Author Name:   laksheyender@gmail.com

Discretion in layman’s language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be...

Abuse of Administrative Discretion

Discretion in layman’s language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. A person writing his will has such discretion to dispose of his property in any manner, no matter how arbitrary or fanciful it may be. But the term ‘discretion’ when qualified by the word ‘administrative’ has somewhat different overtones. ‘Discretion’ in this sense means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not to be arbitrary, vague and fanciful, but legal and regular.

The problem of administrative discretion is complex. It is true that in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. It is necessary not only for the individualization of the administrative power but also because it is humanly impossible to lay down a rule for every conceivable eventually in the complex art of modern government. But it is equally true that absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions. Therefore, there has been a constant conflict between the claims of the administration to an absolute discretion and the claims of subjects to a reasonable exercise of it. Discretionary power by itself is not pure evil but gives much room for misuse. Therefore, remedy lies in tightening the procedure and not in abolishing the power itself.

Judicial behaviour and administrative discretion in India
Though courts in India have developed a few effective parameters for the proper exercise of discretion, the conspectus of judicial behaviour still remains halting, variegated and residual, and lacks the activism of the American courts. Judicial control mechanism of administrative discretion is exercised at two stages:

(1) Control at the stage of delegation of discretion;

(2) Control at the stage of the exercise of discretion.

(1) Control at the stage of delegation of discretion.– 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, Article 19 and other provisions of the Constitution. In case of delegated legislation, courts have after been satisfied with vague or broad statements of policy, but usually it has not been so in cases of application of fundamental rights to statutes conferring administrative discretion. The reason is that delegated legislation being a power to make an order of general applicability presents less chance of administrative arbitrariness than administrative discretion which applies from case to case.

(2) Control at the stage of the exercise of discretion.– In India, unlike the USA, 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 two broad generalizations:

(a) That the authority is deemed not to have exercised its discretion at all or failure to exercise discretion–“non application of mind” ;

(b) That the authority has not exercised its discretion properly or excess or “abuse of discretion”.

(a) That the authority is deemed not to have exercised its discretion at all– “non application of mind”.–Under this categorization, courts exercise judicial control over administrative discretion if the authority has either abdicated its power or has put fetters on its exercise or the jurisdictional facts are either non-existent or have been wrongly determined. The authority in which discretion is vested can be compelled to exercise it, but not to exercise it in a particular manner. When a discretionary power is conferred on an authority, the said authority must exercise that power after applying its mind to the fact and circumstances of the case in hand. Thus where the authority abdicates its power e.g. abdication of functions, acting under dictation, conditional precedents, acts mechanically & without due care, imposes fetters on the exercise of discretion, there is a failure to exercise discretion.

(b) That the authority has not exercised its discretion properly– “abuse of discretion”.– This is an all-embracing formulation developed by courts in India to control the exercise of discretion by the administrative authority. When discretionary power is conferred on an administrative authority, it must be exercised according to law. When the mode of exercising a valid power is improper or unreasonable there is an abuse of the power. Improper exercise of discretion includes everything which English courts include in ‘unreasonable’ exercise of discretion and American courts include in ‘arbitrary and capricious’ exercise of discretion. Improper exercise of discretion includes such things as ‘taking irrelevant considerations into account’, ‘acting for improper purpose’, ‘asking wrong questions’, ‘acting in bad faith’, ‘neglecting to take into consideration relevant factors’, ‘acting unreasonably’ etc.

(1) Mala fides.– Mala fides or bad faith means dishonest intention or corrupt motive. Even though it may be difficult to determine whether or not the authority has exceeded its powers in a particular case because of the broad terms in which the statute in question may have conferred power on it, the administration action may, nevertheless, be declared bad if the motivation behind the action is not honest. At times, the courts use the phrase “mala fides” in the broad sense of any improper exercise or abuse of power. In Jaichand v. State of West Bengal, the Supreme Court observed that mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended.

