SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY

EXERCISE OF DISCRETION AND PADFIELD’S CASE

Submitted By:
Name: Telaru Dharani

PRN No.: 18010324153

Course: B.B.A. L.L.B

Division: “D”

Symbiosis Law School, Hyderabad. Symbiosis International (Deemed)

University, Pune.
In

Month of October, 2020

Under the Guidance of

Dr. Sanu Rani Paul

(Assistant Professor)

1
 TABLE OF CONTENTS

1. INTRODUCTION………………………………………………………….03
2. RESEARCH QUESTIONS………………………………….……………..04
3. RESEARCH OBJECTIVES……………………………………………….04
4. SIGNIFICANCE OF THE STUDY……………………………………..…05
5. RESEARCH METHODOLOGY…………………………………………..06
6. SOURCES OF DATA……………………………………………………...06
7. LITERATURE REVIEW………………………………………………..…07
8. PARTS IN DETAIL………………………………………………………..08
9. DISCRETIONARY POWERS AND FUNDAMENTAL RIGHTS…...…..09
 Violation of Article 14
 Violation of Article 19
10.DISCRETIONARY POWERS AND JUDICIAL BEHAVIOUR IN
INDIA………………………………………………………………………12
11.ABSOLUTE DISCRETION- CONSTITUTIONAL BLASPHEMY.14
12.PADFIELD’S CASE ANALYSIS.......…………………………………….16
13.CONCLUSION…………………………………………….………………18

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 INTRODUCTION

The transformation from lassie faire state to welfare state by most of the countries has increased
the responsibility of the state towards its people. All the modern states have innumerable
functions to execute and are not free from discretionary powers of their own. India is a vibrant
welfare democratic state, which is in no exception to this strategies and the administrators are
given immense power to make it a welfare state.1

In R. D. Shetty v. International Airport Authority of India 2, Justice Bhagwati has commented

that “exercise of discretion is an inseparable part of sound administration and, therefore, the
State which is itself a creation of Constitution, cannot shed its limitation at any sphere of state
activity.” The hon’ble supreme court of India also has stated that there has to be a room for
authorities to perform discretionary powers within in the operation of law but the discretionary
powers must be limited with proper guidelines and norms without any room for arbitrariness.

India has witnessed a huge difference in the numerous administrative functions for the smooth
functioning. Both the legislature and executive must work in tandem for the best interests of the
country. It is not possible for the legislative to draft on each and every aspect; this leaves few
gaps in law to allow them to be filled by executives. Hence, executives have wide power to take
action. But in certain cases the freedom converts into arbitrariness.3

Governance is an art and with the extensive use of such power, certainly leaves a space for
arbitrariness to grow.4 The third organ, judiciary is the protector of our rights and protects the
individuals from any abuse or misuse of any administrative discretionary powers. The power of
the administrator to exercise Discretion shall not encourage arbitrary, fanciful, irregular and
vague alternatives but it must be reasonable, fair and legal.5

1
Basu, D.D., ‘Administrative Law’, Kamal Law House, Kolkata, Sixth Edition, 2004.
2
1979 AIR 1628
3
Massey, I.P., ‘Administrative Law’, Eastern book Company, Lucknow, Sixth Edition, 2005
4
Kenneth Culp Davis, Administrative Law Treatise, Volume 2, 1958.
5
Sharp v. Wakefield, 1891 AC 173 (HL).

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 RESEARCH QUESTIONS

 What is the meaning of discretion in administrative law?

 How are Fundamental Rights and Discretionary powers related?
 In what case the exercise of discretionary powers violate Article 14?
 In what case the exercise of discretionary powers violate Article 19?
 What are the principles governing exercise of discretionary powers?
 What are the classic cases regarding discretion in administrative law?
 What is the reasoning given by the Lords in Padfield’s case while deciding the case?

RESEARCH OBJECTIVES

 To study the concept of discretion in administrative law.

 To examine the violation of Fundamental Rights w.r.t discretionary powers.
 To study judicial control mechanisms on discretionary powers.
 To analyse the propositions governing the exercise of discretionary powers.
 To study the cases on absolute discretionary powers.
 To critically analyse the judicial review in Padfield’s case.

