Province of Bombay vs Kusaldas S. Advani and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 15 September 1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, Mehr Chand Mahajan, B.K. Mukherjea, SAIYID SASTRI, M. Patanjali Mahajan, Mehr Chand Das, Suhdi Ranjan Mukherjea

In the matter titled Province of Bombay versus Kusaldas S. Advani and Others, the Supreme Court of India delivered its judgment on the fifteenth day of September, 1950. The judgment was authored by Justice Hiralal J. Kania, who sat as Chief Justice, together with Justices Saiyid Fazal Ali, Mehr Chand Mahajan and B. K. Mukherjea. The petitioner identified in the case was the Province of Bombay, while the respondents were Kusaldas S. Advani and other individuals. The decision is reported in the 1950 volume of the All India Reporter at page 222 and in the Supreme Court Reports at page 621. Various subsequent authorities have cited the case, including reports from 1959, 1960, 1961, 1962, 1963, 1964, 1965, 1966, 1967, 1969, 1970, 1972, 1973, 1975, 1976 and others, referencing the judgments in numerous law reports. The operative statutory provision concerned the Bombay Land Requisition Ordinance of 1947 (the fifth ordinance of that year), specifically sections three, four, ten and twelve, which deal with the power to requisition land, the procedure for issuing a requisition order, the construction of section three, the requirement of a public purpose as a condition precedent, and the distinction between judicial, quasi-judicial and administrative acts. The case also raised questions about the guiding principles and tests for distinguishing such acts, the nature and incidents of a writ of certiorari, the authority of a High Court to issue a writ against a provincial government, and the relevant provisions of the Government of India Act, 1935, namely sections one-hundred-seventy-six and three-zero-six, together with the interpretation of the term “sue.”

The headnote records that the Full Court, comprising Chief Justice Kania, Justices Fazal Ali, Patanjali Sastri, Mehr Chand Mahajan, Mukherjea and the additional judges, held that a writ of certiorari may be issued only when a body possessing legal authority to decide questions that affect the rights of subjects, and which has a duty to act judicially, exceeds its lawful jurisdiction. The Court emphasized that the writ does not lie to set aside or determine an order that is purely administrative or ministerial in nature. Section three of the Bombay Land Requisition Ordinance (the fifth ordinance of 1947) was quoted in full: “If in the opinion of the Provincial Government it is necessary or expedient to do so the Provincial Government may, by order in writing, requisition any land for any public purpose, provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section.” The factual backdrop involved a respondent who, as a refugee from Sind, obtained an assignment of tenancy rights in a flat located in Bombay and subsequently took possession of the premises. Within a few days, the Government of Bombay issued an order under section three of the Ordinance requisitioning the same flat, allocated it to another refugee, and directed an inspector to take possession. This sequence of events gave rise to the proceedings before the Court.

In this case the provincial government issued an order invoking section 3 of the Bombay Land Requisition Ordinance, 1947, to requisition a flat that had previously been assigned to a refugee from Sind and that the refugee had already taken possession of. The order then allotted the same flat to another refugee and directed an Inspector to take physical possession of the premises. The aggrieved party filed an application under Article 32 of the Constitution seeking a writ of certiorari against the Province of Bombay and other respondents. The Bombay High Court granted the writ, and the decision was subsequently affirmed on appeal by a Division Bench of the same High Court as to the Province of Bombay.

The majority of the Court, consisting of Chief Justice Kania, Justices Fazl Ali, Patanjali Sastri and Das, held that a proper construction of section 3 showed that the provincial government’s determination that the property was required for a public purpose was an administrative act rather than a judicial or quasi-judicial decision. Consequently, the High Court of Bombay lacked jurisdiction to issue a writ of certiorari to set aside the requisition order. In contrast, Justices Mahajan and Mukherjea dissented, arguing that the government, as a body vested with legal authority to decide questions affecting the rights of subjects, was required to act judicially when deciding whether land was needed for a public purpose under section 3. They maintained that the conditions for granting a writ of certiorari were satisfied and that the High Court possessed the power to issue the writ.

Chief Justice Kania explained that although a writ of certiorari may be issued when a legally empowered body acting judicially exceeds its authority, the necessity for a judicial determination does not arise simply because an executive authority must ascertain certain objective facts as a preliminary step to exercising a statutory power. He emphasized that when the executive forms an opinion about an objective matter solely to enable the exercise of a conferred power, both the fact-finding and the subsequent exercise of power are administrative in nature and therefore not subject to certiorari. He rejected the notion that a judicial or quasi-judicial determination required the presence of opposing parties, a lis, or the right to examine witnesses; instead, the true test is whether the governing law mandates a judicial approach. Justice Fazl Ali added that prescribed forms are not indispensable for a judicial inquiry, provided that well-recognised principles of judicial reasoning are required by the law. He warned that the mere fact of an executive decision does not render it judicial, and the critical issue is whether the decision-making process is subject to a duty to decide judicially.

The Court explained that the crucial factor was not merely the fact that an executive authority made a decision, but the manner in which that decision was reached, because that determined whether there was any duty to decide the matter judicially. It observed that neither section 3 nor any other provision of the Ordinance expressly or implicitly required the Provincial Government to determine the existence of a public purpose in a judicial or quasi-judicial way. The Court noted the well-settled principle that when an Act or regulation entrusts an executive authority with the power to decide what is necessary or expedient, the courts are not authorised to examine the grounds or the reasonableness of that decision unless bad faith is alleged. Consequently, the opinion of the Provincial Government that acquiring land was necessary or expedient for a public purpose could not be challenged. However, the Court distinguished this from the separate determination of whether a public purpose actually existed, which formed the foundation of the Government’s power and was a condition precedent to its exercise. It clarified that the assessment of a public purpose and the opinion on necessity or expediency were two distinct steps; if the Government requisitioned land under section 3 without a genuine public purpose, the requisition would be a nullity and the affected person could seek a declaration that his rights could not be taken. The Court further held that an application for certiorari would not be appropriate in that scenario because the requisition under section 3 was a purely administrative act that did not entail a judicial or quasi-judicial duty to determine the existence of a public purpose. MAHAJAN J. observed that whether an act is judicial, quasi-judicial, or purely executive depends on the specific rule, its nature, scope and effect, and must be decided on the facts of each case. He stated that deciding if land was required for a public purpose or for public worship involved complex legal and factual questions that seriously affected parties’ rights, and such questions could not be left to the Government’s subjective opinion. Instead, they required objective, judicial determination based on materials the Government could obtain under sections 10 and 12 of the Ordinance after hearing any opposition, giving the High Court of Bombay jurisdiction to issue a writ of certiorari. MUKHERJEA J. added that although section 3 placed the act of requisitioning land within the executive discretion of the Provincial Government, the provision nonetheless made the existence of a public purpose an essential prerequisite to any requisition, thereby rendering the determination of that purpose a judicial act subject to review.

In this case, the Court observed that the existence of a public purpose is an essential prerequisite for the Provincial Government to take any step in requisitioning property, and that the jurisdiction to proceed with a requisition is founded on the objective fact of a public purpose rather than on the Government’s subjective belief that such a purpose exists. Accordingly, the Court held that whether a public purpose actually exists must be determined by a judicial inquiry because the question creates a conflict between the interests of the public at large and the rights of the individual land-owner. The Court therefore characterised the Government’s determination of a public purpose as a judicial act. Moreover, the Court explained that this determination is a collateral matter on which the authority to requisition depends, and it is not part of the substantive executive act of requisition itself; consequently, a writ of certiorari is available to review the determination.

The Court further analysed the phrase “to do so” in section 3 of the Ordinance and concluded that it refers to the whole composite process of “requisitioning for a public purpose,” not merely to the mechanical act of requisitioning. The Court noted that under the Ordinance the existence of a public purpose was left to the Provincial Government’s subjective opinion to the same extent as the Government’s judgment on the necessity or expediency of requisitioning a particular piece of land. Because the formation of that opinion was purely subjective and the requisition order was to be based on that subjective view, the Court held that the act was a purely administrative one and not a judicial or quasi-judicial act; therefore, a writ of certiorari could not lie against it.

The Court considered an alternative assumption that the question of whether a public purpose exists might be required to be determined by the Government rather than left to its subjective opinion. Even on that assumption, the Court found nothing in section 3 indicating that the determination must be made judicially, and consequently a writ of certiorari would still not be appropriate. Even if the existence of a public purpose is treated as a collateral fact, the Court said that at most this situation represents an administrative body exercising its ordinary administrative jurisdiction. An error in that jurisdiction could be corrected by an appropriate action, but certiorari would not be the correct remedy. If, hypothetically, the collateral fact were to be decided quasi-judicially and its decision could be set aside, the Court stressed that the administrative act of forming the opinion and issuing the requisition order would remain untouched by certiorari.

Finally, the Court explained that for a body to be classified as quasi-judicial it is insufficient merely to have the legal authority to decide questions affecting the rights of individuals; there must also be a statutory duty imposed on the body to act judicially. In the absence of such a duty, the authority’s decision is not a quasi-judicial act, even though the statute may empower the authority, which is not a court in the ordinary sense, to resolve disputes arising out of the statute.

When a statute creates a claim that one party files and another party opposes, the authority that must determine the rights of the opposing parties is required, unless the statute says otherwise, to act in a judicial manner, and the order it issues is therefore a quasi-judicial act. If a statutory body possesses the power to do something that may disadvantage a person, even though the only parties involved are the authority proposing the act and the person resisting it, the final decision of that authority will still be considered a quasi-judicial act provided the statute expressly obliges the authority to act judicially. A mere provision that an enquiry be held as a preliminary step before a decision does not automatically convert the decision into a quasi-judicial one; such an enquiry may simply be intended to enable the deciding authority to form its mind for what might be a purely administrative action.

The Court, speaking through Kania C.J., Fazl Ali, Patanjali Sastri and Das JJ, held that the powers conferred on the Provincial Government by sections 10 and 12 of the Ordinance are merely enabling powers and are not mandatory. The Court further observed that there is nothing in those sections that imposes on the Government a duty to act judicially when it makes an order for requisition under section 3. In addition, the Court, with Mahajan and Mukherjea JJ delivering the opinion, ruled that the immunity provided by section 306 of the Government of India Act, 1935, applies to the Governor and not to the Provincial Government, and consequently the High Court of Bombay possessed jurisdiction to issue a writ of certiorari against the Provincial Government of Bombay. The Court also clarified that the word “sue” in section 176 of the same Act signifies the enforcement of a claim or a civil right by legal proceedings and is sufficiently broad to encompass an application for a writ of certiorari.

The judgment referred to a number of authorities to support these conclusions, including Rex v. Electricity Commissioners ([1924] 1 K.B. 171), Rex v. London County Council ([1931] 9 K.B. 215), The Queen v. Corporation of Dublin ([1878] 2 L.R. Ir. 371), Frome United Breweries v. Bath Justices ([1996] A.C. 386), Rex v. Archbishop of Canterbury ([1944] 1 K.B. 281), Rex v. Woodhouse ([1906] 2 K.B. 501), King v. Postmaster General ([1928] 1 K.B. 291), Rex v. Boycott and Others ([1939] 2 K.B. 651), Franklin v. Minister of Town and Country Planning ([1948] A.C. 87), In re Banwarilal Roy (48 C.W.N. 766), Jugial Kamlapat v. Collector of Bombay (47 Bom. L.R. 1070), Hamabai Framji Petit v. Secretary of State for India (L.R. 42 I.A. 44), King v. Bradford ([1908] 1 K.B. 865) and other cases cited therein. The judgment concluded the appellate jurisdiction under section 205 of the Government of India Act, 1935, was properly exercised in the appeal from the Bombay High Court’s decision.

The Bombay High Court, consisting of Chief Justice Chagla and Justice Tendolkar, delivered a judgment on 4 January 1949 in Appeal No 65 of A948. For the appellant, the Attorney-General for India, M C Setalvad, and the Advocate-General of Bombay, C K Daphtary, appeared, assisted by G N Joshi and M M Desai. For respondents Nos 1(a) and 1(b), counsel included H M Seervai, R J Joshi and Rameshwar Nath. The Supreme Court rendered its judgment on 15 September 1950, with Chief Justice Kania presiding.

This appeal concerned a question whether the High Court of Bombay possessed the authority to issue a writ of certiorari against the Province of Bombay for the purpose of setting aside an order that requisitioned certain premises. The factual background, as recorded by the High Court, was that Abdul Hamid Ismail occupied the first floor of a building known as “Paradise” on Warden Road, Bombay, as a tenant prior to 29 January 1948; the landlord of the building was Dr M D Vakil. On 29 January 1948, Ismail assigned his tenancy to the petitioner and to two other individuals – the son and the son-in-law’s daughter’s son of the petitioner – all of whom were refugees from Sind. The petitioner took possession of the flat on 4 February 1948.

Subsequently, on 26 February 1948, the Government of Bombay issued an order requisitioning the flat under section 3 of the Bombay Land Requisition Ordinance (Ordinance V of 1947), which had become effective on 4 December 1947. On the same day Dr Vakil received notice that the Government had allotted the premises to Mrs C Dayaram, also a Sind refugee. Further directives authorized an inspector to take possession of the premises. On 4 March 1948, the petitioner filed a petition for a writ of certiorari and for an order under section 45 of the Specific Relief Act. Justice Bhagwati, hearing the petition, granted the writ against the Province of Bombay and the Secretary concerned.

On appeal, the appellate court affirmed the grant of the writ of certiorari against the appellant but set aside the order as it applied to the other parties. The appellant then appealed to this Court. Acting for the appellant, the Attorney-General raised three principal issues for consideration: first, whether, under the provisions of Ordinance V of 1947, the requisition order was quasi-judicial or merely administrative, and if quasi-judicial, whether it involved excess of jurisdiction or a mistake of law; second, whether a writ of certiorari could be issued against the appellant, who acted on behalf of the Crown under the Ordinance; and third, whether the order was made for a public purpose. The discussion would focus on sections 3, 4, 10 and 12 of the Ordinance, which were deemed material to the determination of these questions.

In the material before the Court, the provisions governing the requisition of land and vacant premises were set out in detail. Section three authorised the Provincial Government, when it was of the opinion that requisition was necessary or expedient, to issue a written order requisitioning any land for any public purpose. The provision also imposed a limitation: land that was being used for public religious worship, or land whose use the Provincial Government might later designate by a notification in the Official Gazette, could not be requisitioned under this section.

Section four dealt specifically with vacant premises. Sub-section (1) provided that if any premises located in an area that the Provincial Government had identified by a notification in the Official Gazette were vacant on the date of that notification, or if such premises became vacant thereafter—whether because the landlord ceased to occupy them, a tenancy terminated, a tenant was evicted, the premises were released from a prior requisition, or for any other reason—the landlord was required to inform an officer authorised for that purpose by the Provincial Government. The information had to be given in the form prescribed by the Government.

Sub-section (2) specified the time limits for giving that intimation. Where the premises were vacant on the date of the Gazette notification, the landlord had to send the notice by post within one month of that date. In all other circumstances, the landlord had to give notice within seven days of the premises becoming vacant.

Sub-section (3) prohibited the landlord from letting the premises without first obtaining the Provincial Government’s permission and without first giving the required intimation. Even after the intimation was sent, the landlord could not let the premises for a period of one month counted from the date the intimation was delivered.

Sub-section (4) clarified that, irrespective of whether the landlord complied with the intimation requirement in sub-section (1), and notwithstanding the provisions of section three, the Provincial Government retained the power to issue a written order requisitioning the premises. The Government could then use or otherwise deal with the premises in any manner it deemed expedient.

Sub-section (5) dealt with penalties for non-compliance. A landlord who failed to give the intimation within the period prescribed in sub-section (2) was, upon conviction, liable to a fine that could be as high as one thousand rupees. A landlord who let the premises in violation of sub-section (3) faced, upon conviction, imprisonment for a term that could extend to three months, a fine, or both.

Section ten conferred a power to obtain information. Sub-section (1) allowed the Provincial Government, for the purpose of implementing the Ordinance, to issue an order requiring any person to furnish to a specified authority any information in the person’s possession that related to land that was requisitioned, continued under requisition, or intended to be requisitioned or continued under requisition. Sub-section (2) made clear that any person who was required to supply such information was legally bound to do so, invoking the definitions of sections 176 and 177 of the Indian Penal Code, 1860.

Section twelve granted a power to enter and inspect land. It stated that, without prejudice to any other powers conferred by the Ordinance, any officer or person authorised by the Provincial Government, whether by a general or a special order, could enter and inspect any land. The purpose of such entry and inspection was to determine whether an order under the Ordinance should be made in relation to that land, and also to secure compliance with any order that had already been made under the Ordinance.

The provincial Government, by issuing either a general or a special order, was authorized to enter and inspect any land in order to determine whether an order under the Ordinance should be made with respect to that land and, if so, in what manner, or to ensure that any order already made under the Ordinance was being complied with. On the first issue raised, it was observed that section 3 of the Ordinance expressly made the decision of the Provincial Government to requisition particular premises a matter of its own opinion, and therefore such a decision could not be subjected to an objective test. Counsel argued that the question of whether the premises were needed for a public purpose likewise fell within the opinion of the Provincial Government, and consequently it was not a matter for judicial scrutiny. Accordingly, the order was characterised not as a quasi-judicial decision but as an administrative or ministerial act. It was further noted that, unlike the Land Acquisition Act, the Ordinance contained no provision for issuing a notice, conducting inquiries, or examining rival contentions and evidence before a decision was reached. It was pointed out that, had the notion of public purpose lay outside the Provincial Government’s opinion, the statutory language would have been expressed as “If for any public purpose in the opinion of Government…”. The discussion therefore turned away from a theoretical distinction between judicial and quasi-judicial functions and focused on the practical question of whether the order in dispute was quasi-judicial or merely administrative or ministerial. In support of this analysis, reference was made to Regina (John M’Evoy) v. Dublin Corporation, where Chief Justice May observed that a writ of certiorari does not lie to set aside a purely ministerial order such as a warrant, but it does lie to review and determine the validity of judicial acts. He further explained that the term “judicial” need not be limited to actions of a judge or a legal tribunal deciding points of law; for the present purpose a judicial act is one performed by a competent authority after considering the relevant facts and circumstances and which imposes liability or affects the rights of others. This definition received approval from Lord Atkinson in the case of Frome United Breweries Co. v. Bath Justices, which affirmed the distinction between judicial and administrative acts. A series of decisions has consistently recognised this distinction, and the Irish case cited is among the earliest authorities. On behalf of the respondent, it was contended that, as Chief Justice May stated, whenever a fact-finding determination affects the rights of parties, that determination becomes a quasi-judicial decision, and consequently a writ of certiorari would be available against the body empowered to make such a decision.

In this discussion, the Court explained that a writ of certiorari may be issued against the body that has been given the responsibility of making a particular decision. The Court noted that, unlike the view that any determination affecting the rights of parties automatically becomes a quasi-judicial decision, several English decisions emphasize that the decision must be a judicial one and that the duty to act judicially must be expressly provided for in the statute that creates the deciding body. This principle was clearly articulated in the case of The King v. The Electricity Commissioners, where Lord Justice Atkin, then a judge of the King’s Bench Division, set out a test stating: “Whenever any body of persons who possess legal authority to determine questions that affect the rights of subjects, and who are bound by duty to act judicially, act beyond the limits of their legal authority, they become subject to the controlling jurisdiction of the King’s Bench Division exercised through these writs.” The Court observed that this passage has been repeatedly cited with approval in later judgments and has been accepted as the correct test for determining when certiorari lies.

The Court further referred to a more detailed analysis of the distinction between judicial and administrative acts found in the case of The King v. London County Council. In that decision, Scrutton L.J. explained that it is not necessary for the body to be a court in the formal sense; it is sufficient if, after hearing evidence, the body performs judicial functions by deciding between a proposal and an opposition. He emphasized that a tribunal that decides rights after hearing evidence and opposition is amenable to the writ of certiorati. Later, Lord Justice Slesser, in his judgment, identified four essential conditions laid down by Atkin L.J. that must be satisfied before a writ of certiorari may be issued. The conditions are: (1) a body of persons; (2) possessing legal authority to determine questions affecting the rights of subjects; (3) having the duty to act judicially; and (4) acting in excess of their legal authority. He examined each condition separately and concluded that the presence of each condition is necessary to ascertain the nature of the act in question.

The Court also cited the case of The Ryots of Garabandho and other villages v. Zamindar of Parlakimedi, where Viscount Simon L.C., delivering the judgment of the Board, accepted the four-condition test as the proper method for determining the nature of an act. He stated that a writ of certiorari does not arise to correct purely executive acts; however, its application is not limited strictly to inferior courts in the narrowest sense. Broadly, if the act performed by an inferior body is a judicial act rather than a ministerial one, the writ may lie. He explained that the principle underlying this remedy derives from the supervisory authority that the sovereign’s superior courts—particularly the King’s Bench—exercise over inferior jurisdictions, and that this principle has been extended to other parts of the Dominion and operates within certain limits in British India.

In the case of Franklin v. The Minister of Town and Country Planning the Court again examined the line of distinction between a quasi-judicial act and a purely administrative one. The matter before the Court concerned a town-and-country-planning scheme that had been prepared under the authority of the relevant Statute and that had been ordered by the Minister after a public local inquiry conducted in accordance with the provisions of the Act. The Court observed that the Minister’s duty was essentially administrative; however, the Statute required that the duty be performed by following certain prescribed methods or steps. Before the Minister could issue a draft order, he was required to conduct a thorough inquiry into the subject matter, to consult any local authorities that appeared to have an interest, and to seek the views of other governmental departments. The Minister also had to be satisfied that the scheme was sound before taking the decisive step of issuing the draft order. To allow for objections that were not withdrawn, the Act provided for a public inquiry to be held by a person who did not report to the respondent, and this inquiry was intended to furnish additional information to the respondent for the final assessment of the scheme’s soundness. Lord Thankerton expressed the view that no judicial duty was imposed on the respondent in the performance of these statutory duties; the only question, according to him, was whether the statutory directions to appoint an officer to hold the public inquiry and to consider that officer’s report had been complied with.

Counsel for the respondent referred to a number of earlier decisions, but in none of those cases was the dictum of Atkin L.J. or the four conditions articulated by Slesser L.J. suggested or stated to be incorrect. The respondent’s contention that any determination of a fact affecting the rights of parties automatically renders the decision quasi-judicial was rejected as unsound. The Court noted that the observations of May C.J., when properly read, already incorporated the judicial aspect of the determination in the language he used. The conclusion was reached because, after Atkin L.J. and Slesser L.J. had expressly articulated and emphasized the test of judicial duty of the deciding body, no later decision has indicated that May C.J.’s dictum deviated from that statement of law, nor that it required any modification. The term “quasi-judicial” itself necessarily implies the presence of a judicial element in the process leading to the decision. In the judgment of the lower court it was initially stated that if the act of an inferior body is a judicial act, as distinguished from a ministerial act, certiorari will lie; however, that statement was later blended with a broader assertion that when a fact is determined by an objective test and the decision affects someone’s rights, the act is quasi-judicial. This later formulation overlooked the fact that most executive decisions involve factual determinations that affect rights, yet such determinations, when made as a preliminary step to exercising an executive function, remain administrative and are not subject to the writ of certiorari.

