Shr1 Radeshyam Khare & ANR Vs. The State of Madhya Pradesh & Ors [1958] INSC 84 (30 September 1958)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
DAS, S.K.
KAPUR, J.L.
SUBBARAO, K.
CITATION: 1959 AIR 107 1959 SCR Supl. (1)1440
CITATOR INFO :
F 1962 SC1110 (8) R 1965 SC1518 (9,10) R 1965 SC1578 (16) OPN 1967 SC1353 (5) RF 1967 SC1507 (6) RF 1973 SC2237 (3)
ACT:
Municipality Appointment of Executive Officer by State Government-If an administrative act-C. P. and Berar Municipalities Act, 1922 (Act II of 1922), ss. 53A and 57.
HEADNOTE:
The main point for decision in this appeal by the Municipal Committee of Dhamtari and its President was, whether in appointing an Executive Officer in exercise of its powers under s. 53A of the C. P. and Berar Municipalities Act, 1922, the State Government acted in a judicial capacity or in an administrative one Complaints having been made against the appellants, the additional Deputy Collector was directed to hold an enquiry and on his report the State Government, by a notification under that section, appointed an Executive Officer of the Municipal Committee for 18 months with specified powers and duties. The appellants were given notice of the said enquiry, filed objections 1441 and the President was personally present on some occasions during the enquiry. The notification charged the appellants with incompetency as well as abuse of power. Against that notification the appellants moved the High Court under Art.
226, of the Constitution for a writ of certiorari quashing the same, but their application was rejected by the judge sitting singly. An appeal under the Letters Patent against his decision was summarily dismissed. It was contended before this Court on behalf of the appellants that, (1) although the notification purported to be one under s. 53A of the Act, it was in effect and reality one under s. 57 Of the Act, that (2) it was, therefore, incumbent on the Government under s. 57(5) of the Act to afford the appellants an opportunity to furnish explanation and that (3) even if the notification was one under s. 53A of the Act, the Government was bound by the rules of natural justice to give the appellants an opportunity to defend themselves.
Held (per curiam), that ss. 53A and 57 of the C. P. and Berar Municipalities Act, 1922, differed materially in their scope and effect, but it was not obligatory under either of them for the Government to take any action at all. Although a finding of incompetency of the Municipal Committee was a condition precedent to action under both the sections, the Government was free to choose its remedy as the occasion demanded and it could not be contended that because a notification made under s. 53A of the Act, along with a finding of incompetency, contained some instances of abuse of power as well, it must be held to have been made under S.
57 of the Act.
Nor could the vesting of power in the Executive Officer by the notification, however substantial in character, be said, in effect and reality, to amount to a dissolution of the Municipal Committee under S. 57 Of the Act.
Per Das C. T. and Kapur J.--The real test whether the State Government functioned in a quasi-judicial capacity or in an administrative capacity in exercising its powers under S. 53A of the Act was whether the statute required it to act judicially either expressly or by implication. The Act contained no express provision to that effect, nor could the determination of the fact of incompetency-as a condition precedent to any action under that section, by itself, carry such an implication. In making the notification under S. 53A of the Act, therefore, the Government functioned in an administrative capacity and not in a quasi-judicial one.
Even so, by the enquiry held, the State Government afforded the appellants ample opportunity to defend themselves and there could hardly be any ground for complaint.
Province Of Bombay v. Kusaldas S. Advani, [1950] S.C.R.
621, Rex v. Electricity Commissioners, [1924] 1 K.B. 171, Rex v. London County Council, [1913] 2 K. B. 215, R. v. Legislative Committee Of the Church Assembly, (1928) 1 K.B.
411 and Nakkuda Ali's Case, 1951) A.C. 66, referred to.
1442 Per Bhagwati J.-Since the enquiry held in this case fully satisfied the requirements of natural justice, it was unnecessary to determine for the purpose of this case whether the State r Government in acting under s. 53A of the Act did so in a quasi-judicial capacity or in an administrative one.
Per S. K. Das J.-If the question was one of compliance with the rules of natural justice, the enquiry held in the present case could hardly be said to have complied with such rules; but since the State Government in acting under s. 53A of the Act had only to consider policy and expediency and did at no stage have any form of lis before it, its action there under was purley of an administrative character not amenable to a writ of certiorari.
R.v. Manchester Legal Aid Committee, (1952) 2 Q. B. 413, applied.
Per Subba Rao J.-On a proper appreciation of the criteria laid down by s. 53A of the Act itself, there could be no doubt that it imposed a duty on the State Government to act judicially in ascertaining the fact of the incompetency of the Municipal Committee to perform its duties. It is clear that the determination of such a jurisdictional fact could not have been left to the subjective satisfaction of the Government but was intended to be arrived at objectively and, therefore, it was incumbent upon the Government to give a reasonable opportunity to the appellants to explain the charge levelled against them. Such enquiry as was held in the instant case could hardly take the place of reasonable opportunity to be given by the Government for the proposed action under s. 53A of the Act.
Rex v. The Electricity Commissioners, (1924) i K. B. 171, Province of Bombay v. Kusaldas S. Advani, [1950] S.C.R. 621 and R. v. Manchester Legal Aid Committee, (1952) 2 Q.B. 413, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 301 of 1958.
