# Province. of Bombay v. K. S. Advtmi ad OtherJ

- **Citation:** [1950] 1 S.C.R. 621
- **Court:** Supreme Court of India
- **Decided:** 1950
- **Bench:** SHRI fuRILAL KANIA c. J, Saiyid Fazl Ali, Patanjali Sastri, Mehr Chand Mahajan, Mt:KHERJV.A, DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/province-of-bombay-v-k-s-advtmi-ad-otherj-144
- **Pages:** 121

## Headnote

621
Bombay I.And 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 compo,site part of power to requisitionDistinction between jujicial or quasi-judicial acts, and administr•
tive acts-Guiding principles and tests-Writ of certiorari-Nature
and incidents of the writ- -Power of High Court to issu' writ
ogainst Provincial Government-Government of India Act, 1935,
ss. 176, 306-"Sue," meaning of.
Held by the Full Court, (KANIA C. J.,
FAZL Au, PATANJALI
SASTRI, · MEHR . CHAND MAHAJAN, MuKHERJEA and DAs JJ.).-A
writ of cei·tiorari 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
ex~ess 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 l st respondent wbo 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,
allotte~ the samo:: 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 Au, 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
1930
Sept. 15.
1950
Province. of
Bombay
v.
K. S. Advtmi
ad OtherJ.
622
SUPREME COURT REPORTS
jl950J
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 ceriiorari in respect of the order of
requisition.
Per
MAHAJAN and
MuKlffiRJEA
Jj.
(contra).-The
Go\·ernn1ent of Bombay is a body of persons having legal authority co d<;terminc 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 :ict judicially. The conditions
necessary for the granting of a \\'rit of certiorari were accordingly
satisfied :ind the. J Jigh Court of. Bo1nhay had power .to issue the
\\'rit.
~
KANIA C. J.-Though a writ of certiorari 1nay be issued where
a body of persons having legal authority to determine questions
affectin,;; the rights of subjects anJ haYing a duty to act judicially
act in excess of their legal authority, yet merely because an
c::xe~
cutive authoritv has to detern1ine certain objective facts affe-.:ting
the rights of subjects as a prelin1inary step to the discharge of an
executive function it does not follow that it tnust determine those
facts judicially. On the contrary, when the executive
authority
has to forn1 an opinion about an objective matter as a preliminary
step to the exercise of a certain power conferred on it, the
deter~
mination of the ohjectivc iai.::t anJ the exercise of the power based
thereon a

## Text

_Characters 0–39,851 of 266,649. This is a partial read: ask again with offset=39851 for what follows._

S.c.R.
SUPREME COURT REPORTS
PROVINCE OF BOMBAY
ti.
KUSALDAS S. ADV ANI AND OTI;IERS
[SHRI fuRILAL KANIA c. J., SAIYID FAZL ALI,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
Mt:KHERJV.A and DAs JJ.]
621
Bombay I.And 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 compo,site part of power to requisitionDistinction between jujicial or quasi-judicial acts, and administr•
tive acts-Guiding principles and tests-Writ of certiorari-Nature
and incidents of the writ- -Power of High Court to issu' writ
ogainst Provincial Government-Government of India Act, 1935,
ss. 176, 306-"Sue," meaning of.
Held by the Full Court, (KANIA C. J.,
FAZL Au, PATANJALI
SASTRI, · MEHR . CHAND MAHAJAN, MuKHERJEA and DAs JJ.).-A
writ of cei·tiorari 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
ex~ess 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 l st respondent wbo 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,
allotte~ the samo:: 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 Au, 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
1930
Sept. 15.
1950
Province. of
Bombay
v.
K. S. Advtmi
ad OtherJ.
622
SUPREME COURT REPORTS
jl950J
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 ceriiorari in respect of the order of
requisition.
Per
MAHAJAN and
MuKlffiRJEA
Jj.
(contra).-The
Go\·ernn1ent of Bombay is a body of persons having legal authority co d<;terminc 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 :ict judicially. The conditions
necessary for the granting of a \\'rit of certiorari were accordingly
satisfied :ind the. J Jigh Court of. Bo1nhay had power .to issue the
\\'rit.
