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PETITIONER: J.R. RAGHUPATHY, ETC.

       Vs.

RESPONDENT: STATE OF A.P. & ORS. ETC.

DATE OF JUDGMENT28/07/1988

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1988 AIR 1681            1988 SCR  Supl. (1) 694  1988 SCC  (4) 364        JT 1988 (3)   313  1988 SCALE  (2)218  CITATOR INFO :  RF         1992 SC 836  (7)

ACT:      Andhra Pradesh  Districts (Formation) Act, 1974-Whether location of  Revenue Mandal  Headquarters under  Sub-Section (5) of  Section 3  of-Was amenable  to Writ  jurisdiction of High Court.

HEADNOTE:      These appeals  by Special  Leave  and  a  petition  for Special leave  arose out  of different judgments of the High Court. The  main issue  involved was whether the location of Revenue Mandal  Headquarters in  the State of Andhra Pradesh under S.  3(5) of  the Andhra  Pradesh District  (Formation) Act, 1974,  was a purely governmental function, not amenable to the writ jurisdiction of the High Court.      Writ  Petitions   were  filed  in  the  High  Court  by individuals and gram panchayats questioning the legality and propriety of  the formation  of certain  Revenue Mandals and location  of   certain  Mandal   Headquarters  notified   in preliminary notification  issued under sub-s. (5) of Section 3 of  the Act.  In some  cases, the  High Court  declined to interfere with  the location of Mandal Headquarters, holding that the  government was the best judge of the situation, or on the  ground that  there was  a breach  of  guidelines  it directed  the  Government  to  reconsider  the  question  of location of the Mandal Headquarters. In some cases, the High Court quashed  the final  notification for  location of  the Mandal Headquarters  at a  particular  place,  holding  that there was  a breach  of guidelines  based on  the system  of marking and  also on  the ground  that there were no reasons disclosed for  deviating from  the preliminary  notification for location of the Mandal Headquarters at another place.      Allowing Civil Appeal Nos. 1980, 1982, 1985 and 1987 of 1986 and  all other  appeals  and  Special  Leave  Petitions directed against  the judgments  of the  High Court, whereby the High  Court had  interfered with  the  location  of  the Mandal Headquarters, the Court, ^      HELD: It  was difficult  to sustain the interference by the High  Court in  some of  cases with  the location of the

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Mandal  Headquarters   and  the  quashing  of  the  impugned notification on  the ground that the Government had acted in breach of the guidelines in that one place or 695 the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters  should be fixed at a particular place with a view  to developing  the areas  surrounded by  it or  that merely because  a particular  person who  was an influential Member of  Legislative Assembly  belonging to  the party  in opposition had  the right  of representation  but failed  to avail of  it. The location of Headquarters by the Government by the issue of the final notification under sub-s (5) of s. 3 of  the Act  was on  a consideration  by the  Cabinet Sub- Committee of  the  proposals  submitted  by  the  Collectors concerned and  the objections  and suggestions received from the local  authorities like  Gram Panchayats and the general public, keeping  in view the relevant factors. Even assuming that any  breach of  the guidelines  for the location of the Mandal Headquarters  was justiciable,  the utmost  that  the High Court  could  have  done  was  to  quash  the  impugned notification in  a particular case and direct the Government to reconsider  the question.  There was  no warrant  for the High Court  to have  gone further and direct the shifting of the Mandal Headquarters at a particular place. [711B-E]      The guidelines are merely in the nature of instructions issued by  the State Government to the Collectors regulating the manner  in which  they should  formulate their proposals for formation of a Revenue Mandal or for the location of its Headquarters keeping  in view the broad guidelines laid down in Appendix  I to  the White  Paper issued by the Government laying down  the broad  guidelines. The  guidelines  had  no statutory force  and they had also not been published in the Official Gazette.  They were  mere departmental instructions for  the   Collectors.  The  ultimate  decision  as  to  the formation  of   a  Revenue   Mandal  or   location  of   its Headquarters was with the Government. It was for that reason that the  Government issued  preliminary notification  under sub-s (5)  of section  3 of  the  Act.  Deviation  from  the guidelines in some of the aspects was usually for reasons of administrative convenience  keeping in  view the purpose and object of the Act i.e. to bring the administration nearer to the people.  There was  nothing on  record to  show that the decision of  the  Government  in  any  of  these  cases  was arbitrary or capricious or was one not reached in good faith or actuated  with improper  considerations or  influenced by extraneous considerations. In a matter like this, conferment of discretion upon the Government in the matter of formation of a  Revenue Mandal  or location of its Headquarters in the nature of  things necessarily  leaves the  Government with a choice in  the use  of the  directions  conferred  upon  it. [713A-F]      It was  difficult to  sustain the judgments of the High Court in the 696 cases where  it had  interfered with  the location of Mandal Headquarters and  quashed the  impugned notifications on the ground that  the Government  had  acted  in  breach  of  the guidelines in that one place or the other was more centrally located or  that location  at the  other place would promote general public  convenience or  that the Headquarters should be fixed at a particular place with a view to developing the area surrounded  by it.  The location of Headquarters by the Government by the issue of the final notification under sub- section (5)  of Section  3 of the Act was on a consideration

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by the  Cabinet Sub-Committee  of the proposals submitted by the Collectors  concerned and the objections and suggestions received from the local authorities like the gram panchayats and the  general public.  Even assuming  that the Government while accepting  the recommendations  of  the  Cabinet  Sub- Committee directed that the Mandal Headquarters should be at one place rather than at another place as recommended by the Collector concerned  in a  particular case,  the High  Court would not  have issued  a writ  in the nature of mandamus to enforce  the   guidelines  which   were  nothing  more  than administrative instructions  not having any statutory force, which did  not give rise to any legal right in favour of the writ petitioners.  The petitions  filed under Article 226 of the Constitutions  before the  High  Court  were  dismissed. [723G-H; 724A-D]      Gram Panchayat,  Chinna Madur  & Orr. v. The Government of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362; C.J. Fernandez v.  State of  Mysore &  Ors., [1967] 3 S.C.R. 636; Padfield v.  Minister of  Agriculture Fisheries  & Food,  LR 1968 AC  997; Laker  Airways Ltd. v. Department of Trade, LR 1967 QB  643 at  705; Council  of Civil  Service Unions  and Others v.  Minister for  the Civil  Service, [1984] 3 All ER 935 (RL);  Secretary of  State for  Education and Science v. Tameside M.B.C.,  LR 1977  AC  1014;  Breen  v.  Amalgamated Engineering Union,  LR 1971  2 QB  175 at 190; R.V. Criminal Injuries Compensation  Board, explain,  [1967] 2  QB 864 and Ridge v. Baldwin, [1964] AC 40, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1979-85 of 1986 etc. etc.      From     the      Judgment     and      Order     dated 12.2.1986/28.2.1986/49.1.1986 and  5.2.1986  of  the  Andhra Pradesh High  Court in  W.P. Nos.6063,  5379, 9908, 7836 and 5379 of 1985.      Seetaramaiah, A.S.  Nambyar,  R.N.  Keshwani,  T.V.S.N. Chari, Ms.  Vrinda Grover,  S. Mudigonda,  C.S. Vaidanathan, S.R. 697 Sethia, Vimal Dave, B. Rajeshwara Rao, Jitendra Sharma, G.N. Rao, T.C. Gupta, B.P. Sarathi, A. Subba Rao and B. Kanta Rao for the appearing parties.      The Judgment of the Court was delivered by      SEN,  J.   These  appeals  by  special  leave  and  the connected  special  leave  petitions  directed  against  the various judgments  and orders  of the  Andhra  Pradesh  High Court  involve  a  question  of  principle,  and  relate  to location of  Mandal Headquarters  in  the  State  of  Andhra Pradesh under  s.  3(5)  of  the  Andhra  Pradesh  Districts (Formation) Act,  1974. The  main issue  involved is whether location of  Mandal Headquarters  was a  purely governmental function and therefore not amenable to the writ jurisdiction of the High Court under Art. 226 of the Constitution. In the present cases  we are  concerned with  the  location  of  12 Revenue Mandal Headquarters.      The avowed  object and  purpose of  the Andhra  Pradesh District (Formation)  Act, 1974,  as amended  by the  Andhra Pradesh  District   (Formation)  Amendment   Act,  1985   as reflected in  the long title, was to bring about a change in the  Revenue  Administration  with  a  view  to  ’bring  the administration nearer  to the  people and to make all public services easily  available  to  them’.  The  change  in  the Revenue Administration  was so  achieved by  the creation of

