Province of Bombay Vs. Kusaldas S. Advani & Ors [1950] INSC 22 (15 September 1950)
KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN MUKHERJEA, B.K.
CITATION: 1950 AIR 222 1950 SCR 621
CITATOR INFO :
E&F 1959 SC 107 (10,10A,11,43,44,45,46,49,54,* F 1959 SC 308 (19,44,46,58) F 1960 SC 415 (18) APL 1960 SC 606 (6) R 1961 SC1506 (18) R 1961 SC1669 (3,4,11) F 1962 SC1110 (7) R 1962 SC1621 (36,60) R 1963 SC 677 (11) RF 1963 SC 874 (5) D 1964 SC1230 (16) R 1965 SC1595 (10) R 1965 SC1798 (6) R 1966 SC 81 (5) F 1966 SC 91 (11) R 1967 SC 908 (8) MV 1967 SC 997 (47) R 1967 SC1507 (6) RF 1969 SC 707 (50) APL 1970 SC1896 (18) D 1972 SC2656 (11) R 1973 SC 834 (20) E 1973 SC2237 (3) RF 1975 SC 596 (3,6,8) F 1976 SC 667 (4) RF 1976 SC1207 (527)
ACT:
Bombay Land Requisition Ordinance (V of 1947), ss. 3, 4, 10,12--Order requisitioning land--Application for writ of certiorari Order of requisition, whether judicial or quasijudicial act, or administrative act--Construction of s. 3--Existence of public purpose, whether condition precedent to exercise of power to requisition --Whether collateral fact or composite part of power to requisition-Distinction between judicial or quasi-judicial acts, and administrative acts--Guiding principles and tests--Writ of certiorari--Nature and incidents of the writ--Power of High Court to issue writ against Provincial Government--Government of India Act, 1935, ss. 176, 306--" Sue, "meaning of.
HEADNOTE:
Held by the Full Court, (KANIA C.J., FAZL ALl, PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and BAs JJ.).--A writ of certiorari lies whenever a 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; it does not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature.
Section 3 of the Bombay Land Requisition Ordinance (V of 1947) provided 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." The let respondent who was a refugee from Sind got an assignment of the tenancy rights in a flat in Bombay and went into possession of the fist. A few days later the Government of Bombay issued an order requisitioning the flat under s. 3 of the abovesaid Ordinnance, allotted the same to another refugee and issued orders to an Inspector to take possession of the same. On an application under Art. 32 of the Constitution, a writ of certiorari was issued by the Bombay High Court against the Province of Bombay and others and this order was confirmed on appeal as against the Province of Bombay by a Division Bench of the said High Court.
Held, per KANIA C.J., FAZL ALI, PATANJALI SASTRI and DAS JJ. (MAHAJAN and MUKHERJEA JJ. dissenting)--that on a proper construction of s. 3 of the Ordinance the decision of the Bombay Government that the property was required for a public 622 purpose was not a judicial or quasi-judicial decision but an administrative act and the High Court of Bombay had therefore no jurisdiction to issue a writ of certiorari in respect of the order of requisition. Per MAHAJAN and MUKHERJEA JJ. (contra).-The Government of Bombay is a body of persons having legal authority to determine questions affecting the rights of subjects and in deciding whether a land was required for a public purpose under s. 3 of the Ordinance it had to act judicially. The conditions necessary for the granting of a writ of certiorari were accordingly satisfied and the High Court of Bombay had power to issue the writ.
KANIA C.J.-Though a writ of certiorari may be issued where a body of persons having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially act in excess of their legal authority, yet merely because an executive authority has to determine certain objective facts affecting the rights of subjects as a preliminary step to the discharge of an executive function it does not follow that it must determine those facts judicially. On the contrary, when the executive 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.
It cannot be laid down broadly that in order that a determination may be a judicial or quasi-judicial one there must be a proposition and an opposition, or that a lis is necessary, or that it is necessary that there should be right to examine, cross examine and reexamine witnesses.
The true test is whether the law, under which the authority is making a decision, itself requires a judicial approach.
Prescribed forms are not necessary to make an inquiry judicial, provided in coming to the decision well recognised principles of approach are required to be followed.
