ADMINISTRATIVE DISCRETION

Discretion - Choosing from various alternatives without reference to any

predetermined criterion - A person writing his will

When qualified by administrative - Rules of reason & justice must be followed

Humanly impossible to lay down a rule for every conceivable eventuality

Absolute discretion v. reasonable exercise of it

Judicial Behaviour & Administrative Discretion in India

Few effective parameters - Lacks activism of American courts

(1) Control at the stage of delegation of discretion

Constitutionality of law delegating the discretion - Vague & wide discretion -

A. 14 & 19

State of Punjab v. Khan Chand AIR 1974 SC 543

East Punjab Requisition of Movable Property Act 1947 - Truck of Khan

Chand was requisitioned by the D.M. for famine work

Challenged on the ground of violation of A. 14 as no guideline is setout

Such discretion is bound to result in discrimination, which a negation of A. 14

- Even the term public purpose is not used

Manohar Lal v. State of Maharashtra AIR 1971 SC 1511

S. 187-A of the Sea Customs Act - Power to the authorities to either refer a
case of smuggled goods to a magistrate or to look into the matter themselves

Challenged as violative of A. 14

Court upheld the discretion - This discretion is to be exercised by senior

officials, that will stand as a guarantee against its misuse

Change in the judicial behaviour - Criticized

State of Madras v. V. G. Row AIR 1952 SC 196

Section 15(2)(b), Criminal Law Amendment Act, 1908 as Amended by

Madras Act, 1950 - Power to state govt. to declare any association as unlawful

Unlawful - Allows the exercise of discretion on subjective satisfaction without

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 permitting the grounds to be judicially tested

State of M.P. v. Bharat Singh AIR 1967 SC 1170

April 24, 1963 - Order under S. 3(1)(b) of the M.P. Public Security Act, 1959 -
Direction to the respondent (i) to not to be in any place in Raipur District; (ii)
to proceed to & reside in Jhabua; (iii) to report daily to a police station

Wide discretion - Challenged as violative of A. 19(1)(d) & (e)

Appellant - * S. 3(1)(b) was a reasonable restriction - Security of state

* So long as emergency was in force, the respondent could
not move to the court for the violation of fundamental
right

* Even if S. 3 was void, A. 358 protects the legislative &

executive action taken after proclamation of emergency -
Cannot be challenged

Held - * Unreasonable restriction - No opportunity of being heard - No

stipulation as to the availability of residential accommodation & means of
subsistence

* Act was brought into force before emergency - A. 19 can be invoked - Clause
was void when enacted & was not revived

* Executive action which operate to the prejudice of any person must have the
authority of law to support it - A. 358 do not detract from the rule - No
arbitrary power

(2) Control at the state of exercise of discretion

US Administrative Procedure Act - Judicial review of exercise of

administrative discretion

India - Constitutional configuration of courts - Judge-proof discretion is a

negation of ROL

CONTROL MECHANISM - 2 GROUPS

(i) Failure to exercise the discretion

Abdication, putting fetter on the exercise or jurisdictional facts being wrongly

determined

Authority can be compelled to exercise discretion - But cannot be compelled

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to exercise in a particular manner

Purtabpore Co. Ltd v. Cane Commissioner of Bihar AIR 1970 SC 1896

Clause 6, Sugar Cane (Control) Order, 1955 - Central govt.s power to reserve
any area where sugar cane is grown to a factory - Delegated to Cane
Commissioners by the Central govt. under cl. 11

Appellant - Supply from 208 villages - Allotted by the Cane Commissioner -

5th respondents representation to C.M.

Directions from C.M. - Cane Commissioner allotted 121 to appellant & 99 to

5th respondent

Challenged - * Order not made by Cane Commissioner

* Quasi-judicial proceeding - Opportunity of being heard is not given

Held: * Statutory power - Can only be exercised by the person to whom it is

conferred - C.M.s interference was not proper - Failure of the Cane
Commissioner to exercise the discretion

* As soon as the 5th respondent made request to alter reservations, a lis

commenced - Quasi-judicial - Must have been heard

* Appellants interest adversely affected - Administrative direction cannot

take away a right

(ii) Improper exercise of the discretion

Unreasonable, arbitrary or capricious exercise of discretion - Irrelevant

considerations, acting for improper purpose, bad faith, asking wrong
questions, neglecting the relevant factors etc

G. Sadanandan v. State of Kerala & Another AIR 1966 SC 1925

Emergency - Rule 30(1)(b) of the Defence of India Rules, 1962 - Kerosene

dealer detained - Likely to act prejudicial to the maintenance of supplies &
services essential to the life of the community

Challenged - D.S.P. made a false report in order to benefit his relative

Held: Proclamation of emergency bars the judicial scrutiny in respect of

violation of fundamental rights - Possible to urge for the statutory safeguards
as are permissible under the Rules - Can ask to set aside the order

