June 28, 2019
The Courts have time and again reiterated that if an administrative order is based under an erroneous assumption of one’s own power and if it goes to the root of the matter, the authority concerned can review it for valid reasons. Hence, a power to issue an order also includes the power to withdraw the same for valid reasons.
In this context, reference can be made to Supreme Court’s Two-Judge Bench judgment in the case of Bhagwan Budha Prathmik Technical Training College Nirmali v. The State of Bihar & ors., wherein the Apex Court had succinctly pointed that if an administrative order is based under an erroneous assumption of one’s own power and if it goes to the root of the matter, the authority concerned can certainly review it for valid reasons and if that is so done the withdrawal cannot be called a malafide one.
Legal Mala Fides or Malice in Law
Here it would be relevant to
state that passing an order for unauthorized purpose constitutes malice in law.
Judicial Review of an administrative order on the grounds of mala fide or
malice in law is an essential ground to control administrative action. In such
cases, it is not so much relevant to assess whether the authority is acting in
good faith or bad faith. What is relevant to assess whether purpose in view is
one sanctioned by the Statute which confers power on the authority concerned.
Thus, the Supreme Court has stated that an
order suffers from legal malafides or malice in law, although there is no
malice in fact when the order is made contrary to the object and purposes of
 Ravi Yashwant Bhoir v. District collector, Raigad, AIR 2012 SC 1339
 MP Jain & SN Jain, Principles of Administrative Law
 Surajpal Sahu v. State of Maharashtra, (1986)4 SCC 2177