SIGNIFICANCE OF THE STUDY

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The concept of discretionary powers is increasing day by day as the executives must apply on a
regular basis various provisions. It is very difficult to comprehend legal provisions by the
administrators and act accordingly. In these days we are getting into complicated life style and
creating complex problems. These problems create a headache to the executives and they have to
cope up with the cases. Discretionary powers are inevitable for administrators. The laws enacted
don’t give solutions for all the problems. Sometimes the executives have to take extra step and
solve by using there discretionary powers.

In modern days, in addition to the classical functions the state has to work on the welfare of the
society. I feel there are 4 main reasons on why discretionary powers are intensifying. The
complexity of problems we are dealing in our daily lives. No previous experience of dealing with
such problems and require practical solutions. Foreseeing of problems is impossible hence the
administrator have to act spontaneously without specific legal provisions. Facts and
circumstances differ for every case so applying the same rule can result in injustice.

The present research paper will be helpful for law students, lawyers, academicians, and general
public in understanding the concept of discretion, its principles, violation of Fundamental rights,
absolute discretionary power and also Padfield’s case law is also analyzed. Indian case laws are
used in the paper.

RESEARCH METHODOLOGY

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Doctrinal Legal Research Methodology has been used in the present research paper on
Exercise of Discretion and Padfiels’s case. This research is also known as pure
theoretical research. This kind of research is concerned with legal concepts, doctrines and
propositions. This research systematically analyses the already present material. The research is
mostly Analytical and Descriptive. Using this Doctrinal Legal Research Methodology the present
research paper has been prepared by critically analyzed and interpreted.

SOURCES OF THE DATA

Doctrinal kind of research methodology is twofold process. First, it is to find the sources for the
research and second, it is to analyse, interpret and apply the text. In the present research paper
the author has followed this two part process. In the research paper both primary and secondary
sources are used.

 Primary sources such as relevant laws, byelaws, rules, principles, doctrines, statutes,
various Landmark Judgements and court decisions by different countries have been
included.
 Secondary sources such as internet material, research papers, legal articles, law blogs,
journals, e-books and commentaries have been used.

LITERATURE REVIEW

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Public Law and Public Administration by Cooper PJ mentions that it is about flexibility in
implementation of the policy. As the times are changing and the needs of the community are
changing very rapidly executive discretion is crucial for a good deal of administrative activity.
To fit the existing technological, social and economic requirements, the administrators have to
spontaneous in taking decisions.6

Constitutional and Administrative law by A. Bradley explains about the judicial review
importance and the control of judiciary on administrative actions. It talks about on what all
grounds administrative actions can be challenged in the court and what relief a person can seek
for. It discusses about the scope and extent of judicial review and the power drawn by
administrative actions from statute or contracts. Various authors’ opinions and observations are
also included in the book.7

The multiple sources of statutory ambiguity: tracing the legislative origins to

administrative discretion by Macintyre AA mentions that it is not possible for the legislative
bodies to include all the subjects in the restricted time. Legislatures are not aware of the future
events so they don’t solve all the future problems. It is also believed that legislatures work with
political consensus and compromise on few things.8

In the early 20th century with the evolution of public administration, there were many books in
the market written by the authors on the newly evolved concept. The most read book and widely
popular was Introduction to The study of Public Administration by Leonard D. Whites. The
author in the chapters of the book explains the complexities involved in interdependent society,
importance and need of public administration, the way to approach it scientifically etc.9

PART – I: INTRODUCTION

6
Philip J. Cooper, Public Law and Public Administration, 4rth edition, Cengage Learning, 2006.
7
A. Bradley, Constitutional and Administrative law, Pearson Publishers, 2018.
8
Macintyre AA, The multiple sources of statutory ambiguity: tracing the legislative origins to administrative
discretion, New York, 1986.
9
Volume 25, No. 1, Leonard D. Whites, The study of Public Administration, Wiley Publishers.

7
The introduction of the chapter discusses about the concept of welfare state and how the
legislature and executive must work together. It also briefly explains the need for discretionary
administrative powers through Supreme Court’s judgement. It also mentions Justice Bagwati’s
opinion from R.D. Shetty’s case. Introduction briefly explains executive’s discretionary powers.

In the Part – I, Research Questions, Research Objectives, Significance of the Study, Research
Methodology, Sources of the Data, Review of Literature is also included.

