The act of
“arbitrariness” may ordinarily mean, exercise of powers or exercise of
discretion, according to one whims and personal choices, taking into
considerations the irrelevant factors, not taking into considerations the
factors which should have been considered whilst taking decisions or whilst
acting, or acting in disregard of express statutory mandate or acting in
disregard of legal principles or in disregard of any principle or logic, common
sense or fairness. Arbitrariness is violence to common
sense of a prudent man. When discretion is assumed absolute, man has always
suffered.
The Rule of law prohibits arbitrary action and also makes it
liable to be invalidated. The expression “Rule of Law” may have varied
dimensions, and the most apt explanation to this expression appears to be, “The
People have an absolute / unqualified right to be Ruled / governed/ regulated
by Law, and not by individual whims and fancies”. This is also in fact and
precisely the mandate of Article 14 of our Constitution, which among other
things, guarantee equal protection of laws to all the persons. And therefore,
whenever the laws of the land are not adhered to, causing prejudice or any loss
to any person, he can claim that his fundamental right recognized under Article
14 stands abridged.
The fundamental right of equality in Article 14 has been so
construed as to make the concept of reasonableness and non arbitrariness
pervade the entire Constitutional scheme as golden thread running through the
whole of the fabric of the Constitution – AIR 1981 SC 487; AIR 1974 SC 555.
Shrilekha
Vidyarthi Versus State Of Uttar Pradesh [AIR 1991 SC 537]
Para 36: The meaning and true import of
arbitrariness is more easily visualized than precisely stated or defined. The
question, whether an impugned act is arbitrary or not, is ultimately to be
answered on the facts and in the circumstances of a given case. An obvious test
to apply is to see whether there is any discernible principle emerging from the
impugned act and if so, does it satisfy the test of reasonableness. Where a
mode is prescribed for doing an act and there is no impediment in following
that procedure, performance of the act otherwise and in a manner which does not
disclose any discernible principle which is reasonable, may itself attract the
vice of arbitrariness. Every State action must be informed by reason and it
follows that an act uninformed by reason, is arbitrary. Rule of law
contemplates governance by laws and not by humour, whims or caprices of the men
to whom the governance is entrusted for the time being. It is trite that be you
ever so high, the laws are above you'. This is what men in power must remember,
always.
Art. 14 strikes
at arbitrariness in State action and ensures fairness and equality of
treatment. It requires that State action must not be arbitrary but must be
based on some rational and relevant principle which is non-discriminatory: it
must not be guided by any extraneous or irrelevant consideration, because that
would be denial of equality.
Any action that is arbitrary must necessarily involve
negation of equality – Article 14 springs into action – strike down such action
– (2011) 8 SCC 737 – Para 50.
Every action of the Executive must be informed with reason
and free from arbitrariness – being the essence of rule of law – (2011) 5 SCC 430 – Para 21
Illustrations of
Arbitrariness
I would borrow the wisdom of Dr Upendra Baxi, one of
the finest Indian Legal mind.
(1) As an
Authority of Public Power, I have this and that power. I exercise it in this or
that manner because I so wish. The only good reason which I exercise my power
this or that manner is that I wish to exercise it in this or that manner.
(2) As an
Authority of Public Power- I may so act as to favour some and disfavour others;
(3) As an
Authority of Public Power- I may so act as to give an impression that I am
acting within my powers but in reality I may be acting outside it;
(4) As an
Authority of Public Power- I may decide by myself what your rights and
liabilities are without giving you any chance to be heard, Or I may make your
opportunity to be heard a meaningless ritual;
(5) As an
Authority of Public Power- I may decide but declines to let you know the
reasons or grounds of my decisions or provide reasons without being reasonable;
(6) As an
Authority of Public Power- I may use my power to help you only if I am
gratified in cash or in kind;
(7) As an
Authority of Public Power- I may choose to use my power only after a good deal
of delay and inconvenience to people;
(8) As an
Authority of Public Power- I may just refuse to exercise the powers I have
regardless of my legal obligation to act and regardless of social impact of my
inaction;
In modern
democracies, wide powers vest with Legislators, Judges and with Administrators,
with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite
fancy, in any or all the ways thus far specified hereinbefore.
I start with one classic
landmark English case – The padfield Case [1968] AC 997, decided by one of
the most celebrated Judge of England- Lord Denning. This is how Lord Denning
dealt with the case before it. His Lordship said –
“It is plain to me that by these
provisions parliament has provided machinery by which complaints of farmers can
be investigated by a committee which is independent of the board and by which
those complaints, if justified, can be remedied. No other machinery is
provided. This case raises the important question: How far can the Minister
reject the complaint out of hand ? Is the Minister at liberty in his unfettered
discretion to withhold the matter from the committee of investigation and thus
refuse the farmers a hearing by the committee ? And by refusing a hearing,
refuse a remedy ? Mr Kemp, who appeared for the Milk Marketing Board, contended
that the Minister need not consider the complaint at all. He could throw it
into the waste paper basket without looking at it. The Solicitor General did
not support this argument It is clearly untenable. The Minister is under a duty
to consider every complaint so as to see whether it should be referred to the
committee of investigation. I can well see that he may quite properly reject
some of the complaints without more ado. They may be frivolous or wrong headed:
or they may be repetitive of old complaint already disposed of. But there are
others which he cannot properly reject. In my opinion every genuine complaint
which is worthy of investigation by the committee of investigation should be
referred to that committee. The Minster is not at liberty to refuse it on
grounds which are arbitrary or capricious. Nor because he has a personal
antipathy to the complainant or does not like his political views. Nor on any
other irrelevant ground.
It is said that the decision of the
Minister is administrative and not judicial. But that does not mean that he can
do as he likes, regardless of right or wrong. Nor does it mean that courts are
powerless to correct him. Good administration requires that complaints should
be investigated and that grievances should be remedied. When Parliament has set
up machinery for that very purpose, it is not for the Minister to brush it on
one side. He should not refuse to have complaint investigated without good
reason.
But it is said that Minister is not
bound to give any reason at all. And that, if he gives no reason, his refusal
cannot be questioned. So why does it matter if he gives bad reason ? I do not
agree. This is the only remedy available to a person aggrieved. Save, of
course, for Questions in the House which Parliament itself did not consider
suitable. Else why did it set up a committee of investigation ? If the Minister
is to deny the complainant a hearing- and a remedy- he should have at least
good reason for his refusal: and when asked, he should give them. If he does
not do so, the Court may infer that he has no good reason. If it appears to the
Court that the Minister has been, or must have been, influenced by extraneous
considerations which ought not to have influenced him- or, conversely, has
failed, or must have failed, to take into account considerations which ought to
have influenced him – the court has power to interfere. It can issue a mandamus
to compel him to consider the complaint properly.
A very
fascinating aspect of Article 14 which the courts in India have developed over
the time is that Art.14 embodies “a guarantee against arbitrariness”. A man
acting without reason is acting arbitrarily. Any action that is arbitrary must
necessarily involve the negation of equality. Abuse of power is hit by Art.14.
AIR 1974 SC 555; AIR 2005 SC 2021.
In wealth of the
Judgments delivered by our Courts, it is repeatedly affirmed that public
authorities must exercise their discretionary powers in a reasoned and
justified manner, failing which inescapable violence to Article 14 is imminent.
AIR 1984 SC 1361
Para 17: Before we deal with the contentions
raised on behalf of the appellant, it is necessary to dispose of a contention
having a flavour of a preliminary objection raised by Mr. Lal Narain Sinha on
behalf of the respondent-Corporation. It was urged that in the absence of any
specific pleading pointing out whether any one else was either similarly
situated as the appellant or dissimilarly treated the charge of discrimination
cannot be entertained and no relief can be claimed on the allegation of
contravention of Art. 14 or Art. 16 of the Constitution. It was submitted that
the expression discrimination imports the concept of comparison between equals
and if the resultant inequality is pointed out in the treatment so meted out
the charge of discrimination can be entertained and one can say that equal
protection of law has been denied. Expanding the submission, it was urged that
the use of the expression 'equality' in Art. 14 imports duality and comparison
which is medicated upon more than one person or situation and in the absence of
available material for comparison, the plea of discrimination must fail. As a
corollary, it was urged that in the absence of material, for comparative
evaluation not only the charge of discrimination cannot be sustained but the
executive action cannot be struck down on the ground that the action is per se
arbitrary. Proceeding along, it was urged that making law is a matter of
legislative policy and the degree of reasonableness in every such law is
equally a matter of policy and policy of the legislature is not judicially
reviewable on the specious plea that it is either arbitrary or
unreasonableness.
Para 19: The scope and ambit of Art. 14 have been
the subject matter of a catena of decisions. One facet of Art. 14 which has
been noticed in E. P. Royappa V/s. State of Tamil Nadu, (1974) 2 SCR 348,
deserves special mention because that effectively answers the contention of Mr.
