UNIT - 4

ADMINISTRATIVE DISCRETIONARY POWERS

AND ITS CONTROL
 Administrative Discretionary powers and its Control

Administrative discretion

Meaning:

▪ Discretion means choosing from amongst the various

available alternatives in accordance with rule of reason and
justice and thus it should not be taken to mean choosing
arbitrarily according personal whims. The choosing of
alternatives must be legal and regular and not arbitrary,
fanciful and vague.
 Administrative Discretion and its Control

▪ Administrative discretion refers to the power to choose

between courses of conduct in the administration of an office
or a duty pertaining thereto. It is the exercise of professional
expertise and judgment, as opposed to strict adherence to
regulations or statutes, in making a decision or performing
official acts or duties.
 Administrative Discretion and its Control

• The word "discretion" connotes necessarily an act of a judicial

character, and, as used with reference to discretion exercised
judicially, it implies the absence of a hard and fast rule, and it
requires an actual exercise of judgment and a consideration
of the facts and circumstances which are necessary to make
a sound, fair and just determination, and a knowledge of the
facts upon which the discretion may properly operate.
 Administrative Discretion and its Control

Definition:

1. Salmond

▪ "Matters of right and judicial discretion are not the subject of

evidence and demonstration, but of argument, and are
submitted to the reason and conscience of the Court in
determining questions of judicial discretion it seeks to discover
the right or justice of the matter."
 Administrative Discretion and its Control

2. Lord Diplock
▪ “The very concept of administrative discretion involves a right
to choose between more than one possible course of action
upon which there is room for reasonable people to hold
different opinions as to which is to be preferred.
3. Edward Coke
▪ “Discretion is a science or understanding to discern between
falsity and truth, between right or wrong, between shadows
and substance, between equity and colourable glosses and
pretences and not to do according to their wills and private
affections.”
 Administrative Discretion and its Control

4. Prof. Freund
▪ “When we speak of administrative discretion, we mean that a
determination may be reached, in part at least, upon the basis
of consideration not entirely susceptible of proof or disproof.”

5. Oxford Dictionary of Law

▪ “The discretionary powers of an executive nature that are
conferred by the legislature on Govt., ministers, public and
local authorities and other bodies and persons for the purpose
of giving detailed effect to the policy intended by the
legislature itself.”
 Administrative Discretion and its Control

6. Black Law’s Dictionary

▪ “Administrative discretion would be a public official’s or
agency’s power to exercise judgment in the discharge of its
duties.”

Doctrine of Discretion
▪ It implies power to make a choice between an alternative
course of action or inaction. A public officer has discretion
whenever the effective limits of his power leave him free to
make a choice among possible courses of action or inaction.
 Administrative Discretion and its Control

▪ The term discretion itself implies vigilance, care, caution and

circumspection. When the legislature confers discretion on a
court of law or on an administrative authority, it also imposes
responsibility that such discretion is exercised honestly,
properly and reasonably.
 Administrative Discretion and its Control

The reasons for growth of discretionary powers can

be attributed to the following reasons:-
1) The welfare notion of the government and adoption of other
development policies.
2) Environmental Control mechanisms.
3) Lack of technical competence and requirement of expert
advice on the part of the legislation.
4) Discretion is used to deal with unforeseen situations.
5) Complexity of subject matters and variety of problems to be
encountered by the administrative authorities.
 Administrative Discretion and its Control

In addition to the reasons stated above administrative discretion is

inevitable because it is done to seek fulfillment of certain purposes.
Broadly the functions can be classified as follows:-

1) At the time of laying down a law the legislators leave certain gaps and
ambiguities in the law. These gaps and ambiguities are to be filled by the
exercise of administrative authorities on case to case basis.
2) Determination of rights and interest of people that depends upon the
exercise of discretion of the authorities.
3) The policy objectives are sought to be widened by the use of
administrative discretion.
4) It is used to handle matters which require technical expertise as the
officers of a technical department are more equipped to handle such
matters as compared to the legislatures.
 Administrative Discretion and its Control

5) It provides flexibility to cater needs of different situations.

6) It provides a time saving mechanism.
7) Since it grants certain power to authorities it also fix up their
responsibilities as they are accountable for their action.
8) Davis: “All along the line an enormous discretionary power is
the power to do nothing. The power to do nothing, or almost
nothing, or something less than might be done, seems to be
the omnipresent power."
 Administrative Discretion and its Control

The duty of Court is to confine itself to the question of

legality. Its concern should be whether -

1. a decision-making authority exceeded its power;

2. committed an error of law; (means any decision,
judgment, ruling, finding, award or other determination
that is inconsistent with the law);
3. committed a breach of the rules of natural justice;
4. reached a decision which no reasonable tribunal would
have reached, and
5. abused its power.
 Administrative Discretion and its Control

Grounds of Judicial control over administrative

discretion

▪ In India, the Courts will interfere with the discretionary

powers exercised by the administration in the following
circumstances:

I. Failure to exercise discretion

II. Abuse of discretion
 Administrative Discretion and its Control
I. Failure to exercise discretion
1. Non - application of mind
▪ Where an authority is given discretionary powers, it is required to exercise it by
applying mind to the facts and circumstances of the case in hand. If it does not do
so, its action or decision will be bad.

