TMI Blog1958 (9) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 therefor 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 therefor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etency under s. 53-A ? The mere inclusion of the findings of abuse of power in the catalogue of the Committee's 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee 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 effect, 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. 185 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. Manchest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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-judicially. 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 quasi judicial decision, so as to be liable to be corrected by a writ of certiorari. In Advani's case [1950] S.C.R. 621 Kania C. J. with A hom Patanjali Sastri J. agreed, said at page 632 : The respondent's argument that whenever there 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 quasi- judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, 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 [1928] 1 K.B. 411, 415: 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 [1951] A.C. 66 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 implied from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 therefor published in the Gazette . The requirement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 performed by the State Government is quasi-judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 list. The last two tests were discussed and considered in R. v. Manchester Legal Aid Committee [1952] 2 Q.B. 4I3. 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 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grain and building advances to the I employees without prior sanction and no efforts were made for their recovery, (b)showed carelessness in cases of embezzlements 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 appointment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53-A no explanation was required to be called from the municipal committee and the State Government was authorised under the law to act promptly. The High Court negatived the allegation that the State Government had proceeded against the Municipal Committee, appellant No. 2, at the instance of Dhurmal Daga. The learned Judge said: I have gone through the material on which the State Government based its action on enquiry into the charges levelled against the municipal committee and find that there were several other complaints besides those made by Dhurmal Daga. The record of the enquiry shows that on some occasions the petitioner was present during the enquiry. I am satisfied that the invocation of the power of this Court under Art. 226 of the Constitution is not open to the present petitioner . A Letters Patent appeal against this judgment was dismissed on February 21, 1958. The appellants have come in appeal to this Court by special leave and have raised four points before us: (1) That the notification though it purports to be under s. 53- A of the Act is really under s. 57 which is shown by the grounds given in the notification, the powers vested in the Executive O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at provision to the Municipality in a modified form to be specified in such notification ; (c)make any additional provision for the municipality in respect of the matter mentioned in the provision which has been withdrawn from, or applied in a modified form to, the municipality. Chapter II deals with the membership of committees and chapter III with Subordinate Agencies. Under this chapter fall Sub-Committees, Presidents and other officers of Municipal Committees. Section 25-A which deals with the appointment of a Chief Executive Officer, Health Officer or Supervisor is as under: (1) The State Government may, if in its opinion -the appointment of- (a) a Chief Executive Officer is necessary for general improvement in the administration of the municipality and it is satisfied that the state of the municipal fund justifies expenditure on such appointment, require the committee to appoint any such officer. (2) A requisition under sub-section (1) shall state the period within which the committee shall comply therewith. (3) If the committee fails to comply with the requisition within the stated period, the State Government may, if it thinks fit, appoint such officer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson so appointed. If default is made in any such payment the State Government can under s. 56 direct a person having custody of municipal funds to make such payment. Section 57 empowers the State Government to dissolve and/or to supersede the municipal committee. Section 58 gives to the State Government the power of revision and an overall control over the actions of officers acting or taking any action under the Act. But it cannot reverse any order unless notice is given to the parties interested and they are allowed to appear and be heard. Section 58-A authorises the State Government to enforce its orders. Section 58-B gives to the State Government the power of review of orders passed by itself and Commissioners and Deputy Commissioners have similar powers of reviewing their own orders provided that no order shall be varied unless notice is given to the parties interested to appear and be heard in support of the order. Under s. 59 certain officers appointed by general or special orders of the State Government are entitled to attend any meeting of the committee and address it on any matter affecting the work of their departments. Section 60 provides for the settlement of dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuse.; its powers to a grave extent, the State Government may, by an order stating the reasons therefor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipality, etc., a