Appeal by special leave from the judgment and order dated February 21, 1958, of the Madhya Pradesh High Court at Jabalpur in Letters Patent Appeal No. 22 of 1958, against the order dated February 20, 1958, of the said High Court in Misc. Petition No. 266 of 1957.
M.K. Nambiyar, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellants.
M. Adhikari, Advocate-General, Madhya Pradesh and 1. N. Shroff, for the respondents.
1443 1958. September 30. The following Judgments were delivered:
DAS C.J.-There are two appellants in this appeal. The second appellant is the Municipal Committee of Dhamtari constituted under the C. P. and Berar Municipalities Act, 1922 (Act 11 of 1922) and the first appellant is its President having been elected as such on July 10, 1956. He assumed charge of his office as President on July 27, 1956.
It may be mentioned that he was returned as a Congress candidate but has since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate.
It appears that there are two factions in the Municipal Committee. The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956, deflected importing within the municipal limits certain cloth without paying the octroi duty. Dhurmal Daga, on the other hand, alleged that the first appellant was guilty of grave mismanagement of the affairs of the Municipal Committee and went on hunger strike for securing the appointment of a committee to enquire into the misconduct of the first appellant. Copies of the leaflets containing the demands and charges which are said to have been widely distributed are annexures I and 11 to the present petition. It appears that several persons and firms also preferred charges against the first appellant, the President of the Municipal Committee. The Collector, Raipur, personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would look into the matter. The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the complaints of maladministration of the affairs of the Municipal Committee. By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956, the said N. R. Rana called upon the first appellant as tile President of the second appellant to give detailed explanation of each complaint, a list of which was enclosed therewith. A copy of that memorandum along with its 22 enclosures 1444 is annexed to the petition and marked 111. Annexures IV and V to the petition are copies of the detailed report on the objections and the reply to the charges made against the Municipal Committee submitted from the office of the Municipal Committee by the first appellant as the President of the Municipal Committee. The Additional Deputy Collector thereafter held the enquiry. The High Court states that it had " gone through the materials on which the State Government based its action on enquiry into the charges levelled against the Municipal Committee and that the records of the enquiry showed that on some occasions the petitioner was present during the enquiry ". There is no suggestion that the appellants wanted an opportunity to adduce any evidence or were prevented from doing so or that they were in any way hampered in their defence. Presumably the Additional Deputy Collector had made a report which in due course must have been forwarded to the State Government.
On November 18, 1957, a notification was published in the Official Gazette whereby the State Government, in exercise of the powers conferred on it by s. 53-A of the C. P. & Berar Municipalities Act, 1922, appointed one Shri B. P. Jain, the second respondent before us, as the Executive Officer of the Municipal Committee, Dhamtari, for a period of 18 months with certain powers as therein mentioned. A copy of that notification has been annexed to the petition and marked VIII but as the major part of the arguments canvassed before us turns on the contents of that notification the same is reproduced below in extenso:
" Dated, Bhopal, the 18th November, 1957, No. 9262/11538-UXVIII-Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), inasmuch as it(a)granted grain and building advances to the employees without prior sanction and no efforts were made for their recovery, (b) showed carelessness in cases of embezzlement 1445 of the employees and did not report such cases to Government, (c)failed to control the President who issued orders in cases in which he had no authority (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed unconcerned persons to interfere in its working, (f)showed partiality in the appointments and dismissals of the employees, further such appointments and dismissals were made against rules, (g)delayed the constitution of the committee and the framing of budget, (h) misused the trucks of the municipality, (i) failed to recover the lease money, (j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi duty is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any charge, similarly distributed the manure free of cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money of the Municipal Committee without any authority, (m)spent huge amount on the maintenance of the roads and drainage but their condition has remained unsatisfactory, (n)failed to give. copies of the documents as allowed under rules, also failed to allow its members to inspect the records as is permissible under rules, (o)failed to invite tenders of purchase of articles, and whereas, the State Government considers that a general improvement in the administration of the Municipality is likely to be secured by the appointment of a servant of the Government as Executive Officer of the Committee.
Now, therefore, in exercise of the powers conferred by section 53-A of the Central Provinces and Berar 1446 Municipalities Act, 1922 (11 of 1922), the State Government are pleased to appoint Shri B. P. Jain, Deputy Collector, as executive Officer of the Municipal Committee, Dhamtari, for a period of eighteen months from the date of his taking overcharge and with reference to sub-section (3) thereof are further pleased to direct that the Executive Officer shall exercise and perform the following powers and duties of the Committee to the exclusion of the Committee, President, Vice-President or Secretary, under the provisions of the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), namely:Chapter 111. Appointment of Officers and servants-Sections 25, 26 and 28.
Chapter IV. Procedure in Committee meeting Section 31.
Chapter V. Property, contract and liabilities Sections 37 to 45.
Chapter VI. Duties of Committee-Sections 50 and 51.
Chapter VIII. The municipal fund-whole.
Chapter IX. Imposition, assessment and collection of taxeswhole.
Chapter X. Municipal Budgets and accounts whole.
Chapter XI. Powers to regulate streets and buildingsSections 90 to 94, 96, 98, 99, 103 and 104.
Chapter XII. Powers to prevent disease and public nuisanceSections 117, 118(1), 119 and 132.