Swaran Singh v. State of U.P. (AIR 1998 SC 2026)

• In this case, Doodh Nath was an MLA of the U.P. Assembly when he was
convicted of the offence of murder. He was unseated as a sequel to the
said conviction and his wife succeeded in becoming his successor in the
same constituency. He was convicted and sentenced to imprisonment for
life along with some other persons who too were involved in the same
offence. His appeal to the High Court and Special Leave petition to the SC
did not give any help to extricate himself from the penal clutches of the
offence.
• Within less than two years, however, he was released as the
Governor of the state granted the remission under Article 161
of the Constitution. The son of the deceased alleged that
when Governor passed the order granting remission of
sentence Doodh Nath was already accused in five other
criminal cases involving serious offences. That and many
other relevant materials were not posted before the
Governor when he considered the question of granting
reprieve to the convict.
• The SC, therefore, quashed the impugned order to enable the
Governor of U.P. to pass a fresh order in the petition filed by
the respondent for remission of the sentence in the light of the
observations made.
 Administrative Discretion and its Control

2. Acting under dictation

▪ Where the authority exercises its discretionary power under
the instructions or dictation from superior authority, it is
taken as non-exercise of power by the authority and its
decision or action is bad.
Purtabpore Company Ltd. v. Cane Commissioner of Bihar
(1969)
• In this case the Cane Commissioner under Cl.6 (1) of the Sugar
Cane (Control) Order, 1955, (The Essential Commodities Act,
1955) had the power to reserve sugarcane areas for the sugar
factories, but at the dictation of the Chief Minister, excluded
99 villages from the area reserved by him in favour of the
appellant company. HC dismissed writ petition of the
Company.
 • The contentions urged on behalf of the appellant were:
(i) The orders in question though purported to have been made
by the Cane Commissioner were in fact not so, and were
therefore invalid;
(ii) Every proceeding to modify any reservation under cl. 6 is a
quasi-judicial proceeding. As the impugned notifications were
made without affording the appellant reasonable
opportunity for representing its case, they were bad in law.

• The Court quashed the exercise of discretion by the Cane

Commissioner on the ground that he abdicated his power by
exercising it at the dictation of some other authority;
therefore, it was deemed that the authority had not exercised
its discretion at all.
 Administrative Discretion and its Control

3. Sub-delegation(‘Delegatus non potest delegare‘

– a delegate cannot further delegate)

• Proper test whether sub-delegation is legal or not is to decide

whether the final decision rests with the authority on whom
power is conferred by the Act. If such decision is taken by the
authority, the decision is valid. If the decision is taken by any
other authority, it would be invalid and unlawful.
 Pradyat Kumar Bose v. C.J. of Calcutta H.C. (AIR 1956 SC 285)
• The appellant was appointed in March 1948 by the Chief Justice
of the Calcutta High Court as Registrar and Accountant-General
of the High Court on its original side and confirmed therein in
November 1948. He was dismissed from that post with effect
from 1st September 1951 by the Chief Justice by his order dated
3rd September 1951.
• There were various charges against the appellant and Mr. Justice
Das Gupta was deputed by the Chief Justice to make an enquiry
and submit a report. Mr. Justice Das Gupta made a full enquiry
and submitted a report in which he exonerated the appellant in
respect of some of the charges but found him guilty in respect of
other charges.
 • The Chief Justice issued notice to the appellant intimating that he
agreed with the report and asked him to show cause why he should
not be dismissed from his post. After he was given an opportunity
to show cause, the appellant was dismissed by an order of the Chief
Justice.
• The appellant's petition to the Governor for the cancellation of the
above order was dismissed. HC also dismissed his writ petition.
The three main points for consideration by the Supreme Court were:
1) Whether the Chief Justice of the High Court had no power to dismiss
the appellant?
• (By virtue of the provisions of clause 8 of the Letters Patent of the Calcutta High Court
read with clause 4 of the same as well as Arts. 229(1), 313 and 367(1) of the Constitution
read with s. 16 of the General Clauses Act, 1897, the power of appointment includes the
power of dismissal).
1) Even if the Chief Justice had such power whether he could not
delegate the enquiry into the charges to another Judge but should
have made the enquiry himself? and
2) Whether the order of dismissal by the Chief Justice could have been
passed without previous consultation with the Public Services
Commission as provided by Art. 320 of the Constitution?
The SC held that it was not a case of delegation of power by the C.J.
but merely of employing a competent officer to assist the C.J.
 Administrative Discretion and its Control

4. Imposing fetters on discretion

▪ An authority with discretionary power must exercise the same after
considering individual cases. Instead of doing that if the authority
imposes fetters on its discretion by adopting fixed rules of policy to
be applied in all cases before it, there is failure to exercise discretion
on the part of that authority.
Sri Rama Sugar Industries Ltd. v. State of A.P. ( AIR 1974 SC 1745)
▪ In this case, tax was imposed on the purchase of sugarcane but the
Govt. was granted power under Sec. 21(3)(b) of the A.P. Sugarcane
(Regulation of Supply and Purchase)Act, 1951 to exempt any new
sugar factory from payment of tax for a period of one year.
▪ The Govt. however by way of policy decision decided to grant such
exemption only in favour of sugar factories of the co-operative
sector due to present financial position of the Government. The
appellant challenged the said policy before AP HC which dismissed
the petition. The SC upheld the action of the Govt. based on larger
public interest.
 Administrative Discretion and its Control

