LAW309 FINAL EXAM
CHAPTER 1: SUBSIDIARY LEGISLATION
Definition of Subsidiary Legislation (SL)
Sec 3, the Interpretation Acts 1948 and 1967,
Subsidiary legislation is defined as: ‘any
proclamation, rule, regulation, order, notification,
bye-law, or other instrument made under any Act,
Enactment Ordinance or other lawful authority and
having legislative effect.’
Sec. 25 Interpretation Acts 1948 and 1967 provides
that SL shall be deemed to be made under the Act
under which it has been made.
The Importance of SL
Case: Federal Court in S Kulasingam & Anor v
Commissioner of Lands, Federal Territory & Ors
[1982] 1 MLJ 204 held that,
• “There is nothing to prevent Parliament from
delegating power to legislate on minor and
administrative matters and for that very reason we
have in addition to statutes innumerable
subordinate or subsidiary legislation having force of
law.
• Without this subordinate or subsidiary legislation
the Government machinery will not be able to
function efficiently”
Judicial Control of SL under the Doctrine of Ultra
Vires
By the doctrine of Ultra Vires, any SL may be
declared void under the following grounds :
1. Parent Act that delegates the power to make SL
is unconstitutional (PA the constitution).
2. The SL is inconsistent the Constitution
3. The SL violates the Parent Act (Substantive
Ultra Vires)
4. The doctrine of extended or broad ultra vires
5. Procedural Ultra Vires (Narrow Ultra Vires)
i.SL with Retrospective Effect
ii. Exclusion of Courts
iii. Financial Levy
iv. Unreasonableness
v. Other Grounds
1. Parent Act that delegates the power to make SL
is unconstitutional (PA violated the constitution)
If the parent act is unconstitutional, any SL made
under it will be unconstitutional.
Johnson Tan Han Seng v PP [1977] 2 MLJ 66
Parent Act – Emergency (Essential Powers)
Ordinance 1969
SL – Essential (Security Cases) Regulation, 1975
Law – making authority delegated to YDPA
Fact: The validity of the Regulation, 1975 was
challenged because the Ordinance 1969 was
alleged as unconstitutional as it has lapsed and
ceased to be a law by the effluxion of time and
changed circumstances. Therefore, it was argued
that the regulation made there under also
unconstitutional.
Held: Federal Court (Suffian L.P)
The 1969 proclamation has not been revoked nor
annulled by Parliament. The ordinance has not
been revoked nor annulled. Therefore, they are
still in force and the regulations are valid.
2.The SL is inconsistent with the Constitution
The parent Act is constitutional but the SL made
there under unconstitutional. The court will
invalidate SL if it does not conform with the
provisions stated in the Constitution.
 Teh Cheng Poh v PP [1979] 1 MLJ 50
Parent Act – Emergency (Essential Powers)
Ordinance 1969
SL – Essential (Security Cases) (Amendment)
Regulation, 1975
SL made by YDPA
The appellant (charged for possession in a security
area of a revolver and ammunition) was tried under
the special procedure under the Essential (Security
 LAW309 FINAL EXAM
Cases) (Amendment) Regulations 1975, and found
guilty and sentenced to death.
An appeal to the Federal Court was dismissed and
the appellant appealed to the Privy Council.
He challenged the validity of the regulation made
by YDA under the emergency (Essential Powers)
Ordinance 1969 as unconstitutional under Act
150(2)
Under Art 150(2), the YDA had the power to
promulgate ordinances having the force of law
during a Proclamation of Emergency until both
houses of Parliament were sitting. The power would
come to an end when Parliament sat. The
regulation was enacted 4 years after Parliament’s
first sitting after the Proclamation of Emergency.
Held : Privy Council
The regulation was invalid/void (ultra vires the
constitution – unconstitutional)
YDA no longer had any power to make the
Regulation having the force of law after Parliament
had sat. Once Parliament had sat on 20 February
1971 the Yang di-Pertuan Agong did not have any
power to make Essential Regulations having the
force of law. They are ultra vires the Federal
Constitution and for that reason void
Effects of Teh Cheng Poh v PP
Parliament enacted the Emergency (Essential
Powers) Act 1979 replacing Emergency (Essential
Powers) Ordinance 1969
Sec 2 – all the SL made under the Ord was
validated under the Act. The Act conferred powers
on the YDA to enact what was already done and
with retrospective effect.
The FC in Phang Ching Hock v PP [1980] 2 MLJ 238
upheld the validity of the Act
3. The SL violates the Parent Act (Substantive Ultra
Vires)
• This ground is regulated by Sec 23 of the
Interpretation Acts 1948 and 1967
• Sec. 23(1) – (the basis for judicial review of SL in
Malaysia)
• Any SL which inconsistent with an Act of
Parliament (including and Act under which the SL is
made) shall be void to the extent of inconsistency.
• Sec. 87(d)
• ... no SL made under any Act of Parliament ... shall
be inconsistent with any Act of Parliament ... and no
SL made under a State Enactment shall be
inconsistent with any Act of Parliament ... or
Enactment
• SL is substantive ultra vires when the SL goes
beyond the scope, extent and range of authority
(substance) given by Parent Act
SL made outside the limits & scope of the power
delegated will be declared as void i.e. UV
The test to determine the validity of
Of SL – McEldoney v Forde (1969) 2 All ER 1039
1. What was the power delegated?
2. What was in fact done?
3. Whether SL complies with the description
stated in the parent act?
Case: Ghazali v PP (1964) MLJ 156
Parent Act – Road Traffic Ordinance 1956
SL – General Directive issued by Minister of
Transport
FACT : Sec. 118(5), Road Traffic Ordinance 1956,
the Licensing Board in exercising its discretion in
issuing a license shall give a preferences to an
application from Malay. Under Sec 107, the
Minister of Transport issued General Directive to
the Board – putting condition to the licences issued
to Malays in respect of a taxi or hire car that only a
Malay driver should be employed to drive such a
vehicle.
The appellant was charged with breached of the
condition attached to his license that prohibited his
taxi to be driven by a person other than Malay and
was convicted and fined. He appealed on the
ground that the Licensing Board in imposing the
condition was acting ultra vires.
 LAW309 FINAL EXAM
Held:
The Board acted ultra vires in imposing the said
condition, as it had no power to do so. The
Minister’s authority was limited to issuing
directives on policy to be followed in determining
applications, not matter arising thereafter.
4. The doctrine of extended ultra vires
4.1 SL with Retrospective Effect
• Art (7)1 Malaysian Constitution prohibited
criminal law from having retrospective effect but
not civil law.
• SL should not have retrospective effect unless
expressly allowed by the Parent Act.
• In the absence of express provision in the Parent
Act, a SL with retrospective effect will not be
allowed.
• Sec. 20 Interpretation Acts 1948 and 1967 allows
SL to operate retrospectively (any date – not earlier
than the commencement of the Parent Act).
However, penalty should not be imposed in respect
of any act done before the date on which SL was
published.
**Sec 20 – not applicable where their express
provision.
Case: AG v Gold Storage (Spore) Pte. Ltd. (1979) 1
MLJ 277
• Fact:
• 19 March 1977 – Minister for Communication
made a Port of Singapore, Authority (Property Tax)
Order 1977 under the Port of Singapore Authority
Act 1964. The Order provides “The Property Tax Act
shall apply to all premises of or vested in the Port of
Singapore Authority”
• The operative date of the Order was October 28,
1976. The validity of the Order was challenged on
the ground that the Act did not enable an order to
be made with retrospective effect
• Held:
• The Order was a SL because it had the force of law.
