dedol-hf/india-case-legal-rag huggingface dataset:
of the magistrates a judicial duty and therefore it is clear
that  they  were acting or purporting to act  judicially  in
hearing  this application, assuming that it was an  applica-
tion,  to modify the licence. Of course, as was pointed  out
by Greer L.J. in the course of the
(1) [1854] 3 W.R.  69
655
argument,  unless  the body was usurping a  jurisdiction  or
acting  contrary to their juridical powers, it would not  be
necessary  to have a certiorari at all; and to  argue  that,
because they have gone beyond their powers, therefore certi-
orari would not lie, would be to defeat the whole purpose of
the  writ.  But the question is, have they  purported  under
the  statute,  and have they a duty under  the  statute,  to
perform  a  judicial function in  hearing  applications  for
these licences ? In my opinion they certainly have."
    The learned Attorney-General cited the case  of Franklin
v. Minister of Town and Country Planning(1), for the  propo-
sition  that the mere circumstance that an enquiry may  have
to  be made publicly and objections may have to be heard  of
persons affected does not necessarily convert the act into a
judicial  or quasi-judicial act.  That case related  to  the
functions of a Minister under the Town and Country  Planning
Act  and the New Towns Act, 1946. Lord Thankerton  made  the
following observations:
    "In my opinion, no judicial, or quasi-judicial duty  was
imposed  on  the respondent, and any reference  to  judicial
duty,  or bias, is irrelevant in the present case.  The  re-
spondent's  duties  under  section 1 of the  Act  and  Sch.1
thereto,  are in my opinion purely administrative,  but  the
Act prescribes certain methods of or steps in, discharge  of
that  duty.  It  is obvious that, before  making  the  draft
order,which  must contain a definite proposal  to  designate
the area concerned as the site of a new town, the respondent
must  have made elaborate inquiry into the matter  and  have
consulted  any  local authorities who appear to  him  to  be
concerned,  and obviously other departments of  the  Govern-
ment,  such as the Ministry of Health, would  naturally  re-
quire  to be consulted.   It  would seem, accordingly,  that
the respondent was required to satisfy himself that it was a
sound  scheme before he took the serious step of  issuing  a
draft  order.   It  seems clear also, that  the  purpose  of
inviting  objections, and, where they are not withdrawn,  of
having a public inquiry, to be held
(1) [1948] A.C. 87.
656
by  someone other than the respondent, to whom  that  person
reports, was for the further information of the  respondent,
in order to the final consideration of the soundness of  the
scheme of the designation; and it is important to note  that
the  development of the site, after' the order is  made,  is
primarily  the  duty of the development  corporation  estab-
lished  under section 2 of the Act. I am of opinion that  no
judicial  duty  is laid on the respondent  in  discharge  of
these statutory duties, and that the only question is wheth-
er he has complied with the statutory directions to  appoint
a  person to hold the public inquiry, and to  consider  that
person's report."
    In  view  of these authorities all that can be  said  is
that there is an indefinable,  yet  an  appreciable, differ-
ence  between  the  doing of an executive or  administrative
act  and a judicial or a quasi-judicial act.  The  question,
however,  whether an act is a purely ministerial or a  judi-
cial  one  depends on the facts and  circumstances  of  each
case.   As observed by my brother Das in re  Banwarilal  Roy
(1),  the question whether an act is a judicial or a  quasi-
judicial one or a purely executive act depends on the  terms
of the particular rule, the nature, scope and effect of  the
particular  power in exercise of which the act may be  done.
In  the actual application of the abstract  propositions  to
the  circumstances  of  different  cases  the  exercise   of
jurisdiction to issue a Writ of certiorari varies  according
to the foot of the Chancellor.
    The  question  therefore for decision in  this  case  is
whether  the  Government is a body of persons  having  legal
authority  to  determine questions affecting the  rights  of
subjects, and secondly, to the extent to which it has and in
performing that duty has it the duty to act judicially.   In
my opinion, the position and duties of the Government  under
the  Bombay  Land  Acquisition Ordinance are  such  that  it
satisfies  both  the tests. It is a body of  persons  having
legal authority to determine questions affecting the  rights
of subjects and I
(1) (1944) 48 C.W.N. 766
657
think  its duty is to act judicially.  It cannot  arrive  at
its determination on a mental process of its own.
