PROVINCE OF BOMBAY v. K. S. Advtmi

first question, it was pointed out that the Ordinance the decision of the under section 3 of to requisition certain premises Provincial Government therefore not is clearly a matter of It was liable to be the premises a public purpose was also a required the Provincial Government, matter for investigation, and and not a matter in no sense a therefore the making of the order was administrative or di::cision, quasi-judicial In this connection it was pointed ministerial order. 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 ex amined and evidence to be weighed before a decision It was pointed out that if public purpose was outside the opinion of the the_ scope . of Provincial Government, section would have run : "If for any public p~rpose in the opinion of Govern- ment .......... ". arrived at. A functions distinction in question the writ of certiorari does not lie between discussion is not useful in judicial and quasi-judicial the point for determination is whether the this case as is a quasi-judicial order or an In Regina (lohn administrative or ministerial order. ), May C. J. in deal M'Evoy) v. Dublin Corporation ( 1 follows :-"It is this point observed ing with established remove an order merely ministerial, such as a warrant, to remove and adjudicate upon the validity but it lies In this connection. the term 'judicial' of acts judicial. does not necessarily mean acts of a tribunal 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 ing 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 judge or sitting (') [1878] 2 L. R. Irish 371, 376. (1) [1926] A. C. 586, 602. 81 1950 Provinr~ tf Bombay v. K. S, Mvtmi and Olllers. Ktmia C.J. 630 SUPREME COURT REPORTS I 1950] definition of a :i.dministrative act. jwlicial act as distinguished from an to act laid down the following in The King it was pointed out A distinction between is one of respondent the nature of in a series of decisions. This two acts has been noticed Irish the very early decisions. On behalf of that as stated by it was contended Chief Justice May, whenever there is the determina tion of a fact which affects the rights of parties, that determination is a quasi-judicial decision, and, if w;' a lie against the. body entrusted writ of certiorari will with the work of making sucli decision. .A5 against that in several English cases this, emphasis is laid on the fact that the decision should be a judicial ckcision and the obligation judicially is to be found in the Act establishing the body which to have been makes the decision. Thi.s point appears brought out clearly ,._ The Electricity ), where Lord Justice Atkin (as he Commissioners ( 1 test': "Wherever then was) legal authority to deter any body of persons having mine questions affecting· rights of subjects, and to act judicially, act in excess of their having the duty the controlling legal authority the King's Rench Division exercised in jurisdiction of cited with these writs." approval aGcepted 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 neces sary that it should be a court in the sense in which thi• court is a court ; it is enough if it is exercising, after the sense that judicial functions hearing evidence, to decide on evidence between a proposal and an it has to be strictly a is not necessary opposition ; rights to decide court ; if it is tribunal which h:i.s is amenable after hearing evidence and opposition, 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 This passage has been numerous laying down the correct test. A subsequent decisions they are :i.nd .a subject (') [1924] I K. B. 171. (') [1931] 2 K. B. 215, 2:'3. 1950 Preoilta •! BtlllHy v. K. S. M»IDli. """ OIJ#rs. Kanill C.J. S.C.R. SUPREME COURT REPORTS 631 is a to act 'courts' ( 4) act the act ju<licially conditions judgment of a ministerial the act done by it may be said that if its application in delivering test of certiorari will act, in point of principle, is derived certiorari may issue. They are : wherever any body ( 1) having legal authority (2) to determine of persons questions affecting rights of subjects and (3) having the duty in excess of their legal authority-a writ of certiorari may issue. He separately and examined each of the existence of each was the conclusion the nature of determine neces~ary In The Ryots of Garabandho and other quest10n. villages v. Zamindar of Parlakimedi ( 1 ) Viscount Simon L.C., the Board, these four conditions to determine accepted the nature of the act. He stated : "This writ does to correct purely executive acts but, on the is not narrowly limited to other hand, sense. Broadly inferior strictest speaking, judicial act, as distinguished from inferior body lie. The reme<ly, the Sovereign's superintending the court of King's in particular superior courts and Bench, possess and exercise over inferior jurisdictions. This principle has been to other parts and operates, within certain of King's Dominions In Franklin v. limits, The ) the points Minister of Town and Country Planning ( 2 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. pointed out Lord Thankerton the duty was purely administrative but the Act in the discharge prescribed certain methods or steps that duty. Defore making Minister must have made elaborate matter and haYe consulted any local authorities who app:::ar to him to be concerned and other departments the draft order, inquiry into transplanted in British authority India." 1 ) 70 I. A. 119. ( (') [19'18] A, C. 87,.102. 1950 p,,,;;,,,. of v. K. S. Moam and Ut/rm. KtudaC.J. 632 SUPREME COURT REPORTS [1950] the Government. The Minister was required it was a s0und scheme before he satisfy himself 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 person the further information of the respondent for the final consideration of the soundness 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." reports was to whom respondent test of the decision the respondent Learned counsel judicial duty of the determination rights of parties, in none of referred several cases but the dicta of Atkin L. four conditions analysed by J. or less stated, to Slesser L. J. have been suggested, much be not the correct tests. The respondent's argument that whenever there is a determination of a fact which affects the is quasi to be sound. The observa judicial, does not appear tions of May C. J ., when properly read, included the judicial aspect of the words used by him. I am led to that conclusion because after the body making the stated and • emphasized by decision was expressly Atkin and Slesser L. JJ. in no· subsequent decision it J. was is even suggested that the . dictum of · May C. law of the two Lords different from the statement· of Justices or that latter, iii any way, required to be modified. The word "quasi-judicial" itself necessarily implies the existence of Indeed, in the judg process leading lower court, while it is stated at one place ment of the 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 to be the fact has it is broadly stated determined by test and when the decision or act decision affects rights of someone, the · judicial element in to · the decision. an objective that when 1950 Province of JJomhdy v; /[. S. A.duan; and Others. KlllliaC.J. S.C.R. SUPREME COURT REPORTS 633 quasi-judicial. alike matters function, This last statement overlooks it does not follow that every decision of the executive generally aspect in most cases affects the is a decision of fact and the other. Because an exe rights of someone or to determine certain objective cutive authority has facts as a preliminary step to the discharge of an exe cutive it must determine 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 the power based objective fact and the exercise of thereon of an administrative character and are not amenable to the writ of certiorari . . Observations from different decisions .of the English to find out whether a parti Courts were relied upon cular determination was quasi-judicial or ministerial. that . you require a pro In some cases position and an opposition, or that a tis was necessary, to examine, or that it was necessary cross-examine in a case· have to the observations often been stated, 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 require ments to make a decision quasi-judicial or otherwise. to me that the true position is that when the It seems 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 inquiry necessary comi!lg to the decision the well-recognised principles of In my opinion required to be followed. approach the conditions laid down by Slesser L. J. in his judg ment correctly bring out the distinction between a judicial or quasi-judicial decision on the one hand and a ministerial decision on the other. to have a right re-examine witnesses. judicial, provided it was stated to make an As On behalf of the respondent it was strortgly urged that even applying these tests 'the decision of the Provin cial 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 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. thereby in cases the order and was to act" be the workman substituted telegraphists' Two cases were strongly relied Ul'_on by the learned counsel for the respondent in support of his contention the present case was quasi-judicial. ). In The first is The King v. The Postmaster General ( 1 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' disabled. the Secretary A medical practitioner was appointed by 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 is placed shall, if "under whose charge the certifying authorized surgeon It was the post office to refer all cases of such the practice of cramp to the chief medical officer of the post office and on as constituting him relied this reference was surgeon under substitute the Act and Order. The applicant suffering telegraphists' cramp was on list of local post office medical officer. but in fact never On her claiming compensation for consulted him. the case was referred to the chief telegraphists' cramp in accordance with the usual practice medical officer that the applicant was not suffering from who certified such cramp. It was held the appropriate subject of therefore certificate was proceedings by way of certiorari. In issue of such certificate no right argument to obtain a writ came into existence, because the certi ficate was a mere nothing as it had to be followed bv inquiry, Lord Hewart C. ; another enmination and observed as it was follows : "I do not the giving of the capitation certifying rejecting that on cramp. (') [1928] I K. B. i9!. 11>50 ProWice of &mibay v. K, S, Adonni and 01/ws KaniaC.J. S.C.R. SUPREME COURT REPORTS 635 ;proper remedy. contemplated at all that the judgment of the medical th'e-- smallest degree, be fettered or referee should, influenced by a certificate given by a wholly unautho rized 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 certifi -,A surgeon's certificate which gave or cate at all." to compensation was thus · deprived a person .'of right considered a judicial act and if the person had no juris diction to give such' a certificate a writ of certiorari was considered It should be noticed 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 to be opinion of the examining doctor, which had followed by subsequent examination and in·quiry, was considered subject to a writ of certiorari because decision directly related to the boy and was the start ing point for proceeding under the Detention Act and the Mental Deficiency Act. Bearing important in mind factor which <iistinguishes a quasi-judicial decision from an adminis- trative act, it is next necessary find out whether the action of Provincial Government permitted under section 3 of the Ordinance, read along with the scheme the Ordinance, is a quasi-judicial decision or an administrative act. Section 3 of the Ordinance permits the Provincial Government, it is necessary ·or expedient to do so, to make an order in writing to requisition any land for any public purpose. the moment the proviso_ to the its opinion , Keeping aside '11 ) [1939] 2 K. B. 651. 1950 v. K. S . .A.dva•ti and 0Jhers. Kania C. J· 636 SUPREME COURT REPORTS [1950] In therefore that except when ma/a revised by another authority. 1s not seriously disputed that the subjective section, 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 It opm10n cannot be appears clearly proved, 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, it is necessary or expedient to pass an order of requisition, stands on the same footing as its decision on the public purpose. the alternative two factors, viz., necessity to it was urged requisition and decision about public purpose, form one is the composite opinion and 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 Provin cial 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 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 land should be object, requisitioned, was a public purpose. for which it is suggested the composite decision In my opm10n, 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 the decision was quasi-judicial, in my to show 1950 Provinu Of Bom611J Y, K. S. Jfd•1J11i «n4 Othtr$. KmnaC.J. S.C.R. SUPREME COURT REPORTS 637 op1ruon, do not support the ·plea. The enquiries men those sections are only permissive and the tioned Government is not obliged .to make them. Moreover, they do not relate the purpose for which the land may be required. . They are in :respect of the condition of the land. land and such other matters affecting E-fery decision of · the Government, followed by 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 If the Government therefore an administrative act. it is open td question in erroneously decides 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 ·The argument that a suit may be infruc similar way. tuous because a notice under section 80 of the Code of Civil Procedure that remedy Inconvenience or therefore want of adequate remedy does not create a right to a writ of certiorari. that such writ can be asked for two conditions are fulfilled. Firstly, the decision of the authority must be judicial or quasi-judi cial, and secondly; the challenge must be in respect of the deciding the excess or want of . jurisdiction of authority. Unless both fulfilled no application for · a writ of certiorari can succeed. As, in my opinion, the decision of the Provincial Govern . ment about public purpose is not a judicial or quasi judicial decision, there is no scope for an application for a writ ofcertiorari. is essential and is unhelpful. those conditions are inadequate, It is clear that fact Having· regard to my conclusion, it is not necessary the Attorney issue of a writ against the Province to discuss the other points urged by Gcneral against the of Bombay and. I pronounce no opinion on the same. 1950 Pro&ince qf Bombay v. t;. S. Ad1•ani and Others. Kania C.J. F•tl Ali]. 638 SUPREME COURT REPORTS [1950) ' is allowed and .:ourts in favour The result is that the appeal petition dismissed. The order of costs made by of the respondents is can celled. The respondents will pay the costs throughout. The costs of the lower courts will be taxed in favour of the appellant on the terms allowed by those courts in favour of the respondents. The respondent will pay the costs of the appeal here. The order of costs against the respondents will be the assets of the limited their hands, as the original applicant deceased come has died pending these proceeding<. FAzL Au J.-This is, in my opinion, quite a simple case, but it has been greatly complicated by the citation of a mass of decisions hy the parties and by an attempt on their part to extract from them some principle support their respective contentions. It is well settled The principal question to he decided m this appeal is whether a writ of certiorari is available to the res pondent to remove or quash an order made by Government of Bombay requisitioning certain pre mises under section 3 of Bombay Ordinance No. V of 1947. that a w.rit of certiorari can issued only against inferior courts or persons or required by law to act judicially authorities who are those cases where they act in or quasi-judicially, excess of their legal authority. is not Such a writ executive or adminis available therefore to be decid trative acts. The first question ed in this case is whether the premises in Government of Bombay requisitioning judicial or quasi-judicial order or an question executive or administrative order. to remove or correct the order passed by is a into the numerous cases cited before Without going us, it may be safely laid down that 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 autho~ity who to act as if he was a court legally bound or authorized 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, 1950 Provine• of Bombay v. K. S. Adt>(Jfli and Otlvrs. Faz/ Ali ]. I S.C.R. SUPREME COURT REPORTS 639 to be inquiry, hearing and weighing making some kind of facts and evidence, if any, and considering all circumstances bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at. The procedure followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essen tial elements of judicial procedure as indicated by me. In some of the cases which were cited before us and which have been discussed the elaborate -judgments under appeal, an attempt has been made to lay down certain fomulae for determining whether an order is a judicial or quasi-judicial order or not, but in my is safer to grasp the principle than to depend opinion it on the application of any formula or formulae. Again, large number of cases were cited to show various a in which a person or persons was or were instances judicially or quasi-judicially, but those cases, as I have already indica,ted, often obscure what may otherwise be a simple question ; and apart from the fact that this Court is not bound to refer to cases unless it finds it necessary to do so, I fully share the view expressed by the Privy Council in Wijeyesekara v. Festing ( 1 to why cases decided under different In that case, enactments are often not very helpful. which related to a Ceylon Ordinance, one of the provi sions of which appears to be similar in certain respects to section 3 of the Privy Council ·observed : the Ordinance before us, to act ) as "Reference has been made to cases dealing with similar questions arising under statutory enactments in India. Their L( 1'hips do not refer to those cases because the wording ot ti•.: enactment is not the same, to some extent, complicate and their discussion might, what appears their Lordships to be a very simple " . issue. Having made these observations, they proceeded to say: (1) [1919] A.C. 646. 640 SUPREME COURT REPORTS [1950} ... 1956 Province ef .8m:h(!' .K'. S.~Adt•ani and Oth.trt. "The whole case is decided, in I he opinion of their the last three lines of section 6 of Lordships, Ordinance." In the present case also, the simplest way to decide it is to try to construe correctly section 3 of the Ordi nance under which this case has arisen. That section runs 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 Provin cial Government may specify by notification Official shall be section." requisitioned under (',azette foundation of the power In construing this section, it is our framers of first duty enter into the mind of the the Ordinance and look at the whole matter as they must have looked things seem to me at it. Proceeding in this way, to be clear : ( 1) The existence of a public purpose is (or jurisdiction, if that term may appropriately be used with reference to an executive body) of requisition premises under sectio11 3, or, as son1c is a condition precedent to the exercise times said,· it I think that this aspect of the matter of that power. ;ummed up by Bhagwati J. in has been very these words : the Provincial Government luciclly "Unless and until jurisdiction at all there was a public purpose in existence for the achievement of which they would exer cise the power invested in them under section 3, there the Provincial would be no Government to make any order for requisition of bnd. It is only when that public purpose existed that the jurisdiaion of the Provincial Government would come to be exercised and then and then only would they be the discretion of deciding whether it is invested with necessary or expedient to requisition any land for the achievement of that purpose. It therefore follows S.C.R. SUPREME COURT REPORTS 641 the existence of a public purpose is a condition prece dent to the exercise of the power of requisitioning in vested in the Provincial Government by section 3 of the Ordinance. The Provincial Government are not constituted the sole judges of what that public purpose they can is. The public purpose has to exist before exercise any pow:er of meaning of that section." requisition of land within 1950 ProDinee of Bombay v. JC S. Advani tmd Others. Faz! Ali]. the Provincial Government the Provincial Government (2) The framers of the Ordinance never intended to impose any duty on determine judicially whether a certain purpose is a public purpose or not. There are no express words in section 3 or any other section, to impose such a duty ; nor is there anything to compel us to hold that such a duty is implied. A reference to section 6 of the Ordi nance wherein an inquiry is specifically provided with a view to assess the compensation and sections 10 and 12 under which information and enable empowered to obtain certain its officer to inspect land, show that where an inquiry or anything like an inquiry was intended to be made There is however no it was specifically provided for. for determining provision for any inquiry being made the public purpose. Indeed it appears to me that in a large majority of cases no inquiry should be necessary as the existence of a public purpose would be self. reference to the pur evident or obvious, and a mere pose will make anyone say : This is of course a public in a few exceptional purpo~e. It may be legalistic or cases, considerations may the position obscure, but in an Act or Ordinance which has to provide for prompt action and which in its day-to-day application must be confined to normal and not exceptional cases, legislature may not attach importance to such cases and may credit the Provincial Government with sufficient ligence to know before acting under the Ordinance whether a certain purpose is a public purpose or not. However that may be, there is that the public nothing in the Ordinance purpose is to be determined in, a judicial way. the fact remains that suggest some other too much 1950 Pr0fline8 of B .... '!!' v. K. S. Adroni and Othtrs: Fa</ AI; J. 642 SUPREME COURT REPORTS [1950] In this appeal, two principal contentions, which in th~ view I am inclined to take are the only contentions which need be referred to, were raised in the course of respondent and the arguments, one on behalf of the the other on behalf of the appellant. The contention of the respondent was that the Provincial Government has to act judicially in determining the public purpose and its action is therefore subject to a writ of certiorari legal authority. The contention if it acts beyond its is that section 3 empowers on behalf of the appellant two matters : the Government to form an opinion on (1) whether there is a public purpose; and (2) whether it is necessary or expedient purpose to Such being the case, the opinion of the Provincial Government on both these matters is final and cannot be questioned in any court of law. requisition certain premises. interests · of just a few words more. so· functions. The word "decision" I have said enough with regard to the first conten For tion, but I shall add prompt action the executive authorities have often to take quick decisions and it will be going too far to say they are discharging any judicial in doing or quasi-judicial less a neutral expression common parlance is more or and it can be used with reference to purely executive judicial orders. The mere fact that an acts as well as executive authority has to decide something does not It is the manner in which make the decision judicial. the decision has to be arrived at which makes difference, and the real test is : Is there any duty to de; cide judicially ? As I have already said, there is nothing in the Ordinance to show that the Provincial Govern ment has to decide the existence of a public purpose It is not obliged to call judicially or quasi-judicially. for or consider any objections, make any inquiry or hear evidence, but it may proceed in its own way-ex pa~ on prima is acting within the limits of the powet granted to it. Besides, the the public purpose per se does not determination of It is only when the affect taken, · namely, when the Provincial further rights of any person. facie grounds, just to see that it S.C.R. SUPREME COURT REPORTS 643 that it is necessary or Government forms an opinion to requisi e:i:pedient ~n the interests of public purpose that the rights of others can be tion certam premises In these circumstances, I am un said to be affected. to hold the Provincial Government has to judicially or quasi-judicially under section 3 of the Ordinance. v. /(. S. Advani -.t ou.r •. Fo.r.l Ali]·; investigate in a court of law. regulation commits faith, cannot be questioned. The contention on behalf of the appellant, to which I have referred, raises the question as to whether, the Provincial certain premises are requisitioned by the matter Government for a non-public purpose, It is well settled to challenge to an that. where an Act or the decision of what is necessary executive authority that authority makes the decision, or expedient and it is not competent the courts grounds or the reasonableness of in the the decision absence o~ an allegation of bad faith. Therefore, since the question as to whether it is necessary or expedient to .