dedol-hf/india-case-legal-rag huggingface dataset:
language  of  this regulation and section 3  of  the  Bombay
Ordinance  as construed above.  If the reasonings of  Chagla
C.J. and Tendolkar J. were correct, the words "so to do"  in
the  above regulation would refer only to the act of  taking
of possession, for, according to them, the interests of  the
public  safety etc. do not describe the nature or  character
of that act but constitute the purpose for which the  compe-
tent  authority was to do the act of taking possession.   On
that line of reasoning the regulation could be equally  said
to postulate
(1) [1943] 2 A,E.R.560.
711
the existence of the interests of the public safety etc.  as
conditions  precedent  to the exercise of the power  and  it
could be said that the fulfilment of those conditions prece-
dent  had  to  be determined quasi judicially so  as  to  be
subject to the scrutiny and interference of the Court.   All
this line of reasoning was rejected by Lord Greene M.R. with
the  concurrence of Goddard and du Parcq L. JJ. in the  fol-
lowing words:
    "The last point that was taken was to this effect,  that
the  circumstances  were such that,  if  the  requisitioning
authorities  had brought their minds to bear on the  matter,
they could not possibly have come to the conclusion to which
they  did come.  That argument is one which, in the  absence
of an allegation of bad faith --and I may say that there  is
no such allegation here --is not open to this Court.  It has
been  decided that, where a regulation of this kind  commits
to an executive authority the decision of what is  necessary
or  expedient and that authority makes the decision,  it  is
not  competent to the Courts to investigate the  grounds  or
the  reasonableness  of the decision in the  absence  of  an
allegation  of bad faith.  If it were not so, it would  mean
that  the Courts would be made responsible for  carrying  on
the executive Government of this country on these  important
matters.  Parliament,  which  authorises  this   regulation,
commits  to the executive the discretion to decide and  with
that  discretion if bona fide exercised no Court can  inter-
fere.   All that the Court can do is to see that  the  power
which  it is claimed to exercise is one which  falls  within
the four corners of the powers given by the Legislature  and
to see that those powers are exercised in good faith.  Apart
from  that, the Courts have no power at all to inquire  into
the  reasonableness,  the  policy, the sense  or  any  other
aspect of the transaction."
    Vedlapatla Suryanarayana v. Province of Madras (1) is  a
Full  Bench decision of the Madras High Court. It  discussed
section  6  of the Land Acquisition Act and  held  that  the
decision of the Provincial Government
(1) I.L.R,. [1946.] Mad. 153; A.I.R,. [1945] Mad. 394.
712
that the land was required for a public purpose was final.
Robinson v. Minister of Town and Country Planning (1) is
instructive.   The provisions of the Town and Country  Plan-
ning Act, 1944, were considered in that case.  The  relevant
portions of section 1 of that Act were as follows:
    "Where  the  Minister of Town and Country  Planning  (in
this  Act referred to as the Minister) is satisfied that  it
is requisite, for the purpose of dealing satisfactorily with
extensive war damage in the area of a local planning author-
ity, that a part or parts of their area, consisting of  land
shown to his satisfaction to have sustained war damage or of
such  land together with other land contiguous  or  adjacent
thereto,  should  be laid out afresh and  redeveloped  as  a
whole,  an order declaring all or any of the land in such  a
part of their area to be land subject to compulsory purchase
for  dealing with war damage may be made by the Minister  if
an  application in that behalf is made by the  authority  to
him  before the expiration of five years from such  date  as
the  Minister may by order appoint as being the  date  v:hen
the making of such applications has become practicable."
    It will be noticed that the power to make the order  was
subject to the satisfaction of the Minister not only that it
was requisite that lands should be laid out afresh but  that
it was requisite "for the purpose of dealing  satisfactorily
etc." which unquestionably was a question of fact and  could
be said to be subject to objective determination yet, it was
held by the appeal Court, overruling an earlier decision  of
Henn  Collins  J. in another case that  the  entire  matter,
namely,  the  necessity for laying out the lands  afresh  as
well  as the purpose of dealing was for the satisfaction  of
the Minister, that he was the sole judge, that no  objective
test was possible and that the decision of the Minister  was
an administrative act.
