Holding

Courts may review an externment order under the Delhi Police Act only on the limited grounds of illegality, irrationality or procedural impropriety; a detailed order explaining why the other statutory options were not chosen is not required, and the High Court’s quashing of the order was erroneous.

Summary

The State of NCT of Delhi appealed against a Delhi High Court order that had set aside an externment order issued under Section 47 of the Delhi Police Act, 1978, which directed a police officer to leave Delhi for one year. The High Court had held that the order lacked sufficient material and reasoning, particularly that the authority had not explained why the other two statutory options were not chosen. The Supreme Court examined the scope of judicial review under Section 52 of the Act and held that courts may intervene only when a decision is tainted by illegality, irrationality or procedural impropriety, and that Section 52 does not bar such review. It further held that a detailed order enumerating all three options is not a statutory requirement and that the period of externment can be questioned only on the limited grounds listed in Section 52. Consequently, the High Court’s quashing of the externment order was erroneous and the appeal was allowed, restoring the order of externment.

Issues considered

The extent of judicial review of administrative orders under the Delhi Police Act, particularly in view of Section 52's limited grounds for challenge.
Whether a detailed reasoning and explicit consideration of all three options under Section 47 are mandatory for a valid externment order.
Whether the period of externment can be questioned in a writ petition.
Whether the satisfaction of the Commissioner of Police can be interfered with on grounds of illegality, irrationality or procedural impropriety.

Legislation cited

Constitution of Indias. Article 226
Delhi Police Act, 1978s. 47, s. 50, s. 51, s. 52

Subjects

administrative lawjudicial reviewexternmentDelhi Police ActSection 47Section 52procedural improprietyillegalityirrationalitydiscretionwrit petitionArticle 226

Judgment

STATE OF N.C.T. OF DELHI AND ANR. A
v.
SANJEEV @ BITTOO

APRIL 4, 2005

[ARIJIT PASA Y AT AND S.H. KAPADIA, JJ.] B

Constitution of India, 1950-Article 226-Delhi Police Act, 1978-
Sections 47, 51and52-Administrative decision-Judicial interference-Scope
of-Held: Courts should be slow to interfere in matters relating to C
administrative functions unless decision is tainted by illegality, irrationality .
and procedural propriety-Section 52 though limits the scope ofconsideration
by the Courts, the scope ofjudicial review in writ petition is not restricted

Respondent-Police Officer passed an order under Section 47 of Delhi
Police Act, 1978 directing externment of the respondent from the limits D
of NCT Delhi for a certain period. The order was challenged u/s.51 of the
Act which was rejected by the Lieutenant Governor. Writ Petition was
also dismissed by High Court holding that pre-requisites for passing an
order u/s.47 of the Act were not available; and that there was no clear
material or elaborate reasoning indicated to show that alternative options
were examined and only one of them was adopted. E
Jn appeal to this Court, appellant contended that it was not necessary
to pass detailed order while exercising powers under the Act to direct
externment; that the question of period of externment could not be
questioned in a Writ Petition; that respondent-Police Officer not only F
enumerated the various acts with reference to materials but also came t~
hold that immediate action in terms of Section 47 was necessary and all
relevant details were given; and that the fact that one of the options was
adopted after analyzing factual scenario clearly indicated that the other
two options were not considered sufficient enough to deal with the
particular situation. G
Disposing of the appeal, the Court

HELD : 1.1. Administrative action is referable to broad area of
Governmental activities in which the repositories of power may exercise
151 H
152 SUPREME COURT REPORTS [2005] 3 S.C.R.

A 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.

State of 0.P. and Ors. v. Renusagar Power Co. and Ors., AIR (1988)
B SC 1737, referred to.

"Judicial Review of Administrative Action" by De Smith, 4th Edition
pages 285-287, referred to.

