ABUSE OF ADMINISTRATIVE DISCRETION

Definition:Discretion in laymans 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. Problem of administrative discretion: 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 mans 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 discretionnon 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.

Abuse Of Discretion:(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 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. 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. 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.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 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 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. Difference Between A Power Exercised For An Improper Purpose And On Irrelevant Considerations: 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 nonexistent 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 cant 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. 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.

(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. 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 Prasads 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.

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. Conclusion: 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. Bibliography and webliography STATUTES REFERED: The Constitution of India,1950.

BOOKS REFERED: The Constitutional Law of India 47th Edt.2010 by Dr.J.N.Pandey. The Constitutional Law of India 6th Edt. 2010 by M.P.Jain. Administrative Law - 4th by Takwani. Administrative Law 4th Edt. M.P.Jain.

D.WEBSITES AND LEGAL DATABASES: www.indiankanoon.org. www.manupatra.com. www.wikipedia.org. www.cdj lawjournal.com.

Table Of Content

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Content Definition Judicial Behaviour And Administrative Discretion In India Abuse Of Discretion Difference Between A Power Exercised For An Improper Purpose And On Irrelevant Consideration s Conclusion Bibliography and webliography

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PROJECT On

Administrative Law
ABUSE OF ADMINISTRATIVE DISCRETION

PREPARED BY MURUGESAN.I

THE TAMILNADU DR.AMBEDKAR LAW UNIVERSITY

School of Excellence in Law (SOEL) Poompozhil No.5, Dr.D.G.S.Dinakaran Salai, Chennai-60002

Name

MURUGESAN.I
3YR B.L (HONOURS)

Class

Date of submission

18.10.2011

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