The order was valid for the Act empowers the
Minister to make order having retrospective effect
2. Exclusion of Courts
SL cannot exclude jurisdiction of the courts unless
it is clearly worded in the statue.
SL should not stop (exclude) the citizen from
coming to court to settle their dispute.
Case: Chester v Bateson (1920) 1 KB 829
Fact:
Under the regulation, the property owners are
prohibited
- To eject tenants from their houses if they were
employed in work connected with war material.
-to bring this matter to courts without the consent
of the minister.
Held:
The regulation that forbade property owner from
having access to courts without the consent of the
minister was invalid. The exclusion to the access of
the court can only be inflicted by direct enactment
of the legislature itself.
3. Financial Levy
A charge of a financial levy cannot be imposed
through SL unless the Parent Act confers power for
the purpose.
Sec 44 – Implied powers in respect of fees and
charges.
A power to make subsidiary legislation prescribing
fee or charges includes power to provide for –
(a) the imposition (either generally or under
specified conditions or in specified circumstances)
of
i) specific fees or charges
(ii) maximum or minimum (or maximum and
minimum) fees of or a charges;
 LAW309 FINAL EXAM
iii) no fee or charge;
AG v Wilts United Dairies [1922] K.B. 897
Fact:
 A regulation empowered the Food
Controller to “make orders, regulation or
giving directions with respect to the
production, manufacture, consumption
and distribution of any article.
 The Food Controller issued an order that
no one should deal in milk without a
license. The appellants were granted a
license on the condition that they paid to
the controller a levy per gallon of milk
purchase
Held:
The charge (levy) was invalid because a regulation
can only impose a charge if expressly provided by
the Parliament through the Act.
4. Unreasonableness
The court can declare SL as invalid on the ground of
unreasonable.
The principle of unreasonableness was stated in
Kruse v. Johnson (1989) 2 QB. 91 disclosed faith
The bye –bad laws were unreasonable if there
were found to be
 Impartial and unequal in their operation as
between classes
 Manifestly unjust
 Disclosed bad faith
 Involved such oppressive or gratuitous
interference with the rights of those
subject
 no justification in the minds of reasonable
man
Arlidge v. Islington Corporation [1909] 2K. B. 127
Fact:
A bye law was made by the government requiring
the landlord of a lodging house to clean the house
three times a year in the month of April, May or
June. Penalty was imposed for breach of the bye-
law.
Held: The bye-law invalid as being unreasonable as
it imposed an absolute duty on every landlord to
cause the premises to be clean without regard to
the position in which the landlord might be.
Kruse v. Johnson (1989) 2 Q. B. 9 1.
Fact:
The Kent Country Council made a bye law under the
Local Government Act 1988 prohibiting anyone
from playing music or singing in, any place within 50
yards from dwelling house. The appellant was
summoned for offending the bye-law.
He persisted in singing in a public highway within 50
yards of a dwelling house after having seen
required by a police constable to stop. The occupier
of a dwelling house proved that the singing of the
appellant was an annoyance. Appellant argued that
the bye-law was unreasonable
Held:
The bye-law was reasonable because before the
accused can be charged there must be a complaint
from the public that the act of the accused is
annoying the occupier.
Air India v. Nergesh Meerza AIR 1981 SC 1829
Fact:
AIR India made a rule to retire any airhostess on her
first pregnancy after marriage
Held: The rule was unreasonable, unfair and
unequal in its operation
vagueness
5. Other Grounds
In McEldoney v. Forde – SL can be declared invalid
on the grounds of: vagueness, ambiguity,
arbitrariness, uncertainty and bad faith
These may render a SL void, either as a separate
ground of invalidity or as an aspect of
unreasonableness.
 LAW309 FINAL EXAM
(5) Procedural Ultra Vires (Narrow Ultra Vires)
The parent act may lay down a particular procedure
that the administrative body should follow in
making SL
SL may be held invalid on the ground of Procedural
Ultra Vires
i.e failed to comply with the procedures stipulated
in the parent act.
The prescribed procedure is categorised as
mandatory or directory.
SL is ultra vires for non-compliance with the
mandatory procedure only. It is not so if the
procedure is only directory.
The court treats the following procedure as
mandatory:
i. consultation with a specified body
ii. an opportunity to the affected
persons to file objection against any
proposed measure.
iii. pre-publication of draft rules.
i. consultation with a specified body
Agricultural, Horticultural & Forestry Training
Board v Aylesbury Mushroom Ltd. [1972] 1 All ER
280
• The Minister had failed to consult a small group of
workers in the mushroom growers’ industry, as he
was required to do by the statute, before setting up
a training board scheme, to which those affect
would have to contribute a levy.
• The court held that the scheme was invalid as
against the mushroom growers as they had not
been consulted. They did not, therefore, have to
make a contribution. The court nonetheless did not
invalidate the whole scheme.
ii. pre-publication of draft rules
Raza Bulan Sugar v Rampur Municipality IR S.C.
895
The municipality was required to publish the draft
rules imposing tax in a newspaper published in
Hindi.
The tax proposal in Hindi text was published in a
newspaper printed in Urdu.
The court held that:
the requirement of pre-publication of draft rules
were mandatory
the mode of publication adopted by the
municipality was in compliance of the prescribed
manner
The procedure relating to publication of SL in the
Gazette
If the order “shall be made through publication in
the Gazette” – publication is regarded as a pre-
condition of ‘making’ and hence ‘mandatory’
If the regulation “shall be made and published in
the Gazette” – publication follows the ‘making’ of
regulation and hence it is only ‘directory’
M Ratnavale v Govt of the Federation of Malaya
[1963] MLJ 393
“notifications in the Gazette is a mandatory
provision and without such a notification,
delegation cannot be effective and the so-called
delegate cannot exercise the power purported to
be delegated to him by the Minister”.
CHAPTER 2: NATURAL JUSTICE
1. (AUDI ALTERAM PARTEM)
WHAT IS NJ?
The natural sense of what is right and wrong. NJ
represents the idea that a person entitled to a
hearing, and that the hearing must be a fair hearing.
a procedural safeguard given to the affected person
against undue or improper exercise of power by a
public authority a fair administrative procedure to
be followed by the administrative body i n arriving
at a right decision.
NJ: THE OBJECTIVES
 to allow the affected person to give his
side of the story and to enable the decision
making authority to determine a matter on
a more informed basis.
 LAW309 FINAL EXAM
 to secure justice (i.e. to prevent
miscarriage of justice)
 to ensure fairness and impartiality through
governing the manner of
 arriving at the decisions by the judicial
process
 to avoid erroneous conclusions
 to promote confidence in the fairness of
administrative process.
 If a person or a body exercising judicial
function (quasi-judicial) fails to observe
the rules of natural justice, NJ has been
denied to the applicant and the authority
has acted ultra vires.
 The decision made will be quashed by the
superior court
WHEN CAN NJ BE CLAIMED
Examples:
Art 135(2), Federal Constitution
No member of any service specified i n paragraphs
(b) to (h) of Art.
132(1) shall be dismissed or reduced in rank
