Abuse of Administrative Discretion

Discretion in laymans language means choosing from amongst the various

available alternatives without reference to any predetermined criterion, no matter
how fanciful that choice may be. A person writing his will has such discretion to
dispose of his property in any manner, no matter how arbitrary or fanciful it may be.
But the term discretion when qualified by the word administrative has somewhat
different overtones. Discretion in this sense means choosing from amongst the
various available alternatives but with reference to the rules of reason and justice
and not according to personal whims. Such exercise is not to be arbitrary, vague
and fanciful, but legal and regular.

The problem of administrative discretion is complex. It is true that in any intensive

form of government, the government cannot function without the exercise of some
discretion by the officials. It is necessary not only for the individualization of the
administrative power but also because it is humanly impossible to lay down a rule
for every conceivable eventually in the complex art of modern government. But it is
equally true that absolute discretion is a ruthless master. It is more destructive of
freedom than any of mans other inventions. Therefore, there has been a constant
conflict between the claims of the administration to an absolute discretion and the
claims of subjects to a reasonable exercise of it. Discretionary power by itself is not
pure evil but gives much room for misuse. Therefore, remedy lies in tightening the
procedure and not in abolishing the power itself.

Judicial behaviour and administrative discretion in India

Though courts in India have developed a few effective parameters for the proper
exercise of discretion, the conspectus of judicial behaviour still remains halting,
variegated and residual, and lacks the activism of the American courts. Judicial
control mechanism of administrative discretion is exercised at two stages:

(1) Control at the stage of delegation of discretion;

(2) Control at the stage of the exercise of discretion.

(1) Control at the stage of delegation of discretion. The court exercises control over
delegation of discretionary powers to the administration by adjudicating upon the
constitutionality of the law under which such powers are delegated with reference
to the fundamental rights enunciated in Part III of the Indian Constitution. Therefore,
if the law confers vague and wide discretionary power on any administrative
authority, it may be declared ultra vires Article 14, Article 19 and other provisions of
the Constitution. In case of delegated legislation, courts have after been satisfied
with vague or broad statements of policy, but usually it has not been so in cases of
application of fundamental rights to statutes conferring administrative discretion.
The reason is that delegated legislation being a power to make an order of general
applicability presents less chance of administrative arbitrariness than administrative
discretion which applies from case to case.

(2) Control at the stage of the exercise of discretion. In India, unlike the USA, there
is no Administrative Procedure Act providing for judicial review on the exercise of
administrative discretion. Therefore, the power of judicial review arises from the
constitutional configuration of courts. Courts in India have always held the view that
judge-proof discretion is a negation of the rule of law. Therefore, they have
developed various formulations to control the exercise of administrative discretion.
These formulations may be conveniently grouped into two broad generalizations:

(a) That the authority is deemed not to have exercised its discretion at all or failure
to exercise discretionnon application of mind ;

(b) That the authority has not exercised its discretion properly or excess or abuse
of discretion.

(a) That the authority is deemed not to have exercised its discretion at all non
application of mind.Under this categorization, courts exercise judicial control over
administrative discretion if the authority has either abdicated its power or has put
fetters on its exercise or the jurisdictional facts are either non-existent or have been
wrongly determined. The authority in which discretion is vested can be compelled to
exercise it, but not to exercise it in a particular manner. When a discretionary power
is conferred on an authority, the said authority must exercise that power after
applying its mind to the fact and circumstances of the case in hand. Thus where the
authority abdicates its power e.g. abdication of functions, acting under dictation,
conditional precedents, acts mechanically & without due care, imposes fetters on
the exercise of discretion, there is a failure to exercise discretion.

(b) That the authority has not exercised its discretion properly abuse of
discretion. This is an all-embracing formulation developed by courts in India to
control the exercise of discretion by the administrative authority. When discretionary
power is conferred on an administrative authority, it must be exercised according to
law. When the mode of exercising a valid power is improper or unreasonable there is
an abuse of the power. Improper exercise of discretion includes everything which
English courts include in unreasonable exercise of discretion and American courts
include in arbitrary and capricious exercise of discretion. Improper exercise of
discretion includes such things as taking irrelevant considerations into account,
acting for improper purpose, asking wrong questions, acting in bad faith,
neglecting to take into consideration relevant factors, acting unreasonably etc.

