ADMINISTRATIVE DISCRETIONARY POWERS

RK. GAYATHIRI DEVI

 

 

ADMINISTRATIVE LAW

Today administrative law has became one of the important branch in public law. Its importance is increasing day by day due to administrative authority’s power increasing, dispute between state and individual is also increasing. More than 50% of Supreme Court decisions judicial review of administrative actions are involving.

Before 20th century administrative law is with constitutional law it has no separate branch. After 20th century administrative law came into separate branch. First in England only administrative law came into force after that every country followed to have separate branch.

DEFINITION OF ADMINISTRATIVE LAW

Administrative law is branch of law which deals with administration. Administrative law as the law relating to administration. it determines the organization, powers and the duties of administrative authorities. [2]

Administrative law as the law is concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.[3]

ADMINISTRATIVE DISCRETION

Freedom to decide what should be done in a particular situation is administrative discretion. Discretion – decision making power.

 

Judiciary can interfere in three grounds of discretionary power:

  1. Discretion taken by administration is violation of fundamental rights.

  2. Abuse of power.

  3. Violation of principle of natural justice.

DISCRETION TAKEN BY ADMINISTRATION IS VIOLATION OF FUNDAMENTAL RIGHTS

Part III of constitution of India has given a certain rights to our citizen. We have to follow that, no one has power to violate fundamental rights. In Chandra Bhan Singh v Bihar[4], it was held that government acquired vast area of land from the person and has given less compensation when compared to government price. In that court held that acquisition order was held invalid on ground of violation of article 14.

 

ABUSE OF POWER

The act of using one's position of power in an abusive way. Misusing the power of administration is abuse of power.

  1. MALAFIDES

Mala fides or bad faith means dishonest intention or corrupt motive. At times, the courts use the phrase “mala fides” in the broad sense of any improper exercise or abuse of power.  In Pratap Singh v. State of Punjab[5] In this case, the appellant, a civil surgeon in the employment of the state government, was initially granted leave preparatory to retirement, but, subsequently, it was revoked, and he was placed under suspension and disciplinary action was started against him on the charge that he had accepted a bribe of Rs. 16/- from some patient prior to going on leave. The appellant alleged that the disciplinary action against him had been initiated at the instance of the Chief Minister to wreak personal vengeance on him as he had refused to yield to the illegal demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held the exercise of power to be mala fide and quashed the order.

  1. IMPROPER PURPOSE

If a statute confers power for one purpose, its use for a different purpose will not be regarded as a valid exercise of the powers and the same may be quashed.
 L.K. Dass v. State of West Bengal,[6] the court held that the power of detention could not be used on simple solitary incident of theft of railway property and the proper course  to prosecute the person was in a criminal court.

  1. IRRELEVANT  CONSIDERATIONS.

A discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. It means that power must be exercised taking into account the considerations mentioned in the statute. In Ram Manohar Lohia v. Bihar[7], the petitioner was detained under the Defence of India Rules, 1962 to prevent him from acting in a manner prejudicial to the maintenance of “law and order”, whereas the rules permitted detention to prevent subversion of “public order”. The court struck down the order as, in its opinion, the two concepts were not the same, “law and order” being wider than “public order”.
 

  1. LEAVING OUT RELEVANT CONSIDERATIONS

 If in exercising its discretionary power, an administrative authority ignores relevant considerations, its action will be invalid.  In Rampur Distillery Co. Ltd. v. Company Law Board[8], the Company Law Board exercising wide discretionary power under Section 326 of the Companies Act, 1956 in the matter of renewal of a managing agency refused approval for the renewal to the managing agents of the Rampur Distillery. The reason given by the Board for its action related to the past conduct of the managing agent. The Supreme Court, though it did not find any fault in taking into consideration the past conduct, held the order bad, because the Board did not take into consideration the present acts which were very relevant factors in judging suitability.

 

 

  1. COLOURABLE EXERCISE OF POWER

            Colourable exercise means that under the “colour” or “guise” of power conferred for one purpose, the authority is seeking to achieve something else which it is not authorized to do under the law in question then the action of the authority shall be invalid and illegal. In the Somawanti v. State of Punjab[9], the Supreme Court stated as the follows with reference to acquisition of land under the Land Acquisition Act: “Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.”

CONCLUSION

What we should do, it is not to oppose or reject administrative discretion but to those in the administrative discretion and contrary to the rule of law, do our best to make legally acceptable.

 

REFERENCE

  1. MP Jain & SN Jain, Principles of Administrative Law (Lexis Nexis, 6th Edition, 2013).

  2. CK  Takwani, Lectures of Administrative Law (Eastern Book Company, 6th Edition, 2017).

  3. IP. Massey, Administrative Law (Eastern Book Company, 9th Edition, 2017).

  4. A. Vincent Arputhom, Administrative Law (Southern Publishers).

 

 

[1] M.SC- APPLIED PSYCHOLOGY, PONDICHERRY UNIVERSITY, LL.M- LABOUR AND ADMINISTRATIVE LAW, PGDFL- POST GRADUATE DIPLOMA IN FRENCH LAW- DR. BR. AMBEDKAR GOVERNMENT LAW COLLEGE- ADVOCATE, PUDUCHERRY.

[2] Sir Ivor Jenning

[3] K.C. Davis

[4] AIR 2008

[5] AIR 1964 SC 72

[6] AIR 1975 SC 753

[7] AIR 1966 SC 740

[8] AIR 1970 SC 1978

[9] AIR 1963 SC 151

  • FB
  • Twitter
  • LinkedIn