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TMI Blog1988 (7) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... d object and purpose of the Andhra Pradesh Districts (Formation) Act, 1974, as amended by the Andhra Pradesh Districts (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 thereof is as under: "On a careful review of the socio-economic development of the State for the last 20 yearsthe 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 administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petitions were heard by one Division Bench and the others by another, both the Benches being presided over by Raghuvir, 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 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggestions and objections received in response to the preliminary notification issued under Section 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 considerations. Nor can it be said that the impugned action would result in arbitrariness or absence of airplay or discrimination. 6. 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 Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Panchayats 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 the Headquarters to Gollamamidada. We find it difficult to subscribe to this line of reasoning adopted by the High Court. 8. In Civil Appeal 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 be 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thereunder 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 Collectors 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... degree or standard of control would then be excercised 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. 13. 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 statute had to be considered to determine the area of power possessed. 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 Article 226 of the Constitution. Substantially, the argument is that the guidelines framed by the State Government have a statutory force inasmuch as the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 unfetteredation 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 improperly or mistakenly." 14. In order to appreciate the contentions advanced, it is necessary to refer to the relevant statutory provisions bearing on the questions involved. Sub-section (1) of Section 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 districts with such limits as may be specified therein; and each district shall consist of such 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-section (2) thereof provides that the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the preliminary and final notifications in the Official Gazette. Rule 3 insofar as material reads: "3(1) Where any action is proposed to be taken by the Government under sub-section (1) or sub-section (2) of Section 3 of the Act 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-section (1) or sub-section (2) of Section 3 of the Act the Collector concerned shall forward to the Government his report with his views together with the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 introduction 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 Magistrates. Appendix I to the White Paper formulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost 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 accessible 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mus 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 Edition, 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 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 anybody, and cannot, therefore, be enforced even by writs under Article 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 Article 226 of the Constitution where the non-observance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or location of its Headquarters was with the Government. It was for that reason that the Government issued the preliminary notification under sub-section (5) of Section 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 Panchayats 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-section (5) of Section 3 of the Act. There is nothing on record to show that the decision of the State Government in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 irrelvant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Aidous and John Alder, p. 105; and D.C.M. Yardley's Principles of Administrative Law, 2nd Edn., pp. 65-67. 21. 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Padfleld's case was underlined by Lord Denning in Breen v. Amalgamated Engineering Union LR (1971) 2 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 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 person amenable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting to exercise a power it does not possess; irrationality, where the decision-making authority has acted so unreasonably that no reasonable authority would have made the decision; 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 common law and not a statutory source, it should for that reason be immune from judicial review, and observed : "Judicial review has Ithink 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'." 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 sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled, albeit in a different context, the clanking of medieval chains of the ghosts of the past." 27. The effect of all these decisions is admirably summed up by Grahame Aldous and John Alderin 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, hut 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 Unions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assumed that the designated authority would act property 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." 29. 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 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-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 pahchayats and the general public. Even assumin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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