«;quire land (given a public purpose) has been left entirely to the satisfaction of the Provincial Govern the opinion formed by it, provided it is formed ment, in good In other words, if. there is a public purpose, the mere fact that to the court or to any other person the requisition of the pre mises does not appear necessary or expedient in the pub lic interest will not make the requisition bad. But 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 If the executive condition precedent to its exercise. authority section 3 without land under there being any public purpose in existence, its action is a nullity and the position in law is as if the autho rity did not act under section 3 at all. Such being the legal position, a person whose to have been affected can always go to a proper court and claim a declaration that in law his right cannot be affected. to the view that the to subscribe I am not prepared determination of a public purpose and the opinion formed as to the necessity or expediency of requisition requisitions 1950 Prouintt of Baml>.., v. Ir. s. ,14,..; and Ot,,,,s. Fiul Ali J. 644 SUPREME COURT REPORTS [1950] in my opinion is two distinct form one psychological process and not independent . steps ; and therefore the rule which applies to one applies to the other. The correct posi the determination of the public purpose is the first step so that if the Provincial Government decided that .there is no public purpose the second step need not follow. Besides, whereas the subjective opinion of the Government as to necessity or expediency is not capable of being accurately tested the existence of a public purpose can be objectively, there are well-known definitions of so tested, because public purpose form the common basis the ascertainment of a public pur pose by different individuals. I think that the follow ing dictum of Lord Halsbury in Mayor etc. of West minster v. London & North Western Ry. Co. ( 1 ), sums up the legal position correctly : those definitions can "Where the legislature has confided the power to a particular body with a discretion how it is to be used, it is beyond the power of any Court to contest that discretion. Of course, this assumes that the thing done is the thing which the Legislature has authorised." to show A number of cases were cited before us by the appel in construing certain provisions in other enactments which are drafted in similar language, the courts have held that the existence or otherwise of a public purpose is as completely left to the satisfac tion of the executive authority as the question as to whethet it is necessary or expedient land. The in support of Wijeyesekara v. Festing (' ). The decision of that cue turned on the construction of sections 4 and 6 of Ceylon Ordinance No. 3 of 1876, which run as follows : to acquire this proposition leading case :.ppear it shall "4. Whenever to the Governor that land in any locality' is likely to be needed for any public purpose, it shall be lawful for the Governor to direct the Surveyor-General or other officer generally or specially authorized by the Governor in this behalf, to examine such land and report whether the same is fitted for such purpose. (') [191;] A.C. 426. ('l [1919] A.C. 646. S.C.R. SUPREME COURT REPORTS 645 the purposes officer as 6. The Surveyor-General then make his report to authorized · as aforesaid shall the Governor, whether the possession of the for which it appeared likely needed for to be needed as aforesaid. And upon the receipt of the Governor, with such report it shall be lawful for the advice of to direct the Executive Council, Government Agent to take order for the acquisition of the land." P11oince ef Bomba_, v. r. S. Advani arui Others. Fa:r.l Ali]. the person whose It appears to make an order the procedure prescribed by the Ordinance the above sections was followed and an order was made by the Governor of Ceylon directing the Government Agent acquisition of certain for a public purpose, the making of a road. The appellant to the namely, Privy Council, who was land had been acquired, contended land was not required for any public purpose and that the direction of the Governor was invalid. The Privy Council this contention and held that it was not open repelled land was not for a public purpose. Lord Finlay who needed delivered the Board quoted with approval a previous decision of the Ceylon Court, Government Agent v. Perera ( 1 ), in which the first two paragraphs of the headnote run as follows : the appellant judgment of to contend that the "In the acquisition of a private land for a public purpose, the Governor is not bound to take the report of the Surveyor-General as to the fitness for such a pur pose. His decision on the question whether a land is needed or not for a public purpose is final, and the District Court has no . power to entertain objections to His Excellency's decisions." · In my opinion, this case does not go so far as it is sup posed to have gone and it is apt to be misunderstood and misapplied. The land was acquired there for the purpose of making a road, and it could not have been argued that the making of a road was not a public pur land was pose. The emphasis was on whether (1) 7 Cey. N.L.R. 313. Province Qj Barubay v. JC S. Ad"""i ond Othtrs. Fazl ,,fJ; ]. ...... 646 SUPREME COURT REPORTS f1950J the executive authority. actually needed or wanted for a public pu"PQSC and not on the character of the purpose and their Lordships held that the question whether the land was or was #JOI for a pubilc purpose had been left to the satis needed faction of to me that if the land had been acquired not for the purpotc of making a road but for a purpose which was evident the courts could not ly not a public purpose at all, have held that the Governor's action in acquiring the for a non-public purpose was not open challenge. It seems I do not wish to refer to cases decided under the Land Acquisition Acts, such as Ezra v. Secretary of .State ( 1 ) and others because, aprt from other things, as was pointed out by the Privy Council in the course the arguments in Wiieyesekara v. Festing ( ' ) Indian Land Acquisition Acts expressly provide that the order of acquisition of land is conclusive. local Government directing A third class of cases are those arising under certain war and emergency laws, of which Carltona Ltd. v. Commissioners of Works and Others("") may be taken to be a specimen. Th- t case was decided under regula tion 51 (1) of the Defence (General) Regulations which ran as follows : if it appears "A competent authority, authority to be necessary or expedient so to do in the interests of the public safety, the defence of the realm or the efficient prosecution of the war, or for maintain ing supplies and services eS>ential to the life of the community, may take possession of any land, and may the competent authority to be necessary or expedient in connection with the taking of possession of that land." such directions as appear In that case and other similar cases, it was held the Parliament had completely entrusted to the execu it would be necessary or expedient the discretion of deciding when requisition (') I.LR. 30 Cal. 36. (') (1919] A.C. 646 .. (') [1943] 2 All E.R. 560. 1950 Province of B0111bay v. K. S. Advani a11J Others. Fazl Ali]. S.C.R. SUPREME COURT REPORTS 647 the best to matters the defence of that discretion realm, interests of public safety, if bona fide etc., and therefore with exercised no court coul9 interfere. It is clear that .the relevant provisions under which those cases have been interest of public decided refer safety, defence of the realm, efficient prosecution of the the executive authorities alone war, etc., of which judges. So far as these matters are could be lay down an objective test concerned, it is difficult for determining when the conditions upon which the executive authorities are to act should be deemed to true analogy between c:.1se before us. An analogy to be this case and complete must rest not 01ily on similarity of language li1 certain complicated but also on simibrity of objects. or border-line cases; the courts mav find it difficult to decide whether ::t certain matter ha.,· been committed to the executive authority and made the judgment of its satisfaction or whet her it i5 entirely dependent on a condition precedent to the exercise of its jurisdiction or power. The line of demarcation between these matters may appear to be a thin one but it has to he drawn for arriving at a correct coriclusion. fulfilled. Thus is no As I have already stated, a petition for a writ of certiorari can succeed onlv two conditions are ful filled : firstly, the order to ·be quashed is passed by an inferior court or a person or authority exercising a judicial or quasi-judicial function, and secondly, such court or quasi-judicial body has acted in excess of its legal authority. The second element 'Would seem to be present in this case on the concurrent findings of the three Judges of the Bombay High Court which are clear to be and well-reasoned. But that does not seem the · purpose of granting a writ of certiorari enough for requisitioning of the pre mises under section 3 of the Ordinance was a purely involve any duty to administrative the existence of a public purpose or any other decide judicially or quasi-judicially. The remedy of matter is clearly by action and not by Jsking the respondent for a writ of certiorari. the:: the respondent, since the circumstances, act and did not In 1950 Pr•uitUe 11/ Bombay v. K. S. Adoani and Others. PatanJali Sastri]. Mahajan]. 648 SUPREME COURT REPORTS [1950] further points raised in the case do not call for decision, and I agree that this appeal should be allowed. It the Provincial Government to consider whether in view of the findings of the Bombay High Court it is desirable to pursue the matter any further. however be for PATANJALl SAsTRI J.-I agree should be allowed for judgment. of my Lore! and have nothing useful to add. the reasons indicated appeal MEHR CHAND MAHAJAN J.-1 agree with the judg ment which my brother Mukherjea proposes to deliver and wish to add some observations of my own out of respect for my Lord from whose judgment we feel constrained to differ. the Chief Justice The principal questions raised by this appeal are : ( 1) Whether the order of requisition dated 26th February 1948' made under section 3 of the Bombay Land Requisition Ord!nance (Ordinance No. V of 1947) is a quasi-judicial order ? (2) Whether a writ of certiorari Government of Bombay ? lies against the (3) Whether the High Court has jurisdiction to issue a writ of certiorari against the Provincial Government ? ( 4) Whether the requisition of the said flat and its from Sindh, allotment to Mrs. C. Dayaram, a refugee was for a public purpose ? The case of the appellant is that the said requisition order is an administrative order, hence no writ of certiorari can issue, that no writ of certiorari lies against the High Court has the Provincial Government, that issue a writ of certiorari. against the no juriscliction to Provincial Government which law means and in- eludes the Governor and that the requisition and the allotment of the said flat to Mrs. C. Dayaram was for a public purpose. I \_ It is well settled that a writ of certiorari lies if the judicial or a quasi is not competent if the order is order complained of judicial order but it is either a S.C.R. SUPREME COURT REPORTS 649 an administrative or an executive order. The circum stances under which a writ of certiorari can be issued are succinctly stated by Atkin L. J. in Rex v. Electricity Commissioners (1 ). in these terms : to determine questions affecting "Whenever any body of p~rsons having legal autho rights of subjects, and having judicially, act to · act legal authority, they are subject to in excess of their the controlling jurisdiction of the King's Bench Divi sion exercised in these writs." the duty It was said in Rex v. London County Council( 2 ) that to be fulfilled before a writ of four condition~ have certiorari can issue, (1) there must be a body of persons, it must have legal authority to determine (2) questions affecting the rights of subjects, ( 3) it has the duty laid upon it to act judicially, and ( 4) it acts in excess of Its legal authority. 1950 P,o,,ince of Bombay v. K. S. Advanj and Others. Mahajan]. jurisdiction of these writs. In learned Chief Justice said The learned trial Judge as well as the Judges of the court of appeal have not in any way departed from these conditions. On the other hand, they have stood firmly by them. Mr. Justice Bhagwati, learned ·trial Judge, observed that it is only when these condi that the body of persons is subject tions are fulfilled the King's Bench the controlling the court of Division exercised that the very appeal basis and foundation of the writ is the act com plained of must be a judicial or a quasi-judicial act. The the writ were not disputed before us during the course of the argu ments. controversy judicial and a quasi-judicial act as de.finitfon of· a administrative or a purely distinguished ministerial act. The que-stion is where to draw a line which demarcates the executive or purely adminis trative act from a quasi-judicial . or a judicial act. The learned Chief Justice in the court below summed up the result of the authorities on the point in these terms : fundamental governing centred The "In the .first place, a duty must be cast by the person or persons who is or are legislature upon ( 1) [1924] 1 K.B. 171 .at 205 (") [1931] 2 K.B. 215 at 243. 3-6 S.C. Tndia (N.D.) /58 19'0 Province of _ Bomba, .. K. S . .Aduani and Others. MaA.efanJ. 650 SUPREME COURT REPORTS fl950] - empowered to act to determine or decide some fact or facts. There must also be some !is or dispute r~sulting from there being two sides to the question he has to decide. There must be a proposal and an ly: necessary opposition. It must that he should have the pros and cont before he can come to a to weigh conclusion. He would also have to consider facts subject. circumstances bearing upon In other words, the duty cast must not only be to determine and decide a question, but there must also be a duty to determine or decide that fact judicially." It The statement of the law seems unexceptionable. is based on high authority. The classic ckfinition of the term "judicial" was given by May C. J. in The Q11een v. The Corporation of D11blin( 1 ), and this definition is in these terms : "It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant. but to remove and adjudicate upon the validity of acts judicial. 'judicial' does not necessarily mean acts of a Judge o~ legal tribunal sitting for the determination of matters law, but for the purpose of this question a judicial to be an act done by competent authority, act seems and circumstances, and upon consideration of imposing liability or affecting the rights of others." In this connection These observations of May C. J. were quoted by Lord Atkinson in Frame United Breweries v. Bath /t1stices( ' ) as '·one of iudicial act as the best definitions of a distinguished from an administrative act." They seem to have been approvl!d by Lord Greene M. R. in Rex v. Archbishop of Canterbt1ry( 8 ). In Rex v. Woodhouse(' ) Lord Fletcher Moulton L. J. observed as follows : "The term 'judicial act' is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate. even though the rate is one which could itself be' questioned by certiorari. In short, the exercise of some right or duty in there must be (') (1878) 2 L.R. Tr. 371 (') [1926] A.C. 586. (') [19HJ l K.ll. 282. (') (1906] 2 K.B. 501. S.C.R. SUPREME COURT REPORTS 651 order to provide scope for a writ of certiorari at com mon law." 1950 v. K. S. Advlllli .nJ Othas. ' ) include reached the conclusion judicial act, and In /ugilal Kamlapat v. The Collector of Bombay( 1 Bhagwati J. after a consideration of a number of English authorities phrase "judicial act" must be taken in a very wide sense ~ncluding many acts that would not ordinarily be termed judicial. The cases cited at the Bar fully bear out this conclusion. Reference may be made to The King v. Postmaster General ( 1), where it was held that the . giving of a certificate by a medical man was of the that the certificate was a nature. of a proper object of proceedings by way of certiorari. By the effect of section 1 sub-section (1) (i) of the Work men's Compensation Act, 1925, and an order extending telegraphists' cramp, a post its provisions office workman obtaining the certificate of the certify ing . surgeon that he was suffering from that complaint ~nd was thereby disabled, :was entitled to compensation. By section 44, sub-section (3), a medical practitioner 2ppointed by the Secretary of State was given the powers and duties of a certifying surgeon. An or<ler in pursuance of that made by · the Secretary of State sub-section provided that so far as regards post office employees the post office medical officer under whose -charge the workmen was placed shall, if authorized to in cases .act, be substituted for -0£ the practice of the post office to refer all cases of telegraphists' cramp to the Chief Medical Officer of the post office and this re ference was relied on as constituting hini the substitute the certifying surgeon · under the above sub-section and order. The applicant in that case claimed compen sation the case was telegraphists' referred in accordance the Chief Medical . Officer with the usual practice. He certified that she was not It was the giving suffering from -0f i11 the nature of a judicial act. Lord Hewart C. J. observed as follows : (1) [1928] 1 K.B.291. tclegrapsists' cramp. treated this certificate that was the certifying surgeon telegraphists' cramp. ( 1) (19!5) 47 Born. L.R., 1070. cramp and It was 652 SUPREME COURT REPORTS [1950] 1950 Province ef Bombay v. K. ,\'. Advani and Others. Mahajan]. "There was a moment in this case when it was argued that the document was of such a kind as not to be proper the writ of certiorari. But I am satisfied, when I look at the part which a certificate of this nature must play in the making of any claim for compensation by a post office worker suffering telegraphists' cramp, that the certificate of the certifying surgeon is of judicial act, and is a fit subject fot the nature of a certiotari." In Rex v. Boycott (1 ) certification as to mental defici ency of a boy was held to be a quasi-judicial act within the mischief of the remedy of certiorari. By section 31 of the Mental Deficiency. Act, 1913, it is provided that in case of doubt whether a child is or is not capable of receiving benefit from instruction in a special school or class, or whether his retention in such school or class would be detrimental children, the matter that the boy was Board' of Education. A certificate receiving incapable by further benefit from instruction in a special school or imbecile was issued by the medical class and was an the boy moved for an order of office{. The father of the certificate. Lord certiorari to Hewart C. J. in issuing the writ made following observations : reason of mental defect, of shall be determined by remove and quash interests of the "In my opinion, on this case, this facts of certificate of October 5, 1938, created in the way in which we know that it was created, purported to be and to look like the decision of a quasi-judicial authority." Reliance was placed on the observations of Atkin L. J. in Rex. v. Electricity Commissioners( 2 ). In The King v. The London County Council( 3 ), a writ of certiorari was issued to the London County Council who had exercised the power to grant a licence under the Cinematograph Act, 1909, and had given permission to the premises on a Sunday under the Sunday Observance Act, 1780. By section 2, sub-section (1) the Cinematograph Act, 1909, it was provided that (') [19'912K.B.651. (') [1924] I K.B. 171. (') (1931] 2 K.B. 615. 1950 Provitice oj &mbtJ)I v. Jr. S. Advam and Othns. Mahajan]. S.C.R. SUPREME COURT REPORTS 653 licences licence. Section 1 of a co~ty council may grant to persons to use premises for the exhibition of pictures or· other optical effects by means of a cinematograph on such condi restrictions as the council may tions and under such determine. The council had also power to modify or w:nve any of the conditions or restrictions attached by the council the Sunday Observance Act, 1780, provided that any house, room or other place which shall be opened or used for public entertainment ·or amusement upon any part of Lord's Day called Sunday, and to which persons shall be admitted by the payment of money, shall be deemed a disorderly house. A company applied for a licence to open and use premises for . cinematograph entertain ments and also for permission to open the premises for such purposes on Sundays; Christmas Day and Good Friday. council made an order accordingly provided a sum of £35 was · paid to charity in respect of each Sunday, Christmas Day or Good Friday. Scrutton L. J. issuing the writ made the following observations : In compliance with this application the county . "It is quite clear that every proceeding of magistrates or confirming authorities in granting new or renewing old licences is in the nature of a Court, excess of jurisdic tion in which can be dealt with by the writ of certiorari ; and the procedures in granting . licences under the Cine matograph Act, and proceedings consequential on appear to me to stand exactly on the same footing as the proceedings of magistrates or confirming authorities dealing with licences for public houses. When question terms and conditions shall a licence be granted; and when the committee proceeds to require that notice of· the proposal shall be given, to hear the applicant and his opponents, and to take evidence, the proceeding seems to me to be exactly the King's Bench Division, that of a tribunal which by the writ of certiorari, restrains within its jurisdic tion." is, on what Slesser L. J. in the same case discussed this matter at some length and in the 'concluding portion of the judgment made the following observations : 1930 Prooitte# of Bombay v. K. S. Adriani and Others. Mahajan]. 654 SUPREME COURT REPORTS [1950] licence, licence under judicial · duties to perform, but "The legal authority is clearly given try the section licences, and I have pointed out how it to grant third question affects the rights of the subjects. But the is the one w~ch was most strenuouslv debated in the argument before us : Are the Council 'under a dutv to act judicially? It. is said that what has here been done is not a judicial act, or not an act of an administrative body having substance an administrative act for the review of which the writ of certiorari is not appropriate. I am unable to distinguish in principle between the application for a the Cinematograph Act, 1909. and an applicatio;i made with regard to a licence for a public house, which for many years, as to the Confirming iater. as to the whole proceedings, has Authority, and been held to be a judicial act. It was suggested, so far as I understood the argument which attempts to differen this application from an application for a public is not provided in terms in s. 2 any provision for opposition ; and that is perfectly true. There is an obligation to notify the police, but there is not in terms there any provision for dealing with opposition, the County Council have made though an elaborate code under which opposition may he heard. I have examined other statutes which similarly contain powers to grant licences, but do not in terms mention opposition, and I find that in one, at any rate, the action of the magistrates was treated as a judicial act, although the statute contained no express provision for opposition. Reg. v. fustices of Walsall( 1 this is an authority that where, on the face of it, it appears that a licence is to be granted to certain persons and not to others, conferring upon them certain rights and obli gations, the mere fact that the statute does not in terms provide for opposition to be heard, does not any the less make the duty of the magistrates a judicial duty and therefore it is clear that they were acting or purporting to act judicially in hearing this application, assuming that it was an application, to modify the licence. Of course, as was pointed out by Greer L. J. in the course of the ) (') [1854] 3 W.R. 69. S.C.R. SUPREME COURT REPORTS 655 argument, unless the body was usurping a jurisdiction or acting contrary to their juridical powers, it would not be necessary to have a certiorari at all ; and• to argue that, because they have gone beyond their powers, therefore certiorari would not lie, would be to defeat the whole purpose of the writ. But the question is, have they purported under the statute, and have they a duty under the statute, to perform a these licences ? In my opinion hearing applications for they certainly have." function judicial l!r.iO :Pro1:inct o_f Bombqv v. K. S. Ad1•ani •nd Others. Mllhajan]. The learned Attorney-General cited the case of Franklin v. Minister of Town and Country Planning (1 ), the mere circumstance the proposition an enquiry may have to be made publicly and objections may have to be heard of persons affected does not necessarily convert the act into a judicial or quasi-judicial act. That case related the functions of a Minister under the Town and Country Planning Act and the New Towns Act, 1946. Lord Thankerton made the following obs~rvations : "In my opinion, no judicial, or quasi-judicial duty was imposed on the respondent, and any reference judicial duty, or bias, is irrelevant in ·the present case. The respondent's duties under section 1 of the Act and Sch. 1 thereto, are in my opinion purely administrative, but the Act prescribes certain methods of or steps in, It is obvious that, before making discharge of that duty. the draft order, which must contain a definite proposal to designate the area concerned as the site of a new town, the respondent must have made elaborate inquiry into the matter and have consulted any local authorities who appear to him to be concerned, and obviously other departments of to be Ministry of Health, would naturally consulted. required to satisfy himself that it was respondent was took the serious step of a sound scheme before he issuing a draft order. It seems clear also, they are inviting objections, and, . where purpose of not withdrawn, of having a public inquiry, to be held the Government, such as accordingly, It would require seem, (1) [194B] A.C. 87. Province of Bomha.J v. K. S. Advani and Othn-s. Ji.falwjan J. 656 SUPREME COURT REPORTS [1950] in order respondent, reports, was the scheme of the soundness of the respondent, further to whom by someone other tlun information of person final consideration the designation ; and it is important to note that the development of the site, after the order is made, is primarily the duty of the development corporation established under section 2 of the Act. judicial duty is laid on the respondent in discharge of these statutory that the only question is whether he has duties, and complied with the statutory directions to appoint a per the public inquiry, and to consider that porson's report." I am of opinion that no to hold is · an between In view of these authorities all that can he said is indefinable, yet appreciable, the doing of an executive or difference juJicial or a quasi-judicial administrative act and a is a act. The question, however, whether an act purely ministerial or a judicial one depends on the facts and circumstances of each case. As observed by my brother Das re Banwarilal Roy ( '), 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 the act may be particular power in exercise of which the actual application of the abstract pr<> done. positions to the circumstances of different ca'c' exercise of jurisdiction issue a writ of certiorari varies according to the foot of the Chancellor. In In therefore The question to determine questions affecting for decision in this case is whether the Government is a body of persons having legal authority rights of subjects, and secondly, to the extent to which it has and in performing that duty has it the duty to the position and duties of the Government under the Bombay Lane! Acquisi tion Ordinance arc such that it satisfies hoth the tests. It is a body of persons having legal authority to deter mine questions affecting the rights of subjects and I In my opinion, judicially. (') (1914) 4R C.W.N. 766. S.C.R. SUPREME COURT REPORTS 657 think its duty It cannot arrive its determination on a mental process of its own. judicially. to act that before An examination of the provisions of this Ordinance the Government forms the opinion that it is necessary and expedient to requisition any the following questions of fact and law- to <letermine it has ( I) whether the land is required for a public pur pose;