Under the Rules, if a prima facie claim is made as to mala fideness or as to the

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casual approach, the authority should place sufficient material in the form of
affidavit - Not made

Even during emergency, freedom of citizens cannot be taken away without

justifying necessity specified in the Rules themselves

S. R. Venkataraman v. Union of India & Another AIR 1979 SC 49

Joint Director, Family Planning in the Directorate-General of AIR -

Prematurely retired - President was of the opinion that it was in public
interest [Rule 56(j)(i)]

Challenged - Baseless allegations - Malicious vendetta of the then Chairman

of the Central Board of Film Censors - Adverse remarks - Had a long & clean
record before - Order was arbitrary & capricious - Retiring authority had not
applied its mind to the record

Respondent conceded there was nothing on record to justify the order

Held: * No malice in fact - There was nothing on the record to show the
influence of the Chairman of Central Board of Film Censors

Malice in law - Doing some wrongful act intentionally without just cause or
excuse

* Not necessary to examine the question of malice in law - If discretionary

power has been exercised for an unauthorized purpose, it is generally
immaterial whether its repository is acting in good faith or bad faith

Lord Esher - The Queen on the Prosecution of Richard West brook v. The
Vestry of St. Paneras (1890) 24 QB 375 - If people who have to exercise a
public duty by exercising their discretion take into account matters which the
courts consider not to be proper for the guidance of their discretion, then
in the eye of the law they have not exercised their discretion.

* Mistaken belief - Error of fact - Almost be said to be done in bad faith -

When nothing was on the record, respondent is presumed to be influenced by
extraneous matter

* Gross abuse of power to punish a person or to destroy service career -

Against the purpose of the rule

R. D. Shetty v. International Airport Authority & Others AIR 1979 SC

1628

Tenders were invited from registered second-class hoteliers having atleast 5

years experience for running a second-class restaurant & 2 snack bars at the

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International Airport, Bombay

Acceptance of the tender - Left to the Airport Director - Not bound to accept
any tender & has the right to reject all or any without assigning reasons

Out of 6, only the 4th respondents was complete - Not a registered second-
class hotelier having 5 years experience - Call for producing documentary
evidence - 4th respondent stated about his considerable experience - Tender
was accepted

Writ by a person who was neither a tenderer nor a hotelier - Contended to be

in the same position as successful tenderer (4th respondent)

* 1st respondent was bound to give effect to the most important condition of
eligibility

* Had the appellant knew that the condition of eligibility would be no bar, he
would have competed

4th Respondent - * Term second-class hotelier is meaningless - Grading is

given to hotels & not to the persons running them

* Notice had no statutory force - 1 st respondent was competent to depart from

the standard of norm of eligibility

* Airport Authority had the right reject all or any of the tenders - Can give
contract to anyone

Held: * Exercise of discretion is an inseparable part of sound administration

and, therefore, the State which is itself a creature of the Constitution, cannot
shed its limitation at any time in any sphere of State activity
* It is indeed unthinkable that in a democracy governed by ROL the
executive govt. or any of its officers should possess arbitrary powers over the
interests of an individual. Every action of the executive govt. must be
informed with reason & should be free from arbitrariness. That is the very
essence of ROL & its bare minimal requirement
* The govt. cannot be permitted to say that it will give jobs or enter into
contracts or issue quotas or licences only in favour of those having gray hair
or belonging to a particular political party or professing a particular religious
faith. The govt. is still the govt. when it acts in the manner of granting
largesse & it cannot act arbitrarily. It does not stand in the same position as a
private individual

Action was discriminatory - Excluded others from tendering for the contract -

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Violated A. 14.

Though the 1st respondent had the power to negotiate directly, he did not
exercise the power - Process of awarding a contract by inviting tender was not
terminated

Air India Ltd. v. Cochin International Airport Ltd.

With

Cochin International Airport Ltd. v. Cambatta Aviation Ltd. (2000) 2

SCC 617

Respondents letter to some firms asking quotations for ground handling

services - Combatta Aviation quoted higher offer - Recommended by the
Evaluation Committee - B.O.D. decided to negotiate with Air India (PSU) -
Offer made beneficial - Contract awarded

Challenged - * Having accepted the limited global competitive bidding norm

& having fixed the last date, it was not open to negotiate with Air India
behind the back of Cambatta

* CIAL had not acted fairly & impartially - No opportunity was given to
Cambatta to give better offer

Held: * Decision of the Committee was not binding on B.O.D. - Discretion is

with B.O.D.