(1) Mala fides. Mala fides or bad faith means dishonest intention or corrupt motive.
Even though it may be difficult to determine whether or not the authority has
exceeded its powers in a particular case because of the broad terms in which the
statute in question may have conferred power on it, the administration action may,
nevertheless, be declared bad if the motivation behind the action is not honest. At
times, the courts use the phrase mala fides in the broad sense of any improper
exercise or abuse of power. In Jaichand v. State of West Bengal, the Supreme Court
observed that mala fide exercise of power does not necessarily imply any moral
turpitude as a matter of law. It only means that the statutory power is exercised for
purposes foreign to those for which it is in law intended.

In this sense, mala fides is equated with any ultra vires exercise of administrative
power. The term mala fides has not been used in the broad sense, but in the
narrow sense of exercise of power with dishonest intent or corrupt motive. Mala
fides, in this narrow sense, would include those cases where the motive force
behind an administrative action is personal animosity, spite, vengeance, personal
benefit to the authority itself or its relations or friends. Mala fide exercise of
discretionary power is bad as it amounts to abuse of power.

In Pratap Singh v. State of Punjab, the Supreme Court used the phrase mala fides
for initiating administrative action against an individual for satisfying a private or
personal grudge of the authority. In this case, the appellant, a civil surgeon in the
employment of the state government, was initially granted leave preparatory to
retirement, but, subsequently, it was revoked, and he was placed under suspension
and disciplinary action was started against him on the charge that he had accepted
a bribe of Rs. 16/- from some patient prior to going on leave. The appellant alleged

that the disciplinary action against him had been initiated at the instance of the
Chief Minister to wreak personal vengeance on him as he had refused to yield to the
illegal demands of the Chief Minister and members of his family. The Supreme Court
accepted the contention, held the exercise of power to be mala fide and quashed
the order.

In Rowjee v. Andhra Pradesh, under the schemes prepared by the State Road
Transport Corporation, certain transport routes were proposed to be nationalized.
The schemes owed their origin to the directions by the Chief Minister. It was alleged
that the Chief Minister had acted mala fide in giving the directions. The charge
against him was that the particular routes had been selected because he sought to
take vengeance on the private operators on those routes, as they were his political
opponents. From the course of events, and the absence of an affidavit from the
Chief Minister denying the charge against him, the court concluded that mala fide
on the part of the Chief Minister was established.

In State of Punjab v. Gurdial Singh, the court struck down the land acquisition
proceedings for acquiring the land of the petitioners for a mandi on account of mala
fides. From the course of events, the fact that the acquisition proceedings were
started at the behest of one of the respondents who was a minister in the
government and a politician to satisfy his personal vendetta against the
landholders, and also the fact that the allegations made by the petitioners remained
uncontroverted by the respondents, the court concluded that there was malice on
the part of the government in acquiring the land of the petitioners.

In G. Sadanandan v. State of Kerala, the petitioner, a businessman, dealing in

wholesale kerosene oil was detained under Rule 30(1)(b) of the Defence of India
Rules, 1962 with a view to preventing him from acting in a manner prejudicial to the
maintenance of supplies and services essential to the life of the community. The
petitioner challenged the validity of the impugned order of detention mainly on the
ground that it is mala fideand has been passed as a result of malicious and false
reports, prepared at the instance of Deputy Superintendent of Police. The whole
object of Deputy Superintendent in securing the preparation of these false reports
was to eliminate the petitioner from the field of wholesale business in kerosene oil
in Trivendrum so that his relatives may benefit and obtain the dealership. The
Deputy Superintendent did not file the affidavit to controvert the allegations made
against him and the affidavits filed by the Home Secretary were very defective in
many respects. After considering all the materials the Supreme Court declared the
order of detention to be clearly and plainly mala fide.

In P.B. Samant v. State of Maharashtra, the court held the distribution of cement
against the law and the circulars or guidelines issued by the Government on that
behalf as bad. The distribution of cement was in favour of certain builders in return
for the donations given by them to certain foundations of which the Chief Minister
was a trustee. It was a clear case of mala fide exercise of power. The power to
control the distribution of an essential commodity like cement is given to the
Government with a view to ensuring its equitable distribution. When this power is
used for obtaining donations for a trust, it is a clear case of abuse of power.