In this sense, mala fides is equated with any ultra vires exercise of administrative power. The term “mala fides” has not been used in the broad sense, but in the narrow sense of exercise of power with dishonest intent or corrupt motive. Mala fides, in this narrow sense, would include those cases where the motive force behind an administrative action is personal animosity, spite, vengeance, personal benefit to the authority itself or its relations or friends. Mala fide exercise of discretionary power is bad as it amounts to abuse of power.

In Pratap Singh v. State of Punjab, the Supreme Court used the phrase “mala fides” for initiating administrative action against an individual “for satisfying a private or personal grudge of the authority.” In this case, the appellant, a civil surgeon in the employment of the state government, was initially granted leave preparatory to retirement, but, subsequently, it was revoked, and he was placed under suspension and disciplinary action was started against him on the charge that he had accepted a bribe of Rs. 16/- from some patient prior to going on leave. The appellant alleged that the disciplinary action against him had been initiated at the instance of the Chief Minister to wreak personal vengeance on him as he had refused to yield to the illegal demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held the exercise of power to be mala fide and quashed the order.

In Rowjee v. Andhra Pradesh, under the schemes prepared by the State Road Transport Corporation, certain transport routes were proposed to be nationalized. The schemes owed their origin to the directions by the Chief Minister. It was alleged that the Chief Minister had acted mala fide in giving the directions. The charge against him was that the particular routes had been selected because he sought to take vengeance on the private operators on those routes, as they were his political opponents. From the course of events, and the absence of an affidavit from the Chief Minister denying the charge against him, the court concluded that mala fide on the part of the Chief Minister was established.

In State of Punjab v. Gurdial Singh, the court struck down the land acquisition proceedings for acquiring the land of the petitioners for a mandi on account of mala fides. From the course of events, the fact that the acquisition proceedings were started at the behest of one of the respondents who was a minister in the government and a politician to satisfy his personal vendetta against the landholders, and also the fact that the allegations made by the petitioners remained uncontroverted by the respondents, the court concluded that there was malice on the part of the government in acquiring the land of the petitioners.

In G. Sadanandan v. State of Kerala, the petitioner, a businessman, dealing in wholesale kerosene oil was detained under Rule 30(1)(b) of the Defence of India Rules, 1962 with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of the community. The petitioner challenged the validity of the impugned order of detention mainly on the ground that it is mala fideand has been passed as a result of malicious and false reports, prepared at the instance of Deputy Superintendent of Police. The whole object of Deputy Superintendent in securing the preparation of these false reports was to eliminate the petitioner from the field of wholesale business in kerosene oil in Trivendrum so that his relatives may benefit and obtain the dealership. The Deputy Superintendent did not file the affidavit to controvert the allegations made against him and the affidavits filed by the Home Secretary were very defective in many respects. After considering all the materials the Supreme Court declared the order of detention to be clearly and plainly mala fide.

In P.B. Samant v. State of Maharashtra, the court held the distribution of cement against the law and the circulars or guidelines issued by the Government on that behalf as bad. The distribution of cement was in favour of certain builders in return for the donations given by them to certain foundations of which the Chief Minister was a trustee. It was a clear case of mala fide exercise of power. The power to control the distribution of an essential commodity like cement is given to the Government with a view to ensuring its equitable distribution. When this power is used for obtaining donations for a trust, it is a clear case of abuse of power.

In Express Newspapers (Pvt.) Ltd v. Union of India, a notice of re-entry upon the failure of lease of lease granted by the central government and of threatened demolition of the Appellant’s officer buildings was held to be mala fide and politically motivated by the party in power against the Express Group of Newspapers in general. The fact of the case was that by an agreement of lease the petitioner was allotted certain plots for construction of its press building by the Government of India. The Express Newspapers then constructed its building. The Lt. Governor of Delhi alleged that the new Express building was constructed in contravention of municipal corporation laws and served a notice for re-entry and for its demolition. But the construction of new building was inconformity with the lease deed and with the express sanction of the lessor i.e. the Union of India. The Supreme Court observed in the instant case on the allegation of mala fide as follows: where the mala fides are alleged, it is necessary that the person against whom such allegation is made should come forward with an answer refuting such allegations. For otherwise such allegations remain unrebutted and the court would in such case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability. The Court thus held that on the facts and circumstances of the instant case the impugned notice was actuated with an ulterior and extraneous purpose and thus was wholly mala fide and politically motivated.

