05 November 2004
Supreme Court


Case number: C.A. No.-007256-007257 / 2004
Diary number: 7702 / 2003
Advocates: PAREKH & CO. Vs



CASE NO.: Appeal (civil)  7256-7257 of 2004

PETITIONER: Madhya Pradesh Special Police Establishment

RESPONDENT: State of Madhya Pradesh & Ors.

DATE OF JUDGMENT: 05/11/2004

BENCH: N. Santosh Hegde, S. N. Variava, B. P. Singh, H. K. Sema & S. B. Sinha


[Arising out of SLP (C) Nos. 7697-7698 of 2003]


       Leave granted.         These Appeals are against the Judgment of the Madhya Pradesh  High Court dated 10th January, 2003.         Briefly stated the facts are as follows: Respondents No. 4 (in both these Appeals), i.e. Rajender Kumar Singh  and Bisahu  Ram Yadav, were Ministers in the Government of M. P.   A  Complaint was made to the Lokayukta against them for having  released 7.5 acres of land illegally to its earlier owners even though  the same had been acquired by the Indore Development Authority.   After investigation the Lokayukta submitted a report holding that there  were sufficient grounds for prosecuting the two Ministers under Section  13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,  1983 and also for the offences of criminal conspiracy punishable under  Section 120-B of the Indian Penal Code.    It must be mentioned that  by the time the report was given the two Ministers had already  resigned.         Sanction was applied for from the Council of Ministers for  prosecuting the two Ministers.  The Council of Ministers held that there  was not an iota of material available against both the Ministers from  which it could be inferred that they had entered into a criminal  conspiracy with anyone.  The Council of Ministers thus refused  sanction on the ground that no prima-facie case had been made out  against them.         The Governor then considered grant of sanction keeping in view  the decision of the Council of Ministers.   The Governor opined that the  available documents and the evidence was enough to show that a  prima-facie case for prosecution had been made out.  The Governor  accordingly granted sanction for prosecution under Section 197 of the  Criminal Procedure Code.            Both the Ministers filed separate Writ Petitions under Articles 226  and 227 of the Constitution of India assailing the Order of the  Governor.  A Single Judge of the High Court held that granting  sanction for prosecuting the Ministers was not a function which could  be exercised by the Governor "in his discretion" within the meaning of  these words as used in Article 163 of the Constitution of India.  It was  held that the Governor could not act contrary to the "aid and advice"  of the Council of Ministers.  It was further held that the doctrine of bias  could not be applied against the entire Council of Ministers and that  the doctrine of necessity could not be invoked on the facts of the case  to enable the Governor to act in his discretion.           The Appellants filed two Letters Patent Appeals which have been  disposed off by the impugned Judgment.  The Division Bench  dismissed the Letters Patent Appeals upholding the reasoning and



