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Project submitted for the partial fulfilment of B.A.LLB (Hons.) 5th semester course in Administrative Law-I.
TABLE OF CONTENT
3 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW |
Administrative Discretion: An overview of Indian conditions
1. Chapter I: Introduction
2. Chapter II: Needs and Justifications for Administrative Discretion
3. Chapter III: Scope of Administrative discretion
4. Chapter IV: Judicial restraint in interfering with administrative discretion
5. Chapter V: Control of abuse of administrative discretion
a. Doctrine of Ultra Vires
i. Executive power
ii. Governmental Service
iii. Preventive Detention, Externment and Regulatory Powers
b. Power not exercised by proper authority
c. Improper Exercise of Discretion
d. Authority had not Applied its Mind
e. Relevant considerations not examined
f. Mala Fide Exercise of Power
g. Arbitrary use of Discretion
6. Conclusion
7. Bibliography
CHAPTER I: INTRODUCTION
4 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW |
Administrative Discretion: An overview of Indian conditions
A significant phenomenon of the present–day administrative process is conferment of
discretionary powers on administrative personnel to take decisions from case to case. Since
time immemorial civilizations and citizens had always desired and urged for the people who
could lead them in various sphere of life which sublimes the importance of administration. At
that era the need for administration began which gave birth to administrators, at that point of
time state was considered as a “Police State” which now has became welfare state. No
modern government however can function without the grant of discretionary power to
administrative authorities. This laid the administrators with greater power and enhanced their
discretionary limits.
Discretionary powers conferred on the administration are of different type. They may range
from simple ministerial function like maintenance of birth and death register to powers which
seriously affect the rights of an individual, e.g. acquisition of property, regulation of trade,
The present day problems which the administration is called upon to deal with are of
complex and varying nature and it is difficult to comprehend them all within the
Scope of general rules.
Most of the problems are new, practically of the first impression. Lack of any
previous experience to deal with them does not warrant the adoption of general rules.
It is not always possible to foresee each and every problem but when a problem arises
it must in any case be solved by the administration in spite of the absence of specific
rules applicable in the situation.
Circumstances differ from case to case so that applying one rule mechanically to all
cases may itself result in injustice.
For the following reasons administrative discretion should not be given from an individual’s
point of view:-
General rules usually avoid retroactivity and operates in future so that one has prior
notice of the rules and thus may regulate his conduct accordingly, whereas case to
case approach, the individual may be caught by surprise and may not be able to adjust
his affairs in the absence of his ability to foresee future administrative action.
The case to case approach involves the danger of discrimination amongst various
individuals, there arises a possibility of not getting like treatment under like
circumstances.
The process is time consuming and involves decision in a multiplicity of cases. Also
there is danger of abuse of discretion by administrative officials. The broader the
discretion, the greater the chance of its abuse.
In words of Justice Douglas of the U.S. SC: “Where discretion is absolute it is more
destructive of freedom than any of man’s other invention.”1
1 United States v Wunderlick, 342 US 98, 101 (1951).
6 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW |
Administrative Discretion: An overview of Indian conditions
The Court of House of Lord in England had laid down the tests to be met for the exercise of
administrative discretion in Wednesbury’s case2 and later on proportionality test which came
in through doors of European Convention of Human Rights. Courts in India has also travelled
the same path with the exception that proportionality test was a part of Indian law. The Court
has extended Scopeof Judicial Review by virtually obliterating the distinction between “error
of law” and “error apparent on face of law.”
In Shri Ram Sugar Industries Ltd v Andhra Pradesh6, Mathew J and Bhagwati J giving the
minority opinion held that if government has been given the discretion, it could not fetter its
discretion by laying down a general policy. In Nagendra Rao & Co v Andhra Pradesh7 it
was held by the Court that while using the discretion purpose of discretion has to be seen by
the officer and not the literal sense is to be construed. When the Act provided for confiscation
of goods for serious offences of black marketing and adulteration, the same should not be
equated to failure in putting up the price list.
In recent years, Courts have made a distinction between the exercise of discretion, which
involves policy making and discretion in its application to the individuals. In policy making,
Courts tread more cautiously and are hesitant to interfere. In a case where price fixing was
challenged, the SC refused to interfere, since the committee for fixation of such price has
recommended the enhancement of price.11 Similarly, when the railway authorities adopted a
dual pricing policy for charging tariff from bigger and smaller manufacturers, it was held not
violative of art 14 of the Constitution. In the absence of allegations of mala fide exercise of
power, Courts refused to interfere in that matter.12 The Court should not interfere with the
criteria or the methodology unless they clearly violate any provision of Constitution.13
a) Executive power
Where the statutory provision becomes unworkable and inoperative for the time being due to
some reasons, the executive power becomes operational.15 Where commissioner granted lease
by accepting expired bids by efflux of time, the order was held to be ultra vires.16 Under sec.