In State of Punjab v. V.K Khanna, the Court held that the expression ‘mala fide’ has a definite significance and there must be existing definite evidence of bias. The action would not be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act. Mala fide intent or bias depends upon facts and circumstances of each case. The dispute in the appeals pertains to the last phase of earlier government and the first phase of the present government in the State of Punjab. Whereas the former chief secretary of the State of Punjab initiated proceedings against two senior colleagues. When Prakash Singh Badal came into power not only chief secretary had to walk out of the administrative building but a number seventeen officer in the hierarchy of officers, was placed as the chief secretary and within a period of 10 days of his entry at the secretariat, a notification was issued, though with the authority and the consent of Chief Minister pertaining to cancellation of two earlier notification initiating a CBI inquiry. The High Court attributed it to be a motive improper and mala fide. Absence of malice has been the main contention in support of the appeal and adoption of a simple method of disciplinary enquiry was key issue as given by the appellants. Shri Khanna, a respondent contended that the entire proceeding was the event of gross violation of basic tenets by reason of malice. Supreme Court upheld the order of the High Court.

Mala fide is a psychological factor to allege but very difficult to prove. The burden of proving mala fides is on the person making the allegations, and burden is ‘very heavy’. Neither express nor implied malice can be inferred or assumed. It is for the person seeking to invalidate an order to establish the charge of bad faith. The reason is that there is presumption in favour of the administration that it always exercises its power bonafide and in good faith. Seriousness of allegations demands proof of a high order and credibility. The Supreme Court in E.P. Royappa v. Tamil Nadu, brought out difficulties inherent in proving mala fides. The factors which are important in proof of mala fides: (i) Direct evidence (e.g. documents, tape recordings etc.), (ii) Course of events, (iii) Public utterance of the authority, (iv) Deliberate ignoring of facts by the authority and (v) Failure to file affidavits denying the allegations of mala fides. However, if the allegations are of wild nature, there is no need of controverting allegations. Mala fides may also be inferred from the authority ignoring apparent facts either deliberately or sheer avoidance.

(2) Improper purpose.– If a statute confers power for one purpose, its use for a different purpose will not be regarded as a valid exercise of the powers and the same may be quashed. The cases of exercise of discretionary power from improper purposes have increased in modern times because conferment of broad discretionary power has become usual tendency. The orders based on improper purpose were quashed first in the cases concerning the exercise of powers of compulsory acquisition in England.

So where the power is exercised for a purpose different from that specified in the statute, the court will declare the exercise of the power as ultra vires. Where the land is acquired by Municipal Corporation ostensibly for a public purpose but in fact to enable another body to acquire it through the medium of corporation for some other purpose, the acquisition order would be quashed by the court. Similarly, where Municipal Corporation refused to approve the construction of buildings with a view to pressurizing the petitioner to provide drainage for the adjoining building, and where the construction scheme of the petitioner does not contravene.

“Improper purpose” is broader than mala fides, for whereas the latter denotes a personal spite or malice, the former may have no such element. The action of an authority may be motivated by some public interest (as distinguished from private interest) but it may be different from what is contemplated by the statute under which the action has been taken. Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.

In a few cases on preventive detention the Supreme Court has held that the power of preventive detention cannot be used as a convenient substitute for prosecuting a person in a Criminal Court. In Srilal Shav v. State of West Bengal, a preventive detention order was issued against a person mainly on the ground that he had stolen railway property. He had documents in his possession to prove his bona fide and to prove that he had purchased the goods in the open market. A criminal case filed against him was dropped and the mentioned preventive detention was passed in its place. The order was held to be bad by the court. Again in L.K. Dass v. State of West Bengal, the court held that the power of detention could not be used on simple solitary incident of theft of railway property and the proper course to prosecute the person was in a criminal court.

