School of Law

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

Dehradun-248007

August- December, 2020

ADMINISTRATIVE LAW
Under the guidance of
Prof. Ashutosh Tripathi

Name- Zainub
R120216045
500055388

JUDICIAL CONTROL
Judicial c0ntr0l mechanism 0f administrative discreti0n is exercised at tw0 stages.

A. C0ntr0l at the stage 0f delegati0n 0f discreti0n.

B. C0ntr0l 0f the exercise 0f discreti0n.

A. C0ntr0l at the stage 0f delegati0n 0f discreti0n.

1) Administrative discreti0n and art 14.

2) Administrative discreti0n and art 19, 21, 22 etc.

B. C0ntr0l at the state 0f exercise 0f discreti0n.

1. Abuse 0f discreti0n- when the auth0rity has n0t exercised its discreti0n pr0perly.

2. N0n applicati0n 0f mind- the auth0rity is deemed n0t t0 have exercised its discreti0n at all.

(1) Abuse 0f discreti0n (N0t pr0perly exercised)

(i) Unreas0nable exercise 0f discreti0n.

(ii) Mixed m0tives.

(iii) Bad Faith.

(iv) Subjective Satisfacti0n.

(v) Relevant and Irrelevant c0nsiderati0n.

(vi) Legitimate expectati0n.

(vii) Pr0p0rti0nality.

2. N0n Applicati0n 0f Mind- (Failure t0 exercise )

(i) Abdicati0n and dictati0n 0f discreti0n.

(ii) Fettering 0f discreti0n.

(iii) Est0ppel.
(iv) Delegati0n 0f discreti0n.

(v) Acting Mechanically.

JUDICIAL C0NTR0L

(A) Abuse 0f DISCRETI0N:

An auth0rity shall be deemed t0 have abused its jurisdicti0n when it exercises its p0wer f0r an
impr0per purp0se 0r 0n extrane0us c0nsiderati0n, 0r in bad faith, 0r leaves 0ut a relevant c0nsiderati0n
0r d0es n0t exercise the p0wer by itself but 0f the instance and discreti0n 0f s0me0ne else.

(1) Mala Fides :

Mala fide 0r bad faith means dish0nest intenti0n 0r c0rrupt m0tive. At times, the c0urt uses the
phrase 'mala fide' in the br0ad sense 0f any impr0per exercise 0r abuse 0f p0wer. In this sense mala fide
is equated with any ultra virus exercise 0f administrative p0wer. H0wever the term 'mala fide' here has
n0t been used in the br0ad sense but in narr0w sense 0f exercise 0f p0wer with dish0nest intent 0r
c0rrupt m0tive.

Mala fide in this narr0w sense, w0uld include th0se cases where the m0tive behind an
administrative acti0n is pers0nal anim0sity itself 0r its relatives 0r friends. Mala fide exercise 0f
discreti0nary p0wer is bad as it am0unts t0 abuse 0f p0wer.

Pratap Singh v. Punjab AIR 1964 SC :

The appellant a civil surge0n in the empl0yment 0f the state g0vt. was placed under suspensi0n
and a disciplinary acti0n was started against him 0n the charges 0f bribe. The appellant alleged that
disciplinary acti0n had been initiated at the instance 0f Chief Ministry t0 wreak pers0nal vengeance 0n
him. Fr0m the sequence 0f events, certain tape rec0rdings and the absence 0f an affidavit denying
allegati0ns, the c0urt c0ncluded that charge 0f mala fide is pr0ved. This case sh0ws that even if g0vt. has
legal p0wer t0 take disciplinary acti0n f0r misc0nduct against a civil servant, it c0uld n0t s0 if the acti0n
was activated 0ut 0f malice.

R0wjee v. State 0f Andhra Pradesh (AIR 1967 SC) :

The c0urt held that Chief Minister had acted mala fide in giving directi0ns regarding the selecti0n
0f particular transp0rt r0ute f0r nati0nalizati0n, as he s0ught t0 take vengeance against the private
0perat0rs 0n th0se r0utes, as they were his p0litical 0pp0nent.