~
KANIA C. J.-Though a writ of certiorari 1nay be issued where
a body of persons having legal authority to determine questions
affectin,;; the rights of subjects anJ haYing a duty to act judicially
act in excess of their legal authority, yet merely because an
c::xe~
cutive authoritv has to detern1ine certain objective facts affe-.:ting
the rights of subjects as a prelin1inary step to the discharge of an
executive function it does not follow that it tnust determine those
facts judicially. On the contrary, when the executive
authority
has to forn1 an opinion about an objective matter as a preliminary
step to the exercise of a certain power conferred on it, the
deter~
mination of the ohjectivc iai.::t anJ the exercise of the power based
thereon are alike nlatters of an administrative character and arc
not amenable to the \\'rit of certiorari.
It cannot be laid do\vn broadly that in order that a
deter~
mination may be a judicial or quasi-judicial one there must be a
proposition and an opposition, or that a /is is necessary, or that
it is necessary that there should be right to exan1inc, cross-examine and re-examine witnc-sscs.
The true test is whether the
law, under which the authQrity 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 wellrccognised principles of approach are required to be followed.
FAZL ALt 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 dutv on the Provincial Government to decide the existence of a
publi~ purpose judicially or· quasi-judicially.
It is well settled that \vhen an .'\.ct or regulation cotnmits to
an executive authority the decision o{ what is necessary or expedient and that authority make the decision, it is not com~t
to the courts to investigate the grounds or the reasonableness of
the dcci>ion 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, give<: a public purpooe,
SUPREME COURT REPORTS
623
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 necessin"
ot" 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 marw judicially or
quasi-judicially.
MAHAJAN J.-The question whether an act is a judidal 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
puticular power in cxcccisc 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.
The.o;e 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 Governmrent 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.
MU!(HERJEA
J.-Undcr
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 cssentiai pre-requisite to the taking of steps by
the Provincial Government in
the matter of requisitioning any
property and under th,e 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 th:lt of the individual
who owns the property on the other hand, and the determination.
of the Government was therefore a judicial act; the detemiination
was
further a collateral matter on which the jurisdiction to
requisition was ' founded, and not a part of the executive act of
19.';0
Prooifl<I of
Bombay
...
K. S. r'lilvani
tJlllf Otherr,"
19.JO
Pn1vinu of
Bt1mboy
v.
K. S. Advani
ft Ollurs.
624
SUPREME COURT REPORTS
[1950]
requisitioning, and a writ of certiMIJl'i could therefore be issued in
the "'1SC,
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 sirnplicitcr 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
::1:nd
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 'vrit 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 pcrfonn its administratiYe powers, and if
it assumes
jurisdiction
pn 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 quadied, the
administrative act, namely the for1nation of opinion and the order
based· _thCreon wotild still remain unaffected by certiorat·i.
.
'
In order that a body may be a quasi-judicial body it is not
enough that it should have legal authority to determine qhcstions
.-affecting the rights of subjects; there must be supcradded to th:it
characteristic the further characteristic that the body has the J4ty
to act judicially.
If a statute empowers an al;lthority 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 oppt>scd to each oth~r, there is a lis and prima
J11cie,
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 arc not two
par.lies apart from the authority, and .the contest is between the
11u~oi:i~ -proposing to do the act and the subject opposing it, the
6ul . clctumination of thc autlu>rity will yet be a quasi-judicial
act provided
the authority is
required by the
statute to act
judiciaUJ.
S.C.R. '
SUPREME COURT REPORTS
625
A mere provision for an enquiry
~s a preliminary
~t~p to
coming to a decision will not necessarily m?kc the dcc1S1on a
quasi-judicial act; for, the purpose of the enquiry ~ay only be to
enable the deciding authority to make up its mmd to do what
may be a purely administrative act.
Held, per
KANI4 C. J.,
FAZL ALI,
PATANJALI
SASTRI, and
Dit.s JJ.-The powers given to the Provincial Government under
ss. ·IO and 12. of the Ordinance are only enabling and in terms arc
not compulsory, and there is ,nothing in these sections which
makes it incumbent on the Government to act judicially in the
maner ot making an order tor requisition under s. 3.