PART – II: ANALYSIS

In the PART – II, discretionary powers and fundamental rights, discretionary powers and judicial
behaviour in India, absolute discretion - constitutional blasphemy are discussed with various
Indian and foreign case laws. The judicial review on the exercise of discretion powers in
administrative actions. How Judiciary holds the balance between individuals and the
government? What steps judiciary takes to do justice to the people and protect the rule of law?
are dealt in this part of the study. The principles which govern the discretionary powers are
discussed in detail. All the principles are mentioned in the study. The cases which dealt with
absolute discretion are also discussed in brief.

In the research paper, critical analysis of the UK administrative case law Padfield v Minister of
Agriculture, Fisheries and Food is also done. We mention the facts of the case and the issues
of the case. We analyse the decision of the court and the reasoning by the court. We will peruse
the decision and the opinions of Lord Reid and Lord Upjohn.

PART – III: CONCLUSION

In the Chapter-VI of the research paper we summarize the whole research paper. In conclusion
we see how difficult it is for the Indian courts to maintain the discretionary power and what are
the grounds to consider a law invalid. It also mentions briefly on how the courts must so careful
in maintaining the balance and don’t let authorities overdo their discretion bestowed upon them.

DISCRETIONARY POWERS AND FUNDAMENTAL RIGHTS

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The Constitution has guaranteed Fundamental Rights to the people of India. These rights are
essential for the development of the country. These rights limit the executive and legislative
powers of the state. Judiciary has the power to examine the administrative discretionary powers.
The judiciary decides only after perusing substantive and procedural aspects of law. To look into
the permissible limits of law substantial law is needed and to see the process of discretion is
proper procedural law is needed. Even in violation of either case it is unconstitutional. There
were instances where administrative discretionary powers violated fundamental rights.

 Violation of Article 14

In numerous cases, various statutes have been challenged before the honorable courts on the
ground that the powers conferred are arbitrary and violated Article 14 of the Constitution. The
court will first see if there are any procedures or principles in the statute for exercising discretion
by the executive. The court will strike down the statute if doesn’t provide any guidance as it
won’t entertain uncontrolled power in the hands of the executive.

In the case State of West Bengal v. Anwar Ali Sarkar10, S.5 (1) of the West Bengal Special
Courts Act, 1950 was added for fast trial in few special offences. It is challenged that this
Section is arbitrary and unconstitutional as it confers uncontrollable discretion to the State to
refer cases to Special Courts. The trial procedure in Special Courts is very strict in comparison
with other normal trials. The Supreme Court has held it invalid as the executive has wide powers
and use of words like “speedier trial” is vague and unclear. As the expressions have uncertain
and indefinite it amounts unreasonable classification.

In Monarch Infrastructure (P) Ltd v. Commissioner Ulhasnagar 11, for the collection of octroi
the municipality corporation has sent the invitation for tenders. In this case one of the main
requirements was removed after the expiry time and before the opening of the tenders. The
tender is awarded to the one who didn’t fulfill that particular requirement. The Hon’ble Supreme
Court held it as discriminatory and violation of Fundamental Rights.

10
(2003) 4 SCC 579.
11
(2000) 5 SCC 287.

9
It is challenged in the court that the process of candidates’ selection to the State Medical College
through viva and interview is arbitrary and violate Article 14. It is arbitrary because the Board of
interview has the power to change the results. The apex court has rejected the contention and
stated that there is a criterion for marking in the interview and competent men are appointed to
select the candidates.12

Section 187-A of the Sea Customs Act was challenged in Manhar Lal v. State of Maharastra13
as it gave wide discretionary powers to the executive authorities in the matters of smuggled
goods. The provision gives the power either to refer the matter to the magistrate or to deal the
matter themselves. The held that the legal provision is constitutional as the power is given to
senior officers who can guarantee against misuse of the provision.

 Violation of Article 19

The freedoms guaranteed in Article 19 of the Constitution are not absolute. Reasonable
restrictions can be imposed. Judicial Review can be called for in case of unreasonable
restrictions. These restrictions on freedoms are afflicted by executive actions. In many instances
the courts have taken the view that wide discretionary powers in the hands of administrators can
be unreasonable, invalid and hence unconstitutional.