Chapter XVIII. Offences, practice and procedure-Sections 218-223.
Chapter XIX. Special provisions for recovery of taxeswhole.
The Executive officer shall exercise general supervising powers in respect of all matters covered by the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922).
In Hindi (By order of the Governor of Madhya Pradesh) S. S. Joshi, Deputy Secretary." 1447 On December 21, 1957, the two appellants before us presented before the Madhya Pradesh High Court the writ petition out of which the present appeal has arisen and on January 11, 1958, obtained an order staying the operation of the order of appointment of the Executive Officer. The writ petition was dismissed on February 20, 1958. There was a Letters Patent Appeal which was dismissed in limine on February 21, 1958. The application for -certificate under Arts. 132 and 133 was refused on March 21, 1958. The present appellants applied for and on April 1, 1958, obtained from this Court special leave to appeal from the judgment of the Madhya Pradesh High Court. The interim stay order made by this Court was eventually vacated on May 13, 1958. The appeal has now come up before us for final disposal.
Shri M. K. Nambiar, appearing in support of this appeal, urged three points, namely (i)that though the Notification purports to have been made in exercise of the power,,; conferred on the State Government by s. 53-A, in substance and in reality it has been made under s. 57 of the Act;
(ii)that if the Notification is held to be one made under s. 57 it is ultra vires and bad since the statutory requirements of affording reasonable opportunity to explain has not been complied with;
(iii)that even if the impugned Notification be held to come within s. 53-A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving any opportunity to the appellants to defend themselves.
There was a charge of mala fide made against the State Government founded on the fact that the first appellant's leaving the Congress party had resulted in ill-will towards the first appellant of that -party which was the ruling party in the State Government, but as that charge has not been pressed before us nothing further need be said about it. I now proceed to deal with the three points formulated above by learned counsel for the appellants.
184 1448 Re. (i) and (ii): These two points are correlated and may be conveniedtly dealt with together. The argument in support of them is developed in two ways. In the first place it is said that the grounds set forth in the impugned notification clearly indicate that in substance and in reality it has been issued rather under s. 57 of the Act than under s. 53A. In order to appreciate this argument it is necessary to set out the two sections of the C. P. and Berar Municipalities Act, 1922 in extenso:
" 53-A. (1) If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may, by an order stating the reasons there for published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.
(2)Any executive officer appointed under subsection (1) shall be deemed to be an officer lent to the committee by Government under sub-section (3) of section 25.
(3)When under subsection (1) an executive officer is appointed for any committee, the State Government shall determine from time to time which powers, duties and functions of the committee, president, vice-president or secretary under this Act or any rule or byelaw made there under shall be exercised and performed by such officer, in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice-president or secretary.
(4) The secretary of the committee shall be subordinate to the executive officer.
(5) The executive officer shall have the right to attend all meetings of the committee and any joint committee or sub-committee and to take part in the discussion so as to make an explanation in regard to 1449 the subject under discussion, but shall not move, second, or vote on any resolution or other motion. " " 57. (1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons there for published in the Official Gazette, dissolve such committee and may order a fresh election to take place.
(2)If after fresh election the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons there for published in the Official Gazette, declare the committee to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and supersede it for a period to be specified in the order.
(3)If a committee is so dissolved or superseded, the following consequences shall ensue :
(a)all members of the committee shall, as from the date of the order, vacate their offices as such members;
(b)all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person or persons as the State (Government may appoint in that behalf;
(c) all property vested in it shall until the committee is reconstituted vest in the State Government.
(4)On the expiration of the period of supersession specified in the order, the committee shall be reconstituted, and the persons who vacated their offices under subsection (3), clause (a), shall not, by reason solely of such supersession be deemed disqualified for being members.
(5) No order under sub-section (1) or subsection (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation.
(6) Any person or persons appointed by the State 1450 Government to exercise and perform the powers and duties of a dissolved or superseded committee may receive payment, if the State Government so directs, for his or their services from the municipal fund." Learned counsel for the appellants points out that action may be taken under s. 53-A " if a committee is not competent to perform the duties imposed on it ............... and the State Government considers that a general improvement in the administration of the municipality is likely to be secured Whereas under s. 57 action can be taken not only " if a committee is not competent to perform or persistently makes default in the performance of the duties imposed on it or but also if the committee exceeds or abuses its powers to a grave extent It is pointed out that in case of incompetency action can be taken either under s. 53-A or s. 57 but in case of abuse of power action can be taken only under s. 57. Reference is then made to the grounds enumerated in the notification itself and it is argued that except perhaps grounds a, b, c and g which may be indicative of incompetency, the other grounds, which are, by far, greater in number, obviously constitute abuse of powers and from this circumstance the conclusion is sought to be drawn that in substance and in reality the impugned notification must have been made under s. 57 and that that being so the notification cannot be sustained because of the non-compliance with the provisions of sub-s. (5) of s. 57 which expressly lay down that no order tinder sub-s. (1) or (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. I am not persuaded to uphold this argument.