FAZAL ALI J.-The mere fact that an executive authority has to decide something 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 decide judicially. There is nothing in s. 3 or any other section of the Ordinance in question which imposes expressly or impliedly a duty on the Provincial Government to decide the existence of a public purpose judicially or quasi-judicially.
It is well settled that when an Act or regulation commits to an executive authority the decision of what is necessary or expedient and that authority make the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith, and the opinion formed by the Provincial Government whether it is necessary or expedient to acquire land, given a public purpose, 623 cannot therefore be questioned. 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.
The determination of the public purpose and the opinion formed as to the necessity or expediency of requisition do not form one psychological process but are two distinct and independent steps and if the executive authority requisitions land under s. 3 without there being a public purpose in existence its action would be a nullity, and the person whose right is affected can go to the proper court and claim a declaration that his rights cannot be affected. An application for certiorari would not, however, lie in such a case as the requisition of premises under s. 3 of the Ordinance is a purely administrative act and does not involve any duty to decide the existence of a public purpose or any other matter judicially or quasi-judicially.
MAHAJAN J.--The question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rule and the nature, scope and effect of the particular power in exercise of which the act may be done and would therefore depend on the facts and circumstances of each case. The question whether a land is required for a public purpose or is being used for public worship involves difficult questions of law and fact seriously affecting the rights of parties. These are not questions for the mere determination of the Government subjectively by its own opinion, but are matters for determination objectively and in a judicial manner, on materials which the Government have sufficient power to call for under es. 10 and 12 of the Ordinance after hearing any opposition to its proposal, and the High Court of Bombay had therefore jurisdiction to issue a writ of certiorari.
MUKHERJEA J.--Under s. 3 of the Ordinance, the act of requisitioning land is left to the executive discretion of the Provincial Government. But the section makes the existence of a public purpose an essential prerequisite to the taking of steps by the Provincial Government in the matter of requisitioning any property and under the section the essential fact on which the jurisdiction to proceed with the requisition is rounded is the existence of a public purpose as an objective fact, and not the subjective opinion of the Provincial Government that such fact exists. Whether a public purpose exists or not has to be determined judicially as there is a lie or controversy between the interest of the public on the one hand and that of the individual who owns the property on the other hand, and the determination of the Government was therefore a judicial act; the determination was further a collateral matter on which the jurisdiction to requisition was rounded, and not a part of the executive act of 624 requisitioning, and a writ of certiorari could therefore be issued in DAS J.--The words "to do so" in s. 3 of the Ordinance refer to the entire composite matter of "requisitioning for a public purpose," not merely to the act of requisitioning simpliciter and the existence of a public purpose was left as much to the subjective opinion of the Provincial Government as the necessity or expediency for requisitioning a particular land. As the formation of the opinion on the entire matter was purely subjective and the order of requisition was to be rounded on this subjective opinion, it was not a judicial or quasi-judicial act but a purely administrative act and consequently it was not a matter in respect of which a writ of certiorari could be issued. 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 it, there was nothing in s. 3 to suggest that such determination had to be made judicially and a writ of certiorari would not in any case lie.
Even if the existence of a public purpose was a collateral fact, then at best is was only a case of an administrative body assuming jurisdiction to perform its administrative powers, and if it assumes jurisdiction on an erroneous assumption it might be corrected by an action, but certiorari cannot be an-appropriate remedy; and assuming further that this collateral fact had to be decided quasi-judicially and its decision might be quashed, the administrative act, namely the formation of opinion and the order based thereon would still remain unaffected by certiorari.
In order that a body may be a quasi-judicial body it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially.
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 lie 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.
If a statutory body his 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.
625 A mere provision for an enquiry as a preliminary step to coming to a decision will not necessarily 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.
Held, per KANIA C.J., FAZL ALI, PATANJALI SASTRI, and DAS JJ.--The powers given to the Provincial Government under ss. 10 and 12 of the Ordinance are only enabling and in terms are not compulsory, and there is nothing in these sections which makes it incumbent on the Government to set judicially in the matter of making an order for requisition under s. 3.
Held also, per MAHAJAN, and MUKIIERJIEA JJ.--(i) that the immunity granted by s. 306 of the Government of India Act, 1935, related to the Governor and not, to the Provincial Government and under the said Act the High Court of Bombay had jurisdiction to issue a writ of certiorari against the Provincial Government of Bombay; (ii) that the word "sue" in s. 176 of the said Act meant the enforcement of a claim or a civil right by means of legal proceedings and was wide enough to include an application for a writ of certiorari.
Rex v. Electricity Commissioners ([1924] 1 K.B. 171), Rex v. London Coounty Council ([1931] 9, K. B. 215), The Queen v. Corporation of Dublin ([1878] 2 L.R. Ir. 371), Frome United Breweries v. Bath Justices ([1996] A.C. 386), _Rex v.
Archbishop of Canterbury ([1944] 1 K.B. 281), Rex v. Woodhouse ([1906] 2 K.B. 501), King v. Postmaster General ([1928] 1 K.B. 291), _Rex v. Boycott and Others ([1939] 2 K.B. 651), Franklin v. Minister of Town and Country Planning ([1948] A.C. 87), In re Banwarilal Roy (48 C.W.N. 766), Jugilal Kamlapat v. Collector of Bombay (47 Bom. L.R.
1070), Hamabai Framji Petit v. Secretary of State for India (L. R, 42, I.A.
44),King v. Bradford ([1908] 1 K.B. 865), and other cases referred to.
APPELLATE JURISDICTION (CIVIL): Case No. III of 1949.
Appeal under section 205 of the Government of India Act, 1935, from the judgment of the Bombay High Court (Chagla C.J. and Tendolkar J.) dated the 4th day of:January, 1949, in Appeal No. 65 of A948.
M.C. Setalvad, Attorney-General for India and C.K. Daphtary,Advocate-General of Bombay (G.N. Joshi and M.M. Desai with them) for the appellant.
H.M. Seervai, R.J. Joshi and Rameshwar Nath, for respondents Nos. 1 (a) and 1 (b).
626 1950. September 15. The Court delivered judgment as follows:-KANIA C.J.--This is an appeal from a judgment of the High Court at Bombay and it relates to the power of the High Court to issue a writ of certiorari against the province of Bombay to quash an order to requisition certain premises.
The material facts, as stated in the judgment of the High Court, are these. One Abdul Hamid Ismail was, prior to the 29th of January, 1948, the tenant of the first floor of a building known as" Paradise" at Warden Road, Bombay, the landlord of which was one Dr. M.D. Vakil. On the 29th January, 1948, Ismail assigned his tenancy to the petitioner and two others, the son and brother's daughter's son of the petitioner (the respondent). All the three assignees were refugees from Sind. On the 4th February, 1948, the petitioner went into possession of the flat. On the 26th February, 1948, the Government of Bombay issued an order requisitioning the flat under section 3 of the Bombay Land Requisition Ordinance (V of 1947) which came into force on the 4th December, 1947 On the same day Dr. Vakil was informed that the Government had allotted the premises to Mrs. C. Dayaram who was also a refugee from Sind. Further orders were issued authorising an Inspector to take possession of the premises.
On the 4th March, 1948, the petitioner filed a petition for a writ of certiorari and n order under section 45 of the Specific Relief Act. The petition was heard by Mr. Justice Bhagwati who, iNter alia, granted the writ against the province of Bombay and the Secretary etc. On appeal the appellate Court confirmed the order as regards the issue of the writ of certiorari against the appellant, but cancelled the order as regards the other parties. The appellant has come on appeal to this Court.
The learned Attorney-General, on behalf of the appellant, urged the following three points for the Court's consideration:
(1)(a). Having regard to the provisions of Ordinance V of 1947, whether the order in question was quasi-judicial or only administrative ? 627 (b) Assuming the order to be of a quasi-judicial nature, whether it was a case of want or excess of jurisdiction, or it was only a case of mistake of law ? (2) Whether a writ of certiorari can be. issued against the appellant, which for its actions under the Ordinance, represents the Crown ? (3). Whether the order in question was made for a public purpose ? Sections 3, 4, 10 and 12 of the Ordinance which are material for the discussion in this appeal run as follows:
"& 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 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.
4. Requisition of vacant premises.--(1) If any premises situate in an area specified by the Provincial Government by notification in the Official Gazette are vacant on the date of such notification and whenever any such premises become vacant after such date either by the landlord ceasing to occupy the premises, or by the termination of a tenancy, or by the eviction of a tenant, or by the release of the premises. from requisition or otherwise, the landlord of such premises shall give intimation thereof in the prescribed form to an officer authorised in this behalf by the Provincial Government.
(2) Such intimation shall be given by post within one month of the date of such notification in the case of premises which are vacant on such date, and in other cases within seven days of the premises being vacant.
(3) A landlord shall not, without the permission of the Provincial Government, let the premises before 628 giving such intimation and for a period of one month from the date on which such intimation is given.
(4) Whether or not an intimation under subsection (1) is given, and notwithstanding anything contained in section 3, the Provincial Government may by order in writing requisition the premises and may use or deal with the premises in such manner as may appear to it to be expedient.
(5) Any landlord who fails to give such intimation within the period specified in sub-section (2) shall on conviction, be punishable with fine which may extend to one thousand rupees and any landlord who lets the premises in contravention of the provisions of sub section (8), shall, on conviction, be punishable with imprisonment which. may extend to three months or with fine or with both.
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 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 requisition or is intended to be requisitioned or continued under requisition.
(2) 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 prejudice 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 Ordinance." 629 On the first question, it was pointed out that under section 3 of the Ordinance the decision of the Provincial Government to requisition certain premises is clearly a matter of its opinion and therefore not liable to be tested by any objective standard. It was urged that the decision as to whether the premises were required for a public purpose was also a matter for the opinion of the Provincial Government, and not a matter for judicial investigation, and therefore the making of the order was in no sense a quasi-judicial decision, but an administrative or ministerial order. In this connection it was pointed out that unlike the Land Acquisition Act there was no provision in the Ordinance for issuing a notice, or for inquiries to be made, or for rival contentions to be examined and evidence to be weighed before a decision is arrived at. It was pointed out that if public purpose was outside the scope of the opinion of the Provincial Government, the section would have run: "If for any public purpose in the opinion of Government.... ........." A discussion about the distinction between judicial and quasi-judicial functions is not useful in this case as the point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order. In Regina (John M'Evoy) v. Dublin Corporation(1), May CJ. in dealing with this point observed as follows:--" It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, 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." This definition was approved by Lord Atkinson in Frome United Breweries Co. v.
Bath Justices (2) as the best (1) [1878] 2 L.R. Irish 371, 376. (2) [1926] A.C, 586.
630 definition of a judicial act as distinguished from an administrative act.
A distinction between the nature of the two acts has been noticed in a series of decisions. This Irish case is one of the very early decisions. On behalf of the respondent it was contended that as stated by Chief Justice May, whenever there is the determination of a fact which affects the rights of parties, that determination is a quasi-judicial decision and, if so, a writ of certiorari will lie against the body entrusted with the work of making such decision. As against this, it was pointed out that in several English cases emphasis is laid on the fact that the decision should be a judicial decision and the obligation to act judicially is to be found in the Act establishing the body which makes the decision. This point appears to have been brought out clearly in The King v. The Electricity Commissioners (1), where Lord Justice Atkin (as he then was) laid down the following test: "Wherever 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 jurisdiction of the King's Bench Division exercised in these' writs." This passage has been cited with approval in numerous subsequent decisions and accepted as laying down the correct test. A slightly more detailed examination of the distinction is found in The King v. London County Council (2), where Scrutton L.J. observed as follows :--"it is not necessary that it should be a court in the sense in which this court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari." Lord Justice Slesser in his judgment at page 243 separated the four conditions laid down by Atkin L.J. under which a rule (1) [1924] 1 K.B. 171. (2) [1931] 2 K.B. 215, 233.
631 certiorari may issue. They are: wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their. legal authority--a writ of certiorari may issue. He examined each of these conditions separately and came to the conclusion that the existence of each was necessary to determine the nature of the act in question. In. The Ryots of Garabandho and other villages v. Zamindar of Parlakimedi (1) Viscount Simon L.C., in delivering the judgment of the Board, accepted the test of these four conditions to determine the nature of the act. He stated: "This writ does not issue to correct purely executive acts but, on the other hand, its application is not narrowly limited to inferior 'courts' in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's superior courts and in particular the court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of King's Dominions and operates, within certain limits, in British India." In Franklin v. The Minister of Town and Country Planning (2), the points of distinction are again noticed.
