HIMACHAL PRADESH

NATIONAL LAW UNIVERSITY

2017-2018
Assignment of Administrative Law
Submitted to Submitted by:-

Dr. ALOK KUMAR KUNAL MEHTO

(Assistant Professor) Roll no- 16

 JUDICIAL REVIEW OF ADMINISTRATIVE ACTION ON MALICE

INTRODUCTION

Administrators have the power of decision making by making law and innumerable rules under
this. The law prescribes the procedures to be followed and guidelines to be respected in the
exercise of discretion involving decision making. However due to the complexity of modern
socio-economic conditions, the discretionary powers of the administrative authorities have
increased enormously. The primary function of executive are execution of laws, evolving and
implementing government policies, providing public health, safety and morality and standards of
life in the nation. For the performance of these vast and large functions and for the best
administration and to obtain the required goal they need powers. Such powers are delegated by
parliament to administer. Therefore gradually vast powers are vested and accumulated in the
hands of executive. It has become necessary to empower them with wide discretionary powers
for the speedy and efficient administration. "Every rose has thorns", similarly these vast wide
discretionary powers, which are vested in executive may be used for the public welfare and may
be used for selfish needs of the executive. The powers are like that of a knife having edges on the
two sides1.

ADMINISTRATIVE DISCRETION AND JUDICIAL REVIEW

The dictionary meaning of discretion is "making a free choice or freedom of act". But the
meaning of Administrative discretion differs a little from the former one. Administrative
discretion means to give a decision on a matter with various alternative available, but the
judgment should be with reference to rules of reason and justice. The administrative discretion
should not be based on personal notions and fancies 2. Article 14 of the Constitution of India
provides for the clause of equality before law and with this it protects the citizens from
unreasonableness, unjust and arbitrary action of government. When we speak of administrative
discretion, we meant that a discrimination may be reached upon the basis of consideration not
entirely subject of proof or disproof. It may be practically suitable to say that discretion includes
1
1 MP JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 2017 (8 TH ed. 2017)
2
C.K. TAKWANI, LECTURES ON ADMINISTRATIVE LAW 286, (6 TH ed. 2017)
the case in which the ascertainment of fact is legitimately left to administrative determination.
Dicey says "whenever there is discretion, there is room for arbitrariness and that in a republic no
less than under a dominion discretionary authority on the part of the government must mean
insecurity for legal freedom on the part of its subject.3"

It is general rule that court should not interfere with the administrative functions and actions
taken by administrative authorities in exercise of discretionary power. But where the legislature
has confided the power to a particular body, with a discretion how it is to be used, it is beyond
the power of any court to contest the discretion. This does not mean that the administrative
authorities should possess unregulated and vast discretionary powers. If they are left with vast
discretion powers, it leads to mal-administration, corruption, suppression and atrocities over the
poor people. Too much discretion causes too much abuse of powers.

EXCESS OR ABUSE OF DISCREATION

The duty of legislature is to legislate the statutes for the country. The duty of executive is to
implement them. For the proper implementation, the parent Acts permits the executives to use
discretionary powers to certain extent. But such discretionary powers should not be used in excess
than necessary and also should not be abused then the court can interfere. There are 9 circumstances
in which excess or abuse of discretion occurs. In fact all these circumstances overlap with each other
to a very great extent and run into one another. (i) Exceeding jurisdiction, (ii) irrelevant
consideration, (iii) mixed considerations, (iv) mala fide, (v) improper use, (vi) colorable exercise
of power, (vii) unreasonableness, (viii) violation of principle of natural justice, (ix) leaving out
relevant consideration4.

Mala fide or Bad Faith.-

An action is mala fide if it is contrary to the purpose for which it was authorized to be
exercised.Where an authority vested with discretionary powers exercises it with an intention to
achieve an object, other than that for which he believes the power to have been conferred, it
would amount to fraudulent exercise of power, which broadly speaking is ail incident of mala
3
Id.
4
Visited at (May, 20,2018, 6:30 PM), shodhganga.inflibnet.ac.in/bitstream/10603/132460/13/13_chapter%206.pdf
fide use of power. Similarly it also covers the cases where the authority concerned is motivated
by personal spite, vengeance and animosity towards those who are directly affected by its
exercise5.
The concept of bad faith eludes precise definition. In its popular sense mala-fide means ill-will,
dishonest intention or corrupt motives. 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 administrative action may,
nevertheless, be declared bad if the motivation behind the action is not honest. At times, the
courts use the phrase “mala tides” in the broad sense of any improper exercise or abuse of power.