In Express Newspapers (Pvt.) Ltd v. Union of India, a notice of re-entry upon the
failure of lease of lease granted by the central government and of threatened
demolition of the Appellants officer buildings was held to be mala fide and
politically motivated by the party in power against the Express Group of
Newspapers in general. The fact of the case was that by an agreement of lease the
petitioner was allotted certain plots for construction of its press building by the
Government of India. The Express Newspapers then constructed its building. The Lt.
Governor of Delhi alleged that the new Express building was constructed in
contravention of municipal corporation laws and served a notice for re-entry and for
its demolition. But the construction of new building was inconformity with the lease
deed and with the express sanction of the lessor i.e. the Union of India. The
Supreme Court observed in the instant case on the allegation of mala fide as
follows: where the mala fides are alleged, it is necessary that the person against
whom such allegation is made should come forward with an answer refuting such
allegations. For otherwise such allegations remain unrebutted and the court would
in such case be constrained to accept the allegations so remaining unrebutted and
unanswered on the test of probability. The Court thus held that on the facts and
circumstances of the instant case the impugned notice was actuated with an
ulterior and extraneous purpose and thus was wholly mala fide and politically
motivated.

In State of Punjab v. V.K Khanna, the Court held that the expression mala fide has a
definite significance and there must be existing definite evidence of bias. The action
would not be mala fide unless the same is in accompaniment with some other
factors which would depict a bad motive or intent on the part of the doer of the act.
Mala fide intent or bias depends upon facts and circumstances of each case. The
dispute in the appeals pertains to the last phase of earlier government and the first
phase of the present government in the State of Punjab. Whereas the former chief
secretary of the State of Punjab initiated proceedings against two senior colleagues.
When Prakash Singh Badal came into power not only chief secretary had to walk out

of the administrative building but a number seventeen officer in the hierarchy of

officers, was placed as the chief secretary and within a period of 10 days of his
entry at the secretariat, a notification was issued, though with the authority and the
consent of Chief Minister pertaining to cancellation of two earlier notification
initiating a CBI inquiry. The High Court attributed it to be a motive improper and
mala fide. Absence of malice has been the main contention in support of the appeal
and adoption of a simple method of disciplinary enquiry was key issue as given by
the appellants. Shri Khanna, a respondent contended that the entire proceeding was
the event of gross violation of basic tenets by reason of malice. Supreme Court
upheld the order of the High Court.

Mala fide is a psychological factor to allege but very difficult to prove. The burden of
proving mala fides is on the person making the allegations, and burden is very
heavy. Neither express nor implied malice can be inferred or assumed. It is for the
person seeking to invalidate an order to establish the charge of bad faith. The
reason is that there is presumption in favour of the administration that it always
exercises its power bonafide and in good faith. Seriousness of allegations demands
proof of a high order and credibility. The Supreme Court in E.P. Royappa v. Tamil
Nadu, brought out difficulties inherent in proving mala fides. The factors which are
important in proof of mala fides: (i) Direct evidence (e.g. documents, tape
recordings etc.), (ii) Course of events, (iii) Public utterance of the authority, (iv)
Deliberate ignoring of facts by the authority and (v) Failure to file affidavits denying
the allegations of mala fides. However, if the allegations are of wild nature, there is
no need of controverting allegations. Mala fides may also be inferred from the
authority ignoring apparent facts either deliberately or sheer avoidance.

(2) Improper purpose. If a statute confers power for one purpose, its use for a
different purpose will not be regarded as a valid exercise of the powers and the
same may be quashed. The cases of exercise of discretionary power from improper
purposes have increased in modern times because conferment of broad
discretionary power has become usual tendency. The orders based on improper
purpose were quashed first in the cases concerning the exercise of powers of
compulsory acquisition in England.

So where the power is exercised for a purpose different from that specified in the
statute, the court will declare the exercise of the power as ultra vires. Where the
land is acquired by 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 Municipal Corporation refused to approve the construction of buildings with a

view to pressurizing the petitioner to provide drainage for the adjoining building,
and where the construction scheme of the petitioner does not contravene.

Improper purpose is broader than mala fides, 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 different 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.

In a few cases on preventive detention the Supreme Court has held that the power
of preventive detention cannot be used as a convenient substitute for prosecuting a
person in a Criminal Court. In Srilal Shav v. State of West Bengal, a preventive
detention order was issued against a person mainly on the ground that he had
stolen railway property. He had documents in his possession to prove his bona fide
and to prove that he had purchased the goods in the open market. A criminal case
filed against him was dropped and the mentioned preventive detention was passed
in its place. The order was held to be bad by the court. Again in L.K. Dass v. State of
West Bengal, the court held that the power of detention could not be used on simple
solitary incident of theft of railway property and the proper course to prosecute the
person was in a criminal court.

