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TMI Blog1962 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ntage of hearing very able arguments on both sides we think it right to give our reasons in some detail. (2.) It is necessary to set out briefly the facts giving rise to the present litigation in order to appreciate the contentions which have been urged before us. The first petitioner is the owner of P. P. No. 61 in Ellis Bridge Town Planning Scheme No. 3 Osmanpura Ahmedabad. The first petitioner has four sons and two daughters. The first petitioner wanted to construct four bungalows three for his sons and one for himself and he therefore subdivided this plot into ten sub-plots so that he could sell off six sub-plots and from the sale proceeds find monies for the construction of bungalows on the remaining four sub-plots. The first petitioner submitted a plan showing the lay out of various sub-plots to the Municipal Corporation of Ahmedabad and the same was sanctioned by the Municipal Corporation of Ahmedabad on 29th October 1959 The first petitioner also obtained permission of the City Deputy Collector Ahmedabad for non-agricultural use of the entire plot. This permission was granted by the City Deputy Collector Ahmedabad on 6th October 1959. The first petitioner thereafter sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore require any more land for its original seventeen members. The third respondent-Society however alleged that in addition to the original seventeen members for whom bungalows had been constructed on F.P. No. 62 the third respondent-Society had enrolled ten other members for whom the third respondent-Society required F.P.No.61. The third respondent - Society accordingly resolved at the meeting of the Managing Committee held on 6th September 1959 to apply to the Government for the acquisition of F.P.No. 61 and an application was accordingly made by the third respondent-Society to the Government on 12th September 1959. The additional ten members enrolled by the third respondent-Society did not have so alleged the third respondent-Society any residential houses in the City of Ahmedabad or the Ahmedabad District and P. P. No. 61 was therefore required by the third respondent-Society for construction of houses for the additional ten members. The petitioners however challenged the requirement of the third respondent-Society and contended that the acquisition was mala fide and was calculated to enable a group of ten individual persons to obtain at a nominal price various sub-plots ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry and that the various objections raised by the petitioners were required to be decided in a judicial manner and that the petitioners were therefore entitled to cross-examine the members of the third respondent-Society for whose benefit or at whose instance the land comprised in P. P. No. 61 was proposed to be acquired for the purpose of testing the bona fides of the proposed acquisition. The first petitioner also stated in this application that the petitioners wanted to know whether the new members of the third respondent-Society had residential houses in Ahmedabad District either in their own names or in their fathers name or in the names of any of their family members and that this information was necessary for the purpose of the inquiry which was being held by the second respondent. The second respondent rejected this application by an order dated 24th January 1961 on the view that the inquiry before him was a limited one and that the petitioners were not entitled to have the members of the third respondent - Society presented for cross-examination. The second respondent also refused to call for the further particulars demanded by the petitioners from the third responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act. The following are the relevant sections of the said Act which have a bearing on the determination of the question raised before us :- -4 Publication of preliminary notification and powers of officers thereupon :- - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. (2) Thereupon it shall be lawful for any officer either generally or specially authorized by such Government in this behalf and for his servants and workmen to enter upon and survey and take levels of any land in such locality; to dig or bore into the sub-soil; to do all other acts necessary to ascertain whether the land is adapted for such purpose; to set out the boundaries of the land proposed to be taken and the intended line of the work (if any) proposed to be made thereon; to mark such levels boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea and where a plan shall have been made of the land the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company as the case may be; and after making such declaration the appropriate Government may acquire the land in manner hereinafter appearing x x x x x x x x x x x x x x x x x x 40 Previous enquiry:- - (1) Such consent shall not be given unless the appopriate Government be satisfied either on the report of the Collector under section 5A sub-section (2) or by an enquiry held as hereinafter provided. (a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith or (b) that such acquisition is needed for the construction of some work and that such work is likely to prove useful to the public. (2) Such enquiry shall be held by such officer and at such time and place as the appropriate Government shall appoint. (3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and as far as possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 14 or sec 40 of the Act he has power to call for. If evidence tendered by the objector is admitted the Collector shall also afford the other party an opportunity of resulting it by other evidence or of cross-examining the witnesses:- If he admits evidence he will fix a time and place of hearing it; and will hear and record it in his proceedings 4 Agents. other than pleaders will not be allowed to appear on behalf of persons interested in any enquiry under section 5A of the Act. 5 After completing the record of evidence the Collector shall submit his report and recommendations as to each objection whether inadmissible or admissible for the orders of Government under sec. 5A(2) of the Act. (5.) The first contention on behalf of the petitioners was that the object of the proposed acquisition was not a public purpose inasmuch as the proposed acquisition was for the benefit of ten additional members of the third respondent-Society and the need of ten additional members of the third respondent Society to construct residential bungalows for themselves could not be said to be a public purpose justifying the proposed acquisition particularly when the petitioners themselves wante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the real object of the first petitioner in doing various things set out in the petition was only to save the land comprised in F. P. No. 61 from the intended acquisition. The petitioners in their turn of course denied these allegations in the various affidavits filed by them in rejoinder to the affidavit filed on behalf of the third respondent-Society. These