1.2. The authority in which discretion is vested can be compelled to
C exercise that discretion, but not to exercise it in any particular manner.
In general, 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 discretion in each individual case. In the purported
D exercise of its discretion, it must not do what it has been forbidden to do,
nor must it do what it has not been authorized to do. It must act in good
faith, must have regard to all relevant considerations and must not be
influenced by irrelevant considerations, must not see~ 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. T'1ese several principles ·
E can 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 whi:re
an authOrity hands over its discretion to another body it acts ultra vires.
(161-B-EJ
F
. 1.3. The grounds on which administrative action is subject to control
by judicial review can be classified into three heads. The first ground is
'illegality' the second 'irrationality', and the third 'procedural
impropriety'. If the power has been exercised on a non-consideration or
G 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.
. (161-F-H; 162-AJ

H Commissioner of Income-tax v. Mahindra and Mahindra Ltd., AIR
STATE OF N.C.T. OF DELHI v. SANJEEV@BITTOO 153
(1984) SC 1182, referred to. A
Council ofCivil Service Unions v. Minister for the Civil Service, [19841
3 All. ER. 935 and Padfield v. Minister of Agriculture, Fisheries and Food,
LR (1968) AC 997, referred to.

"Applications for Judicial Review, Law and Practice" by Grahame B
Aldous and John Alder, referred to.

1.4. The Court will be slow to interfere in matters relating to
administrative functions unless decision is tainted by any vulnerability like
illegality, irrationality and procedural impropriety. Whether action falls
within any of the categories has to be established. Mere assertion in that C
regard would not be sufficient. (162-F-GI

1.5. To arrive at a decision on "reasonableness" the Court has to
find out if the administrator has left out relevant factors or taken into
account irrelevant factors. The decision of the administrator must have
been within the four corners of the law, and not one which no sensible D
person could have reasonably arrived at, and must have been a bona fide
one. The decision could be one of many choices open to the authority but
it was for that authority to decide upon the choice and not for the Court
to substitute its view. In essence, the test is to see whether there is any
infirmity in the decision making process and not in the decision itself. E
[163-F-G)

- Union of India and Anr. v. G. Ganayutham, [19971 7 SCC 463 and
Indian Railway Construction Co. Ltd v. Ajay Kumar, (20031 4 SCC 579,
referred to.
F
Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. All
ER 682, referred to.

2.1. Though Section 52 of Delhi Police Act, 1978 limits the scope of
consideration by the Courts, the scope for judicial review in writ
jurisdiction is not restricted, subject to the parameters of illegality, G
irrationality and judicial impropriety. (164-GI

2.2. Satisfaction of the authority can be interfered with if the
satisfaction recorded is demonstratively perverse based on no evidence,
misreading of evidence or which a reasonable man could not form or that
the person concerned was not given due opportunity resulting in prejudice. H
154 SUPREME COURT REPORTS [2005] 3 S.C.R.

A To that extent, objectivity is inbuilt in the subjective satisfaction of the
authority. (165-B-CJ

Gazi Sududdin v. State of Maharashtra and Anr., 12003) 7 SCC 330,
relied on.

B 2.3.The material justifying externment can also throw light on
options to be exercised. If referring to the materials, the authority directing
externment also indicates the option he thinks to.be proper and
appropriate, it can not be said to be vitiated even though there is no specific
reference to the other optii>ns. It is a matter of legftimllte inference that
when considering materials to adjudicate on the qu'estion .of desirability
C for externment, options are also considered and one of the three options
can be adopted. There cari not be any hair spiitting in such matters. A
little play in the points is certainly permissible while dealing with such
matters. In the present case, all the relevant aspects were considered and
High Court was not justified in holding to the contrary. (165-C-D)

D Bhim Singh v. Lt. Governor of Delhi and Anr., (2002) 2 JCC 1132;
Pandharinath Shridhar Rangnekar v. Dy. Commissioner of Police, The State
of Maharashtra, ll.973) 1 SCC 372; Gazi Sududdin v. State of Maharashtra
and Anr., (2003) 7 SCC 336 and Dheeraj v. State (NCT of Delhi) (2001) V
AD:(Delhi) 672, referred to.

E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 498
of 20'05,

Fonn the Judgment and Order dated 28.11.2003 of the Delhi High
Court in Crl.W.P. No. 796 of 2003.