Judgment of the Single Judge.   It must be mentioned that the  authority of this Court in the case of State of Maharashtra vs.  Ramdas Shrinivas Nayak reported in 1982 (2) SCC 463 was placed  before the Division Bench.  The Division Bench, however, held that the  observations made therein may apply to the case of a Chief Minister  but they could not be stretched to include cases of Ministers.         The question for consideration is whether a Governor can act in  his discretion and against the aid and advice of the Council of Ministers  in a matter of grant of sanction for prosecution of Ministers for  offences under the Prevention of Corruption Act and/or under the  Indian Penal Code.         As this question is important, by Order dated 12th September,  2003 it has been directed that these Appeals be placed before a Bench  of five Judges.  Accordingly these Appeals are before this Bench.         Article 163 of the Constitution of India reads as follows:         "163. COUNCIL OF MINISTERS TO AID AND  ADVISE GOVERNOR.- (1) There shall be a Council of  Ministers with the Chief Minister as the head to aid and  advise the Governor in the exercise of his functions, except  in so far as he is by or under this Constitution required to  exercise his functions or any of them in his discretion.          (2) If any question arises whether any matter is or is  not a matter as respects which the Governor is by or under  this Constitution required to act in his discretion, the  decision of the Governor in his discretion shall be final, and  the validity of anything done by the Governor shall not be  called in question on the ground that he ought or ought  not to have acted in his discretion.          (3) The question whether any, and if so what, advice  was tendered by Ministers to the Governor shall not be  inquired into in any court."         Mr. Sorabjee submits that even though normally the Governor  acts on the aid and advice of the Council of Ministers, but there can be  cases where the Governor is by or under the Constitution required to  exercise his function or any of them in his discretion.  The Constitution  of India expressly provides for contingencies/cases where the  Governor is to act in his discretion.  Articles 239(2), 371A(1)(b),  371A(2)(b), 371A(2)(f) and Paragraphs 9(2) and 18(3) of the Sixth  Schedule are some of the provisions.  However, merely because the  Constitution of India expressly provides, in some cases, for the  Governor to act in his discretion, can it be inferred that the Governor  can so act only where the Constitution expressly so provides.  If that  were so then Sub-clause (2) of Article 163 would be redundant. A  question whether a matter is or is not a matter in which the Governor  is required to act in his discretion can only arise in cases where the  Constitution has not expressly provided that the Governor can act in  his discretion.  Such a question cannot arise in respect of a matter  where the Constitution expressly provides that the Governor is to act  in his discretion.  Article 163(2), therefore, postulates that there can  be matters where the Governor can act in his discretion even though  the Constitution has not expressly so provided.

       Mr. Sorabjee relies on the case of Samsher Singh vs. State of  Punjab, reported in 1974 (2) SCC 831.  A seven Judges’ Bench of this  Court, inter alia, considered whether the Governor could act by  personally applying his mind and/or whether, under all circumstances,  he must act only on the aid and advice of the Council of Ministers.  It  was inter alia held as follows:         "54. The provisions of the Constitution which  expressly require the Governor to exercise his powers in  his discretion are contained in articles to which reference  has been made. To illustrate, Article 239(2) states that  where a Governor is appointed an administrator of an  adjoining Union territory he shall exercise his functions as  such administrator independently of his Council of



Ministers. The other articles which speak of the discretion  of the Governor are paragraphs 9(2) and 18(3) of the  Sixth Schedule and Articles 371A(1)(b), 371A(1)(d) and  371A(2)(b) and 371A(2)(f). The discretion conferred on  the Governor means that as the constitutional or formal  head of the State the power is vested in him. In this  connection, reference may be made to Article 356 which  states that the Governor can send a report to the President  that a situation has arisen in which the government of the  State cannot be carried on in accordance with the  provisions of this Constitution. Again Article 200 requires  the Governor to reserve for consideration any Bill which in  his opinion if it became law, would so derogate from the  powers of the High Court as to endanger the position  which the High Court is designed to fill under the  Constitution.          55. In making a report under Article 356 the  Governor will be justified in exercising his discretion even  against the aid and advice of his Council of Ministers. The  reason is that the failure of the constitutional machinery  may be because of the conduct of the Council of Ministers.  This discretionary power is given to the Governor to enable  him to report to the President who, however, must act on  the advice of his Council of Ministers in all matters. In this  context Article 163(2) is explicable that the decision of the  Governor in his discretion shall be final and the validity  shall not be called in question. The action taken by the  President on such a report is a different matter. The  President acts on the advice of his Council of Ministers. In  all other matters where the Governor acts in his discretion  he will act in harmony with his Council of Ministers. The  Constitution does not aim at providing a parallel  administration within the State by allowing the Governor to  go against the advice of the Council of Ministers.          56. Similarly Article 200 indicates another instance  where the Governor may act irrespective of any advice  from the Council of Ministers. In such matters where the  Governor is to exercise his discretion he must discharge  his duties to the best of his judgment. The Governor is  required to pursue such courses which are not detrimental  to the State."  The law, however, was declared in the following terms:         "154. We declare the law of this branch of our  Constitution to be that the President and Governor,  custodians of all executive and other powers under various  articles shall, by virtue of these provisions, exercise their  formal constitutional powers only upon and in accordance  with the advice of their Ministers save in a few well-known  exceptional situations. Without being dogmatic or  exhaustive, these situations relate to (a) the choice of  Prime Minister (Chief Minister), restricted though this  choice is by the paramount consideration that he should  command a majority in the House, (b) the dismissal of a  Government which has lost its majority in the House; but  refuses to quit office; (c) the dissolution of the House  where an appeal to the country is necessitous, although in  this area the head of State should avoid getting involved in  politics and must be advised by his Prime Minister (Chief  Minister) who will eventually take the responsibility for the  step. We do not examine in detail the constitutional  proprieties in these predicaments except to utter the  caution that even here the action must be compelled by  the peril to democracy and the appeal to the House or to  the country must become blatantly obligatory. We have no  doubt that de Smith’s statement (Constitutional and