The Court explained that a decision is termed quasi-judicial when the factual issue must be resolved by an objective test and the decision consequently affects a person’s rights. The Court noted, however, that this definition overlooks the fact that virtually every executive decision involves a finding of fact and typically impacts someone’s rights. The Court clarified that because an executive authority is required to ascertain certain objective facts as a preliminary step in performing its functions, it is not necessary for that authority to determine those facts in a judicial manner. When an executive body must form an opinion on an objective matter before exercising a power that has been conferred upon it, the process of establishing the objective fact and the subsequent use of that fact to exercise the power are both administrative in nature and therefore are not subject to the writ of certiorari. The Court referred to various English decisions to distinguish between quasi-judicial and ministerial determinations. Some authorities have suggested that a quasi-judicial act requires a proposition and an opposition, the existence of a lis, or the right to examine, cross-examine and re-examine witnesses. The Court emphasized that such observations must be read together with the facts of each case, and that the emphasis placed on these various aspects does not constitute a complete or exhaustive statement of the criteria for labeling a decision as quasi-judicial or otherwise. The Court further observed that the decisive factor is whether the law governing the authority’s decision itself mandates a judicial approach; if it does, the decision will be quasi-judicial. Prescribed procedural forms are not essential to render an inquiry judicial, provided the decision follows the recognized principles required by law. In the Court’s view, the conditions set out by Slesser L.J. correctly delineate the difference between judicial or quasi-judicial decisions and purely ministerial ones. Counsel for the respondent strongly argued that, even when applying these tests, the Provincial Government’s decision made under section a should be regarded as quasi-judicial. The respondent contended that the question of whether the premises were required for a public purpose was not a matter of opinion, and relied heavily on the powers of inquiry conferred by sections 10 and 12. The respondent’s counsel also relied on two leading cases to support the contention that the order in the present matter was quasi-judicial. The first case cited was The King v. The Postmaster General (1), where an employee sought compensation under the Workmen’s Compensation Act. Compensation was payable only if the employee obtained a certificate from the certifying surgeon confirming that he suffered from telegraphist’s cramp and was consequently disabled. In that case a medical practitioner had been appointed by the Secretary of State as the certifying surgeon under section 4 of the relevant Act.

In the case reported as The King v. The Postmaster General, a medical officer was appointed by the Secretary of State and given the powers and duties of a certifying surgeon under section 4 of the Workmen’s Compensation Act. By an order made under that section, it was provided that for post-office employees the post-office medical officer who had charge of the workman could, when authorised, be substituted for the certifying surgeon in cases of telegraphists’ cramp. The post office normally referred all such cases to its chief medical officer, and this practice was relied upon as making the chief medical officer the substitute for the certifying surgeon under the Act and the order. The applicant, who suffered from telegraphists’ cramp, was listed on the capitation register of the local post-office medical officer but never actually consulted that officer. When the applicant claimed compensation for telegraphists’ cramp, the case was referred, in accordance with the usual practice, to the chief medical officer, who certified that the applicant was not suffering from the condition. The court held that the issuance of that certificate was the appropriate subject of proceedings by way of certiorari. In rejecting the argument that no right to obtain a writ arose from the certification because the certificate was a mere formality pending further examination, Lord Hewart C.J. observed that it was not contemplated that the judgment of the medical referee should be influenced by a certificate given by a wholly unauthorized person, and that the applicant would not be in the same position before the medical referee as if the proper officer had refused to give any certificate at all. Consequently, a surgeon’s certificate that conferred or denied a right to compensation was treated as a judicial act, and where the surgeon lacked jurisdiction to give such a certificate, a writ of certiorari was deemed the proper remedy. It should be noted that the Act provided a procedure of inquiry, and the case was decided under different provisions of the Workmen’s Compensation Act, which also granted a right of appeal against the surgeon’s decision. The subsequent right to obtain compensation arose from the certificate itself and was not an independent act of a decision-making authority unrelated to that certificate. A similar principle was applied in Rex v. Boycott and Others, where the opinion of the examining doctor, although to be followed by further examination and inquiry, was considered subject to certiorari because that opinion directly related to the boy and formed the starting point for proceedings under the Detention Act and the Mental Deficiency Act.

In that earlier case the decision was directly related to the boy and it served as the initiating step for proceedings under both the Detention Act and the Mental Deficiency Act. Keeping in view the crucial factor that separates a quasi-judicial determination from a purely administrative act, the Court then turned to the question of whether the power vested in the Provincial Government by section 3 of the Ordinance, when read together with the overall scheme of that Ordinance, amounted to a quasi-judicial decision or merely an administrative act. Section 3 of the Ordinance authorises the Provincial Government, whenever it is of the opinion that such action is necessary or expedient, to issue a written order requisitioning any land for any public purpose. Setting aside for the moment the proviso to the section, and noting the citation (1) [1939] 2 K.B. 651, it is not seriously contested that the subjective opinion of the Provincial Government concerning the requisition order is not subject to challenge by a writ of certiorari. The language of the Ordinance leaves that decision to the discretion of the Provincial Government, and that discretionary opinion cannot be reviewed by any other authority. Consequently, except where bad faith is clearly established, that opinion cannot be questioned. The next issue for consideration was whether the phrase “for any public purpose” is to be treated on the same footing as the Government’s discretionary opinion. On behalf of the appellant, it was submitted that the Government’s view that a requisition is necessary or expedient is equivalent to its determination of a public purpose. Alternatively, it was argued that the two elements – the necessity to requisition and the decision regarding public purpose – together constitute a single composite opinion, and that composite opinion represents the Provincial Government’s subjective judgment. A third line of argument contended that the Government’s decision on what constitutes a public purpose is a factual finding that must first be ascertained, after which the requisition order follows. The Court accepted this third contention, observing that the Provincial Government’s decision as to a public purpose involves no judicial element. The Government must merely ensure that its requisition order is not made concerning land used for public religious worship, or land that is not covered by a purpose specified in the Official Gazette as required by the proviso to section 3, or land that is not vacant on the date the notification is issued, a condition described in section 4 of the Ordinance. In other words, the Government must decide whether the object for which land is proposed to be requisitioned qualifies as a public purpose. In the Court’s opinion, this third alternative is clearly the correct approach, rendering it unnecessary to address the first two arguments. The Ordinance contains no provision indicating that the Provincial Government must act in a judicial manner when reaching its conclusion on this point. Accordingly, sections 10 and 12, which were cited to support the claim that the decision was

In the Court’s view, the provisions that were alleged to make the Provincial Government’s decision quasi-judicial do not, in fact, support that contention. The inquiries referred to in those provisions are merely permissive, and the Government is not compelled to carry them out. Moreover, those inquiries relate to the condition of the land and other matters affecting the land, and they do not bear on the purpose for which the land might be requisitioned. The Court observed that not every decision taken by the Government, even when it is followed by the exercise of a power granted by law, is automatically judicial or quasi-judicial. When the language of the relevant section, read together with its proviso, is considered along with the overall scheme of the Ordinance, it does not introduce a judicial element into the determination of whether a public purpose exists. Consequently, the Court concluded that the Provincial Government’s decision regarding public purpose constitutes an administrative act. If the Government makes an erroneous determination of fact, that determination may be challenged in an ordinary suit, just as its actions based on the facts described in the proviso to section 3 and in section 4 are subject to similar challenge. The argument that a suit might be ineffective because a notice under section 80 of the Code of Civil Procedure is required, and that the remedy is therefore inadequate, was rejected as unhelpful. The Court held that inconvenience or the lack of an adequate remedy does not create a right to a writ of certiorari. A writ of certiorari may be entertained only when two conditions are satisfied: first, the decision must be judicial or quasi-judicial; and second, the challenge must relate to an excess of jurisdiction or a lack of jurisdiction by the deciding authority. If either condition is absent, an application for a writ of certiorari cannot succeed. Because, in the Court’s opinion, the Provincial Government’s decision on public purpose is not judicial or quasi-judicial, there is no basis for a writ of certiorari. Accordingly, the Court saw no need to address the remaining points raised by the Attorney General concerning the issuance of a writ against the Province of Bombay and expressed no opinion on those matters. The final order was that the appeal be allowed and the petition dismissed. The earlier order of costs in favour of the respondents was set aside, and the respondents were ordered to bear the costs throughout. The costs of the lower courts were to be taxed in favour of the appellant on the terms previously allowed to the respondents, and the respondent was ordered to pay the costs of the appeal. The order of costs against the respondents was limited to the assets that come into the hands of the deceased, as the original applicant had died while the proceedings were pending. The Court described the case as essentially simple, though it had become unnecessarily complex due to the extensive citation of decisions by the parties.

In this appeal the parties attempted to draw from a large number of earlier decisions a principle that would support their respective arguments. The core issue for determination was whether the respondent could obtain a writ of certiorari to set aside an order issued by the Government of Bombay that requisitioned certain premises under section a of the Bombay Ordinance No V of 1947. The law is clear that a writ of certiorari may be granted only against a lower court or against a person or authority that is required by law to act in a judicial or quasi-judicial manner, and only when that body exceeds the limits of its legal authority. Such a writ cannot be used to overturn an executive or administrative action. Consequently the first question that the Court had to resolve was whether the order of requisition made by the Government of Bombay constituted a judicial or quasi-judicial order, or whether it was merely an executive or administrative act. An order will be characterised as judicial or quasi-judicial when it is issued by a court, a judge, or by a person or authority that is legally empowered to function as a court or judge. To act in the capacity of a court or judge necessarily entails granting the party affected by the order an opportunity to make a representation, conducting an inquiry, hearing and weighing any evidence that may be presented, and considering all relevant facts and circumstances that bear upon the merits of the dispute before arriving at a decision that affects the rights of one or more parties. While the procedure followed need not be as elaborate as that of a formal trial court and may be conducted on a summary basis, it must nonetheless contain the essential elements of judicial procedure as described. In some of the cases cited before us, the counsel on each side attempted to lay down specific formulae for deciding whether an order is judicial or quasi-judicial. In the present view it is safer to grasp the underlying principle rather than to rely on any particular formula or set of formulae. A great many authorities were also cited to illustrate various situations in which a person or persons were held to have acted judicially or quasi-judicially; however, as noted earlier, those authorities frequently cloud what is otherwise a simple question. Moreover, this Court is not obligated to refer to earlier cases unless it deems such reference necessary. The Court fully agrees with the observation made by the Privy Council in Wijeyesekar v Festing that decisions rendered under different statutes often do not provide useful guidance. In that case, which concerned a Ceylon Ordinance, the Privy Council remarked that references to Indian cases were avoided because the statutory language was not the same and would only complicate what appeared to be a straightforward issue.

In this case the Court noted that a provision of the Ordinance under consideration was said to resemble section a of another Ordinance and that the Privy Council, when reviewing a similar matter, had observed that reference had been made to Indian cases dealing with comparable statutory questions but that the Lords chose not to refer to those cases because the wording of the enactment differed and because such discussion might complicate what they regarded as a very simple issue; after making those observations the Privy Council continued: “The whole case is decided, in the opinion of their Lordships, in the last three lines of section 6 of the Ordinance.” (1) [1919] A.C. 646. The Court further observed that the present dispute could be resolved in the same straightforward manner by construing correctly section 3 of the Ordinance that gives rise to this litigation, and it reproduced the wording of that section: “If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may by order in writing requisition any land for any public purpose: Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section.” The first task in interpreting this provision, the Court said, is to place oneself in the mind of the framers and to consider the entire scheme as they must have envisaged it, and from that perspective two points become clear. The first point is that the existence of a public purpose forms the foundation of the power, or jurisdiction if that term is appropriate, of the Provincial Government to requisition premises under section 3; in other words a public purpose is a condition precedent to the exercise of that power. The Court cited the well-known passage of Bhagwati J., who explained that unless a public purpose exists for which the power under section 3 may be exercised, the Provincial Government has no jurisdiction to make any requisition order, and only when such a purpose exists does the Government acquire the discretion to decide whether requisition is necessary or expedient for achieving that purpose. Consequently the existence of a public purpose is a condition precedent to the exercise of the requisition power conferred by section 3, and the Provincial Government is not the sole judge of what constitutes a public purpose; the purpose must exist before any power can be exercised. The second observation made by the Court was that the framers of the Ordinance never

The Court observed that the Ordinance was not intended to impose any duty upon the Provincial Government to determine, in a judicial manner, whether a particular purpose qualifies as a public purpose. No express wording in section 3 or in any other provision creates such a duty, nor is there any implication that obliges the Court to read a judicial duty into the statute. The reference to section 6, which expressly provides for an inquiry to assess compensation, and the references to sections 10 and 12, which empower the Provincial Government to obtain information and to permit its officers to inspect land, demonstrate that wherever an inquiry was contemplated it was specifically provided for in the text. However, the Ordinance contains no provision for an inquiry intended to determine the existence of a public purpose. The Court further noted that, in the overwhelming majority of cases, an inquiry would be unnecessary because the existence of a public purpose would be self-evident or obvious; a simple reference to the purpose would lead any reasonable person to recognise it as a public purpose. Only in a very few exceptional situations might legalistic or other considerations render the question obscure. The Court emphasized that the Ordinance is meant to enable prompt action and, in its ordinary day-to-day application, must be confined to normal, not exceptional, cases. Consequently, the legislature would not have attached excessive importance to such rare cases and would have presumed that the Provincial Government possessed sufficient intelligence to know, before acting under the Ordinance, whether a particular purpose was a public purpose.

The Court then turned to the two principal contentions raised during the arguments. The first contention, advanced by the respondent, asserted that the Provincial Government must act judicially in determining the public purpose and that, if it exceeds its legal authority, its action should be subject to a writ of certiorari. The second contention, presented by the appellant, maintained that section 3 authorises the Government to form an opinion on two matters: first, whether a public purpose exists; and second, whether it is necessary or expedient, in the interests of that purpose, to requisition certain premises. According to this view, the opinion of the Provincial Government on both questions is final and cannot be questioned in any court of law. The Court indicated that it had already addressed the respondent’s contention sufficiently, but added a few further observations. It recognised that executive authorities often must take swift decisions for prompt action, and it would be an overstatement to say that, in exercising such discretion, they are performing any judicial or quasi-judicial function.

The judgment observed that the ordinary meaning of the word “decision” is a neutral term that can describe both purely executive actions and judicial orders. It emphasized that merely because an executive authority must reach a conclusion does not transform that conclusion into a judicial decision. The crucial factor, the court explained, is the manner in which the conclusion is reached, and the real test is whether there is any duty imposed on the authority to decide in a judicial or quasi-judicial way. The court noted that the Ordinance contains no provision obliging the Provincial Government to determine the existence of a public purpose by judicial or quasi-judicial standards. Consequently, the government is not required to invite objections, conduct inquiries, or hear evidence before forming its view; it may proceed on its own initiative, even ex parte, on prima facie grounds, so long as it remains within the powers granted to it. The court added that the mere determination that a public purpose exists does not, by itself, affect the rights of any individual. It is only when the Provincial Government proceeds to the next step—forming an opinion that requisition of certain premises is necessary or expedient for that public purpose—that the rights of others become engaged. In this context, the court found no basis to hold that the Provincial Government must act judicially or quasi-judicially under section 3 of the Ordinance. Turning to the appellant’s argument concerning the possibility of requisition for a non-public purpose, the court recalled the settled principle that when an Act or regulation entrusts an executive authority with the decision of what is necessary or expedient, courts lack competence to examine the grounds or reasonableness of that decision unless bad-faith is alleged. Accordingly, because the question of whether acquisition is necessary or expedient, given a public purpose, is left entirely to the Provincial Government’s satisfaction, the opinion it forms, provided it is made in good faith, cannot be challenged. In other words, even if the court or any other observer believes that the requisition does not appear necessary or expedient in the public interest, such a view does not render the requisition invalid. However, the court distinguished this from the decision on whether a public purpose exists, which forms the foundation of the government’s power and is a condition precedent to any exercise of section 3. If the executive authority were to requisition land under section 3 without any public purpose existing, the court held that such action would be a nullity, and the legal effect would be as if the authority had not acted under section 3 at all.

In this case the Court explained that when the authority does not act under section 3, the legal effect is the same as if it had never exercised that power. Consequently any person whose rights are claimed to have been affected may approach a proper court and obtain a declaration that, according to law, those rights cannot be disturbed. The Court refused to accept the argument that the determination of a public purpose and the view on whether requisition is necessary or expedient constitute a single psychological process, thereby making the rule applicable to both steps. The Court held that the correct approach is to treat the identification of a public purpose as the initial step; if the Provincial Government concludes that no public purpose exists, the subsequent inquiry into necessity or expediency does not arise. The Court further observed that while the Government’s subjective opinion on necessity or expediency cannot be objectively measured, the existence of a public purpose can be examined because established definitions of public purpose are available and may serve as a common standard for different individuals. The Court quoted the dictum of Lord Halsbury in Mayor etc. of Westminster v. London & North Western Ry. Co., stating that when the legislature has entrusted discretion to a particular body, no court may contest that discretion, provided the action taken falls within the authority granted by the legislature. The appellant had cited several authorities to argue that, in statutes framed in similar language, courts have treated the existence of a public purpose as entirely dependent on the executive’s satisfaction, just as the question of necessity or expediency is. The Court identified the leading authority supporting this view as Wijeyesekara v. Festing, which involved the interpretation of sections 4 and 6 of Ceylon Ordinance No. 3 of 1876. Section 4 provides that whenever the Governor believes land may be needed for any public purpose, the Governor may direct the Surveyor-General or another authorised officer to examine the land and report on its suitability. Section 6 requires that the Surveyor-General or the authorised officer then submit a report to the Governor on whether possession of the land is required for the purpose that was previously identified as likely needed, and upon receipt of that report the Governor, with the advice of the Executive Council, may direct the Government Agent to make an order for acquisition of the land. The Court noted that these provisions illustrate the procedural steps whereby the existence of a public purpose is first assessed before any acquisition is authorized.

The Governor of Ceylon, acting on the advice of the Executive Council, ordered the Government Agent to make an order for the acquisition of land. The record shows that the procedure set out in the relevant sections of the Ordinance was duly observed, and the Governor issued a directive to the Government Agent to acquire certain land for a public purpose, specifically the construction of a road. The person whose land was taken appealed to the Privy Council, arguing that the land was not required for any public purpose and that the Governor’s direction was therefore invalid. The Privy Council rejected this argument, holding that the appellant could not claim that the land was unnecessary for a public purpose. In delivering the judgment, Lord Finley quoted with approval a previous Ceylon Court decision, Government Agent v. Perera, whose headnote stated: “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 purpose. 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.”

The Court observed that the earlier case should not be interpreted as granting limitless authority. In the cited case the land had been taken for the purpose of building a road, and it could not be argued that constructing a road was not a public purpose. The real issue, the Court explained, was whether the land was actually needed or wanted for a public purpose, not the nature of the purpose itself. The Lords held that the question of necessity was left to the satisfaction of the executive authority. The Court further noted that if land were acquired for a purpose that was clearly not a public purpose, the courts could not uphold the Governor’s action as beyond challenge. The judgment refrained from citing cases decided under the Land Acquisition Acts, such as Ezra v. Secretary of State, because, as the Privy Council pointed out in the arguments in Wijeyesekara v. Festing, the Indian Land Acquisition Acts expressly make the order of the local government directing acquisition conclusive. The Court also mentioned a third category of cases arising under war and emergency legislation, referring to Carltona Ltd. v. Commissioners of Works and Others as an example of that class.

In the case referred to, the court considered it a specimen for the purpose of analysis. The case had been decided pursuant to regulation 51 (1) of the Defence (General) Regulations, which provided that a competent authority, if it deemed it necessary or expedient in the interests of public safety, the defence of the realm, the efficient prosecution of war, or for maintaining supplies and services essential to community life, could take possession of any land and give such directions as it considered necessary or expedient in connection with that possession. The judgments in that case and in similar authorities held that Parliament had wholly entrusted to the executive the discretion to determine when it would be necessary or expedient to requisition land for public safety, defence of the realm, and related purposes, and that when this discretion was exercised in good faith no court could intervene. It was observed that the relevant provisions on which those cases were based dealt with matters such as public safety, defence of the realm, and efficient prosecution of war, subjects on which executive authorities are best positioned to judge. Consequently, it is difficult to formulate an objective test for deciding when the conditions that trigger executive action are satisfied. The court therefore concluded that there is no true analogy between the present matter and the specimen case, because a proper analogy must rest not only on similarity of language but also on similarity of objects. In complex or borderline situations, courts may find it challenging to determine whether a particular issue has been completely committed to the judgment of the executive authority, depending solely on its satisfaction, or whether the issue constitutes a condition precedent to the exercise of the authority’s jurisdiction or power. Although the line between these two situations may be thin, it must be drawn to reach a correct conclusion. The court reiterated that a petition for a writ of certiorari can succeed only if two conditions are satisfied: first, the order to be quashed must have been issued by an inferior court or a person or authority exercising a judicial or quasi-judicial function; and second, that court or quasi-judicial body must have acted beyond its legal authority. The second element appeared to be present in the present case, given the clear and well-reasoned findings of the three judges of the Bombay High Court. However, the court held that this was insufficient to justify granting a writ of certiorari against the respondent, because the requisition of the premises under section a of the Ordinance was a purely administrative act and did not involve any duty to determine the existence of a public purpose or any other matter in a judicial or quasi-judicial manner.

The Court observed that the remedy sought by the respondent was properly an action in law rather than a petition for a writ of certiorari, because the requisition of the premises under section a of the Ordinance did not involve any public purpose or any other matter of a judicial or quasi-judicial nature. Consequently, the Court found that the further points raised in the appeal did not require adjudication and agreed that the appeal ought to be allowed. The Court, however, left it to the Provincial Government to decide, in light of the findings of the Bombay High Court, whether it was appropriate to pursue the matter any further.

Justice Patanjali Sastri expressed concurrence with the allowance of the appeal, stating that he agreed with the reasons set out in the judgment of the senior judge and had nothing further to add. Justice Mehr Chand Mahajan also concurred with the judgment proposed by his brother Mukherjea, noting that he wished to add some observations out of respect for the Chief Justice, whose judgment they felt compelled to follow. He identified the principal questions presented by the appeal as follows: first, whether the requisition order dated 26 February 1948 made under section 3 of the Bombay Land Requisition Ordinance (Ordinance No V of 1947) constituted a quasi-judicial order; second, whether a writ of certiorari could be issued against the Government of Bombay; third, whether the High Court possessed jurisdiction to issue a writ of certiorari against the Provincial Government; and fourth, whether the requisition of the flat and its allotment to Mrs C Dayaram, a refugee from Sindh, were made for a public purpose.

The appellant contended that the requisition order was purely administrative and therefore not subject to a writ of certiorari, that no such writ lay against the Provincial Government, that the High Court lacked jurisdiction to issue a writ of certiorari against the Provincial Government, which in law includes the Governor, and that the requisition and allotment of the flat to Mrs C Dayaram were indeed for a public purpose. The Court reiterated the settled principle that a writ of certiorari lies only when the order challenged is judicial or quasi-judicial in nature, and that it is unavailable against an administrative or executive order.

To clarify the circumstances in which a writ of certiorari may be issued, the Court quoted the authority of Atkin L.J. in Rex v. Electricity Commissioners, stating that when a body possessing legal authority to determine questions affecting the rights of persons, and bearing a duty to act judicially, exceeds its legal authority, it becomes subject to the controlling jurisdiction of the higher court through such writs. The Court further cited Rex v. London County Council, which set out four essential conditions for the issuance of a writ of certiorari: the existence of a body of persons; the body’s legal authority to determine questions affecting the rights of subjects; the duty imposed on the body to act judicially; and the body’s act of exceeding its legal authority. The Court noted that the learned trial judge and the judges of the Court of Appeal had adhered strictly to these conditions and had not departed from them.