F Ms. Mukta Gupta, Mukul Gupta and Ankur Jain for the Appellants.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

The true scope and ambit of Section 51 of the Delhi Police Act, 1978
G (in short the 'Act') falls for determination. Notice dated 20.5.2002, was issued
by Deputy Commissioner of Police, (South-West) District, New Delhi, under
Section 50 of the Act requiring the no~icee to show cause as to why action
in terms of Section 47 of the Act should not be taken against him. In the
notice it was noted that since March 1997 he was engaged in several Hlegal
H acts in his activities and movement in the area of P.S. Dwarka, were causing
STATE OF N.C.T. OF DELHI v. SANJEEV@BITTOO [PASAYAT, J.] 155
alarm to the residents. List of 7 cases under various penal statutes on the A
basis of the records of the concerned police station was given. It was indicated
that the witnesses including camera witnesses were not willing to give evidence
in public against him because of the fear of danger to their person and
properties. There was no written reply to the notice, but the noticee appeared
and examined a witness to show that he was innocent. After the grant of B
further oppoitunities appellant no.5-Additional Deputy Commissioner of Police
passed an order under Section 47 of the Act directing that the respondent
should remove himself beyond the limits of NCT of Delhi for a period of one
year w.e.f. 25.12.2002. He was permitted to attend the courts at Delhi on all
the dates of hearing and thereafter immediately remove himself out of the
limits ofNCT of Delhi, but not to visit any place except courts premises. The C
relaxation was only for the date of hearing for the cases before the Courts.
The 1contents of the order were explained to him and a copy was also delivered
to him.

The order was challenged before the Lieutenant Governor of Delhi who
rejected the appeal under Section 51 of the Act. D
A writ petition was filed before the Delhi High Court. By the impugned
judgment a learned Single Judge quashed the order observing that pre-requisites
for passing an order under Section 47 of the Act were not available. For
coming to such conclusion reliance was placed on a Division Bench Judgment E
of the Delhi High Court in Bhim Singh v. Lt. Governor of Delhi and Anr.,
(2002) 2 JCC 1132. Learned Single Judge was of further view that in Bhim
Singh 's case (supra) it was noted by the Division Bench that authority passing
the order under Section 47 of the Act has to clearly indicate as to why one
of the three options available was not being adopted. In the instant case,
learned Single Judge held that there was no clear material or elaborate p
reasoning indicated to show that alternative options were examined and only
one of them was adopted. Said order of the learned Single Judge is the
subject-matter of challenge.

It was noted at the time of issuance of notice that though the extemment
order had worked out itself on account of affiux of time because of certain G
apparent divergence in views expressed by several Benches of the High
Court, the matter needs to be examined.

In spite of notice no one appeared on behalf of the respondent.

In support of the appeal Ms. Mukta Gupta, Advocate, submitted that H
156 SUPREME COURT REPORTS (2005) 3 S.C.R.

A both learned Single Judge and the Division Bench in Bhim Singh 's case
(supra) lost sight of'Section 52 of the Act. The said provision provides the ·
limited grounds on which the order under Section 4 7 can be questioned
before any court. It was also submitted that a detailed order is not necessary
to be passed while exercising powers under the Act to direct extemtnent.
B Strong reliance was placed on decisions of this Court in Pandharinath Shridhar t

Rangnekar v. DJ'. Commissionerof Police, The State of Maharashtra, [1973)
1 SCC 372 and Gazi Sududdin v. State of Maharashtra and Anr., [2003) 7
sec 330 to buttress the plea.
It was also pointed out that a clearly divergent view was taken by
C another Division Bench of the Delhi High Court in Dheeraj v. State, (NCT
of Delhi) (2001.V AD (Delhi) 672), which was not noted in Bhim Singh's
case (supra). In the said case a Division Bench of the High Court held that
the question of period of exterment cannot be questioned in a writ petition.

