Administrative Discretion

C h a p te r VIII
ADMINISTRATIVE DISCRETION
SECTION 1. INTRODUCTORY
U nder the im pact of the contem porary philosophy o f ‘ welfare

State' as well as that of the em ergency situations, a phenom enon
generally discernible in dem ocratic countries is the vesting o f large
discretion in the hands o f the administrative authorities.^ The bane
of the modern administrative process is the conferm ent o f large
discretionary powers on the administration, to be exercised on its
subjective satisfaction, w ithout the relevant legislation laying dow n
clearly the conditions and circumstances subject to which, and the
norms with reference to which, the executive is to exercise the
powers conferred. Powers o f tl^ administration are c o u c ^ d in broad
formulae. It is only in a very few cases that the administrative,
pow er may be of a ministerial nature in volving no discretion.
D iscretion to-da y runs the w E o I e ^ m u t ^ the ^ 3 ^ ihistrativ7~process"
irrespective o f w hether the p ow er is characterised as aJrm m iH itrve"
legislative or quasi-judicial. In the area of delegated legislation, it
has already been seen that the courts sanction conferm ent o f large
elements o f discretion on the administration, subject to the over-all
limit o f legislature laying dow n “ p o lic y ” , which in practice does n ot
amount to much o f a restriction.
The fact that an authority enjoys a wide discretion may at times
lead the courts to characterise the function as administrative,® but,;
1. For a survey of the vast governmental power in an important econoi^? area,
viz., the control of essential commodities, see The Indian Law Institute, Acitntnisirdfm
Piocess Under The Essential Commodities Act, (1964).
2. ^'Pnxînce o f Bom bay v. Khusaldas Advani, A. I. R. 1960 S. C.
Sgrqn v. G o v f ^ ' mB} A.I,R, 19M AH. 232; R(itnbhm y, Tatke, A.IvHi II
564 INDIAN ADMINISTRATIVE LAW [ CHAPTER 8
this is not decisive, and a quasi-judical function may also involve large
elements o f discretion v/hich means that while the authority may be
required to follow a procedure consistent with natural justice, its
ultimate decision is n on -review able on the merits by the courts.^
For example, in case of dismissal of a governm ent servant, w hicli is a
m atter within the “pleasure” o f the President, the enquiry has to
follow principles o f natural justice, nevertheless, the ultimate decision
o f the disciplinary authority to dismiss is discretionary and the courts
refuse to probe into its merits.^
A duty or power with the administration, the exercise o f which
involves no element o f discretion, is characterised as ministerial. In
the words of Griffith and Street, "a ministerial act is to be distinguished
from other official acts in that the law prescribes the duty to be
performed with such certainty as to leave nothing to the exercise of
discretion or judgm ent/’^ T he execution of a warrant is a good
illustration o f such an act. Because of the com plexity o f modern
administration, purely ministerial powers are far too few now-a-days.
In discretionary matters, “ discretion is merely the administration's
ow n idea of expediency, incapable o f being declared wrong in law by
any higher authority.” ®
In modern times, it becom es necessary to confer discretionary
pow ers because it is not always possible to lay dow n standards or
norms for the exercise o f administrative power. M any a time there
is a problem, and the administration is asked to solve it and the
legislature is not sure how it can be solved. In such situations, the
pow er is left with the administration in rather broad terms. It is
judicially recognised in India that the test of “ reasonableness” of
restrictions imposed on individual freedoms vis-a-vis article 19 o f the
Constitution will differ from case to case’ . Even in the same case,
the judges, depending upon their training, background and legal
philosophy may take different view as to the reasonableness o f a
particular restriction.'
The classification of administrative functions as ministerial or
discretionary is relevent for the purposes of judicial review o f the
ultimate decision, as well as from the point of view oi-modus operarJi.
3. Nagendm Nath Bora v. Commissioner o f Hills Division, A.T.R. 1958 S.C. 398;
GuUapalli Nageshwar Rao v. A. P. State Transport Corp , A.I.R. 195? S.C. 308.
4 Jain, Indian Constitutional Law, 523 et seq. (1962).
5. Principles o f Administrative Law, 149 (1963).
6. VM e, ‘'Quasi-Judicial and Its Background,” 10 Cajnb. L, J.
7. Jai^ Indian Constitutionol Law, 368, 389 (1962).
SECTION 1 J ADMINISTRATIVE DISCRETION 565
T o take an example, the question o f sub-delegation is very intimately

connected with the function being ministerial or discretionary. It
is n ot correct to think that administrative “ discretion is com pletely
non-reviewable by the courts.” H ow ever, the judicial con trol over
administrative discretion is restricted, but abuse o f discretion is a
ground of reviewability. A buse of discretion has many facets w hich
are discussed below. The courts do not, however, substitute their
ow n judgment for that of the administrative authority concerned ;
the courts do not upset administrative decisions on merits, but abuse
o f pow er is a legitimate ground o f interference. In India, unlike
England, there is an additional dimension o f judicial con trol in the
Fundamental Rights provided in the Constitution. The Indian courts,
in addition to what their counterparts can do in England, can also
control discretion with reference to Fundamental Rights.
DISCRETIONARY POWERS
Meaning o f discretion : Probably the best analysis o f the meaning

of administrative discretion com es from Professor Freund. H e says i
"W h en we speak of administrative discretion, we mean that a

determination may be reached, in part at least, upon the basis
o f consideration not entirely susceptible o f p roof or disproof. A
statute confers discretion when it refers an official for the use
o f his pow er to beliefs, expectations, or tendencies instead of
facts, or to such terms as 'ad equ a te” , “ advisable” , “ appropriate"',
“ ben eficial” , “ c o m p e te n t” , ‘ ‘ con v en ien t” , “ detrim ental’ ’,
“ expedient” , “ equitable” , “ fair’\ “ fit” , “necessary” , “ practicable’’ ,
“prop er” , “ reasonable” , “ reputable” , “ safe” , “ sufficient,” “ w h o ^ -
some>” or their opposites. These lack the degree o f certainly
belonging even to such difficult concepts as fraud or •
discrimination or m onopoly. They involve m atter o f degree or
an appeal to judgment. The discretion enlarges as the element
of future probability preponderates over that of present
conditions; it contracts where in certain types o f cases quality
tends to becom e standardized, as in matters o f sa fe ty ; on the
pther hand, certain application of the concepts o f immorality,
fraud, restraint o f trade, discrimination or m onopoly are so
controversial as to operate practically like m atter o f discretion.
In other words, there is no sharp line b etw een questions o f
discretion on the one hand and questions o f fact on the o th e r ;
^Ks^jyhere: an administrative finding o f fact is p e r ^ ^ e d to be,
''''’G0t i c ^ i v 6,'"it will usually be a case on the h(yriei'^^:^^t:v7Ben
566 tNDtAN ADMINISTRATIVE LAW [ CHAPTER 8
fact and discretion. It may be practically con venien t to say

that discretion includes the case in which the ascertainm ent of
fact is legitimately left to administrative d eterm in ation /’®
Types o f d i s c r e t i o n Th ere are different grades o f discretionary

power. A t the end of the scale are cases where no considerations
have been laid down by the law fo r the exercise o f discretion and
the matter rests entirely within the unfettered discretion o f the
administrative authority. Clear illustrations are in the matters of
the issue of passport,® and the deportation of foreigners.^® There is a
possibility o f a statute conferring unfettered discretion on the
administrative authority being declared bad under article 19 or 14
o f the Constitution.” O ften, however, the law lays down the factors
which are to guide the administrative authority in the exercise of
its discretion. A t times, h ow ever, the factors laid dow n may b e very
broad. Thus under section 14 (3 ) o f the Arm s A ct, 1959, the
licensing authority shall refuse to issue a licence, if it believes the
person “ to b e for any reason unfit for a licence” under the A ct.
Similarly, under section 3 of the Requisitioning and A cq u isition of
Imm oveable Property A c t, 1952, the administrative authority can
requisition any property if it is of the opinion that it is needed for a
public purpose.^^ Sometimes, the factors may be such that the
authority has only a limited choice of action. Thus under section 11
o f the Land A cquisition A c t, 1894, the collector shall take into
consideration the value o f land in fixing the amount o f com pensation
for the land required by the government and make an award
accordingly, A dissatisfied person can make a reference to a court,
^4nder section 18 of the A ct, for determining the amount of
.^mpensation.^^
8. Freund, Administrative Powers over Persons and Property, 71 (1928).

9. V. G. Row V . State o f Madras, A.I.R. 1954 Mad. 240. The Indian Passport
Act, 1920, and the rules issued under it do not lay down any considerations for issuing
passport by the administrative authority.
10. Section 3 (2) of the Foreigners Act, 1946, gives an unfettered power to the
Government to deport a foreigner. The courts can, however, determine the question
wliether a person on whom deportation order has been served is a foreigner or not.
Unian o f India v. Hasmali Mohamcd, A.I.R. 1954 Bom. 505.
11. See infra.
12. The only restrictions are the bona fide use of the property by the owner
and the exclusive use of it for worship, hospital, school, library or an orphanage.
13. , t o tion 22 of the Act lays down several specific factors which a.^JgUê tak^-.
into accoun^y the Court in determining the amount of compensation.
The function o f discretion ; A ccordin g to Freund,
“ The plausible argument in favour o f administrative discretion

is that it individualizes the exercise o f public p ow er over
private interests, permitting its adjustment to varying
circumstances, and avoiding an undesirable standardization or
restraints, disqualifications, and particularly of requirements.
U nder this view, the main advantage of discretion is the
flexibility o f its operation, and its main province w ould be the
regulation of interests in which pubUc p olicy demands both
maintenance of minimum standards and the possibility of
variation...........
T he foregoing review tends to establish tw o functions of
discretion (in addition to its service as an instrument of
flexibility), only one o f which is perhaps readily con ceded 5 it
may be a “ trialând-error” method o f establishing a definite
rule, and it may be a disguised form of setting up a standard not
yet reached, o r perhaps n ot fit to be set up, as the law of the
land. The first fu n ction would, in the long run, be self-
eliminating w ith regard to any particular subject m a tte r; but
with new problems, new applications o f such discretion might
be called for. The second function may likewise result in a new
standard; thus if the certificate o f convenien ce and necessity is
an undisclosed recognition o f the m on op oly character o f public
services (m on opoly as such being reprobated by a number o f
state constitutions), it may ultimately yield to a definite rule o f
exclusiveness o f service ; if the standard is one n ot fit to be set
up as an avowed poHcy, discretion may yet serve as a concession
to the demand o f each organized group to establish for itself g
rule variant from, and supposedly superior to, the law o f th^
land.
A com prehensive view o f administrative discretion discloses a

tendency tow ard standardization with a small residual margin for
flexibility w hich approximates the inevitable question o f fact.
The function o f discretion w ould then b e n ot to displace rule but
to prepare the way for it. On any other terms administ|ative
discretion w ould be an anomaly. It would mean that administrative
authorities are superior to courts in their capacity to deal with
private rights, that under modern conditions the public welfare
demands personal governm ent instead o f governm ent b y law.
14 Administrative Powers over Persons and Property, 97-103 <
568 INDIAN a d m in is t r a t iv e LAW [ CHAPTER 8
The F rench say chat “ personal” m governm ent is equivalent to

“ arbitrary.” A n d while there is undeniably some ten dency on
the part of administrative authorities, as an abstract proposition,
to claim the necessity o f discretionary powers, it will p robably
be found, upon examination, that in practice the desire to
standardize the exercise of discretionary pow er is as strong as it
is in the administration of ju stice.”
SECTION 2. DISCRETION OR D U TY
STATE OF U P. V. MANBODHAN LAL

A.T.R. 1957 S.C. 912.
[The respondent was prom oted to the U nited Provinces Education

Service in 1946. In the year 1948, he was appointed an officer-on -
special-duty. W h ile holding this post he was also appointed a member
o f the B ook Selection Committee. H is conduct as a m em ber of that
Committee was not found to be satisfactory and above board
in as much as he had allowed his private interests to com e in
conflict with his public duties. In due course charges w ere framed
against him, enquiry was held and he was reduced in rank and
com pulsorily retired. Before the punishment was imposed, the State
Public Service Commission was also consulted but it appears that the
last written explanation of the respondent was not placed before the
Commission. The respondent’s complaint was that the governm ent’s
order inflicting the punishment on him was improper because o f not
placing his explanation before the Commission.]
'înha, J :
W e shall assume for the purpose o f this case that there was an
irregularity in, though not com plete absence of, consultation with
the Commission. N ow the question is; Did this irregularity afford a
case of action to the respondent to challenge the final order b y the
State Government....
A rticle 320 (3 )(c ) is in these terms:
320 (3 ): The Union Public Service Commission or the State
Service Commission, as the case may be, shall be consulted.
( a ) . „ . . ...........
(b ) ........
(c) Oi|^ll disciplinary matters affecting a person s e r v i ^ under
the Government o f India or the Governm ent o f a state in a
civil capacity, including memorials or petitions relating to

such m atter.”
Perhaps, because of the use o£ the word “ shall” in several parts

o f A rt. 320, the H igh C ourt was led to assume that the provisions of
A rt. 320 (3 )(c) were manadatory, but in our opinion, there are several
cogent reasons for holding to the contrary. In the first place, the
proviso, in A rt. 320 itself, contem plates that the President or the
Governor, as the case may be, “ may make regulations specifying the
matters in which either generally, or in any particular class o f cases
or in particular circumstances, it shall not b e necessary for a Public
Service Commission to b e consulted."
T he words quoted above give a clear indication of the

Constitution makers that they did envisage certain cases or classes of
cases in which the commission need not be consulted. If the
provisions of A rt. 320 w ere o f a mandatory character, the
Constitution would not have left it to the discretion o f the H ead of
the Executive G overnm ent to undo those provisions b y making
regulations to the contrary.
If it had been intended by the makers o f the C onstitution that

consultation with the Commission should be mandatory, the proviso
would not have been there, or, at any rate in the terms in which it
stands. That does not amount to saying that it is open to the Executive
Government, com pletely to ignore the existence o f the Commission or
to pick and choose cases in which it may or may not be consulted.
Once, relevant regulations have been made, they are meant to be

follow ed in letter and in spirit and it goes without saying that
consultation with the Commission on all disciplinary matters affecting
a public servant has been specifically provided for, in order, first, to
give an assurance to the Services that a w holly independent body
not directly concerned with the making of orders adversely affecting
public servants, has considered the action proposed to be taken
against a particular public servant, with an open mind; and secondly,
to afford the Governm ent unbiased advice and opinion on matters
vitally affecting the morale o f public services.
Itis, therefore, incum bent upon the Executive G overnm ent when
it proposes to take any disciplinary action against a public servant,
to consult the Commission as to whether the action proposed to be
taken was justified and was not in excess of the requirements o f the
situation.
Secondly, it is clear that the requirem ent of the consultation with

the Commission does not extend to making the advice o f the
Commission on those matters, binding on the Governm ent. O f course,
the Government when it consults the Commission on matters like
these, does it not by way of a mere form ality but with a view to
getting proper assistance in assessing the guilt or otherw ise o f the
person proceeded against and o f the suitability and adequacy of the
penalty proposed to be imposed.
If the opinion o f the Commission were binding on the Governm ent,
it may have been argued with greater force that non-com pliance with
the rule for consultation w ould have been fatal to the validity o f the
order proposed to be passed against a public servant. In the absence
of such a binding character, it is difficult to see how non-com pliance
with the provisions of A rt. 320 (3 ) ( c ) could have the effect of
nullifying the final order passed b y the Government.
The question may be looked at from another point of view. Does

the Constitution provide for the contingency as to what is to happen in
the event o f non-com pliance with the requirements o f A rt. 320 (3 ) (c)?
It does not, either in express terms or by implication, provide that the
result of such a non-com pliance is to invalidate the proceedings ending
with the final order of the Government.
This aspect of the relevant provision of part X IV o f the

Constitution has a direct bearing on the question whether A rt. 320
is mandatory. The question whether certain provision in a statute
imposing a duty on a public body or authority was m andatory or
only directory, arose before their Lordships of the Judicial C om m ittee
o f the Privy Council in the case o f Montreal Street RJy. Co, v.
Normandin^ 1917 A .C . 170. In that case the question m ooted was
whether the omission to revise the jury lists as directed b y the
statute, had the effect o f nulHfying the verdict given b y a jury.
Their Lordships held that the irregularities in the due revision o f the
jury lists, will not ipso facto avoid the verdict o f a jury. T h e Board
made the following observations in the course o f their judgmient.
“ ...The question whether provisions in a statute are directory

or imperative has very frequently arisen in this country, but
it has been said that no general rule can be laid down, and that
in every case the object o f the statute must be looked at, The
cases on the subject will be found collected in M axw ell on
Statutes^ and following pages. W h en the provisions of a statute
relate to the performance of a pubHc duty and the case is such
SECTION 2 ] ADMINISTRATIVE DISCRETION 571
that to hold null and void acts done in neglect o f this duty would
work serious general inconvenience, or injustice to persons who
have no con trol over those entrusted with the duty, and at the
same time would not prom ote the main o b je ct o f the Legislature,
it has been the practice to hold such provisions to be directory
only, the neglect o f them, though punishable, not affecting the
validity of the acts don e,”
The principle laid dow n in this case was adopted by the Federal
C ourt in the case o f Biswanath Khemka v. The King Emperor.., (A .L R .
1945 F.C.67). In that case, the Federal C ourt had considered the effect
of. non-com pliance with the provisions of S. 256 o f the G overnm ent of
India A ct, 1935, requiring consultation betw een public authorities
b efore the conferm ent o f magisterial powers or o f enhanced
magisterial pow ers, etc.
The C ourt repelled the con ten tion that the provisions o f S. 256,
aforesaid, were mandatory. It was further held that non-com pliance
with that section would n ot render the appointm ent otherwise
regularly and validily made, invalid or inoperative. That decision is
particularly im portant as the words o f the section then b efo re their
Lordships of the Federal Court, wêre very emphatic and o f a
prohibitory character.
A n examination o f the terms of A rt. 320 shows that the word
“ shall” appears in almost every paragraph and every clause or sub
clause o f that article, will have to be equally held to be mandatory.
If they are so held, any appointments made to the public services

of the U nion or a State, .without observing strictly, the terms o f these
sub-clauses in CL (3 ) o f A rt. 320, would adversely affect the person
so appointed to a public service, w ithout any fault on his part and
w ithout his having any say in the matter.
This result could n ot have been contem plated by the makers of

the Constitution. H ence, the use of the w ord “ shall" in a statute,
though generally taken in a mandatory sense, does n ot necessarily
mean that in every case it shall have that effect, that is to say, that
unless the w ords o f the statute are punctiliously follow ed, the
proceeding would be invalid.
On the other hand, it is not always correct to, s“ay that where
the w ord ‘"may” has been used, the statute is only permissive or
directory in the sense that non-com pliance with these provisions will
n ot render the proceeding invalid. In that connection, the following
auotation from Crawford on 'Statutory Construction’ A rt. 261 at p. 516

is p e rtin en t:
“ The question as to whether a statute is mandatory or directory

depends upon the intent of the Legislature and not upon the
language in which the intent is clothed. The meaning and
intention of the Legislature must govern, and these are to be
ascertained, not only from the phraseology of the provision, but
also by considering its nature, its design and the consequences
which would follow from construing it the one way or the
oth er....... ”
Unless, it can be held, and we are not prepared to hold, that A rt.
3 20 (3 )(c) is in the nature o f a rider or proviso to A rt. 311, it is not
possible to construe A rt. 320(3) ( c ) in the sense of affording a cause
of action to a public servant against whom some action has been
taken by his employer.
In view of these considerations, it must be held that the

provisions of A rt. 320(3)(c) are not mandatory and that non-
compliance with those provisions does not afford a cause o f action to
the respondent in a court o f law ....
COLLECTOR OF MONGHYR v. KESHAV PRASAD
A.I.R. 1962 S.C. 1894.
[Sections 3 and 4 of the Bihar Private Irrigation W ork s A ct, 1922,

requires whenever it appears to the C ollector that repair o f an
existingirrigation work is necessary, notice is to be given to the landlord
and inquiry is to be held with regard to the necessity of repair, cost of
repair, the person who is to carry out the repair, etc. U nder section
5 A the collector may dispense with the notice and inquiry if he is of
the opinion for reasons to b e recorded in writing that the delay in
carrying out the repairs will adversely affect the lands dependent
on the irrigation works needing repair. Certain irrigation works
were repaired without giving notice to the landlords as required
by section 3 of the A c t and without reasons having been recorded by
the C ollector for not giving the notice. W h en the costs o f repair
Were sought to b e recovered from the landlords, they questioned
the legality o f the demand.]
Ayyangar, J . :
The notice, determ ination and enquiry contem plated by Ss. 3 to
5 w ould normally take some little time b efore the w ork, if decided
upon, could be put into execution and be effected. Emergencies might
arise such as a sudden inundation, unexpected rains etc- by reason o f
which repairs have to be undertaken immediately in order to avoid
danger to an irrigation w ork which would n ot b ro o k any delay. It is
obvious that it is to provide fo r such a contin gen cy that S.5A was
introduced. It dispenses with notice and denies to the landholder or
other person who is ultimately charged with th e liability to meet the
cost o f th e repair the opportu n ity of pointing ou t to the C ollector
that there is no need for the repair or that the repair could be
effected at less co s t.... W e shall assume that (a ) the C o lle cto r is
exercising merely an administrative jurisdiction and not functioning
as a quasi-judicial authority; ( b ) that what matters and what confers
on him jurisdiction to act under S. 5 A is his subjective satisfaction
that the delay in the repair o f an existing irrigation w ork which may
be occasioned by proceedings com m enced by a notice under S.3, leads
or is likely to lead to the consequences set ou t in the latter part o f
sub-sec. (1 ) of S. 5A . If these had beeen the on ly statutory
requirements learned Counsel would certainly be on firmer ground
but the statute does n ot stop with this but proceeds to add a direction
to the C ollector that the reasons for his opinion should be recorded
b y h im ....
The question, how ever, debated before us was that the condition
or the requirement was n ot m andatory but was only directory with
the result that the failure on the part o f the C ollector to record his
reasons was at the w orst an irregularity w h ich would n ot affect the
legality o f the ord er....
W e feel unable to a ccep t the submission o f learned C ounsel that
in the context in w hich the w ords “ for the reasons to be recorded by
him” occu r in S. 5 A and considering the scheme o f Ch. II o f the A ct,
the requirement o f these w ords could be held to b e otherw ise than
mandatory. It is needless to add that the em ploym ent o f the auxiliary
verb “ shall” is inconclusive and similarly the mere absence o f the
imperative is n ot conclusive either. T he question w hether any
requirement is m andatory or directory has to b e decided not merely
on the basis of any specific provision which, for instance, sets out the
consequences of the omission to observe the requirement, but on the
purpose for which the requirement has been enacted, particularly in
the context o f the other provisions o f the A c t and the general
thereof. It would, inter alia, depend on whether the reqm rem ent is
insisted on as a protection for the safeguarding of the right o f liberty
of person or of property which the action might involve.
Let US now examine the provision with reference to the several
relevant matters we have iust set out. Firstly, on the main scheme
of the A ct and what one might term the normal procedure, is that
indicated by Ss. 3 to 5 where there is ample opportunity afforded to
persons affected to put forward their objections and prove them
before any pecuniary hability is fastened upon them. Section 5 A
constitutes a departure from this norm. It is obviously designed to
make provision for cases where owing to an emergency it is not
possible to com ply with the requirements o f Ss. 3 to 5 of affording an
opportunity to affected persons to make out a case that there is no
justification for burdening them with any pecuniary obligation or
pecuniary obligation beyond a particular extent. It is in the context
o f this consideration that the C ourt has to consider whether the
requirement that reasons should be recorded by the C ollector is
mandatory or not. If the question whether the circumstances recited
in S. 5 A (1 ) exist or not is entirely for the C ollector to decide in his
discretion, it will be seen that the recording of the reasons is the only
protection which is afforded to the persons affected to ensure that
the reasons which impelled the C ollector were those germane to the
content [and scope of the pow er vested in him. It could n ot be
disputed that if the reasons recorded by him were totally irrelevant
as a justification for considering that an emergency had arisen or for
dispensing with notice and enquiry under Ss. 3 to 5, the exercise o f
the power under S.5A would be void as not justified by the statute,...
...W e have thus no hesitation in holding that the requirement
that the C ollector should record his reasons fo r the order made is
mandatory.
NOTES
Maxwell, in Interpretation o f Statutes, observes^:
"Statutes which authorise persons to do acts for the benefit of
others, or, as it is sometimes said, for the public good or the
advancement of justice, have often given rise to controversy,
when confering the authority in terms simply enabling and not
mandatory. In enacting that they “m ay” , or “ shall, if they think
I. 239-40 (1953).
SECTION 2 1 ADM INISTRATIVE DISCRETION 575
fit” , or, “ shall have p ow er,” or that “ it shall be law ful” fo r them
to do such acts, a statute appears to use the language of mere
permission, but it has been so often decided as to have becom e
an axiom that in such cases expressions may have to say the
least—a com pulsory force, and so would seem to be modified by
judicial exposition.”
Section 51 o f the Indian Incom e Tax A ct, 1918, p rovid ed that if

a question o f law had arisen “ the Chief Revenue A u th ority m ay...
draw up a statement of the case and refer it... to the H igh C o u r t /’
Interpreting this section, the Privy Council held in Alcock Ashdown
& Co. V. The Chief Revenue Authority^ that whenever a serious point
of law arose for consideration, there was a duty u pon the Chief
R evenue A uthority to state a case for the opinion of the H igh Court.
“ W h en a capacity or pow er is given to a public authority, there may
be circumstances w hich couple wuth the pow er a duty to exercise it."^
Analysing when the w ord “ m ay” in a statute is directory or
mandatory, the Bombay H igh C ourt in the C hief Controlling Revenue
Authority v. Maharashtra Sugar Mills‘S observed :
“ In order to decide w hether the w ord ‘'m ay” is potential or

imperative, discretionary or carries w ith it an element of
compulsion, whether it is permissive and enabling or obligatory,
one must look at the o b je ct of the statute....If the o b je ct for
w hich the pow er is conferred is an order to give a right, then
there would be a duty cast on the person to whom the pow er is
given to exercise it for the benefit of the party to whom the right
is given when required on this behalf.”^
2. A.r.R. 1923 P. C, 138. See also, V. Sreeramamiirthy v. Income Tax Officer,

A.I.R. 1957 A.P. 114.
3. Id. at 144.
4. A. I R. 1948 Bom. 253,
5. M a t 257.
In State o f Uttar Pradesh v. Jogendra Singh, A. I. R. 1963 S. C. 1619 the
respondent against whom disciplinary proceedings were being taken wanted his case
to be investigated by an Administrative Tribunal under Rule 4(1) of the U. P,
Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, which provided that
the Governor may refer a case to the Tribunal if the Civil Servant so requests. The
request of the respondent was not accepted by the government. The Court held that
the rule imposed an obligation on the Governor to refer his case to the Tribunal,
“ Sometimes, the Legislature uses the word “ may” out o f deference to the high status
of the authority on whom the power and the obligation are intended to be conferred
and imposed.” Id. at 162Q»
In Commissioner ofPoJicc v. Gordhandas,^ a rule framed under the

City of Bombay Policc A ct, 1902, provided that the Commissioner
of Police “shall have pow er in his absolute discretion at any time
to cancel or suspend any licence granted under these Rules.”
Interpreting the rule, the cou rt stated that where the Commissioner
had before him objections received from the public to the grant
of a cinema licence, he v/as bound to exercise the discretion either to
cancel the licence or to reiect the objections. It was a duty “ which
cannot be shirked or shelved nor it b e evaded.”
There is a distinction betw een refusal to exercise the discretion
and the manner of its exercise. T he question fo r determination
sometimes may be whether the authority is obligated to exercise its
power, though as to “ h o w ” the pow er is to be determ ined may not
be open to question. Thus interpreting section '2 0 7 A (4 ) of the
Criminal Procedure C od e which states, inter alia, that ‘ if the
Magistrate is o f opinion that it is necessary in the interests of
justice to take the evidence of one or more of the other witnesses
(i.e. witnesses n ot produced by the prosecution) for the prosecution,
he may take such evidence.” The Calcutta High C ourt said in
Manik Chand v. Stale^ that in such a case “ The authority vested with
the pow er must....apply his mind to the question o f judging whether
'a case fo r its exercise has arisen and his pow er is discretionary only
so far as he may do or not do the thing that he has been em pow ered
to do according as he decides, in the honest exercise o f his judgment,
that in the circumstances of the case it ought n ot to be done. But
to the extent that he must apply his mind to the question o f judging
the matter, the exercise of the power is imperative and if he forms an
opinion that a case for doing the thing is made out by the facts, the
doing o f it also imperative.” ® A ccordingly, it was held that the
Magistrate must consider whether it was necessary in the interests
o f justice that he should examine other prosecution witnesses.
Section 10 (1) of the Industrial Disputes A ct, 1947, provides that
if any industrial dispute exists or is apprehended, the appropriate
government may refer the dispute to a Board, or a C ou rt, or a
tribunal...Interpreting the above provision, the High C ourt o f Madras
in Free Press Labour Union v. State o f Madras^ held that though the
question o f reference of a dispute by the government may be in its
6. A. I. R. 1955 S. C. 16,
7. C. W. N. 94 (1957-58).
8. K at 120,
9. A. I. R, 1952 Mad, 74,
discretion, there was an imperative obligation on the governm ent to

exercise it and not to refuse to exercise it or to sit silently o ver the
matter.
SECTION 3. FUNDAMENTAL RIGHTS AND

ADMINISTRATIVE DISCRETION
The Indian Constitution vide articles 13 to 35 guarantees certain

fundamental rights to the p e o p le .. The courts have used the
fundamental rights to con trol to some extent either the bestow al o f
discretionary pow ers on the administration or the manner o f their
exercise. A statute which confers more discretion than what the
Courts regard as consistent w ith the fundamental right in question
would be unconstitutional. No law can cloth e administrative
discretion with a com plete finality, for the courts can always
examine the ambit and even its exercise, from the point o f view o f
its conform ity with the fundamental rights. The courts can also
insist.on certain procedural safeguards in the exercise o f discretionary
powers by the administration under the umbrella of the fundam ental
rights.
T he fundamental rights in India, therefore, furnish a basis to the
judiciary to con trol administrative discretion to some extent.
Problem s arise mainly in con n ection with the adjudication o f the
validity o f a law conferring discretion on the administration. For this
purpose, the cou rts scrutinise b oth the substantive as w ell as
the procedural parts o f the law in question. T h e substantive part is
examined to see w hether the discretion conferred is within permissible
limits, and the procedural part is examined to see w hether there are
necessary safeguards su bject to w hich the discretion is to b e exercised.
The law can be declared unconstitutional if it is deficient in cither of
the tw o cases.
B elow are given a few illustrative cases to denote the im pact o f
fundam ental rights on administrative discretion in India.^
Generally the principles laid dow n by the courts are that the
p ow er conferred on th e executive should not b e arbitrary, “ unregulated'
by any rule or principle” and that the administrative authority
concerned should n ot have the p ow er to do anything it likes without*
1, See in this connection, Jain, “ Administrative Discretion and Fvnidaroental
Rifhts in India” , 1 /. /. I , J. 223-50 (1959).
proper ju licial or administrative or procedural controls. The

discretion is held to be not unregulated or arbitrary if the “ circums
tances" in, or the “ gtounds” on which it can be exercised are stated
or if the law last's down the p olicy to achieve which the discretion is
to be exercised, or if there are enough procedural safeguards in the
law to provide security against misuse o f the discretion conferred.
(a ) Artice 19 (1 ) (g ) o f the Constitution— Licensing.
MESSRS. DWAKKA PRASAD V. STATE OF U. P.

A.I.R. 1954 S.C, 224.
[The U ttar Pradesh C oal C on trol Order, 1953, issued under the
Essential Supplies (T em porary Pow ers) A ct, 1946, required a licence
to be granted by a licensing A u th ority under the order, for the
purpose o f selling coal within the State. Clause 4(3) o f the Order
p ro v id ed : “ The Licensing A u th ority may grant, refuse to grant,
renew or refuse to renew a licence and may suspend, cancel, revoke
or modify any licence or any terms thereof granted by him under the
Order for reasons to be recorded. Provided that every p ow er which
is under the Order exercisable by the Licensing A u th ority shall also
be exercisable by the State Coal C ontroller or any person authorised
by him in this behalf.”]
Mukherjee, J . :
The m ore form idable objection has been taken on behalf o f the
petitioners against Cl. 4 (3) o f the C ontrol Order which relates to the
granting and refusing of licences. T he licensing authority has been
given absolute power to grant or refuse to grant, renew or refuse to
renew, suspend, revoke, cancel or m odify any licence under this
Order and the only thing he has to do is to record reasons for the
âction he has taken. N o t only so, the power could b e exercised by
any person to whom the State C oal C ontroller may choose to delegate
the same, and the choice be made in favour of any and every person.
It seems to us that such provision cannot be held to b e reasonable.
J ^ N o rules have been framed and no directions given on these
matters to regulate or guide the discretion of the Licensing Officer.
Practically the Order commits to the unrestrained will o f a single
individual the power to grant, withhold or cancel licences in any way
j‘he chooses and there is nothing in the Order which could ensure a
proper execution of the pow er or operate as a check upon injustice
that might result from improper execution of the same. [T h e Connsel
SEC TIO N S] ADMINISTRATIVE DISCRETION 579
for the respondents] contends that a sufficient safeguard has been

provided against any abuse of pow er by reason o f the licensing
authority has got to record reasons for what he does.
This safeguard, in our opinion, is hardly effective; for there is no
higher authority prescribed in the Order w ho could examine the
propriety of these reasons and revise or review the decision o f the
subordinate officer. The reasons, therefore, w hich are required to be
recorded are only fo r the personal or subjective satisfaction o f the
licensing authority and not for furnishing any rem edy to the
aggrieved person.
It was pointed out and with perfect propriety by Mr. Justice
M atthews in the w ell-know n A m erican case o f ‘ Yick Wo v. Hopkins’,
(1886) 118 U.S. 356 at p. 373 that the action or n on -a ction of
officers placed in such position may proceed from enmity or prejudice,
from partisan zeal or animosity, from favouritism and oth er im proper
influences and motives w hich are easy of concealm ent and difficult to
be detected and exposed, and consequently the injustice capable o f
being wrought under cov er of such unrestricted pow er becom es
apparent to every man, w ithout the necessity o f detailed investigation,
In our opinion, the provision o f Clause 4(3) of the U.P. C oal C ontrol
O rder must be held to be void as imposing an unreasonable restriction
under the freedom o f trade and business guaranteed under A rticle
19(1) (g) o f the C onstitution and n ot coming within the protection
afforded b y Cl. (6 ) of the A rticle.
NOTES
In Chandrakant v. Jusjit Singh^ was involved the validity o f the

Customs H ouse A gents Licensing Rules, 1960, issued under sec. 202
of the Sea Customs A ct, 1878. T h e section provided fo r the licensing
o f clearing agents. There was a provision in one of the rules that the
Customs C ollector cou ld reject an application for the grant o f a
licence if “ the applicant is not otherwise considered suitable." N o
appeal was provided fo r rejection o f an application on accou n t o f this
reason. H olding the provision to be bad under article 19(1) (g), the
Supreme C ourt pointed o u t ;
“ The Rule which is framed is so general that it leaves to the
discretion o f the Customs C ollector to reject a candidate for a
R, 1962 S, C. 2Q4,
580 INDIAN ADMINISTRATIVE LA W [ CHAPTER 8
trumpery reason (w hich he need not state), even though the

candidate may be otherwise suitable. In our opinion, if a
candidate is found fit under the other Rules and has successfully
passed the examination, he should only be rejected under a rule
which requires the Customs C ollector to state his reasons for the
rejection, and the rules must provide for an appeal against that
order...
In Ganpati Singhji v. State o f Ajmer^ a provision w hich em pow ered the
D istrict Magistrate to revoke a permit, granted to a person to hold a
fair, “without assigning any reasons o r giving any previous n otice”
was declared bad under article 19(1) (g ) of the Constitution by the
Supreme C ourt because it conferred an absolute and arbitrary pow er
on the District Magistrate. T o the same effect is the C ou rt's judgment
in R-M. Seshadri v. Dist. Magistrate, Tanjore.^ In this case, the appellant
was granted a licence on the condition, inter alia, that he would
exhibit at each performance approved films of such length as the
government may direct. T h e C ourt held; “ A s the condition stands
there can b e no doubt that there is no principle to guide the licensing
authority and a condition such as the above may lead to the loss or
total extinction of the business itself....[T ]h erefore...cond ition ...m u st
be declared void as against the fundamental rights o f the appellant
under A rt. 1 9 (l)(g ).” ®
H A R IS H A N K E R B A G L A v. M .P . S T A T E
A.I.R. 1954 S.C. 465.
[Clause 3 o f the Cotton Textiles (C on trol of M ovem en t) Order,

1948, issued under the Essential Supplies (Tem porary P ow ers) A ct,
1946, provided that no person could transport cloth except in
accordance with a permit granted by the Textile Com missioner. The
appellant was prosecuted for transporting cloth without a permit in
violation o f the order. H e challenged the constitutional validity of
the order.]
Mahajan C. J . :
...[T he counsel for the appellants] further argued that the Textile
Commissioner had been given unregulated and arbitrary discretion to
3. M at 208-9.
4. A. I. R. 1955 S. C. 188,
5. A. I. R. 1954 S. C. 747.
6. K at 749,
refuse or to grant a permit and that on grounds similar to those on

which in "Dwarka Prasad v. State o f Uttar Pradesh' A .I.R . 1954 S.C.
224, this C ourt declared void section 4 (3 ) of the U.P, C oal C on trol
Order. Section 3 o f the C ontrol Order in question should also be
declared void. This argument again is not tenable. In the first place,
the appellants never applied fo r a permit and made no efforts to
obtain one. If the permit had been applied for and refused arbitrarily
they might then have had a right to attack the law on the ground that
it vested arbitrary and unregulated power in the T extile Commissioner.
The appellants were n ot hurt in any act of the T extile Commissioner
as they never applied for a permit. T hey were transporting essential
goods b y rail w ith out a perm it and the only way they can get any
releif is by attacking the section which obHges them to take a permit
before they can transport by rail essential com modities.
It may also be pointed out that reference to the decision o f this

