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TMI Blog1950 (9) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent). All the three assignees were refugees from Sind. On the 4th February, 1948, the petitioner went into possession of the flat. On the 26th February, 1948, the Government of Bombay issued an order requisitioning the flat under section 3 of the Bombay Land Requisition Ordinance (V of 1947) which came into force on the 4th December, 1947 On the same day Dr. Vakil was informed that the Government had allotted the premises to Mrs. C. Dayaram who was also a refugee from Sind. Further orders were issued authorising an Inspector to take possession of the premises. On the 4th March, 1948, the petitioner filed a petition for a writ of certiorari and n order under section 45 of the Specific Relief Act. The petition was heard by Mr. Justice Bhagwati who, iNter alia, granted the writ against the province of Bombay and the Secretary etc. On appeal the appellate Court confirmed the order as regards the issue of the writ of certiorari against the appellant, but cancelled the order as regards the other parties. The appellant has come on appeal to this Court. The learned Attorney-General, on behalf of the appellant, urged the following three points for the Court's consideration: (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the period specified in sub-section (2) shall on conviction, be punishable with fine which may extend to one thousand rupees and any landlord who lets the premises in contravention of the provisions of sub section (8), shall, on conviction, be punishable with imprisonment which. may extend to three months or with fine or with both. 10. Power to obtain information.--(1) The provincial Government may, with a view to carrying out the purposes of this Ordinance, by order require any person to furnish to such authority as may be specified in the order such information in his possession relating to any land which is requisitioned or is continued under requisition or is intended to be requisitioned or continued under requisition. (2) Every person required to furnish such information as is referred to in sub-section (1) shall be deemed to be legally bound to do so within the meaning of sections 176 and 177 of the Indian Penal Code (XLV of 1860). 12. Power to enter and inspect land.--Without prejudice to any powers otherwise conferred by this Ordinance any officer or person empowered in this behalf by the Provincial Government by general or special order may enter and inspect any l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinguished from an administrative act. A distinction between the nature of the two acts has been noticed in a series of decisions. This Irish case is one of the very early decisions. On behalf of the respondent it was contended that as stated by Chief Justice May, whenever there is the determination of a fact which affects the rights of parties, that determination is a quasi-judicial decision and, if so, a writ of certiorari will lie against the body entrusted with the work of making such decision. As against this, it was pointed out that in several English cases emphasis is laid on the fact that the decision should be a judicial decision and the obligation to act judicially is to be found in the Act establishing the body which makes the decision. This point appears to have been brought out clearly in The King v. The Electricity Commissioners ([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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again noticed. The question arose in respect of the town and country planning undertaken under the relevant Statute on the order of the Minister following a public local inquiry under the provisions of the Act. The question was whether the order of the Minister was a quasi-judicial act or a purely. administrative one. Lord Thankerton pointed out that the duty was purely administrative but the Act prescribed certain methods or steps in the discharge of that duty. Before making the draft order, the Minister must have made elaborate inquiry into the matter and have consulted any local authorities who appear to him to be concerned and other departments 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts were relied upon to find out whether a particular determination was quasi-judicial or ministerial. In some cases it was stated that you require a proposition and an opposition, or that a lis was necessary, or that it was necessary to have a right to examine, 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 stro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should, in the smallest degree, be lettered or influenced by a certificate given by a wholly unauthorized person and I do not think Mrs. Carmichael would be in the same position before the medical referee as that in which she would have been if there had been a refusal on the part of the proper officer to give her any certificate at all." A surgeon's certificate which gave or deprived a person of right to compensation was thus considered a judicial act and if the person had no jurisdiction to give such a certificate a writ of certiorari was considered the proper remedy. It should be noticed that in this case a procedure of inquiry was provided under the Act. The case was under entirely different provisions of the Workmen's Compensation Act, which, inter alia, gave a right of appeal against the surgeon's decision. It may be further noticed that the subsequent right to obtain compensation started with the certificate in question and was not an independent act of the deciding authority having no connection or concern and not influenced by this decision. A similar decision in respect of the mental capacity of a boy in a school is in Rex v. Boycott and Others ([1939] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government in the Official Gazette, (as mentioned in the proviso to section 3) or that the premises are vacant on the date when the notification is issued (as mentioned in section 4 of the Ordinance), the Government has to decide whether a particular object, for which it is suggested that land should be requisitioned, was a public purpose. In my opinion, this third alternative contention is clearly correct and it is unnecessary therefore to deal, with the first two arguments. There