ADMINISTRATIVE LAW PROJECT

SHUCHI SEJWAR B.A L.L.B (HONS) VITH SEMESTER

ROLL NO.63

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MALA FIDE EXERCISE OF DISCRETION

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ACKNOWLEDGEMENT

I have taken efforts in this project but it wouldn't have been possible without the support of many individuals. I would like to extend my sincere thanks to all of them. I am highly indebted to our respected teacher Ms. Nuzhat Praveen Khan for her guidance and constant supervision as well as for providing necessary information regarding the project and also for her support in completing the project. My thanks and appreciations also go to my friends in developing the project and people who have willingly helped me out with their abilities

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INDEXTOPIC PAGE NO.

INTRODUCTION …...............................................................................................................5

ADMINISTRATIVE DISCRETION: MEANING .................................................................6

DEFINITIONS OF ADMINISTRATIVE DISCRETION ..........................................................7

DISCRETION INEVITABLE.....................................................................................8

DISCRETIONARY POWER AND JUDICIAL REVIEW.........................................................9

JUDICIAL BEHAVIOUR AND ADMINISTRATIVE DISCRETION IN INDIA......................................................................................................................10

EXCESS OR ABUSE OF DISCRETION ................................................................................11

MALA FIDE EXERCISE OF DISCRETIONARY POWER...................................................13

DEFINITION OF MALA FIDE....................................................................................................13

TYPES OF MALA-FIDE............................................................................................................14

TEST......................................................................................................................................19

CONCLUSION...........................................................................................................24

BIBLIOGRAPHY............................................................................................................26

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ADMINISTRATIVE DISCRETION

INTRODUCTION

Administrative law is dominated by the term discretion. Administrative agencies make many kinds of decisions involving a wide variety of issues; the resolution of a number of these issues emerges through the exercise of discretion. The term discretion, then, often defines the function of the agency and describes the role of the reviewing court. It is therefore essential that courts understand administrative discretion both to evaluate the agency's performance and to understand the courts’ own function.

Discretion in layman’s language means choosing from amongst the various available alternatives without reference to any predetermined criterion, no matter how fanciful that choice may be. A person writing his will has no such discretion to dispose of his property in any manner, no matter how arbitrary or fanciful it may be.

‘Discretion’ means the power to decide or act according to one’s judgement. Even the courts have discretion in various matters such as sentencing of the criminal, custody of the child, deciding reasonable rent and s on and so forth. But the term ‘discretion’ when qualified by the word administrative has somewhat different overtones. The administrative authorities have to exercise discretion in various ways. For example, they have to decide whether activities of a person are likely to be prejudicial to the security of the state or public order etc. so as to justify his preventive detention, or whether a dispute should be referred for adjudication to the industrial tribunal under section 10 (1) of the Industrial disputes act or whether the prosecution against any person be withdrawn under section 321 of the Code of Criminal Procedure, or whether an application for increase in the salary of the relatives of a manager be approved under sections 637 A and 637AA of the Companies Act, 1956.

Some of the discretionary powers are required to be exercised quasi-judicially.

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ADMINISTRATIVE DISCRETION: MEANING

The ‘administrative discretion’ means power of being administratively discreet. It implies authority to do an act, or to decide a matter of discretion. The administrative authority vested with discretion is suffered with an option, and thus is free to act in its discretion. It cannot be legally compelled to act; or if it decides to act , it cannot be restrained from doing so , if given a choice to intervene officially in the situation ; or if prudence dictates to let the things take their course . Legally he cannot be compelled to pass an order, if he is under no compelling duty to do so. He is free to act, if he deems necessary, or if he deems to be satisfied of the immediacy of the official action on his part. For what he does he is neither obliged to give reasons, nor can he be required to answer for it in a law court, his responsibility lies only to his superiors and the government.

Administrative discretion means choosing from amongst the various available alternatives but with reference to the rules of reason and justice and not according to personal whims. Such exercise is not arbitrary, vague and fanciful, but legal and regular1. For Coke once said that discretion is a science or understanding to discern between falsity and truth, between right and wrong, and not to do according to will and private affection.

