AI Structured Summary
Not yet generated for this judgment
Judgment
Chhatpar, J.—This is an appln. under Article 226 read with Article 31, Const. Ind. praying for the following reliefs: (1) A writ of certiorari to be issued to the Custodian to send the whole record of the case & to hold that) his order of taking possession of the whole Hydari Oil Mill at Talaja is ultra vires and illegal; (2) A writ prohibiting him from allotting the whole Mill to anybody & from preventing the petnr. from entering the said Mill & taking possession of it in his own right; & (3) to give such other directions or orders as the nature of the case may demand.
The petnr. & his brother Noormahmad Kanji are Khoja Muslims by caste & they hold certain properties in co-ownership including an Oil Mill known as Hydari Oil Mill at Talaja in Gohilwad District, which is the subject-matter of the present petn.; the shares of the two brOrs. were equal. Noormahmad left the Dominion of India after the partition of India & he has been formally declared an evacuee by an order dated 23-11-1949 under the Administration of Evacuee Property Act. During the course of investigation as to evacuee property, the Assistant Custodian, Evacuee Properties, Gohilwad District came to know about this item of evacuee property in about the month of July 1949, & by a notice dated 19-7-1949, he called upon the petnr, to appear before him at Bhavnagar & produce all the documents etc., in connection with this Oil Mill. It is not clear from the record what happened in pursuance of this notice, but on 9-11-1949 the petnr. addressed a letter to the Custodian of evacuees'' property, Gohilwad, in which he mentioned that in the month of July inquiries were made & since then three or four months had passed & nothing had been done with respect to the Oil Mill; for a long time the Mill had remained closed which was resulting in a loss & unnecessary expenses were being incurred. He further stated in the letter that the season had started & it would be possible to give the Mill on rent but afterwards it would be difficult. He ended the letter by stating that he wanted permission to give the Oil Mill on rent. On this, the Colr. & Deputy Custodian of Gohilwad passed an order dated 12-11-1949, to the effect that as the season was approaching, the Mill should be rented out immediately; as a refugee was not likely to invest a big amount, an attempt should be made to give the Mill on rent to anybody in the presence of the petnr. who had � share in it; the lessee will have to deposit the rent in the office of the Deputy Custodian. Thereafter the Mill was ranted to Bhagwandas & Co., but it appears that the rent of the Mill was not being deposited in the office of the Deputy Custodian. In the meantime, Noormahmad Kanji the petnr.''s brother who has admittedly & share in the Mill was formally declared an evacuee by an order dated 23-11-49. Then it appears that the Custodian purporting to act under the provisions of the Evacuee Property Administration Law put an end to the lease given in favour of Bhagwandas & Co. & on 28 6-60, the Assistant Custodian of Gohilwad acting under the orders of the Custodian, Saurashtra State, assumed possession of the Mill from Bhagwandas & Co.; the latter, however,, made representation to the Custodian & requested him to hand over the possession for some time to enable him to dispose of certain raw materials which were lying in the premises of the Mill. This was agreed to & the possession of the Mill was given by the Assistant Custodian to Bhagwandas & Co., on 14-7-50 with a special understanding that the-possession was to be re-delivered on 31-8-50 or when the stock was disposed of, whichever was earlier. On 32-8-50, the present appln. was filed praying for the reliefs above stated. Along with the appln., an appln. for stay was filed & although since then the Custodian has taken over possession of the Oil Mill from Bhagwandas & Co., he has been restrained not to allot the Mill to anybody pending the disposal of the main appln.