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Revenue Mandals  in place  of taluks and firkas. The purpose of the  legislation is  brought  out  in  the  Statement  of Objects and Reasons, a relevant portion whereof is as under:           "On  a   careful  review   of  the  socio-economic           development of the State for the last 20 years the           State Government  felt it  necessary to  take  the           administration nearer to the people. It was of the           opinion that  the only method to be adopted by the           Government for a better Revenue Administration and           to serve  the interests  of the  people in  a more           effective and  suitable manner was by formation of           the Mandals  in place of taluks and firkas. It was           of   the   view   that   a   decentralisation   of           administration and  reduction in  its levels would           be conducive to a more efficient implementation of           administration which brings the involvement of the           people,  particularly  in  the  implementation  of           several welfare  measures of  the Government,  and           especially to  uplift the conditions of the weaker           sections of  the society.  It also felt that there           was urgent necessity to review its 698           activities and services and welfare programmes and           that they  should  be  extended  to  the  interior           regions and  that the  creation of  Mandals with a           population ranging  from 35,000  to  55,000  based           upon density  of population  would be an effective           method for  providing  better  facilities  to  the           people at lesser cost and greater convenience. The           avowed  object   was  therefore   to  ’bring   the           administration nearer  to the  people and  to make           all public  services easily  available  to  them’.           This was  achieved  by  the  creation  of  Revenue           Mandals in place of taluks and firkas."      To implement  the decision  of the  Government, on 11th January, 1984  the Governor  of Andhra  Pradesh  accordingly promulgated Ordinance  No. 22  of 1984.  This Ordinance  was later replaced  by Ordinance  No. 5  of 1985 inasmuch as the earlier  Ordinance   could  not   be  reintroduced   due  to dissolution of  the Legislative  Assembly. The Ordinance was later replaced  by  Act  No.  14  of  1985.  The  change  in administration was brought about by amending s. 3 of the Act by introducing  the word  ’mandals’ in  place of  taluks and firkas. Pursuant to their powers under sub-s. (1) of s. 3 of the Andhra  Pradesh Districts (Formation) Act, as amended by Act 14  of  1985,  the  State  Government,  by  notification published in  the  official  gazette,  after  following  the procedure laid  down in  sub-s.(5) thereof divided the State for the  purpose of  revenue administration  into 23 Revenue District with  such limits  as specified  therein. Each such district consisted  of Revenue  Divisions and  each  Revenue Division consisted  of Revenue Mandals. The 23 districts now comprise of 1104 Revenue Mandals.      As  many  as  124  petitions  under  Art.  226  of  the Constitution were filed in the High Court by individuals and gram panchayat questioning the legality and propriety of the formation  of  certain  Revenue  Mandals,  and  particularly location  of   Mandal  Headquarters,  abolition  of  certain Mandals or  shifting of  Mandal Headquarters, as notified in the preliminary  notification issued  under sub-s. (5) of s. 3, deletion  and addition  of villages  to certain  mandals. Some of  the writ petitions were heard by one Division Bench and the  others by  another, both the Benches being presided over by  Reghuvir, J.  who has  delivered all the judgments. Incidentally, there  is no  statutory provision  relating to

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location of  Mandal Headquarters  and the matter is governed by GOMs dated 25th July, 1985 issued by the State Government laying down  the  broad  guidelines  for  the  formation  of Mandals and  also for  location of  Mandal Headquarters. The learned Judges  upheld the  validity of formation of Mandals as also the aforesaid GOMs and in some 699 cases they declined to interfere with the location of Mandal Headquarters holding  that the Government was the best judge of the situation or on the ground that there was a breach of the guidelines,  and directed  the Government  to reconsider the question of location of Mandal Headquarters. However, in other cases  the learned Judges have gone a step further and quashed  the  final  notification  for  location  of  Mandal Headquarters at  a particular place holding that there was a breach of  the guidelines based on the system of marking and also on  the ground that there were no reasons disclosed for deviating from  the preliminary  notification,  and  instead directed the  Government to  issue a  fresh notification for location of Mandal Headquarters at another place. One of the arguments advanced  before us  in the  cases where  the High Court has  declined to interfere is that both the High Court and the  State Government  should  have  applied  a  uniform standard in  dealing with  the question  and generally it is said that  the State  Government should  at  any  rate  have adhered to  the guidelines  in fixing the location of Mandal Headquarters   without    being   guided    by    extraneous considerations.      Myriad are  the facts.  It is  not necessary  for us to delve into the facts in any detail. It would suffice for our purposes to  touch upon  the facts  in some  of the cases to present the rather confusing picture emerging as a result of conflicting directions  made by  the High  Court. It appears that Raghuvir,  J.  relied  upon  the  underlying  principle emerging from  his earlier  decision delivered  on behalf of himself and  Sriramulu, J.  in the  Gram  Panchayat,  Chinna Madur &  Ors. v.  The Government of Andhra Pradesh, [1986] 1 Andhra Weekly  Reporter 362  which he  calls as the ’Chandur principle’. In  that case  following the earlier decision of the High Court where a place called Chandur was not shown in the preliminary  notification for  formation of a taluk, but was chosen  to  be  the  place  of  location  of  the  Taluk Headquarters in  the final notification, it was held that in such a  case publication of the final notification could not be sustained  and it  was for the Government to give reasons for such  deviation. The decision proceeded on the principle that where  guidelines are  issued regulating  the manner in which  a   discretionary  power  is  to  be  exercised,  the Government is  equally  bound  by  the  guidelines.  If  the guidelines were violated, it was for the Government to offer explanation as  to why the guidelines were deviated from. We are afraid,  there is  no such  inflexible rule of universal application. The  learned Judges  failed to  appreciate that the  guidelines  issued  by  the  State  Government  had  no statutory force  and they  were  merely  in  the  nature  of executive instructions  for the  guidance of the Collectors. On the basis of such guidelines the Collectors 700 were asked  to forward  proposals for  formation of  Revenue Mandals  and   for  location  of  Mandal  Headquarters.  The proposals so  forwarded by  the Collectors were processed in the  Secretariat   in  the  light  of  the  suggestions  and objections  received   in  response   to   the   preliminary notification issued under s. 3(5) of the Act and then placed before a  Cabinet Sub Committee. The ultimate decision as to

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the place  of location  of Mandal  Headquarters was  for the Government to  take. It  cannot be  said that  in any of the cases the  action of  the Government  for location  of  such Mandal Headquarters was mala fide or in bad faith or that it proceeded on  extraneous consideration.  Nor can  it be said that the  impugned action  would result  in arbitrariness or absence of fairplay or discrimination.      We must  next refer  to the facts in a few illustrative cases. In  the Gram Panchayat, Chinna Madur’s case, although in the  preliminary notification issued under s. 3(5) of the Act for  formation of  Devaruppalla Mandal, Chinna Madur was proposed as the Mandal Headquarters, the Revenue authorities in the  final  notification  declared  Devaruppalla  as  the Mandal Headquarters.  In the  writ petition,  the High Court produced the  records and  it showed  that both Devaruppalla and  Chinna   Madur  provided   equal   facilities   as   to communication, transport,  veterinary hospital, bank, school etc. and  secured 15  marks each.  The Government  preferred Devaruppalla  as  Chinna  Madur  was  inaccessible  in  some seasons as  that village was divided by two rivers from rest of  the   villages.  Devaruppalla   besides  is  located  on Hyderabad-Suryapet Highway  which was  considered  to  be  a factor  in   its  favour.   After  reiterating  the  Chandur principle that  it is for the Government to give reasons for such deviation,  the learned  Judges declined  to interfere, observing:           "In the  instant case,  the record  produced shows           the authorities  considered the comparative merits           of Devaruppalla  and  Chinna  Madur.  The  Revenue           authorities  applied   the  correct   indicia   of           accessibility in  all seasons. Other facilities of           the two  villages were  discussed at length in the           record. Having regard to the overwhelming features           in favour of Devaruppalla the village was declared           as head quarters."      We have  referred to  the facts of this case because it highlights the approach of the High Court and it has assumed to itself  the function  of the  Government in  weighing the comparative merits and demerits in the matter of location of the Mandal Headquarters. 701      The same infirmity unfortunately permeates through some of the  judgments where  the High  Court has  interfered. In some of  the cases  the High  Court has gone further and not only quashed  the impugned  notification for location of the Mandal Headquarters  at a particular place but also directed the shifting  to another  place. In  Civil Appeals Nos. 1980 and 1985  of 1986,  in formation  of  Gollamamidada  Mandal, Gollamamidada was  shown as the proposed Headquarters in the priliminary notification,  but Pedapudi  was selected  to be the  place   of  Headquarters  in  the  final  notification. Gollamamidada secured  23 marks  as  compared  to  18  marks secured by  Pedapudi. The  Collector relaxed  the  guideline because, it  was stated,  12 out  of 17  Panchayat opted for Pedapudi  to   be  the   Headquarters   presumably   because Gollamamidada was  at one  end of  the Mandal  and out of 17 villages comprised  in the  Mandal, 10  villages were  at  a distance of  7 to  14 kilometres  and there  were no  proper travelling facilities  and therefore it was beyond the reach of the  common man.  Allowing the  writ petition,  the  High Court observed:  "On evaluation  of the sketch, we hold that neither of  the two  villages is centrally located". It went on to  say that "the guidelines prescribed by the Government bind the  Government and  cannot be relaxed and there was no reason forthcoming  for supersession  of the  claim  of  the