Sinha. The Constitution Bench speaking through Bhagwati, J. in a concurring
judgment in Royappa's, case observed as under :
"The
basic principle which, therefore, informs both Arts. 14 and 16 is equality and
inhibition against discrimination. Now what is the content and reach of this
great equalising principle ? It is a founding faith, to use the words of
pedantic or lexicographic approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do so would be to violate
its activist magnitude. Equality is a dynamic concept, with many aspects and
dimensions and it cannot be "cribbed, cabined and confined" within
traditional and doctrinaire limits. From a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while the other, to the
whim and caprice of an absolute monarch. Where an act is arbitrary it is
implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Art. 14, and it affects any
matter relating to public employment, it is also violative of Art. 16. Articles
14 and 16 strike at arbitrariness in State action and ensure fairness and
equality of treatment."
This view was
approved by the Constitution Bench in Ajay Hasia's case (AIR 1911 SC 487). It
thus appears well settled that Art. 14 strikes, at arbitrariness in executive
administrative action because any action that is arbitrary must necessarily
involve the negation of equality. One need not confine the denial of equality
to a comparative evaluation between two persons to arrive at a conclusion of
discriminatory treatment. An action per se arbitrary itself denies equality of
protection by law. The Constitution Bench pertinently observed in Ajay Hasia's
case and put the matter beyond controversy when it said 'wherever therefore,
there is arbitrariness in State action whether it be of the legislature or of
the executive or of art "authority" under Art. 12, Art. 14 immediately
springs into action and strikes down such State action'. This view was further
elaborated and affirmed in D. S. Nakara V/s. Union of India, (1983) 1 SCC 305.
In Maneka Gandhi V/s. Union of India, (1979) 2 SCR 621, it was observed that
Art. 14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. It is thus too late in the day to contend that an
executive action shown to be arbitrary is not either judicially reviewable or
within the reach of Art. 14. The contention as formulated by Mr. Sinha. must
accordingly be negatived.
Para 20: It must be conceded in fairness to Mr.
Sinha that he is right in submitting that even if the respondent-Corporation is
an instrumentality of the State as comprehended in Art. 12, yet the employees,
of the Corporation are not governed by Part XIV of the Constitution. Could it
however be said that a protection conferred by Part III on public servant is
comparatively less effective than the one conferred by Part XIV? This aspect
was examined by this Court in Managing Director, Uttar Pradesh Warehousing
Corporation V/s. Vinay Narayan Vajpayee, (1980) 2 SCR 773 where O. Chinnappa
Reddy, J. in a concurring judgment has spoken so eloquently about it that it
deserves quotation :
"I
find it very hard indeed to discover any distinction, on principle, between a
person directly under the employment of the Government and a person under the
employment of an agency or instrumentality of the Government or a Corporation,
set up under a statute as incorporated but wholly owned by the Government. It
is self-evident and trite to say that the function of the State has long since
ceased to be confined to the preservation of the public peace, the exaction of
taxes and the defence of its frontiers. It is now the function of the State to
secure social, economic and political justice', to preserve' 'liberty of
thought, expression, belief faith and worship', and to ensure 'equality of
status and of opportunity'. That is the proclamation of the people in the
preamble to the Constitution. The desire to attain these objectives has
necessarily resulted in intense Government activity in manifold ways.
Legislative and executive activity have reached very far and have touched very
many aspects of a citizen's life. The Government, directly or through the
Corporations, set up by it or owned by it, now owns or manages; a large number
of industries and institutions. It is the biggest builder in the country.
Mammoth and minor irrigation projects, heavy and light engineering projects,
projects of various kinds are undertaken by the Government. The Government is
also the biggest trader in the country. The State and the multitudinous
agencies and Corporations set up by it are the principal purchasers of the
produce and the products of our country and they control a vast and complex
machinery of distribution. The Government, its agencies and instrumentalities,
Corporations set up by the Government under statutes and Corporations
incorporated under the Companies Act but owned by the Government have thus
become the biggest employers in the country. There is no good reason why, if
Government is bound to observe the equality clauses of the Constitution in the
matter of employment and in its dealings with the employees, the Corporation
set up or owned by the Government should not be equally bound and why, instead,
such Corporations could become citadels of patronage and arbitrary action. In a
country like ours which teems with population, where the State, is agencies,
its instrumentalities and its Corporations are the biggest employers and where
millions seek employment and security, to confirm the applicability of the
equality clauses of the Constitution, in relation to matters of employment,
strictly to direct employment under the Government is perhaps to mock at the
Constitution and the people. Some element, of public employment is all that is
necessary to take the employee beyond the reach of the rule which denies him
access to a Court to enforce a contract of employment and denies him the
protection of Arts. 14 and 16 of the Constitution. After all employment in the
public sector has grown to vast dimensions and employees in the public sector
often discharge as onerous duties as civil servants and participate in
activities vital to our country's economy. In growing realization of the
importance of employment in the public sector, Parliament and the Legislatures
of the States have declared persons in the service of local authorities,
Government companies and statutory Corporations as public servants and,
extended to them by express enactment the protection usually extended to civil
servants from suits and prosecution. It is, therefore, but right that the
independence and integrity of those employed in the public sector should be
secured as much as the independence and integrity of civil servants."
Therefore the
distinction sought to be drawn between protection of Part XIV of the
Constitution and Part III has no significance.
Kasturi Lal Lakshmi Reddy v. State
of J & K., (1980) 3 SCR 1338 :
(AIR 1980 SC 1992), it was held that every activity of the government has a
public element in it and it must, therefore, be informed with reason guided by
public interest.
AIR 1979 SC 1803, “The vesting of discretionary powers in the State or public
authorities or on high officer of high standing, is treated as a guarantee that
the power will be used fairly and with a sense of responsibility. Every
administrative decision must be hedged by Reasons
The Apex Court in one case viewed that when
statute confers discretion on a holder of public office that should be
exercised reasonable and rationally. U.P.
State Road Transport Corporation V Mohd Ismail (1991) 3 SCC 239.
As stated by ROBSON – “within certain limits, the individual
who exercises discretion, is quite free, but if he ventures outside those
frontiers, his power ends, if he takes into considerations, matters fantastic
and foreign to subject matter, if he decides the matter according to his will
and private affection, then he is regarded as having failed to exercise any
discretion at all – AIR 1965 SC 498; AIR
1978 SC 429; AIR 1978 SC 527.
In the case of M Krishna Swamy
versus UOI reported in (1992) 4 SCC 605,
the Hon’ble Supreme Court held that any action, decision or order of any
statutory or public authority bereft of reasoning would be arbitrary, unfair
and unjust violating article 14 of the Constitution of India.
In the case of Dwarkadas Marfatia
versus Port Trust Bombay, reported in AIR 1989 SC 1642, it was held by the Hon’ble SC that every action of public
authorities must be subject to rule of law and must be informed by reason and
when there is arbitrariness in their acts and omissions, Article 14 springs in
and judicial review strikes it down and thus whatever be the activity of the
public authority, it should meet the test of Article 14.
AIR 1989 SC 1642 (1648) Where there is
arbitrariness in State action, Article 14 springs in and judicial review
strikes it down. Every action of executive authority must be subject to rule of
law and must be informed by reason. So whatever be the activity of Public
authorities, it should meet the test of Article 14.
[AIR 1974 SC
2249]
The Expression "they are satisfied' or when "it appears to them'', or
when "in their opinion'' a certain state of affairs exists; or when powers
enable public authorities to take "such action as they think fit'
Para 7: Where powers are conferred on
public authorities to exercise the same when "they are satisfied' or when
"it appears to them'', or when "in their opinion'' a certain state of
affairs exists; or when powers enable public authorities to take "such
action as they think fit'' in relation to a subject matter, the Courts will not
readily defer to the conclusiveness of an executive authority's opinion as to
the existence of a matter of law or fact upon which the validity of the
exercise of the power is predicated.
Para 8: Where reasonable conduct is
expected the criterion of reasonableness is not subjective but objective. Lord
Atkin in Liversidge V/s. Anderson, 1942 A. C. 206 at pp. 228-229 said "If
there are reasonable grounds the judge has no further duty of deciding whether
he would have formed the same belief any more than, if there is reasonable
evidence to go to a jury, the judge is concerned with whether he would have
come to the same verdict.'' The onus of establishing unreasonableness, however,
rests upon the person challenging the validity of the acts.
Para 9: Administrative decisions in
exercise of powers even if conferred in subjective terms are to be made in good
faith on relevant consideration. The courts inquire whether a reasonable man
could have come to the decision in question without misdirecting himself on the
law or the facts in a material respect. The standard of reasonableness to which
the administrative body is required to conform may range from the courts' own
opinion of what is reasonable to the criterion of what a reasonable body might
have decided. The courts will find out whether conditions precedent to the
formation of the opinion have a factual basis.
Para 10: In Rohtas Industries Ltd. V/s. S.