5. Discretionary power coupled with duty

De Smith states, “discretionary powers are frequently coupled with duties.”
In the words of Lord Blackburn, “enabling words were always compulsory where
the words were to effectuate a legal right.
Municipal Council, Ratlam, MP v. Vardichan (AIR 1980 SC 1622)
• The residents (respondents) of a prominent residential locality of
the Municipality (petitioner) in their complaint under s. 133
Criminal Procedure Code (nuisance) to the Sub-Divisional
Magistrate averred that the Municipality had failed despite several
pleas, to meet its basic obligations, like provision of sanitary
facilities on the roads, public conveniences for slum dwellers who
were using the road for that purpose, and prevention of the
discharge from the nearby Alcohol Plant of maladorous fluids into
the public street, and that the Municipality was oblivious to
the statutory obligation envisaged in s. 123 M. P. Municipalities
Act, 1961
• The Municipal Council contested the petition on the ground that the
owners of houses had gone to that locality on their own choice, fully
aware of the insanitary conditions and therefore they could not
complain. It also pleaded financial difficulties in the construction of
drains and provision of amenities.
• The Magistrate found the facts proved, and ordered the municipality to
provide the amenities and to abate the nuisance by constructing
drain pipes with flow of water to wash the filth and stop the stench
and that failure would entail prosecution under s. 188 I.P.C.
• The order of the Magistrate was found unjustified by the Sessions
Court, but upheld by the High Court.
• In the Special Leave Petition by the Municipality to the SC on the
question whether a Court can by affirmative action compel a
statutory body to carry out its duty to the community by constructing
sanitation facilities at great cost and on a time-bound basis?
• Krishna Iyer J. observed that, “this is a public duty implicit in
the public power to be exercised on behalf of the public and
pursuant to a public proceeding.”

• The State will realize that Art. 47 makes it a paramount

principle of governance that steps are taken for the
improvement of public health as amongst its primary duties.
The municipality also will slim its budget on low priority items
and elitist projects to use the savings on sanitation and
public health.
 Administrative Discretion and its Control
II. Excess or Abuse of discretion:
1. Acting without jurisdiction
Govt. of A.P. v. M.T. Khan (AIR 2004 SC 428)
• These two appeals raise an interesting question involving the scope and ambit of Article 161 of
the Constitution of India.
The question is whether the Governor of a particular State in exercise of clemency powers
under Article 161 of the Constitution can grant remission to prisoners convicted by courts
outside the concerned State, but undergoing sentences in jails in the State?
Present appeals related to the State of Andhra Pradesh.

• In this case two convicts by competent courts of M.P. and Maharashtra were transferred to
A.P. jail. The Governor of A.P. granted remission UNDER Article 161 of the CN to -
a) all convicted prisoners sentenced to imprisonment for life and governed by Section
433-A, Cr.P.C., who have completed 14 years of total sentence including 10 years of actual
sentence as on 14.1.1995 shall be released.
b) all convicted prisoners sentenced to imprisonment for life and governed by Section
433-A, Cr.P.C. aged more than 65 years and have undergone more than 5 years of actual
sentence and a total sentence of 7 years as on 14.01.1995 shall be released".
• But these two convicts were not granted remission under this notification.
• The SC held that the High Court was not justified in
obliterating a part of the G.O. and extending the benefits to
the concerned prisoners. It amounts to the Court re-making
the policy and redoing the G.O. itself. The High Court's
judgment to that extent is erroneous and needs to be set
aside.
• But after serving the requisite sentence, the appropriate
Government which according to this Court in the present case
are States of Madhya Pradesh and Maharashtra respectively,
their cases shall be considered by those two State
Governments who shall take necessary decision as to whether
their release is permissible and desirable.
 Administrative Discretion and its Control
2. Mala fide (dishonest intention and corrupt motive)
▪ Mala fide exercise of discretionary power is always bad and taken as
abuse of discretion. If the discretionary power is exercised by the
authority with bad faith or dishonest intention, the action is squashed by
the court.
Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762)
• Hem Lall Bhandari, residing in Bombay, practicing 'law' there as an
advocate, was detained under 8(1) of the National Security Act, 1980. He
alleged that the C.M. of Sikkim wanted him to join politics. But he was
refused to do so, then he was detained. No material whatsoever placed on
record to substantiate the allegations.
• The SC held that if reasons are not so recorded, the order of detention will
automatically fail. Even if reasons are recorded they have to inspire
confidence in the Court and are subject to legal scrutiny. If the reasons are
unsatisfactory, Courts would still quash the order of detention. The Court
held that the order of detention is bad and quashed.
 Administrative Discretion and its Control

3. Leaving out relevant consideration

▪ The administrative authority exercising the discretionary
power is required to take into account all the relevant facts. If
it leaves out relevant consideration, its action would be bad.
Rampur Distillery Co. Ltd. v. Company Law Board( AIR 1970
SC 1789)
• Govan Brothers were since 1943, the managing agents of the Rampur
Company. In May 1964 criminal proceedings which were pending were
lodged against V.H. Dalmia, the MD of Govan Brothers, pursuant to the
report of the Bose Inquiry Commission that V.H. Dalmia was in the year
1946-47 guilty of grossly improper conduct in relation to several
companies of which he was a director.
• In September 1964 the company applied for approval under
s. 326 of the Companies Act, 1956 of the reappointment of
Govan Brothers as managing agents. The Company Law
Board approved the extension of the tenure for three
years. When approval was sought for another extension till
1970 the Board rejected the application.
• The High Court set aside the Board's order and directed it to
take into consideration the entirety of the "acts and
activities" of V.H. Dalmia in forming the requisite opinion
under s. 326(2) (b). The Board and the company preferred
appeals to this Court.
• The SC dismissing the appeal, held that the past conduct of
the directors were a relevant consideration, but before final
decision, it should take into account their present activities
also. Therefore the action of the Board was declared as
invalid.
 Administrative Discretion and its Control

