Abuse of Administrative Discretion - A Detailed Study - SCC Blog

Abuse of Administrative Discretion— A Detailed Study | SCC Blog 15/04/23, 11:10 AM
necessity.
The six decades after independence have played a major role in the rapid
expansion and smooth functioning of administrative activities.
The executive is given authority by the statute to use this discretion and act
accordingly. An extensive power is given to the executive to choose a path of
operation from numerous possible courses of action and select the best
depending upon the situation. Power of discretion ensures that the
administrative authority has su=cient independence and liberty in carrying
out its activities.
However, to regulate the power and to ensure that this discretion is not
misused, the law has established scrutiny to make certain that this
discretionary power is exercised according to the guidelines of the statute.
Abuse of discretion
Power of discretion given to the administrative authority ensures that they
get adequate independence and liberty in carrying out their activities.
However, this discretion is often misused. Abuse of power is one of the
classic concepts in administrative law. According to the classical approach,
this concept is based on the assumption that the scope of discretion of public
administration bodies is deBned, besides competence norms, procedural and
legal grounds for action, also by the objective for which the discretionary
powers were granted.[1]
The abuse of discretion is done in the following manner. The administrative
authority may not duly exercise the power and authority entrusted to it (sub-
delegation, acting mechanically, imposing fetters on discretion, acting under
dictation, non-application of mind, power coupled with duty) or they may
exercise the power and authority under the coercion of another body, which
may have improper motives (like abuse of power, mala Bdes, improper
purpose, irrelevant considerations, leaving out relevant consideration,
colourable exercise of power, judicial discretion, unreasonableness). This
leads to biases and incorrect usage of power delegated to such
administrative authority.
The power of discretion given to the administrative authorities is a complex
process. A Government may not be able to function properly without the
exercise of some discretion by the o=cials. It is impossible to lay down the
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rules for every plausible aspect. This has led to conLicts as to whether there
should be absolute discretion of administrative authorities or whether it
should be subject to reasonable control. Giving discretionary power to the
administrative authority is not wrong however, people often misuse it.
Some of the abuses of administrative discretion are as follows:
Mala 2des
Mala Bde is a broad term and means something done with bad intent,
corrupt motive, or not in good faith. An administrative action must be
without mala Bdes. The burden of proof lies on the person who alleges mala
Bdes. Malice is of two kinds i.e. malice in law and malice in fact. Malice in fact
includes personal ill will, corrupt motive, spite, vengeance, and personal
beneBt to the authority itself.
One such situation was seen in S. Pratap Singh v. State of Punjab.[2] In this
case, the appellant was a civil surgeon employed under the State
Government. He was initially accorded leave in advance of his retirement but
in due course of time it was cancelled, also he was given a suspension order
and disciplinary action was initiated against him on the charge that he had
agreed to receive a bribe of Rs 16 from some patients before going on leave.
It was alleged by the appellant that the disciplinary proceedings against him
were started in the wake of the personal vendetta of Pratap Singh who was
then the Chief Minister of Punjab as the doctor had declined to surrender to
the illicit demands of the Chief Minister and members of his family. The
Supreme Court accepted the contention, held that such exercise of power is
mala Bde, and quashed the order.
In G. Sadanandan v. State of Kerela[3], the petitioner was a businessman
dealing in the sale of wholesale kerosene oil. He was detained under Rule
30(1)(b) of the Defence of India Rules, 1962 on the ground that he was
operating without a licence and dealing in kerosene illegally. The petitioner
challenged the validity of the order of detention by and large on the pretext
that it is mala Bde. It has been passed as a consequence of malevolent and
erroneous reports, devised at the order of the Deputy Superintendent of
Police (DSP). The alleged reason of the Deputy Superintendent in securing the
preparation of these incorrect reports was to get rid of the petitioner from
the domain of wholesale kerosene oil business in Trivandrum, Kerala, so that
his family members could obtain the dealership. The Deputy Superintendent
his family members could obtain the dealership. The Deputy Superintendent
did not even Ble a counter-a=davit to controvert the allegations made
against him by the appellant. Due to these considerations, the Supreme
Court declared the order of detention to be clearly and plainly mala Bde.
Rowjee v State of Andhra Pradesh, the Chief Minister undertook a
proposal of the State Government to nationalize certain bus routes. The
Supreme Court quashed the Chief Minister’s decision. The court found that
the Chief Minister had mala Bde because the decision was motivated by the
Chief Minister sense of vengeance against his political opponents Rowjee v
State of Andhra Pradesh, the Chief Minister undertook a proposal of
the State Government to nationalize certain bus routes. The Supreme Court
quashed the Chief Minister’s decision. The court found that the Chief Minister
had mala Bde because the decision was motivated by the Chief Minister
sense of vengeance against his political opponents Rowjee v State of
Andhra Pradesh, the Chief Minister undertook a proposal of the State
Government to nationalize certain bus routes. The Supreme Court quashed
the Chief Minister’s decision. The court found that the Chief Minister had
mala Bde because the decision was motivated by the Chief Minister sense of
vengeance against his political opponents
Similarly, in C.S. Rowjee v. State of A.P.[4], the Chief Minister of Andhra Pradesh
took on a proposal of the State Government to nationalise certain bus routes.
