PROJECT ON

ON

ADMINISTRATIVE DISCRETION

Submitted to

Mrs. Deepa Manickam

(Associate Professor in Administrative Law)

Submitted by

P.Prashanna Guruparan

III year BA0150032

 ACKNOWNLEDGMENT

At the outset, I take this opportunity to thank my Professor Mrs. Deepa

Manickam from the bottom of my heart who has been of immense help during
moments of anxiety and torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Kamala

Shankar and the administrative staff of TNNLS who held the project in high
esteem by providing reliable information in the form of library infrastructure
and database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing

their precious time is unforgettable and highly solicited. Their valuable advice
and timely supervision paved the way for the successful completion of this
project.

Finally, I thank the Almighty who gave me the courage and stamina to
confront all hurdles during the making of this project. Words aren’t sufficient
to acknowledge the tremendous contributions of various people involved in this
project, as I know ‘Words are Poor Comforters’. I once again wholeheartedly
and earnestly thank all the people who were involved directly or indirectly
during this project making which helped me to come out with flying colours.
 DECLARATION

I, P.PRASHANNA GURUPARAN do hereby declare that the project on

“Administrative Discretion” submitted to Tamil Nadu National law school in

partial fulfillment of requirement of award of degree in undergraduate in law is

a record of original work done by me under the supervision and guidance of

Professor Mrs. Deepa Manickam, department of Administrative Law, Tamil

Nadu National law school and has not formed basis for award of any degree or

diploma or fellowship or any other title to any other candidate of any university

P.Prashanna Guruparan

B.A., LL.B (Hons)

Research Objective:

The main objective of this project is to throw light on the concept of administrative discretion

and elucidate the circumstances where it will come into play. If such administrative

discretions are available to officials their limitations to use their powers are also mentioned.

Aforementioned absolute administrative discretion may lead to disorder. Suppose if a

discretionary act is found to be arbitrary and unnecessary the remedies will be studied. One

particular department is taken as an example and cases where administrative discretion are

applied are discussed and also cases where there was of abuse of discretionary power will be

discussed.

Research Methodology:

The research methodology used in this project is analytical and descriptive. Data has

been collected from various books, materials, papers and web sources. This project has been

done after a thorough research based upon intrinsic and extrinsic aspects of the project.

Research Question:

1. What is administrative discretion and what are the discretionary given to officials in

the administrative wing?

2. When will an official will avail the power of discretion and what are the limitations

while executing it?

3. If an act of discretion is arbitrary what are the remedies available to people?

 4. Can judiciary control a discretionary act of the administrative wing?

Hypothesis:

Administrative Discretion nearly leads to devastation of the administration and is merely an

abstract topic.

INDEX

WHAT IS ADMINISTRATIVE DISCRETION

LIMITATIONS ON EXERCISE OF ADMINISTRATIVE DISCRETION

THE REMEDIES OF ADMINISTRATIVE DISCRETION

JUDICIAL CONTROL ON ADMINISTRATIVE DISCRETION

 STUDY ON ADMINISTRATIVE DISCRETION.

CHAPTER I
WHAT IS ADMINISTRATIVE DISCRETION

Layman defines discretion in his own meaning. He says discretion means the act of

choosing an alternative from amongst the various available alternatives without referring to

any predetermined criterion1. But the term ‘Discretion’ when used along with the word

‘administrative’ has a different sense. ‘Discretion’ also implies looking over among the

different accessible choices however with reference to the guidelines of reason and equity

and not as indicated by individual impulses2. Such exercise isn't to be self-assertive,

ambiguous or vague, however lawful and normal.

Administrative Discretion is the flexible and independent exercise of power by the

officials in the administrative wing with non-adherence of rules and regulations. In an

intensive form of government it is slightly impossible for the officials to function without the

use of administrative discretion. But absolute administrative discretion may lead to

devastation.

