dedol-hf/india-case-legal-rag huggingface dataset:
Prescribed forms are not necessary to make an inquiry  judi-
cial,  provided in coming  to the  decision well  recognised
principles of approach are required to be followed.
                  FAZAL  ALI  J.--  The mere  fact  that  an
executive  authority has to decide something does  not  make
the decision judicial.  It is the manner in which the  deci-
sion has to be arrived at which makes the difference and the
real test is there any duty to decide judicially.  There  is
nothing  in  s. 3 or any other section of the  Ordinance  in
question which imposes expressly or impliedly     a duty  on
the  Provincial  Government  to decide the  existence  of  a
public purpose judicially or quasi-judicially.
   It is well settled that when an Act or regulation commits
to an executive authority the decision of what is  necessary
or expedient and that authority make the decision, it is not
competent  to the courts to investigate the grounds  or  the
reasonableness of the decision in the absence of an  allega-
tion of bad faith, and the opinion formed by the  Provincial
Government  whether it is necessary or expedient to  acquire
land, given a public purpose,
623
cannot  therefore  be questioned.  The same cannot  be  said
with regard to the decision of the Provincial Government  as
to the existence of a public purpose which is the foundation
of  its power and is a condition precedent to its  exercise.
The  determination  of the public purpose  and  the  opinion
formed  as to the necessity or expediency of requisition  do
not form one psychological process but are two distinct  and
independent  steps and if the executive  authority  requisi-
tions land  under s. 3 without there being a public  purpose
in  existence its action would be a nullity, and the  person
whose right is affected can go to the proper court and claim
a declaration that his rights cannot be affected.  An appli-
cation for certiorari would not, however, lie in such a case
as  the requisition of premises under s. 3 of the  Ordinance
is a purely administrative act and does not involve any duty
to  decide  the existence of a public purpose or  any  other
matter judicially or quasi-judicially.
    MAHAJAN J.--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 and the nature, scope  and
effect of the particular power in exercise of which the  act
may  be  done and would therefore depend on  the  facts  and
circumstances of each case.  The question whether a land  is
required  for a public purpose or is being used  for  public
worship  involves difficult questions of law and fact  seri-
ously  affecting the rights of parties. These are not  ques-
tions for the mere  determination of the Government  subjec-
tively  by its own opinion, but are matters for   determina-
tion  objectively  and in a judicial  manner,  on  materials
which the Government have sufficient power to call for under
es. 10 and 12 of the Ordinance after hearing any  opposition
to its proposal, and the High Court of Bombay had  therefore
jurisdiction to issue a writ of certiorari.
    MUKHERJEA J.--Under s. 3 of the Ordinance,  the  act  of
requisitioning  land is left to the executive discretion  of
the Provincial Government. But the section makes the  exist-
ence  of a public purpose an essential prerequisite  to  the
taking  of steps by the Provincial Government in the  matter
of  requisitioning  any property and under the  section  the
essential fact on which the jurisdiction to proceed with the
requisition is rounded is the existence of a public  purpose
as an objective fact, and not the subjective opinion of  the
Provincial  Government  that such fact  exists.   Whether  a
public purpose exists or not has to be determined judicially
as there is a lie or controversy between the interest of the
public  on the one hand and that of the individual who  owns
the property on the other hand, and the determination of the
Government  was therefore a judicial act; the  determination
was further a collateral matter on which the jurisdiction to
requisition was rounded, and not a part of the executive act
of
624
requisitioning, and a writ of certiorari could therefore  be
issued in
     DAS  J.--The words "to do so" in s. 3 of the  Ordinance
refer to the entire composite matter of "requisitioning  for
a  public purpose," not merely to the act of  requisitioning
simpliciter  and the existence of a public purpose was  left
as  much to the subjective opinion  of  the Provincial  Gov-
ernment  as the necessity or expediency for requisitioning a
particular  land.   As the formation of the opinion  on  the
entire matter was purely subjective and the order of  requi-
sition was to be rounded on this subjective opinion, it  was
not  a judicial or quasi-judicial act but a purely  adminis-
trative act  and consequently it was not a matter in respect
of which a writ of certiorari could be issued.  Even on  the
assumption  that the question of the existence of  a  public
purpose  had not been left to the subjective opinion of  the
Provincial Government and that the question had to be deter-
mined by it, there was nothing in s. 3 to suggest that  such
determination had to be made judicially and a writ of certi-
orari would not in any case lie.