It would, thus be seen that the rights of ownership of the respective parties are not disputed at all. The Custodian admits the half share of the petnr. in the Oil Mill. The petnr. is not himself declared an evacuee & his property cannot,, therefore, vest in the Custodian. The learned Advocate-General who appeared for the Custodian has admitted that what is vested in the Custodian is only the half share of the evacuee Noormahmad Kanji. There is no question of infringement of any fundamental right of property guaranteed by the Constitution. The petnr. is not being deprived of his property, as there is no question of acquiring his half share in the Oil Mill compulsorily to invoke the protection by Article 31 of the Constitution. The real question relates to the management of the joint property in which the evacuee has half share & which is vested in the Custodian. The nature of the property is such that it is not capable of being divided by metes and bounds nor can the two co-owners lease out their undivided shares separately for any practical purpose. The Advocate-General, however, contends that under the Evacuee Property Law, certain powers of management are given to the Custodian & he has referred to us several provisions of the Administration of Evacuee Property Act, which I do not think necessary to discuss in the present case. It is clear to me that the disputes are capable of being resolved only by filing a suit for partition, if the petnr. does not wish to consent to the management of the joint property by the Custodian. The Custodian has not forcibly taken possession of the Mill from the petnr. He has peacefully obtained possession from the lessee on termination of the lease.
I am clearly of the opinion that this is not a case in which a writ of certiorari can issue, as the act of taking possession of the Mill is purely an administrative or executive act. In support of this, I may refer to a recent pronouncement of the S.C. in the case of Province of Bombay Vs. Kusaldas S. Advani and Others, , where in the majority of the Judges hold that an act of the Govt. requisitioning a land for a public purpose under the Bombay Land Requisition Ordinance was not a judicial or a quasi-judicial decision which could be challenged in an appln. for a write of certiorari. The following passages from the judgment of the learned Chief Justice are pertinent on the question:
A discussion about the distinction between judicial & quasi-judicial functions is'' not useful ill this case as the point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order. In Rejina v. Dublin Corporation (1878) 2 L.Rf. 871 at p. 376, May C.J., in dealing with this point observed as follows:
It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant; but it lies to remove & a judicate upon the validity of acts judicial, in this connection, the term ''judicial'' does not necessarily means acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act, seams to be an act done by component authority, upon consideration of facts & circumstances and imposing liability or affecting the rights of Ors. .
Thus definition was approved by Lord Atkinson in Frome United Breweries Co. Ltd. v. Bath Justices (1926) A.C.C. 586 at p. 602, as the best definition of a judicial act as distinguished from an administrative act.
A distinction between the nature, of the two acts has been noticed in a series of decisions. This Irish case is one of the very early decisions. On behalf of the resp. it was contended that as stated by May C.J., whenever there is the determination of a fact which affects the rights of parties, that determination is a quasi-judicial decision &, if so, a writ of certiorari will lie against the body entrusted with the work of making such decision. As against, this, it was pointed out that in several English cases emphasis is laid on the fact that the decision should be a judicial decision and the obligation to act judicially is to be found in the Act establishing the body which makes the decision. This point appears to have been brought out clearly in The King v. Electricity Commrs. (1924) 1 K.B. 171 where Atkin L.J. (as he then was) laid down the following tests:
Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, & 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:
This passage has been cited with approval in numerous subsequent decisions & accepted as laying down the correct test. A slightly more detailed examination of the distinction is round in The King v. London County Council (1931) 2 K. B. 215 at p. 233, where Scrutton L.J., ob;erved as follows:
''It is not necessary that it should be a Court in the sense in which this Court is a Ct.; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Ct.; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari.
Slesser L. J., in his judgment at p. 243 separated the four conditions laid down by Atkin L. J. under which a rule for certiorari may issue. They are : wherever any body of persons (1) having legal, authority (2) to determine questions affecting rights of subjects and (3) having the duty to Act judicially (4) act in excess of their legal authority a writ of certiorari may issue. He examined each of these conditions separately & came to the conclusion that the existence of each, was necessary to determine the nature of the act in question. In the Ryots of AIR 1943 164 (Privy Council) , Viscount Simon, L.C., in delivering the judgment of the Board accepted the test of these four conditions to determine the nature of the act. He stated:
This writ does not issue to correct purely executive acts but, on the other hand, its application is act narrowly, limited to inferior ''Cts.'' in the strictest sense. Broadly speaking it may be said that if the act done by the inferior body is a judicial aot, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign''s superior Courts and in particular the Ct. of King''s Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of King''s Dominions & operates, within certain limits, in British India.
