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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

JUDICIAL REVIEW WITH REFERNCE TO EXCESS OR ABUSE / DISCRETION BY


ADMINISTRATIVE AUTHORITIES

SUBJECT

ADMINISTRATIVE LAW

NAME OF THE FACULTY

Prof. (Dr.) P .SRI DEVI Ma’am

Name of the Candidate


Gaurav Jain

Roll No. & Semester

2016035, SEM -VI

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ACKNOWLEDGMENT

I would sincerely like to put forward my heartfelt appreciation to our respected faculty for
administrative law, Prof. Dr P. SRIDEVI for giving me a golden opportunity to take up this
project regarding “JUDICIAL REVIEW WITH REFERENCE TO EXCESS OR ABUSE /
DISCRETION BY ADMINISTRATIVE AUTHORITIES”. I have tried my best to collect
information about the project in various possible ways to depict a clear picture about the given
project topic

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ABSTRACT

Administrative Law has undergone a rapid expansion in the past six decades since its inception
in Independent India. After India became free of British control, India has been witness to a huge
leap in the number of administrative activities and functions in order for its smooth functioning.
The Legislature and the Executive have been the pillars set up by the mandate of the Constitution
and in the best interests of the nation both must work in tandem. This is best seen from the fact
that the Parliament cannot legislate on all aspects of a certain matter and simply vest authority in
the executive to implement the same. In certain instances, it is necessary to leave certain gaps in
laws and allow the same to be filled as per the discretion of the executive authorities on a case to
case basis. If complete freedom of action is given to the administration, it would lead to the
exercise of powers in an arbitrary manner seriously threatening individual liberty. It is, therefore,
necessary to control ‘discretion’ in some measure, to restrain it from turning into unrestricted
absolutism. The legal concept of discretion implies power to make choice between alternative
course of action. If only one action can lawfully be adopted, the decision taken is not the exercise
of discretion but the performance of duty. To say that somebody has a discretion presuppose that
there is no uniquely right answer to his problem. There may, however, by a number of answers
that are wrong in law

The pattern of judicial review in this area reflects reconciliation of two conflicting power on
administrative authority, and courts have not been given power to hear appeals against its
decision, it shows that trust has been placed in the judgement of the authority instead i of the
court. Two, nevertheless, the authority must act within the bounds of law and powers, and since
the legislature cannot have intended that the executive be the final judge of the extent of its
powers, the courts have to come into picture to keep administration within the confines of law.
the interaction of these two values determine the scope of judicial review of discretionary powers
of the administration.

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SYNOPSIS

OBJECTIVE

It is imperative need of the hour that the administrative authorities need to be kept under a
system of checks and balances , administrative law has been developed by vesting vast powers in
the hands of the administrative bodies in order to reduce the burden of the judiciary and effective
, speedy administration but since the authorities have wide range of powers there can be scope
for abuse of power by exercising their discretion in an unjust and arbitrary manner .

SIGNIFICANCE

The significance of this study is to find out how is judicial review used as a method used to
control or keep in check the administrative authorities from exercising their wide discretionary
power in an arbitraty manner and focus on how have the courts helped in providing a redressal
mechanism against the authorities

SCOPE

The scope of the study will be limited to the exercise of excess power or abuse of power by
administrative authorities in India and how have our Courts dealt with it .

REVIEW OF LITERATURE

The researcher has reviewed various journals, articles, books from various sources for the
completion of the project.

RESEARCH METHODOLOGY

The researcher for the topic Judicial review with reference to abuse or excess or
discretionary use of power by administrative authorities will do a descriptive and explanatory
study using various cases to understand the principles laid down by courts in different decisions .

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HYPOTHESIS

Power corrupts a man and absolute power corrupts absolutely which ultimately leads to tyranny ,
anarchy, and chaos so there needs to be limitations on the exercise of powers conferred on
administrative authorities.

RESEARCH QUESTION

1. How is judicial review useful in ensuring the legality of the administrative actions?

2. Judicial review is concerned with reviewing not the merits of a decision or an order but with
how the decision has been arrived at. The review court id concerned with two questions:

(a) Whether the authority has exceeded its power? And


(b) Whether it has abused its power?