C ourt i n ~ ‘Dwarka Prasad's case' is not very apposite and has no
bearing on the present case. Section 4(3) of the U .P. C oal C on trol
Order was declared void on the ground that it com m itted to the
unrestrained will o f a single individual to grant, w ithhold or cancel
licences in any way he chose and there was nothing in the Order
which could ensure a proper execution o f the pow er or operate as a
check upon injustice that might result from im proper execu tion o f the
same....
In the present C on trol Order there is no such provision as existed
in the U.P. Coal C on trol Order. Provisions o f that C on trol Order
bear no analogy to the provisions of the present C ontrol Order. The
policy underlying the Order is to regulate the transport o f cotton
textile in a manner that will ensure an even distribution o f the
com m odity in the country and make it available at a fair price to
all. The grant or refusal o f a permit is thus to be governed by
this policy and the discretion given to the T extile Commissioner is to
be exercised in such a way as to effectuate this policy. T he conferm ent
o f such a discretion cannot be called invalid and if there is an abuse
o f the pow er there is ample pow er in the Courts to undo the mischief.
Presumably, as appears from the different form s published in the
Manual, there are directions and rules laid dow n b y the Central
Government for the grant or refusal o f permits.
582 INM AN ADMINISTRATIVE LAW [ CHAPTER 8
KISH AN C H A N D v, C O M M I S S I O N E R O F P O L I C E
A,I.R. 1961 S .C 705.
[Section 39 of the C alcutta P olice A ct, 1866, requires a licence

to be taken from the Commissioner o f Police for keeping an eating
house. T h e petitioner was prosecuted for violating the section. H e
challenged the constitutional validity o f the provision b efore the
Supreme Court.
Section 39 is in these terms :—

“ The Commissioner of Police may, at his discretion from time to
times grant licences to the keepers of such houses or places of
public resort and entertainment as aforesaid for which no licence
as is specified in the Bengal Excise A ct, 1909, is required upon
such conditions, to be inserted in every such licence, as he, with
the sanction of the said State Governm ent from time to time, shall
order, for securing the good behaviour o f the keepers o f the said
houses or places o f public resort or entertainment, and the
prevention of drunkenness and disorder among the persons
frequenting or using the same; and the said licences may be
granted by the said Commissioner, for any time n ot exceeding
one year.”
Wanchoo, J . :
Learned counsel for the petitioner contends that the language
of S. 39 shows that an absolute discretion, untrammelled b y any
considerations, is conferred on the Commissioner b y this section and
there is nothing either in the section or anywhere in the A c t to
guide the discretion o f the Commissioner in the matter o f granting
such licences. Therefore, according to learned counsel, the power
conferred on the Commissioner is arbitrary and unguided and such
pow er is unnecessarily to be struck dow n on the ground that it cannot
b e a reasonable restriction on the fundamental right to carry on trade.
There is no doubt that if the section empowers the Commissioner
to grant or refuse a licence without any criteria to guide him, it would
be an unreasonable restriction on the right to carry on trade. W e
have therefore to see whether there is any guidance either in the
section or in the A c t to regulate the exercise o f discretion o f the
Commissioner in the matter of granting such licences. In this
connection it must be remembered that the A c t was passed in 1886
when there were no fundamental rights and we cannot expect that
meticulousness of language which should be found in statutes passed
after January 26, 1950. It may also be mentioned that the A c t replaced
two earlier A cts, namely. A c t X III o f 1856 and X L V I I I o f 1860. The
A c t of 1860 also contained provisions for licences fo r eating houses
in Ss. 11 and 12 thereof, though the language o f those sections was
somewhat different. Section 11 laid dow n that in the tow ns of
Calcutta, Madras and Bombay no eating house shall be k ep t w ithout
licence and provided for a penalty for the same. Section 12 then laid
down that the Commissioner shall from time to time grant licences to
keepers o f such houses upon conditions for securing the good behaviour
of the keepers of the said houses and for the prevention o f drunkenness
and disorder among the persons frequenting or using the same. The
language of S.39, how ever, is different inasmuch as it provides that the
Commissioner may at his discretion from time to time grant licences.
The A c t of 1860 was interpreted by the Bombay H igh C ou rt in Rustom
Jamshed Irani v. Harley Kennedy I.L.R. 26 Bom. 396 as giving no discretion
to the Commissioner to refuse a licence if the person applying for the
licence was wiUing to fulfil the conditions imposed thereunder. In
the case of Calcutta, how ever, S. 39 made a change in the language
contained in the earlier A c t giving discretion to the Com missioner in
the matter of grant o f licences, The question th erefore is whether
the w ord “ discretion ” introduced by S. 39 means an absolute and
unguided discretion and w ould therefore now b ecom e an unreasonable
restriction on the fundam ental right of a citizen to carry on the trade
o f keeping an eating house. There is no doubt, as we have already
indicated, that the section does n ot say as many o f the provisions of
laws passed after January 26, 1950, do that the Commissioner would
grant licence on certain specified considerations..,. W e are how ever
o f opinion that w hen we are judging a law passed in 1866 to decide
whether it satisfies the test o f constitutionality based on A rt. 19(1) (g )
and A rt. 19(6), w e should take the section as a w hole and see whether
on a fair reading o f the section it can be said that there is no guidance
fo r the Commissioner in the matter o f granting or refusing licences
and his pow er is arbitrary. If such guidance can be foun d on a fair
reading o f the section, there w ould be no reason for striking it down
simply because it has not been w orded in a manner w hich would
show immediately that considerations arising from the provisions
o f A rt. 19(1) (g ) and A rt. 19(6) were in m ind...naturally those
considerations could not be in the mind o f the legislature in 1866...
W h a t then does the section provide ? It certainly gives powers

to the Commissioner to grant licences at bis discretion, Those
words, how ever, by themselves d o n ot necessarily mean
584 INDIAN a d m in is t r a t iv e LAW [ CHAPTER 8
Commissioner has the pow er to act arbitrarily and grant licences

where he pleases and refuse where he does not please to do so. The
section provides further that the licence has to b e granted upon
certain conditions and those conditions have to satisfy tw o objects,
namely, (i) securing of the good behaviour of the keepers o f the said
houses or places of public resort and entertainment and (ii) the
prevention o f drunkenness and disorder among the persons frequenting
or using the same. O f course, it is implicit in the section that a
licence will only be granted to a person who is the keeper o f an eating
house. W e cannot read the section as laying down that the discretion
is absolute and that the imposing o f conditions for the aforesaid two
objects only arises after that absolute discretion has been exercised in
favour of the grant of licences. W e see no unfairness or unreason
ableness in reading the section to mean that the Commissioner
shall satisfy himself (i) that the person applying for a licence is the
keeper o f an eating house, meaning thereby that he has a place where
he can carry on the business or trade and that he actually and
effectively has control and possession of that place, (ii) that the
keeper is a person of good behaviour so that the eating house may
not becom e a resort of criminals and persons of ill-repute, and (iii)
that the keeper is in a position to prevent drunkeness and disorder
among those who come to the eating house. This section appears in
the Pohce A ct, the purpose of which is to maintain law and order and
that is why we find that the two objects to be secured when granting
licences are the behaviour of the keeper himself and the prevention
o f drunkenness and disorder among those who frequent the eating
house. It seems therefore to us that S.39 clearly provides that the
Commissioner will use his discretion in deciding whether the person
applying for a licence is in actual and effective control and possession
o f the place where the eating house is to be kept and is thus the
keeper thereof. He will also satisfy himself that the keeper is a
person of good behaviour and further that he is able to prevent
drunkenness and disorder in the eating house. If he is satisfied on
these three matters, it seems to us that the section contem plates that
the discretion will be exercised in favour o f the grant of a licen ce....
[I]t is in our opinion fair and reasonable to come to the conclusion
that the discretion of the Commissioner in this matter is guided by
the two objects tnentioned in the section and by the necessary
implication contained in it that the person applying must b e in actual
and effective control and possession o f the place where he is going
to keep the eating house. The argument therefore that S.39 confers
an arbitrary and uncanalised pow er without any criteria fo r guiding

the discretion of the licensing authority must fail and the section
connot be held to be unreasonable restriction on the right to carry
on trade on this ground.
Then it is urged that even if there is guidance in the section it

provides for no hearing either oral or written o f the person applying
for a Hcence. Further it provides for no grounds to b e given for
refusing a hcence. Therefore, though there may be som e guiding
principle in the matter o f granting Hcences, the absence o f a provision
for hearing and for giving reasons for refusal w ould also make
the provision unconstitutional as an unreasonable restriction on a
fundamental right....T here is no doubt that procedural provisions o f a
statute also enter into the verdict as to its reasonableness; but at the
same time there can b e no abstract or general principles w h ich w ould
govern the matter and each statute has to be examined in its ow n
setting. It is undoubtedly correct that no provision has been made for
giving a hearing to a person applying for a licence and the Comm issioner
has n ot to give reasons when refusing the licence; but it cannot
be laid dow n as a general proposition that where in the case of
licensing statute no provision is made fo r hearing and there is no
provision for giving resons for refusal the statute must be struck dow n
as necessarily an unreasonable restriction on a fundam ental right.
N o case has been cited before us which lays d ow n such a general
proposition. W e have therefore to examine the section in its setting
to decide whether the absence o f a provision for hearing and for
requiring the Commissioner to give reasons for refusal w ould make
this section unconstitutional. The section appears in the Police A ct,
w hich deals generally with matters of law and order and the two
objects specified in the section are also for the same purpose. T he
discretion is vested in a high p olice officer w ho one w ould expect,
w ould use it reasonably. T here is no provision fo r appeal and there is no
iis as betw een the person applying for a licence and the Commissioner;
the exercise o f the discretion depends upon the subjective satisfaction
o f the Commissioner as to w hether the person applying for a licence
satisfies the three conditions m entioned above. It is true that the
order when made on e way or the other affects the fundamental right
o f carrying on trade, but in the circumstances it can n ot but b e an
administrative order ( see, Nagendra Nath Bora and Another v. The
Commissioner o f Hills Division and Appeals, Assam and Others.,..) a.nd
though the Commissioner is expected to act reasonably there is no
duty cast on him to a ct judicially. In Nakkuda AU M .F.De S. JciMMtWA.,,-
586 INDIAN ADMINISTRATIVE LAW [C H A PTER S
the Privy C ouncil pointed out that it was quite possible to act
reasonably without necessarily acting judicially and that it was a long
step in the argument to say that because a man is expected to act
reasonably he cannot do so w ithout a course o f con d u ct analogous to
the judicial process. T h e com pulsion o f hearing before passing the
order implied in the maxim ‘ audi alteram partem’ applies only to judicial
or quasi-judicial proceedings; ( s e e , Express Newspapers (P ) Ltd. and
Another V. Union o f India,,,') Therefore the fact that no hearing is
required to be given by the Commissioner before he decides to grant
or refuse a licence would n ot make the provisions as to licensing in the
circumstances o f this case unreasonable restrictions on the fundamental
right of carrying on a trade. For the same reasons it cannot be said
that because the reasons for refusal are n ot com municated to theperson
applying that would make the licensing provision unconstitutional....
Subba Rao, J. i (w ith whom Sinha C. J. joined) dissenting :
The result of the discussion may briefly be summarized in the
form of the follow ing propositions : A fundamental right to do business
can be controlled by the State only by making a law imposing in the
interest of the general public reasonable restrictions on the exercise
of the said right; restrictions on the exercise o f a fundam ental right
shall not b e arbitrary or excessive or beyond what is required in the
interest of the general public; the reasonableness o f a restriction shall
be tested both from substantive and procedural aspects; an
uncontrolled and uncanalised pow er conferred on an ofHcer is an
unreasonable restriction on such right; though a legislative poHcy
may have been clearly expressed in a statute, it must also provide a
suitable machinery for implementing that policy in accordan ce with
the principles of natural justice; whether a restriction is reasonable
or not is a justiciable concept and it is for the C ourt to com e to one
conclusion or the other having regard to the considerations laid
down by Patanjali Sastri C. J., in {State o f Madras v. V. G.
and similar others; in taking an overall picture o f the relevant
circumstances, the Court may legitimately take into consideration
the fact that the discretion is entrusted to a State Governm ent or
a highly placed officer, but that in itself is of minor im portance for
the simple reason that the fundamental right itself is guaranteed
against the action of the State, which is defined to include n ot only
the Union or the State Government, but also Parliament, Legislatures
and all local or other authorities within the territory o f India;
the distinction between an administrative authority and a judicial
authority is not of much relevance in the context o f a reasonable
restriction, except perhaps a Court may more readily be inclined

to uphold a restriction, if a m atter is entrusted to an impartial judicial
authority than to an executive authority.
Bearing the aforesaid principles in mind, let us lo o k at the
impugned provisions of the A ct. The section has been extracted
supra. The first part of the section confers a free and unqualified
discretion on the Commissioner to grant a licence. A discretionary
power to issue a licence necessarily implies a p ow er to refuse to
issue a licence. The word “ may” is an enabling one and in its
ordinary sense means “ permissible” . W hen coupled w ith the
words “ at his discretion” it emphasises the clear intention o f
the legislature to confer on the Commissioner an unrestrained
freedom to act according to his own judgment and conscience.
If the section stops there, it is com mon case that p ow er o f the
Commissioner is uncontrolled and uncanaHsed. The second part of
the section deals with the nature o f the conditions to be inserted in
the licence. The conditions to be imposed are for securing the good
behaviour o f keepers o f public resort and fo r the prevention of
drunkenness and disorder among the persons frequenting or using
such places. N o doubt the said conditions must have the sanction of
the State Governm ent. This part, therefore, ensures the peaceful
and orderly con du ct of business. T h e section is clear and unambiguous
in terms and it is not disputed that the plain terms o f the section
will not enable the conditions o f a licence to be projected into the
matter of the exercise o f the discretion. B ut what is conducted is
that the conditions laid dow n a precise policy for guiding the
discretion of the Commissioner to give or n ot to give a
licence. There are many objections to this approach to the problem.
Firstly, it is to rewrite the section. If the legislature intended
to guide the discretion b y laying down ob jective criteria it
would have stated so in express terms, it would n ot have left the
matter to the absolute discretion o f the Commissioner. Secondly, if
the tw o conditions only o f the licence con trol the exercise of the
discretion, the Commissioner cannot travel beyon d the said tw o
conditions. A s a result, the amplitude of the discretion is drastically
cut down. The Commissioner w ould be able to refuse a licence only
if he was satisfied that the applicant could n ot be relied upon to
com ply with the said conditions; if he was so satisfied, he could not
refuse a licence in spite o f the fact that there were many other good
and relevant reasons for doing so. Thirdly, if the conditions are not
exhaustive but only illustrative, the section w ould continu^,fj|;0 ,,su0et
from the same vice, as it would still be open to the Com missioner to
refuse a licence for any other reason. Fourthly, discretion based upon
anticipatory breach of conditions will b e as arbitrary as in the use of
absolute discretion, particularly in the case o f new applicants, as more
often than not it will have to be exercised on the basis of surmises,
gossip or inform ation which may be false or at any rate untested.
Lastly, by this unwarranted search for an undisclosed p olicy in
the crevices o f the statute, this C ourt will not only b e finding
an excuse to resuscitate an invalid law but also be encouraging the
making of laws by appropriate authorities in derogation of
fundamental rights.
Even if the tw o conditions can be read into the first part of S. 39
arbitrariness is writ large in the manner o f exercising the so-called
guided discretion. In this context it is n ot necessary to com e to a
definite conclusion on the question whether the discretion is judicial
or executive, for whatever be the nature of the discretion it must be
tested from the standpoint o f reasonableness of the restrictions
imposed on a person’s right to do business. A citizen of India, for
the purpose o f eking out his livelihood, seeking to do an extensive
business o f an eating house, applies to the Commissioner for a Hcence,
fo r w ithout that licence he cannot do business, and if he does he will
be liable to prosecution. The Commissioner can reject the appHcation
on tw o grounds, namely, (1) from his antecedents and present conduct
it would be unreasonable to think that the petitioner w ould keep
good behaviour, and (2) the Commissioner is not satisfied that the
petitioner would be able to prevent drunkenness and disorder among
the persons frequenting or using the eating house. A dm ittedly, this
order is made without giving any opportunity to an applicant to prove
that he w ould satisfy both the tests laid dow n by S.39 o f the A ct.
The Commissioner is not legally bound to give any reasons for his
refusal to give a licence. Even if reasons are given, there is no
machinery for getting such an order revoked or vacated. T h e section
does not impose a duty on the Commissioner to give reasonable
opportunity to an applicant to clear his character or to disprove any
unwarranted allegations made against him or to prove that he w ould
satisfy both the tests laid dow n by S. 39 o f the A ct. N o r docs the
section provide for an appeal against the order of the Commissioner
to an appropriate authority. The suggestion that the authority is a
high officer in the police department and that he can be relied upon
to exercise his discretion properly does not appeal to us fo r two
reasons, namely, (1) as we have already pointed out, the Constitution
gives a guarantee for the fundamental right against the State and
other authorities; and (2) the status o f an oflicer is not an absolute
guarantee that the pow er will never be abused. Fundamental right
cannot be made to depend solely upon such presumed fairness and
integrity of officers o f State, though it may b e minor elem ent in
considering the question o f the reasonableness o f a restriction.
Therefore, it is clear to our mind that the exercise o f the p ow er also
suffers from a statutory d efect as it is n ot channelled through an
appropriate machinery. W e have, therefore, no hesitation to hold
that S.39 of the A c t infringes the fundamental right o f the petitioner
under A rt. 1 9 (l)(g ) of the C onstitution both from substantive and
procedural aspects,
NOTES
H ow would you recon cile the Bagla case with the Dwarka Nath
case? W h en in one case the cou rt found the general p olicy o f the
order as sufficient, what precluded it from doing so in the other case ?
Is the distinguishing feature betw een the tw o is that one involved
licence for the m ovem ent o f the com m odity and the other licence for
trading f
In the Kishan Chand case, even though the C ou rt attempted to

find the factors w hich con trolled the discretion o f the licensing
authority, it con ceded that the exercise o f discretion depended upon
the authority. D oes this n ot make the restrictions on the exercise o f
discretion illusory? In this connection, reference may be made to
Cooverjee v. Excise Commissioner^ in which a very broad discretion in
the matter o f licensing liquor trade was held valid.
In some cases, e.g., price fixing,^ the Supreme C ou rt has tried to
find the standards fo r the exercise o f discretion in the general policy
7. Jain, Indian Constitutional Law, 425-430 (1962).

8. A. I. R. 1954 S. C. 220.
9. See Union o f India v. Bhanamal Guhanmal, A. I. R. 1960 S. C. 475; State o f
Rajasthan v. Nathmal, A.I.R. 1954 S. C. 307. (The Nathmal case involved the freezing
of stock of foodgrains and acquiring at such rates as the government may fix. As far
as the discretion to freeze the stock was concerned, the Supreme Court found that the
discretion was controlled by the general policy of the Act. But this general policy
was not found suflHcient for price fixing. In the Dwarka Prasad case a price fixing
formula which did not leave much discretion with the authority concerned was helij
valid. See Jain, op. cit. 429-30.)
of the A c t. W h ile, as seen above, in the case of licensing, this has

n ot been the approach of the C ou rt and it has insisted on particular
standards,^® Can these approaches be distinguished on some poHcy ?
H ere it would be sufficient to state that price fixing is an order of
general applicability while in case of licensing the administrative
action is individualized. The standards for an order o f general
applicability could be couched in broad language; such broad standards
do n ot create dangers of discriminatory use of power and uncertainty
in private rights. W hereas these problems arise if broad standards
are laid down for the exercise o f administrative discretion on
individual applications.
U nder Sections 38(1) and (3 )(b )(iii) o f the Banking Companies
A ct, 1949, the Reserve Bank has been made the sole judge to decide
whether the affairs of a banking company are being so conducted as
to be prejudicial to the interests of the depositors. The H igh C ourt
has no option but to pass an order winding up the banking com pany
when the application is made b y the Reserve Bank for this purpose.
H olding the provision valid against a challenge under article
19(l)Cg), the Supreme Court held by a majority that
“ [I]n view of the history of the establishment of the R eserve Bank
as a Central bank for India, its provision as a Banker’s Bank, its
control over banking companies and banking in India, its position
as the issuing bank, its power to license banking com panies and
cancel their licences and the numerous other pow ers, it is
unanswerable that between the Court and the Reserve Bank the
momentous decision to wind up a tottering or unsafe banking
company in the interests o f the depositors, may reasonably be
left to the Reserve Bank.’’^^
T w o Justices, however, thought otherwise.
(b ) Article 1 9 (1 )(a ), (h), ( c) and ( e ) Freedom o f Speech, Assembly,

Association and Residence.
V IR E N D R A v. T H E S T A T E O F P U N J A B
A. I. R, 1957 S. C. 896.
[A fter the appointment of the States Reorganization Commissioner

on Decem ber 29,1953. the Akali Party in Punjab started a campaign
10, See, Mineral Development Ltd. v. State o f Bihar, A. I. R. 1960 S. C. 468.
11. Vellukimnel v. Reserve Bank o f India, A. I. R. 1962 S. C. 1371, at 1389. For
a detailed discussion on the scope of article 19(1 )(g) as a limitation of administrative
process, see The Indian Law Institute, Administi'ative Proês^ Under The E^s^ntial
(Commodities Act, 45-68 (1964),
for partition o f the State on communal and linguistic basis. A cou n ter
campaign was started b y the Hindus and the protagonists o f the
Hindi language. T o maintain communal harmony in the State, the
Punjab Legislature enacted the Punjab Special Pow ers (Press) A ct,
1956. U nder this A ct, the State Governm ent was em pow ered to
prohibit the publication of certain materials in a newspaper or a
periodical, and the bringing into Punjab o f any newspaper or
periodical. The G overnm ent by tw o notifications issued under the
A c t prohibited the publication of certain materials in the petitioner’s
newspaper pubHshed from Jullundur for a period o f tw o months and
also prohibited the bringing into Punjab his newspaper published from
Delhi. T he petitioner challenged the validity of the A c t under
article 1 9 (l)(a ) o f the Constitution. The material provisions o f the
impugned A c t are as follow s :
“ Section 2. The State Governm ent or any authority so authorised

in this behalf if satisfied that such action is necessary fo r the
purpose o f preventing or com bating any activity prejudicial to the
maintenance o f communal harmony affecting or likely to affect
pubHc order, may, by order in writing addressed to a printer,
publisher or editor,—
(a ) prohibit the printing or publication in any docum ent or any
class o f documents o f any matter relating to a particular subject
o r class o f subjects fo r a specified period or in a particular issue
or issues of a newspaper or periodical;
Provided that no such order shall remain in force for more than
tw o months from the making thereof;
Provided futther that the person against w hom the order has been
made may within ten days of the passing o f his order make a
representation to the State G overnm en t which may on
consideration thereof modify, confirm or rescind the ord er;”
Clause ( c ) of section 2(1) authorised the State Governm ent or

the delegated authority to impose precensorshxp.
Section 3(1) runs as fo llo w s :

"T h e State Governm ent or any authority authorised by it in this
behalf, if satisfied that such action is necessary fo r the purpose
o f preventing or com bating any activity prejudicial to the
maintenance o f com munal harmony affecting or likely to affect
pubHc order, may, b y notification, prohibit the bringing
Punjab o f any newspaper, periodigal, leaflet or other publication;
S. R. Das, C. J . :
The petitioners contend that both Ss. 2 and 3 of the impugned
A c t are ultra vires the State Legislature, because they infringe the
fundamental rights of the petitioners guaranteed by A rt. 1 9 (l)(a ) and
1 9 (l)(g ) o f the Constitution and are n ot saved by the protecting
provisions embodied in A rt. 19(2) or Art, 19(6).
There is and can be no dispute that the right to freedom o f speech
and expression carries with it the right to propagate and circulate
on e’s views and opinions subject to reasonable restrictions....
Learned counsel then urges that assuming these sections impose
only restrictions they are, nevertheless, void as being repugnant to
the Constitution, because the restrictions are not reasonable....
T h e test o f reasonableness has been laid down by this C ou rt in

The State o f Madras v. V, G. Row, A .L R . 1952 S.C. 196 in the follow ing
words :
“It is important in this context to bear in mind that the test of
reasonableness, wherever prescribed, should be applied to each
individual statute impugned, and no abstract standard or general
pattern, o f reasonableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions at the
time, should all enter into the judicial verdict.”
This dictum has been adopted and applied by this C ou rt in

several s-ubsequent cases. The surrounding circumstances in w hich the
impugned law came to be enacted, the underlying purpose o f the
extent and the urgency of the evil sought to be remedied have already
been adverted to. It cannot be overlooked that the Press is a mighty
institution wielding enormous powers which are expected to be
exercised for the protection and the good o f the people but w hich
may conceivably be abused and exercised for anti-social purposes by
exciting passions and prejudices of a section of the people against
another section and thereby disturbing the public order and
tranquillity or in support o f a policy which may be o f subversive
character.
It is conceded that a serious tension had arisen betw een the

Hindus and the Akalis over the question o f the partition o f the State
oh linguistic ^nd comniurial basis,,,,
It was for preserving the safety of the State and for maintaining
the public order that the Legislature enacted this impugned Statute...
'■’ The State G overnm ent was charged w ith the preservation of
law and order in the State; as it alone was in possession o f all
material facts it would be the best authority to investigate the
circumstances and assess the urgency of the situation that might arise
and to make up its mind w hether any, and if so, what anticipatory
action must be taken for the prevention o f the threatened or
anticipated breach o f the peace.
The Court is w holly unsuited to gauge the seriousness o f the
situation, for it cannot be in possession o f materials w hich are
available only to the executive Governm ent. T h erefore, the
determ ination o f the time when and the extent to which restrictions
should be imposed on the Press must of necessity be le ft to the
judgment and discretion o f the State Governm ent and that is exactly
what the Legislature did by passing the statute.
It gave wide pow ers to the State Governm ent, or the authority
to w hom it might delegate the same, to be exercised only if it were
satisfied as to the things m entioned in the tw o sections. The
conferm ent of such wide pow ers to be exercised on the subjective
satisfaction of the G overnm ent or its delegate as to the necessity for
the purpose o f preventing or com bating any activity prejudicial to
the maintenance of com m unal harmony affecting or likely to affect
public order cannot, in view o f the surrounding circumstances and
tension brought abou t o r aided by the agitation in the Press, be
regarded as anything but the im position o f permissible reasonable
restrictions on the fundamental rights.
Q u ick decision and swift and efifective action must be the essence
o f those powers and the exercise o f it must, th erefore, be le ft to the
subjective satisfaction of the G ovenrm ent charged with the duty of
maintaining law and order. T o make the exercise o f these powers
justiciable and subject to the judicial scrutiny will defeat the very
purpose o f the en actm ent....
It is said that th e sections give unfettered and uncontrolled
discretion to the State G overnm ent o r to the officer authorised by it
in the exercise o f the drastic pow ers given by the sections. W e are
referred to the observations o f M ukherjea J., in Dwarka Prasad Laxmi
Narain v. The State o f Utter Pradesh, A .I R . 1954 S C . 224, 227. "That
case does not seefm to us to have any application to the facts o f this
case,
In the first place, the discretion is given in the first instance

to the State Government itself and not to a very subordinate
officer like the licensing officer as was done in Dwarka Prasad’s
case. It is true that the State Governm ent may delegate the
power to any officer or person but the fact that the p ow er of
delegation is to be exercised by the State Governm ent itself is some
safeguard against the abuse of this pow er of delegation. T h at apart,
it will be remembered that the U tter Pradesh C oal C on trol Order,
1953, with reference to which the observations were made, prescribed
no principles and gave no guidance in the matter o f the exercise of
the power. There was nothing in that order to indicate the purpose
for which and the circumstances under which the licensing authority
could grant or refuse to grant, renew or refuse to renew or, suspend,
cancel or modify any licence under that order and, th erefore, the
pow er could be Exercised by any person to whom the State C oal
Controller might have chosen to delegate the same.
N o rules had been framed and no directions had been given on

the relevant matters to regulate or to guide the exsrcise o f the
discretion of the licensing officer. That cannot, in our judgement, be
said about S, 2 or S. 3 of the impugned A ct, for the exercise o f the
pow er under either of these two sections is conditioned b y the State
Government or the authority authorised by the said G overnm ent
being satisfied that such action was necessary for the purpose of
preventing or combating any activity prejudicial to the maintenance
of communal hermony affecting or likely to affect the public order.
A s explained by this C ourt in Harishankar Bagla v. The State o f

Madhya Pradesh, A.I.R. 1954 S-C. 465, 467, the dictum of M ukherjea J..
can have no application to a law which sets out its underlying p olicy
so that the order to be made under the law is to be governed b y that
policy and the discretion given to the authority is to be exercised in
such a way as to effectuate that policy, and the conferm ent of such a
discretion so regulated cannot b e called invalid.
The two sections before us lay dow n the principle that the State
Government or the delegated authority can exercise the p ow er only
if it is satisfied that its exercise is necessary fo r the purposes
mentioned in the sections. It cannot be exercised fo r any other
purpose. In this view of the matter neither of these sections can be
questioned on the ground that they give unfettered and uncontrolled
discretion to the State Government or one executive officer in the
exercise o f discretionary powers given b y the section.
SECTIONS] ADMINISTRATIVE DISCRETION 595
N o assumption ought to be made that the State Governm ent or

the authority will abuse its power. T o make exercise of the power
ju s tic ia b le will defeat the very purpose fo r which the pow er is given.
Further, even if the officer may conceivably abuse the pow er, what
w ill be struck down is n ot the statute but the abuse o f power-
A pa rt from the limitations and conditions fo r the exercise of the
powers contained in the body o f the tw o sections as hereinbefore
mentioned, there are tw o provisos to S. 2(1) (a) which are important-
Under the first proviso the orders made under S. 2(1 ) (a) can only
remain in force fo r tw o months from the making thereof. Futher,
there is another proviso permitting the aggrieved person to make a
representation to the State Governm ent which may, on consideration
thereof, modify, confirm or rescind the order.
A power the exercise of which is conditioned b y the positive
requirement of the existence of the satisfaction o f the authority as to
the necessity for making the order for the specific purposes mentioned
in the section and the effect of the exercise of which is to remain in
operation for a limited period only and is liable to b e modified or
rescinded upon a representation being made cannot, in our opinion, in
view o f the attending circumstances, be characterised as unreasonable
and outside the protection given b y A rt. 19(2) or A rt. 19(6),
The observations hereinbefore made as to the safeguards set
forth in the provisions of S .2 (l)(a ) and (b ) cannot, however, apply to
the provisions of S. 3. A lthough the exercise o f the powers under
S. 3(1) is subject to the same condition as the satisfaction o f the State
Government or its delegates as is mentioned in S .2 (l)(a ), there is,
however, no time limit for the operation of an order made under this
section nor is there any provision made for any representation being
made to the State Government.
The absence of these safeguards in S. 3 clearly makes its
provisions unreasonable and the learned Solicitor-G eneral obviously
felt some difficulty in supporting the validity o f this section. It is
surprising how in the same statute the two sections came to be
worded differently.
NOTES
T he H igh Courts have considered in several cases the validity o f

the Dramatic Performances A ct, 1876 which authorises the District
Magistrate to prohibit public dramatic performances o f a scandalous
or defam atory nature, corrupting persons or arousing or likely to

excite feelings o f disaffections towards the government. Th e A c t
was declared bad because under it the District Magistrate was made
the final authority to determine the question whether a particular
play was offensive under the A ct. There was no provision to review
his decision, or to afford an opportunity to the aggrieved party to
make a representation against the prohibitory order, nor is the
executive under an obligation for taking action.^^
In The State o f Madras v. V. G. Row}^ was involved the

constitutional validity of section 1 5 (2 )(b )of Criminal L aw Amendm ent
A c t, 1908, as amended in Madras by the Madras A ct o f 1950. Under
this provision the State Government was em powered to declare, by
a notification, an association unlawful if it constituted a danger to
public peace, interfered with the maintenance of public order or the
administration of law. The notification was required to contain
the reasons for its issue and the time within which the association
could make a representation to the Government. The representation
was to b e considered by an Advisory Board and the Governm ent was
required to cancel the notification if the Board so recommended.
Certain association was declared unlawful under this A ct. The
Supreme Court declared the provision unconstitutional under article
1 9 (l)(e ) of the Constitution. The Court observed :
“ The right to form associations or unions has such wide and

varied scope for its exercise, and its curtailment is fraught with
such potential reactions in the religious, political and econom ic
fields that the vesting of authority in the executive government
to impose restriction on such right, without allowing the grounds
of such imposition, both in their factual and legal aspects, to be
duly tested in a judicial enquiry, is a strong elem ent which,
in our opinion, must be taken into account in judging the
reasonableness o f the restrictions imposed by S. 1 5 (2 )(b ) on the
exercise of the fundamental right under A rt. 1 9 (l)(c ); for, no
summary and what is bound to be a largely one-sided review by
an Advisory Board, even where its verdict is binding on the
executive government can be a substitute fo r a judicial
enquiry,” ^^
12. State V . Baboolal, A. I. R. 1956 All. 571 ; Harnam Singh v. Punjab State,
A. I. R, 1958 Punj. 143.
13. A. I, R. 1952 S. C. 196.
14. Id, at 200.
SECTION 3 J a d m in is t r a t iv e DISCRETION 597
Ebrahim Vazir V. State o f Bombay^^ involved the constitutional

validity o f section 5 o f the Influx From Pakistan C on trol A c t, 1949,
under article 1 9 (l)(e ) o f the Constitution, The section provided that
the Central Governm ent could order the rem oval from India o f any
person who has com m itted or against whom a reasonable suspicion
exists that he has com m itted an offence under the A ct. T he Supreme
Court held that the section left the matter of the rem oval o f a citizen
of India from his ow n country to the arbitrary and unrestrained
discretion o f the government. A person would;’ be rem oved merely
ori suspicion without according him a reasonable opportu n ity to show
cause against the suspicion. Such a provision imposed unreasonable
restrictions on the fundamental right of a citizen to reside and settle
in India.
(c) Article 1 9 (l)(d ) - Right to Movement.
HARI v. DEPU TY COMMISSIONER OF POLICE