The Supreme Court in the State of Madhya Pradesh v. Baldeo Prasad 14 has held that C.P.
Goondas Act, 1946 is unconstitutional. The object of the Act is to control goondas and their
removal in public interest. It is held invalid for 2 reasons: the magistrate order was not required
to decide whether the person is goonda or not and the person is not given chance to prove he is
not a goonda.

The same was reflected in State of M.P. v Bharat Singh 15, the apex court has held a provision
unconstitutional in M.P. Public Security Act, 1959. This particular provision gave wide
discretionary powers to the executive on the stay of externed person without any procedural
safeguards. Hence the court has held it invalid.

12
Chitralekha v. State of Mysore, AIR 1964 SC 1823
13
(1971) 2 SCC 119.
14
AIR 1961 SC 293
15
AIR 1967 SC 1170

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The court in State of M. P. v Champa Lal16 has held the Act void as there is there is no
opportunity given to the land owners to show that there land is infested. There is no procedure
against the infringement of property rights in case of violation. As the land owners are not given
right of hearing it is considered arbitrary and unconstitutional.

Clause 6 of S.144 of code of criminal procedure was challenged in State of Bihar v. K.K.
Mishra17 as it gives the power to the state for life extension of an order given by a magistrate
beyond 2 months. The court has ordered it to be unconstitutional as it gives arbitrary power to
the state government. There was no procedure or rules for which cases the order can be extended.

The Gold Control Act, 1968 has given blanket discretionary powers to the authorities to grant or
refuse approving license to gold dealers. The act has provided few parameters upon which the
power has to be exercised like existing number of dealer, demand anticipation, interest of the
public and applicants suitability etc. But the court has still struck down the provision as the
vague expressions may result in arbitrariness.18

In the case State of Maharastra v. Kamal S. Durgule 19 the power given to the authority is very
wide without any procedural safeguards. According to Section 391) and 4(1) of Land Acquisition
Act, 1894 the authority has the power to declare a land vacant and then acquire it. Land owners
to right to hear the other side is also taken away. Hence the court has quashed the law as it
confers arbitrary powers to the state.

DISCRETIONARY POWERS AND JUDICIAL BEHAVIOUR IN INDIA

16
AIR 1965 SC 124
17
AIR 1971 SC 1667
18
Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166.
19
(1985) 1 SCC 234

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The Indian courts have developed few effective principles upon which administrative
discretionary powers can be judicially controlled. The 2 principles are:-

a. The discretion exercised by administration is excess i.e. ultra vires.

b. Improper or abuse of discretionary powers.

Both these are not mutually exclusive. For the exercise of discretion to be ultra vires the
following incidents are pre-eminent:-

1. The administrator/authority/executive who has to exercise discretion doesn’t do it by

himself,
2. Acting under the dictation of another executive body,
3. Doing an act which is forbidden or not doing an act which is authorized to do,
4. When the authority exercising discretion lacks the jurisdiction to act.

For the exercise to be abuse of discretionary power the following incidents are pre-eminent20 :-

1. Arbitrary exercise of administrative discretionary powers,

2. Improper use of administrative discretionary powers,
3. The executive powers are not within the spirit and purpose of the Act,
4. Acting on those matters which aren’t taken into consideration,
5. Not considering or refusing to considering relevant matters concerned,
6. Conditions with are unrelated to the statute,
7. Acting with bad intention,
8. Acting unreasonably.

In Purpotabpore Co. Ltd. v. Cane Commr. Of Bihar 21, in the direction of chief minister of the
state the cane minister has the power to reserve lands for sugar companies. By exercising his
discretion the commissioner has excluded 99 areas in favour of appellant company. The court
has quashed it saying he abdicated his power by exercising under another authority. Since he has
complied with instruction of another authority it is can be said that he failed to exercise his

20
Indian Rly. Construction Co. Ltd. v. Ajay Kumar, (2003) 4 SCC 579.
21
(1969) 1 SCC 308

12
power. It is immaterial to the court to consider whether the person himself asked for the
instructions.22

Section 21 of A.P Sugarcane (Regulation of Supply and Purchase) Act 1961 states that the
executives has the power to exempt tax payment of a new factory if it is the expansion of the old
factory. This provision is challenged in Shri Rama Sugar Industries Ltd. v. State of A.P 23. The
Apex court has declared the adoption of this provision arbitrary. It elaborated that the executive
authority has the power to form policies or rules for effective implementation of the law but the
policies or rules adopted must not contradict the aim of the statute. It is considered that the
authority is not exercising genuine discretion in individual cases.