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CONTENTS

1. INTRODUCTION

2. ENGLISH RULES REGARDING ABUSE OF ADMINISTRATIVE DISCRETION

3. JUDICIAL BEHAVIOUR AND ADMINISTRATIVE DISCRETION

4. PRINCIPLES GOVERNING EXERCISE OF DISCRETIONARY POWERS

 MALAFIDE
 IMPROPER USE
 IRRELEVANT CONDITIONS
 MIXED CONSIDERATIONS
 LEAVING OUT RELEVANT CONSIDERATIONS
 COLOURABLE EXERCISE OF POWER
 UNREASONABLENESS

5. SCOPE OF REVIEW

6. CONCLSUION

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I - INTRODUCTION

Administrative Law has undergone a rapid expansion in the past six decades since its inception
in Independent India. After India became free of British control, India has been witness to a huge
leap in the number of administrative activities and functions in order for its smooth functioning.
The Legislature and the Executive have been the pillars set up by the mandate of the Constitution
and in the best interests of the nation both must work in tandem.

This is best seen from the fact that the Parliament cannot legislate on all aspects of a certain
matter and simply vest authority in the executive to implement the same. In certain instances, it
is necessary to leave certain gaps in laws and allow the same to be filled as per the discretion of
the executive authorities on a case to case basis.

The Executive uses this discretion in order to act upon the authority vested in them statutorily.
By exercising discretion, it is ordinarily meant that there are various alternatives that the
executive authority can choose to take in a situation. This confers a wide power to choose a
course of action and smells of arbitrary power being given in this case. However, the law has
imposed a check such that this discretionary power is subject to fetters in the sense that the
authority must exercise power as per the directions of the statute. It can exercise discretion but
only to fulfil the spirit of the statute creating it.

Now, the power of discretion in functioning is vested in the administrative authorities. This
ensures that it has sufficient autonomy and freedom in performing its activities. The exercise of
this discretion can be violated in two ways by authorities: firstly, the administrative authority
might fail to exercise the authority vested in it. Secondly, the authorities might exercise this
discretion incorrectly that is, with improper motives, bias or under the influence of another body.
The latter case amounts to abuse of administrative discretion and shall be the focus of this
project.

I shall look into the various grounds on the basis of which abuse of administrative discretion has
been held by the courts. This project shall also delineate the origins of the jurisprudence of abuse
of administrative discretion in India gleaned from English case laws. I will look into a multitude
of Supreme Court case laws which have expounded the various actions that amount to ‘abuse’

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such as mala fides, improper purpose, taking irrelevant considerations, colourable exercise of
power and unreasonableness among others. Finally, I will look into the tools devised by the
courts to check the discretion vested in administrative authorities.

II - ENGLISH RULES REGARDING ABUSE OF ADMINISTRATIVE DISCRETION

English Law expounded upon the theory of judicial review of administrative discretion. It was
believed that the rule of law was sacrosanct and vesting unfettered power of discretion in the
administrative authority amounted to an affront against it. However, scholars began to recognise
that smooth governance required that discretion be not eliminated completely, but checked
against improper exercise by the courts.

In order to exercise this check, the court sought to establish a balance between the authority
exercised by the executive as well as the protection meted out to citizens.

The courts in England were the first to establish that no discretion could be unfettered and devoid
of controls. The matter of Padfield v. Minister of Agriculture, Fisheries and Food 1dealt with
the exercise of discretion by a Minister pertaining to the Milk Marketing Board [MMB]. The
MMB was to hear and decide on different disputes which were referred to it by the Minister.
Thus, the Minister had the discretion to forward the complaints or not. In the instant case, the
milk producers near London complained to the board that the price fixed for its milk was too low
especially for post-war conditions and there was differential pricing across the country.
However, the MMB refused to hear the matter as the Minister declined from referring the matter
to the Board stating that the complainants could not interfere with the ‘democratic machinery’ of
the board which had several other producers on it. The complainants filed a suit stating that the
Minister had violated and abused the discretion that was vested in him.

The court held vehemently that discretion cannot be eliminated completely from the hands of the
executive and similarly, neither can unfettered discretion be granted. It held that the Minister had
used his discretion on the basis of extraneous political motives. The valid use of discretion must
be aimed at promoting the policy and objective of the statute with which the authority itself is
created. Any interpretation which runs counter to this meaning would violate the statute itself
1
[1968] UKHL 1

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and the exercise of discretion would be unlawful. This view was upheld in the future as well and
was cemented by subsequent decisions.

Another instance where the court insisted on fetters being placed on the exercise of discretion
was in the matter of R v. Oxford ex p. Levey. 2 In the instant case, a complaint was made
against the police that it had formed a policy of not prosecuting illegal gaming clubs in London.
The justification provided was that there was tremendous cost involved in doing so and the law
pertaining to it was vague as well. Despite instructions being issued in the interim which cleared
up the issue, the court clarified its position stating that even though the Commissioner had
discretion to pursue prosecution; this was checked by the fetter that he had to mandatorily
comply with public policy by enforcing the law.