4. Irrelevant consideration
▪ The consideration will be irrelevant if there is no reasonable
connection between the facts and the grounds.
Dr. Ram Manohar Lohia v. State of Bihar( AIR 1966 SC 740)
▪ Under Rule 30(1)(b) of Defence of India Rules 1962 of the
Defence of India Act, 1962, the authority was empowered to
detain a person to prevent subversion of “public safety and
“maintenance of public order“. The petitioner was detained
with a view to prevent him from acting in a manner prejudicial
to the maintenance of ‘law and order.’ The petitioner moved
this Court under Art. 32 of the Constitution for a writ of
habeas corpus directing his release from detention
▪ The SC set aside the order of detention and held that the term
‘law and order’ was wider than the term ‘public order’.
Administrative Discretion and its Control
• The expression "law and order” does not find any place in the
rule and is not synonymous with "public order'.
• The SC held that "law and order" is a comprehensive
expression in which would be included not merely public
order, but matters such as public peace, tranquility,
orderliness in a locality or a local area and perhaps some
other matters.
• "Public order" is something distinct from order or orderliness
in a local area. Under Rule 30(1)(b) of Defence of India Rules
1962, no power is conferred upon that authority to detain a
person on the ground that it is necessary so to do in order to
prevent that person from acting in a manner prejudicial to the
maintenance of public order in a local area.
 Administrative Discretion and its Control

5. Mixed consideration
• When the discretionary power exercised by the authority on both
relevant and irrelevant grounds, the court will examine whether or
not the exclusion of irrelevant or non-existence considerations
would have affected the ultimate decision.
Pyare Lal Sharma v. Managing Director, Jammu & Kashmir
Industries Ltd. (AIR 1989 SC 1854)
• The Regulation 16.14 of the Jammu & Kashmir Industries
Employees Service Rules & Regulations, was amended on April 20,
1983 which stated that ‘if the employee remains on an
unauthorized absence or if he takes part in active politics, in such
cases the services shall be terminated if he fails to explain his
conduct satisfactorily within 15 days from the date of issue of
notice and the management shall be empowered to take a
decision without resorting to further enquiries.’
 • Pyare Lal Sharma was employed as a Chemical Engineer by
the Jammu & Kashmir Industries Ltd. The Company issued a
show cause notice on 21/4/1983 in terms of the added
clauses for his unauthorized absence from duty. As no reply
was submitted, the M.D. terminated his services by an order
dated 14/6/1983. Sharma challenged the order of termination
by way of a writ petition before the J & K High Court on
three grounds namely:
1) violation of Rules of Natural Justice,
2) that the Board of Directors having appointed Sharma, the
M.D. who is subordinate authority could not terminate his
services and
3) that the regulation 16.14 was arbitrary and violative of Art.
14 of the Constitution of India.
• The High Court agreed with the petitioner’s contentions and
dismissed the appeal of the Company.
• Dismissing the appeal of the Company, the SC stated that it is
a basic principle of natural justice that no one can be
penalized on the ground of a conduct which was not penal on
the day it was committed. The date of show cause notice
being April 21, 1983 the unauthorized absence from duty
which has been taken into consideration is from December
20, 1982 to April 20, 1983. Whole of this period being prior to
the date of amendment of regulation 16.14, the same could
not be made as a ground for proceeding under ground (c) of
Regulation 16.14.
• The notice served on the appellant was thus illegal and as a
consequence the order of termination cannot be sustained
and has to be set aside.
 Administrative Discretion and its Control
6. Colourable exercise of power
▪ Where a power is exercised by the authority ostensibly for the purpose for which it was
conferred, but in reality for some other purpose, it is called colourable exercise of power. This is
also known as fraudulent exercise of power. It is based on the principle that an AA cannot exercise
power for a purpose not warranted by law.
Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors. (AIR 1987 SC 579)
• The State of Bihar adopted a practice of repromulgating the ordinances on a
massive scale from time to time without their provisions being enacted into acts of
the legislature. The practice was that, after the session of the State Legislature was
prorogued, the same ordinances which had ceased to operate were repromulgated
containing substantially the same provisions almost in a routine manner.
• The petitioner, a Professor of Economics in Gokhale Institute of Politics and
Economics, Pune, challenged the validity of this practice and in particular they
challenged the constitutional validity of three different ordinances issued by the
Governor of Bihar, namely, (1) Bihar Forest Produce (Regulation of Trade) -Third
Ordinance 1983; (ii) The Bihar Intermediate Education Council - Third Ordinance
1983; and (iii) The Bihar Bricks Supply (Control) -Third Ordinance 1983, since these
Ordinances also suffered the same process of repromulgation from time to time.
• The SC held that when the constitutional provision stipulates that an Ordinance
promulgated by the Governor to meet an emergent situation shall cease to be in
operation at the expiration of six weeks from the reassembly of the Legislature and
the Government if it wishes the provisions of the Ordinance to be continued in
force beyond the period of six weeks has to go before the Legislature which is the
constitutional authority entrusted with the law making function, it would most
certainly be a colourable exercise of power for the Government to ignore the
Legislature and to re promulgate the Ordinance and thus to continue to regulate the
life and liberty of the citizens through Ordinance made by the Executive.
• Such a stratagem would be repugnant to the constitutional scheme, as it would
enable the Executive to transgress its constitutional limitation in the matter of law
making in an emergent situation and to covertly and indirectly arrogate to itself the
law making function of the Legislation.
• We must accordingly strike down the Bihar Intermediate Education Council
Ordinance, 1983 which is still in operation as unconstitutional and void. Petitioner
has done enormous research and brought this reprehensible practice of the
Government of Bihar to the notice of the Court and we would therefore direct that
the State of Bihar shall pay to Petitioner a sum of Rs. 10,000 as and by way of cost of
the writ petitions.
 Administrative Discretion and its Control

7. Unreasonableness
▪ A discretionary power confined on an administrative authority must be exercised
by that authority reasonably. If the power is exercised unreasonably, here there is
an abuse of power and the action of the authority will be ultra vires.