A. I. R. 1956 S. C. 559.
[A n externment order was passed against the petitioner, a resident

of Bombay, by the D eputy Com m issioner o f Police, under section 57
o f the Bombay PoHce A ct, 1951, ordering him to rem ove himself
outside the Hmits o f G reater Bombay for a period o f tw o years. The
petitioner challenged the validity o f the A c t under article 1 9 (l)(d )
of the Constitution.]
Sinha, J . :
It has been contended that the police have been vested with
unlimited powers in the sense that any person whom they suspect or
against whom they have their ow n reasons to proceed can be asked
to rem ove, not only from any particular area, like Greater Bombay,
but from the entire state of Bombay,
Even if one order does n ot ask a person to rem ove himself out of
the entire State, each authority within its respective local jurisdiction
can ask a particular person to go ou t o f that area, so that that person
may find himself w holly displaced without any place to go to. U nlike
the law relating to preventive detention, there is n o provision for an
A dvisory Board which could examine the reasonableness o f the order
proposed to be passed or already passed, so that there is no ch eck on
the exercise of pow er by the p olice authorities under the A ct,
how ever flagrant the abuse of the pow er may have been.
15. A. I. R. 1954 S. C. 322.
59g INDIAN a d m in is t r a t iv e LAW [ CHAPTER 8
Section 57 of the A ct which is particularly impugned in this case

is in these terms
“ Removal of persons convicted o f certain offences.
If a person has been convicted -
(a) of an offence under Chapter 12, 16 or 17, I.P.C., or
(h) twice of an offence under S.9 or S. 23 of the Bom bay Beggars
A ct, 1945, or under the Bombay Prevention of Prostitution A ct,
1923, or
(c) thrice of an offence within a period of three years under
Section 4 or S. 1 2 -A o f the Bombay Prevention o f Gambling
A ct, 1887, or under the Bombay Prohibition A ct, 1949, the
Commissioner, the District Magistrate, the Sub-Divisional
Magistrate specially empowered by the State Governm ent in this
behalf, if he has reason to beHeve that such person is likely again
to engage himself in the commission o f an offence similar to that
for which he was convicted, may direct such person to remove
himself outside the area within the local limits o f his jurisdiction,
by such route and within such time as the said officer may
prescribe and not to enter or return to the area from which he
was directed to remove himself.
E xplanation -F or the purpose of this section ‘an offence similar
to that for which a person was convicted’ shall mean—
0) in the case of a person convicted of an offence m entioned in
cl. (a), an offence falling under any o f the Chapters o f the Indian
Penal Code mentioned in that clause, and
(ii) in the case of a person convicted of an offence mentioned in
els. (b ) and (c), “an oflfence falhng under the provisions of the
A cts mentioned respectively in the said clauses.”
For preventing a breach of the public peace or the invasion of
private rights the State has sometimes to impose certain restrictions
on individuals’ rights. It therefore becom es the duty o f the State not
only to punish the offenders against the penal laws o f the State but
also to take preventive action. "Prevention is better than cure” applies
not only to individuals but also to the citizens of the State.
The impugned S. 57 is an instance of the State taking preventive
measures in the interest o f the public and for safeguarding individuals’
rights....
The individual s right to reside in and move freely in any part of

the territory of India has to yield to the larger interest o f the.
community. That the A c t is based on sound principle cannot be

gainsaid..,.
It was next contended that unlike P reventive Detention laws
there was no provision in the impugned law for an A dvisory Board
which could scrutinise the material on which the officers or authorities
contem plated b y S. 57 had taken action against a person. It cannot
be, and has not been laid down, as a universal rule that unless there
is a provision for such an A dvisory Board such a legislation would
necessarily be condem ned as unconstitutional.
The very fact that the constitution in A rt. 22(4) has made specific
provision for an A dvisory Board consisting of persons of stated
q u a lific a tio n s with reference to the la w for Preventive D etention, b u t
has made no such specific provision in A rt. 19 would answer this
conten tion ....
...O n the oth er hand, in the case of 1952 SC 196 S. 15(2) (b ), Indian
Criminal Law (A m endm ent) A ct, 1908, as amended by the Indian
Criminal Law A m endm ent (M adras) A ct, 1950, was held to be
unconstitutional as the restrictions imposed on the fundam ental right
to form association w ere not held to be reasonable in spite o f the fact
that there was a provision fo r an advisory B oard whose opinion was
binding on the Governm ent. H en ce it cannot be said that the existence
o f an A dvisory Board is a sine qua non of the constitutionality o f a
legislation such as the one before us.
It was next contended that the provisions relating to hearing any
evidence that may be adduced b y the police o r b y the person
proceeded agginst and right o f appeal to the State Governm ent
conferred by S. 60 o f the A c t are illusory. W e cannot agree that the
right o f appeal to the State Governm ent granted to the person
proceeded against by an order under S. 57 is illusory because it is
expected that the State G overnm ent which has been charged with
the duty of examining the material with a view to being satisfied that
circumstances existed justifying a preventive order o f the nature,
will discharge its function with due care and caution.
Section 61 has provided a further safeguard to a person dealt

w ith under S. 57 b y providing that though an order passsed under
S.55, S.56 or S. 57, or the State Governm ent under S. 60 on appeal
shall not be called in question in any court, he may challenge such an
order in a cou rt on the ground (1 ) that the authority making the
order or any officer authorised b y it had n ot follow ed the procedure
laid dow n in S. 57, or (2 ) that there was n o material before the
600 iNDlAi^ a d m in is t r a t iv e LAW [ CHAPTER 8
authority concerned upon which it could have based its order, or (3)
that the said authority was not of opinion that witnesses were
unwilling to come forward to give evidence in public against the
person proceeded against.
In this connection it was argued on behalf of the petitioner that
S. 59 only required the general nature of the material allegations,
against the person externed to be disclosed and that, as it did not
further provide for particulars to be supplied to such a person, it
would be very difficult for him to avail o£ at least the second ground
on which S. 61 permits him to get the matter judicially examined. But
in the very nature of things it could not have been otherwise. The
grounds available to an externee had necessarily to be very limited in
their scope, because if evidence were available which could be
adduced in public, such a person could be dealt with under the
preventive sections of the Code of Criminal Procedure, for example,
under S. 107 or S. 110.
STATE OF MADHYA PRADESH v. BALDEO PRASAD

A.I.R. 1961 S.C. 243.
[The State of Madhya Pradesh passed an order o f externment

against the respondent under the Central Provinces and Berar
Goondas A ct, 1946, as amended by Madhya Pradesh A c t X L IX of
1950. The respondent filed a civil petition in the High Court of
Nagpur challenging the vires of the A ct. The High Court held that
sections 4 and 4-A of the A ct were invalid. Subsequently, with a
certificate under article 132(1) of the Constitution, the instant appeal
was filed in the Supreme Court.
Section 4 reads thus;
4(1). During the period the proclamation of emergency issued or
renewed under S. 3 is in operation, the District Magistrate having
jurisdiction in or in any part of the proclaimed area, if satisfied
that there are reasonable grounds for believing that the presence,
movements or acts of any goonda in the proclaimed area are
prejudicial to the interests of the general public or that a
reasonable suspicion exists that any goonda is committing or is
.likely to commit acts calculated to disturb the public peace or
tranquillity may make an order—
(i) directing such goonda to notify his residence and any change
of or absence from such residence during the term specified and
to report his movements in such manner and to such authority as

may be specified;
(ii) directing that he shall not remain in the proclaimed area
within his jurisdiction or any specified part thereof and shall not
enter such area; and
(iii) directing him so to conduct himself during the period
specified as the District Magistrate shall deem necessary in the
interest of public o rd e r:
Provided that no order under cl. (ii) which directs the exclusion
o f any goonda from a place in which he ordinarily resides shall
be made except with the previous approval of the State
G overnm ent;
Provided further that no such order shall be made directing
exclusion of any goonda from the District in which he ordinarily
resides.
(2) N o order under sub-sec. (1) shall be made by a District
Magistrate in respect of a goonda without giving to such goonda
a copy of the grounds on which the order is proposed to be
made and without giving an opportunity to be heard ;
Provided that where the District Magistrate is of opinion that it
is necessary to make an order without any delay he may for
reasons to be recorded in writing, make the order and shall, as
soon as may be within ten days from the date on which the order
is served on the goonda concerned, give such goonda a copy of
the grounds and an opportunity to be heard.
(3) A fter hearing the goonda, the District Magistrate may cancel
or modify the order as he thinks fit.
Section 4 -A reads thus :
(1) where the District Magistrate considers that with a view to
maintain the peace and tranquillity o f the proclaimed area in his
district it is necessary to direct a goonda to remove himself
outside the district in which the proclaimed area is comprised or
to require him to reside or remain in any place or within any
area outside such district, the District Magistrate may, after
giving the goonda an opportunity as required by sub-sec, (2 ) of
S. 4, forward to the State Government a report together with
connected papers with a recommendation in that behalf.
(2 ) On receipt of such report the State Governr^^,nt may, if it is
satisfied that the recommendation made by,, the District
Magistrate is in the interests of the general public, niake an order

directing such goonda—
(a ) that except in so far as he may be permitted by the provisions
o f the order, or by such authority or person as may be specified
therein, he shall not remain in any such area or place in Madhya
Pradesh as may be specified in the order;
(b) to reside or remain in such place or within such area in
Madhya Pradesh as may b e specified in the order and if he is not
already there to proceed to that place or area within such time
as may be specified in the o r d e r ;
Provided that no order shall be made directing the exclusion or
removal from the State of any person ordinarily resident in the
State.]
Gajendragadkar, J. ;
The respondent challenged the validity of the A c t on the ground
that it invades his fundamental rights under Art. 19(1) (d ) and (e)
and as such it becomes invalid having regard to the provisions of
A rt. 13 of the Constitution..,.
The argument against the validity of the A ct is, however, based
on one serious infirmity in S.4 and S. 4 -A which contain the operative
provisions of the A ct. This infirmity is common to both the sections,
and so what we will say about S. 4 will apply with equal force to
S. 4-A . It is clear that S. 4 contemplates preventive action being
taken provided two conditions are satisfied; first, that the presence,
movements or acts of any person sought to be proceeded against
should appear to the District Magistrate to be prejudicial to the
interests of the general public, or that a reasonable suspicion should
exist that such a person is committing or is likely to commit acts
calculated to disturb public peace or tranquillity; and second that the
person concerned must be a goonda. It would thus be clear that it
is only where prejudicial acts can be attributed to a goonda that S. 4
can come into operation. In other words, the satisfaction o f the first
condition alone would not be enough; both the conditions must be
satisfied before action can be taken against any person. That clearly
means that the primary condition precedent for taking action under
S. 4 is that the person against whom action is proposed to be taken
is a goonda; and it is precisely in regard to this condition that the
section suffers from a serious infirmity.
The section does not provide that the District Magistrate must
first come to a decision that the person against whom he proposes to
SECTION 3 ] a d m in is t r a t iv e DISCRETION 603
take action is a goonda, and gives him no guidance or assistance in

the said matter. It is true that under S. 4 a goonda is entitled to have
an opportunity to be heard after he is given a cop y of the grounds on
which the order is proposed to be made against him,- but there is no
doubt that all that the goonda is entitled to show in response to the
notice is to challenge the correctness of the grounds alleged against
him. This enquiry does not contemplate an investigation into
the question as to whether a person is a goonda or not. The
position, therefore, is that th e District Magistrate can proceed
against a person without being required to come to a formal decision
as to whether the said person is a goonda or not; and in any event no
opportunity is intended to be given to the person to show that he is
not a goonda. The failure of the section to make a provision in that
behalf undoubtedly constitutes a serious infirmity in its scheme.
Incidentally it would also be relevant to point out that the
definition of the word “goonda" affords no assistance in deciding
which citizen can be put under that category. It is an inclusive
definition and it does not indicate which tests have to be applied in
deciding whether a person falls in the first part of the definition.
Recourse to the dictionary meaning o f the word would hardly be of
any assistance in this matter. A fter all it must be borne in mind that
the A ct authorises the District Magistrate to deprive a citizen of his
fundamental right under A rt. 19(1) (d) and (e), and though the object
o f the A ct and its purpose would undoubtedly attract the provisions
o f A rt. 19(5) care must always be taken in passing such A cts that
they provide sufficient safeguards against casual, capricious or even
malicious exercise o f the powers conferred by them. It is well
known that the relevant provisions of the A c t are initially put in
motion against a person at a lower level than the District Magistrate,
and so it is always necessary that sufficient safeguards should be
provided by the A c t to protect the fundamental rights of innocent
citizens and to save them from unnecessary harassment. That is why
we think the definition of the word “ goonda’" should have given
necessary assistance to the District Magistrate in deciding whether a
particular citizen falls under the category of goonda or not; that is
another infirmity in the A ct, A s we have already pointed out S. 4 -A
suffers from the same infirmities as S. 4.
Having regard to the two infirmities in Ss- 4 ,4 -A respectively we
do not think it would be possible to accede to the argument of' the
learned A dvocate General that the operative portion o£ the A ct can
fall under A rt. 19(5) of the Constitution. The person against whom
action can be taken under the A c t is not entitled to know the source
of the information received by the D istrict Magistrate; he is only
told about his prejudicial activities on w hich the satisfaction of the
District Magistrate is based that action should be taken against him
under S. 4 or S.4-A. In such a case it is absolutely essential that the
A c t must clearly indicate by a proper definition or otherwise when
and under what circumstances a person can be called a goonda, and
it must impose an obligation on the District Magistrate to apply his
mind to the question as to whether the person against whom
complaints are received is such a goonda or not. It has been urged
before us that such an obligation is implicit in Ss. 4 and 4 -A . W e are,
however, not impressed by this argument. W here a statute empowers
the specified authorities to take preventive action against the citizens
it is essential that it should expressly make it a part of the duty of the
said authorities to satisfy themselves about the existence of what the
statute regards as conditions precedent to the exercise of the said
authority. If the statute is silent in respect o f one of such conditions
precedent it undoubtedly constitutes a serious infirmity which would
inevitably take it out of the provisions o f Art. 19(5). The result of
this infirmity is that it has left to the unguided and unfettered
discretion o f the authority concerned to treat any citizen as a goonda.
In other words, the restrictions which it allows to be imposed on the
exercise of the fundamental right of a citizen guaranteed by A rt. 19(1)
(d ) and (e) must in the circumstances be held to be unreasonable.
That is the view taken by the High C ourt and we see no reason to
differ from it.
In this connection we may refer to the corresponding Bombay

statute the material provisions of which have been examined and
upheld by the Court. Section 27 of the City of Bombay Police A ct,
1902 (4 of 1902) which provides for the dispersal of gangs and bodies
o f persons has been upheld by this Court in Gurbachan Singh v. State
o f Bombay..., whereas S. 56 and S. 57 of the subsequent Bombay
Pohce A ct, 1951 ( ... ) have been confirmed respectively in Bhagubhai
Dullabhai Bhandari v. District Magistrate, Thana.,. (A . I. R, 1956 S. C.
585) and Hciri Khemu Gawali v. Deputy Commissioner o f Police^
Bombay, ... (A.I.R. 1956 S.C. 559). It would be noticed that the
relevant provisions in the latter A ct the validity of which has been
upheld by this Court indicate how the mischief apprehended from the
activities of undesirable characters can be effectively checked by
makmg clear and specific provisions in that behalf, and how even in
meeting the challenge to public peace and order sufficient safeguards
can be included in the statute for the protection of innocent citizens.

It is not clear whether the opportunity to be heard w hich is provided
for by S. 4 (2) would include an opportunity to the person concerned
to lead evidence. Such an opportunity has, however, been provided
by S. 59(1) of the Bombay A c t of 1951. A s w e have already mentioned
there can be no doubt that the purpose and o b je ct of the A c t are
above reproach and that it is the duty of the State Legislature to
ensure that pubHc peace and tranquillity is n ot disturbed by the
prejudicial activities of criminal and undesirable characters. That,
however, cannot help the appellants’ case because, as w e have indicated,
the infirmities in the operative sections of the A c t are so serious that
it would be impossible to hold that the A c t is saved under A rt. 19(5)
of the Constitution. There is no doubt that if the operative sections
are invalid the w hole A c t must fall.
In the result the order passed by the H igh C ourt is confirmed
and the appeal is dismissed with costs.
NOTES
In Dr. Khare v. State o f D e l h i was involved the constitutional

validity of the East Punjab Safety A ct, 1949. U nder S. 4f4 ) o f the
A ct, the State Governm ent could order the rem oval o f a person from
a specified area if it is satisfied that his activities would be prejudicial
to the public safety or the maintenance of public order. If the order
o f externment were for a period o f more than three m onths^the
individual concerned had the right o f making a representation to an
advisory tribunal. The Supreme Court held the A c t valid under
article 19(1) (d) o f the Constitution. Under section 56 o f the Bombay
Police A ct, 1951, before passing an externment order, a person was to
be given an opportunity to explain matters alleged against him,
Further, he could appeal to the State Governm ent from the initial
order made b y the Commissioner of Police. The Supreme Court
held the section constitutional in Bhagubhai v. Dist. Magistrate^’êven
though there was no provision, for representation to an Advisory
Body.
Is there any clear guidance from the above cases regarding "extern
ment” as to what procedural safeguards there should be in the new law
16. A .I. R. 1950 S. C. 211.
17, A, I. R. 1956 S. C 585,
subject to which the administrative discretion is to be exercised. Is

it correct to say that taking all the cases cumulatively, it appears that
in a case o f externment the minimum procedural safeguard insisted
upon by the Courts is that the person concerned has a right to know
the grounds of externment and to make a representation against it ?
Is this a sufficient safeguard ?
Suppose the statute in the Baldeo case has provided for the
removal of any person on the grounds mentioned in the A c t other
than those of being a goonda. W ou ld it have made any difference in
the result of the case ? On the assumption made herein would you
still distinguish this case from the Khare and Bhagubhai cases ?
(d) Article 19(1 ) ( f ) —Freedom to acquire, hold and dispose o f property.
RAGHUBIR SINGH V. COURT OF WARDS, AJMER

A.I.R. 1958 S.C. 373.
tThe facts of the case appear sufficiently clear in the judgment.]
Mahajan, J. ;
The petitioner owns an ‘istimrari estate’ in the State o f Ajm er
under an istimrari sanad granted to his ancestor in the year 1875. He
enjoys therein a life interest with an obligation to perform certain
duties as prescribed by the Ajm er Land and Revenue Regulation
(2 of 187^).
The Deputy Commissioner of Ajmer, who is the C ourt o f wards,
constituted under the Ajm er Government W ards Regulation (1 of
188^), took over possession and assumed superintendence of the said
estate on 18.9.1952, purporting to act under Ss, 6 and 7 o f the
Regulation read with S.112, Ajmer Tenancy and Land R ecord A ct,
1950....
The order made by the Court of W ards on 18-9-1952, is impugned
as being void and of no effect whatever, because it is alleged that the
statutory provisions under which it is purported to have been made
contravene the provisions o f part III o f the Constitution and take
away and abridge the petitioner’s rights guaranteed by A rt. 19 (1 ) (f)
o f the Constitution.
Section 112 of A ct 42 o f 1950 is one o f a group o f 7 sections in
Chapter 10 of the A ct which deals with the subject of “ Compensation
and Penalties” . The section prescribes penalties for habitual infringe
ment o f rights of tenants and reads thus :
“ If a landlord habitually infringes the rights of a tenant under
this A ct, he shall notwithstanding anything in S. 7 o f the A jm er
Government W ards Regulation, 1888 ( ...), be deem ed to be a

“ landlord who is disqualified to manage his ow n prop erty”
within the meaning of S. 6 o f the said Regulation and his property
shall be liable to be taken under the superintendence o f the
Court of W ards.”
The preceding S. 110 is in these terms :
“ If a landholder or bis agent collects from a tenant any ‘lag’ or

neg’, he shall be deemed to have conimitted an offence of
extortion within the meaning o f the Indian Penal C ode
Just as S. 110 declares an illegal exaction by a landlord to b e an

offence under the Indian Penal Code, in like manner, S. 112 declares
a landlord who habitually infringes the rights o f a tenant “ a person
disqualified to manage his own prop erty” within the meaning o f S. 6
of Regulation I of 1888, the consequence being that his property
becomes liable to be taken over b y the Court o f W ards. T h e section
is an ingenious and novel device to punish landlords who habitually
infringe the rights o f tenants. It authorizes the use for punitive
purposes o f the machinery of Regulation I of 1888 enacted to make
better provisions or the superintendance of Governm ent W ards in
Ajm er-M erwara. By force of the declaration in S. 112 o f the A ct,
landlords who habitually infringe the rights of the tenants fall within
the category of persons incapable o f managing their ow n p foperty
and come within the ambit o f S. 6 of the Regulation, which is in
these term s:
“ T he Court o f W ards may, with the previous sanction o f the

Chief Commissioner, assume the superintendence of the property
o f any landholder who is disqualified to manage his own
property.”
The result therefore of the com bined operation of S. 112 of A c t 42

of 1950 and of the provisions of Regulation I o f 1888, is that the C ourt
o f W ards can in its ow n discretion and on its subjective determination,
assume the superintendence o f the property o f a landlord who
habitually infringes the rights o f his tenants. The condition precedent
to such assumption o f superintendence is the previous sanction o f the
Chief Commissioner, the giving o f which is also a m atter entirely resting
on discretion. Section 27 o f Regulation I of 1888 provides that :
“ The exercise o f any discretion conferred on the C ourt o f W ards

or the Chief Commissioner by this Regulation shall not be called
in question in any civil cou rt.”
T h e contention that the provisions of S. 112 of A ct 42 of 1950 read

with provisions of Regulation I o f 1888 infring the fundamental right
o f the petitioner guaranteed by Art. 1 9 (l)(f) of the Constitution, is,
in our opinion, well-founded and does not require any elaborate
discussion. The petitioner’s right to hold the ‘istimrari’ estate and his
pow er of disposal over it stands abridged by the act of the Court of
W ards authorized by these provisions. His right to manage the estate
and enjoy possession thereof stands suspended indefinitely and until
the time that the Court of Wards chooses to withdraw its
superintendence of the property of the petitioner. During this period,
he can only receive such sums of money for his expenses as the Court
of W ards decides in its discretion to allow. Thus, the provisions of
S. 112 of A c t 42 of 1950 clearly abridge the fundamental right of the
petitioner Under A rt. 1 9(l)(f) and are to that extent void.
W hen a law deprives a person of possession of his property for an
indefinite period o f time merely on the subjective determination o f an
executive officer, such a law can on no construction of the word
"reasonable" be described as coming within that expression, because
it completely negatives the fundamental right by making its enjoym ent
depend on the mere pleasure and discretion of the executive, the
citizen affected having no right to have recourse for establishing the
contrary in a civil court. Section 112 of A ct 42 of 1950 cannot
therefore be held valid as coming within the scope of Art. 19(5) of
the Constitution.
SHRI JAGANNATH v. STATE OF ORISSA

A.l R. 1954 S.C. 400.
[The object of the Orissa Hindu Religious Endowments A ct, 1939,

as stated in the preamble, is “ to provide for the better administration
and governance of certain Hindu religious endowments.” The whole
scheme of the A ct is to vest the control and supervision o f public
temples and Maths in a statutory authority designated as the
Commissioner o f Hindu Religious Endowments and to confer upon
him certain powers with a view to enable him to exercise effective
control over the trustees of the Maths and the temples. The
petitioners, the Mahants of the ancient and well-known religious
institutions of Orissa challenged the vahdity of the A ct as amended
by an article of 1952 on the basis that it contravenes the fundamental
rights in the Constitution.]
Mukherjea, J. :
The sections o f the A c t, to which serious objection s have been

taken are sections 3S, 39, 46, 47.... Sections 38 and 39 relate to the
framing o f a scheme. A scheme can certainly be settled to ensure
due administration of the endowed property but the ob jection seems
to be that the A ct provides for the framing of a scheme not by a civil
court or under its supervision but by the Commissioner, or who is a
mere administrative or executive ofHcer. There is also no provision
for appeal against his order to the cou rt....
...W e think that the setting o f a scheme in regard to a religious

institution by an executive officer without the intervention o f any
judicial tdLâal amounts to an unreasonable restriction upon the right
o f property of the superior of the religious institution which is blended
with his office. Sections 38 and 39 o f the A c t must, therefore, be
held to be invalid.
There is nothing wrong in the provision of S. 46 itself but

legitimate exception, w e think, can be taken to the proviso appended
to the section. U nder the law, as it stands, the M ahant or the
superior o f a Math has very wide powers o f disposal over the surplus
income and the only restriction that is recognised is that he cannot
spend the incom e for his ow n personal use unconnected with the
dignity of his office. T h e purposes specified in S. 46 are all conductive
to the benefit of the institution and there is no reason why the
discretion o f the trustee in regard to the spending o f surplus for such
puirposes also should b e still further restricted by directions which
the Commissioner may choose to issue.
Section 47(1) lays dow n how the rule o f ‘cypres’ is to b e applied

not merely when the original purpose o f the trust fails or becom es
incapable o f being carried out either in whole or in part by reason of
subsequent events, but also where there is a surplus left after meeting
the legitimate expenses o f the institution. O b jection apparently
could be raised against the last provision o f the sub-section, but as
sub-section (4) of S. 47 gives the party aggrieved b y any order o f the
Commissioner in this respect right to file a suit in a civil court and
the court is empowered to modify or set aside such order of
the Commissioner, w e do not think that there is any reasonable
ground for complaint.
NOTES
The Orissa A c t was amended subsequent to the Supreme Court

decision. The material changes were that for the framing o f the
scheme, the Commissioner who is to be of the rank of a subordinate
Judge is required to hold an enquiry in accordance with the
provisions o f the Civil Procedure Code relating to the trial o f suits,
and a right of appeal to the High Court is conferred on the aggrieved
party against the scheme framed by the Commissioner. The act so
amended was declared valid by the Supreme Court in Sadasib Prakash
V. State o f Orissa}^
Under the Government Premises(Eviction) A ct, 1950, an executive

ofBcer was authorised to evict a person in occupation of a government
premises if he was satisfied that the person was in unauthorized
occupation o f the premises. The authority could also assess damages
for unauthorized occupation. The aggrieved person had no right of
access to the Courts; he could only make an appeal to the Central
Government. These drastic provisions were declared invalid by
several High Courts^® mainly on the basis that “ it is the satisfaction
o f the authority” which “forms the sole basis" o f eviction and levying
o f d.amages and that the powers given were so wide as to b e capable
o f misuse. Further, the protection afforded to the aggrieved party
was extremely inadequate. As a result of concentrated judicial
opposition the A ct was replaced by the Public Premises (E viction of
Unauthorised Occupants) A ct, 1948.
(e ) Article 14 - Equality before Law.
STATE OF WEST BENGAL v. ANWAR ALI

A.I.R. 1952 S. C. 75.
[Under section 5(1) of the W est Bengal Special Courts A ct, 1950
the State Government was empowered to refer, by general or special
order, ofifences for trial to a Special Court constituted by the
government. The preamble o f the A c t declared its purpose as the
speedier trial of certain offences. The respondents were tried and
convicted by this Court for certain offences. There w ere material
differences in the procedure for the trial of offences under this A c t
IS. A.I.R. 1956 S.C 433; see also Commissioner, H. R. E. v. L. T. Swamiar,
A.I.R. 1954 S.C. 282; Kishan Singh v. State o f Rajasthan, A. I. R. 1955 S. C. 795 and
Jyoti Pershad v. Union Territory of Delhi, A.I.R, 1961 S.C. 1602.
19. Satish Chandarv. Delhi Improvement Trust, A. I. R. 1958 Punj. 1; Jagu v.
M. SJiauIcat Ali, 58 C.W.N. 1066; Brigade Commander, Meerut v. Ganga Prasad, 1956
AH. 507.
and the Criminal Procedure Code. The respondents assailed the

statute as unconstitutional as it denied to them the equal protection
of the laws enjoined by article 14 of the Constitution.]
Mukherjea, J. :
I now com e to the other head o f arguments put forw ard...and the
principal point for our consideration is whether the apparent
discriminations that have been made in the A c t can be justified on
the basis o f a reasonable classification. Section 5(1), W e st Bengal
Special Courts A ct, lays down th a t:
“ A Special Court shall try such offences or class of offences or
cases or class of cases as the State Governm ent may, b y general
or special order, direct.”
The learned A ttorney-G eneral urges that the principle of
classification upon which the differences have been made betw een
cases and offences triable by the Special Court and those by ordinary
Courts is indicated in the preamble to the A c t which runs as follow s :
“ W hereas it is expedient to provide for the speedier trial o f certain
offences.” W h a t is said is, that the preamble is to b e read as a part
o f S. 5(1 ) and the proper interpretation to be put upon the sub
section is that those cases and offences which in the opinion o f the
State Governm ent w ould require speedier trial could b e assigned by
it to the Special Court. In my opinion, this contention connot be
accepted for more reasons than one,
M -the first place, I agree with the learned C hief Justice o f the
Calcutta High C ourt that the express provision o f an enactment, if
it is clear and unambiguous, cannot be curtailed or extended with the
aid o f the preamble to the A ct. It is only when the ob ject or meaning
of the enactment is not clear that recourse can be had to the
preamble to explain i t : see Craies on Statute Law^ 4th edn., 184. In
the case before us, the language o f S. 5(1) is perfectly clear and free
from any ambiguity. It vests an unrestricted discretion in the State
Governm ent to direct any cases or classes o f cases to b e tried by the
Special C ou rt in accordance with the procedure laid down in the A ct.
It is n ot stated that it is only when speedier trial is necessary that the
discretion should be exercised.
In the second place, assuming that the preamble throws any light
upon the interpretation o f the section, I am definitely o f opinion that
the necessity of a speedier trial is too vague, uncertain and elusive a
criterion to form a rational basis for the discriminations made. The
necessity for speedier trial may be the object which the legislature
had in view or it may be the occasion for making the enactment. In

a sense quick disposal is a thing which is desirable in all legal
proceedings. The word used here is “ speedier” which is a comparative
term and as there may be degrees of speediness, the word undoubtedly
introduces an uncertain and variable element. But the question is:
how is this necessity of speedier trial to be determined? N ot by
reference to the nature o f the offences or the circumstances under
which or the area in which they are committed, nor even by reference
to any peculiarities or antecedents of the offenders themselves, but
the selection is left to the absolute and unfettered discretion o f the
executive government with nothing in the law to guide or control its
■action. This is not a reasonable classification at all but an arbitrary
selection.
A line is drawn artificially between tw o classes of cases. On one
side o f the line are grouped those cases which the State Government
chooses to assign to the Special Court; on the other side stand the
rest which the State Government does not think fit and proper to
touch. It has been observed in many cases by the Supreme Court of
America that the fact that some sort of classification has been
attempted at will not relieve a statute from the reach o f the equality
clause.
“It must appear that not only that a classification has been made
but also that it is based upon some reasonable ground— some
difference which bears a just and proper relation to the attempted
classification” : vide Gulf Colorado etc. Co. v. Ellis, (1897) 165 U. S.
150.”
The question in each case would be : whether the characteristics
of the class are such as to provide a rational justification fo r the
differences introduced ? Judged by this test, the answer in the present
case should be in the negative; for the difference in the treatment
rests here solely on arbitrary selection by the State Governm ent....
....As I have said already, in the present case the discrimination
arises on the terms of the A c t itself. The fact that it gives
unrestrained power to the State Government to select in any way it
likes the particular cases or offences which should go to a Special
Tribunal and withdraw in such cases the protection which the accused
normally enjoy under the criminal law o f the country, is on the face
of it discriminatory.
[The concurring opinions of Fazl Ali, Mahajan, S. R. Das,
Chandrasekhara Aiyar and Bose, JJ. and the dissenting opinion, of
Patanjali Sastri, C,J., have been omitted,]
K A T H I lA N IN G v. STATE O F SAURASHTKA
A.I.R. 1952 S.C. 123.
[Section 11 of the Saurashtra State Public Safety M casurel

Ordinances, 1948, as amended provided that a Special Judge "shall try
such offences...as the Governm ent may by general or special order in
writing direct.”
The preamble o f the Ordinance provided security o f the State,

maintenance o f public order and maintenance of the supplies and
services essential to the community in the State o f Saurashtra as its
objects. The appellant questioned the validity o f the Ordinance
under article 14 of the Constitution.]
Mukherjea, J. :
A s has been stated already, S. 11 of Saurashtra Ordinance is
worded in exactly the same manner as S.5(l), W e s t Bengal Special
Courts A ct; and that part o f it, with which we are here concerned,
authorises the State Governm ent to direct any classes o f offences or
cases to be tried by the special tribunal. The State Governm ent,
therefore, has got to make a classification o f cases or offences before
it issues its directions to the Special Court. The question is, on what
basis is the classification to be made? If it depends entirely upon the
pleasure o f the State Governm ent to make any classification it likes,
without any guiding principle at all, it cannot certainly be a proper
classification which requires that a reasonable relation must exist
betw een the classification and the objective that the legislation has ii^
view. On the other hand, if the legislature indicates a definite objectivaf
and the discretion has been vested in the Governm ent as a means
achieving that object, the law itself, as I have said above, cannot be
held to be discriminatory; though the action o f the State Governm ent
may be condemned if it offends against the equal protection clause,
by making an arbitrary selection. N ow , the...ordinance...is described
as an ordinance to provide for the security o f the State, m aintenanc#
o f public order and maintenance o f supplies and services essential to
the community in the State o f Saurashtra. T he preamble to the
Ordinance sets out the objective o f the Ordinance in identical terms.
It is to be noted that the integration of several States in Kathiawar
which now form the State of Saurashtra, was com pleted some time in
February, 1948. It appears from the affidavit of an officer o f the H om e
G overnm ent of the Saurashtra State that soon after the integration
took place an alarming state of lawlessness prevailed in some o f the
614 IMDIAN ADMINISTRATIVE LAW [ CHAPTER 8
districts within the State. There were gangs of dacoits operating at

different places and their number began to increase gradually. As
rdinary law was deemed insufficient to cope with the nefarious
Ectivities of those criminal gangs, the Saurashtra Public Safety
Measures Ordinance was promulgated by the Rajpramukh on 2.4.1948.
The Ordinance, as stated already, provided pricipally for preventive
detention and imposition of collective fines; and it was hoped
that armed with these extraordinary powers the State Governm ent
would be able to bring the situation under control. These hopes,
however, were belied, and the affidavit gives a long list o f offences
in which murder and nose-cutting figure conspicuously in addition
to looting and dacoity, which were committed by the dacoits during
the years 1948 and 1949. In view of this ugly situation in the State,
the new Ordinance was passed on 11-11-1949 and this Ordinance
provides inler alia for establishment of Special Courts which are to
try offenders under a special procedure. A cting under S. 11 of the
Ordinance, the Government issued a notification on 9/11-2-1950 which
constituted a Special Court for areas specified in the schedule, and
here again the affidavit shows that all these areas are included in the
districts o f Gohilwad Madhya Saurashtra and Sorath, where the tribe
of marauders pricipally flourished.... If Special Courts w ere considered
necessary to cope with an abnormal situation it cannot be said that
the vesting of authority in the State Government to select offences
for trial by such Courts is in any way unreasonable.
[The concurring opinions of Patanjali Sastri, C.J., Fazl A li, and
R. Das, and the dissenting opinions of Mahajan, Chandrasekhara
jA iyar, and Bose, JJ., have been omitted,]
NOTES
Subsequent to the Anwar Ali case, the W est Bengal statute was
repealed and a new A c t— the W est Bengal Tribunals o f Criminal
Jurisdiction A ct, 1952, was passed. The preamble of the new A c t
described its object as the speedy trial of certain offences in the
interest of security of State, maintenance o f public peace, etc. Under
the A ct the State Government was empowered to refer to a tribunal
constituted under the A ct, offences mentioned in the schedule which
were committed in a disturbed area. The government could declare
an area as disturbed area where there was or there is any extensive
disturbance of the public peace. The A c t was declared valid under
article 14 o f the Constitution by the Supreme C ourt in Kangshari

Haidar v. State o f West Bengal}^ A fter reviewing the case law in the
area o f Special Courts for certain offences, the C ourt summarised the
position th u s;
“ In considering the validity of the impugned statute on the
ground that it violates A rt. 14, it would first be necessary to
ascertain the policy underlying the statute and the ob ject intended
to be achieved by it. In this process the preamble to the A c t
and its material provisions can and must be considered. H aving
thus ascertained the policy and the ob ject o f the A c t the C ourt
should apply the dual test in examining its v a lid ity : Is the
classification rational and based on intelligible differentia; and,
has the basis of differentiation any rational nexus with its avow ed
policy and object
In accordance with this approach the Supreme C ourt has upheld
statutory provisions, conferring discretion on the administrative
authority to select certain cases for particular treatm ent on several
occasions whenever they have found the policy from the preamble
of the statute.^^
It is not easy to fit in the Supreme Court dicision in MJs. Pannalal
Binjraj v. India^^ in the above approach. This case involved the
constitutional validity of section 5 (7 -A ) of Incom e T ax A c t, 1922.
Section 64 o f the A c t prescribed the place o f assessment o f an
assessee. But under Section 5 (7 -A ) there could be a deviation fron?
this and the Central Board of Revenue could transfer any cas^‘ frd|H
one Income Tax Officer to another causing great in co n v e n ie n ce "^
the assessee. The section was bad, it was argued, because the
discrimination was incorporated in the section itself. Th e C ourt
rejected this contention and held that section 5 (7 -A ) was a provision
for administrative convenience. The discretion was to be exercised
with due regard to the exigencies of the tax collection. From the
preamble of the earlier Indian Incom e Tax A ct, 1886, the C ou rt foiled
the purpose o f the present A c t as the levy, assessment and collection
of income tax from which the C ourt gathered the objective o f the
section as administrative convenience. Do you think “ administrative
20. A. I. R. 1960 S. C. 457.
21. K at 464.
22. See for instance, Biswambhar Singh v. State o f Orissa, A.I.R. 1954 S.C. 139;
In re Kerala Education Bill, A.I.R. 1958 S.C. 956; Niemla Textile Mills Ltd. v. The 2nd
Punjab Tribunal, A.I.R. 1957 S.C. 329.
23. A.I.R. 1957 S.C. 397.
convenience” is a safficient guide to control discretion? D o you

agree with the view that the case has whitled down the efiBcacy of
article 14 o f the Constitution as a means to control administrative
discretion ?
N ote that under article 14 the Supreme Court has generally
taken the view that the policy as laid down in the pream ble of a
statute is sufficient for upholding the statute, but this has not,
however, been the approach of the Court under article 19 and the
Court has insisted on particular standards. Is it possible to rationalise
the basis o f these tw o different approaches ?
SECTION 4. DISCRETION CONFERRED ON ONE AUTHORITY

BUT EXERCISED BY ANOTHER
This may mainly take two forms, First, the pow er may be
conferred on a superior authority but may then be sub-delegated by
it on a subordinate authority. Second, the power may be conferred
on a subordinate authority and is also exercised by it in form bu t in
effect it acts at the behest o f a superior authority. In such a case
the authority on whom the power is conferred com pletely abdicates
its discretion to the will of the superior authority; instead of applying
its ow n mind to the matter, it acts upon the dictation of the superior
authority. In the words of W ade,
“ A kindred method of vitiating the exercise o f a discretion is
where the person entrusted with it, instead o f delegating it,
exercises it at the dictation of some other person. For, although
he is then acting himself, it is not his own discretion which
governs the act, as the legislature intended that it should b e.” ^
MARKOSE, JUDICIAL CONTROL OF ADMINISTRATIVE