19.iO Province of Bombay v. K. S. Adi•ani and Others. Mah~icm]. (2) whether subject matter of the land, · the requisition is being used for public religious worship ; land which for a purpose which the Pro specified by a notification; (3) whether the requisition vincial Government has is being used intended in order the . phrase is not necessary judicial decisions. It was, however, observed to constitute a "public purpose" ( 4) whether the premises are vacant premises. All these questions are mixed questions of law and "public fact. No precise definition of purpose" can be attempted and none has been given Hamabai Premiee Petit v. Secretary of State for India( 1 ) land when taking land it to be made available to the public at large, but that it includes a purpose, the general interest of the community as opposed is directly to the particular interest of and vitally concerned. judges of the in which the question whether is concerned but general judges, that is, they cannot is being used proviso the question whether is again a matter which for public religious worship involves difficult questions of fact and determination of these - questions may seriously affect rights of worshippers, trustees and other people interested in a place of worship. Similarly the question the Government are good is one they are not absolute it, "I desire individuals therefore I order the community it". Under It was said the purpose interests of an object that case law and (1) '.LR. 42 I.A 44. 1930 Proumce of Bombay T. IC S. .Advani and Otllhs. Maha;anJ. 658 SUPREME COURT REPORTS (1950) It involves in section 4. tenancy, or by landlord to give law which have is punishable under the Government the question whether termination of a tenant, or by whether the premises are vacant is a matter that has to, be determined in view of the definition of "vacant premises" given the deter the vacancy was mination of caused by. eviction of a release of the pre mises from requisition, etc. A duty has been cast on information of th~ vacancy of a to Government and any failure in the per premises formance of that duty the law. The determination bv that certain required . for a public purpose and therefore property in its opinion it should be requisitioned entitles requisitioned to a right to person whose premises are compensation which has to be determined admittedly judicial manner under the provisions of the Act. in a The point therefore arises whether it was intended by the provisions of the order that all these questions of fact and to be determined before Government forms an opinion as to the expediency or necessity of requisitioning certain . premises, were to be subjective! y determined rights of persons the opinion of determination was Government ; or whether to be of a judicial or qu;isi-judicial nature ; intended in other words, whether important questions has to be infinite mind of truth of the facts them the Government or to be determined by the selves. Are these questions idiosyncracy of mental operations or the officers their determination depend on of Government or does existence of material facts ? If the decision of all the questions to be arrived at by a subjective process, then there can be no doubt that the act of the Govern requisition will be a purely ministerial act and . will not fall within the mischief of the writ ; if, on the other hand, these questions of fact and law have to be determined objectively, irresistible that the determination will be inference judicial nature. The method and manner of of a it will be a judicial process. It will consider reaching to be affected merely on the determination of in making 19j0 Prodnce of Bombay v. K. S. Aduan~ sni 0th.rs. S.C.R. SUPREME COURT REPORTS 659 in holding a propos1t1on and an opposition ; both sides of to be considered, i.e., the Govern question will have ment's point of view as well as the point of view of the person affected and the determination would only be reached on a consideration of facts and circumstances. line of approach in' the matter is, does section 3 of The the Ordinance contemplate a thinking on the part of the Government that the place is not being used for the purpose of public religious worship, or does it con that the place is not a template a finding on facts place of public worship. As stated by Lord Atkin in Liversidge v. Sir John Anderson (1 ), does the Ordinance contemplate a case of a thinking that a person has a broken ankle and not a case of his really having a broken ankle ? Similarly, can it be said that 5ection 4 contemplates merely a vacancy ·in .. the mind of the in fact as a real thing. Government, not a vacancy After a careful consideration of the matter I have no,. hesitation these questions are not the mere determination of the Govern questions for its own opinion but are matters ment subjectively by objectively. That of determination determination of these questions depends on n1aterials which the Government have sufficient power to call for is not only the duty of the the Ordinance. It these questions but its duty Government to determine is to determine is, by hearing any opposition to the proposal and by placing its determination on some materials which it has called for under the provisions of section 10 or 12 of the Ordinance. The determination rights of persons as to . property, it affects rights of worship and any such determination may entail serious con sequences. The case The King v. Bradford (2) furnishes that case authority was an apposite In take materials for a period of five years from given to land which in the opinion of the a certain enclosed High Court was a park. It was held justict!s land was not could. not by wrongly deciding a park give themselves jurisdiction in the matter. In them in a judicial manner, affects valuable illustration. being so, 1 ( ) [1942) A. C. 2~6. (1) [1908) I K. B. 365. 1950 l'roi;i11&e of Bombay T. K. S. Moani 4nd 01/rm. .Mah4jan]. 660 SUPREME COURT REPORTS [1950] ·jurisdiction requmt1oning the Government by wrongly deciding my opinion, the place is not a place of public worship cannot land. a~qi:ire S1milarly . they cannot by describing a private purpose to make an as a public purpose acquire jurisdiction order of requisition. The Ordinance contemplates 0~ making of necessary enquiries and enabling pr<> v1s1ons have been made in it for facilitating them. It on Government before is cast reaching make enquiries and hear persons concerned. Though no express provision exists that objections have to be the power given under section 12 ~o make heard, the person occupying the premises or enquiries owning them show that no sooner enquirie! are made that a person ha§ to say on the matter will be said and heard. its decision on such important matters that a duty · For the reasons given above I cannot accede to the to .lite . it means learned Attorney-General as section 3 of is a matter which contention of the Ordinance when construction of the determination of "public purpose" opinion of the Government decision of the facts mentioned. in ·the proviso also depends on that opinion. I cannot also agree in the contention that even if these matters required deter they can be so determined by mination objectivdy, making administrative enquiries and without hearing persons learned the · Judges of the Court of trial Judge aS' well as appeal ca!C line and I do not which is a case on reversing the border their well considered decision. substantial grounds reached a correct concerned. there are judgment In my decision As regarcls the second question, I have no hesitation in holding that a writ of certiorari lies against the Government of Bombay. Section 306, ·read with section 176 of the Government of India Act, 1935, expressly in all cases where such a preserves the East India right could be exercised as against the right to sue Province of Bombay v. K. S. Advani' and Others. Mahajan J. S.C.R. SUPREME COURT REPORTS 661 the right issue a command taken to vindicate the expression "sue" used the Province. The expression immunity granted by section 306 is the word "Governor" in the section Company. The learned Attorney-General argued to suits and to actions and did the section was confined the case of a writ of certiorari. It was said not cover to the is no power that there that the Provincial Sovereign. My simple answer is not the sovereign and that the Govern Government ment of India Act expressly says that there is a right to sue "sue" means "the enforcement of a claim or a civil right by means of legal proceedings." When a right is· in jeopardy, then ariy proceedings that can be adopted to put it out of jeopardy fall within the expression "sue". Any remedy that can be the expression. A writ of certiorari included within therefore falls within section 176 of the Government of India Act, 1935, and the remedy therefore is within the express terms of the statute. The It was argued the Governor and not to the Province. is synony mous with "Provincial Government" by reasoµ of the definition of "Provincial Government" In interpre my opinion, this definition cannot affect the Government of India Act. In that Act tation of the Provincial Government and the Governor have been used in two different senses and not in one sense. Immunity from suits is given to the Governor and not to the Provincial Government, though the Governor may be one of the important component parts of the Provin cial Government. Reference in this connection was made to the East India Company Act, 1780 (21 Geo. 3, c. vii), and to various statutes which eventually culminated in sections 306 and 176 of India Act, 1935. On the basis of the Act of 1780 it was the High Court had no jurisdiction to contended issue a writ against the Governor. That statute, how ever, did not prohibit the issue of a writ against the India Company. On the , other hand, there are East cases which show that such writs were being issued In my opinion, the against in section 46 (3) of the General Clauses Act. the East India Company. the Government of phrase p,ovince of Bomh~J v. K. S. Adrlf.1t1i and 01M,s. Mahajan J. 662 SUPREME COURT REPORTS [1950] to be <lecided exclusively under the term~ matter has the Government of India Act, 1935, and not on the terms of any repealed statute. Clanses 4 and 13 of the Charter of the Supreme Court gave the power to issue a writ of certiorari to the High Court against the East Ipdia Company and the same. jurisdiction has been li.ept alive by the Government of India Act, 1935. Reference was made to a number of Madras cases but, those cases have not been correctlv in my opinion, decided they have placed the Governor the Provincial Government by a process of reasoning which to my mind is not correct. the same footing as inasmuch as On the merits of the case ·whether the land iii the present case was required for a public purpose, there is a concurrent finding of fact object of this requisition was individual and no public purpose was involved in it. That being so, the writ was in my opinion properly issued in this case and the appeal is without force. I would accord ingly dismiss it with costs. to benefit an to the effect is directed MuKHERJEA J.-This appeal is on behalf of against Province of Bombay judgment of an appellate Bench of the Bombay High Court (consisting of Chagb C. T. and Tendolkar J.) dated January' 4, 1949, by" which learned Judges affirmed an order of Bhagwati J. dated September 27, 1948, in so far as it granted a writ of certiorari, for bringing up and quashing a requisition order made by the Provincial Government un,ler section 3 of Bombay Land Requisition Ordinance (V of 1947). There case which lie within a short compass. The requisition order was made by the Province of Bombay on February 26, 1948, in respect of floor of a building known as "Paradise" situated at 22, Warden Road, Mahalakshmi, Bombay. The entire building is owned by one Dr._ M. B. Vakil, and one Abdul Hamid was in occupation of the first floor as a tenant under Dr. Vakil prior to January 29, 1948. Abdul Hamid intended to go to Pakistan and was on the look out for is not much controversy about the facts of the · - r • 1950 Province ~( Bombay v. K. S. Advani and Oth1rs. Mukhtr)1a :J. S.C.R. SUPREME COURT REPORTS 663 there was an agreement entered the main respondent in this appeal and some premises a:t Karachi where he might reside and carry on business. The petitioner Khusal Das, who is now represented by his heirs, was a refugee from dead and Karachi where he owried a Bungalow worth more than Rs. 50,000 and also a running business in which a considerable sum of money was invested. On 29th January, 1948, by and between Abdul Hamid on the one hand, and the petitioner Khusal Das, his son Gobind Ram and his brother's daughter's son Hiranand on the . other, the latter his tenancy by which the former assigned to right in the first floor of the Paradise in exchange of his getting a leasehold interest in the petitioner's Bun terms 0£ this galow at Karachi. There were other transaction which are not relevant· for our present into possession ot'the purpose. The petitioner went flat on February 4, 1948. On February 26, 1948, the Government of Bombay issued an order requisitioning the flat, the order being made under -section· 3 of the (Ordinance Bombay Land Requisition OrdinaGce No. V of 1947) which came into force on and from the 4th of December, 1947. The order was signed by Mr. P. L. Rao as Secretary the Government of Bombay, Health and Local Government Department. On the same day a letter was addressed by Mr. Rao to Dr. Vakil intimating to him that the said flat had the Requisition therewith and · that Government had Order enclosed allotted to one Mrs. C. Dayaram at a rental of Rs. 85 per month. Mrs. Dayaram, it may be mentioned here, was also a refugee from Sind. On February 27, 1948, a further order was passed under the signa ture of Mr. Rao authorising one Lalwani, an Inspector in the Health and Local Government Department of the Government of Bombay, to take possession of the requisitioned the provision of section 9 of the Requisitioning Ordinance. On March 4, 1948, the petitioner Khusal Das the Bombay High Court against Original Side of P. L. Rao, Secretary to the Government of Bombay requisitioned as per copy of filed an application flat under the flat - 1950 Pr~eof Bombf!1 v. ](. S. Ativ11n; and OtMrs. 111ukherjea J. 664 SUPREME COURT REPORTS [1950] taken by in answer respondent. On inter alia lie against orders of large number of defences were By a subsequent amendment of as party respondent alleging that the order of reqms1- tion was illegal and ultra vires on various grounds and praying for writs of certiorari, prohibition and an order under section 45 of the Specific Relief Act against application, an interim injunction was granted by Coyajee J. restrain the Government from obtaining possession of the the petition flat. the Province of Bombay, as well as Mr. G. D. Vartak, the Minister-in-charge of the Health and Local _Govern ment Department were added as parties respondents. A the prayers of the petitioner. respondents It was contended the orders made the Ordinance were not judicial or quasi-judicial orders, but executive orders made by the Province cif Bombay and no writs of certiorari or prohibition 'description. On behalf of Mr. Rao, it was urged that he did not make any order himself and had merely authenticated and signed the provisions of section 59 (2) of the Government of India Act. As the Province of Bombay a point was taken regards. that no writ could be the Provincial Government which meant and included the Governor the Province, he being immune from all proceedings in, and processes India under section 306 of India Act. The it was said, was not personally Minister respondent, for the consequences responsible thereof under It was contended fur the flat, and the allotment of it to Mrs. Dayaram were for public purpose. The J., who overruled petition was heard by Bhagwati respondents and granted the petitioner's prayer. Writs of certiorari and pro hibition were dir~cted to be there were also orders of mandamus responden~, and respondents other than the Province against granted of Bombay. Against this decision an appeal was the appeal Bench of the High Court (being the orders or the Constitution. the requisition 0£ the Government of in accordance with from any court of the contentions of issued against all issued against the orders S.C.R. SUPREME COURT REPORTS 665 in favour of the two Appeal No. 65 of 1948) and tht'. appeal was heard by Chagla C. J. and Tendolkar J. By judgment dated January 4, 1949, the learned Judges allowed the respondents other than appeal the Province of Bombay and set aside the orders made against them. judgment of. Bhagwati J., so far as it related to the Province of Bombay, the writ of and maintained certiorari issued against it. The Province of Bombay has now come up on appeal to this Court. affirmed however They l~'.O Pr1vince of Brim ha;· v. K. S. Ad1.a11i and OtMrs. Mukh<fJta ]. involve first place It has been argued the appeal contended before us, the provisions of requisition · The learned Attorney-General who appeared order which judicial or quasi-judicial support of having regard the Ordinance order was made under which no writ of certiorari would be at all available law. the order complained of is a ministerial or adminis trative exercise .function and to a of any this character no writ purely administrative order of of certiorari lies. the alternative that It is argued assuming that the Provincial Government has any semi judicial function to exercise while making an order the question as to under section 3 of whether the requisition was for a public purpose or not, was a question of fact which the Provincial Govern ment was competent to entertain and decide, under itself, and no writ of certiorari would lie to bring up an order of the Pro vincial Government on the ground that its decision on this point was erroneous or unsound. Lastly, immune contended that from all court . processes and no writ of certiorari could be the Provincial Government the Ordinance, the Ordinance terms of issued it. to discuss The first and the second point5 are really inter-con nected, and I may have together. They raise questions of considerable nicety and general the most importance, and we had arguments of elaborate }earned COUnsel On both 4--6 S.C. India(N D)/58 advanced sidCR. them by character theM ' 1950 Province of Bombay v. It. S. Advani and Others. Mukheriea J. 666 SUPREME COURT REPORTS fl950] is a is whether the writ of certiorari has been The first and the most important point for our con sideration requisition against the act of issued by the High Court It judicial or an administrative act. is not disputed that the writ does not lie to remove an act which ·purely ministerial. It can be availed of only to remove and adjudicate on the validity of judicial acts( ' ). To ascertain the exact connotation of the expression "judicial act" in connection with the issuing of a writ of certiorari and to determine whether the act complained of in the present case is a judicial act or not it would be necessary and convenient to set out briefly how law on the point as developed by the Courts in England stands at present. A writ of certiorari like the writ of prohibition is a judicial writ of antiquity and it is the ordinary process by which the Court of King's Bench Division exercises control over the acts of bodies vested with inferior jurisdiction. The writ is intended to bring up before the High Court the records of proceedings or determinations of inferior tribunals and found tc, have acted in excess of their jurisdiction. if the tribunals to quash It is well settled that the writ is not limited bringing up the acts of bodies that are ordinarily con to be Courts. "The procedure of certiorari" sidered as has been observed by Fletcher Moulton L. J. in Rex v. Woodhouse( 2 ) "applies in many cases in which the body whose acts are criticised would not ordinarily be called a 'Court' nor would its acts be ordinarily termed judicial acts. The true view of the limitation would seem to be that the term 'judicial act' is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate itself be questioned by is one which could certiorari. In short there must be the exercise of some right or duty to decide in order to pro~ide scope for a writ of certiorari at common law." (')Per May C.J. in &g. v. Dublin Corporation (1878] L.R. 2 fr. 371 at P. 376. (') [1906] 2 K.B. 501 at P. 535. 1950 Provinct qf Bombay v. K. S. Advani and Othtrs. Muk/wiea]. S.C.R. SUPREME COURT REPORTS (ij7 issued though these bodies also. rating authorities, denominations _ exercising There can be no doubt that originally the writ of certiorari was issued only to inferior Courts using the its ordinary sense. As bodies of word "Court" various · types and to be introduced, the writ was judicial functions came Th~re is a long line of extended the writ of certiorari has decided cases showing Justices, licensing the Board of Education, Electricity Commissioners, Inns of Court, the General Medical Council, Assessment Committees, the Commissioner of Taxation and various other authorities who could be regarded semi-judicial as performing some sort of . judicial or to try cases, function they have no authority or pass judgments in the proper sense of the word ( 1 ) interesting to note that in King v. Post It would be master General( 2 ), a writ of certiorari was issued quash a disablement certificate granted by the Chief Medical Officer of the Post Office on the ground that he was not the certifying surgeon under the Work men's Compensation Act, 1925, and the granting of a certificate was held In Rex v. to be a . judicial act. Boycott (3 ), one Russel Keasely moved on behalf of }iis infant son Stanley for an order of certiorari to remove certificate granted by that Stanley was incapable by respondent reason of, mental defect of receiving benefit in a special school under section 56 of the instruction two other connected documents. Education Act, and The Court was. of opinion that as doubts did arise as to whefher it was a proper the Board of Education It was held under section 31. in these !:ircumstances that the three documents which were parts and parcel of one and the same transaction constituted the deter mination of a · quasi-judicial authority, and "exhibited all the mischief which a writ of certiorari was intended and well fitted to correct". The result was that all the three documents were directed to be brought up and a medical the effect to be determined by the boy was ineducable, (1) Vide Halsbury's Laws of England (2nd Edition) Vol. 26, p. 284. (') [1928] I K. B. 291. (') [1939] 2 K.B. 651. 1950 Provinn ef Bombay v. K. S. Ac/1,ani and Others. MukhnjeeeJ. 668 SUPREME COURT REPORTS [1950] quashed. Even a report made by a Chief Gas Ex aminer has been removed and quashed by a writ of certiorari ( 1 ) . Inhabitants of Glamorganshire( 3 In the words of Banks L. J. the course of develop ment of law on the subject demonstrates what has been the boast of English Common Law that it will, when and where necessary, apply existing ever possible to new set of circumstances( ' ) ; and it was principles that opinion was expressed in in very general Rex v. ) Court would examine jurisdic if under tions · erected by Acts of Parliament and to encroach pretence of such an Act jurisdiction the Act greater the Court would send a certiomri to them to warrants, have their proceedings returned to the end that the Court might see that they keep them selves within jurisdiction, and if they exceed it, to restrain them. they proceeded the proceedings of all the Court themselves The whole law on the subject relating to issuing of writs of certiorari was thus summed up by Atkin L. J. in Rex v. Electricity Commissioners( • ) : "Whenever any body or persons having authority to determine questions affecting the rights the duty to act judicially act of subjects, and having in excess of their legal authority the King's Bench jurisdiction of Division exercised they are subject these writs." controlling This statement of various cases since law has been affirmed and then ( 5 reiterated been questioned. But un correctness exceptionable though the statement is, it does not by itself afford any assistance in solving the real difficulty that arises It postulates existence of a duty in the authority to decide judicially but it does not enumerate or give any indication of the in cases of this description. ) (1) R .... London County CoutJcil, 11 T.L.R. 337. (') Vide Rex v. Electricity Commissioners, [1924] 1 K.B. 171 at p. 192. (') I Ld. Raym. 580. (') [1924) 1 K.B. 171 at p. 205. (Ji) Vide R. v. North Worcestershire Assessment Committee, [19291 2 K.n. 397 at p. 405-6; R. v. London County Council, [1931] 2 K.B. 215. 1950 Proz·inct o.f Bomh~v v. K. S. Advani Jnd Others. Mukherjta J. S.C.R. SUPREME COURT REPORTS 669 circumstances un<ler which such duty shall be held to be imposed. It has been pointed out very nghtly by my learned brother Das J. in a recent Calcutta case ( 1 ) that of the four clements invoked in the proposition of law enunciated by Lord Atkin, three may be present m an administrative or executive act as well. legal authority in infrequent where an executive authority A valid executive act undoubtedly presupposes the existence of a the officer or depart Such executive acts may and in ment to do the act. rights of subjects. Cases are also fact do affect jurisdiction, and acts in excess gresses limits of is not disputed that no writ of of its powers. Yet, certiorari can be issued to restrain or invalidate such executive acts. As was observed by Lord Hewart C. J. in Rex ·the Church Assembly( 8 ), "in order that a body may satisfy the it should have required test, it legal authority to that rights of subjects, characteristic the body judicially." The material points judicial act, and how it is to be ascer criterion of a tained whether an authority is bound to -act judicially in a particular matter or not. is not enough to determine questions affecting there must be superadded v. Legislative Committee of the duty consideration the further characteristic therefore are what to act • It is said that one that gi.ven by May C. J. the best definitions of a from an administrative in the Irish case of rate levied by a It was found that the Corporation was other legitimate purposes but it was illegal rate, legality of which was challenged and writ of to qu:ish a\J the orders and. judicial act, as distinguished act, Reg v. D.ublin Corporation( 3 ). The question raised that case was whether a borough Corporation was the borough wise sufficient for all rendered certain payments made . out Tc make the deficiency, the Corporation levied a borough certiorari was prayed for reason of it. illegal or not. insufficient by fund of (') lnre Ba11warilal, 48 C.W.N. 766. (') [1928] I, K.B. 411 at 415. (1 ) [1878] L.R. 2 Ir. 371. 1950 Prollime of Bombay v. A. S. Advnni and Othtrs. Mukherjea J. 670 SUPREME COURT REPORTS [1950] resolutions of imposition of the rate. May C. J. while discussing ing of the expression 'judicial act' observed as follows : the Corporation in connection with the The writ was granted and in his judgment the mean "In this connection the 'judicial' does not necessarily mean acts of a Judge or legal tribunal sitt ing 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 affect there be a body ing the rights of others. And if empowered by into facts, make esti mates to impose a rate on a district, it would seem to me that the acts of such a body involving such conse quence would be judicial acts." to enquire This definition was approved by Palles C. B. in Re : Local Government Board, Ex parte Kensington Commis sioners( 1 ) and was quoted in extenso by Lord Atkinson, in Frome United Bre1ueries Company v. Bath fustices('). • indeed judicial judicial because it affects judicial act presupposes In the passage quoted above, the learned Chief Justice really describes what may be called judicial a cannot process. There which does not create rights or impose obligations ; but an act, as has been already pointed out is not neces the rights of subjects. sarily application of Every is a well marked distinction judicial process. There between forming a personal or private opii1ion about a matter, and determining the perfor mance 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 in good faith, and if it is necessary established influenced by any extra neous consideration, there is nothing further to be said. In .a judicial proceeding, on the other hand, about it. the process or method of application is different. "The the· application of a body of judicial process that he must act that he was not judici1lly. In involves (') 16 L.R. h-. 150. (') [1926] A.C. ;86.