In the first place it has to be remembered that, the sections under consideration only confer certain powers on the State Government but that the latter is not bound to take any action under either of them. In the next place it should be noted that the two sections differ materially in their scope and effect. Under s. 53-A the State Government may only appoint a servant of the Government as the Executive Officer of the committee and may determine, from time to time, 1451 which powers and duties and functions of the committee, its president, vice-president or secretary shall be exercised and performed by such officer and indicate whether they should be exercised and performed in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice-president or secretary. The wording of s. 53-A makes it quite clear that the action that may be taken there under is to be effective for a temporary duration not exceeding 18 months and the purpose of taking such action is to ensure the proper performance and discharge of only certain powers, duties and functions under the Act. The section does not, in terms, affect, either legally or factually, the existence of the committee, its president, vice president or the secretary. Section 57, however, authorises the State Government, in the circumstances mentioned in the opening part of that section, to dissolve the committee itself and order a fresh election to take place so that the committee as a legal entity ceases to exist and all the sitting members of the committee become functi officio. If after such fresh election the same situation prevails, then that section further authorises the State Government to declare the committee to be incompetent or in default or to have exceeded or abused its power as the case may be and to supersede it for such period (not limited by the section) as may be specified in the order. The effect of an order made under s. 57 is, therefore, extremely drastic and puts an end to the very existence of the committee itself and, in view of the grave nature of the consequences that will ensue, the legislature presumably thought that some protection should be given to the committee before such a drastic action was taken and accordingly it provided, by sub-s. (5) of that section, that no order should be passed until reasonable opportunity had been given to the committee to furnish an explanation a provision which clearly indicates that action under s. 57 can only be taken after bearing and considering all the explanations furnished by or on behalf of the committee.
The legislature did not think fit to provide a similar safeguard in s. 53A presumably because 1452 the order under the last mentioned section was of a temporary duration, was not very drastic and did not threaten the very existence of the committee. A cursory reading of the two sections will also indicate that the conditions precedent to the exercise of the powers under both sections overlap to some extent, namely, that action can be taken under both if the committee "is not competent to perform the duties imposed on it............ To the extent that the requirements of the two sections overlap the State Government has the option of taking steps under one section or the other according to its own assessment of the exigencies of the situation. The position, therefore, is that if a committee is not competent to perform the duties imposed on it the State Government has to make up its mind as to whether it should take any action all and, if it thinks that action should be taken, then it has further to decide for itself as to which of the two sections it would act under. If the State Government considers that the incompetency does not run to a grave extent and the exigencies of the situation may be adequately met by appointing an Executive Officer for a short period not exceeding 18 months with certain powers to be exercised by him, either in addition to or in exclusion of their exercise by the committee, the president, vice-president or the secretary, the State Government may properly take action under s. 53-A. On the other hand if the State Government considers, having regard to all the circumstances of the case, that the incompetency is much too grave to permit the committee, its president, vice-president or the secretary to function at all, it may take action under s. 57 and dissolve the committee and direct fresh election to take place. In other words incompetency on the part of the committee gives to the State Government an option to apply one of two remedies under the Act, if, that is to say, it considers it necessary to take action at all.
What, then, is the position here ? Certain charges had been made in writing against the committee and its president which were forwarded to the president with a request to submit explanations in detail. The 1453 president, acting in his official capacity, gave detailed explanations in writing and sent the same officially from the office of the municipal committee to the Additional Deputy Collector who was deputed by the Collector to hold the enquiry. The Additional Deputy Collector held the enquiry during which the president appeared in person on several days and came to certain findings and presumably made his report which in due course must have reached the ;State Government. The State Government apparently accepted such of those findings as have been set out in the notification it-self Even according to learned counsel for the appellants some of those findings amount only to incompetency and the rest, he contends, amount to abuse of power. I need not pause to Consider whether the abuse of power thus found was of a grave nature so as to fall within s. 57 as such or was of a minor character so as to be evidence of mere incompetency Taking the position to be as contended by learned counsel for the appellants the position was that, as a result of the enquiry, the State Government found two things against, the appellant committee, namely, (i) that it was guilty of incompetency and (ii) that it was also guilty of certain abuses of power. I have already stated that the State Government was not obliged to take any action at all either under s. 53-A or under s. 57. If the State Government considered that it was necessary to take action, it was entirely for the State Government to consider whether it would take action for incompetency or for abuse of power. In the present case the State Government might have thought that the abuse of power so found was not of a very grave nature but evidenced only incompetency. Surely a committee which abused its power might also have been reasonably regarded as incompetent to perform the duties imposed on it That apart, supposing the committee was guilty of incompetency as well as of some abuses, what was there to prevent the State Government, as a matter of policy, to take action for incompetency under s. 53-A ? The mere inclusion of the findings of abuse of power in the catalogue of the Committee's 1454 misdeeds does not obliterate the findings on incompetency.
I see nothing wrong in the State Government telling the committee: " You have been guilty of incompetency as well as of abuse of power; but I shall not, just at this moment, take drastic action of' dissolving you outright, but shall be content to take action and appoint an Executive officer for 18 months and confer some power on him under s. 53-A".
In my judgment the State Government was well within its tights, in exercise of its option, to take action, under s.
53-A as it has in terms purported to do. To say that because some of the findings amount to abuse of power the State Government must act under s. 57 is to deprive it of its discretion which the Act undoubtedly confers on it. In my view the fact that the impugned notification records, apart from the findings of incompetency, certain findings of abuse of power, does not lead to the conclusion, as contended for the appellants, that the State Government had taken action under s. 57 and not under s. 53-A although, in terms, it says it acted under the last mentioned section.
