# • • Ghaio /!fall 6- So11s v. 1'he Sltde of Delhi ~ Others

- **Citation:** [1959] 1 S.C.R. 1440
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. H. DAS c. J, Bhagwati, s. K. DAS, J. L. Kapur, 81.'BBA RAo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ghaio-fall-6-so11s-v-1-he-sltde-of-delhi-others-1572
- **Pages:** 65

## Headnote

Municipality -- Appoi11tmmt of Excwtivc OJJiccr •by State
Go·,:crnmcnt--lf an adtninistrafi;,·c act-C. J>. and Berar i'funicipalities Act, 1922 (Act I I of 1922). ss. 53A and 57.
,
•
The n1ain point for clt~ci:;ion in this appeal by the lttunicipal
Comn1ittcc of Dhamtari and its Prcsi<lcnt \\·as, \\·hcther in appointing an Executive Officer in exercise of its po,,·ers under s. 53A of
the C. P. and Bei;ar }!unicipalities Ac$, 1922, the State Go\'crn1nr.nt acted iii a judicial capacity or in an
administra~ve one .
Complai.tng been made against the appellants, the a<lditiona~
ollcctor \Vas directed to hold an enquiry and on
his •r~pOrt the State Go,·crnn1i;nt, by a notilicatiou un<lcr that
secti~n. apppin(cd all' Executive Officer of the Municipal Committee for !8 Tnonth;> ,,·ith specified po\l,·crs and duJies.
The
·~ppellants were gi\'en notice of the said enqlliry, filed objections
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S.C.R .• .SUPREfy[E copRT REPOR'CS
1441
and the Presiq,ent was pe•sonally present on some occasions
during the enquiry. The notific"ation charged the appellants
with incompetency as well as abnse of power. Against that Shri Radeshyam
notification the appellants moved tne High Court under Art. 226 Khare & Another
of the Constitution for a writ of certiorari quashing the same,
v.
but their application was rejected by the Judge sitting singly.
The State of
An appeal under the Letters Patent against his deci'j,iOn was Madhya Pradesh
summarily dismissed. It was contended before this Court on
& Others
behalf of the appellants that, (1) although the notification purported to be one under s. 53A of the Act, it was in effect and
reality one under s. 57 of the Act, that (2) it was, therefore, incumbent on the Government under s. 57(5) of the Act to afford
the appellants an opportunity to furnish explanation and that
(3) even if the notification was one under s. 53A of the Act, the
Government was bound by the rules of natural justice to give
the appellants an opportunity to defend themselves.
Held (per curiam), that ss. 53A and 57 of the C. P. and
llerar Municipalities Act, 1922, differed materially in their scope
and effect, but it was not obligatory under either of them for the
Government to take any action at all. Although a finding of
incompetency of the Municipal Committee was a condition precedent to action under both the sections, the Government was
free to choose its remedy as the occasion demanded and it could
.not be conteri<ied that because a notification made under s. 53A
of the Act, along with a finding of incompetency, contained some
instances of abuse of power"as well, it must be held to have been
made u01der s. 57 of the Act.
• • Nor could the vesting of power in the Executive Officer by
<t:he notification, however substantial in character, be said, in
effect and reality, to amount to a dissolution of the Municipal
Committee under s. 57 of the Act.
Per Das C.J. and Kapur ].-The real test whether the
State Government functioned in a quasi-judicial capacity or in an
administrative capacity in exercising its powers under s. ·53A of
the Act was whether the statute required it to act judicially
either ex!'ressly or by implication. The Act contained no express
provision to that effect, nor could the determination of the fact
of.incompetency as a condition precedept to any action under
that s~ction, by itself, carry such an implication. In making
the notification under s. 53A of the Act, therefore, the Government functioned in an administrative capacity and not in a
quasi-judicial one. Even so, by the enquiry held, the State
Government afforded
th~ appellants
ampl<i opportunity to
defend !hemselves and there could hardly be any ground for
complaint.
Province of Bombay v. Kusaldas S. Advani, [1950] S.C.R. 621,
Rex v. Electricity Commissioners, [L924] l K.B. 171, Rex v. London
County Council, [1913] 2 K. B. 215, R. v. begislaMve,Commiltee of
he Church•Assembly, (1928) l K.B. 4rr and .Nakkudct Ali's Case,
19

## Text

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Ghaio
/!fall 6- So11s
v.
1'he Sltde of
Delhi ~ Others
D,.sC.j.
Seplembt:r 30.
•
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1440
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•••
STJPREME COUB.T RE;PORTS • • [1959]
business by :Messrs. Army a,.11d '.Ila vy St-0~e:o still remains
unfilled. The applications of the appellants and other
applicants were for a grant of L-2 license for 1954/
1955. That year has gone ptist and accordingly in the
changed eircumstances wo direct. the Chief Commissioner ~o fill ap the vacancy ctrnsed by the closure of
the business by ?.fossrs. Army and Xavy Stores by
inviting applications from intending licensees including
the appellitnts and Messrs. Gainda Mall Hem ltaj and
granting the oame to the most suitable party .• We,
therefore, accept this appP1~l, reverse the order of the
High Court and issue a mandamus to the effect aforesaid and also direct the respondents Xos. l to 4 lo pay
the appellant.s' costs of this appeal and of the proceed.
ings int.he High Court out of which this appeal ha~
arisen. Messrs. Gainda '.\Iall Hem Raj arc to hear
their own costs throughout.
Appeal allowed .
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SHRI RADESH1A'.ll 'KHARE & ANOTHER••
v.
•
THE STATE OF !llADHYA PHADESH & OTHEHS
(S. H. DAS c. J., BHAGWATI, s. K. DAS, ,J. L. KAPUR
and 81.'BBA RAo ,JJ.)