The question arose in respect of the town and country planning undertaken under the relevant Statute on the order of the Minister following a public local inquiry under the provisions of the Act. The question was whether the order of the Minister was a quasi-judicial act or a purely. administrative one. Lord Thankerton pointed out that the duty was purely administrative but the Act prescribed certain methods or steps in the discharge of that duty. Before making the draft order, the Minister must have made elaborate inquiry into the matter and have consulted any local authorities who appear to him to be concerned and other departments (1) 70 I.A. 129. (2) [1948] A.C.
87, 102, 632 of the Government. The Minister was required to satisfy himself that it was a sound scheme before he took the serious step of issuing a draft order. For the purpose of inviting objections and where they were not withdrawn, of having a public inquiry to be held by someone other than the respondent to whom that person reports was for the further information of the respondent for the final consideration of the soundness of the scheme. He observed: "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 whether he has complied with the statutory directions to appoint a person to hold the public inquiry and to consider that person's report." Learned counsel for the respondent referred to several cases but in none of them the dicta of Atkin L.J. or the four conditions analysed by Slesser L.J. have been suggested, much less stated, to be not the correct tests.
The respondent's argument that whenever there is a determination of a fact which affects the rights of parties, the decision is quasijudicial, does not appear to be sound. The observations of May C.J., when properly read, included the judicial aspect of the determination in the words used by him. I am led to that conclusion because after the test of judicial duty of the body making the decision was expressly stated and emphasized by Atkin and Slesser L.JJ. in no subsequent decision it is even suggested that the dictum of May C.J. was different from the statement of law of the two Lords Justices or that the latter, in any way, required to be modified. The word "quasi-judicial" itself necessarily 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 distinguished 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 objective test and when that decision affects rights of someone, 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 determine 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 executive 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, crossexamine 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 procedure 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 correctly 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 Compensation 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 Secretary of State and was given powers and duties of a certifying 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 consulted 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 appropriate 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 different 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 examining doctor, which had to be followed by subsequent examination and inquiry, was considered subject to a writ of certiorari 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 distinguishes a quasi-judicial decision from an administrative act, it is next necessary to find out whether the action of Provincial Government permitted under section 3 of the Ordinance, read along with the scheme of the Ordinance, is a quasijudicial 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 therefore 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 requisition and decision about public purpose, form one composite opinion and the composite decision is the subjective opinion of the Provincial Government. The third alternative contention 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 administrative 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 succeed. As, in my opinion, the decision of the Provincial Government about public purpose is not a judicial or quasijudicial 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 judicially or quasi-judicially, in those cases where they act in excess of their legal authority. Such a writ is not available 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 requisitioning the premises in question is a judicial or quasijudicial 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 opportunity 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 formulae 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 expressed 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 discussion 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. Proceeding 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 Provincial 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 existence 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 requisition 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 specifically 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 purpose. 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 arguments, 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 authority as have often to take quick decisions and it will be going too far to say that in doing so they are discharging any judicial or quasi-judicial functions. 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 something 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 decide judicially? As I have already said, there is nothing in the Ordinance to show that the Provincial Government 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 expedient in the interests of public purpose to requisition certain 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 quasijudicially 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 investigate 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 opinion 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 legal position, a person whose right is said to have been affected can always go to a proper court and 'claim a declaration 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 opinion 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 accurately 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 particular 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 purpose is as completely left to the satisfaction of the executive 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 decision of that case turned on the construction of sections 4 and 6 of Ceylon Ordinance No. 3 of 1876, which run as follows:
"4. Whenever it shall appear to the Governor that land in any locality is likely to be needed for any public purpose, 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.
6. The Surveyor-General or other officer as authorized as aforesaid shall then make his report to the Governor, whether the possession of the land is needed for the purposes for which it appeared likely to be needed as aforesaid. 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 Ordinance 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 purpose. 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 head note 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. Commissioners of Works and Others (3) may be taken to be a specimen. 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 expedient 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 expedient 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 provisions 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 between 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 dependent 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 quasijudicial 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 judicially 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 Government 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 certiorari can issue, that no writ of certiorari lies against the Provincial Government, that the High Court has no jurisdiction 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 succinctly 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 jurisdiction 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 certiorari can issue, (1) there must be a body of persons, (2) it must have legal authority to determine questions affecting 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, observed 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
