P V RAO Vs. KHUSHALDAS S ADVANI

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Bhagwati by which he ordered a writ of certiorari to issue against respondent No.1, who is the Assistant Secretary to the Government of Bombay, Health and Local Government Department, the Province of Bombay, respondent No.2, and Mr. Vartak, a Minister of the Government of Bombay, formerly in charge of the Health and Local Government Department, respondent No.3. The material facts which led up to the order made by Mr. Justice Bhagwati may be briefly stated. One Abdul Hamid Ismail was, prior to January 29, 1948, the tenant of the first floor of a building known as "paradise" at Warden Road, Bombay, the landlord of which was one Dr. M. v. Vakil. On January 29, 1948, Ismail assigned his tenancy to the petitioner and two others, the son and brother's daughter's son of the petitioner. All the three assignees were refugees from Sind. On February 4, 1948, the petitioner went into possession of the flat. On February 26, 1948, the Government of Bombay issued an order requisitioning the flat. The order was issued under Section 3 of the Bombay Land Requistioning Ordinance, V of 1947, which had come into force on December 4, 1947. The order purported to be issued by order of the Governor of Bombay and was signed by P. V. Rao as Secretary to the Government of Bombay, Health and Local Government Department. On the same day Mr. Rao wrote to Dr. Vakil informing him that Government had allotted the premises to Mrs. C. Dayaram. Mrs. C. Dayaram is also a refugee from Sind. On February 27, 1948, the Government of Bombay, in exercise of the powers conferred upon them by Section 8 of the Ordinance, authorised Mr. A. J. Lalvani, an Inspector of the Health and Local Government Department, to take possession of the premises. On March 4, 1948, the petitioner filed a petition for a writ of certiorari and an order under Section 45 of the Specific Relief Act, 1877. On that petition an interim injunction was granted restraining the (government from obtaining post-session of the flat. Originally the petition was directed only against respondent No.1, but by a subsequent amendment the Province of Bombay and Mr. Vartak were brought on the record of the petition and an order was sought against them also. It is on this petition that Mr. Justice Bhagwati made the order from which this appeal is preferred.

(2.) A writ of certiorari can only be issued against an-inferior Court or against a person or persons who are required by law to act judicially or quasi-judicially. It is a high prerogative writ and its purpose is to prevent a judicial or quasi-judicial body from acting in excess of the jurisdiction conferred upon it by law or to see that in exercising its jurisdiction the body acts in conformity with principles of natural justice. Such a writ can never lie to correct executive or administrative acts. An executive or an administrative act may be illegal or ultra vires and a subject may challenge it in a Court of law, but he cannot challenge it by a writ of certiorari. The very basis and foundation of the writ is that the act complained of must be a judicial or a quasi-judicial act. The right to obtain a writ of certiorari is a very important and valuable right that the subject enjoys. It is by means of this writ that the subject can compel the judicial or quasi-judicial body to act within the four corners of its jurisdiction, and, as has been said by Lord Justice Brett in The Queen v. Local Government Board (1882) 10 Q. B. D. 309, the Court should not be chary of exercising its jurisdiction to issue writs of certiorari and prohibition and that "wherever the legislaure entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Courts ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament. "

(3.) VARIOUS authorities and many learned Judges have attempted to draw the line which demarcates an executive order from a judicial or quasi-judicial order. I shall presently deal with some of the authorities, but before I do so I would like to state what in my opinion is the true definition of a judicial or quasi-judicial act as a result of a review of the authorities that were cited at the Bar. In the first place, a duty must be cast by the Legislature upon the person or persons who is empowered to act to determine or decide some fact or facts. There must also be some Us or dispute resulting from there being two sides to the question he has to decide. There must be a proposal and an opposition. It must be necessary that he should have to weigh the pros and cons before he can come to a conclusion. He would also have to consider facts and circumstances bearing upon the subject. 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. If the determination or decision of the authority results in binding the subject so as to affect his right or impose a liability upon, him, and if the exercise of the power by the authority is made dependent by the Legislature upon a contingency or a condition, which condition or contingency is an objective fact to be established and not left to the opinion of the authority, then, in my opinion, the Court would come to the conclusion that there is a duty upon the authority not only to decide and determine but to decide and determine judicially. In the case before us it was open to the Legislature to have empowered the Government to affect the rights of the subject and to impose a liability upon him by a mere executive act of Government arrived at purely by subjective reasoning on the part of Government. The Legislature did not think fit to do so. It limited the power of Government and made it exercisable only upon the happening of a particular contingency, and that contingency was the existence of a public purpose. This, to my mind, clearly indicates an intention on the part of the Legislature not to subject the rights of citizens to executive orders to be issued by Government. The Legislature intended that Government could; only act within its limited jurisdiction, that jurisdiction being conditioned by land being required for a public purpose, and the Legislature equally intended that if the Government acted in excess of its jurisdiction, its action could be controlled and corrected by a writ of certiorari. There can be no doubt that there is a lis or dispute which the Provincial Government has to decide, the dispute being whether the subject should be deprived of his property or not. There are also two sides to the dispute. There is a proposal and opposition and there are pros and cons to be considered. The two sides are: The interest of the State which requires the property for a public purpose, and the rights of the subject who is being deprived of his property. It may be said that the Government cannot be constituted a Judge in its own cause because Government would be asked to adjudicate between itself and the subject, and what a dispute and an adjudication requires is two parties and an adjudicator different from and independent of the two parties. In my opinion, there is no reason why the Provincial Government or an executive officer cannot be constituted a Judge to decide questions arising between the State and the subject. The role that the Government or the executive officer has got to play under these circumstances is a judicial role and as such the Government or the executive officer is different from the State whose rights it has to consider as against the rights of the subject. I should further add that if there was any doubt as to whether an act to be done by a competent authority was a ministerial act or a judicial or quasi-judicial act, I would always give the benefit of the doubt to the subject because I would assume that if the Legislature confers power upon an authority to affect rights or impose liability upon subjects, the Legislature would not ordinarily confer such power without making the power exercisable judicially or qucrn-judicially. I would not assume that the Legislature would permit the rights of subjects to be affected and liability being imposed upon them without giving an opportunity to the subject to be heard in support of his own rights. I would therefore require a clear indication on the part of the Legislature that it not only conferred a power upon a competent authority to affect the rights of others and impose liability upon them, but also that the power it gave was so wide that it could be exercised without the duty of any judicial or quasil-judicial determination. In the case before us, far from there being any such indication on the part of the Legislature, I find that the intention of the Legislature is clear from the fact to which I have already referred, viz. that a condition precedent is laid down which has to be satisfied before the authority can exercise its power, and the existence of that condition precedent is left not to the opinion of Government but has to be established as a fact. It is also significant to note that there is a further clear indication by the Legislature that there is a duty cast upon the Provincial Government to act judicially or quasi-judicially by the power conferred by it under Section 10 to obtain information from the person whose land is to be requisitioned. It may be suggested that this is merely an enabling section and casts no duty upon the Government or confers no right upon the subject. But in my opinion, this section must be read as having a compelling force and also as being a power coupled with a duty. We must read Section 10 along with Section 3, and when we find that in Section 3 public purpose is to be determined by Government and when we find in Section 10 that information may be obtained for the purposes of the Ordinance, I think it is open to the Court to come to the conclusion that there is a duty upon the Government to decide and a right given to the subject to have a decision and a decision which is a judicial decision arrived at after considering proper materials and evidence as provided by Section 1 0.