Municipality -- Appoi11tmmt of Excwtivc OJJiccr •by State
Go·,:crnmcnt--lf an adtninistrafi;,·c act-C. J>. and Berar i'funicipalities Act, 1922 (Act I I of 1922). ss. 53A and 57.
,
•
The n1ain point for clt~ci:;ion in this appeal by the lttunicipal
Comn1ittcc of Dhamtari and its Prcsi<lcnt \\·as, \\·hcther in appointing an Executive Officer in exercise of its po,,·ers under s. 53A of
the C. P. and Bei;ar }!unicipalities Ac$, 1922, the State Go\'crn1nr.nt acted iii a judicial capacity or in an
administra~ve one .
Complai.tng been made against the appellants, the a<lditiona~
ollcctor \Vas directed to hold an enquiry and on
his •r~pOrt the State Go,·crnn1i;nt, by a notilicatiou un<lcr that
secti~n. apppin(cd all' Executive Officer of the Municipal Committee for !8 Tnonth;> ,,·ith specified po\l,·crs and duJies.
The
·~ppellants were gi\'en notice of the said enqlliry, filed objections
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S.C.R .• .SUPREfy[E copRT REPOR'CS
1441
and the Presiq,ent was pe•sonally present on some occasions
during the enquiry. The notific"ation charged the appellants
with incompetency as well as abnse of power. Against that Shri Radeshyam
notification the appellants moved tne High Court under Art. 226 Khare & Another
of the Constitution for a writ of certiorari quashing the same,
v.
but their application was rejected by the Judge sitting singly.
The State of
An appeal under the Letters Patent against his deci'j,iOn was Madhya Pradesh
summarily dismissed. It was contended before this Court on
& Others
behalf of the appellants that, (1) although the notification purported to be one under s. 53A of the Act, it was in effect and
reality one under s. 57 of the Act, that (2) it was, therefore, incumbent on the Government under s. 57(5) of the Act to afford
the appellants an opportunity to furnish explanation and that
(3) even if the notification was one under s. 53A of the Act, the
Government was bound by the rules of natural justice to give
the appellants an opportunity to defend themselves.
Held (per curiam), that ss. 53A and 57 of the C. P. and
llerar Municipalities Act, 1922, differed materially in their scope
and effect, but it was not obligatory under either of them for the
Government to take any action at all. Although a finding of
incompetency of the Municipal Committee was a condition precedent to action under both the sections, the Government was
free to choose its remedy as the occasion demanded and it could
.not be conteri<ied that because a notification made under s. 53A
of the Act, along with a finding of incompetency, contained some
instances of abuse of power"as well, it must be held to have been
made u01der s. 57 of the Act.
• • Nor could the vesting of power in the Executive Officer by
<t:he notification, however substantial in character, be said, in
effect and reality, to amount to a dissolution of the Municipal
Committee under s. 57 of the Act.
Per Das C.J. and Kapur ].-The real test whether the
State Government functioned in a quasi-judicial capacity or in an
administrative capacity in exercising its powers under s. ·53A of
the Act was whether the statute required it to act judicially
either ex!'ressly or by implication. The Act contained no express
provision to that effect, nor could the determination of the fact
of.incompetency as a condition precedept to any action under
that s~ction, by itself, carry such an implication. In making
the notification under s. 53A of the Act, therefore, the Government functioned in an administrative capacity and not in a
quasi-judicial one. Even so, by the enquiry held, the State
Government afforded
th~ appellants
ampl<i opportunity to
defend !hemselves and there could hardly be any ground for
complaint.
Province of Bombay v. Kusaldas S. Advani, [1950] S.C.R. 621,
Rex v. Electricity Commissioners, [L924] l K.B. 171, Rex v. London
County Council, [1913] 2 K. B. 215, R. v. begislaMve,Commiltee of
he Church•Assembly, (1928) l K.B. 4rr and .Nakkudct Ali's Case,
1951) A.C. 66, referred to.
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1442
SUPREME CO~RT R~PORTE\, • [1959]
1958
!'er Bhagwati ].-Since the en~uiry hcld
0in this case fully
satisfied the requirements of natural justice, it \\!as unnecessary
Shri Radrshyan1 to determine for the purpose of this case \\·hcther the State
/(luue &
A11other Government in acting undc·r s. 53A of the Act di<l so in a
v.
quasi.judicial capacity or in an adrninistrati\'e one.
Th• State of
]'er S. K. Das J.-lf the question was one of compliance
Madhya Prade>h with th• rules of natural justice, the enquiry held in the pfcscnt
& OthtrJ
case coulcl hardly be said to have compliccl "·ith such rules'; but
,
since the State Government in acting under s. 53A of the Act
harl only to consider policy and expediency and did at no stage
ha\'c anv form of lis before it, its action thereunder \\·as
purJcy Ov( an adn1inistrativc charact~r not atnenable to a \Vrit Of
certiorari.
R. v. Manchester Legal Aid Commillee, (1952) 2 Q. B. 413,
applied.
!'er Suhha lfao J.-On a proper appreciation of the criteria
laid down bv s. 53A of the Act itself, there could be no doubt
that it imposed a duty on the Stak Government to act judicially
in ascertaining the fact of the incornpctcncy of the i\lunicipal
Committee to perfor1n its duties. It is clear that the clctcrrnination of such a jurisdictional fact could not have been left to
the subjective satisfaction of the (;oyernmcnt but \\·as intended
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to be arri\'etl at objectively and, therefore, it \\·as ;ncumbent up-•
on the Government to give a reasonable opportunity to the
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appellants to explain the charge levelled against them. Such
enquiry as was held in the instant case could hardly t~ke the
place of reasonable opportunit)•to he given by the Governm'tn1
for the proposed action under s. 53A of the Act.
