Sie sind auf Seite 1von 15

Judicial Control :few specified

Under this general heading of judicial control, there fall quite a
few specified and separate grounds which are as below-
(a) Mala fides
(b) Irrelevant considerations
(c) Leaving out relevant considerations
(d) non-application of mind
(e) non-compliance with procedural requirements
Every power must be exercised by the authority reasonably and
lawfully. However it is rightly said, “every power tends to corrupt
and absolute power corrupts absolutely”. It is, therefore, not only
the power but the duty of the courts to see that all authorities
exercise their powers properly, lawfully and in good faith. If the
power is not exercised bona fide, the exercise of power is bad
and the action illegal.
Though precise and specific definition of the expression mala fide
is not possible, it means ill-will, dishonest intention or corrupt
motive. A power may be exercised maliciously, out of personal
animosity, ill-will or vengeance or fraudulently and with intent to
achieve an object foreign to the statute.
Malice is of 2 types: “malice in fact” and “malice in law”
When an action is taken or power is exercised without just or
reasonable cause or for purpose foreign to the statute, the
exercise of power would be bad and the action ultra vires.
“Malice in law” may be assumed from the doing of a
wrongful act intentionally without just cause or excuse or for want
of care.
Municipal Council of Sydney v. Campbell (1925 AC 338) under the
relevant statute the Council was empowered to acquire land for
“carrying out improvements in or remodelling any portion of the
city”. The Council acquired the disputed land for expanding a
street. But in fact the object was to get the benefit of probable
increase in the value of land as a result of the proposed extension
of the highway. Contd…..
No plan for improving or remodelling was proposed or
considered by the Council. It was held that the power was
exercised with ulterior object and hence it was ultra vires.
A power conferred on an administrative authority by a statute
must be exercised on the considerations relevant to the purpose
for which it is conferred. Instead if the authority takes into account
wholly irrelevant or extraneous considerations the exercise of
power by the authority will be ultra vires and the action bad.
In Ram Manohar Lohiya v. State of Bihar AIR 1966 SC under
the relevant rules, the authority was empowered to detain a
person to prevent subversion of “public order”. The petitioner was
detained with a view to prevent him from acting in a manner
prejudicial to the maintenance of “law and order”. The Supreme
Court set aside the order. Contd…..
In State of M.P. v. Ramashanker Raghuvanshi AIR 1983 SC services
of a teacher were terminated on the ground that he had taken
part in RSS and Jan Sangh avtivities. Observing that to deny
employment to an individual because of his political affinities
would be violative of Article 14 and16 of the Constitution, the
Supreme Court set aside the order.
An administrative authority cannot take into account irrelevant or
extraneous considerations. Similarly if the authority fails to take
into account relevant considerations, then also, the exercise of
power would be bad.
In Rampur Distillery Co. Ltd. V. Company Law Board AIR 1970
SC the Company Law Board refused to give its approval for
renewing the managing agency of the Company. The reason iven
by the Board for not giving its approval was that the Vivian Bose
Commission ad severely criticized the dealings of the managing
director, Mr. Dalmia. Court conceded that the past conduct of
directors were a relevant consideration but before taking a final
decision, it should take into account contd……..
Their present activities also.
In Ashadevi v. K. Shivraj AIR 1979 SC 447, an order of
detention was passed against the detenu under the conservation
of Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (COFEPOSA) . The order was based on the detinue’s
confessional statements before the Customs authorities. But the
said confessional statements were subsequently retracted by the
detinue before the order of detention. The S.C. held that the
question whether the earlier statements recorded were voluntary
was not was a “vital” fact which ought to have been considered
by the detaining authority before passing the order of detention.
Where discretion has been conferred on an authority, it is
expected to exercise the same by applying its mind to the facts
and circumstances of the case in hand, otherwise its action or
decision will be bad and the authority is deemed to have failed
to exercise its discretion.
In Merugu Satyanarayana v. State of Andhra Pradesh, AIR 1982
SC 1543 a preventive detention case, the Court found that the
detaining authority had acted mechanically and abdicated its
powers to subordinates when the affidavit in justification of the
detention was filed by a subordinate and not the detaining
authority itself. The Court stated that the subordinate authority
does not say how he came to know about the subjective
satisfaction of the District magistrate. From this contd…..
the Court concluded that detaining authority (D.M.) had
completely abdicated its functions.
In Nandlal v. Bar Council of Gujarat AIR 1981 SC 477 while
analysing one case the court concluded that The advocates Act,
1961 provides that if on a receipt of a complaint against an
advocate, the State bar council has “reason to believe” that the
advocate has been guilty of misconduct it shall forward the case
to its disciplinary Committee. It was held that in forwarding a case
to the disciplinary committee the Council can not act mechanically;
it must apply its mind to find out whether there is any reason to
believe that any advocate has been guilty of misconduct.
An exercise of discretionary power may be bad because the
authority has not complied with the procedural requirements laid
down in the statute, provided the court holds the procedure to be
mandatory. It is for the Court to decide whether a procedural
requirement is mandatory or directory.
In M.M. Gupta v. state of J. & K. AIR 1982 SC 1579, it
has been held that under Art. 233 of the Constitution the
Governor is under an obligation to make effective consultation
with High court for appointment of District Judge, such a
requirement is mandatory.
In Jashwant Singh Mahura Singh v. Ahmedabad Municipal
Corporation AIR 1991 SC 2130, while considering the
requirement of serving special notice on the person interested in
any plot comprised in scheme and giving opportunity of hearing
to the persons affected by the scheme as envisaged by Rule 21
(3) and (4) of Bombay town Planning Rules 1955: it has been held
that such a requirement is mandatory being in consonance with
principles of natural Justice as well as Arts. 14 and 21.