TMI Blog1950 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ([1924] 1 K.B. 171.), 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 Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was quasi-judicial or ministerial. In some cases it was stated that you require a proposition and an opposition, or that a lis was necessary, or that it was necessary to have a right to examine, cross examine and reexamine witnesses. As has often been stated, the observations in a case have to be read along with the facts thereof and the emphasis in the cases on these different aspects is not necessarily the complete or exhaustive statements of the requirements to make a decision quasi-judicial or otherwise. It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of 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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven 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 ([1939] 2 K.B. 651.). In that case also the opinion of the examining doctor, which had to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 authoriti.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 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 (7 Cey. N.L.R. 313.), in which the first two paragraphs of the headnote 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent if the order is 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 ([1924] 1 K,B. 171 at 205.) 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 ([1931] 2 K.B. 215 at 243.) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Bath Justices ([1926] A.C. 586.) as one of the best definitions of a judicial act as distinguished from an administrative act. They seem to have been approved by Lord Greene M.R. in Rex v. Archbishop of Canterbury [1944] 1 K.B. 282.). In Rex v. Woodhouse([1906] 2 K.B. 501.) Lord Fletcher Moulton L. J. observed as follows: The term 'judicial act' is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue 'of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari. In short, there must be the exercise of some right or duty in order to provide scope for a writ of certiorari at common law. In Jugilal Kamlapat v. The Collector of Bombay([1928] 1 K.B, 291.),) Bhagwati J. after a consideration of a number of English authorities reached the conclusion that the phrase judicial act must be taken in a very wide sense including many acts that would not ordinarily be termed judicial. The cases cited at the Bar fully bear out this conclusion. Reference may be made to The King v. Postmaster General ((1945) 47 Bom. L.R. 1070. where it was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial school or class, or whether his retention in such school or class would be detrimental to the interests of the other children, the matter shall be determined by the Board of Education. A certificate that the boy was incapable by reason of mental defect, of receiving further benefit from instruction in a special school or class and was an imbecile was issued by the medical officer. The father of the boy moved for an order of certiorari to remove and quash the certificate. Lord Hewart C.J. in issuing the writ made the following observations: In my opinion, on the facts of. this case, this certificate of October 5, 1938, created in the way in which we know that it was created, purported to be and to' look like the decision of a quasi-judicial authority. Reliance was placed on the observations of Atkin L.J. in Rex v. Electricity Commissioners([1924] 1 K.B. 171.) In The King v. The London County Council ([1931] 2 K.B. 615.), a writ of certiorari was issued to the London County Council who had exercised the power to grant a licence under the Cinematograph Act, 1909, and had given permission to open the premises on a Sunday under the Sunday Observance Act, 1780. By section 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strenuously debated in the argument before us: Are the Council under a duty to act judicially? It is said that what has here been done is not a judicial act, or not an act of an administrative body having judicial duties to perform, but is in substance an administrative act for the review of which the writ of certiorari is not appropriate. I am unable to distinguish in principle between the application for a licence under the Cinematograph Act, 1909, and an application made with regard to a licence for a public house, which for many years, as to the Confirming Authority, and later, as to the whole proceedings, has been held to be a judicial act. It was suggested, so far as I understood the argument which attempts to differentiate this application from an application for a public house licence, that there is not provided in terms in s. 2 any provision for opposition; and that is perfectly true. There is an obligation to notify the police, but there is not in terms there any provision for dealing with opposition, though the County Council have made an elaborate code under which opposition may be heard. I have examined other statutes which similarly contain powers to grant licences, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry into the matter and have consulted any local authorities who appear to him to be concerned, and obviously other departments of the Government, such as the Ministry of Health, would naturally require to be consulted. It would seem, accordingly, that the respondent was required to satisfy himself that it was a sound scheme before he took the serious step of issuing a draft order. It seems clear also, that the purpose of inviting objections, and, where they are not withdrawn, of having a public inquiry, to be held by someone other than the respondent, to whom that person reports, was for the further information of the respondent, in order to the final consideration of the soundness of the scheme of the designation; and it is important to note that the development of the site, after' the order is made, is primarily the duty of the development corporation established under section 2 of the Act. I am of opinion that no judicial duty is laid on the respondent in discharge of these statutory duties, and that the only question is whether he has complied with the statutory directions to appoint a person to hold the public inquiry, and to consider that person's report. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not necessary that the land when taken is to be made available to the public at large, but that it includes a purpose, that is an object in which the general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned. It was said in that case that prima facie the Government are good judges of the question whether the purpose is one in which the general interests of the community is concerned but that they are not absolute judges, that is, they cannot say I desire it, therefore I order it . Under the proviso the question whether the land is being used for public religious worship is again a matter which involves difficult questions of fact and law and the determination of these questions may seriously affect legal rights of worshippers, trustees and other people interested in a place of worship. Similarly the question whether the premises are vacant is a matter that has to be determined in view of the definition of vacant premises given in section 4. It involves the determination of the question whether the vacancy was caused by the termination of a tenancy, or by the eviction of a tenant, or by the release of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c worship. As stated by Lord Atkin in Liversidge v. Sir John Anderson C), does the Ordinance contemplate a case of a thinking that a person has a broken ankle and not a case of his really having a broken ankle ? Similarly, can