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Rc.t v. The Electricity Commissionas. (1924) 1 K. B. 171,
l'roi·ince of /30111ha)· v. Kusaldas S. Adi1111i. [1950] S.C.K 621 and
R. v. Manchester Legal Aid Committee, (1952) 2 Q.B. 413, referred
to .
CIVIL APPELLATE JURISIJICTIO:<r: Civil Appert! No.
301 of 1958.
•
Appeal by ~peciaJ lca,·e from the judgment a1,1d
order clat.ed February 21, 1958, oft.he i\ladhya Prlldesh
High Court: at ,Jalmlpur in Letters Patent Appeal Xo.
22 of 1958, against the order dated February 20, 1958,
of the said High Court in :Ilise. Petilion
~o. 266 of
1957.
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M. K. Narnbiyar, S. N. Andley, J. B. Dwiachanji
and Rmneshwar Nath, for. the appellants.
Jf. Adhik<rri, Arfrocate-General, Jfadhya Pradesh and
J.. N. Shroff, for tnc respondents.
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S.C.R. • .SUPREME COPRT REPORT..S
.1443
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1958. SeJitember 38. The following Judgments
were delivered :
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Shr'i Radeshyam
DAS C.J.-There· are two appellants in this appeal. Khare & Another
The second appellant is the Municipal Committee of
v.
Dhamtari constituted ·under the C. P. and Berar
The State of
Municipalities Act, 1922 (Act II of 1922) and the first Madhya Pradesh
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appe ant is its res1 ent avrng een e ec ·e
as sue
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on July IO, 1956. He assumed charge of his office as
Das c. ;.
President on July 27, 1956. It may be mentioned
that•he was returned as a Congress candidate but has
since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate.
It appears that there are two factions in the Munici1Jal Committee. The first appellant alleges that one
Dhurmal Daga, a member of the committee belonging
to the Congress party was on August 7, 1956, detected
importing within the municipal limits certain cloth with-
•
out paying the octroi duty. Dhurmal Daga, on the other
• ·hand, alleged that the first appellant was guilty of grave
mismanagement of the affairs of the Municipal Committe~ and went on hunger strike for securing the
appointment of a committoo to enquire into the mis-
•conduct ·of the first appellant. Copies of the leaflets
containing the demands and charges w)lich are said to
have been widely distributed are annexures I and II to
)
the present petition. It appears that several persons
and firms also preferred charges against the first appellant, the President of the Municipal Committee. The
Collect.,r, Raipur, personally intervened and persuaded
the said Dhurmal Daga to abandon the fast on. an
a!!sm:ance that he would look into the matter. The
Collector deputed one Shri N. R. Rana the Additional
Deputy Collector to enquire into the compln,ints of
mal-administration of the affairs of the Municipal
Committee. By a Memorandum No. K/J N. P.
Dhamtari dated August 24, 1956, the said N. R. Rana
called upon the first appellant as the President of tho
second appellant to give deta,iled explanation of each
complaint, a list of which was enclo!;ed t)lernwitli. A
copy of-that mamorandum along wit:b its 22°enclosur~s.
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1444
SUPREME COU.RT REPORTS. , [l9:l9]
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'958
is <inncxecl to the petition ;i,n<l •nmrked JU. Annexurcs
Shn /ladeshyam Iv and v t-0 the reti~ion are copies of the detailed
KJ.are &
A•othu report on the obicct10n'll and the reply to the charges
v
made against the .\lunicipitl Committee Aubmitted from
The-''"'' of
the oflice of the .\lunicipal Committee by the first
Madhya I'radesh appelhmt as the President of the Municipal Committee.
6- Others
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Ad<l
1c
itinnal Deputy CollPctor thereafter held the
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Das C. j.
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enquiry.
The High Court states that it had "gone
through the materials on which the State Government
based its action on enquiry into the charges le\:elled
against t.he .\Junicipal Committee" and th<Lt the records of the enquiry showt'd that "on some occasions
the petitioner was presem during the enquiry". There
is no suggcBtion that the appellants wanted an opportunity to adduce any e\•ic!cnce or were prevent-0d fro~
doing so or that they were in any way hampered in
their defence.
Presumably the Additional Deputy
Collector had nrndc a report which in due course must
have been forwarded to the Stale Go,·~rnment.
On No,·ember 18, 1957, a notification woo published.
in the Official Gazette wherchy,the State Government,
in exercise of the powers conferred on it. by R. 53-A of
the C. P. & Berar Municip~\lities Act, 1922, app7iinted
one Shri B. P. ,Jain, the second rl'spondent. before t.rs;,
as the Executi\'e Officer of the l\Jnnicipal Committee,
Dhamtari, fi;r •a period of 18 months with certain
powt>rs as therein mentioned. A copy of that notilica.
tion has been annexed to the petition and marked
VIII but as th<> major part of the arguments canva,~,cd before us turns on t.hc contents of that 1.1otification t.lw same is rcpro1lucecl below in ext-0nso:
·"Dated, Bhopal, the 18th
November, 195l,
Xo. !)262!115:{8-U-XVIl[-\Vhercas it appear• th the
Srntc Go\'ernment that. the :\I unicipal Committee,
Dhamrnri, has proved itself incompetent to perform
the duties imposed on it by or U!1der the Central Provinces and Berar ~Iunicipalities Act, l!J22 (11OP1922),
inasmuch as it-
( a) grnnteil gmin and building advances t-0 the
employees wiJhou~ prior sanction and no efforts were
made for the'ir rcr.ovcry,
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(b) showed carelessness in cases or embe;:dement
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~UPREM1i1 COURT REPORTi3
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1445
S.C.R.
of the empl~yees and• did, not report such cases to
'958
Government,
Sh . Rd hy m
(c) failed to control the President who issued orders Kh;;, ; '~no;her
in cases in which he had no authority,
v.