(3) Irrelevant considerations. A discretionary power must be exercised on relevant

and not on irrelevant or extraneous considerations. It means that power must be
exercised taking into account the considerations mentioned in the statute. If the
statute mentions no such considerations, then the power is to be exercised on
considerations relevant to the purpose for which it is conferred. If the authority
concerned plays attention to, or takes into account wholly irrelevant or extraneous
circumstances, events or matters then the administrative action is ultra vires and
will be quashed. Thus where an administrative order is issued on formal grounds or
considerations which are irrelevant, it will quashed. The exercise of discretionary
power should not be influenced by considerations that cannot be lawfully taken into
account. The determination of the considerations which are relevant, and those
which are irrelevant, is a matter of inference from the general terms of the statute.

The decision of the House of the Lords in Padfield v. Minister of Agriculture, lays
down the parameters of judicial control of administrative discretion in England. In
this case under the statutory mil-marketing scheme, the prices paid to milk
producers in different areas are fixed by the Milk Marketing Board which consists of
representatives of the producers. The producers near the area of London
complained that though they were in proximity of the London market, yet the price
paid did not reflect the higher value of their milk, and requested the minister to
refer the matter to the Statutory Committee for Complaints. To direct or not to direct
a complaint to the committee was the sole discretion of the minister. The minister in
exercise of his unfettered discretion refused to direct the complaint. One of the
reasons given by the ministry was that minister would be in a difficult political
position if, despite the committees acceptance of the complaint, the minister
should take no action. The House of Lords held that the ministers reasons were
unsatisfactory and his decision was unreasonable. The purpose of the Act was that
every genuine complaint must be forwarded to the committee and anything
contrary to this would frustrate that purpose

In Ram Manohar Lohia v. Bihar, the petitioner was detained under the Defence of
India Rules, 1962 to prevent him from acting in a manner prejudicial to the
maintenance of law and order, whereas the rules permitted detention to prevent
subversion of public order. The court struck down the order as, in its opinion, the
two concepts were not the same, law and order being wider than public order.

In State of Bombay v. K.P. Krishnan, an industrial dispute regarding the payment of

bonus for a certain year was refused to be referred by the Government to a tribunal
for adjudication on the ground that the workmen resorted to a go-slow during the
year. The court held that the reasons given by the Government were extraneous
and not germane to the dispute. The Government acted in punitive manner and this
was inconsistent with the objective of the statute. A claim for bonus is based on the
consideration that by their contribution to the profits of the employer, the
employees are entitled to claim a share in the said profits, and so any punitive
action taken by the Government by refusing to refer for adjudication an industrial
dispute for settlement would in our opinion be wholly inconsistent with the object of
the Act. Where an administrative authority leaves out relevant consideration in the
exercise of its power, such action becomes invalid.

In Barium Chemicals Ltd. v. Company Law Board, this case shows a definite
orientation in the judicial behaviour for an effective control of administrative
discretion in India. In this case Company Law Board exercising its power under
section 237 of the Companies Act 1956 ordered an investigation into the affairs of

Barium Chemicals Ltd. The basis of the exercise of discretion for ordering
investigation was that due to faulty planning the company incurred a loss, as a
result of which the value of the shares had fallen and many eminent persons had
resigned from the Board of Directors. The court quashed the order of the Board on
ground that the basis of the exercise of discretion is extraneous to the factors
mentioned in section 237.

In Rohtash Industries Ltd. v. S.D. Agarwal, was also involved investigation of a

company under Section 237 of the Companies Act. The investigation was ordered on
the grounds that there were several complaints of misconduct against one of the
leading directors of the appellant company in relation to other companies under his
control for which he was being prosecuted, and that the company had arranged to
sell preference shares 9of the face value of rupees three lacs) of another company
held by it for inadequate consideration. About the former, the court (majority) was
of the opinion that it was not a relevant circumstance. About the other ground, the
court found no evidence of the shares having been sold for inadequate
consideration. Bhachawat, J., in his concurring opinion, however, thought about the
latter ground that it was a borderline case and stated that the court had no power
to review the facts as an appellate body or to substitute its opinion for that of the
government. But he agreed with the majority in quashing the government order as
in his opinion the government had not relied on the sale of the shares in question as
suggesting fraud.

