ADMINISTRATIVE LAW

PART-I
Administrative law is not a codified, written or well defined law
like Contract Law, Penal Code ,T.P.Act, Evidence Act or Constitution
of India etc.

It is essentially unwritten, uncodified or judge made law. It has

developed slowly on the wake of factual situations before courts. In
a welfare state, administrative authorities are called upon to
perform not only executive acts but also quasi legislative and quasi
judicial functions. They use to decide rights of the parties and has
become fourth branch of government, a government in miniature.
A person adversely affected by any action of administrative
authority has right to challenge such action in an appropriate body
or a court of law even if no remedy is provided by a statutory
enactment or the action taken by such authority is treated as final,
an aggrieved party may invoke articles 226,227, 32 or 136 of the
Constitution for redressal of his grievances. Administrative law is
thus based on the well known legal maxim ‘ubi jus ibi rememdium’
(where there is aright there is a remedy).
Definition of Administrative Law
It is indeed difficult to evolve a scientific precise and satisfactory
definition of administrative law. Many jurist have made attempt to
define it. But none of the definitions has completely demarcated
the nature, scope and content of administrative law. Either the
definitions are too broad and include much more than necessary or
they are too

1
broad and include much more than necessary or they are too
narrow and do not include all essential ingredient.
Ivor Jennings defined administrative law in the following words:-
Administrative Law is the law relating to administration. It
determines the organisation, powers and duties of the
administrative authorities. This is most widely accepted
definition, but according to Griffith and Street, there are two
difficulties.
(a) It does not distinguish administrative law from constitutional
law and
(b) It is very wide definition for the law which determines the
powers and functions of administrative authorities may also
deal with the substantive aspects of such powers for example,
legislations relating to public health services, houses, town
and country planning etc. but these are not included with the
scope of an ambit of administrative law.
Again, it does not include the remedies available to an
aggrieved person when his rights are adversely affected by the
administration.
Definition as given by Wade:-
According to Wade, Administrative law is the law relating to
the control of governmental power, according to him the primary
object of the administrative law is to keep powers of the
government within their legal bonds so as to protect the citizens
against their abuse. The powerful engines of authority must be
prevented from running amok.
Definition as given by K.C. Devis
According to K.C.Devis, Administrative law is the law
concerning the powers and procedures of administrative agencies
including specially the law governing

2
Judicial review of administrative action.
In one respect this definition is proper as it puts emphasis on
procedure followed by Administrative Agencies exercising their
powers. However, it does not include the substantive laws made by
these agencies. According to Devis an 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.
The difficulty in accepting this definition however, is that it does
not include many non-adjudicative and yet administrative functions
of the administration which cannot be characterised as legislative or
quasi-judicial. Another difficulty with this definition is that it puts an
emphasis on the control of the administrative functions by the
judiciary. But does not study other equally important controls i.e.
parliamentary control of delegated legislation, control through
administrative appeals or revisions and the like.
Garner
Garner also adopts the American approach adopted by K.C.
Devis. According to him Administrative Law may be described as
those rules which are governed by the Courts as law which relates to
and regulate the administration of government.
Griffith and Street
The definitions as given by Griffith and Street in his book
Principles of Administrative Law refers the main object of
administrative law and says that the most important aspect of
administrative law is about the operation and control of
administrative authorities. According to him, Administrative Law
must deal with three aspects :-
1. What sort of power does the administration exercise:-

3
2. What are the limits of those powers:-
3. What are the ways in which administration is kept within those
limits.
According to Indian Law Institute as has been referred in cases and
material on administrative law in India the following two aspects
must be added to have a complete idea of present day
administrative law:-
4. What are the procedures followed by administrative authorities:-
5. What are the remedies available to a person affected by
administration.

NATURE AND SCOPE OF ADMINISTRATIVE LAW

The main object of the study of the administrative law is to unravel
the way in which these administrative authorities could be kept
within their limit so that the discretionary powers may not be turned
into arbitrary powers.

Schwartz divides Administrative law in three parts:

(i) The powers vested in administrative agencies;
(ii) The requirements imposed by law upon the exercise of those
powers; and
(iii) Remedies available against unlawful administrative actions.

REASONS FOR GROWTH OF ADMINISTRATIVE LAW

The following factors are responsible for the rapid growth and
development of administrative law:-
1. There is a radical change in the philosophy as to the role played by
the state. The negative policy of maintaining law and order and of
‘laissez faire’ is given up. The State has not

4
confined its scope to the traditional and minimum functions of the
defence and administration of justice, but has adopted the positive
policy and as a welfare state has undertaken to perform varied
functions.

2. The judicial system proved inadequate to decide and settle all

types of disputes. It was slow, costly, inexpert, complex and
formalistic. It was already overburdened, and it was not possible to
expect speedy disposal of even very important matters, e.g. These
burning problems could not be solved merely by laterally
interpreting the provisions of any statute, but required
consideration of various other factors and it could not be done by
the ordinary courts of law. Therefore, industrial tribunals and labour
courts were established, which possessed the techniques and
expertise to handle these complex problems.

