dedol-hf/india-case-legal-rag huggingface dataset:
(1)   Vide  Nakkuda Ali v. M.F. De S. Jayratne  54  G.W.N.
883, 888. (2) [1942] A.C. 206,207
677
and  the act cannot be a judicial act, as the  existence  of
the  condition is incapable of being determined by  a  third
party by application of any rule of law or procedure.
    One  other question arises in this connection  and  that
relates  to the second and alternative contention raised  by
the learned Attorney-General. When the legislature delegates
powers to an authority, and lays down that the powers  could
be exercised only if a certain state of facts exists,  obvi-
ously  the  authority  cannot act if the  condition  is  not
fulfil/ed.   If it wrongly holds or assumes that the  condi-
tion exists although it actually does not exist, its assump-
tion  of jurisdiction would be unsupportable, and  could  be
removed  by a writ of certiorari.  The  legislature  however
may entrust the authority with a jurisdiction which includes
the jurisdiction to determine whether the preliminary  state
of facts exists. In such cases even if the authority makes a
wrong  decision either of facts or law, it can be  corrected
by an appellate tribunal if there is any, but not by a  writ
of  certiorari, as every authority if it acts within  juris-
diction  is competent to decide both rightly or wrongly  (1)
Keeping in view the principles mentioned above, I would  now
turn  to  the  provisions of the  Bombay  Land   Requisition
Ordinance,  1947,  and  try to ascertain from the nature and
scope  of  the provisions, whether the  act  of  requisition
which section 3 of the Ordinance contemplates is a  judicial
or a purely administrative order.
    The  title of the Ordinance shows that it was passed  to
provide  for  the requisition of land,  for  continuance  of
requisition  already made and for other purposes. The  first
preamble  sets  out  the fact that  the  GovernorGeneral  in
exercise of the powers conferred on him under section 104 of
the Government of India Act, 1935, has empowered all provin-
cial legislatures to enact laws with respect to  requisition
of  land.  The second preamble really gives the  reason  for
passing of
 (1)  Per Esher L.J. in Queen v. Commissioners for the  Spe-
cial Purposes of  Income Tax, '21 Q.B.D. 313 at p. 319.
678
the Ordinance; it recites that the Bombay Legislature is not
in  session  and the Governor of Bombay  is  satisfied  that
circumstances  exist  which render it necessary for  him  to
take immediate action to enable the Provincial Government to
make provisions for requisitioning of land and for  continu-
ance of requisition of lands already subject to requisition.
Section 3 of the Ordinance is the most material section  for
our present purpose and it stands as follows :--
    "If  in the opinion of the Provincial Government  it  is
necessary  or expedient to do so, the Provincial  Government
may by order in writing requisition any land for any  public
purpose :"
    There is a proviso added to the section which is  worded
thus:
    "Provided  that  no and 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."
    The language of the section taken along with the proviso
indicates  in my opinion, that whereas the act  of  requisi-
tioning  land  is left to the executive  discretion  of  the
Provincial  Government and the latter can  requisition  land
whenever  it  considers  necessary or expedient  to  do  so,
certain conditions have been laid down which are  conditions
precedent  to. the exercise of the powers. The first  condi-
tion  is specified in the section itself and  it  postulates
the   existence  of  a  public  purpose  as   an   essential
prerequisite  to  the  taking of  steps  by  the  Provincial
Government  in  the matter of requisitioning  any  property.
Even  where  this condition is satisfied, there  is  another
condition  imposed by the proviso which is in the nature  of
an  exception  engrafted upon the entire section  and  which
prevents  the  Provincial  Government  from  exercising  its
powers at all if the land sought to be requisitioned is used
for public religious worship or for any other purpose  which
the  Provincial  Government has specified  in  the  Official
Gazette.
679
    In  my opinion the existence of a public purpose  as  an
objective  fact, and not the subjective opinion of the  Pro-
vincial Government that such fact exists, has been made  the
essential  preliminary which founds the jurisdiction of  the
Provincial  Government to proceed with any act  of  requisi-
tion.
    This would be apparent from the collocation of words  as
they  occur in section 3 and also from other  provisions  of
the Ordinance which indicate the scheme which the framers of
the Ordinance had in view.