allegations and Counter - allegations between the petitioners and the third respondent-Society were made only for the purpose of showing on the side of the petitioners that there was no public purpose and on the side of the third respondent - Society that there was a public purpose for which the land comprised in F. P. No. 61 could be validly acquired by the government. It is not however necessary for us to consider these allegations and counter-allegations since we are of the view that the contention that the object of the proposed acquisition was not a public purpose is prematurely taken. We shall briefly indicate our reasons for taking this view. (6.) The present petition was filed when only the notification under section 4 was issued and the purpose of the acquisition was still at the inquiry stage. The result therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore for the Government to decide in its subjective satisfaction that there exists a public purpose for which any particular land is needed to be acquired and it is only when the government is satisfied that a public purpose exists for the advancement of which any particular land is needed to be acquired that the government can issue the notification under section 6 acquiring the land for such public purpose. The notification under section 6 declaring that any particular land is needed for a public purpose is also made conclusive evidence that such land is needed for a public purpose. It is therefore clear that the question whether the purpose for which the acquisition in made is a public purpose is left to the subjective determination of the government and the Government is made the sole arbiter of that question. It is not competent to the Court to consider the question whether the purpose of the acquisition is a public purpose for the discretion to decide this question is committed by the Legislature to the Government. The Government is the competent authority selected by the Legislature to come to the decision and that if that decision is come to in good faith the Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e acquisition was to obtain land for the erection of dwelling houses for workmen employed by the third respondent-Society or for the provision of amenities directly connected therewith or the acquisition was needed for the construction of some work and such work was likely to prove useful to the public. If the purpose of the acquisition was the construction of residential houses for the third respondent-Society as appearing from the notification under section 4-so the argument proceeded the acquisition could not be said to be for the purpose of obtaining land for the erection of dwelling houses for workmen employed by the third respondent-Society or for the provision of amenities directly connected therewith nor could it be said that such acquisition was needed for the construction of some work likely to prove useful to the public for the residential houses for the third respondent-Society for the construction of which the acquisition was needed could not be said to fall within the scope and meaning of the words some work....likely to prove useful to the public in sec. 40. The contention therefore was that the acquisition for the construction of residential houses for the third res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request of the petitioners. At the further hearing the petitioners relying on this decision of the Supreme Court reiterated the same contention which was urged by them at the time of the first hearing of the petitions namely that the acquisition could not be made for the third respondent-Society under the provisions of Part VII since the purpose of the acquisition was not to obtain land for the erection of dwelling houses for the workmen employed by the third respondent-Society or for the provision of amenities directly connected therewith nor was the acquisition needed for the construction of some work.......likely to prove useful to the public within the meaning of that expression as interpreted by the Supreme Court and applied for leave to amend the petition so as to incorporate this contention as a ground of attack against the validity of the acquisition proceedings. We rejected the application and for two reasons. Firstly the application was made at a very late stage of the proceedings after the arguments were concluded and the judgment was reserved and that too in a petition for the issuance of high prerogative writs of mandamus and certiorari and secondly the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertake a housing scheme for the purpose of increasing accommodation for housing persons and in that event land maybe acquired for the purpose of such housing scheme by the government on payment of market value prevailing on 1st January 1948 even though the market value at the date of the acquisition might be much higher. But as the language clearly suggests this provision can be invoked only in case of acquisition for a housing scheme for the purpose of increasing accommodation for housing persons when such housing scheme is undertaken either by the government or by a local authority or Company with the previous sanction of the Government. This provision enabling the government to acquire land only on payment of the market value prevailing on 1st January 1948 irrespective of the market value on the date of acquisition is certainly a harsh provision and can be justified only on ground of paramount public interest and that is why its operation is confined to acquisition for the purpose of a housing scheme which may be undertaken by the government or with the previous sanction of the Government by a local authority or Company for the purpose of increasing accommodation for housing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the government has made up its mind to issue notification under section 6 for acquisition of the land and it cannot be said to be impossible that the government might ultimately decide not to acquire the land. even if the Government ultimately decides to acquire the land the government might not and as pointed out above we have no reason to believe that the government would give sanction to the third respondent Society for the construction of residential bungalows for its ten additional members so as to make the provisions of the Land Acquisition (Bombay Amendment) Act 1948 applicable to such acquisition. It is therefore in our opinion premature to say that the acquisition is mala fide or is calculated only to benefit the ten additional members of the third respondent-Society by enabling them to acquire land at the considerably low prices prevailing on 1st January 1948 though the petitioners require the same bona fide for construction of their own residential bungalows. (10.) We now pass on to the last head of the argument urged on behalf of the petitioners which has evoked the greatest controversy between the parties. The question which arises under this head of argument i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been met by the procedure adopted in a particular case must depend to a great extent on the facts and circumstances - such as can be reduced to any formula exclusive or inclusive which can have universal application to every kind of inquiry for a good deal may depend on the subject matter the nature of the inquiry itself the nature and constitution of the tribunal or authority which holds the inquiry and the rules under which the inquiry is held. As Tucker L. J. said in Russell v. Duke of Norfolk (1949) 1 All. E. R 109 :- There are in my view no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case the nature of the inquiry the rules under which the tribunal is acting the subject-matter that is being dealt with. and so forth. (11.) Viscount Haldane L. C. said much to the same effect in Local Government Board v. Arlidge. (1915) A. C. 120 when he said:- My Lord when the duty of deciding an appeal is imposed those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias and they must give to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d depend upon the subject matter the nature of the inquiry the constitution of the tribunal and the requirements of the law as laid down in the statute and the rules framed under the statute. As observed by Sinha J. as he then was in Nagendra Nath v. Commissioner of Hills Division. G. L. R. 1958 S. C. 398) :- In this connection the High Court has made reference to the several affidavits filed on either side and the order in which they had been filed and the use made of those affidavits or counter-affidavits. As already indicated the rules make no provisions for the reception of evidence oral or documentary or the hearing of oral arguments or even for the issue of notice of the hearing to the parties concerned. The entire proceedings are marked by a complete lack of formality. The several authorities have been left to their own resources to make the best selection. In this connection reference may be made to the observations of this Court in the case of New Prakash Transport Co Ltd. v. New Suwarna Transport Co. Ltd. 1957 SCR 98:- ( AIR 1957 SC 232 ). (16.) In that case this Court has laid down that the rules of natural justice vary with the varying constitution of statutory bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man J. in Byrne v. Kinematograph Renters Society Ltd. (1958) 2 All E. R. 579 where the learned Judge said :- What then are the requirements of natural justice in a case of this kind ? First I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly of course that the tribunal should act in good faith I do not think that there really is anything more. (20.) The conclusion we reach from this discussion is that there are certain basic principle relating to the requirements of natural justice which must be followed in all cases by those who hold any judicial inquiry unless of course the statute in express terms or by necessary implication absolves them from the obligation to do so Very broadly expressed the first principle is that the party to the controversy must know with reasonable certainty the nature of the case against him. Secondly he should be give a fair and proper opportunity to meet the case against him and to state his own case. According to this principle he should have a fair and proper opportunity to make any relevant statement which he may desire to bring forward and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e if in his opinion it is not desirable to do so. Whether this rule entitling the Collector to decide whether or not to hear oral or documentary evidence enacts a valid provision is a matter with which we are not concerned in the present petition. It may be argued that the right to be heard includes the right to lead oral as well as documentary evidence and that this rule therefore in so far as it empowers the Collector to decline to take oral are documentary evidence if he thinks that it is not desirable to do so derogates from the right to be heard and is consequently ultra vires section 5 How far such an argument is a valid argument may have to be decided when an appropriate occasion arises but even if such an argument is correct and it is not open to the Collector holding the inquiry to take oral or documentary evidence tendered by the objector it does not help the petitioners on this part of the case for even on that view there is nothing in the rules which would entitle the petitioners to obtain the further information required by them from the third respondent-Society or to cross-examine any members of the third respondent-Society even though they have not given evidence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional prayer praying for a writ of mandamus or any other appropriate writ direction or order directing the first and the second respondents to hold the inquiry and to dispose of the objections of the petitioners under section 5A in a quasi judicial manner. The amendment was granted by us and on the amendment the question directly arose for decision whether the inquiry is a quasi judicial inquiry or an administrative inquiry. (21.) Now in order to determine the question whether the inquiry is a quasi judicial inquiry or an administrative inquiry it is necessary to examine the scheme as appearing from the various provisions of the Act. The long title of the Act shows that it is an Act to amend the law for the acquisition of land for public purposes and for Companies The preamble to the Act also makes it clear that it is an amending Act enacted for the purpose of acquisition of land needed for public purposes and for Companies and for determining the amount of compensation to be made on account of such acquisition. The Act nowhere defines the expression public purpose beyond stating in sec. 3(f) that the said expression includes the provision of villagesites in districts in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Part VII are complied with for action under sec. 6 for acquiring land for a Company is expressly made subject to the provisions of Part VII. This is made further clear by sec. 39 which lays down that the provisions of sec. 6 to 37 (both inclusive) shall not be put in force in order to acquire land for any Company unless with the previous consent of the appropriate government nor unless the Company shall have executed the agreement hereinafter mentioned. Before therefore the machinery provided for acquisition of land under sec. 6 to 37 (both inclusive) of the Act is put into force for acquiring land for a Company two conditions precedent must be fulfilled namely (1) the previous consent of the Government must be obtained and (2) an agreement in the terms of sec. 41 must be executed by the Company. (Babu Barkya Thakur v. The State of Bombay and Others A. I. R. 1960 S. C. 1203). Section 40 imposes a further limitation an prescribes that the Government shall not give its consent for bringing into operation the machinery provided Not sec. 6 to 37 for acquisition of land for a Company unless it is satisfied either on the report of the Collector under sec. 5A or by an enquiry held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some work likely to prove useful to the public do not serve a public purpose. Hence even when the acquisition is for a Company under section 6 the acquisition is