Administrative law \026 by S. A. de Smith \026 Penguin Books on  Foundations of law), regarding royal assent holds good for  the President and Governor in India:   "Refusal of the royal assent on the ground that the  Monarch strongly disapproved of a Bill or that it was  intensely controversial would nevertheless be  unconstitutional. The only circumstances in which the  withholding of the royal assent might be justifiable  would be if the Government itself were to advise  such a course \026 a highly improbable contingency \026 or  possibly if it was notorious that a Bill had been  passed in disregard to mandatory procedural  requirements; but since the Government in the latter  situation would be of the opinion that the deviation  would not affect the validity of the measure once it  had been assented to, prudence would suggest the  giving of assent"." Thus, as rightly pointed out by Mr. Sorabjee, a seven Judges’ Bench of  this Court has already held that the normal rule is that the Governor  acts on the aid and advice of the Council of Ministers and not  independently or contrary to it.   But there are exceptions under which  the Governor can act in his own discretion.  Some of the exceptions  are as set out hereinabove.  It is however clarified that the exceptions  mentioned in the Judgment are not exhaustive.  It is also recognized  that the concept of the Governor acting in his discretion or exercising  independent judgment is not alien to the Constitution.  It is recognized  that there may be situations where by reason of peril to democracy or  democratic principles an action may be compelled which from its  nature is not amendable to Ministerial advice.  Such a situation may be  where bias is inherent and/or manifest in the advice of the Council of  Ministers.           Mr. Sorabjee also points out that this Court in the case of  Ramdas Shrinivas Nayak (supra) has carved out a further  exception.  In this case, an MLA filed a complaint against the then  Chief Minister of Maharashtra in the Court of Metropolitan Magistrate,  28th Court, Esplanade, Bombay, charging the Chief Minister with  commission of offences punishable under Sections 161 and 185 of the  Indian Penal Code and Section 5 of the Prevention of Corruption Act.   The Metropolitan Magistrate refused to entertain the complaint without  requisite sanction of the Government under Section 6 of the  Prevention of Corruption Act.  Against the Order of the Metropolitan  Magistrate, R.S. Nayak filed a Criminal Revision Application in the High  Court of Bombay wherein the State of Maharashtra and Shri Antulay  were impleaded as Respondents.  During the pendency of this Criminal  Revision Application, Shri Antulay resigned as the Chief Minister of the  State of Maharashtra.  A Division Bench of the Bombay High Court  dismissed the Revision Application, but whilst dismissing the  application it was recorded by Gadgil, J. as follows: "However, I may observe at this juncture itself that at one  stage it was expressly submitted by the learned counsel on  behalf of the respondents that in case if it is felt that bias  is well apparently inherent in the proposed action of the  concerned Ministry, then in such a case situation  notwithstanding the other Ministers not being joined in the  arena of the prospective accused, it would be a justified  ground for the Governor to act on his own, independently  and without any reference to any Ministry, to decide that  question."