In order to appreciate the submissions it would be necessary to quote
I) Sections 47, 51 and 52 of the Act. They read as follows:-

"47. Removal of persons to commit offences - Whenever it appears to
the Commissioner of Police -

(a) that the movement or acts of any person are causing or are -.
calculated to cause alarm, danger or harm to person or property;
E
or
(b) that there are reasonable grounds for believing that such person
is engaged or is about to,. be engaged in the commission of an_
offence involving force or violence or an offence punishable
under Chapter XII, Chapter XVI, Chapter XVII or Chapter XXII
F of the Indian Penal Code or under Section 290 or Section 498A
to 489E (both inclusive) of that Code or in the abatement of any
such offence; or
(c) that such person -
(i) is so desperate and dangerous as to render his being at large in
G
Delhi or in any part thereof hazardous to the community; or
(ii) has been found habitually intimidating other persons by acts of
violence or by show force; or
(iii) habitually commits affray or breach of peace or riot, or habitually
H makes forcible collection of subscription or threatens people for
STATE OF N.C.T. OF DELHI v. SANJEEV@BITTOO [PASAYA T, J.] 157
illegal pecuniary gain for himself or for others; or A
(iv) has been habitt:ally passing indecent remarks on women an girls,
or teasing them by overtures;

and that in the opinion of the Commissioner of Police witnesses
are not willing to come forward to give evidence in public against B
such person by reason of apprehension on their part as regards
the safety of their person or property, the Commissioner of Police
may, by order in writing duly served on such person, or by beat
of drum or otherwise as he thinks fit, direct such person to so
conduct himself as shall seem n~cessary in order to prevent
violence and alarm or to remove himself outside Delhi or any C
part thereof by such route and within such time as the
Commissioner of Police may specify and not to enter or return
to Delhi or part thereof, as the case may be, from which he was
directed to remove himself.

Explanation - A person who during a period within one year D
immediately preceding the commencement of an action under this
section has been found on not less than three occasions to have
committed or to have been involved in any of the acts referred to in
this section shall be deemed to have habitually committed the act.

Section 51: Appeal against orders under sections 46, 4 7 or 48 - (I) E·
Any person aggrieved by an order made under Section 46, Section 47
or Section 48 may appeal to the Administrator within thirty days
from the date of the service of such order on him.

(2) An appeal under this section shall be preferred in duplicate in the
form of a memorandum, setting forth concisely the grounds of F
objection to the order appealed against, and shall be accompanied by
that order or a certified copy thereof.

(3) On receipt of such appeal, the Administrator may, after giving a
reasonable opportunity to the appellant to be heard either personally G
or by a counsel and after such further inquiry, if any, as he may deem
necessary, confirm vary or set aside the order appealed against:

Provided that the order appealed against shall remain in force
pending the disposal of the appeal, unless the Administrator otherwise
directs.
H
158 SUPREME COURT REPORTS [2005] 3 S.C.R.

A (4) The Administrator shall make every endeavour to dispose of an
appeal under this section within a period of three months from the
date of receipt of such appeal.

(5) In calculating the period of thirty days provided for an appeal
under this section, the time taken for obtaining a certified copy of the
B order appealed against, sh.ail be excluded. r
~
Section 52: Finality of order in certain cases:- An order passed by the '
~
Commissioner of Police under Section 46, Section 47 or Section 48 I-

or the Administrator under Section 51 sJ1all not. be called in question t
in any court except on the ground -
c
(a) that the Commissio.ner of Police or the Administrator, as the case
may be, had not followed the procedure laid down in sub-section
( 1), sub-section (2) or sub-section (4) of Section 50 or in Section
51, as the case may be; or

D (b) that there was no material before the Commissioner of Police or
the Administrator, as the case may be, upon which he could have
based his order;
.. or
·.
(c) in the case of any order made under Section 4 7 or an order in
appeal therefrom to the Administrator under Section 51, the
E Commissioner of Police or the Administrator, as the case may
be, was not of the opinion that witnesses were unwilling to come
forward to give evidence in public against the person whom such
order has been made."