for a public purpose in the restricted sense in accordance with section 40 and the notification under section 4 stating that it appears to the Government that land is needed or is likely to be needed for a public purpose would therefore correctly and legitimately cover such a case. Whether the acquisition under section 6 is for a public purpose or for a Company the notification under section 4 would equally cover both cases and there is therefore no real inconsistency between the provisions of section 4 and section 6. (23.) Now it is clear from the discussion of the various provisions of the Act that the notification under section 4 is merely an introductory measure. It is tentative in its nature and there is no finality or immutability about it. It is of an exploratory character and it does not proprio motu result in acquisition. As observed by the Supreme Court in Babu Barkya Thakur v. The State of Bombay and others (supra):- The purpose of the notification under sec. 4 is to carry on a preliminary investigation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government to decide whether any particular land is needed for a public purpose or for a Company the law has provided the safeguard of an inquiry so that there may be proper and adequate material before the Government before the government can arrive at a satisfaction one way or the other and at the same time persons interested in the land who would be prejudicially affected by the acquisition of the land in the sense that they would be deprived of the land though not without compensation would have an opportunity of placing proper and adequate material before the government to combat the proposal for acquisition initiated by the government by issue of the notification under section 4. If the inquiry were not provided there is a possibility that proper and adequate material bearing on the subject in regard to which the government has to arrive at a satisfaction may not come to the knowledge of the government and the satisfaction of the government may be based on incorrect and insufficient material and a notification may be issued by the government under section 6 acquiring the land for a public purpose or for a Company which the government would not have made if the entire matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the material facts had come to its knowledge The Legislature therefore provided a safeguard in the shape of an inquiry under sec. 5 A enabling persons interested in the land to make objections to the acquisition and providing for hearing of such objections at the inquiry so that persons interested in the land can place before the Government their point of view regarding the matter on which the Government has to arrive at a satisfaction together with such material as they like in support of their point of view in order that the Government may be apprised of all the facts and circumstances relating to such matter and the Government may not erroneously arrive at a satisfaction leading to the issue of the notification under sec. 6 for the acquisition of the land. These two purposes which an inquiry under sec. 5A is intended to serve are complementary as well as supplementary to each other. The Government cannot fully and fairly inform itself about the matter in regard to which it has to arrive at a satisfaction unless persons interested in the land sought to be acquired are given an opportunity of placing all relevant material before the Government for combating the proposed acquisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kings Bench Division exercised in these writs. (27.) This definition was accepted as correct in Rex v. London County council (1931) 2 K B. 215 and by many learned Judges in subsequent cases including the latest decision of the Privy Council in Nakkuda Ali v. M. F. De S. Jayaratna (1951 A. C. 66). In Banwarilals case (48 C.W.N. 766) Das J. pointed out very rightly that of the three elements involved in the definition given by Atkin L. J. two may be present in an administrative act as well. Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or quasi judicial function has to do. Both have to act in good faith. A good and valid administrative act binds the subject and affects his rights or imposes liability on him j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it the final determination of the authority will yet be a quasi judicial act provided the authority is required by the statute to act judicially. (30.) In other words while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially the absence of two such parties is not decisive in taking the act of The authority out of the category of quasi judicial act if the authority is nevertheless required by the statute to act judicially. (31.) In the first class of cases where there is a lis between two parties and the statutory authority is an outside authority empowered to decide the lis there would be prima facie and in the absence of any other factor a duty on the statutory authority to act judicially. But even in this class of cases the provisions of the statute under which the statutory authority is empowered to decide the lis between the parties may clearly negative the existence of a duty to act judicially and in such a case the act of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fere 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. xx xx xx (33.) Sometimes the Legislature may entrust a power to a specified authority to do an act for a certain purpose. Even in such a case the Legislature may nevertheless by appropriate language leave not only the determination of the necessity or expediency for doing the act but also the determination of the necessity or expediency for doing the act for that purpose as a composite matter to the opinion satisfaction or discretion of that authority. In such a case what is a condition precedent for the doing of the act is not the actual existence of the particular purpose but the opinion of the specified authority that the purpose exists. In other words the authority is also made the sole judge of the existence of the purpose for otherwise it cannot form its opinion as to the necessity or expediency of doing the act for that purpose. (34.) The decision of the House of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fuel and Power by an order made under the Defence (General) Regulations 1939 Regulation 55(4) the relevant part of which was 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 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 ...... (36.) The appellant brought an action challenging the order on the ground inter alia that there were no adequate grounds upon which the Minister could find as he stated he had found namely that it was necessary to take control in the interests of the public safety the defence of the realm or the efficient prosecution of the war or for maintaining supplies and services essential to the life of the community. Singleton J; having dismissed the action the appellant went up to the Court of Appeal but the appeal was dismissed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the requisitioning authority never brought his mind to bear upon