ACTION IN INDIA2
395-6 (1956)
The very object of conferring an administrative pow er is that

the authority must exercise its judgment and good sense on each
occasion that demands exercise. It is not without forethought that
1. Wade, Ac/mm/s/rafive Law, 53~4 (1961); see also S/mms Motor Units Ltd. v.
Minister o f Labour, (1946) 2 All E.R, 201.
2. Footnotes omitted.
SECTION 4 } ADMINISTRATIVE DISCRETION 617
particular authorities are chosen by the Legislature as the proper

recipients of specific powers. But occasionally statutory authorities
overlook this and delegate their powers. The methods o f delegation
are many. It ranges from the thoughtless shunting of duty by indolent
superiors on indifferent subordinates to the fawning obedience by
spineless or designing officials to superior’s ukases. In these cases
abdication of on e’s ow n statutory functions rather than delegation in
the strict sense takes place. Delegation may be the result of honest
misapprehension by the authority concerned o f the legal position- It
sometimes arises out o f a desire to expedite official business. But still
it will b e invalid if it is not legally permitted. There are provisions
for delegations in prescribed ways in almost all public departm ents
for, without some provision for it, conduct of public business will be
difficult. W h en a new power is given to an existing departm ent o f
Government, unless otherwise directed, the established procedure of
that department can be follow ed for the exercise of that pow er also.
W h en it is said that a discretion cannot be delegated the reference
is to a power definitely conferred on a specific authority without any
provision for any further delegation. The legislature has delegated
to that authority and the delegate cannot further delegate at all. H e
cannot abdicate in sense that he cannot be dictated to on the matter.
H e cannot fetter his discretion even for value and promise a particular
course of action for the future. It is therefore clear that such an
authority should not b e allowed to evade this irksome necessity of
applying its mind to individual cases. H e cannot broadcast a general
rule which will com pletely govern his attitude in the particular
matter in future. Such a practice if permitted will defeat the very
purpose of the legislation and will prom ote nothing bu t official
indolence.
(a) Sub-delegation
de Smith observes ;
“ A discretionary power must in general, b e exercised only by
the authority to which it has been committed. It is a w ell-know n
principle o f law that when a pow er has been confided to a person
in circumstances indicating that trust is being placed in his
individual judgment and discretion, he must exercise that pow er
personally unless he has been expressly empowered to delegate
it to another. This principle, which has often been applied in
the law of agency, trusts and arbitration, is expressed in the form
o f the maxim delegatus non potes delgare (or delegari), a maxim
618 INDIAN ADMimSTRATIVE LAW [ CHAPTER 8
which owes its origin to mediaeval commentators on the Digest

and the Decretals, and its vogue in the com m on law to
carelessness of a sixteenth century printer. T he widespread
assumption that it applies only to the sub-delegation o f delegated
legislative powers and to the sub-delegation o f other powers
delegated by a superior administrative authority, is unfounded.
It applies to the delegation o f all classes of powers, and it was
indeed originally invoked in the context of delegation o f judicial
powers,” ^
There is some judicial bias against allowing delegation in
cases where the power is conferred upon some particular body, and
without any statutory authority it allows some officer or employee to
exercise it. The casein point is Allingham v. Minister o f Agriculture and
Fisheries. U nder the defence regulations, the Minister o f Agriculture
was expressly authorized to delegate to W ar Agricultural Executive
Committees the power o f directing what crops should b e grown by
farmers. The Bedfordshire Committee left to its executive officer the
making of decision on some points and this was held to be
unauthorized.^
There is not much problem when the A c t expressly confers a
pow er o f sub-delegation. Thus section 44(5) o f the M otor V ehicles
A ct, 1939, states that “ The State Transport A uthority and any
Regional Transport Authority, if authorised in this behalf by rules
made under S. 68, may delegate such of powers and functions to such
authority or person...as may be prescribed by the said rules." One
of the rules made under the A c t authorised the Regional Transport
A uthority to delegate its functions to the Secretary for prom pt and
convenient despatch of the business. H olding the rule to be valid,
the Andhra Pradesh High Court pointed out in Krishnan v. Secretary,
Regional Transport Authority^. “ ...W e assume that [The Regional
Transport Authority] is exercising judicial functions...The Legislature
itself conferred...power of delegation and only left the nomination of
the delegate to the local Government. In this view, there is no question
of any delegation of any judicial powers b y a judicial authority on
whom specific powers are conferred by the legislature.” '^ C ould any
objection be taken on Constitutional grounds if A c t or the rules made
3. Judicial Review of Administrative Action 173 (1959).
4. (1948) I All E.R. 780; see also Barnard v. National Dock Labour Board,
(1953) 2 Q. B. 81; Vini v. National Dock Labour Board, (1957) A.C. 448.
5. A.I.R. 1956 A.P. 129.
6. Id. at 138.
under it authorise an authority to sub-delegate its powers to any

person ? W h ere fundamental rights, particularly under article 19 of
the Constitution, are concerned, the approach of the courts in certain
cases has been that where a statutory provision permits sub-delegation
to any person, it will be bad as imposing an unreasonable restriction on
an individual right. Thus in Satchidananda v. State o f West Bengal,'^ the
Bengal Soft C oke Distribution Order, 1955, authorised the D irector
or the District Magistrate to delegate his powers to any person. The
Calcutta High C ourt held the provision unconstitutional under article
1 9 (l)(g ) of the Constitution. It may be n oted that the Supreme
C ourt in Dwarka Prasad v. State o f U. P.,® in holding the U . P. Coal
Control Order, 1953, to be bad under arricle 1 9 (l)(g ) had pointed out
inter alia: “ N ot only so, the p ow er could be exercised by any person
to whom the State C oal Controller may choose to delegate the same,
and the choice can be made in favour of any and every person.’’® In
upholding a provision affecting fundamental rights, the Supreme
C ourt has on several occasions emphasised the fact of p ow er being
exercised by a high authority.^®
Sometimes the statute may con fer pow er on the President or the
Governor; sometimes on the Government; and sometimes a specified
officer is to exercise the pow er.
Unless the context in an exceptional case requires that the
President or the G overnor has to act personally^\ where the power
is conferred on either of them it is to be exercised by the appropriate
government. The Supreme C ourt observed in GuUapaUi Nageswara
Rao v. A. P. State Road Transport Corporation^^ ;
“ The State Governm ent is an impersonal body and it can only
function through the machinery and in the manner prescribed by
law. Clause (60) of S. 2 o f the General Clauses A ct, 1897, defines
‘State Govornm ent’ as respects anything done or to be done
after the com mencement of the Constitution (V I I Am endm ent)
7. 64 C.W.N. 521; also Khagendra Nath v. District Magistrate, A.I.R. 1951
Cal. 3.
8. A.I.R. 1954 S.C. 224.
9. M a t 227.
10. See for Instance, Kishan Chand V. Commissioner o f Police, A.I.R. 1961 S.C.
705; Panmlal Binjraj v. India, A.I.R. 1957 S.C. 397, Supra,
31. Cf. State o f U.P.v. Babu Ram, A.I.R. 1961 S.C. 751,. "The power to dismiss
a public servant at pleasure is outside the scope of Art. 154 and, therefore, cannot be
delegated by the Governor to a subordinate officer, and can be exercised by him only
in the manner prescribed by the Constitution.at 761.
12. A.I.R. 1959 S.C. 308.
A c t, 1956, to mean, in a State, the Governor, and in a Union

Territory, the Central Government. Under A rt. 154 (1) o f the
Constitution, ‘the executive power of the State shall be vested
in the G overnor and shall be exercised by him either directly or
through officers subordinate to him in accordance with this
Constitution.’ A rticle 163 enacts that 'there shall be C ouncil o f
Ministers with the Chief Minister at the head to aid and advise
the G overnor in exercise o f his functions, except in so far as he
is by or under this Constitution required to exercise his
functions or any of them in his discretion/ A rticle 166 (1 )
enjoins that ‘all executive action of the Government of State
shall be expressed to be taken in the name of the G overnor.’
Sub-clause (2) o f that A rticle says that ‘orders and other
instruments made and executed in the name of the G overnor
shall be authenticated in such manner as may be specified in the
rules to be made by the Governor,’ And under sub-cl. (3), ‘the
G overnor shall make rules for the more convenient transaction
o f the business o f the Government of the State, and fo r the
allocation among Ministers of the said business in so far as it is
not business with respect to which the Governor is by or under
the Constitution required to act in his discretion.
GODAVARI v. STATE OF MAHARASHTRA

A.LR. 1964 S.C. 1128.
[T h e appellant was detained under the following order o f the

Government of Maharashtra: “ Whereas the Government of
Maharashtra is satisfied with respect to the person known as...that
with a view to preventing him from acting in a manner prejudicial
to the defence of India, the pubHc safety and the maintenance of
public order, it is necessary to make the following order :
Now, therefore, in exercise of the powers conferred upon it by
rule 30 o f the Defence of India Rules, 1962, the Governm ent of
Maharashtra does hereby direct that the said Shri Shamrao Vishnu
Parulekar be detained.
By order and in the name of the G overnor of Maharashtra
Sd/~ Deputy Secretary to Government of Maharashtra.
(H om e D epartm ent)”]
13. /(f. at 325.
Wanchoo, J . :
...T hen it is urged that as the State G overnm ent is equivalent to

the G overnor, it is the G overnor who should be satisfied and not the
H om e Minister as is the case according to the affidavit filed on behalf
o f the State Government. T he State Governm ent in this connection
relied on the Rules o f Business, copy o f which has been made available
to us. These rules have been framed by the G overn or under A rt, 166
o f the Constitution for the more convenient transaction o f the
business of Government and for the allocation among Ministers o f the
said business. In the affidavit on behalf o f the State Governm ent
reliance is placed on item 2 (b ) o f the First Schedule to the Rules of
Business dealing with subjects allocated to the H om e Departm ent
(Special), entry (7) which provides for preventive detention for
reasons connected with the security of a State, the maintenance o f
public order or the maintenance o f supplies and services essential to
the community. During the hearing, our attention was drawn to
item (1) of the First Schedule to the Rules of Business dealing with
subjects allotted to General Adm inistration D epartm ent, entry (44),
which provides for preventive detention for reasons connected with
defence, foreign affairs or the security o f India. It is obvious from
the Rules of Business that preventive detention has been divided into
tw o parts and allocated to tw o different departm ents. W h ere
preventive detention is for reasons connected with the security o f a
State, the maintenance of public order or the maintenance o f supplies
and services essential to the community, it can be dealt with b y the
M inister-in-charge o f item 2 (b ) dealing with subjects allocated to the
H om e department (Special); but where the preventive detention is
for reasons connected with defence, foreign affairs or the security o f
India, it can be dealt with b y the M inister-in-charge o f item 1 relating
to subjects allotted to the General Administration Department. The
detention order in the present cases states that it was made with a
view to preventing the appellants from acting in a manner prejudicial
to the defence of India, the public safety and the maintenance o f
pubHc order. A s the detention order mentions both the defence o f
India and the maintenance o f public order, such an order could only
be made by a Minister who was in-charge both o f item 1 relating to
subjects allotted to the General Adm inistration Departm ent and o f
item 2 (b ) relating to subjects allotted to H om e Departm ent (Special).
In the affidavit on behalf of the State the order was sought to be
justified on the ground that it was made by the H om e M inister-in-
charge o f item 2 (b ) relating to subjects allocated to the H om e
Department (Special). W e are of opinion that as the detention order

was for reasons connected with the defence of India also, it could not
be dealt with under item 2(b), entry (7) only which item deals with
subjects allocated to the Home Departm ent (Special) and had to be
dealt by a Minister who was in-charge o f both item 1 relating to
subjects allotted to the General Administration Department and
item 2 (b ) relating to subjects allotted to H om e Department (Special),
In the original affidavit filed on behalf of the State it was how ever
not clear whether the Minister who dealt with these orders was also
in-charge of the subjects allotted to the General Adm inistration
Department but it was stated at the bar that the Minister who dealt
with the matter and passed the order on the basis of which the
appellants were detained was in-charge not only of item 2 (b ) relating
to subjects allocated to the H om e Department (Special) but was also
in-charge of item 1 relating to subjects allotted to the General
Administration Department. W e therefore called upon the State
Government to file an affidavit to that effect and an affidavit was
filed on Decem ber 21, 1963. That affidavit says that the order o f
N ovem ber 10,1962 was passed by the Chief Minister who was at the
relevant time in-charge both of the General Adm inistration
Department as well as the H om e Department (Special). W e have
already referred to the terms of the order of detention. That order
refers to three reasons as the basis for the order, namely, ( i) the
defence of. India, (ii) the public safety, and (iii) the maintenance of
public order. N ow preventive detention connected with the defence
o f India could only be ordered under the Rules of Business by the
Minister who was in-charge of the General Adm inistration
Depkrtr;gent while preventive detention for reasons connected with
th e -n l'^ te n a n c e o f public order could only be ordered b y the
Minister-in-charge of subjects allocated to the H om e Departm ent
(Special), The order therefore in the present case could only be
made by a Minister who was in-charge both of subjects allotted to
the General Administration Department and subjects allotted to the
H om e Department (Special). In view of the affidavit n ow filed it
appears that the Chief Minister was in-charge o f both the departments
and in the circumstances he could pass the order under challenge.
The contention under this head must therefore fail.
The next argument is that there is no order o f allocation made

by the Governor under Art. 166 of the Constitution after the passing
o f the Defence of India Ordinance and the Rules framed thereunder
and therefore the allocation of business by the Rules o f Business
which were enforced b y an order of the G overnor dated M ay 1, 1960

would not be of any effect in allocating the subject of preventive
detention arising under the Defence o f India Ordinance, A c t and the
Rules to the Minister and the Governor should have passed the order
o f detention himself. W e are o f opinion that there is no force in
this contention. A llocation of Business under A rt. 166 (b ) of the
Constitution is not made with reference to particular laws which may
be in force at the time the allocation is made; it is made 'with
reference to three lists of the Seventh Schedule to the Constitution,
for the executive power of the Centre and the State together extends
to matters with respect to which Parliament and the Legislature o f a
State may make laws. Therefore, when allocation of business is made
it is made with reference to the three Lists in the Seventh Schedule
and thus the allocation in the Rules of Business provides for all
contingencies which may arise for the exercise o f the executive
power. Such allocation may be made even in advance of legislation
made by Parliament to be available whenever Parliament makes
legislation conferring power on a State Government with respect to
matters in List I of the Seventh Schedule. It was therefore in our
opinion not necessary that there should have been an allocation made
by the Governor under A rt. 166 (3) of the power to detain under the
D efence of India Ordinance, A ct and Rules after they were passed;
it will be enough if the allocation o f the subject to which the D efence
of India Ordinance, A c t and Rules refer has been made with reference
to the three Lists in the Seventh Schedule and if such allocation
already exists, it may be taken advantage of if and when laws are
passed....
GHAIO MAL & SONS v. STATE OF DELHI

A.I.R. 1959 S.C. 65.
[The appellants had applied to the Chief Commissioner for the

grant of a licence to sell foreign liquor in N ew Delhi against a
vacancy caused by the closure o f business of a certain firm. Certain
other persons had also applied for a licence against this vacancy. The
applicants were n ot communicated about the rejection of their
application but they came to know that the licence against the
vacancy was granted to a firm named Gainda M all H em Raj.]
5. Das. C. J. :
The principal grounds urged b y the appellants in support o f this
petition are that the applications o f the appellants and of the other
applicants had never been placed b efore the C hief Commissioner,

w ho, under R. 1 o f Ch. 5 o f the Delhi Liquor L icen ce Rules, 1935
framed under S. 59 of the Punjab Excise A c t (Punjab 1 o f 1914) as
extended to Delhi, was the only com petent authority em pow ered to
grant L -2 licence for wholesale and retail vend of foreign liquor to
the pubUc and that the Chief Commissioner had never applied his
mind to the applications and did not in fact make any order and that
respondents Nos. 2 and 3 had purported to exercise jurisdiction and
powers which were not vested in them by law and that their decision,
if any, had not received the concurrence o f the C hief Commissioner,
as required by the proviso to S. 36 of the G overnm ent o f Part C
States A c t....
The records, iucluding the documents now produced b efore us do
n ot show that the applications had ever been placed before, the
C hief Commissioner. There is nothing in the files showing any order
or note on the subject made or signed or initialled by the C hief
Commissioner. W h a t transpires is that the Excise Com m issioner
(respondent N o. 3) had by his letter dated August 31,1954, recorded
the reasons why the appellants' appHcations could n ot be entertained,
on e of the reasons being that they had no premises in the Connaught
Place area in N ew Delhi, that a note was then put up b y ‘the U nder
Secretary, Finance, on September 3, 1954, suggesting that the
appellants’ application should be rejected, if for nothing else, fo r their
n ot having any permises in N ew D elhi (w hich according to the
appellants was not a correct statement in view of their letters
referred to above) and that the L-2 licence should b e granted to
Messrs. Gainda M all Hem Raj, that the C hief M inister on Septem ber
1 4 ,1 ^ 4 , made an order on the file accordingly and finally that the
Under Secretary, Finance, w rote the letter dated D ecem ber 14,1954,
to the Excise Commissioner intimating that the Chief Comm issioner
had been pleased to approve the grant of the licence to Messrs.
Gainda M all H em Raj. There is nothing on the record to show that
the concurrence with the order of the C hief Minister was obtained
from the Chief Commissioner. The inexorable force o f the aforesaid
facts, now appearing on the record, inevitably led the learned
Solicitor General to concede that on the records as they are, it is
not possible for him to say that the Chief Commissioner had
actually made the order, but he contends that, in view o f the letter
o f the U nder Secretary, Finance, dated D ecem ber 14, 1954, the fact
that Chief Commissioner had made the order could not be questioned
in any court. In other words the learned Solicitor General submits
that that latter embodies the order o f the Chief Commissioner and
the court cannot be asked to go behind it and enquire whether
the Chief Commissioner had in fact made the order.
In order to succeed in- this contention the learned Solicitor

General has to satisfy us that this letter is the embodim ent o f the
Chief Commissioner’s order and that it has been duly authenticated.
On the second point he is clearly right, for under a rule made on
March 17, 1952, by the then Chief Commissioner, in exercise o f
powers conferred on him b y S. 38 (3) of the Governm ent o f Part C
States A c t ( . . . ) an U nder Secretary is also a person com petent to
authenticate an order or instrument of the Governm ent o f Delhi. The
only question that remains for us to consider is whether the letter in.
question is the order o f the C hief Commissioner ? The letter on
which the entire defence of the respondents rests is expressed, in the
following words
Sir.
W ith reference to your letter N o. 295/C/54 dated the 31st August,
1954 on the above subject, I am directed to say that the Chief
Commissioner is pleased to approve under R. 5.1 o f Delhi Excise
Manual V ol, II the grant of L -2 licence to Messrs. Gainda Mall
Hem Raj, N ew Delhi, in place of the L -2 L icen ce surrendered by
Messrs. Army and N avy Stores, N ew Delhi. Necessary licen ce may
kindly be issued to the party concerned under intimation to this
Secretariate.
Yours faithfully,
Sd/- M . L. Batra
U nder Secretary, Finance (Exp.)
to Governm ent D elhi State.
In the first place, it is an inter-departmental com munication. In the

second place, it is w ritten with reference to an earlier com m unication
made by the Excise Commissioner, that is to say, ex facie, it purports
to be a reply to the letter o f A ugust 31, 1954. In the third place the
writer quite candidly states that he had been “ directed to say'‘
something—by whom, it is n ot stated, this makes it quite clear that
this docum ent is not the order of the Chief Commissioner but
direction of some unknown persons o f the order which the Chief
Commissioner had made. Indeed in paragraph 7 o f the respondents*
statement filed in the H igh C ourt on February 2,1955, this letter; has
been stated to have “ conveyed the sanction o f the Chief Conimissioner
626 INDIAN ADMINISTRATIVE L A W [ CHAPTER 8
o f the grant o f licence to the 5th respondent.” A docum ent which

conveys the sanction can hardly be equated with, the sanction itself.
Finally the docum ent does not purport to have been authenticated in
the form in -which authentication is -usually made. T h ere is no
statement at the end o f the letter that it has been written, “ by
order of the C hief Com m issioner.” For all these reasons it is
impossible to read this docum ent as the order of the Chief
Commissioner.
Learned counsel for Messrs. Gainda M all H em Raj relied on our

d&cision’m Duitatreya Moreshwar Pangarkar v. State o f Bombay 1952
SCR 612: (A I R 1952 S.C, 181). In that case there was ample evidence
on the record to prove that a decision had in fact been taken b y the
appropriate authority and the infirmity in the form of the
authentication did not vitiate the order but only m eant that the
presumption could not be availed o f by the State. That decision did
n ot proceed on the correctness o f the form o f authentication but on
the fact o f an order having in fact been made by the appropriate
authority and has thus no application to the present case w here it is
conceded that the Chief Commissioner had not in fact made or
concurred in the making of an order granting the licen ce to Messrs.
Gainda M all H em Raj.
PRADYAT KUMAR v. C. J. OF CALCU TTA

A. I. R. 1956 S. C. 285.
[The appellant, the Registrar and A ccou ntan t G eneral o f the

Calcutta H igh Court was dismissed from service by the C h ief Justice.
The enquiry into the charges against the Registrar was made by
another judge of the H igh Court. T h e report o f the enquiry was
submitted to the Chief Justice, Thereupon the C hief Justice issued
a notice to the appellant intimating that he agreed w ith the report
after careful consideration thereof and asked him to show cause why
he should not be dismissed from service. A fter giving him a hearing,
the Chief Justice dismissed the appellant from service.]
Jagannadhadas^ J. ;
T h e...objection that has been urged is that even if the C hief Justice
had the power to dismiss, he was not, in exercise o f that power,
com petent to delegate to another Judge the enquiry in to the charges
but should have made the enquiry himself. This con ten tion proceeds
on a misapprehension o f the nature of the pow er.
A s pointed out in ‘Barnard v. National Dock Labour Board,’ (1953)
2 Q B 18 at p. 40 (B ), it is true that “ no judicial tribunal can delegate
its functions unless it is enabled to do so expressly or by necessary
im plication,” But the exercise o f the p ow er to appoint or dismiss an
officer is the exercise n ot of a judicial p ow er bu t o f an administrative
power. It is nonetheless so, b y reason o f the fact that an opportunity
to show cause and an enquiry stimulating judicial standards have to
precede the exercise thereof.
It is w ell-recognised that a statutory functionary exercising such
a pow er cannot be said to have delegated his functions m erely by
deputing a responsible and com petent official to enquire and report.
That is the ordinary m ode o f exercise of any administrative pow er.
W h a t cannot be delegated except where the law specifically so
provides— is the ultim ate responsibility for the exercise of such
power.
A s pointed out b y the H ouse o f Lords in ‘ Board o f Education
V. Rice\ 1911 A C 179 at p. 182 (C ), a functionary w h o has to decide an
administrative matter, o f the nature involved in this case, can obtain
the material on which he is to act in such manner as may be feasible
and convenient, provided only the affected party “ has a fair
opportunity to co rre ct or con tradict any relevant and pejudicial
material.” T he follow in g passage from the speech o f L ord C hancellor
in ‘Local Government Board v. Arlidge/ 1915 A C 120 at p. 133 ( D ) is
apposite and instructive.
“My Lords, I con cu r in this view o f the position o f an
administrative b o d y to w hich the decision o f a question in
dispute betw een parties has been entrusted. The result o f its
inquiry must, as I have said, b e taken, in the absence o f directions
in the statute to th e contrary, to be intended to be reached by its
ordinary procedure. In the case o f the L ocal G overnm ent Board
it is n ot doubtful what this procedure is. T h e M inister at the
head o f the Board is directly responsible to Parliament like other
Ministers. H e is responsible n ot only for what he himself does bu t
for all that is done in his department.
T h e volume o f w ork entrusted to him is very great and he
cannot do the great bulk o f it himself. H e is expected to obtain his
materials vicariously through his officials, and he has discharged
his duty if he sees that th ey obtain these materials fo r him
properly. T o try to extend his duty beyond this and to insist

that he and other members o f the B oard should do everything
personally would be to impair his efficiency. U nlike a Judge in a
court he is not only at hberty but is com pelled to rely on the
assistance of his staff.”
In view of the above clear statement of the law the ob jection to
the validity o f the dismissal on the ground that the delegation o f the
enquiry amounts to the delegation o f the p ow er itself is w ithout any
substance and must be rejected.
(b ) Power conferred on a subordinate authority but exercised by or at the

dictation o f a superior authority.
COMMISSIONER OF PO LICE v, GORDHANDAS

A.I.R. 1952 S.C. 16.
[U nder the Bombay P olice A ct, 1902, the Commissioner o f Police

had the authority to grant a licence for the construction of a cinema
theatre. A Cinema A dvisory Committee was constituted by
Government.]
Bose, J . :
...W e have n ot been enlightened about the scope and extent of
its [the C om m ittee’ s] powers but it is evident from its nom enclature
that its functions were purely advisory. Five members o f this
Com m ittee appear to have inspected the site on 12th M ay 1947
and after prolonged discussion they reached the conclusion that “ in
view o f the location of four schools nearby the site, this site is
unsuitable for the purpose required and therefore it should be
rejected” . A note was drawn up to that effect and the m atter was
ordered to be placed on the agenda o f the next m eeting o f the
Committee “ for final decision” .
This final decision has not been placed on reco rd b u t the
Commissioner of Police tells us in his affidavit that within a month
the Committee advised that the application should be granted.
Accordingly, the Commissioner accorded the necessary permission by
his letter dated 14/16 July 1947. There is no reference here to the
recommendations o f the A dvisory Com m ittee and though they may
have weighed, and rightly with the Commissioner there is nothing on
the face o f the letter to indicate that the decision was n ot that o f the
Commissioner himself given in bona fide exercise o f the discretion
vested in him.
W e refer to this because the Commissioner has stated in. his

affidavit th a t:
“ I was fully satisfied that the petitioner’s application should be
refused but that it was only at the instance o f the Cinema
A dvisory Com m ittee that I granted the said permission on 14th
July 1947."
That, how ever, would not affect the validity o f the order. T h ere is
no suggestion that his w ill was overborn e or that there was dishonesty
or fraud in what he did. In the absence o f that, he was entitled to
take into consideration the advice thus tendered to him by a public
body set up for this express purpose, and he was entitled in the bona
fide exercise of his discretion to accep t that advice and act upon it even
though he would have acted differently if this im portant fa cto r had
not been present to his mind when he reached a decision. T h e
sanction accorded on 16th July 1947 was therefore a good and valid
sanction.
This sanction occasioned representations to G overnm ent presum
ably b y the ‘public' w h o w ere opposing the scheme. A n yw ay, the
Commissioner w rote to the respondent on 19/20th Septem ber 1947
and directed him “ n ot to proceed with construction o f the cinema
pending Governm ent orders.” Shortly after, on 27/30th Septem ber
1947, the Commissioner sent the respondent the follow in g
com m u nication ;
“ I am directed by Governm ent to inform you that the permission
to erect cinema at the above site granted to you under this office
letter.... dated 16th July 1947 is hereby cancelled.’'
It will be necessary at this stage to determine w hether this was
a cancellation by the Com m issioner on his ow n authority acting in
the exercise o f some p ow er which was either vasted in him or of which
he bona fide believed himself to be possessed, or whether he m erely
acted as a post office in forwarding orders issued b y some other
authority. W e have n o hesitation in reaching the conclusion that
this is n ot an order o f cancellation b y the Commissioner bu t m erely
intimation by him o f an order passed and made b y another authority
namely, the G overnm ent o f Bombay.
A n attempt was made b y referring to th e Com m issioner’s

affidavit to show that this was really an order o f cancellation made
by him and that the order was his ord er and n ot that o f Government-
W e are clear that public orders, publicly made, in exercise o f a
statutory authority can n ot be construed in the light o f explanations
630 INDIAN ADMINISTRATIVE LAW [CH APTER S
subsequently given by the officer making the order o f what he meant,

or o f what was in his mind, or what he intended to do. P ublic orders
inade by p u b lic authorities are meant to have public effect and are
inten^ded to affect the actings and con du ct o f those to whom they
are addressed and must b e construed objectively with reference to
the language used in the order itseif.
Turning now to the language used we are clear that by no

stretch of imagination can this be construed to be an order which in
effect says —
“ I, so and so, by virtue o f the authority vested in me, do hereby
order and direct this and that.” If the Commissioner o f P olice had
the pow er to cancel the licence already granted and was the proper
authority to make the order, it was incumbent on him t o say so in
express and direct terms. Public authorities cannot play fast and
loose with the powers vested in them, and persons to whose detrim ent
orders are made are entitled to know with exactness and precision
w hat they are expected to do or forbear from doing and exactly
what authority is making the order.
W e do not mean to suggest that it would have been im proper

for him to take into consideration the views and wishes o f G ov ern
ment provided he did not surrender his ow n judgment and provided
he made the order, but we hold on the material b efore us that
the order o f cancellation came from Governm ent and that the
Commissioner acted only as a transmitting agent.
NOTES
In Rambharosa Singh v. Government o f State o f Bihar, u n d e r the

relevant rules and the statute authority to give public ferries on lease
vested in the District Magistrate subject to the direction o f the
Commissioner. Instead of the Commissioner, the G overnm ent gave
certain directions to the District Magistrate who acted in accordance
with these directions. The Patna H igh C ourt held that the order o f
the District Magistrate made on the directions o f the G overnm ent
was illegal. The Court did not accede to the argument o f the State
that since the Government was a party to the agreement which the
lessee had to give, it could give directions to the District Magistrate.
14. A.I.R. 1953 Pat. 370,.
H ow ever, if the superior authority possesses p ow er o f revision

o f the order o f the low er authority, then it will not b e ob jection ab le
if the p ow er is exercised by the form er. In Guruswamy v. State o f
Mysore}"'' the petitioner was the highest bidder at a public auction for
the sale o f a licence to sell liquor. U nder the rules made under the
M ysore Excise A c t, 1901, the sale was subject to form al confirm ation
b y the D eputy Commissioner, and the confirm ation was subject to
revision by the Excise Com m issioner for special reasons. T h e D ep u ty
Commissioner did not exercise his discretion and the Excise
Commissioner cancelled the sale. The Supreme C ou rt held that
this was merely an irregularity because even if the D ep u ty
Commissioner had given the sanction it was subject to revision by
the Excise Commissioner. Further, the Excise Com m issioner was not
a court of law whose decision dependend upon the filing o f a regular
appeal.
R everting to the Gordhandas case^ note that the C ou rt upheld

the earlier action o f the Commissioner to grant the licence on the
advice of the Cinema A dvisory C om m ittee even though he made it
clear in the affidavit that he was satisfied that the licen ce ought n ot
to be granted. D o you agree w ith the C ou rt’s view ? D oes this
not am ount to com pletely surrendering his judgment to an outside
body ? Further, with regard to the direction b y the governm ent to
cancel the licence, the C ou rt observed that “ W e do n ot mean to
suggest that it w ould have b een im proper for him to take into
consideration the views and wishes o f G overnm ent provided he did
n ot surrender his own judgem ent....... ” D o you think it is proper for
the Governm ent or a superior authority to give advice w hen the
m atter has been entrusted to a specified individual under the statute
and the rule?^® W ill it n ot always b e safe for the authority to
accept the advice instead o f displeasing his superior ? H o w w ould
the affected individual know w hether the authority has m erely
taken into account the wishes o f the governm ent or abdicated his
p ow ers? In such cases does n ot the form in w hich the authority
communicates the order becom e im portant ? It m ay be noted that
where governm ent wants the p ow er to give directions, provision to
that e ffe c t has been made in various statutory provisions.^’
15. A.I.R. 1954 S.C. 592.

16. Cf. Mannalal Jain v. State o f Assam, A.l.R. 1962 S.C. 386,
17. Mount Corporation v. Director o f Industries and Commerce, A .I . 1965
Mys. 143.
(c) Imposing fetters on discretion by self-imposed rules o f policy or

practice.
MEXWELL, INTERPRETATION OF STATUTESis
120-1 (1962)
Although, where the discretion has been settled by practice,

it seems right that this should not be departed from without strong
reason, yet in cases where a statute confers a discretionary power,
an exercise of it in the fetters of self-imposed rules o f practice,
purporting to find in all cases, would not be within the A ct. Thus,
where an A ct gave the court of quarter sessions power, if it thought
fit, to give costs in every poor law appeal, it would not be entitled
to govern itself by a general resolution, or rule o f practice, to give
nominal costs in all cases, for this would be in effect to repeal the
provision of the A ct.
W here [an ]...A ct, after fixing the hours within which intoxi
cating liquors might be sold, authorised the licensing justices to alter
the hours in any particular locality, within the district, reauiring
other hours, it was held that they had no right to alter the time in
every case by virtue of a general resolution to which they had come.
A nd though their resolution was limited to a portion o f the
locality, yet as this portion comprised every licensed house o f the
whole district, the limitation was regarded as a mere attempt
to evade the A ct. The statute required them to decide, in the
honest and bona fide exercise o f their judgment, what particular
localities required hours for opening and closing other than those
specified by the A ct, and they were bound to satisfy themselves as
to the special circumstances of the locality, which by taking them
out of the general rule laid down b y Parliament, required that an
exception should be made.
WADE, ADMINISTRATIVE LAWi»

54 (1961)
A n authority may even offend^by adopting self-imposed rules.

For the abdication of what Parliament intended to be a genuine
discretion is just as objectionable in that case as it is where the
discretion is entrusted to another....But, on the other hand, it is
obviously not illegal for an authority to adopt a policy about some
matter and adhere to it. W h at is illegal is that, when it is em powered

to decide something, it should decide without reference to the merits
of the case at all. H ow ever firm its policy may be, nothing can
absolve it from the duty of forming its judgment on the facts of each
case, if that is what the statute intended.
CELL V. TAJA NOORA

27 I. L. R. (1903) Bom. 307.
[The facts of this case are sufficiently clear in the judgment.]
Starling, J. :
Under Bombay A c t V I of 1863, section 1 to 6, provision is made

for the granting of licensing in respect o f land and w ater conveyances;
and by section 6 a discretion is given to the Commissioner o f P olice
to refuse to grant a licence for any land conveyance “ which he may
consider to be insufficiently found or otherw ise unfit fo r the
conveyance of the public” ; but under these provisions, while the
Commissioner has a discretion, it is not an absolute one, but one
which is to be exercised after the Commissioner has made himself in
some way acquainted w ith the character of the carriage to be licensed,
and has considered whether, it, as an individual carriage, is fit for the
conveyance of the public. In the exercise o f this discretion he is n ot
to fetter himself with rules which would prevent him in each case
being quite free to consider the merits of each particular carriage.
N ow , it appears that, on the 13th September, 1899, the

Commissioner of Police, M r. Kennedy, issued an order setting forth
the details of construction which he required to be adopted in
victorias presented for licence, stating that he had had a sample
victoria prepared, and that all new victorias must b e o f that pattern.
It is clear, however, that the order is illegal, no authority to make it
being given in the A ct. If this order had been in a slightly different
form, and had a note affixed thereto that it would be convenient to
the owners of victorias to know that that particular form o f victoria
would satisfy the requirements o f the Commissioner, there w ould
have been no harm in it, but in its present form, in my opinion, it is
bad. It is an attempt b y the Commissioner to fetter the discretion
vested in him by the A c t : see Wood v. Widnes Corporation?^
20. (1898) 1 Q. B. 467.