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village Gollamamidada by Pedapudi." Although the Cabinet Sub Committee  had   directed  the   variation  on   grounds  of administrative convenience and for the reason that 12 out of 17 Gram  Panchayats had resolved that Pedapudi should be the Headquarters, the High Court quashed the notification saying that the  resolution of the Gram Panchayat might be relevant for consideration,  but in  law it  was not  decisive of the question. It  further observed that there was no explanation as to  why  the  place  of  location  as  specified  in  the preliminary notification was varied and accordingly directed the shifting  of Headquarters  to Gollamamidada.  We find it difficult to  subscribe to this line of reasoning adopted by the High Court.      In Civil  Appeals Nos.  1982  and  1987  of  1986,  the judgment of  the High Court suffers from the same infirmity. In the  preliminary  as  well  as  final  notification,  for formation of  Kalher Revenue  Mandal, Kalher was declared to the Mandal  Headquarters. Kalher secured 14 marks as against Sirgapur which  secured 22 marks. The High Court quashed the notification for  location of the Headquarters at kalher and directed the shifting of the Headquarters to Sirgapur on the basis of  the Collector’s  note appended  to the  file which stated:           "As per  the guidelines,  the Mandal  Headquarters           may have  to be  fixed  at  Sirgapur  and  not  at           Kalher. Sirgapur has 702           scored 22  points whereas  the score  of Kalher is           only 14.  Sirgapur  is  undoubtedly  the  zone  of           influence for  this Mandal.  Moreover, Sirgapur is           centrally located  and has better road connections           with the  rest of  the  villages,  besides  having           maximum infrastructural facilities."      The High  Court observed that no record was produced as to why  the Government did not act on the note placed on the file.      It will  serve no useful purpose to delineate the facts in all  the cases  which follow  more or  less on  the  same lines. We  are of  the opinion  that the  High Court  had no jurisdiction to sit in appeal over the decision of the State Government to locate the Mandal Headquarters at a particular place.  The  decision  to  locate  such  Headquarters  at  a particular village  is dependent  upon various  factors. The High Court  obviously could  not  evaluate  for  itself  the comparative merits  of a  particular place  as  against  the other for  location of  the Mandal  Headquarters. In some of the cases  the High  Court declined to interfere saying that the Government  was the  best judge  of the situation in the matter of location of Mandal Headquarters. However, in a few cases  the   High  Court   while   quashing   the   impugned notifications for  location of  Mandal  Headquarters  issued under sub-s. (5) of s. 3 of the Act on the ground that there was a  breach of  the guidelines, directed the Government to reconsider the question after hearing the parties.      We have  had the benefit of hearing learned counsel for the  parties   on  various   aspects  of   this  branch   of administrative law  as  to  the  nature  and  scope  of  the guidelines and whether their non-observance was justiciable. The learned  counsel with their usual industry placed before us a  large number of authorities touching upon the subject. On the  view that  we take,  it is  not necessary  for us to refer to them all.      Shri  T.V.S.N.  Chari,  learned  counsel  appearing  on behalf of the State Government followed by Dr. Y.S. Chitale, Shri U.R.  Lalit and Shri C.S. Vaidyanathan, learned counsel

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appearing for  the appellants  in cases where the High Court has  interfered   have,   in   substance,   contended   that suitability as to the location of Mandal Headquarters is for the Government  to decide  and not  for the High Court. They contend that  the High  Court failed to view the case from a proper perspective.  According to  them, the  guidelines are executive  instructions,   pure  and  simple,  and  have  no statutory force.  It  was  pointed  out  that  there  is  no statutory provision  made either  in the  Act or  the  Rules framed there- 703 under laying  down the  manner in  which the location of the Headquarters of  a  Revenue  Mandal  was  to  be  made.  The Legislature has  left the  matter of selection of a place to be the  Mandal Headquarters  to the  discretion of the State Government and  it was  purely a Governmental function based on administrative  convenience. The  Government  accordingly issued a  White Paper  laying down  the broad  guidelines as contained in Appendix I thereto. The Collector were required to forward  their proposals for formation of Revenue Mandals indicating  the  place  where  the  Headquarters  should  be located in  accordance with  the principles laid down in the guidelines based  on  a  system  of  marking.  Although  the Collectors were  required to  propose the location of Mandal Headquarters at  a particular  place on a system of marking, but that was not determinative of the question. If the marks were to be the sole criterion, then there was no question of inviting objections  and suggestions.  The ultimate decision therefore  lay   with  the  Government  and  in  making  the selection the  Government had  the duty  to ensure  that the place located  for location  of Mandal Headquarters promoted administrative  convenience   and  further  the  object  and purpose of the legislation in bringing about a change in the Revenue administration  viz. (i) to bring the administration nearer to  the people  and (ii)  to make all public services easily available to them, the main criterion as laid down in the guidelines being suitability and accessibility. Further, the learned  counsel  contended  that  the  High  Court  was clearly in  error in  substituting its  judgment for that of the State Government. Non-observance of the guidelines which were  in  the  nature  of  executive  instructions  was  not justiciable. In  any event,  the High  Court could  not have issued a  direction requiring  the Government  to shift  the Headquarters of  a Revenue Mandal from a particular place to another place  on its  own  evaluation  of  the  comparative merits and  demerits merely  on the  basis of  marking.  The learned counsel  relied upon  G.J.  Fernandez  v.  State  of Mysore &  Ors., [1967]  3 SCR 636 and other decisions taking the same view.      We had  an equally persuasive reply to these arguments. Shri  Seetaramaiah,   learned  counsel   appearing  for  the respondents in  cases where  the High  Court has interfered, advanced the  main argument  on the  legal aspect  with much learning and resource and placed all the authorities on this abstruse branch  of administrative  law, namely,  the Courts have albeit  the Governmental action which involves exercise of discretionary  powers, control  over the exercise of such Governmental power  by implying  limits  of  reasonableness, relevance and  purpose. Judicial control over the executive, or over  an administrative  authority, must  be  maintained. Such judicial control by necessary impli- 704 cation is reconciled with legislative intent, on the premise that the  legislature never  intended  that  the  Government should have  unfettered control over a certain area. He drew

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our attention  to several  recent  English  decisions  which manifest a  definite shift  in the attitude of the Courts to increase their  control over  discretion. According  to  the learned counsel,  the traditional  position is  that  Courts will control  the existence  and extent of prerogative power i.e. governmental  power, but  not the  manner  of  exercise thereof. What  degree or  standard of  control would then be exercised would  depend upon  the type  of subject-matter in issue. He  submits that  there is  increasing willingness of the Courts  to assert  their power to scrutinise the factual bases upon which discretionary powers have been exercised.      It is said that the Court is not powerless to intervene where the  decision of  the Government  is reached by taking into account  factors that  were legally  irrelevant  or  by using its  power in a way calculated to frustrate the policy of the  Act. It  follows that  the nature  and object of the status had  to be  considered to determine the area of power possesed. It  is urged that the remedy of a writ of mandamus is available  if a  decision is reached by the Government on the basis  of irrelevant considerations or improper purposes or for other misuse of power. Upon that premise, he does not accept that  the High Court had no jurisdiction to interfere with the  orders passed  by the  State  Government  for  the location of  the Headquarters of a Revenue Mandal under Art. 226 of the Constitution. Substantially, the argument is that the  guidelines  framed  by  the  State  Government  have  a statutory  force   inasmuch  as  the  power  to  issue  such administrative directions  or instructions to the Collectors is  conferred   by  the   provisions  of   the  Act  itself. Alternatively, he  says that  even  though  a  non-statutory rule, bye-law or instruction may be changed by the authority who made  it without  any formality and it cannot ordinarily be enforced  through a  Court of law, the party aggrieved by its non-enforcement  may nevertheless  get relief under Art. 226 of the Constitution where the non-observance of the non- statutory rule  or practice would result in arbitrariness or absence of  fairplay or  discrimination, particularly  where the authority  making such  non-statutory rule-or  the like- comes within  the definition  of ’State’  under Art.  12. In substance, the contention is that the principle laid down in the classical  decision of the House of Lords in Padfield v. Minister of  Agriculture, Fisheries  & Food,  LR 1968 AC 997 that the  Courts will  control  the  exercise  of  statutory powers by  the Minister,  still prevails  over  exercise  of discretionary powers by the Government. The general approach now is  for the  Courts to  require that the Government must produce reasonable grounds for its action, even where the 705 jurisdictional fact  is subjectively  framed.  He  drew  our attention to  the observations of Lord Denning M.R. in Laker Airways Ltd.  v. Department  of Trade,  LR 1977 QB 643 at p. 705 to the effect:           "The  prerogative   is   a   discretionary   power           exercisable by  the executive  government for  the           public good,  in certain  spheres of  governmental           activity for  which the law has made no provision,           such as  the war  prerogative  (of  requisitioning           property for  the defence  of the  realm), or  the           treaty  prerogative   (of  making   treaties  with           foreign powers).  The law  does not interfere with           the proper  exercise  of  the  discretion  by  the           executive in  those situations:  but  it  can  set           limits by defining the bounds of the activity: and           it can  intervene if  the discretion  is exercised           improperly or  mistakenly. That  is a  fundamental