1
https://books.google.co.in/books?id=MQ4tHgFilYgC&pg=PT28&lpg=PT28&dq=discretion+according+to+lay
man&source=bl&ots=LQZeVh9lSa&sig=voeV9YCndL1sau1m20DvrTZ3y6E&hl=en&sa=X&ved=0ahUKEwii
-
c2f0ebWAhWLM48KHXIDDAAQ6AEINDAC#v=onepage&q=discretion%20according%20to%20layman&f=
false
2
http://legal-dictionary.thefreedictionary.com/Executive+Discretion
 According to a Taiwan scholar the concept of administrative discretion stemmed from

German scholars3. In the civil law system which represented by Germany, on the definition of

administrative discretion, the civil law been researched it for a long time. It can be divided

into two stages by the World War II4:

The first stage (before World War II) was represented by the German scholar Meyer

and the Austrian scholar Te Cina. Meyer’s study which set out from the relationship between

the discretion and law will be divided into pure administrative discretion and the law

applicable to administrative discretion. Pure administrative discretion is the executive to the

state property management and public law on the exercise of the right to form and so on; and

the law applicable discretion refers to the application of Article Flexibility Act. The executive

have much more consideration and rights to specific cases.

The second phase (after World War II) was represented by German Maurer, flat

Turner et al as. Maurer made a more detailed distinction between administrative discretion

and uncertain legal concepts on the basis of Te Cina5.

Wang Min Chan is the first person who defined the concept of administrative

discretion. In his book "Summary of Administrative Law" defines administrative discretion

as: "where the law has no detail provisions, the administrative agencies handle the specific

event, and appropriate methods can be taken pursuant to the freedom of judgement6. The

administrative measures are discretionary.

The book pointed out three important points which can be related even to the present

scenario,

3
https://law.yale.edu/system/files/area/conference/compadmin/compadmin16_huang_judicial.
4
Rabin, J. (2003, "Administrative Discretion". Encyclopedia of public administration and public policy. New
York: Dekker.
5
Wenqing Chen, " Study on internal control of administrative discretion", CASS Journal of Political Science,
Vol. 38, No. 5, 2011, pp. 75-79.
6
https://wenku.baidu.com/view/2a96eca0360cba1aa911da58.html
  Administrative Discretion is a power which is to make the administrative

agencies convenient.

 The premise of the using of this power is absence of norms and rules curbing

it.

 The power of the administrative discretion must be restricted by the

administrative agency itself.

The problem of administrative discretion is complex. It is true that in any intensive

form of government, the government cannot function without the exercise of some discretion

by the officials. But it is equally true that absolute discretion is a ruthless master.

Discretionary power by itself is not pure evil but gives much room for misuse7. Therefore,

remedy lies in tightening the procedure and not in abolishing the power itself.

There is no set pattern of conferring discretion on an administrative officer. Modern

drafting technique uses the words ‘adequate’, ‘advisable’, ‘appropriate’, ‘beneficial’,

‘reputable’, ‘safe’, ‘sufficient’, ‘wholesome’, ‘deem fit’, ‘prejudicial to safety and security’,

‘satisfaction’, belief’, ‘efficient’, ‘public purpose’, etc. or their opposites8. It is true that with

the exercise of discretion on a case-to-case basis, these vague generalizations are reduced into

more specific moulds, yet the margin of oscillation is never eliminated. Therefore, the need

for judicial correction of unreasonable exercise of administrative discretion cannot be

overemphasized.

7
Vaishnav, S & Marwaha. K, Judiciary: A Ladder between Inevitable Administrative Discretion and Good
Governance. International Journal Of Multidisciplinary Approach & Studies
8
http://thelawdictionary.org/discretion/
 CHAPTER II:

LIMITATIONS ON EXERCISE OF ADMINISTRATIVE DISCRETION

Limitations may arise when the given discretionary power is been misused or not

properly discharged i.e. failure to exercise discretion.

Now days, the administrative authorities are conferred wide discretionary powers.