    Section  3  does not say that if in the opinion  of  the
Provincial Government it is necessary or expedient to requi-
sition land for any public purpose, it may do so by an order
in  writing.   In that case it might be argued that  it  was
left  as  a matter of subjective opinion to  the  Provincial
Government  to  decide whether there was or not  any  public
purpose justifying the requisition; and provided the author-
ity  acted in a bona fide manner, the Courts would  have  no
say in the matter.  The words "public purpose," it would  be
seen, have been placed at the end of the sentence, and  this
indicates that it is a thing collateral to, and not included
in,  the act which has been described before, and which  has
been  left  to the discretion of the executive.   It  is  an
independent fact, the existence of which enables the  execu-
tive  to move in the matter of requisitioning property,  but
it  is itself not dependent on the personal opinion  of  the
executive.  I agree entirely with Chagla C.J. that the words
"to do so" refer to the act of requisition, that is to  say,
to the nature of the act and not to the purpose for which it
is  done.  There is no indication here, as there is in  var-
ious statutes and regulations which I have referred to above
that not merely the necessity or expediency of  requisition-
ing  property, but the existence of a public  purpose  which
gives occasion for exercising the powers of requisition,  is
also a matter of personal opinion of the executive.
    Reference  was made in course of arguments to  the  lan-
guage  of section 4 of the Indian Land Acquisition Act,  and
similar provisions in other Land Acquisition
680
enactments, where the expression 'public purpose' occurs.
   It will be seen at once that the language of these provi-
sions is materially different from that of section 3 of  the
Ordinance.
In Wijeyesekera v. Festing(1) the Privy Council had to  deal
with a case under the Ceylon Acquisition of Land  Ordinance.
Section 4 of the Ordinance provides as follows:
  "Whenever it shall appear to the Governor that land in any
locality  is likely to be needed for any public purpose,  it
shall  be  lawful for the Governor to  direct  the  Surveyor
General or other officer  ......    to examine such land and
report whether the same is fitted for such purpose."
   "Section 6 then says:
"The   Surveyor   General   or   other   officer    ......
shall make his report to the Governor Whether the possession
of the land is needed for the purpose for which it  appeared
likely  to be needed as aforesaid, and upon the  receipt  of
such  report  it shall be lawful for the Governor  with  the
advice  of  the Executive Council to direct  the  Government
Agent to take order for the acquisition   of the land."
  The question raised was whether the decision of the Gover-
nor that the land is wanted for public purpose is final, and
the  question  was answered in the  affirmative.   It  seems
clear  that on the language of the two sections referred  to
above no other answer was possible.  It is not the existence
of  a public purpose which is a condition precedent  to  the
exercise  of powers by the Governor under the  Ceylon  Ordi-
nance.  The  Governor has been made the sole  Judge  of  the
existence  of public purpose as well as of the necessity  of
acquiring  land  for that purpose.  There  is  no  condition
limiting or restricting his powers in any way.
  The language of section 4 of the Land Acquisition
Act of India is very much the same.              The section
begins with these words:
  (1) [1919] A.C. 646
681
    "Whenever  it appears to the local Government that  land
in  any  locality is needed or likely to be needed  for  any
public purpose  ......  "
    Moreover, under section 6 (3) of the Act, a  declaration
made  by the Government that any land is needed  for  public
purpose  is  conclusive evidence of the  existence  of  such
purpose.
    What  exactly is the extent of powers conferred  by  the
Legislature  upon a body or tribunal is to be gathered  from
the  language  used by the Legislature. Mere  similarity  or
even identity of objects cannot justify us in coming to  the
conclusion  that  the Legislature must have meant  the  same
thing  in one piece of legislation as it meant  in  'another
when  the language is not identical.  In cases of  this  de-
scription  utmost stress should be laid on the actual  words
used,  for  there  is no presumption  that  the  Legislature
intended to confer one kind of power on the authority rather
than  another in cases of particular type.  If there is  any
presumption  at  all it is in favour of the liberty  of  the
subject, and any law which encroaches upon such liberty must
be construed strictly and should not be carried beyond  what
the actual words used mean in their plain grammatical sense.