19.iO Provincd of Bombay v. K. S. Advani and Others. Mukherjea J. S.C.R. SUPREME COURT REPORTS 671 ). the technique of a ,particular rules or principles by ). It involves a proposal and psychological method"( 1 an opposition, and arriving at a decision upon same on consideration of and circumstances according to the rules of reason and justice( 2 It is not necessary that the strict rules of evidence should be followed : the procedure for investigation of facts· or for reception of evidence may vary according requirements of a particular case. There need not be any hard and fast rule on such matters, but the deci sion which the authority arrives at, must not be his 'sub It must be jective', something which conforms to an objective standard or law, and the criterion soundness or otherwise of the determination must be capable of being tested by the same external standard. laid down or recognised by 'private' opinion. 'personal' This is the essence of a judicial function which it from an administrative function ; and differentiates whether an authority is required to exercise one kind the other depends entirely upon of function or provlSlons the particular enactment. Where the statute itself is clear on this point, no difficulty is likely to arise, but where the language of the . enactment does not indicate with precision what kind of function is to be exercised by an authority, considerable difficulties to be experienced. There are numerous are bound decided them were cited to character, and quite a number of us by the powers and duties of various types of relate , authorities under various statutes and war regulations, dealing with different subject-matters and not uniformly they are of no direct assistance to us in the worded, present case. I think however that we can cull a few general principles from some of the pronouncements of the English Courts, which may interpretation of cases, which deal with questions of learned counsel on both sides. As the Ordinance before us. light on Generally speaking, where the language of a statute the personal indicates with sufficient clearness (') Robson's Justice and Administrative Law, p. 33. (') Vide R. v. London County Counril (1931] 2 K.B. 215 at p. 2'<3. Prtwinct ."/ Bombay v. K. S. Aduatti and Others. 672 SUPREME COURT REPORTS [1950J the discretion is concerned .... ; if regarded as an executive satisfaction of the authority on certain matters about whioo he has to form an opinion founds his jurisdiction to do certain acts or make certain orders, the function should be function. The the House of Lords in Li11ersidge v. Ander decision of ) is the leading illustration of this type of cases. son( Even Lord Atkin observed, in course of his dissenting judgment -in this case, that when the Minister or any other authority without quali fication, by use of expressions the following : "A Secretary of State .. , . if it appears to him necessary may order ; if it appears .'to tbe Secretary of State that any person the act •atisfied cannot but b~ held act. that the Lord Atkin was however words "if the Secretary of State has reasonable cause to believe," should be construed as meaning "if there is in fact reasonable cause for believing," and according to his Lordship "reasonable cause" for an action or belief is as much a positive fact for determination by a third party as any other objective condition. This view was not accepted by the majority of the House and it was that the Secretary of State had honest! y to suppose that he had reasonable cause .thing. Pro there was good faith the maker of t11e order was the only possible Judge of the conditions of his own jurisdiction('). the words meant no more is necessary or expedient," the Secretary of State inclined the required to believe executive to hold to be After die law was settled in this way by the House of Lords, a large number ci cases came up before the Courts in England which involved consideration of the provisions contained in various other orders and regu relating to taking control of business or requisi lations tion of property. The these orders was language of very similar to that, of Regulation 18 (B) under whicli In the detention order was made in Liversidge's case. Point of Ayr Collieries Ltd. v. Lloyd George( 3 ) (') [1942] A.C. 206. ( 1) Vide observation of Lord Radcliffe in Nakudda S. Jayaratne, 54· C.W.N. 883, 888. I') [1943] 2 A.E.R. 046. . .f.li v. M. F. D1 S.C.R. SUPREME COURT REPORTS 673 control of the appellant's undertaking was taken by the Ministry of Fuel • and Power by an order made under the Defence (General) Regulations, 1939, reg. 55 ( 4). The regulation stood as follows: relevant provision of "If it appears the competent authority the public safety, the · efficient prosecution of that in the defence of the the· interest of realm or the war or for maintaining of supplies and services essential life of to take control on behalf of His Majesty of the whole or any part of an existing undertaking .... the competent authority may by order authorise .... " the community, it is necessary .1950 Prorrinu of Bomb'!Y v. If.. S. Advani and Others. .!.. ... • The appellant's contention was that there were no adequate grounds upon which the Minister could find, as he stated, he had found, that it was necessary to take control in the .interests of the realm or the efficient prosecution of war. there was no It was held jurisdiction in .the Court to interfere with what was an executive order passed bona fide. I In Carltona Ltd. v. Commissioners of Works and time, ) which was decided near about the same Others( 1 the appellant's factory was requisitioned by the Com missioner of Works under · the provisions of Defence ~General) Regulations, 1939, Reg. 51 (1). The requisition order was challenged inter alia on the ground that the requisitioning authority neyer brought their minds to bear upon the question and had done so, they could not possibly come to the conclusion to which in fact In this case the regula that in the tion was almost in the same earlier case. The words were "If it appears competent authority to be necessary or expedient to do ........ " language as they came. The Court held that the Parliament had committed the discretion of deciding when an the premises should be regulation, and. with that discretion to the executive order for the requisition of made under if bona fide exercised no Court could interfere. (') [1943] 2 A.E.R. 560. 674 SUPREME COURT REPORTS [1950] 1950 Provinu of Bombay v. K. S. Mvani and o.,,,,.,. Mukh.,.jeaJ. Even when the language of the statute is such that it confers an unlimited discretion. on the executive, there are cases where a duty on the part of the autho rity to act judicially has heen sought to be • spelt out the statute, particularly those which relate the holding of public enquiries and consideration of objections by the authorities coacerned. the other provisions Thus subject compulsory satisfactorily it was purchase, an order declaring in Pheonix Association Company v. Minister of Town and Country Planning( 1 ) an application was made to quash an order made under section l ( l) of the Town and Country Planning Act, 1944, which em powered the Minister of Town and Country Planning ·in any area to make if he was satisfied the purpose requisite dealing extensive war local Town Planning damage lands should be laid out afresh authority It was held by Henn and re-developed as a whole. Collins J. the matter was not so peculiarly within the administrative capacity of that it could be regarded as one of pure discretion. Reliance was placed on the fact that the statute was not a piece like Regulation l8 (B), and the provisions relating to holding of public enquiry, indicated according and hearing of objections, learned function was of a quasi judicial character. the Minister area of a temporary legislation J11dge taken by in another case which There was no appeal against judgment, but quite a contrary view was the Court of Appeal involved consideration the same provisions of the same Act. This was th~. case of Robinson and others v. Minister of Town and Country Planning( 2 ) and it was held there that the Town and Country order under section 1 (1) of Planning· Act is made by the Minister as ·an executive authority and he is at to base his opinion on liberty whatever he thinks proper. Stress waS' laid on "satisfactory" "requisite" (') [1947] 1 A.E.R. 45•. (') [1947] 1 A.B.R.. 851 19:;0 Province of Bombay v. K. S. Aduani and Others. S.C.R. SUPREME COURT REPORTS 675 indicated according these words section and the' learned Judges the question was one of opinion and policy, matters which were peculiarly to decide, and as to which, assuming Minister himself always that he acted bona fide, he was the sole Judge. It was further . observed that no objective test was here indicated and that different considerations might apply where a Minister could be shown to have overstepped the limits of his power, e.g., where they may be exercised were laid down in the statute and he purported to act in a case where conditions did not exist. the conditions In Errington and others v. Minister of Health( • ) the question ·arose as to whether an order of the Minister of Health confirming a clearance ·order. made by a local authority under section 1 of the Housing Act of judicial order. It was held 1930 was an executive or if there was no objection raised to clearance order by persons interested in the property and it was con the Minister, there was no exercise by the firmed by latter of any judicial or quasi-judicial function. But the position becomes different if objections are raised. Then the Minister would have to hold a public enquiry as provided for by the Act and consider In such report of circumstances the decision the clearance to an exercise of quasi-judicial function. order amounts In This was a case under the Housing Act of 1930. Franklin v. Minister of Town and Country Planning( 2 ) however, which was a case under the New Towns Act, 1946, and contained very it was that in C()nsidering the the House of Lords held by report of the person who held a public enquiry after objections have been made to an order under section 1 (1) of the New Towns Act, the Minister has no judicial or quasi-judicial duty imposed on him, so that consider ations of bias the execution of such duties were altogether the person who held the enquiry. similiar provisions, to confirm irrelevant. It would be seen from the cases referred to above judicial and executive the distinction between • ( 1) [1935] 1 K.B. 249. (') [19481 A.C. 87. 1950 P;ovitied Of Bombtg v. Jr. S . .Advani and Oflwrs. 676 SUPREME COURT REPORTS [1950) turns out function often to be a very fine one, and difference of opinion amongst Judges is not uncommon on these matters even when they have got to construe provisions of Acts which employ language very similar to each other. facts, to do so Leaving aside the cases, where the existence of a duty to act judicially is sought to be inferred from the provisions of a statute relating to holding of enquiry or hearing of objections, the ·general rule that all the cases lay down is that if the foundation of the exercise of the powers by an authority is his personal satisfac tion or subjective opinion about certain function to be regarded as executive and not judicial. The facts may undoubtedly be· and often are objective facts about which the authority has got to form his opi nion. When a statute says that a Minister can requisi tion property or order compulsory purchase if he deems it expedient interest of public safety or the defence of the realm, the condition precedent to the exercise ·of his powers is not the actual existence of interest, but his own opinion or belief that it national To quote the words of Lord Radcliffe "If the exists. question whether the condition has been satisfied the man who wields the be conclusively decided by the value of restraint is in fact intended nothing( 1 ) ". On the other hand, if the statute imposes an objective condition precedent of the exercise of powers by an authority, and not merely his subject ive opinion about it, the function would be prima fade judicial. The distinction illustrated by in Liversidge's Lord Atkin in his classic case( • ) . If it is a condition t<5 the exercise of powers by A that X has a right of way or Y has a broken ankle, the authority is charged with determining these facts and it must ascertain conditions are fulfilled or not. the other hand, the condition is is of thinks or that X has a ·right of way or Y has a broken opinion ankle, the condition is a purely subjective condition judicially whether If, on is beantifully judgment the authority (') Vidc Nakkuda Ali v. M. F. De S. J~rratne 54 C.W.N. 883,888. (') (1942) A. C. 206, 227. ( 1950 Pwuina of Bombay v. K. S. Aduani and Ot/:ers. Muk/w:jea ]. S.C.R. SUPREME COURT REPORTS 677 the act cannot be a of the condition is a third party by application of any rule of procedure. judicial act as the existence incapable of being determined by law or fulfilled. One other question arises in this ccmnection and that relates to the second and alternative contention raised by the learned Attorney-General. When the legislature lays down that delegates powers to an authority, and the powers could be exercised only if a certain state of the authority cannot act if the facts exists, obviously If it wrongly holds or condition is not the condition exists although it actually assumes does not· exist, its assumption of jurisdiction would be unsupportable, and could be removed by a writ of certiorari. The jurisdiction which includes the juris authority with a to determine whether the preliminary state of diction facts exists. In such cases even if the authority makes a wrong decision either of facts or law, it can be cor rected by an appellate tribunal if there is any, but not by a writ of certiorari, as every authority it acts within jurisdiction is competent to decide both rightly or wrongly( 1 legislature however may entrust ). Keeping in view the principles mentioned above, I' would now the Bombay the provisions of Land Requisiti6'n Ordinance, ascertain the nature and scope of the provisions, whether the act of requisition which section 3 of the Ordinance contemplates judicial or a purely is a administrative order. 1947, _and The title of the Ordinance shows that it was passed to provide for the requisition of land, for continuance requisition already made and for other purposes. The first preamble sets out the fact that the Governor General in exercise of the powers conferred on him the Government of India Act, under section 104 of 1935, has empowered all provincial land. The really gives the reason for passing of second preamble laws with respect to requisition of .legislatures (1) Per Esher L.J. in Queen v. Commissioners for the. Special Purposes of Income Tax, 21 Q.B.D. 313 at p. 319. 678 SUPREME COURT REPORTS [ 1950] 1900 Province o.f Bombay v. /(. S. Advani and Others. Mukherjea .7. session and circumstances that the Bombay Legislature the Ordinance ; it recites the Governor of Bombay is is not 1t exist which satisfied that to take immediate action to enable necessary for him to make provisions the Provincial Government for continuance of requisi requisitioning of land and lands already subject to requisition. Section 3 tion of of the Ordinance is the most material section for our present purpose and it stands as follows :- render "If in the opinion of it is necessary or expedient Government may by order land for any public purpose." the Provincial Government to do so, the Provincial in writing requisition any There worded thus: is a proviso added to the section which is land used "Provided that no for the purpose of public religious worship or for any purpose which the specify by notification Provincial Government may in the Official Gazette shall be requisitioned under this section." The left to land is itself and requisitioning taken along with the language of the section proviso indicates in my opinion, the act that whereas the executive discre latter can tion of the Provincial Government and it considers necessary or requ1S1t10n. land whenever expedient to do so, certain conditions have been down which are conditions precedent to the exercise the powers. The first condition is specified in the it postulates the existence of a public section purpose as an essential pre-requisite to the taking of steps by in the matter of the Provincial Government requisitioning any property. Even whe~e this condition there is another condition imposed by the is satisfied, proviso which the nature of an exception en the entire section and which prevents the grafted upon Provincial Government from exercising its powers at all if the land sought to be requisitioned is used public for any other purpose religious worship or which the Provincial Government has specified in the Official Gazette. S.C.R. SUPREME COURT REPORTS 679 In my opinion the existence of a public purpose as an objective fact, and not the subjective opinion of the Provincial Government that such fact exists, has been founds the juris made the essential preliminary which diction of the Provincial Government to proceed with any act of requisition. This would be apparent the collocation of words as they. occur in section 3 and also from other provisions of the Ordinance which indicate the scheme which the framers of the Ordinance had in view. 1950 Province of Bombay v. K. S. Adi,ani and Others. Mukhe~iea J. In that case ;,in order in writing. Section 3 does not say that if in the opinion of Provincial Government it is. necessary or expedient requisition land fqr any public purpose, it may do so it might be argued that it was left as a matter of subjective opinion to the Provincial Government to decide whether there was or not any public purpose justifying the requisition; al)d provided the authority acted in a bona fide manner, the Courts would have no say in the matter. The words "public purpose", it would be seen, have been placed at the end of the sentence, -and indicates that it is a thing collateral in, the act which has been described before, and which has been left to the. discretion of the executive. It is an independent fact, the existence of which enables the execuitve to move in the matter of requisitioning pro the personal perty, but it is opinion of the executive. I agree entirely with Chagla C. J. that the words "to do so" refer to the act of requisition, that is to~ say, to the nature of the act and not to the purpose for which it is done. There is no indication here, as statutes and regulations· which I have referred that not merely requisitioning property, but the existence of a public purpose which gives occasion for exercising the powers of requisition, is also a matter of personal opinion of the executive. the_ necessity or expediency of itself not dependent on to, and not in various to above included Reference was made in course of arguments the Indian Land Acquisition language of section 4 of Act, and similar provisions in other Land Acquisition 680 SUPREME COURT REPORTS [1950] 1950 Ptov u of Bombay v. K. S. Advani and Othars. M ukhlrjea J. enactments, where occurs. expression 'public purpose' It will be seen at once that the language of these prov1s10ns is material! y different from that of section 3 of the Ordinance. In Wijeyesekera v. Festing( 1 ) the Privy Council had to deal with a case under the Ceylon Acquisition of Land Ordinance. Section 4 of the Ordinance provides as follows: "Whenever it shall appear to the Governor that Land for any public in any locality is likely to be needed purpose, lawful for the Governor to direct the Surveyor General or other officer ........ to examine such land and report whether is fitted for such purpose." it shall be Section 6 then says : "The Surveyor General or other officer ...... shall make his report to the Governor whether the possession for which it of the land is needed appeared likely to be needed as aforesaid, and upon the receipt of such report it shall be lawful for the Gover nor with the advice of the Executive Council to direct the · Government Agent to take order for the acquisition of the land." the purpose The question raised was whether the decision of the Governor that the land is wanted for public purpose in the affir is final, and the question was answered mative. It seems clear that on the language of the two · sections referred to above no other answer was- possi ble. It is not the existence of a public purpose which is a condition precedent to the exercise of powers by the Governor under the Ceylon Ordinance. The Gover nor has been made the sole Judge of the existence of public purpose as well as of the necessity of acquiring land for that purpose. There is no condition limiting or restricting his powers in any way. The language of section 4 of Act of India begins with these words : is very much (1) (1919] A. C. 646. ' . the Land Acquisition the same. The section 1950 PrDVinu .! Bombay "· IC S. Advanei anJ Othm. Mukftij.a J. S.C.R. SUPREME COURT REPORTS 681 "Whenever it appears to the local Government is needed or likely to be needed land in any for any public purpose .... " locality Moreover, under section 6 (3) of the Act, a declara tion made by the Government that any land is needed for public purpose is conclusive evidence of the exis tence of such purpose. tribunal identical. In cases of What exactly is the extent of powers conferred by is to be the Legislature upon a body or the Legislature. gathered from the language . used by Mere similarity or even identity of objects cannot justify us in coming to the conclusion that the Legisla ture must have meant the same thing in one piece of legislation as it meant in another when the language is this description utmost stress should be laid on the actual words used, for there .is no presumption that the Legislature intended to confet one kind ·of power on the authority rather than another in 'lases of particular type. If there is -any preswnption at all it is in favour of the liberty ef the subject, and any law which encroaches upon such liberty must be construed strictly and should not be carried beyond what the actual words used mean in their plain grammatical sense. It may be pertinent to point out in this connection that a similar provision in section 3 ( 1) of the West Bengal Premises Requisi tion and Control Act, has been expressed in a different the actual existence of public purpose language and has not been made a condition precedent to the exercise of powers by the Provincial Government. The section is worded as follows : "Whenever it appears the Provincial Govern ment that any premises in any locality are needed or are likely to be needed for any public purpose, it may by order in writing requisition such premises." There has been a recent decision ( 1 ) of the Calcutta High Court on the above provision of the Bengal Act, but the particular point which has arisen . for our consideration in this case, was not and could not be raised there. (I) A.C. Mahoin4d v. SailendranaJh 54 C.W.N. 642. 5-6 S. C. India (N. D.)/58. 1950 Provinu of Bo-mlJay v. :A:. S. Advani and Others 682 SUPREME COURT REPORTS [1950] objective impression powers by deals with the Ordinance and instead of that it was not A conspectus of the whole of the Bombay Ordi leaves a clear to give an intention of the framers of unlimited and unfettered discretion to the Executive Government in the matter of requisitioning property. The powers are to be exercised within defined limits. restric Section 3 as stated above imposes at two-fold existence of tion, one by postulating the exercise of public purpose as a pre-requisite to excluding discretionary powers, the other powers altogether when the land is used for a public religious purpose. Thus the proviso which excepts the cases specified therein from the sphere of operation of the general provision of the entire section has also set up an objective condition, the existence of which would the Provincial the exercise exclude Government. Section 4 again requisition leaving it to the of v;icant premises executive to determine whether a premises is vacant or not .• sub-clause (i) gives an elaborate description of the circumstances under which vacancy would be deemed to arise law. The power of requisitioning vacant premises can be made only if the conditions laid down in section 4 are fulfilled. Section 8 deals with powers of enquiry for purposes of payment of com pensation as in section 6 and is not material for our purpose. Section 10 makes a general provision and section may, with a view to purposes of the Ordinance, by order, require any ·person to furnish any information in his possession relating to land requisitioned or to be requisitioned. This is certainly an enabling provision and I am unable to say that this provision by itself indicates that the function exercisable by the Provincial Government is a judicial in my opinion, function. The duty to act judicially is, implicit in section 3 itself. the Provincial Government under ;iny of is provided for carry out It must not be overlooked that the determination involves decision of the existence of on questions of both facts and .Jaw. As was observed by 'public purpose' 1950 Province of . Bombay y, K. S • .Advani and Others. Muk/rerjea J. S.C.R. SUPREME COURT REPORTS 683 Lord Loreburn in Board of Education v. Rice ( 1 ), "com paratively recent statutes have extended, if they have imposing upon depart not originated, the practice of the duty of deciding or ments or officers of State determining questions of various kinds. In the present instance, as in many others, what comes for determina tion is sometimes a matter to be settled by discretion involving no law. It will, I suppose, be usually of an administrative kind; but involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board to ascertain the law and also of Education will have to ascertain the fact." This was held by his Lordship to be a clear index of a duty to act judicially. sometimes it will It was suggested, in course of arguments that as admittedly the actual act of requisition is discretionary the Provincial Government, no writ of certiorari can possibly be issued. There is not much substance in this argument, for the very jurisdiction or authority is dependem on a condition to exercise discretion if unfulfilled would make the exercise precedent which of discretion void commonplace altogether. It feature of this class of legislation that an authority is to exercise both ministerial and quasi often required judicial functions. Whether administratively he acts throughout or is put at one· stage in a quasi-judicial position has to be gathered from the provisions of the Act. The case of Errington v. Minister of Health ( 2 ) is a leading authority which holds that the same pro ceeding may be administrative at one stage and quasi judicial at another. is a 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 requisi is an objective condition tion any property. As this 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 o£ facts and law which could (I) [1911] A.c. 179at p. 182. (2) [1935] I K.B. 249. 1950 Pr£·cinct o} nombay v. i:. S. Advatti and Otkrs. Mukhujra ]. 684 SUPREME COURT REPORTS [1950} application of well be determined by established principles of law to the circumstances of a particular is undoubtedly a lis or point in contro case. There versy-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 the same. having conflicting represents The fact material. If there is a duty to decide judicially it would be a judicial act, and it is not necessary that there must be in a regular or formal deciding authority appearing manner. that the Provincial Government two opposing parties other the public also to my mind interest.> of interests respect My conclusion, therefore, is that on the first point the decision of the High Court is right, and the contentions raised by learned Attorney-General must fail. t):ie If it has, The question now arises whether the Ordinance has conferred upon the Provincial Government to decide finally as a part jurisdiction or authority of the requisition proceeding itself whether .any public purpose exists or not. error, if any, committed by the Provincial Government, may be an error of fact or law, but would not be one of juris remedy might be open diction, and whatever other certiorari would to the aggrieved party, a writ of not lie. As has been said already, it is clear from the language ·of section 3 of the Ordinance that the act of condition precedent is requisition itself, provided the regard to which fulfilled, is a pure executive act, in an untrammelled discretion has been to the Pro vincial Government. If the state of fact exists which entitles the Provincial Government to act, the function that the Provincial Government exercises is a purely involve per administrative function, which does not formance of any judicial duty. In circumstance the existence of public purpose either a matter the Provincial Government of personal opinion of 19511 Provinc1 of .llt>m6ay v. 1.