G. Sadananda v. State 0f Kerala (AIR 1966 SC):

In this case, the petiti0ner, a ker0sene dealer was detained under the Defense 0f India Rules, t0
prevent him fr0m acting in a manner prejudicial t0 the maintenance 0f supplies and services essential t0
the life 0f c0mmunity. The fact were br0ught bef0re the c0urt t0 sh0w that the D.S.P. made a false
rep0rt against the petiti0ner in 0rder t0 benefit his relative in the same trade by eliminating the
petiti0ner fr0m the trade, by 0btaining the distribut0rship f0r ker0sene. The D.S.P. filed n0 affidavit t0
c0ntr0vert allegati0ns, and the affidavit filed 0n behalf 0f g0vt. by the H0me Secretary was very
defective. The SC declared the 0rder 0f detenti0n t0 be clearly and plainly mala fide.

The burden 0f pr0viding mala fide is 0n individual making the allegati0n as the 0rder is regular 0n its face
and there is a presumpti0n in fav0ur 0f the administrati0n that it exercises its p0wer in g00d faith and
f0r public benefit. The petiti0ner sh0uld pr0duce sufficient material t0 c0nvince the c0urt 0f the mala
fide 0f the g0vt. The burden 0f the individual is n0t easy t0 discharge as it requires g0ing in t0 the
m0tives 0r the state 0f mind 0f an auth0rity, and it is hardly p0ssible f0r an individual t0 kn0w the same
and it is all the m0re difficult t0 establish it bef0re a c0urt.

The difficulties inherent in pr0ving mala fides are br0ught by SC in E.P. R0yappa v. State 0f Tamil
Nadu AIR 1974 SC alth0ugh maj0rity felt that these were circumstances t0 create suspici0us ab0ut the
b0nafides 0f the g0vt. nevertheless the c0urt refused t0 declare the acti0n malafide as suspici0n c0uld
n0t take the place 0f pr00f and pr00f needed here is high degree 0f pr00f.

Malafide may als0 be inferred fr0m the auth0rity ign0ring apparent facts either deliberately 0r
sheer av0idance. Because 0f the difficulty 0f pr0ving malafides, 0nly a few cases have 0ccurred s0 far in
which administrative 0rders may have been quashed 0n this gr0und.

2. Irrelevant C0nsiderati0n:

A discreti0nary p0wer must be exercised 0n relevant and n0t 0n irrelevant 0r extrane0us

c0nsiderati0ns. It means that p0wer must be exercised taking in t0 acc0unt the c0nsiderati0n menti0ned
in the statute. If the statute menti0ns n0 such c0nsiderati0ns, the p0wer is t0 be exercised 0n
c0nsiderati0ns relevant f0r the purp0se f0r which it is c0nferred. If the auth0rity c0ncerned bags
attenti0n t0 0r takes in t0 acc0unt wh0lly irrelevant 0r extrane0us circumstance, events 0r matters then
the administrative acti0n is ultra-vires and will be quashed.

Even when a statute d0es n0t fully spell 0ut the relevant criteri0n 0r c0nsiderati0n and may
appear t0 c0nfer p0wer in alm0st unlimited terms, the c0urt may, by l00king in t0 the purp0se, ten0r
and pr0visi0n 0f the act, assess whether extrane0us 0r irrelevant c0nsiderati0n have been applied by the
administrative in arriving at its decisi0n.

Ram Man0har L0hia v. State 0f Bihar (AIR 1966 SC) :

The petiti0ner was detained under the Defence 0f India Rules, 1962 t0 prevent him fr0m acting in
a manner prejudical t0 the maintenance 0f 'law and 0rder' whereas the rules permitted detenti0n t0
prevent subversi0n 0f 'public 0rder'. The c0urt struck d0wn the 0rder as in its 0pini0n, the tw0 c0ncept
were n0t the same, 'law and 0rder' being wider then public 0rder.
Barium Chemicals Ltd. v. C0mpany Law B0ard AIR 1967 SC :

In this case the C0mpany Law B0ard exercising its p0wers under Sec. 273 0f the C0mpanies Act
1956 0rdered 0n investigati0n in t0 the affairs 0f Barium Chemicals Ltd. H0wever the basis 0f the
exercise 0f discreti0n f0r 0rdering investigati0n was that due t0 faulty planning the c0. incurrent a l0ss as
a result 0f which the value 0f the shares had fallen and many eminent pers0ns had resigned fr0m the
b0ard 0f direct0rs. The c0urt quashed the 0rder 0f the b0ard 0n the gr0und that the basis 0f exercise 0f
discreti0n is extrane0us t0 the fact0rs menti0ns in sec. 237 f0r such exercise 0f discreti0n.

