dedol-hf/india-case-legal-rag huggingface dataset:
the  writ  does  not lie to remove an act  which  is  purely
ministerial.  It can be availed of only to remove and  adju-
dicate  on the validity of judicial acts (1).  To  ascertain
the  exact connotation of the expression "judicial  act"  in
connection  with the issuing of a writ of certiorari and  to
determine whether the act complained of in the present  case
is  a judicial act or not it would be necessary and  conven-
ient  to  set out briefly how the law on the  point  as  de-
veloped by the Courts in England stands at present.  A  writ
of  certiorari  like the writ of prohibition is  a  judicial
writ  of antiquity and it is the ordinary process  by  which
the  Court of King's Bench Division exercises  control  over
the  acts of bodies vested with inferior  jurisdiction.  The
writ  is  intended  to bring up before the  High  Court  the
records of proceedings or determinations of inferior  tribu-
nals  and to quash them if the tribunals  are found to  have
acted in excess of their jurisdiction.
    It  is  well  settled that the writ is  not  limited  to
bringing  up the acts of bodies that are ordinarily  consid-
ered  to  be Courts.  "The procedure of certiorari"  as  has
been  observed by Fletcher Moulton L.J. in Rex v.  Woodhouse
(2) "applies in many cases in which  the body whose acts are
criticised  would  not ordinarily be called  a  'Court'  nor
would its acts be ordinarily termed judicial acts.  The true
view  of  the  limitation would seem to  be  that  the  term
'judicial  act' is used in contrast with purely  ministerial
acts.  To  these latter the process of certiorari  does  not
apply, as for instance to the issue of a warrant to  enforce
a  rate, even though the rate is one which could  itself  be
questioned  by certiorari. In short there must be the  exer-
cise  of  some right or duty to decide in order  to  provide
scope for a writ of certiorari at common law."
Per  May C.J. in Reg. v. Dublin Corporation [1878] LR.  9
Ir. 371 at. p. 376.(2) [1906] 2 K.B. 501 at p.535.
667
    There can be no doubt that originally the writ of certi-
orari  was  issued only to inferior Courts  using  the  word
"Court" in its ordinary sense.   As bodies of various  types
and denominations exercising  semijudicial functions came to
be  introduced, the writ was extended to these bodies  also.
There is a long line of decided cases showing that the  writ
of certiorari has been issued to rating authorities, licens-
ing Justices, Electricity Commissioners, the Board of Educa-
tion,  the  General Medical Council, the  Inns   of   Court,
Assessment  Committees,  the Commissioner  of  Taxation  and
various other authorities who could be regarded as  perform-
ing  some sort of judicial or semi-judicial function  though
they  have no authority to try cases, or pass  judgments  in
the proper sense of the word (1). It would be interesting to
note  that  in  King v. Postmaster General (2),  a  writ  of
certiorari  was  issued to quash a  disablement  certificate
granted  by the Chief Medical Officer of the Post Office  on
the ground that he was not the certifying surgeon under  the
Workmen's  Compensation  Act, 1925, and the  granting  of  a
certificate  was held to be a judicial act.  In Rex v.  Boy-
cott  (3), one Russel Keasely moved on behalf of his  infant
son Stanley for an order of certiorari to remove and quash a
medical  certificate   granted  by  the  respondent  to  the
effect that Stanley was incapable by reason of mental defect
of receiving  benefit  from instruction in a special  school
under  section 56 of the Education Act, and two  other  con-
nected  documents. The Court was of opinion that  as  doubts
did  arise  as to whether the boy was ineducable, it  was  a
proper case to be determined by the Board of Education under
section  31.   It was held in these circumstances  that  the
three  documents which were parts and parcel of one and  the
same  transaction constituted the determination of a  quasi-
judicial authority, and "exhibited all the mischief which  a
writ of certiorari was intended and well fitted to correct."
The  result was that all the. three documents were  directed
to be brought up and
(1) Vide Halsbury'sLaws of England (2nd Edition) Vol. 26, p.
284. (2) [1928] 1 K, B, 291,               (3) [1939] 2 K.B.
651.
668
quashed.   Even  a report made by a Chief Gas  Examiner  has
been removed and quashed by a writ of certiorari C).
