dedol-hf/india-case-legal-rag huggingface dataset:
legal  position, a person whose right is said to  have  been
affected can always go to a proper court and 'claim a decla-
ration  that in law his right cannot be affected. I  am  not
prepared to subscribe to the view that the determination  of
a public purpose and the opinion formed as to the  necessity
or expediency of requisition
644
form  one  psychological process and not  two  distinct  and
independent  steps ;and therefore the rule which applies  to
one applies to the other.  The correct position in my  opin-
ion  is that the determination of the public purpose is  the
first step so that if the Provincial Government decided that
there is no public purpose the second step need not  follow.
Besides, whereas the subjective opinion of the Government as
to necessity or expediency is not capable of being accurate-
ly  tested  objectively, the existence of a  public  purpose
can  be so tested, because there are well-known  definitions
of public purpose and those definitions can form the  common
basis for the ascertainment of a public purpose by different
individuals.   I  think that the following  dictum  of  Lord
Halsbury  in  Mayor etc. of Westminster v.  London  &  North
Western Ry. Co.(1), sums up the legal position correctly:
  "Where the legislature has confided the power to a partic-
ular  body  with a discretion how it is to be  used,  it  is
beyond the power of any Court to contest that discretion. Of
course, this assumes that the thing done is the thing  which
the Legislature has authorised."
   A  number of cases were cited before us by the  appellant
to  show  that  in construing certain  provisions  in  other
enactments which are drafted in similar language, the courts
have  held that the existence or otherwise of a public  pur-
pose is as completely left to the satisfaction of the execu-
tive authority as the question as to whether it is necessary
or expedient to acquire land. The leading case in support of
this proposition is Wijeyesekara v. Festing (2).  The  deci-
sion  of that case turned on the construction of sections  4
and  6 of Ceylon Ordinance No. 3 of 1876, which run as  fol-
lows:
  "4.  Whenever it shall appear to the Governor that  land
in  any locality is likely to be needed for any public  pur-
pose,  it  shall be lawful for the Governor  to  direct  the
Surveyor-General  or  other officer generally  or  specially
authorized  by the Governor in this behalf, to examine  such
land and report whether the same is fitted for such purpose.
 (1) [1905]- A.C. 426.             (2) [1919] A.C. 646.
645
    6.   The Surveyor-General  or other  officer as  author-
ized  as aforesaid shall then make his report to the  Gover-
nor,  whether the possession of the land is needed  for  the
purposes for which it appeared likely to be needed as afore-
said.   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."
    It  appears that the procedure prescribed by  the  Ordi-
nance  in the above sections was followed and an  order  was
made  by  the Governor of Ceylon  directing  the  Government
Agent  to make an order for the acquisition of certain  land
for   a  public purpose, namely, the making of a road.   The
appellant  to  the Privy Council, who was the  person  whose
land  had been  acquired, contended that the land  was   not
required  for any public purpose and that the  direction  of
the  Governor was invalid.-The Privy Council  repelled  this
contention and held that it was not open to the appellant to
contend  that the land was not needed for  a   public   pur-
pose.  Lord Finley  who delivered the judgment of the  Board
quoted  with  approval  a previous decision  of  the  Ceylon
Court,  Government Agent v. Perera (1), in which  the  first
two paragraphs of the headnote run as follows:
    "In  the  acquisition  of a private land  for  a  public
purpose, the Governor is not bound to take the report of the
Surveyor-General as to the fitness for such a purpose.   His
decision on the question whether a land is needed or not for
a  public  purpose is final, and the District Court  has  no
power   to   entertain  objections   to   His   Excellency's
decisions."
    In  my  opinion, this case does not go so far as  it  is
supposed to have gone and it is apt to be misunderstood  and
misapplied.  The land was acquired there for the purpose  of
making  a road, and it could not have been argued  that  the
making of a road was not a public purpose.  The emphasis was
on whether the land was
(1) 7 Cey. N.L.R. 313.