without being given a reasonable opportunity of
being heard
Sec. 6(1) & Sec 6(2), the Industrial Co-ordination
Act
The Minister may in his discretion revoke a licence
of a manufacturer, but before doing so, the
Minister may call upon the manufacturer to show
within such period as may be prescribed due cause
why his licence should not be revoked.
The decision of Ridge v Baldwin (1964) marked
the liberal trend in administrative l aw with regards
to the rule of NJ.
The case of Ridge v Baldwin establishes the
principle. The decision makers must observe the
rules of NJ when they exercise their power in
making the decision which affect the rights of an
individual
If the statute is silent as regards procedures to be
followed, the duty
to observe the rules of NJ arises by implication from
the nature of the power conferred.
In Ridge v Baldwin the duty to observe the rules
of NJ can be imposed on decision-making bodies
exercising quasi-judicial functions and
administrative functions.
Ridge v Baldwin [1964] A.C. 40.
Fact:
The law allowed the Committee to “dismiss, any
constable whom they think negligent in the
discharge of his duty...” Ridge, a Chief Constable of
Brighton, had been charged with conspiracy to
obstruct the course of justice but he was acquitted
by the court. In respect of corruption charges,
evidence was not adduced. The committee
dismissed him after 33 years without him being
afforded a hearing before the committee. He
challenged the order of dismissal on the ground
that the committee failed to observe NJ where he
was not allowed to know the full case against him.
Held: (House of Lords)
The termination was ultra vires on the ground that
the applicant’s right to be heard had not been
honoured. His dismissal was declared to be null and
void. The courts can imply NJ even if NJ is not
expressly stated in the statute. An officer cannot be
lawfully dismissed without first telling him what is
alleged against him and hearing his defence.
THE TWIN PRINCIPLE OF NATURAL JUSTICE
1. AUDI ALTERAM PARTEM
(the rule of fair hearing - no one is to be condemn
unheard)
2. NEMO JUDEX IN CAUSA SUA
(The rule against bias- no one may be a
judge in his own cause)
 LAW309 FINAL EXAM
1. THE RULE OF FAIR HEARING (AUDI ALTERAM
PARTEM)
A Party whose rights, property, or legitimate
expectations may be affected by an administrative
adjudication has the right to be heard; Audi Alteram
Partem
The rule aims at providing the party with an
opportunity for a fair hearing before an
administrative decision is reached.
There are common areas where the rules of Fair
Hearing are relevant:
 Licensing cases
– withdrawal or revocation of existing benefit;
refusal to grant a licence
 Employment
– dismissal
 Membership of professional bodies
– termination of membership
 Students
– dismissal on disciplinary matters; exclusion from
academia program
 Members of public services:
– dismissal and rank reduction
2. THE COMPONENTS OF RIGHT TO A
FAIR HEARING
(2.1) Notice or Right to Know the Charge
Notice is a vital requirement of the right of
hearing.
It must give before the proceeding
The means of serving notice
Personal service
Postal service – posting notice to the party’s last
known address.
(2.1) Notice or Right to Know the Charge- continue
Prof de Smith concluded that there are 3 purposes
in giving of notice:
i. to allow a party to make
representations on his own behalf;
and
ii. to allow a party to appear at any
possible hearing of inquiry is held
iii. to enable a party to effectively
prepare his case and to answer the
case against him.
To satisfy these purposes, the notice should include
:
a statement of the time, place and nature of the
hearing
the statutory or other authority under which the
hearing is held
the legal and factual issues which will be discussed
Adequate notice should state clearly the grounds
on which action is to be taken i.e nature of the
accusations @ particulars of offence alleged @ the
charge
The administrative authority cannot specify one
charge and then proceed under another or proceed
to hear other charges of which a party ha s receive
no notice, unless an adjournment is granted to
enable the party to prepare his defence.
The grounds which action to be taken must be
clear, specific and unambiguous. The grounds for
the proceedings must be communicated in writing.
A person must know the charges that he had to
answer and he shoul d be informed of the nature
and content of material which is he being
considered against him (Dixon v Commonwealth,
[1981] 3 ALR 289 )
The particulars set out in the notice cannot be
vague or too generalized as to enable him to
understand the case against him. ( Perkayuan OKS
(No 2) Sdn Bhd v Kelantan SEDC [1955] 1 MLJ 401 )
If an action is taken on several grounds against the
affected person, all the grounds should be informed
 LAW309 FINAL EXAM
to him.
Maradana Mosque Trustees v Badi-ud-din
Mahmud
Fact: The government took over the school on 2
grounds (failed to pay salaries of teachers and
unable to manage the school), but the manager was
asked to explain only one ground (failure to pay
salaries). The managers had no notice of other
grounds, which influenced government’s decision.
Held: Privy Council
The decision to take over the school was quashed –
the managers were not given notice of one ground
i.e. no adequate notice. The Minister was acting in
quasi-judicial capacity and was bound observe the
rule of NJ.
Othman Bin Ali v Telekom Malaysia Berhad [2004]
3 AMR 227
The appellant was dismissed on the ground that he
had been absent from work but the court decided
it was not the real reason for his dismissal. He was
dismissed for something he was not “charged” with
in the first place (failure to improve himself after he
had been given the opportunity by his employer)
and in respect of which he was not given an
opportunity to give explanation. The court decided
that there was a breach of NJ.
An inadequate notice is not a proper notice and the
proceeding based on such a notice would be void /
invalid – infringers NJ
Chong Kok Lim & Ors v Yong Su Hian [1977] 2 MLJ
The Federal Court quashed the decision (the
association’s member was expelled) because no
notice at all was given to the respondent of the
allegations against him or the resolution to expel
him.
2.2 Sufficiency of time and Adjournment
Notice must be adequate in time
• An adequate notice must give a sufficient time
and reasonable opportunity to the affected person
to prepare his defence
• What is “adequate” depends on the facts of each
case. If a statute has laid down a
time limit then the statutory time limit applies
The need for time to prepare a defence is illustrated
in the case below:
• Phang Moh Shin v Commissioner of Police [1967]
M.L.J. 186
Sufficiency of time and Adjournment
CASE: Phang Moh Shin v Commissioner of Police
[1967] M.L.J. 186
The plaintiff challenged his dismissal on the ground
of breach of natural justice. The court found that
the inquiry officer informed him of the charge
against him for the fi rst time just before the
commencement of the hearing, and that he was
never given a copy of the charge. When the plaintiff
asked for an adjournment to prepare his defence it
has been refused by the authority. The court
therefore, quashed the proceedings on the ground
of insufficient notice to him of the charge against
him.
The court further observed that even if the plaintiff
was aware on the subject-matter in respect of
which he was being defaulted, that was quite a
different matter from knowing the precise charge
against him and the penalty to which he would be
liable on conviction for such a charge
2.3 Right to Oral Hearing and Written
Representation
Forms of hearing
oral hearing
written representation
consultation
interview
dialogues
Oral hearing is not regarded as compulsory part
of NJ
