dedol-hf/india-case-legal-rag huggingface dataset:
nature of the functions entrusted to, and exercised by,  the
Provincial Government under the Ordinance in question.
    The title of the Ordinance was "An Ordinance to  provide
for the requisition of land, for the continuance of requisi-
tion  of  land and for certain other purposes."  The  second
preamble  recited that the Governor of Bombay was  satisfied
that  circumstances existed which rendered it necessary  for
him  to take immediate action to enable the Provincial  Gov-
ernment  to make provision for requisition of land  and  for
the  continuance of the requisition of land already  subject
to requisition. The Bombay Legislature not being in  session
at  the date of this Ordinance and the instructions  of  the
Governor-General  under  the proviso to sub-section  (1)  of
section 88 of the Act having been obtained. the Governor  of
Bombay had legislative power and authority and the Ordinance
promulgated by him had; for the requisite period, the  force
of an Act of the legislature.  The Ordinance has since  been
replaced  by an Act but this appeal must be decided  on  the
terms  of the Ordinance which was in force at  the  material
times. The preambles to the Ordinance clearly indicated that
700
the  Ordinance had been promulgated under  circumstances  of
considerable urgency.  This is a fact which should be  borne
in  mind  in interpreting the operative  provisions  of  the
Ordinance.
    Section  3  of the Ordinance under which  the  order  of
requisition was made was in the terms following:
    "3.  Requisition  of  land.--If in the  opinion  of  the
Provincial Government it is necessary or expedient to do so,
the Provincial Government may, by order in writing, requisi-
tion 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."
It is clear, and, indeed, there can be no dispute,  that
the  words "If in the opinion of the Provincial  Government"
governed  the words "it is necessary or expedient to do  so"
and that whatever those latter words might mean or imply had
been left entirely to the opinion of the Provincial  Govern-
ment.    What then, were the meaning and implication of  the
words "it is necessary or expedient to do so" ?
    The main section read as a whole clearly implied a close
and intimate correlation between the two parts, namely,  the
power  conferred on the Provincial Government by the  opera-
tive  part and the formation of opinion as to the  necessity
or  expediency for exercising that power under  the  earlier
part  of the section and this correlation was brought  about
by  the use of the word "so" in conjunction with  the  words
"to  do." To my mind, the words "to do so" covered  and  in-
cluded within their meaning whatever  Provincial  Government
had  been  authorised to do.  By the operative part  of  the
section the Provincial Government had been empowered, not to
requisition  simpliciter  but to requisition  for  a  public
purpose.  The  words "to do so" in the opening part  of  the
sentence  necessarily,  therefore, referred to  the  act  of
requisitioning  for  a public purpose and it  must   follow,
therefore,  that the
701
necessity  or  expediency for requisitioning  for  a  public
purpose  was left to the opinion of the  Provincial  Govern-
ment.  Strictly, as a matter of construction of the section,
both grammatically and according to the necessary intendment
of  the  Ordinance,  as it appears from  its  language,  the
conclusion  is irresistible that the words "to do so"  meant
and  stood  for  the words "to requisition any  land  for  a
public purpose."  It is to avoid the repetition of the words
"requisition any land for any public purpose" that the words
"to  do  so" were used in the earlier part.  It  would  have
served  the purpose equally well if in the earlier  part  of
the  sentence  the words "to requisition any  land  for  any
public  purpose" had been used instead of the words  "to  do
so"  and the words "do so" had been used at the end  of  the
section  instead of the words "requisition any land for  any
public purpose."  It appears to me to be entirely fallacious
to say that because the words "for a public purpose" were to
be found at the end of the section, therefore, the existence
of  a public purpose must have been a collateral fact  which
could  not  come within the scope of the  formation  of  the
opinion.  The truth is that the earlier part of the  section
by the use of the words "to do so" included the question  of
a  public purpose and the entire composite  matter,  namely,
the  necessity or expediency for requisitioning land  for  a
public  purpose had been left to the subjective  opinion  of
the Provincial Government.
    Learned  counsel  for the respondents  contends--and  in
this  he  has  the  judgments  of  the  High  Court  in  his
favour--that  although  it had been left to  the  Provincial
Government  to form its own opinion as to the  necessity  or
expediency  of requisitioning land and to make an  order  of
requisition  rounded  on that opinion, the  existence  of  a
public purpose was a condition precedent to the exercise  of
the  power and the question of the fulfilment of the  condi-
tion  precedent had not been left to the subjective  opinion
of the Provincial Government but had to be determined as  an
objective  fact  by  the  Provincial  Government  before  it
proceeded to form its opinion and to make the order
702
The  words "to do so", according to learned counsel for  the
respondents, referred to the act of requisition only but not
to the purpose of such requisition.  I am unable  to  accept
this  line  of  argument  which appears to me to be open  to
the following several objections:
    (i)  It overlooks the word "so" and gives no meaning  to
it.
    (ii)  If that interpretation were correct then the  sec-
tion would have read as follows:
    ''If  in the opinion of the Provincial Government it  is
necessary or expedient to requisition any land, the  Provin-
cial Government may, by an order in writing, requisition any
land for a public purpose."
    So  read,  the section would mean  that  the  Provincial
Government  would, in order of sequence, first have to  form
its  opinion as to the necessity or expediency for  requisi-
tioning  any land without reference to any purpose. On  this
interpretation  it is clear that the  Provincial  Government
could  not act directly upon the opinion so formed,  because
the  exercise  of the power depended on the existence  of  a
public  purpose  as an objective fact which had  yet  to  be
determined.  If that were to be so then what was the  neces-
sity for the anterior formation of opinion by the Provincial
Government  ? A formation of opinion as to the necessity  or
expediency  of  a  purposeless requisitioning  would  be  an
entirely useless, incomplete and futile mental exercise, for
such  formation of opinion would not have in any way  helped
the Provincial Government in making an order of  requisition
at all.
    (iii)  According to the respondents' interpretation  the
existence of a public purpose as an objective fact had to be
determined first before the Provincial Government would form
its  opinion as to the necessity or expediency  of  requisi-
tioning a particular land.  This argument amounts to reading
the section upside down and in fact to recasting the section
altogether. If that were the true intention of the  Governor
of  Bombay in promulgating this Ordinance, then the  section
would
703
have said--" If any land is needed for a public purpose  and
if in the opinion of the  Provincial Government it is neces-
sary  or  expedient to requisition any particular  land  for
that purpose, the Provincial Government may, by an order  in
writing  requisition  such land."  The section  as  enacted,
however, did not say anything of the kind.
    (iv)  It is said that this section postulated  a  public
purpose  to exist and required the Provincial Government  to
form its opinion as to the necessity or expediency of requi-
sitioning land for that public purpose.  One can only arrive
at the last mentioned proposition by interpreting the  words
"tO  do so" in the way suggested by me and once that  inter-
pretation  is adopted, the existence of a public purpose  as
well  as the necessity or expediency of requisitioning  land
must  both become the subject-matter of the opinion  of  the
Provincial Government.
    (v)  If  the  existence of a public purpose  had  to  be
determined  as an objective fact and if  that  determination
were liable to be subjected to the scrutiny of the Court  in
legal  proceedings, then such a procedure would  have  quite
effectively  frustrated  the very object set  forth  in  the
second preamble by preventing the Provincial Government,  by
means of protracted legal proceedings, from taking immediate
action for making provision for requisition of land and  for
the  continuance of the requisition of land already  subject
to requisition. In this very case, the order of  requisition
which had been made in February, 1948, is still in abeyance.
    (vi)  The result of the interpretation suggested by  the
respondents would be to hold that the Provincial  Government
had  to determine judicially the existence of a public  pur-
pose  as an objective fact before it proceeded to  form  its
opinion as to the necessity or expediency of  requisitioning
any particular land.  It is difficult to appreciate how  the
Provincial  Government would have proceeded to  decide  this
issue.  To whom would the Provincial Government give  notice
that  it proposed to decide this issue of the  existence  or
otherwise of a
704
public  purpose? Who would be interested to deny the  exist-
ence of such a purpose at that stage ? None, for no particu-
lar person's land was actually sought to be requisitioned at
that  stage.   Indeed  this issue could not  arise  until  a
person was actually threatened with a requisition order.  An
interpretation  that leads to such an absurd  and  anomalous
position cannot but be rejected.
    (vii) If it is  contended  that  the  Provincial Govern-
ment  had  to  decide this issue as and when  it  sought  to
requisition  any particular land belonging to  a  particular
person,  the result will be still  more anomalous.  in  that
case  the  Provincial  Government would be  called  upon  to
decide  the self same issue as to the existence of a  public
purpose  as  often and as many times as it  would  need  any
land,  for the decision in one case will not bind the  owner
of  a different land. There would have to be as  many  deci-
sions as to the existence of a public purpose as there would
be number of plots of land to be acquired.  Can anything  be
more absurd than this ?
    (viii)  If  the decision on the existence  of  a  public
purpose had to be made along with or simultaneously with the
formation  of opinion as to the necessity or expediency  for
requisitioning any particular land then it must be  conceded
that the two matters were correlated to each other and  then
it  will  be  absurd to suggest that the  intention  of  the
Ordinance  was to keep the two component parts  in  separate
water-tight  compartments, one being required to be  decided
as an objective fact and the other being left to the subjec-
tive  opinion of the Provincial Government.  In the  absence
of specific provision in express language such an  anomalous
intention cannot be imputed to the legislative authority.
    The objections stated above quite definitely lead 'me to
the  conclusion  that the interpretation  suggested  by  the
respondents  cannot be adopted and they also fortify my view
that  the  section must be construed in the  manner  I  have
mentioned. So constructed, it would read as follows:
705
    "If  in the opinion of the Provincial Government  it  is
necessary or expedient to requisition any land for a  public
purpose,  the  Provincial  Government may, by  an  order  in
writing, requisition any land for a public purpose."
    As soon as this construction is reached, there  remains,
on  the authorities  and on  principle, no escape  from  the
conclusion that what had been left to the subjective opinion
of the Provincial Government was a composite matter, namely,
the  necessity or expediency for requisitioning land  for  a
public purpose. The Provincial Government was authorised  to
form  an  opinion on the entire matter and  every  component
part of it.  In short the existence of a public purpose  was
left as much to the opinion of the Provincial Government  as
was  the  necessity  or expediency  for  requisitioning  any
particular land.  It seems clear to me that the  legislative
authority meant, not that there must be a public purpose  as
an objective fact to be determined judicially which determi-
nation  was to be subject to the scrutiny of the Court  but,
that  the Provincial Government should be of opinion that  a
public  purpose existed for the advancement of which it  was
necessary  or expedient to requisition land. In my  opinion,
the  words "if in the opinion of the Provincial  Government"
governed both the purpose and the necessity or expediency of
making an order of requisition.  The formation of opinion on
the  entire matter was purely subjective, and the  order  of
requisition was to be rounded on this subjective opinion and
as such was a purely administrative act.  It will be useful,
at  this stage, to refer to some of the  judicial  decisions
which,  as I apprehend them, fully support my above  conclu-
sions.
    It  is well established that if the  legislature  simply
confides  the power of doing an act to a particular body  if
in the opinion of that body it is necessary or expedient  to
do  it, then the act is purely an administrative,  i.e.,  an
executive  act  as opposed to a judicial  or  quasi-judicial
act, and, in the absence of proof of
706
bad  faith, the Court has no jurisdiction to interfere  with
it and certainly not by the high prerogative writ of certio-
rari.   Usually  this discretion is confided by the  use  of
expressions like "If it appears to,." "If in the opinion of"
or  "If so and so is satisfied."  In Mayor etc. of  Westmin-
ster  v.  London and NorthWestern  Railway Company (1)  Lord
Halsbury L.C. observed:
    "Assuming the thing done to be within the discretion  of
the  local authority, no Court has power to  interfere  with
the mode in which it has exercised it. Where the Legislature
has confided the power to a particular body, with a  discre-
tion  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."
    To  the  like effect are the following  observations  of
Batty  J.  in Balvant Ramchandra Natu v.  The  Secretary  of
State (2):
    ''No doubt when a power has been conferred in  unambigu-
ous  language by Statute, the Courts cannot interfere   with
its exercise  and substitute  their own discretion for  that
of  persons  or bodies selected by the Legislature  for  the
purpose."
Sometimes  the  Legislature  may entrust a  power  to  a
specified  authority  to do an act for  a  certain  purpose.
Even  in such a case, the Legislature may, nevertheless,  by
appropriate  language, leave not only the  determination  of
the  necessity or expediency for doing the act but also  the
determination  of the necessity or expediency for doing  the
act  for that purpose as a composite matter to the  opinion,
satisfaction  or  discretion of that authority.  In  such  a
case what is a condition precedent for the doing of the  act
is  not the actual existence of the particular  purpose  but
the  opinion  of the specified authority  that  the  purpose
exists.  In other words the authority is also made the  sole
judge  of  the existence of the purpose,  for  otherwise  it
cannot form its opinion as to the necessity or expediency of
doing the act for that purpose.
(1)  [1905] A.C. 426.           (2) I.L.R. [1905] Bom.  480,
503.
707
In  Wijeyesekera  v. Festing(1) the Governor  of  Ceylon
with the advice of his Executive Council made an order under
the  Acquisition  of  Land Ordinance,  1876,  directing  the
Government  agent to take order for the  acquisition,  under
the provisions of the Ordinance, of part of the  appellant's
estate  for a public purpose, namely, the making of a  road.
The whole point in the case was whether the decision of  the
Governor  in  Council was conclusive on the point  that  the
land  was wanted for a public purpose.  The question  turned
on  sections 4 and 6 of the Ordinance (No. a of 1876)  rele-
vant portions of which provided as follows:
"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
authorised  by the Governor in this behalf, to examine  such
land and report whether the same is fitted for such purpose.
6. The Surveyor-General, or other officer  so authorised  as
aforesaid, shall then make his report to the Governor wheth-
er the possession of the land is needed for the purposes for
which  it  appeared likely to be needed as  aforesaid.   And
upon  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  acquisi-
tion of the land. "
    In  delivering  the judgment of the  Board  Lord  Finlay
approved  of  a previous decision of the  Supreme  Court  of
Ceylon and observed as follows:
    "It appears to their Lordships that the decision of  the
Governor  that  the land is wanted for  public  purposes  is
final, and was intended to be final, and could not be  ques-
tioned  in any Court.  The nature of the objection  is  such
that  it  would  be obviously unsuitable  for  the  District
Court,  which  is concerned with questions  of  compensation
which  would  arise  if the land is to be  taken.   But  the
question might also be raised
(1) [1919] A.C. 646.
708
in  a preliminary way, as was suggested by Lord Wrenbury  in
the course of the argument.  It might be raised by an appli-
cation  to the Court to stay the further proceedings on  the
ground  that although the Governor in the Executive  Council
had  made the order, it was not a case where  the  condition
precedent  of  the Ordinance was really  fulfilled,  namely,
that the land was wanted for a public purpose.
    In their Lordships' opinion no such proceeding would  be
competent  in such a case, and the decision of the  Governor
in Council, making an order under the latter part of s. 6 of
the Ordinance, is final and conclusive."
    His Lordship concluded--
     "When you have an enactment of that kind it shows  that
it was intended that the decision of the Governor in  Execu-
tive Council on the point should be binding."
The  decision in Point of Ayr Collieries Ltd.  v.  Lloyd
George (1) which was a case of requisition of an undertaking
turned   on   reg.   55  (4)  of   the   Defence   (General)
Regulations--the relevant parts of which were as follows:
    "If  it  appears to a competent authority  that  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  communi-
ty, it is necessary to take control on behalf of His Majesty
of  the whole or any part. of an existing  undertaking,  and
that,  for  the purpose of exercising such  control,  it  is
expedient that the undertaking or part should be carried  on
in  pursuance  of an order mader under this  paragraph,  the
competent  authority  may  by  order  authorise  any  person
(hereinafter  referred to as an "authorised controller")  to
exercise, with respect to the undertaking or any part there-
of  specified in  the  order, such functions of  control  on
behalf of His Majesty as may be provided by the order..."
[1943] 2 All E.R. 546.
709
An  order  under the regulation having  been  made  with
respect  to  the  appellant's  undertaking,  the   appellant
brought  an action impugning it on the ground,  inter  alia,
that there were no adequate grounds upon which the  Minister
could  find, as he stated he had found, namely, that it  was
necessary  to  take control in the interests of  the  public
safety, the defence of the realm, the efficient  prosecution
of  the war or for maintaining supplies and services  essen-
tial  to  the community. Singleton J. having  dismissed  the
action,  the appellant went up to the appeal Court.  If  the
reasonings  and  the  conclusions  of  the  judgments  under
appeal  before us were sound and correct it could well  have
been  held  by  the Court of Appeal in that  case  that  the
regulation  postulated  the existence of  the  interests  of
public safety etc. which had to be judicially determined  as
an objective fact and that what had been left to the subjec-
tive opinion of the competent authority was only the  neces-
sity  for  taking  control of the  undertaking.   This  was,
however,  repelled and in dismissing the appeal Lord  Greene
M.R.  with  whom Goddard and du Parcq L. JJ.  concurred  ob-
served as follows:
    "If  one  thing  is settled beyond  the  possibility  of
dispute,  it  is  that, in construing  regulations  of  this
character expressed in this particular form of language,  it
is   for  the  competent  authority,  whatever Ministry that
may be, to decide as to whether or not a case for the  exer-
cise  of the powers has arisen it is for the  competent  au-
thority to judge of the adequacy of the evidence before  it.
It is for the competent authority to judge of the credibili-
ty  of that evidence.  It is for the competent authority  to
judge  whether or not it is desirable or necessary  to  make
further investigations before taking action.  It is for  the
competent authority to decide whether the situation requires
an immediate step, or whether some delay may be allowed  for
further  investigation and perhaps negotiation.   All  these
matters are placed by Parliament in the hands of the  Minis-
ter in the belief that the Minister will exercise his powers
properly, and
91
710
in the knowledge that, if he does not do so, he is liable to
the criticism of Parliament.  One thing is certain, and that
is that those matters are not within the competence of  this
Court.   It is the competent authority that is  selected  by
Parliament to come to the decision, and if that decision  is
come to in good faith, this Court has no power to interfere,
provided, of course, that the action is one which is  within
the   four  corners  of  the  authority  delegated  to   the
Minister."
    There  is no substantial difference in the  language  of
reg.  55 (4) and that of the Bombay Ordinance now before  us
if  it  is  properly construed and read in the  way  I  have
indicated above. Even if it were possible, on an overmeticu-
lous  analysis, to detect any such difference, the  position
is put beyond doubt in the decision of the English Court  of
Appeal  in Carltona Ltd. v. Commissioners of Works and  Oth-
ers(1).  The  decision turned on reg. 51 (1)of  the  Defence
(General) Regulations which was in the following terms:
    "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."
    There  is no substantial difference at all  between  the