J.R. Raghupathy,
Vs. State of A.P. & Ors [1988] INSC 191 (28 July 1988)
Sen,
A.P. (J) 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.
HEAD NOTE:
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 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 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.
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 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 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 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 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 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 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
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 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 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 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 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 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 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 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 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. 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
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 720 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, 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'." 721 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 that the remedy for
abuse of the prerogative lay in the political and not in the judicial field.
722
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 723 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
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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