U nauthorized as such an order was, it was still possible that the

A ctin g Commissioner, Mr. Gell, might have exercised his discretion
in respect of the victorias in question in this matter independently of
this order. If it had appeared by Mr. G ell’s affidavit that he had
considered these victorias on their own merits, and that on such
consideration he was of opinion that they were unfit for the
conveyance o f the public, this Court could not have interfered; but
on going through Mr. C ell’s affidavits in the case made on his behalf,
I find no indication o f any such independent consideration. It is quite
evident that his subordinates consider that these victorias should be
rejected solely because they do not conform to the standard pattern
introduced by Mr. Kennedy. Further, Mr. Cell’ s letter o f the 17th
March, 1902, states as fo llo w s : “ My reasons for refusing to grant
^these licences are as follows.” Then follows a statement of
Mr. Kennedy's directions about victorias, and the applicant’s Solicitor
is informed that his client’s conveyances were of the condem ned type
and not in accordance with the sample pattern, and that if he suffers
from their rejection it is his own fault. It is quite true that M r. Gell
says he has seen the victorias, but it is quite evident that all he
considered in them was whether they were in accordance with the
prescribed sample or not. Doubtless Mr. Gell, in the eighth paragraph
o f his affidavit, says: “I have exercised the discretion vested in me
and have refused to license the new victorias o f Taja N oora, as I am
o f opinion, under the circumstances, they are unfit for the conveyance
o f the public in Bombay” ; but it is only “ under the circumstances,”
and it is impossible to separate these few lines from the proceeding
paragragraphs of the affidavit and the letter o f the 17th M arch, 1902,
since which time Mr. Gell does not suggest that he has given any
fresh and independent consideration to the matter. U nder these
circumstances, I consider this case is on all fours with that o f Wood
y. Widnes Corporation, and the appeal must be dismissed with costs.
NOTES
In Kesavan Bhaskaran v. State o f Kerala, R u l e 127 E o f the
Travancore Education Code provided, iftter alia, that no school leaving
certificate would be granted to any person unless he had com pleted
fifteen years of age. The D irector of Public Instruction was, however,
empowered to grant exemption from this rule in deserving cases if
21. A.I.R. 1961 Ker. 23.
the individual has a certificate o f recommendation from the head

master accompanied by a certificate o f physical fitness also. The
appellant was nat;:granted exemption from this rule because the
deficiency in age in his case was beyond two years. The court found
that the D irector has made an invariable rule of n ot granting
exemption unless the applicant’s deficiency in age is less than tw o
years. The court held that
“ by adoption of this policy the authority has disabled and

debarred himself from deciding exceptional cases on their merits.
In our opinion fettering of such discretion by self-created rule o f
policy is contrary to law ,” *^^
In some situations the number of cases to be dealt with by the

administrative authority may b e so large that the only practical
course may be to adopt a self-created formula. Thus where the
administrative authority was empowered to acquire from a producer
“ available surplus” o f foodgrains which was to be determined by
taking into account the estimated yield of the producer and his family
consumption etc., the court recognised that the available surplus of
the producer could be determined on the basis o f the average expected
yield o f the locality; otherwise the “ administrative machinery required
to investigate the case of about four million cultivators would be
so stupendous and costly that the very object o f the [law] would be
frustrated.” ^® In such a case, however, the producer ought to be
given an opportunity to explain his peculiar circumstances by reason
of which his available surplus is less than the average.^^
In some of the English cases the courts have upheld the laying
down of self-created principles for the exercise o f discretion by an
authority provided certain conditions are fulfilled.^® In Rex v. Port o f
London Authority, Ex parte Kynoch Ltd.,'^^ the port authority had refused
to grant a licence to construct certain works. It was contended that
the port authority did not consider the application on merits but
22. Id. at 25; cf. Registrar, Trade Marks v. Ashok Chandra Rakhit Ltd. A.I.R.
1955 S.C. 558.
23. Atulya Kumar v. Director o f Procurement and Supply, A.I.R. 1953 Cal,
548, 556.
24. Ghrita Mohan v. Additional District Magistrate, A.I.R. 1954 Cal. 97.
25. See generally, de Smith, Judicial Review o f Administrative Action, 183^84

(1959).
26. (1919) 1 K.B. 176.
acted in accordance with a policy a d o p te d loeforeliand. R eiecting the

contention the Court of Appeal pointed o u t : ,
“ There are on the one hand cases where a t|i|mnal in the honest
exercise o f its discretion has adopted a policy, and, without
refusing to hear an applicant, intimates to him what its policy is,
and that after hearing him it will in accordance with its poHcy
decide against him, unless there is something exceptional in his
case. I think counsel for the applicants would admit that, if the
policy has been adopted for reasons which the tribunal may
legitimately entertain, no objection could be taken to such a
course. On the other hand, there are cases where a tribunal has
passed a rule, or come to a determination, n ot to hear any
application of a particular character by whomsoever made. There
is a wide distinction to be drawn between these two classes.” ^’
Even assuming that the rejection of application was on the basis of
the general policy adopted by the port authority, yet the authority
considered whether the circumstances warrant the adoption o f the
general policy in this particular case or not. Again in Jiex v, Torquay
Licensing Justices Ex parte B r o c k m a n the court approved the laying
down o f the general policy which the licensing authority desires to
follow but emphasised that in such a case the authority must consider
whether a particular case before it called for the application o f that
policy; the authority should not make a general rule to be apphed in
every case without hearing it. Of course, the policy which the
authority desires to follow must not be based on extraneous or
irrelevant considerations.
It is desirable that the administrative authority should lay down
the principles for the exercise of its discretion. The Franks Committee
recommended the issue o f statement o f ministerial policy with regard
to the Minister’s power in the matters of acquisition of land and town
and county planning. The Committee observed :
“ Indeed, it is a major source o f grievance that the
considerations of general policy upon which many ministerial
decisions are primarily based are not known to the iudividual at
the time of the enquiry and that, were they known, the
presentation of his case whould take a different form.
W e consider that fair play requires that, whenever
possible, some statement of the ministerial policy relevant to the
27. Id. at 184.
28. (I95D2K.B.784.
particular case should also be made available b efore the

enquiry.... V,||
W e also recognise that policy is, by its very nature,
evolutionary and that a Minister’s policy in relation to some aspect
of compulsory acquisition or planning may change after the
enquiry. In such an event it would be unreasonable to bind the
Minister to his previously issued statement, bu t the letter
conveying his final decision should draw attention to and clearly
explain the change o f policy and its relation to the decision.” ^®
SECTION 5. ABUSE OF DISCRETION
An administrative authority possessing discretionary powers

must act according to law. The authority does not do so if it
exercises its power for a purpose different from the one for which the
pow er was conferred, or for an im proper purpose, or acts in bad faith,
or takes into account irrelevant considerations or leaves out relevant
consideration, or the discretion is n ot exercised for the purposes
contem plated by the statute or acts unreasonably. These various
forms o f ‘abuse of discretion’ overlap to a great extent. Take the
“ example o f the red-haired teacher, dismissed because she had red
hair. That is unreasonable in one sense. In another sens^, it is
taking into consideration extraneous matters. It is so unreasonable
that it might almost be described as being done in bad faith; and,
in fact, all these things run into one another.” ^ It may be noted that
failure by the authority to follow the mandatory procedure o f the
statute will also vitiate the exercise o f discretionary power.
The role of the courts in interfering with the discretionary powers
o f the government is limited. Their duty is to ensure that the
discretion has been exercised according to law. It follow s that they
will n ot direct the authority to exercise the discretion in a particular
way or to substitute their judgm ent for that o f judgment o f the
authority. The Supreme C ourt has stated the position as fo llo w s :
“ ...the Court is n ot an appellate forum where the correctness o f
an order of Governm ent could be canvassed and, indeed, it has
29. Report o f the Committee on Administrative Tribunals and Enquiries, 63 (1957).
See also Robson, Justice and Administrative Law, 611-14 (1951),
1* Associated Provincial Picture Houses Ltd. v. Wednesbury Corp,,{l9A8) 1 K,P;
223,229.
no jurisdiction to substitute its own view ....for entirety of power,

jurisdiction and discretion....is vested by laW in the Government.
The only question which could be considered by the C ourt is
whether the authority vested with the power has paid attention
to or taken into account circumstances, events or matters wholly
extraneous to the purpose for which the power was vested, or
whether the proceedings have been initiated mala fide for
satisfying a private or personal grudge of the authority.” ^
The direction by the court will be to hear and determine according

to law, though in some cases where the application has been rejected
on account of irrelevant considerations, the court may direct the
authority to grant the application.^ This may happen when the range
of discretion has been cut down to such an extent that only one
decision is possible.
MAUKOSE, JUDICIAL CONTROL OF ADMINISTRATIVE

ACTION IN INDIA^
417-23 (1956)
P O W E R C A N N O T BE A B U S E D .-T h e essential nature o f this

bureaucratic failing has been happily expressed in a simile by
Am eer Ali, Ag. C J,, In re Banwarilal Roy. That learned judge said
that if a new and sharp axe presented by Father W ashington (the
Legislature) to young George (th e statutory authority) to cut timber
from the father’s compound is tried on the father’s favourite apple
tree an abuse of power is clearly committed. It may be added that
i£ young George goes out of the compound and cuts down even
timber, let alone other trees, on the neighbour's plots the situation
is obviously different. The difference between an abuse of pow er
and an excess of power is thus theoretically very distinct in
operation and effect. If an officer who has a power to order the grant
of loans up to ten thousand rupees, in his discretion, to cottage
industries, grants one for personal gain to an industry in which he
2. Fmfap Singh v. State o f Punjab, A.l.R. 1964 S.C. 72, 83. Note also Virappa
Fillai V . Raman and Raman, A.l.R. 1952 S.C. 192; Basappav. Nagappa, A.l.R. 1954 S.C.
440; Mahboob Sheriff & Sons v, Mysore State Transport Authority, A.l.R. 1960 S.C.
321; State of Bombay v. K.P. Krishnan, A.l.R. 1960 S.C. 1223.
3. See for example Ahmedabad Mfg. and Calico Ptg. Ltd. v. Municipal
Corporation o f City o f Ahmedabad, A.l.R. 1956 Boxn. 117,
has considerable interest, the order is n ot a void one and will operate
until set aside. But if th e officer grants a loan o f tw en ty thousand
rupees to defray the expenses of foreign education o f his nephew,
as if it is also a small industry, his order is vires and void. But it
can be argued that the first loan is also ultra vires in the sense that
the statute which conferred the pow er did n ot contem plate the
purpose to which the officer had put it and hence the particular
exercise o f the pow er was in excess of his powers. Sometimes it may
not be possible to be very clear on the distinction. Thus in
Nalini Mohan v. District Magistrate, Malda, a law, intended, according
to the judges, for the rehabilitation of persons displaced from their
residences, as a result of communal strife that took place within
India was used to provide accom m odation for a person who came
from Pakistan on medical leave. Harries, C J., after holding that the
order was not one made under the law, added that it might well be
argued that the order in question was not bona fide. Looking at the
order as applying to a subject-m atter outside the law, it is ultra vires:
looking at it as an order favouring a person who is not even a refugee
it is mala fide. In other words it is the purpose o f the p ow er that is
relevant in a discussion of malafides or abuse of power.
It is necessary to further analyse this concept.
On such analysis it will b e seen that the con cep t o f abuse of

pow er comprehends the follow ing elements.
(a ) A t the top o f the list may be placed exercise o f the sacred
trust conferred on the authority for personal considerations
....O ccasionally when bribery o r corruption is discovered
the criminal law is set in motion. Perhaps one may include
in this class cases of official victimisation or vindictiveness
as was apparent in one case where a renewal o f licen ce was
refused because the licensee had previously sought judicial
help against the officer’s illegal actions.
(b ) Exercise o f the pow er though not actuated by selfish or
immoral considerations bu t still moved b y undesirable ends.
The action o f an authority with a view to stultify o r evade
the consequences of decisions of the courts can be brought
under this group.
( c ) Exercise o f the pow er in such mode as to disclose callous
or reckless indifference to private interests. Exhibition of
impatience at any attitude of indifference to official
inclinations and precipitate action using more: force and
violence and peremptoriness than necessary are examples.

Compared to individuals public authorities possess ample
strength. The giant's strength is given not to use it like a
giant. W holesale order for dispossession of refugees who were
permitted to put up shelters for themselves on Government
land, removal of the goods and articles by a large contingent
of force merely for the purpose of enforcing the eviction
laws are such uses. Lawful orders have to be enforced and
if necessary with unpleasantness, but still, there is a
reasonable mode of doing it. W hen the mode o f exercising
a valid power is improper and unreasonable there is an abuse
of the power. A notice that a person will be dispossessed
by military as if the employment of the Union Arm y against
an Indian citizen for the purported execution o f laws is an
uplifting spectacle or the actual forcible taking possession
of the industrial undertakings which eventually turn out to
be illegal are all abuses of power. The doing o f such
prime facie highhanded actions by the administration, which
later the courts declare illegal, has a pernicious effect on the
entire tone of administrative justice. M ost of these
discreditable acts take place presumably because the
administration does not care to consult, or, to follow the
advice given by, the law department of the state or the legal
advisers of the particular department. It appears that the
administration behaves just like the average citizen o f India
who, after committing torts and crimes request a convenient
Advocate to defend him in court. The situation is sometimes
made ridiculous, when after the commission of the arbitrary
illegal act by the authority it puts up obviously inapplicable
legal provisions to defend it. A municipality which detained
a person’s cycle found on the public path, and persisted in
its refusal to restore the possession, attempted to defend the
action under the provision in the Municipal A c t for the
removal of temporary encroachments.
(d) A further and a larger group whcte abuse o f powers occurs
is where a discretion is exercised on considerations irrelevant
to the statutory purpose. Here the irrelevant considerations
dominate not because of any deliberate choice of the authority
but as a result of the honest mistake it makes about the
object or scope of its powers. Thus an officer may even
misunderstand a ruling ,of the High Court,
(e ) The last class o f power is where the available pow ers are
used by the statutory authority for a collateral purpose
deliberately and with the motive to further certain official
p olicy which either the specific authority itself may have or
the Government, its superior. For example, the pow er to
license eating houses is so used as to please European
residents o f the locality or a discretion to grant licences to
hackney carriages is so manipulated as to modernise the,
vehicle. In this class the m otive is usually official and
unselfish but that has nothing to do with its legality or
potentiality for danger. This kind of official bias, when it
grips important tribunals or authorities is a national calamity.
It could give such a twist to statutory schemes that it w ill
aggravate the very evil which it was the o b je ct o f the statue
to remove. Irrelevant and untenable concepts o f social,
justice are imported into decisions to favour one side and
pleadings, principles and even findings of fact are throw n
overboard when they tend to contradict the preconceived:
official policy. The Calcutta Corporation may exercise its
powers o f com pulsory acquisition o f land with the best of
motives not for itself (though that is its ostensible purpose)
but for the C alcutta Im provem ent Trust.
M otives are to be specifically alleged and proved in this class.

A s a rule Indian Courts have n ot been very astute in discovering
motives for official action if they can help it but the main cause for
the paucity o f decision on this score appears to be the difficulty o f
proving the specific mental forces that produce a particular order.
But it is not correct to say that provided there is jurisdiction fo r an;
order “ whatever motive which influenced their decision” is n ot a,
question which can be gone into by this court in this writ petition.
On the contrary it is precisly in cases where the impugned order is
literally intra vires but alleged to b e mala fide or m otivated by ulterior,
purpose that the courts ought to go into that question and satisfy^
themselves that public powers are not prostituted for ulterior,
purposes. The courts in India have claimed and exercised this,
jurisdiction and have used them, as has been shown, abundantly. In
a case where the court found that the pow er to refuse permit for the
construction of a new building was used to bring indirect pressure on
the owners to construct drainage to their other already existing
building which the M unicipal Corporation had no legal authority to
order directly, Bombay H igh C ou rt rnanâwused the corporation tp
grant the permission sought. Similarly where the Madhya Pradesh

Government wielded its drastic pow er of requisition with the ulterior
purpose of dislodging a particular tenant it was prevented by mandamus.
Th e motives o f official action could be gone into has been recognised
early enough in India. It is only necessary to refer to the observations
o f Kania, J,, in Panchan Ladha v. Municipal Commissioner, Bombay,
where it was said that though in law the motives guiding the actions
o f parties were hardly relevant, in cases of the kind where a bad
motive was attributed and on which footing the exercise of the
discretion was challenged, motives were relevant.
A ll public powers, however absolute they may purport to be, are

subject to the rule of abuse.
It may be mentioned that for the further development of this

doctrine the affidavits of administrators have to be absolutely candid,
full and true, the petitioners should have power to bring before the
court the entire record of the impugned proceedings, and more careful
and exhaustive evidence have to be collected and presented before
the court.
A ll these principles which govern the discharge o f ofEcial

discretions will apply generally with more vigour in the case of
revocation of a licence already granted. Even though an official may
have unfettered discretion to grant or withhold a licence or other
privilege in the first instance he cannot revoke it without legal
justification when once it has been already granted. In such cases it
is no answer to a mandamus to cancel such revocation that he could
in his discretion have refused the licence initially. In many cases the
condition for the initial exercise o f power and the conditions for a
subsequent revocation of the Hcence granted as a result o f its exercise
may be different. This is reasonable because the licence once
granted becomes a valuable legal interest and its illegal cancellation
will amount to the deprivation of property. For example section 40
of the Calcutta Police A ct provided that a licensed boarding house
keeper is liable on the violation o f any condition o f his licence to
conviction before a magistrate and “ upon such conviction” to the
forfeiture of his licence, at the discretion of the Commissioner of
Police subject to the direction and control o f the State Government.
SECTIONS] ADMINISTRATIVE DISCRETION 643
W ADE, a d m in is t r a t iv e LAW *
56-9 (1961)
Discretionary Powers
In all th e law o f judicial control perhaps the central topic is the
question how far the courts will go in investigating motives. Abuse
of power is not confined to cases where the wrong thing is done, or
the right thing is done by the wrong procedure : the right thing may
be done by the right procedure, but on the wrong grounds. C on nected
with this is the question o f reasonableness; can the law prevent
powers being exercised unreasonably ? H ere the courts m eet many
difficult conundrums. The doctrines of law are, once again, easy to
state. The difficulty Hes in applying them.
T w o principles o£ statutory interpretation often com e into
conflict. First, it is to b e presumed that powers, even though widely
defined, have some ascertainable limits, and that Parliament is
unlikely to intend the executive to be the judge o f the extent of its
own powers; therefore, it can fairly be implied that the pow ers were
given for some particular purpose, exercise for any other purpose will
be illegal. Secondly, however, the court must not usurp the
discretion given to some other body. If the statute says that the
minister, or the local authority, may decide something, it is not for
the court to impose its ow n idea of what ought to have been decided,
for the statute intended the power o f decision to lie elsewhere, T he
court must not, in other words, concern itself with the politics of the
case, or with the ‘mere merits’. The cou rt’ s only concern is with the
legality o f what is done. It is not every mistake or aberration which
affects legaHty. It is o f the essence o f discretion th zt it involves the
power to make mistakes. T he court has therefore to draw the.line
between mistakes made intra vires and mistakes made w/fm vires.
A cting perversely is not necessarily acting ultra vires; b u t it is
tempting to the court to interfere w ith the unreasonable exercise of a
pow er on the ground that there is some implied statutory restriction
which gives the offending act an aspect of irregularity.
Even the widest powers can thus be made subject to a measure
of control. The typical example is where the A c t of Parliament
gives pow er to an authority to act in certain circumstances ‘as it may
think fit.’ It might b e supposed that, provided the circumstances
existed and no procedural mistake was made, such a pow er would be
quite ‘judge proof'; for plainly the ‘thinking fit’ is intended to be done
by the authority, and not by a court of law trying to control it.
* FpotnotQs omitte^.
H ere, one might suppose, was the domain o f pure p olicy which no
legal con trol could touch. But in fact the courts have contrived to
make a number of successful sorties into this territory, using as their
passport some implied statutory restriction which they have been
able to discover.
Legitimate Discretion
It is well to look first at the boundary where the C ou rt feels
bound to stop. In a leading case of 1948 an attack was made on
conditions attached to a licence for Sunday showing at a cinema. The
Cinematograph A ct, 1909, empowered the local council to license
Sunday opening of Cinemas subject to such conditions as the
authority think fit to impose’. A licence was granted subject to the
condition that no children under fifteen years of age should be
admitted, whether accompanied by an adult or not. This total ban
on children and indirectly (in effect) on parents was attacked as
being unreasonable and therefore ultra vires. The attack failed, for
the court held that the discretion belonged to the council and n ot to
the court. Lord Greene M. R., expounded the law with great lucidity,
and explained that there was indeed a rule of law that ‘powers must
be exercised reasonably’, but that it was true only if reasonably’ was
understood in a special way. A few extracts from his judgment will
make this clear.
What, then, is the power of the courts? They can only interfere,
with an act o f executive authority if it be shown that the authority
has contravened the law.
W hen discretion of this kind is granted the law recognises certain
principles on which that discretion must be exercised, but within the
four corners of those principles the discretion, in my opinion, is an
absolute one, and cannot be questioned in any court o f law. W hat
then are those principles ?
Bad faith, dishonesty— those of course stand b y themselves—
unreasonableness, attention given to extraneous circumstances,
disregard of public policy and things like that have all been referred
to, according to the facts of individual cases, as being matters which
are relevant to the question. If they cannot all be confined under
one head, they at any rate overlap to a great extent. For instance,
we have heard in this case a great deal about the meaning of the w ord
‘unreasonable’ .
It is true that discretion must be exercised reasonably. N ow
what does that mean? Lawyers famiHar with the phraseology
commonly used in relation to exercise of statutory discretions often

use the w ord ‘unreasonable' in a rather comprehensive sense. It has
frequently been used and is frequently used as a general description
of the things that must n ot be done. For instance, a person entrusted
with a discretion must, so to speak, direct himself properly in law.
H e must call his own attention to the matters which he is bound to
consider. H e must exclude from his consideration matters which are
irrelevant to what he has to consider. If he does n ot ob ey those
rules, he may truly be said, and often is said, to be acting
‘unreasonably’. Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the powers of the
authority. W arrington L. J. in Short v. Poole Corporation gave the
example of the red-haired teacher, dismissed because she had red hair.
That is unreasonable in one sense. In another it is taking into
consideration extraneous matters- It is so unreasonable that it might
almost be described as being done in bad faith; and, in fact, all these
things run into one another.
It appears to me quite clear that the matter dealt with b y this

condition was a matter which a reasonable authority would be
justified in considering when they were making up their mind what
condition should be attached to the grant of this licence. N obody,
at this time of day, could say that the well-being and the physical and
moral health o f children is not a matter which a local authority, in
exercising their powers, can properly have in mind when those
questions are germane to what they have to consider.
I think [counsel] in the end agreed that his proposition that the
decision o f the local authority can be upset if it is proved to be
unreasonable, really meant that it must be proved to be unreasonable
in the sense that the court considers it to be a decision that no
reasonable body could have com e to. It is not what the court
considers unreasonable, a different thing altogether.
This is a very clear statement of the principle that the courts of

law cannot be used as courts o f appeal to review the merits of
administrative decisions. It is perhaps as obvious truth, for even
special administrative courts w ould hardly go to that length. On the
other hand, the courts o f law stand guard against flagrant abuse of
power on the simple and sound principle that ParHament cannot have
intended powers to be abused beyond what might be called the
inevitable area where opinions may legitimately differ. ‘Powers must
be cxercised reasonably’, provided it is remembered that ‘reasonable’
has here a much wider meaning than in most other legal context. It
is in this sense that one must understand the remark of Lord Halsbury:
[Sharp V. Wakefield^ (1891) A .C . 173 at 179 (Ed.)l-
.. . “ discretion” means when it is said that something is to be done
within the discretion of the authorities that that something is to
be done according to the rules o f reason and justice, not according
to private opinion; ... according to law, and not humour. It is
to be, not arbitrary, vague, fanciful, but legal and regular.
For Lord Halsbury himself said :
W h ere the legislature has confided power to a particular body,
with a discretion how it is to be used, it is beyond the p ow er of
any court to contest that discretion. [ Westminister Corp. v. London
& North Western Rly. Co., (1905) A . C. 426 at 427 (Ed.) ].
FRIEDMANN AND BENJAFIELD, AUSTRALIAN ADMINISTRATIVE LAW*

169-79(1962)
The Courts have never been prepared to concede that the holder
o f a discretion may do as he pleases— ‘‘discretion"’ means something
to be “ done according to the rules o f reason and justice, not
according to private opinion....according to law, and not humour.
It is to be, not arbitrary, vague, and fanciful, but legal and regular.”
These expressions are imprecise and of little assistance in reaching a
decision upon a particular set of facts but over many years the courts
have attempted to elaborate principles and sub-principles. The result
of this elaboration was stated by Lord Greene, M. R. in Associated
Provincial Picture Houses v. Wednesbury Corporation.
“ W h en an executive discretion is entrusted by Parliament to a
body such as the local authority in this case, what appears to be an
exercise of that discretion can only be challenged in the courts in a
strictly limited class of cases. As I have said, it must always be
remembered that the court is not a court o f appeal. W h en discretion
o f this kind is granted the law recognises certain principles upon
which that discretion must be exercised, but within the four corners
of those principles the discretion, in my opinion, is an absolute one
and cannot be questioned in any court o f law. W h at then arc those
principles ? They are well understood. They are principles which
the court looks to in considering any question o f discretion o f this
kind. The exercise of such a discretion must be a real exercise
o f such a discretion. If, in the statute conferring the discretion,
* Footnotes omitted.
there is to be found expressly or by im plication matters which

the authority exercising the discretion ought to have regard to,
then in esercising the discretion it must have regard to those matters.
Conversely, if the nature o f the subject matter and the general
interpretation of the A ct make it clear that certain matters would
not be germane to the matter in question, the authority must
disregard those irrelevant collateral matters.”
A “ real” exercise of a discretion means that the matter must

not be decided out of hand, without a proper consideration of the
merits of each individual case, as where there is an absolute refusal
to entertain an application for the exercise o f the discretion. Further,
the body in which the discretion is vested must consider the whole
o f the merits of each application made to it, and must not regard any
one factor as being necessarily conclusive to the exclusion o f other
relevant factors. Similarly, the body must not adopt any arbitrary
rule by which it will act irrespective of the merits o f the particular
case, though this does n ot prevent the adoption by the holder of a
discretion of rules which he asserts will govern him in all ordinary
cases in the absence of special considerations. It is clear from this,
however, that a desire for consistency alone must n ot be allowed to
preclude a consideration o f all the merits of each individual case.
The propriety of the adoption o f any particular policy will, of

course, be governed by the other rules relating to the exercise of
discretions, especially those which forbid the holder of a discretion
to base his actions on considerations which are to be regarded as
“ extraneous” or “ irrelevant" to the purposes for which the discretion
was created.
On the authorities, the person in whom the discretion is vested

must have regard to all matters which he is bound by statute,
expressly or impliedly to consider and must disregard all matters
which are, in the same way, irrelevant. The difficulty in applying
such a “ principle’’ is that the cases disclose n o criteria for
determining what are relevant considerations, and what are irrelevant
or “ extraneous” . In some instances a statute may set out matters
which must be considered and this will also be helpful in
determining what matters are irrelevant or extraneous. M ore usually,
however, the statute concerned is silent on such matters and a
decision as to what is relevant and what is irrelevant is largely left
to the court. M oreoever, since relevance of considerations is lireated
as a question o f law, the opinion of the court is very often formed
648 mDIAN ADMINISTRATIVE LAW [ CHAPTER18
without the aid o f evidence directed to the issue, apparently by

reference to undisclosed assessments as to what is proper or
improper, just or unjust, econom ically sound or unsound, and so on.
In such a situation the decision as to relevance or lack of relevance
will often be dictated by the cou rt’s desire or lack of desire to
review the challenged decision. Even where a statute provided
that the exercise of a power was to be “ entirely in the discretion” of
the authority concerned it has been held that the discretion was
“ unconfined except in so far as the subject matter aiid the scope and
purpose o£ the statutory enactments may enable the court to
pronounce given reasons to be definitely extraneous to any objects
the legislature could have had in view*”
The power of the court to review administrative action in
accordance with these principles is o f general application, and does
not arise merely in applications for mandamus. M oreoever the
pow er o f the court to review may be pushed to considerable lengths.
Thus, in Roberts v. Hopewood (which arose under the pow er of a
local government auditor to make “ surcharges” in respect of
unauthorised expenditure) Lord Atkinson castigated the members of
the Popular Borough Council for allowing themselves “ to be guided
...b y some eccentric principles of socialistic philanthropy, and by a
feminist ambition to secure the equality of the sexes in the matter
o f wages-..... ” when that Council decided, under its pow er to fix the
wages o f its employees, to pay the same minimum adult wage to
both male and female employees. It is to be noted that the
C ouncil’s decision expressed no reasons and that the decision of the
House o f Lords involves an assumption that the Council must have
acted by reference to irrelevant considerations, even though the
statute concerned was silent as to the considerations w hich the
Council should not take into account,
Roberts v. Hopwood is, of course, only one example from the
multitude of cases in which the courts have reviewed exercises of
discretions on the ground that the holder of the discretion has taken
into account extraneous considerations or has failed to take into
account relevant considerations. Thus, in Attorney-'General v. Tynemouth
Union, Eve, held that, in relation to unemployment relief paid
during the coal dispute of 1926, even if the guardians had a general
discretion to forgive debts en masse they could not do so (as they had
attempted to do) without inquiry into the ability o f the debtors to
pay and in disregard of the interests of the ratepayers. A gain in
Hanson v. Radelijfe U. D. C. the Court o f A ppeal held' that there was
no “ educational ground” for the dismissal o f teachers to be found in

the econom y which would be effected by dismissing teachers and then
offering to re-engage them at reduced salaries, while in Sadler v.
Sheffield Corporation P. O. Lawrence, J., rejected, as an expedient to
avoid this decision, the device of dismissing senior teachers in order
to bring in younger teachers at lower salaries. The other side o f the
problem o f “ educational grounds” is illustrated b y Short v. Poole
Corporation where the C ourt o f Appeal found that the dismissal o f a
female teacher because she was married was valid and did n ot contain
any reason which could be regarded as alien or irrelevant to the
maintenance o f efficiency o f the school concerned.
Perhaps one of the best illustrations o f the pow er o f the court is
found in the decision of the Court o f A ppeal in Marshall v. Blackpool
Corporation. Section 62 o f the B lackpool Improvement A ct, 1879,
provided that “ the sanction of the C orporation” to plans for access
to premises for horses or vehicles across any footpath was necessary
before that access might be constructed. O n the one hand, the C ourt
o f A ppeal held that in considering applications under this section the
Corporation was not limited to considering the matters specified in
the section (namely, the particular place where, and the details of
how, the w ork would be carried out) but was entitled to consider the
nature of the proposal in order to decide whether the pavement would
be sufficient to support the weight o f vehicles and to protect subjacent
pipes and further that the Corporation was entitled to consider the
safety of the public and the convenience o f pedestrians and vehicular
traffic. On the other hand, the court held that the Corporation had
regarded extraneous considerations in taking into account the fact
that under a tow n planning scheme w hich had n ot yet com e into
operation the area concerned was to be zoned as a residential district.
In essence, then, the court held that public safety and convenience
were relevant considerations while the residential character of the
district was irrelevant, yet, if evidence as to the general character o f
the district had been considered, there w ould seem no reason why its
residential nature should n ot have led to the conclusion that consent
should have been withheld on grounds of public safety and convenience.
In other words, there is in the case no discernible criterion by which
a distinction might be drawn between what the court regarded as
relevant considerations and what it regarded as irrelevant.
There have been dozens, if not hundreds, o f similar decisions,
both in England and in Australia. For example, in E x parte Shell,
Re M ilk Board, Stephen, J„ had before him the provisions of the M ilk
A ct, 1931 (N .S .W .), which permitted the vesting of milk in the Board,
except [under s. 26(5)] milk produced and retained by a dairyman on
his own behalf. On an application for registration by such a
dairyman, the Board attempted to impose a condition (and the A ct,
in S.79, gave the Board a wide power to insert conditions) that milk
produced by the dairyman and intended for consumption in the
Sydney metropolitan area should be “ delivered to the Board through
its agent” . This was held to b e beyond the Board s power as it
would defeat the exemption contained in s. 26(5). In Ex parte S. F.
Bowser &. Co,, Re Municipal Council of Randwick, the Council granted
permission for the erection o£ a petrol pump on a footpath subject to
the condition “ that Australian-made machines will only be permitted.”
Street, C.J., delivering the judgment of the Full Court, said that this
was an extraneous consideration - in matters affecting the good
government of the area under its control, municipal council is entitled
to act as it thinks best in the public interest but “ there are many
considerations of public interest having relation to the general
morality and welfare of the community with which a council has no
concern and which cannot properly enter into the exercise of its
discretion” . The other side of the picture is presented by the decision
of the High Court in Randall v. Northcote Corporation where it was held
that, in exercising its discretion as to the registration of grounds for the
conduct of pubHc amusement, a council might properly take into
consideration the facts that the ground sought to be registered
adjoined a public house of which the applicant was the licensee, that
the applicant intended to use the ground for the purpose of making
a profit for himself, and that the ground, if licensed, would enter into
competition with a public recreation ground of which some o f the
councillors were trustees and on which the council had spent municipal
moneys.
In England, in 1954, the Court of Appeal again pressed judicial
review to very considerable lengths in Prescott v. Birmingham
Corporation. The Birmingham Corporation was authorised by statute
to maintain and operate its transport undertaking and to charge
such fares as it thought fit (within certain limits). The Corporation
decided to provide free travelling facilities at certain hours on trams
and omnibuses for women aged 65 years and over and men aged
70 years and over. Both Vaisey, J., and the Court of A ppeal held
that the action of the Corporation was ultra vires.
In delivering the judgment o f the Court of Appeal, Jenkins, L J .,
said that the general power to determine the fares to be charged for
use o f transport included pow er to charge different fares to different

passengers or classes of passengers, such as workm en, infants and
children. But he further said that, although local authorities are not
trustees for their ratepayers, they “ owe an analogous fiduciary duty
to their ratepayers in relation to the application o f funds contributed
by the latter.” H is Lordship considered that, although it was clear
that deficiencies in the running o f the transport system might occu r
and would be met by the funds contributed by ratepayers, the local
authority had a duty not to enlarge that deficiency by making a “ gift”
to a particular class of persons of rights of free travel on their
vehicles “ simply because the local authority concerned are o f opinion
that the favoured class of persons ought, on benevolent or
philanthropic grounds, to be accorded that benefit” . In this regard,
his Lordship distinguished betw een charging reduced fares and
charging no fare at all and, in answer to an argument that the
relevant Legislation would allow the defendants to charge no fares
at all to anyone and to finance their transport undertakings entirely
out o f rates, he said :
“ W e think it is clearly implicit in the legislation, that while it
was left to the defendants to decide what fares should be charged
within any prescribed statutory maxima fo r the time being in
force, the undertaking was to be run as a business venture, or,
in other words, that fares fixed by the defendants at their
discretion, in accordance with ordinary business principles, were to
be charged. This is not to say that in operating their transport
undertaking the defendants should be guided b y considerations
o f profit to the exclusion of all other considerations. They should,
no doubt, aim at providing an efficient service o f omnibuses at
reasonable cost, and it may be that this objective is impossible of
attainment w ithout some degree of loss. But it by n o means
follow s that they should go out of their way to make losses by
giving away rights of free travel.”
The effect o f the decision is, then, that in relation to a power
which was for all relevant purposes perfectly general in its terms,
the court read into the legislation an implied qualification that the
pow er was to b e exercised “ in accordance w ith ordinary business
principles” and then concluded, without, so far as one can gather,
any evidence on the topic, that the granting o f free travel such as
that contem plated by the authority was n ot in accordance with such
principles while the granting of free travel to infants, and reduced
fares to workmen was in accordance with those principles. The
latter conclusion indicates clearly that by “ ordinary business

principles” the court meant something substantially different from
the ordinarily accepted meaning o f the term, and this is made even
clearer in the above quotation from the judgement. But what
exactly the court does mean by “ ordinary business principles" is
thoroughly doubtful.
From this brief review of the cases it is quite clear that the
courts have created a situation in which it is possible to extend the
scope o f judicial review indefinitely and in a manner which, of its
nature, defies definition. In many, if not most, of the cases where
exercises o f discretionary powers have been reviewed, the court has,
by a process of statutory “interpretation” , converted apparently
absolute discretions into discretions which are hedged about by
limitations which would have startled the parliamentary draftsman.
The nature of the process by which this result is achieved is most
often obscured by the terminology employed— the references to
“ real” exercises of power, to "extraneous” considerations, and so on—
but in each case the court has in fact given a restricted interpretation
to , a pow er which is, on the face o f the statute, more or less
unlimited. In each such case the court “ finds” outside the words of
the statute a criterion of limitation which the court is never prepared
to state in precise terms but which depends upon its ow n free
judgment in the particular circumstances of the case and, in not a
few instances, upon the making of tacic and undisclosed assumptions.
In this way, the vague “ principles” stated by the courts impose no
real fetters on the court’s own discretion and give to the
practitioner virtually no possibility of predicting the action which a
court will take in any particular circumstances. A t the same time
this approach preserves great flexibility in the scope o f judicial
review. Furthermore, once it is recognised that the differences
between the various groups of cases previously cited are apparent
only and arise out of the use of differing terminology to describe the
one process, it becomes clear that throughout the mandamus cases
the courts are applying only one principle, the principle, o f ultra vires
but that the application of that principle is, in these cases, dependent
upon a mode of statutory interpretation which involves a much
greater area of discretion in the court than is indicated b y the
traditional lules of interpretation.
ASSOCIATED PROVINCIAL PICTURE HOUSES LIMITED

V. WEDNESBURY CORPORATION
(1948) 1 K.B. 223.
[By section 1, sub-section 1, of the Sunday Entertainment A ct,

1932, an authority having pow er in any area to grant licences for
cinematograph perform ances under the Cinem atograph A ct, 1909, is
given pow er to allow a licensed place to be opened and used on Sundays,
“ subject to such conditions as the authority think fit to im pose” .
A local authority granted to the plaintiffs leave for Sunday

performances subject to the condition that no children under fifteen
years of age should be admitted to Sunday perform ances with or
without an adult.]
Lord Greene, M .R .:
In the action out of which this apeal arises, the plaintiffs, who
are the proprietors of a cinema theatre in W ednesbury, sought to
obtain from the cou rt a declaration that a certain condition imposed
b y the defendants, the corporation o f W ednesbury, on the grant o f a
licence for Sunday perform ances in that cinema was ultra vires. The
action was dismissed by H enn Collins J. and, in my opinion, his
decision was clearly right. The powers and duties o f the Local
A uthority are to b e found in the Sundaj^ Entertainments A ct, 1932.
That A c t legalized the opening of cinemas on Sundays, subject to
certain specified conditions and subject to such conditions as the
licensing authority think fit to impose. The licensing authority are
the licensing authority set up under the Cinematograph A ct, 1909,
and in this case are the council o f the borough of W edn esbu ry....
The actual words in question here are to be found in s. 1 sub-s. 1

of the A c t o f 1932. [His Lordship read the sub-section.] The power
to impose conditions is expressed in quite general term s.... In the
present case, the defendants imposed the follow in g condition in their
licence; “ N o children under the age o f fifteen years shall be admitted
to any entertainment, w hether accom panied by an adult or n o t ”
M r. Gallop, for the plaintiffs, argued that it was n ot com petent for
the W ednesbury C orporation to impose any such condition and he
said that if they were entitled to impose a condition prohibiting the
admission to children, they should at least have limited it to cases
where the children were n ot accom panied by their parents or a
guardian or some adult. H is argument was that the imposition o f
that condition was unreasonable and that in consequence it was
ultra "vires the corporation. The plaintiffs’ contention is based, in

my opinion, on a misconception as to the effect of this A c t in granting
this discretionary pow er to local authorities. The courts must always,
I think, remember th is: first, we are dealing with not a judicial act,
but an executive act; secondly conditions which, under the exercise of
that executive act, may be imposed are in terms, so far as language
goes, put within the discretion of the local authority without
limitation. Thirdly, the statute provides no appeal from the decision
o f the local authority.
W hat, then, is the pow er of the courts ? They can only interfere
with an act o f executive authority if it be shown that the authority
has contravened the law. It is for those who assert that the local
authority has contravened the law to establish the proposition. On
the face o f it, a condition o f the kind imposed in this case is perfectly
lawful. It is not to be assumed prima facie that responsible bodies
like the local authority in this case will exceed their powers; but the
court, whenever it is alleged that the local authority have contravened
the law, must not "substitute itself for that authority. It is only
concerned with seeing whether or not the proposition is made good.
W h en an executive discretion is entrusted by Parliament to a body
such as the local authority in this case, what appears to be an exercise
of that discretion can only be challenged in the Courts in a strictly
limited class of case. A s I have said, it must always be remembered
that the court is not a court of appeal. W hen discretion of this kind is
granted the law recognizes certain principles upon which that discretion
must be exercised, but within the four corners of those principles the
discretion, in my opinion, is an absolute one and cannot be questioned
in any court of law. W hat then are those principles ? They are well
understood. They are principles which the court looks to in
considering any question of discretion of this kind. The exercise of
such a discretion must be a real exercise of the discretion. If, in the
statute conferring the discretion, there is to be found expressly or by
implication matters which the authority exercising the discretion
ought to have regard to, then in exercising the discretion it
must have regard to those matters. Conversely, if the nature o f the
subject-matter and the general interpretation o f the A c t make it
clear that certain matters would not be germane to the matter in
question, the authority must disregard those irrelevant collateral
matters. There have been in the cases expressions used relating to
the sort of things that authorities must not do, not merely in cases
under.the Cinematograph A c t but, generally speaking, under Qthei
cases where the powers of local authorities came to be considered.

