TMI Blog1988 (7) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ving any statutory force, which did not give rise to any legal right in favour of the writ petitioners. Appeal allowed. - 3710-15 of 1986 - 1979-85/86 & 1987-89/86 - Dated:- 28-7-1988 - A.P. Sen and B.C. Ray, JJ. REPRESENTED BY: Dr. Y.S. Chitale and S/Shri U.R. Lalit and C.S. Vaidyanathan, for the Appellants. Shri T.V.S.N. Chari, for the State Government. [Judgment per : A.P. Sen, J.]. - These appeals by special leave and the connected special leave petitions directed against the various judgments and orders of the Andhra Pradesh High Court involve a question of principle, and relate to location of Mandal Headquarters in the State of Andhra Pradesh under Section 3(5) of the Andhra Pradesh Districts (Formation) Act, 1974. The main issue involved is whether location of Mandal Headquarters was a purely governmental function and therefore not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. In the present cases we are concerned with the location of 12 Revenue Mandal Headquarters. 2. The avowed object and purpose of the Andhra Pradesh Districts (Formation) Act, 1974, as amended by the Andhra Pradesh Districts (Formation) Ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taluks and firkas. Pursuant to their powers under sub-section (1) of Section 3 of the Andhra Pradesh Districts (Formation) Act, as amended by Act 14 of 1985, the State Government, by notification published in the Official Gazette, after following the procedure laid down in sub-section (5) thereof divided the State for the purpose of revenue administration into 23 Revenue Districts with such limits as specified therein. Each such district consisted of Revenue Divisions and each Revenue Division consisted of Revenue Mandals. The 23 districts now comprise of 1104 Revenue Mandals. 4. As many as 124 petitions under Article 226 of the Constitution were filed in the High Court by individuals and gram panchayats questioning the legality and propriety of the formation of certain Revenue Mandals, and particularly location of Mandal Headquarters, abolition of certain Mandals or shifting of Mandal Headquarters, as notified in the preliminary notification issued under sub-section (5) of Section 3, deletion and addition of villages to certain mandals. Some of the writ petitions were heard by one Division Bench and the others by another, both the Benches being presided over by Raghuvir, J. who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Taluk Headquarters in the final notification, it was held that in such a case publication of the final notification could not be sustained and it was for the Government to give reasons for such deviation. The decision proceeded on the principle that where guidelines are issued regulating the manner in which a discretionary power is to be exercised, the Government is equally bound by the guidelines. If the guidelines were violated, it was for the Government to offer explanation as to why the guidelines were deviated from. We are afraid, there is no such inflexible rule of universal application. The learned Judges failed to appreciate that the guidelines issued by the State Government had no statutory force and they were merely in the nature of executive instructions for the guidance of the Collectors. On the basis of such guidelines the Collectors were asked to forward proposals for formation of Revenue Mandals and for location of Mandal Headquarters. The proposals so forwarded by the Collectors were processed in the Secretariat in the light of the suggestions and objections received in response to the preliminary notification issued under Section 3(5) of the Act and then plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dal Headquarters at a particular place but also directed the shifting to another place. In Civil Appeal Nos. 1980 and 1985 of 1986, in formation of Gollamamidada Manda, Gollamamidada was shown as the proposed Headquarters in the preliminary notification, but Pedapudi was selected to be the place of Headquarters in the final notification. Gollamamidada secured 23 marks as compared to 18 marks secured by Pedapudi. The Collector relaxed the guideline because, it was stated, 12 out of 17 Panchayats opted for Pedapudi to be the Headquarters presumably because Gollamamidada was at one end of the Mandal and out of 17 villages comprised In the Mandal, 10 villages were at a distance of 7 to 14 kilometres and there were no proper travelling facilities and therefore it was beyond the reach of the common man. Allowing the writ petition, the High Court observed: On evaluation of the sketch, we hold that neither of the two villages is centrally located . It went on to say that the guidelines prescribed by the Government bind the Government and cannot be relaxed and there was no reason forthcoming for supersession of the claim of the village Gollamamidada by Pedapudi . Although the Cabinet Sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adquarters issued under sub-section (5) of Section 3 of the Act on the ground that there was a breach of the guidelines, directed the Government to reconsider the question after hearing the parties. 