S PARTAP SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE Judgment of S. K. Das, Subba Rao and Rajagopala Ayyangar JJ. was delivered by

(2.) THIS appeal is against a judgment of the High court, Punjab, dismissing a petition filed by the appellant in that court under Art. 226 of the Constitution and has been preferred pursuant to a certificate of fitness granted under Art. 133(1) (c).

(3.) IF this were put aside, the second ground of attack on the orders may be viewed from two related aspects--of ultra vires pure and simple and secondly as an infraction of the rule that every power vested in a public body or authority has to be used honestly, bona fide and reasonably, though the two often slide into each other. Thus Sir Lyman Duff, speaking in Municipal council of Sydney v. Campbell(1) in the context of an allegation that the statutory power vested in a municipal corporation to acquire property had been used in bad faith which was held to have been proved stated : 'A body such as the Municipal council of Sydney, authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the courts will interfere. As Lord Loreburn said, in Marquess of Clanricarde v. Congested Districts Board (79 J.P. 481) : 'Whether it does so or not is a question of fact.' Where the proceedings of the council are attacked upon this ground, the party impeaching those proceedings must, of course, prove that the council, though professing to exercise its powers for the statutory purpose, is in fact employing them in furtherance of some ulterior object.' Similarly, in Short v. Poole Corporation(') Pollock M. R. observed : 'The appellants (represented before the court by Maugham K. C.-afterwards Lord Maugham) do not contest the proposition that where an authority is constituted under statute to carry out statutory powers with which it is entrusted, . . ... . if an attempt is made to exercise those powers corruptly-as under the influence of bribery, or mala fide-for some improper purpose, such an attempt must fail. It is null and void see Reg. v. governors of Darlington School (6 Q.B. 682, 715).' In, the same case Warrington, L.T., said 'No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives and any action purporting to be that of the body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative. It may be also possible to prove that an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body, and therefore inoperative. It is difficult to suggest any act which would be held ultra vires under this head, though performed bona fide,' It was really the first aspect of ultra vires that was stressed by Lord Parker when in Vatcher v. Paull(1) at page 378 of the report he spoke of a power exercised for a purpose or with an intention beyond the scope of or not justified by the instrument creating the power. In legal parlance it would be a case of a fraud on a power, though no corrupt motive or bargain is imputed. In this sense, if it could be shown that an authority exercising a power has taken into account-it may even be bona fide and with the best of intentions,--as a relevant factor something which it could not properly take into account, in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Sometimes courts are confronted with cases where the purposes sought to be achieved are mixed,-some relevant and some alien to the purpose. The courts have, on occasions, resolved the difficulty by finding out the dominant purpose which impelled the action, and where the power itself is conditioned by a purpose, have proceeded to invalidate the exercise of the power when any irrelevant purpose is proved to have entered the mind of the authority (See Sadler v. Sheffield Corporation(2) as also Lord Denning's observation Earl Fitzwilliam etc. v. Minister of T. and C. Planning(3). This is on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is not cured by saying that they had another purpose which was lawful.