Section 47 consists of two parts. First part relates to the satisfaction of
F the Commissioner of Police or any authorized officer reaching a conclusion
that movement or act of any person are causing alarm and danger to person
or property or ti.at there are reasonable grounds for believing that such person
is engaged or is about to be engaged in commission of enumerated offences
or in the abetment of any such offence or is so desperate and dangerous as
to render his being at large hazardous to the community. Opinion of the
G concerned officer has to be formed that witnesses are not willing to come
forward in public to give evidence against such person by reason of
apprehension on their part as regards safety of person or property. After these
opinions are formed on the basis of materials forming foundation therefor the
Commissioner can pass an order adopting any of the available options as ·
H provided in the provision itself. The three options are: ( 1j to direct such
STATE OF N.C.T. OF DELHI v. SANJEEV@BITTOO [PASAYAT, J.] 159

person to so conduct himself as deemed necessary in order to prevent violence A
and alann or (2) to direct him to remove himself outside any part of Delhi
or (3) to remove himself outside whole of Delhi.

Ms. Mukta Gupta, learned counsel, submitted that by the impugned
order passed by the Additional Deputy Commissioner of Police (South-West)
....... District, New Delhi, not only enumerated the variow; acts with -reference to
materials but also came to hold that immediate action in terms of Section 47
B

was necessary and all relevant details were given. The grounds on which the
satisfaction was arrived at so far as first part of Section 47 are also relevant
for the purpose of adopting any of the three options. The fact that one of the
options was adopted after analyzing factual scenario clearly indicates that the C
other two options were not considered sufficient enough to deal with the
particular situation in the case at hand.

In Pandarinath 's case (supra) this Court was considering the scope and
ambit of Section 56 of the Bombay Police Act, 1951 (in short 'the Bombay
Act'). It was held that extemee was entitled to know the material allegations D
and their general nature. In the said case five points were raised in support
of the appeal by the extemee. They are as follows:

(i) The allegation that witnesses were not willing to.come forward
to depose against the appellant:in public is falsified by the very
record of the present proceedings. E
(ii) The particulars contained in the notice issued under Section 59
of the Act, are so vague that the appellant could not possibly
meet the allegations made against him and thus he was denied
reasonable opportunity to defend himself.

(iii) The externing authority must pass a reasoned order or else the F
right of appeal.would become illusory.
(iv) The State Government also ought to have given reasons in support
of the order dismissing the appeal. Its failure to state reasons
shows non-application of mind; and
G
(v) The order of extemment imposes unreasonable restrictions on
the personal liberty of the appellant in that, whereas his activities
are alleged to be restricted to an area within the jurisdiction of
the Vila Parle Police Station, the order of externment not only
extends to the whole District of Greater Bombay but to the District
of Thana also. · H
160 SUPREME COURT REPORTS [2005] 3 S.C.R.

A In para 14 of the judgment this Court dealt with third and fourth point
and held as follows:

"The third and fourth points have the same answer as the second
point just dealt with by us. Precisely for the reasons for which the
proposed extemee is only entitled to be informed of the general nature
B of the material allegations, neither the exteming authority nor the
State Government in appeal can be asked to write a reasoned order
in the nature of a judgment. If those authorities were to discuss the
e"vidence. in: the case, it would be easy to fix the identity of witnesses
·-
who are unwilling to dispose in pu~lic against the proposed extemee
extemess. A reasoned order contal!ling a discussion of the ~vidence
c led against the externee would probably spark off another round of
tyranny and harassment." ·

As regards the period, it was heid that it is primarily for the externing
authori~y to decide how best the order can be made t?ffective, so as to subser\re
D its real purpose. How long within the statutory limit of two years fixed by
Section 58, the ~rder shall operate and to what territories, within the statutory
limitations of Section 58 it should extend are matters which must depend
upon his decision on the nature of the data which the authority is able to
collect in the extemment proceedings. No general formulation can be made
that order of extemment must always be restricted to the area to which the
E illegal activities of the extemee. There can be doubt that the executive order ·
has also to show when questioned that there was application of mind. It is the
existence of material and not the sufficiency of material which can· be
questioned as the satisfaction is primarily subjective somewhat similar to one
required to be arrived at by the detaining authority under the preventive
detention laws. The scope of judicial review of administrative orders is rather
F limited. The consideration is limited to the legality of decision-inaking process
and. not legality of the order per se. Mere possibility of anot_her view cannot
be ground for interference.

