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Judgment
Banerjee, J.—This application raises an important question of law which, turns on the construction of the sections of the West Bengal Security Act, 1948 (hereinafter called the Act) and in particular on the meaning of Section 25(1) of the Act read with Section 35. It appears from the preamble that the Act was passed:
to make special provision for the maintenance of public order by the prevention of illegal acquisition, possession or use of arms, the suppression of subversive movements endangering communal harmony or the safety or stability of the Province, the suppression of goondas and for maintaining supplies and services essential to the life of the community.
It was passed on March 13, 1948 and was to remain in force for a period of one year, namely, till March 13, 1949. After its expiration, whereas the West Bengal Legislature was not in session and the Governor was satisfied that circumstances existed which rendered it necessary for him to take immediate action, he was pleased in exercise of the power conferred on him by Sub-section (1) of Section 88 of the Government of India Act, 1935, to promulgate an Ordinance which is known as the West Bengal Ordinance No. II of 1949.
The clauses of the Ordinance, in so far as they are material, are identical with the sections of the Act. In this judgment, for the sake of convenience, I would refer to the sections of the Act.
Section 25(1) of the Act is as follows:
If in the opinion of the Provincial Government it is necessary or expedient so to do for preventing or suppressing subversive acts or for maintaining supplies and services essential to the life of the community or for rehabilitating persons displaced from their residences or shops due to communal strife, it may by order in writing requisition any property, moveable or immoveable and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning:
Provided that no place or premises used for the purpose of religious worship shall be requisitioned under this section.
Section 35 reads:
The Provincial Government may, by notified order, direct that any power or duty which is conferred or imposed by any provision of this Act upon the Provincial Government shall, in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also by any officer or authority subordinate to the Provincial Government.
The Provincial Government under this section delegated the powers and duties to the Rehabilitation Officer who at present is the Respondent in this application. This officer acting under the powers and duties delegated to him u/s 35 made an order which is set out below:
Form III.
Order requisitioning property.
(Vide Section 25(1) of the West Bengal Security Act, 1948 (West Bengal Act III of 1948).)
To Shri Patri Shaw, 9, Hastings Street, Calcutta.
Whereas the Provincial Government by notified order No. 2408 F.R., dated May 31, 1948, issued u/s 35 of the West Bengal Security Act, 1948 (West Bengal Act III of 1948), directed me to exercise the powers relating to the requisitioning of property for rehabilitating persons displaced from their residences or shops due to communal strife conferred on the Provincial Government by Sub-section (1) of Section 25 of the said Act;
And whereas in my opinion it is necessary/expedient to requisition the property described in the schedule below for rehabilitating Sk. Nabab Ali the person/persons displaced from his/her/their residence/shop due to communal strife;
Now, therefore, in exercise of the power conferred by Sub-section (1) of Section 25 of the West Bengal Security Act, 1948 (West Bengal Act III of 1948), read with the said order of the Provincial Government No. 2408 F.R., dated May 31, 1948, I do hereby requisition the property, described in the schedule below and direct that the property be placed at my disposal and control by April 20, 1949.
Schedule.
(Description of property.)
Two rooms on the ground floor and one room on the terrace at No. 9, Hastings Street, excepting the room of watch repairer.
P.M. Lahiri,
Special Officer, Rehabilitation.
1-4-1949.
Time extended--June 4, 1949.
R.N. Ray.
The Respondent is the successor in office of P.M. Lahiri. The Petitioner moved the application before me for one of the prerogative writs and/or to direct, the . Respondent to forbear from acting under the order. I granted a rule. When it came before me for final disposal, it was argued on behalf of the Petitioner that this Court must examine the validity of the order and enquire whether on the facts, the Provincial Government or for the matter of that the Rehabilitation Officer could make that order. In other words, counsel said that the court should investigate the question as to whether on the facts it was necessary or expedient to make the order.
In support of his contention, the Petitioner's counsel relied on a judgment of the High Court of Bombay Rao v. Advani ILR (1950) Bom. 1. It was first heard and decided by Bhagwati J. sitting alone and on appeal by Chagla C.J. and Tendolkar J., constituting a Bench. My own views did not accord with the views expressed by the learned Judges of the Bombay High Court. As the matter was important and a substantial question of law was involved, I reported to that effect to the Chief Justice who is empowered under our Original Side Rules to constitute a Bench of two or more Judges to hear the matter. Accordingly, this Bench has been constituted to hear the application.
