Full Judgment Text
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PETITIONER:
J.R. RAGHUPATHY, ETC.
Vs.
RESPONDENT:
STATE OF A.P. & ORS. ETC.
DATE OF JUDGMENT28/07/1988
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1988 AIR 1681 1988 SCR Supl. (1) 694
1988 SCC (4) 364 JT 1988 (3) 313
1988 SCALE (2)218
CITATOR INFO :
RF 1992 SC 836 (7)
ACT:
Andhra Pradesh Districts (Formation) Act, 1974-Whether
location of Revenue Mandal Headquarters under Sub-Section
(5) of Section 3 of-Was amenable to Writ jurisdiction of
High Court.
HEADNOTE:
These appeals by Special Leave and a petition for
Special leave arose out of different judgments of the High
Court. The main issue involved was whether the location of
Revenue Mandal Headquarters in the State of Andhra Pradesh
under S. 3(5) of the Andhra Pradesh District (Formation)
Act, 1974, was a purely governmental function, not amenable
to the writ jurisdiction of the High Court.
Writ Petitions were filed in the High Court by
individuals and gram panchayats questioning the legality and
propriety of the formation of certain Revenue Mandals and
location of certain Mandal Headquarters notified in
preliminary notification issued under sub-s. (5) of Section
3 of the Act. In some cases, the High Court declined to
interfere with the location of Mandal Headquarters, holding
that the government was the best judge of the situation, or
on the ground that there was a breach of guidelines it
directed the Government to reconsider the question of
location of the Mandal Headquarters. In some cases, the High
Court quashed the final notification for location of the
Mandal Headquarters at a particular place, holding that
there was a breach of guidelines based on the system of
marking and also on the ground that there were no reasons
disclosed for deviating from the preliminary notification
for location of the Mandal Headquarters at another place.
Allowing Civil Appeal Nos. 1980, 1982, 1985 and 1987 of
1986 and all other appeals and Special Leave Petitions
directed against the judgments of the High Court, whereby
the High Court had interfered with the location of the
Mandal Headquarters, the Court,
^
HELD: It was difficult to sustain the interference by
the High Court in some of cases with the location of the
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Mandal Headquarters and the quashing of the impugned
notification on the ground that the Government had acted in
breach of the guidelines in that one place or
695
the other was more centrally located or that location at the
other place would promote general public convenience or that
the Headquarters should be fixed at a particular place with
a view to developing the areas surrounded by it or that
merely because a particular person who was an influential
Member of Legislative Assembly belonging to the party in
opposition had the right of representation but failed to
avail of it. The location of Headquarters by the Government
by the issue of the final notification under sub-s (5) of s.
3 of the Act was on a consideration by the Cabinet Sub-
Committee of the proposals submitted by the Collectors
concerned and the objections and suggestions received from
the local authorities like Gram Panchayats and the general
public, keeping in view the relevant factors. Even assuming
that any breach of the guidelines for the location of the
Mandal Headquarters was justiciable, the utmost that the
High Court could have done was to quash the impugned
notification in a particular case and direct the Government
to reconsider the question. There was no warrant for the
High Court to have gone further and direct the shifting of
the Mandal Headquarters at a particular place. [711B-E]
The guidelines are merely in the nature of instructions
issued by the State Government to the Collectors regulating
the manner in which they should formulate their proposals
for formation of a Revenue Mandal or for the location of its
Headquarters keeping in view the broad guidelines laid down
in Appendix I to the White Paper issued by the Government
laying down the broad guidelines. The guidelines had no
statutory force and they had also not been published in the
Official Gazette. They were mere departmental instructions
for the Collectors. The ultimate decision as to the
formation of a Revenue Mandal or location of its
Headquarters was with the Government. It was for that reason
that the Government issued preliminary notification under
sub-s (5) of section 3 of the Act. Deviation from the
guidelines in some of the aspects was usually for reasons of
administrative convenience keeping in view the purpose and
object of the Act i.e. to bring the administration nearer to
the people. There was nothing on record to show that the
decision of the Government in any of these cases was
arbitrary or capricious or was one not reached in good faith
or actuated with improper considerations or influenced by
extraneous considerations. In a matter like this, conferment
of discretion upon the Government in the matter of formation
of a Revenue Mandal or location of its Headquarters in the
nature of things necessarily leaves the Government with a
choice in the use of the directions conferred upon it.
[713A-F]
It was difficult to sustain the judgments of the High
Court in the
696
cases where it had interfered with the location of Mandal
Headquarters and quashed the impugned notifications on the
ground that the Government had acted in breach of the
guidelines in that one place or the other was more centrally
located or that location at the other place would promote
general public convenience or that the Headquarters should
be fixed at a particular place with a view to developing the
area surrounded by it. The location of Headquarters by the
Government by the issue of the final notification under sub-
section (5) of Section 3 of the Act was on a consideration
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by the Cabinet Sub-Committee of the proposals submitted by
the Collectors concerned and the objections and suggestions
received from the local authorities like the gram panchayats
and the general public. Even assuming that the Government
while accepting the recommendations of the Cabinet Sub-
Committee directed that the Mandal Headquarters should be at
one place rather than at another place as recommended by the
Collector concerned in a particular case, the High Court
would not have issued a writ in the nature of mandamus to
enforce the guidelines which were nothing more than
administrative instructions not having any statutory force,
which did not give rise to any legal right in favour of the
writ petitioners. The petitions filed under Article 226 of
the Constitutions before the High Court were dismissed.
[723G-H; 724A-D]
Gram Panchayat, Chinna Madur & Orr. v. The Government
of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362; C.J.
Fernandez v. State of Mysore & Ors., [1967] 3 S.C.R. 636;
Padfield v. Minister of Agriculture Fisheries & Food, LR
1968 AC 997; Laker Airways Ltd. v. Department of Trade, LR
1967 QB 643 at 705; Council of Civil Service Unions and
Others v. Minister for the Civil Service, [1984] 3 All ER
935 (RL); Secretary of State for Education and Science v.
Tameside M.B.C., LR 1977 AC 1014; Breen v. Amalgamated
Engineering Union, LR 1971 2 QB 175 at 190; R.V. Criminal
Injuries Compensation Board, explain, [1967] 2 QB 864 and
Ridge v. Baldwin, [1964] AC 40, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1979-85
of 1986 etc. etc.
From the Judgment and Order dated
12.2.1986/28.2.1986/49.1.1986 and 5.2.1986 of the Andhra
Pradesh High Court in W.P. Nos.6063, 5379, 9908, 7836 and
5379 of 1985.
Seetaramaiah, A.S. Nambyar, R.N. Keshwani, T.V.S.N.
Chari, Ms. Vrinda Grover, S. Mudigonda, C.S. Vaidanathan,
S.R.
697
Sethia, Vimal Dave, B. Rajeshwara Rao, Jitendra Sharma, G.N.
Rao, T.C. Gupta, B.P. Sarathi, A. Subba Rao and B. Kanta Rao
for the appearing parties.
The Judgment of the Court was delivered by
SEN, J. These appeals by special leave and the
connected special leave petitions directed against the
various judgments and orders of the Andhra Pradesh High
Court involve a question of principle, and relate to
location of Mandal Headquarters in the State of Andhra
Pradesh under s. 3(5) of the Andhra Pradesh Districts
(Formation) Act, 1974. The main issue involved is whether
location of Mandal Headquarters was a purely governmental
function and therefore not amenable to the writ jurisdiction
of the High Court under Art. 226 of the Constitution. In the
present cases we are concerned with the location of 12
Revenue Mandal Headquarters.