Ranjit Thakur v. UOI (AIR 1987 SC 2386)

• The appellant, in this case, a Signal Man in a Signal Regiment of the Armed
Services, while serving out a sentence of 28 days' rigorous imprisonment imposed
on him by the Commanding officer of the Regiment respondent No. 4, for
violating norms for presenting representations to higher officers, was alleged to
have committed another offence by refusing to eat his food on March 29, 1985
when ordered to do so. He was charged under section 41(2) of the Army Act,
1950 for disobeying a lawful command given by his superior officer.
• A sentence of rigorous imprisonment for one year was imposed by a Summary
Court Martial. He was removed to the civil prison and he served out the sentence .
 Administrative Discretion and its Control

• The appellant's representation to the confirming authority under section

164 of the Act was rejected by the General officer Commanding on May
24,1985.
• The appellant's writ petition challenging proceedings of the Summary
Court-Martial was dismissed in limine by the High Court.
• In the appeal by special leave, it was contended on behalf of the appellant
that the proceedings of the Court-Martial were vitiated (i) by a
non-affording of an opportunity to challenge the constitution of the
Summary Court-Martial under section 130(1); (ii) by bias on the part of the
respondent who participated in and dominated the proceedings; (iii) by
awarding a punishment so disproportionate to the offence as to amount
in itself to conclusive evidence of bias and vindictiveness.

• The SC held that the punishment of dismissal and sentencing of one year
rigorous imprisonment on an Army Official for disobeying an order of
superior officer to eat food was hold thoroughly unreasonable, grossly
disproportionate and excessively high. The Court set aside dismissal order
and held that appellant entitled to be reinstated with all monetary and
service benefits.
 Administrative Discretion and its Control
8. Exceeding jurisdiction
▪ A question whether the authority acted within the limits of its power or
exceeded its jurisdiction depends upon he facts and circumstances of each case
and should be decided by keeping in view the provisions of the Act and
conferment of power on the authority.

Indian Council of Legal Aid & Advice v. BCI (AIR 1995 SC 691)
• The Bar Council of India by Resolution No. 64 of 1993 dated 22-8-1993 added
Rule 9 in Chapter III of Part VI of the Bar Council of India Rules which resolution
was gazetted on 25-9-1993. The said newly added rule reads as under:
"A person who has completed the age of 45 years on the date on
which he submits his application for his enrolment as an advocate to the
State Bar Council shall not be enrolled as an advocate."
• All the State Bar Councils in the country were duly informed about the insertion
of the said rule. The legality and validity of the said rule is questioned as
inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution and Section
24 of the Advocates Act, 1961.
 Administrative Discretion and its Control

• The Parent Act ( The Advocates Act, 1961) enabled the BCI to
laydown conditions subject to which an advocate “shall have
right to practice."
• Declaring the rule ultra vires, the SC held that the BCI can
make the rule only after a person is enrolled as an advocate,
i.e. at post - enrolment stage. It cannot frame a rule barring
persons from enrollment. The rule was thus inconsistent with
the Parent Act and other Articles of the Constitution.
 Administrative Discretion and its Control
9. Non-compliance with procedural requirements and PNJ
• Violation of PNJ makes the exercise of power ultra vires and void. If the
exercise of power is purely administrative in nature , if it adversely affects
any person, the PNJ must be observed and the person concerned must be
heard.
K.I. Shephard & Ors. v. Union of India (AIR 1987 SC 431)
• The Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi
Commercial Bank were amalgamated with Punjab National Bank, Canara
Bank, State Bank of India respectively in terms of separate schemes
drawn under Sec. 45 of the Banking Regulation Act,1949, and pursuant
thereto 125 employees of these banks were excluded from employment,
and their services were not taken over by the respective transferee
banks. Some of these excluded employees filed writ petitions before the
High Court which granted partial relief, but on appeal by the transferee
Bank the Writ Petitions were dismissed by the Division Bench.
• The SC held that rules of natural justice apply to administrative action
and the decision to exclude a section of employees without complying
with requirements of natural justice was bad.
 Administrative Discretion and its Control

10. Use for improper purpose

▪ The discretionary power is required to be used for the purpose for which it
has been given. If it is given for one purpose and used for another
purpose, it will amount to abuse of power. ( 2G Scam, OMC Scam etc.)
Bangalore Medical Trust v. K.P. Muddappa (AIR 1991 SC
1902)
• A site in the city of Bangalore was reserved as an open space in an
improvement scheme adopted under the City of Bangalore
Improvement Act. 1945. This Act was replaced by the Bangalore
Development Authority Act, 1976 and the scheme prepared under the
repealed enactment was deemed to have been prepared and duly
sanctioned by the Government in terms of the new Act. In the scheme,
the open space in question had been reserved for a public park.
However, pursuant to the orders of the State Government(CM), and by a
Resolution, the Bangalore Development Authority allotted the open space
in favour of the appellant, a private medical Trust, for the purpose of
constructing a hospital.
• This allotment and diversion of the user of the site was
challenged before the High Court by the respondents, as
residents of the locality and as general public, contending
that it was contrary to the provisions of the Act and the
scheme sanctioned thereunder, and the legislative intent to
protect and preserve the environment by reserving open
space for ventilation, recreation and play grounds and parks
for the general public. The HC dismissed the petition.