646
actually  needed or wanted for a public purpose and  not  on
the  character of the purpose and their Lordships held  that
the  question whether the land was or was not needed  for  a
public  purpose  had been left to the  satisfaction  of  the
executive  authority.  It seems to me that if the  land  had
been acquired not for the purpose      of making a road  but
for  a purpose which was evidently not a public  purpose  at
all,  the  courts could not have held  that  the  Governor's
action  in acquiring the land for a non-public purpose   was
not open to challenge.
I  do not wish to refer to cases decided under the  Land
Acquisition Acts, such as Ezra v. Secretary of State (1) and
others because, apart from other things, as was pointed  out
by  the  Privy  Council in the course of  the  arguments  in
Wijeyesekara v. Festing (2) the Indian Land Acquisition Acts
expressly  provide  that the order of the  local  Government
directing the acquisition of land is conclusive.
     A third class of cases are those arising under  certain
war  and emergency laws, of which Carltona Ltd.  v.  Commis-
sioners of Works and Others (3) may be taken to be a  speci-
men.   That case was decided under regulation 51 (1) of  the
Defence (General) Regulations which ran as follows:
     "A competent authority, if it appears to that authority
to  be necessary or expedient so to do in the  interests  of
the public safety, the defence of the realm or the efficient
prosecution  of  the war, or for  maintaining  supplies  and
services  essential to the life of the community,  may  take
possession  of  any land, and may give  such  directions  as
appear to the competent authority to be necessary or expedi-
ent  in  connection with the taking of  possession  of  that
land."
In that case' and other similar cases, it was held that
the Parliament had completely entrusted to the executive the
discretion of deciding when it would be necessary or expedi-
ent to requisition land in the
(1)I,L.R. 30 Cal. 36.        (3) [1943] 2 All E.R. 560.
(2) [1919] A.C. 646.
647
interests of public safety, the defence of the realm,  etc.,
and therefore with that discretion if bona fide exercised no
court could interfere.  It is clear that the relevant provi-
sions  under  which those cases have been decided  refer  to
matters  such as interest of public safety, defence  of  the
realm, efficient prosecution of the war, etc., of which  the
executive  authorities alone could be the best  judges.   So
far  as these matters are concerned, it is difficult to  lay
down  an objective test for determining when the  conditions
upon  which the executive authorities are to act  should  be
deemed  to be fulfilled. Thus there is no  true-analogy  be-
tween  this  case and the case before us. An analogy  to  be
complete  must rest not only on similarity of  language  but
also  on  similarity of objects. In certain  complicated  or
border-line  cases,  the  courts may find  it  difficult  to
decide  whether a certain matter has been committed  to  the
judgment  of the executive authority and made  entirely  de-
pendent  on  its satisfaction or whether it is  a  condition
precedent to the exercise of its jurisdiction or power.  The
line of demarcation between these two matters may appear  to
be  a  thin  one but it has to be drawn for  arriving  at  a
correct conclusion.
    As  I  have  already stated, a petition for  a  writ  of
certiorari can succeed only if two conditions are fulfilled:
firstly,  the order to be quashed is passed by  an  inferior
court  or  a person or authority exercising  a  judicial  or
quasi-judicial function, and secondly, such court or  quasi-
judicial  body has acted in excess of its  legal  authority.
The second element would seem to be present in this case  on
the  concurrent findings of the three Judges of  the  Bombay
High Court which are clear and well-reasoned.  But that does
not seem to be enough for the purpose of granting a writ  of
certiorari  to the respondent, since the  requisitioning  of
the  premises under section a of the Ordinance was a  purely
administrative  act and did not involve any duty  to  decide
the existence of a public purpose or any other matter  judi-
cially or quasi-judicially.  The remedy of the respondent is
clearly by action and not by asking Iota writ of certiorari.
In the circumstances, the
648
further points raised in the case do not call for  decision,
and  I agree that this appeal should be allowed.   It  would
however be for the Provincial Government to consider whether
in  view  of  the findings of the Bombay High  Court  it  is
desirable to pursue the matter any further.
    PATANJALI SASTRI J.--I  agree  that the appeal should be
allowed for the reasons indicated in the judgment of my Lord
and have nothing useful to add.
           MEHR CHAND MAHAJAN J.--I agree with the  judgment
which  my brother Mukherjea proposes to deliver and wish  to
add  some observations of my own out of respect for my  Lord
the Chief Justice from whose judgment we feel constrained to
differ.