One of the points that falls for determination is the scope for judicial
G 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 o~ administrative, will be set aside if there is
manifest error in the exercise of such power or the exercise of the power is
H manifestly arbitrary (See State of U. P. and Ors. v. Renusagar Power Co. and
STATE OF N.C.T. OF DELHI v. SANJEEV@BITTOO [PASAYAT, J.] 161

Ors. , AIR (l 988) SC 1737. At one time, the traditional view in England was A
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 summarized as follows. The authority
in which discretion is vested can be compelled to exercise that discretion, but B
not to exercise it in any particular manner. In general, 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 discretion in each
individual case. In the purported exercise of its discretion, it must not do C
what it has been forbidden to do, nor must it do what it has not been authorized
to do. It must act in good faith, 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) D
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 it acts ultra vires. E
The present trend of judicial opm1on is to restrict the doctrine of
immunity from judicial review to those classes of cases which relate to
deployment of troupes, 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 scrutinize the factual basis upon which discretionary F
powers have been exercised. 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 Dip lock
in Council of Civil Service Unions v. Minister for the Civil Service, [ 1984] G

- 3 All. ER. 935, (commonly known as CCSU Case). 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. (See Commissioner of Income-tax v. Mahindra and Mahindra H
\
/

162 SUPREME COURT REPORTS (2005] 3 S.C.R.

A Ltd., AIR (1984) SC 1182. The effect of several decisions on the question of
jurisdiction has been summed up by Grahame Aldous and John Alder in their
book "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
B judicial review are construed restrictively. There are, however, certain
areas of governmental activity, national security being the paradig,
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

c 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
Unions v. Minister for the Civil Service this is doubtful. Lords Diplock,
Scaman and Roskili appeared to agree that there is no general
distinction between powers, based upon whether their source is
D statutory or prerogative but that judicial review can be limited by the
subject matter of a particular power, in that case.national security.
May prerogative pow~rs 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
E is the Attorney General's prerogative to dedde whether to institute
legal proceedings on behalf of the. public .interest.''

(Also see Padfield v. Minister of Agriculture, Fisheries and Food, (LR
(1968) AC 997).
F The Court will be slow to interfere in such matters relating to
· administrative functions unless decision is tainted ·by any vulnerability
enumerated above; like illegality, irrationality and procedural impropriety.
Whether action falls within any of the categories has to be established .. Mere
assertion in that regard- would not be sufficient.
G
The famous case commonly known as "The Wednesbury's case" ·is
treated as the landmark so far as laying down various basic principles relating
to judicial review of administrative or statutory direction.

Before summarizing the substance of the principles laid down'therein·
H we shall refer to the passage from the judgment of _Lord Greene in Associated
-- STATE OF N.C.T. OF DELHI v. SANJEEV@BITTOO [PASAYAT, J.]

Provincial Picture Houses Ltd v. Wednesbury Corpn., (KB at p. 229: All ER
p. 682). It reads as follows:
163
A

"..... .It is true that discretion must be exercised reasonably. Now what
does that mean? Lawyers familiar with the phraseology used in relation
to exercise of statutory discretions often use the word 'unreasonable'
in a rather comprehensive sense. 1t has frequently been used and is B
frequently used as a general description of the things that must not be
done. For instance, a person entrusted with a discretion must, so to
speak, direct himself properly in law. He must call his own attention
to the matters which he is bound to consider. He must exclude from
his consideration matters which are irrelevant to what he has to C
consider. If he does not obey those rules, he may truly be said, and
often is said, to be acting 'unreasonably'. Similarly, there may be
something so absurd that no sensible person could even dream that
it lay within the powers the authority ... .In another, it is taking into
consideration extraneous matters. It is unreasonable that it might almost
be described as being done in bad faith; and in fact, all these things D
run into one another."

