dedol-hf/india-case-legal-rag huggingface dataset:
implies the existence of the judicial element in the process
leading  to  the decision.  Indeed, in the judgment  of  the
lower court, while it is stated at one place that if the act
done  by  the inferior body is a judicial  act,  as  distin-
guished  from  a  ministerial act, certiorari  will  lie,  a
little  later the idea has got mixed up where it is  broadly
stated that when the fact has to be determined by an  objec-
tive  test  and  when that decision affects rights of  some-
one, the decision or act
63
is quasi-judicial.  This last statement overlooks the aspect
that every decision of the executive generally is a decision
of  fact and in most cases affects the rights of someone  or
the  other.   Because  an executive authority has to  deter-
mine  certain objective. facts as a preliminary step to  the
discharge of an executive  function, it does not follow that
it  must determine those facts judicially.  When the  execu-
tive  authority  has to form an opinion about  an  objective
matter  as a preliminary step to the exercise of  a  certain
power  conferred on it, the determination of  the  objective
fact and the exercise of the power based thereon  are  alike
matters of  an administrative character and are not amenable
to  the  writ  of certiorari.  Observations  from  different
decisions of the English Courts were relied upon to find out
whether  a  particular determination was  quasi-judicial  or
ministerial. In some cases it was stated that you require  a
proposition and an opposition, or that a lis was  necessary,
or that it was necessary to have a right to examine,  cross-
examine   and   reexamine  witnesses.   As  has  often  been
stated,  the  observations in a case have to be  read  along
with  the  facts thereof and the emphasis in  the  cases  on
these  different aspects is not necessarily the complete  or
exhaustive statements of the requirements to make a decision
quasi-judicial  or otherwise. It seems to me that  the  true
position  is that when the law under which the authority  is
making a decision, itself requires a judicial approach,  the
decision will be quasi-judicial.  Prescribed forms of proce-
dure are not necessary to make an inquiry judicial, provided
in coming to the decision the well-recognised principles  of
approach  are  required to be followed.  In my  opinion  the
conditions  laid down by Slesser L.J. in his  judgment  cor-
rectly  bring  out  the distinction between  a  judicial  or
quasi-judicial  decision on the one hand and  a  ministerial
decision on the other.
    On  behalf of the respondent it was strongly urged  that
even  applying  these tests the decision of  the  Provincial
Government  under section a is quasi-judicial. The  decision
whether the premises were required for a public
634
purpose  was  contended not to be a matter of  opinion.  The
power  to  make  inquiries under sections  10  and  12  were
strongly relied upon in this connection.
    Two  cases  were  strongly relied upon  by  the  learned
counsel for the respondent in support of his contention that
the order in the present case was quasi-judicial. The  first
is  The King v. The Postmaster General (1). In that case  an
employee claimed compensation under the Workmen's  Compensa-
tion Act. The compensation was payable to him if the workman
obtained a certificate of the certifying surgeon that he was
suffering  from the telegraphists'  cramp and   was  thereby
disabled. A medical practitioner was appointed by the Secre-
tary of State and was given powers and duties of a  certify-
ing  surgeon  under section 4 of the relevant  Act.   By  an
order  of the Secretary of State, made in pursuance of  that
section,  it  was provided that so far as regards  the  post
office employees, the post office medical officer     "under
whose  charge the workman is placed shall, if authorized  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 such cramp to the chief medical
officer of the post office and this reference was relied  on
as   constituting him the  substitute  for  the   certifying
surgeon  under the Act and Order.  The  applicant  suffering
from telegraphists' cramp was on the capitation list of  the
local post office medical officer but in fact never consult-
ed  him.  On her claiming  compensation  for  telegraphists'
cramp the case was referred to the chief medical officer  in
accordance  with the usual practice who certified  that  the
applicant  was not suffering from such cramp.  It  was  held
that the giving of the certificate was therefore the  appro-
priate  subject  of proceedings by way  of  certiorari.   In
rejecting the argument that on the issue of such certificate
no right  to obtain a writ came into existence, because  the
certificate  was a mere nothing as it had to be followed  by
another  examination and inquiry, Lord Hewart C.J.  observed
as follows: "I do not think that it was
(1) [1928] 1 K.B.291.
635
contemplated at all that the judgment of the medical referee
should, in the smallest degree, be lettered or influenced by
a certificate given by a wholly unauthorized person and I do
not  think  Mrs. Carmichael would be in  the  same  position
before  the medical referee as that in which she would  have
been  if there had been a refusal on the part of the  proper
officer  to give her any certificate at all."   A  surgeon's
certificate  which  gave or deprived a person  of  right  to
compensation  was thus considered a judicial act and if  the
person had no jurisdiction to give such a certificate a writ
of  certiorari was considered the proper remedy.  It  should
be  noticed  that in this case a procedure  of  inquiry  was
provided under the Act.  The case was under entirely differ-
ent  provisions  of the Workmen's Compensation  Act,  which,
inter  alia,  gave a right of appeal against  the  surgeon's
decision.  It  may be further noticed  that  the  subsequent
right to obtain compensation started with the certificate in
question  and  was not an independent act  of  the  deciding
authority having no connection or concern and not influenced
by  this  decision.  A similar decision in  respect  of  the
mental  capacity of a boy in a school is in Rex  v.  Boycott
and Others (1). In that case also the opinion of the examin-
ing doctor, which had to be followed by subsequent  examina-
tion and inquiry, was considered subject to a writ of certi-
orari because that decision directly related to the boy  and
was  the starting point for proceeding under  the  Detention
Act and the Mental Deficiency Act.
    Bearing in mind the important factor  which distinguish-
es a quasi-judicial decision from an administrative act,  it
is next necessary to find out whether the action of  Provin-
cial Government permitted under section 3 of the  Ordinance,
read  along  with the scheme of the Ordinance, is  a  quasi-
judicial decision or an administrative act. Section 3 of the
Ordinance  permits  the  Provincial Government,  if  in  its
opinion  it is necessary or expedient to do so, to  make  an
order  in  writing to requisition any land  for  any  public
purpose. Keeping aside for the moment the proviso to the
(1) [1939] 2 K.B. 651.
636
section,  it is not seriously disputed that  the  subjective
opinion of the Provincial Government in respect of the order
of  the  requisition is not open to challenge by a  writ  of
certiorari.  The  Ordinance has left that  decision  to  the
discretion  of  the Provincial Government and  that  opinion
cannot  be revised by another authority.  It appears  there-
fore  that except when mala fides  is clearly  proved,  that
opinion  cannot be questioned. The next question is  whether
the requirement "for any public purpose" stands on the  same
footing. On behalf of the appellant, it was argued that  the
opinion of the Government, that it is necessary or expedient
to pass an order of requisition, stands on the same  footing
as  its decision on the public purpose.  In the  alternative
it was urged that the two factors, viz., necessity to requi-
sition and decision about public purpose, form one composite
opinion and the composite decision is the subjective opinion
of the Provincial Government. The third alternative  conten-
tion was that the decision of the Government about a  public
purpose  is a fact which it has to ascertain or decide,  and
thereafter  the  order  of requisition has  to  follow.  The
decision  of  the  Provincial Government as  to  the  public
purpose  contains  no judicial element in it.  Just  as  the
Government  has to see that its order of requisition is  not
made  in respect of land which is used for public  religious
worship  or is not in respect of land used If or  a  purpose
specified  by  the  Provincial Government  in  the  Official
Gazette, (as mentioned in the proviso to section 3) or  that
the premises are vacant on the date when the notification is
issued  (as  mentioned in section 4 of the  Ordinance),  the
Government  has to decide whether a particular  object,  for
which it is suggested that land should be requisitioned, was
a public purpose.
    In  my  opinion, this third  alternative  contention  is
clearly  correct  and it is unnecessary therefore  to  deal,
with the first two arguments.  There appears nothing in  the
Ordinance  to show that in arriving at its decision on  this
point  the  Provincial  Government has  to  act  judicially.
Sections 10 and 12, which were relied upon to show that  the
decision was quasi-judicial, in my
637
opinion, do not support the plea. The enquiries mentioned in
those sections are only permissive and the Government is not
obliged  to make them.  Moreover, they do not relate to  the
purpose  for  which the land may be required.  They  are  in
respect of the condition of the land and such other  matters
affecting  land. Every decision of the Government,  followed
by  the exercise of certain power given to it by any law  is
not  necessarily judicial or quasi-judicial.  The  words  of
section a read with the proviso, and the words of section
    taken  along with the scheme of the whole Ordinance,  in
my  opinion, do not import into the decision of  the  public
purpose  the judicial element required to make the  decision
judicial  or quasi-judicial. The decision of the  Provincial
Government about public purpose is therefore an  administra-
tive  act.  If the Government erroneously decides that  fact
it is open to question in a court of law in a regular  suit,
just  as its action, on its decision on the facts  mentioned
in  the  proviso to section 3 and in section 4, is  open  to
question  in a similar way. The argument that a suit may  be
infructuous because a notice under section 80 of the Code of
Civil  Procedure is essential and that remedy  is  therefore
inadequate, is unhelpful.  Inconvenience or want of adequate
remedy does not create a right to a writ of certiorari.   It
is  clear that such writ can be asked for if two  conditions
are fulfilled.  Firstly, the decision of the authority  must
be  judicial or quasi-judicial, and secondly, the  challenge
must be in respect of the excess or want of jurisdiction  of
the  deciding authority.  Unless both those  conditions  are
fulfilled  no application for a writ of certiorari can  suc-
ceed.  As,  in my opinion, the decision  of  the  Provincial
Government about public purpose is not a judicial or  quasi-
judicial decision, there is no scope for an application  for
a writ of certiorari.
    Having  regard to my conclusion, it is not necessary  to
discuss  the  other  points urged  by.  the  AttorneyGeneral
against  the issue of a writ against the Province of  Bombay
and I pronounce no opinion on the same.
638
The  result is that the appeal is allowed and the   petition
dismissed.  The order of costs  made  by the lower courts in
favour of the respondents is cancelled. The respondents will
pay the costs throughout. The costs of the lower courts will
be  taxed in favour of   the appellant on the terms  allowed
by those courts in favour of the respondents. The respondent
will  pay  the costs of the appeal here. The order of  costs
against the respondents will be limited to the assets of the
deceased come to their hands, as the original applicant  has
died pending these proceedings.
     FAZL  ALl  J.--This is, in my opinion, quite  a  simple
case, but it has been greatly complicated by the citation of
a  mass  of decisions by the parties and by  an  attempt  on
their  part to extract from them some principle  to  support
their respective contentions.
     The principal question to be decided in this appeal  is
whether a writ of certiorari is avail able to the respondent
to remove or quash an order made by the Government of Bombay
requisitioning  certain premises under section a  of  Bombay
Ordinance No. V of 1947.  It is well settled that a writ  of
certiorari  can  be issued only against inferior  courts  or
persons or authorities who are required by law to act  judi-
cially or quasi-judicially, in those cases where they act in
excess of their legal authority.  Such a writ is not  avail-
able to remove or correct executive or administrative  acts.
The  first question therefore to be decided in this case  is
whether the order passed by the Government of Bombay  requi-
sitioning  the premises in question is a judicial or  quasi-
judicial order or an executive or administrative order.
     Without going into the numerous cases cited before  us,
it may be safely laid down that an order will be a  judicial
or quasi-judicial order if it is made by a court or a judge,
or  by  some  person or authority who is  legally  bound  or
authorized  to act as if he was a court or a judge.  To  act
as a court or a judge necessarily involves giving an  oppor-
tunity  to  the party who is to be affected by an  order  to
make a representation,
639
making some kind of inquiry, hearing and weighing  evidence,
if  any,  and considering all the  facts  and  circumstances
bearing on the merits of a controversy, before any  decision
affecting  the rights of one or more parties is arrived  at.
The procedure to be followed may not be as elaborate as in a
court of law and it may be very summary, but it must contain
the essential elements of judicial procedure as indicated by
me.  In  some of the cases which were cited  before  us  and
which  have been discussed in the elaborate judgments  under
appeal, an attempt has been made to lay down certain  formu-
lae  for  determining  whether an order  is  a  judicial  or
quasi-judicial  order or not, but in my opinion it is  safer
to grasp the principle than to depend on the application  of
any formula or formulae. Again, a large number of cases were
cited to show various instances in which a person or persons
was or were held to act judicially or quasi-judicially,  but
those cases, as I have already indicated, often obscure what
may otherwise be a simple question; and apart from the  fact
that  this  Court is not bound to refer to cases  unless  it
finds  it  necessary to do so, I fully share  the  view  ex-
pressed by the Privy Council in Wijeyesekar v. Festing (1)as
to  why cases decided under different enactments  are  often
not  very helpful.  In that case, which related to a  Ceylon
Ordinance,  one  of the provisions of which  appears  to  be
similar  in certain respects to section a of  the  Ordinance
before us, the Privy Council observed:
    "Reference  has been made to cases dealing with  similar
questions  arising  under  statutory  enactments  in  India.
Their  Lordships  do not refer to those  cases  because  the
wording of the enactment is not the same, and their  discus-
sion might, to some extent, complicate what appears to their
Lordships to be a very simple issue."
    Having made these observations, they proceeded say:
(1) [1919] A.C. 646.
640
    "The  whole  case is decided, in the opinion,  of  their
Lordships,  in  the  last three lines of section  6  of  the
Ordinance."
    In the present case also, the simplest way to decide  it
is  to try to construe correctly section 3 of the  Ordinance
under  which  this case has arisen.  That section,  runs  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:
    Provided  that  no land used for the purpose  of  public
religious  worship or for any purpose which  the  Provincial
Government  may  specify  by notification  in  the  Official
Gazette shall be requisitioned  under  this section."
    In  construing  this section, it is our  first  duty  to
enter into the mind of the framers of the Ordinance and look
at  the whole matter as they must have looked at  it.   Pro-
ceeding in this way, two things seem to me to be clear:  (1)
The  existence of a public purpose is the foundation of  the
power  (or jurisdiction, if that term may  appropriately  be
used  with reference to an. executive body) of the   Provin-
cial Government to requisition premises under section 3, or,
as  is  sometimes said, it is a condition precedent  to  the
exercise  of  that power.  I think that this aspect  of  the
matter  has  been very lucidly summed up by Bhagwati  J.  in
these words:
    "Unless  and until there was a public purpose in  exist-
ence  for the achievement of which they would  exercise  the
power  invested in them under section 3, there would  be  no
jurisdiction at all in the Provincial Government to make any
order  for requisition of land. It is only when that  public
purpose  existed  that the jurisdiction  of  the  Provincial
Government would come to be exercised and then and then only
would  they  be  invested with the  discretion  of  deciding
whether it is necessary or expedient to requisition any land
for  the achievement of that purpose.  It therefore  follows
that
641
the  existence of a public purpose.is a condition  precedent
to  the exercise of the power of requisitioning invested  in
the  Provincial  Government by section 3 of  the  Ordinance.
The  Provincial  GOvernment  are not  constituted  the  sole
judges  of what that public purpose is.  The public  purpose
has to exist before they can exercise any power of  requisi-
tion of land within the meaning of that section."
    (2)  The  framers  of the Ordinance  never  intended  to
impose  any duty on the Provincial Government  to  determine
judicially whether a certain purpose is a public purpose  or
not.   There are no express words in section a or any  other
section,  to  impose such a duty; nor is there  anything  to
compel us to hold that such a duty is implied.  A  reference
to section 6 of the Ordinance wherein an inquiry is specifi-
cally  provided for with a view to assess  the  compensation
and sections 10 and 12 under which the Provincial Government
is  empowered to obtain certain information and  enable  its
officer  to  inspect  land, show that where  an  inquiry  or
anything  like  an inquiry was intended to be  made  it  was
specifically  provided for.  There is however  no  provision
for  any inquiry being made for determining the public  pur-
pose.  Indeed it appears to me that in a large  majority  of
cases  no inquiry should be necessary as the existence of  a
public purpose would, be selfevident or obvious, and a  mere
reference  to the purpose will make anyone say: This  is  of
course  a  public, purpose.  It may be that just  in  a  few
exceptional  cases, legalistic or some other  considerations
may  make the position obscure, but in an Act  or  Ordinance
which  has  to provide for prompt action and  which  in  its
day-to-day  application must be confined to normal  and  not
exceptional  cases, the legislature may not attach too  much
importance  to  such  cases and may  credit  the  Provincial
Government  with  sufficient  intelligence  to  know  before
acting  under the Ordinance whether a certain purpose  is  a
public purpose or not. However that may be, the fact remains
that  there is nothing in the Ordinance to suggest that  the
public purpose is to be determined in a judicial way.
642
In this appeal, two principal contentions, which in  the
view  I am inclined to take are the only  contentions  which
need be referred to, were raised in the course of the  argu-
ments,  one  on behalf of the respondent and  the  other  on
behalf  of the appellant.  The contention of the  respondent
was that the Provincial Government has to act judicially  in
determining  the public purpose and its action is  therefore
subject to a writ of certiorari if it acts beyond its  legal
authority.   The  contention on behalf of the  appellant  is
that section 3 empowers the Government to form an opinion on
two matters: (1) whether there is a public purpose; and  (2)
whether  it  is necessary or expedient in the  interests  of
that  purpose to requisition certain premises.   Such  being
the  case, the opinion of the Provincial Government on  both
these matters is final and cannot be questioned in any court
of law.
    I have said enough with regard to the first  contention,
but  I shall add just a few words more.  For  prompt  action
the  executive authoriti.as have often to take  quick  deci-
sions  and it will be going too far to say that in doing  so
they  are discharging any judicial or  quasi-judicial  func-
tions.   The word "decision" in common parlance is  more  or
less a neutral expression and it can be used with  reference
to  purely executive acts as well as judicial  orders.   The
mere  fact that an executive authority has to  decide  some-
thing does not  make the decision judicial. It is the manner
in which  the decision has to be arrived at which makes  the
difference,  and the real test is there any duty to de  cide
judicially? As I have already said, there is nothing      in
the Ordinance to show that the Provincial Govern ment has to
decide  the  existence of a public  purpose   judicially  or
quasi-judicially. It is not obliged to call  for or consider
any  objections, make any inquiry or hear  evidence, but  it
may  proceed  in  its  own way--ex  parte   on  prima  facie
grounds,  just to see that it is acting   within the  limits
of  the power granted to it. Besides, the  determination  of
the public purpose per se does not effect the rights of  any
person.  It is only when the further step is taken,  namely,
when the Provincial
643
Government forms an opinion that it is necessary or  expedi-
ent  in the interests of public purpose to requisition  cer-
tain  premises that the rights of others can be said  to  be
affected.  In these circumstances, I am unable to hold  that
the  Provincial Government has to act judicially  or  quasi-
judicially under section 3 of the Ordinance.
    The  contention on behalf of the appellant, to  which  I
have referred, raises the question as to whether, if certain
premises are requisitioned by the Provincial Government  for
a  non-public purpose, the matter is open to challenge in  a
court  of  law.   It is well settled that where  an  Act  or
regulation   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  investi-
gate  the grounds or the reasonableness of the  decision  in
the absence of an allegation of bad faith.  Therefore, since
the  question as to whether it is necessary or expedient  to
acquire land (given a public purpose) has been left entirely
to the satisfaction of the Provincial Government, the  opin-
ion  formed  by  it, provided it is formed  in  good  faith,
cannot be questioned.  In other words, if there is a  public
purpose,  the  mere fact that to the court or to  any  other
person  the  requisition  of the premises  does  not  appear
necessary or expedient in the public interest will not  make
the requisition bad. But the same cannot be said with regard
to  the  decision  of the Provincial Government  as  to  the
existence  of a public purpose, which is the  foundation  of
its  power and is a condition precedent to its exercise.  If
the  executive authority requisitions land under  section  3
without  there  being any public purpose in  existence,  its
action  is  a nullity and the position in law is as  if  the
authority did not act under section 3 at all. Such being the