Whether hearing should be oral or written
depends on the
 LAW309 FINAL EXAM
situations and the statute in question
e.g. The Statutory Bodies (Discipline &
Surcharge) Act 2000 (Act 605) Regulation 37(2) –
the committee has been given discretion to allow
the officer to be present in persons or to require
him make written submissions.
Regulations 37(1)(b), 37(3), 37(5) – the right to an
oral hearing is to be given to the officer…
Oral hearing is too slow and costly Local
Government Board v Arlidge [1915] A.C. 120
Held : House of Lords
The Board was not bound to conduct the hearing
orally.
Ketua Pengarah Kastam v Ho Kwan Seng
Held : Federal Court
Representation in writing met the test of fair
hearing and it was not necessarily an oral hearing.
An oral hearing in every case would result in the
breakdown of the administration because such a
hearing is too slow, too technical and too costly.
Najar Singh v Government of Malaysia
Fact:
A police officer challenged his dismissal on the
ground that he was entitled to an oral hearing,
which had not been given to him.
Held: Federal Court
Hearing does not necessarily mean an oral hearing.
He never demanded an oral hearing. Had he
demanded and not been given, he would have a
stronger case.
Privy Council – Dismissed the appeal
No denial of NJ in the absence of oral hearing to
him. He was given an opportunity to make an
explanation in writing.
An oral hearing could be claimed as part of NJ
under the following circumstances:
i . complex and technical legal questions involved
ii. complicated questions of fact involved.
Travancore Rayons v Union of India AIR 1971 SC
862
The issue to be decided by the court in this case is
whether the product of the company was subject to
an exercise duty. The company argued that the
product was not dutiable. The Government of India
rejected the company’s contention without giving it
an oral hearing. The court hel d that where the cases
are complex and difficult questions are raised.
ii. The seriousness of charge –
will affect the reputation &
livelihood
Pett v Greyhound Racing Association
Lord Denning held that the inquiry initiated by the
association into the conduct of the appellant (a
licensed greyhound trainer was accused of
administering drugs to a racing dog) was not in
accordance with NJ. It should be done orally
because he was facing a serious charge affecting his
reputation and livelihood. In such a case, fairness
may require an oral hearing.
2. 4 Reasonable Opportunity of Being Heard
Reasonable opportunity of being heard includes
the following elements:
 Duty of the Adjudicating Authority to
disclose evidences or materials to be used
against the affected person
 Right of the affected person to cross-
examine witnesses & to rebut the case
 Right of the affected person to be
represented by a legal counsel (lawyer)
 Duty of adjudicator to give reasons for his
decision
(2. 4.i) Duty of the Adjudicating Authority to
disclose evidences or materials to be used against
the affected person (Right of the affected person to
obtain evidence / Access to documentation)
• All evidence relied upon by the public authority
must be disclosed to the affected person i.e. all
incriminating evidence
 LAW309 FINAL EXAM
available to the committee must be made available
to the affected person.
• The affected person must know what evidence,
has been given and what statements have been
made affecting him.
• Under the principle of NJ, all evidence, written or
oral, that implicates the affected person must be
made known to him automatically.
• Purpose – give him an opportunity to comment,
criticise, explain or rebut the matter i.e. to defend
himself.
Expectations to the rule requiring disclosure of
evidence:
a. the doctrine of ‘public interest privilege’
b. Materials, the disclosure of which would be
detrimental to the public interest, maybe withheld
from the accused. E.g. In some drug trafficking or
other serious wrongs, the name of the informers
should not be disclosed.
c. a document is protected under the Official Secret
Acts or has been declared by the authority to be
‘sulit or ‘terhad’
The adjudicator must not take into considerations
evidence not raised in the hearing or evidence
which the affected person not allowed to rebut
Phang Moh Shin v Comm. of Polce [1967] 2 MLJ
186
Fact: The inquiry officers was having the files
(services sheet, personal record, investigation
paper & papers relating his conduct) --- never
disclosed to PMS during the inquiry.
Held: There was a breach of NJ. The dismissal order
was quashed because he was not given an
opportunity to explain the contents of the
documents
The adjudicator must not take i nto considerations
evidence not raised in the hearing or evidence
which the affected person not allowed to rebut –
Surinder Singh Kanda v The Govt. of the
Federation of Malaya
Fact :
A copy of the report of the Boa rd of Inquiry,
(contained grave allegations against Kanda), was
given to the adjudicating officer by the
Commissioner of Police but not to Kanda. It was this
report that caused the Commissioner to institute of
disciplinary proceeding against Kanda and to
appoint to a person to enquire into Kanda’s conduct
and to report to him. He had no opportunity to
correct or contradict the report.
Held:
Kanda’s dismissal was voi d – a reasonable
opportunity of being heard was not given to him.
There was a breach of NJ because the adjudicating
officer was given the report containing allegations
against SSK without his knowledge.
The administrative authority should not take into
account the past conduct or records of the affected
person unless he was informed about the matters.
Raja Abdul Malek v S/U Suruhanjaya Pasukan
Polis [1995] 1 MLL 311
The court quashed the dismissal order because the
disciplinary authority took into account some
matter outside the charge without informing him.
He was not given an opportunity or to rebut or give
comment on the matters.
Shamsiah Ahmad Sham v PSC [1990] 3 MLJ 364
Fact: S was dismissed for negligence. The
disciplinary authority took into account her past
record and she was not asked to explain.
Held: The Supreme Court
The dismissal order was quashed. She should have
been given an opportunity of stating her case
regarding her past conduct because the dismissal of
a public servant was a serious matter.
 LAW309 FINAL EXAM
2.4.ii Right of the affected person to cross-examine
witnesses & to rebut the case
Sir Rupert Cross on Evidence stated that the
object of cross-examination is two-fold:
a. to elicit information concerning facts in issue or
relevant to the issue
b. to cast doubt upon accuracy of the evidence-in-
chief given against the party seeking cross-
examination.
Cross-examination can be used as mea ns of
securing information.
The right to cross-examine witness should be
conferred where appropriate as a component of
the right to defend oneself.
Cross-examination need to be allowed if its denial
in all circumstances of the case woul d render the
decision an unfair one.
Phang Moh Shin v Comm. of Police [1967] 2 MLJ
186
PMS was not given an opportunity to cross-examine
all prosecution witness and it was amount to denial
of NJ.
2.4.iii Right of the affected person to be
represented by a legal counsel (lawyer)
General rule – right to be represented by counsel
cannot be claimed under the principle of NJ
An advocate is defined in s. 3 of the Interpretation
Acts 1948 and 1967 as a person who is entitled to
practice as an advocate or as solicitor under the law
in force in any part of Malaysia.
The words “counsel”’ “advocate” and “legal
practitioner” are used interchangeably.
Enderby Town Football Club v The Football
Association [1971] 1 All ER 215
The Court held that the Right to counsel is not an
absolute right to the affected person. Court’s
discretion whether to allow a lawyer to appear