it be said that section 4 contemplates merely a vacancy in the mind of the Government, not a vacancy in fact as a real thing. After a careful consideration of the matter I have no hesitation in holding that these questions are not questions for the mere determination of the Government subjectively by its own opinion but are matters of determination objectively. That being so, the determination of these questions depends on materials which the Government have sufficient power to call for under the Ordinance. It is not only the duty of the Government to determine these questions but its duty is to determine them in a judicial manner, that is, by hearing any opposition to the proposal and by placing its determination on some materials which it has called for under the provisions of section 10 or 12 of the Ordinance. The determination affects valuable rights of persons as to property, it affects rights of worship and any such determination may entail serious cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued that the section was confined to suits and to actions and did not cover the case of a writ of certiorari. It was said that there is no power to issue a command to the Sovereign. My simple answer is that the Provincial Government is not the sovereign and that the Government of India Act expressly says that there is a right to sue the Province. The expression sue means the enforcement of a claim or a civil right by means of legal proceedings. When a right is in jeopardy, then any proceedings that can be adopted to put it out of jeopardy fall within the expression sue . Any remedy that can be taken to vindicate the right is included within the expression. A writ of certiorari therefore falls within the expression sue used in section 176 of the Government of India Act, 1935, and the remedy therefore is within the express terms of the statute. The immunity granted by section 306 is to the Governor and not to the Province. It was argued that the word Governor in the section is synonymous with Provincial Government by reason of the definition of the phrase Provincial Government given in section 46 (3) of the General Clauses Act. In my opinion, this definition cannot affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay Land Requisition Ordinance (V of 1947). There is not much controversy about the facts of the case which lie within a short compass. The requisition order was made by the Province of Bombay on February 26, 1948, in respect of the first floor of a building known as Paradise situated at 22, Warden Road, Mahalakshmi, Bombay. The entire building is owned by one Dr. M, B. Vakil, and one Abdul Hamid was in occupation of the first floor as a tenant under Dr. Vakil prior to January 29, 1948. Abdul Hamid intended to go to Pakistan and was on the look out for some premises at Karachi where he might reside and carry on business. The petitioner Khusal Das, who was the main respondent in this appeal and is now dead and represented by his heirs, was a refugee from Karachi where he owned a Bungalow worth more than ₹ 50,000 and also a running business in which a considerable sum of money was invested. On 29th January, 1948, there was an agreement entered into by and between Abdul Hamid on the one hand, and the petitioner Khusal Das, his son Gobind Ram and his brother's daughter's son Hiranand on the other, by which the former assigned to the latter his tenancy right in the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of Mr. Rao, it was urged that he did not make any order himself and had merely authenticated and signed the orders in accordance with the provisions of section 59 (2) of the Government of India Act. As regards the Province of Bombay a point was taken that no writ could be issued against the Provincial Government which meant and included the Governor of the Province, he being immune from all proceedings in, and processes from any court of India under section 306 of the Government of India Act. The Minister respondent, it was said, was not personally responsible for the orders or for the consequences thereof under the Constitution. It was contended further that the requisition of the flat, and the allotment of it to Mrs. Dayaram were for public purpose. The petition was heard by Bhagwati J., who overruled all the contentions of the respondents and granted the petitioner's prayer. Writs of certiorari and prohibition were directed to be issued against all the respondents, and there were also orders of mandamus granted against respondents other than the Province of Bombay. Against this decision an appeal was taken to the appeal Bench of the High Court (being Appeal No. 65 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 376). To ascertain the exact connotation of the expression judicial act in connection with the issuing of a writ of certiorari and to determine whether the act complained of in the present case is a judicial act or not it would be necessary and convenient to set out briefly how the law on the point as developed by the Courts in England stands at present. A writ of certiorari like the writ of prohibition is a judicial writ of antiquity and it is the ordinary process by which the Court of King's Bench Division exercises control over the acts of bodies vested with inferior jurisdiction. The writ is intended to bring up before the High Court the records of proceedings or determinations of inferior tribunals and to quash them if the tribunals are found to have acted in excess of their jurisdiction. It is well settled that the writ is not limited to bringing up the acts of bodies that are ordinarily considered to be Courts. The procedure of certiorari as has been observed by Fletcher Moulton L.J. in Rex v. Woodhouse ([1906] 2 K.B. 501 at p.535.) applies in many cases in which the body whose acts are criticised would not ordinarily be called a 'Court' nor would its ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same transaction constituted the determination of a quasijudicial authority, and exhibited all the mischief which a writ of certiorari was intended and well fitted to correct. The result was that all the. three documents were directed to be brought up and quashed. Even a report made by a Chief Gas Examiner has been removed and quashed by a writ of certiorari C). In the words of Banks L.J. the course of development of law on the subject demonstrates what has been the boast of English Common Law that it will, whenever possible and where necessary, apply existing principles to new set of circumstances (Vide Rex v. Electricity Commissioners, [1924] 1 K B. 171, at p. 192.); and it was in very general terms that opinion was expressed in Rex v. Inhabitants of Glamorganshire (1 Ld. Raym. 580. ) that the Court would examine the proceedings of all jurisdictions erected by Acts of Parliament and if under pretence of such an Act they proceeded to encroach jurisdiction to themselves greater than the Act warrants, the Court would send a certiorari to them to have their proceedings returned to the Court to the end that the Court might see that they keep themselves within their jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed whether an authority is bound to act judicially in a particular matter or not. It is said that one of the best definitions of a judicial act, as distinguished from an administrative act, is that given by May C.J. in the Irish case of Reg. v. Dublin Corporation ([1878] L.R.2 Ir.371.). The question raised in that case was whether a borough rate levied by a Corporation was illegal or not. It was found that the borough fund of the Corporation was otherwise sufficient for all legitimate purposes but it was rendered insufficient by reason of certain illegal payments