We have had the advantage of hearing an exhaustive argument from both sides. After hearing the argument, I still adhere to the opinion I entertained when I heard the case as a single Judge.
I now proceed to give my reasons for the view I entertain. It appears from the preamble of the Act which I have set out that the legislature in its wisdom thought fit to make special provision for the purposes mentioned in the preamble. It may perhaps be that the legislature thought that the ordinary law of the land was not sufficient to meet the situation then existing.
The Act has six chapters. Chapter I is preliminary. Chapter 1A is headed--Access to Certain Places and Areas. Chapter II deals with Prevention of Subversive Acts, e.g., sabotage, prohibition of subversive acts, publications and communications, proscription, etc., of certain documents; power to impose censorship. Chapter III deals with Public Safety and Order, e.g., punishment for carrying or possessing any corrosive substance or liquid, curfew, control of processions, meetings, etc., control of movements of commodities, articles or things, etc. Chapter IV (Miscellaneous Provisions) deals with, power to obtain information; requisitioning of property; publication and service of notice. This chapter contains Section 25 which empowers the Provincial Government to requisition property and Section 26 which provides for publication and service of notice of an order made in pursuance of any provision of the Act. It prescribes that if in the course of any judicial proceeding, a question arises whether a person was duly informed of an order made in pursuance of any provision of the Act, the notification of the order shall be conclusive proof that he was so informed. Chapter V is Supplementary and Procedural and makes provisions against attempts, etc., to contravene the provisions of the Act; lays down special provisions for searches; gives general power of arrest without warrant; etc., etc.
Having regard to the provisions of the Act, the question is what is the nature of. the authority committed by the legislature to the Provincial Government and how far can the court interfere with an order made by the proper authority under this Act.
In Mayor, etc., of West Minster v. London and North-Western Ry, Company (1905) A.C. 426, 427. Lord Halsbury L.C. observed:
Assuming the thing done to be within the discretion of the local authority no court has power to interfere with the mode in which it has exercised it. Where the Legislature has confided the power to a particular body, with a discretion how it is to be used, it is beyond the power of any court to contest that discretion. Of course, this assumes that the thing done is the thing which the Legislature has authorized : see London, Brighton and South Coast By. Company v. Truman (1885) 11 App. Cas. 45.
In Point of Ayr Collieries Ltd. v. Lloyd George (1943) 2 All E.R. 546, control of the Appellants'' undertaking was taken by the Ministry of Fuel and Power by an Order made under the Defence (General) Regulations, 1939, Regulation 55(4). The Appellants contended that there were no adequate grounds upon which the Minister could find as he stated he had found, namely, that it was necessary to take control in the interests of the defence of the realm and the efficient prosecution of the war and for maintaining supplies and services essential to the community. It was held that there was no jurisdiction of the court to interfere with, what was an admittedly bona fide decision of the Minister within his delegated authority. The exercise of executive power under such a regulation cannot be questioned in the courts and can be questioned only in Parliament. The relevant part of the Regulation was as follows:
If it appears to a competent authority that 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, it is necessary to take control on behalf of His Majesty of the whole or any part of an existing undertaking and that, for the purpose of exercising such control, it is expedient that the undertaking or part should be carried on in pursuance of an order made under this paragraph, the competent authority may by order authorise any person (hereinafter referred to as an "authorised controller") to exercise, with respect to the undertaking or any part thereof specified in the order, such functions of control on behalf of His Majesty as may be provided by the order....
Then it goes on to specify how the authorised controller is to exercise his functions and that the undertaking is to be carried on in accordance with his directions.