D. Agarwala (1969) 3 SCR 108 an order under Section 237 (b) (i) and (ii) of the
Companies Act for investigation of the affairs of the Company was challenged on
the ground that though the opinion of the Government is subjective, the
existence of the circumstances is a condition precedent to the formation of the
opinion. It was contended that the Court was not precluded from going behind
the recitals of the existence of such circumstances in the order, but could
determine whether the circumstances did in fact exist. This Court said that if
the opinion of an administrative agency is the condition precedent to the
exercise of the power, the relevant matter is the opinion of the agency and not
the grounds on which the opinion is founded. If it is established that there
were no materials at all upon which the authority could form that requisite
opinion, the Court may infer that the authority passed the order without
applying its mind. The opinion is displaced as a relevant opinion if it could
not be formed by any sensible person on the material before him.
Karnataka State
Industrial Investment And Development Corporation Limited Versus Cavalet India
Limited [2005 (3) Scale 414 : 2005 (4) SCC 456]
19 From the
aforesaid, the legal principles that emerge are :
(i) The High
Court while exercising its jurisdiction under Art. 226 of the Constitution does
not sit as an appellate authority over the acts and deeds of the financial
corporation and seek to correct them. The Doctrine of fairness does not convert
the writ courts into appellate authorities over administrative authorities.
(ii) In a matter
between the corporation and its debtor, a writ court has no say except in two
situations;
(a) there is a
statutory violation on the part of the corporation or
(b) where the
corporation acts unfairly i.e., unreasonably.
(iii) In
commercial matters, the courts should not risk their judgments for the
judgments of the bodies to which that task is assigned.
(iv) Unless the
action of the financial corporation is mala fide, even a wrong decision taken
by it is not open to challenge. It is not for the courts or a third party to
substitute its decision, however more prudent, commercial or businesslike it
may be, for the decision of the financial corporation. Hence, whatever the
wisdom (or the lack of it) of the conduct of the corporation, the same cannot
be assailed for making the corporation liable.
(v) In the
matter of sale of public property, the dominant consideration is to secure the
best price for the property to be sold and this could be achieved only when
there is maximum public participation in the process of sale and everybody has
an opportunity of making an offer.
(vi) Public
auction is not the only mode to secure the best price by inviting maximum
public participation, tender and negotiation could also be adapted.
(vii) The
financial corporation is always expected to try and realize the maximum sale
price by selling the assets by following a procedure which is transparent and
acceptable, after due publicity, wherever possible and if any reason is
indicated or cause shown for the default, the same has to be considered in its
proper perspective and a conscious decision has to be taken as to whether
action u/s. 29 of the Act is called for. Thereafter, the modalities for
disposal of seized unit have to be worked out.
(viii) Fairness
cannot be a one -way street. The fairness required of the financial
corporations cannot be carried to the extent of disabling them from recovering
what is due to them. While not insisting upon the borrower to honour the
commitments undertaken by him, the financial corporation alone cannot be
shackled hand and foot in the name of fairness.
(ix)
Reasonableness is to be tested against the dominant consideration to secure the
best price.
E
P Royappa Case – AIR 1974 SC 555 : (1974) 4 SCC 3
In
this case, the State govt of Tamilnadu transferred the petitioner, an officer
of the Indian Administrative Services, who had previously held the post of
Chief Secretary, to a newly created temporary post. The petitioner alleged that
he was “denigrated” because he had incurred the displeasure and wrath of the CM
of the State.
The
Chief Justice P N Bhagwati articulated what has been referred to as rendition
of the right to equality, in arguably one of the most famous paragraphs of
Indian constitutional history, one which dominate statutory review, and
eventually link the right to equality with the right to freedom and life.
“The
basic principle which, therefore, informs both Arts. 14 and 16 is equality and
inhibition against discrimination.
Para
85: Now, what is the content and reach of this great equalising principle? It
is a founding faith, to use the words of Bose, J., "a way of life",
and it must not be subjected to a narrow pedantic or lexicographic approach. We
cannot countenance any attempt to truncate its all embracing scope and meaning,
for to do so would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be "cribbed,
cabined and confined" within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one belongs to the rule of law in
a republic while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore violative
of Art. 14 and if it affects any matter relating to public employment, it is
also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment. They require that State
action must be based on valid relevant principles applicable alike to all
similarly situate and it must not be guided by any extraneous or irrelevant
considerations because that would be denial of equality. Where the operative
reasons for State action, as distinguished from motive inducing from the
antechamber of the mind, is not legitimate and relevant but is extraneous and
outside the area of permissible considerations, it would amount to mala fide
exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of
power and arbitrariness are different lethal radiations emanating from the same
vice: in fact the latter comprehends the former. Both are inhibited by Arts. 14
and 16.
The
arbitrariness test articulated in this case dealt with discrimination and was
conceived as a protection against violations of equality guaranteed under
Article 14 of the Constitution.
Articles
14 and 16 strike at arbitrariness in State action and ensure fairness and
equality of treatment. They require that State action must be based on valid
relevant principles applicable alike to all similarly situate and it must not
be guided by any extraneous or irrelevant considerations because that would be
denial of equality.
Ramana
Dayaram Shetty Case – AIR 1979 SC 1628 : (1979) 3 SCC 489
This
case dealt with the issue of grant of govt contracts – arbitrariness –
“fairness on the part of State” while taking action in the exercise of
statutory or executive powers. In this case, the SC observed that any breach of
doctrine of legitimate expectation by an executive authority, may be considered
as an arbitrary exercise of powers.
In
this case, the International Airport Auth had invited tenders for running
Restaurants etc. The contract was awarded to a person who did not had the
requisite qualification. The Petitioner argued that the Petitioner was
precluded from submitting the tender, for, he did not had the requisite
qualifications.
The
court observed that actions of the executive govt must not be arbitary,
irrational or irrelevant, or even unreasonable or discriminatory. The court
equated the absence of arbitrariness to rule of law. The court said –
Para
10: It is indeed unthinkable that in a democracy governed by the rule of law
the executive Government or any of its officers should possess arbitrary power
over the interests of the individual. Every action of the executive Government
must be informed with reason and should be free from arbitrariness. That is the
very essence of the rule of law and its bare minimal requirement. And to the
application of this principle it makes no difference whether the exercise of
the power involves affection of some right or denial of some privilege.
Para
21: Art. 14 strikes at arbitrariness in State action and ensures fairness and
equality of treatment. It requires that State action must not be arbitrary but
must be based on some rational and relevant principle which is
non-discriminatory : it must not be guided by any extraneous or irrelevant
consideration, because that would be denial of equality.
However,
the court denied relief to the Petitioner, on the ground that the Petitioner
had been motivated to file these proceedings and also on the ground of delay.
Ajay
Hasia Case – (1981) 1 SCC 722
In
this case, the Petitioners challenged the oral interview conducted by the
Reginal Engineering College, Srinagar, as having arbitrarily deprived admission
to the Petitioners.
The
SC found that the procedure established by the college is vulnerable to
arbitrary exercise.
Para
16: In fact, the concept of reasonableness and non-arbitrariness pervades the
entire constitutional scheme and is a golden thread which runs through the
whole of the fabric of the Constitution.
The
true scope and ambit of Art. 14 has been the subject matter of numerous
decisions. Art. 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment. The principle of reasonableness, which
legally as well as philosophically, is an essential element of equality or
non-arbitrariness pervades Art. 14 like a brooding omnipresence".
This
was again reiterated by this Court In International Airport Authority's case (
(1979) 3 SCR 1014) (supra) of the Report. It must therefore now be taken to be
well settled that what Art. 14 strikes at is arbitrariness because an action
that is arbitrary, must necessarily involve negation of equality. The doctrine
of classification which is evolved by the Courts is not paraphrase of Art. 14
nor is it the objective and end of that Article. It is merely a judicial
formula for determining whether the legislative or executive action in question
is arbitrary and therefore constituting denial of equality
If
the classification is not reasonable and does not satisfy the two conditions
referred to above, the impugned legislative or executive action would plainly
be arbitrary and the guarantee of equality under Art. 14 would be breached.
Wherever therefore there is arbitrariness in State action whether it be of the
legislature or of the executive or of an "authority" under Art. 12,
Art. 14 immediately springs into action and strikes down such State action. In
fact, the concept of reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through the whole of
the fabric of the Constitution.
Arbitrary
exercise of powers / discretion
Every action of the State or its instrumentality should not
only be fair, legitimate or above board, but should be without any affection or
aversion, should neither be suggestive of discrimination, nor even give an
impression of bias, favoritism, and nepotism – (2011) 3 SCC 435, Para 59.
The State, whether acting as a Landlord or as a tenant, is
required to act bonafide, and not arbitrarily; and every Executive action must
be informed by reason – (2007) 6 SCC 81, Para 16; (2009) 1 SCC
150, Para 38; AIR 2009 SC 218, Paras 36 to 40.