made out of it. To make up the deficiency, the Corporation levied a borough rate, the legality of which was challenged and writ of certiorari was prayed for to quash all the orders and resolutions of the Corporation in connection with the imposition of the rate. The writ was granted and May C.J. while discussing in his judgment the meaning of the expression 'judicial act' observed as follows: 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down or recognised by law, and the soundness or otherwise of the determination must be capable of being tested by the same external standard. This is the essence of a judicialfunctionwhich differentiates it from an administrative function; and whether an authority is required to exercise one kind of function or the other depends entirely upon the provisions of the particular enactment. Where the statute itself is clear on this point, no difficulty is likely to arise, but where the language of the enactment does not indicate with precision what kind of function is to be exercised by an authority, considerable difficulties are hound to be experienced. There are numerous decided cases, which deal with questions of this character, and quite a number of them were cited to us by the learned counsel on both sides. As they relate to the powers and duties of various types of authorities under various statutes and war regulations, dealing with different subject-matters and not uniformly worded, they are of no direct assistance to us in the present case. 1 think however that we can cull a few general principles from some of the pronouncements of the English Courts, which may throw light on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1943] 2 A.E. R. 546.)the control of the appellant's undertaking was taken by the Ministry of Fuel and Power by an order made under the Defence (General) Regulations, 1939, reg. 55 (4). The relevant provision of the regulation stood as follows: If it appears to the competent authority that in the interest of the public safety, the defence of the realm or the efficient prosecution of the war or for maintaining of supplies and services essential to the life of the community, it is necessary to take control on behalf of His Majesty of the whole or any part of an existing undertaking ......the competent authority may by order authorise ...... The appellant's contention was that there were no adequate grounds upon which the Minister could find, as he stated, he had found, that it was necessary to take control in the interests of the realm or the efficient prosecution of war. It was held that there was no jurisdiction in the Court to interfere with what was an executive order passed bona fide. In Carltona Ltd. v. Commissioners of Works and Others([1943] 2 A.E.R. 560.) which was decided near about the same time, the appellant's factory was requisitioned by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. This was the case of Robinson and others v. Minister of Town and Country Planning ([1947] 1 A.E.R.851) and it was held there that the order under section 1 (1) of the Town and Country Planning Act is made by the Minister as an executive authority and he is at liberty to base his opinion on whatever he thinks proper. Stress was laid on the words requisite and satisfactory used in the section and these words indicated according to the learned Judges that the question was one of opinion and policy, matters which were peculiarly for the Minister himself to decide, and as to which, assuming always that he acted bona fide, he was the sole Judge. It was further observed that no objective test was here indicated and that different considerations might apply where a Minister could be shown to have overstepped the limits of his power, e.g., where the conditions in which they may be exercised were laid down in the statute and he purported to act in a case where the conditions did not exist. In Errington and others v. Minister of Health ([1935] 1 K.B. 249) the question arose as to whether an order of the Minister of Health confirming a clearance order made by a local authority und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it exists. To quote the words of Lord Radcliffe If the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in fact nothing (Vide Nakkuda Ali v. M.F. De S. Jayratne 54 G.W.N. 883, 888) . On the other hand, if the statute imposes an objective condition precedent of fact to the exercise of powers by an authority, and not merely his subjective opinion about it, the function would be prima facie judicial. The distinction is beautifully illustrated by Lord Atkin in his classic judgment in Liversidge's case ([1942] A.C. 206,207). If it is a condition to the exercise of powers by A that X has a right of way or Y has a broken ankle, the authority is charged with determining these facts and it must ascertain judicially whether the conditions are fulfilled or not. If, on the other hand, the condition is that the authority thinks or is of opinion that X has a right of way or Y has a broken ankle, the condition is a purely subjective condition and the act cannot be a judicial act, as the existence of the condition is incapable of being determined by a third party by application of any rule o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 : There is a proviso added to the section which is worded thus: Provided that no and 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 language of the section taken along with the proviso indicates in my opinion, that whereas the act of requisitioning land is left to the executive discretion of the Provincial Government and the latter can requisition land whenever it considers necessary or expedient to do so, certain conditions have been laid down which are conditions precedent to. the exercise of the powers. The first condition is specified in the section itself and it postulates the existence of a public purpose as an essential prerequisite to the taking of steps by the Provincial Government in the matter of requisitioning any property. Even where this condition is satisfied, there is another condition imposed by the proviso which is in the nature of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition enactments, where the expression 'public purpose' occurs. It will be seen at once that the language of these provisions is materially different from that of section 3 of the Ordinance. In Wijeyesekera v. Festing([1919] A.C. 646) the Privy Council had to deal with a case under the Ceylon Acquisition of Land Ordinance. Section 4 of the Ordinance provides as follows: 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 ...... to examine such land and report whether the same is fitted for such purpose. Section 6 then says: The Surveyor General or other officer ...... shall make his report to the Governor Whether the possession of the land is needed for the purpose 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. The question raised was whether the decision of the Governor that the land is wanted for public purpose is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises. There has been a recent decision(1) of the Calcutta High Court on the above provision of the Bengal Act, but the particular point which has arisen for our consideration in this case, was not and could not be raised there. (1) A.C. Mahomed v. Sailendranath 54 C.W.N.. 642. A conspectus of the whole of the Bombay Ordinance leaves a clear impression that it was not the intention of the framers of the Ordinance to give an unlimited and unfettered discretion to the Executive Government in the matter of requisitioning property. The powers are to be exercised within defined limits. Section 3 as stated above imposes a twofold restriction, one by