Lord Greene M.R. said:
In the present case the Appellants have led a quantity of evidence, the details of which I do not propose to canvass. The effect of it is said to be to show that there were no adequate grounds upon which it could appear to the Minister, as required by the regulation; that the case speaks for itself; and that either the Minister was misled by inaccurate information or that he failed to make the inquiries which he ought to have made or that the evidence on the face of it was insufficient or that the Order was made because somebody on the staff of the Minister had been frightened by an unsubstantial bogey and that the Minister had made the Order in a state of some sort of panic in the Ministry. That is the substance of what the evidence is said to disclose. It may be summed up by saying that the Appellants'' case is that there were no adequate grounds upon which the Minister could find as he says he found, namely, that it appeared to him that it was necessary to take control.
If one thing is settled beyond the possibility of dispute, it is that, in construing regulations of this character expressed in this particular form of language, it is for the competent authority, whatever Ministry that may be, to decide as to whether or not a case for the exercise of the powers has arisen. It is for the competent authority to judge of the adequacy of the evidence before it. It is for the competent authority to judge of the credibility of that evidence. It is for the competent authority to judge whether or not it is desirable or necessary to make further investigations before taking action. It is for the competent authority to decide whether the situation requires an immediate step, or whether some delay may be allowed for further investigation and perhaps negotiation. All those matters are placed by Parliament in the hands of the Minister in the belief that the Minister will exercise his powers properly and in the knowledge that, if he does not do so, he is liable to the criticism of Parliament. One thing is certain and that is that those matters are not within the competence of this Court. It is the competent authority that is selected by Parliament to come to the decision and if that decision is come to in good faith, this Court has no power to interfere, provided, of course, that the action is one which is within the four comers of the authority delegated to the Minister....
In Carltona Ltd. v. Commissioners of Works (1943) 2 All E.R. 560, the Appellants were manufacturers of food products and on November 4, 1942, their factory was requisitioned by the Commissioners of Works under the provisions of the Defence (General) Regulations, 1939, Regulation 51(2). On November 9, 1942, the Appellants commenced proceedings against the Commissioners and they claimed a declaration that the Commissioners were not entitled to take possession on the ground that the notice was invalid. The Minister of Food, who had stopped the supply of raw materials and the Minister of Labour and National Service, who had withdrawn labour from the factory, were also made Defendants, but the claim against them was not proceeded with and it was not suggested before the Court of Appeal that any action would lie against them. The sole question before the court related to the validity of the order of the Commissioner of Works in requisitioning the premises. The Appellants contended (a) that the notice of November 4, 1942, was bad because it was a reason not mentioned in the regulation and (b) quite apart from the notice, the requisitioning authority never brought their minds to bear upon the question and (c) that the circumstances were such that, if the requisitioning authority had brought their minds to bear upon the matter, they could not have possibly come to the conclusion to which they in fact came. It was held that Parliament having committed to the executive the discretion of deciding when an order for the requisition of premises should be made under the regulation and with that discretion, if bona fide exercised, no court could interfere.
The regulation under which action was taken is in these words:
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.
Lord Greene said (p. 564):
It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction.
In in the matter of A Petition of Right (1915) 3 K.B. 649 there is a very-pertinent observation made by Warrington L.J. at page 666. The relevant clause of the regulation on which the observation was made is this:
It shall be lawful for the competent naval or military authority and any person duly authorised by him, where for the purpose of securing the public safety or the defence of the realm it is necessary to do so--(a) to take possession of any land and to construct military works, including roads, thereon and to remove any trees, hedges and fences therefrom and then, after a number of other provisions; (f) to do any other act involving interference with private rights of property which is necessary for the purpose aforesaid.
The question for decision was whether in time of war between His Majesty and foreign powers the competent naval or military authority acting on behalf of His Majesty was entitled to take possession of and occupy lands and premises, the possession and occupation of which is in their opinion necessary for securing the public safety and the defence of the realm, without making compensation to the owners or persons claiming to be entitled to the possession of such land and premises, in other words, whether the suppliants in the circumstances of the case were by law entitled to compensation either under the Defence of the Realm Act, 1842, or the Military Lands Act, 1892, or any Act amending the same, or either of them, or otherwise.