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         principle of our constitution."           *             *              *              *           "Seeing that  the prerogative  is a  discretionary           power to  be exercised  for the  public  good,  it           follows that  its exercise  can be examined by the           courts just as any other discretionary power which           is vested  in the  executive. At  several times in           our history,  the executive  have claimed  that  a           discretion given by the prerogative is unfettered:           just as  they have claimed that a discretion given           by  statute   or  by   regulation  is   unfettered           ......The two  outstanding cases  are Padfield  v.           Minister  of   Agriculture,  Fisheries  and  Food,           [1968] AC 997 and Secertary of State for Education           and  Science   v.  Tameside  Metropolitan  Borough           Council, [1976]  3 WLR  641, where  the  House  of           Lords have  shown that  when discretionary  powers           are entrusted  to the  executive by  statute,  the           courts can examine the exercise of those powers to           see  that   they  are   used  properly,   and  not           impropertly or mistakely."      In order  to appreciate the contentions advanced, it is necessary to  refer to  the  relevant  statutory  provisions bearing on  the questions  involved. Sub-s.  (1) of s. 3, as amended, is in these terms:           "3(1) The  Government may,  by notification,  from           time  to   time,  for   the  purposes  of  revenue           administration,  divide   the  State   into   such           disticts with  such limits  as  may  be  specified           therein; and each district shall consist of such 706           revenue divisions  and each revenue division shall           consist of  such mandals  and  each  mandal  shall           consist of such villages as the Government may, by           notification from  time to  time, specify  in this           behalf." Sub-s. (2)  thereof provides that the Government may, in the interests of  better administration  and development  of the areas, by  notification from time to time on and with effect on and  from such  date as  may be specified therein, form a new district,  revenue division  or mandal  or  increase  or diminish or  alter their name. Sub-s. (4) empowers the Board of Revenue  in the  interests of  better administration  and development of the areas and subject to such rules as may be prescribed, by notification, group or amalgamate, any two or more revenue  villages or  portions thereof  so as to form a single new  revenue village  or divide  any revenue  village into two  or more  revenue villages, or increase or diminish the area  of any revenue village, or alter the boundaries or name of any revenue village. Sub-s. (5) provides that before issuing any  notification under  the section, the Government or the  Board of  Revenue, as the case may be, shall publish in such  manner as may be prescribed, the proposals inviting objections or  suggestions thereon  from the person residing within the  district,  revenue  division,  taluk.  firka  or village who  are likely  to be  affected thereby within such period as  may be  specified therein,  and shall  take  into consideration  the   objections  or   suggestions,  if  any, received. Sub-s. (1) of s. 4 enacts that the Government may, by notification,  make rules  for carrying out all or any of the purposes  of this Act. The rules so framed shall be laid before each House of the State Legislature, etc.      In exercise of the powers conferred by sub-s. (1) of s. 4 of the Act, the State Government framed the Andhra Pradesh District (Formation)  Rules,  1984.  The  term  ’Mandal’  as

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defined in  r. 2(iv)  means a  part of the district within a revenue division  under the  charge of a Tahsildar or Deputy Tahsildar. The  expression ’revenue  division’ is defined in r. 2(v)  to mean a part of the district comprising of one or more mandals  under  the  charge  of  a  Revenue  Divisional officer/Sub  Collector/Assistant   Collector  or  any  other officer placed  in charge  of a division. The word ’village’ in  r.   2(vi)  means  a  settlement  or  locality  or  area consisting of  cluster of habitations and the land belonging to their  proprietory inhabitants  and includes,  a town  or city and  a hamlet (Mazra). Rule 3 lays down the matters for consideration in  formation of districts, etc. Rules 4 and 5 provide for  the publication  of the  preliminary and  final notifications in  the official  gazette. Rule  3 insofar  as material reads: 707           "3(1) Where  any action is proposed to be taken by           the Government  under sub-s.  (1) or sub-s. (2) of           s. 3  of the Act ..... the Government ...... shall           take into  consideration as  far  as  may  be  the           following matters  and the views of the Collectors           of the  districts and of such other authorities as           the Government may consider necessary:-                (i) Area,  population, demand  under the land           revenue and  other revenues  in respect  of  areas           affected by the proposals;                (ii)Historical   association,    Geographical           contiguity, Physical features common interests and           problems, Cultural  and Educational  requirements,           Infrastructural facilities  and economic  progress           of the areas;                (iii)Development  of   the  area   or   areas           concerned,   having    regard   to   the   various           developments and  welfare  schemes  undertaken  or           contemplated by  the  Government  in  relation  to           those areas;                (iv)Administrative  convenience   and  better           administration; and                (v)Interests of economy."           "3(3). In  matters concerning sub-s. (1) or sub-s. (2) of s. 3 of the Act the Collector concerned shall forward to the  Government his  report with  his views together with the record  of enquiry  if any  for the consideration of the Government. If  after such  consideration the  Government so decides, a preliminary notification under sub-s. (5) of s. 3 of  the  Act  inviting  objections  or  suggestions  to  the proposals from  the persons residing in the area/areas which are likely to be affected thereby, shall be issued."      Sub-r.  (1)   of  r.  4  provides  for  the  manner  of publication of  the preliminary  notification referred to in sub-rr.  (3)   and  (4)  of  r.  3  inviting  objections  or suggestions. The  notification has  to be in Form I appended to the  Rules. R.  4(2) provides that any person affected by the proposal  may  within  thirty  days  from  the  date  of publication of  the notification  referred to in sub-r. (1), communicate his  objections or  suggestions thereto  to  the Secretary to the Government in the 708 Revenue Department  through the  Collector of  the  district concerned, who  shall forward  the same  with his remarks to the Government, etc. R. 5 provides that the Government shall having regard  to the  suggestions or objections referred to in r. 4 either confirm the preliminary notification or issue it with  such modification/modifications as may be necessary and publish  it in  Form II  of the  Gazette. A  preliminary