Unreasonable exercise of powers – (2008) 1 SCC 448; (2010) 7
SCC 678, Paras 17 to 23
A power cannot be exercised simply because the authority has
power to do so, and the action taken must be fair and reasonable – (2008) 4 SCC
1; AIR 1994 SC 1349
Conferment of quasi judicial powers further implies that the
person concerned must follow the rules of natural justice, and they must give
reasons for making the Order which they are empowered to make. SC deprecated
the practice of some courts is dismissing appeal or revision without giving
reasons – (2010) 4 SCC 785.
In India, the State and every Public authority or
instrumentality of State, must act reasonably in public interest and fairly,
for these requirements have also been spelled out of Article 14 and the concept
of rule of law – AIR 1989 SC 1644.
The principle negativing arbitrary State actions, has been
extended to Contractual rights – AIR 1991 SC 537; (2004) 3 SCC 214; (2004) 3
SCC 553; (2008) 3 SCC 440; AIR 1996 SC 3538; (1994) 6 SCC 551; (2011) 5 SCC
430.
Exercise of discretion – LORD HALSBURY – “according to the
rules of reasons and justice, not according to the private opinion, according
to law and not humour, it is to be not arbitrary, vague or fanciful, but legal and
regular – AIR 1979 SC 75; (1985) 2 SCC 349 : AIR 1985 SC 617; AIR 2004 SC 1772
: (2004) 2 SCC 321; (2004) 2 SCC 370 : AIR 2004 SC 1581; AIR 2004 SC 827 :
(2004) 2 SCC 590; AIR 2005 SC 34.
In a system based on rule of law, unfettered governmental
discretion is a contradiction in terms – (1988) 1 All ER 961; BHEL versus Reddy
– (2005) 2 SCC 481; No authority, be it administrative or judicial, has nay
power to exercise the discretion vested in it, unless the same is based on
justifiable grounds, supported by acceptable materials and reasons thereof.
In a govt of laws, there is nothing like unfettered
discretion, immune from judicial reviewability – AIR 1975 SC 550;
Law has reached its finest moments when it has freed man
from unlimited discretion – United States versus Wunderlish, 342 U.S. 98; AIR
1997 SC 2725.
Exercise of discretionary powers by statutory authorities – (2013) 7 SCC 25
Non exercise of
powers
AIR 1971 SC 33
Para 14: Exercise of power to rectify an
error apparent from the record is conferred upon the Income-tax Officer in aid
of enforcement of a right. The Income-tax Officer is an Officer concerned with
assessment and collection of revenue, and the power to rectify the order of
assessment conferred upon him is to ensure that injustice to the assesses or to
the Revenue may be avoided. It is implicit in the nature of the power and its
entrustment to the authority invested with quasi-judicial functions under the
Act, that to do justice it shall be exercised when a mistake apparent from the
record is brought to his notice by a person concerned with or interested in the
proceeding.
Para 15: The High Court was, in our
judgment, in error in assuming that exercise of the power was discretionary and
the Income-tax Officer could, even if the conditions for its exercise were
shown to exist, decline to exercise the power.
Misuse of powers
/ discretion
Abuse of powers – for the nature of irrationality,
perversity or unreasonableness in administrative law, see (1999) 1 All ER 129 –
the simple test of unreasonableness applied by House of Lords is – whether the
decision in question, was one which a authority could reach reasonably; or
conversely, whether the conduct complained of, is one which no sensible
authority, acting with due appreciation of responsibilities, would have decided
to adopt – AIR 1991 SC 1153 : (1991) 3 SCC 91; AIR 1993 SC 1435; (1997) 7 SCC
463 – the decision is so outrageous that no reasonable person could arrive at.
Abuse is using the powers or position for which it is not
intended. M Narayanan versus State of
Kerala AIR 1963 SC 1116. PC Act 1987 section 5(1)(d).
Arbitrariness / Discretion--Delhi Transport Corp AIR 1991 SC 101.
Abuse has an element of lack of bonafides so as to cause
harm to one or undeservedly benefiting another. AIR 1983 P & H 87.
Administrative discretion – abuse of powers: AIR 1964 SC
477; AIR 2009 SC 1204; (1994) 6 SCC 651
Abuse of powers – M B Shin versus Emperor – AIR 1936 Rang
11.
MISUSE OF DISCRETIONARY POWERS: (2011) 13 SCC 262; (2011) 5
SCC 29; (2011) 10 SCC 86 – Para 14
Breach of Contract by State and alleged misuse / abuse of
the exercise of Statutory power, Writ jurisdiction may be invoked – AIR 1977 SC
1496, Page 1500.
Abuse of discretion by quasi judicial bodies – AIR 1971 SC
1558; (1984) 3 SCC 465; Surya Devi Rai versus Ramchander Rai – (2008) 4 SCC,
Paras 23 to 25.
Judicial Review
of Adm actions – Wenesbury principle of reasonableness – 2011 (1) AIR Bom R 633
(SC) – Paras – 42, 43, 44, 50 – CA Nos – 2147-48/2004 – Judg date: 11.11.2010.
Article 226 –
Judicial Review – Adm actions – irrationality – if decision under challenge is
so outrageous in its defiance of logic – test of wednesbury unreasonableness
enumerated – Article 226 – A benefit allowed to be enjoyed by a person ought
not to be withdrawn without communicating reasons for the proposed withdrawal –
Beejay Contracts versus Hind Petro – 2010 (4) All MR 120 – Para 11.
Corruption – misuse of official position – (2013) 5 SCC 642
Mechanical
exercise of powers
Administrative
discretion – Mechanical exercise of powers: AIR 1945 PC 156
Colourable
exercise of powers
Administrative discretion – malafides AIR 2001 SC 343
AIR 1975 SC 753;
AIR 1965 SC 995
Colourable / Arbitrary / Malafide exercise of Powers –
(2012) 10 SCC 734A
Irrational
decisions
Administrative discretion – irrationality – wednesbury
unreasonableness: (1993) 1 SCC 445
Non application
of mind
Sections 6 and
6A of General Clauses Act: (2011) 5 SCC 305; (2011) 2 SCC 654
Adm law – application / non application of mind – (2013)
7 SCC 25 F,
Exercise of
powers for extraneous considerations
AIR 2013 SC 1921
Para 27: The High Court, in our view, has
therefore rightly exercised its jurisdiction under Article 226 of the
Constitution and the alternative remedy of appeal is not bar in exercising that
jurisdiction, since the order passed by the Joint Registrar was arbitrary and
in clear violation of the second proviso to Section 53(1) of the Act.
Para 28: We are of the view that this
situation has been created by the Joint Registrar and there is sufficient
evidence to conclude that he was acting under extraneous influence and under
dictation. A legally elected Board of Directors cannot be put out of the office
in this manner by an illegal order. If the charges levelled against the Board
of Directors, in the instant case, were serious, then the Joint Registrar would
not have taken two and half years to pass the order of supersession. State of
Madhya Pradesh did not show the grace to accept the judgment of the Division
Bench of the High Court and has brought this litigation to this Court spending
huge public money, a practice we strongly deprecate.
Para 29: Statutory functionaries like
Registrar/Joint Registrar of Co- operative Societies functioning under the
respective Co-operative Act must be above suspicion and function independently
without external pressure. When an authority invested with the power purports
to act on its own but in substance the power is exercised by external guidance
or pressure, it would amount to non-exercise of power, statutorily vested.
Large number of cases are coming up before this Court and the High Courts in
the country challenging the orders of supersession and many of them are being
passed by the statutory functionaries due to external influence ignoring the
fact that they are ousting a democratically elected Board, the consequence of
which is also grave because the members of the Board of Directors would also
stand disqualified in standing for the succeeding election as well.
Sant Raj Vs O.
P. Singla AIR 1985 SC 617
In this case, the
Labour Court found that the termination of service of the Appellants was bad
and illegal but declined to grant the relief of reinstatement which should have
ordinarily followed and instead in exercise of its discretion awarded one
year’s wage as compensation in lieu of reinstatement on the ground that “the
termination of service of each of the appellants was bona fide and not a
colorable exercise of powers in accordance with service rules. The Supreme
Court found an error apparent on the face of the record of the case inasmuch as
if the termination of service was according to service rules and bona fide, it could
not be simultaneously held to be illegal and invalid. The Apex Court therefore
held that the discretion was exercised on irrelevant and extraneous
considerations.
Where statutory
powers are used for extraneous purposes which shocks the conscience of the
Court, it is malafide use of the power. AIR 1979 SC 49.
State
arbitrariness – decision making process and decision taken on and based on
irrelevant facts – (2011) 10 SCC 86 – Para 12
It is pertinent to mention here the landmark judgment of
Hon.SC in State Of Rajasthan Vs Union Of India- AIR 1977 SC 1361, pp.
1390,1391,1401,1414,1415; (1977) 4 SCC 599. The Hon Court held that if the
satisfaction of the President (with ref. to Article 356) is based on wholly
extraneous grounds which have no nexus with the action taken, the proclamation
can be challenged in a court of Law on the ground that the President acted
without the required satisfaction in issuing the Proclamation, for satisfaction
based on wholly irrelevant grounds amounts to no satisfaction.