The avowed object and purpose of the Andhra Pradesh
District (Formation) Act, 1974, as amended by the Andhra
Pradesh District (Formation) Amendment Act, 1985 as
reflected in the long title, was to bring about a change in
the Revenue Administration with a view to ’bring the
administration nearer to the people and to make all public
services easily available to them’. The change in the
Revenue Administration was so achieved by the creation of
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Revenue Mandals in place of taluks and firkas. The purpose
of the legislation is brought out in the Statement of
Objects and Reasons, a relevant portion whereof is as under:
"On a careful review of the socio-economic
development of the State for the last 20 years the
State Government felt it necessary to take the
administration nearer to the people. It was of the
opinion that the only method to be adopted by the
Government for a better Revenue Administration and
to serve the interests of the people in a more
effective and suitable manner was by formation of
the Mandals in place of taluks and firkas. It was
of the view that a decentralisation of
administration and reduction in its levels would
be conducive to a more efficient implementation of
administration which brings the involvement of the
people, particularly in the implementation of
several welfare measures of the Government, and
especially to uplift the conditions of the weaker
sections of the society. It also felt that there
was urgent necessity to review its
698
activities and services and welfare programmes and
that they should be extended to the interior
regions and that the creation of Mandals with a
population ranging from 35,000 to 55,000 based
upon density of population would be an effective
method for providing better facilities to the
people at lesser cost and greater convenience. The
avowed object was therefore to ’bring the
administration nearer to the people and to make
all public services easily available to them’.
This was achieved by the creation of Revenue
Mandals in place of taluks and firkas."
To implement the decision of the Government, on 11th
January, 1984 the Governor of Andhra Pradesh accordingly
promulgated Ordinance No. 22 of 1984. This Ordinance was
later replaced by Ordinance No. 5 of 1985 inasmuch as the
earlier Ordinance could not be reintroduced due to
dissolution of the Legislative Assembly. The Ordinance was
later replaced by Act No. 14 of 1985. The change in
administration was brought about by amending s. 3 of the Act
by introducing the word ’mandals’ in place of taluks and
firkas. Pursuant to their powers under sub-s. (1) of s. 3 of
the Andhra Pradesh Districts (Formation) Act, as amended by
Act 14 of 1985, the State Government, by notification
published in the official gazette, after following the
procedure laid down in sub-s.(5) thereof divided the State
for the purpose of revenue administration into 23 Revenue
District with such limits as specified therein. Each such
district consisted of Revenue Divisions and each Revenue
Division consisted of Revenue Mandals. The 23 districts now
comprise of 1104 Revenue Mandals.
As many as 124 petitions under Art. 226 of the
Constitution were filed in the High Court by individuals and
gram panchayat questioning the legality and propriety of the
formation of certain Revenue Mandals, and particularly
location of Mandal Headquarters, abolition of certain
Mandals or shifting of Mandal Headquarters, as notified in
the preliminary notification issued under sub-s. (5) of s.
3, deletion and addition of villages to certain mandals.
Some of the writ petitions were heard by one Division Bench
and the others by another, both the Benches being presided
over by Reghuvir, J. who has delivered all the judgments.
Incidentally, there is no statutory provision relating to
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location of Mandal Headquarters and the matter is governed
by GOMs dated 25th July, 1985 issued by the State Government
laying down the broad guidelines for the formation of
Mandals and also for location of Mandal Headquarters. The
learned Judges upheld the validity of formation of Mandals
as also the aforesaid GOMs and in some
699
cases they declined to interfere with the location of Mandal
Headquarters holding that the Government was the best judge
of the situation or on the ground that there was a breach of
the guidelines, and directed the Government to reconsider
the question of location of Mandal Headquarters. However, in
other cases the learned Judges have gone a step further and
quashed the final notification for location of Mandal
Headquarters at a particular place holding that there was a
breach of the guidelines based on the system of marking and
also on the ground that there were no reasons disclosed for
deviating from the preliminary notification, and instead
directed the Government to issue a fresh notification for
location of Mandal Headquarters at another place. One of the
arguments advanced before us in the cases where the High
Court has declined to interfere is that both the High Court
and the State Government should have applied a uniform
standard in dealing with the question and generally it is
said that the State Government should at any rate have
adhered to the guidelines in fixing the location of Mandal
Headquarters without being guided by extraneous
considerations.
Myriad are the facts. It is not necessary for us to
delve into the facts in any detail. It would suffice for our
purposes to touch upon the facts in some of the cases to
present the rather confusing picture emerging as a result of
conflicting directions made by the High Court. It appears
that Raghuvir, J. relied upon the underlying principle
emerging from his earlier decision delivered on behalf of
himself and Sriramulu, J. in the Gram Panchayat, Chinna
Madur & Ors. v. The Government of Andhra Pradesh, [1986] 1
Andhra Weekly Reporter 362 which he calls as the ’Chandur
principle’. In that case following the earlier decision of
the High Court where a place called Chandur was not shown in
the preliminary notification for formation of a taluk, but
was chosen to be the place of location of the Taluk
Headquarters in the final notification, it was held that in
such a case publication of the final notification could not
be sustained and it was for the Government to give reasons
for such deviation. The decision proceeded on the principle
that where guidelines are issued regulating the manner in
which a discretionary power is to be exercised, the
Government is equally bound by the guidelines. If the
guidelines were violated, it was for the Government to offer
explanation as to why the guidelines were deviated from. We
are afraid, there is no such inflexible rule of universal
application. The learned Judges failed to appreciate that
the guidelines issued by the State Government had no
statutory force and they were merely in the nature of
executive instructions for the guidance of the Collectors.
On the basis of such guidelines the Collectors
700
were asked to forward proposals for formation of Revenue
Mandals and for location of Mandal Headquarters. The
proposals so forwarded by the Collectors were processed in
the Secretariat in the light of the suggestions and
objections received in response to the preliminary
notification issued under s. 3(5) of the Act and then placed
before a Cabinet Sub Committee. The ultimate decision as to
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the place of location of Mandal Headquarters was for the
Government to take. It cannot be said that in any of the
cases the action of the Government for location of such
Mandal Headquarters was mala fide or in bad faith or that it
proceeded on extraneous consideration. Nor can it be said
that the impugned action would result in arbitrariness or
absence of fairplay or discrimination.
We must next refer to the facts in a few illustrative
cases. In the Gram Panchayat, Chinna Madur’s case, although
in the preliminary notification issued under s. 3(5) of the
Act for formation of Devaruppalla Mandal, Chinna Madur was
proposed as the Mandal Headquarters, the Revenue authorities
in the final notification declared Devaruppalla as the
Mandal Headquarters. In the writ petition, the High Court
produced the records and it showed that both Devaruppalla
and Chinna Madur provided equal facilities as to
communication, transport, veterinary hospital, bank, school
etc. and secured 15 marks each. The Government preferred
Devaruppalla as Chinna Madur was inaccessible in some
seasons as that village was divided by two rivers from rest
of the villages. Devaruppalla besides is located on
Hyderabad-Suryapet Highway which was considered to be a
factor in its favour. After reiterating the Chandur
principle that it is for the Government to give reasons for
such deviation, the learned Judges declined to interfere,
observing:
"In the instant case, the record produced shows
the authorities considered the comparative merits
of Devaruppalla and Chinna Madur. The Revenue
authorities applied the correct indicia of
accessibility in all seasons. Other facilities of
the two villages were discussed at length in the
record. Having regard to the overwhelming features
in favour of Devaruppalla the village was declared
as head quarters."
We have referred to the facts of this case because it
highlights the approach of the High Court and it has assumed
to itself the function of the Government in weighing the
comparative merits and demerits in the matter of location of
the Mandal Headquarters.