When the mode of exercising a valid power is improper or unreasonable there is an abuse of

power. The discretionary power is required to be exercised according to law. In the

following conditions the abuse of the discretionary power is inferred: -

i) Use for improper purpose: - The discretionary power is required to be used for the

purpose for which it has been given. If it is given for one purpose and used for another

purpose. It will amount to abuse of power.

ii) Malafide or Bad faith: - If the discretionary power is exercised by the authority

with bad faith or dishonest intention, the action is quashed by the court. Malafide exercise of

discretionary power is always bad and taken as abuse of discretion. Malafide (bad faith) may

be taken to mean dishonest intention or corrupt motive. In relation to the exercise of statutory

powers it may be said to include dishonesty (or fraud) and malice9. A power is exercised

fraudulently. If its source intends to achieve an object other than that for which he believes

the power to have been conferred. The intention may be to promote another public interest or

private interest10.

9
https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-administrative-discretion-
administrative-law-essay.php
10
I.P.Massey, “Administrative Actions”, Indian Law Institute
 iii) Irrelevant consideration: - The decision of the administrative authority is

declared void if it is not based on relevant and suitable considerations. The considerations

will be irrelevant if there is no reasonable connection between the facts and the grounds.

iv) Leaving out relevant considerations: - The administrative authority exercising

the discretionary power is required to take into account all the relevant facts. If it leaves out

relevant consideration, its action will be invalid.

v) Mixed consideration: - Sometimes the discretionary power is exercised by the

authority on both relevant and irrelevant grounds. In such condition the court will examine

whether or not the exclusion of the irrelevant or non-existent considerations would have

affected the ultimate decision. If the court is satisfied that the exclusion of the irrelevant

considerations would have affected the decision, the order passed by the authority in the

exercise of the discretionary power will be declared invalid but if the court is satisfied that the

exclusion of the irrelevant considerations would not be declared invalid11.

vi) Unreasonableness: - The Discretionary power is required to be exercised by the

authority reasonably. If it is exercised unreasonably it will be declared invalid by the court.

Every authority is required to exercise its powers reasonably.

Lord Wrenbury has observed that a person in whom a discretion is invested must

exercise his discretion upon reasonable grounds12. Where a person is conferred discretionary

power it should not be taken to mean that he has been empowered to do what he likes merely

because he is minded to do so. He is required to do what he ought and the discretion does not

empower him to do what he likes. He is required, by use of his reason, to ascertain and follow

the course which reason directs. He is required to act reasonably

11
http://www.legalservicesindia.com/article/print.php?art_id=756
12
http://epao.net/epSubPageExtractor.asp?src=education.Human_Rights_Legal.Checking_Over_Administrative
_Discretion_For_Effectiveness_By_Advocate_Arjun
 vii) Colourable Exercise of Power: - Where the discretionary power is exercised by

the authority on which it has been conferred ostensibly for the purpose for which it has been

given but in reality for some other purpose, it is taken as colourable exercise of the

discretionary power and it is declared invalid13.

viii) Non-compliance with procedural requirements and principles of natural

justice: - If the procedural requirement laid down in the statute is mandatory and it is not

complied, the exercise of power will be bad. Whether the procedural requirement is

mandatory or directory is decided by the court. Principles of natural justice are also required

to be observed.

ix) Exceeding jurisdiction: - The authority is required to exercise the power within

the limits or the statute. Consequently, if the authority exceeds this limit, its action will be

held to be ultra vires and, therefore, void14.

II. Failure to exercise Discretion.

In the following condition the authority is taken to have failed to exercise its

discretion and its decision or action will be bad.

i) Non-application of mind: - Where an authority is given discretionary powers it is

required to exercise it by applying its mind to the facts and circumstances of the case in hand.

If he does not do so it will be deemed to have failed to exercise its discretion and its action or

decision will be bad.