Satisfaction of the President of India based on
extraneous considerations –
(1980) 3 SCC 625,
(1994) 3 SCC 1;
Sunderlal Patwa versus UOI – 1993 JabLJ 387 (FB)
Reasoned
decisions by Administrative Authorities
The reasons recorded must show the application of mind to
the material on record – AIR 1974 SC 87
The necessity of giving reasons is a healthy check against
abuse or misuse of powers, for if reasons recorded are extraneous or
irrelevant; the Order would be struck down – AIR 1978 SC 597
The reasons for a decision must be intelligible and they
must be adequate. They must enable the reader to understand why the matter was
decided as it was; and what conclusions were reached on the principal
controversial issues, disclosing how any issue or fact was resolved. Reasons
can be briefly stated, the degree of particularity required depending entirely
on the nature of issues falling for decision – South Bucks Dist. Council versus
Porter – (2004) 4 All ER 775 (HL)
The authorities should as a matter of practice record the
satisfaction and the reasons therefore in the Order – (1984) 3 SCC 465
Short reasons showing application of mind to relevant facts
will suffice – AIR 1995 SCW 3030
Expressions – “Considers necessary”, “has reasons to
believe”, “is of the opinion” – (2008) 4 SCC 144, Paras 24 to 33
A power to make an Order “without assigning any cause” or
“without assigning any reasons” does not confer any power to act arbitrarily.
It only means that reasons for making the Order need not be communicated to the
person affected by the Order, but reasons must exist for making the Order – AIR
1991 SC 537
Every state action must satisfy the rule of non
arbitrariness and duty to record reasons may be impliedly inferred – AIR 1996
SC 1643 : (1996) 3 SCC 690;
Breach of
statutory duty / Wilful failure to exercise of Powers
Executive Inaction – Black money – (2011) 8 SCC 1
Breach of statutory duty – damages – (2011) 9 SCC 354
Erring officials / dereliction of duty – damages – perjury –
(2012) 2 SCC 743
The power of HC had to be used to effectuate law and to
enforce rule of law – UOI versus Kirloskar – (1996) 4 SCC 453.
PUBLIC SERVANT – AIR 1984 SC 684
MISCONDUCT- (1992) 4 SCC 54
DUTIES OF PUBLIC SERVANT: (2011) 9 SCC 354, Paras 212 to
218, 90, 91, 215, 223 (iii), (iv)
Art.226 – Writ jurisdiction – can be invoked to enforce
provisions of Statute – AIR 2013 (NOC) 139 Ker (A)
Writ
Jurisdiction - Breach of Statutory Rights: Without any authority of law,
by executive fiat, rights are trampled arbitrarily, Writ not barred, parties
cannot be directed to approach civil court – A 1992 Ori 189, 193 (DB)
Miscellaneous
Legislature and Executives are answerable to the Constitution
– (2012) 10 SCC 1
Discretion to disobey illegal Orders passed by Adm.
Authorities – AIR 1974 SC 1471
Fettering discretion by adopting rigid Rule or Policy – AIR
1974 SC 1745; 1983 MPLJ 501; AIR 1991 SC 1099, Para 12.
Accountability of a Public officer for his decision – (2011) 9 SCC 354 – Para 218
Greater the power to decide, higher is the responsibility to
be just and fair – (2011) 9 SCC 354
– Para 218
Greater the power, greater the responsibility in the
exercise of such powers – (2011) 4 SCC
288 – Para 15
Absolute discretion does not exist – antithesis to rule of
law – (2011) 5 SCC 29
– Para 50
Rationality – reasonableness – objectivity – and application
of mind are some of the prerequisites of any decision making – (2011) 10 SCC 86 – Para 12.
Pervasive misuse of Public office for private gains – (2011) 1 SCC 57 – Para 56;
CM protecting MLA – moneylenders – poor farmers – vidarbha– Para 38,
46.
Delay in decision making process in govt hierarchy – (2011) 9 SCC 354 – Para 216.
State Anarchy –
(2011) 1 SCC 577 – Para 54
False and misleading statements by Custom officials –
directed to initiate disciplinary proceedings – D K Enterprises versus Pimpri
Chinchwad Municipal Corp – 2010 (4) All
MR 554.
Unauthorized / illegal termination of dealership – costs – (2012) 2 SCC 1 – Paras 59, 60, 61
Grabbing of common village land by using muscle, money power
– aid of State – (2011) 11 SCC 396
– Para 4.
Unchecked power would, sooner than later, turn tyrannical
against the very people who have granted such power – (2011) 4 SCC 36 – Para 113.
Post facto
permission of RBI – LIC versus Escorts – AIR 1986 SC 1370, Paras 101, 102 –
(Five Judges Bench)
Administrative – Executive actions – compliance to
Constitutional and Statutory mandate – must – allocation of work – Roster –
Bench – Higher Judiciary – (2013) 5 SCC 1 (very imp)
(2008) 3 SCC 27, Para
11; (2008) 3 SCC 484, Para 17; (2008) 2 SCC 161, Paras 62, 63; (2008) 7 SCC
580, Paras 13, 14; Article by Prem kumar – (2008) SCC (J) 113; (2010) 6 SCC
614.
(1979) 3 SCC 489, Para 10; (2008) 1 SCC 362, Para 22; (2008)
7 SCC 639, Para 14; (2009) 1 SCC 216, Para 26
Grant of sanction: (1992) Supp (1) 222, 268
Powers of search and seizures: AIR 1972 SC 689
Improper
investigation: (2011) 1 SCC 577; (2011) 8 SCC 737 – Paras – 36, 37, 84
(2011) 12 SCC
375
Statutory provisions, executive policy – AIR 1967 SC 1427;
AIR 1994 Ori 191;
Government orders – (1991) 1 SCC 212; AIR 1994 SC 1702
Government contracts – AIR 1979 SC 1628
Rules for conduct of legal affairs of Govt (1984) – 2011 (1)
AIR Bom R 339 – Paras 24, 25, 26 – Cr WP 747/2010 -
Pratap
Singh Case – AIR 1964 SC 72
The use of the term “malafides” while
testing the constitutionality or legality of administrative action is well
established.
Shivajirao
Nilengkar Patil Case – (1987) 1 SCC 227 : AIR 1987 SC 294
The use of the term “malafides” while
testing the constitutionality or legality of administrative action is well
established.
State
of Haryana versus Bhajanlal – AIR 1992 SC 604 – 1992 Supp (1) SCC 335
The use of the term “malafides” while
testing the constitutionality or legality of administrative action is well
established.
In Maneka Gandhi case, in the words of
CJ P N Bhagwati, “the principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non arbitrariness
pervades Art. 14 like a brooding omnipresence and the procedure contemplated by
Art. 21 must answer the test of reasonableness in order to be in conformity
with Art. 14. It must be "right and just and fair" and not arbitrary,
fanciful or oppressive.”
In Royappa case and subsequently in
Maneka Gandhi case, arbitrariness and equality were declared sworn enemies on
the premise that arbitrariness is contrary to rule of law. The rule of law
requires that the coercive powers of the State can be used only in cases
defined in advance by law and in such a way that it can be foreseen how it will
be used.
In Ramana Dayaram Shetty, the observed
to say that it is indeed unthinkable that in a democracy governed by the rule
of law the executive Government or any of its officers should possess arbitrary
power over the interests of the individual. Every action of the executive
Government must be informed with reason and should be free from arbitrariness.
That is the very essence of the rule of law and its bare minimal requirement.
And to the application of this principle it makes no difference whether the
exercise of the power involves affection of some right or denial of some
privilege.
[AIR 2004 SC
3800]
Para 24: The legal right
of an individual may be founded upon a contract or a statute or an instrument
having the force of law. For a public law remedy enforceable under Art. 226 of
the Constitution, the actions of the authority need to fall in the realm of
public law -be it a legislative act or the State, an executive act of the State
or an instrumentality or a person or authority imbued with public law element.
The question is required to be determined in each case having regard to the
nature of and extent of authority vested in the State. However, it may not be
possible to generalize the nature of the action which would come either under
public law remedy or private law field nor is it desirable to give exhaustive
list of such actions.
Para 27: In Council of Civil Services
Unions v. Minister of Civil Service the power of judicial review was restricted
ordinarily to illegality, irrationality and impropriety stating:
"If
the power has been exercised on a non-consideration or non-application of mind
to relevant factors, the exercise of power will be regarded as manifestly
erroneous. If a power (whether legislative or administrative) is exercised on
the basis of facts which do not exist and which are patently erroneous, such
exercise of power will stand vitiated."
