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Bombay Land Requisition Ordinance ( V of 1947), ss. 3, 4, 10, 12-0rder requisitioning Land-Application for writ of certiorari -Order of requisition, whether judicial or quasi-judicial act, or administrative act-Construction of s. 3-Existence of public purpose, whethe1· condition precedent to exercise of power ·to requisition -Whether collateral fact or composite part of power to requisition Distinction between judicial or quasi-judicial acts, and administrative acts-Guiding principles and tests-Writ of certiorari-Nature and incidents of the writ- -Power of High Court to issue writ against Provincial Government-Government of India Act, 1935, ss. 176, 306-"Sue," meaning of. Held by the Full Court, (KANIA C. J., FAZL ALI, PATANJALI SASTRI, · MEHR . CHAND MAHAJAN, MUKHERJEA and DAs JJ.).-A writ of certiorari lies whenever a 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 ; it docs not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature. Section 3 of the Bombay Land Requisition Ordinance (V of 1947) provided 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: 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." The lst respondent who was a ·refugee from Sind got an assignment of the tenancy rights in a flat in Bombay and went into possession of the flat. A few days later the Government of Bombay issued an order requisitioning the Rat under s. 3 of the abovesaid Ordinance, allottee the same to another refugee and issued orders to an Inspector to take possession of the same. On an application under Art. 32 of the Constitution, a writ of certiorari was issued by the Bombay High Court against the Province of Bombay and others and this order was confirmed on appeal as against the Province· of Bombay by a Division Bench of the said High Court.Held, per KANIA C. J., FAZL ALI, PATANJALI SAsTR1 and DAs ]J. (MAHAJAN and MUKHERJEA JJ. dissenting)-that on a proper construction of s. 3 of the Ordinance the decision of the Bombay Government that the property was required for a public purpose was no.~ a judicial or quasi-judicial decision but an ad1ninistrative act and the High Court of Bombay had therefore no jurisdiction to issue a writ of certiorari in respect of the order of requisition. Per MAHAJAN and MUKHERJEA JJ. (contra).-The Government of Bombay is a body of persons having legal authority co determine questions affecting the rights of subjects and in deciding whether a land was required for a public purpose under s. 3 of the Ordinance it had to act judicially. The conditions necessary for the granting of a writ of certiorari were accordingly satisfied and the High Court of. Bombay had power to issue the writ.KANIA C. J.-Though a writ of certiorari 1nay be issued where a body of persons having legal authority to determine questions affection the rights of subjects and having a duty to act judicially act in excess of their legal authority, yet merely because an executive authority has to determine certain objective facts affecting the rights of subjects as a preliminary step to the discharge of an executive function it does not follow that it trust determine those facts judicially. On the contrary, when the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and arc not amenable to the writ of certiorari. It cannot be laid down broadly that in order that a determination may be a judicial or quasi-judicial one there must be a proposition and an opposition, or that is is necessary, or that it is necessary that there should be right to examine cross-examine and re-examine witness. The true test is whether the law, under which the authority is making a decision, itself requires a judicial approach. Prescribed forms are not necessary to make an inquiry judicial, provided in coming to the decision well recognized principles of approach are required to be followed. FAZL ALI J .-The mere fact that au executive authority has: to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference and the real test is: is there any duty to decide judicially. There is nothing in s. 3 or any other section of the Ordinance in question which imposes expressly or impliedly a duty on the Provincial Government to decide the existence of a public purpose judicially or· quasi-judicially. It is well settled that when an act or regulation commits to an executive authority the decision o{ what is necessary or expedient and that authority make 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, and the opinion formed by the Provincial Government whether it is necessary or expedient to acquire land, gives a public purpose, cannot therefore be questioned. 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. The determination of the public purpose and the opinion formed as to the necessity expediency of requisition do not form one psychological process but are two distinct and independent steps and if the executive authority requisitions land under s; 3 without . there being a public purpose in existence its action would be a nullity, and the person whose right is affected can go to the proper court ana claim a declaration that his rights cannot be affected. An application for certiorari would not, however, lie in such a case as the requisition of premises under s. 3 of the Ordinance is a purely administrative act and docs not involve any duty to decide the. existence of a public purpose or any other matter judicially or quasi-judicially.MAHAJAN J.