power also exercisable under s. 25-A or to a limited degree under s. 9. Under s. 57 the municipal committee itself is dissolved and may be superseded in which case its members cease to exist and vacate their offices and the powers and duties of the municipal committee then become vested in the person or persons appointed for the purpose by the State Government and its property also vests in the State Government. These consequences do not follow an order Under s. 53-A. But it is submitted that in reality the result is the same because of the powers which under the notification have been given to the Executive Officer and what is left with the Committee is only husk . If this were so then whenever any action is taken whether under s. 9 of the Act or under s. 25-A in conceivable cases it would amount to supersession of the municipal committee and would therefore fall under s. 57 which arguement was neither submitted nor is tenable. According to the language of the two sections, 53- A and 57 of the Act the two classes of actions contemplated are quite different and different consequences follow; one should not be confused with the other. The contention that the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y but under that section the control of the State is not excluded even when there is no Executive Officer. Section 44 deals with the' 'Making of contracts and the other sections in that chapter do not deal with the powers and duties. of a municipal committee excepting s. 49. Chapter VI prescribes the duties of a municipal committee and some of those also have been vested in the Executive Officer. There is no doubt that some very important powers have by the notification been taken away from the municipal committee and have been vested in the Executive Officer but that is a far step from saying that the committee has thereby been suspended. This exercise of its functions by the State Government is of no different quality leading to different results than what would have happened had action been taken under s. 25-A or under B. 9 of the Act. It cannot there. fore be, said under the circumstances of this case that the action of the State Government is cobweb varnish or that it is merely a colourable order or a device to avoid the requirements of sub-s. 5 of a. 57. , It was then contended that the notification enumerates acts of the municipality some of which axe instances of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the municipality will change an administrative decision into a judicial or quasijudicial decision ? The real test to distinguish between a quasi-judicial and an administrative act of ail authority is based on the duty 'of that authority having power to determine a question' to act judicially. Lord Hewart, C. J. in R. v. Legislative Committee of the Church Assembly [1928] 1 K.B. 411, 415 said: In order that a body may satisfy the required test it is not enough that it should have legal authority to determine question affecting the rights of subjects; there must be superadded to that Characteristic the further characteristic that the body has the duty to act judicially . And thus the authority taking a decision should not merely determine a question it should also be under a duty to act judicially. It is that essential characteristic which the State Government lacks in the present case. When it considers something likely to result from its action it is merely taking executive action and not determining a question or acting judicially. This dictum of Lord Hewart was quoted with approval by Das J. (as he then was) in Kusaldas Advani's case [1950] S.C.R. 621, 720. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded an enquiry and others did not, and observed: the fact remains that there is nothing in the Ordinance to suggest that the public purpose is to be determined in a judicial way . Therefore where in a statute like the present one some sections prescribe the calling for the explanation of the municipality before any action is taken by the State Government and others do not, it is an indication of the intention of the legislature to exclude the application of principles of audi alteram partem in the latter case. The section (s. 53-A) has to be read as one whole and not in compartments. The relevant words are: If the committee is not competent to perform the duties imposed upon it and the State considers that a general improvement in the administration of the municipality is likely to be secured by The latter portion i. e. the State Government considers is likely to be secured indicates a purely subjective determination and taking a policy decision. The use of the words considers and is likely relate to a subjective and not an objective process. To consider means to think, to contemplate mentally, to regard and likely means probably; such as might wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayer and has a limited duration not exceeding 18 months also negatives the order being founded on an objective determination as to the incompetency of the committee. Such a construction will defeat the very purpose of a., 53- A. Further action under s. 57 is of a permanent nature and has accordingly been expressly made subject to an explanation by the municipal committee. The absence of such a provision from s. 53-A clearly shows that the legislature did not intend that there should be an elaborate hearing but intended that the State should under S. 53-A take a swift administrative decision. The correct position, as indicated above, is that the decision of the State Government as to incompetency and the decision as to the action to be taken were really one decision, one integrated whole a subjective decision of the State Government that it considered that by the appointment of an executive officer a general improvement in the hitherto general administration was likely to be