13
http://www.legalservicesindia.com/article/print.php?art_id=756
14
Sowa & Selden, J. & S, “ Administrative Discretion And Active Representation: An Expansion Of The
Theory Of Representative Bureaucracy”
 ii) Acting under Dictation: - Where the authority exercises its discretionary power

under the instructions or dictation from superior authority. It is taken, as non-exercise of

power by the authority and its decision or action is bad. In such condition the authority

purports to act on its own but in substance the power is not exercised by it but by the other

authority. The authority entrusted with the powers does not take action on its own judgement

and does not apply its mind. For example in Commissioner of Police v. Gordhandas the

Police

Commissioner empowered to grant license for construction of cinema theatres granted

the license but later cancelled it on the discretion of the Government. The cancellation order

was declared bad as the Police Commissioner did not apply his mind and acted under the

dictation of the Government15.

III) Imposing fetters on the exercise of discretionary powers: - If the authority

imposes fetters on its discretion by announcing rules of policy to be applied by it rigidly to all

cases coming before it for decision, its action or decision will be bad16. The authority

entrusted with the discretionary power is required to exercise it after considering the

individual cases and if the authority imposes fetters on its discretion by adopting fixed rule of

policy to be applied rigidly to all cases coming before it, it will be taken as failure to exercise

discretion and its action or decision or order will be bad.

15
http://administrativelawmatters.blogspot.in/2012/11/failure-to-exercise-discretionary-power.html
16
http://vancouverimmigrationblog.com/unpacking-the-legal-phrase-fettering-discretion/
 CHAPTER III:

THE REMEDIES OF ADMINISTRATIVE DISCRETION

Suppose if an administrative action taken out with exercise of the discretionary power vested

with him and its found to be arbitrary in nature violating the rights of people then action can

be struck down.

Administrative Discretion and fundamental rights

No law can cover administrative discretion with a complete conclusiveness, for the

courts always examine the ambit and even the mode of its exercise for the angle of its

conformity with fundamental rights17.

The fundamental rights thus provide a basis to the judiciary in India to control

administrative discretion to a large extent. There have been a number of cases in which a law,

conferring discretionary powers, has been held violative of a fundamental right. The

following discussion will illustrate the cases of judicial restraints on the exercise of discretion

in India.

Administrative Discretion and Article 14.

Article14 prevents arbitrary discretion being vested in the executive. Equality is

antithetic to arbitrariness. Article 14 strikes at arbitrariness in State action and ensures

fairness and equality of treatment. Right to equality affords protection not only against

discretionary laws passed by legislature but also prevents arbitrary discretion being vested in

17
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=2716&context=mulr
the executive. Often executive or administrative officer or Government is given wide

discretionary power18. In a number of cases, the Statute has been challenged on the ground

that it conferred on an administrative authority wide discretionary powers of selecting

persons or objects discriminately and therefore, it violated Article 14. The Court in

determining the question of validity of such statute will examine whether the statute has laid

down any principle or policy for the guidance of the exercise of discretion by the

Government in the matter of selection or classification. The Court will not tolerate the

delegation of uncontrolled power in the hands of the Executive to such an extent as to enable

it to discriminate.

In State of West Bengal v. Anwar Ali, AIR 1952 SC 75. It was held that in so far as the Act

empowered the Government to have cases or class of offences tried by special courts, it

violated Article 14 of the Constitution. The court further held the Act invalid as it laid down

“no yardstick or measure for the grouping either of persons or of cases or of offences” so as

to distinguish them from others outside the purview of the Act. Moreover, the necessity of

“speedier trial” was held to be too vague, uncertain and indefinite criterion to form the basis

of a valid and reasonable classification.

Under Article 19

Article 19 guarantees certain freedoms to the citizens of India, but they are not

absolute. Reasonable restrictions can be imposed on these freedoms under the authority of

law. They cannot be contended merely on executive action. The reasonableness of the

18
Amanda M. Olejarski, Administrative Discretion in Action: A Narrative of Eminent Domain
restrictions is open to judicial review. These freedoms can also be afflicted by administrative

discretion. Such cases can be examined below.