    An examination of the provisions of this Ordinance shows
that  before  the Government forms the opinion  that  it  is
necessary  and expedient to requisition any land it  has  to
determine the following questions of fact and law--
(1) whether the land is required for a public purpose;
    (2) whether the land, the subject matter of the requisi-
tion is being used for public religious worship;
    (3)  whether the land which it is intended  to  requisi-
tion  is being used for a purpose which the Provincial  Gov-
ernment has specified by a notification; and
  (4) whether the premises are vacant premises.
   All these questions are mixed questions of law and  fact.
No precise definition of the phrase "public purpose" can  be
attempted and none has been given in judicial decisions.  It
was, however, observed in Hamabai Premjee Petit v. Secretary
of State for India (1) that in order to constitute a "public
purpose"  in taking land it is not necessary that  the  land
when  taken is to be made available to the public at  large,
but  that it includes a purpose, that is an object in  which
the  general  interest of the community as  opposed  to  the
particular  interest  of  the individuals  is  directly  and
vitally  concerned.   It was said in that  case  that  prima
facie the Government are good judges of the question whether
the  purpose  is one in which the general interests  of  the
community  is  concerned  but that  they  are  not  absolute
judges,  that is, they cannot say "I desire it, therefore  I
order  it". Under the proviso the question whether the  land
is being used for public religious worship is again a matter
which  involves difficult questions of fact and law and  the
determination of these questions may seriously affect  legal
rights of worshippers, trustees and other people  interested
in a place of worship. Similarly the question
658
whether  the premises are vacant is a matter that has to  be
determined  in view of the definition of  "vacant  premises"
given  in section 4.  It involves the determination  of  the
question  whether the vacancy was caused by the  termination
of  a  tenancy, or by the eviction of a tenant,  or  by  the
release  of the premises from requisition, etc.  A duty  has
been cast on the landlord to give information of the vacancy
of a premises to Government and any failure in the  perform-
ance of that duty is punishable under the law. The  determi-
nation  by the Government that certain property is  required
for a public purpose and therefore in its opinion it  should
be  requisitioned  entitles the person  whose  premises  are
requisitioned  to  a right to compensation which has  to  be
determined admittedly in a judicial manner under the  provi-
sions of the Act. The point therefore arises whether it  was
intended  by  the  provisions of the order  that  all  these
questions of fact and law which have to be determined before
Government forms an opinion as to the expediency or necessi-
ty  of requisitioning certain premises, were to  be  subjec-
tively  determined  and  the rights of persons  were  to  be
affected  merely  on  the opinion of   the  Government;  or.
whether  the  determination   was intended to be of a  judi-
cial  or quasi-judicial nature; in other words, whether  the
determination of these important questions has to be in  the
infinite  mind of the Government or is in the truth  of  the
facts  themselves.  Are these questions to be determined  by
the mental operations or the idiosyncracy of the officers of
Government  or does their determination depend on  existence
of material facts ? If the decision of all the questions  is
to be arrived at by a subjective process, then there can  be
no doubt that the act of the Government in making the requi-
sition  will be a  purely ministerial act and will not  fall
within  the  mischief of the writ; if, on  the  other  hand,
these questions of fact and law have to be determined objec-
tively, then the inference is irresistible that the determi-
nation will be of a judicial nature.  The method and  manner
of reaching it will be a judicial process.  It will consider
659
a  proposition and an opposition;both sides of the  question
will have to be considered, i.e., the Government's point  of
view as well as the point of view of the person affected and
the  determination would only be reached on a  consideration
of  facts  and circumstances. The line of  approach  in  the
matter  is,  does section 3 of the Ordinance  contemplate  a
thinking on the part of the Government that the place is not
being  used for the purpose of public religious worship,  or
does it contemplate a finding on facts that the place is not
a  place  of  public worship.  As stated by  Lord  Atkin  in
Liversidge  v.  Sir  John Anderson C),  does  the  Ordinance
contemplate a case of a thinking that a person has a  broken
ankle  and not a case of his really having a broken ankle  ?