·. S. Advani snd Others. S.C.R. SUPREME COURT REPORTS 685 is wholly fulfilled before in which case no question of exerc1smg a judicial function at all arises, or independent of and collateral to the executive act and is an objec tive condition which must be Provincial Government in the matter. As I have stated pretation of section 3 of the Ordinance, the latter is to . take. This being the position, the proper view whether or not a public purpose exists is a preliminary question which is collateral to the merits of the exe cutive act which to be performed by the Govern ment under section 3 of the Ordinance. already, on a proper can take itself as a fact, and satisfy the Pro Public purpose must exist vincial Government must existence before it can take any steps in requisitioning property; but it is not for the Provincial Government to decide the matter finally or conclusively, and its decision on this preliminary point would be open to enquiry by superior courts. These principles are down in Bunbury v. Fuller ( 1 ) and Colonial Bank of Australasia v. Willan ( 8 ). By way of illustration of these principles reference may be made to two well-known English cases. ), Pease v. Chaytor ( 9 to apply licence under In Rex v. Woodhouse( •) there was an application to bring up an order made by Licensing Justices under the Licensing Act referring an application for renewal of a licence to quarter sessions. One of the points the Justices . raised in the case was whether or not in deciding the. applicants were qualified pro- 1840, which visions of the Beer House Act, applicant required resident holder and occupier of the dwelling house in which he should apply It was held to be by the majority of Judges in the Court of Appeal that the fact that the applicants were not the real resident holders of class to whom licences, whether absolute or conditional, could be granted and no erroneous decision on this the_ Beer houses excluded them from should be the licensed. (1) 9 Ex. Ch. lll. (2) 3 B. & S. 620. (3) [1874-] 5 P.C. 417 at p. 422 (4) (1900)12 K.B. 505. 686 SUPREME COURT REPORTS [1950] question of fact by jurisdiction . the Magistrates could give Reference was made by Fletcher Moulton L. J. to and Pease v. certain passages in Bunbury v. Fuller( 1 ) and it was held that if the licensing Magis Chaytor ( trates did decide these points of fact, it is the duty of the Court erroneous, to quash the licences and references. their decisions, to· review and if it ) 1950 . Proriince of Bombqy v. K. S. Adllani and OtMrs. MW.lrajea J. to· license justices them by their Surveyor, to The other case is that of Rex v. Bedford( 3 ), and it arose upon a rule for a certiorari to bring up an order of the Justices authorising the entry upon certain enclosed land for the purpose of taking materials for repair of cenain roads under sections 53 and 54 of the High ways Act, 1835. Under sections 53 and 54 of the Surveyor Highways Act, the Justices may of Highways to take materials for repair of the High ways "at such time or times as to such Justices may land of any person .... seem proper from the enclosed not being a park." On a licence being granted by the Newton Abbot Rural District Council, authorising materials for the repairs of the Highway from a place the said Parish, a rule known as Grange Quarry was obtained for a writ of certiorari to bring· up the order to be quashed, inter alia on the ground was made in respect of a land which was a park. It was held that the land was jurisdiction by find Justices cannot give themselves ing that. it was not a park. The question whether the place is a park or not is a matter which is preliminary jurisdiction, and one which to exercise of the Justices' is not for finally. "The to determine the Justices in the course of exercise of jurisdiction enquiry is not therefore falls but as a prelimina.ry to it. The case within the rule laid"down in Bunbury v. Fuller (' ) and the Justices' · decision . " review. It must be admitted that that the in fact a park, and exercise in both Justices the matter subject was no dispute (1) 9 E><. Ch. 111. (3) [1908) 1 K.B. 3[>5. (2) 3 B. & S. 620. (4) 9 Ex. Ch. 111. 1950 PrDllina of BombfJJJ v. K. S. Adt·ani and Ot/rzn. S.C.R. SUPREME COURT REPORTS 687 itself. the present quasi-judicial powers, and the only question was whe ther the facts upon which the exercise of jurisdiction was made to depend were preliminar{ matters collateral to the enquiry or were matters to be adjudicated 1 upon as fo the case before us the part of the enquiry act of requisition, as said already, is an executive and not a judicial act, and to this extent therefore case_ and no similarity between. referred to above. But the principles underlying authorities can certainly be invoked for our present purpose. The act of requisition being an executive the existence of a public act, purpose upon which the exercise of powers is depen dent is either a part of the executive act something . collateral I have attempted to ·show that it is a thing collateral and preliminary exercise of executive authority and not a part of it. That being so, conateral the determination of the executive authority which matter by is, in my regarded as judicial op1mon, a final and if the determination is erroneous, it can be corrected and removed by a writ of certiorari. the determination of function cannot be itself or to it. , learned requisitioned It may be stated here that before the the community as a whole, as opposed Judges of the appellate Bench in the High Court no attempt was made on behalf of the Government to establish that the premises in question were any public purpose. A public purpose involves benefit to the perso.qal gain or individuals. Housing of refugees may certainly be a public pur pose, and under certain circumstances even securing a house for an individual may be in the interests of the community, but it cannot be to the general interest of the property of on!! the community refugee for the benefit of another refugee. interest of particular to requisition The only other question that ed is whether a writ· of certiorari lies against vincial Government ? remains to be consider the Pro On this point the .contentions raised by Attorney-General fall under two heads. The the learned 688 SUPREME COURT REPORTS [1950] !9.'iO P1o;·ina~ ef Bomb~ v. K. S. Aduuii and Ol!.1:11. Mukhnj,. ]. that the expression "Pro branch of the argument is vincial Government" occurring in section 3 of Ordinance means the same thing as the Governor of the Province. This being Provincial Govern immunity enjoyed by in respect of all judicial processes under tion 306 (I) of the Constitution Act, and the powers of the High Court itself are restricted and respect by certain enactments. the position there is limited The other branch of the contention is that under the Constitution Act, no action of could be brought against the Province of "sue or be in section 176, do not include an appli section 176 of character Bombay, and in any view the expressions sued" as usccl cation for a writ of certiorari. "the this Part the outset As regards the first branch of the argument. it may that no definition of be pointed out at "Provincial Government" has been given in the term the Constitution Act, 1935, Part III of the Act deals (1) which with Governors' Provinces. Section 49 executive provides occurs authority of a Province shall be exercised on behalf either directly or of Hi.s Majesty by the Governor, through officers subordinate to him." Section 50 down that "there shall be a Council of Ministers to aid in the exercise of his functions, and advise the Governor required except in so far as he is by or under this Act to exercise his functions or any of them in his discre inter alia how the ministers tion." Section 51 provides are to be chosen and section 52 deals with the special the Governor: Section 59 (1) pro responsibilities of that "all executive action of the Government of to be taken in the name a Province shall be expressed of the Governor." The Governor the executive head of a are done in his name. Province and all executive acts This does not mean that Government of a Province 1s vested solely expressions t11e "Governor" and same meaning and connotation in the Constitution Act. "Provincial Government" have in the Governor, or that the 1950 ProviNCI oj Bombay v. K. S. Mvani lllld 01~rs. Mukherjea J. S.C.R. SUPREME COURT REPORTS 689 It is only a form adopted for purpose of convenience that in a Governor's Province, all acts of the Provin cial Government would be done in the name of the Governor, · no matter wherever under the Constitution, the responsibility might actually lie. Section 3 ( 43) (a) of the General Clauses Act (as amended by the Adaptation Order of 1947) which is relied upon in this connection does not in any way affect this position. It respects anything done or to be done says that "as ~ter the establishment of the Dominion of India, 'Provincial Ckwcmment' shall mean in the Governor's Province the Governor." This is· a mere description as from the fact that under the same will be apparent dause, the expression "Provincial Government" used with reference to a Chief Commissioner's Province means the Central Government.- Section 306 ( 1) of the is based on an absolutely Constitution Act however different principle and it is not concerned with acts of any Provincial Government no matter in whose name the acts are expressed to be taken. The section runs as · follows : from, any court the Governor-General, against "No proceedings whatsoever shall· lie in, and no pro India cess whatsoever shall issue the Governor . .against .of a Province, or against the Secretary of State, whether in a personal capacity or otherwise, and, except with the sanction of His Majesty in Council, no pro in India ceedings whatsoever shall against any person, who has been the Governor-General, the Governor of a Province, or the Secretary of State in respect of anything done or omitted to be done by any in performance · or .of them during his term of office purported performance of the duties thereof : ' in any Provided that nothing in this section to bring strued as restricting the right of any person the Federation, a Province, or the Secretary against .of State such proceedings as are mentioned in Chapter III of Part VII of this Act." shall be The lartguage of the section its whole object indicates is perfectly clear and to grant personal

1950. Provinct of Bombay v. K. S. Advani and Otlwrs. 690 SUPREME COURT REPORTS [1950} ceased to be against they have proceeding office. This part of immunity to the Governor-General, the Secretary of State or the Governor of a Province from all proceedings in or processes from any court in India, both during the term of their office and afterwards. The protection is. in the interests of the administration itself, 'for it would really be productive of disastrous consequences if the Governor-General or the Governor of a Province could be hauled up before any court in India in respect of acts· committed by them in their personal capacity or otherwise. That this protection is purely personal follows clearly from the latter part of the section which interdicts the Governor General, the Governor of a Province or the Secretary in office, of State, after for any act of omission or commission during term of section would be wholly devoid of any meaning, if the Governor of a Province, is to be s~onymous with the Provincial Government. The Govefrnor of a Province is certainly a part of the Government of the Province and formally he is the mouthpiece of all exe cutive acts done in the Province, but section 306 (1) does· not purport to protect any of the official acts. It grants a personal exemption to the Governor from any judicial processes in India, no matter whether arise out of official or non-official acts committed by this exemption continues even after he has him, and office, except where His Majesty ceased to be in chooses to relax I agree with the learned the rule. the High Court in holding that even the Judges of possibility of a misconstruction of section has been removed by the proviso engrafted on it, which lays down in clear tha( the provisions of the section shall not be construed as restricting in any way the right of any person to bring against the Federa tion, a Province, or proceedings as are mentioned in Chapter III of Part VII of the Act. the · Secretary of State The material provision in Chapter III of Part VII of contained in. section 176 and I will the Act is that come to that presently; but before I d~ so, it would 1950 Prooina of Bomb191 v. 11. S. Mvani tlllt! Others. Mukherj1a J. S.C.R. SUPREME COURT REPORTS 691 stated the East in Bengal this connection to section 1 of in Bombay. This at Fort William above, identifiable with be convenient to dispose of. the other point raised by the learned Attorney-General in connection with first branch of his argument. The point raised is that apart from , the protection afforded by section 306 (1) of the Constitution Act there is a limitation on the powers of the High Court, to grant processes against the Provincial Government and we have been referred India Company Act (21 George III, Ch. 17) and certain pro-. visions in the Act of 1823 under which the Supreme contention Court was established if as I again, in my opinion, would be of no avail, Provincial Government is not the Governor personally. It may be mentioned here that the Supreme Court was established the Statute (13 George III, Ch. 63) commonly known as ·the Regulating Act, and Court was issued by King George III on March 26, that there was conflict of 1774. It is a historical fact an unseemly character between the Judges of Supreme Court and the Executive Government headed by the Governor-General in Council. In view of this conflict an Act was pased in 1781 (21 George III, Ch. the Governor 17) section 1 of which provided General in Council in Bengal "should not be subject the Supreme Court for or by reason of any act or order or any other· matter of thing whatsoever counselled or orde~ed or done by them in their public capacity only." Bombay got its Supreme Court in 1823, under Statute, 3 George IV, Ch. 71, and clause VII laid down "that it shall be lawful for His Majesty to establish a Supreme Court at Bombay, be invested with such powers and authorities and pri- vileges, limitations, control. ....... as the said Supreme Court of Judicature at Fort William in Bengal by virtue of any law, now in force ...... is invested or subject to." the Charter establishing jurisdiction of restrictions The Charter expressly provided· that "the Governor the Governor-General enjoy the and Council at Bombay and Council of Fort William shall 1950 v Ji.. S. Moani tltUl Others. 692 SUPREME COURT REPORTS [1950] section It would be seen exemptions and no other from the authority of the Sup reme Court to be erected at Bombay as is enjoyed by the said Governor in Council at Fort William from the Judi cature of the Supreme Court of Judicature there already that these powers and dis established." Assuming abilities of the . Supreme Court continued even after the establishment of High Courts by reason of section 9 of the High Courts Act, 1861, and that these. limitations were implicitly recognised in section 106 of the Govern 223 of the 1915, and ment of India Act, Act of 1935, it is quite clear language of that they granted only the provisions set out above a personal exemption the Governor and Members of the Council. As the Governor in his personal capa city is different from the Provincial Government, these · provisions are of no '1-ssistance to the appellant in the present case. these exemptive in section 110 provisions were substantially embodied of the Government of India Act, 1915, and were later form in in a much more comprehensive on placed section 306( 1) of the Constitution Act. As the juris diction of the old Supreme Court was inherited by the Original Side of the three . Presidency High Courts, section 110 of the Government of India Act, 1915, granted Governor Original Jurisdiction of High Courts. both civil and the only exception being when there were criminal, charges of felony against these officials. Section 306(1) of the Act of 1935 is more comprehen sive and includes proceedings pr<;icesses of any kind either civil o.r criminal, and started either in the Original Side of a High Court, or in any other Court in , the mofusil. As there were no members of Council under the Constitution Act of J935, there is no mention of such members in section 306(1) of the Act. to · the Governor-General and members of treason and the Council exemption · The first . branCh of the contention advanced by learned supported. Attorney-General therefore cannot ' regards As the other branch of contention the · decision really hinges the appellant's S.C.R. SUPREME COURT REPORTS 693 construction of section 176 of Section 176(1) stands as follows: the Constitution Act. "The Federation may sue or be sued by the name of the Federation of India and a Provincial Govern ment may sue or be sued by the name of the Province, and, without prejudice , to the subsequent provisions of this chapter, may, subject any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred on that Legislature by this Act, sue or be sued in relation to their respective affairs in the Secretary of State in Council might have sued or been sued if this Act had · not been passed." 1950 Provi'itt1 of Bwibf!! v. K. S .. .4dvanf and Othm. Mukheijea J .. respect subject The first part of the sub-section relates to parties and procedure, and lays down in what form a suit is to be instituted against Government matters relating the Federation or Provinces of India. The latter part enacts statutory provision that might be made, suits WGuld lie against the Provincial Government in the name of the Province, and against the Federal Government in the name of the Federation of India, in relation to their respective affairs, where such suits would have laid against the Secretary of State in Council if the Act of 1935 had not been passed. The present pro ceeding which. has been started against the Province of Bombay, would therefore be competent if such pro the Secre ceeding could have been tary of State in Council under the law as it stood prior to the passing of the Constitution Act. instituted against The right and liability of the Secretary of State for India to sue or •to be sued were created for the first time by section 65 of Act 21 and 22 Victoria, Ch. 106, which was passed in 1858 on Government of India from the East' India Company to the Crown. The section runs as follows : transfer of "The Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate, and all persons and bodies politic shall and 1950 Province cf Bombay v. K. S. Advuni and Others. 694 SUPREME COURT REPORTS 1!.950] may have and take the proceedings legal and equitable of State in Council of India, as against the said company." suits, remedies against the Secretary they could have done the British The object of the Act was to transfer to Her Majesty the possession and government of territor ies in India which were then vested in the East India Company in trust for the Crown ; but as the Queen could not be sued in her own court, it was provided that the Secretary of State as a body corporate would have the same rights of suit as the East IndQ, Company had and would be subject the same liability of being sued as previously attached to the East India Company. in Council This provision of the Act of 1858 was reproduced in section 32 of the Government of India Act, 1915, m the foliowing terms : "(l) The Secretary oL State in Council may sue and be sued by the name of the Secretary of State in Council as a body corporate. (2) Every person shall have the same remedies against the Secretary of State in Council as he might have had against Government of India Act, 1858, and this Act had not been passed." India Company, if the East The question therefore narrows down to the character this as whether an action of that has been brought against the Province of Bombay could have been brought against the East India Company prior to 1858. In my opinion the answer to this question must be given in the relevant affirmative. All authorities on this point have been very carefully reviewed by the' learned Judges of the Bombay High in entire agreement with the reasons Court, and I am assigned by them in support of their conclusion. It is invested with powers and functions of a charac~r. They had on the one hand powers to trade as merchants; on . the other hand they had delegate<l them powers to acquire, retain and govern territories that the East India Company was carry on two-fold 1950 !'••vince of Bomb'!JI v. K. S. Mviini and Olher•. S.C.R. SUPREME COURT REPORTS 695 to raise and maintain armies and to make peace and in India. But the liability of war with native powers the East India Company to be sued was not restricted altogether to claims arising out of undertakings which might be carried on by private persons; but other claims if not arising out of acts of State could be entertained by civil courts, if acts were done under sanction of municipal law and in exercise of powers conferred by such law. The law on this point was discussed very ably by the Madras High Court in Secretary of State v. Hari Bhanji ( learned Chief Justice in course of his judgment contrasted .the decision in Secretary of State v. Kamachee Boye Saheba( a ) with that in Forester v. Secretary of State( 8 ). In the first of these cases, on the death of Raja Sivaji who enjoyed the status of a sovereign the East India ·Company seized the whole of his property as an escheat to the Paramount Power. A bill was filed by the widow of the deceased to recover. possession of the pro perties. It was held by the Privy Council that suit was not maintainable. ). The Lord Kingsdown laid down that the real point for determination in such cases was whether "it was seizure the Crown of the by arbitrary power on behalf of dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of muni cipal law ; or whether it was in whole or in part .a possession taken by the Crown under colour of legal title of the property of the late Raja of Tanjore in trust for those· who by law might be entitled to it on the death of the last possessor. On the facts of the case it was held that the seizure was an exercise of sovereign power effected at the arbitrary discretion of the company by the aid of military force and conse quently the court had no jurisdiction to try the case. In the other case the Government had recovered the lands held by one Begum Sumarco as a Jagirdar after her death and the plaintiff filed a suit to recover the property, on the basis of a deed of will ·executed by (!) [1882] 5 Mad. 273. (3) [1871-72] I.A. Supplement Vol., p. 10. (2) [1859] 7 M.I.A. 461. 1950 Pror;inu of 1Jomb41 v. K.S. Moani and Othns. Muklterjea J. 696 SUPREME COURT REPORTS [1950] suit was her. It was held by the Privy Council that ::.s Begum Sumaroo was not a Sovereign Princess and the act of resumption was done under colour of title of lands . previously held from Government by a subject, it was not an act of State, and tl1e quently triable by a civil court. As was observed by Lord Atkin in Eshugbayi Eleko v. Officer Administering the Government of Nigeria(' ), "This phrase (act of State) is capable of being misunderstood. As applied to an act of the sovereign power directed against another sovereign power or the subjects of another sovereign. power not owing temporary allegiance, in pursuance of sovereign rights of waging war or maintaining peace on the high seas or abroad, it may give rise to no legal the executive remedy. But as directed to subjects within jurisdiction it has no special meaning, and can give no immunity into tht from the jurisdiction of the court to enquire legality of the Act." to acts of territorial applied Much importance, cannot in my opinion be attached to the observations of Sir B. Peacock in Peninsular · v. The· and Oriental Steam Navigation Company Secretary of State ( ' ). In that case the only point for consideration was whether in the case of a tort com mitted in the conduct of a business the Secretary of State for India could sued. The question was answered in the affirmative. Whether he could be sued in cases not connected with the conduct of a business or commercial undertaking was not really a question for the court to decide. In the case before us the act of requisition which sanction of purports to have been done under municipal law, and in exercise of powers conferred by such law cannot be an act of State. An action on the ground of the powers being the Secretary of certainly have been brought against State, if the Constitution Act of 1935 had not been passed.· illegally exercised I am not much impressed by learned Attorney-General ( 1) [1931) A.C. 662, 671. the argument of the that the expression "sue or (1) [186lf5 Boin. H.C.R. App. !. S.C.R. SUPREME COURT REPORTS 697 in its plain grammatical be sued" occurring in section 176 does not include an application for a writ· of certiorari. The expression 'sue' "enforcement of a claim or civil right by means of legal proceedings." The proceedings may be initiated by a plaint or by a petition of motion, and cannot that what Constitution Act a proceeding which · must begin with in a and end decree as laid down in the Civil Procedure Code. section a plaint contemplates connotes 176 of 1950 l'rovince of Bom/Jay v. K. S. Aduani and Others. Mliklierjea J· No argument can also in.· my opinion be founded upon the fact that there was no express mention of prerogative writs in clause ( 13) of the Charter by which the Supreme Court was first established in Bengal. The Supreme Court was invested under clause (5) of the Charter with all the powers and privileges of the Court of King's Bench in England and these undoubt edly included the power of issuing certiorari and other prerogative writs. There are that the writs of mandamus were issued to the Directors of East India Company by the Court of King's Bench in England ( 1 · On the whole, it seems to me that the view taken by the learned Judges of the appeal Bench of Bombay High Court is right, and this appeal should stand dismissed with costs. reported cases to ) . ' DAs J.-ln my opinion this appeal should be allow ed. As I have taken a view different from those of three eminent Judges of the Bombay High Court and some· of my learned brethren of this Court, for all of whom I always have the highest respect, I consider it right to give the reasons for my conclusions in some detail. Du]. This appeal is directed against judgment and order of an appellate Bench. of the Bombay High Court (Chagla C. J. and Tendolkar J.) affirming an order of Bhagwati J. sitting on the Original Side of that Court. The order appealed from is a mandate in the nature of 1 ) Vide The King v. The Directors of East jndia Company, 4 B. and Ad. 530; The King v. Th4 Court of Dimtors of 1114 Eait India Company, 4 M & S. 279. ' ( 6 S. C. India (N. 0.)/)6 · 1950 Prouinet of Bombqy v. S . .Advani and Others. DaJ ]. 