before the tribunal
Pett v Greyhound Racing Association [1968]
The court held that NJ required that a lawyer should
represent the plaintiff as he was facing a serious
charge concerning his reputation and livelihood.
Federal Hotel Sdn Bhd v National Union of Hotel,
Bar and Restaurant Workers [1983] 1 MLJ175
The Federal Court characteri sed it as “a gross
violation of fundamental principles of NJ when the
Industrial Court refuse permission to the
appellant’s counsel to act on his behalf and appear
and address the court.
4.2.v Duty of adjudicator to give reasons for his
decision
There is no general duty on the part of the
adjudicator (administrative authorities) to provide
reasons for his decision.
Exceptions where a court may require the giving
of reasons as matter of fairness and openness:
where the duty to provide reason is imposed by law
where personal liberty is involved where the
absence of reasons can frustrate the plaintiff’s
appeal rights where ‘legitimate expectation’ may
give rise to the need for reasons.
Pemungut Hasil Tanah, Daerah Barat Daya, PP v
Kam Gin Paik [1983] 2 MLJ 392
Federal Court held that the land Collector need not
give reasons for compensation paid to the
landowner whose land has been acquired by the
government.
Rohana bt Ariffin v USM [1989] 1 MLJ 487
High Court held that the administrator must give
reason for their decision if they are exercising quasi-
judicial function. A reasoned decision can be an
additional constituent of the concept of fairness.
Neither the disciplinary authority nor the University
Council gave reasons for their decision and the
applicants are entitled to succeed on this ground.
 LAW309 FINAL EXAM
NATURAL JUSTICE
(NEMO JUDEX IN CAUSA SUA)
(INTRODUCTION)
Freedom from bias is one of the 2 major limbs of
rules of NJ
It is a NJ’s requirement that the opportunity to be
heard includes the opportunity to be heard by an
independent and impartial decision maker /
adjudicator
The rules against bias requires that the
adjudicator / decision maker should:
 apply his mind objectively be free bias
 The justifications for the rule against bias:
impartially is one of the characteristics of
a good administration (Frank Report at
para 23)
 the public confidence in the
administrative process can only
be committed when the person
entrusted with the responsibility
making a decision are not
motivated by any desire to deal
with the party.
• TYPES OF BIAS:
Policy bias
personal bias
pecuniary / financial bias
(2) Bias pecuniary / financial interest (Pecuniary/
Financial bias)
Financial bias occurs where the decision maker has
a direct financial interest in the subject matter and
the outcome of the proceeding.
The effect of financial i nterest is that the
adjudicator is disqualified from acting as an
adjudicator.
In order to disqualify the party from hearing the
case, it must be shown that:
the decision maker stands to gain or lose
personality as a result of his decision
the person interested in the outcome of the
decision maker’s brother, cousin, wife or son
(Metropolitant Properties Co Ltd v Lannon [1969]
1 QB 577)
Dimes v Grand Junction Canal [1852] 3 HLC 759
Fact: A company filed a case against landowner. The
Lord Chancellor, a shareholder of a company, (he
held shares worth several thousand pounds) gave
judgement in favour of the canal company.
Held: (HOL)
The decision was set aside (quashed)because of
Lord Chancellor’s financial interest in the company.
In R v Bow Street Stipendiary Magistrate, ex parte
Pinochet Ugarte (No 2) [2000] AC 119
Where an adjudicator has a financial interest in the
outcome of the proceeding, however small, the
decision reached could not stand, and it is
unnecessary to determine whether there is a
reasonable suspicion or real likelihood of bias.
Therefore, a financial bias would disqualify an
adjudicator and it is not necessary to determine
whether there is a real responsibility, or a real
danger, of bias.
Fact: Extradition of the former Chilean dictator for
crimes against humanity and Lord Hoffman who sat
in the case in HOL was a member and the chairman
of Amnesty International Charity Ltd (AICL), a body
that carried out the activities of Amnesty
International (AI).
Held: Lord Browne Wilkinson
although the cases have all dealt with automatic
disqualification on the ground of pecuniary interest,
there is no good reason in principle for so limiting
automatic disqualification. If Lord Hoffman had
been a member of AI he would have be
automatically disqualified because of his non-
pecuniary interest in establishing that Senator
Pinochet was not entitled to immunity.
(3) Bias due to personal interest (PERSONAL BIAS)
• Personal interest is the tendency of the
adjudicator in favour of or against one of the parties
to the proceedings before him.
• Whenever a decision maker becomes personally
involved with one of the parties there arises the
suspicion that a determination may not be reached
 LAW309 FINAL EXAM
exclusively on the meri ts the case as discussed at
the hearing.
family or personal relationship, friendship of the
adjudicator with
(2) PERSONAL BIAS
any of the parties to the proceedings
• This personal or non-pecuniary bias may operate
in many ways;
the adjudicator has business dealing in the matter
Personal hostility or animosity between the
decision maker and a party or his counsel may
create an impression that justice is not seen to be
done.
Effect of personal bias – the adjudicator is
disqualified from adjudicating the case where there
is a real likelihood that a hearing will not be fair (de
Smith at 232 – 437)
AK Kraipak v Union of India AIR 1470 SC 150
Fact:
A Selection Board was formed to select employee
of state service to the Indian Forest Service. The
Acting Chief Conservator of Forest was one of the
candidates and he was a member of the Selection
Board.
Held:
The appointment of Commissioner to inquire the
merit of the scheme could result in suspicion that
justice might not be done. The order was quashed.
(3) POLICY BIAS
• The basic function of government is to formulate
and apply policy
• An officer is part of the department, thus he will
be interested in pursuing and implementing the
policies
• When an administrator acts in adjudicatory
capacity to decide a controversy between an
individual and his department, he may have an
official @ policy bias towards his department
(3) POLICY BIAS-continue
•CASE: GULLAPALLI N RAO V ANDHRA PRADESH
STATE ROAD TRANSPORT CORP. AIR 1959
•The dept of transport drew a scheme for
nationalisation of certain bus routes. Under the
relevant law, before the govt could finalise the
scheme, it was necessary for the govt to hear
objections agst the scheme
•The Supreme Court held the Secretary of the
Transport Dept was disqualified to hear objections
agst the proposed policy, as he was an integral part
of the dept concerned and involved in the making
of policy in questi on
EFFECTS OF BREACH OF NJ
When a decision maker failed to observe NJ in
making an order, the order will be treated as a VOID
or VOIDABLE ORDER.
A voidable order – the order is valid at its inception
and remains valid until set aside by the court
Durayappah v Fernando – the Minister’s order was
attacked for denial of NJ and was voidable and not
a nullity.
A void order – the order is null and void ab initio
Ridge v Baldwin – HOL held that the order of the
watch committee dismissing the Chief Constable
was null and void.
CHAPTER 3: DISCRETIONARY POWER
DEFINITION OF DISCRETIONARY POWER
The power which is exercisable by the
administration authority in which they can choose
between alternative courses of action
The administrative authority vested with the
discretionary power has a range of options and he
uses his personal judgement in making his decision
(making the choice)
 LAW309 FINAL EXAM