A number of cases have come up involving the question of validity of law conferring

discretion on the Executive to restrict the right under Article 19(1)(b) and (e).

The State has conferred powers on the Executive to extern a person from a particular

area in the interest of peace and safety in a number of statutes.

In Dr. Ram Manohar v. State of Delhi, AIR 1950 SC 211., where the D.M. was

empowered under East Punjab Safety Act, 1949, to make an order of externment from an area

in case he was satisfied that such an order was necessary to prevent a person from acting in

any way prejudicial to public peace and order, the Supreme Court upheld the law conferring

such discretion on the execution on the grounds, inter alia, that the law in the instant case was

of temporary nature and it gave a right to the externee to receive the grounds of his

externment from the Executive19.

In Hari v. Deputy Commissioner of Police, AIR 1956 SC 559, the Supreme Court upheld

the validity of section 57 of the Bombay Police Act authorizing any of the officers specified

therein to extern convicted persons from the area of his jurisdiction if he had reasons to

believe that they are likely to commit any offence similar to that of which they were

convicted. This provision of law, which apparently appears to be a violation of the residence,

was upheld by court mainly on the considerations that certain safeguards are available to the

19
http://digitalcommons.osgoode.yorku.ca/jlsp/vol6/iss1/6/
externee, i.e., the right of hearing and the right to file an appeal to the State Government

against the order.

In a large number of cases, the question as to how much discretion can be conferred

on the Executive to control and regulate trade and business has been raised. The general

principle laid down in that the power conferred on the Executive should not be arbitrary, and

that it should not be left entirely to the discretion of any authority to do anything it likes

without any check or control by any higher authority20.”

The Supreme Court in H.R. Banthis v. Union of India (1979 1 SCC 166) declared a

licensing provision invalid as it conferred an uncontrolled and unguided power on the

Executive. The Gold (Control) Act, 1968, provided for licensing of dealers in gold

ornaments. The Administrator was empowered under the Act to grant or renew licenses

having regard to the matters, inter alia, the number of dealers existing in a region, anticipated

demand, suitability of the applicant and public interest. The Supreme Court held that all these

factors were vague and unintelligible. The term ‘region’ was nowhere defined in the Act. The

expression ‘anticipated demand was vague one. The expression ‘suitability of the applicant

and ‘public interest’ did not contain any objective standards or norms.

Where the Act provides some general principles to guide the exercise of the discretion and

thus saves it from being arbitrary and unbridled, the court will uphold it, but where the

Executive has been granted ‘unfettered power to interfere with the freedom of property or

trade and business, the court will strike down such provision of law21.

20
https://www.lawnotes.in/Administrative_Discretion_and_Fundamental_Rights
21
Davis K, “Administrative Law Treatise” 447-634.
Under Article 31(2):

Article 31(2) of the Constitution provided for acquisition of private property by the

Government under the authority of law. It laid down two conditions, subject to which the

property could be requisitioned

1) That the law provided for an amount (after 25th Amendment) to be given to the

persons affected, which was non-justiciable; and

(2) That the property was to be acquired for a public purpose.

In an early case, where the law vested the administrative officer with the power to

acquire estates of food grains at any price, it was held to be void on the grounds, inter alia,

that it failed to fix the amount of compensation or specify the principles, on which it could be

determined. Since the matter was entirely left to the discretion of the officer concerned to fix

any compensation it liked, it violated Article 31(222).

The property under Article 31(2) could be acquisitioned for a public purpose only.

The Executive could be made the sole judge to decide a public purpose. No doubt, the

Government is in best position to judge as to whether a public purpose could be achieved by

issuing an acquisition order, but it is a justiciable issue and the final decision is with the

courts in this matter23.