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notification under  sub-s. (5)  of s. 3 of the Act which has to be  in Form  I has  to notify  to all  concerned that the Government in  the interests  of better  administration  and development of  the area  concerned, proposed  to form a new district/revenue division/mandal  as set out in the schedule appended thereto.  All objections and suggestions have to be addressed to  the Collector  within whose  jurisdiction  the area or areas fall. Likewise, Form II prescribes the form of the  final   notification  to  the  effect  that  the  State Government having  taken into  consideration the  objections and suggestions  received thereon, is pleased to notify that with effect  from (date)  the State  shall  consist  of  the District/Revenue Division/Mandal  specified  in  Schedule  I appended  thereto.   There  are   no  statutory   provisions formulating  the   governing  principles  for  formation  of Revenue Mandals or for location of Mandal Headquarters.      On 25th  July, 1985  the State  Government published  a White Paper  on formation  of Mandals.  It was  stated inter alia that the Revenue Mandals would be formed covering urban as well  as rural areas unlike Panchayat Mandals which would cover only rural areas. A Revenue Mandal would be demarcated for a  population ranging  from 35,000 to 55,000 in the case of rural mandals and was expected to cover one-third to one- fourth the  size of  the existing  taluks in  areas  and  in population. When  a Municipality  came within  the area of a Revenue Mandal,  the urban  population would be in addition. The  ushering   in  of   rural  mandals   would  result   in introductions of  a four-tier  system by  replacement of the then existing five-tier system. Such reduction in the levels of tiers of administration the Government felt would be more conducive to  proper  implementation  of  the  policies  and programmes of  the Government.  Greater decentralisation was expected to  lead  to  more  intensive  involvement  of  the people, particularly  in the implementation of programmes of economic development.  According to the scheme contemplated, each Revenue  Mandal would be headed by a Revenue Officer of the rank  of a  Tahsildar or  a Deputy  Tahsildar and it was stated that  the intention  of the Government was to vest in such Revenue  Officers, all  the powers  that were till then exercised by the Tahsildars and Taluk Magistrate. Appendix I to the  White Paper  formulated the principles for formation of Revenue Mandals and also 709 laid down  the  broad  guidelines  for  location  of  Mandal Headquarters.  The  Collectors  were  accordingly  asked  to forward their  proposals for creation of Revenue Mandals and also for  location of Mandal Headquarters in conformity with the guidelines.  The proposals  were to  be duly notified by publication of  a preliminary  notification under sub-s. (5) of s.  3 of  the Act inviting objections and suggestions and the Government  after consideration  of the  objections  and suggestions   so    received   would   publish   the   final notification. The  broad guidelines  for location  of Mandal Headquarters are set out below:           (3) As  a general  principle,  the  present  Taluk           Headquarters, Samithi Headquarters, Municipalities           and Corporations  will be retained as Headquarters           of Revenue Mandals; if any exception is called for           on grounds  of compelling reasons detailed reasons           will have to be given.           (4) Revenue Mandals whose headquarters will be the           present         Taluk         Headquarters/Samithi           Headquarters/Municipalities/Corporations,     will           generally   have   a   number   of   much   needed           infrastructural  facilities  already  existing.  A

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         number of  people from  the neighbouring  villages           will therefore  be visiting these headquarters for           both  Governmental/non-Governmental  business.  In           the  case   of  Revenue   Mandals  to  be  located           exclusively within  municipal  corporation  areas,           their requirements will be formulated according to           their needs.                In cases  of Mandal  Headquarters located  in           urban centres  which are  not  municipalities  but           with a  population of  15,000 or  above the  total           population  of   the  Mandal   would   be   55,000           irrespective of population density.           (6) In  choosing the  Headquarters of  the Revenue           Mandals in the rural areas, weightage may be given           to the  availability of  the following  facilities           and the future growth of the place.                (i) Banking facility;                (ii)  Communication  facility-either  Railway                     Station or Bus Stand;                (iii)PHC     or     Sub-Centre     or     any                     Dispensary/Indian Medicine; 710                (iv) Veterinary Dispensary;                (v)  Police Station;                (vi) Post Office/Telephone Exchange;                (vii)High School.                (viii)Market Yard/Agricultural Godown;                (ix) Already a Firka Headquarters;                (x)   Any other  special  qualification  like                     availability  of  office  accommodation,                     residential quarters for the staff etc.           A  centre   having  one   or  more  of  the  above           characteristics and more accessible to most of the           villages proposed  for the Mandal in comparison to           any other  centre should  be generally selected as           Headquarters. If  in any mandal there is more than           one centre  having equal  accessibility/facilities           then the centre which comes forward to donate land           for office  buildings  and  to  provide  temporary           office accommodation may be given preference.           (8) In  the selection of villages for inclusion in           the Mandal,  the principal criterion shall be that           the Mandal Headquarters is most accessiable to all           the villages."      It is  quite  obvious  from  the  guidelines  that  the location of the Headquarters of a Revenue Mandal is based on a  system   of  marking,   the  principal   criterion  being ’accessibility’ i.e. the place located must be accessible to all the  villages in  the Revenue  Mandal. In  choosing  the Headquarters of  the Revenue  Mandals in  the  rural  areas, weightage had  to be  given to  the availability  of certain facilities and  the future  growth of the place as specified in items  (i) to  (x) of  paragraph 6  of the  guidelines. A centre or  a place having one or more of the characteristics so set  out and  more accessible  to most  of  the  villages proposed for the Mandal in comparison to any other place had to be  generally selected  as Mandal Headquarters. If in any Mandal  there   was  more   than  one   place  having  equal accessibility/facilities then  the place  which came forward to donate land for office buildings and to provide temporary office accommodation had to be given preference. Location 711 of Mandal  Headquarters was  therefore based  on a system of marking. Learned  counsel for the parties have with infinite care taken  us minutely  to the  facts of  each case  in  an

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endeavour to  support their respective contentions, viz., as to whether  location  of  the  Mandal  Headquarters  by  the Government at  a particular  place  was  in  breach  of  the guidelines or not.      We find it rather difficult to sustain the interference by the  High Court  in some  of the  cases with  location of Mandal   Headquarters   and   quashing   of   the   impugned notification on  the ground  that the  Government  acted  in breach of  the guidelines in that one place or the other was more centrally  located or  that location at the other place would  promote   general  public  convenience  or  that  the Headquarters should  be fixed  at a  particular place with a view to  develop the  areas surrounded  by it or that merely because a particular person who was an influential Member of Legislative Assembly  belonging to  the party  in opposition had the  right of  representation but failed to avail of it. The location  of Headquarters by the Government by the issue of the  final notification  under sub-s.  (5) of s. 3 of the Act was  on a  consideration by the Cabinet Sub Committee of the proposals  submitted by the Collectors concerned and the objections  and   suggestions  received   from   the   local authorities like  Gram Panchayat  and  the  general  public, keeping in view the relevant factors. Even assuming that any breach of  the guidelines  was justiciable,  the utmost that the High  Court could  have done  was to  quash the impugned notification in  a particular case and direct the Government to reconsider  the question.  There was  no warrant  for the High Court to have gone further and directed the shifting of the Mandal Headquarters at a particular place.      Broadly speeking, the contention on behalf of the State Government is that relief under Art. 226 of the Constitution is  not   available   to   enforce   administrative   rules, regulations or  instructions which  have no statutory force, in  the   absence  of   exceptional  circumstances.   It  is wellsettled  that   mandamus  does   not  lie   to   enforce departmental  manuals   or  instructions   not  having   any statutory force,  which do  not give rise to any legal right in favour  of the  petitioner. The  law on  the  subject  is succinctly stated  in Durga  Das Basu’s  Administrative Law, 2nd edn. at p. 144:           "Administrative instructions,  rules  or  manuals,           which have no statutory force, are not enforceable           in a  court of  law. Though  for  breach  of  such           instructions,  the  public  servant  may  be  held           liable by the State and disciplinary action may 712           be taken  against him,  a member of the public who           is aggrieved  by the  breach of  such instructions           cannot seek  any remedy  in the courts. The reason           is, that  not having the force of law, they cannot           confer any  legal right upon any body, and cannot,           therefore, be  enforced even  by writs  under Art.           226."      The learned  author however  rightly points  out at  p. 145:           "Even though  a  non-statutory  rule,  bye-law  or           instruction may  be changed  by the  authority who           made it,  without  any  formality  and  it  cannot           ordinarily be enforced through a Court of law, the           party  aggrieved   by  its   non-enforcement  may,           nevertheless, get relief under Art. 226 of the Con           stitution where  the non-observance  of  the  non-           statutory  rule   or  practice   would  result  in           arbitrariness   or    absence   of   fairplay   or           discrimination,-particularly where  the  authority