    In the words of Banks L.J. the course of development  of
law  on the subject demonstrates what has been the boast  of
English Common Law that it will, whenever possible and where
necessary, apply  existing principles to new set of  circum-
stances  (2); and it was in very general terms that  opinion
was  expressed in Rex v. Inhabitants of  Glamorganshire  (3)
that  the Court would examine the proceedings of all  juris-
dictions erected by Acts of Parliament and if under pretence
of  such an Act they proceeded to encroach  jurisdiction  to
themselves  greater  than  the Act warrants, the Court would
send a certiorari to them to have their proceedings returned
to  the Court to the end that the Court might see that  they
keep  themselves  within  their jurisdiction,  and  if  they
exceed it, to restrain them.
The  whole  law on the subject relating  to  issuing  of
writs of certiorari was thus summed up by Atkin L.J. in  Rex
v. Electricity Commissioners (4):
    "Whenever any body or persons having legal authority  to
determine  questions affecting the rights of  subjects,  and
having  the  duty to act judicially act in excess  of  their
legal  authority.they are subject to the controlling  juris-
diction  of  the  King's  Bench Division exercised in  these
writs."
    This  statement of law has been affirmed and  reiterated
in   various cases since then (5) and its  correctness   has
never   been  questioned.  But  unexceptionable  though  the
statement is, it does not by itself afford any assistance in
solving  the  real difficulty that arises in cases  of  this
description.   It  postulates  existence of a  duty  in  the
authority to decide judicially but it does not enumerate  or
give any indication of the
(1)  R.v. London County Council, 11 T.LR. 337. (2) Vide  Rex
v. Electricity Commissioners, [1924] 1 K B. 171, at p.  192.
(3) 1 Ld. Raym. 580.                  (4) [1924] 1 K.B. 171
at p. 205.
(5)  VideR.  v. North Worcestershire  Assessment  Committee,
[1929] 2 K.B.
397  at  p.  405-6;  R.v.  London  County  Council,   [1931]
K.B.215.
669
circumstances  under  which such duty shall be  held  to  be
imposed.  It has been pointed out very rightly by my learned
brother  Das  J. in a recent Calcutta case (1) that  of  the
four elements involved in the proposition of law  enunciated
by Lord Atkin, three may be present in an administrative  or
executive act as well.
    A valid executive act undoubtedly presupposes the exist-
ence of a legal authority in the officer or department to do
the act.  Such executive acts may and in fact do affect  the
rights of subjects.  Cases are also not infrequent where  an
executive authority transgresses the limits of its jurisdic-
tion,  and  acts in excess of its powers.  Yet,  it  is  not
disputed  that  no writ of certiorari can be issued  to  re-
strain or invalidate such executive acts. As was observed by
Lord Hewart C.J. in  Rex v. Legislative  Committee  of   the
Church  Assembly (2), "in order that a body may satisfy  the
required  test, it is not enough that it should  have  legal
authority  to  determine questions affecting the  rights  of
subjects,  there must be superadded to  that  characteristic
the further characteristic that the body has the duty to act
judicially."  The material points for  consideration  there-
fore   are  what  is the true criterion of a  judicial  act,
and  how  it is to be ascertained whether  an  authority  is
bound to act judicially in a particular matter or not.
    It  is said that one of the best definitions of a  judi-
cial  act, as distinguished from an administrative  act,  is
that  given by May C.J. in the Irish case of Reg. v.  Dublin
Corporation  (8).   The  question raised in  that  case  was
whether  a borough rate levied by a Corporation was  illegal
or not.  It was found that the borough fund of the  Corpora-
tion  was  otherwise sufficient for all legitimate  purposes
but  it was rendered  insufficient  by  reason   of  certain
illegal  payments  made  out  of  it.   To   make    up  the
deficiency,  the  Corporation  levied a  borough  rate,  the
legality  of which was  challenged  and writ  of  certiorari
was prayed for to quash all the orders and
(1) In re Banwarilal, 48 G.W.N. 766.
(2) [1928] 1 K.B. 411 at 415.
(3) [1878] L.R.2 Ir.371.
670
resolutions of the Corporation in connection with the  impo-
sition of the rate. The writ was granted and May C.J.  while
discussing  in  his judgment the meaning of  the  expression
'judicial act' observed as follows:
"In this connection the term 'judicial' does not  neces-
sarily  mean acts of a Judge or legal tribunal  sitting  for
the determination of matters of law, but for the purpose  of
this  question,  a judicial act seems to be an act  done  by
competent authority upon consideration of facts and  circum-
stances  and imposing liability or affecting the  rights  of
others.  And if there be a body empowered by law to  enquire
into  facts, make estimates to impose a rate on a  district,
it  would seem to me that the acts of such a body  involving
such consequence would be judicial acts."