698 SUPREME COURT REPORTS 11950] a writ of certiorari quashing an order of requisition of a certain premises in Bombay made by the appellant in exercise of powers vested in it by ·Bombay Ordinance No. • V of 1947. There is no substantial dispute as the proceedings out of which the present ing up to appeal has arisen. They have been sufficiently stated in the Judgments just delivered and need not be re capitulated by me. to the facts Learned Attorney-General appearing support ~ the present appeal has confined himself to. two mam points, namely, (i) that, having regard to the provi sions of Bombay Ordinance V of 1947 under which the impugned order was made, a writ of certiorari does not lie at all, and (ii) that a writ of certiorari does not the Province of Bombay. Mr. Seervai lie against respondents has, quite properly, appearing for not sought to several subsidiary points which were unsuccessfully canvassed before the Courts below and his endeavour has been support the judgment under appeal on the two points mentioned above and to reasoning and rulings. raise any of them with reinforce The writ of certiorari is a very well known ancient high prerogative writ that used to be issued by the Court of King's Bench to correct the errors of inferior Courts strictly so called. It is with this writ that the Judges of the King's Bench used to exercise control over Courts of inferior jurisdiction where the latter acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Gradually the scope of these writs was enlarged so as to exercise strictly control over various bodies which were not, apeaking, Courts at all, •by statute vested with powers / and duties that resembled those of rhe ordinary inferior Courts. These statutory bodies were decisions were called quasi-judicial .acts and the Comt of King's Bench freely began to bdng µp ~he rccdl'.ds a11d, if of these quasi-judicial · bodies, examine for -this thought fit, quash them. The called quasi-judicial bodies @d but which were .them reason 1950 Proui11ce ef Bombay v. K. S. Advani and Others. Das :J. S.C.R. SUPREME COURT REPORTS 699 the Judges looked upon functions. The that were being the plausible plea extension of 'the scope of the writ of certiorari was the distrust with which numerous statutory bodies brought into existence and vested with large powers of affecting the rights of the subject and this extension was founded these statutory bodies is now exercised quasi-judicial well settled that a writ of certiorari will lie to control a statutory body if it purports diction or in excess of it or in violation of the princi ples of natural that, on a true con struction of the statute creating the body, it can be said to be a quasi-judicial body entrusted with quasi judicial functions. It is that a certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative in order therefore, necessary, functions. determine the correctness of the order appealed from, to ascertain the true nature of the functions entrusted to, the Provincial Government under and exercised by, the Ordinance in question. justice, provided to act without equally well settleJ It is, satisfied land already subject The title of the Ordinance was "An Ordinance to provide for the requidtion of land, for the continuance of requisition of land and for certain other purposes." The second preamble recited that the Governor of Bom bay was that circumstances existed which rendered it necessary for him to take immediate action to enable the Provincial Government to make provi sion for requisition of .1and and for the continuance of the requisition of to requisition. The Bombay Legislature not being in session at the date of this Ordinance instructions of the sub-section (1) Governor-General under of section 88 of the Act having been obtained, Governor of Bombay had legislative power and autho the Ordinance promulgated by him had, for rity and the legisla the requisite period, the force of an Act of ture. The Ordinance has replaced by an Act but this appea1 must be decided on the terms of the Ordinance which was in force at . the material times. The preambles to the Ordinance clearly indicated and the the proviso to since been 700 SUPREME COURT REPORTS [1950} the Ordinance had been promulgated under circums tances of considerable urgency. This is a fact which should be borne in mind in interpreting the operative provisions of the Ordinance . Section 3 of the Ordinance under which "3. Requisition of land.-If in the qpinion of the order of requisition was made was in the terms following : 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 Provin in the cial Government may Official Gazette section." specify by notification requisitioned • indeed, It is clear, and, there can be no dispute, that the words "If in the opinion of the Provincial Government" governed is necessary or expedient latter words might mean or imply had been left entirely to the Provincial Government. What then, were the meaning and implication of the words "it is necessary or expedient to do so"? that whatever those to do so" and the words "it op11110n of The main section read as a whole clearly implied a close and intimate correlation between the two parts, namely, the power conferred on the Provincial Govern formation of ment by the operative part and opinion as to the necessity or expediency for exercising that power under the earlier part of the section and this correlation was brought about by the use of the word "so''. in conjunction with the words "to do". To my mind, the words "to do so" covered and included within their meaning whatever Provincial Govern to do. By the operative ment had been authorised the Provincial Government had part of the section been empowered, not to requisition simpliciter but to requisition for a public purpose. The words "to do so" in the opening part of the sentence necessarily, there fore, referred to the act of requisitioning for a public purpose and therefore, it must follow, 19~0 l'rouince of Bom1'6:,Y .. r. S. A.Cuani ad Ot/,.rs. Das]. ,, / - 1950 Provines of Bombay v. K. S. Advani and Others. DasJ. S.C.R. SUPREME COURT REPORTS 701 necessity or expediency for requisitioning for a public purpose was left to the opinion of the Provincial Government. Strictly, as a matter of construction of the section, both grammatically and according to the necessary intendment of the Ordinance, as it appears from its language, the conclusion is irresistible that the words "to do so" meant and stood for the words "to requisition any land for a public purpose." It is to avoid the repetition of the words "requisition any land for any public purpose" that the words "to do so" were used in the earlier part. It would have served the purpose equally well if in the earlier part of the sentence the words "to requisition any land for any public purpose" had been used instead of the· words "to do so" and the words "do so" had been used at the end of the section instead ofthe words "requisition·· any land for any public purpose.". It appears to· me to be entirely fallacious to say that because the words "for a public purpose" were to be found at the end of the section, therefore, the existence of a public purpose' must have been a collateral fact which could not come within the scope of the formation of the opinion. The truth is that the earlier part of the section by the use of the words "to do so" included the question of a public purpose and the entire composite matter, namely, the necessity or expediency for requisitioning land for. a public purpose had been left to the subjective opinion of the Provincial Government. · Learned counsel for the respondents contends-and in this he has the judgments of the High Court in his favour-that although it had been left to the Pro vincial Government to form its own opinion as to the necessity or expediency of requisitioning land and to make an order of requisition founded on that opinion, the existence of a public purpose was· a . condition precedent to the exercise of the power and the ques tion of the fulfilment of the condition precedent had not been left to the subjective opinion of the Provincial Government but had to be determined as an objective fact by the Provincial Government before it pro ceeded to form its opinion and to make the order; · . ~o 19SQ a.,..., PrffillU ef ... X.S . .At/uani ..- Ot,..,.s. 702 SUPREME COORT REPORTS' [1950] The words "to do w", acC(>rding to learned counsel for the respondents, referred to the act of requisition on! y but not to the purpose of ~uch requisition. I am argument which unable appears to · the following several objections : to be open to accept to me line of (i) It overlooks the word "so" and gives no meaning to it. (ii) If that interpretation were correct then the section would have read as follows : ·•If in the opinion of the Provincial Government it is necessary or expedient to requisition any land, the Provincial Government may, by an order in writing, requisition any land· for a public purpose." is clear interpretation it So read, th~ section would mean that the Provincial Government vro~ld, iri order of sequence, first have form its opinion as to the necessity or expediency for re quisitioning any land without reference 'to any purpose. Qn this that the Provincial Government could not act directly upon the opinion .so formed, because the exercise of the Power depended on the eXistence of a public purpose as an objective fact which had yet to be determined. If that were to be so then what was the necessity for the anterior formation of opinion by the Provincial Government? to the necessity or ex A formation of opinion as pediency of a purposeless requisitioning would be entirely useless, incomplete and futile mental exercise, for such formation of opinion would not have in any way helped the Provincial Government in making an order of requisition at .all. (ii) According to the respondents' interpretation the existence of a public purpose as an objective fact ·. had to be determined first before the Provincial Govern the necessity or ment would form its opinion < as to expediency of land. This argument amounts to reading the section upside dOllfn .and in fact to recasting the section altogether. If that were the true intention of the Governor of Bomb:ly in promulgating this Ordinance, then the section would requisitioning a · particular 1930 Province of Bombay v. K. S. Adt'ani aru/ OtherS. Das]. S.C.R. SUPREME COURT :REPORTS 703 said-"If any is needed the opinion of for a public the Provincial purpose and Government it is necessary or expedient to requisition any particular land for that purpose, the Provincial Government may, by an order in writing reqJ.lls1tion land." The section as enacted, however, did not say anything of the kind. form its opinion (iv) It is said that this section postulated a public purpose · to exist and required the Provincial Govern ment to to the necessity or expediency of requisitioning land for that public pur pose. One can only last mentioned "rrive at proposition by interpreting the words "to do so" in .the way suggested by me and once that interpretation is adopted, the existence of a public purpose as well as the necessity or expediency of requisitioning land must both become the subject-matter of the opinion of the Provincial Government. ( v) If the existence of a public purpose had to be determined as an objective fact and if that determina tion were liable to the subjected to the scrutiny of the Court in legal proceedings, then such a .procedure would have quite effective! y frustrated the very object set forth in the second preamble by preventing the Pro vincial Government, proceedings, from taking immediate action for making provision for requisition of land and for the continu ance of the requisition of land already subject to requi sition. In this very case, the order of requisition which had heed made in February, 1948, is stiU in abeyance. by means of protracted judicially to determine (vi) The result of the interpretation suggested by the respondeIJts would be to hold that the Provincial Government had the existence of a public purpose as an objective fact before it proceed ed to form its opinion as to the necessity or expediency land. It is difficult to of requisitioning any particular appreciate how the Provincial Government would have proceeded to decide this issue. To whom would the Pro vincial Government give notice that it proposed to decide this issue of the existence or otherwise of a

19.\0 Proiince of s ... b'!J .. JCS. AtJ.-i imd Othtrs. Das]. 704 SUPREME COURT REPORTS [19501 public purpose? Who would be interested to deny the existence of such a purpose at that stage? None, sought for no particular person's land was to be requisitioned at could not arise until a person was actually threatened with a requisition order. An interpretation that leads to such an absurd and anomalous position_ cannot but be rejected. that stage. actually Indeed (vii) If contended to decide In· that case the Provincial issue as and when it Government had sought to requisition any particular land belonging to result will be still more a particular person, anomalous. the Provincial Government would be called upon to decide the self same issue as to the existence of a . public purpose as often and as many times as it, would need any land, for the decision in one case will ' not bind the owner of a different land. There would have to be as many decisions as to· the existence of a public purpose there would be number of plots of land to be acquired. Can anything be more absura than this ? j (viii) If the decision on the existence of a public purpose had to be made along with or simultaneously "With the formation of opinion as to the necessity or expediency for requisitioning any particular . it must be conceded that the two matters were corre lated to each other and then it will be absurd to sug ·gest that the intention of the Ordinance was to keep the two component parts in separate water-tight compart ments, one being required to be decided as an objective fact and the other being left to tl)e subjective opinion the absence of specific provision in express language such an anoma lous intention cannot be legislative authority. the Provincial Government. imputed In respondents cannot be adopted and The objections stated above quite definitely lead me to the conclusion that the interpretation suggested by they also fortify my view that the section must be construed in the manner I have mentioned. So construed, it would reatl as follows: 1950 Pro1ince of BOTflbay v. K. S. Advani a11d.Othm. Das]. S.C.R. SUPREME COURT REPORTS 705 "If in the opinion of the Provincial Government it is necessary or expedient to requisition any land for a public purpose, the Provincial Government· may, by an order in writing, requisition any land for a public purpose." Af> reached, left as much this construction to the opinion . of land. It seems clear authorities . and on principle, legislative authority meant, not remains, on escape from the conclusion that what had been left to the subjective opinion of the Provincial Government was a composite matter, namely, the necessity or expediency for requisitioning land for a public purpose. The Provincial Government was authorised to form an opinion on the entire matter and every component part of i~. In short the existence of a public purpose the Provincial foi: Governm~nt as was the necessity or expediency requisitioning any particular me · that there must be a public 'purpose as an objective fact to be determined be subject to the scrutiny of the Court but, that the Provincial Government should be of opinion that a public purpose existed for the advancement of which it was necessary or expedient to requisition land. In my opinion, the words "if in the opinion of the Provincial Government" necessity or expediency of making ari order of requisi tion. The formation of opinion on the entire matter was purely subjective, and requisition was to be founded · on this subjective opinion and as It will be such was a purely administrative useful, at this stage, to refer to. some of the judicial decisions which, as I apprehend them, fully support my above conclusions. judicially which determination was the purpose and the order of . governed both :ict. if the It is well established that simply confides the power of doing an act to a particular body if in the opinion .of that body it is necessary or expedient to do it, then the act is purely an adminis trative, i.e., an executive act as opposed to a judicial the absence of proof of or quasi-judicial act, and, in legislatiire / 1950 ProlliN4 If B ..... l!ff v. Du]. 706 SUPREME COURT REPORTS [1950] bad faith, interfere the Court has no jurisdiction with it and certainly not by the high prerogative writ of certiorari. Usually this discretion is confided by the use of expressions like "If it appears to," "If in the opinion of" or "If so and so is satisfied." In Mayor etc. of Westminster v. London and North ) Lord Halsbury L. C. Western Railway Company ( 1 observed: "Assuming the thing done to be within the ruscre tion of the local authority, no Court has power to inter fere with the mode 'in which it has exercised it. Where the Legislature has confided the power to a particular body, ·with a discretion how is to be used, it is beyond the power of any Court to contest that discre tion. Of course, that the thing done is this assumes the thing which the Legislature has authorised." To the like effect are the following observations of Batty J. in Balvant Ramchandra Natu v. The Secretary of State(' ) : "No doubt when a power has been conferred in language by Statute, the Courts cannot that of persons or- bodies sekcted unambiguous interfere with own discretion for by the Legislature for the purpose." substitute exercise language, such a case, Sometimes the Legislature may entrust a power to a specified authority to do an act for a certain pur the Legislature may, pose. Even in nevertheless, by appropriate leave not only the determination of the necessity or expediency for doing the act but also the determination of the neces sity or expediency for doing the . act for that purpoac as a composite matter to the opinion, satisfaction or discretion of that authority. In such a case what is a condition precedent for the doing of the act is not the actual existence of the particular purpose but opinion of the that the purpose exists. In other words the authority is also made the sole judge of the existence of the purpose, for other wise it cannot form its opinion as to the necessity or expediency of doing the act for that purpose. specified authority (') [1905) A.C. +26. (1) I.L.ll. [1905) Born. 4811, 511!1 1950 Prouinct ef B•mhay v. K. S. Aduani and Other•. Das], S.C.R. SUPREME COURT REPORTS In Wijeyesekera v. Festing( ) the Governor of Ceylon with the advice of his Executive Council made an order under the Acquisition of Land Ordinance, 1876, directing the Government agent to take order for the the Ordinance, of acquisition, under the provisions of part of the appellant's estate for a public purpose, namely, -the making of a road. The whole point in the case was whether Council was conclusive on the point that the land was wanted for a public purpose. The question turned on sections 4 and 6 of the Ordinance (No. 3 of 1876) relevant portions of which provided as follows : the decision of the Governor . "4. Whenever it shall appear to the Governor that land in any locality is likely to be needed for any public purpose, it shall be lawful for the Governor direct the SurveyofrGeneral or other officer generally or specially authorised by the Governor in this behalf, to examine such land and report whether the same is fitted for such purpose. other officer

6. The Surveyor-General, authorised as aforesaid, shall then make his report to the Governor whether the possession of the land is the purposes for which it appeared likely needed for to be needed as aforesaid. And upon receipt of such report it shall be ·lawful for the Governor, with advice of the Executive Council, to direct the Govern ment Agent to take order for the acquisition of the land." In delivering the the Board Lord Finlay approved of a previous decision of the Supreme Court of Ceylon and observed ·as follows: judgment of • "It appears to their Lordships that the decision of the Governor that the land is •wanted for public pur poses is final, and was intended to be final, and could not be questioned in any Court. The nature of the objection is such that it would be obviously unsuitable for the District Court, which is concerned with ques tions of compensation which would arise if the land is raised to be taken. But the question might also be (1} (1919] A.C. 646. 708 SUPREME COURT REPORTS [1950] 1950 Pr~z1int:e of Bombay ~. ;/(, S. Adva11i md Othn<. .Das]. suggested by Lord in a preliminary way, as was It might W renbury in the course of the argument. be raised by an application to the Court to stay the that although the further proceedings on the ground Governor in the Executive Council had made order, it was not a case where the condition precedent of the Ordinance was really fulfilled, namely, that the land was wanted for a public purpose . In their Lordships' opinion no such proceeding would be competent in such a case, and the decision of the Governor in Council, making an order under the latter part of s. 6 of conclusive." the Ordinance, His Lordship concluded- "When you have an enactment of that kind it shows that it was intended that the decision of the Governor in Executive Council on the point should be binding." The decision in Point of Ayr Collieries Ltd. v. ) which was a case.of requisition of an ( 4) of the Defence relevant parts of which Uoyd George ( 1 undertaking turned on reg. 55 (General) Regulations-the were as follows : is necessary "If it appears to a competent authority that m the interests of the public safety, the defence of the realm, or the eflicii=nt prosecution of the war, or for maintaining supplies and services essential to the life of the community, it take control on behalf of His Majesty of the whole or any part of .an the purpose of existing undertaking, and exercising such control, it is expedient that the under taking or part should be carried on in pursuance of an competent order made under authority may by order authorise any person (herein any part exercise, with respect to thereof specified functions of control on behalf of His Majesty as may be provided by the order •••. " to as an "authorised controller") the undertaking or the order, such this paragraph, that, for referred ( 1) [1943] 2 All E.R. 546. 1950 Province ef Rom bay y IL. S .• .fduoni and Others. Da,.]. s.c.a. SUPREME COURT REPORTS 709 An order under regulation having been made with ·respect to the appellant's undertaking, the appel lant brought an action impugning it on the ground, inter alia, that there were no adequate grounds upon which the Minister could find, as he stated he had take control that it was necessary found, namely, in the interests of the public safety, the defence of the realm, the efficient prosecution of the war or for main taining supplies and services essential to the commu nity. Singleton J. having dismissed action, appellant went up to the appeal Court. If the reason judgments under ings and the conclusions of appeal before us were sound and correct it could well have been held by the Court of Appeal in that case that the regulation postulated judici interests of public safety, etc., which had ally determined as an objective fact and that what had ·been left to the subjective opinion of the competent authority was only the necessity for taking control of the undertaking. This was, however, repelled and dismissing the appeal Lord Greene M. R. with whom Goddard and du Parcq L. JJ. concurred observed as follows: existence of to be · competent that may be, autherity the evidence before "If one thing js settled beyond the possibility of dispute, it is that, . in construing regulations of character expressed in this particular form of language, authority, whatever to decide as to whether or Ministry the exercise . of the powers has arisen. not a case for It is for the competent the · adequacy of competent authority to judge of the credibility of that the competent authority to judge evidence. to make whether or not it is desirable or necessary It is for further investigations before taking action. the competent authority to decide· whether the requires an· immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation. All these matters are . placed by Parliament in the hands of the Minister in the belief that the Minister will exercise his powers properly, and judge of It is is for it. It 710 SUPREME COURT REPORTS [19501 1950 P1ovince of Bombay v. .K. S . .A.dvani .and Others. Das]. in the knowledge that, if he does not do so, he is liable criticism of Parliament. One thing is certain, to the is that those matters are not within the competence of this Court. is the competent autho to come to that is selected decision, and if that decision is come to in good faith, this Court has no power interfer, provided, of course, that the action is one which is within the four corners of the authority delegated to the Minister." It by Parliament There is no us if it is properly construed in the language substantial difference of reg. 55(4) and that of the Bombay Ordinance now before way I have indicated above .. Even if it were possible, on an overmeticulous analysis, in the difference, the position is put beyond doubt decision of the English Court of Appeal in Carltona Ltd. v. Commissioners of Works and Others( 1 ). The deci sion turned on reg. 51 (l) of the Defence (General) Regulations which was in the following terms: to detect any and read in "A competent authority, if it appears to authority to be necessary or expedient so to do in the interests of the public safety, the defence of the realm efficient prosecution of the war, or for maintain or the life of the ing supplies and services essential community, may land, and may give such directions as appear to the competent in connection authority to be necessary or expedient with the taking of possession of that land." take possession of any to the There is no substantial difference at all between and section 3 of the Bom language of this regulation If the reasonings bay Ordinance as construed above. of Chagla C. J. and Tendolkar J. were correct, the words "so to do" in the above regulation would refer only to the act of taking of possession, for, according to them, the interests of the public safety etc. do not describe the nature or character of that act but constitute the purpose for which the competent authority was to do the act of taking possession. On that line of reason ing the regulation could be equally said to postulate (') [1943] 2 A.E.R. 560. S;C.R. SUPREME COURT REPORTS 711 the existence of the interests of the public safety etc. as conditions · precedent to the exercise of the power and it could be said that the fulfilment of those conditions precedent had to , be determined quasi-judicially to be subject and interference Coon. All reasoning was rejected by Lord Greene M. R. with the concurrence of Goddard and du Parcq L.. JJ. in the following words: to the scrutiny this line of 1950 l'rovince o./ Bombay v. /(. S. Moani mid Others. Das]. that, ' pedient and that authority makes ''The last point that was taken was to this effect, that the circumstances were such the requisition ing authorities had brought their minds to bear on the matter, they could not possibly have come to the con cliision to which they did come; That argument one which, in the absence of an allegation of bad faith -and I may say that there is no such allegation here It has been decided · that, -is not open to this Court. where a regulation of this kind commits to an execu tive authority the decision of what is necessary or ex- the decision, it is not competent to the Courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so, it would mean that the Courts would be made responsible for carrying on the executive Government of this- country these important matters. Parliament, which autho rises this regulation, discretion to decide and with that discretion if bona fide exercised no Court can Court can do is to see that the power which it is claim ed to exercise is one . which falls within the four cor ners of the powers given by the Legislature and to see good faith. Apart that those powers are exercised in from that, at all to inquire into the reasonableness. the policy, the sense or any other aspect of the transaction." the Courts have no power the executive interlere. All commits Vedlapatla Suryanarayana v. Province of MadraJ(1) is a Full Bench decision of the Madras High Court. 6 of the Land Acquisition Act and It discussed section the Provincial Government held that the decision of ( 1) ~-L-R. [1946] Mad. 153; A.I.R. [1945] Mad. 394. l9jQ ProlJi,ftCe ~f Bomia;· v. K. S. Ad11ani and Othe,s. Dos}. 712 SUPREME COURT REPORTS [1950] that the land was required for a public purpose was final. ) Robinson v. Minister ning( 1 instructive. and Country Planning that case. The relevant Act were as follows: of Town and· Country Plan The provisions of the Town Act, 1944, were considered section 1 of that portions of "Where the Minister of Town and Country Plan ning (in this Act referred to as the Minister) is satisfied that it is requisite, for the purpose of dealing satisfac torily with extensive war damage in the area of a local planning authority, that a part or parts of their area, to his satisfaction to have consisting of land shown together with sustained war damage or of such land other land contiguous or should be laid \mt afresh an<l redeveloped as a whole, an order the land in such a pan of their declaring all or any of area to be land subject compulsory purchase dealing with war damage may be made by the Minis ter if an application in authority from such date as the Minister may by order appoint as being the date when the making of such applications has become practicable." the expiration of five to him before is made by that behalf adjacent thereto, the · of fact lands should be and could be said to be subject It will be noticed that the power to make the order was subject to the satisfaction of the Minister not only that it was requisite laid out afresh but that it was requisite "for the purpose of dealing satisfactorily etc." which Wlquestionably was a question objective determination yet, it was held by the appeal Court, overruling an earlier decision of Henn Collins J. in another case necessity for laying out the lands afresh as well ;is the purpose of dealing was Minister, that he was the sole judge, that no objective test was possible and that the decision of the Minister was an administrative act. Franklin v. Min1ster for Town and Country Plan ning( 1) was concerned with section 1 (1) of the New that the entire matter, namely, the satisfaction of (') [1947] l A.E.R. 851. (1)[1947] 2 A.E.R. 289; [1948] A.C. 87. 1950 Pro;ince of Bombay v. K. S. Advani and Others. Das]. S.C.R. SUPREME COURT REPORTS 713 Towns Act, 1946, the relevant _portions of which ran as follows: satisfied, authorities who "If the minister is after consulting with appear to him to be concern any local ed, that it is expedient any area of land should be developed as a new town by a Corporation established under this Act, he may make an order designating that area as the site of the proposed new town." in the national interest Here what was left to the satisfaction of the Minister was not only whether it was expedient that any· area should be developed as a new town but whether it was expedient in the national interest that any area should be so developed. If the present arguments were sound it couid be held in that case that the section postulated interest to be determined the existence of national judicial! y as .an objective fact and that it was a condi tion precedent It was, however, held by the. House of Lords that. no judicial or quasi-judicial duty was imposed on the Minister in those duties be the discharge ing purely administrative. to the making of the order. of his statutory duties, The case of Httbli Electricity Co. Ltd. v. Province of Bombay( 1 ) may also be referred to. Relevant portions of section 4, sub-section (1) of the Indian Electricity Act, 1910, provided: "The Provincial Government may, revoke a license in its opm1on the public interests require, following cases, namely : (a) Where the licensee, in the opinion of the Provin cial Government makes wilful and unreasonably pr<> longed default in doing anything required of him by or under this Act." Couid anything be more objective than the require ments of public interest or the wilful and unreasonably prolonged default? And yet in construing the section their Lordships of the Privy Council observed : "Their Lordships are unable to see that there thing in the language of (1) (19-!8) L.R. 76 I.A. 57; A.I.R. 1949 P.C. 136. the sub-section or is any 7-6 S. C. India (N.D.)/58