In West Bengal Settlement Kanungo Co-operative Credit Society Ltd. V. Bela

Bannerjee,(AIR 1954 SC 170) the provision that a Government’s declaration as to its

necessity to acquire certain land for public purpose shall be conclusive evidence thereof was

22

http://14.139.60.114:8080/jspui/bitstream/123456789/15247/1/026_Administrative%20Discretion%20and%20F
undamental%20Rights%20in%20India%20(223-250).pdf
23
Sathe S P, Administrative Law, Seventh edition
held to be void24. The Supreme Court observed that as Article 31(2) made the existence of a

public purpose a necessary condition of acquisition, it is, therefore, necessary that the

existence of such a purpose as a fact must be established objectively and the provision

relating to the conclusiveness of the declaration of then Government as to the nature of the

purpose of the acquisition must be held unconstitutional.

The Courts have, however, attempted to construe the term public purpose rather

broadly; the judicial test adopted for the purpose being that whatever furthers the general

interests of the community as opposed to the particular interests of the individual is a public

purpose. The general tendency of the Legislature is to confer the power of acquisition on the

Executive in an undefined way by using vague expressions such as “purposes of the State” or

“purposes of the Union”, so as to give wider latitude to the courts to uphold it25.

Thus, we have seen in the above illustrations how the courts have used the mechanism of

fundamental rights to control the administrative discretion. In fact fundamental rights are

very potential instruments by which the Judiciary in India can go a long way in warding off

the dangers of administrative discretion.

CHAPTER IV

JUDICIAL CONTROL ON ADMINISTRATIVE DISCRETION

Judicial Control of Administrative discretion – The broad principles on which the

exercise of discretionary powers can be controlled, have now been judicially settled. These

principles can be examined under two main heads:

24
http://www.legalservicesindia.com/article/article/abuse-of-administrative-discretion-756-1.html
25
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=6282&context=penn_law_review
a) Where the exercise of the discretion is in excess of the authority, i.e., ultra vires;

b) where there is abuse of the discretion or improper exercise of the discretion26.

These two categories, however, are not mutually exclusive. In one sense the exercise of the

discretion may be ultra vires, in other sense the same might have been exercised on irrelevant

considerations27. As regards the ultra vires exercise of administrative discretion, the

following incidents are pre-eminent: -

1) Where an authority to whom discretion is committed does not exercise that discretion

himself

2) Where the authority concerned acts under the dictation of another body and disables itself

from exercising a discretion in each individual case

3) Where the authority concerned in exercise of the discretion, does something which it has

been forbidden to do, or does an act which it has been authorized to do

4) Where the condition precedent to the exercise of its discretion is non-existent, in which

case the authority lacks the jurisdiction to act as all28.

Under the second category, i.e., abuse of discretionary power, the following instances may be

considered: -

1) Where the discretionary power has been exercised arbitrarily or capriciously

2) Where the discretionary power is exercised for an improper purpose, i.e., for a purpose

other than the purpose of carrying into effect in the best way the provisions of the Act;

26
Zalpauri Sunita, “Administrative Discretions and judicial control Jammu and Kashmir IMPA”
27
Qianfan Zhang, “The legal control of administrative discretion -- from the perspective of American
administrative law ", Science of Law.
28
Ibid
3) Where the discretionary power is exercised inconsistent with the spirit and purpose of the

statute

4) Where the authority exercising the discretion acts on extraneous considerations, that is to

say, takes into account any matters which should not have been taken into account

5) Where the authority concerned refuses or neglects to take into account relevant matter or

material considerations

6) Where the authority imposes a condition patently unrelated to or inconsistent with the

purpose or policy of the expectation statute

7) Where in the exercise of the discretionary power, it acts mala fide

8) Where the authority concerned acts unreasonably29.

Legitimate expectation as ground of judicial review

Besides the above grounds on which the exercise of discretionary powers can be

examined, a third major basis of judicial review of administrative action is legitimate

expectation, which is developing sharply in recent times. The concept of legitimate

expectation in administrative law has now, undoubtedly, gained sufficient importance. It is

stated that the legitimate expectation is the latest recruit to a long list of concepts fashioned

by the courts for the review of administrative action and this creation takes its place besides

such principles as the rules of natural justice, unreasonableness, the fiduciary duty of local

authorities and in future, perhaps, the unreasonableness, the proportionality30.