701
The same infirmity unfortunately permeates through some
of the judgments where the High Court has interfered. In
some of the cases the High Court has gone further and not
only quashed the impugned notification for location of the
Mandal Headquarters at a particular place but also directed
the shifting to another place. In Civil Appeals Nos. 1980
and 1985 of 1986, in formation of Gollamamidada Mandal,
Gollamamidada was shown as the proposed Headquarters in the
priliminary notification, but Pedapudi was selected to be
the place of Headquarters in the final notification.
Gollamamidada secured 23 marks as compared to 18 marks
secured by Pedapudi. The Collector relaxed the guideline
because, it was stated, 12 out of 17 Panchayat opted for
Pedapudi to be the Headquarters presumably because
Gollamamidada was at one end of the Mandal and out of 17
villages comprised in the Mandal, 10 villages were at a
distance of 7 to 14 kilometres and there were no proper
travelling facilities and therefore it was beyond the reach
of the common man. Allowing the writ petition, the High
Court observed: "On evaluation of the sketch, we hold that
neither of the two villages is centrally located". It went
on to say that "the guidelines prescribed by the Government
bind the Government and cannot be relaxed and there was no
reason forthcoming for supersession of the claim of the
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village Gollamamidada by Pedapudi." Although the Cabinet Sub
Committee had directed the variation on grounds of
administrative convenience and for the reason that 12 out of
17 Gram Panchayats had resolved that Pedapudi should be the
Headquarters, the High Court quashed the notification saying
that the resolution of the Gram Panchayat might be relevant
for consideration, but in law it was not decisive of the
question. It further observed that there was no explanation
as to why the place of location as specified in the
preliminary notification was varied and accordingly directed
the shifting of Headquarters to Gollamamidada. We find it
difficult to subscribe to this line of reasoning adopted by
the High Court.
In Civil Appeals Nos. 1982 and 1987 of 1986, the
judgment of the High Court suffers from the same infirmity.
In the preliminary as well as final notification, for
formation of Kalher Revenue Mandal, Kalher was declared to
the Mandal Headquarters. Kalher secured 14 marks as against
Sirgapur which secured 22 marks. The High Court quashed the
notification for location of the Headquarters at kalher and
directed the shifting of the Headquarters to Sirgapur on the
basis of the Collector’s note appended to the file which
stated:
"As per the guidelines, the Mandal Headquarters
may have to be fixed at Sirgapur and not at
Kalher. Sirgapur has
702
scored 22 points whereas the score of Kalher is
only 14. Sirgapur is undoubtedly the zone of
influence for this Mandal. Moreover, Sirgapur is
centrally located and has better road connections
with the rest of the villages, besides having
maximum infrastructural facilities."
The High Court observed that no record was produced as
to why the Government did not act on the note placed on the
file.
It will serve no useful purpose to delineate the facts
in all the cases which follow more or less on the same
lines. We are of the opinion that the High Court had no
jurisdiction to sit in appeal over the decision of the State
Government to locate the Mandal Headquarters at a particular
place. The decision to locate such Headquarters at a
particular village is dependent upon various factors. The
High Court obviously could not evaluate for itself the
comparative merits of a particular place as against the
other for location of the Mandal Headquarters. In some of
the cases the High Court declined to interfere saying that
the Government was the best judge of the situation in the
matter of location of Mandal Headquarters. However, in a few
cases the High Court while quashing the impugned
notifications for location of Mandal Headquarters issued
under sub-s. (5) of s. 3 of the Act on the ground that there
was a breach of the guidelines, directed the Government to
reconsider the question after hearing the parties.
We have had the benefit of hearing learned counsel for
the parties on various aspects of this branch of
administrative law as to the nature and scope of the
guidelines and whether their non-observance was justiciable.
The learned counsel with their usual industry placed before
us a large number of authorities touching upon the subject.
On the view that we take, it is not necessary for us to
refer to them all.
Shri T.V.S.N. Chari, learned counsel appearing on
behalf of the State Government followed by Dr. Y.S. Chitale,
Shri U.R. Lalit and Shri C.S. Vaidyanathan, learned counsel
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appearing for the appellants in cases where the High Court
has interfered have, in substance, contended that
suitability as to the location of Mandal Headquarters is for
the Government to decide and not for the High Court. They
contend that the High Court failed to view the case from a
proper perspective. According to them, the guidelines are
executive instructions, pure and simple, and have no
statutory force. It was pointed out that there is no
statutory provision made either in the Act or the Rules
framed there-
703
under laying down the manner in which the location of the
Headquarters of a Revenue Mandal was to be made. The
Legislature has left the matter of selection of a place to
be the Mandal Headquarters to the discretion of the State
Government and it was purely a Governmental function based
on administrative convenience. The Government accordingly
issued a White Paper laying down the broad guidelines as
contained in Appendix I thereto. The Collector were required
to forward their proposals for formation of Revenue Mandals
indicating the place where the Headquarters should be
located in accordance with the principles laid down in the
guidelines based on a system of marking. Although the
Collectors were required to propose the location of Mandal
Headquarters at a particular place on a system of marking,
but that was not determinative of the question. If the marks
were to be the sole criterion, then there was no question of
inviting objections and suggestions. The ultimate decision
therefore lay with the Government and in making the
selection the Government had the duty to ensure that the
place located for location of Mandal Headquarters promoted
administrative convenience and further the object and
purpose of the legislation in bringing about a change in the
Revenue administration viz. (i) to bring the administration
nearer to the people and (ii) to make all public services
easily available to them, the main criterion as laid down in
the guidelines being suitability and accessibility. Further,
the learned counsel contended that the High Court was
clearly in error in substituting its judgment for that of
the State Government. Non-observance of the guidelines which
were in the nature of executive instructions was not
justiciable. In any event, the High Court could not have
issued a direction requiring the Government to shift the
Headquarters of a Revenue Mandal from a particular place to
another place on its own evaluation of the comparative
merits and demerits merely on the basis of marking. The
learned counsel relied upon G.J. Fernandez v. State of
Mysore & Ors., [1967] 3 SCR 636 and other decisions taking
the same view.
We had an equally persuasive reply to these arguments.
Shri Seetaramaiah, learned counsel appearing for the
respondents in cases where the High Court has interfered,
advanced the main argument on the legal aspect with much
learning and resource and placed all the authorities on this
abstruse branch of administrative law, namely, the Courts
have albeit the Governmental action which involves exercise
of discretionary powers, control over the exercise of such
Governmental power by implying limits of reasonableness,
relevance and purpose. Judicial control over the executive,
or over an administrative authority, must be maintained.
Such judicial control by necessary impli-
704
cation is reconciled with legislative intent, on the premise
that the legislature never intended that the Government
should have unfettered control over a certain area. He drew
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our attention to several recent English decisions which
manifest a definite shift in the attitude of the Courts to
increase their control over discretion. According to the
learned counsel, the traditional position is that Courts
will control the existence and extent of prerogative power
i.e. governmental power, but not the manner of exercise
thereof. What degree or standard of control would then be
exercised would depend upon the type of subject-matter in
issue. He submits that there is increasing willingness of
the Courts to assert their power to scrutinise the factual
bases upon which discretionary powers have been exercised.
It is said that the Court is not powerless to intervene
where the decision of the Government is reached by taking
into account factors that were legally irrelevant or by
using its power in a way calculated to frustrate the policy
of the Act. It follows that the nature and object of the
status had to be considered to determine the area of power
possesed. It is urged that the remedy of a writ of mandamus
is available if a decision is reached by the Government on
the basis of irrelevant considerations or improper purposes
or for other misuse of power. Upon that premise, he does not
accept that the High Court had no jurisdiction to interfere
with the orders passed by the State Government for the
location of the Headquarters of a Revenue Mandal under Art.