In this case, the Court observed that the requirement that a body act only within its legal authority was essential and that neither the trial judge nor the judges of the Court of Appeal had departed from this requirement. Rather, they had adhered strictly to it. The trial judge, Justice Bhagwati, pointed out that the jurisdiction of the King’s Bench Division under the writ of certiorari applied only when the four conditions previously set out were satisfied. The Chief Justice of the Court of Appeal then explained that the foundation of the writ was that the impugned act must be either a judicial or a quasi-judicial act. During the arguments, none of the parties contested the basic rules governing the writ; instead, the dispute focused on how to distinguish a judicial or quasi-judicial act from an administrative or purely ministerial act. The central issue, therefore, was where to draw the line between executive or administrative functions and those that were quasi-judicial or judicial in nature. The Chief Justice summarized the authorities on this point by stating that, first, legislation must impose a duty on the person or persons who are empowered to determine or decide some fact or facts. There must also be a genuine dispute, meaning that two opposing sides present a proposal and an opposition, creating a lis. The decision-maker must be required to weigh the arguments, consider the relevant facts and circumstances, and reach a conclusion after judicial deliberation. In other words, the duty must involve not merely deciding a question but doing so in a judicial manner. The Court held that this statement of the law was unquestionable and rested on authoritative precedent. It cited the classic definition of “judicial” given by May C.J. in The Queen v. The Corporation of Dublin, which explained that the writ of certiorari does not apply to purely ministerial orders such as a warrant, but it does apply to acts that are judicial in nature. For the purpose of this discussion, a judicial act was described as an act performed by a competent authority after considering facts and circumstances, and which imposes liability or affects the rights of others. The Court noted that these observations of May C.J. had been quoted by Lord Atkinson in Frome United Breweries v. Bath Justices as one of the best definitions of a judicial act.

The Court explained that a judicial act must be distinguished from an administrative act. This distinction received approval from Lord Greene, Master of the Rolls, in the case of Rex v. Archbishop of Canterbury. In Rex v. Woodhouse, Lord Fletcher Moulton, Lord Justice, observed that the term “judicial act” is used in contrast with purely ministerial acts and that the process of certiorari does not apply to the latter, for example to the issue of a warrant to enforce a rate even though the rate itself could be questioned by certiorari. He added that, in short, there must be the exercise of some right or duty in order to provide scope for a writ of certiorari at common law.

In the decision of Jagir Kamlapat v. The Collector of Bombay, Justice Bhagwati, after considering a number of English authorities, concluded that the phrase “judicial act” must be interpreted in a very wide sense, encompassing many acts that would not ordinarily be described as judicial. The cases cited at the Bar fully support this conclusion. Reference may be made to The King v. Postmaster General, where it was held that the issuance of a certificate by a medical practitioner was of the nature of a judicial act and that such a certificate was a proper object of proceedings by way of certiorari.

By the operation of section 1, subsection (1)(i) of the Workmen’s Compensation Act, 1925, and an order extending its provisions to include telegraphists’ cramp, a post-office workman who obtained a certificate from the certifying surgeon stating that he suffered from that complaint and was therefore disabled became entitled to compensation. Section 44, subsection (3), authorized a medical practitioner appointed by the Secretary of State to exercise the powers and duties of a certifying surgeon. An order made by the Secretary of State under that subsection provided that, with respect to post-office employees, the post-office medical officer in charge of the workman, if authorized to act, would be substituted for the certifying surgeon in cases of telegraphists’ cramp.

The practice of the post office was to refer all cases of telegraphists’ cramp to the Chief Medical Officer of the post office, and this reference was relied upon as constituting the Chief Medical Officer as the substitute for the certifying surgeon under the above subsection and order. In the case before the Court, the applicant claimed compensation for telegraphists’ cramp, and the matter was referred to the Chief Medical Officer in accordance with the usual practice. The Chief Medical Officer certified that the applicant was not suffering from telegraphists’ cramp. The Court treated the issuance of this certificate as a judicial act. Lord Hewart, Chief Justice, observed that there was a point in the case when it was argued that the document was of such a kind as not to be proper for the writ of certiorari, but he was satisfied that, given the role the certificate played in the making of any claim for compensation by a post-office worker suffering from telegraphists’ cramp, the certificate of the certifying surgeon was of the nature of a judicial act and therefore a fit subject for certiorari.

The Court observed that, although some counsel had contended that the document in question was not the sort of instrument appropriate for the issuance of a writ of certiorari, the Court was nevertheless persuaded that, when the role of a certificate of this character in the process of obtaining compensation for a post-office employee afflicted with telegraphists’ cramp is examined, the certificate issued by the certifying surgeon must be regarded as a judicial act and therefore constitutes a proper subject for a writ of certiorari.

In the earlier decision of Rex v. Boycott (1) the certification of a boy’s mental deficiency was held to be a quasi-judicial act that fell within the mischief that the remedy of certiorari was designed to address. Section 31 of the Mental Deficiency Act, 1913, provides that where there is any doubt as to whether a child is capable of benefiting from instruction in a special school or class, or whether his continued attendance might be detrimental to other children, the matter shall be determined by the Board of Education. In that case a medical officer issued a certificate stating that the boy, on account of a mental defect, was an imbecile and therefore incapable of further benefit from special instruction. The boy’s father subsequently moved for an order of certiorari to set aside and nullify the certificate. Lord Hewart C.J., in granting the writ, remarked: “In my opinion, on the facts of this case, this 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.” The judgment also relied on the observations made by 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 after it exercised its statutory power to grant a licence under the Cinematograph Act, 1909, and subsequently permitted the opening of premises on a Sunday in accordance with the Sunday Observance Act, 1780. Section 2, sub-section (1) of the Cinematograph Act, 1909, states that a county council may grant licences to persons for the use of premises for the exhibition of pictures or other optical effects by means of a cinematograph, subject to such conditions and restrictions as the council may determine, and that the council also possesses the authority to modify or waive any of those conditions or restrictions. Section 1 of the Sunday Observance Act, 1780, defines any house, room or other place that is opened or used for public entertainment or amusement on the Lord’s Day, known as Sunday, and to which persons are admitted upon payment of money, as a “disorderly house.” A company applied for a licence to open and use premises for cinematograph entertainments and also for

The company applied for permission to use its premises for cinematograph entertainments on Sundays, on Christmas Day and on Good Friday. In response to that application the county council issued an order that authorised the opening of the premises on those days provided that a sum of thirty-five pounds was paid to charity for each Sunday, Christmas Day or Good Friday on which the premises were used. Judge Scrutton, when granting the writ, observed that every proceeding of magistrates or confirming authorities that involves granting a new licence or renewing an existing licence is essentially a proceeding of a court. He explained that an excess of jurisdiction in such a proceeding may be corrected by the writ of certiorari. He further noted that the procedures for granting licences under the Cinematograph Act and the related proceedings are essentially the same as those followed by magistrates or confirming authorities when they deal with licences for public houses. In his view, the moment the council must decide on the terms and conditions of a licence, must require notice of the proposal, must hear the applicant and any opponents, and must take evidence, the proceeding becomes a tribunal. He said that such a tribunal falls within the jurisdiction of the King’s Bench Division, which may restrain it by means of a writ of certiorari.

Judge Slesser also considered whether the council is required to act judicially. He acknowledged that the statute clearly gives the council the authority to grant licences and that this authority affects the rights of individuals. He identified the third and most vigorously debated question as whether the council has a duty to perform a judicial function. Some argued that the council’s action was merely administrative and that a writ of certiorari was therefore inappropriate. Judge Slesser replied that he could not see any principled difference between an application for a licence under the Cinematograph Act and an application for a licence to operate a public house, which for many years has been recognised as a judicial act. He noted that the statutes do not contain an explicit provision for opposition to be heard, although there is an obligation to notify the police. The council, however, has devised an elaborate code that allows opposition to be presented. He examined other statutes that also confer licence-granting powers without mentioning opposition and found that, in at least one case, the actions of magistrates were treated as judicial. He referred to the case of Regina v. Justices of Walsall, which holds that even when a statute does not expressly provide for hearing opposition, the fact that a licence confers rights and obligations on certain persons makes the function judicial. He added that, as Justice Greer had pointed out, unless the body is usurping jurisdiction or acting beyond its legal powers, a writ of certiorari would not be necessary; to argue that certiorari should be denied merely because the body exceeded its powers would defeat the purpose of judicial review.

The Court referred to the authority of Reg. v. Justices of Walsall (1) to illustrate that a proceeding may be characterised as a judicial act even though the enabling statute does not expressly provide for an opportunity to hear opposition. In that case, the statute on its face appeared to grant licences to particular persons while withholding them from others, thereby creating specific rights and obligations. The absence of a statutory provision for hearing objections did not, according to the Court, eliminate the magistrates’ duty to act in a judicial capacity. Consequently, the magistrates were understood to have been acting, or at least purporting to act, judicially when they considered an application to modify the licence, assuming that the proceeding before them was indeed an application for such a modification.

Greer L.J., citing the judgment in Reg. v. Justices of Walsall (1) [1854] 3 W.R. 69, observed that a writ of certiorari would not be required if the body concerned were merely exercising its lawful jurisdiction without usurping any powers or acting beyond its legal authority. To argue that the writ would be unavailable simply because the body had exceeded its powers would, in the Court’s view, defeat the very purpose of the writ. The Court therefore framed the decisive question: whether, under the relevant statute, the magistrates had purported to perform a judicial function and whether the statute imposed upon them a duty to do so in hearing applications for licences. The Court expressed the opinion that the statute did indeed compel the magistrates to perform a judicial function in such proceedings.

The learned Attorney-General then cited Franklin v. Minister of Town and Country Planning (1) to support the proposition that the mere fact that a public enquiry may be required and that objections from affected persons may be heard does not automatically transform an administrative act into a judicial or quasi-judicial one. That case concerned the functions of a Minister exercising powers under the Town and Country Planning Act and the New Towns Act, 1946. Lord Thankerton, delivering the judgment, stated that no judicial or quasi-judicial duty was imposed on the respondent and that any reference to judicial duty or bias was irrelevant. He held that the respondent’s duties under section 1 of the Act and its Schedule 1 were purely administrative, although the Act prescribed specific methods and steps to be followed in discharging those duties. Lord Thankerton further explained that before issuing a draft order designating an area as a new-town site, the respondent was required to conduct a detailed inquiry, consult any local authorities that might be concerned, and, where appropriate, seek input from other government departments such as the Ministry of Health. The purpose of this extensive inquiry was to ensure that the respondent was satisfied that the proposed scheme was sound before taking the serious step of issuing the draft order.

Lord Thankerton also clarified that the invitation of objections and, where such objections were not withdrawn, the holding of a public inquiry by a person other than the respondent served a specific purpose. The public inquiry was intended to provide further information to the respondent for the final consideration of the soundness of the scheme of designation. The Court noted that the development of the site after the order’s issuance was primarily the responsibility of the development corporation established under section 2 of the Act. Accordingly, the Court concluded that no judicial duty was imposed on the respondent in the performance of these statutory functions; the only requirement was that the respondent complied with the statutory directions to appoint a person to conduct the public inquiry and to consider the report produced by that person.

In this case the Court explained that the purpose of inviting objections and, where the objections were not withdrawn, of holding a public inquiry before a person other than the respondent was to give the respondent further information required for the final consideration of the soundness of the proposed designation scheme. The Court noted that after the order designating the area is made, the primary responsibility for developing the site rests with the development corporation created under section 2 of the Act. It expressed the view that the respondent did not have any judicial duty in discharging these statutory functions; the only question for the respondent was whether it had obeyed the statutory direction to appoint a person to conduct the public inquiry and to give proper consideration to the report prepared by that appointed person. The Court emphasized that the statutory framework assigned the investigative and reporting tasks to the appointed individual, while the substantive decision-making about the scheme remained an executive function, not a judicial one.

The Court then turned to the distinction between executive or administrative acts and judicial or quasi-judicial acts, observing that although the line between the two is not precisely defined, a definite difference nonetheless exists. Whether an act is purely ministerial or judicial depends on the facts and circumstances of each case. Citing the observation made by Das in re Banwarilal Roy, the Court explained that this determination hinges on the specific wording of the rule involved, as well as on the nature, scope and effect of the particular power being exercised. In applying these abstract propositions to concrete situations, the Court held that the jurisdiction to issue a writ of certiorari varies according to the authority of the Chancellor. Accordingly, the question for decision was whether the Government constituted a body of persons vested with legal authority to decide questions affecting the rights of subjects, and whether, in performing that authority, it bore a duty to act judicially. The Court concluded that under the Bombay Land Acquisition Ordinance the Government satisfied both criteria: it was a body of persons having legal authority to determine questions affecting subjects’ rights, and its duty required a judicial approach. The Court stressed that the Government could not reach its determinations merely by private contemplation; it had to follow the procedural requirements set out in the Ordinance. An examination of those provisions showed that before forming an opinion that a requisition of land was necessary and expedient, the Government must address several mixed questions of fact and law, namely: whether the land was required for a public purpose; whether the land that formed the subject of the requisition was being used for public religious worship; whether the land intended for requisition was being employed for a purpose specified by a Provincial Government notification; and whether the premises in question were vacant. The Court observed that all of these inquiries involved both factual and legal considerations, and that no precise definition of the term “public purpose” had been supplied by any judicial decision.

In the case of Hamabai Premjee Petit v. Secretary of State for India (1), the Court observed that when land is taken for a “public purpose,” it is not required that the land be made directly available to the general public. Rather, a public purpose includes any objective that concerns the general interest of the community as a whole, as opposed to the particular interests of individual persons. The Court further noted that, at first glance, the Government is generally competent to decide whether a purpose serves the community’s general interests; however, this competence is not absolute. The Government cannot simply declare a purpose desirable because it wishes it and then order the requisition on that sole subjective desire.

The provision that asks whether the land is being used for public religious worship raises particularly difficult questions of fact and law. Determining the answer can seriously affect the legal rights of worshippers, trustees, and others who have an interest in a place of worship. Likewise, the question of whether premises are “vacant” must be resolved in accordance with the definition of “vacant premises” set out in section 4 of the Ordinance. This determination involves ascertaining whether vacancy arose because a tenancy ended, a tenant was evicted, the premises were released from a prior requisition, or for some other reason. The Ordinance imposes a duty on the landlord to notify the Government of any vacancy, and failure to perform that duty is punishable by law.

When the Government decides that a particular property is required for a public purpose and therefore ought to be requisitioned, the owner of the requisitioned premises acquires a right to compensation. The amount of compensation must, as the Court acknowledged, be determined in a judicial manner under the provisions of the Act. Consequently, a key question arose as to whether the language of the order intended that all the factual and legal questions that must be decided before the Government forms an opinion on the expediency or necessity of requisitioning certain premises were to be decided subjectively, allowing the rights of affected persons to be altered merely on the Government’s opinion, or whether those determinations were intended to be judicial or quasi-judicial in nature. In other words, the Court considered whether the resolution of these important questions should reside in the Government’s personal judgment or in the actual truth of the facts. The issue was whether the questions were to be decided by the mental operations and personal idiosyncrasies of Government officers, or whether their resolution depended on the existence of material facts. If the resolution of all such questions were to be reached by a purely subjective process, then the Court concluded that the Government’s act of requisition would be a purely ministerial act and would not fall within the scope of the writ. Conversely, if the factual and legal questions required objective determination, the inference would be that the determination would be of a judicial character, requiring an impartial assessment of the evidence and consideration of both the Government’s position and the position of the person whose rights were affected.

In this case, it was held that if the questions of fact and law were decided merely by the Government’s personal opinion, the act of requisition would be a purely administrative function and would not fall within the scope of the writ. Conversely, if those questions were to be decided objectively, the conclusion was unavoidable that the determination would be judicial in nature. The Court explained that a judicial method requires a process in which a proposition is examined against an opposing view; both the Government’s perspective and the perspective of the person affected must be considered, and the final decision must rest upon an assessment of the relevant facts and circumstances. The key issue was whether section 3 of the Ordinance required the Government merely to think that a premises was not being used for public religious worship, or whether it demanded a factual finding that the premises was not a place of public worship. Citing Lord Atkin’s observation in Liversidge v. Sir John Anderson, the Court asked whether the Ordinance contemplated a mere belief, such as thinking that a person has a broken ankle, rather than the actual existence of a broken ankle. In the same way, the Court considered whether section 4 contemplated only a mental vacancy in the Government’s mind, rather than an actual vacancy in fact. After careful consideration, the Court expressed no hesitation in holding that these questions were not for subjective government opinion but required objective determination. Accordingly, the determination had to be based on material evidence that the Government was authorized to request under the Ordinance. Moreover, it was not simply the Government’s duty to decide these matters, but to do so in a judicial manner—by hearing any opposition to the proposal and by grounding its decision on material gathered pursuant to sections 10 or 12 of the Ordinance. The Court emphasized that such determinations affected valuable property rights and rights of worship, and could have serious repercussions. It referred to the case of The King v. Bradford as a pertinent illustration: in that case, authority was granted to collect material for five years from land that the High Court had deemed a park, and the judges were held unable to acquire jurisdiction by wrongly deciding the land was not a park. In the present matter, the Court concluded that the Government could not obtain jurisdiction to requisition land by incorrectly finding that the place was not a public place of worship, nor could it gain jurisdiction by characterising a private purpose as a public purpose. The Ordinance, therefore, required the Government to make necessary inquiries, and it contained enabling provisions to facilitate those inquiries.

In this case, the Court observed that the Ordinance imposes a duty on the Government to conduct inquiries and to hear the persons affected before reaching a decision on matters of great importance. Although the Ordinance does not expressly state that objections must be heard, the power conferred by section 12 to obtain information from the occupier or owner of the premises indicates that, once inquiries are made, the person concerned must be given an opportunity to present his or her views and that those views must be taken into account. For the reasons already set out, the Court could not accept the Attorney-General’s interpretation of section 3 of the Ordinance. The Attorney-General had argued that section 3 meant that the determination of what constitutes a “public purpose” is solely a matter of the Government’s opinion and that the factual findings mentioned in the proviso also depend only on that opinion. The Court also rejected the contention that even if the matters required an objective determination, they could be resolved merely by administrative inquiries without hearing the persons concerned. In the Court’s judgment, both the trial judge and the judges of the Court of Appeal had arrived at a correct and well-considered conclusion in a case that lay on the borderline of the issues, and there were no substantial grounds for overturning that decision. Turning to the second question, the Court expressed no hesitation in holding that a writ of certiorari was available against the Government of Bombay. Section 306, read together with section 176 of the Government of India Act, 1935, expressly preserves the right to sue in all cases where such a right could historically have been exercised against the East India Company. The Attorney-General argued that the provision was limited to suits and actions and did not extend to a writ of certiorari, and further asserted that no power existed to issue a command to the Sovereign. The Court answered simply that the Provincial Government was not the sovereign, and that the Government of India Act expressly provides a right to sue the Province. The term “sue” is defined as the enforcement of a claim or civil right through legal proceedings; when a right is in jeopardy, any proceeding that can protect that right falls within the meaning of “sue”. Consequently, a writ of certiorari, being a remedy that vindicates a threatened right, falls within the expression “sue” used in section 176 of the 1935 Act and is therefore covered by the statute. The immunity conferred by section 306 applies to the Governor alone and not to the Province. The Attorney-General further argued that the word “Governor” in the section should be read as synonymous with “Provincial Government” based on the definition of “Provincial Government” found in section 46(3) of the General Clauses Act. The Court disagreed with that view, holding that the definition could not alter the interpretation of the Government of India Act, where the terms “Provincial Government” and “Governor” are used in distinct senses.

The Court noted that the Government of India Act employs the terms “Provincial Government” and “Governor” in two distinct senses and does not treat them as interchangeable. Accordingly, the Act confers immunity from suits on the Governor alone, while the Provincial Government itself does not enjoy that immunity, although the Governor may be an important part of the Provincial Government. Reference in this regard was made to the East India Company Act, 1780 (21 Geo. 3, c. vii), and to a series of statutes that ultimately culminated in sections 306 and 176 of the Government of India Act, 1935. It had been contended that, on the basis of the 1780 Act, the High Court lacked jurisdiction to issue a writ against the Governor. The Court pointed out, however, that the 1780 statute did not forbid the issuance of a writ against the East India Company, and that case law shows writs were indeed issued against the Company. In the Court’s view, the question must be decided solely on the terms of the Government of India Act, 1935, and not on the basis of any repealed enactment. The Court further observed that clauses 4 and 13 of the Charter of the Supreme Court originally empowered the High Court to issue a writ of certiorari against the East India Company, and that the same jurisdiction has been preserved under the 1935 Act. While several Madras decisions were cited, the Court held that those decisions were wrongly decided because they placed the Governor on the same footing as the Provincial Government through reasoning the Court considered incorrect. Turning to the merits, the Court found that the factual record unanimously showed that the requisition in the present matter was intended to benefit a private individual and was not made for any public purpose. Consequently, the Court concluded that the writ of certiorari was properly issued, that the appeal had no force, and that the appeal should be dismissed with costs. MUKHERJEA J.

This appeal was brought on behalf of the Province of Bombay and challenged the judgment of an appellate bench of the Bombay High Court comprising the Chief Justice and a puisne judge, dated 4 January 1949, which affirmed an order of a single judge dated 27 September 1948 that had granted a writ of certiorari to set aside a requisition order made by the Provincial Government under section a of the Bombay Land Requisition Ordinance (V of 1947). The factual background was largely uncontested and limited in scope. The Province of Bombay had issued a requisition order on 26 February 1948 concerning the first floor of a building known as “Paradise” situated at 22 Warden Road, Mahalakshmi, Bombay. The entire building was owned by a single proprietor. The Court’s analysis, therefore, focused on the legal question of whether the Provincial Government could be sued for the requisition, applying the interpretation of the 1935 Act, and on the factual determination that the requisition was not for a public purpose but for the benefit of an individual, which justified the issuance of the writ and the dismissal of the appeal.

In the factual background, Dr. M. B. Vakil and a man named Abdul Hamid had been occupying the first floor of the building known as “Paradise” as tenants under Dr. Vakil before the date of 29 January 1948. Abdul Hamid was planning to relocate to Pakistan and was actively searching for premises in Karachi where he could reside and continue his business activities. The principal party in the present appeal, the petitioner named Khusal Das, who had since passed away and was now represented by his heirs, was a refugee from Karachi. He owned a bungalow in Karachi that was valued at more than Rs. 50,000 and also operated a business in that city in which a substantial amount of capital had been invested. On 29 January 1948, an agreement was executed between Abdul Hamid on one side and, on the other side, Khusal Das together with his son Gobind Ram and the son of his brother’s daughter, Hiranand. Under the terms of that agreement, Abdul Hamid assigned his tenancy rights in the first floor of the Paradise building to the three members of the Das family, and in return he received a leasehold interest in the bungalow owned by Khusal Das in Karachi. The agreement contained other provisions, but those additional terms were not relevant to the matters before the Court and therefore were omitted from the present discussion. Pursuant to the agreement, the petitioner and his representatives took possession of the flat on 4 February 1948. Shortly thereafter, on 26 February 1948, the Government of Bombay issued a requisition order that took effect over the same flat. The requisition order was made pursuant to section 3 of the Bombay Land Requisition Ordinance (Ordinance No. V of 1947), which had been operative since 4 December 1947. The order bore the signature of Mr P. L. Rao, who was then the Secretary to the Government of Bombay in the Health and Local Government Department. On that same day Mr Rao sent a letter to Dr. Vakil informing him that the flat had been requisitioned, attaching a copy of the requisition order, and stating that the Government had allotted the premises to a Mrs C. Dayaram at a monthly rent of Rs 85. It was noted that Mrs Dayaram was herself a refugee from Sind. The following day, 27 February 1948, another order was issued under the signature of Mr Rao, authorising an inspector named Lalwani, who belonged to the Health and Local Government Department of the Bombay Government, to take physical possession of the requisitioned flat in accordance with section 9 of the Requisitioning Ordinance. In response to these actions, on 4 March 1948 the petitioner Khusal Das filed an application before the Original Side of the Bombay High Court. The application named P. L. Rao, Secretary to the Government of Bombay, as the principal respondent and challenged the legality of the requisition order, contending that the order was ultra vires and unlawful on several grounds. The petition prayed for the issuance of writs of certiorari and prohibition and also sought an order under section 45 of the Specific Relief Act against the respondent. Upon consideration of the petition, Justice Coyajee granted an interim injunction that restrained the Government from taking possession of the flat. Subsequently, the petition was amended to include the Province of Bombay and Mr G. D. Vartak, the Minister in charge of the Health and Local Government Department, as additional respondents.