Kotwal, J. in his concurring judgment observed:

"..... At one stage it was unequivocally submitted by the  learned counsel on behalf of the respondents in no  uncertain terms that even in this case notwithstanding  there being no accusation against the Law Minister as such



if the court feels that in the nature of things a bias in  favour of the respondents and against a complainant would  be manifestly inherent, apparent and implied in the mind  of the Law Minister, then in that event, he would not be  entitled to consider complainant’s application and on the  equal footing even the other Ministers may not be qualified  to do so and the learned counsel further expressly  submitted that in such an event, it would only the  Governor, who on his own, independently, will be entitled  to consider that question."

The State of Maharashtra sought Special Leave to Appeal to this Court,  under Article 136 of the Constitution of India, against that portion of  the Judgment which directed the Governor of Maharashtra to exercise  his individual discretion.  Before this Court it was argued that the High  Court could not have decided that the Governor should act in his  individual discretion and without the aid and advice of the Council of  Ministers.  It was submitted that under Article 163(2) if a question  arose whether any matter was or was not one in which the Governor  was required to act in his discretion, it was the decision of the  Governor which was to be final.  It was also submitted that under  Article 163(3) any advice tendered by the Council of Ministers to the  Governor could not be inquired into by the Court.  This Court noticed  that an express concession had been made in the High Court to the  effect that in circumstances like this bias may be apparently inherent  and thus it would be a justified ground for the Governor to decide on  his own, independently and without any reference to any Ministry.  Before this Court it was sought to be contended that no such  concession had been made out.  This Court held that public policy and  judicial decorum required that this Court does not launch into an  enquiry whether any such concession was made.  It was held that  matters of judicial records are unquestionable and not open to doubt.   It was held that this Court was bound to accept the statement of the  Judges recorded in their Judgment, as to what transpired in Court.    This Court then went on to hold as follows: "10. We may add, there is nothing before us to think  that any such mistake occurred, nor is there any ground  taken in the petition for grant of special leave that the  learned Judges proceeded on a mistaken view that the  learned counsel had made a concession that there might  arise circumstances, under which the Governor in granting  sanction to prosecute a minister must act in his own  discretion and not on the advice of the Council of Ministers.  The statement in the judgment that such a concession was  made in conclusive and, if we may say so, the concession  was rightly made. In the facts and circumstances of the  present case, we have no doubt in our mind that when  there is to be a prosecution of the Chief Minister, the  Governor would, while determining whether sanction for  such prosecution should be granted or not under Section 6  of the Prevention of Corruption Act, as a matter of  propriety, necessarily act in his own discretion and not on  the advice of the Council of Ministers.  11. The question then is whether we should permit  the State of Maharashtra to resile from the concession  made before the High Court and raise before us the  contention now advanced by the learned Attorney-General.  We have not the slightest doubt that the cause of justice  would in no way be advanced by permitting the State of  Maharashtra to now resile from the concession and agitate  the question posed by the learned Attorney-General. On  the other hand we are satisfied that the concession was  made to advance the cause of justice as it was rightly  thought that in deciding to sanction or not to sanction the  prosecution of a Chief Minister, the Governor would act in