Franklin  v. Minister for Town and Country planning (2)  was
concerned with section 1 (1) of the New
(1)  [1947] 1 A.E,R. 851.   (2) [1947] 2 A.E.R. 289;  [1948]
A.C.87
713
Towns  Act.  1946,  the relevant portions of  which  ran  as
follows:
    "If the minister is satisfied, after consulting with any
local authorities who appear to him to be concerned, that it
is expedient in the national interest that any area of  land
should  be developed as a new town by a  Corporation  estab-
lished under this Act, he may make an order designating that
area as the site of the proposed new town."
    Here  what was left to the satisfaction of the  Minister
was not only whether it was expedient that any area,  should
be  developed as a new town but whether it was expedient  in
the national interest that any area should be so  developed.
If the present arguments were sound it could be held in that
case  that the section postulated the existence of  national
interest  to be determined judicially as an  objective  fact
and  that it was a condition precedent to the making of  the
order.  It was, however, held by the House of Lords that  no
judicial or quasi-judicial duty was imposed on the  Minister
in the discharge of his statutory duties, those duties being
purely administrative.
The  case of Hubli Electricity Co. Ltd. v.  Province  of
Bombay  (1)  may also be referred to. Relevant  portions  of
section  4, sub-section (1) of the Indian  Electricity  Act,
1910, provided:
    "The  Provincial Government may, if in its  opinion  the
public interests require, revoke a license in the  following
cases, namely:
    (a) Where the licensee, in the opinion of the Provincial
Government  makes wilful and unreasonably prolonged  default
in doing anything required of him by or under this Act."
    Could  anything be more objective than the  requirements
of public interest or the wilful and unreasonably  prolonged
default ? And yet in construing the section their  Lordships
of the Privy Council observed:
    "Their  Lordships are unable to see that there  is  any-
thing in the language of the sub-section or in the
(1) (1948) L.R. 76 I.A. 57;A.I.R. 1949 P. C. 136,
714
subject-matter  to  which it relates on which to  found  the
suggestion  that  the  opinion of the Government  is  to  be
subject to objective tests.  In terms the relevant matter is
the opinion of the Government--not the grounds on which  the
opinion  is  based.   The language leaves no  room  for  the
relevance of a judicial examination as to the sufficiency of
the  grounds  on which the Government acted  in  forming  an
opinion.  Further, the question on which the opinion of  the
Government  is  relevant is not whether a default  has  been
wilful and unreasonably prolonged but whether there has been
a wilful and unreasonably prolonged default.  On that  point
the opinion is the determining matter, and--if it is not for
good   cause   displaced  as  a   relevant   opinion-it   is
conclusive."
    The recent case of A.C. Mohamed v. Sailendra Nath  Mitra
(1) may also be referred to.  It was concerned with an order
of  requisition of certain premises except the ground  floor
made under section a (1) of the West Bengal Requisition  and
Control  (Temporary  Provisions) Act, 1947,  which  runs  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, Provided that no premises  exclu-
sively  used for the purpose of religious worship  shall  be
requisitioned under this section."
    I  find no difference between the language of this  sec-
tion  and that of section 3 of the Bombay Ordinance as  con-
strued  by me.  It is quite clear that what was left to  the
opinion of the Provincial Government was not the need of the
premises  simpliciter  but the need of any  premises  for  a
public purpose as a composite matter.  If the present  argu-
ments  were sound, it could be held that the section  postu-
lated  the existence of a public purpose and that  what  was
left  to  the opinion of the Provincial Government  was  the
need  of  the  premises for that public  purpose.   It  was,
however, held by a Division Bench of the Calcutta High Court
(1) (1950] 54 c.w.N. 642.
715
--and I think quite rightly--that it sufficed for the  exer-
cise of the power that the local Government was satisfied as
to the existence of the condition precedent to the  exercise
of its powers.
    To  summarise: It is abundantly clear from the  authori-
ties  cited above that questions of fact such as the  exist-
ence  of  a  public purpose or the interest  of  the  public
safety or the defence of the realm or the efficient prosecu-
tion  of the war, or the maintenance of  essential  supplies
and the like may well be and, indeed, are often left to  the
subjective opinion or satisfaction of the executive authori-
ty.   Merely  because such a matter involves a  question  of
fact  it  does not follow at all that it  must  always,  and
irrespective  of the language of   the   particular   enact-
ment,    be   determined judicially as  an  objective  fact.