NATURE OF DISCRETIONARY POWER has exceeded the power given to him)

The legislature confers discretionary power to the NEED TO CONTROL DP

administrative authority in the statute a nd it is
denoted by the world such as: if it is satisfied if it is
of the opinion
Under Article 24, Federal Constitution
“...if the Federal Government is satisfied that any
citizen has voluntarily claimed and exercised in a
foreign country any ri ghts available to him under
the law of that country, being rights accorded
exclusively to its citizens, it may by order deprive
him of his citizenship “
• Raja Azlan Shah in Pengarah Tanah dan Galian,
Wilayah Persekutuan v Sri Lempah Enterprises Sdn
Bhd. (1979) I MLJ 135 stated “Every legal power
must have legal limit, otherwise there is
dictatorship. Every discretion cannot be free from
legal restraint; where it is wrongly exercised, it
becomes the duty of the courts to intervene. The
courts are only defence of the liberty of the subject
against departmental aggression”. The court
reviews the manner in which the decision was made
(the decision making process) through the doctrine
of Ultra Vires.

JUDIAL CONTROL/REVIEW OVER EXERCISE OF

DISCRETIONARY POWER
GROUND FOR JUDICIAL REVIEWS/CONTROLS
Usually the statutes do not lay down standards to
1. PROCEDURAL ULTRA VIRES
guide the exercise of discretionary powers and
leave the administrators free to exercise the 2. SUBSTANTIVE ULTRA VIRES
powers according to their judgement. This creates
3. EXTENDED ULTRA VIRES
the danger of administrative arbitrariness and
discrimination.

Broad discretionary power has the possibility of a. ABUSE OF DP

misuse of power or abuse of power. In order to
neutralise this danger, some safeguards need to be i. Mala fide
exercised.
ii. Improper purpose
Courts do not interfere with discretionary action
iii. Irrelevant Consideration
or decision if the discretion is exercised properly
and according to the law. iv. Leaving out relevant consideration

However, if the administrator failed to exercise

the discretionary power given to him rightly,
therefore the court will step in to interfere. b. NON-EXERCISE OF DP

i. Authority Not Applying its Mind

DOCTRINE OF ULTRA VIRES ii. Acting Under Dictation

iii. Acting Mechanically

How to Control the DP vested on the
Administrator? iv. Fettering Discretion
Through the Doctrine of ULTRA VIRES

This doctrine means that the courts ensure that
the decision-making body exercises its discretion in
accordance with law.
If the administrator exercised the DP vested on
him arbitrarily – the decision making process will be
reviewed by the court and may be declared UV.
SUBSTANTIVE UV (SUV)
Administrator must confi ne itself within the ambit
and scope of powers/jurisdiction given by law. If the
authority steps out of the limits set by the
controlling statute, then its act is invalid.