Held aho, per MAHAJAN, and MuKHERJI:A 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 Provin,ial
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 :rn
application for a writ of certiorari.
Rex v. Electricity Commissioners ([1924] 1 K. B. 171), Rex v .
. London County Council ([1931) 2 K. B. 215), The Queen v. Corporntion of Dublin ([1878] 2 L.R. Ir. 371), Frome United Bmueries v.
Bath fustices ( [1926] A.C. 386), Rex v. Archbishop of Canterbury
([1944] l K. B. 281), Rex v. Woodhouse (1906) 2 K. B. 501), King v.
Postmaster General ([1928] 1 K.B. 291), Rex v. Boycott and Others
(fl939] 2 K. B. 651), Franklin v. Minister of Town .and Country
Planning ([1948] A. C. 87), In re Banwarilal Roy ( 48 C. W. N. 766),
fugilal Kamlapat v'. Collector of Bombay (47 Born. L. R. 1070),
Hamabai Framji Petit v. Secretary of State for India (L R. 42 I. A.
H), King. v.
Bradford ([1908]
1 K. B. 365), and other cases
referred to.
APPELLATE
JuRISDICTION
(C1v1L) :
Case No. III .
of 1949.
Appeal under section 205 of the Government of India
Act,
1935,
from . the
judgment of
the · Bombay
High Court (Chagla C. J. and Tendolkar J.) dated the
4th day of January, 1949, in Appeal No. 65 of 1948.
M. C. Setalvad, Attorney-General for India
and
C~ K. Daphtary, Advocate-General of Bombay (G. N. /oslzi
and M. M. Desai, with them) for the appellant.
H.- M. Seert1_ai, R. /. Joshi and Ramesluvar Nath,
for respondents Nos. 1 (a) and 1 (b).
1950
Provinu of
Bombay
v.
K. S. Advani
'Ind Others.
1950
P,.11ince of
B..,.b'!J!
v.
K. S. AJuani
and Others.
KaniaC.J.
626
SUPREME COURT REPORTS
119501
1950. September 15. The Court delivered judgment
as follows :-
.
KANIA C. J.-This is an appeal from a judgment of
tbe High Court at Bombay and it relates to the power
of the High Court to issue a writ of certiorm·i against
the province of Bombay to quash an order to requisition certain premises.
The material facts, as stated
in the judgment of the
High
Court, are
these.
One
Abdul Hamid Ismail was, prior to the 29th of January,
1948, the tenant of the first floor of a building known
as "Paradise" at Warden Road, Bombay, the landlord of which was one Dr. M. D. Vakil.
On the 29th
January,
1948,
Ismail assigned
his
tenancy
to the
petitioner
and
two
others,
the
son
and hrother's
daughter's son of the petitioner (the respondent). All
the three assignees were refugees from Sind.
On the
4th February, 1948, the petitioner went into possession
of the flat.
On the 26th February, 1948, the Government of Bombay issued an order
requisitioning the
flat under section 3 of the Bombay Land Requisition
Ordinance (V of 1947) which came into force on the
4th December, 1947.
On the same day Dr. Vakil was informed that the Government had allotted the premises
to Mrs. C. Dayaram who was also a refugee from Sind.
Further orders
were
issued
authorising an
Inspector
to take possession of the premises.
On the 4th March,
1948, the petitioner filed a petition for a writ of certiorari and an order under section
45 of the Specific
Relief
Act.
The
petition was
heard by Mr. Justice
Bhagwati who, inter alia, granted the writ against the
province of Bombay and the Secretary etc. On appeal
the appellate Court confirmed the order as regards the
issue of the writ of certiorari against the appellant, bnt
cancelled the order as regards the other parties.
The
appellant has come on appeal to this Court.
The learned Attorney-General, on
behalf of
the
appellant, urged the following
three
points
for
the
Court's consideration.
( 1) (a) t):aving regard to the provisions of Ordinance V of 1947, whether the order in question was
quasi-judicial or only administrative ?
S.C.R.