A great many defenses were advanced by the respondents against the reliefs that the petitioner sought. The respondents argued, among other points, that the orders issued under the Requisitioning Ordinance did not constitute judicial or quasi-judicial decisions but were merely executive actions taken by the Province of Bombay. Consequently, they maintained that the writs of certiorari and prohibition could not be issued against orders of that nature. In support of Mr. Rao, it was submitted that he had not himself made any order; his role was limited to authenticating and signing the orders as required by section 59(2) of the Government of India Act. Regarding the Province of Bombay, the respondents contended that no writ could be directed against the Provincial Government, a term that includes the Governor of the Province, who is shielded from all judicial proceedings and processes under section 306 of the Government of India Act. It was further asserted that the Minister who was a respondent bore no personal responsibility for either the orders or their consequences under the Constitution. The respondents also claimed that the requisition of the flat and its allocation to Mrs Dayaram were undertaken for a public purpose. The petition was then heard by Justice Bhagwati, who rejected every contention raised by the respondents and granted the reliefs prayed for by the petitioner. He ordered that writs of certiorari and prohibition be issued against all the respondents and also directed the issuance of mandamus orders against each respondent except the Province of Bombay.

The order of Justice Bhagwati was appealed before the appellate bench of the High Court, identified as Appeal No 65 of 1948, and the appeal was heard by Chief Justice Chagla and Justice Tendolkar. In their judgment dated 4 January 1949, the learned judges allowed the appeal insofar as it favored the two respondents other than the Province of Bombay, setting aside the writs and mandamus orders directed against them. However, they affirmed Justice Bhagwati’s judgment to the extent that it concerned the Province of Bombay and they upheld the writ of certiorari issued against that Provincial Government. The Province of Bombay subsequently filed an appeal before this Court. Appearing on behalf of the appeal, the learned Attorney-General argued that, in view of the provisions of the Ordinance under which the requisition order was made, no writ of certiorari was legally available. The first ground of his argument was that the order complained of was a ministerial or administrative order that did not involve any judicial or quasi-judicial function, and that such purely administrative orders are not subject to the writ of certiorari. As an alternative ground, it was submitted that even if the Provincial Government exercised a semi-judicial function when making an order under section 3 of the Ordinance, the question of whether the requisition served a public purpose was a factual issue that the Provincial Government was competent to determine under the terms of the Ordinance itself; therefore, no writ of certiorari could be invoked to challenge the Government’s decision on that factual point. Finally, it was contended that the Provincial Government enjoys immunity from all court processes, rendering it beyond the reach of any writ of certiorari.

It was submitted that, according to the Ordinance, no writ of certiorari could be issued to challenge a decision of the Provincial Government on the question of whether the requisition served a public purpose, and that the Government was altogether immune from court processes. The first and second submissions were closely related, and the discussion treated them together. Both matters raised intricate questions of considerable general importance, and elaborate arguments were presented by counsel on both sides. The primary issue for consideration was whether the requisition order, which the High Court had asked to be examined through a writ of certiorari, constituted a judicial act or an administrative act. It was agreed that a writ of certiorari does not lie to set aside a purely ministerial act; it may be used only to review and determine the validity of judicial acts. To clarify the meaning of “judicial act” in the context of a writ of certiorari, and to decide whether the present order fell within that category, it was necessary to outline briefly the current state of English case law on the subject. A writ of certiorari, like a writ of prohibition, is an ancient judicial writ that traditionally allows the Court of King's Bench Division to supervise the actions of bodies vested with inferior jurisdiction. The writ serves to bring before the High Court the records of proceedings or determinations of such inferior tribunals and to set them aside if they have acted beyond their jurisdiction. Established authority confirms that the writ is not confined to bodies normally described as courts. As observed by Fletcher Moulton L.J. in Rex v. Woodhouse, the procedure of certiorari applies in many cases where the body whose actions are questioned would not ordinarily be termed a “court,” nor would its actions be described as judicial acts. The limitation, therefore, is that “judicial act” is distinguished from purely ministerial acts, to which certiorari does not apply, such as the issuance of a warrant to enforce a rate, even though that rate itself could be subject to certiorari. In essence, there must be the exercise of some right or duty to decide in order to provide a basis for a writ of certiorari at common law, as noted by May C.J. in Reg. v. Dublin Corporation.

It was clear that the writ of certiorari had originally been created for use only against inferior courts that were described by the ordinary meaning of the word “court.” As the legal system evolved, a variety of bodies that performed semi-judicial functions were established, and the reach of the writ was progressively broadened to include those entities as well. A substantial body of case law demonstrated that the writ had been issued against rating authorities, licensing justices, electricity commissioners, the Board of Education, the General Medical Council, the Inns of Court, assessment committees, the Commissioner of Taxation and numerous other authorities. Although these bodies did not possess the power to conduct full trials or render judgments in the strict sense, they exercised functions that could be characterised as judicial or semi-judicial. An illustrative example was found in the case of King v. Postmaster General, where a writ of certiorari was granted to set aside a disablement certificate issued by the Chief Medical Officer of the Post Office. The certificate had been issued despite the fact that the officer was not the certifying surgeon named under the Workmen’s Compensation Act, 1925, and the court held that the act of granting the certificate constituted a judicial act. In another matter, Rex v. Boycott, a father named Russell Keasely applied for a certiorari on behalf of his infant son, Stanley. He sought to have a medical certificate, which declared that Stanley was mentally defective and therefore ineligible for instruction in a special school under section 56 of the Education Act, as well as two related documents, set aside. The court observed that there were genuine doubts as to whether the child was indeed in-educable and that the determination of such a question properly fell within the jurisdiction of the Board of Education under section 31. Accordingly, the three documents, which formed parts of a single transaction and represented a determination by a quasi-judicial authority, were deemed to exhibit precisely the type of wrongdoing that a writ of certiorari was intended to remedy. The court therefore ordered that all three documents be brought before it and subsequently quashed. Even a report prepared by a Chief Gas Examiner was later removed and set aside by a writ of certioradi, underscoring the wide applicability of the remedy to various administrative determinations.

The evolution of the law in this area was summed up by Banks L.J., who observed that the development of common law demonstrated a proud willingness to apply established principles to new circumstances whenever possible and necessary. This perspective was echoed in Rex v. Inhabitants of Glamorganshire, where the court expressed, in very general terms, that it would scrutinise the proceedings of any jurisdiction created by an act of Parliament. If, under the guise of such an act, a body attempted to extend its jurisdiction beyond the limits intended by the legislation, the court would issue a writ of certiorari to bring those proceedings back before it. The purpose of this intervention was to ensure that the body remained within its lawful authority and, where it overstepped, to restrain it. The overarching principle governing the issuance of writs of certiorari was later articulated by Atkin L.J. in Rex v. Electricity Commissioners. He stated that whenever a body or individual possessing legal authority to resolve questions affecting the rights of persons, and who is bound by a duty to act judicially, exceeds that authority, the body becomes subject to the supervisory jurisdiction of the King’s Bench Division through the writ of certiorari. This statement of law has been reaffirmed repeatedly in subsequent cases and has never been seriously questioned, even though it does not by itself resolve the practical difficulties that arise in specific cases. While the principle establishes the existence of a duty to decide judicially, it does not enumerate the precise parameters of that duty or provide detailed guidance on its application.

The Court explained that the purpose of sending proceedings back to a lower court was to allow that court to verify whether it was acting within its lawful jurisdiction and, if it was found to have acted beyond that jurisdiction, to restrain it. The Court then summarized the entire law concerning the issuance of writs of certiorari by quoting Atkin L.J.’s statement in Rex v. Electricity Commissioners (4): “Whenever any body or 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 the controlling jurisdiction of the King’s Bench Division exercised in these writs.” The Court noted that this proposition of law had been affirmed and reiterated in numerous subsequent decisions (5) and that its correctness had never been challenged. Nevertheless, the Court observed that, although the statement was sound, it did not by itself resolve the practical difficulty that arose in cases of the present description. The statement simply presupposed the existence of a duty on the authority to decide judicially, but it did not specify or indicate the circumstances in which such a duty was to be imposed. The Court cited the authorities R. v. London County Council, 11 T.L.R. 337; Vide Rex v. Electricity Commissioners, [1924] 1 K.B. 171 at p. 192; 1 Ld. Raym. 580; [1924] 1 K.B. 171 at p. 205; Vide R. v. North Worcestershire Assessment Committee, [1929] 2 K.B. 397 at p. 405-6; and R. v. London County Council, [1931] K.B. 215 to illustrate that the law did not enumerate the conditions required for the duty to arise.

The Court further referred to the observation made by Das J. in a recent Calcutta case, noting that of the four elements set out by Lord Atkin, three could also be present in an administrative or executive act. The Court explained that a valid executive act necessarily presupposed that the officer or department possessed legal authority to perform the act, and such executive acts could indeed affect the rights of subjects. The Court acknowledged that it was not uncommon for an executive authority to overstep the limits of its jurisdiction and act beyond its powers. However, the Court emphasized that it was not disputed that a writ of certiorari could not be issued to restrain or invalidate such executive acts. Referring to Lord Hewart C.J.’s observation in Rex v. Legislative Committee of the Church Assembly (2), the Court stated that for a body to satisfy the required test it must not only have legal authority to determine questions affecting the rights of subjects but must also possess the additional characteristic of a duty to act judicially.

Consequently, the Court identified the material issues for consideration as follows: what is the true criterion of a judicial act, and how can it be ascertained whether an authority is bound to act judicially in a particular matter. The Court also mentioned that one of the most respected definitions of a judicial act, distinguished from an administrative act, was given by May C.J. in the Irish case of Reg. v.

Dublin Corporation was the subject of a dispute concerning the legality of a borough rate that the Corporation had imposed. The central issue presented to the Court was whether the levy of that rate was unlawful. The Court observed that, ordinarily, the borough fund of the Corporation was adequate to meet all legitimate expenditures; however, the fund had become deficient because certain illegal payments had been withdrawn from it. To compensate for the shortfall, the Corporation imposed a borough rate, and the legality of that rate was challenged. Consequently, a petition for a writ of certiorari was filed, seeking to set aside all the resolutions of the Corporation relating to the imposition of the rate. The Court granted the writ and, while delivering the judgment, Chief Justice May examined the meaning of the expression “judicial act.” He stated that the term “judicial” does not necessarily refer only to acts performed by a judge or a legal tribunal in determining questions of law. For the purpose of the present inquiry, a judicial act, according to May, is an act undertaken by a competent authority after considering the relevant facts and circumstances, and which imposes liability or affects the rights of others. He further explained that if a body is empowered by law to investigate facts, make estimates, and impose a rate on a district, then the actions of such a body that produce those consequences must be regarded as judicial acts.

This definition received endorsement from Chief Justice Palles in Re: Local Government Board, Expand Kensington Commissioners, and it was reproduced in full by Lord Atkinson in the case of Frome United Breweries Company v. Bath Justices. The passage quoted above demonstrates that the learned Chief Justice was describing what may be termed the judicial process. He emphasized that a judicial act necessarily creates rights or imposes obligations; however, an act that merely affects the rights of subjects is not automatically a judicial act. Every judicial act presupposes the application of a judicial process, and there is a clear distinction between forming a personal or private opinion about a matter and determining it judicially. In the execution of an executive act, an authority must consider the material before it, but the opinion formed is purely subjective and depends entirely on the authority’s state of mind. It is required that the authority act in good faith, and if it is shown that no extraneous considerations influenced the decision, no further comment is necessary. By contrast, a judicial proceeding follows a different method of application. The judicial process involves applying a body of rules or principles by means of a specific psychological technique, as noted in the citation to 16 L.R. Ir. 150 and the case reported at [1926] A.C. 586. This process includes the presentation of a proposal, the opportunity for opposition, and the eventual decision based on an examination of facts and circumstances in accordance with established rules.

The Court observed that it was not essential for a tribunal to adhere rigidly to the formal rules of evidence. The method employed to investigate facts or to receive evidence could be adapted to the particular necessities of the case before it. The Court emphasized that there was no inflexible rule governing such procedures; however, the conclusion reached by the authority could not be based on a merely subjective, personal, or private viewpoint. Instead, the decision had to conform to an objective criterion that is established or recognized by law, and the correctness of the determination had to be susceptible to assessment against that same external standard. This requirement, the Court explained, constitutes the core of a judicial function and distinguishes it from an administrative function. Whether a body is required to perform a judicial or an administrative role depends wholly on the provisions contained in the relevant enactment. When the statute plainly specifies the nature of the function, the Court anticipated no difficulty. Conversely, when the language of the enactment fails to define precisely the type of function to be performed, considerable problems may arise. Numerous decided cases dealing with similar questions were cited by counsel for both sides. Because those cases pertained to the powers and duties of various authorities under different statutes and wartime regulations, each dealing with distinct subject-matter and employing varied wording, they offered no direct guidance for the matter at hand. The Court nevertheless thought that a few general principles could be extracted from certain pronouncements of the English courts, which might illuminate the interpretation of the Ordinance under consideration.

The Court noted that, as a general rule, when the wording of a statute makes it clear that the personal satisfaction of an authority on specific matters constitutes the basis of that authority’s jurisdiction to make certain orders or take certain actions, such a function should be classified as an executive function. The leading illustration of this principle, the Court said, is found in the House of Lords decision in Liversidge v. Anderson. In that case, Lord Atkin, in his dissenting judgment, observed that when discretion is left to a Minister or another authority without any qualification, and the statute employs expressions such as “A Secretary of State… if it appears to him necessary may order; if it appears to the Secretary of State that any person is concerned…; if the Secretary of State is satisfied that it is necessary or expedient,” the resulting act must be regarded as an executive act. Lord Atkin, however, was inclined to interpret the phrase “if the Secretary of State has reasonable cause to believe” as meaning that there must in fact be reasonable cause, rather than merely a subjective belief. The Court quoted the relevant authorities, including Robson’s Justice and Administrative Law, page 33, and R. v. London County Council [1931] 2 KB 215 at page 233, to support this observation. The discussion concluded with Lord Atkin’s view that the words should be read as requiring actual reasonable cause.

The judgment explained that, according to the Lord who gave the dissenting opinion, the phrase “reasonable cause for believing” should be understood to mean that a genuine, positive fact exists which can be determined by a third party, just as any other objective condition can be assessed. The majority of the House, however, rejected this interpretation. The majority held that the words merely required the Secretary of State to honestly suppose that he possessed reasonable cause to believe the matter in question, and that, provided the decision was made in good faith, the person who issued the order was the only proper judge of the limits of his own jurisdiction. Once the House of Lords had clarified the law in that manner, many subsequent cases arose before the English courts that involved the examination of provisions found in various other orders and regulations dealing with the control of businesses or the requisition of property. The language used in those later orders closely resembled the language of Regulation 18 (B), which formed the basis of the detention order in the Liversidge case. In the case of Point of Ayr Collieries Limited v. Lloyd George, the Ministry of Fuel and Power assumed control of the appellant’s undertaking through an order issued under the Defence (General) Regulations 1939, regulation 55. The relevant portion of that regulation stated: “If it appears to the competent authority that, in the interest of public safety, the defence of the realm, the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, it is necessary 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 appellant argued that the Minister had no adequate grounds on which to state, as he claimed, that it was necessary to take control in the interests of the realm or for the efficient prosecution of the war. The Court held that it possessed no jurisdiction to interfere with an executive order that had been made bona-fide. In the contemporaneous case of Carltona Limited v. Commissioners of Works and Others, the appellant’s factory was requisitioned by the Commissioner of Works under the Defence (General) Regulations 1939, regulation 51. The requisition order was challenged, among other grounds, on the basis that the requisitioning authority had never truly considered the issue, and that even if it had, it could not logically have arrived at the conclusion it actually reached. The regulation in that case employed language almost identical to the earlier provision, stating: “If it appears to the competent authority to be necessary or expedient to do ….” The Court, following the reasoning set out in the earlier authorities, held that the Parliament had entrusted the executive with the discretion to decide when a requisition order should be made, and that, when such discretion is exercised in good faith, no court may intrude upon that executive judgment.

The Court observed that Parliament had transferred to the executive the power to decide the appropriate moment for issuing a requisition order under the regulation, and that, provided the executive exercised that power honestly, the courts possessed no jurisdiction to intervene. This principle was reflected in the authority cited as (1) [1943] 2 A.E.R. 560. The Court further noted that even when a statute appears to grant the executive an unrestricted discretion, certain statutory provisions may impose a duty on the authority to act in a quasi-judicial manner. In particular, provisions that require public inquiries and the consideration of objections can transform the exercise of discretion into a function that is not purely administrative.

The Court illustrated this point by referring to the case of Phoenix Association Company v. Minister of Town and Country Planning (1). In that matter an application was brought seeking to set aside an order made under section 1(1) of the Town and Country Planning Act, 1944. That section authorised the Minister to declare land in any area to be subject to compulsory purchase if the Minister was satisfied that such a declaration was necessary for dealing satisfactorily with extensive war-damage in the area of a local town-planning authority and that the lands should be laid out afresh and redeveloped as a whole. Justice Hem Collins held that the question was not so purely administrative as to be a matter of unfettered discretion. He emphasized that the Act was not a temporary piece of legislation such as Regulation 18 (B), and that the statutory requirements for holding a public inquiry and hearing objections indicated that the Minister’s function possessed a quasi-judicial character. No appeal was filed against that judgment.

Subsequently, the Court reported a contrasting decision from the Court of Appeal in Robinson and others v. Minister of Town and Country Planning (2). In that appeal the Court held that an order under section 1(1) of the Town and Country Planning Act was made by the Minister in his capacity as an executive authority, and that the Minister was free to base his opinion on any considerations he deemed appropriate. The appellate judges stressed the significance of the words “requisite” and “satisfactory” appearing in the statutory provision, as noted in the authorities (1) [1947] 1 A.E.R. 454 and (2) [1947] 1 A.E.R. 851. According to those judges, the decision involved matters of opinion and policy that were specifically within the Minister’s domain, and, assuming the Minister acted honestly, he acted as the sole judge of those issues. The Court further observed that the statute did not prescribe an objective test, and that different considerations might arise where a minister could be shown to have exceeded the limits of his power, for example where the statute prescribed specific conditions for the exercise of discretion and the minister acted outside those conditions.

The Court observed that the analysis differs when the conditions required by the statute are absent. In the case of Errington and others v. Minister of Health (1), the issue was whether a Minister of Health’s order confirming a clearance order that had been made by a local authority under section 1 of the Housing Act of 1930 should be characterised as an executive act or as a judicial act. The Court held that where no person with an interest in the land objects to the clearance order and the Minister simply confirms that order, the Minister does not perform any judicial or quasi-judicial function. However, the Court explained that the situation changes if objections are raised. In that circumstance the statute obliges the Minister to conduct a public local enquiry as prescribed by the Act and to consider the report prepared by the person who presided over that enquiry. The Court said that, under those facts, the Minister’s decision to confirm the clearance order amounts to the exercise of a quasi-judicial function. That decision was reached in the context of the Housing Act of 1930. By contrast, in Franklin v. Minister of Town and Country Planning (2), a case decided under the New Towns Act of 1946 that contains provisions very similar to those of the Housing Act, the House of Lords held that when the Minister reviews the report of the person who conducted a public enquiry after objections have been made to an order under section 1(1) of the New Towns Act, the Minister is not burdened with any judicial or quasi-judicial duty. Consequently, the Court stated that any consideration of bias in the performance of such duties is wholly irrelevant. From the authorities mentioned, the Court noted that the line between judicial and executive functions is often extremely fine, and reasonable disagreement among judges is not uncommon when they are called upon to interpret statutory provisions that employ nearly identical language.

The Court then turned to the general principle that governs the classification of a function as executive rather than judicial. It explained that, leaving aside the specific cases where a duty to act judicially is inferred from statutory provisions dealing with enquiries or the hearing of objections, the prevailing rule is that when the basis for an authority’s exercise of power is the authority’s own personal satisfaction or a subjective opinion about certain facts, the function must be regarded as executive. The Court recognised that the facts in question may be objective, but the authority is still required merely to form its own opinion about them. For example, when a statute empowers a Minister to requisition property or to make a compulsory purchase if the Minister “deems it expedient” for public safety or for the defence of the realm, the condition precedent to exercising that power is not the actual existence of a national interest, but the Minister’s personal belief that such an interest exists. Citing Lord Radcliffe, the Court observed that “If the question whether the condition has been satisfied is to be conclusively decided by the man …,” thereby emphasizing that the decisive factor is the authority’s subjective judgment rather than an objective factual determination.

In explaining the effect of the person who holds the power, the Court observed that the value of any intended restraint is essentially nil (1). The Court then explained that a statute which imposes an objective condition of fact as a prerequisite for an authority to exercise its powers, rather than merely relying on the authority’s personal satisfaction or opinion, creates a function that is, at first glance, judicial. This distinction was illustrated by Lord Atkin in the classic judgment of Liversidge’s case (2). For instance, where a statute makes it a condition for authority A to act that “X has a right of way” or “Y has a broken ankle,” the authority is required to investigate those factual matters and must do so by applying a judicial enquiry to determine whether the condition actually exists. In such a scenario the authority must ascertain the truth of the facts before it can lawfully proceed. On the other hand, if the statute merely requires that the authority thinks or is of the opinion that X has a right of way or that Y has a broken ankle, the condition is purely subjective (1) Vide Nakkuda Ali v. M.F. De S. Jayratne 54 G.W.N. 883, 888. (2) [1942] A.C. 206, 207. In this latter situation the exercise of power cannot be described as a judicial act because a third party cannot verify the existence of the condition by applying any rule of law or established procedural test.

The Court then turned to another question raised by the learned Attorney-General. When the legislature delegates a power to an authority but supplies a condition that the power may be exercised only if a certain state of facts exists, the authority is plainly barred from acting when that factual condition is not satisfied. If the authority erroneously holds or assumes that the condition exists, when in reality it does not, its claim to jurisdiction becomes unsupported and may be set aside by a writ of certiorari. Nevertheless, the legislature may also confer upon the authority the jurisdiction to determine whether the preliminary factual state exists. In such cases, even if the authority reaches a mistaken conclusion of fact or law, the error may be corrected by an appellate tribunal, if one is provided, but not by a writ of certiorari, because an authority acting within its assigned jurisdiction retains the competence to decide both correctly and incorrectly (1). The Court emphasized that the presence of a jurisdictional fact does not automatically make the authority’s decision subject to supervisory review unless the statute expressly makes the determination of that fact a matter for judicial determination.