I am not sure myself whether the permissible grounds of attack
cannot b e defined under a single head. It has been perhaps a little
bit confusing to find a series o f grounds set out. Bad faith, dishonesty—
those of course, stand by themselves— unreasonableness, attention
given to extraneous circumstances, disregard o f public policy and
things like that have all been referred to, according to the facts o f
individual cases, as being matters which are relevant to the question.
If they cannot all be confined under one head, they at any rate, I think,
overlap to a very great extent. For instance, we have heard in this
case a great deal about the meaning of the word “ unreasonable.”
It is true the discretion must be exercised reasonably. N ow what
does that m ean? Lawyers familiar with the phraseology com m only
used in relation to exercise of statutory discretions often use and
word “ unreasonable” in a rather comprehensive sense. It has frequently
been used and is frequently used as a general description of the things
that must not b e done. For instance, a person entrusted with a
discretion must, so to speak, direct himself properly in law. H e must
call his own attention to the matters which he is bound to consider.
H e must exclude from his consideration matters which are irrelevant
to what he has to consider. If he does not obey those rules, he may
truly be said, and often is said, to be acting “ unreasonably.” Similarly,
there may be something so absurd that no sensible person could ever
dream that it lay within the powers o f the authority. W arrington L.J.
in Short v. Poole Corporation^ gave the example o f the redhaired
teacher, dismissed because she had red hair. That is unreasonable in
one sense. In another sense it is taking into consideration extraneous
matters. It is so unreasonable that it might almost b e described as
being done in bad faith; and, in fact all these things run into one
another.
In the present case, it is said by Mr. Gallop that the authority
acted unreasonably in imposing this condition. It appears to me
quite clear that the matter dealt with by this condition was a matter
which a reasonable authority would be justified in considering when
they were making up their mind what condition should be attached to
the grant o f this licence. N obod y, at this time o f day, could say that
the well-being and the physical and moral health of children is not a
matter which a local authority, in exercising their powers, can
properly have in mind when those questions are germane to what they
have to consider. H ere M r. Gallop did n ot, I think, suggest that the
5. (1926) Ch. 66. 90,91,
council were directing tlieir mind to a purely extraneous and

irrelevant matter, but he based his argument on the word
“ unreasonable,” which he treated as an independent ground for
attacking the decision o f the authority; but once it is conceded, as it
must b e conceded in this case, that the particular subject-rnatter
dealt with by this condition was one which it was com petent for the
authority to consider,, there, in my opinion, is an end o f the case.
Once that is granted, Mr. Gallop is bound to say that the decision of
the authority is wrong because it is unreasonable, and in saying that
he is really saying that the alcimate arbiter of what is and is not
reasonable is the court and not the local authority. It is just there, it
seems to me, that the argument breaks down. It is clear that the local
authority are entrusted by Parliament with the decision on a matter
which the knowledge and experience of that authority can best be
trusted to deal with. T he subject matter with which the condition
deals is one relevant for its consideration. They have considered it
and com e to a decision upon it. It is true to say that, if a decision
on a competent matter is so unreasonable that no reasonable
authority could ever have come to it, then the courts can
interfere. That, I think, is quite right; but to prove a case o f that
kind would require something overwhelming, and, in this case, the
facts do not come anywhere near anything of that kind. I think
Mr, Gallop in the end agreed that his proposition that the decision
of the local authority can be upset if it is proved to be unreasonable
in the sense that the court considers it to be a decision that
no reasonable body could have come to. It is not what the
court considers unreasonable, a different thing altogether. If it is
what the court considers unreasonable, the court may very well have
different views to that of a local authority on matters high o f public
policy o f this kind. Some courts might think that no children ought
to be admitted on Sundays at all, some courts might think the
reverse, and all over the country I have no doubt on a thing of that
sort honest and sincere people hold different views. The effect of the
legislation is not to set up the court as an arbiter of the correctness
of one view over another. It is the local authority that are set in that
position and, provided they act, as they have acted, within the four
corners of their jurisdiction, this court, in my opinion, .'cannot
interfere...
In the result, this appeal must be dismissed. I do n ot wish to
repeat myself but I will summarize once again the principle applicable
The court is entitled to investigate the action of the local authority
with a view to seeing whether they have taken into account matters
which they ought not to take into account, or, conversely have refused
to take into account or neglected to take into account matters which
they ought to take into account. Once that question is answered in
favour of the local authority, it may be still possible to say that,
although the local authority have kept within the four corners o f the
matters which they ought to consider, they have nevertheless com e
to a conclusion so unreasonable that no reasonable authority could
ever have come to it. In such a case, again, I think the court can
interfere. The pow er of the court to interfere in each case is n ot as
an appellate authority to override a decision of the local authority,
but as a judicial authority which is concerned, and concerned only, to
see whether the local authority have contravened the law b y acting
in excess o f the powers which Parliament has confided in them. The
appeal must be dismissed with costs.
ROBERTS v. HOPWOOD
(1925) A.C. 578.
[By section 62 o f the MetropoHs M anagement A ct, 1855, a

metropolitan borough council, as the successors o f the Board o f
W orks, ‘'shall....em ploy....such....servants....such....w ages as the
Council may think f it /’
By section 247, sub-section 7, of the Public H ealth A ct, 1875, as

applied to the accounts o f metropolitan borough councils, the
district auditor “ shall disallow any item o f account contrary to law,
and surcharge the same on the person making or authorising the making
o f the illegal payment.”
In the year 1922, a borough council as in the previous year, paid

to its lowest grade of workers, whether men or women, a minimum
wage o f 4/. per week, though the cost of living had fallen duriiig that
year from 176 per cent to 82 per cent above the pre-w ar level, the
borough council was o f the view that 4/. was the least wage which
a local authority ought as a model employer to pay for adult labour.
T he district auditor found that these payments w ere not wages but
gratuities to the employees, and were contrary to law, and, starting
with the pre-w ar rate o f wages paid b y the council, added on a bonus
proportionate to the increase in the cost o f living and a further 1/. by
658 INDIAN ADMINISTRATIVE LAW [CHAPTERS
way of margin, and disallowed the excess over that sum and surcharged
the same on the councillors who were responsible for the payments.]
Lord Buckmaster:
The question on this Appeal is whether that surcharge has been

lawfully made.
Sub-sect. 7 of S. 247 [the Public Health A ct, 1875] contains the

directions imposing upon the auditor the duty of maidng disallowances
and surcharges. It is in the following w ord s: “ A n y auditor acting in
pursuance of this section shall disallow every item of account contrary
to law, and surcharge the same on the person making or authorising
the making of the illegal payment ..,and shall in every such case certify
the amount due from such person, and on application by any party
aggrieved shall state in writing the reasons for his decision in respect
of such disallowance or surcharge....’’
...It is said that the amounts disallowed are contrary to law,

and that the making of them constituted the making of an illegal
payment....
The real difficulty in the present case lies in determining what is

the limit o f discretionary power given to the district council with
regard to payment o f wages. N ow those powers are to be found in
s. 62 o f the MetropoHs Management A ct of 1855, which runs as
follows : “ The MetropoHtan Board o f W orks, and (subject to the
provisions herein contained) the board of works for every district
under this A ct, and the vestry of every parish mentioned in Schedule
( A ) to this A ct, shall respectively appoint or employ, or continue for
the purposes of this A ct, and may remove at pleasure, such clerks,
treasurers, and surveyors, and such other ofi&cers and servants as may
be necessary, and may allow to such clerks, treasurers, surveyors,
officers, and servants respectively such salaries and wages as the
board or vestry may think fit.”
The power there conferred is to appoint for the purposes o f the

A ct such servants as may be necessary and to pay these servants such
wages as the council may think fit. It is to be noticed that there is
not in this section a quahfication often found in other sections
conferring upon local authorities pow er to pay wages, such as to pay
reasonable wages, which is found in the Baths and W ashhouses A ct
o f 1846, and again in the Burials A c t of 1852. I mention these two
A cts for this reason, that the powers that they confer are capable
of being adopted by any borough council, though they are not, until
adopted, expressly conferred by the Local Governm ent A c t of 1899.
The confusion that these different definitions o f the powers create
is made obvious when it is considered that were the A cts once
adopted, servants might be appointed to perform in respect o f the
powers thereby conferred services identical with those performed
under the powers that are expressly conferred b y the A c t o f 1899
itself, and unless the word “ reasonable" be introduced into the
operative s. 62 or struck out from the sections of the adopted A cts
tw o different standards of payment would apply to the same work. It
is impossible to accept a conclusion so fantastic, and it follow s that
either the two phrases mean the same thing or that one must give
way to the other.
In my opinion the right way to construe it is to take s. 62 as the
dominant section and to assume that if the other A cts are adopted
under the A c t o f 1899, the general powers of s. 62 apply, and servants
appointed to discharge these new duties are really appointed for the
purpose of the A c t within the meaning of s. 62, and that consequently
the general rule applicable is that the council shall pay such wages
as they may think fit, the discretion as to the reasonable nature of
the wages being with them. Th e discretion thus imposed is a very
wide one, and I agree with the principle enunciated by L ord Russell
in the case of Kruse v. Johnson . . , that when such a discretion is
conferred upon a local authority the C ourt ought to show great
reluctance before they attempt to determine how, in their opinion,
the discretion ought to be exercised.
Turning to what the borough council have done, the reason for
their action is to be -found in the affidavit sworn by M r Scurr,
Mr. Key, Mr. Lansbury and Mr. Sumner. In para 6 o f that affidavit
they make the follow ing statem en t; “ The coun cil and its predecessors
the district board o f works have always paid such a minimum wage
to its employees as they have* believed to b e fair and reasonable
without being bound b y any particular external method o f fixing
wages, whether ascertainable b y Trade U nion rate, cost of living,
payments by other local or national authorities or otherw ise.” And
if the matter ended there it would be my opinion that a decision
so reached could not be impeached until it w ere shown that it
was not bona fide, and absence o f bona fides is not alleged in the
present proceedings. Para 9, however, of the same affidavit puts the
matter in a different form. It is there said : “ 9.... The Council did
not and does not take th? view that wages paid should be exclusively
related to the cost of living. They have from time to time carefully
considered the question of the wages and are of the opinion, as a matter
of policy, that a public authority should be a model employer and that
a minimum rate of 4/. is the least wage which ought to be paid to an
adult having regard to the efficiency of their workpeople, the duty of
a public authority both to the ratepayers and to its employees, the
purchasing power of the wages and other considerations which are
relevant to their decisions as to wages.”
N ow it appears that on August 31, 1921, a resolution was passed

by the borough council to the effect that no reduction o f wage or
bonus should be made during the ensuing four months, and this was
acted upon for the follow ing twelve months. It was, I think, well
within their power to fix wages for a reasonable time in advance, and
there are cogent reasons why this should be done, but that decision
should be made in relation to existing facts, which they appear to
have ignored. In August, 1921, the cost o f living had been
continuously falling since November of the previous year, and it
continued to fall, so that it is difficult to understand how, if the cost
o f living was taken into account in fixing the wages for adult workers
at a minimum basis of 4/. the sharp decline in this important factor
should have been wholly disregarded by the borough council. But the
affidavit contains another statement, which I think is most serious for
the council’s case. It states that 4/. a week was to be the minimum
wage for adult labour, that is without the least regard to what that
labour might be. It standardised men and women not according to
the duties they performed, but according to the fact that they were
adults. It is this that leads me to think that their action cannot be
supported, and that in fact they have not determined the payment as
wages, for they have eliminated the consideration both o f the work
to be done and of the purchasing power of the sums paid, which they
themselves appear to regard as a relevant though not the dominant
factor. Had they stated that they determined as a borough council
to pay the same wage for the same work without regard to the sex or
condition o f the person who performed it, I should have found it
difficult to say that that was not a proper exercise o f their discretion.
It was indeed argued that is what they did, but I find it impossible to
extract that from the statement contained in the affidavit. It appears
to me, for the reasons I have given, that they cannot have brought
into account the considerations which they say influenced them, and
that they did not base their decision upon the ground that the reward
for work is the value of the work reasonably and even generously
measured, but that they took an arbitrary principle and fixed an

arbitrary sum, which was not a real exercise of the discretion imposed
upon them by the statute.
It is for these reasons that I think the A ppeal should succeed.
Lord Atkinson:
It is but right and natural that the rate o f wages should rise if
the cost of living rises, because this tends directly to keep the
purchasing pow er of the labourer’s wage at what it was before the
cost o f living increased. The principle apparently adopted by the
council, however, is that wages should rise if the cost o f living rises,
but should never go down if the cost of living goes down.
A s I understood Sir John Simon, [counsel for the respondents] he

did not contend ultimately that the council could properly or legally
fix the salaries or wages of their employees at an excessively high
rate. H e apparently thought that this would be an unjust and
unlawful exercise of their discretion, and from the last few lines o f
the judgment o f Scrutton L.J. he was apparently o f the same opinion.
M oreover, Scrutton L J . thought that the sums fixed by the council
in this case while near the line of excess did n ot actually reach it.
In order, however, to determine in such a case as this what is the line
o f excess, one must first determine what is the line of moderation in
such matters, the datum line— as it may b e styled-^beyond which
excess begins. Scrutton L.J. apparently took the W h itley Council or
cost o f living rates as this datum line....
I entirely concur with conclusion expressed by Bankes L. J. in the
following passage o f his able well-reasoned judgment. A fte r referring
to the speech o f Mr. George Lansbury and the affidavits o f the
M ayor of Poplar and others filed in support of the rule, he said: “ The
arguments there set out are o f such a general and vague character
that the question which the Court has to decide cannot be disposed
o f without a closer investigation o f the facts. In the absence o f
precise and detailed inform ation as to the grounds on which the
Council acted their action must, in my opinion, be judged by its
results. The results according to the finding o f the district auditor
are that the payments made in many instances were far in excess o f
those necessary to obtain th e services required and to maintain a high
standard of efficiency, and were thus in reality gifts to their employees
in addition to remuneration for tlieir services. If. this finding is
justified upon the evidence it establishes, in my opinion, the making
o f payaieiits contrary to law. It must be borne in mind what the

payments are for. They are payments for wages; that is to say, the
price which the employer pays the employee for his or her services.
O f recent years the tendency has everywhere been to standardize
wages by either fixing the actual rate to be paid or by fixing minimum
rates. In some cases the Legislature has stepped in to bring about
this result. In most cases it has been due the action of organized
labour or associations consisting of employers and employed. The
result has been to create in relation to labour what in relation to
commodities, is recognized as a market price.”
H e then proceeds to show that the market price may vary

according to local conditions, but that for any well-recognized form of
labour it is ascertainable and can be ascertained. But the council,
according to the affidavit of Mr. John Scurr, disregarded all external
matters such as these as aids to arrive at a conclusion as to what was
the so-called market wage for which the services required by the
council could be procured, and what excess beyond that, if any, was
reasonable.
In the sixth paragraph of Mr. Scurr’s affidavit he states that “ the
Council have always paid such a minimum wage as they have believed
to be fair and reasonable without being bound by any particular
external method of fixing wages, whether by trade union rates, cost
o f living, payments of other local or national authorities or
otherwise.” N obody has contended that the council should he bound
by any of these things, but it is only what justice and common-sense
demand that, when dealing with funds contributed by the whole body
of the ratepayers, they should take each and everyone of these
enumerated things into consideration in order to help them to
determine what was a fair, just and reasonable wage to pay their
employees for the services the latter rendered. The council would,
in my view, fail in their duty if, in administering funds which did not
belong to their members alone, they put aside all these aids to the
ascertainment of what was just and reasonable remuneration to give
for the services rendered to them, and allowed themselves to be
guided in preference by some eccentric principles o f socialistic
philanthropy, or by a feminist ambition to secure the equality o f
the sexes in the matter o f wages in the world of labour.
In para 9 of Mr. Scurr’ s affidavit he is good enough to disclose

what the council did take into consideration in fixing the minimum
rate of wages to he paid to their employees. H e said that they had
from time to time considered the question o f wages, and were of

opinion that a public authority should be a model em ployer....
This system o f procedure might possibly be admirably philan
thropic, if the funds of the council at the time they w ere thus
administered belonged to the existing members o f that body. These
members would then be generous at their expense. T he evidence
does not disclose what sum the rates o f the district am ounted to, or
what portion of that gross sum was paid b y the persons who were
members of the council since, say, the month o f March, 1920; but
it may safely be assumed, I should think, that these members did not,
at any time, pay the whole of the rates then collected. T he council
then, at all times since the year 1914, may safely be assumed to have
been dealing with funds a portion of which— possibly the larger
portion o f which— was contributed by ratepayers who were not, and
are n ot members o f the council. The indulgence o f philanthropic
enthusiasm at the expense of persons other than the philanthropists
is an entirely different thing from the indulgence o f it at the expense
o f the philanthropists themselves. The form er wears quite a different
aspect from the latter, and may bear a different legal as well as moral
character. A body charged with the administration for definite
purposes of funds contributed in whole or in part by persons other
than the members of that b od y, owes, in my view , a duty to those
latter persons to conduct that administration in a fairly businesslike
manner with reasonable care, skill and caution, and with a due and
alert regard to the interest o f those contributors who are not members
of the body. Tow ards these latter persons the body stands somewhat
in the position of trustees or managers of the property o f others.
This duty is, I think, a legal duty as well as a moral one, and acts
done in flagrant violation o f it should, in my view, b e properly held to
have been done “ contrary to law " within the meaning o f sub-s. 7 o f
s, 247 o f the Public Health A c t o f 1875. To make an act contrary to law
it is not necessary that it should be prohibited by some legal enactment
such as a statute or a bye-law or the like. M any things are contrary
to law though not prohibited by any statute, such for instance as the
purchase by a trustee from his cestui que trust o f part o f the trust
property, the purchase by an agent from his principal o f the latter's
property without full disclosure o f w ho the purchaser really is, and
what are the particulars of the purchase. The torts which are at law
covered by the legal maxim utere tiio ut alienum non laedas," are in
many instances n ot prohibited by statutes, yet they are illegal and
actionable at law.
But as wages are remuneration for services, the words “ think fit”
must, I think, be construed to mean “ as the em ployer shall think
fitting and proper” for the services rendered. It cannot, in my view,
mean that the employer, especially an employer dealing with moneys
not entirely his own, may pay to his employee wages o f any amount
he pleases. Still less does it mean that he can pay gratuities or gifts
to his employees disguised under the name of wages. T he only
rational way by which harmony o f administration can be introduced
into the various departments o f L ocal Government covered b y s. 62
of the A c t of 1855, and by the several more recent statutes aforesaid,
is by holding that in each and every case the payment o f all salaries
and wages must be “ reasonable” .,..
W h at is a reasonable wage at any time must depend, of course,
on the circumstances which then exist in the labour market. I do not
say there must be any cheese-paring or that the datum line, as I have
called it, must never be exceeded to any extent, or that employees
may not b e generously treated. But it does not appear to me that
there is any rational proportion between the rates of wages at which
the labour of these women is paid and the rates at which they would
be reasonably remunerated for their services.to the council.
I concur with the auditor in thinking that what has been given to
the women as wages is really to a great extent gifts and gratuities
disguised as wages, and is therefore illegal. The Council have evidently
been betrayed into the course they have follow ed by taking into
consideration the several matters mentioned in M r. Scurr’s affidavit,
which they ought not properly to have taken into their consideration
at all, and consequently did not properly exercise the discretion
placed in them, but acted contrary to law.
Lord Sumner :
The respondents conceded that for wages fixed mala fide no
exemption from review could be claimed and that the mere magnitude
of the wages paid, relatively to the wages for which the same service
was procurable, might be enough in itself to establish bad faith. This
admission, I am sure, was rightly made, but it leads to tw o conclusions.
Firstly, the final words of the section are not absolute, but are subject
to an implied qualification of good faith—-“ as the board may bona fide
think fit.” Is the implication of good faith all ? That is a qualification
drawn from the general legal doctrine, that persons who hold public
office have a legal responsibility towards those whom they represent—
not merely towards those who vote for th e m ~ to the discharge of
which they must honestly apply their minds. Bona fide here cannot
simply mean that they are not making a profit out o f their ofBce or
acting in it from private spite, nor is bona fide a short way o f saying
that the council has acted within the ambit of its powers and
therefore not contrary to law. It must mean that they are giving
their minds to the comprehension and their wills to the discharge o f
their duty towards that public, whose money and local business they
administer.
...T o my mind a council acts for a collateral purpose, if it fixes

by standards o f its ow n on social grounds a minimum wage for all
adults, and is not in so doing acting for the benefit of the whole
community.
...I think it is plain that the respondents have deliberately decided n ot
to be guided b y ordinary econom ic (and econim ical) considerations....
There is nothing definite about the statement that a public authority
should be a m odel employer. T o whom is it to be a model ? If to
other public authorities, the cou n cil’s resolution is ôx clamantis in
deserto, for other authorities, with rare exceptions, turn a deaf ear to
it. If to oth er private employers, the example o f the council is
necessarily thrown away on concerns, which must make both ends
meet and have not the ratepayers’ purse to draw on. W h a tev er
“having regard to the efficiency o f their w orkpeople” may mean, it is
not proved or suggested that the workpeople employed in Poplar are
in any way exceptional in their powers o f work, or that the cost
o f maintaining a workm an’s efficiency is higher in Poplar than
elsewhere. The one definite thing is that the respondents contend
that no adult em ployee should in any circumstances have less that 4^.
a week, w hether young or old, male or female, married or single,
skilled or unskilled. It is not shown that the wom en’s work is the
same as, or is com parable with, the men’s, or that the women inter se
or the men inter se are engaged in equivalent tasks. I express no
opinion as to the merits of this view, that the dignity o f adult labour
requires at least a 41. wage, nor has the honesty of those who
entertain it been questioned, but I think it is plain that such a course,
whether it be ideal or social or political or all three, forms n o part o f
the conduct, as ordinarily understood, of such practical enterprises as
borough councils are b y statute authorized to engage in....I a m ,’
therefore, o f opinion that on their own showing the respondents have
exercised such discretion as the M etropolis Management A c t gives to
the council in the matter o f wages upon principles w hich are not open
to the council, and for objects which are beyond their powers. Their
exercise of those powers was examinable by the auditor, and on the

above grounds the excess expenditure was liable to he disallow ed by
him as contrary to law .,..
Lord Wrenbury :
M y Lords, the metropolitan borough o f Poplar is a statutory

body in whom is vested a statutory discretion expressed by the
following words in the M etropolis Management A ct, 1855, s. 62...
The council of the borough during the year in review paid

certain wages to their employees. The question in the appeal is not
whether they had a discretion as to the wages they should pay —they
certainly had; it is not whether in the exercise of that discretion, if
exercised within the statutory limits and upon legitimate grounds,
they are to be controlled by the Court or by this H ouse— they
certainly are not. It is not alleged that the council acted mala fide,
neither is it alleged that they were guilty of negHgence or misconduct.
The question is as to what were the limits of their statutory
discretion— whether they exceeded those limits and whether they
acted wholly upon grounds which they were entitled to regard.
For the decision of the appeal the first and essential step is to
ascertain with exactness what are the limits o f the statutory
discretion,...
The cardinal word upon which emphasis is principally to be laid
is the word “ wages.’’ W ages are the pecuniary return for services
rendered. T o determine the proper or true amount which in a given
state of facts has been paid or is payable for services rendered is far
from easy. It can never be determined with exactness. It is impossible
to name in any particular case an amount which if diminished' by Is.
a week would be too small, and if increased by Is. a week w ould be
too large.... Using my best endeavour to state the matter in general
terms, I express it thus;—
Wages in a particular service are such sum as a reasonable
person, guiding himself by an investigation of the current rate in fact
found to be paid in the particular industry, and acting upon the
principle that efficient service is better commanded by paying an
efficient wage, would find to be the proper sum. The figure to be
sought is not the lowest figure at which the service could be obtained,
nor is it the highest figure which a generous employer might, upon
grounds o f philanthropy or generosity, pay out of his own pocket. It
is a figure which is not to be based upon or increased b y motives
o f philanthropy nor even of generosity stripped of cominercial

considerations. It is such figure as is the reasonable pecuniary
equivalent of the service rendered. Anything beyond this is not wages.
It is an addition to wages, and is a gratuity. The authority is to pay
not such sum but such wages as they think fit.
I pass from the word “ wages” to the words “ as [they] may think
fit.’* W e have heard argument upon the question w hether these
words are or are not to be understood as if the w ord “ reasonable’'
or “ reasonably” w ere inserted, so that the sentence would run “ as
they reasonably think fit” or “ such reasonable wages as they may
think fit.” Is the verb “ think” equivalent to “ reasonably think” ? M y
Lords, to my mind there is no difference in the meaning, whether the
w ord “ reasonably’’ or “ reasonable” is in or ou t.... A person in whom
is vested a discretion must exercise his discretion upon reasonable
grounds, A discretion does not empower a man to do what he likes
merely because he is minded to do so—-he must in the exercise of his
discretion do not what he likes but what he ought. In other words,
he must, by use o f his reason, ascertain and follow the course which
reason directs. H e must act reasonably.
Thirdly and lastly, I point to the word "fit.” That w ord means,
I think, “ fitting” or “ suitable.” The words “ as they think fit” do not
mean “ as they choose.” The measure is not the volition of the
person vested with the discretion, it is the suitability or adequacy or
fitness o f the amount in the reasonable judgement o f the person
vested with the discretion.
MUNICIPAL COUNCIL OF SYDNEY v. CAMPBELL

(1925) A.C. 338.
[The appellants had powers under section 16 o f the Sydney

Corporation Am endm ent A ct, 1905, to acquire com pulsorily land
required for the purpose o f making or extending streets, also land for
‘ ‘carrying out improvements in or remodelling any portion o f the
city.” In connection with the extension o f a street, they resolved to
acquire the respondent’s land for the latter purpose. They had
previously been restrained from acquiring the land for the extension,
on the basis that it was n ot really required for that purpose, but that
its purchase was desired because of its probable increase in value. N o
plan for improving or remodelling the area was considered or proposed
and evidence relating to proceedings in the Council revealed that the

appellants were attempting to give a new form to the transaction
already decided upon, rather than considering whether the respondent’s
land was required for improving or rem odelling? ]
Mr. Justice D uff:

Their Lordships think it not reasonably disputable that at the
time o f the passing of the resolution in June, the Council conceived
it to be within its powers to resume lands n ot needed for the
extension itself, but solely for the purpose of appropriating the
betterments arising from the extension; and that, as Street C J.E .
found, the Council had not that time applied itself to the
consideration of any other ob ject in connection with the resumption
o f the residual lands. It is not at all inconsistent with this
that individual members o f the Council may have been actuated
b y some more or less definite expectation tha,t the lands so “ resumed”
would be dealt with not by resale to purchasers, but by leasing them,
and that one advantage, arising from that mode of dealing with them,
would lie in the fact that the Council would thereby retain control
over the use to which the resumed lands might be put.
The legal principles governing the execution o f such powers as
that conferred by s. 16, in so far as presently relevant, are not at all
in controversy. A body such as the Municipal C ouncil o f Sydney,
authorized to take land compulsorily for specified purposes, will not
be permitted to exercise its powers for different purposes, and if it
attempts to do so, the Courts will interfere. A s Lord Loreburn said,
in Marquess o f CJanricarde v. Congested Districts Board^; “ W h eth er it
does so or not is a question o f fact." W here the proceedings o f the
Council are attacked upon this ground, the party impeaching those
proceedings must, of course, prove that the Council, though professing
to exercise its powers for the statutory purpose, is in fact employing
them in furtherance of some ulterior object.
Their Lordships think that the conclusion of the learned C hief
Judge in Equity upon this question o f fact is fully sustained by the
evidence. A s already mentioned, it is admitted that no plan o f
improvement or remodelling was at any time before the Council; and
their Lordships think there is great force in the argument that the
course of the oral discussion, as disclosed in the shorthand note
produced, shows, when the events leading up to the second minute o f
the Lord Mayor are considered, that in N ovember the C ouncil was
6. 79 J. P. 481, “ “
applying itself to the purpose of giving a new form to a transaction

already decided upon, rather than to the consideration and
determination o f the question whether the lands to b e taken were
required for the purpose o f remodelling or improvement. Their
Lordships think the learned Chief Judge was right in his conclusion,
that upon this question there was no real decision or determination
by the Council.
Their Lordships accordingly will humbly advise H is M ajesty that
this appeal should be dismissed with costs.
(a) Improper Purpose
STATE OF BOM BAY v. K. P. KRISHNAN

A.I.R. 1960 S.C. 1223.
[There was a dispute between the Firestone Tyre and R ubber

Co, of India and its workm en with regard to the payment of bonus for
a certain year. A fter considering the failure report o f the conciliation
officer the Government, acting under section 12(5) o f the Industrial
Disputes A ct, 1947, refused to refer the dispute to a tribunal for
adjudication “ for the reason that the workmen resorted to go slow
during the year.”
Section 12(5} reads ;
“ If, on a consideration o f the report [o f the C onciliation officer],
the appropriate G overnm ent is satisfied that there is a case for
reference to a Board, Labour Court, Tribunal or N ational
Tribunal, it may make such reference. W h ere the appropriate
Governm ent does not make such a reference it shall record and
communicate to the parties concerned its reasons therefor,” ]
Gajendragadkar, J , :
It is not disputed that if a party can show that the refusal to refer
a dispute is not bone fide or is based on a consideration o f w holly
irrelevant facts and circumstances a w rit o f mandamus would He.
The order passed by the Government under S. 12(5) may be an
administrative order and the reasons recorded by it may n ot be
justiciable in the sense that their propriety, adequacy or satisfactory
character may n ot b e open to judicial scrutiny; in that sense it would
be correct to say that the court hearing a petition for Mandamus is
not sitting in appeal over the decision o f the G o’êrnment;
nevertheless if the court is satisfied that the reasons given by the
Government fo r refusing to make a reference are extraneous and not
germane then the court can issue, and would be justified in issuing, a
writ of mandamus even in respect of such an administrative order....
That takes us to the real point of dispute betw een the parties,
and that is whether the reason given by the appellant in the present
case for refusing to make a reference is germane or not. The High
Court has held that it is wholly extraneous and it has issued a writ of
mandamus against the appellant. W e have already seen that the only
reason given b y the appellant is that the workmen resorted to go slow
during the year 1952-53. It would appear prima facie from the
communication addressed by the appellant to the respondents that
this was the only reason which weighed with the Governm ent in
declining to refer the dispute under S,12(5), It has been strenuously
urged before us by the appellant and the company that it is com petent
for the Governm ent to consider whether it would be expedient to
refer a dispute o f this kind for adjudication. The argument is that
the A c t is not only to make provision for investigation and settlement
of industrial disputes but also to secure industrial peace so that it may
lead to more production and help national economy. C ooperation
betw een capital and labour as well as sympathetic understanding on
the part o f the capital and discipline on the part of labour are
essential for achieving the main object o f the A ct; and £o it would
not be right to assume that the A ct requires that every dispute must
necessarily be referred to industrial adjudication. It may b e open to
Government to take into account the facts that the respondents
showed lack of discipline in adopting go-slow tactics, and since their
conduct during a substantial part of the relevant year offended
against the standing orders that was a fact which was relevant in
considering whether the present dispute should be referred to
industrial adjudication or not. On the other hand, the H igh C ou rt has
held that the reason given by the Government is wholly extraneous
and its refusal to refer the dispute is plainly punitive in character and
as such is based on considerations which are not all germane to
S, 12(5). This Court has always expressed its disapproval o f breaches
of law either by the employer or b y the employees, and has
emphasised that while the employees may be entitled to agitate for
their legitimate claims it would be wholly wrong on their part to take
recourse to any action which is prohibited by the standing orders or
statutes or which shows wilful lack o f discipline or a concerted spirit
o f non-cooperation with the employer. Even so the question still
remains whether the bare and bald reason given in the order passed
by the appellant can be sustained as being germane or relevant to
SECTION 5] ADMINISTRATIVE DISCRETION 671
the issue between the parties. Though considerations of expediency

cannot be excluded when Government considers whether or not it
should exercise its pow er to make a reference it would n ot be open to
the Government to introduce and rely upon wholly irrelevant or
extraneous considerations under the guise o f expediency. It may for
instance be open to the Government in considering the question of
expediency to enquire whether the dispute raises a claim which is
very stale, or which is opposed to the provisions of the A ct, or is
inconsistent with any agreement betw een the parties, and if the
Government comes to the conclusion that the dispute suffers from
infirmities of this character, it may refuse to make the reference. But
even in dealing with the question as to whether it w ould be expedient
or not to make reference Governm ent must not act in a punitive spirit
but must consider the question fairly and reasonably and take into
account only relevant facts and circumstances. In exercising its pow er
under S. 10(1) it would not be legitimate for the Governm ent for
instance to say that it does not like the appearance, behaviour or
manner of the secretary o f the union, or even that it disapproves of
the political affiliation of the union, which has sponsored the dispute.
Such considerations would be wholly extraneous and must be carefully
excluded in exercising the wide discretion vested in the Goverfiment.
In the present case it is significant that the com pany has voluntarily
paid three months’ bonus for the relevant year notwithstanding the
workmen had adopted go-slow tactics during the year, and the
report of the conciliator would show prima facie that he thought
that respondents’ claim was not at all frivolous. The reasons
communicated by the Governm ent do not show that the Government
was influenced b y any other consideration in refusing to make the
reference. It is further difficult to appreciate how the misconduct of
the respondents on which the decision o f the Government is based
can have any relevance at all in the claim for the classification of the
specified employees which was on the items in dispute. If the work
done by these employees prima facie justified the claim and if as the
conciliator’s report shows the claim was in consonance with the
practice prevailing in other comparable concerns the misconduct of
the respondents cannot be used as a relevant circumstance in refusing
to refer the dispute about classification to industrial adjudication. It
was a claim which would have benefited the employees in future and
the order passed by the appellant deprives them o f that benefit in
future. A n y consideration o f discipline cannot, in our opinion, be
legitimately allowed to impose such a punishment on the employees,
Similarly, even in regard to the claim for bonus, if the respondents are
able to show that the profits earned by the company during the
relevant year compared to the profits earned during the preceding
years justified their demand for additional bonus it would plainly be a
punitive action to refuse to refer such a dispute solely on the ground of
their misconduct.... Besides, in considering the question as to whether a
dispute in regard to bonus should be referred for adjudication or not it
is necessary to bear in mind the well established principles o f industrial
adjudication which govern claims for bonus. A claim for bonus
is based on consideration that by their contribution to the profits o f
the employer the employees are entitled to claim a share in the said
profits, and so any punitive action taken by the Governm ent by
refusing to refer for adjudication an industrial dispute fo r bonus
would, in our opinion, be wholly inconsistent with the ob ject o f the
A ct.... It is clear that the A c t has been passed in order to make
provision for the investigation and settlement of industrial disputes,
and if it appears that in cases falling under S.12(5) the investigation
and settlement of any industrial dispute is prevented by the
appropriate Government by refusing to make a reference on grounds
which are wholly irrelevant and extraneous a case for the issue of a
writ pf mandamus is clearly established....
NOTES
In M/s, F. S. Traders & Exporters v. O. G. EapenJ’ the petitioner

was granted an export Hcence for exporting certain quantity o f cast
iron bearings and turnings. There was a condition in the licence
that the licensee “ shall have to supply 10 tons o f heavy melting scrap
for export for every 100 tons o f turnings and bearings (both steel and
cast iron) to the furnance owner nominated by the Iron and Steel
Controller” . The condition was held to be foreign to the objectives
o f the Imports and Exports (C on trol) A ct, 1947, and the Export
(Control) Order, 1958, under which the licence was issued.
W here land was being accjuired ostensibly for a public purpose

by the Corporation of Culcutta at its expense but really for the
Improvement Trust at the latter’s cost, the Court held *the action of
the Corporation to be illegal and ultra vires, since under the statute
7. A.I.R. 1963 Bom.50.