appears nothing in the Ordinance to show that in arriving at its decision on this point the Provincial Government has to act judicially. Sections 10 and 12, which were relied upon to show that the decision was quasi-judicial, in my 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle to support their respective contentions. The principal question to be decided in this appeal is whether a writ of certiorari is avail able to the respondent to remove or quash an order made by the Government of Bombay requisitioning certain premises under section a of Bombay Ordinance No. V of 1947. It is well settled that a writ of certiorari can be issued only against inferior courts or persons or authorities who are required by law to act judicially or quasi-judicially, in those cases where they act in excess of their legal authority. Such a writ is not available to remove or correct executive or administrative acts. The first question therefore to be decided in this case is whether the order passed by the Government of Bombay requisitioning the premises in question is a judicial or quasijudicial order or an executive or administrative order. Without going into the numerous cases cited before us, it may be safely laid down that an order will be a judicial or quasi-judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorized to act as if he was a court or a judge. To act as a court or a judge necessarily involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to do so, the Provincial Government may by order in writing requisition any land for any public purpose: Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section." In construing this section, it is our first duty to enter into the mind of the framers of the Ordinance and look at the whole matter as they must have looked at it. Proceeding in this way, two things seem to me to be clear: (1) The existence of a public purpose is the foundation of the power (or jurisdiction, if that term may appropriately be used with reference to an. executive body) of the Provincial Government to requisition premises under section 3, or, as is sometimes said, it is a condition precedent to the exercise of that power. I think that this aspect of the matter has been very lucidly summed up by Bhagwati J. in these words: "Unless and until there was a public purpose in existence for the achievement of which they would exercise the power invested in them under section 3, there would be no jurisdiction at all in the Provincial Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing in the Ordinance to suggest that the public purpose is to be determined in a judicial way. In this appeal, two principal contentions, which in the view I am inclined to take are the only contentions which need be referred to, were raised in the course of the arguments, one on behalf of the respondent and the other on behalf of the appellant. The contention of the respondent was that the Provincial Government has to act judicially in determining the public purpose and its action is therefore subject to a writ of certiorari if it acts beyond its legal authority. The contention on behalf of the appellant is that section 3 empowers the Government to form an opinion on two matters: (1) whether there is a public purpose; and (2) whether it is necessary or expedient in the interests of that purpose to requisition certain premises. Such being the case, the opinion of the Provincial Government on both these matters is final and cannot be questioned in any court of law. I have said enough with regard to the first contention, but I shall add just a few words more. For prompt action the executive authoriti.as have often to take quick decisions and it will be going too far to say that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary or expedient in the public interest will not make the requisition bad. But the same cannot be said with regard to the decision of the Provincial Government as to the existence of a public purpose, which is the foundation of its power and is a condition precedent to its exercise. If the executive authority requisitions land under section 3 without there being any public purpose in existence, its action is a nullity and the position in law is as if the authority did not act under section 3 at all. Such being the legal position, a person whose right is said to have been affected can always go to a proper court and 'claim a declaration that in law his right cannot be affected. I am not prepared to subscribe to the view that the determination of a public purpose and the opinion formed as to the necessity or expediency of requisition 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 fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the acquisition of certain land for a public purpose, namely, the making of a road. The appellant to the Privy Council, who was the person whose land had been acquired, contended that the land was not required for any public purpose and that the direction of the Governor was invalid.-The Privy Council repelled this contention and held that it was not open to the appellant to contend that the land was not needed for a public purpose. Lord Finley who delivered the judgment of the Board quoted with approval a previous decision of the Ceylon Court, Government Agent v. Perera (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 pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the realm, efficient prosecution of the war, etc., of which the executive authorities alone could be the best judges. So far as these matters are concerned, it is difficult to lay down an objective test for determining when the conditions upon which the executive authorities are to act should be deemed to be fulfilled. Thus there is no true-analogy between this case and the case before us. An analogy to be complete must rest not only on similarity of language but also on similarity of objects. In certain complicated or border-line cases, the courts may find it difficult to decide whether a certain matter has been committed to the judgment of the executive authority and made entirely dependent on its satisfaction or whether it is a condition precedent to the exercise of its jurisdiction or power. The line of demarcation between these two matters may appear to be a thin one but it has to be drawn for arriving at a correct