the exercise of his discretion and not with the aid and  advice of the Council of Ministers. The application for grant  of special leave is, therefore, dismissed." (Emphasis  supplied)         As has been mentioned above, the Division Bench had noted this  case.  The Division Bench however held that even though this principle  may apply to the case of a Chief Minister it cannot apply to a case  where Ministers are sought to be prosecuted.  We are unable to  appreciate the subtle distinction sought to be made by the Division  Bench.  The question in such cases would not be whether they would  be bias.  The question would be whether there is reasonable ground  for believing that there is likelihood of apparent bias.  Actual bias only  would lead to automatic disqualification where the decision-maker is  shown to have an interest in the outcome of the case.   The principle  of real likelihood of bias has now taken a tilt to ’real danger of bias’  and ’suspicion of bias’.  [See Kumaon Mandal Vikas Ninag Ltd. vs. Girja  Shankar Pant and Others reported in (2000) 1 SCC 182 paras 27, 33  and 35 and Judicial Review of Administrative Action, by de Smith,  Woolf and Jowell (5th Edn. at p.527) where two different spectrums of  the doctrine have been considered].          Another exception to the aforementioned general rule was  noticed in Bhuri Nath and Others etc. vs. State of Jammu &  Kashmir and Others reported in (1997) 2 SCC 745, where the  Governor was to chair the Board in terms of the Jammu and Kashmir  Shri Mata Vaishno Devi Shrine Act, 1988 on the premise that in terms  of the statute he is required to exercise his ex officio power as  Governor to oversee personally the administration, management and  governance of the Shrine.  It was observed that the decision taken by  him would be his own on his personal satisfaction and not on the aid  and advice of the Council of Ministers opining: "... The exercise of powers and functions under the Act is  distinct and different from those exercised formally in his  name for which responsibility rests only with his Council of  Ministers headed by the Chief Ministers."

                In the case of A. K. Kraipak vs. Union of India reported in  1969 (2) SCC 262, the question was whether a selection made by the  Selection Board could be upheld.  It was noticed that one of the  candidates for selection had become a member of the Selection Board.   A Constitution Bench of this Court considered the question of bias in  such situations.   This Court held as follows: "15. It is unfortunate that Naqishbund was appointed  as one of the members of the selection board. It is true  that ordinarily the Chief Conservator of Forests in a State  should be considered as the most appropriate person to be  in the selection board. He must be expected to know his  officers thoroughly, their weaknesses as well as their  strength. His opinion as regards their suitability for  selection to the All India Service is entitled to great weight.  But then under the circumstances it was improper to have  included Naqishbund as a member of the selection board.  He was one of the persons to be considered for selection.  It is against all canons of justice to make a man judge in  his own cause. It is true that he did not participate in the  deliberations of the committee when his name was  considered. But then the very fact that he was a member  of the selection board must have had its own impact on  the decision of the selection board. Further admittedly he  participated in the deliberations of the selection board  when the claims of his rivals particularly that of Basu was  considered. He was also party to the preparation of the list  of selected candidates in order of preference. At every  stage of his participation in the deliberations of the  selection board there was a conflict between his interest



and duty. Under those circumstances it is difficult to  believe that he could have been impartial. The real  question is not whether he was biased. It is difficult to  prove the state of mind of a person. Therefore what we  have to see is whether there is reasonable ground for  believing that he was likely to have been biased. We agree  with the learned Attorney-General that a mere suspicion of  bias is not sufficient. There must be a reasonable likelihood  of bias. In deciding the question of bias we have to take  into consideration human probabilities and ordinary course  of human conduct. It was in the interest of Naqishbund to  keep out his rivals in order to secure his position from  further challenge. Naturally he was also interested in  safeguarding his position while preparing the list of  selected candidates.  16. The members of the selection board other than  Naqishbund, each one of them separately, have filed  affidavits in this Court swearing that Naqishbund in no  manner influenced their decision in making the selections.  In a group deliberation each member of the group is bound  to influence the others, more so, if the member concerned  is a person with special knowledge. His bias is likely to  operate in a subtle manner. It is no wonder that the other  members of the selection board are unaware of the extent  to which his opinion influenced their conclusions. We are  unable to accept the contention that in adjudging the  suitability of the candidates the members of the board did  not have any mutual discussion. It is not as if the records  spoke of themselves. We are unable to believe that the  members of selection board functioned like computers. At  this stage it may also be noted that at the time the  selections were made, the members of the selection board  other than Naqishbund were not likely to have known that  Basu had appealed against his supersession and that his  appeal was pending before the State Government.  Therefore there was no occasion for them to distrust the  opinion expressed by Naqishbund. Hence the board in  making the selections must necessarily have given weight  to the opinion expressed by Naqishbund."         On the basis of the ratio in this case Mr. Sorabjee rightly  contends that bias is likely to operate in a subtle manner.  Sometime  members may not even be unaware of the extent to which their  opinion gets influenced.         Again in the case of Kirti Deshmankar vs. Union of India,  reported in 1991 (1) SCC 104, the mother-in-law of the selected  candidate had participated in the Selection Committee.  This Court  held that the mother-in-law was vitally interested in the admission of  her daughter-in-law and her presence must be held to have vitiated  the selection for the admission.  It was held that there was a conflict  between interest and duty and taking into consideration human  probabilities and the ordinary course of human conduct, there was  reasonable ground to believe that she was likely to have been biased.         Article 163 has been extracted above.  Undoubtedly, in a matter  of grant of sanction to prosecute the Governor is normally required to  act on aid and advice of the Council of Ministers and not in his  discretion.  However, an exception may arise whilst considering grant  of sanction to prosecute a Chief Minister or a Minister where as a  matter of propriety the Governor may have to act in his own  discretion.  Similar would be the situation if the Council of Ministers  disable itself or disentitles itself.         Mr. Tankha, on behalf of the Ministers, submitted that a case of  Chief Minister would be completely different from that of Ministers.    He submitted that in this case the Council of Ministers had considered  all the materials and had applied their minds and come to the  conclusion that sufficient material to grant sanction was not there.  He