• The SC held that the entire proceedings before the State

Government suffered from absence of jurisdiction. Even the
exercise of power was vitiated and ultra vires. Therefore, the
orders of the Government to convert the site reserved for
public park to civic amenity and to allot it for private nursing
home to the appellant Trust and the resolution of the
Development Authority in compliance of it were null, void
and without jurisdiction.
 Administrative Discretion and its Control
Fundamental Rights and administrative discretion
Limitation on grant of discretionary power and Article - 14
▪ Article 14 of the Indian Constitution provides certain
limitation on the conferment of discretionary powers. Article
14 provides a fundamental right of equality before law and
equal protection of law to the citizens of India. It lays down
that laws should be applicable to every person in the same
sense and should not discriminate one person against
another.
▪ Any law which discriminates between persons or classes of
persons would be invalid and void. A similar criterion has
been adopted while checking the validity of the discretionary
power exercised by the administrative authorities.
 Administrative Discretion and its Control
1) West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75)
• The West Bengal Special Courts Act, 1950 was entitled “An Act to provide for the
speedier trial of certain offences," and the object of the Act as declared in the
preamble, was "to provide for the speedier trial of certain offences". Section 3 of the
Act empowered the State Government by notification in the official gazette to
constitute Special Courts, and Sec. 5 provided that "A Special Court shall try such
offences or classes of offences or cases or classes of cases, as the State
Government may by general or special order in writing, direct.“

• Act laid down a procedure for trial before Special Courts which was different in
several respects from that laid down by the Courts for trial of offences generally.
The respondent, who was convicted by a Special Court which tried his case under a
notification issued by the Government under Sec. 5, contended that the said section
was unconstitutional and void in as much as it contravened Art. 14 of the
Constitution, which provides that "the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India".
• The HC of Calcutta agreed with the appellant argument and struck down Sec. 5 of the
Act.
• State of West Bengal appealed in Supreme Court of India to
overrule the judgement given by High Court of Calcutta.
• The SC held that the executive authorities could arbitrarily
select a case for trial by the special courts. It was held that in
so far as the Act empowered the government to have any
case or class of cases or offence or class of offences tried by
the special courts, violated Article 14 of the Constitution.
 Administrative Discretion and its Control
2) R. Ratnakar Rao v. State of Andhra Pradesh (10/05/1996)
• The petitioners are the owners of goods motor vehicles and were
plying the same on the basis of national/State permits issued by the
appropriate transport authorities.
• When they challenged the validity of GO No.54 dated March 31,
1995 issued by the Department of Transport [Roads and Buildings]
enhancing the compounding fee U/s 200, from Rs.10 per k.g. to
Rs.100/- per k.g. as being violative of the Motor Vehicles Act, 1988
and arbitrary being violating Article 14 of the Constitution, the
Division Bench in the impugned judgment upheld the said GO.
• The SC held that normally the discretion is held not to be unguided,
unanalyzed or arbitrary if there are built in checks against its abuse.
The two built in checks are:-
1. If the power is given to a high official or authority;
2. There are provisions requiring that the exercise of discretion should
be preceded by an inquiry conducted in accordance with a
quasi-judicial procedure.
• The SC further held that the Government as a delegate, did not
exceed its power under Sec. 200 of the Act in prescribing the
compounding fee for the offence punishable under Section 194 of
the Act.
• Note: (Sec. 194. Driving vehicle exceeding permissible weight.—
• (1) Whoever drives a motor vehicle or causes or allows a motor
vehicle to be driven in contravention of the provisions of section
113 or section 114 or section 115 shall be punishable with
minimum fine of two thousand rupees and an additional amount of
one thousand rupees per tonne of excess load, together with the
liability to pay charges for off-loading of the excess load.
• (2) Any driver of a vehicle who refuses to stop and submit his
vehicle to weighing after being directed to do so by an officer
authorised in this behalf under section 114 or removes or causes
the removal of the load or part of it prior to weighing shall be
punishable with fine which may extend to three thousand rupees.
Administrative Discretion and its Control
Limitation on grant of Discretionary Power and Article 19
• Article 19 of the Constitution provides the right to freedom of
speech and expression along with several other rights. It is
basically a privilege given to the citizens of India that they
have right to speech and expression and other rights under
this chapter.
• When a person exercises this right other persons are under a
duty not to infringe or curtail such rights. Therefore grant of
any discretionary power which acts as a hindrance to the
fundamental right of the citizens or curtails such fundamental
rights is declared void. Therefore Art 19 acts as a regulator on
the conferment of discretionary power.
 Administrative Discretion and its Control

Art 19 says “Protection of certain rights regarding

freedom of speech, etc.
(1) All citizens shall have the right-
a) to freedom of speech and expression;
b) to assemble peaceably and without arms;
c) to form associations or unions;
d) to move freely throughout the territory of India;
e) to reside and settle in any part of the territory of India;
(g) to practice any profession, or to carry on any occupation,
trade or business.
Administrative Discretion and its Control