10. We have had the benefit of hearing learned counsel for the parties on various aspects of this branch of administrative law as to the nature and scope of the guidelines and whether their non-observance was justiciable. The learned counsel with their usual industry placed before us a large number of authorities touching upon the subject. On the view that we take, it is not necessary for us to refer to them all. 11. Shri T.V.S.N. Chari, learned counsel appearing on behalf of the State Government followed by Dr. Y.S. Chitale, Shri U.R. Lalit and Shri C.S. Vaidyanathan, learned counsel appearing for the appellants in cases where the High Court has interfered have, in substance, contended that suitability as to the location of Mandal Headquarters is for the Government to decide and not for the High Court. They contend that the High Court faded to view the case from a proper perspective. According to them, the guidelines are executive instructions, pure and simple, and have no statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the High Court has interfered, advanced the main argument on the legal aspect with much learning and resource and placed all the authorities on this abstruse branch of administrative law, namely, the Courts have albeit the Governmental action which involves exercise of discretionary powers, control over the exercise of such Governmental power by implying limits of reasonableness, relevance and purpose. Judicial control over the executive, or over an administrative authority, must be maintained. Such judicial control by necessary implication is reconciled with legislative intent, on the premise that the legislature never intended that the Government should have unfettered control over a certain area. He drew our attention to several recent English decisions which manifest a definite shift in the attitude of the Courts to increase their control over discretion. According to the learned counsel, the traditional position is that Courts will control the existence and extent of prerogative power i.e. Governmental power, but not the manner of exercise thereof. What degree or standard of control would then be excercised would depend upon the type of subject-matter in issue. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. Department of Trade [LR (1977) QB 643] at p. 705 to the effect: The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations : but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution . * * * * * * * * * * Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive. At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered: just as they have claimed that a discretion given by statute or by regulation is unfetteredation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act. The rules so framed shall be laid before each House of the State Legislature, etc. 15. In exercise of the powers conferred by sub-section (1) of Section 4 of the Act, the State Government framed the Andhra Pradesh Districts (Formation) Rules, 1984. The term Mandal as defined in Rule 2(iv) means a part of the district within a revenue division under the charge of a Tahsildar or Deputy Tahsildar. The expression revenue division is defined in Rule 2(v) to mean a part of the district comprising of one or more mandals under the charge of a Revenue Divisional Officer/Sub-Collector/Assistant Collector or any other officer placed in charge of a division. The word village in Rule 2(vi) means a settlement or locality or area consisting of cluster of habitations and the land belonging to their proprietary inhabitants and includes, a town or city and a hamlet (Mazra). Rule 3 lays down the matters for consideration in formation of districts, etc. Rules 4 and 5 provide for the publication of the preliminary and final notifications in the Official Gazette. Rule 3 insofar as material reads: 3(1) Where any action is proposed to be taken by the Government under sub-section (1) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterests of better administration and development of the area concerned, proposed to form a new district/revenue division/mandal as set out in the schedule appended thereto. All objections and suggestions have to be addressed to the Collector within whose jurisdiction the area or areas fall. Likewise, Form II prescribes the form of the final notification to the effect that the State Government having taken into consideration the objections and suggestions received thereon, is pleased to notify that with effect from (date) the State shall consist of the District/Revenue Division/Mandal specified in Schedule I appended thereto. There are no statutory provisions formulating the governing principles for formation of Revenue Mandals or for location of Mandal Headquarters. 