19.iO Prm·ilfCe •f Bombay v. K. S. ~Jl'Mli and Others. Das]. 714 SUPREME COURT REPORTS [1950] the opinion of to which it relates on which to objective tests. In terms the the Government-not subject-matter to found the suggestion the opinion of the Government is to be subject relevant matter is grounds on which the opinion is based. The language leaves no room for the relevance of a judicial examina tion as to ·the sufficiency of the grounds on which the Government acted in forming an opinion. Further, the question on which the opinion of the Government is relevant is not whether a default has been wilful and unreasonably prolonged but whether there has been a default. On that wilful point the opinion is the determining matter, and-if it is not for good cause displaced as a relevant opinion it is conclusive." and unreasonably prolonged The recent case of A. C. Mohamed v. Sailendra Natk Mitra(') may also be referred to. It was concerned with an order of requisition of certain premises except the ground the West (Temporary Provi Bengal Requisition sions) Act, 1947, which runs as follows: floor made under section 3(1) of and Control to the Provincial Government "Whenever it appears that any premises in any locality are needed or are likely to be needed for any public purpose, it may, by such premises. Provided order in writing, requisition the purpose of that no premises exclusively used for religious worship section.-" requisitioned under find no difference between the language of thi• I section and that of section 3 of the Bombay Ordinance as construed by me. It is quite clear that what was left to the opinion of the Provincial Government was not the need of the premises simpliciter but the need of any premises for a public purpose as a composite matter. If the present arguments were sound, it could the existence of a public purpose . and to the opinion of the Provincial Government was the need , of the premises for that public purpose. It was, howe\·er, held by a Division Bench of the Calcutta High Court held that the section postulated that what was left (') (1950) 54 C. W. N. 652. 1950 Prolfince of Bombay v. K. ~· Advani and Othn-s. v .. 7. S.C.R. SUPREME COURT REPORTS 715 quite rightly-that -and I think the local Government was exercise of the power that satisfied as to the existence of the condition precedent to the exercise of its powers. it sufficed particuiar enactment, of a public the interest the exercise a question of fact it does not follow of any power conferred on it, and To summarise: It is abundantly authorities cited above that questions of fact such as the of the purpose or existence public safety or the defence of the realm or the efficient prosecution of the war, or the maintenance of essential supplies and the like may well be and, indeed, are often left to th~ subjective opinion or satisfaction of the executive authority. Merely because such a matter involves at all that it must always, and irrespective of the language determined judicially as an objective fact. When the Legislature leaves it to an executive authority to form an opinic~n on or to be satisfied about such a matter as a condition act upon such opinion, what is condition precedent is, not the actual existence of the matter but, the sub jective opinion or satisfaction of the executive authority that it exists. The cases above, clearly establish this much that when t~e Legislature leaves it to the opinion or, satisfaction of the executive authority as to whether it is necessary or expedient to requisition land for a . public purpose the executive authority judge of the composite matter, is· constituted the sole that is to say of the existence of the public purpose the necessity or expediency for requisition as well as ing the land for that public purpose, call it a condition precedent or an objective fact or what you will. On a proper of section 3 of the Bombay Ordinance (No. V of 1947) there can be no doubt that the Provincial Government to form its own opinion on the entire •matter, namely, to requisition whether it was necessary or expedient the formation of opinion on opinion. So construed, thereon was the act founded the whole matter and (i.e., executive) nothing but a purely administrative, land for a public purpose and to ~ct upon construction referred to section left it to 716 SUPREME COURT REPORTS [1950} 1950 ProDince of Bombay v. IC S. Adfani ad 01/rns. Das]. act. H the acts were . done in good faith and within the Court cannot the four corners of the Ordinance, interfere with it in any proceeding and far less by prerogative writs of certiorari or prohibition. If there be any Ji.ardship the appeal of the subject must be to the Legislature and not to the Court. The first and the major head of the arguments advanced on behalf of the respondents must, therefore, fail. unsupported question was It will be convenient to dispose of at once only as true to information evidence, 'anci11ary points. In the petition a bald suggestion was and belief made, verified by any legal Provincial Government had made the order ma/a fide and for a collateral purpose. The petitioner gave evidence in Court. There is nothing in the evidence which may support any pica of bad faith on the part of the P.rovincial Government or its officers. All that was said was that Mrs. C. Dayaram to whom the requisitioned premises had been allotted was the wife of an advocate from Karachi, and was a refugee and that the petitioner did not ·know whether her husband had also migrated from Karachi. At an adjourned hearing to whether Mrs. li>ayar:llll was concerned in any manner whatever with the administration of Government of Bombav or was a public servant. The purpose of the que~tion was perhaps to establish that she was in a position to influence the Government officers. The petitioner fairness replied that he was not aware if she were. In the evidence there is nothing from which it can be t;lken as proved that the Provincial Government and faith. Sec.ondly, it was its officers had acted in bad suggested that the Provincial Government had not · ·acted within the four corners of the Ordinance in that, on its own sho"l(l'ing, there was no public purpose at all for which the order was made. Bhagwati J. expressed the view that the requisitioning of ·a .Bat for a parti cular or individual ·refugee was ·not a public purpose, for there was no question of serving the general interests of the community. On appeal Chagla C. J. disagreed with the above view. .In his opinion the housing of a 1950 Ptovince ef Bombay v. K. S. Advani and OtMrs. Das]. S.C.R. SUPREME COURT REPORTS 717 27, It has to be refugee. The "similar impugned letter dated February individual refugee might learned Chief Justice went on to say there were the Government. The refugee might certainly be a public purpose, for secur ing a house for . an itself a benefit on the community as a whole. In this confer learned Chief Justice was manifestly right. opinion the But the choosing one refugee as against another without any ostensible cause would not constitute a public purpose in question could be requisitioned. for which the flat This conclusion, with great respect to the learned Chief Justice, appears to be founded on a slight confusion of ideas. this was not a remembered that solitary order of requisition made by the Government the public purpose of housing refugees. The peti 1948, tioner's Solicitors' orders" clearly stated issued by itself shows ex f acie order was made generally purpose It was housing." "public not in terms made for the benefit of any particular individual Mrs. C. Dayaram was the next step and as such the allotment of the flat already to a parti the preceding cular refugee cannot possibly vitiate order of requisition. To say allotment was made the order of requisition to her, must have been made interest is to act on suspicion which is not permissible. The flat had to be allotted to a refugee for purposes of his or her petitioner himself was housing. The fact a refugee has been stressed before us and it has been said that it w:ts a novel way of solving . the refugee problem by ousting one refugee and putting in another. There is no evidence as circumstances to the of the petitioner and Mrs. C. Dayaram. For all we she may have been a more deserving person whose needs were more urgent than those of the peti tioner. The point is that it lies heavily on the person who challenges ·the bona fides of a public authority or acted outside who contends legal evi its powers dence. He cannot succeed by leaving to establish his case on cogent authority had allotment of requisitioned the matter that the relative in her seeing 19-'lO Prnii11t:1 of Bomba;· v. K. S . .A.dvani and Ot!urs. Das]. 718 SUPREME COURT REPORTS [1950] the air and to the ingenuity of his counsel in creating an atmosphere of mere suspicion, which falls far short of legal proof. the power of the assumption that I now pass on to the second head of argument which is based on the existence of a public purpose had not been left to the subjective opinion of the Provincial Government but was objective fact which was a condition precedent to the requisition. What conse exercise of this assumption? The contention quences follow from that the fulfilment of this con of the respondents to be determined by dition· as an objective fact had that being the Provincial Government the Pro thus charged with a quasi-judicial function the high vincial Government became amenable prerogative writ of certiorari in case it acted wid1out excess of it or in violation of the jurisdiction or in principles of natural justice. The question, therefore, tests for ascertaining whe to what are arises as ther the act of a statutory body is a quasi-judicial act or an administrative act. judicially and As to what is a quasi-judicial act many judicial pronouncements. May · C. J. v. Dubline Corporation(•) act as follows : described there have heen in Queen a quas;-judicial judicial "In this connection not ' neceosarily mean acts of a Judge or legal- tribun-;;l · low, hut the determination of matters of sitting for for purpose of this question, a judicial act seems to be an act done by competent authority upon tion of facts and circumstances and imposing liabilit"y l considera- : or affecting the rights. And if there be a body em-, powered by law to enquire into facts, make es~ilpates I to impose a rate on a district, it would seem to me 1 the acts of such a body involving such consequ- ' ence would be judicial acts." ----- ~------ - -· Lord Atkinson in Frome Unitt:d Breweries v. Bath f1Htice1( ') approved of this definition as one of the best definitions. The definition that now holds (') (1878) 2 !r. R. 371. (') [1926] A.C. •,s6. 1950 Province of Bo1nbay v. K. S. Advani and Others DasJ. S.C.R. SUPREME COURT REPORTS 719 field is that of Atkin L. J. as he then was, in Rex v. Electricity Commissioners (1). lt runs as follows: "Whenever 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 jurisdiction of the King's Bench the controlling Division exercised in these writs." This definition was accepted as correct in Rex v. London County Council(') and by many learned Judges in subsequent cases including the latest decision of the Privy Council in Nakkuda Ali v. M. F. De S. Jaya In Banwarilal's case(') I had occasion to ratne ('). analyse the essential characteristics of a quasi-judicial act as opposed to an administrative act. I stand by what I said on this point on that occasion. As I pointed out there, the two kinds of acts have many common 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 adminis trative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as a 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 satis faction of the executive authority, as was done in the several Ordinances, regulations and enactments consi dered and construed in the several cases referred to above. The first two items of the definition given by Atkin L. J. may be equally applicable to an (!) [19•4] 1 K.B. 171. (2) [193!J 2 K.B 215. \~) \\%~\ !>~ Cl.W .11. ~~~. 14) (1943) 48 0 W.N. 766 at pp. 799-801, 1950 Province of Bombay v. K. 8. Advani and Others. Das J. 720 SUPREME COURT REPORTS [1950] 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. As was said by Lord Hewart C. J. in R. v. Legislative Committee of the Church Assembly('): "In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially." in N akkuda Ali's case ('). Therefore, The above passage was quoted with approval by Lord Radcliffe in delivering the judgment of the Privy Council considering whether a particular statutory 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. When and under what circumstances then can a statutory body be said to be under a duty to act judicially? An examination of the decided cases shows that in many of them where the statutory bodies were held to be quasi-judicial bodies and their decisions were regarded as quasi-judicial acts there were some parties making a claim under the statute and some parties opposing such claim and the statutory authority was empowered to adjudicate upon the matters in issue between the parties and to grant or refuse the claim. Thus in Th~ Queen v_. The Local Government Board (') the contestmg parties were the County Council of Wexford on one side and Webster & Leary on the other side and the Local Government Board was the statutory authority to decide whether the latter were entitled to higher salary. In Rex v. Woodhouse (') the contest was between the applicants for renewal of licence and certain brewers and the Justices of Leeds were to decide whether the licence should or should not be renewed. Reference may also be made to the cases of Rex v. Post- (1) [1928) 1 K.B. 411 at p. 415. (2) (1950) 54 C.W.N. 883. (B) (1902) L. R. 2 Ir. 349. (4) [1906) 2 K.B. bOl. 1950 Province of Bombay v. K. S Advani aiid Others. DasJ. S.C.R. SUPREME COURT REPORTS 721 ), Rex v. London County Council (2 master General (1 ) and Rex v. Hendon District Council('). Even in Rex v. Boycott (') it may be said that the Statute there con templated a contest between the Local Education Society and the boy who was alleged to be imbecile and whose father was entitled to notice under the regulations before a certificate was issued against the boy. It is not necessary to multiply instances. The point to note is that in each of these cases there was a lis-a proposition and an opposition-and the statu tory authority was authorised to decide the question and in each of these cases the decision was regarded as a quasi-judicial decision. Indeed in some of the cases the necessity of a lis between two or more par ties has been referred to or even insisted upon. Thus in Errington & others v. Minister of Health (5), Maugham L.J., as he then was, said: " In determining whether the position of the Minister is that which I have described as being quasi-judicial, I think it is necessary to appreciate that under a clearance area scheme, to which objec tions are made by the owners of the property in the area, there is a true contest as between the owners of the property and the local authority ; in other words, there are two sides as between whom the Minister has to come to a determination after consideration". The following passage judgment of Greer L.J. in that case quoted with approval by Swift J. in Frost & others v. 1vlinister of Health(') takes the matter a little further in that line : " In so far as the Minister deals with the matter of confirmation of a closing order in the absence of ob jection by the owners, it is clear to me, and I think to my brethren, that he would be acting in a ministerial or administrative capacity, and would be entitled to make such enquiries as he thinks necessary to enable him to make up his mind whether it was in the public interest that order should be made. But the position, in (!) [1928] I K.B. 291. (2) [1931] 2 K.B. 215. \~\ ll9~U1i1\.,B.696. (4) [1939] 2 K. B. 651. 15) [l 939] 2 K.B. 249, 271. (6) l1935] l K.B. 286, pp. 292-S. 1950 Province of Bombay v. K. S. Advani a.nd Others. DasJ. 722 SUPREME COURT REPORTS [1950] my judgment, is different where objections are taken by those interested in the properties which will be affected by the order if confirmed and carried out. It seems to me that in deciding whether a closing order be made in spite of the objections which have been raised by the owners, it seems to me reasonable that the Minister should be regarded as exercising quasi· judicial functions". Swift J. in accepting the above statement added: "I accept that from the moment an objection is made the Minister is exercising quasi-judicial func tions, but it seems to me to be clearly recognised by the Court of Appeal that up to the time of objection being made the Minister acts in an administrative, and not a judicial, capacity." local authority. Under the Housing Act, 1930, the local authority submits a clearing order to the Minister. If no objec tion is raised by the owners of the property the Minister considers the matter and either confirms or modifies the order of the In the absence of objection the Minister, according to those two decisions, acts in an administrative capacity. Why? Because there is no lis in the sense of two oppos ing parties. There is only a proposal by the local authority. But if objection is raised by the owner, the Minister, according to these cases, in deciding the matter, acts judicially. Why? Because there is a lis between two contending parties, namely, the local authority and the owner which has to be decided by the Minister. It is true that in Franklin v. Minister of Town and Country Planning(') the House of Lords held that under the Statute the Minister at no stage acted judicially, and, therefore, the actual decisions in these two cases cannot be sustained. But, never theless, I have quoted the above passages only to illustrate the reasons and the principle on which the act of a statutory body empowered to decide disputes betweed two contesting parties was held to be quasi the Ministers' Powers judicial. The Report of 'judicial' and Committee the words in defining (I) [1947) 2 A.E.R. 289; [1948) A.O. 87; 11947) 176 L.T. 312, 316, -.. l950 Province of Bombay v K. S. Advani and Others. DasJ. S.C.R. SUPREME COURT REPORTS 723 'quasi-judicial' which definition was accepted by Scott L. J. as correct in Cooper v. Wilson (')stated: "A true judicial decision pre-supposes an existing dispute between two or more parties and then involves four requisites ...... A quasi-judicial decision equally pre-supposes an existing dispute between two or more parties and involves ...... " This definition of a quasi.judicial decision clearly suggests that there must be two or more contesting parties and an outside authority to decide those dis putes. The fo!lo\ving observations of my Lord the Chief Justice then sitting as a Single Judge in the Bombay High Court, in Kai Khushroo Sorabjee v. The Commissioner of Police(') in which an order made under the Defence of India Rules was under considera tion, are relevant on this point : "It appears to me that unless the authority in-1 vested with the power to pass an order had to act judicially, i.e., to weigh a question from two sides and decide on the matter, no question of quasi-judicial act can arise. The two sides cannot include himself as he is the deciding authority." In Franklin v. Minister of Town and Country Planning('), while it was before the Appeal Court, Lord Oaksey L.J. said : " In all the authorities which have been referred to as showing that at an enquiry there must be an examination of the case of both sides, there was what has been called a lis : that is to say, there were two parties contesting and the Minister as an outside authority, was deciding the case." In the very recent case of Patri Shaw v. R.N. Roy(') a Division Bench of the Calcutta High Court dissented from this very Bombay case (5) which is now before us and emphasised the necessity of a lis between two parties for making the decision of the authority a quasi-judicial act. il) [1937] 2 K.TI. 30J, 340. 12) (1947) Born. L.R. 717; A.LR. 1947 Bom. Wl. (~I (J0i71 176 L.T. srn, 316. w (1950) 54 o.W.N. Bf5, (5\ (1949) 51 Bom. L.R, 342. 1950 Province of Bombay v. K. 8. Advani and Others. Das J. 724 SUPREME COURT REPORTS [1950] there were not On the other hand there are many cases where the act of a statutory authority has been accepted as a quasi-judicial act although opposing parties over whose disputes the authority was to sit in judgment. In those cases it was the authority who made a proposal and another person objected to it and the authority itself was entrusted to hear the objection and give a decision on it. In short the authority which was the proposer was the judge in its own cause. The only ground on which the decision of such an authority, placed in such situation as I have just mentioned, was regarded as a quasi· judicial act was that the authority was em powered to affect the rights of or impose a liability on others and was required by the very law which constituted it to act judicially. To take a few illus trative cases: The Queen v. Corporation of Dublin(') was the case before May C. J. for quashing a borough rate by certiorari. Here the contest was between the Corporation on one side and the ratepayers on the other. It was the Corporation which, under the Act, was empowered, after consideration of facts and cir cumstances, to impose a borough rate, a liability of the ratepayers. The provisions of the relevant statutes are not set out in the report and it is difficult to say precisely what duties had been imposed on the Corpo ration before it could impose liability on ratepayers. I, therefore, pass on to the case of Rex v. Electricity Commissioners (') in which we find the celebrated defi nition of Atkin L. J. It will be noticed that in this case also there were not two parties apart from the Commissioners. Indeed the Commissioners themselves proposed the scheme and the companies took objection to it an.d the Commissioners after holding the local enquiry and hearing the objections had to make the final order. It will also be noticed that the local en quiry was to be held by the Commissioners themselves. The only principle on which this decision rests is that the Commissioners had power to do something which affected the rights of others and that they were required (1) (1878) 2 L.R. Ir. 371. (21 [1924] I K.B. 171. ,., S.C.R. SUPREME COURT REPORTS 725 1950 Province of Bombay v. by the statute itself to hold an enquiry, hear objec tions and evidence in support thereof and make their final decision after considering all facts and circum- stances. Take the case of Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust('). The K, s. Advani contest was between the appellant as owner and the and Othm. respondent Trust as the authority making an adverse declaration with respect to the appellant's building. By the very provisions of the statute the respondent Trust was made the judge in its own cause. It was, to entertain objections, hear however, directed evidence and then decide the issue. It is this last mentioned circumstance on which this decision rests. It is needless to multiply instances, for, I think, these cases sufficiently illustrate the position. DasJ. What are the principles to be deduced from 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 be ing 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. In other words, while the presence of two parties besides the deciding authority will Prima jacie and in the absence of any other factor impose upon the ill [1937] 3 A, El,~. ~'!1 \l'.C.J. 93 1950 Provine~ of Bombay v. K. 8. Advani and Others. DasJ. 726 SUPREME COURT REPORTS [1950] authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. Mr. Seervai relied on two cases, namely, Rex v. Hendon Rural District Council(') and Rex v. London County Council(') as '.establishing that although the statute itself may not require an inquiry yet the deci sion of the authority may be a quasi-judicial act. In the second case although there were no express provi sions for inquiry in the statute itself, the rules framed by the Theatre and Music Hall Committee had made elaborate provisions for notice, advertisement, opposi tion and hearing in public and liberty to examine and cross-examine witnesses. In the first case notice was actually given, objections were invited and the parties In any case, in both the cases, as I had appeared. have already pointed out, there was a lis between two contending parties apart from the deciding authority and the decision of the authority affected the rights of the parties and can, therefore, be well supported as a quasi-judicial act on the principle first enunciated. The question I have now to consider is whether the act of the Provincial Government under the Bombay Ordinance satisfied either of the two tests. In the case before us there were not two parties so as to make up a lis in the usual sense. Here the Provincial Govern ment had been authorised to requisition land for a public purpose and the respondent's father whose interests were prejudicially affected opposed the re quisition. The case, therefore, did not satisfy the test of a quasi-judicial act based on the presence of two parties apart from the Provincial Government. Chagla C.J. obviously felt the difficulty and tried to get over it by introducing the State as a party, as if, under the Government of India Act, 1935, the State was a legal entity apart from the Provincial Government. This introduction of a fiction is wholly unconvincing and cannot be supported. The Ordinance under review (1) [1933) 2 K.B. 696. (2) [1931] 2 K.B. 216. • S.C.R. SUPREME COURT REPORTS 727 did not contemplate or permit such a fiction. The bald fact has to be faced that in this case there was an absence of two contending parties apart from the Pro vincial Government which was the deciding authority. This, as I have said, is, however, not decisive, for it has yet to be enquired whether the case satisfied the second test, that is to say, whether the Ordinance re. quired the Provincial Government to act judicially. 1950 Province of Bombay v. K. 8. Advani and Others. J)as J. Turning now to the provisions of the Ordinance, it is contended that it is implicit in section 3 that the existence of a public purpose must be determined judicially. The argument may be summed up thus: The existence of a public purpose as an objective fact was, under the main body of section 3, a condition precedent to the exercise of the power of requisition, just as the non-user of land for any of the purposes mentioned in the proviso to section 3 or the vacancy of the premises under section 4 were conditions prece dent. This condition precedent being an objective fact, it had of necessity to be determined by the Provincial Government in a quasi- judicial manner. The first part of the argument wholly overlooks the difference in the language used in the main body of section 3 and that used in the proviso to that section and that used in section 4 of the Ordinance. The proviso to section 3 placed certain lands outside the ambit of the power conferred on the Provincial Government by the main body of that section. If the Provincial Government purported to exercise its power of requisition with respect to land which fell within the proviso on an erroneous belief that it did not, then the Provincial Government overstepped the limits of its powers and the order of requisition would not bind anybody and could be challenged by suit as wholly without juris diction. Likewise, under section 4 the Provincial Government's power of requisition had been confined in its range to vacant premises and if the Provincial Government purported to requisition premises as vacant premises which in fact were not vacant premises then also the Provincial Government entered the forbidden field and went beyond its power and its 1950 Province of Bonibay v. K. S. Advani and Others. Das J. ,. 