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 6. In this sense, mala fides is equated
with any ultra-vires exercise of administrative power, however, in the narrow sense, the term
“mala fide” has been used in the sense of exercise of power with dishonest intent or corrupt
motive. In this narrow sense mala fide would include cases where the motive force behind an
administrative action is personal animosity, spite, vengeance, personal benefits to the authority
itself or its relations or friends, de Smith states that “in relation to the exercise of statutory
powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised
maliciously if its repository is motivated by personal animosity towards those, who are directly
affected by its exercise. A power is exercised fraudulently if its repository intends to achieve an
object other than those which he believes the power to have been conferred”7
Mala fide exercise of discretionary, power is bad as it
amount to abuse of power. Mala fides or malice may be of two types8
i) Malice in fact or express malice
(ii) Malice in law or legal malice.

(i) Malice in fact or express malice

5
Id.
6
Jaichand v.State of West Bengal AIR 1967 SC 483.
7
DE SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION , 4th edn. (1980) p. 335.
8
State of Maharashtra v. Budlikata, (1993)3 SCC 71 (para 7).
Viscount, LJ. in the case of Shearer v. Shields9 observed ‘malice in fact’ means an actual
malicious intention on the part of the person who has done the wrongful act, and it may be, in
proceedings, based on wrongs independent of contract, a very material ingredient in the question
of whether a valid cause of action can be stated. In other words, ‘malice in fact’ means an act
committed due to personal spite corrupt motive or malicious intention. Thus express malice
means an act committed because of personal ill corrupt motive, or other improper purpose10.
In Pratap Singh v. State of Punjab11, the court quashed the
Governmental order on the ground that it was passed for satisfying a private or personal grudge
of the- authority against the petitioner. In this case the petitioner was a civil surgeon in the
employment of the State Government, who had been granted leave preparatory to retirement and
subsequently leave was revoked and he was placed under suspension pending the result of
inquiry into certain charges of misconduct against him. A disciplinary action was started against
him on the charge that he accepted bribe from some patient prior to going on leave. The legality
of the order was challenged, inter alia, on the ground that the order was mala fide as it was
passed by or at the instance of the Chief Minister of Punjab. He was personally hostile to him by
reasons of certain incidents and circumstances which he set out in the petitions. It was alleged
that the impugned order was prompted by the desire on the part of the Chief Minister to wreak
personally his vengeance on the appellant. Ayyanger, J., held that he, who seeks to invalidate an
act or order, must establish the charge of bad faith, an, abuse or a misuse by Government of its
power. While the indirect ill-will is not to be held established except on clear proof thereof, it is
obviously difficult to establish, the state of a man's mind, for that is what the appellant has to
establish within case though this may sometimes be done. Every power vested in a public
authority or body has to be used honestly, bona fide and reasonably.
The case shows that even if the government acts within its legal
authority, and has legal power to take disciplinary action for misconduct against a civil servant, it
could not so act if the action was out of malice. So, in one sense, and this was pointed out by the
court itself, it was a case of ultra-vires since the purpose of the power vested in the government
to take disciplinary action was to ensure probity and purity in the public services, and not to
wreak personal vengeance. In another sense, it was not a case of ultravires for the order was

9
(1914) AC 808.
10
Edington v. Fitzenourice, (1884)29 Ch. D. 459; Short v. Poole (1926) Ch. 66.
11
AIR 1964 SC 72
regular on its face; the government had a clear authority to take disciplinary action for the
alleged misconduct of its employees and accordingly, the government action was literally intra-
vires. In this sense, mala fides is a distinct ground for quashing administrative action apart from
ultra-vires.
In State of Punjab v. Gurdial Singh12 the land acquisition proceedings for acquiring the land of
the petitioners for building a mandi were challenged on the grounds that they were mala fide. It
was alleged that the proceedings were initiated as a result of the influence wielded by a minister
who was related to the owner of the land which was sought to be acquired initially and then
dropped. In absence of any affidavit by the minister denying the allegations, the court held that
proceedings mala fide, Krishna Iyer J. observed, “Not than this land is indeed for the mandi, in
the judgement of Government, but that the mandi need is hijacked to reach the private
destination of depriving an enemy of his land through back seat driving of the statutory
engine13,”