A landmark judgment in the UK came to define the standard by which administrative discretion
was set to be violated. Getting its name from the judgment, it came to be known as the
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Wednesbury principle. The Wednesbury matter expounded upon the element of
unreasonableness in exercise of administrative discretion by introducing the concept of
‘reasonable man.’ The English jurisprudence was veering towards greater controls over the
nature of discretion vested in administrative authorities. It was believed that an authority had
maximum discretion provided that its action fell within the realm of reasonableness. Any
interference by courts would be justified only if the action exceeded this realm.

In this regard, the Wednesbury matter is particularly remarkable. In the instant case, the
claimants were awarded a license to run a cinema theatre with the condition that entry to children
below the age of fifteen would be barred. The claimants challenged the attaching of this
condition stating that the Wednesbury Corporation had exceeded the discretion vested in them to
award licenses in the area. The court held that interference was possible if in the exercise of
discretion, irrelevant considerations were taken up, relevant considerations were ignored and
most importantly, the action was so unreasonable that no reasonable man would employ the
same action.

2
(1987) 151 LG Rev 371
3
THE RELEVANCE OF ‘WEDNESBURY UNREASONABLENESS’ IN THE LIGHT OF
‘PROPORTIONALITY’ AS A GROUND FOR JUDICIAL REVIEW RAJAN VARGHESE

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The last element of unreasonableness is known famously as the rule of Wednesbury
unreasonableness which covers within its ambit a host of actions that abuse administrative
discretion. The court created a wide umbrella of ‘unreasonableness’ within which fell numerous
elements such as acting against the spirit of the act, relying on irrelevant consideration, caprice in
decision-making, mistakes and misunderstanding. The court came to a consensus that the
standard of reasonableness is quite high and would be infringed only by an action that no man
would dream of carrying out. This seemingly high standard however, was not applied by the
courts as they lowered this standard while actually applying the principle to tailor it to its idea of
what constituted an abuse of administrative discretion.

The courts in India have adopted the test of Wednesbury reasonableness in order to review the
discretionary actions of administrative authorities. The matter of U.P. Financial Corporation v.
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Gem Cap (India) Pvt. Ltd. stated that the courts cannot interfere in an area where the
administrative authority has discretion to decide upon a matter. In this case, the Appellant loaned
a certain amount to the Respondents who failed to pay it back and were ceased operations within
three months. The Appellant sought to recover the money by taking over the management of the
Respondent which was challenged as unreasonable by the Respondent and this was allowed by
the High Court via a writ petition. In appeal, the Supreme Court held that this would amount to
replacing the decision of the authority with its own. However, the Supreme Court held that it can
only interfere if the decision is so unreasonable that no reasonable person could be expected of
taking the same course of action. In the instant case, acting under the statute to recover the debt
was held to be a reasonable action on the part of the Appellant.

The Supreme Court reiterated this position in the matter of Tata Cellular v. Union of
India 5looked into the grounds on which an administrative decision could be interfered with, by
the court. It was held that irrationality is a feature of the Wednesbury principle and one of the
said grounds of judicial review. This irrationality was defined as any action which was
outrageous in its defiance of logic that no reasonable man would come to the same decision.

4
1993 AIR 1435
5
(1994) 6 SCC 651

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Thus, the Indian jurisprudence has gleaned wisdom from English courts and not placed
Administrative Discretion on too high a pedestal. It has ensured that administrative authorities
comply with fairness and equity even when exercising discretion and choosing between
alternative approaches.

III - JUDICIAL BEHAVIOUR AND ADMINISTRATIVE DISCRETION

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

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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.

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1V - PRINCIPLES GOVERNING EXERCISE OF DISCRETIONARY POWERS

a. Malafide
b. Improper Use
c. Irrelevant Conditions
d. Mixed Considerations
e. Leaving out Relevant Considerations
f. Colourable Exercise of Power
g. Unreasonableness

MALA FIDES

Mala fides by definition implies something done in bad faith, with a deliberate and fraudulent
motive and dishonest intention. Indian Law had interpreted it both widely as well as narrowly.
Earlier it was believed that there was no element of moral turpitude involved in mala fide action
and all that was required was the deviation from the spirit of the statute and acting in a way,
foreign to its purpose. I will deal with this interpretation as a separate head later. Mala fide can
be understood in a narrower sense and be given its tradition meaning of referring to bad faith,
dishonest and corrupt motives. It stems from personal animosity and vindictiveness.