conclusion. As I have already stated, a petition for a writ of certiorari can succeed only if two conditions are fulfilled: firstly, the order to be quashed is passed by an inferior court or a person or authority exercising a judicial or quasi-judicial function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of certiorari lies if the order complained of is either a judicial or a quasi-judicial order but iris not competent if the order is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability or affecting the rights of others." These observations of May C.J. were quoted by Lord Atkinson in Frome United Breweries 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By section 31 of the Mental Deficiency Act, 1913, it is provided that in case of doubt whether a child is or is not capable of receiving benefit from instruction in a special 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 exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The legal authority is clearly given by the section to grant the licences, and I have pointed out how it affects the rights of the subject. But the third question is the one which was most 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It is obvious that, before making the draft order,which must contain a definite proposal to designate the area concerned as the site of a new town, the respondent must have made elaborate inquiry 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 statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted and none has been given in judicial decisions. It was, however, observed in Hamabai Premjee Petit v. Secretary of State for India (1) that in order to constitute a "public purpose" in taking land 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Ordinance contemplate a thinking on the part of the Government that the place is not being used for the purpose of public religious worship, or does it contemplate a finding on facts that the place is not a place of public 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bombay. Section 306, read with section 176 of the Government of India Act, 1935, expressly preserves the right to sue in all cases where such a right could be exercised as against the East India Company. The learned Attorney-General argued 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsisting of Chagla C.J. and Tendolkar J.) dated January 4, 1949, by which the learned Judges affirmed an order of Bhagwati J. dated September 27, 1948, in so far as it granted a writ of certiorari, for bringing up and quashing a requisition order made by the Provincial Government under section a of the Bombay 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondents in answer to the prayers of the petitioner. It was contended inter alia that the orders made under the Ordinance were not judicial or quasi-judicial orders, but executive orders made by the Province of Bombay and no writs of certiorari or prohibition would lie against orders of this description. On 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the High Court is a judicial or an administrative act. It is not disputed that the writ does not lie to remove an act which is purely ministerial. It can be availed of only to remove and adjudicate on the validity of judicial acts (Per May C.J. in Reg. v. Dublin Corporation [1878] LR. 9 Ir. 371 at. p. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... school under section 56 of the Education Act, and two other connected documents. The Court was of opinion that as doubts did arise as to whether the boy was ineducable, it was a proper case to be determined by the Board of Education under section 31. It was held in these circumstances that the three documents which were parts and parcel of one and 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, it is not enough that it should have legal authority to determine questions affecting the rights of subjects, there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially." The material points for consideration therefore are what is the true criterion of a judicial act, and how it is to be ascertained 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at, must not be his 'subjective', 'personal' or 'private' opinion. It must be something which conforms to an objective standard or criterion laid 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large number of cases came up before the Courts in England which involved consideration of the provisions contained in various other orders and regulations relating to taking control of business or requisition of property. The language of these orders was very similar to that of Regulation 18 (B) under which the detention order was made in Liversidge's case. In Point of Ayr Collieries Ltd. v. Lloyd George ([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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not a piece of temporary legislation like Regulation 18 (B), and the provisions relating to holding of public enquiry, and hearing of objections, indicated according to the learned Judge that the function was of a quasijudicial character. There was no appeal against this judgment, but quite a contrary view was taken by the Court of Appeal in another case which involved consideration of the same provisions of the same 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 consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. The facts may undoubtedly be and often are objective facts about which the authority has got to form his opinion. When a statute says that a Minister can requisition property or order compulsory purchase if he deems it expedient to do so in the interest of public safety or the defence of the realm, the condition precedent to the exercise of his powers is not the actual existence of national interest, but his own opinion or belief that 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Bombay Legislature is not in session and the Governor of Bombay is satisfied that circumstances exist which render it necessary for him to take immediate action to enable the Provincial Government to make provisions for requisitioning of land and for continuance of requisition of lands already subject to requisition. Section 3 of the Ordinance is the most material section for our present purpose and it stands 