In the leading case of Susannah Sharp V. Wakefield 2 ,Lord Hals bury stated ; “Discretion means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice , not according to private opinion , according to the law and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. And it must be exercise within the limit, to which an honest man competent to discharge of his office ought to confine himself.”

ln Rooke’s case COKE J. said, “notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound into the rule of reason and law. For discretion is a science or understanding to discern between falsity and 1 Sharp v Wakefield , 1891 AC1732 1891 AC 173 (179)

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truth, between wrong and right, between shadows and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections. Discretion is to know through law what is just.”

DEFINITIONS OF ADMINISTRATIVE DISCRETION

The definition of Administrative Discretion is given by many of the thinkers but there are few notable definitions:

The definition of ‘administrative discretion’ given by Professor Freund as follows:“When we speak of administrative discretion, we mean that a determination may be reached, in part at least, upon the basis of consideration not entirely susceptible of proof or disproof…. It may be practically convenient to say that discretion includes the case in which the ascertainment of fact is legitimately left to administrative determination.”

Coke proclaims “Discretion” as “it is a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their will and private affection”

Thus it can be said that decision taken by the administrative authorities are not only based on the evidence but in accordance to the policy and also in accordance to the discretionary power conferred on the authority.

DISCRETION INEVITABLE

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No modern government, however, can function without the grant of discretionary power to administrative authorities. Whether or not an action is required depends upon the happening of certain events or the arising of certain situations that cannot be anticipated. They have to be determined from time to time and the administrator has to respond by using the power (discretion) given to her. What is to be done if a riot breaks out? What is to be done if an essential commodity becomes scarce and suddenly goes out of market? Some actions depend upon an assessment of the situation by an administrative authority. Expressions such as 'if he is of the opinion', or 'if he is satisfied', or if he has reasonable grounds to believe' vest power in the authority to act on forming an opinion or being satisfied that the action is necessary. All such actions are discretionary. Where the State has to perform the regulatory function of ensuring that activities such as business, trade, industry or social service are conducted in public interest, the ambit of its discretionary power is bound to be large

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DISCRETIONARY POWER AND JUDICIAL REVIEW

Discretionary powers conferred on the administration are of different type. They may range from simple ministerial function like maintenance of birth and death register to powers which seriously affect the rights of an individual, e.g. acquisition of property, regulation of trade, industry or business, investigation, seizer, confiscation and destruction of property, detention of a person on subjective satisfaction of an executive authority and the like.

As a general rule, it is accepted that courts have no power to interfere with the actions taken by administrative authorities in exercise of discretionary powers.

In Small v. Moss3, the Supreme Court of the United States observed:“Into that field (of administrative discretion) the courts may not enter.”

In the leading case of Roberts v. Hopwood4, the Court stated; “There are many matters, which the courts are indisposed to question. Though they are the ultimate judges of what is lawful and what is unlawful to borough councils, they often accept the decisions of the local authority simply because they are themselves ill equipped to weigh the merits of one solution of a practical question as against another.”

In India also, the same principle is accepted and in a number of cases, the Supreme Court has held that courts have no power to interfere with the orders passed by the administrative authorities in exercise of discretionary powers.5

This does not, however, mean that there is no control over the discretion of the administration. As indicated above, the administration possesses vast discretionary powers and if complete and absolute freedom is given to it, it will lead to arbitrary exercise of power. The wider the discretion the greater is the possibility of its abuse. As it is rightly said, ‘every power tends to corrupt and absolute power tends to corrupt absolutely’. All powers have legal limits.

3 (1938) 279 NY 2884 1925 AC 578 (606-07) :94 LJ KB 542:5 A.K.Gopalan V. State of Madras AIR 1950 SC 27..