10 IDA 1947 where government can make referral of the dispute to the adjudicating tribunal,
HC can ask it to exercise its power but not the particular manner to exercise the power.17 The
government decision is subject to judicial review and can be set aside if based on irrelevant
considerations.18 Where the registrar was empowered to appoint administrator and if he
appoints one without any necessity or when elected committee should have or could have
administered, then order making such appointment is ultra vires the registrar’s powers19.
The doctrine of ultra vires applies even to bodies registered under a statute, such as co-
operative societies. Where land was allotted to the housing society by the government on
concessional rate for the distribution among dalits and non dalits with a ratio of 80:20,
allotting land to non dalits over 20% was held to be ultra vires.20 Appointment of persons is
excess of sanctioned post was held to be void.21
b) Governmental Service
A rule provided a specified period beyond which probation could not be extended,
continuation of the probation beyond that period was invalid and the person was deemed to
In M/S Indian Metals and Ferro Alloys Ltd v Orissa 28 it as held that even though
government has power to regulate the supply of electricity and to decide as a matter of policy
whether the benefit of clubbing power allotted to different units should be allowed to
consumers, such an order imposing restrictions on consumption cannot be imposed
retrospectively. In medical college, candidates belonging to reserved category secured seats
in gnarl category, the reserved quota could not be reduced when it had not resulted in
excessive representation of the reserved category.29
An officer duly authorized to certify its orders’ means an officer authorized under the rules of
business of the state government framed u/a 166 of the Constitution. Therefore, where the
collector had no such authority, he could not make the declaration that a particular land was
required to be acquired under the LAA.32 It is held that delegation of power did not amount
to denudation of delegator’s own authority.33
Where a decree was sent by a Court to the deputy commissioner for execution u/s 54 of CPC
1988, it was held that the deputy commissioner could delegate that function to assistant
commissioner but the assistant commissioner could not further delegate it to the tahsildar.
The proceeding by the tahsildar was held to ultra vires.34 But where the body to which the
power is delegated can form a committee to discharge the function as the body may be multi-
member and it is not feasible for every member to be associated with the decision making in
respect of every matter.35
Where u/s 321 of CrPC gives power to the public prosecutor to decide whether a prosecution
deserves to be withdraw in the interest of the administration of justice and then the
magistrate, surrendered their discretion, it was held that they had not applied their mind. 39
Where an auction sale was confirmed by the Tax Recovery Officer, where upon a notice u/s
156 of the I.T. Act 1961 was mandatory, setting aside of the auction sale by higher authority
without following the statutory procedure was held to have been done without application of
mind.40
The sanction issued an authority on the direction of the High Court was held to be vitiated by
non-application of mind.43 The discretion vested in attorney general/solicitor general to grant
permission to prosecute a person for contempt of Court was held to be justiciable. 44 Where
municipal land lay vacant and the appellant applied for permission to use it as playground for
children since it was adjacent to the appellant’s School, the dismissal of his application and
the allotment of land to a musical concert was held toe based on irrelevant considerations. 45
Where renewal of a license was refused on the ground that could not be issued to two
partnership firms having common partners, the decision of the collector was quashed being
based on extraneous grounds for the requirements of the order.46
CONCLUSION
In every field, every sphere, each substance has to be in a reasonable format, by which it can
serve and without which it can extinct.
Wide discretion must be in all administrative activity but it should be discretion define in
term which can be measured by legal standards lest cases of manifest injustice go unheeded
and unpunished. Thus, there must be control on the discretionary power of administration by
which law and justice could be up hold as we need ‘Government Laws and not Government
of Men’. This would even be in public interest to; it is not to say that Administrative
Discretion must be restrained by any of the organ of Government but a check and balance
system must be organized, though this system is found by American courts. Thus, it is the
need for Indian courts to develop as they lack activism of American courts. In India as like
USA there is no Administrative Procedure Act providing for judicial review on the exercise of
Administrative discretion.
With the rapid growth of administrative law and the need and necessity to control possible
abuse of discretionary power by various administrative authorities, certain principles have
been evolved by courts. If an action taken by any authority is contrary to law, improper,
unreasonable, or irrational, a court of law can interfere with such action by exercising power
of Judicial Review. Thus, the orthodox approach of Indian courts that they have no power to
interfere with the order passed by the administrative authority in exercise of discretionary
power , must be kept aside and new way of dealing this limitation of Administrative
Discretionary to be concentrated for growth and development of a country.
BIBLIOGRAPHY
1. BOOKS
a. Administrative Law , S.P. Sathe, 7th Edition,2008, Lexis Nexis Butterworths
b. Administrative Law, I.P. Massey, 7th Edition, 2009, Eastern Book Company
c. Issues and Crisis Of Public Administration– Codes And Guidelines, Ranjan Kumar
discretion.html>
b. “Administrative Discretion & Limitation on Administrative Discretion by Article 14
<http://ssrn.com/abstract=1465519>
3. WEBSITES REFERRED
a. <http://www.Indianbooks.co.in/bookmart/judicial-control-of-administrative-
2013
c. <http://www.lawisgreek.com/Indian-law-failure-to-exercise-discretion/> Last