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 :" 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no indication here, as there is in various statutes and regulations which I have referred to above that not merely the necessity or expediency of requisitioning property, but the existence of a public purpose which gives occasion for exercising the powers of requisition, is also a matter of personal opinion of the executive. Reference was made in course of arguments to the language of section 4 of the Indian Land Acquisition Act, and similar provisions in other Land Acquisition 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 Survey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar provision in section 3 (1) of the West Bengal Premises Requisition and Control Act, has been expressed in a different language and the actual existence of public purpose has not been made a condition precedent to the exercise of powers by the Provincial Government. The section is worded as follows: "Whenever it appears to the Provincial Government that any premises in any locality are needed or are likely to be needed for any public purpose, it may by order in writing requisition such premises." 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a clear index of a duty to act judicially. It was suggested, in course of arguments that as admittedly the actual act of requisition is discretionary with the Provincial Government, no writ of certiorari can possibly be issued. There is not much substance in this argument, for the very jurisdiction or authority to exercise discretion is dependent on a condition precedent which if unfulfilled would make the exercise of discretion void altogether. It is a commonplace feature of this class of legislation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral to the executive act and is an objective condition which must be fulfilled before the Provincial Government can take any steps in the matter. As I have stated already, on a proper interpretation of section a of the Ordinance, the latter is the proper view to take. This being the position, whether or not a public purpose exists is a preliminary question which is collateral to the merits of the executive act which is to be performed by the Government under section 3 of the Ordinance. Public purpose 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for the Justices to determine finally. "The enquiry is not in the course of exercise of jurisdiction but as a preliminary to it. The case therefore falls within the rule laid down in Bunbury v. Fuller (9 Ex. Ch. 111..) and the Justices' decision in the matter is subject to review. '' It must be admitted that in both these cases there was no dispute that the Justices had to exercise quasi-judicial powers, and the only question was whether the facts upon which the exercise of jurisdiction was 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 atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on behalf of His Majesty by the Governor, either directly or through officers subordinate to him." Section 50 lays down that" there shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion." Section 51 provides inter alia how the ministers are to be chosen and section 52 deals with the special responsibilities of the Governor. Section 59 (1)provides that "all executive action of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... protection is purely personal follows clearly from the latter part of the section which interdicts any proceeding against the Governor General, the Governor of a Province or the Secretary of State, after they have ceased to be in office, for any act of omission or commission during the term of their office. This part of the section would be wholly devoid of any meaning, if the Governor of a Province, is taken to be synonymous with the Provincial Government. The Governor of a Province is certainly a part of the Government of the Province and formally he is the mouthpiece of all executive acts done in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly provided that "the Governor and Council at Bombay and the Governor-General and Council of Fort William shall enjoy the same exemptions and no other from the authority of the Supreme Court to be erected at Bombay as is enjoyed by the said Governor in Council at Fort William from the Judicature of the Supreme Court of Judicature there already established." Assuming that these powers and disabilities of the Supreme Court continued even after the establishment of High Courts by reason of section 9 of the High Courts Act, 186 1, and that these limitations were implicitly recognised in section 106 of the Government of India Act, 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 sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent if such proceeding could have been instituted against the Secretary of State in Council under the law as it stood prior to the passing of the Constitution Act. The right and liability of the Secretary of State for India to sue or to be sued were created for the first time by section 65 of Act 21 and 22 Victoria, Ch. 106, which was passed in 1858 on the transfer of the Government of India from the East India Company to the Crown. The section runs as follows: "The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate, and 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt Power. A bill was filed by the widow of the deceased to recover possession of the properties. It was held by the Privy Council that the suit was not maintainable. Lord Kingsdown laid down that the real point for determination in such cases was whether ''it was seizure by arbitrary power on behalf of the Crown of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of municipal law; or whether it was in whole or in part a possession taken by the Crown under colour of legal title of the property of the late Raja of Tanjore in trust for those who by law might be entitled to it on the death 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 Sover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng which must begin with a plaint and end in a decree as laid down in the Civil Procedure Code. No argument can also in my opinion be rounded upon the fact that there was no express mention of prerogative writs in clause (13) of the Charter by which the Supreme Court was