It was purported that the Chief Minister had acted with mala Bde intentions
while giving the instructions. The allegation against him was that the speciBc
route way had been chosen for the reason that he sought to take revenge
from the private operators on those routes because they were his political
opponents. Considering the facts of the case, the Supreme Court held that
the Chief Minister had mala Bde intention.
Rowjee v State of Andhra Pradesh, the Chief Minister undertook a
proposal of the State Government to nationalize certain bus routes. The
Supreme Court quashed the Chief Minister’s decision. The court found that
the Chief Minister had mala Bde because the decision was motivated by the
Chief Minister sense of vengeance against his political opponents Rowjee v
State of Andhra Pradesh, the Chief Minister undertook a proposal of
the State Government to nationalize certain bus routes. The Supreme Court
quashed the Chief Minister’s decision. The court found that the Chief Minister
had mala Bde because the decision was motivated by the Chief Minister
sense of vengeance against his political opponents
Improper purpose
A statute confers discretionary powers upon an administrative authority for
one purpose and if it is used for some purpose other than the one that was
decided, it will not be regarded as a valid exercise of the powers and the
same may be rescinded by declaring it as ultra vires. Hence, we can see that
the power of discretion is not unlimited and is constricted to the objective for
which the law was enacted.
Therefore, where the power is exercised for a purpose di]erent from that
speciBed in the statute, the court will declare the exercise of the power as
ultra vires. Where the land is acquired by the Municipal Corporation
ostensibly for a public purpose but in fact to enable another body to acquire
it through the medium of corporation for some other purpose, the
acquisition order would be quashed by the court. Similarly, where the
Municipal Corporation refused to approve the construction of buildings with
a view to pressurise the petitioner to provide drainage for the adjoining
building, and where the construction scheme of the petitioner does not
contravene any rule.
“Improper purpose” is broader than mala Bdes, for whereas the latter
denotes a personal spite or malice, the former may have no such element.
The action of an authority may be motivated by some public interest (as
distinguished from private interest), but it may be di]erent from what is
contemplated by the statute under which the action has been taken. Here it
is not so much relevant to assess whether the authority is acting in good faith
or bad faith. What is relevant is to assess whether the purpose in view is one
sanctioned by the statute which confers power on the authority concerned.
[5]
However, with time as the authorities were accorded discretion to increase
the scope of their functioning, the cases of exercise of this discretion for
improper purposes started increasing tremendously. In order to curb this
problem and restrict this unconstrained power, the courts can check the
primal target of the statute in endowing the discretionary power. The
rationale behind an administrative action should be in conformation with the
legal objective.
legal objective.
In S.R. Venkataraman v. Union of India[6], the appellant, was a Central
Government o=cer. She was compulsorily retired from service in “public
interest” [under Fundamental Rule 56(j)(i)] on her attaining the age of 50
years. Her contention was that there was non-application of mind by the
Government as they did not take into consideration her service record and
that her retirement was based on extraneous circumstances, outside the
extent of the Act. This was validated from the fact that there was not a thing
in her service record to rationalise premature retirement. The Supreme Court
revoked the order of the Government and held that in a case where
discretionary power is exercised for an unauthorised purpose, the principles
of good faith or bad faith stand irrelevant. An administrative order
formulated on the basis of non-existent reasons or facts should be deemed
to be contaminated with an abuse of power.
Irrelevant or relevant considerations
Discretionary power allows an authority to choose from alternative actions
and select the most appropriate one. However, this discretionary power
should always be exercised on relevant grounds and not on extraneous
grounds, it should not be inLuenced by considerations that cannot be
lawfully taken into account, in other words, all discretionary work must be in
conformance to the considerations mentioned in the parent statute. If no
such considerations are laid down in the statute, then power is to be
exercised on the basis of the considerations relevant to the purpose for
which the statute was conferred. If the authority uses this power for
irrelevant cases, then the administrative action would be considered ultra
vires and will be quashed.
To determine whether the considerations are relevant or irrelevant, one has
to infer from the general terms of the statute.
In Barium Chemicals Ltd. v. Company Law Board[7], the Company Law Board
exercising its power under Section 237 of the Companies Act, 1956[8] can
order an investigation into the matters of the company if such a]airs are
carried out with a motive to defraud creditors or if the persons involved in
the management are guilty of fraud.
Exercising this power an investigation was ordered into the a]airs of Barium
Chemicals Ltd. for the reason that the company was su]ering continuous
Chemicals Ltd. for the reason that the company was su]ering continuous
losses as a consequence of faulty planning and many eminent persons
resigning from the Board of Directors. This order was challenged. The court
quashed the order of the Board stating that these grounds were immaterial
and irrelevant to the objective enshrined in the law. It did not comply with the
direction of Section 236[9].
In Rohtas Industries v. S.D. Agarwal[10], an investigation was ordered into the
a]airs of a Brm on the grounds of misconduct by one of the leading directors.