16. On 25th July, 1985, the State Government published a White Paper on formation of Mandals. It was stated inter alia that the Revenue Mandals would be formed covering urban as well as rural areas unlike Panchayat Mandals which would cover only rural areas. A Revenue mandal would be demarcated for a population ranging from 35,000 to 55,000 in the case of rural mandals and was expected to cover one-third to one-fourt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areas, their requirements will be formulated according to their needs. (5) In cases of Mandal Headquarters located in urban centres which are not municipalities but with a population of 15,000 or above the total population of the Mandal would be 55,000 irrespective of population density. (6) In choosing the Headquarters of the Revenue Mandals in the rural areas,weightage may be given to the availability of the following facilities and the future growth of the place. (i) Banking facility; (ii) Communication facility - either Railway Station or Bus Stand; (iii) PHC or Sub-Centre or any Dispensary/Indian Medicine; (iv) Veterinary Dispensary; (v) Police Station; (vi) Post Office/Telephone Exchange; (vii) High School; (viii) Market Yard/Agricultural Godown; (ix) Already a Firka Headquarters; (x) Any other special qualification like availability of office accommodation, residential quarters for the staff etc. A centre having one or more of the above characteristics and more accessible to most of the villages proposed for the Mandal in comparison to any other centre should be generally selected as Headquarters. If in any mandal there is more than one centre havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment 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 Gram Panchayats and the general public, keeping in view the relevant factors. Even assuming that any breach of the guidelines was justiciable, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question. There was no warrant for the High Court to have gone further and directed the shifting of the Mandal Headquarters at a particular place. 18. Broadly speaking, the contention on behalf of the State Government is that relief under Article 226 of the Constitution is not available to enforce administrative rules, regulations or instructions which have no statutory force, in the absence of exceptional circumstances. It is well-settled that mandamus does not lie to enforce departmental manuals or instructions not having any statutory force, which do not give rise to any legal right in favour of the petitioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enables the Government to issue administrative instructions to its servants how to act in certain circumstances, but that would not make such instructions statutory rules the breach of which is justiciable. It was further held that non-observance of such administrative instructions did not give any right to a person like the appellant to come to Court for any relief on the alleged breach of the instructions. That precisely is the position here. The guidelines are merely in the nature of instructions issued by the State Government to the Collectors regulating the manner in which they should formulate their proposals for formation of a Revenue Mandal or for location of its Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper. It must be stated that the guidelines had no statutory force and they had also not been published in the Official Gazette. The guidelines were mere departmental instructions meant for the Collectors. The ultimate decision as to formation of a Revenue Mandal or location of its Headquarters was with the Government. It was for that reason that the Government issued the preliminary notification under sub-section (5) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel equated prerogative and statutory powers for this purpose, saying that in both cases alike the Courts will not review the proper exercise of discretion but will intervene to correct excess or abuse. According to him, the prerogative powers of the Crown in England are akin to the executive functions of the Union and the States under Articles 73 and 162 of the Constitution, on which we refrain from expressing any final opinion. Prima facie, it seems to us that the executive powers of the Union and the States under Articles 73 and 162 are much wider than the prerogative powers in England. We would refer to a couple of English decisions from amongst those to which we were referred to during the arguments. 20. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work Judicial Review of Administrative Action 4th Edn., at pp. 285-287 states the law in his own terse language. The relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to questions of vires in the narrowest sense of the term. They can determine whether the prerogative power exists, what is its extent, whether it has been exercised in the appropriate form and how far it has been superseded by statute; they have not normally been prepared.to examine the appropriateness or adequacy of the grounds for exercising the power, or the fairness of the procedure followed before the power is exercised, and they will not allow bad faith to be attributed to the Crown." Although the weight of authority in England favours only narrow grounds for judicial review of the exercise of prerogative powers, there is not a total absence of support for the view that in some circumstances at least the Court may apply somewhat broader standards of review. See : De Smith s Judicial Review of Administrative Action, 4th Edn., pp. 285-287; H.W.R. Wade s Administrative Law, 5th Edn., pp 350 ets. eq.; Foulkes Administrative Law, 6th Edn., pp. 213-215, 219-225; Applications for Judicial Review, Law and Practice by Grahame 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Minister had acted unlawfully if he had declined to supply any justification at all for his decision : De Smith s Administrative Law, 4th Edn., p. 294. More recently, in Laker Airways case and in