His Lordship (Warrington L.J.) observed:
But it is said that the right is confined to the doing of what is necessary for the conduct of actual military operations against an enemy on the soil of this country. I cannot think that this can be so. So to limit the prerogative would in these days be to render it practically useless for the purpose for which it is entrusted to the King. The circumstances under which the power may be exercised and the particular acts which may be done in the exercise thereof must of necessity vary with the times and the advance of military science and those circumstances and acts which are mentioned in the passage I have read from Coke's Reports must I think be taken as examples or illustrations of a much wider class of circumstances and acts. The only condition which it would appear must be fulfilled is that the act in question, having regard to existing circumstances, must be necessary for the public safety and the defence of the realm and on this matter the opinion of the competent authorities who alone have sufficient knowledge of the facts, provided they act reasonably and in good faith, should be accepted as conclusive.
In Sheffield Conservative and Unionist Club Ltd. v. Brighten 85 L.J.K.B.D. 1669, 1672. Avory J. referring to these observations said:
That passage has been relied on by both aides and it has been said on behalf of the Plaintiffs that the military authorities have not acted reasonably in selecting these premises. If I thought the Lord Justice intended to say that a court of law might come to the conclusion on the facts before them that the military authorities had acted unreasonably, I should feel bound to follow the dictum; but I am satisfied that the Lord Justice meant : "Provided the competent military authorities act reasonably and in good faith in such a way, that a court of law could not say that they were obviously not acting bona fide because they were acting so unreasonably that no honest man could say that they could possibly have so acted." That, I think, is a well-known proposition of law; if a man, did act so unreasonably, there would be ground for saying that he did not act bona fide. In the present case the only ground on which I am asked to say that the military authorities did not act reasonably is the suggestion that there are other premises which would have done equally well.
In this case, the Plaintiffs claimed on their writ (a) damages for the Defendant's trespass in wrongfully entering upon and taking possession of the Plaintiffs'' premises, (b) a declaration that the Defendant had no right to enter upon or take possession of the said premises, (c) a declaration that the order authorising the Defendant to enter and take possession was incompetent and ultra vires and (d) an injunction to restrain the Defendant from entering upon or taking or remaining in possession of the said premises. The order was made under the Defence of the Realm Regulations Consolidated (1916).
Regulation 1 provided that the ordinary avocations of life and the enjoyment of property would be interfered with as little as may be permitted by the exigencies of the measures required to be taken for securing the public safety and the defence of the Realm.
Regulation 2 was as follows:
It shall be lawful for the competent naval or military authority and any person duly authorised by him, where for the purpose of securing the public safety or the defence of the Realm it is necessary so to do--(a) to take possession of any land and to construct military works, including roads, thereon and to remove any trees, hedges and fences therefrom; (b) to take possession of any buildings or other property, including works for the supply of gas, electricity, or water and of any sources of water supply; (c) to take such steps as may be necessary for placing any buildings or structures in a state of defence; (d) to cause any buildings or structures to be destroyed, or any property to be moved from one place to another, or to be destroyed; (e) to take possession of any arms, ammunition, explosive substances, equipment, or warlike stores (including lines, cables and other apparatus intended to be laid or used for telegraphic or telephonic purposes); (f) to do any other act involving interference with private rights of property which is necessary for the purpose aforesaid.
It was held that the decision of the competent military authority, by whose order the premises were taken, as to such necessity, is conclusive provided he acted reasonably and in good faith.
I shall now consider the case of Wijeyesekera. v. Festing (1919) A.C. 646 which is very important for our present purpose. In that case, the Governor of Ceylon directed the Respondent, who was the Assistant Government Agent for the District of Kalutara, u/s 6 of the Acquisition of Land Ordinance (Ceylon), 1876, to take order for the acquisition under the provisions of the Ordinance, of part of the Appellants'' estate for a public purpose, namely, the making of a road. The Appellant, inter alia, alleged that the land was not required for any public purpose and that the direction of the Governor was invalid. The District Court rejected the plea. The Supreme Court affirmed the District Court in holding that the direction of the Governor was conclusive that the land was required for a public purpose.
The relevant sections of the Ordinance were as follows:
Section 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."
Section 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 the 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.
The procedure prescribed by the Ordinance was followed and the Order was made by the Governor, with the advice of the Executive Council, directing the Government Agent to take order for the acquisition of the land. Their Lordships remarked as follows (pp. 648-9):
The whole point in the case is whether the decision of the Governor in Council is conclusive on the point that the land is wanted for a public purpose. It is now contended that it is open to the person whose land is affected to challenge the decision of the Governor in Council upon this point, as embodied in the order directing the Government Agent to take order for the acquisition of the land.
