Judges: H.J. Kania, C.J., Saiyid Fazl Ali, M. Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea and Sudhi Ranjan Das, JJ.

Facts:

The Government of Bombay issued an order requisitioning the subject flat under Section 3 of the Bombay Land Requisition Ordinance, 1947 (Ordinance of 1947).

The subject requisition order was challenged in a writ petition before High Court of Bombay. A Single Judge granted writ of certiorari and quashed the subject requisition order. On appeal, the appellate Court confirmed the order of Single Judge with regard to the issue of the writ of certiorari against the appellant.

Present appeal is directed against the judgment of the appellate Bench of the Bombay High Court.

Issues:

(i) Having regard to the provisions of Ordinance V of 1947, whether the order of requisition in question was quasi-judicial or only administrative?

(ii) Whether a writ of certiorari can be issued against the Government of Bombay in present case?

(iii) Whether the order of requisition in question was made for a public purpose?

Laws:

Bombay Land Requisition Ordinance, 1947 - Section 3 - Power of Provincial Government to requisition any land for any public purpose.

Contentions:

Appellant

(i) Having regard to the provisions of the Ordinance of 1947 under which the requisition order was made, no writ of certiorari would be at all available in law.

(ii) Order complained of is a ministerial or administrative order which does not involve exercise of any judicial or quasi-judicial function and to a purely administrative order of this character, no writ of certiorari lies.

(iii) Even if assuming that the Provincial Government has any semi-judicial function to exercise while making an order under Section 3 of Ordinance of 1947, the question as to whether the requisition was for a public purpose or not, was a question of fact. The Provincial Government was competent to entertain and decide the same, under the terms of the Ordinance itself. No writ of certiorari

would lie to bring up an order of the Provincial Government on the ground that its decision on this point was erroneous or unsound.

(iv) Expression "Provincial Government" occurring in Section 3 of the Ordinance f 1947 means the same thing as the Governor of the Province. This being the position there is complete immunity enjoyed by the Provincial Government in respect of all judicial processes. A writ of certiorari does not lie against the Province of Bombay.

Respondent

(i) Whenever there is the determination of a fact which affects the rights of parties, that determination is a quasi-judicial decision, and, if so, a writ of certiorari will lie against the body entrusted with the work of making such decision.

(ii) Existence of a public purpose was a condition precedent to the exercise of the power to make an order of requisition.

Fulfilment of this condition as an objective fact had to be determined by the Provincial Government judicially. Being thus charged with a quasi-judicial function the Provincial Government became amenable to the high prerogative writ of certiorari, in case it acted without jurisdiction or in excess of it or in violation of the principles of natural justice.

(iii) The decision of the Provincial Government under Section 3 of the Ordinance of 1947 is quasi-judicial, and, hence amenable to writ jurisdiction.

Analysis:

Order of requisition - Whether judicial or quasi-judicial act, or administrative act

I. The mere fact that an executive authority has to decide something does not make the decision judicial. The true test is whether the law, under which the authority is making a decision, itself, requires a judicial approach.

II. There is nothing in Section 3 or any other provision of the Ordinance of 1947 which imposes expressly or impliedly a duty on the Provincial Government to decide the existence of a public purpose judicially or quasi-judicially.

III. The words 'to do so' in Section 3 of the Ordinance of 1947 refer to the entire composite matter of 'requisitioning for a public purpose', and not merely to the act of requisitioning simpliciter. The existence of a public purpose was left as much to the subjective opinion of the Provincial Government as the necessity or expediency for requisitioning a particular land.

IV. The formation of the opinion on the entire matter was purely subjective and the order of requisition was to be rounded on this subjective opinion. It was not a judicial or quasi-judicial act but a purely administrative act and consequently it was not a matter in respect of which a writ of certiorari could be issued.

V. Even if the existence of a public purpose was a collateral fact, then at best it was only a case of an administrative body assuming jurisdiction to perform its administrative powers. If it assumes jurisdiction on an erroneous assumption it might be corrected by an action, but certiorari cannot be an appropriate remedy.