first established in Bengal. The Supreme Court was invested under clause (5) of the Charter with all the powers and privileges of the Court of King's Bench in England and these undoubtedly included the power of issuing certiorari and other prerogative writs. There are reported cases to show that the writs of mandamus were issued to the Directors of East India Company by the Court of King'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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, examine them and, if thought fit, quash them. The real reason for this extension of the scope of the writ of certiorari was the distrust with which the Judges looked upon the numerous statutory bodies that were being brought into existence and vested with large powers of affecting the rights of the subject and this extension was rounded on the plausible plea that these statutory bodies exercised quasi-judicial functions. The law is now well settled that a writ of certiorari will lie to control a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, provided that, on a true construction 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 Ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of opinion as to the necessity or expediency for exercising that power under the earlier part of the section and this correlation was brought about by the use of the word "so" in conjunction with the words "to do." To my mind, the words "to do so" covered and included within their meaning whatever Provincial Government had been authorised to do. By the operative part of the section the Provincial Government had been empowered, not to requisition simpliciter but to requisition for a public purpose. The words "to do so" in the opening part of the sentence necessarily, therefore, referred to the act of requisitioning for a public purpose and it must follow, therefore, that the necessity or expediency 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny land for a public purpose." So read, the section would mean that the Provincial Government would, in order of sequence, first have to form its opinion as to the necessity or expediency for requisitioning any land without reference to any purpose. On this interpretation it is clear that the Provincial Government could not act directly upon the opinion so formed, because the exercise of the power depended on the existence of a public purpose as an objective fact which had yet to be determined. If that were to be so then what was the necessity for the anterior formation of opinion by the Provincial Government ? A formation of opinion as to the necessity or expediency of a purposeless requisitioning would be an entirely useless, incomplete and futile mental exercise, for such formation of opinion would not have in any way helped the Provincial Government in making an order of requisition at all. (iii) According to the respondents' interpretation the existence of a public purpose as an objective fact had to be determined first before the Provincial Government would form its opinion as to the necessity or expediency of requisitioning a particular land. This argument amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular person's land was actually sought to be requisitioned at that stage. Indeed this issue could not arise until a person was actually threatened with a requisition order. An interpretation that leads to such an absurd and anomalous position cannot but be rejected. (vii) If it is contended that the Provincial Government had to decide this issue as and when it sought to requisition any particular land belonging to a particular person, the result will be still more anomalous. in that case the Provincial Government would be called upon to decide the self same issue as to the existence of a public purpose as often and as many times as it would need any land, for the decision in one case will not bind the owner of a different land. There would have to be as many decisions as to the existence of a public purpose as there would be number of plots of land to be acquired. Can anything be more absurd than this ? (viii) If the decision on the existence of a public purpose had to be made along with or simultaneously with the formation of opinion as to the necessity or expediency for requisitioning any particular land then it must be conceded that the two matters were correlated to each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support my above conclusions. It is well established that if the legislature simply confides the power of doing an act to a particular body if in the opinion of that body it is necessary or expedient to do it, then the act is purely an administrative, i.e., an executive act as opposed to a judicial or quasi-judicial act, and, in the absence of proof of bad faith, the Court has no jurisdiction to interfere with it and certainly not by the high prerogative writ of certiorari. Usually this discretion is confided by the use of expressions like "If it appears to,." "If in the opinion of" or "If so and so is satisfied." In Mayor etc. of Westminster v. London and NorthWestern Railway Company ([1905] A.C. 426.) Lord Halsbury L.C. observed: "Assuming the thing done to be within the discretion of the local authority, no Court has power to interfere with the mode in which it has exercised it. Where the Legislature has confided the power to a particular body, with a 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.