In Franklin v. Minister of Town & Country Planning 1948 A.C.C. 8, the points of distinction are again noticed. The question arose in respect of the town and country planning undertaken under the relevant statute on the order of the minister following a public local inquiry under the provisions of the Act. The question was whether the order of the Minister was a quasi-judicial act or a purely administrative one. Lord Thankerton pointed out that the duty was purely administrative but the Act prescribed certain methods or steps in discharge of that duty. Before making the draft order, the Minister must have made elaborate inquiry into the matter and have consulted any local authorities who appear to him to be concerned and other departments of the Government. The Minister was required to satisfy himself that it was a sound scheme before he took the serious step of issuing a draft order, For the purpose of inviting objections and where they were not withdrawn of having a public inquiry to be held by some one other than the respondent to whom that person reports, was for the further information of the respondent for the final consideration of the soundness of the scheme. He observed:
I am of opinion that no judicial duty is laid on the respondent in discharge of these statutory duties & that the only question is whether he has complied with the statutory directions to appoint a person to hold the public inquiry and to consider that person''s report.
* * * * Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact & the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari.
* * * * Every decision of the Govt. followed by the exercise of certain power given to it by any law is not necessarily judicial or quasi-judicial. The words of Section 3 read with the proviso and the words of Section 4 taken along with the scheme of the whole of the Ordinance, in my opinion, do not import into the decision public purpose the judicial element required to make the decision judicial or quasi-judicial. The decision of the Provincial Govt. about public purpose is therefore an administrative act. If the Govt. erroneously decides that fact it is open to question in a Ct. of Law in a regular suit, just as its action, on its decision on the facts mentioned in the proviso to Section 3 & in Section 4, is open to question in a similar way. The argument that a suit may be in fructuous because a notice u/s 80, Civil P. C., is essential & that remedy is therefore inadequate, is unhelpful. Inconvenience, or want of adequate remedy docs nut create a right to a writ of certiorari. It is clear that such writ can be asked for if two conditions are fulfilled. Firstly, the decision of the authority must be judicial or quasi-judicial & secondly, the challenge must be in respect of the excess or want of jurisdiction of deciding authority. Unless both those conditions are fulfilled no application for a writ of certiorari can succeed. As in my opinion, the decision of the Provincial Government about public purpose is not a judicial or quasi-judicial decision, there is no scope for an appln. for a writ of certiorari.
Following the above ruling of the S.C., I hold that the petnr. is not entitled to a writ of certiorari.
The second relief prayed for is for a writ prohibiting the Custodian from allotting the whole Mill to anybody & from preventing the petnr. from entering the Mill & taking possession of it in his own right. What the petnr. in this prayer claims is in effect a writ of mandamus to the. Custodian, as a writ of prohibition is issued by a Ct. of superior jurisdiction directing an inferior Ct. for the purposes of preventing the inferior Ct. from usurping jurisdiction with which it is not legally invested. Ordinarily, a writ of mandamus is not granted where an effective remedy is available to a petnr. by a regular suit. In the present case, there is no question of infringement of any fundamental right guaranteed by the Constitution which might compel the H.C. to exercise its powers under Article 226 of the Constitution. As stated above, the right of the petnr. who has � share in the Mill is not disputed & the learned Advocate-General who appears on behalf of the Custodian also admits that whatever proceeds are realised by the lease of the Mill would be duly divided between the petnr. & the Custodian after defraying the costs of the management. In law, 3 co-owner in actual physical possession of any joint property is deemed to hold such possession on behalf of all the co-owners, unless he openly asserts a hostile title & his action amounts to ouster. This proposition as laid down in numerous authorities may be taken as settled law. The Custodian in the present case has not forcibly or wrongfully dispossessed the petnr. nor has he at any time questioned the right of the petnr. to � share in the Mill. He has obtained the actual physical possession from the lessee under the circumstances stated above & his possession cannot be considered as wrongful. Under the law his possession should be deemed to be on behalf of the petnr. as well. The Custodian''s action is assuming management does not amount to compulsory acquisition of the share of the petnr. It, therefore, seems to me futile to pass any orders assuring the petnr. of his right as a co-owner or to give any direction to the Custodian with respect to the property.
Under the circumstances, the appln. is dismissed with costs.
Shah, C.J.
I agree.