  Even if the existence of a public purpose was a collateral
fact,  then at best is was only a case of an  administrative
body  assuming  jurisdiction to perform  its  administrative
powers,  and  if  it assumes jurisdiction  on  an  erroneous
assumption  it might be corrected by an action, but  certio-
rari cannot be an-appropriate remedy;  and assuming  further
that this collateral fact had to be decided quasi-judicially
and  its decision might be quashed, the administrative  act,
namely the formation of opinion and the order based  thereon
would still remain unaffected by certiorari.
    In order that a body may be a quasi-judicial body 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.
If a statute empowers an authority not being a court in
the ordinary sense to decide disputes arising out of a claim
made  by one party under the statute which claim is  opposed
by  another party and to determine the respective rights  of
the contesting parties who are opposed to each other,  there
is a lie and prima facie, and in the absence of anything  in
the statute to the contrary, it is the duty of the authority
to  act  judicially and the decision of the authority  is  a
quasi-judicial act.
If a statutory body his power to do any act which  will
prejudicially  affect the subject, then although there   are
not two parties apart from the authority, and the contest is
between  the authority proposing to do the act and the  sub-
ject  opposing it, the final determination of the  authority
will  yet be a quasi-judicial act provided the authority  is
required by the statute  to act judicially.
625
    A mere provision for an enquiry as a preliminary step to
coming to a decision will not necessarily make the  decision
a  quasi-Judicial act, for, the purpose of the  enquiry  may
only be to enable the deciding authority to make up its mind
to do what may be a purely administrative act.
    Held,  per KANIA C.J., FAZL ALI, PATANJALI  SASTRI,  and
DAS JJ.--The powers given to the Provincial Government under
ss.  10  and 12 of the Ordinance are only  enabling  and  in
terms  are  not compulsory, and there is  nothing  in  these
sections  which makes it incumbent on the Government to  set
judicially in the matter of making an order for  requisition
under s. 3.
    Held  also, per MAHAJAN, and MUKIIERJIEA  JJ.--(i)  that
the  immunity granted by s. 306 of the Government  of  India
Act,  1935, related to the Governor and not, to the  Provin-
cial  Government  and under the said Act the High  Court  of
Bombay  had  jurisdiction  to issue  a  writ  of  certiorari
against the Provincial Government of Bombay;  (ii) that  the
word "sue" in  s. 176 of the said Act meant the  enforcement
of  a claim or a civil right by means of  legal  proceedings
and was wide enough to include an application for a writ  of
certiorari.
  Rex v. Electricity Commissioners ([1924] 1 K.B. 171),  Rex
v.  London Coounty Council ([1931] 9, K. B. 215), The  Queen
v.  Corporation  of Dublin ([1878] 2 L.R.  Ir.  371),  Frome
United Breweries v. Bath Justices ([1996] A.C. 386), _Rex v.
Archbishop  of Canterbury ([1944] 1 K.B. 281), Rex v.  Wood-
house  ([1906]  2  K.B. 501),  King  v.  Postmaster  General
([1928]  1 K.B. 291), _Rex v. Boycott and Others  ([1939]  2
K.B. 651), Franklin v. Minister of Town and Country Planning
([1948]  A.C.  87), In re Banwarilal  Roy (48  C.W.N.  766),
Jugilal  Kamlapat  v.   Collector of Bombay  (47  Bom.  L.R.
1070), Hamabai Framji Petit v. Secretary of State for India
(L. R, 42, I.A.
    44),King   v.  Bradford ([1908] 1 K.B. 865),  and  other
cases referred to.
JUDGMENT:
APPELLATE JURISDICTION (CIVIL): Case No. III
of 1949.
    Appeal  under  section 205 of the  Government  of  India
Act,  1935,  from the judgment  of  the Bombay
High Court (Chagla C.J. and Tendolkar J.) dated the 4th  day
of:January, 1949, in Appeal No. 65 of A948.
    M.C.  Setalvad,  Attorney-General for  India   and  C.K.
Daphtary,Advocate-General  of  Bombay (G.N. Joshi  and  M.M.