secured. Merely because the fact of incompetency is a preliminary step to the exercise of an administrative function by the State Government, under 53-A it is not necessary that the fact is to be determined ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjective approach or judicial or quasi-judicial process. The State Government is not essentially a judicial or a quasi-judicial body but its essential function is administrative. The various provisions of the Act show that it takes its decisions as to the mode and extent of control of municipalities in pursuance of its opinion and policy and on grounds of expediency. In arriving at its decision it at no stage has any form of list or quasi-list before it nor can it be said that there are two parties before it. The Municipal Committee and itself cannot be termed quasi-litigants or parties to a proposition and opposition. It is not bound to take action under s. 53-A or any other section of the Act. It has to consider the question from the point of view of policy and expediency and the exigencies of the case which shows that it is not under a duty at any stage to act judicially to determine a question. This further supports the view that a correct interpretation of the words considers and Is is likely to be secured indicates a subjective decision and these words make the order of the State Government administrative and not judicial or quasi- judicial. The argument that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dealing with some allegation in a communication he has received before the quasi-list started, but, if he fails to do so, he is responsible only to Parliament for the discharge of his executive duties, and cannot be made responsible in these courts. Appellants' counsel relied on some English cases, the first of which was Cooper v. Wandsworth Board of Works [1863]14 C.B. (N.S.) 180; 143 E.R. 414, 420. 2,0.7 where Byles J. said at p. 420: although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. This view is not in accord with the modern exposition of the law in Nakkuda Ali's case [1951] A.C. 66,78 or Franklin's case [1948] A.C. 87. Lord Shaw in Arlidge'3 case [1915] A.C. I20,138 rejected the concept of natural justice in the following language : in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far it is resorted to for other purposes, it is vacuous. In R. v. Manchester Legal Aid Committee [I952] 2 Q.B. 413, 431 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination by the National Assistance Board of the disposable income and disposable capital of such applicant which was a condition precedent to the grant of the certificate. Clearly without such determination the grant of the certificate was not within the jurisdiction of the Board and therefore the Board had to determine a question and was required to act judicially within the rule laid down in the majority judgment in Kusaldas Advani's case [1950] S.C.R. 621, 720. The Board under that statute was bound to give aid, if certain conditions were fulfilled and was quite unconcerned with questions of policy. They have to decide the matter solely on the facts of a particular case, solely on the evidence before them and apart from any extraneous considerations. In other words, they must act judicially, not judiciously. In Capel v. Child [1832] 2 Cr. Jr. 558; 37 R.R. 761 the words Whenever it shall appear to -the satisfaction of the Bishop were held to imply a duty to act judicially and therefore the principles of natural justice applied. This rule is inconsistent with the decision of the Privy Council in Nakkuda Ali's case [1951] A.C66,78 or the decision of the House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incompetence was an objective fact cannot be accepted. It cannot be said in this case that in point of fact the appellants did not know what the complaint against them was or that they had no opportunity of giving their explanation in regard to the charges. All the acts which are enumerated in the notification are contained in the various allegations which were made against the appellants by Dburmal and others. The appellants put a long explanation giving their version of the facts contained in the complaint and the Enquiry Officer sent his report after hearing the appellants and on the consideration of this report the State Government passed its order under s. 53-A. The High Court after going through the record of the enquiry was satisfied as to the propriety and legality of the enquiry and that portion of its judgment has been quoted above. Then it was submitted that the enquiry by Mr. Rana was unautborised by the State Government and was no substitute for the enquiry required by the statute. But the statute has prescribed no procedure for enquiries under s. 53-A even if it were to be said that the section contemplates an enquiry. And it is no defect affecting the final decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Shri B. P. Jain as Executive Officer and entrusted to him most of the important powers and duties of the Committee and the President. Before the drastic action was taken, no opportunity was given either to the President or to, the Committee to explain their conduct in regard to any one of the charges. The previous inquiry made by the Deputy Collector was to attempt to persuade Dhurmal Daga to give up his fast and that inquiry by the Deputy Collector could not, in any sense of the term, be regarded as an inquiry for taking action under s. 53-A of the Act. Records also do not disclose whether that inquiry related to the same charges which were the foundation for the Government taking action under the Act. 1, therefore, proceed on the footing that the Government acted under s. 53-A of the Act without giving any opportunity to the appellants to explain their conduct in regard to the grave charges levelled against them, on the basis of which they were