SUPREME COURT REPORTS
6tl
( b) Assuming the order to be of a quasi-judicial
nature, whether it was a case of want or excess of
jurisdiction, or it was only a case of mistake of law ?
(2) Whether a writ of certiorari can be issued
against the appellant, which for its actions under the
Ordinance, represents the Crown ?
(3) Whether the order in question was made for
a public purpose t
·
Section 3, 4, 10 and 12 of the Ordinance which
are material for the discussion m this appeal run as
follows:
"3; Requisition of land.-!£ in the opinion of the
Provincial Government
it
is
necessary
or expedient
to do so, the Provincial Government may by order in
'\.vriting 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.
4. Requisition of vacant premises.-(1) If any premises situate in an area specified
by
the Provincial
Government by
notification in the Official Gazette are
vacant on the date of such notification and whenever
any such premises become vacant after such date
either by the landlord ceasing to occupy the premises,
or by the termination of a tenancy, or by the eviction
of a tenant, or by the release of the premises from
requisition or otherwise, the landlord of such premises
shall give intimation thereof in the prescribed form to
an officer authorised in this behalf by the Provincial
Gqyernment.
(2) Such
intimation
shall
be
given
by
post
within one month of the date of such notification in
the case of
premises which are vacant on such date,
and in other cases within seYen days of the premises
being vacant.
(3) A landlord
shall not, without the permission
of the Provincial Government, let the premises before
1950
Pl'<'vinrt oJ
Bombay
"·
K. S. Muani
tmd Otnns.
Kania C.J.
1950
ProiilV4 qf
Bom61f1
v.
Jr. S .. Advani
mu/ 01/Jtrs.
x..ia c. J.
628
SUPREME COURT REPORTS
r I95o r
giving such intimation an<l for a period of one month
from the date on which such intimation is given.
( 4) Whether or not an intimation under subsection (!), is
given, and notwithstanding anything
contained in sectio.n 3, the Provincial Government may
by order in writing requisition the premises and may
use or deal with the premises in such manner as may
appear to it to be expedient.
(5) Any lan<llord who fails to give such intimation within the period specified in sub-section
(2)
shall on conviction, be punishable with fine which
may extend to one thousand rupees and any landlord
who lets the premises in contravention of the provisions of sub-section (3), shall, on conviction, be punishable with imprisonment which may extend to three
months or with fine or with both.
10. Power to obtain information.-(l) The provincial Government may, with a view to carrying· out
the purposes of this . Ordinance, by order require any
person to furnish to such authority as may be specified
in the order such information in his possession
relating to any land which is requisitioned or is continued
under requisition or is intended to be requisitioned or
continued under requisition.
(2) Every
person requirc<l to
furnish such
information as
is referred
to in sub-section ( l) shall be
deeme<l to be legally bound to do so within the meaning of sections 176 and 177 of the Indian Penal Code
(XLV of 1860).
12. Pou1er to
enter
and· inspect land.--Without
prejutlice to any powers otherwise conferred by
this
Ordinance any officer or person empowered in this behalf by
the Provincial Government by
general or
special order may e-nter ancl inspect any land for the
purpose of determining whether, and, if so, in what
manner,
an
order
under
this Ordinance should be
made
in relation to such land, or with a view to securing compliance
with
any
order
made
under
this
Ordinance."
S.C.R.
SUPREME COURT REPORTS
629
On
the first
question, it
was
pointed out that
under section 3 of the Ordinance the decision of the
Provincial Government to requisition certain
premises
is clearly a matter of its opinion and therefore not
liable to be tested by any objective standard.
It was
urged that the decision as
to whether the premises
were
required
for
a
public
purpose
was also a
matter for the opinion of the Provincial Government,
and
not
a
matter
for
judicial
investigation,
and
therefore the making of the order was in no sense a
quasi-judicial
di::cision,
but
an
administrative or
ministerial order.
In this connection it was pointed
olit that unlike the Land Acquisition Act there was no
provision in the Ordinance for issuing a notice, or for
inquiries to be made, or for rival contentions to be examined and evidence to be weighed before a decision
is
arrived
at.