Desai with them) for the appellant.
    H.M.  Seervai,  R.J. Joshi and Rameshwar Nath,  for  re-
spondents Nos. 1 (a) and 1 (b).
626
1950.   September  15.  The  Court  delivered  judgment   as
follows:--
    KANIA  C.J.--This  is an appeal from a judgment  of  the
High Court at Bombay and it relates to the power of the High
Court to issue a writ of certiorari against the province  of
Bombay  to quash an order to requisition  certain  premises.
The  material facts, as stated in the judgment of  the  High
Court, are these.  One Abdul Hamid Ismail was, prior to  the
29th  of January, 1948, the tenant of the first floor  of  a
building  known  as" Paradise" at Warden Road,  Bombay,  the
landlord  of  which  was one Dr. M.D. Vakil.   On  the  29th
January, 1948, Ismail assigned his tenancy to the petitioner
and two others, the son  and brother's daughter's son of the
petitioner  (the respondent).  All the three assignees  were
refugees  from Sind.  On the 4th February, 1948,  the  peti-
tioner went into possession of the flat.  On the 26th Febru-
ary, 1948, the Government of Bombay issued an order requisi-
tioning the flat under section 3 of the Bombay Land Requisi-
tion Ordinance (V of 1947) which came into force on the  4th
December,  1947 On the same day Dr. Vakil was informed  that
the Government had allotted the premises to Mrs. C.  Dayaram
who was also a refugee from Sind. Further orders were issued
authorising an Inspector to take possession of the premises.
On the 4th March, 1948, the petitioner filed a petition  for
a  writ  of certiorari and n order under section 45  of  the
Specific Relief Act.  The petition was heard by Mr.  Justice
Bhagwati  who,  iNter  alia, granted the  writ  against  the
province  of  Bombay and the Secretary etc.  On  appeal  the
appellate Court confirmed the order as regards the issue  of
the writ of certiorari against the appellant, but  cancelled
the  order as regards the other parties.  The appellant  has
come on appeal to this Court.
    The  learned Attorney-General, on behalf of  the  appel-
lant,  urged  the  following three points  for  the  Court's
consideration:
(1)(a).  Having regard to the provisions of Ordinance  V
of 1947, whether the order in question was quasi-judicial or
only administrative ?
627
    (b) Assuming the order to be of a quasi-judicial nature,
whether it was a case of want or excess of jurisdiction,  or
it was only a case of mistake of law ?
    (2) Whether a writ of certiorari can be. issued  against
the  appellant, which for its actions under  the  Ordinance,
represents the Crown ?
(3). Whether the order in question was made for a public
purpose ?
    Sections  3,  4, 10 and 12 of the  Ordinance  which  are
material for the discussion in this appeal run as follows:
    "&  Requisition of land  ....  If in the opinion of  the
Provincial Government it is necessary or expedient to do so,
the  Provincial Government may by order in writing  requisi-
tion any land for any public purpose:
    Provided  that  no land used for the purpose  of  public
religious  worship or for any purpose which  the  Provincial
Government  may  specify  by notification  in  the  Official
Gazette shall be requisitioned under this section.
    4.  Requisition of vacant premises.--(1) If any premises
situate in an area specified by the Provincial Government by
notification in the Official Gazette are vacant on the  date
of  such notification and whenever any such premises  become
vacant  after  such date either by the landlord  ceasing  to
occupy the premises, or by the termination of a tenancy,  or
by the eviction of a tenant, or by the release of the  prem-
ises.  from requisition or otherwise, the landlord  of  such
premises  shall  give intimation thereof in  the  prescribed
form to an officer authorised in this behalf by the  Provin-
cial Government.
    (2)   Such intimation  shall  be given  by  post  within
one  month of the date of such notification in the  case  of
premises  which are vacant on such date, and in other  cases
within seven days of the premises being vacant.
    (3) A landlord shall not, without the permission of  the
Provincial Government, let the premises before
628
giving  such intimation and for a period of one  month  from
the date on which such intimation is given.
    (4)   Whether or not an intimation under subsection  (1)
is given, and notwithstanding anything contained in  section
3, the Provincial Government may by order in writing  requi-
sition the premises and may use or deal with the premises in
such manner as may appear to it to be expedient.