Para 28: The scope and extent of power of
the judicial review of the High Court contained in Art. 226 of the Constitution
of India would vary from case to case, the nature of the order, the relevant
statute as also the other relevant factors including the nature of power exercised
by the public authorities, namely, whether the power is statutory, quasi
judicial or administrative. The power of judicial review is not intended to
assume a supervisory role or done the robes of omnipresent. The power is not
intended either to review governance under the rule of law nor do the courts
step into the areas exclusively reserved by the suprema lex to the other organs
of the State. Decisions and actions which do not have adjudicative disposition
may not strictly fall for consideration before a judicial review court. The
limited scope of judicial review succinctly put are :
(i) Courts,
while exercising the power of judicial review, do not sit in appeal over the
decisions of administrative bodies;
(ii) A petition
for a judicial review would lie only on certain well-defined grounds.
(iii) An order
passed by an administrative authority exercising discretion vested in it,
cannot be interfered in judicial review unless it is shown that exercise of
discretion itself is perverse or illegal.
(iv) A mere
wrong decision without anything more is not enough to attract the power of
judicial review; the supervisory jurisdiction conferred on a court is limited
to seeing that tribunal functions within the limits of its authority and that
its decisions do not occasion miscarriage of justice.
(v) The courts
cannot be called upon to undertake the government duties and functions. The
court shall not ordinarily interfere with a policy decision of the State.
Social and economic belief of a judge should not be invoked as a substitute for
the Judgement of the legislative bodies.
Para 29: In Wade's Administrative Law, 8th
edition at pages 33-35, it is stated:
"Review,
Legality and discretion The system of judicial review is radically different
from the system of appeals. When hearing an appeal the court is concerned with
the merits of a decision: is it correct? When subjecting some administrative
act or order to judicial review, the court is concerned with its legality: is
it within the limits of the powers granted? On an appeal the question is 'right
or wrong?' On review the question is 'lawful or unlawful?' Rights of appeal are
always statutory, judicial review, on the other hand, is the exercise of the
court's inherent power to determine whether action is lawful or not and to
award suitable relief. For this no statutory authority is necessary: the court
is simply performing its ordinary functions in order to enforce the law. The
basis of judicial review, therefore, is common law. This is none the less true
because nearly all cases in administrative law arise under some Act of
Parliament. Where the court quashes an order made by a minister under some Act,
it typically uses its common law power to declare that the Act did not entitle
the minister to do what he did and that he was in some way exceeding or abusing
his powers. Judicial review thus is a fundamental mechanism for keeping public
authorities 459 within due bounds and for upholding the rule of law. Instead of
substituting its own decision for that of some other body, as happens when on
appeal, the court on review is concerned only with the question whether the act
or order under attack should be allowed to stand or not. If the Home Secretary
revokes a television licence unlawfully, the court may simply declare that the
revocation is null and void. Should the case be one involving breach of duty
rather than excess of power, the question will be whether the public authority
should be ordered to make good a default. Refusal to issue a television licence
to someone entitled to have one would be remedied by an order of the court
requiring the issue of the licence. If administrative action is in excess of
power (ultra vires), the court has only to quash it or declare it unlawful
(these are in effect the same thing) and then no one need to pay any attention
to it. The minister or tribunal or other authority has in law done nothing, and
must make a fresh decision."
Para 30 It is well-settled that while
exercising the power of judicial review the court is more concerned with the
decision making process than the merit of the decision itself. In doing so, it
is often argued by the defender of an impugned decision that the court is not
competent to exercise its power when there are serious disputed questions of
facts; when the decision of the tribunal or the decision of the fact finding
body or the arbitrator is given finality by the statute which governs a given
situation or which, by nature of the activity the decision maker's opinion on
facts is final. But while examining and scrutinizing the decision making
process it becomes inevitable to also appreciate the facts of a given case as
otherwise the decision cannot be tested under the grounds of illegality,
irrationality or procedural impropriety. How far the court of judicial review
can re-appreciate the findings of facts depends on the ground of judicial
review. For example, if a decision is challenged as irrational, it would be
well-nigh impossible to record a finding whether a decision is rational or
irrational without first evaluating the facts of the case and coming to a
plausible conclusion and then testing the decision of the authority on the
touch-stone of the tests laid down by the court with special reference to a
given case. This position is well settled in Indian administrative law.
Therefore, to a limited extent of scrutinizing the decision making process, it
is always open to the court to review the evaluation of facts by the decision
maker.
Para 31: In Chief Constable of the North
Wales Police V/s. Evans, the law is stated in the following terms:
"...The
purpose of judicial review is to ensure that the individual receives fair
treatment, and not to ensure that the authority, after according fair
treatment, reaches on a matter which it is authorized or enjoined by law to
decide for itself a conclusion which is correct in the eyes of the court."
Para 32: Prof. Bernard Schwartz in his
celebrated book (Administrative Law, III Edn. Little Brown Company 1991) 460
dealing with the present status of judicial review in American context,
summarized as under:
"If
the scope of review is too broad, agencies are turned into little more than
media for the transmission of cases to the courts. That would destroy the
values of agencies, created to secure the benefit of special knowledge acquired
through continuous administration in the complicated fields. At the same time,
court should not rubberstamp agencies; the scope of judicial enquiry must not
be so restricted that it prevents full enquiry into the action of legality. If
that question cannot be properly explored by the judge, the right to review
becomes meaningless...in the final analysis, the scope of review depends on the
individual judge's estimate of the justice of the case."
Para 33: Prof. Clive Lewis in his book
(Judicial Remedies in Public Law 1992 Edn. At p. 294-295)
"The
courts now recognise that the impact on the administration is relevant in the
exercise of their remedial jurisdiction'... Earlier cases took a robust line
that the law has to be observed and the decision invalidated, what ever the
administrative inconvenience caused. The courts now-a-days recognise that such
an approach is not always appropriate and may not be in the wider public
interest. The effect on the administrative process is relevant to the court's remedial
discretion and may prove decisive...They may also be influenced to the extent
to which the illegality arises from the conduct of the administrative body
itself, and their view of that conduct."
Para 34: Grahame Aldous and John Alder in
"Applications for Judicial Review, Law and Practice" stated thus:
"There
is a general presumption against ousting the jurisdiction of the courts, so
that statutory provisions which purport to exclude judicial review are
construed restrictively. There are, however, certain areas of governmental
activity, national security being the paradigm, which the courts regard
themselves as incompetent to investigate, beyond an initial decision as to
whether the government's claim is bona fide. In this kind of non-justiciable area
judicial review is not entirely excluded, but very limited. It has also been
said that powers conferred by the royal prerogative are inherently unreviewable
but since the speeches of the House of Lords in Council of Civil Service Unions
V/s. Minister for the Civil Service this is doubtful. Lords Diplock, Seaman and
Roskili appeared to agree that there is no general distinction between powers,
based upon whether their source is statutory or prerogative but that judicial
review can be limited by the subject matter of a particular power, in that case
national security. Many prerogative powers are in fact concerned with
sensitive, non-justiciable areas, for example, foreign affairs, but some are
reviewable in principle, including where national security is not involved.
Another non-justiciable power is the Attorney General's prerogative to decide
whether to institute legal proceedings on behalf of the public interest."
Para 35: In Wade's Administrative Law, 8th
461 Edition at pages 551-552, the author states:
"Rights
and Remedies: Rights depend upon remedies. Legal history is rich in examples of
rules of law which have been distilled from the system of remedies, as the
remedies have been extended and adapted from one class of case to another.
There is no better example than habeas corpus. This remedy, since the sixteenth
century the chief cornerstone of personal liberty, grew out of a medieval writ
which at first played an inconspicuous part in the law of procedure: it was
used to secure the appearance of a party, in particular where he was in
detention by some inferior court. It was later invoked to challenge detention
by the king and by the Council; and finally it became the standard procedure by
which the legality of any imprisonment could be tested. The right to personal
freedom was almost a by-product of the procedural rules. This tendency has both
good and bad effects. It is good in that the emphasis falls on the practical
methods of enforcing any right. Efficient remedies are of the utmost
importance, and the remedies provided by English administrative law are notably
efficient. But sometimes the remedy comes to be looked upon as a thing in
itself, divorced from the legal policy to which it ought to give expression. In
the past this has led to gaps and anomalies, and to a confusion of doctrines to
which the courts have sometimes seemed strangely indifferent."
Para 36: A writ of or in the nature of
mandamus, it is trite, is ordinarily issued where the petitioner establishes a
legal right in himself and a corresponding legal duty in the public
authorities.
Para 37: The Legal Remembrancer Manual
clearly states that appointment of a public prosecutor or a district counsel
would be professional in nature. It is beyond any cavil and rightly conceded at
the Bar that the holder of an office of the public prosecutor does not hold a
civil post; by holding a post of district counsel or the public prosecutor,
neither a status is conferred on the incumbent (?).