&q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes for which it appeared likely to be needed as aforesaid. And upon receipt of such report it shall be lawful for the Governor, with the advice of the Executive Council, to direct the Government Agent to take order for the acquisition of the land. " In delivering the judgment of the Board Lord Finlay approved of a previous decision of the Supreme Court of Ceylon and observed as follows: "It appears to their Lordships that the decision of the Governor that the land is wanted for public purposes is final, and was intended to be final, and could not be questioned in any Court. The nature of the objection is such that it would be obviously unsuitable for the District Court, which is concerned with questions of compensation which would arise if the land is to be taken. But the question might also be raised in a preliminary way, as was suggested by Lord Wrenbury in the course of the argument. It might 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that what had been left to the subjective opinion of the competent authority was only the necessity for taking control of the undertaking. This was, however, repelled and in dismissing the appeal Lord Greene M.R. with whom Goddard and du Parcq L. JJ. concurred observed as follows: "If one thing is settled beyond the possibility of dispute, it is that, in construing regulations of this character expressed in this particular form of language, it is for the competent authority, whatever Ministry that may be, to decide as to whether or not a case for the exercise of the powers has arisen it is for the competent authority to judge of the adequacy of the evidence before it. It is for the competent authority to judge of the credibility of that evidence. It is for the competent authority to judge whether or not it is desirable or necessary to make further investigations before taking action. It is for the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation. All these matters are placed by Parliament in the hands of the Minister in the belief that the Minister will exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the Court. All this line of reasoning was rejected by Lord Greene M.R. with the concurrence of Goddard and du Parcq L. JJ. in the following words: "The last point that was taken was to this effect, that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad faith --and I may say that there is no such allegation here --is not open to this Court. It has been decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so, it would mean that the Courts would be made responsible for carrying 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dealing was for the satisfaction of the Minister, that he was the sole judge, that no objective test was possible and that the decision of the Minister was an administrative act. Franklin v. Minister for Town and Country planning ([1947] 2 A.E.R. 289; [1948] A.C.87 Towns Act. 1946,) was concerned with section 1 (1) of the New the relevant portions of which ran as follows: "If the minister is satisfied, after consulting with any local authorities who appear to him to be concerned, that it is expedient in the national interest that any area of land should be developed as a new town by a Corporation established under this Act, he may make an order designating that area as the site of the proposed new town." Here what was left to the satisfaction of the Minister was not only whether it was expedient that any area, should be developed as a new town but whether it was expedient in the national interest that any area should be so developed. If the present arguments were sound 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for the purpose of religious worship shall be requisitioned under this section." I find no difference between the language of this section and that of section 3 of the Bombay Ordinance as construed by me. It is quite clear that what was left to the opinion of the Provincial Government was not the need of the premises simpliciter but the need of any premises for a public purpose as a composite matter. If the present arguments were sound, it could be held that the section postulated the existence of a public purpose and that what was left to the opinion of the Provincial Government was the need of the premises for that public purpose. It was, however, held by a Division Bench of the Calcutta High Court and I think quite rightly--that it sufficed for the exercise of the power that the local Government was satisfied as to the existence of the condition precedent to the exercise of its powers. To summarise: It is abundantly clear from the authorities cited above that questions of fact such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The petitioner gave evidence in Court. There is nothing in the evidence which may support any plea of bad faith on the part of the Provincial Government or its officers. All that was said was that Mrs. C. Dayaram to whom the requisitioned premises had been allotted was the wife of an advocate from Karachi, and was a refugee and that the petitioner did not know whether her husband had also migrated from Karachi. At an adjourned hearing the question was put as to whether Mrs. Daygram was concerned in any manner whatever with the administration of Government of Bombay or was a public servant. The purpose of the question was perhaps to establish that she was in a position to influence the Government officers. The petitioner in fairness replied that he was not aware if she were. In the evidence there is nothing from which it can be taken as proved that the Provincial Government and its officers had acted in bad faith. Secondly, it was suggested that the Provincial Government had not acted within 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 fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngenuity of his counsel in creating an atmosphere of mere suspicion, which falls far short of legal proof. I now pass on to the second head of argument which is based on the assumption that the existence of a public purpose had not been left to the subjective opinion of the Provincial Government but was an objective fact which was a condition precedent to the exercise of the power of requisition. What consequences follow from this assumption ? The contention of the respondents is that the fulfilment of this condition as an objective fact had to be determined by the Provincial Government judicially and that being thus charged with a quasi-judicial function the Provincial Government became amenable to the high prerogative writ of certiorari in case it acted without jurisdiction or in excess of it or in violation of the principles of.natural justice. The question, therefore, arises as to what are the tests for ascertaining whether the act of a statutory body is a quasi-judicial act or an administrative act. As 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contingency which may involve a question of fact, but the question of fulfilment of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the several Ordinances, regulations and enactments considered and construed in the several cases referred to above. The first two items of the definition given