postulating the objective existence of public purpose as a pre-requisite to the exercise of discretionary powers, the other by excluding the powers altogether when the land is used for a public religious purpose. Thus the proviso which excepts the cases specified therein from the sphere of operation of the general provision of the entire section has also set up an objective condition, the existence of which would exclude the exercise of powers by the Provincial Government. Section 4 again deals with requisition of vacant premises and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an authority is often required to exercise both ministerial and quasijudicial functions. Whether he acts administratively throughout or is put at one stage in a quasi-judicial position has to be gathered from the provisions of the Act. The case of Errington v. Minister of Health([1935] 1 K.B. 249.) is a leading authority which holds that the same proceeding may be administrative at one stage and quasijudicial at another. The position in my opinion may be summed up as follows: The Provincial Government has to satisfy itself that there is a public purpose before it proceeds to requisition any property. As this is an objective condition which has not been made dependent on the personal opinion of the Executive it has got to be determined judicially and whether a public purpose exists or not is itself a mixed question of facts and law which could (be determined by, application of well established principles of law to the circumstances of a particular case. There is undoubtedly a lis or point in controversy-or what is called a proposal and an opposition. On the one hand, there is the interest of the public, and on the other, the interest of the individual whose property is bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se must exist as a fact, and the Provincial Government must satisfy itself as to its existence before it can take any steps in requisitioning property; but it is not for the Provincial Government to decide the matter finally or conclusively, and its decision on this preliminary point would be open to enquiry by superior courts. These principles are laid down in Bunbury v. Fuller (9 Ex. Ch. 111.), Pease v. Chaytor (3 B. S. 620) and Colonial Bank of Australasia v. Willan ([1874] 5 P.C. 417 at p.422.). By way of illustration of these principles reference may be made to two well-known English cases. In Rex v. Woodhouse ([1906] 2 K.B. 505) there was an application to bring up an order made by Licensing Justices under the Licensing Act referring an application for renewal of a licence to quarter sessions. One of the points raised in the case was whether or not the Justices were right in deciding that the applicants were qualified to apply for licence under the provisions of the Beer House Act, 1840, which required that the applicant should be the real resident holder and occupier of the dwelling house in which he should apply to be licensed. It was held by the majority of Judges in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made to depend were preliminary matters collateral to the enquiry or were matters to be adjudicated upon as part of the enquiry itself. In the case before us the act of requisition, as said already, is an executive and not a judicial act, and to this extent therefore there is no similarity between the present case and those referred to above. But the principles underlying these authorities can certainly be invoked for our present purpose. The act of requisition being an executive act, the determination of the existence of a public purpose upon which the exercise of powers is dependent is either a part of the executive act itself or is something collateral to it. I have attempted to show that it is a thing collateral and preliminary to the exercise of executive authority and not a part of it. That being so, the determination of this collateral matter by the executive authority which is, in my opinion, a judicial function cannot be regarded as final and if the determination is erroneous, it can be corrected and removed by a writ of certiorari. It may be stated here that before the learned Judges of the appellate Bench in the High Court no attempt was made on behalf of the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government of a Province shall be expressed to be taken in the name of the Governor. The Governor is thus the executive head of a Province and all executive acts are done in his name. This does not mean that Government of a Province is vested solely in the Governor, or that the expressions Governor and Provincial Government have the same meaning and connotation in the Constitution Act. It is only a form adopted for purpose of convenience that in a Governor's Province, all acts of the Provincial Government would be done in the name of the Governor, no matter wherever under the Constitution, the responsibility might actually lie. Section 3 (43) (a)of the General Clauses Act (as amended by the Adaptation Order Of 1947) which is relied upon in this connection does not in any way affect this position. It says that as respects anything done or to be done after the establishment of the Dominion of India, 'Provincial Government' shall mean in the Governor's Province the Governor. This is a mere description as will be apparent from the 'fact that under the same clause, the expression Provincial Government used with reference to a Chief Commissioner's Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Province, but section 306 (1) does not purport to protect any of the official acts. It grants a personal exemption to the Governor from any judicial processes in India, no matter whether they arise out of official or non-official acts committed by him, and this exemption continues even after he has ceased to be in office, except where His Majesty chooses to relax the rule. I agree with the learned Judges of the High Court in holding that even the possibility of a misconstruction of this section has been removed by the proviso engrafted on it, which lays down in clear terms that the provisions of the section shall not be construed as restricting in any way the right of any person to bring against the Federation, a Province, or the Secretary of State such proceedings as are mentioned in Chapter III of Part VII of the Act. The material provision in Chapter III of Part VII of the Act is that contained in section 176, and I will come to that presently; but before I do so, it would be convenient to dispose of the other point raised by the learned Attorney-General in connection with the first branch of his argument. The point raised is that apart from the protection afforded by section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1915, and section 223 of the Act of 1935, it is quite clear from the language of the provisions set out above that they granted only a personal exemption to the Governor and Members of the Council. As the Governor in his personal capacity is different from the Provincial Government, these provisions are of no assistance to the appellant in the present case. It would be seen that these exempting provisions were substantially embodied in section 110 of the Government of India Act, 1915, and were later on placed in a much more comprehensive form in section 306 (1) of the Constitution Act. As the jurisdiction of the old Supreme Court was inherited by the Original Side of the three Presidency High Courts, section 110 of the Government of India Act, 1915, granted exemption to the Governor-General, the Governor and members of the Council from the Original Jurisdiction of High Courts both civil and criminal, the only exception being when there were charges of treason and felony