1. Requisition of premises under Section 3 of the Bombay Land Requisition Ordinance (V of 1947) for a public purpose — challenge via writ of certiorari. (Para 1 , 53 )
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1950 Supreme(SC) 28
Supreme Court Of India
PROVINCE OF BOMBAY
Versus
Khushaldas S. Advani
Decided On : September 15, 1950
A writ of certiorari is only available against judicial or quasi-judicial acts. Where a statute grants an authority discretion based on its "opinion" without imposing a duty to act judicially, the resulting order is administrative and cannot be quashed by certiorari.
Headnote:(A) Ordinance for Requisition of Land - Sections 3, 4, 10 and 12 - Constitution Act - Sections 176 and 306 - Writ of Certiorari - Scope and applicability - A writ of certiorari can be issued only against inferior courts or authorities required by law to act judicially or quasi-judicially in cases where they act in excess of their legal authority; it is not available to remove or correct purely executive or administrative acts. (Paras 11, 15, 130)
(B) Judicial vs. Administrative Act - Distinction - An order is judicial or quasi-judicial if the authority is legally bound to act as a court, which involves giving the affected party an opportunity to make representations, conducting an inquiry, weighing evidence, and considering facts based on an objective standard. (Paras 16, 64, 163)
(C) Subjective Opinion of Executive - Where a statute empowers an authority to act if "in its opinion" it is necessary or expedient to do so, the function is generally executive. If the legislature leaves the determination of a condition, such as a "public purpose," to the subjective opinion of the executive, the act is administrative and not amenable to certiorari, provided it is exercised in good faith. (Paras 138, 158)
Facts of the case:
The Provincial Government issued an order requisitioning certain premises under an Ordinance for a public purpose and allotted the same to another individual. The respondent, who had recently come into possession of the premises, filed a petition for a writ of certiorari to quash the requisition order on the ground that it was illegal and not for a public purpose.
Findings of Court:
The order of requisition made under the Ordinance is an administrative act. The determination of whether the premises were required for a public purpose and whether it was necessary or expedient to requisition them constitutes a composite subjective opinion of the Provincial Government.
Issues: Whether the order of requisition was a quasi-judicial order or an administrative order; whether a writ of certiorari could be issued against the Provincial Government; and whether the requisition was made for a public purpose.
Ratio Decidendi: The court held that the language of the Ordinance, specifically the phrase "if in the opinion of the Provincial government," indicates that the decision is based on subjective satisfaction. There is no statutory requirement to conduct a judicial inquiry, hear objections, or follow a judicial process. Consequently, the act is administrative. Since a writ of certiorari only lies against judicial or quasi-judicial acts, it cannot be used to quash an administrative order.
Result: Appeal allowed and the petition dismissed.
Legal Category Hierarchy
- administrative law
- constitutional law
- property law
Table of Contents
2. Whether the requisition order was quasi-judicial or administrative — whether a writ of certiorari lies against the Provincial Government — whether the order served a public purpose. (Para 2 , 54 , 129 )
3. The court analyzed the distinction between administrative and quasi-judicial acts, focusing on the duty to act judicially and the subjective nature of the government's opinion. (Para 4 , 5 , 6 , 7 , 10 , 11 , 15 , 16 , 18 , 19 , 22 , 23 , 30 , 56 , 57 , 59 , 61 , 64 , 65 , 66 , 77 , 79 , 80 , 82 , 85 , 93 , 94 , 98 , 103 , 130 , 134 , 138 , 141 , 158 , 160 , 163 , 164 , 173 , 174 , 177 , 183 )
4. A writ of certiorari lies only against judicial or quasi-judicial acts; orders based on the subjective opinion of the executive are administrative and not amenable to certiorari. (Para 11 , 15 , 30 , 138 , 183 )
5. Appeal allowed and petition dismissed. (Para 13 , 30 , 189 )
6. When does a writ of certiorari lie against a statutory body?
A writ of certiorari is issued when a body has legal authority to determine questions affecting the rights of subjects, has a duty to act judicially, and acts in excess of its legal authority. (Para 6 , 35 , 36 , 59 , 162 )
7. What distinguishes a quasi-judicial act from an administrative act?
A quasi-judicial act requires a duty to act judicially, involving an objective standard, consideration of facts and circumstances, and often a contest between opposing parties. Administrative acts are based on subjective opinion or policy. (Para 7 , 16 , 64 , 163 , 164 , 173 )
8. Is the determination of a public purpose under the Bombay Land Requisition Ordinance a quasi-judicial act?
No, it is an administrative act. The Ordinance leaves the decision to the subjective opinion of the Provincial Government regarding necessity and expediency, without imposing a judicial duty to determine the purpose. (Para 11 , 19 , 22 , 138 , 183 )
9. Can a writ of certiorari be issued against a Provincial Government?
Yes, provided the act is judicial or quasi-judicial. The Provincial Government is not the sovereign and can be subject to legal proceedings under the Government of India Act, 1935. (Para 51 , 111 , 115 , 124 )
10. Does the existence of a public purpose act as a condition precedent to requisition?
Yes, it is the foundation of the power. If no public purpose exists, the action is a nullity, but this can be challenged in a regular suit rather than via certiorari. (Para 19 , 23 , 83 , 98 )
Judgment
H. J. KANIA, CJ, J.
( 1 ) THIS is an appeal from a judgment of the High court at Bombay and it relates to the power of the High court to issue a writ of certiorari 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 29/01/1948, Ismail assigned his tenancy to the petitioner and two others, the son and brothers daughters son of the petitioner (the respondent ). All the three assignees were refugees from Sind. On the 4/02/1948, the petitioner went into possession of the flat. On the 26/02/1948, 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 4/12/1947 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 4/03/1948, the petitioner filed a petition for a writ of certiorari and n 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, but cancelled the order as regards the other parties. The appellant has come on appeal to this court.
( 2 ) THE learned Attorney-General, on behalf of the appellant, urged the following three points for the courts consideration: (1) (a ). Having regard to the provisions of Ordinance V of 1947, whether the order in question was quasi-judicial or only administrative ? (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 ?
( 3 ) S. 3, 4, 10 and 12 of the Ordinance which are material for the discussion in this appeal run as follows: `and Requisition of land. . . . 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. 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 Government. (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 subsection (1) is given, and notwithstanding anything contained i