226 of the Constitution. Substantially, the argument is that
the guidelines framed by the State Government have a
statutory force inasmuch as the power to issue such
administrative directions or instructions to the Collectors
is conferred by the provisions of the Act itself.
Alternatively, he says that even though a non-statutory
rule, bye-law or instruction may be changed by the authority
who made it without any formality and it cannot ordinarily
be enforced through a Court of law, the party aggrieved by
its non-enforcement may nevertheless get relief under Art.
226 of the Constitution where the non-observance of the non-
statutory rule or practice would result in arbitrariness or
absence of fairplay or discrimination, particularly where
the authority making such non-statutory rule-or the like-
comes within the definition of ’State’ under Art. 12. In
substance, the contention is that the principle laid down in
the classical decision of the House of Lords in Padfield v.
Minister of Agriculture, Fisheries & Food, LR 1968 AC 997
that the Courts will control the exercise of statutory
powers by the Minister, still prevails over exercise of
discretionary powers by the Government. The general approach
now is for the Courts to require that the Government must
produce reasonable grounds for its action, even where the
705
jurisdictional fact is subjectively framed. He drew our
attention to the observations of Lord Denning M.R. in Laker
Airways Ltd. v. Department of Trade, LR 1977 QB 643 at p.
705 to the effect:
"The prerogative is a discretionary power
exercisable by the executive government for the
public good, in certain spheres of governmental
activity for which the law has made no provision,
such as the war prerogative (of requisitioning
property for the defence of the realm), or the
treaty prerogative (of making treaties with
foreign powers). The law does not interfere with
the proper exercise of the discretion by the
executive in those situations: but it can set
limits by defining the bounds of the activity: and
it can intervene if the discretion is exercised
improperly or mistakenly. That is a fundamental
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principle of our constitution."
"Seeing that the prerogative is a discretionary
power to be exercised for the public good, it
follows that its exercise can be examined by the
courts just as any other discretionary power which
is vested in the executive. At several times in
our history, the executive have claimed that a
discretion given by the prerogative is unfettered:
just as they have claimed that a discretion given
by statute or by regulation is unfettered
......The two outstanding cases are Padfield v.
Minister of Agriculture, Fisheries and Food,
[1968] AC 997 and Secertary of State for Education
and Science v. Tameside Metropolitan Borough
Council, [1976] 3 WLR 641, where the House of
Lords have shown that when discretionary powers
are entrusted to the executive by statute, the
courts can examine the exercise of those powers to
see that they are used properly, and not
impropertly or mistakely."
In order to appreciate the contentions advanced, it is
necessary to refer to the relevant statutory provisions
bearing on the questions involved. Sub-s. (1) of s. 3, as
amended, is in these terms:
"3(1) The Government may, by notification, from
time to time, for the purposes of revenue
administration, divide the State into such
disticts with such limits as may be specified
therein; and each district shall consist of such
706
revenue divisions and each revenue division shall
consist of such mandals and each mandal shall
consist of such villages as the Government may, by
notification from time to time, specify in this
behalf."
Sub-s. (2) thereof provides that the Government may, in the
interests of better administration and development of the
areas, by notification from time to time on and with effect
on and from such date as may be specified therein, form a
new district, revenue division or mandal or increase or
diminish or alter their name. Sub-s. (4) empowers the Board
of Revenue in the interests of better administration and
development of the areas and subject to such rules as may be
prescribed, by notification, group or amalgamate, any two or
more revenue villages or portions thereof so as to form a
single new revenue village or divide any revenue village
into two or more revenue villages, or increase or diminish
the area of any revenue village, or alter the boundaries or
name of any revenue village. Sub-s. (5) provides that before
issuing any notification under the section, the Government
or the Board of Revenue, as the case may be, shall publish
in such manner as may be prescribed, the proposals inviting
objections or suggestions thereon from the person residing
within the district, revenue division, taluk. firka or
village who are likely to be affected thereby within such
period as may be specified therein, and shall take into
consideration the objections or suggestions, if any,
received. Sub-s. (1) of s. 4 enacts that the Government may,
by notification, make rules for carrying out all or any of
the purposes of this Act. The rules so framed shall be laid
before each House of the State Legislature, etc.
In exercise of the powers conferred by sub-s. (1) of s.
4 of the Act, the State Government framed the Andhra Pradesh
District (Formation) Rules, 1984. The term ’Mandal’ as
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defined in r. 2(iv) means a part of the district within a
revenue division under the charge of a Tahsildar or Deputy
Tahsildar. The expression ’revenue division’ is defined in
r. 2(v) to mean a part of the district comprising of one or
more mandals under the charge of a Revenue Divisional
officer/Sub Collector/Assistant Collector or any other
officer placed in charge of a division. The word ’village’
in r. 2(vi) means a settlement or locality or area
consisting of cluster of habitations and the land belonging
to their proprietory inhabitants and includes, a town or
city and a hamlet (Mazra). Rule 3 lays down the matters for
consideration in formation of districts, etc. Rules 4 and 5
provide for the publication of the preliminary and final
notifications in the official gazette. Rule 3 insofar as
material reads:
707
"3(1) Where any action is proposed to be taken by
the Government under sub-s. (1) or sub-s. (2) of
s. 3 of the Act ..... the Government ...... shall
take into consideration as far as may be the
following matters and the views of the Collectors
of the districts and of such other authorities as
the Government may consider necessary:-
(i) Area, population, demand under the land
revenue and other revenues in respect of areas
affected by the proposals;
(ii)Historical association, Geographical
contiguity, Physical features common interests and
problems, Cultural and Educational requirements,
Infrastructural facilities and economic progress
of the areas;
(iii)Development of the area or areas
concerned, having regard to the various
developments and welfare schemes undertaken or
contemplated by the Government in relation to
those areas;
(iv)Administrative convenience and better
administration; and
(v)Interests of economy."
"3(3). In matters concerning sub-s. (1) or sub-s.
(2) of s. 3 of the Act the Collector concerned shall forward
to the Government his report with his views together with
the record of enquiry if any for the consideration of the
Government. If after such consideration the Government so
decides, a preliminary notification under sub-s. (5) of s. 3
of the Act inviting objections or suggestions to the
proposals from the persons residing in the area/areas which
are likely to be affected thereby, shall be issued."
Sub-r. (1) of r. 4 provides for the manner of
publication of the preliminary notification referred to in
sub-rr. (3) and (4) of r. 3 inviting objections or
suggestions. The notification has to be in Form I appended
to the Rules. R. 4(2) provides that any person affected by
the proposal may within thirty days from the date of
publication of the notification referred to in sub-r. (1),
communicate his objections or suggestions thereto to the
Secretary to the Government in the
708
Revenue Department through the Collector of the district
concerned, who shall forward the same with his remarks to
the Government, etc. R. 5 provides that the Government shall
having regard to the suggestions or objections referred to
in r. 4 either confirm the preliminary notification or issue
it with such modification/modifications as may be necessary
and publish it in Form II of the Gazette. A preliminary
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notification under sub-s. (5) of s. 3 of the Act which has
to be in Form I has to notify to all concerned that the
Government in the interests of better administration and
development of the area concerned, proposed to form a new
district/revenue division/mandal as set out in the schedule
appended thereto. All objections and suggestions have to be
addressed to the Collector within whose jurisdiction the
area or areas fall. Likewise, Form II prescribes the form of
the final notification to the effect that the State
Government having taken into consideration the objections
and suggestions received thereon, is pleased to notify that
with effect from (date) the State shall consist of the
District/Revenue Division/Mandal specified in Schedule I
appended thereto. There are no statutory provisions
formulating the governing principles for formation of
Revenue Mandals or for location of Mandal Headquarters.
