1949 Supreme(SC) 54

SUPREME COURT OF INDIA
KANIA C.J.I., FAZL ALI, PATANJALI SASTRI, MAHAJAN, B.K. MUKHERJEA AND S.R. DAS, JJ.
Brij Bhusan and another - Petitioner s
Versus
The State of Delhi - Opposite Party.
Petition No.29 of 1950.
Advocates appeared
Shri N. C. Chatterjee, Senior Advocate, Supreme Court (Shri B. Banerji, Advocate, Supreme Court, with him) instructed by Shri Ganpat Rai, Agent - for Petitioners.
Shri M.C. Setalvad, Attorney-General of India, (Shri S. M. Sikri, Advocate, Supreme Court, with him) instructed by Shri P. A. Mehta, Agent - for Opposite Party.

Headnote:Bombay Land Requisition Ordinance, 1947 (Bombay Ordinance V of 1947)-Order of requisition under-Administrative order - Writ of certiorari does not lie - Certiorari-writ of-lies in respect of judicial or quasijudicial acts and not in respect of administrative acts-Distinction between judicial acts, and administrative acts.

       Held:1 (I) 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 the legal authority, a writ of certiorari lies. It does not lie to remove an order merely ministerial or to remove or cancel ex~cutive or administrative acts.2

       (2) For this purpose, 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 ajudicial 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.3 It is not necessary that it should be a court in the sense in which the term is normally taken; 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; and it is not necessary to be strictly a court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari 4 The word "quasi-judicial" itself necessarily implies the existence of the judicial element in the process leading to the decision.

       Judicial or quasi-judicial acts.

       "An order will be a judicial or quasi-judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorized to act as if he was a court or a judge. To act as a court or a judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing or weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essential element of

       judicial procedure as indicated, by me The word decision in

       common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not

       I. For fncts of this case. sce page 30 ante.

       2.The King v. The Electricity Commissioners (1924) 1 K.B. 171 relied upon.

       3.Regina (John MEvoy) v. Dublin Corporation (1878) 2 L.R. Irish 37], 376; Frome United Breweries Co. v. Bath Justices (]926) A.C. 586, 602.

       4.The Kin[1 v. London County Council (1931) 2 K.B. 215. 233; The Ryots of Gurabandho and other villages v. Zamindar of Parlakimedi. 70 LA. 129; Franklin v. The Minister of Town and Country Planning, (1948) A.C. 87, 102. The King v. The Postmaster-General, (1928) I K.B 291 distinguished in tne majority decision. In this case a procedure of inquiry was provided under the Act. Rex v. Boycott and Others (1939) 2, K.B. 651 also di.Hinguished in the majority decisionthe opinion of the examining doctor. which had to be foJlowed by subsequent examination and inquiry and the decision thereon was the starting point for proceeding under the Detention Act and the Mental Deficiency Act. 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? (Per Fad Ali J.)

       "In view of these authorities all that can be said is that there is an indefinable, yet an appreciable, difference between the doing of an executive or administrative act and a judicial or a quasi-judicial act. The question, however, whether an act is purely ministerial or a judicial one depends on the facts and circumstances of each case .. " 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, the nature, scope and effect of the particular power in exercise of which the act may be done. In the actual application of the abstract propositions to the circumstances of different cases the exercise of jurisdiction to issue a writ of certiorari varies according to the foot of the Chancellor."l (Per Mahajan J.)

       "A valid executive act undoubtedly presupposes the existence of a legal authority in the officer or department to do the act. Such executive acts may and in fact do affect the rights of subjects. Cases are also not infrequent where an executive authority transgresses the limits of its jurisdiction, and acts in excess of its powers. Yet, it is not disputed that no writ of certiorari can be issued to restrain or invalidate such executive

       acts There cannot indeed be a judicial act which does not

       create rights or impose obligations; but an act is not necessarily

       judicial because it affects the rights of subjects. Every judicial act presupposes the application of judicial prccess. There is a well marked distinction between forming a personal or a private opinion about a matter, and determining it judicially. In the performance of an executive act, the authority has certainly to apply his mind to the materials before him; but the opinion he forms is a purely subjective ,matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenccd by any extraneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other hand, the process or method of application is different. The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method. It involves a proposal and an opposition and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. It is not necessary that the strict rules of evidence should be fo!lowed ; the procedure for investigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at, must not be his subjective, or private opinion. It must be something which conforms to an objective standard or criterion laid down or recognised by law, and the soundness or otherwise of [he determination must be capable of being tested by the same external standard."2 (Per Mukherjea J.)

       "In Banwarilals3 case I had occasion to analyse the essential characteristics of a quasi-judicial act as opposed to an administrative

       act. As I pointed out there, the two kinds of acts have many common

       L (1950) S.C.R. p. 656.

       2.(1950) S.C. R., pp. 669 to 671.

       3.(1943) 48 C.W.N. 766 at pp. 799-801. features. Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person, exercising a judicial or quasi.judicial function has to do. Both have to act in good faith. A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as quasi-judicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the legislature upon a condition or contingency which may involve a question of fact, but the question of fulfilment of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the .>everal ordinances, regulations and enactments considered and cJnstrued in the several cases referred to above. The first two items of the definition given by Atkin L.J.1 may be equally applicable to an administrative act. The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L.J.s definition,

       namely, the duty to act judicially Therefore, in considering whether

       a particular statutoty authority is a quasi-judicial body or a mere administrative body it has to be ascertained whether the statutory authority has the duty to act judicially.