The A.P Road Transport Corporation has proposed to nationalize certain routes. The higher
authority who is behind this proposal was Chief Minister of the state. There were accusations
that the CM is acting out of mala fide intentions as he wants take vengeance against the private
operates on those particular routes who are his opponents. The CM has not sent an affidavit
denying the charges against him. Considering the facts the court declared that Chief Minister
acted out of mala fide intention.24

The Apex Court in K.L. Trading Co. Ltd. v. State of Meghalaya 25 has held that to attract the
review of judiciary for administrative actions, the petitioner must show that there is usage of
arbitrariness, unfairness and unreasonableness in the competent authorities’ actions. The court
will interfere in only those matters where the actions of the executive are hit by arbitrariness,
unfairness and unreasonableness.

ABSOLUTE DISCRETION – CONSTITUTIONAL BLASPHEMY

22
Anirudh Karansinhji Jadeja v. State of Gujarat, (195) 5 SCC 302.
23
(1974) 1 SCC 534.
24
C. S. Rowjee And Others vs Andhra Pradesh State Road Corporation, 1964 AIR 962.
25
AIR 1996 Gau 17

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The Supreme Court in State of Punjab v. Salil Sabhlok26 has stated that the all statutory or
constitutional discretionary powers have an implied requirement that the discretionary powers
must be fair, just and reasonable and on the interest of public. In constitutional democracy there
is no concept like absolute or final discretion. This particular principle is not a new one but it
emerges from Article 14 of the constitution only.

In the present case, the state government in the exercise of discretionary powers under Article
316 of the constitution has appointed a chairman for Punjab Public Service Commission. It is
challenged that the person appointed doesn’t have competence and integrity required for the job.
The state government argued that Article 316 gives wide discretionary power to the state and
doesn’t lay down procedure, criteria or qualification for the appointment. SC declared that the
public authority doesn’t have absolute authority to work on its whims and sentiments. The court
clarified that just because Article 316 doesn’t provide for any qualifications it doesn’t mean that
discretionary powers can be exercised on the grounds of political connection and flexibility.

In the case of Manoj Narula v. Union of India 27, the Apex court choose not to interfere in the
choosing a ministerial candidate. The particular candidate lacked the competency and integrity
for the seat but the court clarified that it must be decided purely decided upon political
considerations. It held that this doesn’t mean that there is absolute discretionary which is not
limited by implied limitations. The court declared that in the country no executive authorities’
power can be absolute, unlimited and unfettered. Implicitly or explicitly the powers are limited
by constitutional norms and the norms of reasonableness and fairness of the administrative law.

Clause 4(2) of the U.P. Coal Control Order 1953 proposed under the essential (temporary
powers) Act, 1946 is challenged under Dwarka Prasad v. State of U.P.28. The court held it
invalid as it gives absolute power to the licensing authority to grant, revoke or suspend the
licenses. As it is considered as improper exercise of discretionary power and to keep a check
against injustice it is held invalid.

26
(2013) 5 SCC (L&S)
27
(2014) 9 SCC 1
28
AIR 1954 SC 224.

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For the construction of highways, the Secretary of transportation has asked to use federal funds.
The statute gave the discretionary power to the secretary to build highways only in a case where
there is no alternative route or ‘feasible and prudent’ route available for the passage of vehicles.
The Court didn’t accept the argument of secretary and commented that ‘feasible and prudent’
route is absolute discretion on the secretary hence it is invalid.29

In R. v. Metropolitan police Commr., ex p Blackburn30, the court has held that police doesn’t
have an absolute authority. The case was due to uncontrollable increase in gambling in London
and limited police force. The commissioner of police has issued order to stop observing and
prosecuting gambling clubs. A private person has filed a case challenging the commissioner’s
order through write petition (Mandamus). The court clearly said police commissioner doesn’t
have the uncontrollable power to stop means for enforcing the duty.

From the above cases it can concluded that the court won’t favour executive discretionary
powers which confer absolute power. The courts don’t entertain the statutory powers which are
absolute and unreasonable. Courts require procedural safeguards unless which they consider the
discretionary powers invalid.