Similarly, can it be said that section 4 contemplates merely
a  vacancy in the mind of the Government, not a  vacancy  in
fact  as a real thing. After a careful consideration of  the
matter I have no hesitation in holding that these  questions
are not questions for the mere determination of the  Govern-
ment  subjectively  by its own opinion but  are  matters  of
determination  objectively.  That being so,  the  determina-
tion  of  these  questions depends on  materials  which  the
Government  have  sufficient  power to call  for  under  the
Ordinance.   It  is not only the duty of the  Government  to
determine these questions but its duty is to determine  them
in a judicial manner, that is, by hearing any opposition  to
the proposal and by placing its determination on some  mate-
rials  which it has called for under the provisions of  sec-
tion  10 or 12 of the Ordinance.  The determination  affects
valuable rights of persons as to property, it affects rights
of  worship  and any such determination may  entail  serious
consequences. The case-The King v. Bradford (2) furnishes an
apposite illustration.  In that case authority was given  to
take  materials  for a period of five years from  a  certain
enclosed  land which in the opinion of the High Court was  a
park.   It was held that the justices could not  by  wrongly
deciding that the land was not a park give themselves juris-
diction in the matter.  In
660
  my  opinion, the Government by wrongly deciding  that  the
place  is  not  a place of  public  worship  cannot  acquire
jurisdiction  for  requisitioning  the  land. Similarly they
cannot  by describing a private purpose as a public  purpose
acquire  jurisdiction to make an order of requisition.   The
Ordinance contemplates the making of necessary enquiries and
enabling  provisions have been made in it  for  facilitating
them.   It seems that a duty is cast on  Government   before
reaching  its  decision on such important  matters  to  make
enquiries  and  hear persons concerned.  Though  no  express
provision  exists  that objections have to  be  heard,   the
power  given  under section 12 to make  enquiries  from  the
person  occupying the premises or owning them show  that  no
sooner  enquiries are made all that a person has to  say  on
the matter will be said and heard.
For  the  reasons  given above I cannot  accede  to  the
contention  of the learned Attorney-General as to  the  con-
struction of  section3  of  the Ordinance when he says  that
it  means that the determination  of "public purpose"  is  a
matter  which  rests  in  the opinion  of   the   Government
alone   and that the decision of the facts mentioned in  the
proviso  also depends on that opinion.  I cannot also  agree
in the contention that even if these matters required deter-
mination  objectively, they can be so determined  by  making
administrative  enquiries and without hearing  persons  con-
cerned.   In  my judgment the learned trial Judge as well as
the  Judges  of  the Court of appeal   reached   a   correct
decision   in this  case which is a case on the border  line
and I do not think  that  there are any  substantial grounds
for reversing their well considered decision.
    As regards the second question, I have no hesitation  in
holding  that a writ of certiorari lies against the  Govern-
ment  of Bombay. Section 306, read with section 176  of  the
Government of India Act, 1935, expressly preserves the right
to sue in all cases where such a right could be exercised as
against the East India
661
Company.   The  learned  Attorney-General  argued  that  the
section  was  confined to suits and to actions and  did  not
cover  the case of a writ of certiorari.  It was  said  that
there  is no power to issue a command to the Sovereign.   My
simple  answer is that the Provincial Government is not  the
sovereign  and  that the Government of India  Act  expressly
says that there is a right to sue the Province.  The expres-
sion  "sue"  means "the enforcement of a claim  or  a  civil
right  by means of legal proceedings."  When a right  is  in
jeopardy, then any proceedings that can be adopted to put it
out  of  jeopardy  fall within the  expression  "sue".   Any
remedy that can be taken to vindicate the right is  included
within the expression.  A writ of certiorari therefore falls
within  the  expression  "sue" used in section  176  of  the
Government  of India Act, 1935, and the remedy therefore  is
within  the  express  terms of the  statute.   The  immunity
granted  by  section 306 is to the Governor and not  to  the
Province.   It  was argued that the word "Governor  "in  the
section is synonymous with "Provincial Government" by reason
of  the  definition of the phrase   "Provincial  Government"
given  in section 46 (3) of the General Clauses Act.  In  my
opinion, this definition cannot affect the interpretation of
the  Government  of india Act.  In that Act  the  Provincial
Government and the Governor have been used in two  different
senses and not in one sense. Immunity from suits is given to
the Governor and not to the Provincial Government,though the
Governor may be one of the important component parts of  the
Provincial Government. Reference in this connection was made
to the East India Company Act, 1780 (21 Geo. 3, c. vii), and
to various statutes which eventually culminated in  sections
306  and 176 of the Government of India Act, 1935.   On  the
basis  of  the Act of 1780 it was contended  that  the  High
Court had no jurisdiction to issue a writ against the Gover-
nor. That statute, however, did not prohibit the issue of  a
writ  against  the East India Company.  On the  other  hand,
there are caSeS which show that such writs were being issued
against the East India Company. In my opinion, the
662
matter has to be decided exclusively under the terms of  the
Government  of India Act, 1935, and not on the terms of  any
repealed  statute.  Clauses 4 and 13 of the Charter  of  the
Supreme  Court gave the power to issue a writ of  certiorari
to  the  High Court against the East India Company  and  the
same  jurisdiction has been kept alive by the Government  of
India  Act., 1935. Reference was made to a number of  Madras
cases but, in my opinion, those cases have not been correct-
ly decided inasmuch as they have placed the Governor on  the
same  footing as the Provincial Government by a  process  of
reasoning which to my mind is not correct.