On 25th July, 1985 the State Government published a
White Paper on formation of Mandals. It was stated inter
alia that the Revenue Mandals would be formed covering urban
as well as rural areas unlike Panchayat Mandals which would
cover only rural areas. A Revenue Mandal would be demarcated
for a population ranging from 35,000 to 55,000 in the case
of rural mandals and was expected to cover one-third to one-
fourth the size of the existing taluks in areas and in
population. When a Municipality came within the area of a
Revenue Mandal, the urban population would be in addition.
The ushering in of rural mandals would result in
introductions of a four-tier system by replacement of the
then existing five-tier system. Such reduction in the levels
of tiers of administration the Government felt would be more
conducive to proper implementation of the policies and
programmes of the Government. Greater decentralisation was
expected to lead to more intensive involvement of the
people, particularly in the implementation of programmes of
economic development. According to the scheme contemplated,
each Revenue Mandal would be headed by a Revenue Officer of
the rank of a Tahsildar or a Deputy Tahsildar and it was
stated that the intention of the Government was to vest in
such Revenue Officers, all the powers that were till then
exercised by the Tahsildars and Taluk Magistrate. Appendix I
to the White Paper formulated the principles for formation
of Revenue Mandals and also
709
laid down the broad guidelines for location of Mandal
Headquarters. The Collectors were accordingly asked to
forward their proposals for creation of Revenue Mandals and
also for location of Mandal Headquarters in conformity with
the guidelines. The proposals were to be duly notified by
publication of a preliminary notification under sub-s. (5)
of s. 3 of the Act inviting objections and suggestions and
the Government after consideration of the objections and
suggestions so received would publish the final
notification. The broad guidelines for location of Mandal
Headquarters are set out below:
(3) As a general principle, the present Taluk
Headquarters, Samithi Headquarters, Municipalities
and Corporations will be retained as Headquarters
of Revenue Mandals; if any exception is called for
on grounds of compelling reasons detailed reasons
will have to be given.
(4) Revenue Mandals whose headquarters will be the
present Taluk Headquarters/Samithi
Headquarters/Municipalities/Corporations, will
generally have a number of much needed
infrastructural facilities already existing. A
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number of people from the neighbouring villages
will therefore be visiting these headquarters for
both Governmental/non-Governmental business. In
the case of Revenue Mandals to be located
exclusively within municipal corporation areas,
their requirements will be formulated according to
their needs.
In cases of Mandal Headquarters located in
urban centres which are not municipalities but
with a population of 15,000 or above the total
population of the Mandal would be 55,000
irrespective of population density.
(6) In choosing the Headquarters of the Revenue
Mandals in the rural areas, weightage may be given
to the availability of the following facilities
and the future growth of the place.
(i) Banking facility;
(ii) Communication facility-either Railway
Station or Bus Stand;
(iii)PHC or Sub-Centre or any
Dispensary/Indian Medicine;
710
(iv) Veterinary Dispensary;
(v) Police Station;
(vi) Post Office/Telephone Exchange;
(vii)High School.
(viii)Market Yard/Agricultural Godown;
(ix) Already a Firka Headquarters;
(x) Any other special qualification like
availability of office accommodation,
residential quarters for the staff etc.
A centre having one or more of the above
characteristics and more accessible to most of the
villages proposed for the Mandal in comparison to
any other centre should be generally selected as
Headquarters. If in any mandal there is more than
one centre having equal accessibility/facilities
then the centre which comes forward to donate land
for office buildings and to provide temporary
office accommodation may be given preference.
(8) In the selection of villages for inclusion in
the Mandal, the principal criterion shall be that
the Mandal Headquarters is most accessiable to all
the villages."
It is quite obvious from the guidelines that the
location of the Headquarters of a Revenue Mandal is based on
a system of marking, the principal criterion being
’accessibility’ i.e. the place located must be accessible to
all the villages in the Revenue Mandal. In choosing the
Headquarters of the Revenue Mandals in the rural areas,
weightage had to be given to the availability of certain
facilities and the future growth of the place as specified
in items (i) to (x) of paragraph 6 of the guidelines. A
centre or a place having one or more of the characteristics
so set out and more accessible to most of the villages
proposed for the Mandal in comparison to any other place had
to be generally selected as Mandal Headquarters. If in any
Mandal there was more than one place having equal
accessibility/facilities then the place which came forward
to donate land for office buildings and to provide temporary
office accommodation had to be given preference. Location
711
of Mandal Headquarters was therefore based on a system of
marking. Learned counsel for the parties have with infinite
care taken us minutely to the facts of each case in an
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endeavour to support their respective contentions, viz., as
to whether location of the Mandal Headquarters by the
Government at a particular place was in breach of the
guidelines or not.
We find it rather difficult to sustain the interference
by the High Court in some of the cases with location of
Mandal Headquarters and quashing of the impugned
notification on the ground that the Government acted in
breach of the guidelines in that one place or the other was
more centrally located or that location at the other place
would promote general public convenience or that the
Headquarters should be fixed at a particular place with a
view to develop the areas surrounded by it or that merely
because a particular person who was an influential Member of
Legislative Assembly belonging to the party in opposition
had the right of representation but failed to avail of it.
The location of Headquarters by the Government by the issue
of the final notification under sub-s. (5) of s. 3 of the
Act was on a consideration by the Cabinet Sub Committee of
the proposals submitted by the Collectors concerned and the
objections and suggestions received from the local
authorities like Gram Panchayat and the general public,
keeping in view the relevant factors. Even assuming that any
breach of the guidelines was justiciable, the utmost that
the High Court could have done was to quash the impugned
notification in a particular case and direct the Government
to reconsider the question. There was no warrant for the
High Court to have gone further and directed the shifting of
the Mandal Headquarters at a particular place.
Broadly speeking, the contention on behalf of the State
Government is that relief under Art. 226 of the Constitution
is not available to enforce administrative rules,
regulations or instructions which have no statutory force,
in the absence of exceptional circumstances. It is
wellsettled that mandamus does not lie to enforce
departmental manuals or instructions not having any
statutory force, which do not give rise to any legal right
in favour of the petitioner. The law on the subject is
succinctly stated in Durga Das Basu’s Administrative Law,
2nd edn. at p. 144:
"Administrative instructions, rules or manuals,
which have no statutory force, are not enforceable
in a court of law. Though for breach of such
instructions, the public servant may be held
liable by the State and disciplinary action may
712
be taken against him, a member of the public who
is aggrieved by the breach of such instructions
cannot seek any remedy in the courts. The reason
is, that not having the force of law, they cannot
confer any legal right upon any body, and cannot,
therefore, be enforced even by writs under Art.
226."
The learned author however rightly points out at p.
145:
"Even though a non-statutory rule, bye-law or
instruction may be changed by the authority who
made it, without any formality and it cannot
ordinarily be enforced through a Court of law, the
party aggrieved by its non-enforcement may,
nevertheless, get relief under Art. 226 of the Con
stitution where the non-observance of the non-
statutory rule or practice would result in
arbitrariness or absence of fairplay or
discrimination,-particularly where the authority
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making such non-statutory rule or the like comes
within the definition of ’State’ under Art. 12."