Having set out those guiding principles, the Court proceeded to examine the Bombay Land Requisition Ordinance, 1947, to determine whether the power of requisition created by section 3 of that Ordinance is a judicial function or a purely administrative order. The title of the Ordinance makes clear that its purpose is to provide for the requisition of land, for the continuance of requisitions already made, and for other related purposes. The first preamble explains that the Governor-General, exercising the powers conferred on him by section 104 of the Government of India Act, 1935, has empowered all provincial legislatures to enact laws concerning the requisition of land. The second preamble, as the Court noted, sets out the specific reason for enacting the Ordinance, namely that the Bombay Legislature was not in session and the Governor of Bombay was satisfied that immediate action was necessary to enable the Provincial Government to make provisions for land requisition and for the continuance of lands already subject to requisition. The Court turned to the wording of section 3, which authorises the Provincial Government, in its opinion, to requisition any land for any public purpose, subject to a proviso limiting the types of land that may be taken, and considered whether that language indicated a judicial determination of fact or an administrative exercise of discretion.

The judgment referred to the observation of Per Esher L.J. in Queen v. Commissioners for the Special Purposes of Income Tax, 21 Q.B.D. 313 at p. 319, and then examined the Bombay Land Requisition Ordinance, 1947. The Ordinance recorded that the Bombay Legislature was not in session and that the Governor of Bombay was satisfied that circumstances existed which made it necessary for him to act immediately so that the Provincial Government could make provisions for requisitioning land and for the continuation of requisition of lands already subject to requisition. The most material provision for the present purpose was Section 3, which read: “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.” A proviso followed, stating: “Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section.” The language of the section together with the proviso, in the Court’s view, indicated that the power to requisition land was placed in the executive discretion of the Provincial Government, which could exercise that power whenever it considered requisition necessary or expedient. However, the enactment also imposed conditions that must be satisfied before the power could be exercised. The first condition, embedded in the section itself, required the existence of a public purpose as an essential prerequisite for any requisition. Even when that prerequisite was met, the proviso introduced an additional limitation by exempting from requisition any land used for public religious worship or any land designated for a purpose that the Provincial Government later specified in the Official Gazette. According to the Court, the existence of a public purpose had to be an objective fact, not merely the subjective opinion of the Provincial Government that such a purpose existed. This conclusion was drawn from the wording of Section 3 and from the overall scheme of the Ordinance, which reflected the intentions of its framers. The Court emphasized that Section 3 does not simply read that “if in the opinion of the Provincial Government it is necessary or expedient to requisition land for any public purpose, it may do so by an order in writing.” If the provision were interpreted that way, it could be argued that the decision rested solely on the Provincial Government’s subjective judgment about the presence of a public purpose, a view that the Court rejected.

In the passage under discussion, the Court observed that if an authority undertook a requisition in good faith, the judiciary would not intervene in that decision. The Court noted that the phrase “public purpose” was placed at the conclusion of the relevant sentence, a placement that signified that the term functioned as a matter ancillary to, rather than part of, the act that had previously been described and that had been left to the discretion of the executive. Consequently, the Court explained, “public purpose” represented an independent factual circumstance; its existence permitted the executive to proceed with the requisition of property, yet the existence of that fact was not contingent upon the personal judgment of the executive. The Court expressly agreed with the opinion of Chagla C.J., affirming that the words “to do so” referred to the act of requisition itself, that is, to the character of the act, and not to the underlying purpose for which the requisition was made. Furthermore, the Court observed that, unlike several statutes and regulations previously cited, there was no suggestion that both the necessity or expediency of the requisition and the existence of a public purpose were matters of the executive’s personal opinion. The Court recalled that counsel had drawn attention to the wording of section 4 of the Indian Land Acquisition Act and to comparable provisions in other land-acquisition statutes, where the term “public purpose” also appeared. The Court pointed out that the language of those provisions differed materially from the language of section 3 of the Ordinance currently before it. To illustrate the point, the Court referred to the Privy Council decision in Wijeyesekera v. Festing, a case that involved the Ceylon Acquisition of Land Ordinance. Section 4 of that Ordinance provided that whenever the Governor considered that land in any locality might be required for a public purpose, the Governor could lawfully direct the Surveyor General or another officer to examine the land and to report on its suitability for that purpose. Section 6 then required the Surveyor General or the designated officer to submit a report to the Governor indicating whether possession of the land was indeed needed for the purpose that had been deemed likely, and upon receipt of that report the Governor, with the advice of the Executive Council, could lawfully direct the Government Agent to issue an order for the acquisition of the land. The Court explained that the issue presented for determination was whether the Governor’s decision that the land was required for a public purpose was final, and that the Privy Council answered this question in the affirmative. The Court concluded that, based on the explicit language of the two cited sections, no alternative interpretation was possible. Moreover, the Court emphasized that, under the Ceylon Ordinance, the existence of a public purpose was not a condition precedent to the Governor’s exercise of his powers; rather, the Governor alone was designated as the sole judge of whether a public purpose existed.

The Court observed that the authority’s power extended not only to recognising the need for land but also to determining the necessity of acquiring that land for the stated purpose, and that no condition was placed on or restricted his powers in any manner. The Court noted that the wording of section 4 of the Land Acquisition Act of India was substantially the same, beginning with the words, “Whenever it appears to the local Government that land in any locality is needed or likely to be needed for any public purpose ….” The Court further explained that, under section 6(3) of the same Act, a declaration by the Government that any land is required for a public purpose served as conclusive evidence of the existence of such purpose. The Court emphasized that the extent of powers given by the Legislature to any body or tribunal must be derived from the actual language used by the Legislature; the mere similarity or even identity of the objects involved could not justify assuming that the Legislature intended the same meaning in different statutes where the language differed. The Court stressed that utmost attention must be given to the precise words, because there is no presumption that the Legislature intended to grant one kind of power rather than another, and any presumption that does exist favours the liberty of the individual. Accordingly, any law that intrudes upon that liberty must be interpreted strictly and must not be extended beyond the plain grammatical meaning of its words. The Court pointed out that a comparable provision in section 3(1) of the West Bengal Premises Requisition and Control Act was expressed in different language, and that the actual existence of a public purpose was not made a condition precedent to the exercise of powers by the Provincial Government. That section read, “Whenever it appears to the Provincial Government 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.” The Court mentioned a recent decision of the Calcutta High Court on that Bengal provision, but noted that the specific issue arising in the present case could not be raised there. Finally, the Court concluded that a review of the entire Bombay Ordinance gave a clear impression that its framers did not intend to grant the Executive Government unlimited and unfettered discretion in requisitioning property; instead, the powers were to be exercised within defined limits. Section 3, as quoted above, imposed a two-fold restriction: first, by requiring the objective existence of a public purpose as a prerequisite to discretionary power, and second, by excluding the power altogether when the land was being used for a public religious purpose.

The provision that excludes cases involving a public religious purpose creates an objective condition whose existence bars the Provincial Government from exercising its requisition powers. Section 4 addresses the requisition of vacant premises; rather than allowing the executive alone to decide whether a premise is vacant, sub-clause (i) supplies a detailed description of the circumstances in which a vacancy is deemed to arise under the law. Consequently, the authority to requisition vacant premises may be exercised only when the specific conditions laid down in Section 4 are satisfied. Section 8 concerns powers of enquiry for the purpose of determining compensation as provided for in Section 6, but that section is not relevant to the matter before the Court. Section 10 contains a general provision empowering the Provincial Government, in order to achieve any purpose contemplated by the Ordinance, to issue an order requiring any person to furnish any information in his possession relating to land that has been requisitioned or is proposed to be requisitioned. This provision is clearly an enabling one, and it does not, by itself, demonstrate that the function performed by the Provincial Government is judicial in nature.

The Court observed that the duty to act judicially is, in its view, implicit in Section 3. It stressed that determining whether a “public purpose” exists involves making decisions on questions of both fact and law. The Court quoted Lord Loreburn in Board of Education v. Rice (1), noting that recent statutes have increasingly imposed on State departments or officers the duty of deciding various questions. Sometimes the determination involves purely administrative discretion without any legal question; at other times it requires the application of law to facts, or even involves only a question of law. In those instances, the Board must ascertain both the law and the relevant facts, which Lord Loreburn identified as a clear indication of a judicial duty. The argument presented during the hearing that, because the actual act of requisition is discretionary, a writ of certiorari could not be issued, was found to be unconvincing. The Court explained that the discretion to requisition is contingent upon a preceding condition; if that condition is not met, the exercise of discretion is void. It is a common feature of such legislation that an authority may be required to perform both ministerial and quasi-judicial functions, and the question remains whether the authority acts purely administratively or is required to assume a quasi-judicial role at some stage.

The Court explained that the principles to be applied must be derived from the provisions of the Act. It cited the case of Errington v. Minister of Health (2) as a leading authority, observing that the same proceeding can be administrative at one stage and quasijudicial at another. In the Court’s view, the situation may be summarized as follows: the Provincial Government is required to satisfy itself that a public purpose exists before it may requisition any property. Because this requirement is an objective condition that is not left to the personal opinion of the Executive, it must be determined judicially, and the question of whether a public purpose exists is a mixed question of fact and law that can be resolved by applying well-established legal principles to the circumstances of the particular case, as indicated in the authorities cited at (1) [1911] A.C. 179 at p. 182 and (2) [1935] 1 K.B. 249. The Court noted that there is undeniably a dispute or point in controversy—what is sometimes described as a proposal and an opposition. On one side there is the public interest; on the other side there is the individual interest of the person whose property is being requisitioned. No formal list of parties is required; it is sufficient that a point in issue exists which must be decided between parties whose interests conflict with respect to the same matter. The fact that the Provincial Government represents the public interest is, in the Court’s opinion, immaterial to the analysis. If a duty to decide exists, that duty is judicial in nature, and it is not necessary that two opposing parties, other than the deciding authority, appear in a regular or formal proceeding. Consequently, the Court concluded that, on the first question, the decision of the High Court was correct and the submissions raised by the Attorney-General must fail. The Court then turned to the second question: whether the Ordinance had conferred on the Provincial Government the jurisdiction or authority to make a final decision, as part of the requisition proceeding itself, on the existence of a public purpose. If such authority had been conferred, any error made by the Provincial Government would be an error of fact or law, not an error of jurisdiction, and consequently a writ of certiorari would not be available. The Court reiterated that, according to the language of section 3 of the Ordinance, the act of requisition, once the condition precedent is satisfied, is a purely executive act, leaving the Provincial Government with unfettered discretion. Where the factual condition exists that authorises the Provincial Government to act, the function it performs is purely administrative and does not involve the performance of any judicial duty. In that circumstance, the determination of whether a public purpose exists is merely a matter of the Provincial Government’s personal opinion, and no judicial function is exercised at all.

The Court explained that the requirement for a public purpose is not part of the executive act itself; rather, it is an independent and collateral condition that must exist as an objective fact before the Provincial Government may proceed with any requisition. The Court reiterated that, when section a of the Ordinance is interpreted correctly, this view is the appropriate one to adopt. Consequently, the existence of a public purpose constitutes a preliminary question that is separate from the merits of the executive action to be carried out under section 3 of the Ordinance. The public purpose must be proven as a factual matter, and the Provincial Government is obliged to verify its existence before taking any steps to requisition property. However, the ultimate decision on this preliminary fact is not exclusive to the Provincial Government; its determination is subject to review by higher courts. The Court referred to the principles articulated in Bunbury v. Fuller (1), Pease v. Chaytor (2) and Colonial Bank of Australasia v. Willan (3) to support this position. To illustrate these principles, the Court cited two well-known English decisions. In Rex v. Woodhouse (4) an application was made to challenge an order issued by Licensing Justices under the Licensing Act, which had referred a licence renewal request to the quarter sessions. One of the issues raised was whether the Justices were correct in concluding that the applicants were qualified to apply for a licence under the Beer House Act, 1840, which required the applicant to be the actual resident holder and occupier of the dwelling house to be licensed. The Court of Appeal, by a majority, held that because the applicants were not the genuine resident holders of the beer houses, they fell outside the class of persons to whom licences, whether absolute or conditional, could be granted, and that this error of fact could not confer jurisdiction on the Magistrates. Lord Justice Fletcher Moulton referred to passages in Bunbury v. Fuller (1) and Pease v. Chaytor (2), and affirmed that when licensing magistrates decide such factual questions, it is the duty of the reviewing court to examine their decisions and, if found erroneous, to set aside the licences and references. The second illustration concerned Rex v. Bedford (3), which arose on a petition for a rule of certiorari to challenge an order of the Justices authorising entry onto certain enclosed land for the purpose of removing material for road repair under sections 53 and 54 of the Highways Act, 1835. Under those sections the Justices may license the Surveyor of Highways to take material for the repair of the highways “at such time or times as to such Justices may seem proper from the enclosed land of any person … not being a park.” A licence was granted to the Newton Abbot Rural District Council authorising its Surveyor to obtain material from a location known as Grange Quarry in the parish. A rule was issued to bring up the order for quashing on the ground that the land was actually a park. The Court held that the land was indeed a park and that the Justices could not create jurisdiction for themselves by deciding that it was not a park. The determination of whether the land was a park was a preliminary matter necessary before the Justices could exercise jurisdiction, and it was not a question for them to finally decide.

The Highways Act authorised the Justices to issue a licence permitting the Surveyor of Highways to remove material for highway repair from any enclosed land that was not designated as a park, at such times as the Justices deemed appropriate. In the case at bar, the Justices granted a licence to the Newton Abbot Rural District Council, authorising the Council’s Surveyor to extract material for highway repairs from a location known as Grange Quarry within the parish. Subsequently, a rule was obtained for a writ of certiorari seeking to set aside that licence on the ground that the land in question was, in fact, a park. The Court held that the land was indeed a park, and therefore the Justices could not confer jurisdiction upon themselves by declaring it not to be a park. The determination of whether the premises constituted a park was identified as a preliminary question that must be resolved before the Justices could exercise jurisdiction, and it was not a matter for the Justices to decide finally. The Court emphasized that the enquiry into the status of the land was not part of the exercise of jurisdiction but a prerequisite to it, invoking the rule laid down in Bunbury v. Fuller. Consequently, the Justices’ decision on the matter was subject to judicial review.

The Court noted that in both cited authorities the jurisdiction of the Justices to act in a quasi-judicial capacity was undisputed; the only issue was whether the factual basis for exercising that jurisdiction was a collateral, preliminary matter or an issue to be adjudicated within the enquiry itself. In the present matter, the act of requisition was characterised as an executive, not a judicial, act, distinguishing it from the earlier cases. Nevertheless, the underlying principles of those authorities were deemed applicable. The Court explained that determining whether a public purpose existed to justify the exercise of power could either be an integral part of the executive act or a collateral, preliminary consideration. The Court argued that the latter position applied, making the determination a preliminary matter separate from the executive authority. Because the executive authority performed a function that was essentially judicial in nature, its determination could not be regarded as final, and any error in that determination could be corrected by a writ of certiorari. The Court further observed that, before the learned judges of the appellate bench, the Government had made no attempt to establish that the premises had been requisitioned for any public purpose, leaving the question of a public purpose unaddressed.

The Court explained that a public purpose is one that confers some benefit upon the community as a whole, rather than serving the personal gain or interest of particular individuals. It observed that providing housing for refugees can certainly qualify as a public purpose, and that, in certain situations, securing a house for an individual may also be regarded as serving the community’s interests. However, the Court held that it could not be said to be in the general interest of the community to requisition the property of one refugee for the benefit of another refugee. The remaining issue for consideration was whether a writ of certiorari could be issued against the Provincial Government. On this point, the arguments presented by the Attorney-General fell into two categories. The first category asserted that the expression “Provincial Government” appearing in section a of the Ordinance ought to be interpreted as meaning the Governor of the Province. If that interpretation were correct, the Provincial Government would enjoy complete immunity from all judicial processes under section 306(1) of the Constitution Act, and the powers of the High Court would be correspondingly restricted and limited by certain enactments. The second category of argument relied on section 176 of the Constitution Act, contending that no action of the character in question could be brought against the Province of Bombay, and that the terms “sue or be sued” used in section 176 did not encompass an application for a writ of certiorari. Regarding the first category, the Court noted at the outset that the Constitution Act of 1935 does not provide a definition of the term “Provincial Government.” Part III of that Act deals with Governor’s Provinces. Section 49(1) of the Act provides that “the executive authority of a Province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him.” Section 50 stipulates that “there shall be a Council of Ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion.” Section 51 sets out, inter alia, the method for choosing the ministers, and section 52 addresses the special responsibilities of the Governor. Section 59(1) declares that “all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor.” Consequently, the Court affirmed that the Governor is the executive head of a Province and that all executive acts are carried out in his name. However, this formal convention does not imply that the entire Government of a Province is vested solely in the Governor, nor does it mean that the expressions “Governor” and “Provincial Government” have identical meaning and connotation within the Constitution Act. The Court clarified that the use of the Governor’s name for all acts of the Provincial Government is merely a convenient form, applied regardless of the actual locus of responsibility for those acts.

In this case, the Court observed that the Constitution may attribute responsibility to a different source. The Court noted that Section 3(43)(a) of the General Clauses Act, as amended by the Adaptation Order of 1947, was cited by counsel but did not alter the Court’s position. That provision states that, with respect to any act performed after the establishment of the Dominion of India, the term “Provincial Government” shall be understood, in a Governor’s Province, to mean the Governor himself. The Court described this language as merely a definition, pointing out that the same clause shows a contrasting meaning when the expression “Provincial Government” is applied to a Chief Commissioner’s Province, where it is defined to refer to the Central Government. The Court therefore concluded that the General Clauses Act merely supplies a descriptive label and does not determine the substantive allocation of responsibility for governmental actions.

The Court then turned to the wording of Section 806(1) of the Constitution Act, emphasizing that it rests on a fundamentally different principle and is not concerned with the acts of any Provincial Government, regardless of the name in which those acts are expressed. The provision reads in full: “No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any court in India against the Governor-General, against the Governor 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 proceedings whatsoever shall lie in any court in India 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 of them during his term of office in performance or purported performance of the duties thereof: Provided that nothing in this section shall be construed as restricting the right of any person to bring against the Federation, a Province, or the Secretary of State such proceedings as are mentioned in Chapter III of Part VII of this Act.” The Court held that the language of this section is clear and its entire purpose is to confer personal immunity on the Governor-General, the Secretary of State, and the Governor of a Province from any civil or criminal proceeding in any Indian court, both while they hold office and after they have left office. The Court explained that this immunity is intended to protect the functioning of the administration, because allowing a Governor-General or a provincial Governor to be sued for acts performed in an official or personal capacity would lead to disastrous consequences for governance. The Court further observed that the personal nature of the protection is evident from the latter part of the provision, which bars any proceeding against a former Governor-General, Governor of a Province, or Secretary of State for acts done or omitted during their tenure. This latter clause would be meaningless if the Governor of a Province were considered synonymous with the Provincial Government. Accordingly, the Court affirmed that while the Governor forms part of the provincial executive and formally acts as the mouthpiece for all executive measures, Section 806(1) does not extend immunity to the official acts of the Provincial Government itself.

He is the mouthpiece of all executive acts performed in the Province, but section 306 (1) does not claim to protect any of those official acts. The provision instead gives the Governor a personal exemption from any judicial processes in India, irrespective of whether the processes arise from official or non-official acts committed by him. This personal exemption continues even after the Governor has left office, unless His Majesty decides to relax the rule. The Court agreed with the learned Judges of the High Court that any possible mis-construction of this section has been eliminated by the proviso attached to it. The proviso states in clear terms that the section shall not be interpreted as limiting in any manner the right of any person to bring proceedings, mentioned in Chapter III of Part VII of the Act, against the Federation, a Province, or the Secretary of State. The substantive provision in Chapter III of Part VII is found in section 176, and the Court will address that provision shortly. Before doing so, it was convenient to dispose of another point raised by the learned Attorney-General in relation to the first branch of his argument. The Attorney-General contended that, aside from the protection granted by section 306 (1) of the Constitution Act, there exists a limitation on the High Court’s power to issue processes against the Provincial Government, and he referred to section 1 of the East India Company Act (21 George III, Ch. 17) and certain provisions of the 1823 Act under which the Supreme Court was established in Bombay. The Court considered that contention ineffective, because, as previously stated, the Provincial Government cannot be identified with the Governor personally. The Court noted that the Supreme Court at Fort William in Bengal had been created under the statute (13 George III, Ch. 63), commonly called the Regulating Act, and that the Charter establishing that Court was issued by King George III on 26 March 1774. Historically, there was an unseemly conflict between the Judges of the Supreme Court and the Executive Government headed by the Governor-General in Council. In response to that conflict, an Act was passed in 1781 (21 George III, Ch. 17) whose section 1 provided that the Governor-General in Council in Bengal “should not be subject to the jurisdiction of the Supreme Court for or by reason of any act or order or any other matter of thing whatsoever counselled or ordered or done by them in their public capacity only.” Bombay obtained its Supreme Court in 1823 under the statute 3 George IV, Ch. 71, and clause VII declared that it shall be lawful for His Majesty to establish a Supreme Court at Bombay, to be invested with “such…”

The Charter of the Supreme Court at Bombay provided that the powers, authorities, privileges, limitations, restrictions and control of the Supreme Court of Judicature at Fort William in Bengal, as defined by any law then in force, would be invested in the new court. It further expressly stated that the Governor and Council at Bombay and the Governor-General and Council of Fort William would enjoy the same exemptions from the authority of the Supreme Court at Bombay as the Governor-General’s Council at Fort William enjoyed from the already established Judicature of Fort William. The Court assumed that these powers and disabilities of the Supreme Court persisted even after the High Courts were created, by virtue of section 9 of the High Courts Act 1861, and that the same limitations were implicitly recognised in section 106 of the Government of India Act 1915 and in section 223 of the Government of India Act 1935. From the language of those provisions it was clear that the exemptions granted were solely personal to the Governor and the members of his Council. Because the Governor in his personal capacity is distinct from the Provincial Government, those provisions offered no assistance to the appellant in the present matter. The Court observed that these personal-exemption provisions were substantially embodied in section 110 of the Government of India Act 1915 and were later incorporated in a more comprehensive form in section 306(1) of the Constitution Act 1935. Since the jurisdiction of the former Supreme Court was transferred to the Original Side of the three Presidency High Courts, section 110 of the 1915 Act exempted the Governor-General, the Governor and the Council members from the original civil and criminal jurisdiction of the High Courts, the sole exception being in cases of treason or felony charged against them. Section 306(1) of the 1935 Act broadened this exemption to all proceedings and processes, whether civil or criminal, initiated either in the Original Side of a High Court or in any other court in the mofusil. Because the Constitution Act 1935 did not provide for members of the Council, section 306(1) contains no reference to such members. Consequently, the first part of the argument presented by the learned Attorney-General could not be sustained. The Court then turned to the second part of the appellant’s contention, holding that the decision depended upon the proper construction of section 176 of the Constitution Act. Section 176(1) reads: “The Federation may sue or be sued by the name of the Federation of India and a Provincial Government may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal or a Provincial Legislature enacted by virtue of powers conferred …”.