The  principal  questions  raised by this  appeal  are:  (1)
   Whether  the  order of  requisition dated  26th  February
1948  made  under section 3 of the Bombay  Land  Requisition
Ordinance  (Ordinance  No. V of 1947)  is  a  quasi-judicial
order ?
 (2)  Whether a writ of certiorari lies against the  Gov-
ernment of Bombay ?
    (3)  Whether the High Court has jurisdiction to issue  a
writ of certiorari against the Provincial Government ?
    (4)  Whether  the requisition of the said flat  and  its
allotment to Mrs. C. Dayaram, a refugee from Sindh, was  for
a public purpose ?
    The  case of the appellant is that the said  requisition
order  is an administrative order, hence no writ of  certio-
rari can issue, that no writ of certiorari lies against  the
Provincial Government, that the High Court has no  jurisdic-
tion  to issue a writ of certiorari against  the  Provincial
Government which in law means and includes the Governor  and
that  the requisition and the allotment of the said flat  to
Mrs. C. Dayaram was for a public purpose.
    It is well settled that a writ of certiorari lies if the
order complained of is either a judicial or a quasi-judicial
order but iris not competent if the order is
649
an administrative or an executive order.  The  circumstances
under which a writ of certiorari can be issued are succinct-
ly stated by Atkin L.J. in Rex v. Electricity  Commissioners
(1) in these terms:
    "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."
    It  was  said in Rex v. London County Council  (2)  that
four conditions have to be fulfilled before a writ of certi-
orari  can issue, (1) there must  be a body of persons,  (2)
it must have legal authority to determine questions  affect-
ing the rights of subjects, (3) it has the duty laid upon it
to  act judicially, and (4) it acts in excess of  its  legal
authority.
    The  learned  trial Judge as well as the Judges  of  the
court  of  appeal have not in any way  departed  from  these
conditions.   On the other hand, they have stood  firmly  by
them.   Mr. Justice Bhagwati, the learned trial  judge,  ob-
served  that it is only when these conditions are  fulfilled
that  the  body  of persons is subject  to  the  controlling
jurisdiction of the King's Bench Division exercised in these
writs.   In  the court of appeal the learned  Chief  Justice
said that the very basis and foundation of the writ is  that
the act complained of must be a judicial or a quasi-judicial
act.  The  fundamental  rules governing the  writ  were  not
disputed before us during the course of the arguments.   The
real  controversy  centered  round the definition of a judi-
cial  and  a  quasi-judicial act as  distinguished  from  an
administrative  or  a  purely ministerial act.  The question
is  where to draw a line which demarcates the  executive  or
purely  administrative act from a quasi-jUdicial or a  judi-
cial  act.  The  learned Chief Justice in  the  court  below
summed  up  the result of the authorities on  the  point  in
these terms:
    "In the first place, a duty must be cast by the legisla-
ture upon the person or persons who is or are
(1) [1924] 1 K,B. 171 at 205.          (2) [1931] 2 K.B. 215
at 243.
650
empowered to act to determine or decide some fact or  facts.
There must also  be some lis or dispute resulting from there
being  two  sides to the question he has to  decide.   There
must be a proposal and an opposition.  It must be  necessary
that he should have to weigh the pros and cons before he can
come to a  conclusion.  He would also have to consider facts
and circumstances bearing upon the subject.  In other words,
the  duty  cast must not only be to determine and  decide  a
question,  but  there must also be a duty  to  determine  or
decide that fact judicially."
    The  statement of the law seems unexceptionable.  It  is
based on high authority. The classic definition of the  term
"judicial" was given by May C.J. in The Queen v. The  Corpo-
ration of Dublin (1), and this definition is in these terms:
    "It is established that the writ of certiorari does  not
lie  to remove an order merely ministerial, such as  a  war-
rant, 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 consideration of facts and
circumstances;  and  imposing  liability  or  affecting  the
rights of others."
    These  observations  of  May C.J. were  quoted  by  Lord
Atkinson  in Frome United Breweries v. Bath Justices (2)  as
"one  of the best definitions of a judicial act  as  distin-
guished from an administrative act." They seem to have  been
approved by Lord Greene M.R. in Rex v. Archbishop of Canter-
bury C). In Rex v. Woodhouse(4) Lord Fletcher Moulton L.  J.
observed as follows:
    "The  term   'judicial act' is  used  in  contrast  with
purely  ministerial  acts.  To these latter the  process  of
certiorari does not apply, as for instance to the issue  'of
a  warrant  to enforce a rate, even though the rate  is  one
which  could itself be questioned by certiorari.  In  short,
there must be the exercise of some right or duty in
  (1) (1878) 2 L.R. Ir. 371.         (3) [1944] 1 K.B. 282.
  (2) [1926] A.C. 586.               (4) [1906] 2 K.B. 501.
651
order  to provide scope for a writ of certiorari  at  common
law."
    In Jugilal Kamlapat v. The Collector of Bombay(1)  Bhag-
wati  J. after  a consideration of a number of  English  au-
thorities  reached the conclusion that the phrase  "judicial
act" must be taken in a very wide sense including many  acts
that  would  not ordinarily be termed judicial.   The  cases
cited at the Bar fully bear out this conclusion.   Reference
may be made to The King v. Postmaster General (2), where  it
was  held that the giving of a certificate by a medical  man
was  of the nature of a judicial act, and that the  certifi-
cate  was a proper object of proceedings by way  of  certio-
rari.  By the effect of section 1 sub-section (1) (i) of the
Workmen's Compensation Act, 1925, and an order extending its
provisions  to include telegraphists' cramp, a  post  office
workman obtaining the certificate of the certifying  surgeon
that  he was suffering from that complaint and  was  thereby
disabled, was entitled to compensation. By section 44,  sub-
section (3), a medical practitioner appointed by the  Secre-
tary of State was given the powers and duties of a  certify-
ing  surgeon.   An order made by the Secretary of  State  in
pursuance  of that sub-section provided that so far  as  re-
gards post office employees the post office medical  officer
under whose charge the workman was placed shall, if  author-
ized  to act, be substituted for the certifying  surgeon  in
cases  of telegraphists' cramp.  It was the practice of  the
post  office to refer all cases of telegraphists'  cramp  to
the Chief Medical Officer of the post office and this refer-
ence  was relied on as constituting him the  substitute  for
the  certifying  surgeon  under the  above  sub-section  and
order.  The applicant in that case claimed compensation  for
telegraphists' cramp and the case  was referred to the Chief
Medical  Officer in accordance with the usual practice.   He
certified  that  she was not suffering  from  telegraphists'
cramp. It was the giving of this certificate that was treat-
ed  in  the nature of a judicial act. Lord Hewart  C.J.  ob-
served as follows:
(1) (1945) 47 Bom. L.R. 1070.                 (51) [1928]  1
K.B, 291.
652
    "There was a moment in this case when it was argued that
the document was of such a kind as not to be proper for  the
writ of certiorari.  But I am satisfied, when     I look  at
the part which a certificate of this nature must play in the
making of any claim for compensation by a post office worker
suffering from telegraphists' cramp, that the certificate of
the  certifying surgeon is of the nature of a judicial  act,
and  is a fit subject for certiorari."    In Rex v.  Boycott
(1) certification as to mental deficiency of a boy was  held
to be a quasi-judicial act within the mischief of the remedy
of  certiorari. By section 31 of the Mental Deficiency  Act,
1913,  it is provided that in case of doubt whether a  child
is  or is not capable of receiving benefit from  instruction
in  a special school or class, or whether his  retention  in
such  school or class would be detrimental to the  interests
of  the other children, the matter  shall be determined   by
the  Board  of Education.  A certificate that  the  boy  was
incapable  by reason of mental defect, of receiving  further
benefit  from instruction in a special school or  class  and
was  an  imbecile was issued by the  medical  officer.   The
father of the boy moved for an order of certiorari to remove
and quash the certificate.  Lord Hewart C.J. in issuing  the
writ made the following observations:
"In my opinion, on the facts of. this case, this certifi-
cate of October 5, 1938, created in the way in which we know
that  it was created, purported to be and to' look like  the
decision of a quasi-judicial authority."