D. Ramaswami v. State 0f Tamil Nadu (AIR 1982 SC) :

The 0rder 0f c0mpuls0ry retirement 0f a g0vernment servant was struck d0wn as it was passed
fall0wing cl0se up0n needs 0f his pr0m0ti0n t0 a higher p0st. The basis 0f retirement was 0ne adverse
entry in his c0nfidential file several years pri0r t0 his pr0m0ti0n.

3. Leaving 0ut relevant c0nsiderati0n:

If in exercising its discreti0nary p0wer an administrative auth0rity ign0res relevant c0nsiderati0ns,

its acti0n will be invalid. An auth0rity must take in t0 acc0unt the c0nsiderati0n which a statute
prescribes expressly and impliedly.

It was difficult t0 establish that the auth0rity had left 0ut relevant c0nsiderati0ns because 0f the
absence 0f reas0ns. Theref0re n0t much case law had 0ccurred under this head with the c0urts
insistence 0n the supply 0f reas0ns by administrative auth0rities at least t0 them and als0 their tendency
t0 l00k in t0 the g0vt. rec0rd; this gr0und has bec0me imp0rtant 0ne.

Rampur Distillery C0. v. C0mpany Law B0ard (1969) 2 SCC

The C0mpany Law B0ard acting under Sec. 326 0f C0mpanies Act 1956, refused t0 give its
appr0val f0r renewing the managing agency at the c0. c0ncerned 0n the gr0und 0f past gr0ssly impr0per
misc0nduct 0f the managing direct0r 0f the managing agent in relati0n t0 vari0us 0ther c0mpanies 0f
which he was direct0r. The SC th0ught it did n0t find any fault in taking in t0 c0nsiderati0n the best
c0nduct, held the 0rder bad because the b0ard did n0t take in t0 c0nsiderati0n that present acts which
were very relevant fact0rs in judging suitability.

Ashadevi v. K. Shivraj AIR 1979 SC :

The petiti0ner was detained with a view t0 preventing him fr0m engaging in transp0rting
smuggled g00ds. The detaining auth0rity based its decisi0n 0n the detenu's c0nfessi0nal statement
bef0re the cust0m 0fficers, but the fact having bearing 0n the questi0n whether his c0nfessi0n was
v0luntary 0r n0t were n0t placed bef0re auth0rity. It was held that since the auth0rity did n0t c0nsider
vital facts relevant t0 the detenti0n 0f the petiti0ner the detenti0n 0rder was bad.
4. Mixed C0nsiderati0ns:

The attitude 0f judiciary 0n the questi0n 0f exceed c0nsiderati0n d0es n0t depict a unif0rm
appr0ach 0f all types 0f cases. In preventive detenti0n cases, the c0urt have taken a strict view 0f the
matter and has held such 0n 0rder invalid if based 0n any irrelevant gr0und al0ng with relevant gr0unds.

Shibban Lal v. State 0f U.P. (AIR 1954 SC):

The petiti0ner was detained 0n tw0 gr0unds, first that his activities were prejudicial t0 the
maintenance 0f supplies 0f essentials t0 c0mmunity and sec0nd that his activities were injuri0us t0 the
maintenance 0f public 0rder. Later g0vt. rev0ked his detenti0n 0n the first gr0und as either it was
unsubstantial 0r n0n existent but c0ntinued it 0n the sec0nd. The c0urt quashed the 0riginal detenti0n
0rder.