    This definition was approved by Palles C.B. in Re: Local
Government Board, Expand Kensington Commissioners(1) and was
quoted  in  extenso  by  Lord  Atkinson   in  Frome   United
Breweries  Company v. Bath Justices(s).     In  the  passage
quoted  above,  the learned Chief Justice  really  describes
what  may  be  called the judicial  process.   There  cannot
indeed  be  a judicial act which does not create  rights  or
impose obligations; but an act, as has been already  pointed
out  is  not  necessarily judicial because  it  affects  the
rights  of  subjects. Every judicial  act  presupposes   the
application   of judicial process.  There is a  well  marked
distinction  between forming a personal or  private  opinion
about  a  matter,  and determining it  judicially.   In  the
performance of an executive act, the authority has certainly
to  apply  his  mind to the materials before  him;  but  the
opinion he forms is a purely subjective matter which depends
entirely  upon his state of mind. It is of course  necessary
that  he  must act in good faith, and if it  is  established
that he was not influenced by any extraneous  consideration,
there is nothing further to be said about it.  In a judicial
proceeding,  on  the other hand, the process  or  method  of
application is different. "The judicial process involves the
application of a body of
16 L.R. Ir. 150,                  (2) [1926] A.C. 586,
671
rules or principles by the technique of a particular psycho-
logical method" (1).  It involves a proposal and an  opposi-
tion, and arriving at a decision upon the same on considera-
tion  of  facts and circumstances according to the rules  of
reason and justice(2).  It is not necessary that the  strict
rules  of  evidence  should be  followed:the  procedure  for
investigation of facts or for reception of evidence may vary
according  to the requirements of a particular case.   There
need not be any hard and fast rule on such matters, but  the
decision  which  the authority arrives at, must not  be  his
'subjective', 'personal' or 'private' opinion.  It must be
something which conforms to an objective standard or  crite-
rion  laid down or recognised by law, and the  soundness  or
otherwise  of  the determination must be  capable  of  being
tested by the same external standard.
This is the essence of a judicialfunctionwhich differen-
tiates  it from an administrative function; and  whether  an
authority  is required to exercise one kind of  function  or
the  other depends entirely upon the provisions of the  par-
ticular  enactment.   Where the statute itself is  clear  on
this point, no difficulty is likely to arise, but where  the
language  of the enactment does not indicate with  precision
what  kind of function is to be exercised by  an  authority,
considerable  difficulties  are  hound  to  be  experienced.
There are numerous decided cases, which deal with  questions
of  this character, and quite a number of them were cited to
us by the learned counsel on both sides.  As they relate  to
the powers and duties of various types of authorities  under
various statutes and war regulations, dealing with different
subject-matters  and  not uniformly worded, they are  of  no
direct assistance to us in the present case.  1 think howev-
er  that we can cull a few general principles from  some  of
the  pronouncements of the English Courts, which  may  throw
light  on  the interpretation of the  Ordinance  before  us.
Generally  speaking, where the language of a  statute  indi-
cates  with sufficient clearness that the personal
(1) Robson's Justice and Administrative Law, p. 33.
(2) Vide R. v, London County Council [1931] 2 K,B. 215 at p.
233.
672
satisfaction of the authority on certain matters about which
he  has  to form an opinion founds his  jurisdiction  to  do
certain acts or make certain orders, the function should  be
regarded  as  an executive function.  The  decision  of  the
House  of Lords in Liversidge v. Anderson C) is the  leading
illustration  of  this type of cases. Even  Lord  Atkin  ob-
served,  in course of his dissenting judgment in this  case,
that  when  the discretion is left to the  Minister  or  any
other authority without qualification, by use of expressions
like  the following: "A Secretary of State... if it  appears
to  him necessary may order; if it appears to the  Secretary
of  State that any person is concerned...; if the  Secretary
of  State is satisfied that it is necessary  or  expedient,"
the  act cannot  but  be  held  to  be  an  executive   act.