In G.J. Fernandez’s case, the petitioner submitting the
lowest tender assailed the action of the Chief Engineer in
addressing a communication to all the tenderers stating that
even the lowest tender was unduly high and enquired whether
they were prepared to reduce their tenders. One of them
having reduced the amount of his tender lower than the
lowest, the Chief Engineer made a report to the Technical
Sub-Committee which made its recommendations to the Major
Irrigation Projects Control Board, the final authority,
which accepted the tender so offered. The High Court
dismissed the writ petition holding that there was no breach
of the conditions of tender contained in the Public Works
Department Code and further that there was no discrimination
which attracted the application of Art. 14. The question
that fell for consideration before this Court was whether
the Code consisted of statutory rules or not. The so-called
Rules contained in the Code were not framed under any
statutory enactment or the Constitution. Wanchoo, CJ
speaking for the Court held that under Art. 162 the
executive power of the State enables the Government to issue
administrative instructions to its servants how to act in
certain circumstances, but that would not make such
instructions statutory rules the breach of which is
justiciable. It was further held that non-observance of such
administrative instructions did not give any right to a
person like the appellant to come to Court for any relif on
the alleged breach of the instructions. That precisely is
the position here. The guidelines
713
are merely in the nature of instructions issued by the State
Government to the Collectors regulating the manner in which
they should formulate their proposals for formation of a
Revenue Mandal or for location of its Headquarters keeping
in view the broad guidelines laid down in Appendix I to the
White Paper. It must be stated that the guidelines had no
statutory force and they had also not been published in the
Official Gazette. The guidelines were mere departmental
instructions meant for the Collectors. The ultimate decision
as to formation of a Revenue Mandal or location of its
Headquarters was with the Government. It was for that reason
that the Government issued the preliminary notification
under sub-s. (5) of s. 3 of the Act inviting objections and
suggestions. The objections and suggestions were duly
processed in the Secretariat and submitted to the Cabinet
Sub-Committee along with its comments. The note of the
Collector appended to the proposal gave reasons for
deviating from the guidelines in some of the aspects. Such
deviation was usually for reasons of administrative
convenience keeping in view the purpose and object of the
Act i.e. to bring the administration nearer to the people.
The Cabinet Sub-Committee after consideration of the
objections and suggestions received from the Gram Panchayat
and members of the public and other organisations as well as
the comments of the Secretariat and the note of the
Collector came to a decision applying the standards of
reasonableness, relevance and purpose while keeping in view
the object and purpose of the legislation, published a final
notification under sub-s. (5) of s. 3 of the Act. There is
nothing on record to show that the decision of the State
Government in any of these cases was arbitrary or capricious
or was one not reached in good faith or actuated with
improper considerations or influenced by extraneous
considerations. In a matter like this, conferment of
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discretion upon the Government in the matter of formation of
a Revenue Mandal or location of its Headquarters in the
nature of things necessarily leaves the Government with a
choice in the use of the discretion conferred upon it.
It would be convenient at this stage to deal with the
arguments of Shri Seetaramaiah that the action of the
Government in the matter of location of Mandal Headquarters
amounted to misuse of power for political ends and therefore
amenable to the writ jurisdiction of the High Court under
Art. 226 of the Constitution. The learned counsel mainly
relied upon certain English decisions starting from Padfield
v. Minister of Agricultural, Fisheries & Food, LR 1968 AC
997 down to Council of Civil Service Unions and Others v.
Minister for the Civil Service, [1984] 3 ALL. ER 935 (HL).
What we call ’purely governmen-
714
tal function’, it is said, is nothing but exercise of
’discretion derived from the royal prerogative’. The learned
counsel contends that ever since the judgment of Lord
Denning in Laker Airways Ltd. v. Department of Trade, LR
1977 QB 643, the myth of executive discretion in relation to
prerogative power no longer exists. The learned counsel
equated prerogative and statutory powers for this purpose,
saying that in both cases alike the Courts will not review
the proper exercise of discretion but will intervene to
correct excess or abuse. According to him, the prerogative
powers of the Crown in England are akin to the executive
functions of the Union and the States under Art. 73 and 162
of the Constitution, on which refrain from expressing any
final opinion. Prima facie, it seems to us that the
executive powers of the Union and the States under Arts. 73
and 162 are much wider than the prerogative powers in
England. We would refer to a couple of English decisions
from amongst those to which we were referred to during the
arguments.
At one time, the traditional view in England was that
the executive was not answerable where its action was
attributable to the exercise of prerogative power. Professor
De Smith in his classical work ’Judicial Review of
Administrative Action’ 4th Edn., at pp. 285-287 states the
law in his own terse language. The relevant principles
formulated by the courts may be broadly summarised as
follows. The authority in which a discretion is vested can
be compelled to exercise that discretion, but not to
exercise it in any particular manner. In general, a
discretion must be exercised only by the authority to which
it is committed. That authority must genuinely address
itself to the matter before it: it must not act under the
dictation of another body or disable itself from exercising
a discretion in each individual case. In the purported
exercise of its discretion it must not do what it has been
forbidden to do, nor must it do what it has not been
authorised to do. It must act in good faith, must have
regard to all relevant considerations and must not be swayed
by irrelevant considerations, must not seek to promote
purposes alien to the letter or to the spirit of the
legislation that gives it power to act, and must not act
arbitrarily or capriciously. Nor where a judgment must be
made that certain facts exist can a discretion be validly
exercised on the basis of an erroneous assumption about
those facts. These several principles can conveniently be
grouped in two main categories: (i) failure to exercise a
discretion, and (ii) excess or abuse of discretionary power.
The two classes are not, however, mutually exclusiv. Thus,
discretion may be improperly fettered because irrelevant
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considerations have been taken into account; and where an
authority hands over its discretion to
715
another body it acts ultra vires. The learned author then
deals with the question whether the principles outlined
above are applicable to the alleged abuse of wide
discretionary powers vested in executive bodies and further
states:
"We have already noted that the courts sometimes
call a discretionary power executive or
administrative when they are unwilling to review
the mode of its exercise by reference to
"judicial" standards. Does this mean that such
discretionary powers are legally absolute, totally
immune from judicial review? To this question
there is no short answer.
(1) Parliament (or, to put the matter more
realistically, the Government) may purport to
exclude judicial review by means of special
statutory formulae which, if construed literally,
would deprive the courts of jurisdiction.
(2) No discretionary power is reviewable unless
somebody has locus standi in impugn the validity
of its exercise.
(3) If it is claimed that the authority for the
exercise of discretion derives from the royal
prerogative, the courts have traditionally limited
reveiw to questions of vires in the narrowest
sense of the term. They can determine whether the
prerogative power exists, what is its extent,
whether it has been exercised in the appropriate
form and how far it has been superseded by
statute; they have not normally been prepared to
examine the appropriateness or adequacy of the
grounds for exercising the power, or the fairness
of the procedure followed before the power is
exercised, and they will not allow bad faith to be
attributed to the Crown."
Although the weight of authority in England favours
only narrow grounds for judicial review of the exercise of
prerogative powers, there is not a total absence of support
for the view that in some circumstances at least the Court
may apply somewhat broader standards of review. See: De
Smith’s Judicial Review of Administrative Action, 4th edn.,
pp. 285-287; H.W.R. Wade’s Administrative Law, 5th edn. pp.
350 et. seq.; Foulkes’ Administrative Law, 6th edn., pp.
213-215, 219-225; Applications for Judicial Review, Law and
Practice by Grahame Aldous and John Alder, p. 105; and
D.C.M. Yardley’s
716
Principles of Administrative Law, 2nd edn. pp. 65-67.