    (5)   Any  landlord who fails to  give  such  intimation
within  the  period specified in sub-section  (2)  shall  on
conviction, be punishable with fine which may extend to  one
thousand  rupees and any landlord who lets the  premises  in
contravention  of the provisions of sub section (8),  shall,
on  conviction, be punishable with imprisonment  which.  may
extend to three months or with fine or with both.
    10.   Power to obtain information.--(1)  The  provincial
Government may, with a view to carrying out the purposes  of
this  Ordinance, by order require any person to  furnish  to
such authority as may be specified in the order such  infor-
mation  in  his  possession relating to any  land  which  is
requisitioned  or is continued under requisition or  is  in-
tended to be requisitioned or continued under requisition.
   (2)  Every person required to furnish such information as
is  referred  to in sub-section (1) shall be  deemed  to  be
legally  bound to do so within the meaning of  sections  176
and 177 of the Indian Penal Code (XLV of 1860).
   12.  Power to enter and inspect  land.--Without prejudice
to  any  powers otherwise conferred by  this  Ordinance  any
officer or person empowered in this behalf by the Provincial
Government by general or special order may enter and inspect
any land for the purpose of determining whether, and, if so,
in what manner, an order under this Ordinance should be made
in relation to such land, or with a view to securing compli-
ance with  any order made under  this Ordinance."
629
    On  the  first question, it was pointed out  that  under
section  3 of the Ordinance the decision of  the  Provincial
Government  to  requisition certain premises  is  clearly  a
matter of its opinion and therefore not liable to be  tested
by  any objective standard.  It was urged that the  decision
as  to  whether  the premises were  required  for  a  public
purpose was also a matter for the opinion of the  Provincial
Government,  and not a matter for  judicial   investigation,
and  therefore  the making of the order was in  no  sense  a
quasi-judicial decision, but  an  administrative  or  minis-
terial  order.  In this connection it was pointed  out  that
unlike  the Land Acquisition Act there was no  provision  in
the  Ordinance for issuing a notice, or for inquiries to  be
made,  or for rival contentions to be examined and  evidence
to  be  weighed  before a decision is arrived  at.   It  was
pointed out that if  public purpose was outside the scope of
the opinion of the Provincial Government, the section  would
have  run:  "If  for any public purpose in  the  opinion  of
Government....  ........."
    A discussion  about  the  distinction  between  judicial
and  quasi-judicial functions is not useful in this case  as
the point for determination is whether the order in question
is a quasi-judicial order or  an administrative or  ministe-
rial   order.    In   Regina   (John   M'Evoy)   v.   Dublin
Corporation(1), May CJ. in dealing  with this point observed
as follows:--" It is established that the writ of certiorari
does not lie to remove an order merely ministerial, such  as
a  warrant,  but it lies to remove and adjudicate  upon  the
validity  of  acts judicial.  In this connection,  the  term
'judicial'  does  not necessarily 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 consid-
eration  of facts and circumstances, and imposing  liability
or  affecting  the rights of others."  This  definition  was
approved  by Lord Atkinson in Frome United Breweries Co.  v.
Bath Justices (2) as the best
(1) [1878] 2 L.R. Irish 371, 376.      (2) [1926] A.C,  586.
602.
630
definition of a judicial act as distinguished from an admin-
istrative act.
A  distinction  between the nature of the two  acts  has
been  noticed in a series of decisions.  This Irish case  is
one of the very early decisions.  On behalf of the  respond-
ent  it was contended that as stated by Chief  Justice  May,
whenever there is the determination of a fact which  affects
the  rights of parties, that determination is a  quasi-judi-
cial  decision  and, if so, a writ of  certiorari  will  lie
against  the  body entrusted with the work  of  making  such
decision.   As  against  this, it was pointed  out  that  in
several English cases emphasis is laid on the fact that  the
decision should be a judicial decision and the obligation to
act  judicially is to be found in the Act  establishing  the
body  which makes the decision.  This point appears to  have
been  brought  out clearly in The King  v.  The  Electricity
Commissioners (1), where Lord Justice Atkin (as he then was)
laid down the following test:  "Wherever any body of 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 jurisdiction of the King's  Bench  Division
exercised  in these' writs."  This passage has   been  cited
with  approval  in  numerous  subsequent decisions  and  ac-
cepted  as  laying down the correct test.  A  slightly  more
detailed examination of the distinction is found in The King
v.  London County Council (2), where Scrutton L.J.  observed
as follows :--"it is not necessary that it should be a court
in the sense in which this court is a court; it is enough if
it is exercising, after hearing evidence, judicial functions
in  the  sense that it has to decide on evidence  between  a
proposal  and an opposition; and it is not necessary  to  be
strictly  a court; if it is a tribunal which has  to  decide
rights after hearing evidence and opposition, it is amenable
to  the  writ of certiorari."  Lord Justice Slesser  in  his
judgment at page 243 separated the four conditions laid down
by Atkin L.J. under which a rule
(1) [1924] 1 K.B. 171.          (2) [1931] 2 K.B. 215, 233.