by Atkin L.J. may be equally applicable to an administrative act. The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L.J.'s definition, namely, the duty to act judicially. As was said by Lord Hewart C. J. in R. v. Legislative Committee of the Church Assembly: "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 superadded 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 (2). Therefore, in considering whether a particular statutory authority is a quasi- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciate that under a clearance area scheme, to which objections are made by the owners of the property in the area, there is a true contest as between the owners of the property and the local authority; in other words, there are two sides as between whom the Minister has to come to a determination after consideration". The following passage from the judgment of Greet L.J. in that case quoted with approval by Swift J. in Frost & others v. Minister of Health ([1935] 1 K.B. 286, pp.292-3) takes the matter a little further in that line: "In so far as the Minister deals with the matter of confirmation of a closing order in the absence of objection by the owners, it is clear to me, and I think to my brethren, that he would be acting in a ministerial or administrative capacity, and would be entitled to make such enquiries as he thinks necessary to enable him to make up his mind whether it was in the public interest that order should be made. But the position, in my judgment, is different where objections are taken by those interested 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de authority to decide those disputes. The following observations of my Lord the Chief Justice then sitting as a Single Judge in the Bombay High Court, in Kai Khushroo Sorabjee v. The Cormmissioner of Police ((1947) Bom. L.R. 717; A.I.R. 1947 Born, 153.) in which an order made under the Defence of India Rules was under consideration, are relevant on this point: "It appears to me that unless the authority invested with the power to pass an order had to act judicially, i.e., to weigh a question from two sides and decide on the matter, no question of quasi-judicial act can arise. The two sides cannot include himself as he is the deciding authority." In Franklin v. Minister of Town and Country Planning ((1947) 176 L,T..312, 316.), while it was before the Appeal Court, Lord Oaksey L.J. said: "In all the authorities which have been referred to as showing that at an enquiry there must be an examination of the case of both sides, there was what has been called a lis: that is to say, there were two parties contesting and the Minister as an outside 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 Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry, hear objections and evidence in support thereof and make their final decision after considering all facts and circumstances. Take the case of Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust ([1937] 3 A.E. R. 327 (P.C.).). The contest was between the appellant as owner and the respondent Trust as the authority making an adverse declaration with respect to the appellant's building. By the very provisions of the statute the respondent Trust was made the judge in its own cause. It was, however, directed to entertain objections, hear evidence and then decide the issue. It is this last mentioned circumstance on which this decision rests. It is needless to multiply instances, for, I think, these cases sufficiently illustrate the position. What are the principles to be deduced from the two lines. of cases I have referred to ? The principles, as I apprehend them, are: (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially affected opposed the requisition. The case, therefore, did not satisfy the test of a quasi-judicial act based on the presence of two parties apart from the Provincial Government. Chagla C.J. obviously felt the difficulty and tried to get over it by introducing the State as a party, as if, under the Government of India Act, 1935, the State was a legal entity apart from the Provincial Government. This introduction of a fiction is wholly unconvincing and cannot be supported. The Ordinance under review did not contemplate or permit such a fiction. The bald fact has to be faced that in this case there was an absence of two contending parties apart from the Provincial Government which was the deciding authority. This, as I have said, is, however, not decisive, for it has yet to be enquired whether the case satisfied the second test, that is to say, whether the Ordinance required the Provincial Government to act judicially. Turning now to the provisions of the Ordinance, it is contended that it is implicit in section 3 that the existence of a public purpose must be determined judicially. The argument may be summed up thus: The existence of a public purpose as an objective fact was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent laid down in the proviso to section 3 or in section 4 had not been left to the opinion of the Provincial Government could not affect the question of construction of the language used in the main body of section 3 or alter the nature or character of the act under that section. The first part of the argument overlooks this aspect of the matter. The second part of the argument proceeds on the assumption that an objective fact can never be left to the subjective opinion of a specified authority and must always be determined judicially. The cases already referred to in connection with the first head of arguments clearly show that the question of the existence of a public purpose or the interests of the State and the like may well be, and, indeed, often are, left to the subjective opinion or satisfaction of the specified authority and in such cases its decision, in the absence of bad faith, cannot be challenged in any proceeding. Even if the matter be not left to its subjective opinion, nevertheless, as already pointed out, an administrative authority has frequently to come to a decision in its own mind as to the objective facts such as the existence of a public purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be requisitioned or continued under requisition. Every person required to furnish such information as is referred to in sub-section (1) shall be deemed to be legally bound to do so within the meaning of sections 176 and 177 of the Indian Penal Code (XLV of 1860). 