KANHU CHERAN ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioners' grievance is that notwithstanding several demands by the members of public, and recommendation by Members of Legislative Assembly no action is being taken for opening of a Primary Health Centre at Kamuleipithasthali of village Paramanandapur. It is stated that a resolution was adopted by Pachhikote Gram Panchayat to open a Hospital within the local limits of the said Gram Panchayat. Petitioners and other villagers requested local M.L.A. to recommend for opening of a new P.H.C. in village Paramanandapur. He requested the Chairman of the District Development Board to open a P.H.C. at Ragadi of Korai Block. Subsequently on 12-4-1991 he requested the concerned Minister to open a new P.H.C. at Kamuleipitha of village Paramanandapur at Regadi. With reference to the letter dated 27-6-1991 of Under Secretary of Government addressed to the Director of Health Services, Orissa (Annexure-4 to the writ application) it is submitted that recommendation has been made for opening of P.H.C. at Pachhikote Gram Panchayat within Korai Block. According to petitioners location of the P.H.C. at that place would be unsuitable and would not serve the desired purpose. It is alleged that the decision taken is outcome of mala fides and has resulted from political interference. Petitioners submit that in the greater interest of people decision taken by the Gram Panchayat should have been given effect to particularly when the elected representative recommended for location of P.H.C. at Kamuleipithasthali. It is also submitted that land has also been ear-marked, and steps have been taken for transfer of the land in favour of the concerned Block Development Officer.

(2.) Learned counsel for State submits that the scope for interference in a matter of this nature is very limited, while exercising jurisdiction under Art. 226 of the Constitution of India, 1950. The decision is an administrative one, and is not subject to judicial scrutiny. The action is not tainted with mala fides and there is no question of any political interference.

(3.) The first point that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. 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 Edition at pages 285-287 states the legal position in his own terse language that 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 dictates 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 goodfaith, must have regard to all relevant considerations and must not be influenced 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. 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 exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body in acts ultra vires. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those mass 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. Judicial review has 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 is 'illegality, the second 'irrationality', and the third' procedural impropriety.' These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 All ER 935. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. The effect of several decisions on the question of jurisdiction have been summed up by Grahame Aldous and Johnx Alder in their applications for Judicial Review, Law and Practice thus: