dedol-hf/india-case-legal-rag huggingface dataset:
(2)  [1931] 2 K.B. 215.     (5) [1939] 2 K.B. 249, 271.
(3) [1933] 2 K.B. 696.    (6) [1935] 1 K.B. 286, pp.292-3
722
my  judgment,  is different where objections  are  taken  by
those interested in the properties which will be affected by
the order if confirmed and carried out.  It seems to me that
in deciding whether a closing order be made in spite of  the
objections which have been raised by the owners, it seems to
me reasonable that the Minister should be regarded as  exer-
cising quasijudicial functions".
Swift J. in accepting the above statement added:
    "I accept that from the moment an objection is made  the
Minister  is  exercising quasi-judicial  functions,  but  it
seems to me to be clearly recognised by the Court of  Appeal
that  up  to the time of objection being made  the  Minister
acts in an administrative, and not a judicial, capacity."
    Under the Housing Act, 1930, the local authority submits
a clearing order to the Minister.  If no objection is raised
by  the  owners of the property the Minister  considers  the
matter  and  either confirms or modifies the  order  of  the
local authority.  In the absence of objection the  Minister,
according to those two decisions,  acts in an administrative
capacity. Why ? Because there is no lis in the sense of  two
opposing  parties.   There is only a proposal by  the  local
authority.   But  if objection is raised by the  owner,  the
Minister, according to these cases, in deciding the  matter,
acts  judicially. Why ? Because there is a lis  between  two
contending  parties,  namely, the local  authority  and  the
owner  which has to be decided by the Minister.  It is  true
that  in Franklin v. Minister of Town and  Country  Planning
(1)  the  House  of Lords held that under  the  Statute  the
Minister  at no stage acted judicially, and, therefore,  the
actual  decisions  in these two cases cannot  be  sustained.
But, nevertheless, I have quoted the above passages only  to
illustrate the reasons and the principle on which the act of
a  statutory body empowered to decide disputes  between  two
contesting  parties  was  held  to  be  quasijudicial.   The
Report of the  Ministers'  Powers Committee  in defining the
words 'judicial'  and
(1) [1947] 2 A.E.R. 289; [1948] A.C. 87:(1947) 176 L.T. 312,
816.
723
quasi-judicial' which definition was accepted by Scott  L.J.
as correct in Cooper v. Wilson (1) stated:
    "A  true  judicial  decision  pre-supposes  an  existing
dispute  between two or more parties and then involves  four
requisites  ......  A  quasi-judicial decision equally  pre-
supposes an existing dispute between two or more parties and
involves  ......  "
    This  definition  of a quasi-judicial  decision  clearly
suggests  that there must be two or more contesting  parties
and  an  outside authority to decide  those  disputes.   The
following  observations  of my Lord the Chief  Justice  then
sitting  as a Single Judge in the Bombay High Court, in  Kai
Khushroo  Sorabjee  v. The Cormmissioner of  Police  (2)  in
which  an  order made under the Defence of India  Rules  was
under consideration, are relevant on this point:
"It  appears  to me that unless the  authority  invested
with the power to pass an order had to act judicially, i.e.,
to weigh a question from two sides and decide on the matter,
no question of quasi-judicial act can arise.  The two  sides
cannot include himself as he is the deciding authority."
    In   Franklin v.  Minister of Town and Country  Planning
(3), while it was before the Appeal Court, Lord Oaksey  L.J.
said:
    "In  all the authorities which have been referred to  as
showing  that at an enquiry there must be an examination  of
the  case  of both sides, there was what has been  called  a
lis:  that is to say, there were two parties contesting  and
the   Minister  as an outside authority,  was  deciding  the
case."
    In  the very recent case of Patri Shaw v.R.N.  Roy(4)  a
Division  Bench  of the Calcutta High Court  dissented  from
this very Bombay case (5) which is now before us and  empha-
sised the necessity of a lis between two parties for  making
the decision of the authority a quasi-judicial act.
(1)  [1937] 2K,B.309, 340.
(2)(1947) Bom. L.R. 717; A.I.R. 1947 Born, 153.
(3) (1947) 176 L,T..312, 316.
(4) (1950) 54 C.W N. 855.    (5) (1949) 51 Bom. L.R, 342.
724
    On the other hand there are many cases where the act  of
a statutory authority has been accepted as a  quasi-judicial
act  although  there  were  not  two opposing  parties  over
whose  disputes  the authority was to sit  in  judgment.  In
those  cases  it was the authority who made a  proposal  and
another  person objected to it and the authority itself  was
entrusted  to hear the objection and give a decision on  it.
In short the authority which was the proposer was the  judge
in its own cause.  The only ground on which the decision  of
such an authority, placed in such situation as I  have  just
mentioned,   was regarded  as a quasi-judicial act was  that
the  authority  was  empowered to affect the  rights  of  or
impose  a liability on others and was required by  the  very
law  which constituted it to act judicially.  To take a  few
illustrative  cases: The Queen v. Corporation of Dublin  was
the  case  before May C.J. for quashing a  borough  rate  by
certiorari.  Here the contest was between the Corporation on
one side and the ratepayers on the other.  It was the Corpo-
ration which, under the Act, was empowered, after considera-
tion of facts and circumstances, to impose a borough rate, a
liability of the ratepayers. The provisions of the  relevant
statutes  are not set out in the report and it is  difficult
to say precisely what duties had been imposed on the  Corpo-
ration  before it could impose liability on  ratepayers.  I,
therefore, pass on to the case of Rex v. Electricity Commis-
sioners  (2) in which we find the celebrated  definition  of
Atkin L.J.  It will be noticed that in this case also  there
were  not two parties apart from the  Commissioners.  Indeed
the  Commissioners  themselves proposed the scheme  and  the
companies  took objection to it and the Commissioners  after
holding the local enquiry and hearing the objections had  to
make  the  final order.  It will also be  noticed  that  the
local  enquiry  was to be held by  the  Commissioners  them-
selves.  The only principle on which this decision rests  is
that  the  Commissioners  had power to  do  something  which
affected the rights of others and that they were required
(1) (1878) 2 L.R. Ir. 371.     (2) [1924] 1 K.B. 171.
725
by  the statute itself to hold an enquiry,  hear  objections
and  evidence in support thereof and make their final  deci-
sion after considering all facts and circumstances. Take the
case  of Estate and Trust Agencies (1927) Ltd. v.  Singapore
Improvement  Trust (1).  The contest was between the  appel-
lant  as  owner and the respondent Trust  as  the  authority
making  an  adverse declaration with respect to  the  appel-
lant's  building. By the very provisions of the statute  the
respondent  Trust was made the judge in its own  cause.   It
was,  however,  directed  to  entertain   objections,   hear
evidence  and then decide the issue.  It is this  last  men-
tioned  circumstance  on which this decision  rests.  It  is
needless  to multiply instances, for, I think,  these  cases
sufficiently illustrate the position.
    What  are  the  principles to be deduced  from  the  two
lines.  of cases I have referred to ?  The principles, as  I
apprehend them, are:
(i) that 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 lis 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; and
    (ii)  that if a statutory authority has 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 subject 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.
In  other words, while the presence of two  parties  be-
sides  the  deciding authority will prima facie and  in  the
absence of any other factor impose upon the
 (1) [1937] 3 A.E. R. 327 (P.C.).
93
726
authority  the  duty to act judicially, the absence  of  two
such  parties is not decisive in taking the act of  the  au-
thority  out  of the category of quasi-judicial act  if  the
authority  is  nevertheless required by the statute  to  act
judicially.
    Mr.  Seervai relied on two cases, namely, Rex v.  Hendon
Rural District Council (1) and Rex v. London County  Council
(2) as establishing that although the statute itself may not
require an inquiry yet the decision of the authority may  be
a quasi-judicial act. In the second case although there were
no express provisions for inquiry in the statute itself, the
rules  framed  by the Theatre and Music Hall  Committee  had
made elaborate provisions for notice, advertisement, opposi-
tion  and  hearing  in public and  liberty  to  examine  and
cross-examine  witnesses.   In  the first  case  notice  was
actually given, objections were invited and the parties  had
appeared.  In any case, in both the cases, as I have already
pointed out, there was a lis between two contending  parties
apart  from the deciding authority and the decision  of  the
authority affected the rights of the parties and can, there-
fore,  be  well  supported as a quasi-judicial  act  on  the
principle first enunciated.
     The question I have now to consider is whether the  act
of  the  Provincial Government under  the  Bombay  Ordinance
satisfied  either of the two tests.  In the case  before  us
there  were  not two parties so as to make up a lis  in  the
usual sense.  Here the Provincial Government had been autho-
rised  to  requisition  land for a public  purpose  and  the
respondent's  father  whose  interests  were   prejudicially
affected opposed the requisition.  The case, therefore,  did
not  satisfy the test of a quasi-judicial act based  on  the
presence  of two parties apart from the  Provincial  Govern-
ment. Chagla C.J. obviously felt the difficulty and tried to
get  over  it by introducing the State as a  party,  as  if,
under  the  Government of India Act, 1935, the State  was  a
legal  entity  apart from the Provincial  Government.   This
introduction of a fiction is wholly unconvincing and  cannot
be supported.  The Ordinance under review
(1) [1933] 2 K.B. 696.         (2) [1931] 2 K.B. 215.
727
did not contemplate or permit such a fiction.  The bald fact
has  to be faced that in this case there was an  absence  of
two contending parties apart from the Provincial  Government
which was the deciding authority. This, as I have said,  is,
however, not decisive, for it has yet to be enquired whether
the case satisfied the second test, that is to say,  whether
the  Ordinance  required the Provincial  Government  to  act
judicially.
    Turning  now to the provisions of the Ordinance,  it  is
contended  that it is implicit in section 3 that the  exist-
ence of a public purpose must be determined judicially.  The
argument  may be summed up thus: The existence of  a  public
purpose  as  an objective fact was, under the main  body  of
section  3,  a condition precedent to the  exercise  of  the
power  of requisition, just as the non-user of land for  any
of the purposes mentioned in the proviso to section 3 or the
vacancy  of  the premises under section  4  were  conditions
precedent. This condition precedent being an objective fact,
it  had  of  necessity to be determined  by  the  Provincial
Government in a quasi-judicial manner. The first part of the
argument  wholly  overlooks the difference in  the  language
used  in  the main body of section 3 and that  used  in  the
proviso  to that section and that used in section 4  of  the
Ordinance.   The proviso  to section 3 placed certain  lands
outside  the ambit    of the power conferred on the  Provin-
cial Government    by the main body of that section.  If the
Provincial   Government purported to exercise its  power  of
requisition  with  respect  to land which  fell  within  the
proviso  on  an erroneous belief that it did not,  then  the
Provincial  Government overstepped the limits of its  powers
and  the  order of requisition would not  bind  anybody  and
could be challenged by suit as wholly without  jurisdiction.
Likewise, under section 4 the Provincial Government's  power
of  requisition  had been confined in its  range  to  vacant
premises  and  if  the Provincial  Government  purported  to
requisition premises as vacant premises which in  fact  were
not  vacant  premises then also the  Provincial   Government
entered  the forbidden field and went beyond its  power  and
its
728
decision would not bind anybody and could be challenged by a
suit.  This  would be the position in the two cases  I  have
mentioned,  because  there  was nothing in  the  proviso  to
section  3  or  in section 4 which could  suggest  that  the
question  of  the  fulfilment of  the  condition  precedent,
namely,  the  non-user of the land for any of  the  purposes
mentioned in the proviso to section 3 or the vacancy of  the
premises under section 4, had in any manner been left to the
subjective opinion of the Provincial Government.  But, as  I
have  already stated, the main body of section 3, on a  cor-
rect construction of it, expressly left the question of  the
existence  of the public purpose along with the question  of
the  necessity or expediency of requisitioning land  to  the
subjective opinion of the Provincial Government, and, there-
fore,  its  decision, if made in good faith,  could  not  be
questioned at all.  The circumstance that the fulfilment  of
the condition precedent laid down in the proviso to  section
3  or in section 4 had not been left to the opinion  of  the
Provincial  Government  could  not affect  the  question  of
construction  of the language used in the main body of  sec-
tion  3  or alter the nature or character of the  act  under
that section.  The first part of the argument overlooks this
aspect  of  the  matter.  The second part  of  the  argument
proceeds on the assumption that an objective fact can  never
be  left to the subjective opinion of a specified  authority
and must always be determined judicially.  The cases already
referred  to in connection with the first head of  arguments
clearly show that the question of the existence of a  public
purpose or the interests of the State and the like may  well
be,  and, indeed, often are, left to the subjective  opinion
or satisfaction of the specified authority and in such cases
its  decision, in the absence of bad faith, cannot be  chal-
lenged in any proceeding. Even if the  matter be not left to
its  subjective opinion, nevertheless,  as  already  pointed
out, an administrative authority has frequently to come to a
decision  in its own mind as to the objective facts such  as
the  existence of a public purpose or the like as a step  in
the process of the exercise of  its administrative
729
powers.  That decision, if erroneous, will not bind  anybody
and may be questioned in an action.  See the observations of
Palles  C.B.    in The Queen v. Local  Government  Board(1).
The     mere fact that the existence of a public purpose  is
a condition precedent to the exercise of the power of requi-
sition  will  not necessarily make the decision  as  to  its
existence  a  quasijudicial act.  There is  no  warrant  for
saying that the fulfilment of the condition precedent to the
exercise  of  an administrative power must  necessarily  and
always  be determined judicially by the  authority  invested
with  the power.  The authority decides it for its own  pur-
pose  and in case of dispute the final decision  rests  with
the Court --a circumstance which also supports the view that
the  authority has no duty to decide it judicially.   In  my
opinion,  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 determined by the Provincial  Govern-
ment,  there was nothing in section 3 to suggest  that  such
determination had to be made judicially at all.  The  obser-
vations of Lord Radcliffe in Nakkuda Ali's case(2) at p. 887
are also instructive and helpful on this point.
    Mr. Seervai then draws our attention to sections 10  and
12  of the Ordinance on which he strongly relies in  support
of  his  contention.  It should be borne in  mind  that  Mr.
Seervai has not contended that the order for requisition  by
itself  was a quasi-judicial act.  His contention  has  been
that this power to make the order was subject to a condition
precedent,  namely, the existence of a public purpose  which
alone had to be established judicially as an objective fact.
It  will,  therefore, have to be seen whether  the  sections
relied on have any bearing on the question of the determina-
tion  of  the existence in fact of a  public  purpose.   The
sections ran as follows:
    "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
(1) [1902] L.R. 2 Ir. 349.         (2) (1950) 54 C.W.N. 883.
730
person  to furnish to such authority as may be specified  in
the order such information in his possession relating to any
land  which is requisitioned or is continued under  requisi-
tion  or is intended to be requisitioned or continued  under
requisition.
    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  preju-
dice 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
compliance with any order made under this Ordinnace. "
    In considering and construing the above sections it  has
to be borne in mind that a mere provision for an enquiry  as
a  preliminary step to coming to a decision will not  neces-
sarily  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. Take the case of Robinson v. Minister of
Town and Country Planning (1) to which reference has already
been  made where the act of the Minister was held to  be  an
administrative act. Lord Greene M.R. said at p. 859:
   "  As  an example of the difference to be  found  in  the
subject-matter dealt with in different statutes I may  point
out that this case is different from a case where a Minister
is given the duty of hearing an appeal from an order such as
a  closing order made by a local authority. This is not  the
case of an appeal. It is the case of an original order to be
made  by  the Minister as an executive authority who  is  at
liberty to base his
(1) [1947] 1 A. E ,R. 851,
731
opinion on whatever material he thinks fit, whether obtained
in the ordinary course of his executive functions or derived
from  what  is brought out at a public enquiry if  there  is
one.  To say that, in coming' to his decision, he is in  any
sense  acting in a quasi-judicial capacity is to   misunder-
stand   the   nature of the process altogether.   I  am  not
concerned  to dispute that the enquiry itself must  be  con-
ducted  on what may be described as  quasi-judicial  princi-
ples,  but this is quite a different thing from saying  that
any  such  principles  are applicable to the  doing  of  the
executive  act itself, i.e., the making of the  order.   The
enquiry  is  only a step in the process which leads  to  the
result,  and there is, in my opinion, no  justification  for
saying that the executive decision to make the order can  be
controlled  by  the Courts by reference to the  evidence  or
lack  of  evidence at the inquiry which is  here  relied  on
Such  a theory treats the executive act as though it were  a
judicial  decision (or, if the phrase is preferred,a  quasi-
judicial decision) which it most emphatically is not."
In  Franklin  v. Minister of Town and  Country  Planning
(1),  to which also  reference has  already been made,  Lord
Thankerton at p. 295-296 said:
    "In  my opinion, no judicial or quasi-judicial duty  was
imposed  on  the respondent, and any reference  to  judicial
duty  or  bias is irrelevant, in the present case.  The  re-
spondent's duties under section 1 of the Act and Schedule  I
thereto  are, in my opinion, purely administrative, but  the
Act  prescribes  certain methods of, or steps in,  the  dis-
charge of that duty.  It is obvious that, before making  the
draft  order,  which  must contain a  definite  proposal  to
designate the area concerned as the site of a new town,  the
respondent must have made elaborate inquiry into the matter,
and  have consulted any local authorities who appear to  him
to  be concerned, and, obviously, other departments  of  the
Government, such as the Ministry of Health, would  naturally
require  to be consulted.  It would seem, accordingly,  that
the respondent was required to satisfy
(1) [1947] 2 A.E.R, '289; [1948] A.C. 87,
732
himself that it was a sound scheme before he took the  seri-
ous  step  of issuing a draft order.  It seems  clear  also,
that the purpose of inviting objections, and, where they are
not  withdrawn,  of having a public inquiry, to be  held  by
some  one  other than the respondent, to  whom  that  person
reports, was for the further information of the  respondent,
in order to the final consideration of the soundness of  the
scheme of the designation,  and it is important to note that
the  development  of the site, after the order is  made,  is
primarily  the  duty of the development  Corporation  estab-
lished  under  s.  2 of the Act.  I am of  opinion  that  no
judicial  duty  is laid on the respondent  in  discharge  of
these statutory duties, and that the only question is wheth-
er he has complied with the statutory directions to  appoint
a  person to hold the public inquiry, and to  consider  that
person's report."
    Keeping   these   weighty observations  in  view  I  now
proceed to analyse the provisions of the two sections.
    It will be noticed that the powers given to the  Provin-
cial  Government under both the sections are  only  enabling
and  in terms are not compulsory.  The Court below has  con-
strued  the  word 'may' as 'must' on the hypothesis  that  a
right  implies a corresponding duty and the Provincial  Gov-
ernment  is, therefore, under  an  obligation  to   exercise
the  power and consequently an enquiry is compulsory.  I  am
unable  to accept this line of  reasoning.  The  authorities
show that in construing a power the Court will read the word
'may'  as 'must' when the exercise of the power will  be  in
furtherance  of the interest of a third person for  securing
which  the power was given. Enabling words are always poten-
tial and never in themselves significant of any  obligation.
They are read as compulsory where they are words to effectu-
ate a legal right.  See Julius v. Lord Bishop of  Oxford(1).
Here the power was given to enable the Provincial Government
to  obtain  information  to carry out the  purposes  of  the