5. Unreas0nable exercise 0f discreti0n:

'Unreas0nableness' may als0 mean that even th0ugh the auth0rity has acted acc0rding t0 law in
the sense that it has n0t acted 0n irrelevant gr0unds 0r exercised p0wer f0r an impr0per purp0se, yet it
has given m0re weight t0 s0me fact0rs then they deserved as c0mpared with 0ther fact0rs.

Unreas0nableness may furnish a gr0und f0r interventi0n by the c0urt when the c0nstituti0n 0f
India 0r statute s0 requires A. 14 0f the c0nstituti0n guarantees equality bef0re law but the c0urts have
permitted reas0nable classificati0n t0 the made.

In Maneka Gandhi v. U0I AIR 1979 SC it was held that an 0rder made under Passp0rt Act, 1967
c0uld be declared bad if it s0 drastic in nature, as t0 be imp0sing unreas0nable restricti0ns 0n the
individual freed0m.

R.D. Shetty v. Internati0nal Airp0rt Auth0rity (1979) 3 SC:

The tenders f0r running a restaurant were invited by Airp0rt Auth0rity fr0m 'registered sec0nd
class h0teliers'. It was clearly stipulated that acceptance 0f tender w0uld rest with the Airp0rt Direct0r
wh0 can reject 0r accept any tender with0ut assigning any reas0n. The highest tender was accepted but
the tenderer was n0t an h0telier at all. A writ petiti0n was field by a pers0n wh0 was himself neither a
tenderer n0r an h0telier. His grievance was that he was in the same p0siti0n as the successful tenderer
because if an essential c0nditi0n c0uld be ign0red the in the tender case why n0t in the petiti0n.

The SC accepted the plea 0f l0cus standi in challenging the administrative acti0n J. Bhagwati
held. :

(1) Exercise 0f discreti0n is an inseparable part 0f s0und administrati0n.

(2) It is well settled rule 0f act law that an executive auth0rity must be rig0r0usly held t0 the
standard by which it pr0fesses its acti0n t0 be judged.
(3) It is indeed unthinkable that in a dem0cracy g0vernment by the rule 0f the executive g0vernment
0r any 0f its 0fficers sh0uld p0sses arbitrary p0wers 0ver the interest 0f an individual. Every acti0n 0f the
g0vt. must be influenced with reas0ns and sh0uld be free fr0m arbitrariness.

(4) The g0vt. can n0t be permitted t0 say that it will give j0bs 0r enter int0 c0ntract 0nly in fav0ur 0f
th0se having gray hair 0r bel0nging t0 a particular party. Exercise 0f discreti0n must n0t be arbitrary,
fanciful and influenced by extrane0us c0nsiderati0ns. In matters 0f discreti0n the ch0ice must be
dictated by public interest and must n0t be unprincipled 0r unreas0nable.

Srilekha Vidyarthi V State 0f U.P. (AIR 1991 SC) (P-64 A. Jain)[H1]

6. Subjective Satisfacti0n

The satisfacti0n 0f the executive must be based 0n right test and right c0nstructi0n 0f a statute
and as materials which had pr0bative value and were such as nati0nal human being w0uld c0nsider
c0nnected with the fact in respect 0f which the satisfacti0n was t0 be reached. The satisfacti0n 0ught t0
be based 0n relevant and n0n-extrane0us c0nsiderati0n

State 0f Rajasthan v. U0I. (AIR 1977 SC)

The Supreme C0urt 0bserved that alth0ugh the c0urt c0uld n0t g0 int0 the c0rrectness 0f the
decisi0n, if the satisfacti0n 0f the president was based 0n malafide 0r wh0lly extrane0us 0r irrelevant
gr0und, the c0urt w0uld have jurisdicti0n t0 examine it because in that case there w0uld be n0
satisfacti0n 0f the president. Alth0ugh the satisfacti0n 0f the president c0uld n0t be challenged, the
existence 0f the satisfacti0n c0uld be challenged.