In recent years, the concept of the rule of law in
England has been undergoing a radical change. The present
trend of judicial opinion is to restrict the doctrine of
immunity of prerogative powers from judicial review where
purely governmental functions are directly attributable to
the royal prerogative, such as whether a treaty should be
concluded or the armed forces deployed in a particular
manner or Parliament dissolved on one day rather another,
etc. The shift in approach to judicial interpretation that
has taken place during the last few years is attributable in
large part to the efforts of Lord Denning in Laker Airways’
case. The attempt was to project the principles laid down in
Padfield’s case into the exercise of discretionary powers by
the executive derived from the prerogative, and to equate
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prerogative and statutory powers for purposes of judicial
review, subject to just exceptions. Thus, the present trend
of judicial opinion is to restrict the doctrine of immunity
from judicial review to those class of cases which relate to
deployment of troops, entering into international treaties,
etc. The distinctive features of some of these recent cases
signify the willingness of the Courts to assert their power
to scrutinise the factual bases upon which discretionary
powers have been exercised.
The decision of the House of Lords in Padfield’s case
is an important landmark in the current era of judicial
activism in this area of administrative law. The Minister
had refused to appoint a committee, as he was statutorily
empowered to do when he thought fit, to investigate
complaints made by members of the Milk Marketing Board that
the majority of the Board had fixed milk prices in a way
that was unduly unfavourable to the complainants. The
Minister’s reason for refusing to accede to the
complainants’ request inter alia was that ’it would be
politically embarrassing for him if he decided not to
implement the committee’s recommendations’. The House of
Lords held that the Minister’s discretion was not unfettered
and that the reasons that he had given for his refusal
showed that he had acted ultra vires by taking into account
factors that were legally irrelevant and by using his power
in a way calculated to frustrate the policy of the Act. The
view was also expressed by four of the Law Lords that even
if the Minister had given no reasons for his decision, it
would have been open to the Court to infer that the Minister
had acted unlawfully if he had declined to supply any
justification at all for his decision: De Smith’s
Administrative Law, 4th edn., p. 294. More recently, in
Laker Airways case and in Secretary of State for Education
and Science v. Tameside M.B.C., LR 1977 AC 1014 both the
Court of Appeal and the
717
House of Lords have set aside as ultra vires the exercise of
discretion that included a substantial subjective element.
In Padfield’s case the scarcely veiled allusion to fear
of parliamentary trouble was, in particular, a political
reason which was quite extraneous and inadmissible. Lord
Reid during the course of his judgment emphatically and
unequivocally rejected the contention that the discretion of
the Minister was absolute, in these words:
"Parliament must have conferred the discretion
with the intention that it should be used to
promote the policy and objects of the Act; the
policy and objects of the Act must be determined
by construing the Act as a whole and construction
is always a matter of law for the Court. In a
matter of this kind it is not possible to draw a
hard and fast line, but if the Minister, by
reason, so uses his discretion as to thwart or run
counter to the policy and objects of the Act, then
our law would be very defective if persons
aggrieved were not entitled to the protection of
the Court."
Lord Upjohn said that the Minister’s stated reasons
showed a complete misapprehension of his duties, and were
all bad in law. Lord Denning in another case observed that
the decision in Padfield marked the evolution of judicial
opinion that the Court could intervene if the Minister
’plainly misdirects himself in fact or in law’. The
importance of the decision of the House of Lords in
Padfield’s case was underlined by Lord Denning in Breen v.
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Amalgamated Engineering Union, LR 19712 QB 175 at p. 190, in
these words:
"The discretion of a statutory body is never
unfettered. It is a discretion which is to be
exercised according to law. That means at least
this: the statutory body must be guided by
relevant considerations and not by irrelevant. If
its decision is influenced by extraneous
considerations which it ought not to have taken
into account, then the decision cannot stand. No
matter that the statutory body may have acted in
good faith; nevertheless the decision will be set
aside. That is established by Padfield v. Minister
of Agriculture, Fisheries and Food, which is a
landmark in modern administrative law."
In Laker Airways’ case, the Court of Appeal was
concerned with the power of Minister to give directions to
the Civil Aviation
718
authorities overiding specific provisions in the statute in
time of war, in the interests of national security or
international relations or protection of the environment. In
his judgment, Lord Denning M.R. held that the review of the
prerogative is assimilated to that of statutory power, so
that its exercise may be impugned for ’misdirection in fact
or in law’. Lord Denning M.R. discussed the nature of the
prerogative and said;
"Seeing that the prerogative is a discretionary
power to be exercised for the public good, it
follows that its exercise can be examined by the
courts just as any other discretionary power which
is vested in the executive."
He then went on to say that the prerogative powers were as
much capable of abuse as any other power and therefore
subject to judicial review and observed:
"Likewise it seems to me that when discretionary
powers are entrusted to the executive by the
prerogative-in pursuance of the treaty-making
power-the courts can examine the exercise of them
so as to see that they are not used improperly or
mistakenly."
This observation has given rise to considerable debate.
The majority, however, proceeded on a narrower basis
concluding that the Civil Aviation Act, 1971 had impliedly
superseded the Crown’s prerogative in foreign affairs, and
that the holder of a licence under the statute could not be
deprived of its commercial value by a decision on the part
of the Secretary to State or revoke the licensee’s status as
a designated carrier under the Bermuda Agreement. In other
respects, the majority accepted the orthodox position on the
unreviewability of the exercise of the prerogative, per
Roskill and Lawton, L. JJ, Lord Denning however went further
and held that the Court could intervene if a Minister
’plainly misdirects himself in fact or in law’.
Another important case in this context is R. V.
Criminal Injuries Compensation Board, ex p. Lain, [1967] 2
QB 864. The question in this case was whether payments made
by the Board to victims of crime were subject to judicial
review. The difficulty was that Lord Reid’s phrase ’power to
make decisions affecting rights’ in Ridge v. Baldwin, [1964]
AC 40 was taken to refer to legal rights, whereas the
Criminal Injuries Compensation Scheme was not said to be by
legislation but
719
just as an administrative expedience by means of internal
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departmental circulars. So payments made under the Scheme
were not, strictly, a matter of legal right but were ex
gratia. On the other hand, the criterion on which payments
were made were laid down in some detail and were very much
like any law rules for assessment of damages in tort. So the
Board, like the Courts, was meant to be focussing on the
individuals before it, in deciding whether to make an award
and how much to award. It was strenuously argued that the
Board was not subject to the jurisdiction of the Courts
since it did not have what was described as legal authority
in the sense of statutory authority. This argument was
emphatically and unanimously rejected. In his judgment Lord
Parker, CJ. said:
"I can see no reason either in principle or in
authority why a board, set up as this board were
set up, should not be a body of persons amenable
to the jurisdiction of this Court. True the board
are not set up by statute but the fact that they
are set up by executive government, i.e., under
the prerogative, does not render their acts any
the less lawful. Indeed, the writ of certiorari
has been issued not only to courts set up by
statute but to courts whose authority was derived;
inter alia, from the prerogative. Once the
jurisdiction is extended, as it clearly has been,
to tribunals as opposed to courts, there is no
reason why the remedy by way of certiorari cannot
be invoked to a body of persons set up under the
prerogative.
"Moreover the board, though set up under the
prerogative and not by statute, had in fact the
recognition of Parliament in debate and Parliament
provided the money to satisfy the board’s awards."
See also the judgment of Lord Diplock, LJ.
The ratio derived from Ex parte Lain’s decision can
best be stated in these words:
"Powers derived from the royal prerogative are
public law powers."
It therefore follows that a non-statutory inferior authority
like the Board albeit constituted under the prerogative
powers, is just as well amenable to the jurisdiction of the
Court as a statutory body. It is clear
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that certiorari will lie where a decision has de facto
effect upon the individual and it is not necessary to show
that the ’right’ in question is legally enforceable.