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The wider the power, the greater the need for the restraint in its exercise. There must be control over discretionary powers of the administration so that there will be a ‘Government of laws and not of men’

JUDICIAL BEHAVIOUR AND ADMINISTRATIVE DISCRETION IN INDIA

Though courts in India have developed a few effective parameters for the proper exercise of discretion, the conspectus of judicial behaviour still remains halting , variegated and residual , and lacks the activism of the American courts Judicial control mechanism of administration discretion is exercised in two stages :

1. Control at the stage of delegation of discretion2. Control at the stage of the exercise of discretion

I. Control at the stage of delegation of discretion

The court exercises control over delegation of discretionary powers to the administration by adjudicating upon the constitutionality of the law under which such powers are delegated with reference to fundamental rights enunciated in part III of the constitution. Therefore, if the law confers vague and wide discretionary power on any administrative authority, it may be declared ultra virus Article 14, Article 19 and other provisions of the constitution.

II. Control at the stage of the exercise of discretion

In India, unlike the USA, there is no Administrative Procedure Act providing for judicial review on the exercise of administrative discretion. Therefore, the power of judicial review arises from the constitutional configuration of courts. Courts in India have always held the view that judge-proof discretion is a

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negation of the rule of law. Therefore, they have developed various formulations to control the exercise of administrative discretion. These formulations may be conveniently grouped into two broad generalizations:

(a) That the authority is deemed not to have exercised its discretion at all or failure to exercise discretion–“non application of mind”;

(b) That the authority has not exercised its discretion properly or excess or “abuse of discretion”.

EXCESS OR ABUSE OF DISCRETION

When discretionary power is conferred on the administrative authority, it must be exercised according to law. But as Markose 6 says, “when the mode of exercising a valid power is improper or unreasonable, there is an abuse of the power.” Thus, “if a new and sharp axe presented by Father Washington (the legislature) to young George (the statutory authority) to cut timber from the father’s compound is tried on the father’s favourite apple tree” an abuse of power is clearly committed.

There are several forms of abuse of discretion, e.g . the authority may exercise its power for a purpose different from the one for which the power was conferred or for an improper purpose or acts in bad faith , takes into account irrelevant considerations and so on . These various forms of abuse of discretion may even overlap. For example the red- haired teacher, dismissed because she had red hair. In one sense, it is unreasonable. In another sense, it is taking into account irrelevant or extraneous considerations. It is improper exercise of power and might be described as being done in bad faith or colourable exercise of power. In fact, all these things ‘overlap to a very great extent’ and ‘run into one another’. 7

The authority upon whom discretionary power has been conferred cannot act at the dictates of higher and other authority. When the discretion is conferred upon the authority it is that authority that has to exercise discretion by its own mind and after taking into consideration of all relevant factors keeping in view the object of conferring such discretion. It should not be influenced by 6 Judicial Control of Administrative Action in India (1956) at p.417 7 Associated Provincial Picture Houses Ltd. V. Wednesbury Corpn . ( 1948) 1 KB 223

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improper motive or improper purpose. Another aspect of the matter is that the decision makers must not allow their personal interest and beliefs to influence them in the exercise of their statutory powers, but must exercise those powers impartially and should not pre- judge the case. The decision makers should not make up their mind so strongly in advance that they cannot be influenced to decide another way at the hearing. They should not hold predetermined views of the issues that would be applied regardless of the merit of the case.

In Sitaram Sugar Co Ltd. V. Union of India8, the Apex Court stated; “A repository of power acts ultra virus either when he acts in excess of his power t in the narrow sense or he abuses his power by acting in excess of his power in the narrow sense or he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness .. the true position, therefore is that any act of the repository or power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the constitution or the governing act or the general principles of the law of the land or it is arbitrary or unreasonable that no fair minded authority could ever have it made it”.

Excess or abuse of discretion may be inferred from the following circumstances:

1. Acting without jurisdiction2. Exceeding jurisdiction3. Arbitrary actions4. Irrelevant considerations5. Leaving out relevant considerations6. Mixed considerations7. Mala fide8. Collateral purpose; Improper object 9. Colourable exercise of power;10.Colourable legislation: Fraud on Constitution11.Non-observance of natural justice12.Unreasonableness

8 (1990) 3 SCC 223 (253) ;AIR 1990 SC 1277

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MALA FIDE EXERCISE OF DISCRETIONARY POWER.