Para 57: The High Court failed to consider
that the power under Art. 226 of the Constitution of India is not at par with
the constitutional jurisdiction conferred upon this Court under Art. 142 of the
Constitution of India. The High Court has no jurisdiction to direct formulation
of a new legal principle or a new procedure which would be contrary to and
inconsistent with a statutory provision like Code of Criminal Procedure.
|
|
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Calcutta
Gujarati Education Society Versus Calcutta Municipal Corporation – AIR 2003
SC 4278
(22) We have examined the provisions contained in
sections 194 and 230 of the Act and other relevant provisions. We find that
the grievance raised is not borne out from the provisions contained in
Chapter XII of the Act which indicate various steps for determination of
'consolidated rates.' We have examined the scheme in detail and we find that
at the time of determination of valuation, assessment, revision of assessment
and amendment of the assessment, public and written notices are required to
be given to all concerned parties including owner, tenant, sub-tenant and
occupier on tax and 'surcharge' proposed to be levied for commercial or non-
residential user of the properties. The tenants, sub-tenants and occupiers
are entitled to written notices. The provisions contain a detailed procedure
under which the tenants, sub-tenants or occupiers pursuant to a public notice
and written notice, are entitled to participate in the process of valuation
and assessment of consolidated rate by filing returns and objections.
See section 181, 184 and 186 of the Act which read thus :-
"181. Submission of returns and inspection of lands
and buildings for purposes of assessment. -
(1) The Municipal Commissioner may, with a view of
enabling him to determine the annual value of any land or building [in any
ward or part thereof] and the person primarily liable for the payment of any
consolidated rate on such land or building, [by a public notice,] require the
owner or the occupier of such land or building or portion thereof to furnish
a return in such form, within such period and in accordance with such
procedure as may be prescribed.
(2) The Municipal Commissioner may, [by a public notice,]
require the owner or the occupier of any land or building [in any ward or
part thereof] used for public cinema shows or theatrical performances or as a
place of similar public recreation, amusement or entertainment to furnish a
return in such form, within such period and in accordance with such procedure
as may be prescribed.
(3) Every owner or occupier [of any land or building referred
to in the public notice] under sub-sec. (1) or sub-sec. (2) shall be bound to
comply with such notice and to furnish a return with a declaration that the
statement made therein is correct to the best of his knowledge and belief.
(4) [*******]
(5) [*******]
(6) [*******]
(7)
"184. Public notice and inspection of assessment
list.-
(1) When the annual valuation under sub-sec. (2) of
section 179 or a general revaluation under sub-sec. (1) of section 180 in any
ward of the Corporation or part thereof, as the case may be, has been
completed, the Municipal Commissioner shall cause the respective valuation to
be entered in an assessment list in such form and containing such particulars
with respect to each land or building as may be prescribed.
(2) When the assessment list has been prepared the
Municipal Commissioner shall give public notice thereof and of the place
where the list or a copy thereof may be inspected, and every person claiming
to be the owner, lessee, sub-lessee or occupier of any land or building
include in the list and any authorised agent of such person shall be at
liberty to inspect the list and to take extracts there from free of charge.
(3) The Municipal Commissioner shall give public notice of
the place, time and date, not less than one month after the preparation of
the assessment list as aforesaid when he will proceed to consider the annual
valuations of lands and buildings entered in the assessment list, and in all
cases in which any land or building is for the first time assessed, or the
annual value of any land or building is increased, he shall also give written
notice thereof to the owner or to any lessee, sub-lessee or occupier of such
land or building and shall also specify in the notice the place, time and
date, not less than one month thereafter, when he will proceed to consider
such valuation.
(4) When a revision in the annual valuation of any land or
building has been made under sub-sec. (2) of section 180, the Municipal
Commissioner shall cause the respective valuation to be entered in the
assessment list and shall give a written notice thereof to the owner or to
any lessee, sub-lessee or occupier of such land or building, and shall also
specify in the notice the place, time and date, not less than one month thereafter,
when he will proceed to consider such valuation".
"186. Objections against valuation of assessment.-
Subject to the provisions of section 181 or section 182, any objection to the
annual value of a land or building as entered in the assessment list shall be
made by the owner or the person liable to pay the consolidated rate, in
writing, to the Municipal Commissioner before the date fixed in the notice
under section 184 [or section 185] and shall state in what respect the annual
value is disputed". [Underlining for emphasis]
(23) Learned counsel appearing for the Corporation
submits that in the city of Calcutta, there are such large number of
multi-storeyed buildings that service of individual notice to each tenant,
sub-tenant as also on all the occupants of such buildings and give them
opportunity of hearing at every stage would not only be a marathon exercise
involving insurmountable practical difficulties and bottlenecks but would
make the whole process highly cumbersome, if not, impossible in finalising
the assessment within a reasonable time. It would also put the Corporation to
such a colossal establishment expenditure which may be more than the actual
amount of tax that might be levied and found recoverable.
(24) Such argument cannot be accepted. The underlined
portion of the provisions of the Act is required to be followed and it grants
effective participation to tenants, sub-tenants and occupants who, pursuant
to public notice or written notices, approach the competent authority by
raising objections and claim opportunity of hearing in the course of
proceedings. We, therefore, find that the provisions of the Act allow full
and effective participation to the tenants, sub-tenants or occupants in the
process of assessment of consolidated rate.
(25) Taking into consideration, however, the
practical difficulties particularly concerning multi-storeyed buildings
occupied by several tenants, sub-tenants and occupants, a mere non-issuance
and/or service of public and written notices to all concerned individuals who
are 'persons primarily liable or liable', would not be treated by concerned
authorities and courts as invalidating the consolidated rate determined and
apportioned on various persons regarding such building/ buildings unless a
serious prejudice is found to have been caused to the persons aggrieved.
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Union Of India Versus Cynamide India Limited – AIR 1987 SC
1802
(5) The second observation we wish to make is,
legislative action, plenary or subordinate, is not subject to rules of
natural justice. In the case of Parliamentary legislation, the proposition is
self-evident. In the case of subordinate legislation, it may happen that
Parliament may itself provide for a notice and for a hearing there are
several instances of the legislature requiring the subordinate legislating
authority to give public notice and a public hearing before say, for example,
levying a municipal rate -, in which case the substantial non-observance of
the statutorily prescribed mode of observing natural justice may have the effect
of invalidating the subordinate legislation. The right here given to rate
payers or others is in the nature of a concession which is not to detract
from the character of the activity as legislative and not quasi-judicial.
But, where the legislature has not chosen to provide for any notice or
hearing, no one can insist upon it and it will not be permissible to read
natural justice into such legislative activity.
The legislative activity being a subordinate or delegated
legislative activity, it must necessarily comply with the statutory
conditions if any, no more and no less, and no implications of natural
justice can be read into it unless it is a statutory condition.
Notwithstanding that the price fixation is a legislative activity, the
subordinate legislation has taken care here to provide for a review. The
review provided by paragraph 27 of the order is akin to a post decisional
hearing which is sometimes afforded after the making of some administrative
orders 'but not truly so.
(32) The learned counsel argued that there were
several patent errors which came to light during the course of the hearing in
the High Court. He said that obsolete quantitative usages had been taken into
consideration, proximate cost data had been ignored and the data relating to
the year ending November, 1976 had been adopted as the basis. It was
submitted that there were errors in totalling, errors in the calculation of
prices of utilities, errors in the calculation of net-worth and many other
similar errors. As we pointed out earlier, these are all matters which should
legitimately be raised in the review application, if there is any substance
in them. These are not matters for investigation in a petition under Art. 226
of the Constitution or under Art. 32 of the Constitution. Despite the
pressing invitation of Shri Diwan to go into facts and figures and his
elaborate submissions based on facts and figures, we have carefully and
Studiously refrained from making any reference to such facts and figures as we
consider it outside our province to do so and we do not want to set any
precedent as was supposed to have been done in Premier Automobiles though it
was not so done and, therefore, needed explanation in later cases.
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Municipal Corporation Of Greater Bombay Versus New
Standard Engineering Company Limited – AIR 1991 SC 1362
(12) In Banwarilal Agarwalla
V/s. State of Bihar, (1962) 1 SCR 33, the question arose whether Section
59(3) of the Mines Act 1952 requiring the Central Government to consult every
Mining Board before framing regulations was mandatory. The Court held that
since the regulations framed would impinge heavily on the actual working of
mines, the requirement of consultation of the Mining Boards is mandatory.
This view has been affirmed in Kali Pada Chowdhury V/s. Union of India,
(1963) 2 SCR 904 . In Narayana Sankaran Mooses V/s. State of Kerala, (1974) 1
SCC 68 , the provision regarding consultation with the State Electricity
Board in Section 4 of the Electricity Act, 1910 as amended in 1950 for
exercising the power of 'revoking a licence by the State Government is held
to be mandatory since it was intended to provide additional safeguard to the
licence. In Naraindas Indurkhya V/s. State of M.P., (1974) 4 SCC 788 the
prior consultation with the Education Board under Section 4(1) of the M.P.
Act 13 of 1973 for prescription of textbooks by the State Government is also
held to be mandatory since it is a condition for the exercise of the power.
In Agricultural, Horticultural and Forestry Industry Training Board V/s.