When the Legislature leaves it to an executive authority  to
form an opinion on or to be satisfied about such a matter as
a  condition for the exercise of any power conferred on  it,
and  to act upon such opinion, what is  condition  precedent
is, not the actual existence of the matter but, the  subjec-
tive opinion or satisfaction of the executive authority that
it  exists.  The cases referred to above  clearly  establish
this much that when the Legislature leaves it to the opinion
or satisfaction of the executive authority as to whether  it
is  necessary  or expedient to requisition any  land  for  a
public  purpose the executive authority is  constituted  the
sole  judge of the composite matter, that is to say  of  the
existence of the public purpose as well as the necessity  or
expediency  for  requisitioning  the land  for  that  public
purpose, call it a condition precedent or an objective  fact
or what you will.  On a proper construction of section 3  of
the  Bombay Ordinance (No. V of 1947) there can be no  doubt
that  that section left it to the Provincial  Government  to
form  its own opinion on the entire matter, namely,  whether
it was necessary or expedient to requisition any land for  a
public purpose and to act upon that opinion.  So  construed,
the  formation  of opinion on the whole matter and  the  act
founded  thereon  was nothing but a  purely  administrative,
(i.e., executive)
716
act.   If  the acts were done in good faith and  within  the
four  corners of the Ordinance, the Court  cannot  interfere
with  it in any proceeding and far less by  the  prerogative
writs  of certiorari or prohibition.  If there be any  hard-
ship  the appeal of the subject must be to  the  Legislature
and  not to the Court.  The first and the major head of  the
arguments advanced on behalf of the respondents must, there-
fore, fail.
    It  will be convenient to dispose of at once two  ancil-
lary  points.  In the petition a bald suggestion  was  made,
verified  only as true to information and belief and  unsup-
ported by any legal evidence, that the Provincial Government
had  made the order mala fide and for a collateral  purpose.
The petitioner gave evidence in Court.  There is nothing  in
the evidence which may support any plea of bad faith on  the
part of the Provincial Government or its officers.  All that
was said was that Mrs. C. Dayaram to whom the  requisitioned
premises had been allotted was the wife of an advocate  from
Karachi,  and was a refugee and that the petitioner did  not
know whether her husband had also migrated from Karachi.  At
an adjourned hearing  the  question  was put  as to  whether
Mrs.  Daygram was concerned in any manner whatever with  the
administration  of  Government  of Bombay or  was  a  public
servant.  The purpose of the question was perhaps to  estab-
lish that she was in a position to influence the  Government
officers.   The petitioner in fairness replied that  he  was
not  aware  if she were.  In the evidence there  is  nothing
from  which  it can be taken as proved that  the  Provincial
Government and its officers had acted in bad faith.  Second-
ly, it was suggested that the Provincial Government had  not
acted  within the four corners of the Ordinance in that,  on
its  own  showing, there was no public purpose  at  all  for
which  the order was made.  Bhagwati J. expressed  the  view
that the requisitioning of a flat for a particular or  indi-
vidual  refugee was not a public purpose, for there  was  no
question of serving the general interests of the  community.