VI. In order that a body may be a quasi-judicial body 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.

VII. A mere provision for an enquiry as a preliminary step to coming to a decision will not necessarily make the decision a quasi-Judicial act. 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.

VIII. There is nothing in the Ordinance to show that the Provincial Government has to decide the existence of a public purpose judicially or quasi-judicially.

IX. Under Section 3 of the Ordinance of 1947, therefore, the decision of the Bombay Government as to whether the property was required for a public purpose or not, was not a judicial or quasi-judicial decision but an administrative act. High Court of Bombay had therefore no jurisdiction to issue a writ of certiorari in respect of such order of requisition.

Enquiries under Sections 10 and 12 of the Ordinance of 1947 - Whether makes decision quasi-judicial

I. Enquiries mentioned therein are only permissive and the Government is not obliged to make them.

II. Moreover, they do not relate to the purpose for which the land may be required. They are in respect of the condition of the land and such other matters affecting land.

III. Every decision of the Government, followed by the exercise of certain power given to it by any law is not necessarily judicial or quasi-judicial.

Writ of certiorari - When can be issued

I. A writ of certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority.

II. It does not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature.

III. A petition for a writ of certiorari can succeed only if two conditions are fulfilled - 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.

IV. The second element would seem to be present in present case on the concurrent findings of the three Judges of the Bombay High Court which are clear and well-reasoned. But that is not sufficient enough for the purpose of granting a writ of certiorari to the respondent. Requisitioning of the premises under Section 3 of the Ordinance was a purely administrative act and did not involve any duty to decide the existence of a public purpose or any other matter judicially or quasi-judicially.

V. The remedy of the respondent is clearly by action and not by asking for a writ of certiorari.

Writ of certiorari - Whether can be issued against the Provincial Government

I. When an Act or regulation commits to an executive authority the decision of what is necessary or expedient and that authority make the decision, courts cannot investigate the grounds or the reasonableness of the decision, sans any allegation of malafide.

II. Opinion formed by the Provincial Government whether it is necessary or expedient to acquire land, given a public purpose, cannot therefore be questioned.

III. Same cannot be said with regard to the decision of the Provincial Government as to the existence of a public purpose which is the foundation of its power and is a condition precedent to its exercise.

IV. Determination of the public purpose and the opinion formed as to the necessity or expediency of requisition do not form one psychological process but are two distinct and independent steps.

V. If the executive authority requisitions land under Section 3 of the Ordinance of 1947 without there being a public purpose in existence, its action would be a nullity, and the person whose right is affected can go to the proper court and claim a declaration that his rights cannot be affected.

VI. An application for certiorari would not, however, lie in such a case as the requisition of premises under Section 3 of the Ordinance of 1947 is a purely administrative act and does not involve any duty to decide the existence of a public purpose or any other matter judicially or quasi-judicially.

Dissenting (M.C. Mahajan and B.K. Mukherjea, JJ.)

I. Provincial Government has to satisfy itself that there is a public purpose before it proceeds to requisition any property.

II. This is an objective condition which has not been made dependent on the personal opinion of the Executive. It has got to be determined judicially.

III. Question whether a public purpose exists or not is itself a mixed question of facts and law which could be determined by application of well established principles of law to the circumstances of a particular case.

IV. Immunity granted by Section 306 of the Government of India Act, 1935 is related to the Governor and not to the Provincial Government. Therefore, the High Court of Bombay had jurisdiction to issue a writ of certiorari against the Provincial Government of Bombay.

V. Word 'sue' in Section 176 of the Government of India Act, 1935 meant the enforcement of a claim or a civil right by means of legal proceedings and was wide enough to include an application for a writ of certiorari.

Conclusions:

I. A writ of certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority.

II. It does not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature.

III. Decision of the Bombay Government that the property was required for a public purpose was not a judicial or quasi-judicial decision but an administrative act.

IV. High Court of Bombay had therefore no jurisdiction to issue a writ of certiorari in respect of the order of requisition.

Important Precedents:

(i) Franklin v. Minister of Town and Country Planning

(ii) P.V. Rao Vs. Khushaldas S. Advani, MANU/MH/0002/1949

(iii) The Queen v. The Corporation of Dublin