Learned counsel for the appellants in support of his contention that the impugned notification was really made under s. 57 of the Act, refers us to the, powers and duties conferred on the executive Officer thereby appointed to be exercised and performed by him to the exclusion of the committee, its president, vice-president, or the secretary.
His argument is that although the municipal committee is not ostensibly dissolved, it is in effect and in reality so dissolved, for the substance of the powers of the committee, its president, vice-president or the secretary has been taken away from them leaving only a semblance of power which is nothing but mere husk and the conclusion urged by learned counsel is that the impugned notification must be regarded as having been made under s. 57. In the first place, s. 57 does not contemplate the appointment of any executive Officer or the conferment of any power on him, while such appointment and conferment of power is directly contemplated by s. 53-A. In the second place the legal 1455 existence of the municipal committee and the status of its members and its president, vice-president or the secretary have not been impaired at all. In the eye of the law the municipal committee still exists and along with it the members of the committee, the president, vice-president and the secretary still hold their respective offices. These features clearly militate against the suggestion that action has been taken under s. 57. Learned counsel says that we must look beyond mere form and get to the substance of the matter. There can be no doubt that most of the important powers have been taken away from the committee, its president, vice-president and the secretary, but that may well be due to the degree of gravity of the incompetency found or inferred from the other findings. Further, a cursory perusal of the Act and of the notification will show that various other powers and duties have not been taken away from the committee or conferred on the Executive Officer. Thus the powers of the committee under ss. 128, 130, 131, 133 to 141 and 144, 145 arid 147 to 149 are still vested in and are exercisable by the committee. Likewise the powers under ss. 120, 121, 122, 123 to 127, 129, 150, 152 to 160 to 162, 163, 163A and 168 are still vested in and exercisable by the president. These powers that are still left with the committee or the president can hardly or with propriety be described as mere husks. It should not be overlooked that the suggestion that the real power has been taken away leaving only a semblance of it, is really ail argument in aid of a charge of mala fides, but, as here-in before stated, the charge of mala fides or fraud on the part of the State Government has not been persisted in or pressed before us. In my judgment, therefore, there is no warrant for contending that the impugned notification, judged by its eftect, must be regarded as having been made under s. 57 of the Act. In this view of the matter the argument of invalidity of the action founded on non-compliance with the requirements of sub-s. (5) of s. 57 does not arise for consideration at all.
I85 1456 Re. (iii): In the writ application, out of which this appeal arises, the principal prayer of the appellants is for a writ in the nature of certiorari for quashing the order passed by the State Government on November 18, 1957. Tile next prayer which is for a writ of mandamus restraining the respondents from giving effect to the impugned order is clearly consequential on or ancillary to the main prayer. The last prayer is in the nature of the usual prayer for further or other reliefs. Therefore the present petition is essentially one for the issue of a writ of certiorari. The writ of certiorari is a well-known ancient high prerogative writ that used to be issued by the Courts of the King's Bench to correct the errors of the inferior Courts strictly so called. Gradually the scope of these writs came to be enlarged so as to enable the Superior Courts to exercise control over various bodies which were not, strictly speaking, Courts at all but which were, by statute, vested with powers and duties that resembles those that were vested in the ordinary inferior Courts. The law is now well-settled that a writ of certiorari will lie to control such a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, or commits any error apparent on the face of the records, provided that, on a true construction of the statute creating such body, it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. It is equally ",well-settled that certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions. It is, therefore, necessary to ascertain the true nature of the functions entrusted to and exercised by the State Government under s. 53-A of the Act.
In Province of Bombay v. Kusaldas S. Advani this Court has discussed at considerable length the nature of the two kinds of act, judicial and administrative, and has laid down certain tests for ascertaining whether the act of a statutory body is a quasijudicial actor an administrative act. It will, therefore, (1) [1950] S.C.R, 621.
1457 suffice to refer to the celebrated definition of a quasi-judicial body given by Atkin L. J. as he then was, in Rex v.
Electricity Commissioners and which now holds the field. It runs as follows " Whenever any body of persons having legal authority to determine questions affecting 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 Beneh -Division exercised in these writs." This definition was accepted as correct in Rex v. London Count?/ Council (2 ) and many subsequent cases both in England and in this country. It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be said to be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin L. J. Therefore in considering whether in taking action under s. 53-A the State Government is to be regarded as functioning as a quasi-judicial body or a mere administrative body it has to be ascertained whether the statute has expressly or impliedly imposed upon the State Government a duty to act judicially.
Relying on paragraphs 114 and 115 of Halsbury's Laws of England, 3rd Edition, Volume 11, at pages 5558 and citing the case of R. v. Manchester Legal Aid Committee (1), learned counsel for the appellants contends that where a statute requires a decision to be arrived at purely from the point of view of policy or (1) [1924] 1 K.B. 171.
(3) [1952] 2 (2) [1931] 2 K.B. 215. 413.
1458 expediency the authority is under no duty to act judicially.