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         making such  non-statutory rule  or the like comes           within the definition of ’State’ under Art. 12."      In G.J. Fernandez’s case, the petitioner submitting the lowest tender  assailed the  action of the Chief Engineer in addressing a communication to all the tenderers stating that even the  lowest tender was unduly high and enquired whether they were  prepared to  reduce their  tenders. One  of  them having reduced  the amount  of his  tender  lower  than  the lowest, the  Chief Engineer  made a  report to the Technical Sub-Committee which  made its  recommendations to  the Major Irrigation Projects  Control  Board,  the  final  authority, which  accepted  the  tender  so  offered.  The  High  Court dismissed the writ petition holding that there was no breach of the  conditions of  tender contained  in the Public Works Department Code and further that there was no discrimination which attracted  the application  of Art.  14. The  question that fell  for consideration  before this  Court was whether the Code  consisted of statutory rules or not. The so-called Rules contained  in the  Code  were  not  framed  under  any statutory  enactment   or  the   Constitution.  Wanchoo,  CJ speaking  for  the  Court  held  that  under  Art.  162  the executive power of the State enables the Government to issue administrative instructions  to its  servants how  to act in certain  circumstances,   but  that   would  not  make  such instructions  statutory   rules  the   breach  of  which  is justiciable. It was further held that non-observance of such administrative instructions  did not  give any  right  to  a person like  the appellant to come to Court for any relif on the alleged  breach of  the instructions.  That precisely is the position here. The guidelines 713 are merely in the nature of instructions issued by the State Government to  the Collectors regulating the manner in which they should  formulate their  proposals for  formation of  a Revenue Mandal  or for  location of its Headquarters keeping in view  the broad guidelines laid down in Appendix I to the White Paper.  It must  be stated  that the guidelines had no statutory force  and they had also not been published in the Official Gazette.  The  guidelines  were  mere  departmental instructions meant for the Collectors. The ultimate decision as to  formation of  a Revenue  Mandal or  location  of  its Headquarters was with the Government. It was for that reason that the  Government  issued  the  preliminary  notification under sub-s.  (5) of s. 3 of the Act inviting objections and suggestions.  The   objections  and  suggestions  were  duly processed in  the Secretariat  and submitted  to the Cabinet Sub-Committee along  with its  comments.  The  note  of  the Collector  appended   to  the   proposal  gave  reasons  for deviating from  the guidelines  in some of the aspects. Such deviation  was   usually  for   reasons  of   administrative convenience keeping  in view  the purpose  and object of the Act i.e.  to bring  the administration nearer to the people. The  Cabinet   Sub-Committee  after   consideration  of  the objections and  suggestions received from the Gram Panchayat and members of the public and other organisations as well as the  comments  of  the  Secretariat  and  the  note  of  the Collector came  to a  decision  applying  the  standards  of reasonableness, relevance  and purpose while keeping in view the object and purpose of the legislation, published a final notification under  sub-s. (5)  of s. 3 of the Act. There is nothing on  record to  show that  the decision  of the State Government in any of these cases was arbitrary or capricious or was  one not  reached in  good  faith  or  actuated  with improper  considerations   or   influenced   by   extraneous considerations.  In   a  matter  like  this,  conferment  of

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discretion upon the Government in the matter of formation of a Revenue  Mandal or  location of  its Headquarters  in  the nature of  things necessarily  leaves the  Government with a choice in the use of the discretion conferred upon it.      It would  be convenient  at this stage to deal with the arguments of  Shri  Seetaramaiah  that  the  action  of  the Government in  the matter of location of Mandal Headquarters amounted to misuse of power for political ends and therefore amenable to  the writ  jurisdiction of  the High Court under Art. 226  of the  Constitution. The  learned counsel  mainly relied upon certain English decisions starting from Padfield v. Minister  of Agricultural,  Fisheries &  Food, LR 1968 AC 997 down  to Council  of Civil  Service Unions and Others v. Minister for  the Civil  Service, [1984] 3 ALL. ER 935 (HL). What we call ’purely governmen- 714 tal function’,  it is  said,  is  nothing  but  exercise  of ’discretion derived from the royal prerogative’. The learned counsel contends  that  ever  since  the  judgment  of  Lord Denning in  Laker Airways  Ltd. v.  Department of  Trade, LR 1977 QB 643, the myth of executive discretion in relation to prerogative power  no longer  exists.  The  learned  counsel equated prerogative  and statutory  powers for this purpose, saying that  in both  cases alike the Courts will not review the proper  exercise of  discretion but  will  intervene  to correct excess  or abuse.  According to him, the prerogative powers of  the Crown  in England  are akin  to the executive functions of  the Union and the States under Art. 73 and 162 of the  Constitution, on  which refrain  from expressing any final  opinion.  Prima  facie,  it  seems  to  us  that  the executive powers  of the Union and the States under Arts. 73 and 162  are much  wider  than  the  prerogative  powers  in England. We  would refer  to a  couple of  English decisions from amongst  those to  which we were referred to during the arguments.      At one  time, the  traditional view in England was that the executive  was  not  answerable  where  its  action  was attributable to the exercise of prerogative power. Professor De  Smith   in  his   classical  work  ’Judicial  Review  of Administrative Action’  4th Edn.,  at pp. 285-287 states the law in  his own  terse  language.  The  relevant  principles formulated by  the  courts  may  be  broadly  summarised  as follows. The  authority in  which a discretion is vested can be  compelled  to  exercise  that  discretion,  but  not  to exercise  it   in  any  particular  manner.  In  general,  a discretion must  be exercised only by the authority to which it is  committed.  That  authority  must  genuinely  address itself to  the matter  before it:  it must not act under the dictation of  another body or disable itself from exercising a discretion  in each  individual  case.  In  the  purported exercise of  its discretion  it must not do what it has been forbidden to  do, nor  must it  do  what  it  has  not  been authorised to  do. It  must act  in good  faith,  must  have regard to all relevant considerations and must not be swayed by irrelevant  considerations,  must  not  seek  to  promote purposes alien  to the  letter  or  to  the  spirit  of  the legislation that  gives it  power to  act, and  must not act arbitrarily or  capriciously. Nor  where a  judgment must be made that  certain facts  exist can  a discretion be validly exercised on  the basis  of an  erroneous  assumption  about those facts.  These several  principles can  conveniently be grouped in  two main  categories: (i)  failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two  classes are  not, however, mutually exclusiv. Thus, discretion may  be improperly  fettered  because  irrelevant

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considerations have  been taken  into account;  and where an authority hands over its discretion to 715 another body  it acts  ultra vires.  The learned author then deals with  the question  whether  the  principles  outlined above  are   applicable  to   the  alleged   abuse  of  wide discretionary powers  vested in executive bodies and further states:           "We have  already noted  that the courts sometimes           call   a    discretionary   power   executive   or           administrative when  they are  unwilling to review           the  mode   of  its   exercise  by   reference  to           "judicial" standards.  Does this  mean  that  such           discretionary powers are legally absolute, totally           immune from  judicial  review?  To  this  question           there is no short answer.           (1)  Parliament   (or,  to  put  the  matter  more           realistically,  the  Government)  may  purport  to           exclude  judicial   review  by  means  of  special           statutory formulae  which, if construed literally,           would deprive the courts of jurisdiction.           (2) No  discretionary power  is reviewable  unless           somebody has  locus standi  in impugn the validity           of its exercise.           (3) If  it is  claimed that  the authority for the           exercise of  discretion  derives  from  the  royal           prerogative, the courts have traditionally limited           reveiw to  questions of  vires  in  the  narrowest           sense of  the term. They can determine whether the           prerogative power  exists,  what  is  its  extent,           whether it  has been  exercised in the appropriate           form  and  how  far  it  has  been  superseded  by           statute; they  have not  normally been prepared to           examine the  appropriateness or  adequacy  of  the           grounds for  exercising the power, or the fairness           of the  procedure followed  before  the  power  is           exercised, and they will not allow bad faith to be           attributed to the Crown."      Although the  weight of  authority in  England  favours only narrow  grounds for  judicial review of the exercise of prerogative powers,  there is not a total absence of support for the  view that  in some circumstances at least the Court may apply  somewhat broader  standards of  review.  See:  De Smith’s Judicial  Review of Administrative Action, 4th edn., pp. 285-287;  H.W.R. Wade’s Administrative Law, 5th edn. pp. 350 et.  seq.; Foulkes’  Administrative Law,  6th edn.,  pp. 213-215, 219-225;  Applications for Judicial Review, Law and Practice by  Grahame Aldous  and John  Alder,  p.  105;  and D.C.M. Yardley’s 716 Principles of Administrative Law, 2nd edn. pp. 65-67.      In recent  years, the  concept of  the rule  of law  in England has  been undergoing  a radical  change. The present trend of  judicial opinion  is to  restrict the  doctrine of immunity of  prerogative powers  from judicial  review where purely governmental  functions are  directly attributable to the royal  prerogative, such  as whether  a treaty should be concluded or  the armed  forces  deployed  in  a  particular manner or  Parliament dissolved  on one  day rather another, etc. The  shift in  approach to judicial interpretation that has taken place during the last few years is attributable in large part  to the efforts of Lord Denning in Laker Airways’ case. The attempt was to project the principles laid down in Padfield’s case into the exercise of discretionary powers by the executive  derived from  the prerogative,  and to equate