    On  the  merits  of the case whether  the  land  in  the
present  case was required for a public purpose, there is  a
concurrent finding of fact to the effect that the object  of
this requisition was to benefit an individual and no  public
purpose  was involved in it. That being so, the writ was  in
my  opinion properly issued in this case and the  appeal  is
without force.  I would accordingly dismiss it with costs.
          MUKHERJEA   J.--This  appeal is on behalf  of  the
Province of Bombay  and is directed against the judgment  of
an  appellate Bench of the Bombay High Court (consisting  of
Chagla  C.J.  and Tendolkar J.) dated January  4,  1949,  by
which  the learned Judges affirmed an order of  Bhagwati  J.
dated September 27, 1948, in so far as it granted a writ  of
certiorari, for bringing up and quashing a requisition order
made  by the Provincial Government  under section a  of  the
Bombay Land Requisition Ordinance (V of 1947). There is  not
much  controversy  about  the facts of the  case  which  lie
within  a short compass. The requisition order was  made  by
the  Province of Bombay on February 26, 1948, in respect  of
the  first floor of a building known as "Paradise"  situated
at 22, Warden Road, Mahalakshmi, Bombay.  The entire  build-
ing is owned by one Dr. M, B. Vakil, and one Abdul Hamid was
in occupation of the first floor as a tenant under Dr. Vakil
prior  to January 29, 1948.  Abdul Hamid intended to  go  to
Pakistan and was on the look out for
663
some premises at Karachi where he might reside and carry  on
business.   The  petitioner  Khusal Das, who  was  the  main
respondent in this appeal and is now dead and represented by
his  heirs,  was  a refugee from Karachi where  he  owned  a
Bungalow  worth  more  than Rs. 50,000 and  also  a  running
business in which a considerable sum of money was  invested.
On  29th January, 1948, there was an agreement entered  into
by  and between Abdul Hamid on the one hand, and  the  peti-
tioner  Khusal  Das, his son Gobind Ram  and  his  brother's
daughter's  son Hiranand on the other, by which  the  former
assigned to the latter his tenancy  right in the first floor
of  the  Paradise  in exchange of his  getting  a  leasehold
interest in the petitioner's Bungalow at Karachi. There were
other terms of this transaction  which are not relevant  for
our present purpose. The petitioner went into possession  of
the  flat  on February 4, 1948.  On February 26,  1948,  the
Government  of  Bombay issued an  order  requisitioning  the
flat,  the  order being made under section 3 of  the  Bombay
Land  Requisition  Ordinance (Ordinance No. V of 1947) which
came into force on and from the 4th of December, 1947.   The
order was signed by Mr. P.L. Rao as Secretary to the Govern-
ment  of Bombay, Health and Local Government Department.  On
the same day a letter was addressed by Mr. Rao to Dr.  Vakil
intimating to him that the said flat had been  requisitioned
as per copy of the Requisition Order enclosed therewith  and
that Government had allotted the flat to one Mrs. C. Dayaram
at  a  rental of Rs. 85 per month. Mrs. Dayaram, it  may  be
mentioned  here, was also a refugee from Sind.  On  February
27, 1948, a further order was passed under the signature  of
Mr. Rao authorising one Lalwani, an Inspector in the  Health
and Local Government Department of the Government of Bombay,
to  take  possession  of the requisitioned  flat  under  the
provision of section 9 of the Requisitioning Ordinance.   On
March  4, 1948, the petitioner Khusal Das filed an  applica-
tion  in the Original Side of the Bombay High Court  against
P.L. Rao, Secretary to the Government of Bombay
664
as  party respondent alleging that the order of  requisition
was  illegal and ultra vires on various grounds and  praying
for  writs  of certiorari, prohibition and  an  order  under
section 45 of the Specific  Relief Act against the  respond-
ent.   On  this   application,  an  interim  injunction  was
granted  by Coyajee J. restraining the Government  from  ob-
taining possession of the   flat.  By a subsequent amendment
of' the petition the Province of Bombay, as well as Mr. G.D.