(d) spent thousands of rupees ·on sanitation and
The state of
other works although there was no provision, in the Madhya Pradesh
budget,
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& Others
(e) allowed unconcerned persons to interfere in its
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Das C .•
working,
IJ) showed partiality in the appointments and dismissals of the employees, further such appointments
and dismissals were made against rules,
(g) delayed the constitution of the committee and
the framing of budget,
• _ (h) misused the trucks of the municipality,
(i) failed to recover the lease money,
(j) shown partiality in the issue of transit passes to
certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi
,duty is not leviable it was levied just to harass the
• people,
(k) distributed municipal manure
to certain
perso~ without any charge, similarly distributed the
fntl.nure free of cost and usea the truck of the municipality for this purpose,
(I) failed to control its president • wpo spent the
money of the Municipal Committee without any
authority,
(m) spent huge amount on the maintenance of
the roads and drainage but their condition has remain-.
ed unsatisfactory'
• (n) failed to give copies of the documents. as
allow"ed under rules, also failed to allow its members to
inspect the records as is permissible under rules,
(o) failed to invite tenders of purchase of articles,
and whereas, the State Government considers that
a gene6al improvement in the administmtion of th_e
Municipality is likely to be secured by the appointment of a servant of the Government as Executive
Officer of the Committee.
·
Now, therefore, in exercise of the pow.erlj conf~rred
by section 53-k of the Central Provinces and Bera.r•
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1446
S!JPREME CO~RT ll~PORTS. • [1959]
1958
:\Tunicipalities Act, Hl22 (II ofol!)22), tlie ~tate Govern0h . , ,
,
rneut 11rc pll'ascd to appoint Shri B. P. Jain, Deputy
_, " .<a"""Y""' C II
t
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'I . . l C
/(hare 6 . AtiJther ·O
(~e or, a.s t>xecut1vc \.>!.ueer o
t le ·' un1c1pa
'om.
v.
mittcr, Vhamtari, for a period of eightecu months
The St•tc of
from r.he dt1tc of his taking o,·er charge and with
Madhya P.ad"h refere11ce to sub-section (i!) thereof a.re further plt><1s('.d
& Othm
t-0 direcl that the Excruti,·e Officer shall ex.,n·ise and
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perform the folloll'ing powers a.nd dut.ies of t.he ComDa_, C. j.
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mittcc to the exclusion of the Committee, President,
Viee-PreHident or Sncretary, under the provisio~1s of
the Ccntrnl Provi'.1cc:; and Berar :\Iuuicipalities Act,
1922 ( lI of 1922), na.mely :-
Chapter III. Appointment of Officers a.nd servants-Sect.ions 25, 26 1rnd 28.
Chapt.cr TV. Procedure in Committee meeting--.
Scetion 31.
Chapl-0r V. Property, contract an<l liabiliticsSect ion:; :n to 45.
Ch11pter VI.
Duties of Committee-Sections 50
an<l 51.
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Chapter VIII. The municuial fund-whole.
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Chapter IX. Imposition, assessment a.nd collection of 1.axes-whole.
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Chapter X.
:llunici1ial Budgets and account~
whole.
Clmptcr,X•L Powers to regulate streets and buildi11g8-Sections !JO lo 94, !16, 98, 99, 103 and I 04.
Chapt.l!r XII.
Power8 to prevent disea.He and
public 11ui~a11ce-Sectio11s 117, 118(1), 119 and 132.
Chapter XV I I l.
Offences, practice and. procedure-Sections 218.223.
. Cha pl"r XIX. Special provi"ions for recovery ,pf
taxcs-w hole.
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The Exccut.ive ofticer shall exercise general supervising powers in respct:t of all matters covered by t.he
Central Pro,·iqccs awl Bcrar i\l1111icipalitieH Act, 1922
(II of 1922)'.
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In Hindi (By order of the GO\·ernor of .Madhya
Pradesh)
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S. S. Joshi,
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ccretary .
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SUPREM]j: COURT REPORTS
1447
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On December'21, 1957., the two appellants before us
'958
presente~ before the Mad~1ya Pradesh High Court the Shri Radesh:.m
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writ pet1t10n out of wh10h the present appeal has I<lum &
Anather
arisen and on Januarv 11, 1958, obtained an order
v.
staying the operation of the order of appointment of
The State of
the ~xecutive Officer. The writ petition was dis!pissed Madhya Prndesh
on February·20, 1958.
There was a Letters Patent
& Others
Appeal which was dismissed in limine on February 21,
Das c. t
1958. The application for certificate under Arts. 132
and 133 was refused on March 21, 1958. The present
appellants applied for aud on April 1, 1958, obtained
from this Court special leave to appeal from the judgment of the Madhya Pradesh High Court. The interim stay order made by this Court was eventually
vacated on May 13, 1958.
The appeal has now come
u"p before us for final disposal.
Shri M. K. Nambiar, appearing in support of this
appeal, urged three points, namely :
(i) that though the Notification purports to have
been made ii1 exercise of the powers conferred on the
• Btate Government by s. 53-A, in substance and in
reality it has been made' under s. 57 of the Act;
(ii? that if the Notification is held to be one made
u~for s. 57 it is ultra vires a.nd bad since the statutory requirements of affording reasonable opportunity
to explain has not been complied with ;.