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. Where actual purpose is different from that which is authorised by law, and the discretionary power is used ostensibly from the authorised but in reality for the unauthorised purpose, the power is said to be exercised mala fide. This is also called abuse of power. This principle was developed by the Conseil d’ Etat in France and is known as detournement de peuvoir.9 A typical example in French law is the case where a prefect used his powers to requisition a gas company in order to realise by an indirect means his own policy in favour of nationalisation of public utilities.

DEFINITION OF MALA FIDE:Mala fides or bad faith means dishonest intention or corrupt motive. A power may exercised maliciously, out of personal animosity, ill –will or vengeance or fraudulently and with intent to achieve an object foreign to the statue.10

Even though it may be difficult to determine whether or not the authority has exceeded its powers in a particular case because of broad terms in which statue in question may have conferred power on it, the administrative action may, nevertheless, be declared bad if the motivation behind the action is not honest. At times, the courts use the phrase “mala fides” in the broad sense of any improper exercise or abuse of power.

9 Schwartz French Administrative Law , p. 216 .10 De Smith , Judicial Review of Administrative Action (1995) at pp. 344-46 ;Jaichand V. State of W.B. AIR 1967 SC 483:

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In Jai Chand V. State of West Bengal 11, the Supreme Court observed: Mala fide exercise of power does not necessarily imply any moral turpitude as a matter of law. It only means that the statutory power is exercised for purposes foreign to those for which it is in law intended.12

In this sense, mala fides is equated with any ultra virus exercise of administrative power. However, the term “mala fides” has not been used in the broader sense but in the narrower sense of exercise of power with dishonest intent or corrupt motive. Mala fide in its narrow sense would include those cases where the motive behind an administrative action is personal animosity itself or its relatives or friends. Mala fide exercise of the discretionary power is bad as it includes abuse of power.

TYPES OF MALA-FIDE:Mala fides or Malice may be “express malice” or “malice in fact” and “legal malice” or “malice n law”

a) Malice in fact When an administrative action is taken out of personal animosity, ill – will, vengeance or dishonest intention, there is “malice in fact” and action necessarily requires be striking down and quashing.

In Pratap Singh V. State of Punjab13, the petitioner was a civil surgeon and h had taken leave preparatory to retirement. Initially the leave was granted, but subsequently it was revoked. He was placed under suspension, a departmental inquiry was instituted against him and ultimately, he was removed from the service. The petitioner alleged that the disciplinary proceedings had been instituted against him at the instance of the then Chief Minister to wreak personal vengeance on him as he has not yielded to the illegal demands of the former. The Supreme Court accepted the contention, held the exercise of power to be mala fide and quashed the order.

11 AIR 1967 SC 483 ,485 12 Daktar Mudi V. West Bengal , AIR , 1974 SC 2086 ; Khudiram Das V. West Bengal AIR 1975 SC 550.13 AIR 1964 SC 72

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In C.S. Rowjee V. State of A.P 14, the State Road Transport Corporation had framed a scheme for nationalisation of certain transport routes . This was done as per the directions of the then Chief Minister. It was alleged by the petitioner that the particulars routes were selected to take vengeance against the private transport operators of that area as they were his political opponents. The Supreme Court upheld the contention and quashed the order.

In E.P.Royappa V. State of Tamil Nadu, a member of Indian Administrative Service was appointed as the Chief Secretary to Government. The government shifted him to a newly created temporary post of officer on special duty. The petitioner challenged the action was mala fide and malicious on the part of the Chief Minister, Governor and Cabinet Ministers. Observing that the allegations of mala fide levelled by the petitioner against the Chief Minster were “baseless”, the Supreme Court dismissed the petition.