against these officials. Section 306 (1) of the Act of 1935 is more comprehensive and includes proceedings and processes of any kind either civil or criminal, and started either in the Original Side of a High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all persons and bodies politic shall and may have and take the same suits, remedies and proceedings legal and equitable against the Secretary of State in Council of India, as they could have done against the said company. The object of the Act was to transfer to Her Majesty the possession and government of the British territories in India which were then vested in the East India Company in trust for the Crown; but as the Queen could not be sued in her own court, it was provided that the Secretary of State in Council as a body corporate would have the same rights of suit as the East India Company had and would be subject to the same liability of being sued as previously attached to the East India Company. This provision of the Act of 1858 was reproduced in section 32 of the Government of India Act, 1915, in the following terms: (1) The Secretary of State in Council may sue and be sued by the name of the Secretary of State in Council as a body corporate. (2) Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company, if the Government of India Act, 1858, and this Act had not been passed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath of the last possessor. On the facts of the case it was held that the seizure was an exercise of sovereign power effected at the arbitrary discretion of the company by the aid of military force and consequently the court had no jurisdiction to try the case. In the other case the Government had recovered the lands held by one Begum Sumaroo as a Jagirdar after her death and the plaintiff filed a suit to recover the property, on the basis of a deed of will executed by her. It was held by the Privy Council that as Begum Sumaroo was not a Sovereign Princess and the act of resumption was done under colour of legal title of lands previously held from Government by a subject, it was not an act of State, and the suit was consequently triable by a civil court. As was observed by Lord Atkin in Eshugbayi Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662, 671., This phrase (act of State) is capable of being misunderstood. As applied to an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owing temporary allegiance, in pursuance of sovereign rights of waging war or maintaining peace on the high seas or ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s Bench in England (1). On the whole, it seems to me that the view taken by the learned Judges of the appeal Bench of the Bombay High Court is right, and this appeal should stand dismissed with costs. DAS J.--In my opinion this appeal should be allowed. As I have taken a view different from those of three eminent Judges of the Bombay High Court and some of my learned brethren of this Court, for all of whom I always have the highest respect, I consider it right to give the reasons for my conclusions in some detail. This appeal is directed against the judgment and order of an appellate Bench of the Bombay High Court (Chagla C.J. and Tendolkar J.) affirming an order of Bhagwati J. sitting on the Original Side of that Court. The order appealed from is a mandate in the nature of (1) Vide The King v. The Directors of East India Company, 4 B. and Ad. 580; The King v. The Court of Directors of the East India Company, 4 M S.279 a writ of certiorari quashing an order of requisition of a certain premises in Bombay made by the appellant in exercise of powers vested in it by Bombay Ordinance No. V of 1947. There is no substantial dispute as to the facts leading up to the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction of the statute creating the body, it can be said to be a quasi-judicial body entrusted with quasijudicial functions. It is equally well settled that a certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions. It is, therefore, necessary, in order to determine the correctness of the order appealed from, to ascertain the true nature of the functions entrusted to, and exercised by, the Provincial Government under the Ordinance in question. The title of the Ordinance was An Ordinance to provide for the requisition of land, for the continuance of requisition of land and for certain other purposes. The second preamble recited that the Governor of Bombay was satisfied that circumstances existed which rendered it necessary for him to take immediate action to enable the Provincial Government to make provision for requisition of land and for the continuance of the requisition of land already subject to requisition. The Bombay Legislature not being in session at the date of this Ordinance and the instructions of the Governor-General under the proviso to sub-section (1) of section 88 of the Act having been obtained. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iency for requisitioning for a public purpose was left to the opinion of the Provincial Government. Strictly, as a matter of construction of the section, both grammatically and according to the necessary intendment of the Ordinance, as it appears from its language, the conclusion is irresistible that the words to do so meant and stood for the words to requisition any land for a public purpose. It is to avoid the repetition of the words requisition any land for any public purpose that the words to do so were used in the earlier part. It would have served the purpose equally well if in the earlier part of the sentence the words to requisition any land for any public purpose had been used instead of the words to do so and the words do so had been used at the end of the section instead of the words requisition any land for any public purpose. It appears to me to be entirely fallacious to say that because the words for a public purpose were to be found at the end of the section, therefore, the existence of a public purpose must have been a collateral fact which could not come within the scope of the formation of the opinion. The truth is that the earlier part of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government in making an order of requisition at all. (iii) According to the respondents' interpretation the existence of a public purpose as an objective fact had to be determined first before the Provincial Government would form its opinion as to the necessity or expediency of requisitioning a particular land. This argument amounts to reading the section upside down and in fact to recasting the section altogether. If that were the true intention of the Governor of Bombay in promulgating this Ordinance, then the section would have said-- If any land is needed for a public purpose and if in the opinion of the Provincial Government it is necessary or expedient to requisition any particular land for that purpose, the Provincial Government may, by an order in writing requisition such land. The section as enacted, however, did not say anything of the kind. (iv) It is said that this section postulated a public purpose to exist and required the Provincial Government to form its opinion as to the necessity or expediency of requisitioning land for that public purpose. One can only arrive at the last mentioned proposition by interpreting the words tO do so in the way suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be acquired. Can anything be more absurd than this ? (viii) If the decision on the existence of a public purpose had to be made along with or simultaneously with the formation of opinion as to the necessity or expediency for requisitioning any particular land then it must be conceded that the two matters were correlated to each other and then it will be absurd to suggest that the intention of the Ordinance was to keep the two component parts in separate water-tight compartments, one being required to be decided as an objective fact and the other being left to the subjective opinion of the Provincial Government. In the absence of specific provision in express language such an anomalous intention cannot be imputed to the legislative authority. The objections stated above quite definitely lead 'me to the conclusion that the interpretation suggested by the respondents cannot be adopted and they also fortify my view that the section must be construed in the manner I have mentioned. So constructed, it would read as follows: If in the opinion of the Provincial Government it is necessary or expedient to requisition any land for a public purpose, the Provincial Government may, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has exercised it. 