He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in paragraph 115 of Halsbury's Laws of England, Volume 1 1, at page 57, the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exbaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The principles deducible from the various judicial decisions considered by this Court in the Province of Bombay v. K. S. Advani (1) at page 725 were thus formulated, namely:
" (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasijudicial act; and (ii)that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially." It is clear that in the present case there is no question of any contest between two contending parties which the State Government is, under s. 53-A, to decide and, (1)[1950] S.C.R. 621.
1459 therefore, there is no " lis " in the sense in which that word is understood generally, and the principle referred to under the first heading has no application. We have, therefore, to consider whether the case comes within the principle enunciated under the second head, namely, whether the C. P. and Berar Municipalities Act, 1922, requires the State Government to act judicially when taking action under s. 53-A.
Learned counsel for the appellant draws our attention to the language in which s. 53-A is couched. He concedes that the ultimate order under that section is purely discretionary, that is to say the State Government is not obliged to take any action tinder the section. It may make an order Tender the section or it may not according as it thinks fit. But in case the State Government chooses to act under the section, it can only do so if the conditions therein laid down are fulfilled. A cursory reading of s. 53-A will show that there are two prerequisites to be satisfied before the State Government can take action under s. 53-A, namely, (1) that the municipal committee is not competent to perform the duties imposed on it and (2) that the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the committee. When both these conditions are fulfilled, then and then only may the State Government take action and make an order under s. 53-A. Of the two conditions the second one, by the very language in which it is expressed, is left entirely a matter for the State Government to consider, for it depends entirely on the view of its own duty and responsibility that the State Government may take on a consideration of the situation arising before it. In other words, the statute has left that matter to the subjective determination of the State Government. The first requisite, however, is an objective fact, namely, whether the committee is or is not competent to perform the duties imposed on it. The determination of that fact, it is pointed out, has not been left to the subjective determination by 1460 the State Government. Learned counsel for the appellants urges that if it were intended to leave the determination of this fact of incompetency also to the subjective opinion of the State Government, the section would have been framed otherwise. It would have said something like this: " If the State Government considers that a committee is not competent to perform the duties and that the general improvement in the administration of the municipalities is likely to be secured by This the Legislature has not done and has, thus, clearly evinced an intention not to leave it to the ipse dixit of State Government. Section 53-A, it is pointed out, differs materially in this respect from s. 3 of the Bombay Land Requisition Ordinance (V of 1947) which was considered by this Court in Kusaldas Advani's casc (1). That section of the Bombay ordinance opened with the words: " If in the opinion of the Provincial Government which were taken as indicative of the Legislature's intention to leave the determination of the existence of all the conditions precedent entirely to the subjective opinion of the Provincial Government so as to make the action a purely administrative one. The argument is that the first requirement is the finding of a fact which may be called a jurisdictional fact, so that the power under s. 53-A can only be exercised when that jurisdictional fact is established to exist. The determination of the existence of that jurisdictional fact, it is contended, is not left to the subjective opinion of the State Government and that although the ultimate act is an administrative one the State Government must at the preliminary stage of determining the jurisdictional fact act judicially and determine it objectively, that is to say, in a quasi-judicialay. It is assumed that whenever there has to be a determination of a fact which affects the rights of the parties, the decision must be a quasijudicial decision, so as to be liable to be corrected by a writ of certiorari. In Advani's case (1) Kania C. J. with A hom Patanjali Sastri J. agreed, said at page 632 :
" The respondent's argument that whenever there (1) [1950] S.C.R. 621.
1461 is a determination of a fact which affects the rights of parties, the decision is quasi-judicial, does not appear to be sound." Further down the learned Chief Justice said determined by an objective test and when that decision affects rights of someone, the decision or act is quasijudicial. 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 in 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." To the like effect is the following observation of Fazl Ali J. in the same case at page 642:
" 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: 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." Dealing with the essential characteristics of a quasijudicial act as opposed to an administrative act, I said at page 719:
features. Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or 1462 quasi-judicial function has to do. Both have to act in good faith. A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as a quasijudicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition or contingency which may involve a question of fact, but the question of fulfilment of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the several Ordinances, regulations and enactments considered and construed in the several cases referred to above. The first two items of the definition given by Atkin L. J. may be equally applicable to an administrative act.
The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L. J.'s definition, namely, the duty to act judicially." I found support for my opinion on the following passage occurring in the judgment of Lord Hewart C. J. in B. v. Legislative Committee of the Church Assembly (1):
" In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially." The above passage was quoted with approval by Lord Radcliffe in delivering the judgment of the Privy Council in Nakkuda Ali's case I now proceed to apply the principles discussed above to the facts of the present case. The simple fact that the incompetency of the committee goes to the root of the jurisdiction of the State Government to exercise its power under s. 53-A does not require that that fact must be determined judicially. The sole question is, does the statute require the State Government to act judicially.
There need not be any express provision that the State Government must act judicially. It will be sufficient if this duty may be (1) [1928] 1 K.B. 411, 415.
(2) [1951] A.C. 66.
1463 implied from the provisions of the statute. The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself does not carry that implication. There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined. I find nothing in s. 53-A which in terms imposes any duty on the State Government to act judicially. No form of procedure is laid down or even referred to from which such a duty could be inferred. On the contrary, one finds a significant omission of any provision like that embodied in subs. (5) of s. 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. It is also material to note that whereas an order under s. 57 is of a permanent character the one to be made under s. 53-A is to be of a limited duration, i.e., for such period not exceeding IS months as may be specified in such order.