(ii) Malice in Law:

Malice in law is different from malice in fact and may be assumed from the doing of a wrongful
act intentionally without just cause, or for want of reasonable or probable cause. The Supreme
Court has defined malice in law in the following words, “Malice in its legal sense malice such as
may be assumed from the doing of a wrongful act intentionally but without just cause or excuse
or for want of reasonable or probable care.”14 Thus, ’’mala fide exercise of power only means
that the statutory power is exercised for purposes foreign to those for which it is in law
intended.”15 In the well know case of Express Newspaper (p) Ltd. v. Union of India 16 the
petitioners challenged the constitutional validity of a notice of reentry upon forfeiture of lease
granted the Central Government and of threatened demolition of Express Building at Bahadur
Shal Zafar Marg, New Delhi. It was contended that during the period of Emergency the Indian
Express had displayed exemplary courage in exposing the authoritarian trend of the Government
of to-day. It was alleged that the notices were wholly mala tides, politically motivated and
constituted on act of personal vendetta against the Express Group of Newspapers in general, and
12
1980 AIR 319, 1980 SCR (1)1071
13
ibid
14
Venkataraman v. Union of India, AIR 1979 SC 49.
15
Jaichand v. State of W.B., AIR 1967 SC 483 at 485.
16
AIR 1986 SC 872.
Ram Nath Goenka chairman of the Board of Directors in particular. The petition was allowed
and the notice was quashed and set aside17,

Nature of allegation and burden of proof:

Dishonesty, as Megaw L.J. in Cannock Chase District Council v. Kelly 18 always involves a
grave charge. The person or body against whom thfe charge is made is entitled to have it
particularized. The plea of mala fides is raised often, but it is only rarely that it can be
substantiated to the satisfaction of the court. Merely raising a doubt is not enough, there should
be something specific direct and precise to sustain the plea of mala fide. Since, the allegations of
mala-fides are of a serious nature, sufficient particulars and cogent materials making out a prima-
facie case must be given in the petition.19 It must be proved by factual evidence and cannot be
inferred from insinuations, conjectures or surmises.20
In a recent case State of Punjab v. V.K. Khanna21the Supreme Court has observed : “The
expression mala fide has a definite significance in the legal phraseology and the same cannot
possibly emanates out of fanciful imagination or even apprehension but there must be existing
definite evidence of bias and actions which cannot attributed to be otherwise bonafide however
by themselves would not amount to be mala fide unless the same is in accomplainment with
some other factors which would depicts a bad motive or intent on the part of the doer of the
Act.”22 The petitioner who challenges any order or action of authority must establish the charge
of bad faith bias or abuse of power by respondent. If sufficient averments have not been made in
the petition, the court would be justified in refusing to carry out investigation into those
allegations. Vague and casual allegations suggesting that a particular action was taken with an
ulterior motive cannot be accepted without proper pleadings and adequate proof. A bold
assertion that an order was passed with a view to favouring some persons without disclosing
even their names and identities cannot be accepted and allegations of mala-fides cannot be said

17
ibid
18
(1978)1 All ER 152.
19
Keshab Ray v. State of West Bengal, AIR 1972 SC 926 at 928.
20
Shankarnarayanan v. State of Karnataka, (1993) 23 ATC 412 (para-12) SC.
21
AIR 2001 SC 345.
22
Id. at 4
to be established23. It is, however, not necessary that the allegations must be made against a
named official. The court will consider the totality of the circumstances to decide whether the
impugned action is mala-fide.
Therefore, there must be a positive evidence available on record in order to decry an
administrative action on the ground of mala fide and arbitrariness. The ill will or spite must be
well pronounced and without which it would be not only unfair but patently not in confirmity
with the known principle of law. However where there is an allegation of mala-fides and the
court is satisfied on the material before it, that the allegation needs further examination, the court
would be entitled to entertain the petition24.
Malafide exercise of power is required to be proved by the person who alleges it25. The petitioner
should produce sufficient material to convince the court of the malafides of the Government. 26
The burden on the individual is not easy to discharge as it requires going into the motives or the
state of mind of an authority, and it is hardly possible for an individual to know the same and it is
all the more difficult to establish it before a court. 27 It is very difficult for an individual to collect
sufficient evidence as he does not have access to the government record, therefore, he cannot
produce direct evidence whereas the Supreme Court has emphasized that mala fide should
“established only by direct evidence” i.e. that must be discernible from the order impugned or
must be shown from the notings on the files which preceded the order. Therefore, because of the
difficulty of proving mala fides, only a few cases have occurred so far in which administrative
orders may have been quashed on this ground.28 .