Aylesbury Mushrooms Ltd., (1972) 1 WLR 190 the Minister was required before
making an industrial training order, to have prior consultations with the
interested Associations, under Section 2(4) of the Industrial Training Act,
1964. The Minister invited numerous organisations to consult with him about
an order for the agricultural industries, but in one of the cases, the letter
miscarried so that the Mushroom Growers' Association was not consulted.
Members of the Association, it was held were not bound by the order of the
Minister since a mandatory requirement had not been observed.
Prof. Wade points out:
"Procedural safeguards which
are so often imposed for the benefit of persons affected by the exercise of
administrative powers are normally regarded as mandatory, so, that it is
fatal to disregard them. Where there is a statutory duty to consult persons
affected, this must genuinely be done, and reasonable opportunity for comment
must be given" (Administrative Law by H.W.R. Wade 6th Ed. p. 247).
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Municipal Council, Khurai Versus Kamal Kumar – AIR 1965 SC
1321
(9) It is not disputed before
us that the procedure laid down in Sections 134, 135 and 136 of the Act for
the assessment of buildings and lands to pay the tax was duly followed. It is
also not disputed that 2,200 objections were lodged with the Municipal Council
which were investigated and dealt with by the Sub-Committee appointed by the
Municipal Council. Mr. Setalvad, therefore, contends that having followed
this procedure the next step was the authentication of assessment lists by
the Chief Municipal Officer as required by sec. 140 (1). This procedure was
also followed and, therefore, the assessment list became final and the
Municipal Council had the power to amend it u/s. 141 (1) of the Act.
In our opinion, both the grounds
are substantial and strike at the very root of the finality of the assessment
list which was purported to be authenticated by the Chief Municipal Officer
u/s. 140. The assessment list which has to be published u/s. 136 of the Act
must contain full and accurate particulars specified in sec. 134 (1) of the
Act. Amongst those particulars are the following:
(1) Valuation of the property
based on capital or annual letting value, as the case may be, on which the
property is assessed;
(2) the rate of tax applicable;
(3) the amount of tax assessed
thereon.
In view of the fact that the
resolution of 3.03.1963 on the basis of which the list was published had been
revoked, the particulars mentioned in the second and the third of the above
items would necessarily be different from those which would be arrived at
after taking into account the resolution of 28.04.1963. Under Art. 265 of the
Constitution no tax shall be levied or collected except by authority of law.
This clearly implies that the procedure for imposing with the liability to
pay a tax has to be strictly complied with. Where it is not so complied with
the liability to pay the tax cannot be said to be according to law. The
objections which the assessees had filed in pursuance of the notification
actually published by the Chief Municipal Officer were based upon the list
published u/s. 136 and not in pursuance of what the liability would be under
the Resolution of the Municipal Council, dated 28.04.1963. Therefore, it
cannot be said that the opportunity as contemplated the Act was at all given
to the assessees for lodging their objections as required by sec. 137 of the
Act, Moreover, Mr. Setaldvad was not able to point out to us any provision of
the Act or of the rules except sec. 78, whereunder the Council could delegate
its function of hearing and deciding objections to a Sub-Committee. sec. 78
reads thus:
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Bannari Amman Sugars Ltd. Versus Commercial Tax Officer –
(2005) 1 SCC 625
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The wide sweep
of Art. 14 and the requirement of every State action qualifying for its
validity on this touchstone irrespective of the field of activity of the State
is an accepted tenet. The basic requirement of Art. 14 is fairness in action by
the State, and non-arbitrariness in essence and substance is the heart beat of
fair play. Actions are amenable, in the panorama of judicial review only to the
extent that the State must act validly for discernible reasons, not whimsically
for any ulterior purpose. The meaning and true import and concept of
arbitrariness is more easily visualised than precisely defined. A question
whether the impugned action is arbitrary or not is to be ultimately answered on
the facts and circumstances of a given case. A basic and obvious test to apply in
such cases is to see whether there is any discernible principle emerging from
the impugned action and if so, does it really satisfy the test of
reasonableness.
(10) Where a
particular mode is prescribed for doing an act and there is no impediment in
adopting the procedure, the deviation to act in different manner which does not
disclose any discernible principle which is reasonable itself shall be labelled
as arbitrary. Every State action must be informed by reason and it follows that
an act uninformed by reason is per se arbitrary.
Land
Acquisitions issues
Public purposes
– maximum benefit to largest number of people – (2011) 4 SCC 769 – Para 17
Agricultural
land – acquisition of – impact – (2011) 12 SCC 375 – Para 49
2008 (9) SCC 552
AIR 2012 SC 573
AIR 2009 SC 1552
AIR 2011 SC 3430
Instances
where Courts refused to exercise their powers
Article 14 – Admissions to degree college prohibited for
want of appointment of Principal – not proper – it is judicial legislation –
moreover – the colleges were not parties before the court – AIR 2011 SC 1912 –
Paras 12, 13.
Fixing of eligibility criteria – judicial review by Court –
impermissibility – (2012) 9 SCC 545
Tata Cellular Case – (1994) 6 SCC 651
In this case, the Court was asked to consider the
constitutionality of the award of a tender by the Dept of Telecommunications to
license the operation of cellular mobile telephone services in four
metropolitan cities.
The court emphasized that it would not concerned with the
substance of the decision, but only with the manner in which the decision was
taken. Formulating the boundaries of judicial review, the articulated that only
the following criteria ought to inform a court’s opinion –
Para 93:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would
have reached or,
5. abused its powers.
Para 94: Therefore, it is not for the court to
determine whether a particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned with the manner in
which those decisions have been taken. The extent of the duty to act fairly
will vary from case to case. Shortly put, the grounds upon which an
administrative action is subject to control by judicial review can be
classified as under :
(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his decision-making power and must
give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
Para 95: The above are only the broad grounds but it does
not rule out addition of further grounds in course of time. As a matter of
fact, in R. V/s. secretary of State for the Home Department, ex Brind Lord
Diplock refers specifically to one development, namely, the possible
recognition of the principle of proportionality. In all these cases the test to
be adopted is that the court should, "consider whether something has gone
wrong of a nature and degree which requires its intervention".
Para 96: What is this charming principle of Wednesbury
unreasonableness? Is it a magical formula? In R. V/s. Askew Lord Mansfield
considered the question whether mandamus should be granted against
the College of Physicians. He expressed the relevant principles
in two eloquent sentences. They gained greater value two centuries later:
"It is true, that the judgment and discretion of
determining upon this skill, ability, learning and sufficiency to exercise and
practise this profession is trusted to
the College of Physicians and this court will not take it
from them, nor interrupt them in the due and proper exercise of it. But their
conduct in the exercise of this trust thus committed to them ought to be fair,
candid and unprejudiced; not arbitrary, capricious, or biased; much less,
warped by resentment, or personal dislike."
Judicial review
is an unavoidable necessity when there is a constant danger of legislative and
executive lapses and appalling erosion of ethical standards in the society.
Judicial review is a moral guarantee wrapped in legal command.
Judicial Review is the most potent weapon in the hands of
Judiciary to maintain rule of Constitution. Sampath Kumar versus UOI AIR 1987
SC 386.
State is to obey the law, more so the Constitution. Judicial
Review of administrative action is an essential part of the rule of law. (1997)
4 SCC 430.
Judicial Review is the heart and Soul of the Constitutional
Scheme. (2000) 8 SCC 437
Judicial Review: Only the decision making process is subject
to judicial review. The decision itself cannot be assailed unless it has
violated any statutory or constitutional provision. (2003) 9 SCC 592.
A Reference made by the Govt under section 10 of the
Industrial Disputes Act 1947 may be examined by the HC to ensure whether the
relevant consideration has been duly taken note of. Moolchand Khairati
versus Ram Hospital (2002) 10 SCC 708.
It has always been said that judicial review, generally
speaking, is not directed against a decision, but is directed against a
decision making process. UOI versus Upendra Singh (1994) 3 SCC 357.
Judicial review is an unavoidable necessity when there is a
constant danger of legislative and executive lapses and appalling erosion of
ethical standards in the society. Judicial review is a moral guarantee wrapped
in legal command.
By and large,
any illegal or any absurd, or any arbitrary decision, or arbitrary framing of
rule or law, by Govt or by any public authority, is the outcome of the
arbitrary procedure followed in reaching to that decision. Therefore, as far as
possible, not the arbitrary decision but the mode of reaching that decision
should be challenged. There are Rules and or set guidelines that are to be
followed while deciding or framing any rule or law or taking any decision.
Nevertheless, they can still be challenged on the grounds of irrationality or
unconstitutionality.
The right to non
arbitrariness, Constitutionalized by an emphasis on equal protection doctrine,
has stood out as one of the defining features of Indian Constitutional due
process.
The concept of
arbitrariness first articulated in Royappa case became firmly established in
the Maneka Gandhi case and has been applied ever since.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.vakeelkanumber.com/
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