-The question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rule and the nature, scope and effect of the particular power in excise of which the act may be done and would therefore· depend on the facts and circumstances of each case. The question whether a land is required for a public purpose or is being used for public worship involves difficult questions of law and fact seriously affecting the rights of parties. There are not questions for the mere determination of the Government subjectively by its own opinion, but are matters for determination objectively and in a judicial manner, on materials which , the Government have sufficient power to call for under ss; 10 and 12 of the Ordinance after hearing any opposition to its proposal, and the High Court of Bombay had therefore jurisdiction to issue a writ of certiorari. MUKHERJEA J.-Under s. 3 of the Ordinance, the act of requisitioning land is left to the_ executive discretion of the Provincial Government. But the section makes the existence of a public purpose an essential pre-requisite to the taking of steps by the Provincial Government in the matter of requisitioning any property and under thee section the essential fact on which the jurisdiction to proceed with the requisition is founded is the existence of a public purpose as an objective fact, and not the subjective opinion of the Provincial Government that such fact exists. Whether a public purpose exists or not has to be determined judicially as there is a lis or controversy between the interest of the public on the one hand and that of the individual who owns the property on the other hand, and the determination. of the Government was therefore a judicial act; the determination was further a collateral matter on which the jurisdiction to requisition was ' founded, and not a part of the executive act of requisitioning, and a writ of certiorari could therefore be issued in the case.DAs J.-The words "to do so" in s. 3 of the Ordinance refer to the entire composite matter of "requisitioning for a public purposc,11 not n1erely to the act of requisitioning simpliciter and the existence of a public purpose was left as much to the subjective opinion of the Provincial Government as the necessity or expediency for requisitioning a particular l and As the formation of "the opinion on the entire matter was purely subjective and the order of requisition was to be founded on this subjective opinion, it was not a judicial or quasi-judicial act but- a purely administrative act and consequently it was not a matter in respect of which a writ. of certiorari could be issued. Even on the assumption that the question of the existence of a public purpose had not been left to the subjective opinion of the Provincial Govern1nent and that the question had to be determined by it, there was nothing in s. 3 to suggest that such determination had to be made judicially and a writ of certiorari would not in any case lie. Even if the existence of a public purpose Vas a collateral fact, then at best it was only a case of an administrative body assuming jurisdiction to perform its administrative powers, and if it assumes jurisdiction on an erroneous assumption it · might be corrected by an action, but certiorari cannot be an appropriate remedy; and assun1ing further that this collateral fact had to be decided · quasi-judicially and its decision might be quashed, the administrative act, namely the formation of opinion and the order based thereon would still remain unaffected by certiorari.In order that a body may be a quasi-judicial body 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. 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 patty under the statute which· claim is opposed by another party and to ·determine the respective rights of the contesting parties who arc opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act.Jf a statutory body . has power to do any act which will pre1udicially affect the subject, then although there are not two parties apart from the authority, and .the contest is between the final 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.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 mmd to do what may be a purely administrative act.Held, per KANIA C. J., FAZL ALI, PATANJALI SASTRI, and DAS, JJ.-The powers given to the Provincial Government under ss. ·10 and 12. of the Ordinance are only enabling and in terms are not compulsory, and there is ,nothing in these sections which makes it incumbent on the Government to act judicially in the manner or making an order tor requisition under s. 3..Held also, per MAHAJAN, and MUKHERJEA JJ.-(i) that the immunity granted by s. 306 of the Government of India Act, 1935, related to the Governor and not to the Provincial Government and under the said Act the High Court of Bombay had jurisdiction to issue a writ of certiorari against the Provincial Government of Bombay; (ii) that the word "sue" in s. 176 of the said Act meant the enforcement of a claim or a civil right by means of legal proceedings and was wide enough to include an application for a writ of certiorari. |