On appeal Chagla C.J. disagreed with the above view.  In his
opinion the housing of a
717
refugee might certainly be a public purpose, for securing  a
house for an individual refugee might itself confer a  bene-
fit  on  the  community as a whole.   In  this  opinion  the
learned Chief Justice was manifestly right. But the  learned
Chief  Justice went on to say that choosing one  refugee  as
against  another  without  any ostensible  cause  would  not
constitute  a public purpose for which the flat in  question
could be requisitioned. This conclusion, with great  respect
to  the  learned Chief Justice, appears to be founded  on  a
slight  confusion  of ideas.  It has to be  remembered  that
this  was  not a solitary order of requisition made  by  the
Government for the public purpose of housing refugees.   The
petitioner's  Solicitors'  letter dated February  27,  1948,
clearly stated that  there were  "similar orders" issued  by
the  Government.  The impugned  order itself shows  ex facie
that  the  order  was made generally  for   "public  purpose
housing."   It was not in terms made for the benefit of  any
particular individual refugee.   The  allotment of the  flat
to Mrs. C. Daygram was the next step and as such the  allot-
ment  of  the  flat already requisitioned  to  a  particular
refugee  cannot  possibly  vitiate the  preceding  order  of
requisition.    To  say that seeing that the  allotment  was
made to her, the order of requisition must have been made in
her  interest is to act on suspicion which is not  permissi-
ble.  The flat had to be allotted to a refugee for  purposes
of his or her housing.  The fact that the petitioner himself
was  a refugee has been stressed before us and it  has  been
said that it was a novel way of solving the refugee  problem
by  ousting one refugee and putting in another. There is  no
evidence as to the relative circumstances of the  petitioner
and  Mrs. C. Daygram.  For all we know she may have  been  a
more  deserving  person whose needs were  more  urgent  than
those of the petitioner.  The point is that it lies  heavily
on  the  person who challenges the bona fides  of  a  public
authority  or  who  contends that the  authority  had  acted
outside  its  powers to establish his case on  cogent  legal
evidence.  He cannot succeed by leaving the matter in
718
the  air and to the ingenuity of his counsel in creating  an
atmosphere of mere suspicion, which falls far short of legal
proof.
    I  now pass on to the second head of argument  which  is
based  on  the  assumption that the existence  of  a  public
purpose  had not been left to the subjective opinion of  the
Provincial Government but was an objective fact which was  a
condition precedent to the exercise of the power of requisi-
tion.  What consequences follow from this assumption ?   The
contention of the respondents is that the fulfilment of this
condition  as an objective fact had to be determined by  the
Provincial Government judicially and that being thus charged
with  a  quasi-judicial function the  Provincial  Government
became  amenable to the high prerogative writ of  certiorari
in case it acted without jurisdiction or in excess of it  or
in  violation  of the principles  of.natural  justice.   The
question,  therefore,  arises as to what are the  tests  for
ascertaining  whether  the  act of a  statutory  body  is  a
quasi-judicial act or an administrative act.
    As to what is a quasi-judicial act there have been  many
judicial pronouncements.  May C.J. in Queen v. Dublin Corpo-
ration (1) described a quasi-judicial act 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 purpose of this
question,  a judicial act seems to be an act done by  compe-
tent authority upon consideration of facts and circumstances
and  imposing  liability or affecting the  rights.   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."
    Lord Atkinson in Frome United Breweries v. Bath Justices
(2)  approved of this definition as one of the best  defini-
tions.  The definition that now holds the
(1) (1878) 2 Ir.R. 371.           (2) [1926] A.C. 586,
719
field is that of Atkin L.J. as he then was, in Rex v.  Elec-
tricity Commissioners (1).  It runs as follows:
    "Whenever  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  juris-
diction   of  the King's Bench Division exercised  in  these
writs."
    This definition was accepted as correct in Rex v. London
County Council (2) and by many learned Judges in  subsequent
cases including the latest decision of the Privy Council  in
Nakkuda  Ali  v.M.F. De S. Jayaratne (3).   In  Banwarilal's
case (4) I had occasion to analyse tile essential character-
istics of a quasi-judicial act as opposed to an  administra-
tive  act.   I stand by what I said on this  point  on  that
occasion. As I pointed out there, the two kinds of acts have
many  common  features.  Thus a person entrusted  to  do  an
administrative act has often to determine questions of  fact
to  enable  him to exercise his power.  He has  to  consider
facts  and circumstances and to weigh pros and cons  in  his
mind before he makes up his mind to exercise his power  just
as  a person  exercising a judicial or quasi-judicial  func-
tion has to do. Both have to act in good faith.  A good  and
valid administrative or executive act binds the subject  and
affects  his  rights  or imposes liability on  him  just  as
effectively as a  quasi-judicial act does.  The  exercise of
an  administrative or executive act may well be and is  fre-
quently  made dependent by the Legislature upon a  condition
or contingency which may involve a question of fact, but the
question  of fulfilment of which may, nevertheless, be  left
to  the subjective opinion or satisfaction of the  executive
authority,  as was done in the several  Ordinances,  regula-
tions and enactments considered and construed in the several
cases referred to above.  The first two items of the defini-
tion given by Atkin L.J. may be equally  applicable to an
 (1) [1924] 1 K.B. 171.    (4) (1943) 48 CW.N. 766 at
(2) [1931] 2K.B. 215.             pp. 799-801.