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. To the like effect are the following observations of Batty J. in Balvant Ramchandra Natu v. The Secretary of State (I.L.R. [1905] Bom. 480,): ''No doubt when a power has been conferred in unambiguous language by Statute, the Courts cannot interfere with its exercise and substitute their own discretion for that of persons or bodies selected by the Legislature for the purpose. Sometimes the Legislature may entrust a power to a specified authority to do an act for a certain purpose. Even in such a case, the Legislature may, nevertheless, by appropriate language, leave not only the determination of the necessity or expediency for doing the act but also the determination of the necessity or expediency for doing the act for that purpose as a composite matter to the opinion, satisfaction or discretion of that authority. In such a case what is a condition precedent for the doing of the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight be raised by an application to the Court to stay the further proceedings on the ground that although the Governor in the Executive Council had made the order, it was not a case where the condition precedent of the Ordinance was really fulfilled, namely, that the land was wanted for a public purpose. In their Lordships' opinion no such proceeding would be competent in such a case, and the decision of the Governor in Council, making an order under the latter part of s. 6 of the Ordinance, is final and conclusive. His Lordship concluded- When you have an enactment of that kind it shows that it was intended that the decision of the Governor in Executive Council on the point should be binding. The decision in Point of Ayr Collieries Ltd. v. Lloyd George ([1943] 2 All E.R. 546.) which was a case of requisition of an undertaking turned on reg. 55 (4) of the Defence (General) Regulations--the relevant parts of which were as follows: If it appears to a competent authority that in the interests of the public safety, the defence of the realm, or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, it is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the situation requires an immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation. All these matters are placed by Parliament in the hands of the Minister in the belief that the Minister will exercise his powers properly, and in the knowledge that, if he does not do so, he is liable to the criticism of Parliament. One thing is certain, and that is that those matters are not within the competence of this Court. It is the competent authority that is selected by Parliament to come to the decision, and if that decision is come to in good faith, this Court has no power to interfere, provided, of course, that the action is one which is within the four corners of the authority delegated to the Minister. There is no substantial difference in the language of reg. 55 (4) and that of the Bombay Ordinance now before us if it is properly construed and read in the way I have indicated above. Even if it were possible, on an overmeticulous analysis, to detect any such difference, the position is put beyond doubt in the decision of the English Court of Appeal in Carltona Ltd. v. Commissioners of Works and Others([1943] 2 A,E.R.560.). The decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the executive Government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no Court can interfere. All that the Court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the Legislature and to see that those powers are exercised in good faith. Apart from that, the Courts have no power at all to inquire into the reasonableness, the policy, the sense or any other aspect of the transaction. Vedlapatla Suryanarayana v. Province of Madras (I.L.R,. [1946.] Mad. 153; A.I.R,. [1945] Mad. 394.) is a Full Bench decision of the Madras High Court. It discussed section 6 of the Land Acquisition Act and held that the decision of the Provincial Government that the land was required for a public purpose was final. Robinson v. Minister of Town and Country Planning ([1947] 1 A.E,R. 851.) is instructive. The provisions of the Town and Country Planning Act, 1944, were considered in that case. The relevant portions of section 1 of that Act were as follows: Where the Minister of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound it could be held in that case that the section postulated the existence of national interest to be determined judicially as an objective fact and that it was a condition precedent to the making of the order. It was, however, held by the House of Lords that no judicial or quasi-judicial duty was imposed on the Minister in the discharge of his statutory duties, those duties being purely administrative. The case of Hubli Electricity Co. Ltd. v. Province of Bombay ((1948) L.R. 76 I.A. 57;A.I.R. 1949 P. C. 136) may also be referred to. Relevant portions of section 4, sub-section (1) of the Indian Electricity Act, 1910, provided: The Provincial Government may, if in its opinion the public interests require, revoke a license in the following cases, namely: (a) Where the licensee, in the opinion of the Provincial Government makes wilful and unreasonably prolonged default in doing anything required of him by or under this Act. Could anything be more objective than the requirements of public interest or the wilful and unreasonably prolonged default ? And yet in construing the section their Lordships of the Privy Council observed: Their Lordships are unable to see that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as the existence of a public purpose or the interest of the public safety or the defence of the realm or the efficient prosecution of the war, or the maintenance of essential supplies and the like may well be and, indeed, are often left to the subjective opinion or satisfaction of the executive authority. Merely because such a matter involves a question of fact it does not follow at all that it must always, and irrespective of the language of the particular enactment, be determined judicially as an objective fact. When the Legislature leaves it to an executive authority to form an opinion on or to be satisfied about such a matter as a condition for the exercise of any power conferred on it, and to act upon such opinion, what is condition precedent is, not the actual existence of the matter but, the subjective opinion or satisfaction of the executive authority that it exists. The cases referred to above clearly establish this much that when the Legislature leaves it to the opinion or satisfaction of the executive authority as to whether it is necessary or expedient to requisition any land for a public purpose the executive authority is constituted the sole judge of the