the question and had he done so he could not possibly have come to the conclusion to which in fact he came. This challenge was repelled by the Court of Appeal consisting of Lord Greene M. R. Goddard L. J. and du Parcq L. J. in the following words:- The last point that was taken was to this affect 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 matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Master of Rolls as well as the Lord Justices took the view that the entire matter namely the necessity for laying out the lands afresh and redeveloping them as a whole as well as the purpose 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 and not a quasi judicial act. (43.) The last English case to which we must refer is Franklin v. Minister of Town and Country Planning (1948 A. C. 57). As strong reliance was placed on this decision on behalf of the respondents it is necessary to consider the same in some detail. The New Towns Act 1946 received the Royal Assent and came into force on 1st August 1946 Section 1 provided in sub-sec. (1) that if the Minister is satisfied after consultation 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 the Act he may make an order designating that area as the site of the proposed new town and in sub-section(2) that the provisions of the First Schedule to the Act shall have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered by the Minister and that the Minister should give fair and proper effect to the result of such consideration in deciding whether the said order should be made and that such implied requirements were not complied with. Henn Collins J. quashed the order holding that the Minister had not fulfilled his duty to act judicially in considering the objections. The Court of Appeal reversed the decision. The matter was carried in appeal to the House of Lords. The House of Lords decided that in considering the report of the persons who has held a public local inquiry under paragraph 3 of the First Schedule after objections have been made to an order under sec. 1 sub-sec. 1 the Minister has no judicial or quasi-judicial duty imposed on him so that considerations of bias in the execution of such a duty are irrelevant the sole question being whether or not he genuinely considered the Report and the objections. It was also held that the public local inquiry under paragraph 3 of the First Schedule is held with respect to the objections only and it is not the duty of the Minister to call evidence in support of the order since the object of the inquiry is to inform his mind and not to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction or opinion of the statutory authority that such facts exist. Since the condition is a purely subjective condition the existence of the condition would be incapable of being determined by a third party as an objective fact and the exercise of the power cannot therefore be a quasi judicial act and must be regarded as an administrative act. (45.) Applying this test it is clear that the act of the Government in issuing the notification under section 6 for acquisition of land is an administrative act and not a quasi judicial act. The power of the Government to issue the notification under section 6 for acquisition of land is founded on the satisfaction of the government that any particular land is needed for a public purpose or for a Company. The Legislature has committed to the Government the discretion to decide whether any particular land is needed for a public purpose or for a Company and that discretion if bona fide exercised is final and no Court can interfere with the same. It is for the Government to decide in its subjective satisfaction as to whether or not a case has arisen for the exercise of the power under section 6. The satisfaction of the Government that any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be needed for any public purpose it shall be lawful for the Governor to direct the Surveyor-General or other officer generally or specially authorised by the Governor in this behalf to examine such land and report whether the same is fitted for such purpose. 6 The Surveyor- General or other officer so authorised as aforesaid shall then make his report to the Governor whether the possession of the land is needed for the purposes for which it appeared likely to be needed as aforesaid. And upon 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. (47.) Lord Finlay in delivering the judgment of the Privy Council 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry under sec. 5A which is but a step in the process leading upto the exercise of such administrative function ordinarily in the absence of other factors be an administrative inquiry. Of course in a particular case it may be possible to say on the terms of the statute that statute the function of a statutory authority in carrying the provisions of the statute into operation is fundamentally an administrative function at a particular stage and for a particular and limited purpose there is superimposed on its administrative character a character which may be described as quasi judicial as was held in Errington v. Minister of Health (1934) A. E. R. 154 and Johnson Co. v. Minister of Health (1947) 2 A. E. R. 395. This position was also recognized by Subba Rao J. in his dissenting judgment in Radheshyam v. State of M. P. (A. I. R. 1959 S. C. 107) where he observed:- With this background the principles as I apprehend them may be concisely stated thus:- Every act of an administrative authority is not an administrative or ministerial act. The provisions of a statute may enjoin on an administrative authority to act administratively or to act judicially or to act in part admistrative and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons was a quasi judicial inquiry and that there was a duty to act judicially cast on the Collector holding the inquiry and the Government deciding the objections. Mr. I. M. Nanavati also contended that where the acquisition was sought to be made for a Company under the provisions of Part VII there was a lis between the Company and the objectors-there were two sides as between whom after consideration the Government had to come to a determination-and that the Government was therefore under a duty to act judicially in deciding the objections. This theory of a lis was also attempted to be extended to a case where the acquisition is intended to be made for a public purpose and Mr. I. M. Nanavati contended that even in such a case the objectors would constitute one side whereas the department of the Government or the local authority or the private agency through whom the Government intends to effectuate the public purpose would constitute the other side that as between these two sides the Government would have to come to a determination of the objections in a quasi judicial manner. Mr. I. M. Nanavati referred to the rules made by the Government of Bombay under section 55 and pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Country Planning Act 1944 The procedural requirements in connection with the making of an order under section 1(1) of the Town and Country Planning Act 1944 provided for filing of objections by