It  may be pertinent to point out in this connection that  a
similar provision in section 3 (1) of the West Bengal  Prem-
ises  Requisition and Control Act, has been expressed  in  a
different  language and the actual existence of public  pur-
pose has not been made a condition precedent to the exercise
of  powers  by the Provincial Government.   The  section  is
worded as follows:
    "Whenever  it appears to the Provincial Government  that
any premises in any locality are needed or are likely to  be
needed  for any public purpose, it may by order  in  writing
requisition such premises."
    There has been a recent decision(1) of the Calcutta High
Court  on  the above provision of the Bengal  Act,  but  the
particular  point which has arisen for our consideration  in
this case, was not and could not be raised there.
(1) A.C. Mahomed v. Sailendranath 54 C.W.N.. 642.
682
    A conspectus of the whole of the Bombay Ordinance leaves
a  clear  impression that it was not the  intention  of  the
framers of the Ordinance to give an unlimited and unfettered
discretion  to  the Executive Government in  the  matter  of
requisitioning  property.  The powers are  to  be  exercised
within  defined limits. Section 3 as stated above imposes  a
twofold restriction, one by postulating the objective exist-
ence of public purpose as a pre-requisite to the exercise of
discretionary  powers,  the other by  excluding  the  powers
altogether  when  the land is used for  a  public  religious
purpose.  Thus the proviso which excepts the cases specified
therein  from the sphere of operation of the general  provi-
sion  of the entire section has also set    up an  objective
condition, the existence of which would exclude the exercise
of   powers by the Provincial Government.  Section  4  again
deals  with  requisition of vacant premises and  instead  of
leaving it to the executive to determine whether a  premises
is vacant or not, sub-clause (i) gives an elaborate descrip-
tion  of  the  circumstances under which  vacancy  would  be
deemed to arise in law.  The power of requisitioning  vacant
premises  can  be made only if the conditions laid  down  in
section  4  are fulfilled.  Section 8 deals with  powers  of
enquiry  for purposes of payment of compensation as is  pro-
vided for in section 6 and is not material for our  purpose.
Section  10  makes a general provision  and  the  Provincial
Government under this section may, with a view to carry  out
any of the purposes of the Ordinance, by order, require  any
person to furnish any information in his possession relating
to  the land requisitioned or to be requisitioned.  This  is
certainly an enabling provision and I am unable to say  that
this  provision by itself indicates that the function  exer-
cisable by the Provincial Government is a judicial function.
The  duty to act judicially is, in my opinion,  implicit  in
section 3 itself.
    It must not be overlooked that the determination of  the
existence  of ' public purpose' involves decision  on  ques-
tions of both facts and law. As was observed by
683
Lord  Loreburn in Board of Education v.  Rice(1),  "compara-
tively  recent  statutes  have extended, if  they  have  not
originated,  the  practice of imposing upon  departments  or
officers of State the duty of deciding or determining  ques-
tions of various kinds. In the present instance, as in  many
others,  what comes for determination is sometimes a  matter
to  be settled by discretion involving no law.  It  will,  I
suppose, be usually of an administrative kind;but  sometimes
it will involve matter of law as well as matter of fact,  or
even  depend upon matter of law alone.  In such  cases,  the
Board  of Education will have to ascertain the law and  also
to ascertain the fact."  This was held by his Lordship to be
a clear index of a duty to act judicially.
    It was suggested, in course of arguments that as  admit-
tedly  the actual act of requisition is  discretionary  with
the Provincial Government, no writ of certiorari can  possi-
bly  be issued.  There is not much substance in  this  argu-
ment,  for  the very jurisdiction or authority  to  exercise
discretion  is dependent on a condition precedent  which  if
unfulfilled  would  make  the exercise  of  discretion  void
altogether.   It is a commonplace feature of this  class  of
legislation that an authority is often required to  exercise
both  ministerial and quasijudicial functions.   Whether  he
acts administratively throughout or is put at one stage in a
quasi-judicial  position has to be gathered from the  provi-
sions  of  the Act.  The case of Errington  v.  Minister  of
Health(2)  is a leading authority which holds that the  same
proceeding may be administrative at one stage and quasijudi-
cial at another.