(iii) that even if the impugned Notification be
held to come within s. 53-A it is still ultra vires since
before promulgating it the State Government has committed a breach of the rules of natural justice in not
giving ltny opportunity to the appellants to defend
th~mselves.
.
There• was a charge of mala fide made against the
State Government founded on the fact that the first
appellant's leaving the Congress p1>rty had resulted in
ill-will towards the first appellant of that party which
was thPo ruling party in the State Goveriun1lnt, but as
that charge has not been pressed before us nothing
further need be said about it.
I now proceed to deal
with the three points formulated above by learned
counsel for the appellants.
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[1959] '
1448
~UPP.EulE CO'CRT JU<:PORTfi
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Re. (i) and (ii): Tht-se j.wo f>Oints arc \jOrt•elated and
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may lw com-e11ienth· deaft with t.ouethcr.
The a.rguSi;ii u,1arshj11Hi
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f' 't
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1\·1:,1r1,
~r·
.·hic.Jiiri nu•nt 111 8l1Jlport. o t 11e1R 1s c e\·t' ope< n1 t\\'O \rays. Jn
v.
t.he jirsr. place it is said that the grounds set forth in
Tl" srnr, ,,
1 he impugned notilication clearly indicttte that in
.11"d'•.•·n J'on1r•;, s11bsta11ce >111cl in rcalitv it. ha8 been iss11ecl mtlwr
,.,. ot1.cis
un(ler s. 57 of the~ 1\ct t:lla.n under !-{, !13- ... .\.
In order
•
to a1•11rr,,iate this arg_11nw11t it is nccessar,\' to set. outJ>a.; C. J.
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t.he two sections of tlw C. P. and Bcrar :.\lunicipn.lit ies
Ar·t, l!l22 i11 extenso:
"53-A. (I) If :1 committee is not compet1;11t to
perform tlw duties imposed 011 it. or 1111dertake11 by it
h\' or under this Act or any other ennctment for t-lw
t.fine being in force :ind i'lw Stafo (im·crnmcnt considers that a general impro\·ement in the administ ration of the municipality is likely to be secured hy tl~e
appointment of " servant of t-he Go\'ernmcnt as the
excc11tivc officer of the committee, t.he State Uovernmcnt nmy, by an tll'flrr stat-i11g the reasons t.lien•for
ptiblishcd in the Gazette, appoint such s~·,·an1 as I.he~
t•xec11t.i,·e officer of the committee for s11ch period not •
exceeding eight~en months as ·may be speciliPcl in such
order.
•
(2) Any executiYe officer 1tppoi11ted under s11hscction (I) shall he clcemecl to be an officl'l' lent to thr'
committee bv. ( :o\·ernment 11ndel' sub-section (3) of
section 25. • •
(:~) When under
s11b-section (I) .:in exe•·uti\·e
officer is appointed for
:.111.v committee, the State
Go,-ernmcnt shall de!C'rminc from tinw to time which
powers, duties and fu11ct inns of 1 he committc!e, preside11t, ,. ice-pl'csidcnt Ol' se<'retary under this Act or :IJJY
rule or h\·elaw madP t here11nclel' shall be c·xereisf.'d and
performc;cl by .-;urh oflit:el', in nddition to, or to the
exclusion of, their exel'cise and pel'formance by the
said cummitt<>c, president, ,-ice-president Ol' seerctary.
(4) Th~ scrret:iry of the co"mmit.tee shall l1e subordinate t.o the exe.cutirn oflicer.
(5) The execut.i,-c officer shall lm\'c the right to
at.te;1d all m:etin~s of t~ie commit.tee and any joint
i:ommittc~ Ol' oil b-comn11ttce and to take part. m t.he
• tliscnssi•m so a,; fo make an cxplanati~n in 1'bgard to
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S.O.R .• ."IUPl~EME OOIJRT REPOR'IOS
1449
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the subject i!nder
disc~rnsiQn, but shall not move,
~58 /
second, or vote on any resolution or other motion. "
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57
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Shr·i Radeshyam
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. (l)
a comm1
eel~ ·no, ?ompe en
o per- I<ha" 6 . Another
form, or persistently makes default. m the performance
v.
of, the duties imposed on it or undertaken by it under
The Stote of
this B.ct or any other enactment for the time being in Madhya Prndesh
force, or exceeds or abuses its powers to a grave
& Others
extent, the State Government may, by an order
-- •
stating the reasons therefor published in the Official
Das c. J.
Gazeite, dissolve such committee and may order a
fresh election to take place.
(2) If after fresh election the new committee continues to be incompetent to perform, or to make
default in the performance of, such duties or exceeds
cii: abuses its powers to a grave extent, the State
Government may, by an order stating the reasons
therefor published in the Official Gazette, declare the
committee to be incompetent or in default, or to have
exceeded or abused its powers, as the case may be, and
.supersede it•for a period to be specified in the order.
(3) If a conunittee• is so cliHsol ved or superseded,
the following consequences shall ensue :
(aj all members of the ,committee shall, as from
thl'l date of the order, vacate their offices as such members;
(b) all powers and duties of the ccm11nittee may,
until the committee is reconstituted, be exercised and
performed by such person or persons as the State
Government may appoint in that behalf;
(c) 1111 property vested in it shall until the committee is reconstituted rnst in the State Government.
• (4) On the expiration of the period of supersession
specified in the order, the committee shall be reconstituted, and the persons who vacated their offices under
sub-section (3), clause (a), shall not, by reason solely of
such supersession be ?eemed disqualifjed for being
membePs.
•
(5) No order under sub-sect.ion (1) or sub-section
(2) shall be passed until reasonable opportunity has
been given to the committee to fu1~nish .an expl~nation.
