DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

SESSION 2018-19

SUBJECT: ADMINISTRATIVE LAW

FINAL DRAFT

ON

ADMINISTRATIVE DISCRETION AND JUDICIAL REVIEW

Submitted to: Submitted by:

Ms. Ankita Yadav Sankalp Patel

Assistant Professor (Law) BA.LLB(Hons) 5th Sem

Enrollment No.- 160101131

 ACKNOWLEDGMENT

I would like to express my gratitude to all those who gave me the possibility to complete this
project. This project is the result of extensive literature study, hard work and labour put in to
it to make it worth reading. I extend my heartily thank to Ms. Ankita Yadav who inspired
me to do this project. I am deeply indebted to him.

I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY who helped me in getting all the materials necessary for the project.
 RESEARCH METHODOLOGY

Method of Research
The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the library at the Dr RMLNLU and also the internet sources.

Aims and Objectives:

The aim of the project is to present a detailed study of the “Administrative Discretion and
Judicial Review.

Sources of Data:
The following secondary sources of data have been used in the project-
1. Books
2. Websites

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 TABLE OF CONTENTS

1.Introduction…………………………………………………………………………………….4

2.Definitions given by renowned authors………………………………………………………5

3.Case laws………………………………………………………………………………………..6

4,Basis of discretion………………………………………………………………………….......7

5. Factors contributing to the growth of discretion…………………………………………....9

6. Judicial review………………………………………………………………………………..10

7. Case laws……………………………………………………………………………………...11

8. Conclusion……………………………………………………………………………………12

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 INDEX OF AUTHORITIES

Cases

Arora v. State Of U.P .................................................................................................................... 10

Arora v. State of Uttar Pradesh, AIR 1962 SC 1164 .................................................................... 10
Calcutta Electricity Supply Corporation v. Workers Union ........................................................... 9
Chugamal v. Chaliha, AIR 1971 SC 730 ........................................................................................ 9
DR. Pratap Singh v. State of Punjab ............................................................................................... 9
Hriday Narayan v. ITO ................................................................................................................... 6
Pratap Singh v. State of Punjab, AIR 1963 P H 298....................................................................... 8
Secretary of State for Education & Science Vs Tomeside Metro Borough Council ...................... 6
Sharp v. Wakefield.......................................................................................................................... 7
Sheriff Ahmed v. R.T.O Meerut (1978 ........................................................................................... 6
State of bombay v. K.p. krishnan .................................................................................................. 10
State Of Madras V. Sarthi ............................................................................................................ 10
United States v. Wonderlich ........................................................................................................... 6
UOI v. Kuldeep Singh (2004 .......................................................................................................... 6

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 INTRODUCTION

Discretion has been defined as the freedom or authority to make judgements and to act as one

sees fit. i.e. to say, free exercise of power as regards the ability to choose from different ways to

achieve a particular goal or result.1 Administrative discretion would mean choosing from various

available alternatives but with reference to rules of reasons and justice and not according to

personal whims.”2 Invariably, in all systems of iurisprudence, accepted norm that the Courts will

not interfere with the action pursued by such authorities in exercise of their administrative

discretion.

Administrative discretion refers to degree of latitude of flexibility exercised by public

administrators when making any business or conducting any public business.3 The chief source

of discretion is legislations. There is a difference of degree. Discretion could be of a very high

degree, medium level, and a very low level discretion and no discretion. Wider is the discretion,

more is the danger.

It cannot be expected of the Courts to have the time and competence to judge each and every

matter, let alone substitute it's wisdom for that of the authority concerned. Again, this does not

mean that the Courts will not interfere at all. They will not allow discretionary power to assume

the garb of arbitrary power. The Courts have to ensure that discretion is exercised strictly within

the conditionalities laid down by the law while exercising such discretion. Today, the question of

1
See, I. P. Massey, Administrative Law, 62 (1985).
2
See, M. P. Jain, Principles of Administrative Law, 330 (1993).
3
See, William T. McLeod, The New Collins Concise Dictionary of the English Language, 319
(l985).
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control of discretionary power is perhaps the most crucial and critical problem of modern

administrative law.

DEFINITIONS GIVEN BY RENOWNED AUTHORS

Prof. Julius Grey -Discretion is a power to make a decision that cannot be determined to be

right or wrong in any objective way.

J. Edward Coke -J. Edward Coke defined discretion as "Discretion is a science of

understanding, to discern between falsity and truth, between wrong and right, between shadows

and substance, between equity and colourable glasses and pretences, and not to do according to

their men's will and private affections."

Kar & Lawson- Many of the acts performed by public authorities or public offices are done in

strict obedience to rules of statute or common law which impose on them a simple or definite

duty in respect of which they have no choice.

