statute to act judicially.
Now, the question arises as to when
it said that a duty to act judicially is imposed by the Statute. In Khushal Das Advani’s case, [A.I.R. 1950
S.C. 222] it was concluded that the essentials of judicial procedure need
only be prescribed. This consist in giving an opportunity to the party which is
to be affected by an order to make a representation, making some kind of
enquiry, hearing and weighing evidence, if any, affecting the rights of one or
more parties. On the other hand, an administrative act is one which can be made
on subjective opinion or discretion of the authority and not on the objective
facts established upon enquiry held by the authority, after the giving of
opportunity to the affected parties to put their case.
In the above-noted case Kania, C.J., said that “the contention
that whenever there is a determination of a fact which affects the rights of
the parties, the decision is quasi-judicial, does not appear to be sound. It is
broadly stated that when the fact is to be determined by an objective test and
when the decision affect the rights of some one the decision or act is
quasi-judicial. This last statement overlooks the aspects that every decision of
the Executive generally is a decision of fact and in most cases affects the
rights of some one or the other. As the executive authority is to determine
certain objective facts it does not follow that it must determine those facts
judicially.
In Radhey Shyam v. State of M.P., [A.I.R. 1959 S.C. 107] Supreme Court
again upheld the above principle. The Court held that the mere fact that a
question of facts has to be determined as a preliminary condition before action
can be taken under the Statute by itself does not necessarily imply that the
State Government is required to act judicially. There must be some indications
in the Statute as to the manner or mode in which the preliminary fact is to be
determined.
In Gullapalli v. Andhra, R.T.C, [A.I.R. 1959 S.C. 308]the Supreme
Court by majority has held on the above principles that the hearing given by
the Government under Section 68(d) of the Motor Vehicles Act (read with rules)
is of quasi-judicial nature. In the instant case the Andhra Pradesh State
Transport Undertaking published a scheme of nationalization of motor transport
in the State under Section 68© of the Act. Objections to the scheme were
invited and hearing held by the Secretary of the Transport Department under
Section 68(d). The Supreme Court characterized the hearing as quasi-judicial
and not administrative.
Similarly in Shanker Lal v. Shanker Lal, [AIR 1965 SC 501], Justice Ayyanger has
observed correctly about the distinction between administrative and judicial
acts in this way :-
“We conceive that an administrative
order would be one which is directed to the regulation or supervision of
matters as distinguished from an order which decides the rights of parties or
confers or refuses to confer rights to property which are the subject of
adjudication before the court. One of the tests would be whether a matter which
involves the exercise of discretion is left for the decision of authority
particularly if that authority be a court and if the discretion has to be
exercised on objective, as distinguished from purely subjective consideration,
it would be a judicial decision.”
The main grounds on which a function
is held to be quasi judicial are that there is lis inter partis and administrative authority is required to be
adjudicated upon the lis. In such cases the authority will be regarded as
acting in a quasi- judicial manner.
The Supreme Court in A.K. Kraipak v. Union of India, (AIR 1970
S.C. 150), brought a change. The Court held: “The dividing line between an
administrative power and quasi-judicial power is quite thin and is gradually
obliterated; for determining whether a power is administrative power or quasi-judicial
power one has to look to the nature of the power conferred, the people or
person on whom it is conferred, the framework of the law conferring that power,
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.
The Procedure which are considered
inherent in the exercise of a judicial power are merely those which facilitate
if not ensure a just and fair decision. In recent years the concept of
quasi-judicial power has been undergoing a radical change. “What was considered
as an administrative power some years back is now being considered as a
quasi-judicial power.”
In Ashok Kumar Yadav v. State of Haryana, A.I.R. 1987 S.C 454 The
Supreme Court of India once more extended the principles of natural justice to
administrative actions. In this case Supreme Court held that the doctrine of
bias, which is a natural justice principle, is applicable to administrative
bodies. This rule is not confined to cases where judicial power strict in sense
is exercised.
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