B) 0n Applicati0n 0f Mind (Failure t0 exercise discreti0n)

Where discreti0n has been c0nferred 0n an auth0rity it is expected t0 exercise the same by
applying its mind t0 the facts and circumstances 0f the case in hand, 0therwise its acti0n 0r decisi0n will
be bad and the auth0rity is deemed t0 have b0iled t0 exercise its discreti0n; the auth0rity may n0t apply
its mind t0 the vital facts, 0r may n0t c0mply with the c0nditi0n precedent f0r the exercise 0f its p0wer,
0r it may act mechanically 0r with0ut due cure 0r it may abdicate its p0wer t0 s0me0ne else, 0r it may
0ut under the dictati0n 0f superi0r, 0r it ay imp0se fetters 0n the exercise 0f its discreti0nary p0wers.
These categ0ries are n0t exclusive but 0verlapping

1. Abdicati0n 0f functi0ns

An auth0rity t0 wh0m discreti0n has been granted by a statute may leave it t0 be exercised by the
sub0rdinates with0ut acting it self an 0rder made by sub0rdinate is n0t valid.
 Manikchand V. Sate AIR 1973 g0a/Guj[H2]

The scheme 0f nati0nalizati0n 0f certain bus r0ute was published by the manager 0f the state
r0ad transp0rt c0rp0rati0n with0ut the c0rp0rati0n itself c0nsidering the scheme th0ugh the statute
required that it was the c0rp0rati0n which was t0 c0nsider the scheme.

2) Acting under dictati0n

A situati0n 0f the auth0rity n0t exercising discreti0n crises when the auth0rity d0es n0t c0nsider
the matter it self but exercise its discreti0n under the dictati0n 0f a superi0r auth0rity. This in law w0uld
am0unt t0 n0n exercise 0f its p0wer by auth0rity and will be bad. Alth0ugh the auth0rity purp0rts, t0 act
itself yet, in effect it is n0t s0 as it d0es n0t take the acti0n in questi0n in its 0wn judgment as is intended
by the statute.

C0mmissi0ner 0f P0lice v. G0rhardas Bhanji (AIR 1952 SC)

The B0mbay p0lice act 1902 granted auth0rity t0 the c0mmissi0ner 0f p0lice t0 grant license far
the c0nstructi0n 0f Cinema theatres. The c0mmissi0ner granted license t0 the resp0ndent 0n the
rec0mmendati0n 0f an advis0ry c0mmittee but later cancelled it at the directi0n 0f state g0vt. The c0urt
held that cancellati0n 0rder bad as it had c0me fr0m g0vt. and the c0mmissi0ner merely acted as
transmitting again.

Purtabp0re C0. Ltd. v. Canee C0mm. 0f Bihar (AIR 1970 SC)

The Cane c0mmissi0ner wh0 had the p0wer t0 reserve sugarcane areas f0r sugar fact0ries, at the
dictati0n 0f C.M. excluded 99 villages fr0m the area reserved by him in fav0ur 0f the appellant c0mpany.
The c0urt quashed the exercise 0f discreti0n 0n gr0und that he abdicate his p0wer by exercising it at the
dictati0n 0f s0me 0ther auth0rity.

There is, h0wever a difference between seeking advice 0r assistance and being dictated. Advice 0r
assistance may be taken s0 l0ng as the auth0rity c0ncerned d0es n0t mechanically act 0n it, and itself
take the final decisi0n. Thus in the G0rdhandas case the c0urt held that granting 0f licence 0n the
rec0mmendati0n 0f advis0ry c0mmittee was n0t bad as the will 0f the auth0rity cann0t be said t0 be
0verb0rne by it.

3) Imp0sing fetters 0n the exercise 0f discreti0n

When a statute c0nfers p0wer 0n an auth0rity t0 apply a standard (as is the case in administrative
discreti0n) it is expected 0f it t0 apply it fr0m case t0 case, n0t t0 fetter its discreti0n by declarati0n 0f
rules 0r p0licy t0 be f0ll0wed by it unif0rmly in all cases. What is expected 0f the auth0rity is that it
sh0uld c0nsider each case 0n its merit and then decide it. If instead, it lays d0wn a general rule t0 be
applicable t0 each and every case, then it is preventing itself fr0m exercising its mind acc0rding t0 the
circumstances 0f each case and this am0unt t0 g0ing against what statute had intended the auth0rity t0
d0.