Lord Diplock Comment on Discretion in

Secretary of State for Education & Science Vs Tomeside Metro Borough Council4

The very concept of Administrative discretion involves a right to choose between more than one

possible course of action upon which there is a room for reasonable people to hold different

opinion as to which is to be preferred.

4
1977 AC 1014

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 CASE LAWS

1. Secretary of State for Education & Science Vs Tomeside Metro Borough Council5

The very concept of Administrative discretion involves a right to choose between more than one

possible course of action upon which there is a room for reasonable people to hold different

opinion as to which is to be preferred.

2. UOI v. Kuldeep Singh (2004)

(i) Discretion means to discern between right and wrong. It is to choose the best.

(ii) Whoever exercises the discretion is bound by reason and rule of law.

Discretion should be governed by rule of law.

3. Hriday Narayan v. ITO6

In this case correction of clerical errors were considered to be ministerial function only.

4. Sheriff Ahmed v. R.T.O Meerut (1978)

Discretionary power involves exercise of power using discretion which is based on subjective

satisfaction. The expressions depending discretion are – Whenever the authority deems it

necessary, reasonable, appropriate, if it is satisfied, if it is of opinion.

5. United States v. Wonderlich7 -Justice Douglas commented upon the importance of

Administrative Discretion. But he stated that Absolute discretion is a ruthless master. It is

more destructive of freedom than any other human invention.

5
ibid
6
1971 SCR (3) 683
7
US SC 1951
7
 6. Sharp v. Wakefield8

The word discretion means choosing from other available options. This choice should be based

on rules of reasons and justice and not on personal whims and fantasies of an individual. Such

exercise must not be arbitrary, vague and fancible. But it should be real and regular.

Basis of Discretion

1) Autonomy and Legality

2) Procedural Impropriety

3) Proportionality

4) Rationality

Factors Contributing to the growth of Discretion

1) Need of control in the area of welfare, economy and environment.

2) The limited legislative capacity, resources and time.

3) Need of technical expertise in the area of social order and welfare (mental health, childcare,

juvenile justice) and claims of science justifies an increase in the discretionary power of

institutions and experts.

4) Complexity of subject matter.

5) Shift in power structure of the modern state.

6) Discretion is often desirable for individual justice.

8
1891 AC 173

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 JUDICIAL REVIEW

By way of Judicial review Judicial control is imposed on administrative discretion. The position

of law with regard to judicial review is such that Courts cannot substitute their view. Courts

shall not act as appellate body. Court is not an appellate authority where correctness of order of

administration can be canvassed.9

It is not for the Court to put itself in the place of the concerned authority and decide whether or

not it would have come to the same decision as arrived at by the authority. All that it should do

would be to see whether the power has been exceeded or acted upon in a manner unbecoming of

the said discretion. The judicial power of interference with the exercise of administrative power

on the ground of an authority acting contrary to law has been found to have enough flexibility to

check abuse of discretion.”

Extent of Judicial Control-Whenever a discretion is conferred on an administrative authority,

guidelines are also issued for the exercise of that discretion. If the administrative authority

exceeds that parameter, the actor decision could be held to be ultra-vires not having the authority

of law.

This is because the authority cannot exceed the limitation set by the parent statute itself. Thus the

Court has to see whether the decision was reached in a proper manner or not, if yes, the Court

will not set aside the order of the authority. But, on the other hand, if the Court comes to the

conclusion that there were some extraneous reasons for such an order, the Court may in it's

wisdom set aside or quash such order.

9
Pratap Singh v. State of Punjab, AIR 1963 P H 298

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"The Court, in the exercise of it's judicial review, is not concerned whatsoever with the

correctness of the findings of fact on the basis of which orders are made as long as those findings

are reasonably supported by evidence.

order can be upheld, it should be upheld if there is no other vitiating factor.

Grounds of Abuse

Where the discretionary power is conferred on the administrative authority for one purpose, it
cannot be exercised to achieve another purpose, and if done, it would be a clear abuse of that
power. So though the intentions may be good, if it is outside the purported objective, it would be
likely to be struck down. It is necessary to go into the motive for which the action was taken in
particular manner.” Whenever a discretionary power is conferred, it must be exercised keeping in
mind the relevant consideration for that purpose, i.e. to say factors which would have a direct
bearing on a reasoned order, instead of considerations