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(6) Any person or persons appointed by the Stat~•
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1450
SUPHEME COURT REPORT& , [1959)
•
Gon•rnmcnt to exercise and p'erform th!J' powers and
, ,
rlutics of a dissolved nr superseded committee may
Slrri Nnde$hY"'r.
.
.1. l ·s
('
d'
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Khare
c:~ AtMther receive pa..yn1ent, i t H!
1 ta.te :iovernmcnt so
ire('ts,
. "·
for his ur tlwir services from the municipal fund."
n, swc of
Learned coun8Pl fur the appellants points out that,
Madhya l'.a·/c;h <Lctiuwnmy be taken under s. 53-A " if n commit.tee i;;
,S.. Othrrs
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]Jas C. }.
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nu· compe ent to per orm t e
utres Illl]H>SC<
on 1t
............... 1111d t.lw State Go,·ernmrnt considers that a
general improvr·ment in the administrnt.ion of the
municipality is likely to be securerl. ................. ".
Whereas under s. 57 action can be taken nut nnh· " if
a committ€e is not competent l-0 p~·rform or persistently
makes default in the pcrform:rnce of the duties imposed on it or ............... ", but also if the committee
"iexceeds or abuses its puwt>rs to a grase extent ....... '.i.
lt is pointer! out that in case of incompetency acti<>11
can be taken either und<'r s. 5:~. A or s. 57 but in cast>
of abuse of power ad.ion can b0 t.akt'n only under
s. 57.
Heforence is then made to the grou11ds rnumerated in the 11otification itself itlld it is -argued that.
except perhaps grounds a, b, ~ and g which may be •
indi('ativc of inc01npetcncy, the other grounds •• which
arc, by far, greater in n1unber, obviously constit.11t.0
abuse of powers and from this circum,;tance thn cl\n.
clusion is 80•1ght to be drawn thfLt. in substance and in
reality the .impugned notification must have been
nrndc under s. 5i and that that being so tlw notifici>-
tion cannot he sustained becaus1' of the non-compliance
with tlw pro,·isions of sub-s. (;i) of s. 57 which expressly
lay down that no order under sub.s. (l) or (2).shall be
passecl until rcasonahlc opport11nit.y has bcnn give.n to
t.he committee to fumish an explanation.
I a!11 liot.
persuaded to uph.,lcl this argument..
In the first place it has to be remembered that tlw
sections under consideration only confor certain powers
on the State .Government bu~ that the latter is not
bou11d to t.ike anv action under cit.her of th~m. 111
the 11ext place it. ~hould be 11oterl that the t.wo s!'ol ions
differ makrially in t.heir scope and effect.
U 11<lcr
s. 5:1-A the .:-itat~ Government. may only appoint a
serv:rnt. ot' the (i,i,·crnnwnt a8 the Executive J.)fh"t'r of
• lhc committee and may de;crmi1w, fro'm time to tiui.~,
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S.C.R. • •SUPREME COURT REPOR~S
1451
,
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which powern and dut1es and functions of the comI958,
mittee, its president, vice-president or secretary shall Shri Radeshyam
be exercised and performetl by such officer and Kha" & Anoth"
indicate whether they should be exercised and perv.
formed in addition to, or to the exclusion of, their
The State of
cxcfoise and performance by the said committee, Madhya Prndesh
d
&- Others
president, vice-president or secretary.
The wor ing
of s. 53-A mi.kes it quite clear that the action that
may be taken thereunder is to be effective for a
temporary duration not exceeding 18 months and the
purpose of taking such action is to ensure the proper
performance and discharge of only certain powers,
duties and functions under the Act.
The section does
not, in terms, affect, either legally or factually, the
o('Xistence of the committee, its president, vice-president
or the secretary.
i:lection 57, however, authorises the
State Government, in the circumstances mentioned in
the opening part of that section, to dissolve the committee itself and order a fresh election to take place so
• that the c"mmittee as a legal entity ceases to exist
•
and all the sitting mevibers of the committee become
functj officio. If after such fresh election the same
situation prevails, then th~t section further authorises
; the State Government to declare the committee to be
incompetent or in default or to have exceeded or
abused its power as the case may be allcL to supersede
it for such period (not limited by the section) as may
be specified in the order. The effect of an order made
under s. 57 is, therefore, extremely drastic and puts an
·end t(\ the very existence of the committee itself and,
in view of the grave nature of the consequences that
.vill. ensue, the legislature presumably thought· that
some protection should be given to the committee
before such a drastic action was taken and accordingly
it provided, by sub-s. (5) of that section, that no order
-.
Das C. ].
•
should be passed uptil reasonable qpportunity had
been given to the committee to furnish a1i eKplanation
•
-a provision which clearly indicates that action under
•
s. 57 can only be taken after hearing and considering
all the explanations furnish)'d by o; on. behalf .of the
commij;tee. The legislature did not think tit to provide
a similar safeguard in s. 53A presumably becaMe
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1452
...
ST.iPHEME COC~T ItEl'ORTS •• [ 195\J]
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~ the order 1111der t.h1' last, m~itioncd seetiou mis of
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a temμorarv duration. was not very drastic n,nd
ti
~adtSllJ,~111 d 'cl
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not ti1rl'aten the \'ery ex18tencc of the comv.
mittec.
A cursory reading of the t.wo
sec:t.ions
The s1 .. 1e c/
will also inclic:ite lhttt
the
conditions precedent
Jladh1" p,";,-" to the t'>Kercise of the powers under hoth sections o~·err~ 011""
lap to some C'xtcnt, naml'ly, that act ion can lw taken
.---
under both if the committee" is not com1>c!ent. to f>Cl'-
/l . .s c. J.