Mala fide should not be confused with bias as the latter is a wider concept and mostly used in
administrative concept. No element on turpitude is attached to it as in the case of mala fide.
Further, mala fide is not similar to the concept of ultra vires as in the latter, the making of the
decision itself is precluded by Law. On the other hand, while decision-making in mala fides is
allowed, the nature of the decision can be challenged owing to be in bad faith. Malice may be on
fact or on law. In the former, there is room for personal animosity whereas in the latter, action is
taken without a just or reasonable cause. To check whether an action is mala fide, the courts
must look into the manner of decision-making and the circumstances in which it is made.

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Instances of mala fide action being struck down are numerous. In the case of Pritpal Singh v.
State of Haryana6, the appointment of 62 sub-inspectors was struck down owing to numerous
discrepancies in the selection process. Discrepancies such as examination sheets being destroyed,
prior to a policy for the same being passed as well as non-presentation of the selection panel’s
scores confirmed the court’s view.

Proving mala fides is quite a task as the court mandates that conclusive proof must be given of
the same. The onus to do so falls on the person alleging mala fides. Further, the court has held
that broad allegations of mala fide will not be taken to establish the same. Since there is a
presumption that the administrative authority acted in good faith, the person alleging mala fides
must give conclusive proof of the same.

In G. Sadanandan v. State of Kerala 7 , 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 Rowjee v. Andhra Pradesh 8 , 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

6
1994 SCC (5) 695
7
[1966] A.I.R. (S.C.) 1925
8
1964 AIR 962

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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.

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 9 , 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.

IMPROPER USE

A statute may confer discretionary powers upon an administrative authority in order to arrive at a
particular decision. However, this discretion is not unlimited and is restricted to the purpose for
which the statute is enacted and the ultimate aim it aims to achieve. The courts can construe a
purpose from the provisions of the statute where no aim is mentioned expressly. In the modern
period of time, there has been a huge growth in the activities that fall under administrative action.
Some authorities are granted a discretion in their functioning which increased the scope of
functioning. However, courts can limit this seemingly unfettered power by checking the original
intent of the statute in vesting the discretionary power. The motive behind an administrative
action should be in line with the statutory objective.

This check is different from mala fides as here, there is no underlying element of malice, caprice
or animosity. This has been elucidated in S.R. Venkatraman v. Union of India 10wherein under

9
1974 AIR 555
10
1979 AIR 49

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a statute; a public servant could be retired in public interest by taking assent from the President.
In the instant case, the Appellant was compulsorily retired on her attaining the age of 50 years.
She alleged that there was non-application of mind and that her retirement was carried out for
extraneous reasons, outside the scope of the statute. This was established from the fact that there
was nothing in her service record to justify premature retirement. The court further held that in
such a case where discretionary power is used for an unauthorised purpose, the element of good
faith or bad faith is irrelevant.

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This was also seen in R.L. Arora v. State of Uttar Pradesh. In this case, the Land
Acquisition Act, 1894 allowed to the State Government to give consent to acquisition of property
for industrial purpose if it proved useful to the public. The government here assented to
acquisition of property by textile factory. This was challenged on the grounds that the
government could not interpret the words of the statute and exercise discretion on the same as
well. The court held that the purpose of the statute was to allow acquisition when construction of
work after acquisition would lead to benefit of people. In this case, the benefit would arise only
after the industry is functioning and not during construction. Hence, the order of the government
was struck down on the grounds that it violated the mandate of the legislation.

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.

11
1964 AIR 1230

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In Barium Chemicals Ltd. v. Company12 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. Agarwal13, 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 Rampur Distillery Co. Ltd. v. Company Law Board14, 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,

12
1967 AIR 295
13
1969 AIR 707
14
1970 AIR 1789

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because the Board did not take into consideration the present acts which were very relevant
factors in judging suitability.

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 15 ,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,16 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.

15
1954 AIR 179
16
1956 SCR 948

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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.17, 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 Ranjit Singh v. Union of India,18 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

17
1964 SCR (1) 809
18
1981 AIR 461

19
principle was stated as “if all relevant factors are not considered, or irrelevant considerations
allowed finding place, the decision is vitiated by arbitrary judgment.”

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,19 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

19
1963 AIR 151

20
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.

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 exercise of the
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,

21
Article 19 requires only reasonable restrictions to be imposed on the rights specified therein.

In Chandeshwari Prasad v. State of Bihar, 20the 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. Singh21, 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
absurd.