PADFIELD’S CASE ANALYSIS

29
Citizens to Preserve Overton Park Inc. v. Volpe, 405 US 402 (1971)
30
(1968) 2 QB 118

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 PADFIELD V MINISTER OF AGRICULTURE, FISHERIES AND FOOD 31

The facts of the case are there is a statutory milk marketing scheme in London. Eleven milk
producing areas are selected and different milk prices are fixed by the milk marketing board. The
milk marketing board has fixed the prices calculating the production and transportation cost of
the milk. It is mandatory that the milk producers have to sell the milk to the board only. The
South East region has asked the board to look into the matter as they feel that the prices must be
altered. This because both Far Western region and South East region are both paid equally.
Agricultural Marketing Act, 1958 has a provision which states that the Milk Marketing Board
Committee has the power to look into the complaints of the producers. Section 19 of the Act
specifies that the committee can consider the complaint if and only if the particular Minister asks
to investigate.

The issue in the case is under S. 19(3) (b) of the Agricultural Marketing Act, 1958, is the
Minister entitled to take up the complaint and refer it to the committee as the purpose or aim of
the Act is affected by the implementation of the scheme.

Legislature frames rules, principles or procedures only for the welfare of the society. The main
intent is to achieve the purpose of the statute. The Act must be construed wholly to achieve its
objective. As the Minister refused to take up the matter, the court is of the opinion that he must
give good reasons as to why he isn’t considering the complaint. The Minister has the power to
exercise discretion in this matter but the actual question before the court is to see till what extent
the court can interfere and exercise it’s judicial review. The Minister’s contention is he has the
discretionary power to refer or refuse the complaint. It is his absolute discretion to take the call.
The appellants’ contention is that it is the Minister’s duty to refer genuine concerns and
substantial complaints. The Minister has failed to exercise his discretionary power.

Lord Reid has commented that the there is no hard and fast rule to determine whether there is
the Minister decision is unfettered. The appellants’ contention of refusing the genuine complaint
can’t be entertained as there may be numerous reasons as to why the Minister has not considered
the complaint. But if the Minister has misinterpreted the Statute for another reason then it can be
31
[1968] UKHL 1, [1968] AC 997

16
considered bad for the law. So it is essential to construe the Act before landing upon a
conclusion.

Lord Upjohn has commented that the main point to consider is whether the Minister is
misdirected from the purpose of the Act or not. Is he acting unlawfully? Under S.19 it is to his
discretion to ask the committee to investigate or not. As the Minister refused to entertain the
complaint there must good reasons for his refusal. Unless and until the reasons of the Minister
are good enough the court doesn’t have the power to interfere in the statute. But if the Minister
fails to argue his point then the court is free to interfere in the matter and come to a conclusion.
At this point it is implied that the Minister has no reason to refuse and write can be issued against
him.

The House of Lords held that the contentions of the Minister were unsatisfactory and his refuse
is unreasonable. The aim of the Act is to consider genuine complaints which is frustrated by the
Minister through his refusal.

CONCLUSION

17
There are 2 facets for judicial control. One is to compel for legal provisions by the legislative
bodies. The Indian courts also ask for few limitations for the principles or rules to act effectively.
These restrictions are also to protect the fundamental rights guaranteed by the constitution. These
limitations can be in the form of substantial or procedural forms. Absence of such limitations
makes the unreasonable, unfair and unreasonable. Second is the need for judicial review
mechanisms. This is vital for checking the limits of the exercise of discretionary powers of the
competent authorities may be implicitly or explicitly.

The court has made it clear through various judgements that the powers of the administrators are
for the interest of the public and the authorities while acting independently must not violate the
rights of the people. The authorities also must not act in a way opposite to the aim or purpose of
the statute. For the sound administration of the state, discretionary powers are very crucial so the
administrators must rigorously act to uphold the standards.

The authorities must not be given absolute power as it can be ruthless master sometimes. It
destructs freedoms of the people than any other man’s invention. For the fulfillment of states
functions it is very essential that the administrators are vested with discretionary powers to form
an intensive form of government. But the powers conferred by legislatures to executives must
not be uncontrolled and unguided. There must be restrictions and procedure for the actions so
that they don’t become unreasonable. This should be done to prevent violation of rights of the
people also.

18