cases

23
Muneeb-Ul-Rehman v. Govt, of S & K, AIR 1984 SC 1585 at 1586.
24
Ranauq International Ltd. v. I.V.R. Construction Ltd. AIR 1999 SC 343.
25
State of M.P. v. Nandilal Jaiswal,
26
Land Acquisition Collector v. Durga Panda, AIR 1983 SC 1678.
27
State of Haryana v. Rajendra, AIR 1972 SC 1004.
28
Jain & Jain, Principles of Administrative Law 4th Edn. (1997) p. 565.
G. SADANANDAN V STATE OF KERALA29
In this case court observed that The detention of a citizen in every case is the result of the
subjective satisfaction of the authority, and so, if a prima facie case is made by the petitioner that
his detention is either mala fide or is the result of casual approach by the authority, the authority
should place before the court sufficient material in the form of proper affidavit denying such
allegations
in this case, the petitioner, a kerosene dealer, was detained under defense of india rules, to
prevent him from acting in a manner prejudicial to the maintenance of supplies and services
essential to the life of community. The facts were brought before the court to show that the
deputy superintendent of police (special supplies cell) made a false report against the petitioner,
in order to benefit his relative in the same trade by eliminating the petitioner from the trade, by
obtaining the distributorship for kerosene. The D.S.P. fried no affidavit 'to controvert allegations,
and the affidavit filed on behalf of government by the Home Secretary was very defective. The
Surname Court declared the order of detention to be “clearly and plainly male tide”.
The Apex Court observed: It has been repeatedly observed by this
Court that in cases where this Court is satisfied that the impugned orders suffer from serious
infirmities on grounds which it is permissible for the ,detenus to urge, the said orders would be
set aside. Subject to this position, the merits of the orders of detention are not open to judicial
scrutiny.

30
In State of Bihar v. P.P. Sharma Ramaswami, J., observed "mala fide" means want of good
faith, personal bias, grudge, or improper motive or ulterior purpose. The administrative action
must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently
or not. An act done honestly is deemed to have been done in good faith. An administrative
authority must, therefore, act in a bona fide manner and should never act for an improper motive
or ulterior purposes or contrary to the requirements of the statute, or the, basis of the
circumstances, contemplated by law, or improperly exercised discretion to achieve some ulterior
purpose. The determination of a plea of mala fide involves two questions, namely, (i) whether
there is a personal bias or an oblique motive, and (ii) whether the administrative action is

29
AIR 1966 SC 1925
30
AIR 1961 SC 1260
contrary to the objects, requirements and conditions of a valid exercise of administrative
power."31
In Sadanandam v. State of Kerala, the petitioner, a businessman, dealing in wholesale
kerosene oil was detained under Rule 30(l)(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 fide and 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 famous Machchu Dam case the petitioners asked for a writ of mandamus to restrain the
State from winding up the proceedings of the Commission of Inquiry which was appointed under
Section 3 of the Commission of Inquiry Act, 1952. On August, 11, 1979 Machchu Dam near
Morvi in Rajkot District of the State of Gujarat collapsed resulting in flooding away a big chunk
of land causing huge loss of human life and property. The Chief Minister announced the
appointment of a Commission on Aug. 14, 1979 to enquire into the causes of the failure of
Machchu Dam and circumstances in which such failure occurred, the adequacy of the action
taken by the various authorities to mitigate the consequences thereof. This Commission was
sought to be scrapped by the Government by a notification died March 17, 1981, under Section 7
of the above Act, which empowers the Government to discontinue a Commission "if it is of the
opinion that the continued existence of the Commission is unnecessary." The Gujarat High Court
held that the conclusion of the Government that the Commission was unnecessary was based on
erroneous finding of facts and law. Moreover, the decision was for a collateral purpose, namely,
for the purpose of escaping of the assurance given by the Advocate General that the term of the
Commission would be extended as and when required. The exercise of the discretion by the State

31
ibid
Government was held to be mala fide in law. The Notification of March 17, 1981 was therefore
quashed and set aside. The State Government was directed to extend the life of the Commission.