Secretary of State for Education and Science v. Tameside M.B.C. LR (1977) AC 1014 both the Court of Appeal and the House of Lords have set aside as ultra vires the exercise of discretion that included a substantial subjective element. In Padfleld s case, the scarcely veiled allusion to fear of parliamentary trouble was, in particular, a political reason which was quite extraneous and inadmissible. Lord Reid during the course of his judgment emphatically and unequivocally rejected the contention that the discretion of the Minister was absolute, in these words : Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason, so uses his discretion as to thwart or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s can examine the exercise of them so as to see that they are not used improperly or mistakenly. This observation has given rise to considerable debate. 24. The majority, however, proceeded on a narrower basis concluding that the Civil Aviation Act, 1971 had impliediy superseded the Crown s prerogative in foreign affairs, and that the holder of a licence under the statute could not be deprived of its commercial value by a decision on the part of the Secretary to State or revoke the licensee s status as a designated carrier under the Bermuda Agreement. In other respects, the majority accepted the orthodox position on the unreviewability of the exercise of the prerogative, per Roskill and Lawton, L.JJ. Lord Denning however went further and held that the Court could intervene if a Minister plainly misdirects himself in fact or in law . 25. Another important case in this context is R.V. Criminal Injuries Compensation Board, ex p. Lain (1967) 2 QB 864. The question in this case was whether payments made by the Board to victims of crime were subject to judicial review. The difficulty was that Lord Reid s phrase power to make decisions affecting rights in Ridge v. Baldwin (1964) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egally enforceable. 26. In Council of Civil Service Unions Ors. v. Minister for the Civil Service (1984) 3 All. E.R. 935 the House of Lords reiterated broader standards of review of the exercise of prerogative powers. The principles deducible are clearly brought out in the headnote extracted below: (1) Powers exercised directly under the prerogative are not by virtue of their prerogative source automatically immune from judicial review. If the subject matter of a prerogative power is justiciable then the exercise of the power is open to judicial review in the same way as a statutory power. However (per Lord Roskill), prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers are not justiciable or reviewable. (2) Administrative action is subject to control by judicial review under three heads : illegality, where the decision-making authority has been guilty of an error of law, e.g. by purporting to exercise a power it does not possess; irrationality, where the decision-making authority has acted so unreasonably that no reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no doubt Inad-vertently he omitted the opening words of the paragraph : In the exercise therefore of those prerogatives, which the law has given him, the King is irrasistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just-and severe account. : In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field. But, fascinating as it is to explore this mainstream of our legal history, to do so in connection with the present appeal has an air of realty. To speak today of the acts of the sovereign as irresistible and absolute when modern constitutional convention requires that all such acts are done by the sovereign on the advice of and will be carried out by the sovereign s ministers currently power is surely to hamper the continual development of our administrative law by-harking back to what Lord Atkin once called, albeit in a different context, the clanking of medieval chains of the ghosts of the past." 27. The effect of all these de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es would the Courts be prepared to apply to the exercise by the Crown of some non-statutory powers the same criterion for review was would be applicable were the discretion conferred by statute, in the ultimate analysis, the present trend of judicial opinion in England on the question as to whether a prerogative power is reviewable or not depends on whether its subject-matter is suitable for judicial control. All that we need is to end this part of the judgment by extracting the cautionary note administered by H.W.R. Wade in his Administrative Law, 5th Edn. at p. 352 in these words: Oh the one hand, where Parliament confers power upon some minister or other authority to be used in discretion, it is obvious that the discretion ought to be that of the designated authority and not that of the court. Whether the discretion is exercised prudently or imprudently, the authority s word is to be law and the remedy is to be political only. On the other hand, Parliament cannot be supposed to have intended that the power should be open to serious abuse. It must have assumed that the designated authority would act property and responsibly, with a view to doing what was best in the public I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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