631
certiorari  may issue.  They are: wherever any body of  per-
sons  (1) having legal authority (2) to determine  questions
affecting rights of subjects and (3) having the duty to  act
judicially  (4) act in excess of their.  legal  authority--a
writ  of  certiorari may issue.  He examined each  of  these
conditions  separately and came to the conclusion  that  the
existence  of each was necessary to determine the nature  of
the   act   in question.  In. The Ryots  of  Garabandho  and
other villages v. Zamindar of Parlakimedi (1) Viscount Simon
L.C.,   in  delivering the  judgment of the Board,  accepted
the test of these four conditions to determine the nature of
the  act.  He stated: "This writ does not issue  to  correct
purely  executive acts but, on the other hand, its  applica-
tion  is not narrowly limited to inferior  'courts'  in  the
strictest  sense.  Broadly speaking, it may be said that  if
the  act  done by the inferior body is a  judicial  act,  as
distinguished from being a ministerial act, certiorari  will
lie.    The remedy, in point of principle, is  derived  from
the  superintending   authority   which   the    Sovereign's
superior courts and in particular the court of King's Bench,
possess  and  exercise  over  inferior  jurisdictions.  This
principle has been transplanted to other parts     of King's
Dominions  and operates, within  certain limits, in  British
India."  In  Franklin  v.  The Minister of Town and  Country
Planning  (2), the points of distinction are again  noticed.
The question arose in respect of the town and country  plan-
ning  undertaken under the relevant Statute on the order  of
the  Minister  following a public local  inquiry  under  the
provisions  of the Act.  The question was whether the  order
of the Minister was a quasi-judicial act or a purely. admin-
istrative  one.  Lord Thankerton pointed out that  the  duty
was  purely  administrative but the Act  prescribed  certain
methods  or  steps  in the discharge of  that  duty.  Before
making  the draft order, the Minister must have made  elabo-
rate  inquiry into the matter and have consulted  any  local
authorities  who  appear to him to be  concerned  and  other
departments
(1) 70 I.A. 129.                (2) [1948]  A.C.
87, 102,
632
of  the  Government.  The Minister was required  to  satisfy
himself that it was a sound scheme before he took the  seri-
ous  step  of  issuing a draft order.  For  the  purpose  of
inviting  objections and where they were not  withdrawn,  of
having a public inquiry to be held by someone other than the
respondent  to whom that person reports was for the  further
information of the respondent for the final consideration of
the soundness of the scheme.  He observed:  "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
whether  he  has complied with the statutory  directions  to
appoint a person to hold the public inquiry and to  consider
that person's report."
Learned counsel for the respondent  referred     to  several
cases  but in none of them  the  dicta    of Atkin L.J.   or
the   four  conditions  analysed  by Slesser L.J. have  been
suggested,  much less stated, to be not the  correct  tests.
The respondent's argument that whenever there is a  determi-
nation  of a fact which affects the rights of  parties,  the
decision is quasijudicial, does not appear to be sound.  The
observations  of May C.J., when properly read, included  the
judicial  aspect of the determination in the words  used  by
him.  I am led to that conclusion because after the test  of
judicial duty of the body making the decision was  expressly
stated  and   emphasized by Atkin and Slesser  L.JJ.  in  no
subsequent decision it is even suggested that the dictum  of
May C.J. was different from the statement of law of the  two
Lords  Justices or that the latter, in any way, required  to
be  modified. The word "quasi-judicial"  itself  necessarily