Gell v. Teja N00ra (1903) LR B0m

The C0mmissi0ner 0f p0lice had discreti0n t0 refuse t0 grant a licence f0r any land c0nveyance which he
might c0nsisting t0 be insufficiently s0und 0r 0therwise c0mfit far c0nveyance 0f the public. Instead 0f
applying his discreti0n t0 grant licence 0r n0t, he issued a general 0rder setting details 0f c0nstructi0n
which are required t0 be ad0pted f0r licence. The c0urt held the 0rder illegal.

The p0siti0n is well established that the exercise 0f statut0ry discreti0n cann0t be f0ll0wed by ad0pting
rigid p0licy 0r a mechanical rule. A case s0mewhat g0ing against this pr0p0siti0n t0.

Shri Ram Sugar industries v. State 0f A.P. AIR 1974 SC

A tax was levied 0n the purchase 0f sugarcane by sugar fact0ries but the g0vt. was given p0wer t0
exempt fr0m payment 0f tax any new sugar fact0ry. H0wever the g0vt. made it a p0licy t0 grant
excepti0n 0nly t0 fact0ries in the c0-0perative sect0rs. and 0n the basis 0f this p0lity denied excepti0n t0
the appellant. C0urt upheld the acti0n 0f the g0vt. The maj0rity justified its view 0n the gr0und that it
was 0pen t0 the g0vt. t0 ad0pt a p0licy t0 make a grant 0nly t0 a certain classes and n0t t0 s0me 0ther
class.

Justice Mathew delivering the dissenting 0pini0n. The min0rity emphasized that an auth0rity entrusted
with a discreti0n must n0t by ad0pting a rule 0f p0licy disable itself fr0m exercising it s discreti0n in
individual case.

4. Delegati0n 0f Discreti0n

Delegati0n means transfer 0r transmissi0n 0f discreti0n fr0m a superi0r auth0rity t0 a

sub0rdinate. It may take place when the law either expressly 0r impliedly pr0vide f0r such p0ssibility.

Ganpati Singh v. State 0f Ajmer (AIR 1955 SC)

The P0wer t0 issue certain rule was c0nferred 0n the c0mmissi0ner but he delegated the p0wer
t0 district magistrate the c0uld held that Chief C0mmissi0ner acti0n in delegating his p0wer was
ultravires.

5. Acting Mechanically

An auth0rity can n0t be said t0 exercise statuary discreti0n when it passes an 0rder mechanically
and with0ut applying its mines t0 the facts and circumstances 0f the case. This may happen either
because the auth0rity has taken 0ne view 0f tis p0wer 0r because 0f inertia 0r laziness 0r because 0f the
its reliance 0n the sub0rdinates.
Nand Lal v. Bar C0uncil 0f Gujarat (AIR 1981 SC)

It was held that in f0rwarding a case t0 the disciplinary c0mmittee the c0uncil can n0t act
mechanically it must apply its mind t0 find 0ut whether these is any reas0n t0 believe that any adv0cate
has been guilty 0f misc0nduct.

Jaswant Singh v. State 0f Punjab (AIR 1958 SC)

Under preventi0n 0f c0rrupti0n act, 1947 the sancti0n 0f g0vt. is necessary f0r pr0secuting a
public servant 0f certain 0ffences. It has been held that the sancti0n under the act is n0t intended t0 be
an aut0matic f0rmality. The facts c0nsisting the 0ffence charged sh0uld be placed bef0re the sancti0ning
auth0rity which sh0uld decide the matter after applying its mind t0 them.

G. Sadanand v. State 0f Kerala (AIR 1966 SC)

Supreme C0urt c0mmented adversely 0n the casual manner in which the deciding auth0rity had
acted in passing the 0rder. The 0rder was quashed with a sh0rt reminder t0 the administrati0n that it
sh0uld be m0re careful in exercising its p0wers. The c0urt p0inted 0ut that casual use 0f unfettered
p0wer by them may ultimately p0se a seri0us threat t0 basic values 0f the dem0cratic way 0f life.