composite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the four corners of the Ordinance in that, on its own showing, there was no public purpose at all for which the order was made. Bhagwati J. expressed the view that the requisitioning of a flat for a particular or individual refugee was not a public purpose, for there was no question of serving the general interests of the community. On appeal Chagla C.J. disagreed with the above view. In his opinion the housing of a refugee might certainly be a public purpose, for securing a house for an individual refugee might itself confer a benefit on the community as a whole. In this opinion the learned Chief Justice was manifestly right. But the learned Chief Justice went on to say that choosing one refugee as against another without any ostensible cause would not constitute a public purpose for which the flat in question could be requisitioned. This conclusion, with great respect to the learned Chief Justice, appears to be founded on a slight confusion of ideas. It has to be remembered that this was not a solitary order of requisition made by the Government for the public purpose of housing refugees. The petitioner's Solicitors' letter dated February 27, 1948, clearly stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to what is a quasi-judicial act there have been many judicial pronouncements. May C.J. in Queen v. Dublin Corporation ((1878) 2 Ir.R. 371.) described a quasi-judicial act as follows: 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 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. And if there be a body empowered by law to enquire into facts, make estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts. Lord Atkinson in Frome United Breweries v. Bath Justices ([1926] A.C. 586,) approved of this definition as one of the best definitions. The definition that now holds the field is that of Atkin L.J. as he then was, in Rex v. Electricity Commissioners ([1924] 1 K.B. 171). It runs as follows: 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in delivering the judgment of the Privy Council in Nakkuda Ali's case (2). Therefore, in considering whether a particular statutory authority is a quasi-judicial body or a mere administrative body it has to be ascertained whether the statutory authority has the duty to act judicially. When and under what circumstances then can a statutory body be said to be under a duty to act judicially ? An examination of the decided cases shows that in many of them where the statutory bodies were held to be quasijudicial bodies and their decisions were regarded as quasi-judicial acts there were some parties making a claim under the statute and some parties opposing such claim and the statutory authority was empowered to adjudicate upon the matters in issue between the parties and to grant or refuse the claim. Thus in The Queen v. The Local Government Board (3) the contesting parties were the County Council of Wexford on one side and Webster Leary on the other side and the Local Government Board was the statutory authority to decide whether the latter were entitled to higher salary. In Rex v. Woodhouse (4) the contest was between the applicants. for renewal of licence and certain brewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterested in the properties which will be affected by the order if confirmed and carried out. It seems to me that in deciding whether a closing order be made in spite of the objections which have been raised by the owners, it seems to me reasonable that the Minister should be regarded as exercising quasijudicial functions . Swift J. in accepting the above statement added: I accept that from the moment an objection is made the Minister is exercising quasi-judicial functions, but it seems to me to be clearly recognised by the Court of Appeal that up to the time of objection being made the Minister acts in an administrative, and not a judicial, capacity. Under the Housing Act, 1930, the local authority submits a clearing order to the Minister. If no objection is raised by the owners of the property the Minister considers the matter and either confirms or modifies the order of the local authority. In the absence of objection the Minister, according to those two decisions, acts in an administrative capacity. Why ? Because there is no lis in the sense of two opposing parties. There is only a proposal by the local authority. But if objection is raised by the owner, the Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority, was deciding the case. In the very recent case of Patri Shaw v.R.N. Roy((1950) 54 C.W N. 855.) a Division Bench of the Calcutta High Court dissented from this very Bombay case ((1949) 51 Bom. L.R, 342.) which is now before us and emphasised the necessity of a lis between two parties for making the decision of the authority a quasi-judicial act. On the other hand there are many cases where the act of a statutory authority has been accepted as a quasi-judicial act although there were not two opposing parties over whose disputes the authority was to sit in judgment. In those cases it was the authority who made a proposal and another person objected to it and the authority itself was entrusted to hear the objection and give a decision on it. In short the authority which was the proposer was the judge in its own cause. The only ground on which the decision of such an authority, placed in such situation as I have just mentioned, was regarded as a quasi-judicial act was that the authority was empowered to affect the rights of or impose a liability on others and was required by the very law which constituted it to act judicially. To take a few illustrative cases: The Qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. Mr. Seervai relied on two cases, namely, Rex v. Hend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic purpose must be determined judicially. The argument may be summed up thus: The existence of a public purpose as an objective fact was, under the main body of section 3, a condition precedent to the exercise of the power of requisition, just as the non-user of land for any of the purposes mentioned in the proviso to section 3 or the vacancy of the premises under section 4 were conditions precedent. This condition precedent being an objective fact, it had of necessity to be determined by the Provincial Government in a quasi-judicial manner. The first part of the argument wholly overlooks the difference in the language used in the main body of section 3 and that used in the proviso to that section and that used in section 4 of the Ordinance. The proviso to section 3 placed certain lands outside the ambit of the power conferred on the Provincial Government by the main body of that section. If the Provincial Government purported to exercise its power of requisition with respect to land which fell within the proviso on an erroneous belief that it did not, then the Provincial Government overstepped the limits of its powers and the order of requisition would not bind anybody and coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative authority has frequently to come to a decision in its own mind as to the objective facts such as the existence of a public purpose or the like as a step in the process of the exercise of its administrative powers. That decision, if erroneous, will not bind anybody and may be questioned in an action. See the observations of Palles C.B. in The Queen v. Local Government Board([1902] L.R. 2 Ir. 349.). The mere fact that the existence of a public purpose is a condition precedent to the exercise of the power of requisition will not necessarily make the decision as to its existence a quasijudicial act. There is no warrant for saying that the fulfilment