submitted that the Governor was not an Appellate Body and he could  not sit in Appeal over the decision of the Council of Ministers.  He  submitted that the decision of the Council of Ministers could only have  been challenged in a Court of Law.            Mr. Tankha submitted that the theory of bias cannot be applied  to the facts of this case.  In support of his submission, he relied upon  the case of V.C. Shukla vs. State (Delhi Administration), reported  in (1980) Supp. SCC 249, wherein the vires of the Special Court Act,  1979 had been challenged.   Under Section 5 of the Special Court Act,  sanction had to be granted by the Central Government.  Sub-section  (2) of Section 5 provided that the sanction could not be called in  question by any Court.   It had been submitted that this would enable  an element of bias or malice to operate by which the Central  Government could prosecute persons who are political opponents.    This Court negatived this contention on the ground that the power was  vested in a very high authority and therefore it could not be assumed  that it was likely to be abused.  This Court held that as the power was  conferred on a high authority the presumption would be that the  power would be exercised in a bonafide manner and according to law.   Mr. Tankha also relied upon the case of State of Punjab vs. V.K.  Khanna, reported in 2001 (2) SCC 330.  In this case, two senior IAS  Officers in the State of Punjab were sought to be prosecuted after  obtaining approval from the then Chief Minister of Punjab.  Thereafter,  there was a change in the Government.  The new Government  cancelled the sanction granted earlier.  The question before the Court  was whether the action in withdrawing the sanction was fair and  correct.  This Court held that fairness was synonymous with  reasonableness and bias stood included within the attributes and  broader purview of the word "malice".   This Court held that mere  general statements were not sufficient but that there must be cogent  evidence available to come to the conclusion that there existed a bias  which resulted in a miscarriage of justice.  Mr. Tankha also relied upon  the case of Kumaon Mandal Vikas Nigal Ltd. vs. Girja Shankar  Pant, reported in 2001 (1) SCC 182.  In this case, the question was  whether the Managing Director had a bias against the Respondent  therein.  This Court held that mere apprehension of bias was not  sufficient but that there must be real danger of bias.  It was held that  the surrounding circumstances must and ought to be collated and  necessary conclusion drawn therefrom.   It was held that if on facts  the conclusion was otherwise inescapable that there existed a real  danger of bias, the administrative action could not be sustained.   It  was held that if, on the other hand, the allegations pertaining to bias  are rather fanciful, then the question of declaring them to be  unsustainable would not arise.         There can be no dispute with the propositions of law.  However,  in our view, the above authorities indicate that if the facts and  circumstances indicate bias, then the conclusion becomes inescapable.           Mr. Tankha is not right when he submits that the Governor  would be sitting in Appeal over the decision of the Council of Ministers.    However, as stated above, unless a situation arises as a result whereof  the Council of Ministers disables or disentitles itself, the   Governor in such matters may not have any role to play.  Taking a cue  from Antulay, it is possible to contend that a Council of Ministers may  not take a fair and impartial decision when his Chief Minister or other  members of the Council face prosecution.  But the doctrine of  ’apparent bias’, however, may not be applicable in a case where a  collective decision is required to be taken under a statute in relation to  former ministers.  In a meeting of the Council of Ministers, each  member has his own say.  There may be different views or opinions.   But in a democracy the opinion of the majority would prevail.           Mr. Soli J. Sorabjee has not placed any material to show as to  how the Council of Ministers collectively or the members of the Council  individually were in any manner whatsoever biased.  There is also no  authority for the proposition that a bias can be presumed in such a  situation.   The real doctrine of likelihood of bias would also not be