  Reliance was placed on the observations of Atkin L.J. in
Rex v. Electricity Commissioners(2)
    In The King v. The London County Council (3), a writ  of
certiorari  was issued to the London County Council who  had
exercised  the power to grant a licence under the  Cinemato-
graph Act, 1909, and had given permission to open the  prem-
ises on a Sunday under the Sunday Observance Act, 1780.   By
section  2, sub-section (1) of the Cinematograph Act,  1909,
it was provided that
(1)  [1939]  2 K.B. 651.(2) [1924] 1  K.B.  171.         (3)
[1931] 2 K.B. 615.
653
a county council may grant licences to persons to use  prem-
ises for the exhibition of pictures or other optical effects
by  means  of a cinematograph on such conditions  and  under
such restrictions as the council may determine.  The council
had  also power to modify or waive any of the conditions  or
restrictions  attached  by    the council  to  the  licence.
Section 1 of the Sunday Observance Act, 1780, provided  that
any house, room or other place which shall be opened or used
for  public entertainment or amusement upon any part of  the
Lord's  Day  called Sunday, and to which  persons  shall  be
admitted  by the payment of money, shall be deemed a  disor-
derly  house.  A company applied for a licence to  open  and
use  premises for cinematograph entertainments and also  for
permission  to open the premises for such purposes  on  Sun-
days, Christmas Day and Good Friday. In compliance with this
application  the  county council made an  order  accordingly
provided  a sum of      pound 35 was paid to charity in  re-
spect of each Sunday, Christmas Day or Good Friday.   Scrut-
ton  L.J.  in issuing the writ made the  following  observa-
tions:
     "It is quite clear that every proceeding of  magistrates
or  confirming authorities in granting new or  renewing  old
licences is in the nature of a Court, excess of jurisdiction
in  which can be dealt with by the writ of  certiorari;  and
the procedures in granting licences under the  Cinematograph
Act,  and proceedings consequential thereon appear to me  to
stand  exactly  on the same footing as  the  proceedings  of
magistrates or confirming authorities dealing with  licences
for public houses.  When the question is, on what terms  and
conditions shall a licence be granted, and when the  commit-
tee proceeds to require that notice of the proposal shall be
given,  and to hear the applicant and his opponents, and  to
take evidence, the proceeding seems to me to be exactly that
of  a tribunal which the King's Bench Division, by the  writ
of certoirari, restrains within its jurisdiction."
    Slesser  L.J. in the same case discussed this matter  at
some  length and in the concluding portion of  the  judgment
made the following observations:
654
    "The legal authority is clearly given by the section  to
grant  the licences, and I have pointed out how  it  affects
the rights of the subject. But the third question is the one
which  was most strenuously debated in the  argument  before
us:   Are the Council under a duty to act judicially? It  is
said that what has here been done is not a judicial act,  or
not an act of an administrative body having judicial  duties
to   perform, but is in substance an administrative act  for
the review of which the writ of certiorari is not  appropri-
ate.   I am unable to distinguish in principle  between  the
application for a licence under the Cinematograph Act, 1909,
and  an  application  made with regard to a  licence  for  a
public  house,  which for many years, as to  the  Confirming
Authority, and later, as to the whole proceedings, has  been
held  to  be a judicial act. It was suggested, so far  as  I
understood the argument which attempts to differentiate this
application from an application for a public house  licence,
that  there is not provided in terms in s. 2  any  provision
for  opposition; and that is perfectly  true.  There  is  an
obligation  to notify the police, but there is not in  terms
there any provision for dealing with opposition, though  the
County  Council  have  made an elaborate  code  under  which
opposition  may  be heard. I have  examined  other  statutes
which similarly contain powers to grant licences, but do not
in terms mention opposition,.and I find that in one, at  any
rate,  the action of the magistrates was treated as a  judi-
cial  act, although the statute contained no express  provi-
sion for opposition.  Reg. v. Justices of Walsall (1) is  an
authority  that where, on the face of it, it appears that  a
licence  is  to  be granted to certain persons  and  not  to
others, conferring upon them certain rights and obligations,
the mere fact that the statute does not in terms provide for
opposition to be heard, does not any the less make the  duty