    The position in my opinion may be summed up as follows:
The  Provincial  Government has to satisfy  itself  that
there is a public purpose before it proceeds to  requisition
any  property.  As this is an objective condition which  has
not  been  made  dependent on the personal  opinion  of  the
Executive it has got to be determined judicially and whether
a public purpose exists or not is itself a mixed question of
facts and law which could
(1)  [1911] A.C. 179 at p, 182.           (2) [1935] 1  K.B.
249.
684
be  determined by, application  of well established  princi-
ples  of  law  to the circumstances of  a  particular  case.
There  is undoubtedly a lis or point in controversy-or  what
is  called  a proposal and an opposition. On the  one  hand,
there  is the interest of the public, and on the other,  the
interest of the individual whose property is being  requisi-
tioned.  No  formal  array of parties is  necessary.  It  is
enough  that there is a point in issue which has got  to  be
decided  between  parties having  conflicting  interests  in
respect to the same. The fact that the Provincial Government
represents  the interests of the public also is to  my  mind
immaterial.   If  there is a duty to  decide  judicially  it
would be a judicial act, and it is not necessary that  there
must be two opposing parties other than the deciding author-
ity appearing in a regular or formal
  My  conclusion, therefore, is that on the first point  the
decision  of  the High Court is right, and  the  contentions
raised by the learned Attorney-General must fail.
  The  question now arises whether the Ordinance has  con-
ferred  upon the Provincial Government the  jurisdiction  or
authority  to 'decide finally as a part of  the  requisition
proceeding itself whether any public purpose exists or  not.
If  it has, the error, if any, committed by  the  Provincial
Government, may be an error of fact or law, but would not be
one of jurisdiction, and whatever other remedy might be open
to the aggrieved party, a writ of certiorari would not  lie.
As  has been said already, it is clear from the language  of
section  3  of  the Ordinance that the  act  of  requisition
itself, provided the condition precedent is fulfilled, is  a
pure  executive  act,  in regard to  which  an  untrammelled
discretion  has been left to the Provincial Government..  If
the  state  of  fact exists which  entitles  the  Provincial
Government to act, the function that the Provincial  Govern-
ment  exercises is a purely administrative  function,  which
does not involve performance of any judicial duty.  In  such
circumstance  the  existence of public purpose is  either  a
matter of personal opinion of the Provincial Government
685
in Which case no question of exercising a judicial  function
at all arises, or it is wholly independent of and collateral
to  the  executive act and is an objective  condition  which
must be fulfilled before  the Provincial Government can take
any  steps  in the matter. As I have stated  already,  on  a
proper  interpretation  of section a of the  Ordinance,  the
latter is the proper view to take.  This being the position,
whether  or  not a public purpose exists  is  a  preliminary
question which is collateral to the merits of the  executive
act which is to be performed by the Government under section
3 of the Ordinance.
       Public purpose must exist as a fact, and the  Provin-
cial   Government  must satisfy itself as to  its  existence
before it can take any steps in requisitioning property; but
it is not for the Provincial Government to decide the matter
finally  or conclusively, and its decision on this  prelimi-
nary  point  would be open to enquiry  by  superior  courts.
These  principles  are laid down in Bunbury v.  Fuller  (1),
Pease  v.  Chaytor (2) and Colonial Bank of  Australasia  v.
Willan  (3).   By way of illustration  of  these  principles
reference may be made to two well-known English cases.
   In  Rex v. Woodhouse (4) there was an application  to
bring  up  an  order made by Licensing  Justices  under  the
Licensing  Act  referring an application for  renewal  of  a
licence to quarter sessions.  One of the points    raised in
the  case  was  whether or not the Justices  were  right  in
deciding  that the  applicants  were   qualified  to   apply
for   licence  under  the  provisions of  the   Beer   House
Act,  1840,  which   required that  the applicant should  be
the real resident holder and occupier of the dwelling  house
in which he should apply to be licensed.  It was held by the
majority of Judges in the Court of Appeal that the fact that
the  applicants  were not the real resident holders  of  the
Beer  houses excluded them from the class to whom  licences,
whether  absolute  or conditional, could be granted  and  no
erroneous decision on this
(1) 9 Ex. Ch. 111.             (8) [1874] 5 P.C. 417  at
p.422.
    (2) 3 B. & S. 620,             (4) [1906] 2 K.B. 505
686
question  of fact by the Magistrates could give them  juris-
diction.
