Case: Madan Gopal Agarwal Vs. District Magistrate, Allahabad &amp; Others

the writ of certiorari. The argument on behalf of the Government in this Court was that as the Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial. The argument that the existence of a public purpose required judicial consideration was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purpose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned under the Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include temporary as well as a durable purpose. Section 5 of the Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power. 14. Counsel for the appellant has relied on A. K. Kraipak and Others v. Union of India, ((1970) 1 SCR 457 : (1969) 2 SCC 262 : (1970) 1 SCR 475) Daud Ahmad v. The District Magistrate, Allahabad and Others, (AIR 1972 SC 896 : (1972) 1 SCC 655 ) and State of Punjab v. K. R. Erry and Sobhag Rai Mehta. (C. As. Nos. 1893-1894 of 1967, decided on 21-9-1972 : 1973 SCC (Lab) 63) Kraipak (supra), certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service. The selections were made solely on the basis of the record of officer. Their suitability was not decided by oral or written examination, nor were they interviewed. A. K. Kraipak (supra), contended before this Court that the selections were bad as they were made without following the principles of natural justice. The contrary argument was that the principles of natural justice would not apply to the administrative act of selection of officers for appointment to the Indian Forest Service. Hegde, J., said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated". At Pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions". Assuming that the committee making selection of officers for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it ...... If the purpose of the rules of natural justice is to prevent miscarriage, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry". 15. In K. R. Erry case (supra), this Court held that the pensionary right of a superannuated Government Servant is property and that this pension cannot be reduce without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad case (supra) is a direct authority for the point before us. There the Court was concerned with an order under Section 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisitioned by the District Magistrate without notice and hearing. This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray, J.) said : "The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation". 16. Counsel for the District Magistrate has submitted that Daud Ahmad case (supra), is distinguishable from the present case, for there the Court was concerned with interpreting the second proviso to Section 3. Daud Ahmad and K. R. Erry case (supra), hold that in an enactment which deprives a person of his property, there is necessarily implied the pre-requisite of hearing. These cases support our construction that notice and hearing to the affected party is necessarily implied in Section 3. It is not disputed on behalf of the District Magistrate that the requisitioning order was made by him without giving notice and hearing to the appellant. So we hold that his order is illegal.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. In the first case, certain property was requisitioned under Section 3 of the Bombay Land Requisition Ordinance, 1947, by an order of the Government, dated February 6, 1948. The order was made before the commencement of the Constitution. It was challenged by a petition in the High Court of Bombay. The petitioner prayed for the issue of a writ of certiorari to quash the order. The Bombay High Court issued the writ of certiorari. The argument on behalf of the Government in this Court was that as the Government was acting in an administrative capacity and not in a judicial or quasi-judicial capacity, the writ of certiorari could not be issued. This Court held that the act of requisitioning was administrative in nature and not quasi-judicial. The argument that the existence of a public purpose required judicial consideration was negatived. In the second case, the High Court held that the decision of the District Magistrate that there existed a public purpose and a particular accommodation was needed for that purpose was final and could not be questioned in a court of law. In the third case, an accommodation was requisitioned underthe Bombay Land Requisition Act, 1948. It was held that it was for the Government to decide whether there existed a public purpose to justify the requisitioning of accommodation. In the last case, this Court held that the expression "public purpose" was wide enough to include temporary as well as a durable purpose. Section 5 ofthe Bombay Land Requisition Act, 1948 placed no limitation on the competent authority as to what kind of purpose would justify the exercise of power14. Counsel for the appellant has relied on A. K. Kraipak and Others v. Union of India, ((1970) 1 SCR 457   : (1969) 2 SCC 262   : (1970) 1 SCR 475) Daud Ahmad v. The District Magistrate, Allahabad and Others, (AIR 1972 SC 896   : (1972) 1 SCC 655  ) and State of Punjab v. K. R. Erry and Sobhag Rai Mehta. (C. As. Nos. 1893-1894 of 1967, decided on 21-9-1972 : 1973 SCC (Lab) 63) Kraipak (supra), certain Government employees of the State of Jammu and Kashmir felt aggrieved with the selection of persons for appointment to the Indian Forest Service. The selections were made solely on the basis of the record of officer. Their suitability was not decided by oral or written examination, nor were they interviewed. A. K. Kraipak (supra), contended before this Court that the selections were bad as they were made without following the principles of natural justice.The contrary argument was that the principles of natural justice would not apply to the administrative act of selection of officers for appointment to the Indian Forest Service. Hegde, J., said that "the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated". At Pages 465 and 466 of the report, the learned Judge added : "With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents. New problems call for new solutions". Assuming that the committee making selection of officers for appointment to the Indian Forest Service was exercising administrative power, the learned Judge said : "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it ...... If the purpose of the rules of natural justice is to prevent miscarriage, one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry"15. In K. R. Erry case (supra), this Court held that the pensionary right of a superannuated Government Servant is property and that this pension cannot be reduce without giving him a hearing even though the relevant service rules do not expressly provide for a hearing. Daud Ahmad case (supra) is a direct authority for the point before us. There the Court was concerned with an order under Section 3 of the Act. Daud Ahmad was occupying a certain accommodation of which he was the owner. The accommodation was requisitioned by the District Magistrate without notice and hearing. This Court quashed the order of requisition for want of notice and hearing. One of us (A. N. Ray, J.) said : "The principle of natural justice has been applicable to administrative enquiries or quasi-judicial enquiries. It is the nature of the power and circumstances and conditions under which it is exercised that will occasion the invocation of the principle of natural justice. Deprivation of property affects rights of a person. If under the Requisition Act the petitioner was to be deprived of the occupation of the premises the District Magistrate had to hold an enquiry in order to arrive at an opinion that there existed alternative accommodation for the petitioner or the District Magistrate was to provide alternative accommodation"16. Counsel for the District Magistrate has submitted that Daud Ahmad case (supra), is distinguishable from the present case, for there the Court was concerned with interpreting the second proviso to Section 3. Daud Ahmad and K. R. Erry case (supra), hold that in an enactment which deprives a person of his property, there is necessarily implied the pre-requisite of hearing. These cases support our construction that notice and hearing to the affected party is necessarily implied in Section 3. It is not disputed on behalf of the District Magistrate that the requisitioning order was made by him without giving notice and hearing to the appellant. So we hold that his order is illegal.