P.B. Samant v. State of Maharashtra32 the court held the distribution of cement against the law
and the circulars or guidelines issued by the Government on that behalf as bad. The distribution
of cement was in favour of certain builders in return for the donations given by them to certain
foundations of which the Chief Minister was a trustee. It was a clear case of mala fide exercise of
power. The power to control the distribution of an essential commodity like cement is given to
the Government with a view to ensuring its equitable distribution. Then this power is used for
obtaining donations for a trust; it is a clear case of abuse of power. The mala fide should be
proved only by direct evidence and that it must be discernible from the order impugned or must
be shown from the nothings in the file which preceded the order. If bad faith would vitiate the
order, the same can be deduced as a reasonable and inescapable inference from the proved facts.'
It is true that a person does not have an access to Government records to collect adequate
evidence for a case of mala fide yet from the events of the case, public statements of the
authority concerned or from failure to deny the allegation on affidavit, an inference of mala fide
can be drawn.
Mere allegations of mala fide cannot be basis for quashing proceedings. were allegations of
mala fide are made out against Investigating Officer under the Criminal Procedure Code on the
ground that he ruled out certain documents produced to him during investigation as irrelevant, it
was not held to be a ground to assume that he acted mala fide.' In the instant case there was no
material to show that the prosecution against the accused was initiated as a result of any malice
on the part of the investigating officer. Hence it cannot be said that the investigation was vitiated
because of the mala fide on the part of the investigating officer. It was rightly pointed out by the
court that the power to act in discretion is not a power to act at arbitration. It is not a despotic
power, nor hedged with arbitrariness, nor legal irresponsibility to exercise discretionary power in
excess of the statutory ground disregarding the prescribed conditions for ulterior motive. If done
it brings the authority concerned in conflict with law. When the power is exercised mala fide it
undoubtedly gets vitiated by colourable exercise of power." Where the allegations of mala fides
are wild in nature, bereft of details and unsupported by acceptable evidence, the Court will not

32
1982 Bom.C.R 367
consider them even if they remain uncontroversial by the person against whom they were made.
In such a case, it was not necessary always to call upon the persons placed in high positions to
controvert the allegations unless they were specific, pointed and necessary to be controverted.33

In rowjee v Andhra pradesh34- the court held that chief minister had acted mala fide in
giving direction regarding the section of particular transport routes for nationalization, as he
sought to take vengeance against the private operators on those route, as they were his political
opponents.

CONCLUSION

The importance of discretion has amplified day by day as the administration is requisite to apply
unclear and indefinite statutory provisions, to individual case. Further, It is very difficult to
understand the present day issues within the general rules of a broad nature. Many problems are
new and beyond the range and experience of the administrator to be solved easily. Sometimes
there is lack of specific rules and statutory provisions. Even then the administrator is expected to
solve them in a rational manner, as any sensible man exercises his power in that similar case.
But the fact to fact approach is detrimental, as the administrator may not have a general rule or
norm to be adopted. There is every danger of discrimination leading to abuse of power. Further it
is a time overwhelming process to select the best lessons of action in each individual case. The
official tries to defer any decision making if the case involves vested interests, so as to avoid any
public controversy, his decision is likely to be in front. But it is a fact, that the administrative
discretion individualize the exercise of public command, over private interests, permitting its
adjustments to varying circumstances. The modern tendency is to somewhat standardize
administrative discretion leaving only a residual margin for adjustability, in the area of fact
situations, in exacting case.

Hence this assignment conclude that even if the government acts within its legal authority, and
has legal power to take disciplinary action for misconduct against a civil servant, it could not so
act if the action was out of malice. So, in one sense, and this was pointed out by the court itself,
since the purpose of the power vested in the government to take disciplinary action was to ensure
33
AIR 1985 SC 1622

34
AIR 1964 SC 962
probity and purity in the public services, and not to wreak personal vengeance. In another sense
the government had a clear authority to take disciplinary action for the alleged misconduct of its
employees and accordingly, the government action was literally intra-vires. In this sense, mala
fides is a distinct ground for quashing administrative action apart from ultra-vires.