3. The legislative process was also inadequate. It had no time and

technique to deal with all the details. It was impossible for it to lay
down detail rules and procedures and even when detailed
provisions were made by the legislature they were found to be
defective and inadequate.

4. Administrative law represents functional rather than a

theoretical and legalistic approach. It is not possible for the courts
to decide the cases without formality and technicality. The
administrative tribunals are not bound by the rules of evidence and
procedure and they can take a practical view of the matter to decide
complex problems.

5
5. Administrative authorities can take effective steps for
enforcement of the preventive measures like suspension, revocation
and cancellation of license.

FUNCTIONS OF ADMINISTRATIVE LAW

The primary function of administrative law is to keep governmental
powers within the limits of law and to protect private rights and
individual interests. Activities of government have been increased.
Today state is protector, provider, entrepreneur, regulator and
arbiter. Rule making power (Delegated legislation) and authority to
decide (Tribunalisation) are described as effective and powerful
weapons in the armory of administration.

The primary object of administrative law is to control governmental

power. It is based on the assumption that every power tends to
corrupt and absolute power tends to corrupt absolutely. Since state
regulates and controls various activities of its subjects, there is every
possibility of misuse of abuse of power.
On the other hand, one theory believe in ground reality and favour
regulatory measures. This theory does not concede arbitrary,
unrestricted or absolute power to administrative authorities.

ADMINISTRATIVE LAW IN ENGLAND

In England by and large the existence of administrative law as a
separate branch of law weas not accepted until the advent of the
20th century. In 1885, Dicey rejected the concept all together. In his
famous thesis on the rule of law he observed that, there were no

6
Administrative law in England. He has pronounced to Robson:- In
England we know nothing of administrative and we wish to know
nothing about it. But while saying this he ignored the existence the
administrative discretion and administrative justice which were
current even in his days. In a large number of statutes discretionary
powers were conferred on the executive authorities and
administrative tribunals which could not be called in two questions
by the ordinary courts of law. But he regarded them altogether. It
appears that his contemporary Maitland was quite conscious of the
rule of the true position and he observed in 1887 – If you take up a
modern volume of the reports of the Queen’s Bench Division you
will find that about half of the cases reported have to do with rules
of administrative law. He added we are becoming a much govern
nation, governed by all manners of councils and boards and officers
central and local, high and low, exercising the powers which have
been committed to them by modern statute.

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 the
House of Lords in Board of Education vs. Rice, 1911 and local
government board vs. Alridge, 1915 in this article the development
of administrative law in England, he observed legislation had
conferred a considerable amount of quasi-judicial authority on the
admkinistrat5ion which was a considerable step towards the
introduction of administrative law in England.

7
When we look to the definition of administrative law as given by
Jennings we will find that his definition is wide to include matters
relating to administrative organisation and law of the civil services
which according to Anglow-American theory for the student of public
administration and not for the administrative lawyer. We have seen
that K.C.Davis in his definition has given stress on the powers and
procedures of administrative agencies. We have also noticed that
K.C.Davis says that administrative agency is an organ of government,
other than a legislature which affects the right of the people through
either adjudication or rule making. Jennings definitions, however, falls
short s of Devis’ definition in one respect while Devis lays emphasis on
procedures used by administrative agencies in exercising their powers ;
Jennings does not mention procedures directly and specifically – He
only leaves it to be implied from such broad words as “organisation,
powers and duties” and thus appears to constitute a basic difference
between the present day American view and the English approach to
the Administrative Law. The English administrative law does not lay so
much emphasis on procedures of Administrative bodies as does the
American Administrative Law where this branch of law is of often
designated as “administrative process”.
Prof. Wade remarks that :
Administrative Law is concerned with the operation and control of
the powers of administrative authorities with emphasis on functions
rather than on structure.
According to him since administrative law deals with the exercise of
governmental powers, it is itself a part of constitution law. Prof. Hart
says “Broadly conceived administrative law includes law that is made by
as well as the law that controls the administrative authorities of a
government.”

8
Both these definitions have ignored certain aspects of subject
which as a matter of fact falls within the scope of administrative
law of today, but it is also a fact that the modern administrative law
is primarily concerned with techniques of control over the exercise
of powers by administrative authorities rather than the structure or
the organisation of the department.
In short we can say that Administrative law deals with the
composition and powers of different organs of administration, it
also deals with the limits of their powers, the procedures which the
administrative authority adopt in the exercise of their powers and
the various modes of control which includes judicial control over
the different kinds of power exercise by them. Precisely it deals
with quasi-legislative and quasi-judicial powers of the
administrative authorities along with their executive powers and
their control.
We find that today greater emphasis is given on the judicial
control over the exercise of administrative powers.
Thus, we may note that administrative law can be said to be the
science of power of administrative authorities and as already
explained the nature of their powers can we studied under three
broad heads namely –
1. Legislative or rule making power
2. Judicial and adjudicative power
3. Purely executive power of the administration.
Wade says that today administrative law is mainly concerned
with the control over the exercise of the above powers by
administrative authorities.
But at the same time we may note that according to K.C. Devis,
administrative law does not include the enormous mass of
substantive law produced by the agencies.