728 SUPREME COURT REPORTS [1950] decision would not bind any body and could be challeng ed by a suit. This would be the position in the two cases I have mentioned, because there was nothing in the proviso to section 3 or in section 4 which could sug gest that the question of the fulfilment of the condi tion precedent, namely, the non-user of the land for any of the purposes mentioned in the proviso to section 3 or the vacancy of the premises under section 4, had in any manner been left to the subjective opinion of the Provincial Government. But, as I have already stated, the main body of section 3, on a correct con struction of it, expressly left the question of the exis tence of the public purpose along with the question of the necessity or expediency of requisitioning land to the subjective opinion of the Provincial Government, and, therefore, its decision, if made in good faith, could not be questioned at all. The circumstance that the fulfilment of the condition precedent laid down in the proviso to section 3 or in section 4 had not been left to the opinion of the Provincial Government could not affect the question of construction of the language used in the main body of section 3 or alter the nature or character of the act under that section. The first part of the argumcat overlooks this aspect of the matter. The second part of the argument proceeds on the assumption that an objective fact can never be left to the subjective opinion of a specified authority and must always be determined judicially. The cases already referred to in connection with the first head of arguments clearly show that the question of the exis tence of a public purpose or the interests of the State and the like may well be, and, indeed, often are, left to the subjective opinion or satisfaction of the specified authority and in such cases its decision, in the absence of bad faith, cannot be challenged in any proceeding. Even if the matter be not left to its subjective opinion, nevertheless, as already pointed out, an administrative authority has frequently to come to a de cision in its own mind as to the objective facts such as the existence of a public purpose or the like as a step in its administrative the process of the exercise of ,,..,·· S.C.R. SUPREME COURT REPORTS 729 · L 1950 DasJ, . in ueen v. T' Q Province of Bombay v. powers. That decision, if erroneous, will not bind any body and may be questioned in an action. See the l B o bservahons of Palles C. Government Board('). The mere fact that the exis- tence of a public purpose is a condition precedent to K. s. Advani the exercise of the power of requisition will not neces- and Others. sarily make the decision as to its existence a quasi judicial act. There is no warrant for saying that the fulfilment of the condition precedent to the exercise of an administrative power must necessarily and always be determined judicially by the authority invested with the power. The authority decides it for its own purpose and in case of dispute the final decision rests with the Court-a circumstance which also supports the view that the authority has no duty to decide it judicially. In my opinion, even on the assumption that the question of the existence of a public purpose had not been left to the subjective opinion of the Pro- vincial Government, and that the question had to be determined by the Provincial Government, there was nothing in section 3 to suggest that such determination had to be made judicially at all. The observations of Lord Radcliffe in N akkuda Ali's case(') at p. 887 are also instructive and helpful on this point. Mr. Seervai then draws our attention to sections 10 and 12 of the Ordinance on which he strongly relies in support of his contention. It should be borne in mind that Mr. Seervai has not contended that the order for requisition by itself was a quasi-judicial act. His con tention has been that this power to make the order was subject to a condition precedent, namely, the existence of a public purpose which alone had to be established judicially as an objective fact. It will, therefore, have to be seen whether the sections relied on have any bearing on the question of the determination of the existence in fact of a public purpose. The sections ran as follows :- , "10. Power to obtain information-(!) The Pro vincial Government may, with a view to carrying out the purposes of this Ordinance, by order require any (1) [1902] L.R. 2 Ir, 349, (2) 119501 54 C.W.N. 883. 1950 Provine~ of Bombay v. K. S. Ad1;ani and Others. Das J. 730 SUPREME COURT REPORTS [1950] 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 required to furnish such informa tion as is referred to in sub-section (1) 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 or 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 Ordin ance." In considering and construing the above sections it has to be borne in mind that a mere provision for an enquiry as a preliminary step to coming to a decision wi!J not necessarily make the decision a quasi-judicial act, for the purpose of the enquiry may only be to enable the deciding authority to make up its mind to do what may be a purely administrative act. Take the case of Robinson v. Afinister of Town and Country Planning (') to which reference has already been made where the act of the Minister was held to be an administrative act. Lord Greene M.R. said at p. 859: "As an example of the difference to be found in the subject-matter dealt with in different statutes I may point out that this case is different from a case where a Minister is given the duty of hearing an appeal from an order such as a closing order made by a local authority. This is not !he case of an appeal. It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his (1) [1947] 1 A. E .R. 851. 1950 Province of Bombay v. K. S. Advani and Others. DasJ. S.C.R. SUPREME COURT REPORTS 731 to misunderstand opm10n on whatever material he thinks fit, whether obtained in the ordinary course of his executive func tions or derived from what is brought out at a public enquiry if there is one. To say that, in coming to his decision, he is in any sense acting in a quasi-judicial the nature of the capacity is process altogether. I am not concerned to dispute that the enquiry itself must be conducted on what may be described as quasi-judicial principles, but this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself, i.e., the making of the order. The enquiry is only a step in the process which leads to the result, and there is, in my opinion, no justification for saying that the executive decision to make the order can be controlled by the Courts by reference to the evidence or lack of evidence at the inquiry which is here relied on. Such a theory treats the executive act as though it were a judicial decision (or, if the phrase is preferred, a quasi-judicial decision) which it most emphatically is not.'! In Franklin v. Minister of Town and Country reference has already Planning ('), to which also been made, Lord Thankerton at p. 295-296 said : "In my opinion, no judicial or quasi-judicial duty was imposed on the respondent, and any reference to judicial duty or bias is irrelevant, in the present case. The respondent's duties under section 1 of the Act and Schedule I thereto are, in my opinion, purely adminis trative, but the Act prescribes certain methods of, or steps in, the discharge of that duty. It is obvious that, before making the draft order, which must con tain a definite proposal to designate the area concerned as the site of a new town, the respondent must have made elaborate inquiry into the matter, and have consulted any local authorities who appear to him to be concerned, and, obviously, other departments of the Government, such as the Ministry of Health, would naturally require to be consulted. It would seem, accordingly, that the respondent was required to satisfy (II [1947] 2 A.E.R. 289; [1948] A.O. 87. 1950 Provinee of Bombay v. K. S. Advani and Others. DasJ. 732 SUPREME COURT REPORTS [1950] himself that it was a sound scheme before he took the serious step of issuing a draft order. It seems clear that the purpose of inviting objections, and, also, where they are not withdrawn, of having a public inquiry, to be held by some one other than the respond ent, to whom that person reports, was for the further information of the respondent, in order to the final consideration of the soundness of the scheme of the designation, and it is important to note that the development of the site, after the order is made, is primarily the duty of the development Corporation established under s. 2 of the Act. I am of opinion that no judicial duty is laid on the respondent in dis charge of these statutory duties, and that the only question is whether he has complied with the statutory directions to appoint a person to hold the public in quiry, and to consider that person's report." Keeping in view these weighty observations I now proceed to analyse the provisions of the two sections. to exercise It will be noticed that the powers given to the Provincial Government under both the sections are only enabling and in terms are not compulsory. The Court below has construed the word ' may ' as 'must' on the hypothesis that a right implies a corresponding duty and the Provincial Government is, therefore, the power and under an obligation consequently an enquiry is compulsory. I am unable reasoning. The authorities to accept this line of show that in construing a power the Court will read the word ' may ' as ' must ' when the exercise of the power will be in furtherance of the interest of a third person for securing which the power was given. Enabling words are always potential and never in themselves significant of any obligation. They are read as compulsory where they are words to effectuate a legal right. See Julius v. Lord Bishop of Oxford('). Here the power was given to enable the Provincial Government to obtain information to carry out the purposes of the Ordinance. It was not given for the (1) (1880) 5 App. C•s. 2U. ,.. 1950 Province of Bombay v. K. 8. Advani and Others. DasJ. S.C.R. SUPREME COURT REPORTS 733 benefit of any other person including the owner of the land sought to be requisitioned. When a power is given to one person, here the Provincial Government, for his own benefit, couched in enabling words making its exercise optional, there is no principle or authority that I know of which enables the Court to make the exercise of the power compulsory by reading the word 'may' as 'must'. Assuming, however, that 'may' in these sections means 'must,' what follows? It is true that the information could be obtained antler section 10 with a view to carrying out the purposes of the Act but what was the nature of the information that might be gathered under the section? It was only information relating to the land requisitioned or to be requisitioned that could be obtained. Information relating to the land would certainly be useful in enab ling the Provincial Government to consider the neces sity or expediency of requisitioning that land. Such information would also be useful the officer determining the question of compensation. But how could any information relating to any particular land have any bearing on the question of the existence of a public purpose which was the only matter under sec tion 3, which, according to Mr. Seervai, had to be judicially determined by the Provincial Government? I fail to perceive any. As I have said, information relating to land certainly had a bearing on the ques tion whether it was necessary or expedient to acquire that particular land which admittedly was a purely administrative act. Finally, section 10 enabled the 'any person' to Provincial Government to require furnish information relating to the land. The Ordi nance did not think fit even to mention the owner or other persons interested in the land as a specific source of information. Assuming that the Provincial Govern. ment was obliged to make any enquiry, the owner of the land had no special right to be consulted apart from the general right of "any person." No provision was made for giving notice of the intended requisiticn by special notice or by advertisement or for enabling ;my aggrieved person to lodge any objection and nobody 91 1950 Province of Bombay v. K. S. Advani and Others, Das .J. 734 SUPREME COURT REPORTS [1950) was designated as authority on whom was cast any duty to hear the objections. Further, it will be noticed that under the section the information was to be furnished to such authority as might be specified, which means that the information was not to be com municated to the Provincial Government direct. Therefore, the information was nothing more than the information obtained for the Minister by somebody appointed by him to hold a public enquiry under the statutes which were considered in Robinson v. Minister of Town and Country Planning (1 ) and Franklin v. Minister of Town and Country Planning('). The circumstance that by sub-section (2) of that section a legal obligation, on pain of criminal penalty, was imposed on persons to furnish information, so strongly relied on by Mr. Seervai, appears to me to have no bearing on the character or scope of the inquiry envi saged by sub-section (1). The provisions of section 12 also carried the matter no further. This section was also an enabling section. The inspection was in terms for the purpose of determining whether, and, if so, in It can have what manner an order should be made. no possible bearing on the question of the existence of a public purpose which is an independent question having no necessary relation to any particular land. Further, presumably, a number of premises might have to be requisitioned and, if the contention of the res pondent were correct, there would have to be as many quasi-judicial determinations of the existence of the same public purpose as there might be the number of houses to be acquired-a proposition impracticable and absurd on the face of it. Finally, compare the provi sions of sections 10 and 12 with those of section 6. The determination of the question of compensation and the apportionment thereof were certainly judicial or quasi judicial acts. There was a provision for appeal also. Section 16 provided for making rules for holding the inquiry under sub-sections (I) and (3) of section 6. The circumstance that the Ordinance provided for judicial or quasi-judicial inquiry for the purposes of section 6 11) (1947) 1 A. E. R. 851. 12) (1948) A. r.. 87. 1960 Province of Bombay v. K. S. Advani and Other~. Das J. . . ;~ S.C.R. SUPREME COURT REPORTS 735 but was silent as regards section 3 cannot be over looked. the Ordinance the determination of the entire composite matter was left In my judgment, the Ordinance did not require the Provfocial Government to act judicially at all in the matter of making a requisition order under section 3. The provisions for obtaining information and for get ting inspection under sections 10 and 12 respectively cannot be read as provisions for a judicial or quasi judicial inquiry, nor was such so called inquiry obli gatory at all. Those sections served and were intended to serve the purpose of obtaining information which would enable the Provincial Government to exercise its administrative, i.e., executive function of making an order for requisition. The conclusions I have arrived at are (i) that on a true construction of section 3 the exis the necessity or tence of a public purpose and expediency for requisitioning any particular for that purpose was a purely administrative act, to the opinion of decision, if made in good faith, could not be questioned; (ii) that, apart from the question of construction and assuming that the matter had not been left to its opinion, the existence of a public purpose or the necessity or expediency for making the order could not be regarded as a quasi. judicial act, because (a) there was no lis in the sense of dispute contesting parties to be decided by the Provincial Government ; and (b) the Provincial Government was not required by the Ordinance to hold any judicial inquiry or to act judicially and that the determination of the exist ence of a public purpose was only a step in the process of the exercise of the administrative power and, if erroneous the decision could at best be challenged by an action, but a certiorari would be a wholly inappro priate remedy. The second head of argument must, therefore, be rejected. the Provincial Government, and the determination of between There is the last head of argument which requires consideration before I conclude. The argument is that 1950 Province of Bombay v. K. 8. Adva.ni and Others. .Das J. 736 SUPREME COURT REPORTS [1950] the existence of a public purpose was a condition precedent to the exercise of the power and, therefore, the fulfilment of the condition precedent had to be determined judicially by the Provincial Government as an objective fact but the Provincial Government could not, by wrongly deciding the preliminary point, assume jurisdiction to exercise the power. In Bunbury v. Fuller(') Coleridge J. laid down: "Now it is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends and however its decisions may be final on all particulars making up together that subject-matter which, if true, is within its jurisdiction, and however necessary in many cases it may be for it to make a preliminary inquiry whether some collateral matter be or be not within the limits, yet upon these preliminary questions, its decision must always be open .to enquiry in the superior Court." This was cited by Blackburn J. in Pease v. Chaytor ('). The same principle was also laid down by the Privy Council in Colonial Rank of Australia v. W illan ('). The principle is quite plain but as Lord Esher M. R. pointed out in Reg. v., Commissioner of Income-tax(') "its application is often misleading." The learned Master of the Rolls classified the cases in two categories thus : "When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal that, if a certain or body. It may in effect say state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, jurisdiction to do such things but it shall have is not for them conclu not otherwise. There to decide whether that state of facts exists, sively (1) 9 Ex, 111 at p. 140. (2) 3 B. & S, 620. (3) [1874] L. R. 5 P. C. 417. (4) (1888) 21 Q.B.D. 313. S.C.R. SUPREME COURT REPORTS 737 1950 Province of Bombay v. K. 8. Advani and Others. Das J, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to deter mine whether the preliminary state of facts exists, as well as the jurisdiction, on finding . that it does to proceed further or do something more. exist, When the legislature are establishing such a bunal or body with limited also have to consider whatever give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erro neous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, in cluding the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." jurisdiction, jurisdiction -1 Mr. Seervai contends that the present case falls with in the first class of cases and strongly relies on Rex v. Woodhouse (') and Rex v. Bradford (') as establishing that a certiorari lies to correct the error of the Provin. cial Government. There are two answers to this argu ment. In the first place, it is not disputed that the formation of opinion as to the necessity or expediency of requisitioning any land is a purely subjective matter and that the order of requisition founded on that opinion is an administrative act. What is contended is that the existence of a public purpose must be judi cially determined by the Provincial Government be. fore it could proceed to exercise its administrative powers. In short qua that issue only the Provincial judicially. The conse Government was quence of this argument is that the decision of the Provincial Government on this issue was not a decision to act (!) (1906] 2 K. B. !01. (2) [1908) 1 K. B. S65, 19llO ProvincB of Bombay v. K. S. Adva.n\ and Otht1rs. DasJ. 738 SUPREME COURT REPORTS [1950] on a collateral matter but a decision on the issue itself which, according to the argument, had been left wit?in the jurisdiction of the Provincial Government to decide. It must, therefore, follow that the case fell within the second class of cases mentioned by Lord Esher M.R. The fact that there is no right of appeal from this decision, although the Ordinance provided for an appeal under section 6, is also significant. Before coming to the decision on this issue the Government had sent an Inspector to gather information under section 10 and the Respondent's father, the original applicant, furnished all necessary information and produced the original Deed of Assignment on which he founded his title and gave a written statement. The requirements of the Statute had been complied with and the petitioner had his say. The decision of the Provincial Government that a public purpose existed given in such circumstances became, in the absence of bad faith, binding and, in the absence of any right of appeal, was conclusive, however erroneous the decision might have been. The second answer to Mr. Seervai's the case fell that, assuming that contention within the first class of cases and the erroneous decision could be corrected, it might have been cor rected by an action but certainly not by certiorari. The two cases relied on by Mr. Seervai, when properly understood, can have no application to the facts of the In Rex v. Woodhouse (1) the Court of case before us. Appeal accepted the position that the licensing Justices in granting or refusing to grant the licence had to perform a quasi-judicial act, for they had to decide the matter as between two contending parties, namely, the applicant for licence and the persons opposing the grant. There the Justices granted a provisional licence and referred the matter to Quarter Sessions. Three points were taken, namely, (i) that the Justices did not apply their mind to the issue and failed to decide the matter judicially but made the order in pursuance of a pre.existing agreement between them and the Cor poration, (ii) that the] ustices were biased and (iii) that (ti ll906] 2 K.B 501, S.C.R. SUPREME COURT REPORTS 739 1950 Province of Bombay v. K. S. Advani and Others. Daa J, the power of the Justices being limited to granting licen ces to persons who had some specified qualifications, they could not, by wrongly deciding applicants had the necessary qualifications, assume jurisdiction to do the quasi-judicial act of granting the licence. This decision of the Court of Appeal was reversed by the House of Lords in Lord Mayor etc. of Leeds v. Ryder (1 ) on the ground that the Justices had to act according to their own discretion and that they were not guilty of any bad faith in doing what they did. The point to note, however, is that the decision of the Court of Appeal proceeded on the footing that the Justices were a quasi-judicial body and that by wrongly deciding a preliminary fact they assumed to discharge their quasi-judicial function of granting the licence and it was the quasi-judicial act of granting the licence that was brought up and quashed by certiorari. The case of Rex v. Bradford (') also proceeded on in granting the licence to the District Council to take away stones etc. the Justices were exercising a quasi-judicial function and they assumed jurisdiction to exercise that quasi-judicial function by wrongly deciding the collateral fact that the land in question was not a park. The same remarks apply to Rex (Greenaway) v. Justices of Armagh('). All these cases in the appeal Court were cases where a quasi judicial body purported to assume jurisdiction to discharge its quasi-judicial function by an erroneous decision of a collateral fact and, therefore, certiorari was granted to correct the error of jurisdiction by quashing the order itself which was a quasi-judicial act. In the case now . before us the Provincial Gov ernment was functioning as an administrative body doing an administrative act, namely, forming its opinion as to the necessity or expediency of requisi tioning land and making an order of requisition based If the existence of a public purpose on that opinion. was a collateral fact, then at best it was a case of an (2) [1908] l K.B. 365. the footing (3) (1924] 2 Ir. R. 55, (11 [1907] A.O. 420. 1950 Provinca of Bombay v. K. S. Advani and Others. Das J. 740 SUPREME COURT REPORTS [1950) administrative body assuming jurisdiction to perform its administrative powers by erroneously deciding the collateral fact as to the existence of a public purpose. In such circumstances the two cases relied on by Mr. Seervai can have no possible application. Assum. ing that this case fell within the first class mentioned by Lord Esher M. R. this erroneous assumption of jurisdiction to do an administrative act might have been corrected by an action but certiorari cannot It is said possibly bo: the appropriate remedy. in deciding the collateral fact the Provincial Government was acting judicially and, therefore, certiorari might go. The argument will take the res pondents nowhere, for, assuming that the decision on the question of existence of a public purpose was a quasi-judicial act, that decision, at the most, might be quashed but the administrative act, namely, the for mation of opinion and the order based thereon would remain unaffected, for certiorari would not affect it. The passage I have quoted from the judgment of Lord Greene M. R. in Robinson v. Minister of Town and Country Planning, clearly establishes that although the preliminary enquiry had to be done in a quasi judicial manner, that fact could not alter the nature or character of the ultimate administrative act. That administrative act would remain an administrative act and could not be touched by certiorari. The third head of arguments advanced on behalf of the respond ents must, therefore, also fail. In my judgment the first of the two points raised by the learned Attorney-General orr behalf of the appellant must prevail for reasons stated above. This is sufficient to dispose of this appeal and the second point, namely, whether a writ of this nature can lie against the Pro vincial Government, does not arise. In view of the fact that the Government of India Act, 1935, has been repealed and the provisions of our Constitution on this point are different from those of the Government of India Act, the question has also become academic for future purposes and I express no opinion on it. -·· 1950 Province of Bonibay v. K. S. Advani and Others, Das J, 1950 Oc~. 12. S.C.R. SUPREME COURT REPORTS 741 I, therefore, agree with my Lord the Chief Justice that this appeal should be allowed and the judgments and orders of the Courts below should be set aside and the petition should stand dismissed. I also agree to the order for costs made by my Lord the Chief Justice. Appeal allowed. Agent for the appellant: Ranjit Singh Narula. Agent for the respondents Nos. 1 (a) and 1 (b) : Rajinder Narain. lIN THE SUPREME COURT OF INDIA (HYDERABAD).] CO-OPERATIVE SOCIETY OF DEBTS v. NANDLAL [MEHR CHAND MAHAJAN and R. s. NAIK JJ.J Co-operative Cr<dit Societies Act, 1340 ]!'., (Hyderabwi), s. 42 --Award-Remission by Registrar to Civil Court for execution Poicers of Registrar-Instal1nent decree-Defa'U,lt-Exer:tltion pro· ceedinas for whole amount in Civil Oourt-P(,wer of Registrat· to a.ccept instalment and direct Civil Oottrt to stop proceedings. Section 42 of the Co-operative Credit Societies Act, 1340 F., {Hyderabad) provided as follows: "If an award g:ven by the Registrar or by a person nominatecl by him, or by a comruittee of arbitrators is not acted upon, then tbe Registrar can J~ave it enforced-(a) through a civil court on a certificate issu~d by him. The civil court will treat the award in the satne way as itB own decree; l_b) through a Revenue Court or officer by issuing a certi ':ficate to that court or officer." Held, that under the section the Registrar was not in the same position as a court passing t.he decree unUer the Civil Pro cedure Code in the matter of execution of the decree and be does not possess all the powers of an executing court. Where a dispute arose bet,veen a m<:mber of a society and the society and an arbitrator appointed under the Act passed a decree for payruent of a certain sum in six monthly instaln1ents with a condition that if default was made in the payment of any inRtaln1ent the who!e amount will become due, and under the provisions of s. 42 the decree was sent for execution to the Civil Court au a. certificate of Registrar : 95