Lord  Atkin was however inclined to hold that the words  "if
the  Secretary  of State has reasonable cause  to  believe,"
should be construed as meaning "if there is in fact reasona-
ble  cause  for believing," and according to  his  Lordship'
'reasonable  cause"  for an action or belief is  as  much  a
positive  fact  for determination by a third  party  as  any
other  objective condition.  This view was not  accepted  by
the  majority  of the House and it was held that  the  words
meant no more than that the Secretary of' State had honestly
to  suppose  that  he had reasonable cause  to  believe  the
required thing.  Provided there was good faith the maker  of
the  order was the only possible Judge of the conditions  of
his own jurisdiction(2).
    After  the law was settled in this way by the  House  of
Lords, a large number of cases came up before the Courts  in
England  which  involved  consideration  of  the  provisions
contained  in various other orders and regulations  relating
to  taking control of business or requisition  of  property.
The  language  of these orders was very similar to  that  of
Regulation  18 (B) under which the detention order was  made
in  Liversidge's case.  In Point of Ayr Collieries  Ltd.  v.
Lloyd George (3)the
(1) [1942] A.C.-206.
(2)  Vide  observation of Lord  Radcliffe in Nakudda All  v,
M.F. De S Jayaratna 54 G.W.N. 883, 888.
             (3) [1943] 2 A.E. R. 546.
673
control  of  the appellant's undertaking was  taken  by  the
Ministry  of Fuel and Power by an order made under  the  De-
fence  (General) Regulations, 1939, reg. 55 (4). The   rele-
vant provision of the regulation stood as follows:
    "If  it appears to the competent authority that  in  the
interest  of the public safety, the defence of the realm  or
the  efficient prosecution of the war or for maintaining  of
supplies and services essential to the life of the  communi-
ty, it is necessary to take control on behalf of His Majesty
of the whole or any part of an
existing undertaking  ......the competent authority may
by order authorise ......  "
    The  appellant's contention was that there were no  ade-
quate  grounds  upon which the Minister could  find,  as  he
stated, he had found, that it was necessary to take  control
in  the interests of the realm or the efficient  prosecution
of  war.  It was held that there was no jurisdiction in  the
Court  to interfere with what was an executive order  passed
bona fide.
    In Carltona Ltd. v. Commissioners of Works and Others(1)
which was decided near about the same time, the  appellant's
factory  was  requisitioned  by the  Commissioner  of  Works
under  the provisions of the Defence (General)  Regulations,
1939,  Reg.  51 (1). The requisition  order  was  challenged
inter  alia on the ground that the requisitioning  authority
never brought their minds to bear upon the question and had.
they done so, they could not possibly come to the conclusion
to which in fact they came.  In this case the regulation was
almost  in  the same language as that in the  earlier  case.
The words were "If it appears to the competent authority  to
be necessary or expedient so
tO do  ..........  "
The Court held that the Parliament had committed to  the
executive  the discretion of deciding when an order for  the
requisition of the premises should be made under the regula-
tion,  and  with that discretion if bona fide  exercised  no
Court could interfere.
(1) [1943] 2 A.E.R. 560.
674
Even  when the language of the statute is such that it  con-
fers  an  unlimited discretion on the executive,  there  are
cases  where  a  duty on the part of the  authority  to  act
judicially  has  been sought to be spelt out  of  the  other
provisions  in the statute, particularly those which  relate
to  the  holding of public enquiries  and  consideration  of
objections by the authorities concerned.
  Thus  in Pheonix Association Company v. Minister  of  Town
and Country Planning(1) an application was made to quash  an
order  made  under  section 1 (1) of the  Town  and  Country
Planning Act, 1944, which empowered the Minister of Town and
Country Planning to  make an  order  declaring land  in  any
area  to  be  subject  to  compulsory  purchase, if  he  was
satisfied that it was requisite for the purpose of   dealing
satisfactorily  with  extensive  wardamage  in  the  area of
a  local Town  Planning authority that such lands should  be
laid out afresh and redeveloped as a whole.  It was held  by
Hem Collins J. that the matter was not so peculiarly  within
the administrative capacity of the Minister that it could be
regarded as one of pure discretion.  Reliance was placed  on
the  fact  that  the statute was not a  piece  of  temporary
legislation  like  Regulation  18 (B),  and  the  provisions
relating to holding of public enquiry, and hearing of objec-
tions,  indicated  according to the learned Judge  that  the
function was of a quasijudicial character.