In Union of India v. Hindustan Development Corporations, (1993 3SCC 499) the

court held that it only operates in public law field and provides locus standi for judicial

29
H. Koch Jr Charles. , “Judicial Review of Administrative Discretion, College of William & Mary Law
School”
30
http://www.tandfonline.com/doi/abs/10.1080/10854681.2016.1229857?journalCode=rjdr20
review. Its denial is a ground for challenging the decision but denial can be justified by

showing some overriding public interest. In the instant case, question arose regarding the

validity of the dual policy of the government in the matter of contracts with private parties for

supply of goods. There was no fixed procedure for fixation of price and allotment of quality

to be supplied by the big and small suppliers. The government adopted a dual price policy,

lower price for big suppliers and higher price for small suppliers in public interest and

allotment of quantity by suitably adjusting the same so as to break the cartel.

The court held that this does not involve denial of any legitimate expectation. The

court observed: legitimate expectations may come in various forms and owe their existence to

different kind of circumstances and it is not possible to give an exhaustive list in the context

of vast and fast expansion of governmental activities. By and large they arise in cases of

promotions, which are in normal course expected, though not guaranteed by way of statutory

right, in cases of contracts, distribution of largess by the Government and in somewhat

similar situations.

Legitimate expectation gives the applicant sufficient locus standi for judicial review.

The doctrine of legitimate expectation is to be confined mostly to right of fair hearing before

a decision, which results in negativing a promise, or withdrawing an undertaking is taken.

The doctrine does not give scope to claim relief straightaway from the administrative

authorities as no crystallized right as such is involved31.

Further in Food Corporation of India v. M/s. Kamdhenu Cattle Seed Industries

AIR 1993 SC 1601. The doctrine of legitimate expectation gets assimilated in the rule of law

and operates in our legal system in this manner and this extent.

31
Vanderman Yaser, Substantive Legislative Expectation, third edition, volume 21, pages 174-187
The Court observed: “The mere reasonable or legitimate expectation of a citizen, in such a

situation, may not by itself be a distinct enforceable right, but failure to consider and give due

weight to it may render the decision arbitrary, and this is how the requirement of due

consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a

necessary concomitant of the rule of law32. Every legitimate expectation is a relevant factor

requiring due consideration in a fair decision-making process.”

In Lala Sachinder Kumar v. Patna Regional Development Authority, (AIR 1994

PATNA 128) the court again applied the doctrine of legitimate expectation and held the order

of allotment of residential plots issued by the Patna Regional Development Authority as bad.

In the instant case Regional Development Authority issued an advertisement inviting

applications for the allotment of residential plots. In this process preference was given to the

employees of the Patna Regional Development Authority without considering the case of

applicant petitioner, whereas Rules did not provide for any such preferential allotment33. The

court held that allotment in favour of employees is arbitrary. The applicant petitioner has

legitimate expectations to be considered for allotment.

32
https://www.casemine.com/search/in?q=India+Vs.+M%2Fs+Kamdhenu+Cattle+Feed+Industries%2C
33
https://www.out-law.com/en/articles/2016/august/law-of-legitimate-expectation-in-judicial-review-claims-
developing-in-commonwealth-jurisdictions-says-expert/
BIBLIOGRAPHY:

Sites referred:

 http://legal-dictionary.thefreedictionary.com/Executive+Discretion

 https://law.yale.edu/system/files/area/conference/compadmin/compadmin16_huang_judicial.

 https://books.google.co.in/books?id=MQ4tHgFilYgC&pg=PT28&lpg=PT28&dq=discretion+according