       "What are the principles to be deducted form the two lines of cases I have referred to? The principles, as I apprehend them, are:

       (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each 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; and

       (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi.judicial act provided the authority is required by the statute to act judicially."a (Per Das J.) Administrative Jaw-Order of requisition under the Bombay Land Reqhisition Ordinance, 1947 whether judicial or quasi-judicial act or administrative act-writ of certiorari ..

       Section 3 of the Bombay Land Requisition Ordinance, 1947 (Bombay Ordinance V of 1947) read:

       «If in the opinion of the Provincial Government it is necessary or expedient to do S6, the Provincial Government may by order in writing requisition any land for any public purpose:

       Provided that no land used for the purpose which the Provincial Government may specify by notification in the official Gazette shall be requisitioned under this section."

       Held: (Per Kania C.J. Fazl Ali, Patanjali Sastri and Das JJ. ; Mahajan and Mukherjea JJ. dissenting): On a proper construction of section 3 of the Ordinance the decision of the Bombay Government that the property was required for a public purpose was not a judicial or quasi-judicial decision but an administrative 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: The Government of Bombay has legal authority to determine questions effecting the rights of subjects and in deciding whether a land was required for a public purpose under section 3. of the Ordinance it had to act judicially. The High Court of Bombay had therefore power to issue the writ of certiorari.

       "There appears nothing in Ordinance to show that in arriving at its decision on this point the Provincial Government has to act judicially. Sections 10 and 17, which were relied upon to show that the decision was quasi-judicial, in my opinion do not support the plea.3 The enquiries

       1. Halsburys Laws of England, Hailsham Edition, Vol. IX p.772.

       2. Ferris on Extraordinary Legal Remedies, p. 281.

       3. Sections 4, 10 and 12 of the Ordinance read as follows ;-

       "4. Requisition of vacant premises.-(I) 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 either by the landlord ceasing to occupy the premises, or by the termination of a tenancy, or by eviction of a tenant, or by release of the premises from requisition or otherwise, the landlord of such premises shall give intimation thereof in the prescribed form to an official authorised in this behalf by the Provincial Government mentioned in those sections are only permissive and the Government is obliged to take 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 effecting land. Every decision of the Government followed by the exercise of certain power given to it by any law is not necessarily judicial or quasi-judicial. The words of section 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 to 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 or in section 4, is open to question in a similar way." (Per Kania C.J.).1

       "The position in my opinion may be summed up as follows;-

       The Provincial Government has to satisfy itself that there is a public purpose before it proceeds to requisition any property. As this is an objective condition which has not been made dependent on the personal opinion of the Executive it has got to be determined judicially and whether a public purpose exists or not is itself a mixed question of facts and law which could be determined by application of well established principles of law to the circumstances of a particular case. There is undoubtedly a lis or point in controversy-or what is called a proposal and an opposition. On the one hand, there is the interest of the public and on the other, the interest of the individual whose property is being requisitioned. No formal array of parties is necessary. It is enough that there is a point in issue which has got to be decided between parties having conflicting interests in respect to the same. The fact that the

       (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 seven days of the premises being vacant.

       (3) A landlord shall not, without the permission of the Provincial Government, let the premises before giving such intimation and for a period of one month from the date on which such intimation is given.

       (4) Whether or not an intimation under sub• section (I) is given, and not with standing anything contained in sub-section (3), the Provincial Government may be 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 landlord 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 premsses in contravention of the provisions of sub-section (3), shall, on conviction, be punished with imprisonment which Olav extend to three months or with both.

       10. Power to obtain information-(l) The Provincial Government may, with a view to carrying out the purpose 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 continued under requisition.

       (2) Every person required to furnish such information as is referred to in subsection (I) shall be deemed to be legally bound to do so within the meaning of sections 176 and 177 of the Indian Penal Code (XLV of 1860).

       12. Power to enter and inspect land.-Without prejudice to any powers otherwise conferred by this Ordinance any officer or person empowered in this behalf by the Provincial Government by general of special order may enter and inspect any land for the purpose of determining whether, and, if so, in what manner, an order under this Ordinance should be made in relation to such land. or with a view to securing compliance with any order made under this Ordinanc."

       1. 1950) S.C.R. pp. 636.637,

        Provincial Government represents the interests of the public also is to my mind immaterial. If there is a duty to decide judicially it would be a judicial act, and it is not necessary that there must be two opposing parties other than the deciding authority appearing in a regular or formal manner .

       "The act of requisition being an executive act, determination of the existence of a public purpose upon which the exercise of powers in dependent is either a part of the executive act itself or is something collateral to it. I have attempted to show that it is a thing collateral and preliminary to the exercise of executive authority and not a part of it. That being so, the determination of this collateral matter by the executive authority which is, in my opinion, a judicial function cannot be regarded as final and if the determination is erroneous, it can be corrected and removed by a writ of certiorari." (Per Mukherjea J.).l Article 226-Writ of certiorari-Lies in respect of judicial of quasi- judicial acts and not in respect of administrative acts- Bombay Land Requisition Act, 1947.

       See under "Certiorari" at p. 187 ante.