UV means beyond the powers (the decision maker

 LAW309 FINAL EXAM
CASE: Fadzil Mohammed Noor v UTM
Facts: A university lecturer was dismissed by the
University Council on the ground that he was
absent without leave.
Under the constitution of the University, only the
Disciplinary Commi ttee has the right to decide on
disciplinary issues. The University Council is the
executive body of the University and not the
disciplinary authority.
Held: A statutory body must act within the limits
and confine to its statutory powers. It could onl y do
such acts as are authorized directly or indirectly by
the statute creating it. Hence it has to follow the
proper procedure as prescri bed by law before
punishing any member of the staff, if not, the
decision made is ultra vires as it goes outside the
limit prescribed by the statute.
CASE: FRANCIS v MUNICIPAL COUNCILLORS OF KL
[1962]
Under Sec 16(5), Municipal Ord. 1948, the power
to dismiss the employees was vested in the
President.
Therefore, the dismissal of the employee by the
Establishment Committee of the Municipal Council
(not the President) amount to wrongful dismissal i.e
the dismissal was UV.
PROCEDURAL UV
Usually the statute lays down certain procedures
to govern the exercise of power by administrative
authority.
The procedural requirement i s characterised as
mandatory or directory.
Mandatory procedural requirement must be
observed. Failure to do so, the administrative action
or decision is procedural UV & invalid.
On the other hand, non-compliance with
directory procedural norms may not vitiate the
exercise of discretionary power.
The court treated the following procedures as
mandatory i.e. the requirement that decision
maker:
 to make an inquiry before taking a decision
 to consult with a specified body before
taking a decision
 to give a hearing to the affected persons
 to record reasons for taking an action
 to take consent of some authority before
taking an action
 to take action within prescribed period
• If the decision or acti on taken by the authority
fails to observe the mandatory procedure
prescribed by the Act, then the decisions/action can
be challenged.
CASE: Pow Hing V Registrar Of Titles
Held: the forfeiture was not legal because the
Collector of Land Revenue di d not comply with the
procedure prescribed by the Land Code in the
process of forfeiting and selling the land; hence, it
was an invasion of the right of property of the land
holder.
CASE: Re Roshidi Bin Mohamed [1988] 2 MLJ 193
Held: The court quashed a detention order made by
the Magistrate (under Sec 6, Drugs Dependants
(Treatment and Rehabilitation) Act 1983) for
failure to comply with the mandatory provisions of
the Act [Sec 6(1), 6(3), 6(4), 6(5)] i.e. failure to give
the detainee (arrested by the police on suspicion of
being a drug dependant) an opportunity to make
representation. The writ of habeas corpus was
issued.
CASE: V. Sinnathamboo V Minister of Manpower
Facts: According to S. 20 of the Industrial Relation
Act, if a workman who is not a member of a trade
union, considers that he has been dismissed
without just cause, he may, within one month of his
dismissal, make representations in writing to the
Director General.
• Held: The non-compliance with the one month’s
rule is fatal to the applicant’s right as the time limit
prescribed by the statute is mandatory.
 LAW309 FINAL EXAM
EXTENDED UV
Broad extended UV allows the court to review the
exercise of wide discretionary power.
Judicial review under broad or extended UV:
The authority abuses its discretionary power
• Mala fides or bad faith
• Improper purpose
• Taking into consideration irrelevant matters
• Not applying relevant consideration.
• Unreasonableness
The authority fails to exercise its discretion
(non-exercise of discretion)
• Authority not applying its mind
• Authority act under dictation
• Authority act mechanically
• Fettering discretion
ABUSE OF DISCRETIONARY POWER: MALA FIDE
The exercise of discretionary power by the
authority should be exercise with good faith. Any
action taken or decisi on made by the authority
should not be tainted by mala fide i.e. dishonest
intention or corrupt motive behind a discretionary
act, which leads to abuse of powers.
Include cases of personal spite, animosity, or
malice, fraud, corruption or dishonesty on the part
of the decision making authority.
Examples:
- the motive behind the discreti onary act is personal
animosity against the person affected
- the authority concerned or their relatives/friends
stand to gain benefit from the discretionary act
- the authority uses his power to satisfy his personal
or political purposes.
An exercise of discretionary power should not be
done with bad faith by
authority. Any mala fide exercise of discretionary
power by administrative authority is invalid.
ABUSE OF DISCRETIONARY POWER: MALA FIDE
CASE: RE TAN SRI RAJA KHALID BIN RAJA
HARUN [1988]
Held: The applicant’s detention by Inspector
General of Police was invalid and unjust (he was
detained on the ground of disturbing public
security). His detention was based on mala fide as
there was no evidence to suggest that he is in a
position to do something in the future, which will
affect the security of the country. Habeas corpus
was granted because there were elements of mala
fide in his detention.
CASE: Partap Singh v State of Punjab AIR 1964 SC
72
Held: Supreme Court
Disciplinary action initiated against an employee
(Petitioner, a civil surgeon) by the government on
the ground of accepting a small bribe from patient
was quashed as it felt satisfied that the
discretionary power was used with malicious
motive – Chief Minister of Punjab has a grudge
against him because of certain incidents. (the
charge of mala fide against the Chief Mini ster was
established).
The onus of providing mala fide is on the person
who makes the allegation i.e. to prove improper or
bad motive and not mere suspicion. He needs to
establish that the action taken by the authority is
caused by bad motive against him. The onus
providing mala fide is difficult to discharge
(Abdoolcader SCJ in PP v Dato Yap Peng [1987] 2
MLJ 311) -and in this case the applicant had failed
to prove the existence of mala fide.
 LAW309 FINAL EXAM
UNLAWFUL OR IMPROPER PURPOSE
The exercise of discretionary power should not be
taken for improper purposes i.e. a purpose which
lies outside the scope and purpose of the statute.
The purpose of taking such action or making a
decision must be in conformity (corresponded) with
the purpose stipulated in the Act.
Exercising of discretionary power for improper
purpose is unlawful.
CASE: SYDNEY MUNICIPAL COUNCIL V CAMPBELLS
Fact: The council was empowered by statue to
acquire land for the purpose of making or extending
streets, or for carrying out improvement in or
remodelling any portion of the city. The council
decided to acquire the respondent’s land for the
purpose of remodelling and improving the city.
Held: Privy Counci
No plan for improvement or remodelling has been
decided upon the Council. The land was not really
required for the stated purpose but rather by
unauthorised or improper purpose of enabling the
council to obtain the benefit of an expected
increase in the value of the land.
CASE: PENGARAH TANAH DAN GALIAN v SRI
LEMPAH ENT [1979]
The applicant planned to develop the land by sub-
dividing it into several lots, each under a separate
title and to convert a part of this land to commercial
use. The authority imposed a condition that the
applicant should surrender his freehold title to the
land to the authority and accept a part of the land
on lease for 99 years.
It was held that the condition apply is irrelevant to
the permitted development and therefore was
invalid.
TAKING INTO CONSIDERATION IRRELEVAN T
MATTERS
• In exercising discretionary power, the public
authority must ensure that its decisions are not
guided by irrelevant consideration i.e. those
matters lying outside
the scope of the statute concerned.
• If the statute spells out the relevant criteria which
have been taken into consideration in exercising
the given power, then the task of the court is to
assess whether relevant considerations have been
applied and irrelevant considerations not taken into
account.
If the authority takes into account certain
irrelevant circumstances or consideration in
exercising its discretionary power, the act or
decision can be declared invalid.
The principle was formulated in Short v Poole
Corporation
“It may be possible to prove that an act of the public
body, though performed in good faith and without
the taint of corruption, was so clearly founded on
irrelevant grounds as to be outside the authority
conferred on the body and therefore inoperative”
CASE: CONGREVE v SECRETARY OF STATE FOR
HOME AFFAIRS [1976]
Revocation of a TV licence was quashed for the
power was exercised for reasons, which were bad
in law. A licence, valid for 12 months, was revoked
prematurely by the Minister simply to enable him
to raise more money. The court ruled, “Want of
money was no reason for revoking a licence”. Thus,
the governmental powers are to be used only on
proper grounds.
CASE: MARADANA MOSQUE TRUSTEES V
MAHMUD
The Privy Council quashed a Minister’s order to
take over a management of a private school
because it was based on irrelevant considerations.
The Minister had to consider whether the school is
being mismanaged at the time of making an order
and not whether it was mismanaged in the past.
Since the Minister considered the past act, so he
lacked jurisdiction to declare such order.
 LAW309 FINAL EXAM
CASE: Padfield v Minister of Agriculture (1968) 1
AER 694
Fact: Appellant complained to the Minister and
asked that the complaint be referred to a
Committee of Investigation. The Minister declined
to do so as he did not consider the matter suitable
for such investigation. The Divisional Court granted
an Order of Mandamus directed the Minister to
refer the matter to the Committee of Investigation.
The case went up to the Court of Appeal and the
order was set aside. The matter then went up to the
House of Lords (HOL).
• Held: The Minister had used his discretion in a
manner, in which was not in accordance with the
intention of the statute. The decision was based on
bad reason and extraneous consideration.
NOT APPLYING RELEVANT
CONSIDERATION/LEAVING OUT RELEVANT
CONSIDERATION
The relevant consideration was not taken into
account.
CASE :Re Tan Boon Liat (1977) 2 MLJ 18
The detention order was quashed as Art. 151(1)(b)
of the Federal Constitution was not taken into
consideration when reaching the decision.
CASE: Robert v Hopwood [1925] AC 578
Failure to consider the cost of living and the interest
of the ratepayer was considered as contrary to the
law.
UNREASONABLENESS
• Unreasonableness means something so absurd
that no reasonable or sensible person could have
come to that decision.
• In Tameside, HOL held that two reasonable
persons can reasonably come to opposite
conclusions but to be unreasonable an act must be
of such a nature that no reasonable person could
possibly entertain such a thing. This effect gives
judges with discretion of deciding what a
reasonable man might think.
CASE:Roberts v Hopwood
The council had given a power to employ servants
and may state the wages as the council may think
fit. The council paid a minimum wage of $4 for every
employee regardless of the nature of the work done
by him.
Held: The discretionary power conferred upon the
council had to be exercised reasonably. The fixing
of salary by the council wi thout regard to existing
labour conditions was not an exercise of that
discretion.
NON EXERCISE OF DISCRETION: AUTHORITY NOT
APPLYING ITS MIND
• Authority must personally exercise the
discretionary power given to them ie – apply its
own mind on the facts and circumstances of each
case and come to a decision.
• Eg- to consider the merits of an application.
CASE: Sukumaran s/o Sundaram v Timbalan
Menteri Hal Ehwal Dalam Negeri Malaysia (1995)
• Fact: Detention Order was issued against SS.
According to the wording of the order it was the
Minister and not the Timbalan Minister who was
satisfied that SS be detained but he did not signed
the order.
• High Court: quashed the detention order made
under S. 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969 because the
detention order was signed by the Timbalan
Menteri without applying his mind. The Minister
can only be said to be satisfied if he himself signed
the order.
S. 4(1) of the Emergency (Public Order and
Prevention of Crime) Ordinance 1969:
“If the Minister is satisfied that with a view to
preventing from acting in any manner prejudicial to
public order it is necessary that that person be
detained, the Minister shall make an order directing
that that person should be detained….”
 LAW309 FINAL EXAM