It was pointed out that if public
purpose was outside the_ scope . of the opinion of the
Provincial Government, the
section would have run :
"If for any public p~rpose in the opinion of Government .......... ".
A
discussion
about
the
distinction
between
judicial and quasi-judicial
functions
is
not useful in
this case as the point for determination is whether the
order in question is
a
quasi-judicial order or an
administrative or ministerial
order. In Regina (lohn
M'Evoy) v. Dublin Corporation ( 1 ), May C. J. in dealing with
this
point
observed
as
follows :-"It is
established that the writ of certiorari does not lie to
remove an order merely ministerial, such as a warrant,
but it lies to remove and adjudicate upon the validity
of acts judicial.
In this connection. the term 'judicial'
does not necessarily mean acts of a judge or legal
tribunal
sitting for
the determination of matters
of
law, but for the purpose of this question a judicial act
seems to be an act ·done by competent authority, upon
consideration of facts and circumstances, and imposing liability or affecting the rights of others."
This
definition was approved by Lord Atkinson in Frome
United Breweries Co. v. Bath /ustices (
3
) as the best
(') [1878] 2 L. R. Irish 371, 376.
(1) [1926] A. C. 586, 602.
81
Province of
Bombay
v.
K. S .. Aduan•
and Othm.
Ka11iaC.J.
1950
Provinr~ tf
Bombay
v.
K. S, Mvtmi
and Olllers.
Ktmia C.J.
630
SUPREME COURT REPORTS
I 1950]
definition of
a
jwlicial act as distinguished from an
:i.dministrative act.
A distinction between the nature of the two acts
has been noticed in a series of decisions. This Irish
case is one of the very early decisions. On behalf of
the
respondent
it was
contended that as stated
by
Chief
Justice
May,
whenever there is the determination of a fact which affects the rights of parties, that
determination is a quasi-judicial decision, and, if w;' a
writ of certiorari will lie against the. body entrusted
with the work of making sucli decision.
.A5 against
this, it was pointed out that in several English cases
emphasis is laid on the fact that the decision should be
a judicial ckcision and the obligation to act judicially
is to be found in the Act establishing the body which
makes the decision.
Thi.s point appears to have been
brought out clearly in The King ,._ The Electricity
Commissioners ( 1 ), where Lord Justice Atkin (as he
then was) laid down the following test': "Wherever
any body of persons having legal authority to determine questions affecting· the rights of subjects, and
having the duty to act judicially, act in excess of their
legal
authority they are subject to the controlling
jurisdiction of the King's Rench Division exercised in
these
writs."
This
passage
has
been
cited
with
approval
in
numerous
subsequent decisions
and
aGcepted
as
laying down the correct test. A slig]1tly
more detailed examination of the distinction is found
in The King v. London County Council ( '2 ), where
Scrutton L. J. observed as fol1ows :~"It is not necessary that it should be a court in the sense in which thi•
court is a court ; it is enough if it is exercising, after
hearing evidence, judicial functions in the sense that
it has to decide on evidence between a proposal and an
opposition ; :i.nd it is not necessary to be strictly a
court ; if it is .a tribunal which h:i.s to decide rights
after hearing evidence and opposition, it is
amenable
to the writ of certiorari."
Lord Justice Slesser in his
judgment at page 243 separated the four conditions
laid down by Atkin L. J. under which a rule for
(') [1924] I K. B. 171.
(') [1931] 2 K. B. 215, 2:'3.
S.C.R.
SUPREME COURT REPORTS
631
certiorari
may issue. They are : wherever any body
of persons ( 1)
having legal authority (2) to determine
questions affecting rights of subjects and (3) having
the duty to act ju<licially
( 4) act in excess of their
legal
authority-a writ of certiorari may issue.
He
examined
each
of
these
conditions
separately
and
came to the conclusion that the existence of each was
neces~ary
to
determine
the nature of the act in
quest10n.
In
The
Ryots of Garabandho and other
villages v. Zamindar of Parlakimedi ( 1 ) Viscount Simon
L.C., in
delivering
the
judgment
of
the
Board,
accepted the test of these four conditions to determine
the nature of
the act.