In Council of Civil Service Unions & Ors. v. Minister
for the Civil Service, [1984] 3 All E.R. 935 the House of
Lords reiterated broader standards of review of the exercise
of prerogative powers. The principles deducible are clearly
brought out in the headnote extracted below:
"(1) Powers exercised directly under the
prerogative are not by virtue of their prerogative
source automatically immune from judicial review.
If the subject matter of a prerogative power is
justiciable then the exercise of the power is open
to judicial review in the same way as a statutory
power. However (per Lord Roskill), prerogative
powers such as those relating to the making of
treaties, the defence of the realm, the
prerogative of mercy, the grant of honours, the
dissolution of Parliament and the appointment of
ministers are not justiciable or reviewable. (2)
Administrative action is subject to control by
judicial review under three heads: (i) illegality,
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where the decision-making authority has been
guilty of an error of law, e.g. by purporting to
exercise a power it does not possess; (ii)
irrationality, where the decision-making authority
has acted so unreasonably that no reasonable
authority would have made the decision; (iii)
procedural impropriety, where the decision-making
authority has failed in its duty to act fairly."
Lord Diplock in his speech found no reason why simply
because the decision-making power is derived from a common
law and not a statutory source, it should for that reason be
immune judicial review, and observed:
"Judicial review has I think developed to a stage
today when, without reiterating any analysis of
the steps by which the development has come about,
one can conveniently classify under three heads
the grounds on which administrative action is
subject to control by judicial review. The first
ground I would call ’illegality’, the second
’irrationality’ and the third ’procedural
impropriety’."
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We should also refer to the illuminating judgment of Lord
Roskill who found no logical reason to see why the fact that
the source of the power is the prerogative and not statute,
should today deprive the citizen of that right of challenge
to the manner of its exercise which he would possess were
the source of the power statutory. In either case, the act
in question is the act of the executive. The learned Judge
agreed with the conclusions reached by Lord Scarman and Lord
Diplock and observed: "To talk of that act as the act of the
sovereign savours of the archaism of past centuries." We may
with advantage quote the following passage from his
judgment;
"Dicey’s classic statement in Law of the
Constitution (10th edn., 1959) p. 424 that the
prerogative is ’the residue of discretionary or
arbitrary authority, which at any given time is
legally left in the hands of the Crown, has the
weight behind it not only of the author’s own
authority but also of the majority of this House
in Burmah Oil Co. (Burma Trading) Ltd. v. Lord
Advocate, [1964] 2 All ER 348 at 353, per Lord
Reid. But as Lord Reid himself pointed out, this
definition ’does not take us very far’. On the
other hand the attempt by Lord Denning, MR in
Laker Airways Ltd. v. Dept. of Trade, [1977] 2 All
ER 182 at 192, (obiter) since the other members of
the Court of Appeal did not take so broad a view)
to asert that the prerogative ’if ........
exercised improperly or mistakenly’ was reviewable
is, with great respect, far too wide. Lord Denning
MR sought to support his view by a quotation from
Blackstone’s Commentaries (1 B1 Com (15th edn)
252). But unfortunately and no doubt inadvertently
he omitted the opening words of the paragraph:
"In the exercise therefore of those
prerogatives, which the law has given him,
the King is irresistible and absolute,
according to the forms of the constitution.
And yet, if the consequence of that exertion
be manifestly to the grievance or dishonour
of the kingdom, the parliament will call his
advisers to a just and severe account."
In short the orthodox view was at that time
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that the remedy for abuse of the prerogative lay
in the political and not in the judicial field.
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But, fascinating as it is to explore this
mainstream of our legal history, to do so in
connection with the present appeal has an air of
reality. To speak today of the acts of the
sovereign as ’irresistible and absolute’ when
modern constitutional convention requires that all
such acts are done by the sovereign on the advice
of and will be carried out by the sovereign’s
ministers currently in power is surely to hamper
the continual development of our administrative
law by harking back to what Lord Atkin once
called, albeit in a different context, the
clanking of medieval chains of the ghosts of the
past."
The effect of all these decisions is admirably summed
up by Grahame Aldous and John Alder in their Applications
for Judicial Review, Law and Practice 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 Union v. Minister for the Civil
Service, this is doubtful. Lords Diplock, Scarman
and Roskill 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 the
prerogatives relating to the civil service 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."
Much of the above discussion is of little or academic
interest as
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the jurisdiction of the High Court to grant an appropriate
writ, direction or order under Art. 226 of the Constitution
is not subject to the archaic constraints on which
prerogative writs were issued in England. Most of the cases
in which the English courts had earlier enunciated their
limited power to pass on the legality of the exercise of the
prerogative were decided at a time when the Courts took a
generally rather circumscribed view of their ability to
review Ministerial statutory discretion. The decision of the
House of Lords in Padfield’s case marks the emergence of the
interventionist judicial attitude that has characterized
many recent judgments. In view of the recent decision of the
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House of Lords in Council of Civil Service Unions, it would
be premature to conclude that in no circumstances would the
Court be prepared to apply to the exercise by the Crown of
some non-statutory powers the same criterion for review as
would be applicable were the discretion conferred by
statute. In the ultimate analysis, the present trend of
judicial opinion in England on the question as to whether a
’prerogative’ power is reviewable or not depends on whether
its subject-matter is suitable for judicial control. All
that we need is to end this part of the judgment by
extracting the cautionary note administered by H.W.R. Wade
in his Administrative Law, 5th edn. at p. 352 in these
words:
"On the one hand, where Parliament confers power
upon some minister or other authority to be used
in discretion, it is obvious that the discretion
ought to be that of the designated authority and
not that of the court. Whether the discretion is
exercised prudently or imprudently, the
authority’s word is to be law and the remedy is to
be political only. On the other hand, Parliament
cannot be supposed to have intended that the power
should be open to serious abuse. It must have
assumed that the designated authority would act
properly and responsibly, with a view to doing
what was best in the public interest and most
consistent with the policy of the statute. It is
from this presumption that the courts take their
warrant to impose legal bounds on even the most
extensive discretion."
We find it rather difficult to sustain the judgment of
the High Court in some of the cases where it has interfered
with the location of Mandal Headquarters and quashed the
impugned notifications on the ground that the Government
acted in breach of the guidelines in that one place or the
other was more centrally located or that location at the
other place would promote general public convenience, or
that the
724
headquarters should be fixed at a particular place with a
view to develop the area surrounded by it. The location of
headquarters by the Government by the issue of the final
notification under sub-s. (5) of s. 3 of the Act was on a
consideration by the Cabinet Sub-Committee of the proposals
submitted by the Collectors concerned and the objections and
suggestions received from the local authorities like the
gram panchayats and the general public. Even assuming that
the Government while accepting the recommendations of the
Cabinet Sub Committee directed that the Mandal Headquarters
should be at place ’X’ rather than place ’Y’ as recommended
by the Collector concerned in a particular case, the High
Court would not have issued a writ in the nature of mandamus
to enforce the guidelines which were nothing more than
administrative instructions not having any statutory force,
which did not give rise to any legal right in favour of the
writ petitioners.
The result therefore is that Civil Appeals Nos. 1980,
1982, 1985 and 1987 of 1986 and all other appeals and
special leave petitions directed against the judgment of the
High Court where it has interfered with the location of the
Mandal Headquarters, must succeed and are allowed. The
petition filed by the appellants under Art. 226 of the
Constitution before the High Court are accordingly
dismissed. There shall be no order as to costs.
S.L.
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