In Rampur Distillery Co. Ltd. v. Company Law Board, the Company Law Board
exercising wide discretionary power under Section 326 of the Companies Act, 1956
in the matter of renewal of a managing agency refused approval for the renewal to
the managing agents of the Rampur Distillery. The reason given by the Board for its
action related to the past conduct of the managing agent. The Vivian Bose Enquiry
Commission had found these managing agents guilty of gross misconduct during
the year 1946-47 in relation to other companies. The Supreme Court, though it did
not find any fault in taking into consideration the past conduct, held the order bad,
because the Board did not take into consideration the present acts which were very
relevant factors in judging suitability.

In Brij Mohan Singh v. State of Punjab, the appellant was compulsory retired from
service on the basis of service entries of about 20 years though during that period
he had been promoted many times. The Court held that entries of only last ten
years were relevant for compulsory retirement. During this period two entries were
adverse to the appellant. The Court held that reliance on those two entries was also

not proper and quashed the impugned order as the same was based on irrelevant
considerations.

In S.R. Venkataraman v. Union of India, the appellant, a Central Government Officer,

was prematurely retired from the service in public interest on attaining the age of
50 years. The appellant contended that the government did not apply its mind to
her service record and the order was based on extraneous circumstances. The
government conceded that there was nothing on record to justify the order. The
Supreme Court, quashing the order of the government, held that if a discretionary
power has been exercised for an unauthorized purpose, it is generally immaterial
whether its repository was acting in good faith or bad faith. The Supreme Court
stated that an administrative order based on a reason or facts that do not exist
must be held to be infected with an abuse of power.

The difference between a power exercised for an improper purpose and on

irrelevant considerations is often imperceptible. For instance, where land is acquired
by an authority ostensibly for itself but really for another authority, the power may
be said to be exercised, in one sense, for an improper purpose, but in another
sense, after the authority took into consideration an irrelevant factor, namely,
acquisition of land for another authority, the consideration for the administrative
action being acquisition for itself.

(4) Mixed considerations. Sometimes, it so happens that the order is not wholly
based on irrelevant or extraneous considerations. It is founded partly on relevant
and existent considerations and partly on irrelevant or non-existent considerations.
The judicial pronouncements do not depict a uniform approach on this point. In
preventive detention cases, the courts have taken a strict view of the matter and
has held such an order invalid if based on any irrelevant ground along with relevant
grounds, arguing that it is difficult to say to what extent the bad grounds operated
on the mind of the administrative authority and whether it would have passed the
order only on the basis of the relevant and valid grounds. In Shibbanlal v. State of
Uttar Pradesh,the petitioner was detained on two grounds: first, that his activities
were prejudicial to the maintenance of supplies essential to the community, and
second, that his activities were injurious to the maintenance of public order. Later
the government revoked his detention on the first ground as either it was
unsubstantial or non-existent but continued it on the second. The court quashed the
original detention order. In Dwarka Das v. State of Jammu and Kashmir, the Supreme
Court has observed that if the power is conferred on a statutory authority to deprive
the liberty of a subject on its subjective satisfaction with reference to specified
matters, if that satisfaction is stated to be based on a number of grounds or for a

variety of reasons, all taken together, the exercise of the power will be bad if some
of the grounds are found to be non-existent or irrelevant. In the opinion of the court
if some of the grounds are found to be non-existent or irrelevant, the Court cant
predicate what the subjective satisfaction of the said authority would have been on
the exclusion of those grounds or reasons. However, the Court has made it clear
that in applying this principle the court must be satisfied that the vague or
irrelevant grounds are such as, if excluded, might reasonably has affected the
subjective satisfaction of the appropriate authority. However in the case of
preventive detention generally the courts have quashed the orders of detention
based on relevant as well as irrelevant grounds. But the cases may be found where
the courts have upheld the order of detention valid even where it was based on
mixed considerations.

(5) Leaving out relevant considerations. If in exercising its discretionary power, an

administrative authority ignores relevant considerations, its action will be invalid. An
authority must take into account the considerations which a statute prescribes
expressly or impliedly. In case the statute does not prescribe any considerations but
confers power in a general way, the court may still imply some relevant
considerations for the exercise of the power and quash an order because the
concerned authority did not take these into account. Unless detailed reasons are
given from which it can be inferred that the authority took action after ignoring
material considerations it is hard to have the action quashed on this basis.

