P V RAO Vs. AHMED HAJI NOORMAHOMED LATIFF

JUDGEMENT

(1.) This is an appeal from an order made by Mr. Justice Bhagwati granting the application of the petitioner to order the attendance of Mr. P.V. Rao for cross-examination under Rule 180 of the High Court Rules. The facts briefly are these. An order for requisition was served on the petitioner under the Bombay Land Requisition Ordinance No. V of 1947, and this order has been challenged by the petitioner and he has prayed for a writ of certiorari against Mr. P.V. Rao. The order is signed by Mr. P.V. Rao as Assistant Secretary to the Government of Bombay, Health and Local Government Department, but the order in terms says that the order is issued by the order of the Government of Bombay. Now, one of the contentions taken up by Mr. Rao is that the petition is misconceived inasmuch as the order is made not by him, Mr. Rao, but by the Government of Bombay, and as the petitioner seeks to have a writ of certiorari issued against him personally, the petition cannot succeed. On the petition, affidavits were made by the parties and Mr. Rao has made an affidavit setting out his contentions and alleging that the order in question is the order of the Government of Bombay and not his order The petitioner then applied to the learned Judge that he should be permitted to have the deponent, Viz., Mr. Rao, cross-examined under Rule 180 of the High Court Rules, and that rule is in these terms: Upon any motion, petition or summons, evidence may be given by affidavit, but the Court or a Judge may, on the application of either party, order the attendance for cross-examination; of the person making such affidavit.

(2.) The Advocate General for the appellant and the respondent to the petition has contended that the order made by the learned Judge is in excess of his jurisdiction and that it was not open and competent to the learned Judge to question the order in view of the mandatory provisions of Section 59 of the Government of India Act. Now, Section 59 of the Government of India Act provides that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor. Therefore, if the Government of the Province acts at all and its acts are to be clothed in the form of an order, that order can only be issued in the name of the Governor, and Sub-clause (2) provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules to be made by the Governor, and |n this case it is not disputed that according to the rules framed the proper way of authenticating an order made by the Government of Bombay is for the Assistant Secretary to the Government to sign that order; and Sub-clause (2) further provides that the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Therefore, as soon as the order is tendered and the order is expressed in the name of the Governor and duly authenticated as provided by the rules framed under Section 59, it is not open to a Court of law to question the authenticity of the order to the extent that the order is the order of the Government of Bombay. Ex facie the order must be accepted and the Court must proceed on the assumption that the order is an executive order issued by the Government of Bombay. What the learned Judge, with very great respect to him, has done is that he has permitted the petitioner to call the order in question by getting an order from the learned Judge that Mr. Rao should be put in the witness-box to be cross-examined for the purpose of ascertaining whether the order was made by the Government of Bombay or not. Now, the law provides that the only way of ascertaining whether a certain order was made by the Government of Bombay or not is as laid down in Section 59 of the Government of India Act. There is no other mode by which that fact can be ascertained. What the learned Judge has done is that he has accepted the application of the petitioner whereby he wants to ascertain whether the order was in fact made by the Government of Bombay or not, by a method which the law does not permit. There can be no doubt that that is the only reason why Mr. Rao is to be submitted to cross-examination, because the learned Judge in his judgment in terms says: I have come to the conclusion that I should give the petitioners an opportunity of proving by cross-examination of the respondent P.V. Rao that the orders complained of were not really the orders made by the Government of Bombay in exercise of the powers vested in them under the Ordinance No. 5 of 1947 but were orders really issued and passed by the respondent P.V. Rao purporting to do so in the name of the Government of Bombay.

(3.) It is to be noted that the petitioner in his petition has not challenged that Mr. Rao in making the order was acting in his capacity as Assistant Secretary to the Government of Bombay. It is not suggested that the order was an order personally made by Mr. Rao otherwise than in his capacity as Assistant Secretary to the Government of Bombay and therefore that particular question does not arise before us. Mr. Khambatta has argued that it is the contention of the petitioner that the order made is not an executive order but a judicial or a quasi-judicial order and for that purpose he is entitled to cross-examine Mr. Rao. That, in our opinion, is an entirely fallacious contention. Whether a particular order is an executive order or not is to be determined according to the terms of that order. This order is purported to have been made under Section 59 of the Government of India Act. It is made in the name of the Governor, it is authenticated as provided by Sub-clause (2), and therefore there can be no doubt that it is in pursuance of an executive action that this order has been made. It was open to Mr. Khambatta to contend that the orders to be made under the Requisitioning Order have to be judicial orders and not executive orders, and inasmuch as this is an executive order it is a bad order. -But that is something very different from challenging this order itself as not an executive order. It is not open to a party to challenge a particular order, which the Government of Bombay chooses to issue as an executive order, as being not an executive order but some other order. Whether the Government of Bombay is entitled in law to issue an executive order or not is entirely a different matter, and Section 59 does not in any way take away the liberty of the subject to challenge orders of Government as being bad or invalid or ultra vires on the ground that certain provisions of law called for judicial orders and not executive orders. In our opinion, therefore,the learned Judge, with respect to him, was clearly in error in not accepting the order ex facie, but permitting the petitioner to go behind the order and to allow the petitioner to challenge the order and to call it in question contrary to the provisions of Section 59, Sub-clause (2), of the Government of India Act.