In Shivajirao Patil V. Mahesh Madhav15, in a writ petition , it was alleged that altering and tampering with the mark-sheet had been done in favour of A, daughter of the then Chief Minister of Maharashtra at M.D. Examination at the behest of the Chief Minister. Though there was no direct evidence about the fact, from the various circumstances, the court held that such alteration had been made by the person conducting the examination at the behest of then Chief Minster. Mukharji J. Rightly observed: “This court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment.

In State of Haryana V. Bhajan Lal16, a complaint regarding corruption was filed against the former Chief Minster. The High Court under Article 226 of the Constitution quashed the proceedings inter alia observing that they were initiated due to political vendetta and were tainted with personal mala fides The Supreme Court quashed the order of the High Court.

14 AIR 1964 SC 96215 (1987) 1 SCC 22716 1992 Supp (1) SCC 335:

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In Shearer V. Shields 17, the ‘malice in fact’ means an actual malicious intention on the part of the person who has done the wrongful act , and it may be , in proceedings based on wrongs independent of contract , a very material ingredient in the question of whether a valid cause of action can be stated. In other words, ‘malice in fact’ means an act committed due to personal spite, corrupt motive or malicious intention.

In State of Punjab V. Gurdial Singh18, the land acquisition proceedings for acquiring the land of the petitioners for building a mandi were challenged on the grounds that they were mala fide. It was alleged that the proceedings were initiated as a result of the influence wielded by a minister who was related to the owner of the land which was sought to be acquired initially and then dropped. In absence of the affidavit by the minister denying the allegations, the court held the proceedings mala fide.

Krishan Iyer , J. Observed , “Not that this land is needed for the mandi , in the judgement of government , but that the mandi need is hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engine”19

b) Malice in law

When an action is taken or power is exercised without just or reasonable cause or for purpose foreign to the statue, the exercise of power would be bad and the action ultra virus.

‘Malice in law’ is different from ‘malice n fact’ and may be assumed from the doing of a wrongful act intentionally without just cause or excuse, or for want of case. Thus , if a local authority were to use its power to erect urinals ‘ in front of any gentleman’s house , it would be impossible to hold it to be bona fide exercise of power.

17 (1914) AC 80818 (1980) 2 SCC 471 19 Id. At p.475 (SCC)

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The Supreme Court defined malice in law in the following words: “Malice in its legal sense means malice such as may be assumed from doing of a wrongful act intentionally but without just cause or excuse , or for want of reasonable or probable care.”20

In Municipal Council of Sydney V. Campbell 21 , under the relevant statue the Council was empowered to acquire land for “ carrying out improvement 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. No plan for improving or remodelling was proposed or considered by the Council.

It was held that the powers were exercised with ulterior object and hence it was ultra virus.

In Express Newspapers’ (P) Ltd. V. Union of India 22, a notice of re-entry upon forfeiture of lease granted by the Central Government and of threatened demolition of the Express Buildings were held to mala fide and politically motivated by the party in power against the Express Group of Newspapers in general and Ram Nath Goenka , Chairman of the Board of Directors, in particular.

In State of Punjab V. Gurdial Singh23, land of the petitioner was acquired under the Land Acquisition Act for construction of market (mandi) . It was alleged that the action was mala-fide and was a result of influence wielded by the Minister who was interested in getting other land released. The Minister did not deny the allegations. The Supreme Court quashed the proceedings holding them to be in mala fide.

20 Venkataraman V. Union of India (1979) 2 SCC 49121 (1925) AC 22 (1986) 1 SCC 133 : 23 (1980) 2 SCC 471

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In State of Haryana V. Bhajan Lal 24, however, an action of launching prosecution against the Chief Minister under the provisions of the Prevention of Corruption Act, 1947 was not held to be mala fide and the proceedings were not quashed.

In T. N. Seshan V. Union of India 25, the President of India, by an Ordinance made the Election Commission a multi- member Commission . The said action was challenged by the petitioner as mala fide. Holding the Ordinance constitutional, the Supreme Court observed that the action was not vitiated by malice in law.