The Court observed that the wording of section 176(1) of the Constitution Act established that a suit could be brought against the Government of the Federation or a Provincial Government in the same manner that the Secretary of State in Council could have been sued before the enactment of the 1935 Constitution Act. The initial portion of the subsection dealt with the identification of parties and the procedural mode by which a suit should be instituted against the Government concerning matters relating to the Federation or to any province. The latter portion provided that, subject to any statutory provisions that might later be enacted, a suit could lie against the Provincial Government in the name of the province and against the Federal Government in the name of the Federation of India with respect to their respective affairs, where such a suit would, in the absence of the 1935 Act, have been directed against the Secretary of State in Council. Consequently, the proceeding that had been commenced against the Province of Bombay would be permissible only if an equivalent suit could, under the law prevailing before the Constitution Act, have been instituted against the Secretary of State in Council.

The Court then traced the origin of the right and liability of the Secretary of State for India to sue and to be sued to section 65 of the Act 21 and 22 Victoria, chapter 106, passed in 1858 when the administration of India was transferred from the East India Company to the Crown. That section provided that “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 may have and take the same suits, remedies and proceedings legal and equitable against the Secretary of State in Council of India, as they could have done against the said company.” The purpose of the 1858 Act was to convey to Her Majesty the possession and governance of the British territories in India that had previously been held in trust for the Crown by the East India Company; because the Sovereign could not be sued in her own courts, the Act endowed the Secretary of State in Council, as a corporate entity, with the same rights of suit and the same exposure to liability that the East India Company had possessed. The Court noted that this provision had been reproduced verbatim in section 32 of the Government of India Act, 1915, which read: “(1) The Secretary of 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 the East India Company, if the Government of India Act, 1858, and this Act had not been passed.”

In the passage quoted, the Court observed that the Act in question “this Act had not been passed.” The issue then narrowed to whether a suit of the same character that had been instituted against the Province of Bombay could, before 1858, have been instituted against the East India Company. The Court concluded that the answer to that question was affirmative. It stated that all the authorities relevant to that point had been examined in great detail by the learned judges of the Bombay High Court, and that the reasons advanced by those judges were fully accepted. The Court further explained that the East India Company possessed a dual character of powers. On one side the Company exercised commercial powers as a merchant trading body; on the other side it exercised delegated sovereign powers that allowed it to acquire, retain and govern territories, to raise and maintain armies, and to make peace and war with native powers in India. The Court emphasized, however, that the Company’s liability to be sued was not limited solely to claims arising from private-person undertakings. The Court held that other claims, provided they did not arise from an act of State, could be heard by civil courts when the acts were performed under the authority of municipal law and within powers conferred by such law. The Court then referred to the discussion of this principle by the Madras High Court in the case of Secretary of State v. Hari Bhanji (1). The learned Chief Justice, in delivering his judgment, compared the decisions in Secretary of State v. Kamachee Boye Saheba (2) with those in Forester v. Secretary of State (3). In the first case, following the death of Raja Sivaji, who held sovereign status, the East India Company seized all of his property as escheat to the Paramount Power. The widow of the deceased filed a bill to recover possession of the property. The Privy Council held that the suit was not maintainable. Lord Kingsdown articulated that the crucial question in such circumstances was whether the seizure represented an arbitrary exercise of Crown power over the dominions and property of a neighbouring State, an act that could not be justified on municipal law grounds, or whether it was, at least in part, a possession taken by the Crown under the colour of legal title to the property of the late Raja of Tanjore, held in trust for persons entitled to it by law upon the death of the last possessor. On the facts, the Court found that the seizure amounted to an exercise of sovereign power carried out at the arbitrary discretion of the Company with the aid of military force, and therefore the civil court lacked jurisdiction to try the matter. In the contrasting case, the Government had recovered lands that had been held by Begum Sumaroo as a Jagirdar after her death, a situation that was later examined by the Privy Council.

The plaintiff instituted a suit to recover the property on the ground that a deed of will, which had been executed, supported his claim. The relevant authorities for that deed were reported in the law reports cited as (1) [1882] 5 Mad. 273, (2) [1859] 7 M.I.A. 461 and the supplement volume I.A. of 1871-72, page 10. The Privy Council held that because Begum Sumaroo was not a sovereign princess and because the act of resumption was undertaken under the colour of a legal title to lands that had previously been held from the Government by a private subject, the episode did not constitute an act of State. Consequently, the Council concluded that the dispute was properly justiciable by an ordinary civil court. In support of this analysis, the Court quoted Lord Atkin’s observation in Eshugbayi Eleko v. Officer Administering the Government of Nigeria, where it was explained that the phrase “act of State” can be misleading. Lord Atkin said that when the phrase refers to an exercise of sovereign power directed against another sovereign power or against subjects of another sovereign power who do not owe temporary allegiance, such an act may be undertaken in the pursuit of war-making or peace-keeping powers and may give rise to no legal remedy. However, when the phrase is applied to executive actions directed at subjects within the territorial jurisdiction, it has no special meaning and does not confer immunity on the executive from judicial scrutiny of the legality of the act. The Court further observed that the observations of Sir B. Peacock in the case of the Peninsula and Oriental Steam Navigation Company v. The Secretary of State should not be given great weight in the present matter. In that earlier case, the sole issue was whether the Secretary of State for India could be sued for a tort committed in the course of a commercial activity, and the answer was affirmative. The question of liability for actions unrelated to any business or commercial undertaking was not a matter for the court to determine. Applying this reasoning to the present case, the Court held that the requisition, which was claimed to have been carried out under the authority of municipal law and within the powers conferred by that law, could not be characterised as an act of State. If the Constitution Act of 1935 had not been enacted, an action alleging illegal exercise of those powers could have been brought against the Secretary of State. The Court was not persuaded by the learned Attorney-General’s contention that the term “sue” appearing in section 176 of the Constitution Act does not encompass an application for a writ of certiorari. The Court explained that the word “sue,” in its ordinary grammatical meaning, denotes the enforcement of a claim or civil right through legal proceedings, which may be initiated either by a plaint or by a petition of motion. Accordingly, it would be incorrect to interpret section 176 as requiring a proceeding to commence with a plaint and terminate in a decree in the manner prescribed by the Civil Procedure Code. The Court further stated that no argument could be sustained on the basis of the absence of an express reference to prerogative writs in the relevant constitutional provision.

In the judgment the Court noted that clause (13) of the charter which created the first Supreme Court in Bengal contained no explicit reference to prerogative writs. Nevertheless, under clause (5) the Court was endowed with all the powers and privileges of the Court of King’s Bench in England. Those powers unmistakably encompassed the authority to issue the prerogative writ of certiorari and other similar writs. The record contains reported decisions showing that the Court of King’s Bench had, in the past, issued writs of mandamus directed to the Directors of the East India Company in England. After considering these authorities the Court concluded that the interpretation adopted by the learned judges of the appellate bench of the Bombay High Court was correct. Accordingly the Court decided that the appeal should be dismissed and that costs should be awarded to the other party.

Justice DAS, however, expressed a contrary view and held that the appeal ought to be allowed. He explained that his conclusion differed from that of three eminent judges of the Bombay High Court and from the opinion of several of his learned colleagues, all of whom he respected. Consequently, he felt it necessary to set out his reasons in detail. The appeal challenged the judgment and order of an appellate bench of the Bombay High Court, composed of Chief Justice Chagla and Justice Tendolkar, which had affirmed an order of Justice Bhagwati sitting on the original side of that Court. The order under attack was a mandate in the nature of a writ of certiorari, issued to quash a requisition of certain premises in Bombay that had been made by the appellant under the powers conferred by Bombay Ordinance No V of 1947. The factual background leading to the present proceedings was not seriously contested; the facts had been fully detailed in the judgments already delivered and therefore need not be repeated. The learned Attorney-General, appearing in support of the appeal, limited his argument to two principal points: first, that in view of the provisions of Bombay Ordinance V of 1947, a writ of certiorari could not be entertained; and second, that a writ of certiorari could not be issued against the Province of Bombay. Counsel for the respondents, Mr Seervai, refrained from raising any of the numerous subsidiary issues that had been unsuccessfully argued before the lower courts. His sole objective was to back the judgment under appeal on the two main points identified by the Attorney-General and to bolster them with fresh reasoning and authorities. The writ of certiorari was described as a well-known ancient prerogative writ traditionally issued by the Court of King’s Bench to correct errors committed by inferior courts that were strictly so called, and it was this writ that the Judges of the King’s Bench employed.

In this case, the Court explained that the writ of certiorari originated as an ancient prerogative writ used by the Court of King’s Bench to supervise inferior courts that had acted without authority, exceeded their jurisdiction, or violated the principles of natural justice. Over time, the scope of the writ was broadened so that it could also be employed against bodies that were not strictly courts but, by statute, were given powers and duties resembling those of ordinary inferior courts. These statutory entities were described as quasi-judicial bodies, and their decisions were termed quasi-judicial acts; the Court of King’s Bench began to summon the records of such bodies, examine them, and, when deemed appropriate, set aside their orders. The principal motivation for this expansion, the Court noted, was the distrust judges felt toward the numerous statutory bodies being created and empowered to affect the rights of individuals, and the extension was justified on the basis that those bodies performed quasi-judicial functions. The Court then stated the settled law: a writ of certiorari will lie to control a statutory body if that body acts without jurisdiction, exceeds its jurisdiction, or breaches natural-justice principles, provided that a proper construction of the statute creating the body shows it to be a quasi-judicial entity entrusted with such functions. Conversely, the Court affirmed that the writ will not lie to correct errors of a statutory body whose functions are purely administrative. Consequently, to decide the correctness of the order that is the subject of this appeal, the Court said it must determine the true nature of the functions assigned to and exercised by the Provincial Government under the specific Ordinance. The Ordinance in question was titled “An Ordinance to provide for the requisition of land, for the continuance of requisition of land and for certain other purposes.” Its second preamble recorded that the Governor of Bombay was satisfied that circumstances existed which required immediate action so that the Provincial Government could make provisions for requisitioning land and for continuing requisitions already in force. Because the Bombay Legislature was not in session at the time the Ordinance was issued, and because the Governor-General’s instructions under the proviso to subsection (1) of section 88 of the Act had been obtained, the Governor of Bombay possessed legislative authority, and the Ordinance, for the requisite period, carried the force of an Act of the legislature. Although the Ordinance has since been superseded by a statute, the Court held that the appeal must be decided according to the provisions of the Ordinance as they stood at the material time. Finally, the Court observed that the preambles to the Ordinance clearly indicated that it was promulgated under conditions of considerable urgency, a fact that must be kept in mind when interpreting the operative provisions of the Ordinance.

In construing the operative provisions of the Ordinance, the Court must keep the express indication in the preambles that the Ordinance was promulgated in circumstances of great urgency. Section 3 of the Ordinance, under which the order of requisition was made, reads as follows: “3. Requisition of land.--If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may, by order in writing, requisition any land for any public purpose: Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section.” The language clearly shows that the phrase “If in the opinion of the Provincial Government” governs the words “it is necessary or expedient to do so,” and whatever meaning or implication those latter words carry is left entirely to the opinion of the Provincial Government. The question therefore arises as to the meaning and implication of the words “it is necessary or expedient to do so.” The main section, read as a whole, implies a close and intimate correlation between the two parts: the power conferred on the Provincial Government by the operative part and the formation of opinion as to the necessity or expediency for exercising that power in the preceding part. This correlation is created by the use of the word “so” together with the words “to do.” In the Court’s view, the words “to do so” incorporate within their meaning whatever the Provincial Government has been authorised to do. By the operative part of the section the Provincial Government is empowered, not to requisition merely, but to requisition for a public purpose. Consequently, the phrase “to do so” in the opening part of the sentence must necessarily refer to the act of requisitioning for a public purpose, and the necessity or expediency for such requisition is left to the opinion of the Provincial Government. Strictly, as a matter of construction of the section, both grammatically and according to the intended meaning of the Ordinance, the conclusion is unavoidable that the words “to do so” stand for the words “to requisition any land for a public purpose.” The expression “to do so” was used to avoid repeating the words “requisition any land for any public purpose.” The same result could have been achieved if the earlier part of the sentence had read “to requisition any land for any public purpose” and the words “do so” had been placed at the end of the section instead of the words “requisition any land for any public purpose.” It would be entirely erroneous to argue that because the words “for a public purpose” appear at the end of the section, the existence of a public purpose is a collateral fact that cannot be part of the formation of opinion.

In this case the Court explained that, because the words “for a public purpose” appear at the end of the provision, the existence of a public purpose could not be treated as part of the Provincial Government’s discretionary opinion. The Court observed that, in truth, the earlier part of the section, by employing the expression “to do so,” already incorporated the question of a public purpose, and that the whole composite issue – namely, whether it was necessary or expedient to requisition land for a public purpose – was left to the Provincial Government’s subjective judgment. Counsel for the respondents, relying on decisions of the High Court, argued that although the Ordinance allowed the Provincial Government to form its own opinion on the necessity or expediency of requisitioning land, the presence of a public purpose was a condition precedent that could not be left to the Government’s discretion. According to that argument, the Government had to first establish, as an objective fact, that a public purpose existed before it could form an opinion and issue a requisition order. Counsel further maintained that the phrase “to do so” referred solely to the act of requisition and not to the purpose for which the land was requisitioned. The Court rejected this line of reasoning and set out several objections. First, it noted that the interpretation ignored the word “so” and rendered it meaningless. Second, the Court pointed out that if the respondents’ reading were correct, the provision would read: “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.” Under that construction, the Government would first have to form an opinion on the necessity of requisitioning land without reference to any purpose, yet the power to act would still depend on the existence of a public purpose as an objective fact that had not yet been determined. The Court held that such a sequence would make the initial opinion-forming exercise entirely useless, as it would be a futile mental exercise that would not aid the Government in issuing a requisition order. Third, the Court observed that the respondents’ interpretation required the Government to determine the existence of a public purpose before forming its opinion on the necessity or expediency of requisitioning a particular parcel of land. This approach flipped the intended order of the provision, rendering the statutory scheme nonsensical.

In this case, the Court observed that the contention that the Provincial Government must first identify a public purpose and thereafter decide whether it was necessary or expedient to requisition a particular parcel of land effectively inverted the language of the statute and altogether rewrote its provision. The Court explained that if that were truly the Governor of Bombay’s intention when the Ordinance was promulgated, the wording would have read, “If any land is needed for a public purpose and if, in the opinion of the Provincial Government, it is necessary or expedient to requisition any particular land for that purpose, the Provincial Government may, by a written order, requisition such land.” The enacted section, however, did not contain any such language. The Court further noted that the respondents argued that the section assumed the existence of a public purpose and then required the Provincial Government to form an opinion on the necessity or expediency of requisitioning land for that purpose. The Court said that such a conclusion could be reached only by interpreting the phrase “to do so” in the manner suggested by the respondents; under that interpretation both the existence of a public purpose and the necessity or expediency of requisition would have to be included within the Provincial Government’s opinion. The Court warned that if the existence of a public purpose had to be established as an objective fact subject to judicial scrutiny, the procedure would defeat the purpose expressed in the second preamble, because protracted litigation would prevent the Provincial Government from taking immediate action to provide for the requisition of land or to continue a requisition already in force. In the present matter, the order of requisition issued in February 1948 remained suspended. The Court considered that the respondents’ interpretation would compel the Provincial Government to first obtain a judicial determination of whether a public purpose existed before forming an opinion on the necessity or expediency of requisitioning any specific land. The Court found this approach untenable, questioning how the Provincial Government could proceed to decide such an issue. It asked to whom notice would be given that the Government intended to decide the existence of a public purpose, and who would have an interest in denying the existence of that purpose at a stage when no particular person’s land had yet been identified for requisition. The Court observed that the issue could not arise until an individual was actually threatened with a requisition order, and that an interpretation leading to such an absurd and anomalous situation must be rejected. Moreover, the Court rejected the alternative suggestion that the Provincial Government should decide the existence of a public purpose each time it sought to requisition a particular parcel of land belonging to a particular person, as that would create a further absurdity.

In this case the Court observed that if the question of whether a public purpose exists must be decided each time the Government wishes to acquire land, then a separate determination would be required for every parcel of land. A decision reached in one instance would not bind the owner of another parcel, so there would have to be as many findings on the existence of a public purpose as there are plots of land to be taken. The Court asked whether anything could be more absurd than this situation. The Court further noted that if the finding on the existence of a public purpose were to be made together with, or at the same time as, the formation of the opinion as to whether it was necessary or expedient to requisition a particular piece of land, then the two matters would necessarily be linked. It would therefore be unreasonable to suppose that the Ordinance intended to isolate the two components in separate, watertight compartments—one to be decided as an objective fact and the other to be left to the subjective opinion of the Provincial Government. Since the statute contains no specific provision expressed in clear language to that effect, such an anomalous intention could not be attributed to the legislature. The objections raised led the Court to conclude that the interpretation advanced by the respondents could not be adopted, and they reinforced the Court’s view that the section must be read in the manner previously described. Accordingly, the provision should be understood to read: “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.” Once this construction is accepted, authorities and legal principles leave no escape from the conclusion that the matter left to the Provincial Government’s subjective opinion was a composite one, namely the necessity or expediency of requisitioning land for a public purpose. The Government was therefore authorized to form an opinion on the whole issue and on each component of it. In short, the existence of a public purpose was left to the Provincial Government’s opinion to the same extent as the necessity or expediency of requisitioning any particular parcel. The Court found that the legislature did not intend an objective factual determination of a public purpose subject to judicial scrutiny, but rather intended that the Provincial Government should hold the opinion that a public purpose existed for which requisitioning land was necessary or expedient. The words “if in the opinion of the Provincial Government” therefore controlled both the purpose and the necessity or expediency of making a requisition order. The formation of opinion on the entire matter was purely subjective, and the requisition order was to be based on that subjective opinion, making it a purely administrative act.

It will be helpful at this point to refer to several judicial decisions that, in the Court’s view, fully support the conclusions previously expressed. It is well settled that when a legislature entrusts the power to perform a particular act to a specific body and makes the exercise of that power dependent upon the opinion of that body that the act is necessary or expedient, the resulting act is characterised as a purely administrative, that is, an executive act rather than a judicial or quasi-judicial act. In the absence of any evidence of bad faith, the Court lacks jurisdiction to interfere with such an act, and it certainly does not have authority to intervene by means of the high-prerogative writ of certiorari. Typically, this legislative discretion is conveyed through phrases such as “If it appears to …,” “If in the opinion of …,” or “If so-and-so is satisfied.”

In the case of Mayor etc. of Westminster v. London and NorthWestern Railway Company, Lord Halsbury L.C. observed that, assuming the matter is within the discretion of the local authority, no Court possesses the power to interfere with the manner in which that discretion is exercised. He further stated that where the Legislature has confided a power to a particular body and granted it a discretion as to how the power should be used, it is beyond the reach of any Court to challenge that discretion, provided that the action taken is precisely the one authorised by the Legislature. Similar reasoning was expressed by Batty J. in Balvant Ramchandra Natu v. The Secretary of State, where he remarked that when a power is conferred in unambiguous statutory language, the Courts cannot intervene in its exercise nor substitute their own discretion for that of the persons or bodies appointed by the Legislature for that purpose.

Occasionally the Legislature may assign a power to a specified authority for the purpose of achieving a particular objective. Even in such circumstances, the Legislature may, by appropriate wording, leave not only the determination of whether the act is necessary or expedient, but also the judgment as to whether the purpose itself is necessary or expedient, to the opinion, satisfaction, or discretion of that authority. In this situation, the condition precedent to performing the act is not the actual existence of the purpose but rather the authority’s opinion that the purpose exists. Consequently, the authority becomes the sole judge of the existence of the purpose, because without that judgment it could not form an opinion on the necessity or expediency of carrying out the act for that purpose.

The principle was illustrated in Wijeyesekera v. Festing, where the Governor of Ceylon, acting with the advice of his Executive Council, issued an order under the Acquisition of Land Ordinance, 1876. The order directed the Government agent to proceed with the acquisition, under the provisions of that Ordinance, of a portion of the appellant’s estate for a public purpose, namely the

In this case the dispute concerned a proposed road. The central issue was whether the decision taken by the Governor in Council could be regarded as final on the question of whether the land was required for a public purpose. The matter turned on two provisions of the 1876 Ordinance, namely sections 4 and 6, the relevant excerpts of which were set out as follows: “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 to direct the Surveyor-General 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. 6. The Surveyor-General, or other officer so authorised as aforesaid, shall then make his report to the Governor whether the possession of the land is needed for the purposes for which it appeared likely to be needed as aforesaid. And upon receipt of such report it shall be lawful for the Governor, with the advice of the Executive Council, to direct the Government Agent to take order for the acquisition of the land.” When delivering the judgment of the Board, Lord Finlay endorsed an earlier ruling of the Supreme Court of Ceylon. He observed that the decision of the Governor that the land was required for public purposes was intended to be final and could not be questioned by any court. He explained that the nature of the objection would be unsuitable for the District Court, which only deals with compensation matters that would arise if the land were taken. Nevertheless, he noted that a preliminary objection could be raised, as suggested by Lord Wrenbury, by applying to the court for a stay of further proceedings on the ground that the Governor’s order did not satisfy the condition precedent in the Ordinance, namely, that the land was truly wanted for a public purpose. In Lord Finlay’s view, such a proceeding would be incompetent, and the Governor in Council’s order made under the latter part of section 6 of the Ordinance was final and conclusive.

Lord Finlay concluded that whenever a statute contains a provision of this character, it demonstrates the intention that the Governor’s decision, taken with the advice of the Executive Council, should be binding. He further referred to the decision in Point of Ayr Collieries Ltd. v. Lloyd George, a case involving the requisition of an undertaking, which turned on regulation 55(4) of the Defence (General) Regulations. The relevant portion of that regulation stated: “If it appears to a competent authority that in the interests of the public safety, the defence of the realm, …” (the quotation continues in the subsequent portion of the judgment). This reference was used to illustrate the same principle that the determination of a competent authority, once made under a statutory provision, is intended to be decisive and not subject to ordinary judicial review.

In the regulation, the language stipulated that when it was necessary, on behalf of His Majesty, to take control of an entire undertaking or any part of it for reasons that included the efficient prosecution of the war, the maintenance of supplies and services essential to the life of the community, or the protection of public safety and the defence of the realm, the competent authority could issue an order authorising a designated person, referred to as an “authorised controller,” to exercise the functions of control specified in that order. The regulation further provided that such an authorized controller could act on behalf of His Majesty in accordance with the powers set out in the order. This provision was reported in the law reports at [1943] 2 All E.R. 546.

An order made under this regulation was directed against the appellant’s undertaking, and the appellant subsequently initiated legal proceedings challenging the order. The appellant argued, among other points, that the Minister had not identified adequate grounds to justify the control, specifically denying that the Minister had found it necessary for public safety, the defence of the realm, the efficient prosecution of the war, or the maintenance of essential community supplies and services. The trial judge, Singleton J., dismissed the appellant’s claim, and the appellant then appealed the decision to the Court of Appeal.