Vartak,  the  Minister-in-charge  of the  Health  and  Local
Government  Department were added as parties respondents.  A
large number of  defenses  were  taken by the respondents in
answer  to the prayers of the petitioner. It  was  contended
inter  alia that the orders  made under the  Ordinance  were
not judicial or quasi-judicial orders, but executive  orders
made by the Province of Bombay and no writs of certiorari or
prohibition  would lie against orders of  this  description.
On behalf of Mr. Rao, it was urged that he did not make  any
order  himself and had merely authenticated and  signed  the
orders  in accordance with the provisions of section 59  (2)
of the Government of India Act.  As regards the Province  of
Bombay  a  point  was taken that no  writ  could  be  issued
against  the Provincial Government which meant and  included
the  Governor  of  the Province, he being  immune  from  all
proceedings in, and processes from any court of India  under
section  306 of the Government of India Act.   The  Minister
respondent, it was said, was not personally responsible  for
the orders or for the consequences thereof under the Consti-
tution.   It was contended further that the  requisition  of
the  flat, and the allotment of it to Mrs. Dayaram were  for
public purpose.  The petition was heard by Bhagwati J.,  who
overruled all the contentions of the respondents and granted
the  petitioner's prayer.  Writs of certiorari and  prohibi-
tion were directed to be issued against all the respondents,
and  there  were  also orders of  mandamus  granted  against
respondents other than the Province of Bombay.  Against this
decision an appeal was taken to the appeal Bench of the High
Court (being
665
Appeal  No. 65 of 1948) and the appeal was heard  by  Chagla
C.J.  and  Tendolkar J.  By their judgment dated January  4,
1949, the learned Judges allowed the appeal in favour of the
two  respondents other than the Province of Bombay  and  set
aside the orders made  against  them.  They affirmed however
the  judgment  of Bhagwati J., so far as it related  to  the
Province  of Bombay, and maintained the writ  of  certiorari
issued  against it.  The Province of Bombay has now come  up
on appeal to this Court.
    The  learned Attorney-General who  appeared  in  support
of the appeal contended before  us,  that having  regard  to
the provisions of the Ordinance under  which  the   requisi-
tion order  was   made no writ of certiorari would be at all
available   in law.  It has been argued in the  first  place
that the order complained of is a ministerial or administra-
tive   order   which  does  not  involve   exercise  of  any
judicial or quasi-judicial function and to a purely adminis-
trative order of this character no writ of certiorari  lies.
It  is  argued  in the alternative that  assuming  that  the
Provincial  Government  has  any  semijudicial  function  to
exercise while making an order under section 3 of the  Ordi-
nance, the question as to whether the requisition was for  a
public  purpose  or not, was a question of  fact  which  the
Provincial Government was competent to entertain and decide,
under  the  terms of the Ordinance itself, and  no  writ  of
certiorari would lie to bring up an order of the  Provincial
Government on the ground that its decision on this point was
erroneous  or  unsound.  Lastly, it is  contended  that  the
Provincial Government is immune from all court processes and
no writ of certiorari could be issued to it.
    The  first and the second points are  really  inter-con-
nected, and I may have to discuss them together. They  raise
questions of considerable nicety and general importance, and
we   had  arguments of      the  most  elaborate   character
advanced  on  them  by  the learned counsel on both sides.
666
    The first and the most important point for our consider-
ation  is whether the act of requisition against  which  the
writ  of certiorari has been issued by the High Court  is  a
judicial  or an administrative act. It is not disputed  that