+to+layman&source=bl&ots=LQZeVh9lSa&sig=voeV9YCndL1sau1m20DvrTZ3y6E&hl=en&sa=X&

ved=0ahUKEwii-

c2f0ebWAhWLM48KHXIDDAAQ6AEINDAC#v=onepage&q=discretion%20according%20to%20la

yman&f=false

 https://wenku.baidu.com/view/2a96eca0360cba1aa911da58.html

 http://thelawdictionary.org/discretion/

 https://www.lawteacher.net/free-law-essays/administrative-law/the-abuse-of-administrative-discretion-

administrative-law-essay.php

 http://www.legalservicesindia.com/article/print.php?art_id=756

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 http://vancouverimmigrationblog.com/unpacking-the-legal-phrase-fettering-discretion/

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 https://www.casemine.com/search/in?q=India+Vs.+M%2Fs+Kamdhenu+Cattle+Feed+Industries%2C
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claims-developing-in-commonwealth-jurisdictions-says-expert/

BOOKS REFERRED:

1. Alexander H. Pekelis, Administrative Discretion and the Rule of Law, the New

School.

This book helped me in identifying the relationship between rule of law and

administrative discretion. It helped me conclude that in a government where rule of law

prevails administrative discretion is necessary at times.

2. Amanda M. Olejarski, Administrative Discretion in Action: A Narrative of

Eminent Domain

It put forth a strong a point that administrative discretion is essential in implementing the

constitutional power.

3. Qianfan Zhang, “The legal control of administrative discretion -- from the

perspective of American administrative law ", Science of Law.

This book widely deals with the limitations that should be implemented on administrative

discretion.

4. K. Davis, “Administrative Law Treatise” 447-634.

This book helped me in finding the real need of administrative discretion in the process of

administration.

5. Sowa & Selden, J. & S, “ Administrative Discretion And Active Representation:

An Expansion Of The Theory Of Representative Bureaucracy”

 This book has a lot of examples where administrative discretion was used and also further

explains how administrative discretion should not intersect with limitaions.

6. Vanderman Yaser, Substantive Legislative Expectation, third edition, volume 21,

pages 174-187

7. Chen Wendque, " Study on internal control of administrative discretion", CASS

Journal of Political Science, Vol. 38, No. 5, 2011, pp. 75-79.

8. Davis K, “Administrative Law Treatise” 447-634.

9. Sathe S P, Administrative Law, Seventh edition

10. Qianfan Zhang, “The legal control of administrative discretion -- from the

perspective of American administrative law ", Science of Law.

ARTICLES REFERRED:

1. I.P.Massey, “Administrative Actions”, Indian Law Institute

This article was helpful in the responsibilities of officials in the administrative wing and

their limitations. It was helpful in giving the hierarchy of administration

2. Sunita Zalpauri, “Administrative Discretions and judicial control, Jammu and

Kashmir IMPA”

This article was helpful in knowing about administrative discretion and the judiciary’s

control over it. It was helpful in providing the remedies to people against arbitrary use of

administrative discretion.

3. Charles H. Koch Jr. , “Judicial Review of Administrative Discretion, College of

William & Mary Law School”

This article widely interpreted the way by which administrative discretion can be

judicially reviewed. Also case laws like Union of India and Hindustan Development

Cooperation for reference.

4. Rabin, J. (2003, "Administrative Discretion". Encyclopedia of public

administration and public policy. New York: Dekker.

This article helped me to derive a proper definition of administrative discretion. Also it

states how administrative discretion should be.

5. Vaishnav, S & Marwaha. K, Judiciary: A Ladder between Inevitable

Administrative Discretion and Good Governance. International Journal Of

Multidisciplinary Approach & Studies

This article helped me how administrative discretion plays a vital role in making good

governance. It also suggest some new criteria under which only administrative discretion

should apply.

6. Sowa & Selden, J. & S, “ Administrative Discretion And Active Representation: An

Expansion Of The Theory Of Representative Bureaucracy”

7. Amanda M. Olejarski, Administrative Discretion in Action: A Narrative of

Eminent Domain