manupatra®
Control of Abuse of Administrative Discretion:
Judicial Trends
Ravitej Rao. M*
Introduction
Discretion has been defined as the freedom or authority to make judge-
ments and to actas one sees fit.’ i. e. to say, free exercise of power as regards the
ability to choose from different ways to achieve a particular goal or result.
Administrative discretion would mean choosing from various available alterna-
tives but with reference to rules of reasons and justice and not according to
personal whims.*Invariably, inall systemsofjurisprudence, itisan accepted norm
that the Courts will not interfere with the action persued by such authorities in
exercise of their administrative discretion. It cannot be expected of the Courts to
have the timeand competence to judge each and every matter, letalone substitute
it’s wisdom for that of the authority concerned. Again, this doesnot mean that the
Courts will notinterfere at all. They will notallow discretionary power to assume
the garb of arbitrary power. The Courts have toensure: that discretion is exercised
strictly within the conditionalities laid down by the law while exercising such
discretion.
Today, the question of control of discretionary power is perhaps the most
crucial and critical problem of modern administrative law’
Extent of Control
All that the Courts seem to be willing to dois to go into the manner in which
the discretion was exercised and not whether the decision arrived at was right or
wrong, This isamply demonstrated in the decision of the Supreme Courtin Pratap
Singh. State of Punjab wherein the Courtheld that itwill not bean appellate forum
where the validity of the discretionary order will beallowed tobe questioned. This
is because the power, jurisdiction and discretion is vested by law in the govern-
ment. Perhaps the only area which the Court may consider is whether the
authority has arrived at the decision based wholly on citcumstances extraneous
to the purpose for which the discretion was vested. It is not for the Court to put
* IV Year. B. A., LL.B (Hons.), NLSIU.
See, William T. Mcleod, The New Collins Concise Dictionary of the English Language, 319 (1985).
See, 1. P. Massey, Administrative Law, 62 (1985)
See, M. P. Jain, Principles of Administrative Law, 330 (1993).
A. 1. R. 1964 SC 72.ZA manupatra °
171
itself in the place of the concerned authority and decide whether or not it would
have come to the same decision as arrived at by the authority. All that it should
do would be to see whether the power has been exceeded or acted upon in a
manner unbecoming of the said discretion. The judicial power of interference with
theexercise of administrative power on the ground of an authority acting contracy
to law has been found to have enough flexibility to check abuse of discretion’
Usually, whenever a discretion is confeted on an administrative authority,
guidelines are also issued for the exercise of that discretion. If the administrative
authority exceeds that parameter, the act or decision could be held to be ultra vires
not having the authority of law. This is because the authority cannot exceed the
limitation set by the parent statute itself. Thus the Court has to see whether the
decision was reached ina proper manner or not, if yes, the Court will not set aside
the order of the authority. But, on the other hand, if the Court comes to the
conclusion that there were some extraneous reasons for such an order, the Court
may in it’s wisdom set aside or quash such order.$
The Court, in the exercise of it’s judicial review, is not concerned whatso-
ever with the correctness of the findings of fact on the basis of which orders are
made as longas those findings are reasonably supported by evidence, In Calcutta
Electricity Supply Corporation v. Workers Union? where the authorities had the
discretion to award a claim for the medical expenses of the employees, the Court
held thatin doing so, itcould not grantaid to the families of the employees, as such
a power was not mandated. The Courts seems to have taken the view that if there
: is anything to show that an order can be upheld, it should be upheld if there is no
other vitiating factor.
Grounds of Abuse
Where the discretionary poweris conferred on the administrative authority
for one purpose, it cannot be exercised to achieve another purpose, and if done,
it would be a clear abuse of that power. So though the intentions may be good, if
it is outside the purported objective, it would be likely to be struck down. It is
necessary to go into the motive for which the action was taken in particular
manner.* Whenever a discretionary power is conferred, it must be exercised
keeping in mind the relevant consideration for that purpose, i. e. to say factors
which would have a direct bearing ona reasoned order, instead of considerations
5. Supran. dat 554.
6, Stateof Bombay. Krishnan, A.1.R, 1960 SC 1223, where it was held that where theauthority gives
reasons for choosing a particular course of action, the court would not examine the propreity,
: correctness, adequacy or satisfactory nature of such reasonsas longas the authority is satisfied.
‘ 7. ALR. 1959 SC 1191.
8 Alimedaba Manufacturing Company v. Municipal Corporation, A.LR. 1956 Bom. 117. Here the Court
setaside the order of requisition which had been passed in reality to eject the petitioner because
‘of the religious leanings of the landlord, though the purported reason was to provide
accomodation to an officer of the State.ZA manupatra °
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which arenot gone into, or irrelevant: In the latter cases the action will be patently
ultravires which may nothave been the desired resulthad therelevantcriteria been
considered. Consequently, even if no guidelines are laid down as to the circum-
stances under which the power ought to be exercised, the Courts may go into the
purposeand framework of theenabling legislationitself todetermine whatshould
have been the relevantcriteria. Thus the Courts will beina better position to judge
whether the action was taken on irrelevant considerations even where it is not
clearly defined.
In Arora. State of Uttar Pradesh? where the State Government wasauthorised
to acquire land for a company for public purpose and where it was acquired for
a Private Company, the Court held the order to be bad as based on irrelevant
consideration. The Court clearly specified that it was up to the Courts to interpret
provisions and not for the Government do so. In $.P. Bhatnagar v. State of Madhya
Pradesh" the Court held that irrelevance, staleness and vagueness were all vices,
any single one of which was sufficient to vitiate an order of preventive detention
of the authorities.