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form the duties imposed on it ......... ".
To thP extent·
tha.t. the requircnwnto of t.h1• two Heclion> o\·erln1• the
~tale ( ;0\-cl'llment !ms the option of taking steps under
one ~ection or (.he ot.her according io its o\\·n assessment. of the exigencies of the sitnMiou.
The position,
therefore, is that if a committee is not competent t.o
perform the dutie' imposed on it t.hc State Con'rn:•
ment !ms to makte up ivi mind as l•l whether it should
take :wv action M all and, if it thinks that act ion
should b1' taken, then it ha.s furl her to cl~cide for itself
11s t.o "hich of the t\\·o sections it. would act under.
ff t.hc Stat<' Gm·emmcnt considers th11t th8 incompc- •
tency docs not. rnn tu a grn\·" C\tentancl the <'xigcncics
of the :;ituation lllay he ackqtmtely met by appointing
:1n Exl'cuti''V Oliicer for :t sl1ort prriud not
t'X<:c:~ding
18 months with certain powers to be <'V>r1:is1'd by hinf, ••
C'ither in addition to or in exc:iusion of t.heir C:\Pl'Cise
hy the committet', the president., vicc-prcsident 01· tlrn
secretary, the State Government may properly take
action under s. :i3-A.
On t hP other hand if the State
Gm·crnment consirlc•rs,
having regard to all the
cin:ums.t:tntcs oft IH> case, that the incompet.0,tll'y is
much too gra.,-c t.o permit the committee, it.s presidl.'lll,
vi,,e.prc,icknt or the secrt:t.ary to t'unct.ion at all, i•
m11v take action un<ler s. 5i and dissohc the cumruittec
a.nrl din>ct fresh eleet.iou to take pince. In other words
i11competc11cy on t.he μart of the eommittec gi\'es to the
St.;ck Govcmment <111 option to a.~ply one uf two rcme-
•
dies under tlie :<\ct, if, t.hat is to say, it c•msioors it
,
•
1wcessa.rv t.1> take ill'tion at nil.
What; then, is the po~ition here ? Certa.iu 1·lmrgcs
h;td been madi; in '\riting :igainst the committee and
it~ pl'esidcnl which were {'orwardcd t.o the prrsident
\l'it.h a reqnest t.o si1l1mit. cxpln,nations ii"i detail.
The
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S.C.R.
SUPREME COURT REPORTS
• •
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1453
president, a~ting in hi;, official capacity, gave detailed
z95B
explanations in writing and Sent the Same officially ch . R~d
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a es yam
rom t e o ce o t e mm1101pa
conrnut ee o
e Khare & Another
Additional Deputy Collector who was deputed by the
v.
Collector to hold the enquiry. The Additional Deputy
The state of
Col!ector held the enquiry during which the J:\resident Madhya Pradesh
appeared in person on several days and came to cerc~ Others
ta.in findings and presumably made his report which
-.
in due course must have reached the :State GovernDas c. f.
ment. The State Government apparently accepted
such of those findings as have been set out in the
notification itself. Even according to leamed comrnel
for the appellants some of those findings ;i,mount only
to incompetency and the rest, he contends, amount to
abuse of power.
I need not pause to consider whethel"
"the abuse of power thus found was of a grave nature
so as to fall within s. 57 as such or was of a minor
chamcter so as to be evidence of mere. incompetency.
Taking the position to be as contended by learned
counsel for. the appellants the position was that, as a
result of the enquiry, the St.;i,te Government found
two things against th~ appellant committee, namely,
(i) tlmt it was guilty of iucompetency and (ii) that it
•was also guilty of certain' abuses of power.
I have
•already ·stated that the State Government was not
obliged to take any action at all eithe.r under s. 53-A
or under s. 57. If the State Government considered
that it was necessary to take action, it was entirely
for the State Government to consider whether it
would take action for incompetency or for abuse of
power.' In the present case the State Government
might have thought that the abuse of power so found
was not of a very grave nature but evidenced only
incompetency. Surely a committee which abused its
power might also have been reasonably regarded as
"incompetent to perform the duties imposed on it".
That .apart, supposil1g the committee' was guilty of
incompetency as well as of some abuses, what was
there to prevent the State Government, as a matter
of policy, to take action .for incompetency 1mder
s. 53-A ? The mere inclusio11 of th'e fim'l.in~s of abuse
of
pm~er in • the
catalogue of · the Committee/1'
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1454
SQPREME COURT ~EPORTS
[1959]
•
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,1958
misdeeds doeo not obliterate lhi finding~ 011 incompc-
. . · ···-
tency.
I see nothing wrong in the State t;ovcmment.
Sim !ladr;hpm
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1 · / tc mg tic c:omm1ttcc: • ' i ou 1a\'C been gudtv of
...1re
<..:>
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111co111pet~11cy as well as of abuse uf power; hut 1
n, -"•'' "!
sh;dl not, just at this moment, take drastic •1etion of
J/adhy., I'rnde;t. dissolving you outright, but shall be content to t;i.ke
"'-Ott.en
action and appoint ;rn Executive officer for 18 mouths
•
and confer some power on him under '· [i3-A ".
In
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my ju gment tie 8tatc •Overnment waH well within
its rights, in exercise of its option, to take action,
under s.
;;:~-A as it has in terms purported t.o do.· To
say that heeirnse some of the findings amount to
ahusc of power the Stale Government must act under
s. 57 is to deprive it of its <liscret.ion which tl11• Act 11ndo11htcdlv confers 011 it. Jn mv view the fact. that
the imp;;gned notific<Ltion reco;ds, apart from the•
findi11gs of incompetency, certain findings of abuse
of power, docs nut. lead to the co11dusion, <is enntenclt-<1
for the <1ppcllants, that the State·' Government had
t<1k1m act ion under s. ;)i and not under s. 53- . .\
although, in ternrn, it says it '1cted
und(~r the last •
men t.ionecl section.