In Ajit Kumar Nag V. Indian Oil Corp. Ltd. 26, a Senior Officer of the Corporation assaulted the Chief Minister Officer of a hospital and caused several injuries . He was, therefore, dismissed from service in accordance with Service Rules without holding injury . The action was challenged inter alia on the ground of mala fide exercise of power. Negativing the contention, the Supreme Court noted that the grave and serious situation was created by the appellant himself and he was rightly dismissed.

In Barium Chemicals Ltd. V. Company Law Board27, it has been rightly observed that “though an order passed in the exercise of powers under a statue cannot be challenged on the ground of propriety or sufficiency , it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose.”

In the words of de Smith, “A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred.”28

Thus , if a local authority were to use its power to erect urinals ‘ in front of any gentleman’s house , it would be impossible to hold it to be bona fide exercise of power given by the statue.29Similarly, if a liquor licence is cancelled for political

24 1992 SCC 335 25 (1995) 4 SCC 61126 (2005) 7 SCC 764 27 AIR 1967 SC 29528 Judicial Review of Administrative Action (1980) , p. 33529 Biddulph V. Vesty of St. George Honover Square , (1863) 33 LJ. Ch 411

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reasons , the minister who brought this about is guilty of a ‘a departure from good faith’. 30

In Collector , Allahabad V. Raja Ram 31,a plot of land was sought to be acquired in 1975 for the extension of Hindi Sangrahalaya of the Hindi Sahitya Sammelan Prayag. It was pointed out that the piece f land allotted for the above purpose in 1953 was lying vacant and no Sangrahalaya was established. The land in question was purchased by the respondent for the construction of the theatre which was objected by the Sammelan . Since the respondent got the certificates of approval for construction of the theatre the acquisition proceedings were initiated at the instance of the Sammellan. The court held that the need for the land of Sangrahalaya was a “ figment of imagination conjured up to provide an ostensible purpose for acquisition.” Since a land already allotted remained unused by the Sammellan ., the court was not convinced about the need of the land by the Sammellan . The purpose was actuated by a desire not to have cinema theatre in the vicinity of Sammellan . It was, therefore, held that the Collector did not exercise the power for the purpose for which it was given and the order suffered from the voice of mala fides.

TEST:

Two important factors which throw considerable light in determining whether a decision is mala fide or motivated by improper considerations;

1. First relates t the manner or method of reaching the decision2. Second to the circumstances in which the decision is taken and the

considerations which have entered into in reaching that decision.32

It is difficult to establish mala fide in a straight cut manner. In the appropriate cases, the court may draw an inference of mala fide action from pleadings and antecedent circumstances. Such inference must be based on foundations of facts , pleaded and proved. An inference of mala fide cannot be drawn on insinuation and vague allegations.33

30 Ron Carelli V. Duplesis (1959) 16 DLR 2nd 689.31 AIR 1985 SC 170932 State of M.P. V. Nandlal Jaiswal (1986) 4 SCC 566 33 Rajendra Roy V. Union of India (1993) 1 SCC 148

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NATURE OF ALLEGATIONS

Since the allegations of mala fides are of serious nature , sufficient particulars and cogent materials making out a prima facie case must be given in the petition .34 The petitioner who challenges any order or action of the authority must establish the charge of bad faith, bias or abuse of power by the respondent. If sufficient averments have not been made in the petition the court would be justified in refusing to carry out investigations into those allegations. Vague and casual allegations suggesting that a particular action was taken with an ulterior motive cannot be accepted without proper pleadings and adequate proof.