of the condition precedent to the exercise of an administrative power must necessarily and always be determined judicially by the authority invested with the power. The authority decides it for its own purpose and in case of dispute the final decision rests with the Court --a circumstance which also supports the view that the authority has no duty to decide it judicially. In my opinion, even on the assumption that the question of the existence of a public purpose had not been left to the subjective opinion of the Provincial Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at may be a purely administrative act. Take the case of Robinson v. Minister of Town and Country Planning ([1947] 1 A. E ,R. 851,) to which reference has already been made where the act of the Minister was held to be an administrative act. Lord Greene M.R. said at p. 859: As an example of the difference to be found in the subject-matter dealt with in different statutes I may point out that this case is different from a case where a Minister is given the duty of hearing an appeal from an order such as a closing order made by a local authority. This is not the case of an appeal. It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his opinion on whatever material he thinks fit, whether obtained in the ordinary course of his executive functions or derived from what is brought out at a public enquiry if there is one. To say that, in coming' to his decision, he is in any sense acting in a quasi-judicial capacity is to misunderstand the nature of the process altogether. I am not concerned to dispute that the enquiry itself must be conducted on what may be described as quasi-judicial principles, but this is quite a differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplied with the statutory directions to appoint a person to hold the public inquiry, and to consider that person's report. Keeping these weighty observations in view I now proceed to analyse the provisions of the two sections. It will be noticed that the powers given to the Provincial Government under both the sections are only enabling and in terms are not compulsory. The Court below has construed the word 'may' as 'must' on the hypothesis that a right implies a corresponding duty and the Provincial Government is, therefore, under an obligation to exercise the power and consequently an enquiry is compulsory. I am unable to accept this line of reasoning. The authorities show that in construing a power the Court will read the word 'may' as 'must' when the exercise of the power will be in furtherance of the interest of a third person for securing which the power was given. Enabling words are always potential and never in themselves significant of any obligation. They are read as compulsory where they are words to effectuate a legal right. See Julius v. Lord Bishop of Oxford((1880) 5 App. cas.214.). Here the power was given to enable the Provin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced that under the section the information was to be furnished to such authority as might be specified, which means that the information was not to be communicated to the Provincial Government direct. Therefore, the information was nothing more than the information obtained for the Minister by somebody appointed by him to hold a public enquiry under the statutes which were considered in Robinson v. Minister of Town and Country Planning [1947] 1 A.E. R. 851.) and Franklin v. Minister of Town and Country Planning ([1948] A.C. 87.). The circumstance that by sub-section (2) of that section a legal obligation, on pain of criminal penalty, was imposed on persons to furnish information, so strongly relied on by Mr. Seervai, appears to me to have no bearing on the character or scope of the inquiry envisaged by sub-section (1). The provisions of section 12 also carried the matter no further. This section was also an enabling section. The inspection was in terms for the purpose of determining whether, and, if so, in what manner an order should be made. It can have no possible bearing on the question of the existence of a public purpose which is an independent question having no necessary re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold any judicial inquiry or to act judicially and that the determination of the existence of a public purpose was only a step in the process of the exercise of the administrative power and, if erroneous the decision could at best be challenged by an action, but a certiorari would be a wholly inappropriate remedy. The second head of argument must therefore, be rejected. There is the last head of argument which requires consideration before I conclude. The argument is that the existence of a public purpose was a condition precedent to the exercise of the power and, therefore, the fulfilment of the condition precedent had to be determined judicially by the Provincial Government as an objective fact but the provincial Government could not, by wrongly deciding the preliminary point, assume jurisdiction to exercise the power. In Bunbury v. Fuller (9 Ex. 111 at p140.) Coleridge J. laid down: Now it is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends and however its decisions may be final on all particulars making up together th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. Mr. Seervai contends that the present case falls within the first class of cases and strongly relies on Rex v. Woodhouse ([1906] 2 K.B. 501.) and Rex v. Bradford ([1908] 1 K.B. 365,) as establishing that a certiorari lies to correct the error of the Provincial Government. There are two answers to this argument. In the first place, it is not disputed that the formation of opinion as to the necessity or expediency of requisitioning any land is a purely subjective matter and that the order of requisition founded on that opinion is an administrative act. What is contended is that the existence of a public purpose must be judicially determined by the Provincial Government before it could proceed to exercise its administrative powers. In short qua that issue only the Provincial Government was to act judicially. The consequence of this argument is that the decision of the Provincial Government on this issue was not a decision on a collateral matter but a decision on the issue itself which, according to the argument, had been left within the jurisdiction of the provincial Government to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the Justices had to act according to their own discretion and that they were not guilty of any bad faith in doing what they did. The point to note, however, is that the decision of the Court of Appeal proceeded on the footing that the Justices were a quasi-judicial body and that by wrongly deciding a preliminary fact they assumed to discharge their quasi-judicial function of granting the licence and it was the quasi-judicial act of granting the licence that was brought up and quashed by certiorari. The case of Rex v. Bradford([1908] 1 K.B. 365) also proceeded on the footing that in granting the licence to the District Council to take away stones etc. the Justices were exercising a quasi-judicial function and they assumed jurisdiction to exercise that quasi-judicial function by wrongly deciding the collateral fact that the land in question was not a park. The same remarks apply to Rex (Greenaway) v. Justices of Armagh ({1934] 2, Ir. R. 55). All these cases in the appeal Court were cases where a quasijudicial body purported to assume jurisdiction to discharge its quasi-judicial function by an erroneous decision of a collateral fact and, therefore, certiorari was grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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