Lord Greene also observed (KB p.230: All ER p.683)

" ... .it must be proved to be unreasonable in the sense that the court
considers it to be a decision that no reasonable body can come to. It E
is not what the court considers unreasonable. .... The effect of the
legislation is not to set up" the court as an arbiter of the correctness
of one view over another." (emphasis supplied)

Therefore, to arrive at a decision on "reasonableness" the Court has to find
out if the administrator has left out relevant factors or taken into account F
irrelevant factors. The decision of the administrator must have been within
the four corners of the law, and not one which no sensible person could have
reasonably arrived at, having regard to the above principles, and must have
been a bona fide one. The decision could be one of many choices open to the
authority but it was for that authority to decide upon the choice and not for G
the Court to substitute its view.

The principles of judicial review of administrative action were further
summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural
impr:qpri!':_ty and irrationality. He said more grounds could in future become
available, including the doctrine of proportionality which was a principle H
164 SUPREME COURT REPORTS [2005] 3 S.C.R.

A followed by certain other members of the European Economic Community.
Lord Diplock observed in that case as follows:

" ... .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
B administrative action is subject to control by judicial review. The first ground
I would call 'illegality', the second 'irrationality' and the third 'procedural
impropriety'. That is not to say that further development on a case-by-case
basis may not in course of time add further grounds. I have in mind particularly
the possible adoption in the future of the principle of 'proportionality' which
C is recognized in the administrative law of several of our fellow members of
the European Economic Community."

Lord Diplock explained "irrationality" as follows:

"By 'irrationality' I mean what can by now be succinctly referred to as
D Wednesbury unreasonableness'. It ap}llies to a decision which is to outrageous
in its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived
at it."

In other words, to characterize a decision of the administrator as
E "irrational" the Court has to hold, on material, that it is a decision "so
outrageous" as to be in total defiance of logic or moral standards. Adoption
of "proportionality" into administrative law was left for the future.

These principles have been noted in aforesaid terms in Union of India
and Anr. v. G. Ganayutham, [1997] 7 SCC 463. In essence, the test is to see
F whether there is any infirmity in the decision making process and not in the
decision. itself. (See Indian Railway Construction Co. Ltd v. Ajay Kumar,
[2003] 4 sec 579.

Though Section 52 limits the scope of consideration by the Courts, the
scope for iudicial review in writ jurisdiction . is not restricted, subject of
G course to the parameters indicated supra. ·

It is true that some material must exist but what is required is not an
elaborate decision akin to a judgment. On the contrary the order directing
extemment should show existence of some material warranting an order of
H extemment. While dealing with question mere repetition of the provision
STATEOFN.C.T.OFDELHI v. SANJEEV@BITTOO[PASAYAT,J.] 165
would not be sufficient. Reference to be made to some material on record A
and if that is done the requirements of law are met. As noted above, it is not
the sufficiency of material but the existence of material which is sine qua
non.

As observed in Gazi Saduddin 's case (supra) satisfaction of the authority
·can be interfered with ifthe satisfaction recorded is demonstratively perverse B
based on no evidence, misreading of evidence or which a reasonable man
could not form or that the person concerned was n0t g'ven due opportunity
resulting in prejudice. To that extent, objectivity is inbuilt in the subjective
satisfaction of the authority. ·

The material justifying externment can also throw light on options to C
be exercised. If referring to the materials, the authority directing extemment
also indicates the option he thinks to be proper and appropriate it can not be
said to be vitiated even though there is no specific reference to the other
options. It is a matter of legitimate inference that when considering materials
to adjudicate on the question of desirability for extemment, options are also D
considered and one of the three options can be adopted. There can not be any
hair splitting in such matters. A little play in the points is certainly permissible
while dealing with such matters.

In the case as noted above, all the relevant aspects were considered and
High Court was not justified in holding to the contrary. The Appeal was E
heard primarily to clarify certain doubtful areas, in view of some divergent
views expressed by different Benches of the High Court, though the period
of extemment was over.

The appeal is accordingly disposed of.
F
K.K.T. Appeal disposed of.