He stated : "This writ does
not issue to correct purely executive acts but, on the
other hand, its application is not narrowly limited to
inferior 'courts'
in
the
strictest
sense.
Broadly
speaking, it may be said that if the act done by the
inferior body is a judicial act, as distinguished from
being
a
ministerial
act,
certiorari will
lie.
The
reme<ly,
in point of
principle, is derived from
the
superintending
authority
which
the
Sovereign's
superior courts and in particular the court of King's
Bench, possess and exercise over inferior jurisdictions.
This principle has been transplanted to other parts
of
King's Dominions
and
operates, within certain
limits,
in
British
India."
In
Franklin v.
The
Minister of Town and Country Planning ( 2 ) the points
of
distinction are again noticed. The question arose in
respect of the town and country. planning undertaken
under the relevant Statute on the order of the Minister
following a public local ·inquiry under the provisions
of the Act.
The question
was whether the order of
the
Minister was
a quasi-judicial act or a purely
administrative one.
Lord Thankerton
pointed
out
that the duty was purely administrative but the Act
prescribed certain methods
or steps in the discharge
of that duty. Defore
making the draft order, the
Minister must have made elaborate inquiry into the
matter
and
haYe
consulted any local authorities who
app:::ar to him to be concerned and other departments
( 1) 70 I. A. 119.
(') [19'18] A, C. 87,.102.
1950
Preoilta •!
BtlllHy
v.
K. S. M»IDli.
""" OIJ#rs.
Kanill C.J.
1950
p,,,;;,,,. of
lkmbq
v.
K. S. Moam
and Ut/rm.
KtudaC.J.
632
SUPREME COURT REPORTS
[1950]
of the Government.
The Minister was required to
satisfy himself that it was a s0und scheme before he
took the serious step -0f issuing a draft order. For the
purpose of inviting objections and where they were not
withdrawn, of having a public inquiry to be held by
someone other than the respondent to whom that
person reports was for the further information of the
respondent for the final consideration of the soundness
of the scheme. He observed: "I am of opinion· that
no judicial duty is laid on the respondent in discharge
of these statutory duties and that the only question is
whether he has complied with the statutory directions
to appoint ~ person to hold the public inquiry and to
consider that person's report."
Learned counsel
for
the respondent
referred
to
several
cases but in none of them the dicta of
Atkin
L.
J.
or the four
conditions analysed
by
Slesser L. J. have been suggested, much less stated, to
be not the correct tests.
The respondent's argument
that whenever there is a determination of a fact which
affects the
rights of parties, the decision is
quasijudicial, does not appear to be sound. The observations of May C. J ., when properly read, included the
judicial aspect of
the determination in the words
used by him. I am led to that conclusion because after
the test of judicial duty of the body making the
decision was
expressly
stated and • emphasized
by
Atkin and Slesser L. JJ. in no· subsequent decision it
is even suggested that the . dictum of · May C.
J. was
different from the statement· of law of the two Lords
Justices or that the latter, iii any way, required to be
modified.
The word "quasi-judicial" itself necessarily
implies the existence of the · judicial element in the
process leading to · the decision. Indeed, in the judgment of the lower court, while it is stated at one place
that if the act done by the inferior body is. a judicial
act •. as · distinguished from a ministerial act, certiorari
will lie, a. little later the idea has got mixed up where
it is broadly stated that when the fact has to be
determined
by
an
objective
test
and
when
that
decision affects rights of someone, the decision or act
S.C.R.
SUPREME COURT REPORTS
633
ts
quasi-judicial.
This last statement overlooks the
aspect
that
every
decision of the executive generally
is a decision of fact and in most cases affects the
rights of someone or the other. Because an executive authority has
to
determine
certain objective
facts as a preliminary step to the discharge of an executive function,
it does not follow
that it must
determine those facts judicially. When the executive
authority has to form an opinion about an objective
inatter I 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 are not amenable to the writ of certiorari .
. Observations from different decisions .of the English
Courts were relied upon to find out whether a particular determination was
quasi-judicial or
ministerial.
In some cases it was stated that . you require a proposition and an opposition, or that a tis was necessary,
or that it was necessary to have a right to examine,
cross-examine
and
re-examine
witnesses.