• If any discretionary power is granted which is violative of the

above mentioned rights than such grant of discretionary
power would be void. But the State under Art 19 (2) to (6) can
impose reasonable restrictions on the above mentioned
rights.
• The Court determines the reasonableness of the restrictions.
While deciding the reasonableness of a restriction, the
principle laid down is that the power conferred on the
executive by the law should not be arbitrary and unregulated
and it should not be left entirely to the discretion of an
authority to do as it likes without any check and control by
the above authority.
 Administrative Discretion and its Control
Art. 19(1)(a) &19(2)- Freedom of speech and expression
Khwaja Ahmed Abbas v. Union of India (AIR 1971 SC 481)
• The petitioner is a journalist, playwright and writer of short stories. He is
also a producer and director of cinematograph films. He was a member of
the Enquiry Committee on Film Censorship (1968) and is a member of the
Children's Film Committee.
• The petitioner made a documentary film called "A Tale of Four Cities"
which attempted to portray the contrast between the life of the rich and
the poor in the four principal cities (Calcutta, Bombay, Madras and Delhi)
of the country. The film included certain shots of the red light area in
Bombay.
• Although the petitioner applied to the Board of Film Censors for a `U'
Certificate for unrestricted exhibition of the film, he was granted ‘A’
certificate only for exhibition restricted to adults. On an appeal made to it
by the petitioner, the Central Government issued a direction on July 3,
1969 that a `U‘ Certificate may be granted provided certain specified cuts
were made in the film.
• The petitioner thereafter field the present petition seeking a
declaration that the provisions of Part 11 of the Cinematograph
Act, 1952, together with the rules prescribed by the Central
Government on February 6, 1960 in the exercise of its powers
under Sec. 5-B of the Act were un-constitutional and void; he
further prayed that the direction dated July 3, 1969 should
be quashed.
• The petitioner claimed that his fundamental right of free
speech and expression was denied by the order of the Central
Government and that he was entitled to a 'U' Certificate for the
film as of right.
• The SC held that unguided or arbitrary discretion without any
procedural safeguards or legislative policy should not be given
to an administrative officer to regulate freedom and speech and
expression. Also, discretion has to be exercised only for the
purpose mentioned in Art 19 (2).
 Administrative Discretion and its Control
Art.19(1)(c)& 19(4) – Freedom to form Associations
State of Madras v. V.G. Row (AIR 1952 SC 192)
• In this case, the Government Order No. 1517, Public (General) Department,
runs as follows:-- "Whereas in the opinion of the State Government, the
Association known as the People's Education Society, Madras, has for its
object interference with the administration of the law and the maintenance
of law and order, and constitutes a danger to the public peace.”
• Now, therefore, his Excellency the Governor of Madras, in exercise of the
powers conferred by Section. 16 of the Indian Criminal Law Amendment Act,
1908(Amended in 1950) hereby declares the said association to be an
unlawful association within the meaning of the said Act. HC dismissed
petition of the Govt.
• The SC held that Sec. 15 (2)(b) of the Criminal Law Amendment Act, 1908, as
amended by the Criminal Law Amendment (Madras) Act, 1950, falls outside
the scope of authorized restrictions under clause (4) of article 19 and is,
therefore, unconstitutional and void.
 Administrative Discretion and its Control
Art. 19(1)(e) & 19(5) – Freedom to Reside and Settle
Ebrahim Vazir Mavat v. State of Bombay (AIR 1954 SC
229)
• Criminal Appeals Nos. 65 and 66 of 1952, which are directed against the
judgment and order of the High Court of Judicature at Bombay in two
petitions under Article 226 of the Constitution praying for the issue of a writ of
mandamus requiring the respondent not to remove them from India on the
ground that the impugned section 7 is void may be treated as the leading case
which will govern the other appeals.
• In this case the SC rejected a statutory provision, Sec.7 of the Influx from
Pakistan (Control) Act, 1949, seeking to authorise the Govt. to impose penalty
for the removal of a citizen from India on ‘reasonable suspicion entertained’
by it that the person concerned had committed an offence against the permit
law.
• The SC held that Sec. 7 of the Influx from Pakistan (Control) Act, 1949 is void
under Art. 13(1) in so far as it conflicts with the fundamental Right of a
citizen of India under Art.19(1)(e) of the Constitution and the order of
physical removal of the citizen from India, is therefore liable to be set aside.
 Administrative Discretion and its Control
Art. 19(1)(d),19(1)(e)&19(5) - Right to Movement and
Residence
Hari Khemu Gawali v. The Dy. Commissioner of Police (AIR
1956 SC 559)
▪ In this case an order of externment was passed against the
petitioner who challenged the order on the ground that Sec.
57 of Bombay Police Act, 1951, contravened clauses(d)
and(e)of Article 19(1) of the Constitution, that the provisions
of the said section imposed unreasonable restrictions on the
petitioner's fundamental rights of free movement and
residence and that the order passed against him was illegal in
as much as it was based on vague allegations and inadmissible
material. That order was set aside by the Government in
December 1950, on appeal by the petitioner.
▪ He moved the High Court of Bombay under Art. 226 of the Constitution
against the said order of detention. He was released from detention before
the said petition was actually heard by the High Court.
▪ On the night of the 9th October 1954 the petitioner was arrested along with
his companions a little after midnight by members of the police force
designated "Ghost Squad", which was a special wing of the Crime Branch of
the C.I.D., on the allegation made by the police that they were seen running
away on the sight of a police van and that they were chased and arrested and
were found in possession of knives and other weapons.