persons who would be affected by the making of the order and for hearing of such objections before the Minister decided whether or not to make the order. Notwithstanding this provision the decision of the Minister was held to be an administrative act by the Court of Appeal. Lord Greene M. R. said:- As an example of the difference to be found in the subject-matter dealt within different statutes I may point out that this case is different from a case where a Minister is given duty of hearing an appeal from an order such as a closing order made by a local authority. This is not the case of an appeal. It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his opinion on whatever material he thinks fit whether obtained in the ordinary course of his executive functions or derived from what is brought out at a public enquiry if there is one. They say that in coming to his decision he is in any sense acting in a quasi-judicial capa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory 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 persons report. it is therefore clear that are provision relating to holding of inquiry or hearing of objections as a preliminary step to coming to a decision would not necessarily lead to the inference that the decision is a quasi judicial act for the purpose of the inquiry may be to further inform the mind of the deciding authority in order to enable the deciding authority to make up its mind to do what may be purely an administrative act. No argument in favour of the petitioners can therefore be founded on the mere provision of an inquiry under section 5A for hearing objections made to the acquisition by persons interested in the land The mere provision of such an inquiry would not necessarily impose on the Government a duty to act judicially in considering and deciding the objections. Hence we must consider whether the other circumstances relied on by Mr. I. M Nanavati cast any duty to act judicially on the Government in regard to the objections. (58.) This takes us to a consideration of the well-known case of Erri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordance with the rules of natural justice and that the order made by the Minister was therefore not within the powers given by the Act. Now the principles of natural justice could be held applicable only if the Minister was exercising quasi judicial functions and the question therefore arose whether in dealing with the objections the Minister was exercising administrative functions or quasi judicial functions. The Court of Appeal held that though the act of confirming the clearance order was an administrative act the Minister was in dealing with the objections exercising quasi judicial functions and was therefore not entitled to hear evidence from one side in the absence of the other side and to view the property and form his own views about it without giving the owners an opportunity of arguing that the views which he was inclined to take were such as could be readily dealt with by means of repairs and alterations to the building and did not require demolition of the building as proposed by the clearance order. Maugham L. J. discussed the nature of the functions discharged by the Minister in regard to the objections in the following words:- In determining whether the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge after quoting that passage added:- I accept that from the moment an objection is made the Minister is exercising quasi-judicial functions but it seems to me to be clearly recognised by the Court of Appeal that up to the time of objection being made the Minister acts in an administrative and not a judicial capacity. (63.) In Johnson's case (supra) the Court of Appeal held much to the same effect as the above statement of Swift J. in Frost v. Minister of Health (supra) In this case the owners of land comprised in a compulsory purchase order made by a local authority under the Housing Act 1936 and confirmed by the Minister of Health under Schedule 1 para 4 applied to the High Court to quash the order on the grounds that the Minister in considering objections to it was bound to act in a quasi judicial manner and that he had failed in that duty in that he had not made available to the objectors the contents (alleged to be relevant to the consideration of the objections) of certain letters written to the Minister by the local authority before the order was made by the local authority. The Court of Appeal held that the confirmation of the order by the Minister was essentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al functions there follows something which again in my view is purely administrative viz. the decision whether or not to confirm the order. That decision must be an administrative decision because it is not to be based purely on the view that he forms of the objections vis--vis the desires of the local authority but is to be guided by his view as to the policy which in the circumstances he ought to pursue. (64.) According to the Master of Rolls the character occupied by the Minister was essentially an administrative character and if no objections were made or if objections having been made were withdrawn the administrative character continued uninterrupted right up to the time of the confirmation of the clearance order. But if objections were made and were not withdrawn there came into existence what might be described as a quasi-lis the inception of which was marked and constituted by the making of the objections and it was at this stage and for the particular and limited purpose of the quasi-lis that a quasi-judicial element entered into the functions of the Minister. The Minister was obliged to act in a quasi judicial capacity in considering the objections. During this quasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the function of the deciding authority before and after such stage may be an administrative function. (67.) Mr. I. M. Nanavati on behalf of the petitioners strongly contended that the present case fell within the principle in Erringtons case and Johnson's case (supra). There was argued Mr. I. M. Nanavati a quasi-lis between the petitioners and the third respondent-Society which came into existence on the making of the objections by the petitioners and that in considering the objections the Government was therefore under a duty to act judicially and that the inquiry was also consequently a quasi judicial inquiry. The answer made to this contention by the learned Advocate General on behalf of the State and Mr. J. B. Mehta on behalf of the third respondent- Society was three-fold. They first contended that Erringtons case and Johnson's case could no longer be regarded as good law in view of the decision of the House of Lords in Franklins case (supra) and that having regard to this decision of the House of Lords it could not be said that the Government was invested with any quasi judicial character in the matter of considering the objections of the petitioners. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asi-judicial capacity and is then subject to the rules of natural justice. Franklins case appears to lay down that the holding of an inquiry and the consideration of objections does not at any point change the purely administrative character of the entire process. The only ground of distinction which it is submitted can be advanced is that the Ministers statutory powers were different in the two cases. The present writer can see nothing in the intertwined Acts relevant to Franklins case which ousts the general principle laid down in Erringtons case. As matters now stand it seems that the House of Lords true to its tradition of being more executive-minded than the executive has whittled down to zero such small and nebulous element of natural Justice as had been admitted to our administrative law. (70.) Now it is no doubt true as the above passages show that both Lord Denning and Sir Carleton Allen-one an eminent Law Lord and the other a well-known jurist have interpreted Franklins case as impliedly overruling Erringtons case. But with the greatest respect to them we find ourselves unable to share their view. We are of the opinion that Erringtons case is good law even after the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lords used terminology which lent countenance to the view that a public authority does not act in a judicial capacity in the sense of being required to observe the rules of natural justice unless it occupies the role of an adjudicator determining something approximating to a lis inter partes in which case a duty to natural justice may be superimposed upon the procedural requirements already prescribed by statute. (71.) These lines of cases have profoundly influenced the recent attitude of English courts towards the procedural duties of public authorities invested with statutory powers in relation to individual rights. They have tended to assume that a duty to observe the rules of natural justice arises only where the authority is already under a statutory duty to consider objections or conduct an inquiry in a triangular situation with two contesting private parties before them; and that where no such statutory duty is imposed the functions of the authority cannot be characterised as judicial for this purpose....... (72.) Robson in Justice and Administrative Law commenting upon Franklins Case makes the following observation:- It should have been obvious from a cursory gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal authority. In the absence of objection the Minister according to those two decisions acts in an administrative capacity. Why ? Because there is no lis in the sense of two opposing parties. There is only a proposal by the local authority. But if objection is raised by the owner the Minister according to these cases in deciding the matter acts judicially. Why ? Because there is a lis between two contending parties namely the local authority and the owner which has to be decided by the Minister. (76.) The decision in Franklins Case was different obviously because there was no such lis between two contending parties which the Minister was required to decide as there was in Erringtons Case. Mukherjea J. in the same case regarded Erringtons Case as still laying down good law even after Franklins Case as is clear from the following passage from his judgment:- The case of Errington v. Minister of Health.... is a leading authority which holds that the same proceeding may be administrative at one stage and quasi judicial at another. (77.) In Robinson's Case Lord Greene M. R. drew the same distinction to which we have already referred for the purpose of holding that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the process altogether.... (80.) It is clear from the aforesaid observations that if the case before the Master of Rolls was a case where the Minister was given the duty of hearing an appeal from an order such as a closing order or a clearance order made by a local authority so that there would be a lis between two contesting parties which the Minister as an outside authority would have to determine the Master of Rolls would have held the order of the Minister to be a quasijudicial act. But the Master of Rolls held the order of the Minister to be an administrative act because it was a case of an original order to be made by the Minister without there being any lis between two opposing parties. Johnson's Case came after Robinson's Case and yet in Johnson's Case Lord Greene M. R. affirmed Erringtons Case as good law and laid down as we have already pointed out above that even at an intermediate stage in an essentially administrative function there could be a quasi judicial character attaching to the Minister requiring the Minister to act in a quasi judicial capacity at such intermediate stage. It is also significant to note that Lord Thankerton did not even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity or a Company or a private body which wants to carry out and effectuate a public purpose may move the Government to adopt proceedings for acquisition of land and if it appears to the Government on the materials placed before it that land in any locality is needed or is likely to be needed for any public purpose the Government may issue the notification under section 4; but no one has a right to require the Government to issue such notification. It depends entirely on the subjective opinion of the Government whether or not to issue the notification under section 4. When it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose and the Government issues the notification under section 4 the proposal for acquisition for land is initiated by the Government as its own proposal and not as a proposal of the local authority Company or private body which might have moved the Government to adopt proceedings for acquisition of land. The proposal to acquire land embodied in the notification under section 4 emanates from the Government and not from such local authority Company or private body. The objections invited under section 54 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land on being moved in that behalf by any local authority Company or private body the position is still clearer when the Government initiates the proposal for acquisition of land on its own without being moved by any local authority Company or private body. In such a case it is indisputable and we may at once state that Mr. I. M. Nanavati frankly and in our opinion rightly conceded that he could not so dispute that there is no lis between two contesting parties which is required to be determined by the Government as an outside authority. There are in fact no two contesting parties as between whom the Government must come to a determination. The Government in exercising its statutory function cannot be regarded as a quasi litigant vis--vis the objectors. The present case must therefore indubitably fall within the principle in Robinson's Case and Franklins Case and cannot fall within the principle in Erringtons Case and Johnson's Case and the conclusion must inevitably be reached that the Government is not under any duty to act judicially in considering the objections. (82.) Realising this difficulty Mr. I. M. Nanavati relied strongly on Rule 3 of the Rules framed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the