Does the Power to Issue Order include the Power to withdraw the same?

0
1246

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.[1] 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[2]. 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 the Act[3].


[1] Ravi Yashwant Bhoir v. District collector, Raigad, AIR 2012 SC 1339

[2] MP Jain & SN Jain, Principles of Administrative Law

[3] Surajpal Sahu v. State of Maharashtra, (1986)4 SCC 2177