(3) Irrelevant considerations.– A discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. It means that power must be exercised taking into account the considerations mentioned in the statute. If the statute mentions no such considerations, then the power is to be exercised on considerations relevant to the purpose for which it is conferred. If the authority concerned plays attention to, or takes into account wholly irrelevant or extraneous circumstances, events or matters then the administrative action is ultra vires and will be quashed. Thus where an administrative order is issued on formal grounds or considerations which are irrelevant, it will quashed. The exercise of discretionary power should not be influenced by considerations that cannot be lawfully taken into account. The determination of the considerations which are relevant, and those which are irrelevant, is a matter of inference from the general terms of the statute.

The decision of the House of the Lords in Padfield v. Minister of Agriculture, lays down the parameters of judicial control of administrative discretion in England. In this case under the statutory mil-marketing scheme, the prices paid to milk producers in different areas are fixed by the Milk Marketing Board which consists of representatives of the producers. The producers near the area of London complained that though they were in proximity of the London market, yet the price paid did not reflect the higher value of their milk, and requested the minister to refer the matter to the Statutory Committee for Complaints. To direct or not to direct a complaint to the committee was the sole discretion of the minister. The minister in exercise of his unfettered discretion refused to direct the complaint. One of the reasons given by the ministry was that minister would be in a difficult political position if, despite the committee’s acceptance of the complaint, the minister should take no action. The House of Lords held that the minister’s reasons were unsatisfactory and his decision was unreasonable. The purpose of the Act was that every genuine complaint must be forwarded to the committee and anything contrary to this would frustrate that purpose

In Ram Manohar Lohia v. Bihar, the petitioner was detained under the Defence of India Rules, 1962 to prevent him from acting in a manner prejudicial to the maintenance of “law and order”, whereas the rules permitted detention to prevent subversion of “public order”. The court struck down the order as, in its opinion, the two concepts were not the same, “law and order” being wider than “public order”.

In State of Bombay v. K.P. Krishnan, an industrial dispute regarding the payment of bonus for a certain year was refused to be referred by the Government to a tribunal for adjudication on the ground that the “workmen resorted to a go-slow during the year.” The court held that the reasons given by the Government were extraneous and not germane to the dispute. The Government acted in punitive manner and this was inconsistent with the objective of the statute. A claim for bonus is based on the consideration that by their contribution to the profits of the employer, the employees are entitled to claim a share in the said profits, and so any punitive action taken by the Government by refusing to refer for adjudication an industrial dispute for settlement would in our opinion be wholly inconsistent with the object of the Act. Where an administrative authority leaves out relevant consideration in the exercise of its power, such action becomes invalid.

In Barium Chemicals Ltd. v. Company Law Board, this case shows a definite orientation in the judicial behaviour for an effective control of administrative discretion in India. In this case Company Law Board exercising its power under section 237 of the Companies Act 1956 ordered an investigation into the affairs of Barium Chemicals Ltd. The basis of the exercise of discretion for ordering investigation was that due to faulty planning the company incurred a loss, as a result of which the value of the shares had fallen and many eminent persons had resigned from the Board of Directors. The court quashed the order of the Board on ground that the basis of the exercise of discretion is extraneous to the factors mentioned in section 237.

In Rohtash Industries Ltd. v. S.D. Agarwal, was also involved investigation of a company under Section 237 of the Companies Act. The investigation was ordered on the grounds that there were several complaints of misconduct against one of the leading directors of the appellant company in relation to other companies under his control for which he was being prosecuted, and that the company had arranged to sell preference shares 9of the face value of rupees three lacs) of another company held by it for inadequate consideration. About the former, the court (majority) was of the opinion that it was not a relevant circumstance. About the other ground, the court found no evidence of the shares having been sold for inadequate consideration. Bhachawat, J., in his concurring opinion, however, thought about the latter ground that it was a borderline case and stated that the court had no power to review the facts as an appellate body or to substitute its opinion for that of the government. But he agreed with the majority in quashing the government order as in his opinion the government had not relied on the sale of the shares in question as suggesting fraud.