held to be incompetent Within the meaning of s. 53-A of the Act. The material part of s. 53-A reads: 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 enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicially. So far there is no dispute. The question raised in this case is what do the words a duty to act judicially mean. If the statute in express terms says that the decision should be arrived at judicially, then it is an obvious case. If it does not expressly say so, can the intention of the Legislature be gathered or implied from the terms of the statute If it can be so gathered, what are the guiding factors for implying such a duty on the part of a tribunal or authority In this context a brief discussion of some of the 'relevant cases will be helpful. This Court, as I have already stated, restated the law laying down the criteria for ascertaining whether an act is a judicial act or not in Kusaldas's case [I950] S.C.R. 621. There the question was whether the Provincial Government was acting judicially in making the order of requisition under a. 3 of the Bombay Land Requisition Ordinance (Bom. Ordinance V of 1947). The material part of the section under discussion read as follows: If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may, by order in writing requisition any land for any public purpose. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [I952] 2 Q.B. 413. There a debtor applied to a local aid committee, set up under the Legal Aid and Advice Act, 1949, for a certificate for legal aid to pursue a claim for alleged breach of contract against a limited company. As he was adjudicated insolvent, the certificate was revoked and on application made by his trustee, it was granted to him again. One of the questions raised was whether the legal aid committee in issuing the certificate was acting judicially and therefore subject to an order of certiorari. The court held that the said body was under a duty to act judicially. Parker J. delivering the judgment of the Court, summarized the law on the subject at page 428 thus: The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively. Where' the decision is that of a Court, then, unless, as in the case, for instance, of justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially. When, on the other hand, the decision is that of an administrative body and is actuated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arriving at that decision. If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of list and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially. It is not necessary to multiply citations. The concept of a judicial act , has been conceived and developed by the English Judges with a view to keep the administrative tribunals and authorities within bounds. Unless the said concept is broadly and liberally interpreted, the object itself will be defeated, that is, the power of judicial review will become innocuous and ineffective. The comprehensive phraseology of Art. 226 of the Constitution supports rather than negatives the liberal interpretation of that concept. The argument that the Court shall not obstruct the smooth working of the administrative machinery does not. appeal to me, for the simple reason that the exercise of the power of judicial review or, to be more precise, the existence of such power in courts-for hardly one act in thousands come before courts-eliminates arbitrary action and enables the administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination of this fact is not left to the subjective satisfaction of the Government. Indeed, the different phraseology used in regard to the second condition, namely, the State Government considers , brings out in bold relief the distinction between the two; while in the former an objective fact has to be -determined, in the latter the fact is left to the subjective satisfaction of the Government. If the facts covered by both the conditions are left to the subjective satisfaction of the Government, the phraseology would have been different and the clause would have run thus: .If the Government considers that, the committee is not competent to perform the duties imposed on it or under- taken by it by or under this Act or any other enactment for the time being in force and 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. To accept the argument of the Counsel for the respondents will be to rewrite the section in the above manner which is not permissible. There is also a good reason and a justification for the difference in the phraseology used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to assume that public men in a democratic country are allowed to be condemned unheard What is material is not the period of the tenure of the executive officer, but the ground for the appointment of the officer, namely, the incompetency of the committee. Shortly stated, the position is this: The committee is comprised of elected representatives of the respective constituencies; they are presumably competent men in whom the electorate has confidence. The Government has to arrive at the finding of their incompetency on the basis of objective facts to be ascertained and to give reasons for its finding. It is against all canons of natural justice that a tribunal should arrive at a finding of far-reaching consequence without giving an opportunity to-explain to the persons who would be affected by such a finding. For the aforesaid reasons, I have no doubt that the section imposes a duty on the Government to act judicially in ascertaining the objective and jurisdictional fact, namely, whether the committee is incompetent. It is a necessary condition of such a duty to give an opportunity to the committee to explain the grave charges levelled against it. Admittedly, no such opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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