In Rampur Distillery and Chemical Co. Ltd, v. Company Law Board,* the
Supreme Courtaffirming the decision of the lower Courtheld that since the Board
had based it’s decision solely on the past conduct without considering subsequent
conduct and activities of the person, it’s decision was wrong. In Barium Chemicals
v. Company Law Board, the Court opined thatif itis shown that the circumstances
do not exist or that they are such that is impossible for anyone to form an opinion
therefrom suggesfive of the aforesaid, the opinion is challengeable on the ground
ofnon-application of mind or perversity or thatit was on collateral grounds. While
considering irrelevent consideration is a ground for setting aside the order,
leaving out relevant considerations is also an important factor for quashing
orders, i. e. to say the authority concerned has to take into account those factors
which are to be considered either expressly or impliedly. In Nizamuddin v. State of
West Bengal", it was held that the fact thata criminal case was pending against the
person ought to be considered before the Deputy Magistrate which was not done
in this case.
Some times an order may be based partly on relevant and party on
irrelevant considerations. In such situations the Courts would try and find out the
true purpose for which the power was exercised. After due consideration, where
the Court comes to the conclusion that the purpose of the exercise was improper,
it would be irrelevant that incidently a legitimate purpose is also served. This
9. ALR, 1962 SC 1164.
10. (1981) 2 SCC 456.
11. AIR 1970 SC 1789.
12. AIR 1967 SC 295.
13. AIR 1974 $C 2353,ZA manupatra °
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would depend on the facts and circumstances of each case. Therefore, where a
matter is to be decided by the authority solely on the basis of its subjective
satisfaction, it must be properly based on relevant considerations only and not a
mix of both as it would be very difficult for the Court to decide as to how much
the irrelevant consideration played a role in deciding on a particular course of
action." Another important ground for setting aside ofan administrative ord
mala fide exercise of power. Malafide would mean anything which is not bonafide
- or something that is done with an intention which is dishonest. In Pratap Singh
v. State of Punjab an order of suspension of a civil surgeon was set aside on the
ground thatitwasa clear malafide exercise of powerasit was shown that the Chief
Minister had personal animosity towards him. It was further held that for
establishing malafide, direct evidence was not necessary when such an inference
was inevitable from the circumstances shown. Normally, if the plea of malafide is
nottaken, the order will appear tobe valid on the face of the record. Consequently,
the burden of proving malafide is on the person making the allegation. Usually
there is a presumption in favour of the administration that the exercise of such
power was in good faith and for public benefit.* However the Courts will not
accept vague and casual allegations suggesting thata particular action was taken
with an ulterior motive. It is for the petitioner to conclusively prove malafide
exercise of power failing which the order will be upheld.” In E. P. Royappav. State
of Tamil Nadu,*it was held that mere suspicion that the power was exercised
malafide would not be enough as suspicion cannot take the place of proof, and in
cases where malafide is alleged, high degree of proof is needed.
A In the case of Ranjit Thakur v. Union of India!® where the accused was
sentenced to one year rigorous imprisonment, dismissal from service and de-
: clared unfit for civil employment simply because the order ofa superior officer to
eat food was disobeyed was held to be on unreasonable exercise of power. The
Courts will only interfere if the decision reached is so unreasonable that no
reasonable man would have ever come to it” In Jiwani Kumar v. First Land
Acquisition Collector, where the Government could acquire property for a public
purpose only temporarily , and the land was acquired permanently, the Court
held it to be a colourable exercise of power. Nowadays, the trend of the Courts
seems to be to require compliance with principles of natural justice even where the
14. Shibbantal v. State of Uttar Pradesh, AIR 1954 SC 179.
15, ATR 1964SC 72,
16, Supran.4 at 565.
17, Chugamal v, Chaliha, AIR 1971 SC 730.
18. ATR 1974 SC 555,
19, AIR 1987 SC 2386,
20. Shree Agency v. Bhattacharjee, AIR 1972 SC 780,
21, AIR 1984 SC 1707.ZA manupatra °
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exercise of power is committed to the subjective satisfaction of the administrative
authority, especially where the civil rights of individuals may be affected.
Conclusion
Ithas been repeatedly held that the Courts will not go into the merits! of the
case except to look into the manner in which the power wasexercised. Ifitis found
to have been exercised in the manners previously discussed, the Court will set
aside or quash the order. There seems to be some slight contradiction in the
positions adopted by the Court. While on one hand, the Court refused to go into
the merits, on the other it goes into how the powers were exercised. How can the
validity of the procedure be gone into without going into the merits of the cases.7
The line of separation between the two seems to be very thin indeed. The Courts
over the years seems to have realised that the best way to control or stem abuse
of discretion is to be as strict as possible in certain cases while being, liberal insome
other appropriate cases. The Courts will not under any circumstances substitute
it’s own views for that of the concerned authority. Inspite of everything, the
Courts still play a marginal role in the control of exercise of discretionary power.
TheCourtsseem to have taken itupon themselves tofill in the gaps by looking into
enabling act, and determining the parameters within which such discretion ought
tohave been exercised. Further the Courts seems to beinsisting on speaking orders
to enable them to comment on its validity in case of any dispute. The Courts have
been very caustious in dealing with such cases as interfering in every other order
would mean takin away the very idea behind which the discretion was granted in
the first place.
22. See, Durgadas Basu, Administrative Law, 168 (1993).