In Rampur Distillery Co. Ltd. v. Company Law Board, the Company Law Board exercising wide discretionary power under Section 326 of the Companies Act, 1956 in the matter of renewal of a managing agency refused approval for the renewal to the managing agents of the Rampur Distillery. The reason given by the Board for its action related to the past conduct of the managing agent. The Vivian Bose Enquiry Commission had found these managing agents guilty of gross misconduct during the year 1946-47 in relation to other companies. The Supreme Court, though it did not find any fault in taking into consideration the past conduct, held the order bad, because the Board did not take into consideration the present acts which were very relevant factors in judging suitability.

In Brij Mohan Singh v. State of Punjab, the appellant was compulsory retired from service on the basis of service entries of about 20 years though during that period he had been promoted many times. The Court held that entries of only last ten years were relevant for compulsory retirement. During this period two entries were adverse to the appellant. The Court held that reliance on those two entries was also not proper and quashed the impugned order as the same was based on irrelevant considerations.

In S.R. Venkataraman v. Union of India, the appellant, a Central Government Officer, was prematurely retired from the service in ‘public interest’ on attaining the age of 50 years. The appellant contended that the government did not apply its mind to her service record and the order was based on extraneous circumstances. The government conceded that there was nothing on record to justify the order. The Supreme Court, quashing the order of the government, held that if a discretionary power has been exercised for an unauthorized purpose, it is generally immaterial whether its repository was acting in good faith or bad faith. The Supreme Court stated that an administrative order based on a reason or facts that do not exist must be held to be infected with an abuse of power.

The difference between a power exercised for an improper purpose and on irrelevant considerations is often imperceptible. For instance, where land is acquired by an authority ostensibly for itself but really for another authority, the power may be said to be exercised, in one sense, for an improper purpose, but in another sense, after the authority took into consideration an irrelevant factor, namely, acquisition of land for another authority, the consideration for the administrative action being acquisition for itself.

(4) Mixed considerations.– Sometimes, it so happens that the order is not wholly based on irrelevant or extraneous considerations. It is founded partly on relevant and existent considerations and partly on irrelevant or non-existent considerations. The judicial pronouncements do not depict a uniform approach on this point. In preventive detention cases, the courts have taken a strict view of the matter and has held such an order invalid if based on any irrelevant ground along with relevant grounds, arguing that it is difficult to say to what extent the bad grounds operated on the mind of the administrative authority and whether it would have passed the order only on the basis of the relevant and valid grounds. In Shibbanlal v. State of Uttar Pradesh,the petitioner was detained on two grounds: first, that his activities were prejudicial to the maintenance of supplies essential to the community, and second, that his activities were injurious to the maintenance of public order. Later the government revoked his detention on the first ground as either it was unsubstantial or non-existent but continued it on the second. The court quashed the original detention order. In Dwarka Das v. State of Jammu and Kashmir, the Supreme Court has observed that if the power is conferred on a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, the exercise of the power will be bad if some of the grounds are found to be non-existent or irrelevant. In the opinion of the court if some of the grounds are found to be non-existent or irrelevant, the Court can’t predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. However, the Court has made it clear that in applying this principle the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably has affected the subjective satisfaction of the appropriate authority. However in the case of preventive detention generally the courts have quashed the orders of detention based on relevant as well as irrelevant grounds. But the cases may be found where the courts have upheld the order of detention valid even where it was based on mixed considerations.

(5) Leaving out relevant considerations.– If in exercising its discretionary power, an administrative authority ignores relevant considerations, its action will be invalid. An authority must take into account the considerations which a statute prescribes expressly or impliedly. In case the statute does not prescribe any considerations but confers power in a general way, the court may still imply some relevant considerations for the exercise of the power and quash an order because the concerned authority did not take these into account. Unless detailed reasons are given from which it can be inferred that the authority took action after ignoring material considerations it is hard to have the action quashed on this basis.

In Shanmugam v. S.K.V.S. (P) Ltd., a regional transport authority called for applications for the grant of stage of carriage permit for a certain route. Under the statute, the authority had broad powers to grant the permits in public interest, but the government attempted to control the discretion of the authority by prescribing a marking system under which marks were allotted to different applicants on the basis of viable unit, workshop, residence (branch office) on the route, experience and special circumstances. In the instant case, the branch office on the route, which the petitioner had, was ignored on the ground that he had branches elsewhere. It was held that the authority had ignored a relevant consideration. It was an untenable position to take that even if the applicant had a well-equipped branch on the route concerned, it would be ignored if the applicant “has some other branch somewhere unconnected with that route”.