Further, s. 53-A contemplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by s. 53-A, for a judicial act will be subject to the powers of superintendence of the superior courts and the operation of the order under s. 53-A may be postponed, as it has been done in this very case, by taking, the matter from court to court until it is set at rest by this Court. In this connection reference may also be made to s. 25-A of the Act which authorises the State Government to require the committee to appoint, inter alia, a Chief Executive Officer.
If such committee fails to comply with the requisition within the period specified, the State Government may, under sub-s. (3), if it thinks fit, appoint such officer and fix his pay and allowance. Sub-section (4) authorises the State Government to require the committee to delegate to the officer so appointed such powers, duties and functions of the committee, its president, vice-president or the secretary under this Act or any rule or bye-law made thereunder as may be specified in such requisition and if the committee fails to comply with such requisition within a reasonable time, the State Government 186 1464 may determine the powers, duties and functions which shall be exercised and performed by such officer in addition to or to the exclusion of their exercise or performance by committee, its president, vice-president or secretary.
Nobody will say that the State Government must exercise the powers under s. 25-A after holding any judicial enquiry.
The only difference in the language of s. 25-A and s. 53-A both of which were inserted in the Act in 1947 is that action can be taken under s. 53-A only when the committee is incompetent to perform the duties imposed on it a fact the determination of which is not in so many words left to the subjective opinion of the State Government, whereas action can be taken under s. 25-A on the satisfaction of the State Government as to certain facts which is, in terms, left to the subjective determination of the State Government. If, as I have said, the determination of a jurisdictional fact is not by itself sufficient to indicate that, it has to be done judicially, there is nothing else in s. 53-A or in any other section of the Act which will lead to the conclusion that the State Government must act judicially. The only other thing strongly relied on by learned counsel for the appellants is that the State Government may exercise its power under s. 53-A " by an order stating reasons there for published in the Gazette ". The requirement that the State Government must give reasons for the order it makes does not necessarily require it to record a judgment judicially arrived at. The legislature might well have thought that public policy required that the State Government entrusted with large administrative power should record its reasons for exercising the same so as to allay any misgivings that may arise in the mind of the public. In my judgment, the action taken by the State Government under s. 53-A is not a judicial or quasi-judicial act but is an administrative act.
Learned counsel for the appellants relied on the case of Capel v. Child (1). That decision clearly went upon the construction of the statute that came up for consideration.
The fact that action could be taken under that statute on affidavits (1) 2 Cr. & Jr, 558; 37 R. R. 761.
1465 was construed as a clear indication that the Bishop had to arrive at a decision as to the negligence of the Vicar on hearing evidence adduced before it by affidavit which led to the next conclusion that the Vicar must be given an opportunity of being heard and of adducing evidence in his own defence. From this circumstance it was inferred that even when the Bishop acted on his knowledge of fact he must also proceed, judicially, for the two modes of procedure were treated on the same footing by the section itself. As I have said, there is nothing in s. 53-A or any other section which may lead us to infer a duty to proceed judicially as was done in that case. On the contrary there are indications leading to a different conclusion.
To say that action to be taken under s. 53-A is an administrative action is not to say that the State Government has not to observe the ordinary rules of fair play. Reference to the observation made by Fortesque J. in Dr. Bentley's case about God asking Adam and Eve whether they had eaten the forbidden fruit appearing in the judgment of Byles J. in Cooper v. The Wandsworth Board of Works (1) is apposite. The decision in the last mentioned case clearly establishes that in some cases it may be necessary to give an opportunity to a party to have his say before at) administrative action is taken against him. But that is quite different from the well-ordered procedure involving notice and opportunity of hearing necessary to be followed before a quasi-judicial action, open to correction by a superior court by means of a writ, of certiorari, can be taken. The difference lies in the manner and mode of the two procedures. For the breach of the rules of fair play in taking administrative action a writ of certiorari will not lie.
I have already recounted the events and proceedings that preceded the actual passing of the order under s. 53-A. If the action taken tinder that section is to be regarded as an administrative action, as I hold it should be, then I have no doubt that the appellants have had more than fair play.
It is said that the State Government did not hold any enquiry before (1) [1863] 14 C.B. (N.S.) 180; 143 E. R. 414.
1466 making the order and that, therefore, it can-not be said that the appellants had an opportunity to defend themselves against an order of this kind. I do not consider that there is any substance in this contention. If the State Government wanted to hold any enquiry it would do so through some of its officers. Who would be more appropriate and competent to hold the enquiry except the officers on the spot ? The Additional Deputy Collector is obviously the person to whom the duty of enquiry could properly be entrusted. All the charges levelled against the appellants were forwarded to them, and they submitted explanation. The first appellant, who is the President, personally attended many of the sittings. There is no suggestion that they had been prevented from adducing evidence in their own defence, The enquiry was held into what had been alleged against their conduct. It was surely not a purposeless enquiry. As a result of the enquiry certain findings were arrived at which were accepted by the State Government and an order was made under s. 53-A. I do not see what grievance the appellants can possibly have. In my judgment there has been no remissness on the part of the State Government.