evidence oral or documentary which may be tendered on behalf of the objector. The other party may be a Department of the Government or a local authority Company or private body at whose instance the Government may have initiated the proposal for acquisition. But whoever may be the other party it is clear that there is no lis between the objector and the other party . There is no controversy between the objector and the other party which is required to be determined by the Government as an outside authority. No issue as between the objector and the other party is submitted for the decision of the Government. We have already dwelt on this aspect of the matter at considerable length and we need not add anything more beyond stating that having regard to the nature and purpose of the inquiry the provision enabling the other party to lead evidence in rebuttal and to cross-examine the witnesses of the objector in case the Collector decides to hear oral or documentary evidence has not the effect of bringing into existence a lis between the objector and the other party . This becomes all the more apparent when we find that the other party has no right to be heard in regard to the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction. it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character...... (84.) We have quoted this passage merely for the purpose of illustrating that decision of facts may be involved as much in an administrative act as in a quasi judicial act and that no argument can therefore be founded on an undue literal emphasis on the word decision . The decision may be an administrative decision or a quasi judicial decision on the facts and circumstances of each case and the provisions of the particular statute and merely because the word decision is used it does not follow that the Government is invested with any quasi judicial character in considering and deciding the objections. To take an analogy which is not far to seek let us turn to section 11 which provides for inquiry and award by the Collector in regard to the compensation to be paid to persons interested for the acquisition of the land. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled himself of information supplied to him without the knowledge of the appellant and not disclosed at the inquiry. It is not suggested that there was in the Proceedings anything correct or fraudulent and the objection is based and depends upon the theory that the inquiry by the Collector was a judicial proceeding and that the rules of judicial proceedings apply. The argument of the appellant starts from the word award (which is used to describe the conclusion of the Collector) and has nothing else to support it. When the section - relating to this matter are read together. it will be found that the proceedings resulting in this `award are administrative and not judicial:- that the `award in which the inquiry results is merely a decision (binding only on the Collector as to what sum shall be tendered to the owner of the lands;.... (85.) It would thus be seen that no reliance can be placed on the word decision to spell out any duty in the Government to act judicially in regard to the objections and the attempt of Mr. I. M. Nanavati to weave an argument out of such thin and flimsy thread must fail. (86.) There are two circumstances which to our mind are of the greatest importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity in the consideration of the objections. But the matter does not rest here. A little scrutiny of the section will reveal that the Government in deciding the objections is not limited even to the consideration of the material which may be gathered by the Collector at the hearing of the objections or at any further inquiry which he may think it necessary to make. The material brought out in the proceedings before the Collector whether the proceedings consist of the hearing of the objections or whether the proceedings consist of the further inquiry made by the Collector or whether the proceedings consist of both is not the only material which the Government is entitled to consider in coming to its decision on the objections. The Government is unrestricted in its consideration of all the material at its disposal whether gleaned before the filing of the objections or at the hearing of the objections or at any further inquiry made by the Collector or even after such further inquiry at any time up to the making of the decision. The process of Governmental action may begin in all sorts of manner such as the collection of information the ascertainment of facts and the consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat land is needed for a public purpose or for a Company. But it is clear that the consideration of the objections is inextricably and indelibly interwoven in the texture of the process which results in the Government reaching the satisfaction whether any land is needed for a public purpose or for a Company. This latter process is as we have already pointed out above invested with an administrative character and we do not see how under these circumstances the consideration of the objections can be said to be invested with any other character. If the process of which the consideration of the objections forms an integral part is itself an administrative process it must follow as a necessary corollary that the consideration of the objections is also an administrative process and if that be so it is axiomatic that the Government is not invested with any quasi judicial capacity in considering the objections and that the decision of the Government on the objections is not a quasi judicial act but is an administrative act. (88.) There are two or three other minor considerations which also weigh with us in taking the view that the Government is not under any duty to act judicially in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or acquisition of land without giving any opportunity to persons interested in the land to make their objections and without holding any inquiry for the purpose of deciding such objections. We may again ask ourselves the question:- if the inquiry were a quasi judicial inquiry intended not for the further information of the mind of the Government but for the purpose of deciding an issue between the objector and the Government would the legislature have left it to the sweet will of the Government to dispense with the inquiry and to deprive persons interested in the land of their right to make objections and to have such objections determined in a quasi judicial manner before any order of acquisition could be made by the Government ? The provision enabling the Government to dispense with the inquiry can on the other hand be easily explained if the view is taken that the inquiry is only an administrative inquiry for the purpose of the further information of the Government in order to enable the Government to make up its mind to make an order of acquisition. The inquiry being for further informing the mind of the Government the Government may very well say in the case of any land to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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