•
Lea.med counsel for the appdlants in support c.f hi~
content.ion that th<' impugr1ed notification w<1s real~.
made umler s. 57 of the Act, refers us t11 th<> p01nn·s •
and duties conferred on the cxecutiYc Officer thcrcbv
11ppuintecl to' be exercised and performed by him t'O
the "xdnsion of the committee, its president., ,·iceprrsiclcnt., or t.he se<'retary.
His argument is that
although the municipal committee i' not ostensibly
dissoh·cd, it is in effoet and in re;llity so dissol\"ec!, for
the .snbsta.1wCJ of the powers of the committee, its
president., vice-president or the secretary has Jice!1
taken aw;iy from them leaving only a sembbi.nce of
power which is n"thing but mere husk 1111<l the conclusion urged Ly learnl,d counselis thfll the impugned
not.ification •mt!8t bt• reg;1l'ded its ha Ying hcen. made
nnder s. 57.
ln the fir~t place, s .. '\7 cloes not contemplate the ;ippointment of any executive Officer or the
confrrm<'llt of any power !HI him, while such appoi11tme.nt0 ;ind ·c<1,1fern'l.ent of• power is direct\\' contemt>l.1.t.c<l by· s. 53-A. In the second ~lace" t~ legal
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S.O.R. • .SUPREl\1~ oopRT REPORT.S
1455
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existence of .the municfpal ,committee and the status
r958 /
of its members and its president, vice-president or the
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th
Sm Rade> •yam
secretary ave not een impatre
a a .
n
e eye Kha" &
Another
of the law the municipal committee still exists and
v.
along with it the members of the committee, the presiThe State of
den11, vice-president and the secretary still hokl their Madhya Prnd"h
respective offices.
These features clearly militate
& Others
against the suggestion that action has been taken
-•
Das C. ].
under s. 57.
Learned counsel says that we must look
beyond mere form and get to the substance of the
matter. There can be no doubt that most of the
important powers have been taken away from the
committee, its
president, vice-president and the
secretary, but that may well be due to the degree of
g_ravity of the incompetency found or inferred from
the other findings.
:Further, a cursory perusal of the
Act and of the notification will show that various
other powers and duties have not been taken away
from the committee or conferred on the Executive
• Officer.
Tims the powers of the committee under
• ss. 128, 130, 131, 133 ~ 141 and 144, 145 and 147 to
149 are still vested in and are exercisable by the committee. Likewise the powers under ss. 120, 121, 122,
01!3 to 127, 129, 150, 152 to 160 to 162, 163, 163A and
168 are still vested in and exercisable by the president.
These powers that are still left with th13 JJommittee or
the president can hardly or with propriety be described as mere husks. It should not be overlooked
that the suggestion that the real power has been taken
away leaving only a semblance of it, is really an
argument in aid of a charge of mala fides, but, as
h.-re-in-before stated, the charge of mala fides· or
fraud on the part of the State Government has not
been persisted in or pressed before us. In my judgment, therefore, there is no warrant for contending
that the impugned notification, judged by its efl:ect,
must he regarded as having been made-urider s. 57 of
the Act. In this view of the matter the argument of
invalidity of the action founded on non-compliance
with the requirements of sub-s. (5),of s, 57 doe.snot
arise fo:t consideration at all.'
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1451i
SUPREIIIE C01JRT·UEPORTS , [1959]
•
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Re, (iii): In the writ. ttp~lication, iout of which
SI . n ,1 1 ., . this appt,,i! 11rises, the principal prnyer of the t1ppel-
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J<Ju11e &
.. 1,;,,ti:ei· ant~ 18 H)l' a. \\'l'lt 111 t, e•nature o <.:t"rt1ora.r1 1or quas 1v.
ing t.hc order passed by the Stale Government. on
The s'"" of
?\ovembe;r 18, l!Jiii, The next prayer which is for n
Afodli)a hak<h writ of mandam1rn restraining tlw re:;pondcuts •from
{.,.. Otlu:rs
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g1vmg e tee! tot w 11npugneu oruer rn e l'ar y consequenlia.J on or ancillary to the main praym"
The !11st
prayer is in the rmture of the usual prayer for
further or other re lid's,
Therefore the present p<'J;ition
is esseutia.llv one for the issue of a writ of certiorari.
The writ of certiorari is a. well.known ancient high
prcrogMi\'e writ t!rn.t used to be issued by the Court.s
of the King's Bench to correct the e1-ro1's of the
inferior Courts strictly so called. Gradually the 8t:OL11'
of these writs came to be enlarged so as to enable t.ht:
Superior Courts to exereise comrol over n1rio110 bodies
whid1 11·crc not, strictly speaking, Courts at u,]] but-.
which 1rnrc, by ~l:itute, Yest.ed with powers tl!ld clutit'8
tlmt rcRernblcrl t.hosc that W<'rc vested i11 dw ordinan·.
inferior Courts. The law iH 1~ow well-set.tied thrtt ;1
writ. of certiorari will lie to control such a stat.uton·
body if it purports t-0
a.c~ without jurisdict.io1~ or iii
exceso of it or in 1·iolatinn of the principles of natufa'L
ju,;tice, or eornmits any error app11rent on the face of
t.he record8, ~n'l.>\'ide<l lhat, on tt true eon8t.r11ctio11 of
the statute creating such hody, it can be saicl to be a
quasi-judicial body entrusted with quasi-judicit1! functions.