In Shanmugam v. S.K.V.S. (P) Ltd., a regional transport authority called for

applications for the grant of stage of carriage permit for a certain route. Under the
statute, the authority had broad powers to grant the permits in public interest, but
the government attempted to control the discretion of the authority by prescribing a
marking system under which marks were allotted to different applicants on the
basis of viable unit, workshop, residence (branch office) on the route, experience
and special circumstances. In the instant case, the branch office on the route, which
the petitioner had, was ignored on the ground that he had branches elsewhere. It
was held that the authority had ignored a relevant consideration. It was an
untenable position to take that even if the applicant had a well-equipped branch on
the route concerned, it would be ignored if the applicant has some other branch
somewhere unconnected with that route.

In Rampur Distillery Co. Ltd. v. Company Law Board, the Company Law Board
exercising wide discretionary power under Section 326 of the Companies Act, 1956
in the matter of renewal of a managing agency refused approval for the renewal to
the managing agents of the Rampur Distillery. The reason given by the Board for its

action related to the past conduct of the managing agent. The Vivian Bose Enquiry
Commission had found these managing agents guilty of gross misconduct during
the year 1946-47 in relation to other companies. The Supreme Court, though it did
not find any fault in taking into consideration the past conduct, held the order bad,
because the Board did not take into consideration the present acts which were very
relevant factors in judging suitability.

In Ranjit Singh v. Union of India, the production quota of a licensed manufacturer of

guns was reduced from 30 to 10 guns a month. The order was challenged on the
ground that the order was not based on relevant considerations but on extraneous
consideration. The Court held the order bad as the Government had not taken into
account relevant considerations in making the order, production capacity of the
factory, the quality of guns produced, economic viability of the unit, administrative
policy pertaining to maintenance of law and order. Any curtailment of quota must
necessarily proceed on the basis of reason and relevance observed the court. The
principle was stated as if all relevant factors are not considered, or irrelevant
considerations allowed finding place, the decision is vitiated by arbitrary judgment.

(6) Colourable exercise of power. At times, the courts use the idiom colourable
exercise of power to denounce an abuse of discretion. Colourable exercise means
that under the colour or guise of power conferred for one purpose, the authority
is seeking to achieve something else which it is not authorized to do under the law
in question then the action of the authority shall be invalid and illegal. Viewed in
this light, colourable exercise of power would not appear to be a distinct ground of
judicial review of administrative action but would be covered by the grounds already
noticed, improper purpose or irrelevant considerations. The same appears to be the
conclusion when reference is made to cases where the ground of colourable
exercise of power has been invoked. In the Somawanti v. State of Punjab, the
Supreme Court stated as the follows with reference to acquisition of land under the
Land Acquisition Act: 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 satisfied
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 satisfied 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 quotation would show that the term colourable exercise of power is
used in the sense of using a power for a purpose not authorized by the Act

conferring the power on the authority concerned. The term colourable has also
been used at times in the sense of mala fide action. Mala fide as a distinct
ground to quash administrative action has already been considered. Colourable
means that the power is exercised ostensibly for the authorized end but really to
achieve some other purpose; in other words, the exercise of power is illegal but it
has been given the guise of legality. Colourable exercise and improper purpose
appear to converge and the two phrases can be used inter-changeably. In the
context of preventive detention, when the court felt that the power of detention
could not be used as a substitute for criminal prosecution, it used the phrase
colourable exercise of power by the executive. The court could have as well said
that the power was exercised for an improper purpose to evade the normal process
of criminal law.

(7) Judicial discretion. At times, the courts have used a vague phrase judicial
discretion to restrict the exercise of discretionary power by an authority. For
instance, it was observed by Supreme Court in Registrar, Trade Marks v. Ashok
Chandra Rakhit, with reference to the power of the Registrar to register a trade
mark that the exercise of the power conferred on Registrar always remained a
matter of discretion to be exercised, not capaciously or arbitrarily but, according to
sound principles laid down for the exercise of all judicial discretion. Through the
use of term judicial discretion the courts would read implied limitations into
statutory powers and quash an administrative order if the authority crossed those
limitations. The term, thus, indicates that such discretion is not absolute or
unqualified. However, its use does not seem to be necessary as the courts have
read implied restrictions on a discretionary power even without characterizing it as
judicial discretion. In any case, the term can be applied properly only to quasijudicial bodies and not to administrative bodies. Most of the principles which apply
to control administrative discretion, and are being discussed here, apply mutatis
mutandis to the exercise of discretion by tribunals or other quasi-judicial bodies.
Thus, a quasi-judicial body cannot be directed by a higher authority to exercise its
discretion in a particular manner. Such a body is to exercise its discretion on
relevant grounds and not on irrelevant grounds and so on.