 There  was  no appeal against this judgment,  but  quite  a
contrary  view  was  taken by                 the  Court  of
Appeal in another case which involved             considera-
tion   of the same provisions of the same Act.          This
was   the   case  of   Robinson  and  others   v.   Minister
of Town and Country Planning (2) and it was held there  that
the  order  under section 1 (1) of  the  Town            and
Country Planning Act is made by the Minister as an executive
authority and he is at liberty to base his opinion on  what-
ever  he  thinks  proper.   Stress was  laid  on  the  words
"requisite" and "satisfactory"            used  in the
 (1)[1947] 1 A.E.R.454.            (2) [1947] 1 A.E.R.851
675
section  and these words indicated according to the  learned
Judges  that  the question was one of  opinion  and  policy,
matters  which were  peculiarly for the Minister himself  to
decide, and as to which, assuming always that he acted  bona
fide, he was the sole Judge. It was further observed that no
objective test was here indicated and that different consid-
erations might apply where a Minister could be shown to have
overstepped the limits of his power, e.g., where the  condi-
tions  in which they may be exercised were laid down in  the
statute  and he purported to act in a case where the  condi-
tions did not exist.
In  Errington and others v. Minister of Health  (1)  the
question  arose  as to whether an order of the  Minister  of
Health confirming a clearance order made by a local authori-
ty  under section 1 of the Housing Act of 1930 was an execu-
tive  or judicial order.   It was held that if there was  no
objection raised to clearance order by persons interested in
the property and it was confirmed by the Minister, there was
no exercise by the latter of any judicial or  quasi-judicial
function.   But the position becomes different if objections
are  raised. Then the Minister would have to hold  a  public
local  enquiry as provided for by the Act and  consider  the
report of the person who held the enquiry.  In such  circum-
stances the decision to confirm the clearance order  amounts
to an exercise of quasi-judicial function.
    This was a case under the Housing Act of 1930. In Frank-
lin  v. Minister of Town and Country Planning  (2)  however,
which  was  a case under the New Towns Act, 1946,  and  con-
tained very similar provisions, it was held by the House  of
Lords that in considering the report of the person who  held
a public enquiry after objections have been made to an order
under  section 1 (1) of the New Towns Act, the Minister  has
no  judicial or quasi-judicial duty imposed on him, so  that
considerations of bias in the execution of such duties  were
altogether irrelevant.
    It  would be seen from the cases referred to above  that
the distinction between judicial and executive
(1) [1935] 1 K.B. 249.          (2) [1948] A.C. 87,
676
function often turns out to be a very fine one, and  differ-
ence  of  opinion amongst Judges is not  uncommon  on  these
matters  even when they have got to construe  provisions  of
Acts  which  employ  language very similar  to  each  other.
Leaving  aside the cases, where the existence of a  duty  to
act judicially is sought to be inferred from the  provisions
of  a statute relating to holding of enquiry or  hearing  of
objections, the general rule that all the eases lay down  is
that  if the foundation of the exercise of the powers by  an
authority is his personal satisfaction or subjective opinion
about  certain  facts,  the function is to  be  regarded  as
executive and not judicial. The facts may undoubtedly be and
often are objective facts about which the authority has  got
to form his opinion. When a statute says that a Minister can
requisition  property  or order compulsory  purchase  if  he
deems it expedient to do so in the interest of public safety
or the defence of the realm, the condition precedent to  the
exercise  of his powers is not the actual existence  of  na-
tional  interest,  but  his own opinion or  belief  that  it
exists.  To quote the words of Lord Radcliffe "If the  ques-
tion  whether  the  condition has been satisfied  is  to  be
conclusively  decided  by the man who wields the  power  the
value of the intended restraint is in fact nothing (1)".  On
the  other hand, if the statute imposes an objective  condi-
tion  precedent  of  fact to the exercise of  powers  by  an
authority,  and not merely his subjective opinion about  it,
the function would be prima facie judicial. The  distinction
is  beautifully  illustrated by Lord Atkin  in  his  classic
judgment in Liversidge's case (2).  If it is a condition  to
the  exercise of powers by A that X has a right of way or  Y
has a broken ankle, the authority is charged with  determin-
ing  these facts and it must ascertain  judicially   whether
the conditions are fulfilled or not.  If, on the other hand,
the condition is that the authority thinks or is of  opinion
that  X  has  a right of way or Y has a  broken  ankle,  the
condition is a purely subjective condition