If the reasoning and conclusions of the lower judgments had been accepted, the Court of Appeal might have held that the regulation required the existence of public safety interests to be determined as an objective fact, while leaving only the subjective judgment of necessity for control to the competent authority. However, that approach was rejected. Lord Greene, the Master of the Rolls, together with Lords Goddard and du Parcq, observed that when regulations are drafted in this particular form, the responsibility to decide whether a circumstance justifies the exercise of the powers rests solely with the competent authority, regardless of which Minister is involved. The competent authority must assess whether a case for exercising the powers has arisen, evaluate the adequacy and credibility of the evidence before it, determine whether further investigation is desirable or necessary, and decide whether immediate action is required or whether a delay for additional inquiry or negotiation is permissible. This entire discretion was placed by Parliament in the hands of the Minister, based on the expectation that the Minister would exercise the powers properly, and with the understanding that failure to do so would expose the Minister to parliamentary criticism. The Court affirmed that such matters lie outside its own competence, and that, provided the Minister’s decision is made in good faith within the scope of the delegated authority, the Court has no power to intervene.

The Court observed that Parliament may criticize the Minister if the exercise of delegated powers is unsatisfactory, but it emphasized that the questions of whether a competent authority should act and how it should act are not within the jurisdiction of the Court. The authority chosen by Parliament to make the decision, when acting in good faith, is beyond judicial review so long as the action remains strictly within the limits of the power that Parliament has conferred on the Minister. The Court then held that there is no material distinction between regulation 55(4) and the provision of the Bombay Ordinance that is before it, provided the language of both is interpreted in the manner set out earlier. Even assuming, on a highly meticulous examination, that a difference could be discovered, the matter is settled by the decision of the English Court of Appeal in the case of Carltona Ltd. v. Commissioners of Works and Others. That decision concerned regulation 51(1) of the Defence (General) Regulations, which reads: “A competent authority, if it appears to that 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 maintaining supplies and services essential to the life of the community, may take possession of any land, and may give such directions as appear to the competent authority to be necessary or expedient in connection with the taking of possession of that land.” The Court found that the wording of this regulation is essentially identical to the language of section 3 of the Bombay Ordinance as it has been construed. The Court noted that the reasoning of the learned Chief Justice Chagla and Justice Tendolkar would have limited the phrase “so to do” to refer only to the act of taking possession, treating the references to public safety, defence and essential supplies as the purpose of the power rather than as part of the description of the action itself. Under that view, the regulation could be read as imposing a condition precedent – namely the existence of the public-safety interests – which would have to be determined in a quasi-judicial manner and therefore be open to judicial scrutiny. The Court rejected that line of argument, citing the judgment of Lord Greene, M.R., joined by Lords Goddard and du Parcq, who declared that such reasoning would amount to questioning the authority’s conclusion in the absence of any allegation of bad faith. The Court reiterated that without a charge of bad faith, it is not within the competence of the judiciary to investigate either the grounds or the reasonableness of the decision made by the executive authority.

In this case the Court observed that there was no allegation of bad faith, and consequently the issue was not open to judicial review. The Court reiterated the principle that when a regulation of the type under consideration assigns to an executive authority the power to decide what is necessary or expedient, the Courts are not authorised to examine the reasons for that decision or to assess its reasonableness unless a claim of bad faith is made. The Court explained that permitting such an examination would effectively place the administration of the executive functions of the Government in the hands of the judiciary, a result that the Constitution does not contemplate. The legislation, as enacted by Parliament, deliberately confers upon the executive a discretionary power to decide, and the Court held that when that discretion is exercised in good faith, no judicial interference is permissible. The limited role of the Court, according to this judgment, is to verify that the authority claimed to be exercised falls strictly within the scope of the powers granted by the Legislature and that those powers are being used in good faith. Beyond that verification, the Court affirmed that it possesses no jurisdiction to inquire into the reasonableness of the decision, the underlying policy considerations, the purpose of the action, or any other aspect of the transaction. The Court then referred to the decision of the Madras High Court in Vedlapatla Suryanarayana v. Province of Madras, a Full Bench judgment that examined section 6 of the Land Acquisition Act. That decision held that the Provincial Government’s determination that land was required for a public purpose was final and not subject to further judicial scrutiny, as recorded in I.L.R. [1946] Mad. 153 and A.I.R. [1945] Mad. 394. The Court also cited Robinson v. Minister of Town and Country Planning as an illustrative authority. In Robinson, the provisions of the Town and Country Planning Act, 1944, were considered, particularly the relevant excerpts of section 1, which state that the Minister may, upon being satisfied that it is requisite for the purpose of satisfactorily dealing with extensive war damage in a local planning area, declare land as subject to compulsory purchase for the purpose of redeveloping it as a whole, provided that an application is made by the appropriate authority within five years of a date fixed by the Minister for practical submission of such applications. The Court noted that the power to issue the order was conditioned upon the Minister’s satisfaction not only that the land needed to be laid out afresh but also that this was required “for the purpose of dealing satisfactorily …”, a requirement that is clearly a factual question. Consequently, the Court emphasised that such factual determinations lie within the exclusive domain of the administrative authority and are not amenable to objective judicial testing.

In this appeal the Court held, overturning an earlier judgment of Henn Collins J. in a different case, that the entire question of whether the land should be laid out afresh and the purpose for dealing with it was solely a matter of the Minister’s satisfaction. The Court said that the Minister alone acted as the judge, that no objective standard could be applied, and that the Minister’s decision was therefore an administrative act rather than a judicial one. The case of Franklin v Minister for Town and Country Planning examined section 1(1) of the Towns Act 1946, which read: “If the minister is satisfied, after consulting with any local authorities who appear to him to be concerned, that it is expedient in the national interest that 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.” Under this provision the Minister’s satisfaction covered not only the expediency of developing the area as a new town but also the question of whether such development was expedient in the national interest. The argument could have been made that the statute required the existence of a national interest to be determined as an objective fact, making it a condition precedent to the issuance of the order. However, the House of Lords rejected that view and held that the statutory duties imposed on the Minister did not entail any judicial or quasi-judicial obligation; they were purely administrative in nature.

The decision in Hubli Electricity Co. Ltd v Province of Bombay was also examined. Section 4(1) of the Indian Electricity Act 1910 provides that the Provincial Government may, if in its opinion the public interests require, revoke a licence where, in the Government’s opinion, the licencee makes a wilful and unreasonably prolonged default of any obligation imposed by the Act. The language of this provision appears to refer to objective concepts such as “public interest” and “wilful and unreasonably prolonged default.” Nevertheless, the Privy Council observed that there is nothing in the wording of the sub-section that subjects the Government’s opinion to an objective test. The relevant matter is the Government’s opinion itself, not the grounds on which that opinion is based, and the statute leaves no scope for a judicial examination of whether the opinion is sufficient. Consequently, the Court concluded that the Government’s discretion under the provision is not subject to judicial scrutiny, echoing the earlier view that such decisions are administrative rather than adjudicative.

The Court observed that the grounds on which the Government formed its opinion were not subject to judicial scrutiny. It further explained that the relevant question was not whether a default had been wilful and unreasonably prolonged, but whether such a wilful and unreasonably prolonged default actually existed. Accordingly, the Government’s opinion on that existence was the decisive factor, and unless the opinion was displaced for good cause, it was conclusive. The Court then referred to the recent decision in A.C. Mohamed v. Sailendra Nath Mitra, which dealt with an order to requisition certain premises, except the ground floor, under section a (1) of the West Bengal Requisition and Control (Temporary Provisions) Act, 1947. That provision reads: “Whenever it appears to the Provincial Government 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, provided that no premises exclusively used for the purpose of religious worship shall be requisitioned under this section.” The Court found no material difference between the language of that section and the language of section 3 of the Bombay Ordinance as interpreted by the Court. It was clear that the opinion left to the Provincial Government did not concern merely the plain need for premises, but rather the need for premises for a public purpose considered as a composite matter. If the present arguments were accepted, they would imply that the statute postulated the existence of a public purpose and that the Provincial Government’s opinion was limited to determining whether the premises were needed for that purpose. However, a Division Bench of the Calcutta High Court, reported in (1950) 54 C.W.N. 642, rightly held that for the exercise of the power it was sufficient that the local Government be satisfied that the condition precedent—the existence of a public purpose—was met. Summarising, the Court emphasized that authorities cited above make it abundantly clear that questions of fact, such as the existence of a public purpose, public safety, defence of the realm, efficient prosecution of war, or maintenance of essential supplies, may often be left to the subjective opinion or satisfaction of the executive authority. The mere fact that a matter involves a question of fact does not automatically require an objective judicial determination, irrespective of the wording of a particular enactment. When the Legislature entrusts an executive authority with the duty to form an opinion or to be satisfied about such a matter as a condition for exercising a conferred power, the condition precedent is the authority’s subjective opinion or satisfaction, not the actual existence of the fact in question.

In interpreting the legislative scheme, the Court observed that when the legislature entrusts the decision-making power to the executive’s opinion or satisfaction regarding whether requisition of land is necessary or expedient for a public purpose, the executive becomes the exclusive judge of the entire issue. This includes determining both the existence of a public purpose and the necessity or expediency of the requisition, regardless of whether the language of the statute describes the requirement as a condition precedent or an objective fact. Applying that principle to section 3 of the Bombay Ordinance No V of 1947, the Court found that the provision unmistakably left the Provincial Government to form its own opinion on the whole question – namely, whether it was necessary or expedient to requisition any land for a public purpose – and to act upon that opinion. Consequently, the formation of the opinion and the consequent action were purely administrative, i.e., executive acts. The Court held that if such acts are undertaken in good faith and within the limits of the Ordinance, the judiciary has no authority to intervene, either through ordinary proceedings or by prerogative writs such as certiorari or prohibition. Any perceived hardship arising from the executive’s decision must be addressed to the legislature, not to the courts. Thus, the primary argument advanced on behalf of the respondents was rejected outright.

The Court then turned to two ancillary matters raised in the petition. The first was a bare allegation, supported only by statements made to the best of the petitioner's knowledge and lacking any legal evidence, that the Provincial Government had issued the requisition order with malice and for a collateral purpose. The petitioner's evidence merely mentioned that the premises had been allotted to Mrs C Dayaram, who was identified as the wife of a Karachi-based advocate and described as a refugee; the petition also noted uncertainty about whether her husband had also migrated. During the adjourned hearing, the question was raised whether Mrs Dayaram held any position in the administration of the Government of Bombay or was a public servant, presumably to suggest she could influence officials. The petitioner, in good faith, responded that he was unaware of any such connection. The Court found no material in the evidence to substantiate a claim of bad-faith conduct by the Provincial Government or its officers. The second ancillary point asserted that the Provincial Government had acted beyond the scope of the Ordinance because, on its own showing, there was no public purpose underlying the order. The Court noted that this contention would be examined in the subsequent discussion.

In this case the Court examined whether the requisition of a flat for a refugee served a public purpose. Justice Bhagwati had held that taking a flat for a particular refugee could not be a public purpose because it did not advance the general interests of the community. On appeal Chief Justice Chagla disagreed with that view. He reasoned that providing housing to a refugee could indeed be a public purpose, since securing accommodation for one refugee could benefit the whole community. The Chief Justice was correct in affirming that the act of housing a refugee could be considered a public purpose. However, the Chief Justice further observed that selecting one refugee over another without any apparent reason would not constitute a public purpose justifying the requisition of the specific flat. That observation, while respectfully noted, reflects a slight confusion of concepts. It must be remembered that the order under review was not an isolated requisition made solely for the benefit of a single refugee. A letter from the petitioner's solicitors dated 27 February 1948 indicated that the Government had issued several similar orders. The order itself, on its face, was framed as a requisition for “public purpose housing” and was not expressed as serving any individual refugee. The subsequent allocation of the flat to Mrs C Daygram was a later step; the fact that a requisitioned flat was later allotted to a particular refugee does not undermine the original general order. To assume that because the flat was allotted to Mrs Daygram the requisition must have been made for her personal benefit is to rely on suspicion, which the law does not permit. The flat had to be assigned to a refugee for the purpose of providing that refugee with housing. The petitioner’s status as a refugee was highlighted before the Court, and it was suggested that the arrangement represented a novel method of addressing the refugee problem by displacing one refugee and placing another. No evidence was presented showing the relative circumstances of the petitioner and Mrs Daygram; it is possible that Mrs Daygram’s needs were more urgent. The burden of proof lies with the party who challenges the bona fides of a public authority or alleges that the authority exceeded its powers. Such a challenger must rely on clear legal evidence, not on vague suspicion created by counsel’s arguments. The Court therefore moved to consider the second argument, which assumes that the existence of a public purpose is not merely a subjective opinion of the Provincial Government but an objective fact.

It was held that the satisfaction of the condition precedent was essential before the power of requisition could be exercised. The respondents argued that this condition, being an objective fact, had to be determined by the Provincial Government in a judicial manner. Because the Government was therefore performing a quasi-judicial function, the respondents said it could be subject to the high prerogative writ of certiorari if it acted without jurisdiction, exceeded its authority, or contravened the principles of natural justice. Consequently, the Court was called upon to identify the criteria for deciding whether the act of a statutory body is a quasi-judicial act or merely an administrative act. Numerous decisions have attempted to define a quasi-judicial act. In Queen v. Dublin Corporation, May CJ explained that “judicial” does not necessarily mean an act of a judge or a legal tribunal hearing a question of law; rather, a judicial act is one performed by a competent authority after considering facts and circumstances, and which imposes liability or affects rights. He added that a body empowered by law to inquire into facts, make estimates and set a rate for a district engages in judicial acts when those acts have such consequences. Lord Atkinson, in Frome United Breweries v. Bath Justices, endorsed this definition as one of the best. The definition now widely accepted originates from Atkin L.J., then serving as a judge, in Rex v. Electricity Commissioners. It states that whenever a body of persons with legal authority to determine questions affecting the rights of subjects, and with a duty to act judicially, exceeds its legal authority, it becomes subject to the jurisdiction of the King’s Bench Division through the appropriate writs. This formulation was affirmed in Rex v. London County Council and has been endorsed by many learned judges in later cases, including the Privy Council decision in Nakkuda Ali v. M.F. De S. Jayaratne. In Banwarilal’s case, the Court examined the essential characteristics that distinguish a quasi-judicial act from an administrative act. It observed that the two categories share many common features. An officer tasked with an administrative act often must determine questions of fact to enable the exercise of his power, weighing facts, circumstances, and pros and cons before deciding, just as a person performing a judicial or quasi-judicial function must do. Both categories of actors are required to act in good faith.

A valid administrative or executive act has the same effect as a quasi-judicial act in that it binds the individual against whom it is directed, impacts his legal rights, and can impose liability. The legislature often conditions the exercise of such an act upon a fact or a contingency, yet the determination of whether that condition has been satisfied may be left to the subjective opinion or satisfaction of the executive authority. This approach was evident in the various ordinances, regulations and statutes that were examined and interpreted in the cases previously cited. The first two components of the definition offered by Atkin L.J. are therefore applicable to an administrative act, as illustrated by the authorities (1) [1924] 1 K.B. 171, (4) (1943) 48 C.W.N. 766, (2) [1931] 2 K.B. 215 pp. 799-801, and (3) (1950) 54 C.W.N. 883.

The decisive factor that separates a quasi-judicial act from a purely administrative one is the third element of Atkin L.J.’s definition, namely the duty to act judicially. Lord Hewart C.J. expressed this principle in R. v. Legislative Committee of the Church Assembly (1) by stating that a body must not only possess legal authority to determine questions affecting the rights of subjects, but must also be charged with the additional characteristic of a duty to act judicially. Lord Radcliffe later endorsed this passage in the Privy Council judgment in Nakkuda Ali’s case (2). Consequently, when assessing whether a statutory body functions as a quasi-judicial entity or merely as an administrative one, it is essential to determine whether the statute imposes on that body a duty to act judicially. The question then arises as to the circumstances in which such a duty is present. A review of decided cases shows that, where statutory bodies were deemed quasi-judicial, there were typically parties asserting a claim under the statute and opposing parties resisting that claim, and the statutory authority was empowered to adjudicate the dispute and either grant or refuse the relief sought. For example, in The Queen v. The Local Government Board (3) the contest was between the County Council of Wexford and Webster & Leary, with the Local Government Board authorized to decide whether the latter were entitled to a higher salary. Similarly, in Rex v. Woodhouse (4) the applicants seeking renewal of a licence and certain brewers were opposed, and the Justices of Leeds were tasked with deciding whether the licence should be renewed. Further illustration can be found in Rex v. Post (1) [1928] 1 K.B. 411 at p. 415, (3) (1902) L.R. 2 Ir. 349, and (2) (1950) 54 C.W.N. 883, where the presence of a contest between claimants and respondents signified that the statutory authority was exercising a quasi-judicial function.

In the decision reported at C.W.N. 883, the Court referred to several earlier authorities, namely C.W.N. 883 (4) [1906] 2 K.B. 501, Master General (1), Rex v. London County Council (2) and Rex v. Hendon District Council (3). Even in the case of Rex v. Boycott (4) the statute was understood to create a contest between the Local Education Society and a boy who was alleged to be an imbecile, whereby the father was entitled to receive notice under the regulations before a certificate could be issued against the boy. The Court observed that it was unnecessary to enumerate further examples; the essential point was that in each of those cases there existed a lis – that is, a proposition and an opposing claim – and the statutory body was empowered to resolve the dispute, and the resolution was treated as a quasi-judicial decision. In some authorities the requirement of a lis between two or more parties has been expressly mentioned or even insisted upon. For instance, in Errington & others v. Minister of Health, Maugham L.J., then serving as a Lord Justice, stated that the Minister’s role could be described as quasi-judicial because, under a clearance-area scheme, objections were lodged by property owners, creating a genuine contest between those owners and the local authority, and the Minister had to reach a determination after considering the opposing positions. The judgment of Greet L.J. in the same case, which was later quoted with approval by Swift J. in Frost & others v. Minister of Health (6), extended the analysis: he observed that when the Minister confirms a closing order in the absence of any objection, the Minister is acting in a ministerial or administrative capacity, making only those inquiries he deems necessary to decide whether the order serves the public interest. However, the situation changes when objections are raised by interested owners; in that circumstance, the Minister must decide whether to impose a closing order despite the owners’ objections, and consequently the Minister should be regarded as exercising quasi-judicial functions. Swift J., accepting Greet L.J.’s statement, added that he agreed the moment an objection is made the Minister’s role becomes quasi-judicial, while noting that it is clearly recognised by the Court of Appeal that up to the time an objection is lodged the Minister acts in an administrative, not a judicial, capacity.

In this case, the Court observed that once an objection is filed, the Minister ceases to act in an administrative capacity and instead performs a quasi-judicial function. Under the Housing Act of 1930, the local authority is required to forward a clearing order to the Minister. When the owners of the affected property do not raise any objection, the Minister merely reviews the proposal and may either confirm it or modify the order issued by the local authority. According to the two decisions previously cited, this situation places the Minister in an administrative role because there is no lis, that is, no dispute between two opposing parties; the only actor is the local authority making a proposal. However, when an owner lodges an objection, the Minister must adjudicate the matter. The Court explained that the presence of an objection creates a lis between two contending parties—the local authority and the owner—and therefore the Minister must exercise judicial authority to resolve the dispute.

The Court acknowledged that in Franklin v. Minister of Town and Country Planning (1) the House of Lords held that, under the relevant statute, the Minister never acted judicially, and consequently the decisions in the two earlier cases could not be sustained. Nevertheless, the Court indicated that the cited passages were presented solely to illustrate the principle that a statutory body empowered to settle disputes between two contestants performs a quasi-judicial act. The Report of the Ministers’ Powers Committee, which defined the terms “judicial” and “quasi-judicial,” was referred to; that definition was later accepted by Scott L.J. in Cooper v. Wilson (1). The report stated that a true judicial decision presupposes an existing dispute between two or more parties and involves four requisites, while a quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves analogous requirements. This definition clearly implies that a quasi-judicial decision requires at least two contesting parties and an external authority to decide the dispute.

The Court then cited the observations of the Chief Justice, sitting as a Single Judge in the Bombay High Court, in Kai Khushroo Sorabjee v. The Commissioner of Police (2). In that case, which concerned an order made under the Defence of India Rules, the Chief Justice remarked that unless the authority vested with the power to make an order must act judicially—meaning it must consider both sides of a question and render a decision—no quasi-judicial act can arise. He added that the two sides cannot include the authority itself, because the authority is the deciding body. Finally, the Court quoted Lord Oaksey L.J. in Franklin v. Minister of Town and Country Planning (3), noting that the authorities cited earlier required an examination of the cases of both sides and that a lis existed where two parties contested the matter and the Minister, as an outside authority, was the adjudicator.

In the recent decision of Patri Shaw v. R. N. Roy, a Division Bench of the Calcutta High Court disagreed with the earlier Bombay judgment that is now before this Court and stressed that a true lis, meaning a dispute between two distinct parties, must exist before an authority’s decision can be described as quasi-judicial. The Calcutta Court noted that without such a contest the authority would not be exercising a judicial function, and it cited the Bombay cases reported at (1) [1937] 2 K. B. 309, 340, (2) (1947) Bom. L.R. 717; A.I.R. 1947 Born, 153, and (5) (1949) 51 Bom. L.R. 342 in support of its view. The judgment further observed that many other authorities have been held to act quasi-judicially even though there were not two opposing parties before them; in those situations the authority itself made a proposal, another individual objected, and the same authority was tasked with hearing that objection and rendering a final decision. Thus the proposing authority effectively became the judge in its own cause. The Court explained that the sole basis for treating such a decision as quasi-judicial is that the statute granting the authority power also empowers it to affect the rights of, or impose liabilities upon, others, and obliges the authority by its very enabling legislation to act in a judicial manner.

To illustrate this principle, the Court referred to several earlier decisions. In The Queen v. Corporation of Dublin, May C.J. entertained an application for certiorari to set aside a borough rate; the contest was between the corporation, which under the statute could levy the rate after considering facts, and the ratepayers who would bear the liability. Although the statutory provisions were not fully reproduced, the essential point was that the corporation’s statutory power to impose a charge required it to act judicially. The Court then turned to Rex v. Electricity Commissioners, where Atkin L.J. defined the relevant concept; in that case the Commissioners themselves devised a scheme, the electricity companies objected, and the Commissioners conducted a local enquiry, heard objections, and issued a final order. Here, too, there were no separate parties apart from the Commissioners, yet their statutory authority to affect others’ rights compelled them to hold an enquiry, consider evidence, and decide after evaluating all circumstances. Finally, the case of Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust was cited, where the appellant owned a building and the respondent Trust, created by statute, made an adverse declaration affecting the building. The Trust acted as judge in its own cause but was required by the statute to entertain objections, hear evidence, and then render a decision. In each of these examples, the decisive factor was the statutory empowerment of the authority to affect rights and the statutory requirement that it conduct a judicial inquiry before reaching its conclusion.