▪ The SC held that Section 57 of the Bombay Police Act, 1951 is not
unconstitutional, because, it is an instance of the State taking preventive
measures in the interests of the public and for safeguarding individual rights,
by preventing a person, who has been proved to be a criminal from acting in
a way which may be a repetition of his criminal propensities and the
restrictions that it imposes on the individual's right to reside in and move
freely in any part of India are reasonable within the meaning of clause (5)
of Art. 19 of the Constitution.
 Administrative Discretion and its Control
Art.19(1)(g) & 19(6) – Freedom to carry on Trade and
Commerce
Chintaman Rao v. The State of Madhya Pradesh (AIR 1951
SC 118)
• In this case an order was issued by the Deputy Commissioner under the
provisions of the Central Provinces and Berar Regulation of Manufacture
of Bidis (Agricultural Purposes) Act, 1948, forbidding all persons residing
in certain villages from engaging in the manufacture of bidis during the
agricultural season.
• A manufacturer of bidis and an employee in a bidi factory residing in
one of the said villages applied under Art. 32 of the Constitution for a
writ of mandamus alleging that since the Act prohibited the petitioners
from exercising their fundamental right to carry on their trade or
business which was guaranteed to them by cl. (1) (g) of Art. 19 of the
Constitution, the Act was void.
▪ The SC held that the object of the statute, namely, to provide
measures for the supply of adequate labour for agricultural
purposes in bidi manufacturing areas of the Province could
well have been achieved by legislation restraining the
employment of agricultural labour in the manufacture of
bidis during the agricultural season without prohibiting
altogether the manufacture of bidis. As the provisions of the
Act had no reasonable relation to the object in view, the Act
was not a law imposing "reasonable restrictions" within
the meaning of cl. (6) of Art-19 and was therefore void.
 Administrative Discretion and its Control
Arts.21 & 22 – Personal Liberty and Preventive detention
Dr. Ram Krishan Bhardwaj v. The State of Delhi (AIR 1953 SC 318)
• The petitioner was arrested on the 10th March, 1953, under an order of the District
Magistrate of Delhi made under Sec. 3 of the Preventive Detention Act 1952. The
grounds of detention were communicated to the petitioner on the 15 th March,
1953.
• The constitutional requirement that the grounds must not be vague must be
satisfied with respect to each of the grounds communicated to the person
detained subject to the claim of privilege under cl. (6) of Art. 22 of the
Constitution. Where one of the grounds mentioned was "you have been
organising the movement (Praja Parishad Movement) by enrolling volunteers
among the refugees in your capacity as President of the Refugee Association of
Bara Hindu Rao":
• The SC held, that this ground was vague and even though the other grounds were
not vague, the detention was not in accordance with the procedure established by
law and was therefore illegal.
 Administrative Discretion and its Control
Reasonable exercise of power and Wednesbury Principle
(Irrationality):
Associated Provincial Picture Houses v. Wednesbury
Corporation(1948) KB 223)
▪ Irrationality as a ground of judicial review was developed by the
Court in this case, later came to be known as “ Wednesbury Test” to
determine irrationality of administrative action.
Facts
▪ The plaintiff-company was granted licence under the
Cinematograph Act, 1909 subject to the condition that “no children
under the age of 15 years shall be admitted to any entertainments
whether accompanied by an adult or not.”
▪ This condition was challenged as unreasonable and the provisions of
Sunday Entertainments Act, 1932 were also challenged.
 Judgment
▪ The court held that it could not intervene to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the court
would have to conclude that:
1. in making the decision, the defendant took into account factors that ought not to have
been taken into account, or
2. the defendant failed to take into account factors that ought to have been taken into
account, or
3. the decision was so unreasonable that no reasonable authority would ever consider
imposing it.
A decision of the Administrative Authority shall be considered as irrational:
1. If it is without the authority of law.
2. If it is based on no evidence.
3. If it is based on irrelevant and extraneous consideration.
4. If it is so outrageous in its defiance to logic or accepted norms of moral standard that no
sensible person, on the given facts and circumstances, could arrive at such a decision.
• If the decision of the Authority is so capricious, perverse, arbitrary, unreasonable and manifestly
unjust that no sensible person can come to that conclusion, court would quash it.
 • In applying this test court would not apply strict scrutiny and
would not judge adequacy or sufficiency of the material
unless fundamental rights are violated, and would not
substitute its judgment with the judgment of the
administrator unless the decision is perverse.
5. It is so unreasonable that it may be described as done in bad
faith.

Irrationality in legal sense may also include:

1. Taking into consideration irrelevant material.
2. Ignoring relevant considerations.
3. Using power for improper purpose.
4. Exercising power in mala fide manner.
 Administrative Discretion and its Control

• Principle of irrationality shares space of rule of law,

reasonableness and non-arbitrariness. If the action of the
administrative authority violates any of these principles, court
can quash such action as violative of Articles 14, 19 or 21 of
the Constitution.
• Where a statute provides, if authority has reason to believe ,
courts have held these words to limit the administrative
discretion to that extent the exercise of power must be
objective not subjective.
• If law allows an administrative authority to take action ‘as it
may deem fit’ Courts have interpreted these words to mean
‘as it may reasonably deem fit’. It is necessary to infuse every
administrative action with fairness necessary to build a Rule
of Law Society.
Thank You