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 CASE LAWS

1. DR. Pratap Singh v. State of Punjab10-

In Pratap Singh v. State of Punjab11 an order of suspension of a civil surgeon was set aside on

the ground that it was a clear mala-fide exercise of power as it was shown that the Chief Minister

had personal animosity towards him. It was further held that for establishing mala-fide, direct

evidence was not necessary when such an inference was inevitable from the circumstances

shown. Normally, if the plea of mala-fide is not taken, the order will appear to be valid on the

face of the record. Consequently, the burden of proving mala-fide is on the person making the

allegation. Usually there is a presumption in favor of the administration that the exercise of such

power was in good faith and for public benefit.12 However the Courts will not accept vague and

casual allegations suggesting that a particular action was taken with an ulterior motive. It is for

the petitioner to conclusively prove mala-fide exercise of power failing which the order will be

upheld.13

2. In Calcutta Electricity Supply Corporation v. Workers Union14,” –

The authorities had the discretion to award a claim for the medical expenses of the employees,

the Court held that in doing so, it could not grant aid to the families of the employees, as such a

10
AIR 1963 P H 298
11
AIR 1963 P H 298
12
ibid
13
Chugamal v. Chaliha, AIR 1971 SC 730.
14
1994 SCC (6) 548

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power was not mandated. The Courts seems to have taken the view that if there is anything to

show that an order can be upheld, it should be upheld if there is no other vitiating factor.15

3. Arora v. State Of U.P.16- In Arora v. State of Uttar Pradesh17

where the State Government was authorised to acquire land for a company for public purpose

and where it was acquired for a Private Company, the Court held the order to be bad as based on

irrelevant consideration. The Court clearly specified that it was up to the Courts to interpret

provisions and not for the Government do so.

4. State Of Madras V. Sarthi18 -

Section 10 of the Industrial Dispute Act, 1947 was in question. Where if the govt. is of opinion

that any industrial dispute exists or apprehended, it can refer that dispute to adjudication by an

Industrial tribunal. It was held by SC that in making the reference, govt. was doing an

administrative act and the factual existence of the dispute and the expediency of making a

reference in the circumstances of a particular case were matter entirely for the govt. to decide.

5. State of bombay v. K.p. krishnan19-

Sec 12 of Industrial Dispute Act stated that govt. is required to record reasons for not referring

any dispute to Industrial Tribunal. It was held by SC that the court could not examine the

propriety, correctness, adequacy or satisfactory character of the said reason.

15
Calcutta Electricity Supply Corporation v. Workers Union, 1994 SCC (6) 548
16
AIR 1962 SC 1164.

17
Arora v. State of Uttar Pradesh, AIR 1962 SC 1164.
18
AIR 1964 SC 1230
19
AIR 1960 SC 1223

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 CONCLUSION
It has been repeatedly held that the Courts will not go into the merits of the case except to look

into the manner in which the power was exercised. If it is found to have been exercised in the

manners previously discussed, the Court will set aside or quash the order. There seems to be

some slight contradiction in the positions adopted by the Court. While on one hand, the Court

refused to go into the merits, on the other it goes into how the powers were exercised. How can

the validity of the procedure be gone into without going into the merits of the cases? The line of

separation between the two seems to be very thin indeed. The Courts over the years seem to have

realized that the best way to control or stem abuse of discretion is to be as strict as possible in

certain cases while being liberal in some other appropriate cases.

The Courts will not under any circumstances substitute its own views for that of the concerned

authority. In spite of everything, the Courts still play a marginal role in the control of exercise of

discretionary power. The Courts seem to have taken it upon themselves to fill in the gaps by

looking into the enabling act, and determining the parameters within which such discretion ought

to have been exercised. Further the Courts seem to be insisting on speaking orders to enable

them to comment on its validity in case of any dispute. The Courts have been very cautious in

dealing with such cases as interfering in every other order would mean taking away the very idea

behind which the discretion was granted in the first place. J. Douglas – Law has reached its finest

moments when it has freed man from unlimited discretion of some ruler. Where discretion is

absolute, man has also suffered.

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 BIBLIOGRAPHY

BOOKS

 DURGA DAS BUSU, ADMINISTRATIVE LAW, 168 (1993).

 I.P. MASSEY, ADMINISTRATIVE LAW, 62 (1985).

 M. P. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, 330 (1993).

 WILLIAM T. MCLEOD, THE NEW COLLINS CONCISE DICTIONARY OF THE ENGLISH LANGUAGE,

319 (L985).

 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, 13TH EDN. (WADHWA AND COMPANY,

NAGPUR).

 M. P JAIN, INDIAN CONSTITUTIONAL LAW, 5TH EDN. (WADHWA AND COMPANY, NAGPUR)

WEB RESOURCES

 HTTP://WWW.MANUPATRA.COM/

 HTTP:// WWW.LEGALSERVICESINDIA.COM/

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