SECTION 5 ] ADMINISTRATIVE DISCRETION ■ 673
the Corporation could not use its power to enable another body to
acquire land through it.®
“ It must be understood that this rule o f im proper purpose gives

the lie to any suggestion that English law knows tw o types of
discretion, qualified and uncontrolled or absolute discretions. This
rule is essentially an implied maxim of statutory interpretation that
even though a discretion is expressed in unqualified terms the statute
must be taken to read that the discretion must be exercised for the
purposes contem plated by the statute, and what those purposes are
it is for the court to ascertain.”*’
Consider the following situations ; (a) The pow er to build public

lavatories was used by the municipal corporation in such a way as to
provide a subway leading to them and which also could be used to
cross a busy highway, (b ) A n import licence was refused due to
shortage of foreign exchange (authorised purpose) and the fact that
the applicant's certain firms had been declared to be evacuee property
(unauthorised purpose.)^®
(b ) Extraneous Considerations
R. L. ARORA v. STATE OF UTTAR PRADESH

A .I .R . 1962 S. C. 764.
[Certain lands were acquired by the government under the Land

A cquisition A ct, 1894, for a private company for the construction of
textile machinery parts factory. The owner o f the land challenged
the validity of the acquisition. Section 6 is in these terms :
“ (1) ; Subject to the provisions of Part V II of the A c t when the
appropriate Government is satisfied, after considering the report,
if any, made under S. 5 A , sub-section (2), that any particular
land is needed for a public purpose, or for a company a declaration
shall be made to that effect under the signature o f a Secretary
to such Governm ent or o f some officer duly authorised to certify
its orders :
Provided that no such declaration shall be made unless the
compensation to b e awarded for such pro.perty is to b e paid
b y a Company, or wholly or partly out o f public revenues or
some fund controlled or managed b y a local authority.
8. In re Manick Chand Mahatma, (1921) 48 Cal. 916.
9. Griffith and Street, Principles o f Administrative Law, 230 (1963),
10. See infra, and de Smith, Judicial Review o f Administrative Action 194-7 (1959),
674 INDIAN ADMINISTARTIVE LAW [ CHAPTER 8
(2) ^ *
(3 ) The said declaration shall be conclusive evidence that the

land is needed for a public purpose or for a com pany as the case
may be; and, after making such declaration, the appropriate
Government may acquire the land in manner hereinafter
appearing” .
W h ere however land is to be acquired for a company no notification

under S. 6 can be issued till the provisions of Part V II of the A ct
are com plied with, for action under S. 6 for acquiring land for a
company is subject to the provisions of Part V II. This is made
further clear by S. 39 which lays down that
“ the provisions o f sections 6 to 37 (both inclusive) shall n o t be
put in force in order to acquire land for any Com pany, unless
with the previous consent o f the appropriate Governm ent, nor
unless the Company shall have executed the agreement herein
after mentioned” .]
Wanchoo, J. :
Before therefore the machinery provided for acquisition of land

under Ss. 6 to 37 (both inclusive) of the A c t is put into force for
acquiring land for a company tw o conditions precedent must be
fulfilled, namely, ( i ) the previous consent o f the appropriate
Government has been obtained and ( i i ) an agreement in the terms
of S. 41 has been executed by the com pany....
This takes us to Ss, 40, 41 and 42 of the A ct. Section 40 lays down
when the consent of the appropriate Government can be given.
Section 41 lays down the terms which must be incorporated in the’
agreement. Section 42 then provides that every such agreement
shall be published in the official gazette, and shall thereupon so far
as regards the terms on which the public shall be entitled to use the
work have the same effect as if it had formed part o f the A c t.
N ow S. 40 (1) lays down that such consent shall n ot be given

unless the appropriate government is satisfied either on the report of
the C ollector under S. 5A (2) or by an inquiry held as hereinafter
provided (a) that the purpose o f the acquisition is to obtain land for
the erection o f dwelling houses for workmen em ployed by the
company or for the provision o f amenities directly connected
therewith, or (b) that such acquisition is needed for the construction
o f a work, and that such wprk is likely to prove useful to th e public.
The Government therefore cannot give consent to the acquisition

of land for a company unless it is satisfied about one or the other of
the tw o conditions mentioned in S. 40(1). W e are in the present
case not concerned with cl.(a) o f 5.40(1) and need n ot refer to it
further. The case of the respondents is that the Government was
satisfied as to cl.(b ) of S.40(l) and that is why it gave the consent
required under S.39. The main dispute before us is as to the meaning
to be given to cl.(b) of S.40(l).
W e are of opinion that it is not possible to interpret S .40(l)(b)
in isolation and by itself; it has to be interpreted in the context of
what is provided in S.41 about the agreement to be entered into
between the Government and the company which agreement becomes
a part of the A ct under S.42 so far as regards the terms on which the
public shall be entitled to use the work. N ow S.41 provides that if the
appropriate Government is satisfied that the purpose o f the proposed
acquisition is to obtain land for the erection of dwelling houses for
workmen employed by the company or for the provision of amenities
directly connected therewith or that the proposed acquisition is
needed for the construction o f a work and that such w ork is likely to
prove useful to the public, it shall require the company to enter into
an agreement with it, providing to the satisfaction of the appropriate
Government for the following matters, namely—
(1) the payment to the appropriate Government o f the cost of
the acquisition;
(2) the transfer, on such payment of the land to the company;
(3 ) the terms on which the land shall be held by the company;
(4) where the acquisition is for the purpose o f erecting dwelling
houses or the provision o f amenities connected therewith, the time
within which, the conditions on which and the manner in which the
dwelling houses or amenties shall be erected or provided; and
(5) where the acquisition is for the construction o f any other
work, the time within which and the conditions on which the work
shall be executed and maintained, and the terms on which the public
shall be entitled to use the work.
It will be clear from the above that the fifth term is directly related
to S .4 0(l)(b) and there can be no doubt that in finding out what is
meant by S .4 0 (l)(b ) we naust take into account the fifth in S.41 and
it is only b y reading the two together that it will be possible to find
out the intention o f the legislature when it provided for acquisition of
land for company through the machinery o f the A ct.
It seems to us that it could not b e the intention of the

legislature that the Government should be made a general agent for
companies to acquire lands for them in order that the owners of
companies may be able to carry on their activities for private profit.
If that was the intention of the legislature, it was entirely unnecessary
to provide for the restrictions contained in Ss. 40 and 41 on the
powers of the Government to acquire lands for companies. If we were
to give the wide interpretation contended for on behalf o f the
respondents on the relevant words in Ss. 40 and 41 it would amount
to holding that the legislature intended the Government to be a sort
o f general agent for companies to acquire lands for them so that their
owners may make profits,...
Let us ■••turn to the words of S.40(l)(b), which says that
acquisition should be for some work which is Hkely to prove useful to
the public. N ow if the legislature intended these words to mean that
even where the product of the work is useful to the pubHc, land can
be acquired for the company for that purpose, the legislature could
have easily used the words “ the product o f” before the words ‘'such
w ork ” . The very fact that there is no reference to the w ork in
S ,4 0 (l)(l) shows that when the legislature said that the work should
be likely to prove useful to the public it meant that the work should
b e directly useful to the public through the public being able to use
it instead of being indirectly useful to the public through the public
being able to use its product. W e have no doubt therefore that when
S.4G(l)(b) says that the work should be useful to the public it means
that it should be directly useful to the public which should be able to
make use o f it. This meaning in our opinion is made perfectly clear by
what is provided in the fith term in S.41, Before the machinery o f the
A c t can b e put into operation to acquire land for a company, the
Government has to take an agreement from the company and that
agreement must provide, where acquisition is needed for the
construction of some work and that work is likely to prove useful to
the public, the terms on which the public shall be entitled to use the
work. These words can only mean that the public should have a
right to use the work itself and not the product of it; and it is the
duty of the Government when it takes an agreement under S.41 to see
that the pubhc is so entitled to use the work. T o say that the public
is entitled to use the work because the public can go to the w ork in
the way of business is in our opinion not giving any right to the
pubhc to use the work directly as such. A ll that the agreement has
provided in the present case is that “ the pubhc will have such right
of access and use o f the landyworks herein and before specified as

may be necessary for the transaction of their business with the firm” .
This in our opinion is not what is meant by the words “the terms
on which the pubHc shall be entitled to use the w ork” in the fifth
term o f the agreement as provided in S. 41. Such use for business is
implicit in every business, even if the Government does not acquire
land for it, for no company can carry on for a moment its business
with any profit if it does not allow those with whom it has business to
come to its premises....
Let us now turn to some of the arguments advanced on behalf of

the respondents against the clear intention o f the legislature which
is deducible from the interpretation of the words used in Ss. 40 and 41.
It is urged in the first place that Ss. 40 and 41 b oth provide for the
satisfaction of the Governm ent and it is the Governm ent which has
to be satisfied that the w ork is likely to prove useful to the public
and further that it is the Government which has to be satisfied that
the terms contain a provision as to how the public shall b e entitled
to use the work. It is further urged that as the Governm ent in this
case was satisfied that the works was useful to the public and was
also satisfied as to the terms in the agreement on which the public
shall be entitled to use the works, the court has no further say in the
matter. W e are o f opinion that this argument is entirely fallacious.
It is true that it is for the Governm ent to be satisfied that the work
to be constructed will be useful to the public; it is also true that it is
for the Government to be satisfied that there is a term in the
agreement providing that the public shall be entitled to use the work;
but this does not mean that it is the Government which has the right
to interpret the words used in S. 40 (1) (b) or in the fifth term of the
agreement in S. 41. It is the court which has to interpret what those^
words mean. A fter the court has interpreted these words, it is the
Governm ent which has to carry out the object o f Ss. 40 and 41 to its
satisfaction,. The Governm ent cannot say that Ss- 40 and 41 mean
this and further say that they are satisfied that the meaning they
have given to the relevant words in these sections has been carried
out in the terms o f the agreement provided by them. It is for the
court to say what the words in Ss. 40 and 41 mean though it is for the
Government to decide whether the work is useful to the public and
whether the terms contain provisions for the manner in which the
pubhc shall be entitled to use the w ork. It is only in this latter part
that the Governm ent’s satisfaction comes in and if the Government is
satisfied, that satisfaction may n ot b e open to challenge; but the
satisfaction o f the Government must be based on the meaning

given to the relevant words in Ss. 40 and 41 by the court. The
Government cannot both give meaning to the words and also
say that they are satisfied on the meaning given by them. The
meaning has to be given by the court and it is only thereafter
that the Government’s satisfaction may not be open to challenge
if they have carried out the meaning given to the relevant
words by tlie court. The argument therefore that it is the G overn
ment’s satisfaction which is required b oth by S. 40 and S. 41 is of no
help to the respondents, for it is for the court to say what these words
mean and then see whether the Government are satisfied according
to the meaning given to these words by the court. W e have already
indicated what these words mean and if it plainly appears that the
Government are satisfied as a result o f giving some other meaning
to the words, the satisfaction of the Government is o f no use, for
then they are not satisfied about what they should be satisfied. In
the present case the Government seems to have taken a wrong view
that so long as the product o f the works is useful to the public and so
long as the public is entitled to go upon the works in the way of
business, that is all that is required by the relevant words in Ss. 40
and 41. W e have held that this is not the meaning o f the relevant
words in Ss. 40 and 41 and therefore the Government’s satisfaction on
this meaning cannot be binding and would be worthless.
(c) Refusal to consider relevant considerations

K. M. SHANMUGAM v. S. K. V. S. (P) LTD.
A X R . 1963 S.C. 1625.
[The Regional Transport Authority, Tanjore, called for
applications in respect of the issuing o f a stage carriage permit for the
fe u t e Tanjore-Mannargudi via Vaduvor. Eleven persons applied for
the permit. The Regional Transport Authority, adopting the marking
system prescribed in G.O.Ms. No. 129B (hom e) awarded to the
appellant the highest number of marks, viz., 7 and the first respondent
got only 4 i marks with the result that the appellant was preferred to
to the respondent and a permit was issued to him. The total o f the
said marks secured by each of the two parties was arrived at by
adding the marks given under the following heads :
Viable Unit Workshop Residence Experience Special Total

Circumstances
K. M. S. 4 1 1 i I 7
S .R .V .S . - 1 1 i 41:
Sahba Rao, J . :
It would be seen from the said table of marks that if the 4 marks
secured by the appellant under the first column “ V iable U n it” were
excluded from his total, he would have got only a total o f 3 marks
under the remaining heads and the first respondent would have got
a total o f 4 i marks under the said heads. U nder the said G .O ., as
interpreted by this Court, the marks under the first column, i.e.,
those given under the head "V ia b le U nit” , would be counted only if
other things were equal; that is to say, if the total number o f marks
obtained by the said tw o applicants under Cols. 2 to 5 w ere equal. It
is, therefore, obvious that on the marks given the Regional Transport
A uthority went wrong in issuing a permit in favour o f the appellant,
as he should not have taken into consideration the 4 marks given
under the 1st Column since the tot^l marks secured by him under
Cols. 2 to 5 were less than those secured b y the first respondent.
Aggrieved by the said order, the first respondent preferred an appeal
to the State Transport A ppellate Tribunal, hereinafter called the
A ppellate Tribunal. The said A ppellate Tribunal recast the marks
in respect of the said tw o parties in the follow ing manner :
Special
Viable Unit Workshop Residence Experience Circumstances Total
1 2 3 4 5 6
3
K. M . S. 4 2 1 4 8
S .R . V .S . -- 2 — 1 1 4
It would be seen from the marks given by the A ppellate Tribunal

that the total of the marks secured by the appellant under Cols. 2 to
5 is equal to that secured by the first respondent under the said
columns, each of them securing 4 marks. It was contended before
the A ppellate Tribunal that the first respondent was entitled to some
mark under the column “ Residence or place o f business" on the
ground that it had the places o f business at Tanjore and Mannargudi
and that the Regional Transport A uthority had given one mark to
the first respondent under the said column; but the A pppellate
Tribunal rejected that contention on the ground that the first
respondent had a branch office at Kumbakonam and, therefore, the
office at Tanjore or Mannargudi could not b e treated as a branch
office. Aggrieved b y that order, the first respondent filed a petition
before the High C ou rt under A rt. 226 of the Constitution for setting
aside that order. Ramachandra Iyer, J., w ho heard the said
application allowed it..,.
...The Letters Patent appeal filed by the appellant was heard by a

division Bench consisting of Anatanarayanan and Venkatadri, JJ.
The learned Judges dismissed the appeal and the reason o f their
decision is found in the following remarks :
“ In essence, the Judgment really proceeds on the basis that with
regard to the claim of the respondent to some valuation under
C o l 3, arising from the existence o f an alleged branch office
at Mannargudi there has been no judicial disposal of the claim .
They also ob serv ed :

“ The Tribunal is, of course, at liberty to adopt its ow n criteria
for the valuation under Col. 2, provided they are consistently
applied, and based upon some principle.’'
In dismissing the appeal the learned Judges concluded :

‘■...W e desire to make it clear that we are n ot in any way
fettering the discretion of the State Transport A ppellate
Tribunal to arrive at its own conclusion on the claims of the
tw o parties irrespective of any observations that might have
been incidentally made by this Court on those claims.”
The appellant has preferred the present appeal by special leave
against the said order.
It will be seen from the aforesaid narration o f facts that the
H igh Court issued the writ as it was satisfied that there was a clear
error apparent on the fa c 2 of the record, namely, that the Appellate
Tribunal refused to take into consideration the existence o f the
branch office at Mannargudi for awarding marks under the head
“ residence” on the ground that there was another o&.ce o f the first
respondent at Kumbakonam. W hile it gave marks to the appellant
for his residence, it refused to give marks to the first respondent for
its office on the aforesaid ground.
The only question, therefore, is where the State Transport

Appellate Tribunal committed an error of law apparent on the face
o f the record. A look at the provisions of S. 47 and S. 43 o f the
M otor Vehicles A ct, 1939, as amended by the Madras Legislature,
will facilitate the appreciation of the problem. U nder S. 47, a
Regional Transport Authority in considering an application for a
stage carriage permit is enjoined to have regard, inter alia, to the
interests of the public generally. Section 43-A, introduced by the
Madras Legislature by the M otor Vehicles (Madras Am endm ent)
A ct, 1948, says that the State Government may issue such orders
and directions o f a general character as it may consider necessary in

respect of any matter relevant to road transport to the State
Transport A uthority or to a Regional Transport A u th ority and
such Transport Authority shall give effect to all such orders and
directions. It has been held by this Court in ^ I s . Raman and Raman
Ltd. V. The State o f M adras.,,A. I. R. 1959 S. C. 694 that S. 43-A
conferred a power on the State Government to issue administrative
directions, and that any direction issued thereunder was not a law
regulating rights of parties- It was also pointed out that the order
made and the directions issued under S. 43-A of the A c t cannot
obviously add to, or substract from, the consideration prescribed
under S. 47 thereof on the basis of which the tribunal is em powered
to issue or refuse to issue a permit, as the case may be. It is,
therefore, clear that any direction given under S. 4 3 -A for the
purpose of considering conflicting claims for a permit b y applicants
can only be to enable the Regional Transport A u thority to discharge
its duties under S. 47 of the A c t more satisfactorily, efficiently and
impartially. T o put it differently the directions so given cannot
enlarge or restrict the jurisdiction of the said tribunal or authority
but only offered a reasonable guide for exercising the said
jurisdiction. C oncretely stated, an applicant in advancing his claim
for a permit may place before the A u th ority an important
circumstance in his favour, namely, that he has a branch office on the
route in respect w hereof he seeks for a permit. H e may contend
that he has an office on the route, and that the interests o f the public
will be better served, as the necessary amenities or help to meet any
eventuality in the course o f a trip will be within his easy reach.
The Governm ent also under S. 43-A may issue instructions to the
Regional Transport A uthority th at the existence o f an office o f a,,
particular applicant on the route would b e in the interests o f the
public and, therefore, the said applicant should be given a
a preferential treatm ent if other things are equal. The issue of
such an instruction only emphasizes a relevant fact which an
authority has to take into consideration even if such an instruction
was not given. But if the A uthority under a manifest error o f law
ignores the said relevant consideration, it not only disobeys the
administrative directions given by the Government, but also
transgrsses the provisions o f S. 47 of the A ct. The disobedience of
the instructions which are administrative in nature may not afford a
cause o f action to an aggrieved party, but the transgression o f the
statutory law certainly does. W h a t is the position in the present case ?
Tlie G overnm ent issued G* 0 . N o. 1298 (H om e), dated A pril 28,

1956, introducing marking system for assessing the merits of applicants
for stage carriage permits. Column 3 read thus :
“ Location o f residence or place o f business o f the applicant on
the route or at the term inal: This qualification not only is in
favour o f local enterprise but also secures that the ow n er will
pay prom pt and frequent attention to the service entrusted to
him. One mark may b e assigned to this qualification.”
U nder this instruction the location of the residence o f the place of
business is considered to be in the interests of the public, fo r whose
benefit the service is entrusted to a permit-holder. The first
respondent contended before the Regional Transport A u th ority that
he had branch offices at Tanjore and Mannargudi and therefore that
fact should be taken into consideration and a mark should be given
to him thereunder. The Regional Transport A uthority gave one
mark to the appellant and also one mark to the first respondent
under that column. But the Appellate Tribunal refused to give
any mark under that column to the first respondent for the follow ing
rea son s:
“ On behalf of the other appellants and the respondent it is
contended that appellant N o. 1 (1st respondent before the
Supreme C ourt) is a Private Ltd. Company having its registered
office at Madras, that their office at Kumbakonam is only branch
office, that the offices if any at Tanjore or at Mannargudi cannot
be treated as branch offices, and that, as such they are not
entitled to any mark in column 3 of the mark list. This contention
is a valid one."’
In regard to the Tanjore office the said Appellate Tribunal has
given an additional reason by holding on the facts that it was not an
office at all. W e can, therefore, ignore the Tanjore office for the
purpose of this appeal. So far as the Mannargudi office is concerned,
the decision of the Appellate Tribunal was based upon an obvious
error. It took the view that if a company had a branch office at one
particular place, it could not have in law any other branch office
though it had one in fact. W hatever conflict there may be, on ■which
we do not express any opinion, in a tax law or the company law, in the
context of the marking system and the evaluation of an amenity in the
interest of the public it is obviously an untenable proposition to hold
that even if a company has a well equipped office on. a route in
respect of which a permit is applied for, it shall be ignored if the
com pany has some other branch somewhere unconnected with that
route. That was what the A ppellate Tribunal held and in our view
it is an error apparent on the face of the record. On the erroneous
view, the Appellate Tribunal did not decide the relevant question
raised, namely, whether the respondent has any such office at
Mannargudi. Both Ramchandra Iyer, J. at the first instance, and
Anantanarayanan and Venkatadri, JJ., in appeal, rightly pointed out
this error. A s this is an error apparent on the face o f the record,
they quashed the order of the Appellate Tribunal and left the
question open for decision by it. In our view, the conclusion arrived
at by the High C ourt is correct. A s we have already indicated, on
the basis o f an error manifest on the record, namely, that a com pany
cannot have a branch office on the route in question, if it has another
branch elsewhere, it refused to take into consideration a relevant
fact, namely, whether the respondent has an office on the said route.
The High Court, therefore, was right in quashing the order o f the
A ppellate Tribunal and giving an opportunity to the Tribunal to
decide that question on merits.
In the result, the appeal fails....
NOTES
In both the A rora and the Shanmugam cases, whether the
administrative authority acted on extraneous considerations or did not
consider relevant considerations depended upon the interpretation o f
a wide and flexible con cept contained in the statute ( “ public purpose"
in one case and “ public interest’ ' in the other). In the former case,
the function of the governm ent in giving or withholding consent was
administrative (though the C ourt did not say so) and the C ou rt did
not stop to find whether it was a jurisdictional eror or an error o f law.
This is in line with the general approach of the English cases. A s de
Smith has stated, in a number of cases
“ mandamus has been issued to bodies which have in fact exercised
their jurisdiction or discretionary powers but have exercised
them improperly. A body that has exercised its powers
capriciously or on irrelevant grounds is deemed n ot to have
exercised them at all."^^
11. Judicial Review o f Administrative Action 2Q6 {\9S9). See also, Griffith and
Street, Principles o f Administrative Law (1963), They slate; “ Although the courts
frequently say that erroneous interpretation of a statute is not an excess of jurisdiction,
they will always interpret statute to find what are the relevant considerations implied
by it and quash only if these are not taken into account” , at 233, Sec also 244-5, id.
These cases equate abuse o f discretion with jurisdictional error, for

mandamus does not lie for error o f law. In the Shanmugam case on
the other hand, the Court assumed the function o f the transport
authority as quasi-judicial and it regarded abuse of p ow er (omitting a
relevant consideration) as an error of law apparent on the face of
the record, de Smith observes with regard to the issue o f certiorari in
case of discretionary power :
“ The taking of irrelevant considerations into account and the

disregard of relevant considerations are now to be regarded as
jurisdictional error...redressible b y certiorari, and not as errors
of law falling within the area of a tribunal’s jurisdiction.” ^^
In the following cases, administrative orders were quashed because

the authority concerned took into account extraneous considerations :
Anant Prasad v. State o f A, Sodhi Sliamsher Singh v. State o f Pepsu;'^^
Makhan Singh v. State o f Punjab K. Md. Khassim v. Municipal Council}^
la Servantilal v. V. D. Dalvi}'^ the post-master had refused to

register the petitioner’s periodical as a newspaper on the ground that
the material contained in it did not have 50% or more o f news or
articles, though under the statute as interpreted by the court there
was no such restriction as to percentage of news or articles. T he court
recognised that the question of registration was left to the discretion
of the Post Master General and held that though his decision was
erroneous, it did not entitle the court to interfere with his decision.
D o you agree with this approach ?
Consequent to the Arora case, the Land Acquisition A c t, 1894, was

amended. The amendment empowered the Government to give consent
for the acquisition of land if such acquisition was “ needed fo r the
construction of some building or work for a company which is engaged
or is taking steps for engaging itself in any industry or work, w hich is
for a pubhc purpose.'’ The purpose for which the land was acquired
in the Arora case thus became an authorised purpose. The acquisition
o f the land in question was again challenged in the second Arora case,
12. Id. at 210. For a Comment on the Arora and the Sh&nmugam cases, see S.N.
Jain, “Abuse of Discretion - Scope of Judicial Review To Correct Errors o f Law
Through Mandamus and Certiorary.” 6 J.IL.L 816 (1964).
13. A.I.R. 1963 S.C. 853.
14. A.I.R. 1954 S.C. 276.
15. A.I.R. 1964 S.C. 1120.
16. A.I.R. 1956 Mad, 181.
17. A.I.R. 1961 Bom. 105.
R. L. A rora v. State o f U.P,^® The argument, inter alia, was that the
petitioner himself intended to erect a factory on the land and thus
the land which was intended to be used for one public purpose should
not be acquired for another public purpose. The Supreme Court
refused to interfere holding that whether the land should b e acquired
or not for the specific use in question was for the Government to
decide, so long as the purpose was an authorised one.
(d) Order based on both relevant and irrelevant considerations
SHIBBANLAL v. STATE OF U. P.
A. I. R, 1954 S. C. 179.
(T he facts of the case are sufficiently clear in the judgment.)
Mukherjea, J . :
The petitioner was arrested on the 5th o f January, 1953 under an

order, signed by the D istrict Magistrate of Gorakhpur, and the order
expressly directed the detention o f the petitioner in the custody o f
the Superintendent, District Jail, Gorakhpur, under sub-clauses (ii)
and (iii) of c l (a) o f section 3(1) o f the Preventive D etention A ct,
1950, as amended by latter A cts. O n the 7th o f January following the
grounds o f detention were communicated to the detenue in accordance
with the provision o f section 7 o f the Preventive Detentive A c t and
the grounds, it appears, were o f a tw o-fold character, falling respectively
under the two categories contemplated by sub-clause (ii) andsub-clause
(iii) o f section 3 (l)(a ) of the A ct.
In the first paragraph of the communication it is stated that the
detenue in course o f speeches delivered at Ghugli on certain dates
exhorted and enjoined upon the cane-growers o f that area not to
supply sugarcane to the sugar mills or even to withhold supplies from
them and thereby interfered with the maintenance of supply of
sugarcane essential to the community. The other ground specified in
paragraph 2 is to the ejEfect that by using expressions, some of which
were quoted underneath the paragraph, the petitioner incited the
cane-growers and the public to violence against estabHshed authority
and to defiance o f lawful orders and directions issued by Government
officers and thereby seriously prejudiced the maintenance of public
order.
The petitioner submitted his representation against the detention
order on the 3rd o f February 1953 and his case was considered by the
18. AJ.R. 1964 S .C 1230.
A dvisory Board constituted under section 8 of the P.D. A c t at its

sitting at Lucknow on the 23rd February following. T he Advisory
Board gave a hearing to the petitioner in person and after it had
submitted its report, a communication was addressed on behalf o f the
U. P. Government to the petitioner on the 13th March, 1953 informing
him that the Government, in exercise of the powers under section
11 o f the P.D. A ct, had confirmed the detention order against him
under sub-clause (ii) o f section 3 (1) (a) of the A c t and sanctioned
the continuation of his detention until further order, or up to a period
of 12 months from the date of detention.
The second paragraph of this communication runs as follow s :—
“ The detenue may please be inoformed that the A dvisory Board
did not uphold his detention under sub-clause (iii) o f clause
(a) of sub-section (1) of section 3 of the Preventive Detention
A ct. Government have therefore revoked his detention under
the clause.”
The petitioner has now come up before us with an application
under Article 32 of the Constitution and (the counsel for the
petitioner) has challenged the legality of the detention order made
against his client substantially on two grounds.
It is argued in the first place that from the grounds served
upon the petitioner under section 7 of the P.D. A ct, it appears clear
that the grounds which weighed with the detaining authority in
depriving the petitioner of his liberty are that his activities were in
the first place prejudicial to the maintenance of supplies essential to
the community and in the second place were injurious to the
maintenance of public order. From the communication dated the
13th of March, 1953 addressed to the petitioner, it appears, however,
that the first ground did not exist as a fact and actually the U.P.
Government purported to revoke the detention order under sub
clause (iii) of section 3(1) (a) of the P.D, A ct. In these circumstances,
it is contended that the detention order originally made cannot stand,
for if the detaining authority proceeded on tw o grounds to detain a
man and one of them is admitted to be non-existent or irrelevant, the
whole order is vitiated as no one can say to what extent the bad
ground operated on the mind o f the detaining authority....
The....contention raised by the learned counsel raises, however,

a somewhat important point which requires careful consideration. It
has been repeatedly held by this court that the power to issue a
detention order under section 3 of the Preventive D etention A c t
depends entirely upon the satisfaction o f the appropriate authority

specified in that section. The sufficiency o f the grounds upon which
such satisfaction purports to be based, provided they have a rational
probative value and are not extraneous to the scope or purpose o f
the legislative provision, cannot be challenged in a court of law, except
on the ground o f ‘mala fides’. ‘V ide The State o f Bombay v. Atma Ram%
A IR 1951 Supreme Court 157 . . . A C ou rt of law is not even
com petent to enquire into the truth or otherw ise o f the facts which
are mentioned as grounds of detention in the com m unication to the
detenue under section 7 o f the A ct. W h a t has happened, however,
in this case is somewhat peculiar.
The Government itself in its communication dated the 13th o f
March, 1953 has plainly admitted that one o f the grounds upon which
the original order o f detention was passed is unsubstantial or non
existent and cannot be made a ground o f detention. T he question is,
whether in such circumstances the original order made under section
3 (1) (a) of the A c t can be allowed to stand. T he answer, in our
opinion, can only be in the negative. The detaining authority gave
here two grounds for detaining the petitioner. W e can neither decide
whether these grounds are good or bad, nor can we attempt to assess
in what manner and to what extent each of these grounds operated
on the mind o f the appropriate authority and contributed to the
creation of the satisfaction on the basis of which the detention order
was made.
T o say that the other ground, which still remains, is quite sufficient
to sustain the order, would be to substitute an objective judicial test
for the subjective decision o f the executive authority which is against
the legislative p olicy underlying the statute. In such cases, we think,
the position would be the same as if one of these tw o grounds was
irrelevant for the purpose o f the A c t or was wholly illusory and this
would vitiate the detention order as a w hole. This principle, which
was recognised by the Federal Court in the case oi-'^Keshav Talpade
V. Emperor’, A IR 1943 FC 72 .. seems to us to be quite sound and
applicable to the facts o f this case.
W e declare to point ou t that the order which the Government
purported to make in this case under S. 11 of the P. D. A c t is not one
in conform ity with the provision o f that section. Section 11 lays
down what action the Governm ent is to take after the A dvisory Board
has submitted its report. If in the opinion o f the Board there is
sufficient reason for the detention o f a person, the Government may
confirm the detention order and continue the detention for such period
as it thinks pioper. On the other hand, if the Advisory Board is of

opinion that there is no sufficient reason for the detention of the
person concerned, the Government is in duty bound to revoke the
detention order.
W h at the Government has done in this case is to confirm the
detention order and at the same time to revoke it under one of sub
clauses of section 3 (1) (a) of tlie A ct. This is not what the section
contemplates. The Government could either confirm the order of
detention made under section 3 or revoke it completely and there is
nothing in law which prevents the Government from making a fresh
order of detention if it so chooses. As matters stand, we have no
other alternative but to hold that the order made on the 5th of
January, 1953 under section 3 (1) (a) of the Preventive Detention A ct
is bad in law and the detention of the petitioner is consequently illegal.
The application is allowed and the petitioner is directed to be set at
liberty.
NOTES
A similar problem arose in Dwarka Das v. State o f J & Here

the detention order was based on both relevant and irrelevant
considerations. Though the Court quashed the order, it observed :
“ To uphold the validity of such an order in spite of the invalidity of
some of the reasons or grounds would be to substitute the objective
standards of the court for the subjective satisfaction of the statutory
authority. In applying these principles, however, the Court must be
satisfied that the vague or irrelevant grounds are such as, if excluded,
might reasonably have affected the subjective satisfaction o f the
appropriate a u t h o r i t y . D o e s not the last statement leave the matter
to conjecture on the part of the Court ?
D. I. R. DETENUE FREED BY SUPREME COURT

Statesman, December 18,1965,
(From Our Legal Correspondent)
Jagannath Misra, an alleged member o f the Pro-Peking faction

of the Communist Party, who was detained under the Defence o f
19. A.I.R. 1957 S.C. 164.
20. Id. at 168.
SECTION 5 7 ADMINISTRATIVE DISCRETION 689
India Rules by the Governm ent o f Orissa, was released by the

Supreme C ourt and his habeas corpus petition against the State was
allowed on Friday.
Mr. Justice W an ch oo, giving the judgment, said that the detention
order recited that the petitioner was detained on six different grounds.
The affidavit filed by the H om e Minister, w ho ordered the detention
however mentioned only two grounds. There was little doubt
therefore that the H om e M inister did not apply his mind properly to
the case before passing the order.
Such a discrepancy betw een the grounds mentioned in the order
and the grounds stated in the affidavit o f the authority concerned
only showed casualness in the passing of the order. This casualness
also indicated that the mind of the authority was really not applied
to the question. There was therefore non-com pliance with the
requirements o f the law under which the petitioner was detained and
the order was illegal.
ORISSA ORDER
The petitioner was detained by an order of the Governm ent of

Orissa. The order stated that it was necessary to detain him so as to
prevent him from acting prejudicially to the defence o f India, the
maintenance o f public order, the efficient conduct of military
operations and other grounds. The petitioner said that in making the
order the M inister had not applied his mind to the case and as such
the order was bad.
In reply, the affidavit o f the H om e Minister was filed. It stated
that the H om e Minister had received reports that the petitioner
belonged to the pro-Peking faction o f the Communist Party and the
M inister had satisfied himself that his detention was necessary for
reasons connected with the safety of India and the maintenance of
public order.
The Court observed that the order o f detention deprived a
citizen of his liberty. It seemed necessary that where such an order
was made the authority concerned with it should act with a full sense
o f responsibility keeping in mind on the one hand the interests o f the
country and on the other hand, the im portance o f the liberty o f the
citizen in a dem ocratic society.
SPECIFIC GROUNDS
It was incumbent on the authority passing the order that it should
act with due care and see that a citizen was detained only on grounds
which justified his detention in the larger interests o f the country.