As
has
often been stated, the observations in a case· have to
be read along with the facts thereof and the emphasis
in the cases on these different aspects is not necessarily
the complete or exhaustive statements of the requirements to make a decision quasi-judicial or otherwise.
It seems to me that the true position is that when the
law under which the authority is making a decision,
itself requires a judicial approach, the decision will be
quasi-judicial.
Prescribed forms of procedure are not
necessary to make an inquiry judicial, provided in
comi!lg to the decision the well-recognised principles of
approach
are required to be followed. In my opinion
the conditions laid down by Slesser L. J. in his judgment correctly bring out the distinction between a
judicial or quasi-judicial decision on the one hand
and a ministerial decision on the other.
On behalf of the respondent it was strortgly urged
that even applying these tests 'the decision of the Provincial Government under section 3 is quasi-judicial. The
decision whether the premises were required for a public
2-6 S. C. India (N.D.)/58
1950
Province of
JJomhdy
v;
/[. S. A.duan;
and Others.
KlllliaC.J.
1950
P1ovinct "J
Bnmbay
v.
K . .). Advani
1md Others.
A."aniaC.].
634
SUPREME COURT REPORTS
[1950]
purpose was contended not to be a matter of opinion.
The power to make inquiries under sections 10 and 12
were strongly relied upon in this connection.
Two cases were strongly relied Ul'_on by the learned
counsel for the respondent in support of his contention
that the order in the present case was quasi-judicial.
The first is The King v. The Postmaster General ( 1 ). In
that case an employee claimed compensation under the
Workmen's Compensation Act.
The compensation was
payable to him if the workman obtained a certificate
of the certifying surgeon . that he was suffering from the
telegraphists'
cramp
and
was
thereby
disabled.
A medical practitioner was appointed by the Secretary
of State and was given powers and duties of a certifying
surgeon under .section 4 of the relevant Act. By an
order of the Secretary of State, made in pursuance of
that section, it was provided that so far as regards the
post office employees, the
post
office
medical
officer
"under whose charge the workman is placed shall, if
authorized to act" be substituted
for
the certifying
surgeon
in cases
of
telegraphists'
cramp.
It
was
the practice of the post office to refer all cases of such
cramp to the chief medical officer of the post office and
this reference
was
relied
on
as
constituting him
the substitute
for
the
certifying
surgeon under
the Act and Order. The applicant suffering from
telegraphists'
cramp was
on the
capitation
list
of
the local post office medical officer. but in fact never
consulted him.
On her claiming compensation for
telegraphists' cramp the case was referred to the chief
medical officer in accordance with the usual
practice
who certified that the applicant was not suffering from
such cramp.
It was held that the giving of the
certificate
was
therefore
the appropriate subject of
proceedings by way of certiorari.
In rejecting the
argument that on the issue of such certificate no right
to obtain a writ came into existence, because the certificate was a mere nothing as it had to be followed bv
another enmination and inquiry, Lord Hewart C. ;
observed as follows : "I do not think that it was
(') [1928] I K. B. i9!.
S.C.R.
SUPREME COURT REPORTS
635
contemplated at all that the judgment of the medical
referee should, in th'e-- smallest degree, be fettered or
influenced by a certificate given by a wholly unauthorized person and I do not think :Mrs. Carmichael would
be in the same position before the medical referee as that
in which she would have been if there had been a refusal
on the part of the proper officer to give her any certificate at all." -,A surgeon's certificate which gave or
· deprived a person .'of right to compensation was thus
considered a judicial act and if the person had no jurisdiction to give such' a certificate a writ of certiorari was
considered the ;proper remedy.
It should be noticed
that in this case a procedure of inquiry was provided
under the Act. The case was under entirely different
provisions of the Workmen's Compensation Act, which,
inter alia, gave a right of appeal against the surgeon's
decision. It may be further noticed that the subsequent
right to obtain compensation started with the certificate
in question and was not an independent act' of the
deciding authority having no connection or concern and
not influenced by this decision. A similar decision in
respect of the mental capacity of a boy in a school is
in Rex v. Boycott and Others (1 ). In that case also the
opinion of the examining doctor, which had
to be
followed by subsequent examination and in·quiry, was
considered subject to a writ of certiorari because that
decision directly related to the boy and was the starting point for proceeding under the Detention Act and
the Mental Deficiency Act.