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prerogative and  statutory powers  for purposes  of judicial review, subject  to just exceptions. Thus, the present trend of judicial  opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of  troops, entering into international treaties, etc. The  distinctive features of some of these recent cases signify the  willingness of the Courts to assert their power to scrutinise  the factual  bases upon  which  discretionary powers have been exercised.      The decision  of the  House of Lords in Padfield’s case is an  important landmark  in the  current era  of  judicial activism in  this area  of administrative  law. The Minister had refused  to appoint  a committee,  as he was statutorily empowered  to   do  when  he  thought  fit,  to  investigate complaints made  by members of the Milk Marketing Board that the majority  of the  Board had  fixed milk  prices in a way that  was  unduly  unfavourable  to  the  complainants.  The Minister’s  reason   for   refusing   to   accede   to   the complainants’ request  inter alia  was  that  ’it  would  be politically embarrassing  for  him  if  he  decided  not  to implement the  committee’s recommendations’.  The  House  of Lords held that the Minister’s discretion was not unfettered and that  the reasons  that he  had given  for  his  refusal showed that  he had acted ultra vires by taking into account factors that  were legally irrelevant and by using his power in a  way calculated to frustrate the policy of the Act. The view was  also expressed  by four of the Law Lords that even if the  Minister had  given no  reasons for his decision, it would have been open to the Court to infer that the Minister had acted  unlawfully if  he  had  declined  to  supply  any justification  at   all  for   his  decision:   De   Smith’s Administrative Law,  4th edn.,  p. 294.  More  recently,  in Laker Airways  case and  in Secretary of State for Education and Science  v. Tameside  M.B.C., LR  1977 AC  1014 both the Court of Appeal and the 717 House of Lords have set aside as ultra vires the exercise of discretion that included a substantial subjective element.      In Padfield’s case the scarcely veiled allusion to fear of parliamentary  trouble was,  in particular,  a  political reason which  was quite  extraneous and  inadmissible.  Lord Reid during  the course  of his  judgment  emphatically  and unequivocally rejected the contention that the discretion of the Minister was absolute, in these words:           "Parliament must  have  conferred  the  discretion           with the  intention that  it  should  be  used  to           promote the  policy and  objects of  the Act;  the           policy and  objects of  the Act must be determined           by construing  the Act as a whole and construction           is always  a matter  of law  for the  Court. In  a           matter of  this kind  it is not possible to draw a           hard and  fast  line,  but  if  the  Minister,  by           reason, so uses his discretion as to thwart or run           counter to the policy and objects of the Act, then           our  law   would  be  very  defective  if  persons           aggrieved were  not entitled  to the protection of           the Court."      Lord Upjohn  said that  the Minister’s  stated  reasons showed a  complete misapprehension  of his  duties, and were all bad  in law.  Lord Denning in another case observed that the decision  in Padfield  marked the  evolution of judicial opinion that  the Court  could  intervene  if  the  Minister ’plainly  misdirects   himself  in  fact  or  in  law’.  The importance  of  the  decision  of  the  House  of  Lords  in Padfield’s case  was underlined  by Lord Denning in Breen v.

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Amalgamated Engineering Union, LR 19712 QB 175 at p. 190, in these words:           "The discretion  of  a  statutory  body  is  never           unfettered. It  is a  discretion which  is  to  be           exercised according  to law.  That means  at least           this:  the   statutory  body  must  be  guided  by           relevant considerations  and not by irrelevant. If           its   decision   is   influenced   by   extraneous           considerations which  it ought  not to  have taken           into account,  then the  decision cannot stand. No           matter that  the statutory  body may have acted in           good faith;  nevertheless the decision will be set           aside. That is established by Padfield v. Minister           of Agriculture,  Fisheries and  Food, which  is  a           landmark in modern administrative law."      In  Laker  Airways’  case,  the  Court  of  Appeal  was concerned with  the power  of Minister to give directions to the Civil Aviation 718 authorities overiding  specific provisions in the statute in time of  war, in  the  interests  of  national  security  or international relations or protection of the environment. In his judgment,  Lord Denning M.R. held that the review of the prerogative is  assimilated to  that of  statutory power, so that its  exercise may be impugned for ’misdirection in fact or in  law’. Lord  Denning M.R.  discussed the nature of the prerogative and said;           "Seeing that  the prerogative  is a  discretionary           power to  be exercised  for the  public  good,  it           follows that  its exercise  can be examined by the           courts just as any other discretionary power which           is vested in the executive." He then  went on  to say that the prerogative powers were as much capable  of abuse  as any  other  power  and  therefore subject to judicial review and observed:           "Likewise it  seems to  me that when discretionary           powers are  entrusted  to  the  executive  by  the           prerogative-in  pursuance   of  the  treaty-making           power-the courts  can examine the exercise of them           so as  to see that they are not used improperly or           mistakenly." This observation has given rise to considerable debate.      The majority,  however, proceeded  on a  narrower basis concluding that  the Civil  Aviation Act, 1971 had impliedly superseded the  Crown’s prerogative  in foreign affairs, and that the  holder of a licence under the statute could not be deprived of  its commercial  value by a decision on the part of the Secretary to State or revoke the licensee’s status as a designated  carrier under  the Bermuda Agreement. In other respects, the majority accepted the orthodox position on the unreviewability of  the exercise  of  the  prerogative,  per Roskill and Lawton, L. JJ, Lord Denning however went further and held  that the  Court  could  intervene  if  a  Minister ’plainly misdirects himself in fact or in law’.      Another  important  case  in  this  context  is  R.  V. Criminal Injuries  Compensation Board,  ex p. Lain, [1967] 2 QB 864.  The question in this case was whether payments made by the  Board to  victims of  crime were subject to judicial review. The difficulty was that Lord Reid’s phrase ’power to make decisions affecting rights’ in Ridge v. Baldwin, [1964] AC 40  was taken  to refer  to  legal  rights,  whereas  the Criminal Injuries  Compensation Scheme was not said to be by legislation but 719 just as  an administrative  expedience by  means of internal

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departmental circulars.  So payments  made under  the Scheme were not,  strictly, a  matter of  legal right  but were  ex gratia. On  the other  hand, the criterion on which payments were made  were laid  down in some detail and were very much like any law rules for assessment of damages in tort. So the Board, like  the Courts,  was meant  to be  focussing on the individuals before  it, in deciding whether to make an award and how  much to  award. It  was strenuously argued that the Board was  not subject  to the  jurisdiction of  the  Courts since it  did not have what was described as legal authority in the  sense of  statutory  authority.  This  argument  was emphatically and  unanimously rejected. In his judgment Lord Parker, CJ. said:           "I can  see no  reason either  in principle  or in           authority why  a board,  set up as this board were           set up,  should not  be a body of persons amenable           to the  jurisdiction of this Court. True the board           are not  set up  by statute but the fact that they           are set  up by  executive government,  i.e., under           the prerogative,  does not  render their  acts any           the less  lawful. Indeed,  the writ  of certiorari           has been  issued not  only to  courts  set  up  by           statute but to courts whose authority was derived;           inter  alia,   from  the   prerogative.  Once  the           jurisdiction is  extended, as it clearly has been,           to tribunals  as opposed  to courts,  there is  no           reason why  the remedy by way of certiorari cannot           be invoked  to a  body of persons set up under the           prerogative.           "Moreover the  board,  though  set  up  under  the           prerogative and  not by  statute, had  in fact the           recognition of Parliament in debate and Parliament           provided the money to satisfy the board’s awards." See also the judgment of Lord Diplock, LJ.      The ratio  derived from  Ex parte  Lain’s decision  can best be stated in these words:           "Powers derived  from the  royal  prerogative  are           public law powers." It therefore follows that a non-statutory inferior authority like the  Board albeit  constituted  under  the  prerogative powers, is  just as well amenable to the jurisdiction of the Court as a statutory body. It is clear 720 that certiorari  will lie  where a  decision  has  de  facto effect upon  the individual  and it is not necessary to show that the ’right’ in question is legally enforceable.      In Council  of Civil  Service Unions & Ors. v. Minister for the  Civil Service,  [1984] 3  All E.R. 935 the House of Lords reiterated broader standards of review of the exercise of prerogative  powers. The principles deducible are clearly brought out in the headnote extracted below:           "(1)   Powers   exercised   directly   under   the           prerogative are not by virtue of their prerogative           source automatically  immune from judicial review.           If the  subject matter  of a  prerogative power is           justiciable then the exercise of the power is open           to judicial  review in the same way as a statutory           power. However  (per  Lord  Roskill),  prerogative           powers such  as those  relating to  the making  of           treaties,  the   defence   of   the   realm,   the           prerogative of  mercy, the  grant of  honours, the           dissolution of  Parliament and  the appointment of           ministers are  not justiciable  or reviewable. (2)           Administrative action  is subject  to  control  by           judicial review under three heads: (i) illegality,