In Rampur Distillery Co. Ltd. v. Company Law Board, the Company Law Board exercising wide discretionary power under Section 326 of the Companies Act, 1956 in the matter of renewal of a managing agency refused approval for the renewal to the managing agents of the Rampur Distillery. The reason given by the Board for its action related to the past conduct of the managing agent. The Vivian Bose Enquiry Commission had found these managing agents guilty of gross misconduct during the year 1946-47 in relation to other companies. The Supreme Court, though it did not find any fault in taking into consideration the past conduct, held the order bad, because the Board did not take into consideration the present acts which were very relevant factors in judging suitability.

In Ranjit Singh v. Union of India, the production quota of a licensed manufacturer of guns was reduced from 30 to 10 guns a month. The order was challenged on the ground that the order was not based on relevant considerations but on extraneous consideration. The Court held the order bad as the Government had not taken into account relevant considerations in making the order, production capacity of the factory, the quality of guns produced, economic viability of the unit, administrative policy pertaining to maintenance of law and order. “Any curtailment of quota must necessarily proceed on the basis of reason and relevance” observed the court. The principle was stated as “if all relevant factors are not considered, or irrelevant considerations allowed finding place, the decision is vitiated by arbitrary judgment.”

(6) Colourable exercise of power.– At times, the courts use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise means that under the “colour” or “guise” of power conferred for one purpose, the authority is seeking to achieve something else which it is not authorized to do under the law in question then the action of the authority shall be invalid and illegal. Viewed in this light, “colourable exercise of power” would not appear to be a distinct ground of judicial review of administrative action but would be covered by the grounds already noticed, improper purpose or irrelevant considerations. The same appears to be the conclusion when reference is made to cases where the ground of “colourable exercise of power” has been invoked. In the Somawanti v. State of Punjab, the Supreme Court stated as the follows with reference to acquisition of land under the Land Acquisition Act: “Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.”

The above quotation would show that the term “colourable exercise of power” is used in the sense of using a power for a purpose not authorized by the Act conferring the power on the authority concerned. The term “colourable” has also been used at times in the sense of “mala fide” action. “Mala fide” as a distinct ground to quash administrative action has already been considered. Colourable means that the power is exercised ostensibly for the authorized end but really to achieve some other purpose; in other words, the exercise of power is illegal but it has been given the guise of legality. Colourable exercise and improper purpose appear to converge and the two phrases can be used inter-changeably. In the context of preventive detention, when the court felt that the power of detention could not be used as a substitute for criminal prosecution, it used the phrase “colourable exercise of power” by the executive. The court could have as well said that the power was exercised for an improper purpose to evade the normal process of criminal law.

(7) Judicial discretion.– At times, the courts have used a vague phrase “judicial discretion” to restrict the exercise of discretionary power by an authority. For instance, it was observed by Supreme Court in Registrar, Trade Marks v. Ashok Chandra Rakhit, with reference to the power of the Registrar to register a trade mark that “the exercise of the power conferred on Registrar always remained a matter of discretion to be exercised, not capaciously or arbitrarily but, according to sound principles laid down for the exercise of all judicial discretion.” Through the use of term “judicial discretion” the courts would read implied limitations into statutory powers and quash an administrative order if the authority crossed those limitations. The term, thus, indicates that such discretion is not absolute or unqualified. However, its use does not seem to be necessary as the courts have read implied restrictions on a discretionary power even without characterizing it as “judicial discretion”. In any case, the term can be applied properly only to quasi-judicial bodies and not to administrative bodies. Most of the principles which apply to control administrative discretion, and are being discussed here, apply mutatis mutandis to the exercise of discretion by tribunals or other quasi-judicial bodies. Thus, a quasi-judicial body cannot be directed by a higher authority to exercise its discretion in a particular manner. Such a body is to exercise its discretion on relevant grounds and not on irrelevant grounds and so on.