12. Power to enter and inspect land.--Without prejudice to any powers otherwise conferred by this Ordinance any officer or person empowered in this behalf by the Provincial Government by general or special order may enter and inspect any land for the purpose of determining whether, and, if so, in what manner, an order under this Ordinance should be made in relation to such land or with a view to securing compliance with any order made under this Ordinnace. " In considering and construing the above sections it has to be borne in mind that a mere provision for an enquiry as a preliminary step to coming to a decision will not necessarily make the decision a quasi-judicial act, for the purpose of the enquiry may only be to enable the deciding authority to make up its mind to do what may be a purely administrative act. Take the case of Robinson v. Minister of Town and Country Planning ([1947] 1 A. E ,R. 851,) to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e elaborate inquiry 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 some one 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 s. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only matter under section 3, which, according to Mr. Seervai, had to be judicially determined by the Provincial Government ? I fail to perceive any. As I have said, information relating to land certainly had a bearing on the question whether it was necessary or expedient to acquire that particular land which admittedly was a purely administrative act. Finally, section 10 enabled the Provincial Government to require 'any person' to furnish information relating to the land. The Ordinance did not think fit even to mention the owner or other persons interested in the land as a specific source of information. Assuming that the Provincial Government was obliged to make any enquiry, the owner of the land had no special right to be consulted apart from the general right of "any person." No provision was made for giving notice of the intended requisition by special notice or by advertisement or for enabling any aggrieved person to lodge any objection and nobody was designated as authority on whom was cast any duty to hear the objections. Further, it will be noticed that under the section the information was to be furnished to such authority as might be specified, which mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended to serve the purpose of obtaining information which would enable the Provincial Government to exercise its administrative, i.e., executive function of making an order for requisition. The conclusions I have arrived at are (i) that on a true construction of section 3 of the Ordinance the determination of the existence of a public purpose and the necessity or expediency for requisitioning any particular land for that purpose was a purely administrative act, for the entire composite matter was left to the opinion of the Provincial Government, and its decision, if made in good faith, could not be questioned; (ii) that, apart from the question of construction and assuming that the matter had not been left to its opinion, the determination of the existence of a public purpose or the necessity or expediency for making the order could not be regarded as a quasi-judicial act, because (a)there was no lis in the sense of dispute between two contesting parties to be decided by the Provincial Government; and (b) the Provincial Government was not required by the Ordinance to hold any judicial inquiry or to act judicially and that the determination of the existence of a public purpose w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decisions, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Woodhouse ([1906] 2 K.B. 501.) the Court of Appeal accepted the position that the licensing Justices in granting or refusing to grant the licence had to perform a quasi-judicial act, for they had to decide the matter as between two contending parties, namely, the applicant for licence and the persons opposing the grant. There the Justices granted a provisional licence and referred the matter to Quarter Sessions. Three points were taken, namely, (i) that the Justices did not apply their mind to the issue and failed to decide the matter judicially but made the order in pursuance of a pre-existing agreement between them and the Corporation, (ii) that the Justices were biased and (iii) that the power of the Justices being limited to granting licences to persons who had some specified qualifications, they could not, by wrongly deciding that the applicants had the necessary qualifications, assume jurisdiction to do the quasi-judicial act of granting the licence. This decision of the Court of Appeal was reversed by the House of Lords in Lord Mayor etc. of Leeds v. Ryder ([1907] A.C. 420.) on the ground that the Justices had to act according to their own discretion and that they were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed but the administrative act, namely, the formation of opinion and the order based thereon would remain unaffected, for certiorari would not affect it. The passage I have quoted from the judgment of Lord Greene M.R. in Robinson v. Minister of Town and Country Planning, clearly establishes that although the preliminary enquiry had to be done in a quasijudicial manner, that fact could not alter the nature or character of the ultimate administrative act. That administrative act would remain an administrative act and could not be touched by certiorari. The third head of arguments advanced on behalf of the respondents must, therefore, also fail. In my judgment the first of the two points raised by the learned Attorney-General on behalf of the appellant must prevail for reasons stated above. This is sufficient to dispose of this appeal and the second point, namely, whether a writ of this nature can lie against the Provincial Government, does not arise. In view of the fact that the Government of India Act, 1935, has been repealed and the provisions of our Constitution on this point are different from those of the Government of India Act, the question has also become academic for future ..... X X X X Extracts X X X X X X X X Extracts X X X X
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