     Reference was made by Fletcher Moulton L.J. to  certain
passages in Bunbury v. Fuller (1) and Peaso. v. Chaytor  (2)
and it was held that if the licensing Magistrates did decide
these points of fact, it is the duty of the Court to  review
their  decisions, and if it is erroneous, to quash  the  li-
cences and references.
 The other case is that of Rex v. Bedford (3), and it  arose
upon  a  rule for a certiorari to bring up an order  of  the
Justices  authorising the entry upon certain  enclosed  land
for  the purpose of taking materials for the repair of  cer-
tain  roads  under sections 53 and 54 of the  Highways  Act,
1835.   Under  sections 53 and 54 of the Highways  Act,  the
Justices may license the Surveyor of Highways to take  mate-
rials  for repair of the Highways "at such time or times  as
to  such Justices may seem proper from the enclosed land  of
any  person   ....not  being a park."  On  a  licence  being
granted  by the Justices to the Newton Abbot Rural  District
Council, authorising them by their Surveyor, to take materi-
als  for  the repairs of the Highway from a place  known  as
Grange Quarry in the said Parish, a rule was obtained for  a
writ  of  certiorari to bring up the order  to  be  quashed,
inter  alia on the ground that it was made in respect  of  a
land  which  was a park.  It was held that the land  was  in
fact a park, and the Justices cannot give themselves  juris-
diction  by  finding that it was not a park.   The  question
whether  the  place is a park or not is a  matter  which  is
preliminary  to exercise of the Justices' jurisdiction,  and
one  which  is not for the Justices  to  determine  finally.
"The  enquiry is not in the course of exercise of  jurisdic-
tion  but as a preliminary to it.  The case therefore  falls
within  the rule laid down in Bunbury v. Fuller (4) and  the
Justices' decision in the matter is subject to review. ''
It must be admitted that in both these cases there  was
no dispute that the Justices had to exercise
   (1) 9 Ex. Ch. 111.               (2) 3 B. & S.620.
   (3) [1908] 1 K .B, 365,          (4) 9 Ex. Ch. 111..
687
quasi-judicial powers, and the only question was whether the
facts  upon which the exercise of jurisdiction was  made  to
depend  were preliminary matters collateral to  the  enquiry
or  were matters to be adjudicated upon as part of  the  en-
quiry itself.  In the case before us the act of requisition,
as said already, is an executive and not a judicial act, and
to this extent therefore there is no similarity between  the
present case  and  those referred to above.  But the princi-
ples  underlying these authorities can certainly be  invoked
for  our present purpose.  The act of requisition  being  an
executive  act,  the  determination of the  existence  of  a
public purpose upon which the exercise of powers is  depend-
ent  is  either  a part of the executive act  itself  or  is
something  collateral to it.  I have attempted to show  that
it is a thing collateral and preliminary to the exercise  of
executive authority and not a part of it. That being so, the
determination  of  this collateral matter by  the  executive
authority  which  is,  in my opinion,  a  judicial  function
cannot  be  regarded as  final and if the  determination  is
erroneous,  it  can be corrected and removed by  a  writ  of
certiorari.
  It  may be stated here that before the learned  Judges  of
the appellate Bench in the High Court no attempt was made on
behalf  of the Government to establish that the premises  in
question  were  requisitioned  for any  public  purpose.   A
public  purpose involves some benefit to the community as  a
whole,  as opposed to the personal gain or interest of  par-
ticular individuals. Housing of refugees may certainly be  a
public purpose, and under certain circumstances even  secur-
ing a house for an individual may be in the interests of the
community,  but it cannot be to the general interest of  the
community  to requisition the property of  one  refugee  for
the benefit of another refugee.
    The only other question that remains to be considered is
whether  a  writ of certiorari lies against  the  Provincial
Government?
    On  this  point the contentions raised  by  the  learned
Attorney-General fall under two heads.  The  first
688
branch  of the argument is that the  expression  "Provincial
Government"  occurring in section a of the  Ordinance  means
the  same thing as the Governor of the Province. This  being
the  position  there  is complete immunity  enjoyed  by  the
Provincial  Government in respect of all judicial  processes
under  section  306  (1) of the Constitution  Act,  and  the
powers  of the High Court itself are restricted and  limited