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         where  the   decision-making  authority  has  been           guilty of  an error  of law, e.g. by purporting to           exercise  a   power  it  does  not  possess;  (ii)           irrationality, where the decision-making authority           has  acted  so  unreasonably  that  no  reasonable           authority would  have  made  the  decision;  (iii)           procedural impropriety,  where the decision-making           authority has failed in its duty to act fairly." Lord Diplock  in his  speech  found  no  reason  why  simply because the  decision-making power  is derived from a common law and not a statutory source, it should for that reason be immune judicial review, and observed:           "Judicial review  has I think developed to a stage           today when,  without reiterating  any analysis  of           the steps by which the development has come about,           one can  conveniently classify  under three  heads           the grounds  on  which  administrative  action  is           subject to  control by  judicial review. The first           ground  I  would  call  ’illegality’,  the  second           ’irrationality’   and    the   third   ’procedural           impropriety’." 721 We should  also refer  to the  illuminating judgment of Lord Roskill who found no logical reason to see why the fact that the source  of the power is the prerogative and not statute, should today  deprive the citizen of that right of challenge to the  manner of  its exercise  which he would possess were the source  of the  power statutory. In either case, the act in question  is the  act of the executive. The learned Judge agreed with the conclusions reached by Lord Scarman and Lord Diplock and observed: "To talk of that act as the act of the sovereign savours of the archaism of past centuries." We may with  advantage   quote  the   following  passage  from  his judgment;           "Dicey’s  classic   statement  in   Law   of   the           Constitution (10th  edn., 1959)  p. 424  that  the           prerogative is  ’the residue  of discretionary  or           arbitrary authority,  which at  any given  time is           legally left  in the  hands of  the Crown, has the           weight behind  it not  only of  the  author’s  own           authority but  also of  the majority of this House           in Burmah  Oil Co.  (Burma Trading)  Ltd. v.  Lord           Advocate, [1964]  2 All  ER 348  at 353,  per Lord           Reid. But  as Lord  Reid himself pointed out, this           definition ’does  not take  us very  far’. On  the           other hand  the attempt  by Lord  Denning,  MR  in           Laker Airways Ltd. v. Dept. of Trade, [1977] 2 All           ER 182 at 192, (obiter) since the other members of           the Court  of Appeal did not take so broad a view)           to  asert   that  the   prerogative  ’if  ........           exercised improperly or mistakenly’ was reviewable           is, with great respect, far too wide. Lord Denning           MR sought  to support his view by a quotation from           Blackstone’s Commentaries  (1 B1  Com  (15th  edn)           252). But unfortunately and no doubt inadvertently           he omitted the opening words of the paragraph:                "In   the   exercise   therefore   of   those                prerogatives, which  the law  has given  him,                the  King   is  irresistible   and  absolute,                according to  the forms  of the constitution.                And yet,  if the consequence of that exertion                be manifestly  to the  grievance or dishonour                of the  kingdom, the parliament will call his                advisers to a just and severe account."                In short  the orthodox  view was at that time

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         that the  remedy for  abuse of the prerogative lay           in the political and not in the judicial field. 722                But, fascinating  as it  is to  explore  this           mainstream of  our legal  history,  to  do  so  in           connection with  the present  appeal has an air of           reality.  To  speak  today  of  the  acts  of  the           sovereign  as  ’irresistible  and  absolute’  when           modern constitutional convention requires that all           such acts  are done by the sovereign on the advice           of and  will be  carried out  by  the  sovereign’s           ministers currently  in power  is surely to hamper           the continual  development of  our  administrative           law by  harking  back  to  what  Lord  Atkin  once           called,  albeit   in  a   different  context,  the           clanking of  medieval chains  of the ghosts of the           past."      The effect  of all  these decisions is admirably summed up by  Grahame Aldous  and John  Alder in their Applications for Judicial Review, Law and Practice thus:           "There is  a general  presumption against  ousting           the jurisdiction  of the courts, so that statutory           provisions  which   purport  to  exclude  judicial           review are  construed  restrictively.  There  are,           however, certain  areas of  governmental activity,           national security  being the  paradigm, which  the           courts  regard   themselves  as   incompetent   to           investigate, beyond  an  initial  decision  as  to           whether the  government’s claim  is bona  fide. In           this kind  of non-justiciable area judicial review           is not entirely excluded, but very limited. It has           also been  said that powers conferred by the Royal           Prerogative are  inherently unreviewable but since           the speeches  of the  House of Lords in Council of           Civil Service  Union v.  Minister  for  the  Civil           Service, this  is doubtful. Lords Diplock, Scarman           and Roskill  appeared to  agree that  there is  no           general distinction  between  powers,  based  upon           whether their  source is  statutory or prerogative           but that  judicial review  can be  limited by  the           subject matter of a particular power, in that case           national security.  Many prerogative powers are in           fact  concerned  with  sensitive,  non-justiciable           areas, for  example foreign  affairs, but some are           reviewable    in    principle,    including    the           prerogatives relating  to the  civil service where           national security  is not  involved. Another  non-           justiciable  power   is  the   Attorney  General’s           prerogative to  decide whether  to institute legal           proceedings on behalf of the public interest."      Much of  the above  discussion is of little or academic interest as 723 the jurisdiction  of the  High Court to grant an appropriate writ, direction  or order under Art. 226 of the Constitution is  not   subject  to   the  archaic  constraints  on  which prerogative writs  were issued in England. Most of the cases in which  the English  courts had  earlier enunciated  their limited power to pass on the legality of the exercise of the prerogative were  decided at  a time  when the Courts took a generally rather  circumscribed view  of  their  ability  to review Ministerial statutory discretion. The decision of the House of Lords in Padfield’s case marks the emergence of the interventionist judicial  attitude  that  has  characterized many recent judgments. In view of the recent decision of the

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House of  Lords in Council of Civil Service Unions, it would be premature  to conclude that in no circumstances would the Court be  prepared to  apply to the exercise by the Crown of some non-statutory  powers the  same criterion for review as would  be   applicable  were  the  discretion  conferred  by statute. In  the ultimate  analysis, the  present  trend  of judicial opinion  in England on the question as to whether a ’prerogative’ power  is reviewable or not depends on whether its subject-matter  is suitable  for judicial  control.  All that we  need is  to  end  this  part  of  the  judgment  by extracting the  cautionary note  administered by H.W.R. Wade in his  Administrative Law,  5th edn.  at p.  352  in  these words:           "On the  one hand,  where Parliament confers power           upon some  minister or  other authority to be used           in discretion,  it is  obvious that the discretion           ought to  be that  of the designated authority and           not that  of the  court. Whether the discretion is           exercised   prudently    or    imprudently,    the           authority’s word is to be law and the remedy is to           be political  only. On  the other hand, Parliament           cannot be supposed to have intended that the power           should be  open to  serious abuse.  It  must  have           assumed that  the designated  authority would  act           properly and  responsibly, with  a view  to  doing           what was  best in  the public  interest  and  most           consistent with  the policy  of the statute. It is           from this  presumption that  the courts take their           warrant to  impose legal  bounds on  even the most           extensive discretion."      We find  it rather difficult to sustain the judgment of the High  Court in some of the cases where it has interfered with the  location of  Mandal Headquarters  and quashed  the impugned notifications  on the  ground that  the  Government acted in  breach of  the guidelines in that one place or the other was  more centrally  located or  that location  at the other place  would promote  general public  convenience,  or that the 724 headquarters should  be fixed  at a  particular place with a view to  develop the  area surrounded by it. The location of headquarters by  the Government  by the  issue of  the final notification under  sub-s. (5)  of s.  3 of the Act was on a consideration by  the Cabinet Sub-Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received  from the  local authorities  like  the gram panchayats  and the  general public. Even assuming that the Government  while accepting  the recommendations  of the Cabinet Sub  Committee directed that the Mandal Headquarters should be  at place ’X’ rather than place ’Y’ as recommended by the  Collector concerned  in a  particular case, the High Court would not have issued a writ in the nature of mandamus to enforce  the guidelines  which  were  nothing  more  than administrative instructions  not having any statutory force, which did  not give rise to any legal right in favour of the writ petitioners.      The result  therefore is  that Civil Appeals Nos. 1980, 1982, 1985  and 1987  of 1986  and  all  other  appeals  and special leave petitions directed against the judgment of the High Court  where it has interfered with the location of the Mandal Headquarters,  must  succeed  and  are  allowed.  The petition filed  by the  appellants under  Art.  226  of  the Constitution  before   the  High   Court   are   accordingly dismissed. There shall be no order as to costs. S.L.

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