* CIAL bona fide believed that involving a P.S.U. & a national carrier would
be more beneficial

* Commercial transaction - Commercial considerations are paramount - State

can choose its own method - Not open to judicial scrutiny, unless dire public
interest so requires

* Even if some defect is found in the decision making process, the decision
should not be interfered with unless it is unreasonable, mala fide or arbitrary
& overwhelming public interest requires so

Decision-making process & not the decision, which is amenable to judicial

review

England - Similar to India

Padfield v. Minister of Agriculture (1968) a All ER 694

Milk Marketing Scheme under Agricultural Marketing Act, 1958 - Milk

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Marketing Board to fix the prices to be paid to milk producers in different
areas

2 remedies for the person aggrieved by the Boards action - Arbitration &
Ministers power to appoint consumers committee & committee of
investigation (S. 19)

Producers near London were of the opinion that the price paid to them did
not reflect the higher value of their milk - Request to the minister to refer the
matter to committee of investigation

Refused - Minister has unfettered discretion to decide whether or not to refer

a particular complaint to the committee of investigation - Minister would be
in a difficult political position if, despite the committees acceptance of the
complaint, the minister should take no action

Held: * Not unfettered discretion - Parliament must have conferred the

discretion with the intention that it should be used to promote the policy and
objects of the Act; the policy and objects of the Act must be determined by
construing the Act as a whole and construction is always a matter of law for
the court. In a matter of this kind it is not possible to draw a hard and fast
line, but if the Minister, by reason of his having misconstrued the Act or for
any other reason, so uses his discretion as to thwart or run counter to the
policy and objects of the Act, then our law would be very defective if persons
aggrieved were not entitled to the protection of the court

* The purpose of the Act - Every genuine complaint must be forwarded to the
committee & anything contrary to this would frustrate that purpose

R v. Metropolitan Police Commissioner ex parte Blackburn (1968) 1 All

ER 763

Increase in illegal gambling in London - Shortage of police - Confidential

instructions from Police Commissioner to stop observation

Policy of not prosecuting the clubs - Writ from a private individual - Lapsed
as the Commissioner reversed the policy

Held - Discretion was not absolute & uncontrollable - Should perform the
duty

United States

Judicial activism - Courts not only substitute their discretion to

administrative discretion but sometimes exercise discretion vested with an
administrative authority

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 Boreta Enterprises v. Department of Alcoholic Beverage Control 84 Cal
Reptr 113 (1970)

Topless waitresses - Dept. revoked liquor license - Contrary to public welfare

& morals

Held: Exercise of discretion was not legal - Not covered under the stipulated
clause

Mere nudity does not constitute a form of sexual activity - The good cause
clause prohibits the Dept. from acting arbitrarily or capriciously

It seems that the public welfare is not a single, platonic archetypal idea, as
it were, but a construct of political philosophy embracing a wide range of
goals including the enhancement of majority interests in safety, health,
education, the economy, and the political process, to name but a few. In order
intelligently to conclude that a course of conduct is contrary to the public
welfare its effects must be canvassed, considered and evaluated as being
harmful or undesirable....
United States v. Professional Air Traffic Controllers Organization 438 F
2d 79 (1970)
25 March 1970 - Large number of air traffic controllers of FAA absented -
Illness & other reasons were given - Strike - Application for injunction
against employees
District Court - Granted injunction - Barred FAA from taking disciplinary
actions - Rules are not proper
Appeal against the bar for taking action
Circuit Court lifted the bar
* The FAA has the power to discipline its employees without judicial
interference
McTiernan v. Gronouski 337 F.2d 31, 34 (2d Cir. 1964), - The taking of
disciplinary action against government employees, including the invocation of
the sanction of dismissal, is a matter of executive discretion, and is subject to
judicial supervision only to the extent required to insure substantial
compliance with the pertinent statutory procedures provided by Congress,
and to guard against arbitrary or capricious action
No proper ground to suggest FAAs action as arbitrary or capricious -
Disciplinary action based on unlawful stoppage of work is within the power
* It is not the business of courts to substitute their untutored judgment for
the expert knowledge of those who are given authority to implement the
general directives of Congress

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J. Waterman - Dissented
FAA admits that it intends to dismiss only a small number of controllers who
were leaders in the strike and to suspend or otherwise discipline certain
others. This proposed course of action is action which indeed flies in the face
of the statute, The Congress has told the FAA that, if the controllers are
found to have participated in a strike, the agency is compelled by the statute
to discharge all controllers who are found to have participated in the strike
Although the above interpretation admittedly puts the FAA in the dilemma of
discharging all the controllers involved in the work stoppage or dropping its
contention that there was such a stoppage, we cannot, as judges, scrap the
meaning of so clear a statute in order to resolve the agency's dilemma for it.
That task belongs to Congress, which, in light of increasing concerted action
by public employees, should enact a more realistic statutory provision
Judiciary can interfere

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