(3)(1950) 54 c.w.N. 883.
720
administrative  act.  The real test  which  distinguishes  a
quasi-judicial act from an administrative act is the   third
item  in  Atkin L.J.'s definition, namely, the duty  to  act
judicially. As was said by Lord Hewart C. J. in R. v. Legis-
lative Committee of the Church Assembly(1):
    "In  order that a body may satisfy the required test  it
is not enough that it should have legal authority to  deter-
mine questions affecting the rights of subjects; there  must
be superadded to that characteristic the further  character-
istic that the body has the duty to act judicially."
    The  above  passage  was quoted with  approval  by  Lord
Radcliffe  in delivering the judgment of the  Privy  Council
in  Nakkuda  Ali's  case (2).   Therefore,   in  considering
whether a particular statutory authority is a quasi-judicial
body or a mere administrative body it has to be  ascertained
whether  the statutory authority has the duty to  act  judi-
cially. When and under what circumstances then can a  statu-
tory body be said to be under a duty to act judicially ?
    An  examination of the decided cases shows that in  many
of  them where the statutory bodies were held to  be  quasi-
judicial  bodies  and  their  decisions   were  regarded  as
quasi-judicial  acts there were some parties making a  claim
under  the statute and some parties opposing such claim  and
the statutory authority was empowered to adjudicate upon the
matters in issue between the parties and to grant or  refuse
the  claim. Thus in The Queen v. The Local Government  Board
(3)  the contesting parties were the County Council of  Wex-
ford  on one side and Webster & Leary on the other side  and
the  Local Government Board was the statutory  authority  to
decide  whether the latter were entitled to  higher  salary.
In  Rex v. Woodhouse (4) the contest was between the  appli-
cants.  for renewal of licence and certain brewers  and  the
Justices of Leeds were to decide whether the licence  should
or should not be renewed. Reference may also be made to  the
cases  of Rex v. Post
(1) [1928] 1 K.B. 411 at p. 415. (3) (1902) L. R. 2 Ir. 349.
(2) (1950) 54 C.W.N. 883.      (4) [1906] 2 K,B. 501.
721
master General (1), Rex v. London County Council (2) and Rex
v. Hendon District Council(3). Even in Rex v. Boycott (4) it
may  be said that the Statute there contemplated  a  contest
between  the  Local Education Society and the  boy  who  was
alleged  to  be imbecile and whose father  was  entitled  to
notice under the regulations before a certificate was issued
against the boy.  It is not necessary to multiply instances.
The point to note is that in each of these cases there was a
lis--a  proposition  and an  opposition--and  the  statutory
authority was authorised to decide the question and in  each
of these cases the decision was regarded as a quasi-judicial
decision.   Indeed in some of the cases the necessity  of  a
lis between two or more parties has been referred to or even
insisted  upon.  Thus on Errington & others v.  Minister  of
Health Maugham L.J., as he then was said:
    "In determining whether the position of the Minister  is
that which I have described as being quasi-judicial, I think
it  is necessary to appreciate that under a  clearance  area
scheme,  to which objections are made by the owners  of  the
property in the area, there is a true contest as between the
owners  of  the property and the local authority;  in  other
words, there are two sides as between whom the Minister  has
to come to a determination after consideration".
    The following  passage  from the  judgment of Greet L.J.
in  that  case quoted with approval by Swift J. in  Frost  &
others  v. Minister of Health (6) takes the matter a  little
further in that line:
"In  so  far as the Minister deals with  the  matter  of
confirmation of a closing order in the absence of  objection
by  the owners, it is clear to me, and I think to my  breth-
ren, that he would be acting in a ministerial or administra-
tive capacity, and would be entitled to make such  enquiries
as  he  thinks necessary to enable him to make up  his  mind
whether  it was in the public interest that order should  be
made. But the position, in
 (1) [1928] 1 K.B. 291.    (4) [1939] 2 KB. 651.