In Sheonath v. Appellate Assistant Commissioner,22 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

20
CWJC No.7906 of 2010
21
2264 Cal 435
22
See Padifield v. Ministry of Agriculture, (1968) A.C. 997

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SCOPE OF REVIEW

Discretionary administrative powers are completely beyond the pale of judicial control. It is not
so. A discretionary power is not completely discretionary in the sense of being entirely
uncontrolled. The courts have rejected the concept of absolute and unfettered statutory
discretion. Even when a statute uses words so as to confer ex-facie an “absolute discretion” on
the administrative authority concerned, the discretion can never be regarded as unfettered.27 23 It
is an eternal principle of administrative law that there is nothing like unfettered discretion
immune from judicial reviewability. As per Bahgwati J. in Khudiram v. State of West Bengal, 24
the truth is that in a government, under law, there can be no such thing as unreviewable
discretion. Again as per Bhagwati J. in Sheonandan Paswan v. State of Bihar, 2529 the entire
development of administrative law is characterised as controlling and structuring the discretion
conferred on the State and its officers. The law always frowns on uncanalised and unfettered
discretion conferred on any instrumentality of State and it is the glory of administrative law that
such discretion has been through judicial decisions structured and regulated.30 Krishna Iyer J. in
Baldev Raj v: Union of India26.has also emphasized that, “absolute, power is anathema under our
constitutional order” and that “naked and arbitrary exercise of power is bad in law”. Thus, it is
now very well accepted that even when a discretionary power seemingly appears to be
uncontrolled, actually it is not so and it will be subject to the limitations which courts will imply
therein But at the same time, it should be kept in mind is that judicial review of administrative
action or inaction should be made with caution and not in haste, whenever there is a necessity for
judicial action and obligation, it should be taken. Such action must be taken in public interest and
within the permissible limits.32 Again it is necessary to bear in mind that interference with the
administration can not be meticulous in our constitutional system of separation of powers. The
courts cannot usurp or abdicate, and the parameters of judicial review must be clearly and never
exceeded. The judicial function is limited to testing whether the administrative action has been
fair and free from the taint of unreasonableness and has substantially complied with the norms,
of procedure set for it by rules of public Administration33. The scope of review may be

23
AIR 1975 SC 550 at 558; See also similar observations of Sarkaria J. in
Manager, Govt. Press v. Balliappa, AIR 1979 SC 429 at 434.
24
AIR 1987 SC 877.
25
Id. at 895.
26
AIR 1981 SC

23
conditioned by a variety of factors the wording of the discretionary power, the subject-matter to
which it is related, the character of the authority to which it is entrusted, the purpose for which it
is conferred, the particular circumstances in which it has in fact been exercised the material
available to the court and in the last analysis, whether a court is of the opinion that judicial
interest would be in the public interest. Occasionally, the scope of review may also be influenced
by the form of proceedings in which relief is sought. The power of judicial review of the courts
to control abuses of discretion may vary accordingly, as a party aggrieved seek relief by way of
certiorari or mandamus, or a declaration or an injunction or damages in torts. The extent to which
the courts are entitled to review the exercise of the discretion depends upon the construction of
each individual Act.

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CONCLUSION

As we proceed further into the 21st century, the gamuts of activities that are being left to
administrative control are ever increasing. More and more discretion is being given to
administrative authorities to arrive at decisions without interference from other bodies. It has the
freedom to decide between alternate approaches as per its best judgment.

Despite this seemingly wide freedom, courts in India have taken a leaf from English courts in
that they have curtailed this discretionary power by ensuring that it is within the limits prescribed
by statute, is fair, just and based on relevant grounds and good faith. The courts, in a gamut of
aforementioned cases have made it clear that even when discretion is granted, its abuse by
authorities is not without redressal.

The abuse of administrative discretion takes a number of forms for instance, acting on mala fide
grounds, ignoring relevant considerations and acting on irrelevant ones, making decisions
without cogent material and misconstruing the power granted by law. Even though the courts
have established that interference in these decisions is permitted on certain grounds, it still
respects the process of decision making that the authorities indulge in. The only check courts
impose is that manner of making the decision be fair.

Finally, the court has developed various controls over discretionary action. Firstly, it ensures that
the action taken by the authority is not irrational and patently unreasonable such that no
reasonable person could be expected to arrive at the same decision. It ensures that the authority
acts within the limits of the statute and works in order to give the most effective and just decision
based on sound and irrefutable grounds. Secondly, the courts have employed the English rule of
Proportionality to ensure that the response of the authority to actions by individuals is
proportional and not grossly unjust.

The freedom given to administrative authorities to decide matters, using their best judgment
countered with the overarching judicial control is a sign of the balance maintained in Indian
jurisprudence. This balance makes all the difference: on the one side lies unfettered power and
on the other, judicial supremacy. Middle ground is perhaps the best place to be.

25