A bald assertion that an order was passed with a view to favouring some persons without disclosing even their names and identities cannot be accepted and allegations of mala fides cannot be said to be established.35

BURDEN OF PROOF

The burden of proving mala fide is on the person making the allegations, and the burden is ‘very heavy’.36 Neither express nor implied malice can be inferred or assumed.37 It is for the person seeking to invalidate an order to establish the charge of bad faith. The reason is simple and obvious. There is presumption in favour of the administration that it always exercises its power bona fide and in good faith. It is to be remembered that the allegations of mala fide are often more easily made than made out, and the very seriousness of such allegations demands proof of a high order of credibility . It is the last refuge of a losing litigant.38

In Pratap Singh V. State of Bihar 39, it is for the person seeking to invalidate an order to establish the charge of bad faith . It has to be remembered that such a charge may be easily made or without a sense of responsibility and that is why

34 Keshab Roy V. State of West Bengal (1973) 3 SCC 216 35 Munneb-Ul-Rehman V. Govt. of J&K (1984) 36 E.P.Royappa V. State of T.N. (1974) 4 SCC 3 (41) 37 State of Maharashtra V. Budhikota (1993) 3 SC 71(78) 38 Ghulam Mustafa V. State of Maharashtra (1976) 1 SCC 800 (802)39 AIR 1964 SC 72 (82)

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it is necessary for the Courts to examine it with care and attention . The reason is simple and obvious. The charge of mala fides against public bodies and authorities is more easily made than made out . 40

However , when definite allegations have been made against the respondent and the necessary and sufficient particulars for those allegations have been furnished by the petitioner in the petition , it is obligatory on the part of the respondent to deal with them in detail in his reply. In the absence of a denial affidavit by the person against whom such allegations are made , the court would be constrained to accept allegations so remaining unrebutted and unanswered on the test of probability .

PARTY RESPONDENT

Where personal mala fide or ‘malice in fact’ is imputed against any person , he should be impleaded eo nomine as party respondent and should be afforded an opportunity to meet with allegations of mala fide. In his absence, the court will not enquire into the allegations levelled by the petitioner. The reason is very simple. Principles of natural justice require that no person should be condemned unheard. Now if allegations have been made against a person who is not made a party to the proceedings and the court proceeds to consider them, natural justice is violated.41 It is, however, necessary to make allegations against a named official. 42

COUNTER AFFIDAVIT

When definite allegations have been made and necessary and sufficient particulars in support of such allegations have been furnished by the petitioner in the petition , it is obligatory on the part of the respondent to deal with them by filing a counter -affidavit. In the absence of a denial affidavit by the person

40 Kedar Nath V. State of Punjab , 1978 4 SCC 41 State of Bihar V. P.P.Sharma 1992 SCC 22242 State of Punjab V. Ramji Lal (1970) 3 SCC 602

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against whom such allegations are made, the court may accept those allegations as correct on the test of probability.43

It is however, not necessary that in each and every case when allegations have been made that a counter refuting such allegations must be filed. The petitioner has to prima facie satisfy the court that there is substance in the allegations. Vague, wild and casual allegations are not enough.

Thus, in Hem Lall V. State of Sikkim44, an advocate was detained under the National Security Act, 1980 . He alleged that the Chief Minister wanted him to join politics. But as he refused to do so, he was detained. No material whatsoever was placed on record to substantiate the allegations. The Supreme Court held that the counter affidavit of the Chief Minister was not necessary.

SUMMARY DISMISSAL

When serious allegations of mala fides have been made by the petitioner in the petition , the court may not dismiss the petition in limine without issuing notice to the respondent 45. No doubt the court would be justified in refusing to carry out investigation by making a roving inquiry if sufficient particulars making out a prima facie case are not included in the petition. But the court must consider the totality of the circumstances and not each allegation individually and independently for deciding whether the impugned action is mala fide46 .

In D.D.Suri V. A.K. Barren 47, the Supreme Court rightly observed :

“we are wholly unable to understand how in the presence of all allegations which had made in the petition including those of mala fide by a senior member of the Indian Administrative Service against other Senior officers and

43 R.P.Kapur V. Pratap Singh Kairon AIR 196144 (1987) 2 SCC 9 45 British India Corpn. V. Industrial Tribunal AIR 1957 46 State of Haryana V. Rajinder Sareen (1972) 1 SCC 267 47 (1970) 3 SCC 313

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the State government the High Court justified in dismissing the petition in limine by just writing the word ‘dismissed’. The High Court did not even call for affidavits in reply to the allegations contained in the petition .”