applicable in such a case.  The decision was taken collectively by a  responsible body in terms of its constitutional functions.  To repeat  only in a case of ’apparent bias’, the exception to the general rule  would apply.         On the same analogy in absence of any material brought on  records, it may not be possible to hold that the action on the part of  the Council of Ministers was actuated by any malice.  So far as plea of  malice is concerned, the same must be attributed personally against  the person concerned and not collectively.  Even in such a case the  persons against whom malice on fact is alleged must be impleaded as  parties.          However, here arises another question.  There are two  competing orders; one of the Council of Ministers, another by the  Governor, one refusing to grant sanction another granting the same.   The Council of Ministers had refused to grant sanction on the premise  that there existed no material to show that the Respondent No. 4 in  each appeal has committed an offence of conspiracy, whereas the  Governor in his order dated 24th September, 1998 was clearly of the  view that the materials did disclose their complicity.         A F.I.R. was lodged in relation to the commission of offence on  31st March, 1998.         The Lokayukta for the State of Madhya Pradesh admittedly made  a detailed inquiry in the matter on a complaint received by him.  The  inquiry covered a large area, namely, the statutory provisions, the  history of the case, Orders dated 11th August, 1995, 24th February  1997 and 5th March, 1997 which were said to have been passed on the  teeth of the statutory provisions, the clandestine manner in which the  matter was pursued, the notings in the files as also how the accused  persons deliberately and knowingly closed their minds and eyes from  the realities of the case.  The report of the Lokayukta is itself replete  with the materials which led him to arrive at the conclusion which is as  under:         "Having gone through the record of the IDA and the  State Government and the statements recorded by Shri  P.P. Tiwari and the replies of the two Ministers Shri B.R.  Yadav and Shri Rajendra Kumar Singh and Shri R.D.  Ahirwar the then Additional Secretary, Department of  Environment, I have come to the conclusion that this is a  fit case in which an offence should be registered.   Therefore, in exercise of the powers vested in me u/s 4(1)  of the M.P. Special Police Establishment Act, I direct the  D.G. (SPE) to register and investigate an offence against  Shri B.R. Yadav, Minister, Shri Rajendra Kumar Singh,  Minister and Shri R.D. Ahirwar the then Additional  Secretary under relevant provisions of the P.C. Act, 1988  and I.P.C.  It is also directed that investigation in this case  will be done by an officer not below the rank of S.P.   The  entire record be transferred to the SPE Wing."