For reasons stated above I would dismiss this appeal.
BHAGWATI J.-.I also agree that the appeal should be dismissed with costs but would like to add a few words of my own.
I have had the benefit of reading the judgments prepared by my Lord the Chief Justice, Kapur J. and Subba Rao J. I agree with the reasoning and the conclusions reached in those judgments in regard to points Nos. (i) & (ii), viz., (i)that though the Notification purports to have been made in exercise of the powers conferred on the State Government by s. 53-A, in substance and in reality it has been made under s. 57 of the Act; and, (ii)that if the Notification is held to be one made under s. 57 it is ultra vires and bad since the statutory requirement of affording reasonable opportunity to explain has not been complied with.
1467 In regard to point No. (iii), viz., (iii)that even if the impugned Notification be held to come within s. 53-A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving any opportunity to the appellants to defend themselves, however, there is a difference of opinion between my Lord the Chief Justice and Kapur J. on the one hand, and Subba Rao J. on the other, as to the character of the act performed by the State Government while arriving at the conclusion that the Committee is not competent to perform the duties imposed on it or undertaken by it. Whereas the former are of the view that in arriving at such conclusion the State Government performs only an administrative function, the latter is of the view that the fact whether the committee is not competent to perform the duties imposed on it or undertaken by it is a jurisdictional fact and in arriving at that conclusion the State Government performs a quasi-judicial function. In my opinion, the determination of the question whether the State Government performs an administrative or a quasi-judicial function in the matter of arriving at such conclusion is immaterial for the purposes of this appeal, inasmuch as an inquiry had been instituted by the State Government in the matter of the charges levelled against the appellants and full opportunity had been given to them to defend themselves. I need not add anything in this regard to what has been said by my Lord the Chief Justice in the judgment just delivered by him. I only wish to say that the circumstances adverted to therein amply demonstrate that the appellants had notice of the charges which had been levelled against them and had rendered full explanation in regard to the same, and, in the matter of the inquiry in regard to those charges the principles of natural justice had been complied with and the conclusion reached by the State Government in the matter of the incompetence of the committee was unassailable.
That being so, I would prefer not to express any opinion on the vexed question as to whether the act 1468 performed by the State Government is quasi-judicial or administrative in character.
The result, however, is the same and I agree with the order proposed dismissing the appeal with costs.
S.K. DAS J.-I agree generally with the conclusions reached by my Lord the Chief Justice and the reasons on which those conclusions are founded. But I wish to add a few words with regard to the third question, namely, if in making the impugned notification, the State Government violated the principles of natural justice. The answer to that question depends on whether on a true construction of the relevant statute, the State Government performed an administrative function or what has been called a quasijudicial function in making the impugned notification.
I am of the view that the action taken by the State Government under s. 53-A of the Act is in its true nature an administrative act. It is said that where there is ' a duty to act judicially ', the function is quasijudicial: that however does not help us very much in understanding the distinction between an administrative function and a quasijudicial function. Where the statute clearly indicates that the function is judicial, there is little difficulty. The difficulty arises in cases where the point taken is that by necessary implication the statute requires an administrative body or executive authority to act judicially. It is indeed Generally correct to say that where an administrative body or authority is under a duty to act judicially, its function is judicial or quasi-judicial. But it is, to some extent, a tautology to say that the function is judicial or quasijudicial if it is to be done judicially.
To get to the bottom of the distinction, we must go a little deeper into the content of the expression 'duty to act judicially '. As has been repeated so often, the question may arise in widely differing circumstances and a precise, clear-cut or exhaustive definition of the expression is not possible. But in decisions dealing with the question several tests have been laid down; for example1469 (i) whether there is a lis inter partes (ii) whether there is a claim (or proposition) and an opposition;
(iii)whether the decision is to be founded on the taking of evidence or on affidavits;
(iv)whether the decision is actuated in whole or in part by questions of policy or expediency, and if so, whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and (v)whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of lis.
The last two tests were discussed and considered in R. v. Manchester Legal Aid Committee (1). It is fairly clear to me that tests (i) to (iv) are inappropriate in the present case by reason of the provisions in s. 53-A ,is contrasted with s. 57 and other sections of the Act. The test which is fulfilled in the present case is test (v), and that makes the function under s. 53-A a purely administrative function in spite of the requirement of an initial determination of a jurisdictional fact and the recording of reasons for the decision.
I am content to rest my decision on the aforesaid ground, as I am not satisfied that the enquiry held by the Deputy Collector was a proper enquiry if it be held that s. 53-A entrusts a quasi-judicial function to the State Government and therefore requires compliance with the principles of natural justice. That enquiry was for a different purpose altogether, the charges were not the same, and in my view the Municipal Committee had no real opportunity of meeting the charges on which the State Government ultimately took action. I prefer, therefore, to base my decision on the third question on the short ground that the function which the State Government exercised under s. 53-A was administrative in nature and it is settled law that such action is not amenable to a writ of certiorari.
On the first two questions I am in entire agreement (1)[1952] 2 Q.B. 4I3.
1470 with my Lord the Chief Justice and have nothing useful to add.
KAPUR J.-This appeal pursuant to special leave of this Court is directed against the judgment and order of the Madhya Pradesh High Court. The appellants are th