There were several complaints against him. Also shares of another company
held by it, were being sold at an inadequate consideration. About the former,
the Court was of the view that it was not an admissible situation. About the
other ground, the Court found no evidence of the shares having been sold for
insu=cient remuneration. The order was revoked as these grounds were
held to be insubstantial in order to solicit an inquiry under Section 237 of the
Companies Act, 1956.
Leaving out relevant considerations
While exercising its discretionary power if an administrative authority turns a
blind eye to relevant considerations, its acts will be considered null and void.
An authority should always take heed of the considerations which law lays
down expressly or impliedly. In case the law does not lay down any
considerations but grants power in a general way, the court might imply
some appropriate considerations for the exercise of the power and rescind a
directive since the o=cials concerned did not take these into account.
In Ranjit Singh v. Union of India[11], the allotted quota for production of guns
by a licensed manufacturer was lowered from 30 to 10 guns per month. This
order was challenged on the ground that the decree was not based on
relevant considerations but on immaterial consideration. It was held by the
Court that the order was out of place as the Government had not taken into
account material considerations like the quality of guns produced, economic
viability of the unit, capacity of the factory, etc. in making the order. It was
observed by the Court that any curtailment of quota should be based on
reason and relevance. If all the material factors are not considered, the
decision is corrupt.
Colourable exercise of power
The courts often use the idiom “colourable exercise of power” to denounce
The courts often use the idiom “colourable exercise of power” to denounce
an abuse of discretion. Colourable exercise signify that under the
“appearance” of power accorded for one objective, the authority is trying to
achieve something else which it is not permitted to do under the statute.
Such acts of the authority shall be null and unlawful.
In Somawanti v. State of Punjab,[12] the Supreme Court in relation to
acquisition of land under the Land Acquisition Act[13] expressed as follows:
Now whether in a particular case the purpose for which land is needed is a
public purpose or not is for the State Government to be satisBed about
subject to one exception. The exception is that if there is a colourable
exercise of power the declaration will be open to challenge at the instance of
the aggrieved party. If it appears that what the Government is satisBed about
is not a public but a private purpose or no purpose at all action on the
Government would be colourable as not being relatable to the power
conferred upon it by the Act and its declaration will be a nullity.
The above extract would show that the term “colourable exercise of power” is
used in the sense that the exercise of power is unlawful, but it has been given
the illusion of legitimacy.
Unreasonableness
The law requires the authority to act fairly and rationally. The term
“unreasonableness” does not provide a separate ground of judicial control
other than the grounds already mentioned. The term also comprises those
cases where either the authority has acted in accordance with law but in the
wrong manner or in accordance with law and in the right manner but on the
wrong grounds. The courts usually do not exercise such extensive power to
interfere in the exercise of administrative discretion. However, the courts do
interfere with the order where it has been passed irrationally.
Proportionality
To keep a lid on the exercise of administrative discretion judicial control has
been formulated. This assures that unrestricted power is not given to the
authorities to allow erratic decision-making. The rule of proportionality is one
such major rule which make sure that there is a connection between the goal
that must be achieved, and the method undertaken to enable so.
This tool was applied in Union of India v. Ranjit Thakur[14]. In this
case Signalman Ranjit Thakur did not adhere to the lawful order of his senior
case Signalman Ranjit Thakur did not adhere to the lawful order of his senior
o=cer by refusing to eat food o]ered to him. As a result of this court-martial
proceedings were instituted and sentence of rigorous imprisonment of one
year was levied on him. Also, he was expelled from service, with the
additional disqualiBcation that he would be incompetent for future
employment. The said direction was called into question on the ground that
the penalty was Lagrantly inordinate. The Supreme Court implemented the
doctrine of proportionality while revoking the punishment of expulsion from
employment and sentence of incarceration awarded by the court martial
under the Army Act[15].
Conclusion
With more and more discretion being given to the administrative authorities
to take action without intervention from other bodies has led to increased
independence of the authorities to choose between the di]erent approaches
and select the best alternative. However, to keep a check on this wide
freedom, the courts in India have developed various controls over
discretionary action which ensures that this power is exercised within the
limits prescribed by law, is just and fair, and is based on pertinent grounds
and good faith.
From the above cases we see that the abuse of administrative discretion
takes place in a number of forms, for example, acting on mala Bde basis,
disregarding relevant considerations and pursuing irrelevant ones,
misapprehending the power granted by the statute, etc.
The authorities must have an established extent of liberty to carry out its
activities because excessive liberty accorded to the administration will always
result in violation of the fundamental rights of an individual. The only method
to guarantee individual freedom is judicial review of public administration.
Hence, it is a matter of controversy as to what degree the public
administration is susceptible to judicial review while performing the tasks
assigned.
The work of public administration is to ensure proper execution of the
administrative policy whereas the function of the Administrative Tribunals is
to assess whether this execution is exercised correctly under the provisions
of law. The separation of these functions limits the scope of judicial review.
The scope is limited to the basis of legality and the court’s function to directly

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Abuse of Administrative Discretion— A Detailed Study | SCC Blog 15/04/23, 11:10 AM

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