(8) Unreasonableness. At times the statute may require the authority to act
reasonably. The courts have also stated that the authority should consider the
question fairly and reasonably before taking action. The term unreasonable
means more than one thing. It may embody a host of grounds mentioned already,
as that the authority has acted on irrelevant or extraneous consideration or for an
improper purpose, or mala fide, etc. Viewed thus, unreasonableness does not
furnish an independent ground of judicial control of administrative powers apart
from the grounds already mentioned. The term may include even those cases where

the authority has acted according to law but in wrong manner and where it has
acted according to law and in a right manner but on wrong grounds. Sometimes
statutes itself provides for reasonable exercise of the discretionary power. Under
such conditions the authority concerned had to act reasonably. And, the court will
interfere with the order where it has not been passed under reasonable belief.

Unreasonableness may also mean that even though the authority has acted
according to law in the sense that it has not acted on irrelevant grounds or
exercised power for an improper purpose, yet it has given more weight to some
factors than they deserved as compared with other factors. Interference on this
ground requires going into the relative importance of different factors and their
balancing which amounts to substituting the discretion of the judiciary for that of
the executive. Courts do not normally exercise such wide powers to interfere in the
exercise of the administrative discretion.

Unreasonableness may furnish a ground for intervention by the courts when the
Constitution of India or the statute so requires. Thus, Article 14 of the Constitution
guarantees equality before law but the courts have permitted reasonable
classification to be made. Where the law is valid under the article, a discriminatory
action would still be violative of the equality clause. Similarly, Article 19 requires
only reasonable restrictions to be imposed on the rights specified therein.

In Chandeshwari Prasad v. State of Bihar, the administration authority had cancelled

certain grants of property made to the petitioner by the previous owner on the
ground that the transfer was made with a view to defeating the provisions of Bihar
Land Reforms Act, 1950, and to obtain higher compensation. The court found that
there was no evidence to support the findings of the authority. The court observed :
the word satisfied in Section 4(4) must be construed to mean reasonably
satisfied and therefore the finding of the Collector under Section 4(4) cannot be
subjective or arbitrary findings but must be based upon adequate materials.

The court does not infer the requirement of reasonableness from a statute by
implication. The Supreme Court refused to accept the plea in K.D. Co. v K.N. Singh,
that the court should judge whether the administrative action was reasonable or not
where the statute was silent as to reasonableness. Although the above
Chandeshwari Prasads case is only an exception to this proposition. In Rohtash
Industries Ltd. v. S.D. Agarwal, the Supreme Court quashed on administrative action
taken by the Government under Section 237 of the Companies Act, 1956 on the

ground that no reasonably body would have reached impugned conclusions. Here
the court considered the question as to whether any reasonable body much less
expert body like Central Government would have reasonably made the impugned
order on this basis of the material before it? In such cases the test of judicial
intervention is not what the court considers as unreasonable but a decision which it
considers that no reasonable body could have come to i.e., when the action is
oppressive or falsely absurd.

In Sheonath v. Appellate Assistant Commissioner, the Supreme Court has remarked

that the words reason to believe (for initiating reassessment proceedings) used in
the Income-tax Act suggest that the belief must be that of an honest and
reasonable person based upon reasonable grounds but not on mere suspicion.

There may be cases where the administrative authority might have exercised his
power without any reason. In such cases the court would quash the order.

The Supreme Court observed in K.L. Trading Co. Ltd. v. State of Meghalaya, that to
attract judicial review of administration action, the applicant must show that the
administrative action suffers from vice of arbitrariness, unreasonableness and
unfairness. Merely because the Court may feel that the administrative action is not
justified on merit, can be no ground for interference. The Court can only interfere
when the process of making such decision is wrong or suffers from the vice of
arbitrariness, unfairness and unreasonableness.

It may be mentioned here that in France the reasonableness of the administrative

acts or decisions is examined on a much broader scale than in common law
countries. In France any act can be brought to the test of reason. Every
administrative act or decision is thought to be proper and lawful only if it is
reasonable.