NON EXERCISE OF DISCRETION: FETTERING

NON EXERCISE OF DISCRETION: AUTHORITY DISCRETION

ACTING UNDER DICTATION
• If the decision maker does not consider the
matter itself, the action taken is invalid.
• Eg – the authority acts under the direction of his
superior officer.
• Hence, there shouldn’t be any interference or
dictation from any higher officer.
• When an authority uses a policy to regulate its
discretion without taking into account the different
merits of each individual case, the decision can be
challenged.
• The policy created must not be used in an
inflexible way.

• The principle is found in Simms Motor Unit v
Minister of Labour when the court quashed an
order made by the national service officer acting
under the direction of the Minister.
CASE: P. Patto v Chief Police Officer Perak
• Fact: Appellant applied to the OCPD for
permission for holding a dinner and a lion dance in
public place. Sec 27(2) of the Police Act
empowered the OCPD himself who is the licensing
officer to grant or refuse permission. The OCPD in
this case, instead of dealing with the application, he
forwarded the application to the higher authorities.
The application was rejected by the CPO. The
decision was then challenged.
• Supreme Court: the refusal was invalid. Power to
grant license is vested in the OCPD himself who is
the licensing officer. CPO is the appellate authority.
CASE: B. LAVENDER V MINISTER OF HOUSING
Govt adopted a policy to reserve high quality
agricultural land for purpose of agriculture against
disturbance by gravel working. The Minister of
Housing who has discretion to allow extraction of
mineral refused permission to the petitioner to
extract minerals from an agricultural holding on the
ground that the Minister of Agricultural objected to
the proposed use of the land for reasons of
agriculture.
Held : The refusal by the Minister of Housing to give
permission for the extraction of minerals due to
objection from the Mi nister of Agriculture was held
to be a fettering of discretion and an improperly
delegated power of discretion. The order was
quashed on the following ground:
– The Minister followed an inflexible policy

– The Minister left the making of the decision to the

Minister of Agriculture who had no power to make
NON EXERCISE OF DISCRETION: ACTING
an effective decision.
MECHANICALLY

• Authority must apply its mind to the facts and

circumstances of the case before taking an action.

CASE: Emperor v Sibnath Banerjee

• Privy Council: quashed a detention order issued

by the Home Secretary which was issued
automatically on the recommendation of the
police. The Home Secretary’s personal satisfaction
was a condition precedent to the issue of the order.

In such situation, the Home Secretary did not

personally satisfy himself whether such an order
was justified or not.