Bearing in
mind the
important factor which
<iistinguishes a quasi-judicial decision from an adminis--
trative act, it is next necessary to find
out whether
the action of Provincial Government permitted under
section 3 of the Ordinance, read along with the scheme
of the Ordinance, is a quasi-judicial decision or an
administrative act.
Section 3 of the Ordinance permits
the Provincial Government, if in its opinion it is
necessary ·or expedient to do so, to make an order in
writing to requisition any land for any public purpose.
, Keeping aside
for the moment the proviso_ to the
'11) [1939] 2 K. B. 651.
11>50
ProWice of
&mibay
v.
K, S, Adonni
and 01/ws
KaniaC.J.
1950
v.
K. S . .A.dva•ti
and 0Jhers.
Kania C. J·
636
SUPREME COURT REPORTS
[1950]
section, it
1s
not seriously disputed that the subjective
op1111on of the Provincial Government in respect of the
ordn of the requisition is not open to challenge by a
writ of certiorari. The Ordinance has left that decision
to the discretion of the Provincial Government and that
opm10n cannot be revised by another authority.
It
appears
therefore
that except
when ma/a
fides
is
clearly proved,
that
opinion cannot be questioned.
The next question is whether the requirement "for any
public purpose" stands on the same footing. On behalf
of the appellant, it was argued that the opinion of the
Government, that it is necessary or expedient to pass
an order of requisition, stands on the same footing as
its decision on the public purpose.
In the alternative
it was
urged
that the
two factors, viz., necessity to
requisition and decision about public purpose, form one
composite opinion and the composite decision is the
subjective opinion of the Provincial Govcrm;nent. The
third
alternative contention was
that the decision of
the Government about a public purP.ose is a fact which
it has to ascertain or decide, and thereafter the order
of requisition has to follow. The decision of the Provincial Government as to the public
purpose contains no
judicial element in it. Just as the Government has to
sec that its order of requisition is not made in respect of
land which is used for
public
religious worship or is
not in respect of land
used
for
a purpose specified
by
tht Provincial Government in the Official Gazette,
(as mentioned in the proviso to section 3) or that the
premises are vacant on the date when the notification
is issued (as mentioned in section 4 of the Ordinance),
the Government has to decide
whether
a
particular
object, for which it is suggested
that land should be
requisitioned, was a public purpose.
In my opm10n,
this third alternative contention
is clearly correct and it is unnecessary therefore to deal
with the first two arguments. There appears nothing
in the Ordinance to show that in arriving at its decision
on this point the Provincial Government has .. to act
judicially.
Sections 10 and 12, which were reli~d upon
to show that the decision
was quasi-judicial, in my
S.C.R.
SUPREME COURT REPORTS
637
op1ruon, do not support the ·plea. The enquiries mentioned in those sections are only permissive and the
Government is not obliged .to make them. Moreover,
they do not relate to the purpose for which the land
may be required. . They are in :respect of the condition
of the land and such other matters affecting land.
E-fery decision of · the Government, followed by the
exercise of certain power given to it by any law is not
necessarily judicial or quasi-judicial.
The words of
section .. 3 read with the proviso, and the words of section
4 taken along with the scheme of the whole Ordinance,
in my opinion, do not import into the decision of the
public purpose the judicial element required to make
the decision judicial or quasi-judicial. The decision of
the Provincial Government about public purpose is
therefore an administrative act. If the Government
erroneously decides that fact it is open td question in
a court of law in a regular, suit, just as its action, on
its decision on the facts mentioned in the proviso to
section 3 and in. section 4, is open to question in a
similar way. ·The argument that a suit may be infructuous because a notice under section 80 of the Code
of Civil Procedure is essential and that remedy is
therefore inadequate, is unhelpful.
Inconvenience or
want of adequate remedy does not create a right to a
writ of certiorari.
It is clear that such writ can be
asked for if two conditions are fulfilled.