9
Administrative Law in India
The scope of administrative law in India is very much similar to that
of United States. In fact the problem before us is to prevent the
potential threat to justice and freedom from the largely increased
powers and functions of the modern state. Administrative law deals
with the ways and means to keep the powers of administrative
authorities under control. It intends to prevent the growth of
autocratic rule by administrative authorities. It provides for the
safeguards against what Lord Hewart has described as “New
Despotism”.
Griffith and Street have rightly pointed out in this connection that
the operation and control of administrative authorities being the chief
purpose of administrative law, it deals with the following enquiries:-
For example : (1) What sort of powers the administration exercise?
(2) What procedure do administrative authorities follow in the exercise
of the powers of the administration?
(3) What are the limits on the powers of administration
(4) What are the ways in which the administration is kept within those
limitation?
(5) What remedies are available to the individual against the illegal
actions of the administration?
Therefore, we find that the jurisdiction of administrative law is
concerned and it embarrasses:
1. The existence of various administrative bodies such as Wage Board,
Central Board of Revenue, Commission of Enquiry and Advisory
Boards, Tarrif commissions etc.
2. Rule making power of administrative agencies. Under this head
comes the delegated legislation and therefore, it is much concerned
with the safeguards against the abuse of their judicial power and its
control.

10
3. Judicial functions of administrative agencies like administrative
tribunal.
4. Remedies – In which it includes, writs under Art.32, 226, 227 and
under Art.136.
5. Procedural guarantee i.e. the rules of natural justice which must
be adopted by tribunals.
6. Governmental liability
7. Public Corporations
The modern world after two world wars has made remarkable
change with the growing social consciousness of the age and
increasing complexities of administration.
During the last 50 years the concept of the role and functions of
the state has gone changed. Heavy industrialization, consideration of
large section of population in over crowded cities create problems of
housing, disease, smoke and insecurity of life that cannot be
ignored. Therefore the administration had to intervene in the
interest of public safety and health as state has today assumed the
role of provider. The multifarious activities of the state has extended
to social problems of men such as health, education, employment,
old age pensions, production, control and distribution of essential
commodities etc. etc. This has brought a change in the role of
administration to meet these requirements administration has to be
armed with legislative and judicial powers because for legislature it
was practically impossible to workout details of every legislation. It
could only afford to lay down broad policies and principles while
interesting upon the executive to work out it details by making rules,
regulations, orders and directions . It required trained people which
could be found only in executive branch of the government to
implement them efficiently. But at the same time the increased
powers of administrative authorities required and effective control
over their exercise. Administrative law attempts to work out all the
possible modes of control for providing adequate safeguards against
the misuse of their powers. 11
Therefore, adminsitrative law has assumed a great importance in
modern times.
It has also be noted that scientific and technological
developments have resulted in the creation of new problems like
urbanization, environmental pollution, heavy transportation and
similar many problems. Modernisation of the present society has
given rise to new types of social and economic offences like
concentration of wealth, adultration, smuggling, tax evasion, labour
problems and unhealthy commercial practices. All these problems
required a number of laws to be enacted and powers of
administrative authorities to be increased for their proper solution.
In the process of fulfilling the needs a super structure of
administrative powers emerged which has become important
branch of law which is administrative law.
We find that the administrative authority today interferes in all
domains of social and economic life. It may be in the field of
industry. It may be in the commerce or education or transport or
banking or insurance and so on. From the constitutional points of
view there is a large scale of delegation of legislative and judicial
powers to administrative agencies to meet out the above problems.
In administration today there is a need for speedy determination of
the problems, there is necessity for direction, guidance and expert
advice. Therefore, we find from the above discussion that the
administrative is the need of the time and therefore there has been
tremendous increase in the powers of administration and at the
same time the necessity to give the effect of rule of law in
administrative process.
The 20th century or 21st century is no more the laissez faire
economy. The state is no more a salient expectator. The expansion
of the state activity resulted in the corresponding

12
powers of the executive with added emphasis upon their
discretionary powers which by experience it is found that it has the
element of arbitrariness and corruption . Administrative law has
been developed to regulate the exercise of discretionary powers to
prevent its degeneration and to provide safeguards against
arbitrary and illegal action of the administration. In every
democratic country the protection of civil rights and liberties and
inevitable growth of the powers of the administration under the
garb of socialization of society have to be reconcile. Administrative
law has shared the responsibility of such reconciliation and
therefore has emerged as the outstanding legal development of
the 20th century.

13