       The Office of the Lokayukta was held by a former Judge of this  Court.  It is difficult to assume that the said High Authority would give  a report without any material whatsoever.  We, however, do not  intend to lay down any law in this behalf.  Each case may be judged on  its own merits.  In this case, however, we are satisfied that the  Lokayukta made a report upon taking into consideration the materials  which were placed or received by him.  When the Council of Ministers  takes a decision in exercise of its jurisdiction it must act fairly and  reasonably.  It must not only act within the four-corners of the statute  but also for effectuating the purpose and object for which the statute  has been enacted.  The Respondent No. 4 in each appeal are to be  prosecuted under the Prevention of Corruption Act wherefor no order  of sanction is required to be obtained.  A sanction was asked for and  granted only in relation to an offence under Section 120B of the Indian  Penal Code.  It is now trite that it may not be possible in a given case  even to prove conspiracy by direct evidence.  It was for the Court to



arrive at the conclusion as regard commission of the offence of  conspiracy upon the material placed on records of the case during trial  which would include the oral testimonies of the witnesses.  Such a  relevant consideration apparently was absent in the mind the Council  of Ministers when it passed an order refusing to grant sanction.  It is  now well-settled that refusal to take into consideration a relevant fact  or acting on the basis of irrelevant and extraneous factors not  germane for the purpose of arriving at the conclusion would vitiate an  administrative order.  In this case, on the material disclosed by the  Report of the Lokayukta it could not have been concluded, at the  prima-facie stage, that no case was made out.         It is well-settled that the exercise of administrative power will  stand vitiated if there is a manifest error of record or the exercise of  power is arbitrary.  Similarly, if the power has been exercised on the  non-consideration or non-application of mind to relevant factors the  exercise of power will be regarded as manifestly erroneous.         We have, on the premises aforementioned, no hesitation to hold  that the decision of the Council of Ministers was ex facie irrational  whereas the decision of the Governor was not.  In a situation of this  nature, the writ court while exercising its jurisdiction under Article 226  of the Constitution of India as also this Court under Articles 136 and  142 of the Constitution of India can pass an appropriate order which  would do complete justice to the parties.  The High Court unfortunately  failed to consider this aspect of the matter.         If, on these facts and circumstances, the Governor cannot act in  his own discretion there would be a complete breakdown of the rule of  law inasmuch as it would then be open for Governments to refuse  sanction in spite of overwhelming material showing that a prima-facie  case is made out.  If, in cases where prima-facie case is clearly made  out, sanction to prosecute high functionaries is refused or withheld  democracy itself will be at stake.   It would then lead to a situation  where people in power may break the law with impunity safe in the  knowledge that they will not be prosecuted as the requisite sanction  will not be granted.          Mr. Tankha also pressed into play the doctrine of necessity to  show that in such cases of necessity it is the Council of Ministers which  has to take the decision.  In support of this submission he relied upon  the cases of J. Mohapatra and Co. vs. State of Orissa reported in  1984 (4) SCC 103; Institute of Chartered Accountants vs. L.K.  Ratna reported in 1986 (4) SCC 537; Charan Lal Sahu vs. Union of  India reported in 1990 (1) SCC 613; Badrinath vs. Government of  Tamil Nadu reported in 2000 (8) SCC 395; Election Commission of  India vs. Dr. Subramaniam Swamy reported in 1996 (4) SCC 104;  Ramdas Shrinavas Nayak (supra) and State of M. P.  vs. Dr.  Yashwant Trimbak reported in 1996 (2) SCC 305.   In our view, the  doctrine of necessity has no application to the facts of this case.   Certainly the Council of Ministers has to first consider grant of  sanction.  We also presume that a high authority like the Council of  Ministers will normally act in a bonafide manner, fairly, honestly and in  accordance with law.   However, on those rare occasions where on  facts the bias becomes apparent and/or the decision of Council of  Ministers is shown to be irrational and based on non-consideration of  relevant factor, the Governor would be right, on the facts of that case,  to act in his own discretion and grant sanction.           In this view of the matter appeals are allowed. The decisions of the Single Judge an d  Division Bench cannot be upheld and are accordingly set aside.  The  Writ Petitions filed by the two Ministers will stand dismissed.   For the  reasons aforementioned we direct that the Order of the Governor  sanctioning prosecution should be given effect to and that of the  Council of Ministers refusing to do so may be set aside.    The Court  shall now proceed with the prosecution.  As the case is very old, we  request the Court to dispose off the case as expeditiously as possible.