The order should show that the authority had acted with due care and
satisfied itself that the detention was necessary in relation to the
specific ground upon which the order was made.
In this case, the order mentioned a large number o f grounds, hut
the affidavit showed that the authority applied its mind only to two
o f those grounds. Therefore, there was no doubt that the order was
passed without considering the real necessity of the detention.
It was urged by the State that the Minister was not responsible
for the discrepancy because the order was prepared by a subordinate
officer. Such an explanation could not be accepted as it was the duty
of the Minister to see that the order was issued in accordance with
his satisfaction. Though the Minister might not write the order, he
was as much responsible for it as if he had done so himself. The
Minister could not take refuge by saying that he was really satisfied
about tw o grounds but the person who wrote the order added grounds
which he never had in mind.
(e) Malafides
PAITAP SINGH V. STATE OF PUNJAB

A.I.R. 1964 S.C. 72.
[The appellant was a Civil Surgeon in the employment o f the

State Government. H e had been granted leave preparatory to
retirement and subsequently, in June 1961, orders were passed by
Government first, revoking the leave he had originally been granted
and recalling him to duty, second, simultaneously placing him under
suspension pending the result of an inquiry into certain charges against
him. The appellant contended, inter alia^ that the orders w ere passed
mala fide, by or at the instance o f the Chief Minister, Punjab, who
was personally hostile to him by reason of certain incidents and
circumstances which he set out and that the impugned orders were
promoted by the desire on the part of Chief Minister to wreak
personally his vengeance on the appellant.]
Ayyangar, J .:
[This] may be viewed from tw o related aspects of ultra vires pure

and simple and secondly as an infraction o f the rule that every power
vested in a public body or authority has to be used honestly, bona fide
and reasonably, chough the two often slide into each other. Thus Sir
Lyman Duff, speaking (in Municipal Council o f Sydney v. Campbell
1925 A .C . 338 at p. 343) in the context o f an allegation that the

statutory power vested in a municipal coporation to acquire property
had been used in bad faith which was held to have been proved,
s ta te d :
“ A body such as the Municipal C ouncil o f Sydney, authorised to
take land com pulsorily for specified purposes, will n ot be permitted to
exercise its powers for different purposes, and if it attempts to do so,
the Courts will interfere. A s L ord Loreburn said, in Clanrkard
Marquess v. Congested Districts Board o f Ireland (1941) 79 J. P. 481 ;
“ W h ether it does so or not is question o f f a c t /' W h ere the
proceedings of the Council are attacked upon this ground, the party
impeaching those proceedings must, of course, prove that the Council,
though professing to exercise its powers for the statutory purpose, is
in fact employing them in furtherance of some ulterior o b je ct.”
Similarly, in Short v. Poole Corporation, 1926 Ch. 66 at p. 85
Pollack M . R. observed :
“ The appellants (represented before the C ourt by Maugham
K. C.— afterwards L ord M augham) do n ot contest the proposition
that where an authority is constituted under statute to carry out
statutory powers with which it is entrusted...If an attem pt is made
to exercise those pow ers corruptly-as under the influence o f bribery,
or mala fides-for some im proper purpose, such an attem pt must fail.
It is null and void : see Reg v. Governors o f Darlington School (1844) ^
Q . B. 682 at p. 715".
In the same case W arrington L. J. said ;
“ N o public body can be regarded as having statutory authority to
act in bad faith or from corrupt motives, and any action purporting
to be that o f the body, but proved to be com m itted in bad faith or
from corrupt motives, w ould certainly be held to b e inoperative.
It may be also possible to prove that an act o f the public body,
though performed in good faith and without the taint o f corruption,
was so clearly founded on alien and irrelevant grounds as to be
outside the authority conferred upon the body, and therefore
inoperative. It is difficult to suggest any act which w ould be held
ultra vires under this head though perform ed bona fide.” (V ide
pages 90-91).
It was really the first aspect o f ultra vires as was stressed b y Lord
Parker when in Vatcher v, Pauli, 1915 A .C . 372 at p. 378 o f the report
he spoke o f a pow er exercised for a purpose or with an intention
beyond the scope o f or not justified b y the instrument creating the
power. In legal parlance it would he a case of a fraud on a pow er

tliougK no corrupt m otive or bargain is imputed. In this sense, if it
could be shown that an authority exercising a power has taken into
account — it may even b e bona fide and with the best of intentions,
as a relevant factor something which it could not properly take into
account, in deciding whether or not to exercise the pow er or the
manner or extent to which it should be exercised, the exercise o f the
power would be bad. Sometimes Courts are confronted with cases
where the purposes sought to be achieved are mixed — some relevant
and some alien to the purpose. The courts have, on occasions,
resolved the difficulty by finding out the dominant purpose which
impelled action and where the power itself is conditioned by a purpose,
have proceeded to invaHdate the exercise of the power when any
irrelevant purpose is proved to have entered the mind o f the authority
(See Sadler v. Sheffield Corporation, 1924-lCh. 483 as also Lord Denning
observed in Fitzwilliam’s (Earl) Wentworth Estate Co. v. Minister o f
Town and Country Planning, 1951-2K. B. 284 at p. 307). This is on the
principle that if in such a situation the dominant purpose is unlawful
then the act itself is unlawful and it is not cured by saying that they
had another purpose which was lawful.
As we said earlier, the two grounds of ultra vires and mala fide
are thus most often inextricably mixed. Treating it as a question of
ultra vires, the question is what is the nature of the pow er which has
been granted to achieve a definite object in which case, it w ould be
cofiditioned by the purpose for which it is vested. Taking the present
case of the power vested in Government to pass the impugned orders,
it could not be doubted that it is vested in Governm ent for
accomplishing a defined public purpose viz., to ensure p rob ity and
purity in the public services by enabling disciplinary penal action
against the members of the service suspected to b e guilty of
misconduct. The nature of the power thus discloses its purpose.
In that context the use o f that power for achieving an alien purpose “
wreaking the minister’s vengeance on the ofEcer-would be mala fide
and a colourable exercise o f that power, and would therefore be
struck down by the Courts. In this connection we might cite a
dictum of Lord Lindley in General Assembly o f Free Church o f Scotland
V. Overtun, 1904 A .C. 515, when the learned Lord said at p. 695:
“ I take it to be clear that there is a condition implied in this as
well as in other instruments which create powers, namely, that the
powers shall be used bona fide for the purposes for which they are
conferred” .
Doubtless, he who seeks to invalidate or nullify any act or order,

must establish the charge of bad faith, an abuse or a misuse by
Government o f its powers. W hile the indirect motive or purpose,
or bad faith or personal 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 in this case,
though this may sometimes be done (See Edington v. Fitzmaurice^
(1884) 29 Ch. D. 459.) The difficulty is not lessened when one has to
establish that a person in the position of a minister apparently acting
in the legitimate exercise of power has in fact, been acting mala fide
in the sense o f pursuing an illegitimate aim. W e must, however,
demur to the suggestion that, mala fide in the sense o f improper
motive should be established only by direct evidence that is that it
must b e discernible from the order impugned or must be shown from
the notings in the file which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion, be deduced as a
reasonable and inescapable inference from proved facts.
Before entering on a discussion of the question whether the
appellant has established that the action o f Governm ent was vitiated
by mala fides, w e consider it pertinent to make few preliminary
observations. In considering the evidence w e have kept in view the
high position which the Chief Minister holds in the State and are
conscious of the fact that the charges of personal nature made against
such a diginitary are not to be lightly accepted. W e have also borne
in mind that charges of personal hostility are easily and very often
made by persons who are subjected to penal or quasi penal proceedings
against those who initiate them, and have therefore made full allowance
for these factors, and we have examined, weighed the evidence with
anxious care. W e w ould only add that the fact that tw o of
our brethren feel differently on this matter has heightened our
responsibility and the care to be bestowed in appreciating the
evidence. The Constitution enshrines and guarantees the rule of law
and A rt. 226 is designed to ensure that each and every authority in
the State, including the Government, acts bona fide and within the
limits of its power and we consider that when a C ourt is satisfied that
there is an abuse or misuse of power and its jurisdiction is invoked,
it is incumbent on the Court to afford justice to the individual. It is
with these considerations in mind that we approach the facts o f this
case.
The allegations in the writ petition field by the appellant on this
matter may be summarised as fo llo w s ;—
(1) The appellant was requested by the Chief Minister to perform

an operation on his son ...in A pril I960- T he operation was performed.
The Chief Minister desired that after the operation his son should
stay under the care o f the appellant at Jullundur during his
convalescence. [The son], however, left the appellant s place and the
Chief Minister became angry for the supposed negligence o f the
appellant in permitting this to happen.
(2 ) The Chief M inister himself and the members o f his family
made several requests to the appellant to show undue favours to
certain patients who w ere recommended to the appellant. These were
complied with, but when subsequently the- appellant refused to
com ply with further requests the Chief Minister turned hostile.
(3) The Chief Minister’s wife had been asking for medicines to be
sent to her by the appellant for the use of herself and her relations
from the hospital stores of Jullundur. The appellant, however, sent
her the medicines, though not from the hospital but buying them
himself in the market. The Chief Minister’s wife also wanted some
expensive articles like Singer Sewing Machines etc., to be sent to her
gratis. This the appellant did but the refusal to com ply with further
demands of the same type angered the Chief Minister.
(4) One Kirpa Singh was working as the manager o f an
automobile concern known as National Motors, Jullundur which was
either directly or indirectly owned by...the son o f the C hief Minister.
The appellant at the instance of the Chief Minister accom modated
Kirpa Singh in his own house and besides provided him with board.
This went on for about 7 months but in or about A pril, 1960 the
appellant desired Kirpa Singh to look out for a lodging and board
elsewhere and the latter had to do so. This was a further cause of
irritation and anger for the Chief Minister.
(5) Several matters recited above were in April, 1960 or there
abouts and as a result of the hostility developed by reason o f these
the appellant was accused, in September 1960, of showing undue
favours to Akali prisoners who were lodged at the D istrict Jail at
Jullundur. This allegation was false and was later n ot pressed.
(6) The Chief Minister desired to have the help o f the appellant
as an expert to instruct the police officers who were conducting the
prosecution in what is known as the Karnal Murder case. The
appellant had given some sort of assurance to the Chief Minister that
the prosecution would succeed. It failed before the Sessions Judge
and subsequently the appeal by the State was dismissed by the High
Court o f Punjab and finally an application for special leave was

dismissed by this Court. The Chief M inister becam e very angry
with the appellant because the assurance given to him that the
prosecution w ould succeed had been belied and the C hief Minister
felt chagrined at the rusult.
(7 ) One Dr. Dhillon w ho was a Junior M edical Officer in the

Punjab M edical Service accompanied the C hief M inister as a
medical attendant in 1956— 57. Under the rules the C h ief Minister
was not entitled to this type of medical attention. There was some
dispute as regards the salary payable to Dr. D hillon during the
period when he was with the Chief Minister. The appellant was
requested to give a false certificate regarding the services of Dr,
Dhillon. The C hief M inister complained that though several years
had passed, D hillon’s salary for the 45 days that he had been with the
Chief Minister had not yet been paid to him. T he appellant refused
to comply with this demand and this was a further source o f irritation
and hostility.
The appellant’s further case is that as a result o f these incidents

or sources of irritation and displeasure o f the Chief Minister, the
Chief Minister wrs thinking o f taking some steps against him and that
he got a com plaint against him on O ctob er 29, 1960 which he sent
up for investigation. T he charge then made against the appellant
was that on July 5, 1960 he had refused to examine a wom an patient
w ho had com e to the hospital with an ou tdoor chit and that the
husband of the woman was forced to pay a sum o f Rs, 16/-for her
examination at his residence. On the excuse that this com plaint had
been made, the appellant was transferred from Jullundur to Amritsar
by an order dated D ecem ber 6,1960. It was stated by the appellant
that in the State officers were usually transferred only during the
months M arch or A pril, so that the education o f their children etc.
might not be interrupted b y the change o f station, but that his
transfer in D ecem ber was therefore out o f the ordinary and done
with a view to inconvenience and humiliate him and deprive him o f his
practice at Jullundur. The appellant thus having realised the hostility
o f the Chief Minister and not desiring to continue much longer in
service, made an application for leave preparatory to retirement.
H e was reaching the age o f 55 on June, 1961 and he applied for leave
until that period. H is leave was sanctioned with effect from
Decem ber 18, 1960 and this was gazetted on January 27, 1961. It is
this leave that was revoked b y the impugned orders on June 3, 1961
and under these the appellant was placed under suspension and an
inquiry was started later in the matter. ,
Between these tw o dates - i. e„ betw een D ecem ber 1960 and June
1961, however, some events happened which are set out in the
petition and require to b e stated. It would be seen that when the
leave preparatory to retirement which was applied for was sanctioned,
the Government had already with them the com plaint made on
O ctober 29, 1960 relating to the charge that the appellant had
improperly demanded a sum of Rs. 16/~ from a patient desiring
treatment at the Jullundur hospital. That related to an incident of
July, 1960 and was apparently not thought to be serious enough to
justify the refusal of the leave applied for. But after the leave
was sanctioned, in the issue of the weekly newspaper Blitz dated
January 15, 1961 there appeared an article in which allegations were
made against the Chief Minister. Several of the allegations were
those which we have mentioned earlier as having been made by the
appellant in his petition and stated to be the reasons fo r the hostility
o f the Chief Minister. The appellant however was n ot named as
such in the article. It must however have been apparent to those
acquainted with the matter that it was the appellant from whom these
favours were sought or obtained by the Chief Minister. It is the case
of the appellant that the Chief Minister who was in Delhi at that
time must have been apprised of the contents of the article even on
January 13, and this does not seem improbable because it is common
knowledge that copies of this weekly are available in Delhi even tw o
days before the date it bears. In the absence of any affidavit from
the Chief Minister, and there is none on the record, it is not possible
to say whether the article in the weekly was or was not seen b y him
on the 13th. On that day— January 13,1961 however, the Inspector
(Vigilance), Jullundur addressed a communication to the appellant
enquiring whether the appellant who had by then gone to Kanpur
(it is to be remembered he was then on leave) w ould com e to
Jullundur for clarifying certain points in relation to an inquiry
which had been ordered by the Punjab Government. It is stated that
this was in connection with the complaint regarding the improper
receipt o f Rs. 16/- from a patient who had come to the hospital for
treatment in July, 1960. ;The Vigilance Inspector made some
inquiries of the appellant and examined the records at the hospital
in February, 1961. On March 18, 1961 the appellant’s w ife w rote a
letter to the ‘Blitz’ confirming the allegations against the C hief
Minister which had already appeared in that paper in its issue of
January 15, 1961 and in the same m onth-M arch 1961 th e appellant’s
wife circulated to M em bers o f Parliament and others the details
o f the allegations found in the newspaper. It is the case o f the appellant
that these matters occasioned the hostility o f the Chief Minister and
that the impugned orders passed in June 1961 were passed n ot bona
fide for the purpose o f conducting an inquiry into his conduct but
to harass and humiliate him and thus wreak vengeance on him for the
part that he played in bringing down the reputation o f the Chief
Minister by the disclosures. A s we observed earlier, if the appellant
is able to establish that the main ob ject and propose o f the initiation
o f the inquiry was not in the interest of the Service or to ascertain
any misconduct on the part o f the appellant, but that the dominant
motive and purpose was the harassment and humiliation of the
appellant for his refusal to yield to the demands of the Chief Minister
or the members o f his family at some stage, and in defaming him
openly at the later stage, it would clearly be a case of mala fides and
the impugned orders have to be set aside,
[A fter analysing the evidence, the C ourt reached the following
conclusion.] In the circumstances we are satisfied that dominant
m otive which induced the Governm ent to take action against the
appellant was n ot to take disciplinary proceedings against him for
misconduct w hich it bona fide believed he had com mitted, but to
wreak vengeance on him for incurring his wrath and for the discredit
that he had brought on the Chief Minister by the allegations that he
had made in the article which appeared in the Blitz in its issue dated
January 15, 1961 follow ed by the com m unication to the same
newspaper b y the appellant’s wife, in which these allegations were
affirmed and which in large part we have found to b e true. We
therefore hold that the impugned orders were vitiated by mala
fides, in that they were motivated by an im proper purpose which was
outside that for which the power or discretion was conferred on
Government and the said orders should therefore be set aside.
NOTES
Rowjee v. State o f Andhra Pradesh^^ provides another illustration of
mala fides vitiating an order made by an authority which possessed
21. A.I.R. 1964 S.C. 962 : for a comment on the Rowjee case see Alice Jacob,
*'C.S. Rowjee v. State of Andhra pradesh - Administrative Law -- Bias or Mala fides of
Administrative Authorities” , 6 JJ.L.I. 489-94 (1964).
wide discretion. This time it was the Chief M inister of Andhra

Pradesh. Certain schemes for nationalising m otor routes were
published by the Andhra Pradesh State Road Transport Corporation
under the M otor Vehicles A ct, 1939. The Schemes were confirmed
b y the Transport Minister after hearing objections from the affected
persons. Against the validity o f the Schemes it was alleged that it did
not reflect the opinion o f the Corporation that “it was necessary in the
public interest that the R oad Transport Service in the area over the
route, specified in the schemes, should be run and operated by the
State Transport undertaking” , but the Schemes ow ed their origin to
the direction of the Chief Minister who acted mala fide in directing
the Corporation to frame the Scheme. The details of the mala fides
were that the particular routes- were selected for nationalisation on
account of the Chief Minister wreaking vengeance on his political
opponents who were private operators on these routes. In the
absence o f the affidavit of the Chief Minister denying these charges
and from the course of events, the Supreme Court concluded that the
Corporation acted on the direction of the Chief Minister in framing
the Schemes and that “ the allegations that the Chief M inister was
motivated by bias and personal ill-will against the appellants stands
unrebutted.’* The decision of the Court led to the C hief M inister’s
resignation.
In the Partap Singh and Rowjee cases, the administrative authority
acted out of personal animosity, i. e,, to sub-serve its ow n private
interest. Action will still be mala fide if the authority promotes some
public interest other than the interest which it believes the law has
conferred. In Ahmed Roosain v. The State^^ the petitioner was asked
to vacate the house allotted to him by the Government on account
o f the religious susceptibilities of the landlord. Having failed to get
the house vacated, the authorities moved to requisition the house under
the Central Provinces and Berar A ccom odation (Requisition) A ct,
1948. Declaring the requisition order invalid, the court held that the
action of the authority in requisitioning the house was not bona fide.
22. A.l.R. 1951 Nag. 138. On the question of mala fides of the government in
exercising its statutory powers, see K.P. Khetan v. Union o f India, A.l.R. 1957 S.C,
676 and Ambalal v. Hathi Singh Manufacturing Co.. AJ.R. 1962 S.C. 588. In these
cases were hivolved section 18-A of the Industries (Development and Regulation) Act,
I95I, and section 3 (4) of the Essential Commodities Act, 1955. The arguraent of mala
fides was rejected in both the cases.
SECTION 6. OTHER GROUNDS FOR INTERFERING WITH

THE EXERCISE OF DISCRETIONARY POWERS
A t times th e courts have reviewed the exercise o f a discretionary

p ow er by characterising the discretion as judicial or stating that the
discretionary p ow er ought to b e exercised reasonably. Thus with
reference to the p ow er o f the Registrar to register a trade mark, the
Supreme C ou rt stated in Registrar, Trade M arks v. Ashok Chandra
Rakhit Ltd.^;
“ .-.that the exercise o f the power con ferred on the R egistrar...

always remained a m atter of discretion to be exercised, n ot
capriciously or arbitrarily but, according to sound principles laid
dow n for the exercise of all judicial discretion.” ^
W h a t does the term “ judicial discretion ” indicate ? In one

sense it means that the discretion is n ot absolute or unqualified as
distinguished from “ executive discretion.” E xcept in case o f foreign
affairs, there appears to be hardly any discretion which is absolute or
unqualified for every exercise o f discretion ought to be related to the
purpose o f the statute based on considerations m entioned therein.^
T he Courts have also used the term in those cases where they
have thought that it was necessary for the authority to give reasons
for the decision, though the statute conferred a w ide discretion on it.
The Madras H igh C ou rt in Narasimha v. District Magistrate^ held with
reference to the pow er o f the District M agistrate to issue a gun
Hcence under the Arm s A c t, 1878 that
“ The O fficer em pow ered to issue the licen ce is a responsible

officer o f the G overnm ent, the D istrict M agistrate. In his
discretion he may give or refuse the licence. Th e discretion is
obviou sly a judicial one as his order is su bject to an appeal to
the R evenue Board. W h e n his order is subiect to an appeal, it is
his duty to give reasons for his refusal, fo r the appellate
tribunal must be in a position to evaluate the correctness or
reasonableness o f his rejection .'’®
1. A. I. R. 1955 S.C. 558.

2. Id. at 562.
3. See supra.
4. A. I. R. 1953 Mad. 476.
5. Id. at 478. In this case the District Magistrate had not given any reason for
'the rejection of the application.
In another Madras H igh C ou rt case Rikahdass Bhavarlal v.

Collector o f Customs^ was involved section 167 o f the Sea Customs
A ct, 1878. U nder this section the customs authorities are em powered
to impose penalty and confiscate the goods imported contrary to law.
T h e goods o f the petitioner w ere confiscated under the Section.
Recognising the discretion of the customs authorities in this regard,
the C ou rt proceeded to say that “ such discretion must be exercised
judicially and not arbitrarily.” T he court held that
“ the C ollector does n ot appear to have dealt w ith the case as if
he was vested with judicial discretion because he has n ot given
any reason why the drastic punishment o f confiscation should
have been imposed on the appellants whereas tw o other similar
merchants who had com m itted the same offence had been let
o ff with a warning.” ’
(Q u ery ; Could not the case have been decided on the ground of
discrimination ?®)
Furthermore, the courts have asserted that they will interfere
if the discretion has not been exercised reasonably.® V e ry often the
ground for quashing administrative action on the basis of
unreasonableness is nothing else except that the authority has taken
into account extraneous factors, disregarded relevant factors, or the
action taken has no relationship with the objectives of the statute.^®
Is “ unreasonableness” an independent ground o f attack also ?
The problem could be appropriately discussed with reference to —
6. (196I)2M .L. J.448.

7. Id. at 448.
8. See also Collector o f Customs v. Lala Gopikissen, A. I. R. 1955 Mad. 187.
In this case, on the different consignments imported under similar circumstances, the
customs authorities imposed different amounts of fine in lieu of confiscation. The court
observed; " ......the discretion which has been vested in the Customs authorities under
S. 183 o f the Act has not been exercised at all in any rational or intelligible manner.”
Id. at 200.
9. See, for instance, Kishan Chand v. Comm, o f Police, A.I.R. 1961 S.C. 705. “ If
(the applicant) thinks... the commissioner has acted unreasonably in rejecting his
ap-pHcation he is not without a remedy” . State o f Bombay v. K . P . Krishnan, A.I.R.
1960 S.C. 1223 ( “ the government must consider the question fairly and reasonably” );
ScQjyoti Samp v. Board o f Revenue, A.I.R. 1953 All. 25. “ ...mandamus will not lie
where the duty is clearly discretionay and the party upon whom the duty rests has to
exercise his discretion reasonably and within his jurisdiction__ ''Id. at 29.
10. See Markose, Judicial Control o f Administrative Action in India, 412 (1956);
de Smith, Judicial Review o f Administrative Action, 214 (1959); Griffith and Street,
Principles o f Administrative Law, 234 (1963).
(i) the C on stitu tion ; (ii) when the statute expressly imposes the
duty to act reasonably ; (iii) and when the statute is silent as to such
a requirement.
( i ) Constitution :
A rticle 19 o f the C onstitution guarantees certain freedom s to the

citizens of India but permits the State to impose reasonable
restrictions in public interest, etc. T h ough no case has com e to
view where the judiciary has declared an administrative decision
violative o f the article, there is n o doubt that an administrative action
will be declared bad if in the court’s view restriction im posed on the
individual freedom is n ot reasonable.
A rticle 14 guarantees equality before law but the courts have

interpreted it as perm itting reasonable classification or
classification based on intelligible differentia. A t one time the view
was held in certain quarters^^ that w here the law was valid
under the article, administrative discrimination under the law could
n ot be questioned. This view now stands overruled b y the Supreme
C ou rt decision in Mannalal Jain v. State o f Assam^^ w here the C ourt
struck dow n an administrative order because of administrative
discrimination even though the law was found to b e valid under
article 14.
(ii) Express Statutory requirement to act reasonably :
PUKHRAJ V. KOHLI
A.I.R. 1962 S.C. 1559.
Gajendragadkar, J . :
T he last con ten tion raised by [the C ou nsel for the appellant] was
that there is nothing on record to show that the seizure o f gold from
the appellant had been effected by the officer concern ed acting on a
reasonable b e lie f that the said gold was smuggled. It would be
recalled that S, 178A o f the Sea Custom s A c t requires that before
the burden can be im posed on the appellant to show that the goods
in question w ere n ot smuggled, it has to be shown that the goods had
been seized under the said A c t and in the reasonable b elief that they
are smuggled goods. T h e argument is that the question as to whether
there was a reasonable b elief or not is justiciable and since there is no
material on the record to show that the belief cou ld have been
11. See Dhanraj Mills v. B.K. Kochar, A.I.R. 1951 Bom. 132,
12. A.T,R. 1962 S.C. 386.
702 INDIAN ADMINISTRATIVE LA W[ CHAP
reasonable, the statutory presum ption cannot be founded. There are

tw o b roa d features of this seizure w hich cannot be ignored. T h e first
feature on which the officer relied is supplied by the quantity o f gold
in question. In was found that the appellant was carrying on his person
five pieces of gold bullion weighing as much as 290.6 tolas This large
quantity o f gold valued at nearly Rs. 30,000 itself justified a reasonable
b elief in the mind of the officer that the gold may be smuggled. In
that connection, it may not be irrelevant to remember that the said
officer had received positive information in the month o f Septem ber,
1956 regarding the smuggling of gold by the appellant. That is why
he was intercepted by the officer on O ctober 25, 1956 at the Raigarh
R ailw ay Station at 16.30 hours. Then the other fact on w hich the
reasonable belief can b e founded is the suspicious circum tances o f the
appellant’s journey. T he appellant was found travelling w ith ou t a
railway tick et and his explanation as to how he came to b e in the
said passenger train is obviously untrue. A person carrying a large
quantity of gold and found travelling without a ticket may well have
raised a reasonable belief in the mind o f the officer that the gold was
smuggled. The object o f travelhng without a ticket must have been
to conceal the fact that the appellant had travelled without the ticket
all the way from Calcutta at which place the gold must have been
smuggled. The story subsequently mentioned by the appellant about
his journey to Tatanagar which has been disbelieved brings into bold
belief the purpose which the appellant had in mind in travelling
without a ticket. A fter all, when we are dealing with a question the
belief in the mind of the officer who effected the seizure was reasonable
o r not, we are not sitting in appeal over the decision o f the said
officer. A ll that we can consider is whether there is ground which
prima facie justifies the said reasonable belief. T h at being so, w e do
not think there is any substance in the argument that the seizure was
effected without a reasonable belief and so is outside S. 178.
The following two English cases may also be n o te d : Liversidge v.

Anderson, (1942) A .C . 206; Nakkudda Ali v. Jayaratne, (1951) A .C . 66.
(liiy Silence o f the statute as to such a requirement:

K. D. CO. v. K. N. SINGH
A.I.R. 1956 S.C. 146.
[Section 18 of the Bengal Court o f W ards A ct. 1879, reads ;

T h e C ourt may sanction the giving o f leases or isLtais o f the
whole or part of any property under its charge, and may direct
the m ortgage o r sale o f any part o f such property, and may direct
the doing of all such other acts as it may judge to b e most for the
benefit o f the property and the advantage o f the p rop erty .”
The C ou rt o f W a rd s had leased certain property o f the W a r d who on

becom ing major disputed the lease,]
Venkatarama Ayyar, J . :
The conten tion o f [the Counsel] for the respondent w ard is that
the words "as it may judge” do n ot signify that the judgm ent could
be made w ithout reasonable grounds therefor, that they should be
construed as meaning “ as it may on reasonable grounds judge” , and
that it is therefore open to the C ou rt to consider w hether the
decision o f the C ourt o f W ards was a reasonable on e to com e to, and
that if it came to the con clusion that it was not, then to hold that it
fell outside the ambit o f the authority conferred b y S. 18.
In support o f this contention he relied on certain observations in

Nakkudda Ali v. M .F. De.S. Jayaratne 1951 A .C . (76) . . There, the Board
was considering the meaning o f the words “ where the C on troller has
reasonable grounds to b eliev e” occurring in a R egulation o f Ceylon.
In an application for certiorari to quash an order o f the C on troller
made under this enactm ent, it was argued fo r him that the words o f
the Regulation left the m atter to his subjective satisfaction, that his
decision th erefore was n o t liable to be questioned on the ground that,
in fact, there existed no reasonable ground therefor; and the decision
in Liversidge v. Sir John Anderson 1942 A . C. 206(b) was relied on as
establishing that position.
In negativing this contention. Lord R adcliffe observed that the

words “ w here the C on troller had reasonable grounds to believe”
might mean either “ where it is made out to his subjective satisfaction”
or “ where there are reasonable grounds on which he cou ld believe” ,
and that w hether the words w ere used in the one sense or the other
in the enactm ent in question must depend upon the con text. The
question then is ultim ately one of con struction o f the words of the
particular statute.
N ow , w hat do the words "as it may judge” in S. 18 mean ? Do
they confer on the C ou rt o f W ards a p o w e r to be exercised if the act
is, in its judgment, fo r the benefit o f the p rop erty or the advantage of
the ward, or d o they confer a p ow er to b e exercised only if, in facti
the a ct is fo r the benefit o f the property or th e advantage of the
w a rd ?.... Examining the language o f S. 1 8... w e are unable to
704 INDIAN ADMINISTRATIVE LAW ^ [ CHAPTER 8
construe the words “ as it may judge most for the benefit o f the
property and the advantage o f the ward” as equivalent to “ as may
b e for the benefit of the property and the advantage o f the w ard ” or
“ as might be judged to be most for the benefit of the property and
the advantage o f the ward” . The statute confides in clear and
unambiguous terms the authority to judge whether the act is
beneficial to the estate, to the C ourt of W ards and not to any
outside authority.
That being the true scope of the power conferred b y S. 18, what
are the grounds on which the exercise o f such a pow er cou ld be
impugned in a court o f l aw? It can be attacked on the ground that
the C ourt o f W ards did n ot act bona fide and in the interests o f the
ward, and that its action amounted to a fraud on the pow er. It can
also be attacked on the ground that the Court of W ards did not, in
fact, apply its mind to the question whether the act was for the benefit
o f the property or the advantage of the ward, and that though it
purported to exercise the power under S. 18, it did not, in fact, com e
to a judgement as required by the section.
But where it has appHed its mind and given thought to the
question whether the act is for the benefit o f the property, or the
advantage of the ward and comes to an honest judgem ent in the
matter, its decision is not liable to be questioned on the ground
that it was erroneous on the merits that it was reached w ithout
considering some aspects which ought to have been considered, unless
the failure to consider them is of such a character as to amount to
there being no exercise of judgement at all.^^
NOTE
In some of the High Court decisions where the statutory language

used was “ if he is satisfied” has been held to mean “ if he is
reasonably satisfied.” Thus in ChandreshwariPd. State o f Bihar
the administrative authority had cancelled certain grants o f property
made to the petitioner by the previous owner on the ground that the
transfer was made with a view to defeat the provisions o f Bihar Land
Reforms Act, 1950, and to obtain higher compensation. T h e court
13. See also Nek Mohammed v. State o f Bihar. A.T.R, 1949 Pat, 1 at 9,
14. A,I,R, 1956 Pat. 104,
found that there was no evidence to support the finding o f the

authority. The court proceeded to o b serv e:
“I think the w ord satisfied' in S. 4 ( h ) must be construed to mean
‘reasonably satisfied’, and, therefore, the finding o f the C ollector
under S. 4 (h) cannot be a subjective or arbitrary finding but must
be based upon adequate material. I also think that the satisfaction
of the C ollector under S. 4(h) is not a capricious satisfaction but
must be capable of being tested in an ob jective manner.” ^®
H ow would you distinguish this case from the D. Co. Case ?

There is a dictum in an English case^® to the effect that if a
decision on a com petent matter is so unreasonable that no authority
could ever have com e to it, then the courts can in terfere...bu t to
prove a case o f that kind w ould require something overw h elm in g..,” ^'^
Explaining further, it said that “ unreasonable” means “ not what the
court considers unreasonable" but a decision which the court thinks
no reasonable b od y would have come to. Ultimately, the con cept o f
“ unreasonableness” boils dow n to considering a matter which the
authority ought n o t to have taken into account and excluding those
elements which the authority should have taken into account. R efer in
this connection to thz Poplar co.se, (Roberts y . Hopwood, supra). In such
a situation, could n ot it be said that though the authority purported
to exercise' its pow er it really did not, instead o f saying it acted
unreasonably
SECTION 7. CONTROL OF DISCRETIONARY POWERS
Due to the ever changing panorama o f socio-econ om ic conditions

and emergencies, administration in India enjoys vast pow ers. Other
factors which contribute to administrative hegemony are: lack of time
for Parliament, lack of expertise in Parliament, intricacies of modern
administration, need to take quick and effective steps etc.
15. Id at 107. See also Ramnath v. Sukumari, A.I.R. 1954 Pat. 211.
16. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1948)
1 K.B. 223, supra.
17. H a t 230.
18. Jn Mahaboob Shefiff & Sons V . Mysore S. T. Authority, 1960 S.C.
321. The Supreme Court observed, “ If (the order) is such that no reasonable body
could have given it then it must be deemed to be in excess o f jurisdiction and is liable
to be quashed,” a| 328,
This phenomenon raises the problem of control of the adminis

tration. When, sweeping powers are vested in the administration,
prudence requires that adequate control and safeguards be interwoven
into the system in order to minimise the chances of misuse of powers.
One of the methods is administrative control itself leading to
ministerial which in turn is subject to parliamentary control. This
amounts to political control. In this connection it may be stated that
administrative control can be effective if the ofEcer taking the initial
decision gives reasons for his actions which is follow ed up by an
independent review by the higher administrative authority. However,
this does not generally happen and the higher echelons in the
administrative hierarchy tend to agree with the initial decision,
Parliamentary supervision is not effective either on account of factors
stated above and also because of the operation of ministerial
responsibility. However, at times, the technique of associating
advisory bodies to assist the administrators in the exercise of their
powers, is adopted. This has been characterized as the democratisation
of the administration,^
Judicial control, as we have seen, touches only the fringes of the

problem of control of administrative action. The courts tend to show
deference to administrative action and as a result they do not examine
the merits. Many a time, the statutes confer power in broad terms
such as, “as they think fit” or “ as is expedient” .^ W hich make judicial
control all the more ineffective. It is on account of these gaps that
some countries have come to adopt the institution of Ombudsman
which controls administration much more effectively in an informal
and unobtrusive manner.
NAKKUDA ALI v. M. F. De S. JAYARATNE

(1951) A. C.66
[The Controller of Textiles in Ceylon had cancelled a textile

dealer s licence in pursuance of a statutory power to revoke a licence
when he had “ reasonable grounds*’ for believing its holder to be unfit
to continue as a dealer. The dealer applied for certiorari to quash
the order.]
1. A reference has been made to this technique in connection with delegated

legislation, supra.
2, Sw belpw, Nqkkuda AH v, M.F. De, S, Jayaratne, 1951 A,C, 66,
Lord Radcliffe ;
...It would b e impossible to consider the significance of such words

as “ W here the C on troller has reasonable grounds to b elieve.......”
w ithout taking accou n t o f the decision o f the H ouse of Lords in
Liversidge v. Sir John Anderson.^ That decision related to a claim for
damages for false imprisonment, the imprisonment having Been
brought about by an order b y the H om e Secretary under the D efence
( General ) Regulations, 1939, reg. 18B, o f the U nited Kingdom.
It was not a case that had any direct bearing on the co u rt’s pow er to
issue a writ of certiorari to the Home Secretary in respect o f action
taken under that regulation: but it did directly involve a question as
to the meaning of the words "I f the Secretary of State has reasonable
cause to believe any person to be of hostile origin or association ...”
which appeared at the opening o f the regulation in question. A n d the
decision of the m ajority o f the House did lay down that those words
in that context meant no more than, that the Secretary o f State had
honestly to suppose that he had reasonable cause to believe the
required thing. O n that basis, granted good faith, the maker of order
appears to b e the only possible judge of the conditions o f his own
jurisdiction.
Their Lordships do n ot adopt a similar construction o f the words

in reg. 62 which are now b efore them. Indeed, it w ou ld b e a very
unfortunate thing if the decision o f Liversidge’s case came to be
regarded as laying dow n any general rule as to the construction of
such phrases when they appear in statutory enactments. It is an
authority for the proposition that the words “if A , B. has reasonable
cause to believe” are capable of meaning “ if A .B . honestly thinks that
he has reasonable cause to believe” and that in the context and
attendant circumstances o f D efence Regulation 18B they did in fact
mean just that. B ut the elaborate consideration w hich the majority
o f the H ouse gave to the con tex t and circumstances before adopting
that construction itself shows that there is no general principle that
such words are to be so understood; and the dissenting speech of
L ord A tk in at least serves as a reminder o f the many occasions when
they have been treated as meaning “ if there is in fa ct reasonable
cause for A . B. so to believe” . A fter all, words such as these are
com m only found -when a legislature or law-making authority confers
powers on a minister or official. H ow ever read, they must be
intended to serve in some sense as a condition limiting the exercise of
3. (1942) A.C. 206.

an otherwise arbitrary power. But if the question whether the

condition has been satisfied is to be conclusively decided by the man
who wields the power; the value o f the intended restraint is in effect
nothing. N o doubt he must not exercise the power in bad faith; but
the field in which this kind of question arises is such that the
reservation for the case of bad faith is hardly more than a formality.
Their Lordships therefore treat the words in reg. 62, “ where the
Controller has reasonable grounds to believe that any dealer is unfit
to be allowed to continue as a dealer” as imposing a condition that
there must in fact exist such reasonable grounds, known to the
Controller, before he can validly exercise the power o f cancellation.

Administrative Discretion

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Administrative Discretion

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C h a p te r VIII

U nder the im pact of the contem porary philosophy o f ‘ welfare

T o take an example, the question o f sub-delegation is very intimately

Meaning o f discretion : Probably the best analysis o f the meaning

"W h en we speak of administrative discretion, we mean that a

fact and discretion. It may be practically con venien t to say

Types o f d i s c r e t i o n Th ere are different grades o f discretionary

8. Freund, Administrative Powers over Persons and Property, 71 (1928).

The function o f discretion ; A ccordin g to Freund,

“ The plausible argument in favour o f administrative discretion

A com prehensive view o f administrative discretion discloses a

The F rench say chat “ personal” m governm ent is equivalent to

STATE OF U P. V. MANBODHAN LAL

[The respondent was prom oted to the U nited Provinces Education

civil capacity, including memorials or petitions relating to

Perhaps, because of the use o£ the word “ shall” in several parts

T he words quoted above give a clear indication of the

If it had been intended by the makers o f the C onstitution that

Once, relevant regulations have been made, they are meant to be

Secondly, it is clear that the requirem ent of the consultation with

The question may be looked at from another point of view. Does

This aspect of the relevant provision of part X IV o f the

“ ...The question whether provisions in a statute are directory

If they are so held, any appointments made to the public services

This result could n ot have been contem plated by the makers of

auotation from Crawford on 'Statutory Construction’ A rt. 261 at p. 516

“ The question as to whether a statute is mandatory or directory

In view of these considerations, it must be held that the

COLLECTOR OF MONGHYR v. KESHAV PRASAD

A.I.R. 1962 S.C. 1894.

[Sections 3 and 4 of the Bihar Private Irrigation W ork s A ct, 1922,

Section 51 o f the Indian Incom e Tax A ct, 1918, p rovid ed that if

“ In order to decide w hether the w ord ‘'m ay” is potential or

2. A.r.R. 1923 P. C, 138. See also, V. Sreeramamiirthy v. Income Tax Officer,

In Commissioner ofPoJicc v. Gordhandas,^ a rule framed under the

discretion, there was an imperative obligation on the governm ent to

SECTION 3. FUNDAMENTAL RIGHTS AND

The Indian Constitution vide articles 13 to 35 guarantees certain

proper ju licial or administrative or procedural controls. The

(a ) Artice 19 (1 ) (g ) o f the Constitution— Licensing.

MESSRS. DWAKKA PRASAD V. STATE OF U. P.

for the respondents] contends that a sufficient safeguard has been

In Chandrakant v. Jusjit Singh^ was involved the validity o f the

trumpery reason (w hich he need not state), even though the

[Clause 3 o f the Cotton Textiles (C on trol of M ovem en t) Order,

refuse or to grant a permit and that on grounds similar to those on

It may also be pointed out that reference to the decision o f this

[Section 39 of the C alcutta P olice A ct, 1866, requires a licence

Section 39 is in these terms :—

W h a t then does the section provide ? It certainly gives powers

Commissioner has the pow er to act arbitrarily and grant licences

an arbitrary and uncanalised pow er without any criteria fo r guiding

Then it is urged that even if there is guidance in the section it

restriction, except perhaps a Court may more readily be inclined

In the Kishan Chand case, even though the C ou rt attempted to

7. Jain, Indian Constitutional Law, 425-430 (1962).

of the A c t. W h ile, as seen above, in the case of licensing, this has

(b ) Article 1 9 (1 )(a ), (h), ( c) and ( e ) Freedom o f Speech, Assembly,

[A fter the appointment of the States Reorganization Commissioner

“ Section 2. The State Governm ent or any authority so authorised

Clause ( c ) of section 2(1) authorised the State Governm ent or

Section 3(1) runs as fo llo w s :

T h e test o f reasonableness has been laid down by this C ou rt in

This dictum has been adopted and applied by this C ou rt in