In the Singapore Improvement Trust case the dispute was between the appellant, who owned a building, and the respondent Trust, which acted as the authority that issued an adverse declaration concerning that building. By virtue of the statutory provisions, the Trust was designated to act as the judge in the very controversy in which it was a party. Nevertheless, the statute required the Trust to receive objections, to hear evidence and only thereafter to make a decision on the matter. The present decision rests upon this latter requirement. It is unnecessary to cite further examples, for these cases already demonstrate the principle involved. The principles to be drawn from the two lines of authority previously mentioned are, first, that when a statute empowers an authority, which is not a court in the ordinary sense, to resolve disputes that arise from a claim made by one party under that statute and opposed by another party, and to determine the respective rights of the contesting parties, a lis exists in principle and, absent any contrary provision in the statute, the authority is obligated to act in a judicial manner and its determination constitutes a quasi-judicial act; and second, that where a statutory authority possesses power to perform an act that will prejudice a subject, even though the contest is technically between the authority proposing the act and the subject opposing it and not between two separate parties, the authority’s final determination will still be a quasi-judicial act provided the statute requires the authority to act judicially. In other words, while the existence of two parties on opposite sides of the deciding authority will, in the absence of other factors, normally impose on the authority a duty to act judicially, the lack of such parties does not, by itself, remove the authority’s action from the category of quasi-judicial acts if the statute nevertheless mandates a judicial procedure. Counsel for the appellant relied upon two decisions, namely Rex v. Hendon Rural District Council and Rex v. London County Council, to argue that even when the statute does not expressly require an inquiry, the authority’s decision may still be deemed quasi-judicial. In the latter decision, although the statute itself contained no express provision for an inquiry, the rules formulated by the Theatre and Music Hall Committee established detailed procedures for notice, advertisement, public opposition, hearing and the liberty to examine and cross-examine witnesses. In the former decision, notice was issued, objections were invited and the parties appeared before the authority. In both authorities, as previously noted, there was a lis between two contending parties apart from the deciding authority, and the authority’s decision affected the rights of those parties, thereby supporting the classification of the decision as a quasi-judicial act.

The argument that the act of the Provincial Government under the Bombay Ordinance qualifies as a quasi-judicial act can be sustained on the original principle that was first articulated. The remaining question is whether the Provincial Government’s action meets either of the two established tests for a quasi-judicial act. In the present case there were not two opposing parties that would create a lis in the usual sense. The Provincial Government had been empowered to requisition land for a public purpose, and the father of the respondent, whose interests were adversely affected, opposed the requisition. Because there were not two parties besides the Provincial Government, the first test – the presence of a lis between two parties apart from the deciding authority – is not satisfied. Chief Justice Chagla appeared aware of this difficulty and attempted to overcome it by treating the State as a separate party, as if, under the Government of India Act, 1935, the State were a distinct legal entity from the Provincial Government. This fictional insertion is wholly unconvincing and cannot be upheld. The Ordinance under review (1) [1933] 2 K.B. 696. (2) [1931] 2 K.B. 215. does not contemplate or allow such a fiction. The plain fact is that, apart from the Provincial Government as the deciding authority, there were no two contending parties. Nevertheless, this absence is not decisive, because it remains to be examined whether the Ordinance required the Provincial Government to act judicially, which is the second test. Turning to the provisions of the Ordinance, it is contended that section 3 implicitly demands that the existence of a public purpose be determined judicially. The argument can be summarized as follows: the existence of a public purpose, being an objective fact, is a condition precedent to exercising the power of requisition, just as the non-use of land for any of the purposes listed in the proviso to section 3 or the vacancy of premises under section 4 are also conditions precedent. Because this condition precedent is an objective fact, it must necessarily be determined by the Provincial Government in a quasi-judicial manner. However, this argument overlooks the distinction in language between the main body of section 3, the proviso to that section, and section 4. The proviso to section 3 places certain lands outside the scope of the power conferred on the Provincial Government by the main body of the section. If the Provincial Government were to exercise its requisition power over land that falls within the proviso, based on an erroneous belief that it does not, the Government would exceed its statutory limits, rendering the requisition order ineffective and subject to challenge as wholly without jurisdiction. In the same way, section 4 confines the Government’s power to vacant premises; if it were to requisition premises that are not actually vacant, it would also be acting beyond its authority, and such an order would likewise be vulnerable to legal challenge. This analysis shows that neither the proviso to section 3 nor section 4 indicates that the determination of these objective conditions was left to the Provincial Government’s subjective opinion.

In the two cases that had been cited, the Provincial Government possessed a power of requisition that was expressly confined to premises that were vacant. When the Government attempted to requisition premises on the ground that they were vacant while, in reality, they were not vacant, it therefore entered a field that was beyond its statutory authority. Such an over-reach meant that the Government’s decision could not bind any person and could be challenged by a suit. The judgment observed that nothing in either the proviso to section 3 or in section 4 indicated that the condition precedent – namely, the non-use of the land for any purpose listed in the proviso to section 3 or the vacancy of the premises under section 4 – was to be left to the Provincial Government’s subjective assessment. By contrast, a proper construction of the main body of section 3 showed that the questions of whether a public purpose existed and whether requisitioning the land was necessary or expedient were expressly left to the Provincial Government’s subjective opinion. Consequently, when the Government acted in good faith on those subjective judgments, its decision could not be questioned. The fact that the condition precedent in the proviso to section 3 or in section 4 was not subject to the Government’s opinion did not alter the construction of the language in the main part of section 3, nor did it change the character of the act contemplated by that section. The first part of the argument therefore failed to appreciate this distinction.

The second part of the argument proceeded on the premise that an objective fact could never be left to the subjective opinion of a designated authority and must always be determined by a judicial process. The judgment noted that earlier cases demonstrated that the existence of a public purpose, the interests of the State, and similar considerations may indeed be left to the subjective satisfaction of the designated authority, and that, absent bad faith, such decisions cannot be challenged in any proceeding. Even where the matter is not expressly left to subjective opinion, an administrative authority often has to reach a conclusion about objective facts, such as the existence of a public purpose, as part of exercising its powers. If that conclusion is erroneous, it does not bind anyone and may be contested in an action, as observed by Palles C.B. in The Queen v. Local Government Board. The mere existence of a public purpose as a condition precedent to exercising the power of requisition does not automatically render the decision concerning its existence a quasi-judicial act. The judgment therefore concluded that there was no requirement for the Provincial Government to determine the condition precedent judicially, and that the authority’s determination, made in good faith, remained within the scope of its administrative function.

The Court observed that deciding whether a public purpose exists does not automatically render that decision a quasi-judicial act. It held that there is no justification for asserting that the fulfilment of a condition precedent to the exercise of an administrative power must invariably be determined in a judicial manner by the authority that holds the power. The authority may determine the existence of the purpose for its own purposes, and if a dispute arises the ultimate determination rests with the Court, a circumstance that reinforces the view that the authority has no duty to make a judicial determination. The Court further expressed the opinion that even if, for the sake of argument, the question of whether a public purpose exists were not left to the subjective opinion of the Provincial Government but had to be decided by the Provincial Government, nothing in section 3 of the Ordinance indicated that such a determination had to be made judicially. The observations of Lord Radcliffe in Nakkuda Ali’s case (1950) 54 C.W.N. 883 at p. 887 were cited as instructive on this point. Counsel for the respondent then drew attention to sections 10 and 12 of the Ordinance, relying heavily on them to support the contention that the power to make a requisition 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 was noted that the respondent had not argued that the requisition order itself was a quasi-judicial act; rather, the argument was that the power to issue the order was contingent upon a judicially established fact. Consequently, the Court examined whether the two sections relied upon actually bore on the question of ascertaining the factual existence of a public purpose. Section 10 provided that the Provincial Government, with a view to carrying out the purposes of the Ordinance, could by order require any person to furnish information in his possession relating to any land that was requisitioned, continued under requisition, or intended to be requisitioned or continued under requisition; the person so required would be deemed legally bound to comply within the meaning of sections 176 and 177 of the Indian Penal Code. Section 12 authorized, without prejudice to any other powers conferred by the Ordinance, any officer or person empowered by the Provincial Government by general or special order to enter and inspect any land for the purpose of determining whether, and if so in what manner, an order under the Ordinance should be made in relation to such land, or to secure compliance with any order made under the Ordinance. In interpreting these provisions, the Court emphasized that merely providing for an enquiry as a preliminary step does not, by itself, transform the ultimate decision into a quasi-judicial act, because the purpose of the enquiry may be solely to enable the deciding authority to reach a conclusion that remains an administrative act.

In this passage the Court explained that the fact that a preliminary enquiry is undertaken before a decision is reached does not automatically transform the ultimate decision into a quasi-judicial act. The Court emphasized that the purpose of such an enquiry may be solely to assist the authority that is to make the final choice in forming its mind for what may be a purely administrative act. To illustrate this point the Court referred to the case of Robinson v. Minister of Town and Country Planning (1). In that case the Minister’s action was held to be an administrative act, and Lord Greene M.R. was quoted at page 859. He observed that the matter before the Minister differed from a situation where a Minister is required to hear an appeal against a closing order issued by a local authority. He clarified that the present case involved an original order made by the Minister in his capacity as an executive authority. The Minister was therefore free to base his opinion on any material he considered appropriate, whether that material arose from the ordinary course of his executive functions or was produced during a public enquiry, if such an enquiry was held. Lord Greene warned that to describe the Minister’s decision-making process as quasi-judicial would misinterpret the nature of the procedure. He acknowledged that the enquiry itself must be conducted according to principles that may be described as quasi-judicial, but he stressed that this does not mean those principles extend to the executive act of issuing the order. According to his reasoning, the enquiry is merely a step that leads to the final result, and there is no basis for asserting that the courts may control the executive decision by reference to the evidence, or the absence of evidence, presented at the enquiry. He warned that such a theory would treat the executive act as if it were a judicial or quasi-judicial decision, which he said it emphatically is not.

The Court then turned to the decision in Franklin v. Minister of Town and Country Planning (1), which had also been mentioned earlier. In that case Lord Thankerton gave a detailed opinion at pages 295-296. He stated that, in his view, no judicial or quasi-judicial duty was imposed on the respondent, and that any reference to judicial duty or bias was irrelevant to the matter at hand. He described the respondent’s duties under section 1 of the Act and the accompanying Schedule I as purely administrative, even though the Act prescribed certain methods or steps for discharging those duties. He pointed out that before preparing the draft order—which required a definite proposal to designate the area as the site of a new town—the respondent necessarily had to conduct an elaborate inquiry into the matter. This extensive inquiry, he noted, was an integral part of the administrative process that preceded the issuance of the draft order. The Court’s quotation of Lord Thankerton therefore underscored the view that the functions performed by the respondent, including the inquiry and the preparation of the draft order, were administrative in nature and not subject to the standards that apply to judicial or quasi-judicial functions.

The respondent was expected to consult any local authorities that appeared to be interested in the matter, and, as a matter of course, to seek the views of other Government departments such as the Ministry of Health. Consequently, the respondent had to be satisfied that the proposed scheme was sound before taking the serious step of issuing a draft order. The Court observed that the purpose of inviting objections, and, where such objections were not withdrawn, of holding a public inquiry before a person other than the respondent, was to provide the respondent with additional information for the final assessment of the soundness of the designation scheme. It was further noted that, after an order was made, the principal responsibility for developing the site rested with the Development Corporation created under section 2 of the Act. In the Court’s view, no judicial duty was imposed on the respondent in performing these statutory functions; the only issue was whether the respondent had complied with the statutory directions to appoint an officer to conduct the public inquiry and to consider the inquiry’s report. This conclusion was drawn in light of the earlier observations and formed the basis for the subsequent analysis of the relevant statutory provisions.

Turning to the two sections under consideration, the Court pointed out that the powers conferred on the Provincial Government were expressed in enabling terms and were therefore not compulsory. A lower court had interpreted the word “may” as meaning “must,” based on the assumption that a statutory right necessarily carried a corresponding duty, which would obligate the Provincial Government to exercise the power and thus render an inquiry compulsory. The Court rejected this line of reasoning. It explained that authorities only read “may” as “must” when the exercise of the power furthers the interest of a third person for whose benefit the power was granted. Enabling language is inherently potential and does not, by itself, create an obligation. Such language becomes compulsory only when it is used to effectuate a legal right, as illustrated in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. In the present case, the power was intended to enable the Provincial Government to obtain information necessary to implement the Ordinance, not to benefit any other party, including the owner of land proposed for requisition. When a power is granted to a body for its own benefit and is couched in optional terms, there is no principle or authority that permits a court to transform “may” into “must.” Assuming, however, that “may” were to be read as “must,” the Court noted that the information could…

The Court observed that the information which could be obtained under section 10 was limited to material concerning the land that had already been requisitioned or that was intended to be requisitioned. Such information was undoubtedly useful for the Provincial Government when it considered whether it was necessary or expedient to acquire a particular parcel of land, and it could also assist the officer who determined the amount of compensation. However, the Court could not see how any detail about a specific piece of land could influence the question of whether a public purpose existed, which was the sole issue addressed by section 3. That issue, according to counsel, had to be decided judicially by the Provincial Government, but the Court found no connection between land-related information and the existence of a public purpose. The Court reiterated that deciding whether the acquisition of a particular parcel of land was necessary or expedient was a purely administrative function. Moreover, the ordinance empowered the Provincial Government to require “any person” to provide information about the land, but it did not single out the landowner or any other interested party as a specific source of that information. Consequently, even if the Provincial Government were obliged to conduct an inquiry, the landowner possessed no special right to be consulted beyond the general right of any person to be called upon for information.

The Court further noted that the ordinance did not provide for giving the landowner special notice of a proposed requisition, nor did it require a public advertisement or create a mechanism for an aggrieved person to lodge an objection. No authority was designated to receive such objections, and the statute merely stipulated that the information should be furnished to “such authority as might be specified.” This wording indicated that the information was not to be transmitted directly to the Provincial Government but rather to an authority appointed for the purpose of conducting a public inquiry, much like the arrangements described in Robinson v Minister of Town and Country Planning and Franklin v Minister of Town and Country Planning. Although sub-section (2) of section 10 imposed a criminal penalty on persons who failed to furnish information, the Court held that this penalty did not alter the character or scope of the inquiry contemplated by sub-section (1). The Court also examined section 12, which it described as another enabling provision allowing inspections for the purpose of determining whether, and in what manner, an order should be made. The Court concluded that such inspections could not affect the determination of a public purpose, an independent question that bore no necessary relation to any particular parcel of land.

In the situation described, many premises might have to be requisitioned, and if the respondent’s claim were true, a separate quasi-judicial determination would be required for each house to be acquired. Such a requirement would mean as many inquiries as there are houses, which the Court regarded as an impracticable and absurd proposition. The Court then examined how the provisions of sections ten and twelve compare with those of section six. It noted that the determination of compensation and its apportionment were clearly judicial or quasi-judicial acts, and that an appeal provision also existed. Section sixteen authorized the making of rules for holding an inquiry under subsections one and three of section six. The Court observed that, although the Ordinance provided for a judicial or quasi-judicial inquiry for the purposes of section six, it remained silent with respect to section three, a silence that could not be ignored.

The Court concluded that the Ordinance did not obligate the Provincial Government to act judicially when making a requisition order under section three. The provisions for obtaining information and for conducting inspections under sections ten and twelve were not to be read as creating a judicial or quasi-judicial inquiry, nor were they intended to make such an inquiry mandatory. Their purpose was to gather information that would enable the Provincial Government to exercise its administrative, that is, executive function of issuing a requisition order. Accordingly, the Court held that, on a proper construction of section three, the determination of whether a public purpose existed and whether requisitioning particular land was necessary or expedient constituted a purely administrative act, the whole decision being left to the Provincial Government’s opinion and, if made in good faith, not subject to questioning. Moreover, even assuming the matter was not left to opinion, the Court found that such a determination could not be classified as a quasi-judicial act because there was no dispute between opposing parties for the Provincial Government to resolve, and because the Ordinance did not require the Government to hold any judicial inquiry or to act judicially. The determination of a public purpose was therefore only a step in the exercise of administrative power; if the decision proved erroneous, it could be challenged only by an ordinary action, while a writ of certiorari would be an entirely inappropriate remedy. For these reasons the Court rejected the second head of argument. Finally, before concluding, the Court noted the remaining argument, which posited that the existence of a public purpose was a condition precedent to the exercise of the power.

In this case the Court observed that the existence of the condition precedent must be decided as an objective fact by the Provincial Government. However, the Government could not acquire jurisdiction to act on the power simply by incorrectly deciding that preliminary point. The Court referred to the authority in Bunbury v. Fuller, where Coleridge J. stated that a court of limited jurisdiction may not create its own jurisdiction by a wrong decision on a collateral issue that determines the limit of its jurisdiction. He explained that even if a court’s decisions are final on the matters that lie within its jurisdiction, its preliminary inquiries must remain subject to review by a superior court. Blackburn J. later cited this principle in Pease v. Chaytor, and the Privy Council affirmed the same rule in Colonial Bank of Australia v. Willan. Although the principle appears straightforward, Lord Esher M.R., in Regina v. Commissioner of Income-Tax, warned that its application can often be misleading. The Court then turned to the classification offered by the Master of the Rolls, who divided cases into two categories. In the first category, an inferior tribunal created by statute is given jurisdiction only if it is shown that a particular state of facts exists; the legislature may intend that the tribunal should not decide definitively whether those facts exist. If the tribunal proceeds without such a factual foundation, its actions may be challenged as beyond its jurisdiction.

In the second category, the legislature may expressly confer upon the tribunal the power both to determine whether the preliminary factual condition exists and, upon finding it satisfied, to exercise the substantive jurisdiction. When a statute entrusts a limited-jurisdiction body with such combined powers, the legislature must also decide whether any appeal will be available from the tribunal’s decisions; otherwise, no appeal would exist. The Court noted that it would be a mistake to claim that a tribunal cannot acquire jurisdiction by erroneously deciding certain facts exist when the statute expressly authorises the tribunal to determine all facts, including the preliminary ones, and does not provide for an appeal of that determination.

In this case, the Court observed that the statute empowered a tribunal to determine all facts, including whether the preliminary facts required for further exercise of jurisdiction existed, and that when such jurisdiction was conferred without providing any right of appeal, the tribunal’s exercise of that jurisdiction could not be appealed. Counsel for the respondents, Mr. Seervai, argued that the matter belonged to the first category of cases and relied heavily on the decisions in Rex v. Woodhouse (1) and Rex v. Bradford (2), contending that a writ of certiorari was available to correct any error committed by the Provincial Government. The Court identified two responses to that contention. First, it noted that there was no dispute that forming an opinion about the necessity or expediency of requisitioning land was a purely subjective exercise and that an order of requisition based on such an opinion was an administrative act. What was contested was the proposition that the existence of a public purpose had to be determined judicially by the Provincial Government before the Government could exercise its administrative powers. In other words, the argument required the Provincial Government to act in a judicial capacity on that particular issue. If that view were accepted, the decision of the Provincial Government would not be a collateral ruling, as discussed in [1906] 2 K.B. 501 and (2) [1908] 1 K.B. 365, but rather a decision on the substantive issue itself, an issue that the argument said lay within the Provincial Government’s jurisdiction. Consequently, the matter would fall within the second class of cases identified by Lord Esher, M.R. The Court also emphasized that the Ordinance, although it provided for an appeal under section 6, did not actually afford a right of appeal against the Provincial Government’s determination, a circumstance of importance. Before reaching its conclusion, the Government had dispatched an Inspector under section 10 to collect information; the father of the respondent, who was the original applicant, supplied all required details, produced the original Deed of Assignment supporting his title, and gave a written statement. Thus, the statutory requirements had been satisfied and the petitioner had been heard. In the absence of any evidence of bad faith, the Provincial Government’s finding that a public purpose existed became binding, and because no appeal was permitted, that finding was conclusive even if later shown to be erroneous. The Court’s second response to Mr. Seervai’s argument was that, even assuming the case belong to the first class and that the erroneous decision could be corrected, the proper remedy would be an action in the appropriate forum, not a writ of certiorari. Moreover, the two authorities cited by Mr. Seervai did not apply to the present facts. In Rex v. Woodhouse (1), the Court of Appeal had held that licensing Justices, when granting or refusing a licence, performed a quasi-judicial function because they resolved a dispute between the applicant and the opposing parties.

In that earlier case the Justices granted a provisional licence and then referred the matter to the Quarter Sessions. The appellant raised three separate grounds. First, it was alleged that the Justices had not given any thought to the issue and had failed to decide the matter in a judicial manner, instead making the order merely to give effect to a pre-existing agreement between themselves and the Corporation. Second, the appellant claimed that the Justices were biased. Third, it was contended that, according to the decision reported in (1) [1906] 2 K.B. 501, the Justices’ statutory power was limited to granting licences only to persons possessing specified qualifications; therefore, by wrongly finding that the applicants possessed those qualifications, the Justices could not lawfully assume jurisdiction to perform the quasi-judicial act of granting the licence. The Court of Appeal held that the Justices had overstepped their authority, but that decision was reversed by the House of Lords in Lord Mayor etc. of Leeds v. Ryder (1) on the ground that the Justices were required to act according to their own discretion and that no bad-faith motive could be imputed to them. Nevertheless, the Court of Appeal’s reasoning was based on the premise that the Justices constituted a quasi-judicial body and that, by erroneously deciding a preliminary fact, they attempted to discharge their quasi-judicial function of granting the licence, a function that was subsequently challenged and set aside by certiorari. The same principle was applied in Rex v. Bradford (2), where the Justices, in granting a licence to the District Council to remove stones, were said to be exercising a quasi-judicial function and to have assumed jurisdiction by wrongly deciding the collateral fact that the land was not a park. Similar observations were made in Rex (Greenaway) v. Justices of Armagh (3). All of these appellate decisions involved a quasi-judicial body that purported to acquire jurisdiction to perform its quasi-judicial role through an erroneous determination of a collateral fact; consequently, certiorari was issued to correct the jurisdictional error by annulling the order that constituted the quasi-judicial act.

The matter presently before the Court concerned the Provincial Government, which acted as an administrative authority by forming an opinion on whether it was necessary or expedient to requisition land and by issuing a requisition order based on that opinion. If the existence of a public purpose is regarded as a collateral fact, then at most the situation represents an administrative body assuming jurisdiction to exercise its administrative powers by mistakenly deciding that collateral fact, as illustrated by the authorities (1) [1907] A.C. 420, (2) [1908] 1 K.B. 365, and (3) {1934} 2 Ir. R. 55. In those circumstances the two cases relied upon by Mr Seervai have no application. Assuming, for argument’s sake, that this case fell within the first class of cases described by Lord Esher M.R., the erroneous assumption of jurisdiction to perform an administrative act could be remedied by an action for tortious interference, but certiorari would not be the appropriate remedy.

The Court observed that the contention that the Provincial Government acted in a judicial manner when deciding the collateral fact did not provide a viable remedy. It explained that even if the determination of whether a public purpose existed were characterized as a quasi-judicial act, at most that specific decision could be set aside, but the administrative act of forming an opinion and issuing the requisition order would remain intact because certiorari could not affect it. The Court then referred to the passage quoted from Lord Greene M.R.’s judgment in Robinson v. Minister of Town and Country Planning, noting that while the preliminary inquiry required a quasi-judicial approach, such a requirement did not change the nature or character of the subsequent administrative act. Consequently, the administrative act continued to be an administrative act and was beyond the reach of certiorari. On that basis, the Court concluded that the third category of arguments advanced on behalf of the respondents also failed.

In its judgment, the Court held that the first of the two points raised by the learned Attorney-General on behalf of the appellant must prevail for the reasons already explained. This determination was sufficient to dispose of the appeal, and the second issue—whether a writ of this kind could lie against the Provincial Government—did not arise. The Court further noted that the Government of India Act, 1935, had been repealed and that the relevant constitutional provisions differed from those of the earlier Act, rendering the question academic for future reference. Accordingly, the Court expressed no opinion on that matter. Aligning with the Chief Justice, the Court allowed the appeal, set aside the judgments and orders of the lower courts, and dismissed the petition. It also concurred with the order for costs made by the Chief Justice. The appeal was thus allowed. The agents appearing were Ranjit Singh Narula for the appellant and Rajinder Narain for respondents Nos. 1 (a) and 1 (b).