POWER AND DUTY OF COURTS

Where allegations of mala fides (factual or legal) have been levelled against an authority or an officer, who has passed an order or taken an action, the court must consider those allegations, materials placed on record in support of such Legations and the order or action impugned.

Every action of a public authority should be informed by reason and it must re bona fide. The power to act in discretion is not a power to act ad arbitrarium. Where the court is satisfied that the authority has acted arbitrarily, it is not only the power but the duty of the court to interfere with the action and grant relief to the aggrieved party.48

While dealing with allegations against Government, constitutional functionaries or high-ranking officials, a court must start with presumption of mala fide exercise of power. But if it is convinced that there is misuse or abuse of power or administration has acted ‘with an evil eye and an uneven hand', it should not hesitate in dealing with a situation ‘with a heavy hand.49

LEGISLATIVE POWER AND MALA FIDES

It is well—established that an executive action can be challenged on the ground of mala fide exercise of power. A question may, however, arise: whether pure legislative or quasi-legislative act can be challenged on such ground? The decisions of the Supreme Court are not uniform on that point. In some cases, it was held that legislative action can be impugned on the ground

48 Express Newspapers (P) Ltd. V. Union of India (1986) 1 SCC 13349 Ibid , Shivajirao Patil V. Mahesh Madhav (1987) 1 SCC 227.

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of malice in law, whereas in other cases, a contrary view has been taken. It is submitted that the former view is correct and is in consonance with the doctrine of judicial review which is the basic structure of the constitution50.

CONCLUSION

The plea of mala fides is raised often but it is only rarely that it can be substantiated to the satisfaction of the court. Merely raising a doubt is not enough, there should be some specific, direct and precise to sustain the plea of mala fides. The burden of proving mala fides is on the individual making the allegations as the order is regular on its face and there is a presumption in favour of the administration that it exercises its power in good faith and for public benefit . The petitioner should produce sufficient material to convince the court of the mala fides of the government. The burden on the individual is not easy to discharge as it requires going into the motives or the state of mind of an authority , and it is hardly possible for an individual to know the same and it is all the more difficult to establish it before the court.

The burden of proving mala fide is very heavy on the person who alleges it. The very seriousness of allegation of mala fides demands proof of a high degree of creditability. The motive of an authority can , however , be inferred from the course of events , and other material which the individual may lay his hands upon.

However, the course of events , public utterances of the authority , statements in the pleadings or affidavits filed by the authority , or failure to file the affidavits denying the allegation etc may lead to the establishment of the charges of mala fides. Mala fides may also be inferred from the authority ignoring apparent facts either deliberately or sheer avoidance.

It is not necessary for an individual to prove what particular official of government acted mala fide – there is no such burden on the individual as facts lies within the knowledge of the government.

50 V.G.Ramachandran, Law of Writs (2006) Vol I at pp 790-97.

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The Supreme Court in E.P. Royappa v. Tamil Nadu, brought out difficulties inherent in proving mala fides. The factors which are important in proof of mala fides:

(i) Direct evidence (e.g. documents, tape recordings etc.),

(ii) Course of events,

(iii) Public utterance of the authority,

(iv) Deliberate ignoring of facts by the authority and

(v) Failure to file affidavits denying the allegations of mala fides.

However, if the allegations are of wild nature, there is no need of controverting allegations. Mala fides may also be inferred from the authority ignoring apparent facts either deliberately or sheer avoidance.

Because of the difficulty of proving mala fides, only a few cases have occurred so far in which administrative orders may have been quashed on this ground.

BIBLIOGRAPHY

1. Administrative law - I.P. Massey (7th Edition)

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2. Lectures on Administrative Law – C.K.Takwani (4th Edition)3. Principles of Administrative Law – M.P.Jain & S.N.Jain (4th Edition )4. Administrative Law - Takkar (6th Edition)5. Administrative Law - S.P.Sathe 6. Administrative Law - D.D .Basu (2nd Edition )7. Lectures on Administrative Law- Dr.U.P.D.Kesari (8th Edition )

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