(8) Unreasonableness.– At times the statute may require the authority to act reasonably. The courts have also stated that the authority should consider the question fairly and reasonably before taking action. The term “unreasonable” means more than one thing. It may embody a host of grounds mentioned already, as that the authority has acted on irrelevant or extraneous consideration or for an improper purpose, or mala fide, etc. Viewed thus, unreasonableness does not furnish an independent ground of judicial control of administrative powers apart from the grounds already mentioned. The term may include even those cases where the authority has acted according to law but in wrong manner and where it has acted according to law and in a right manner but on wrong grounds. Sometimes statutes itself provides for reasonable exercise of the discretionary power. Under such conditions the authority concerned had to act reasonably. And, the court will interfere with the order where it has not been passed under reasonable belief.

“Unreasonableness” may also mean that even though the authority has acted according to law in the sense that it has not acted on irrelevant grounds or exercised power for an improper purpose, yet it has given more weight to some factors than they deserved as compared with other factors. Interference on this ground requires going into the relative importance of different factors and their balancing which amounts to substituting the discretion of the judiciary for that of the executive. Courts do not normally exercise such wide powers to interfere in the exercise of the administrative discretion.

Unreasonableness may furnish a ground for intervention by the courts when the Constitution of India or the statute so requires. Thus, Article 14 of the Constitution guarantees equality before law but the courts have permitted reasonable classification to be made. Where the law is valid under the article, a discriminatory action would still be violative of the equality clause. Similarly, Article 19 requires only reasonable restrictions to be imposed on the rights specified therein.

In Chandeshwari Prasad v. State of Bihar, the administration authority had cancelled certain grants of property made to the petitioner by the previous owner on the ground that the transfer was made with a view to defeating the provisions of Bihar Land Reforms Act, 1950, and to obtain higher compensation. The court found that there was no evidence to support the findings of the authority. The court observed : “the word ‘satisfied’ in Section 4(4) must be construed to mean ‘reasonably satisfied’ and therefore the finding of the Collector under Section 4(4) cannot be subjective or arbitrary findings but must be based upon adequate materials.

The court does not infer the requirement of reasonableness from a statute by implication. The Supreme Court refused to accept the plea in K.D. Co. v K.N. Singh, that the court should judge whether the administrative action was reasonable or not where the statute was silent as to reasonableness. Although the above Chandeshwari Prasad’s case is only an exception to this proposition. In Rohtash Industries Ltd. v. S.D. Agarwal, the Supreme Court quashed on administrative action taken by the Government under Section 237 of the Companies Act, 1956 on the ground that no reasonably body would have reached impugned conclusions. Here the court considered the question as to whether any reasonable body much less expert body like Central Government would have reasonably made the impugned order on this basis of the material before it? In such cases the test of judicial intervention is not what the court considers as unreasonable but a decision which it considers that no reasonable body could have come to i.e., when the action is “oppressive” or “falsely absurd”.

In Sheonath v. Appellate Assistant Commissioner, the Supreme Court has remarked that the words “reason to believe” (for initiating reassessment proceedings) used in the Income-tax Act suggest that “the belief must be that of an honest and reasonable person based upon reasonable grounds but not on mere suspicion.”

There may be cases where the administrative authority might have exercised his power without any reason. In such cases the court would quash the order.

The Supreme Court observed in K.L. Trading Co. Ltd. v. State of Meghalaya, that to attract judicial review of administration action, the applicant must show that the administrative action suffers from vice of arbitrariness, unreasonableness and unfairness. Merely because the Court may feel that the administrative action is not justified on merit, can be no ground for interference. The Court can only interfere when the process of making such decision is wrong or suffers from the vice of arbitrariness, unfairness and unreasonableness.

It may be mentioned here that in France the reasonableness of the administrative acts or decisions is examined on a much broader scale than in common law countries. In France any act can be brought to the test of reason. Every administrative act or decision is thought to be proper and lawful only if it is reasonable.

The  author can be reached at: laksheyender@legalserviceindia.com

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