* * * * * *
It appears to their Lordships that the decision of the Governor that the land is wanted for public purposes is final and was intended to be final and could not be questioned in any Court.
They go on:
Reference has been made to cases dealing with similar questions arising under statutory enactments in India. Their Lordships do not refer to those cases because the wording of the enactment is not the same and their discussion might, to some extent, complicate what appears to their Lordships to be a very simple issue. The whole case is decided, in the opinion of their Lordships, in the last three lines of Section 6 of the Ordinance : "And upon the 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 you have an enactment of that kind it shows that it was intended that the decision of the; Governor in Executive Council on the point should be binding.
In Hubli Electricity Company, Ltd. v. The Province of Bombay ILR (1949) Bom. 274 : L.R. 76 IndAp 57, a similar provision in the Electricity Act (1910) fell to be construed by their Lordships of the Judicial Committee. The provision was in these terms:
Section 4(1).--The Provincial Government may, if in its opinion the public interest so requires, revoke a licence in any of the following cases, namely:
(a) where the licence in the opinion of the Provincial Government makes wilful and unreasonably prolonged default in doing anything required of him by or under this Act;
Their Lordships said:
Their Lordships now turn to the question of construction of Section 4(1)(a). Their Lordships are unable to see that there is anything in the language of the sub-section or in the subject-matter to which it relates upon which to found the suggestion that the opinion of the Government is to be subject to objective tests. In terms the relevant matter is the opinion of the Government--not the grounds on which the opinion is based. The language leaves no room for the relevance of a judicial examination as to the sufficiency of the grounds on which the Government acted in forming an opinion.
Further, the question on which the opinion of the Government is relevant is not whether a default has been wilful and unreasonably prolonged but whether there has been a wilful and unreasonably prolonged default. Upon that point the opinion is the determining matter and--if it is not for good cause displaced as a relevant opinion--it is conclusive.
Now, contrast these Privy Council cases with another Privy Council case, Eshugbayi Eleko v. Government of Nigeria (Officer Administering) (1931) A.C. 662, 1670. In that case Lord Atkin delivering the opinion of the Board said:
Their Lordships are satisfied that the opinion which has prevailed that the courts cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under the Ordinance acts solely under executive powers and in no sense as a court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.
But the sections their Lordships construed in that case were in these words:
This Ordinance may be cited as the Deposed Chiefs Removal Ordinance.
(1) When a native chief or a native holding any office under a native administration or by virtue of any native law or custom has been deposed or removed from his office by or with the sanction of the Governor, whether such deposition or removal shall have been before or after the commencement of this Ordinance, the Governor may--
(a) if native law and custom shall require that such deposed chief or native shall leave the area over which he exercised jurisdiction or influence by virtue of his chieftaincy or office; or
(b) if the Governor shall be satisfied that it is necessary for the re-establishment or maintenance of peace, order and good government in such area that the deposed chief or native shall leave such area or any part of Nigeria adjacent thereto,
by an order under his hand direct that such chief or native shall, within such time as shall be specified in the order, leave the area over which he had exercised jurisdiction or influence and such other part of Nigeria adjacent thereto as may be specified in the order and that he shall not return to such area or part without the consent of the Governor.
The difference in the wording of the Ceylon Ordinance and the Ordinance in 1919 A.C., is too obvious to require any comment. The contrast has been clearly brought out in the, case of Balvant Ramchandra Natu v. The Secretary of State for India (1905) ILR 29 Bom. 480. That was a case in which the Bombay High Court had to construe Sections 3, 4 and 10 of the Indian Forest Act, VII of 1871. The land in question had admittedly been declared by the Government of Bombay a reserved forest, by a notification purporting to have been issued in exercise of powers conferred by the Indian Forest Act and the observations I am going to set out were made in connection with an issue raised in the suit, namely, whether the jurisdiction of the civil court was barred by reason of the provisions of the Indian Forest Act. Their Lordships observed at pp. 505-7:
With regard to the supposed analogy of cases under the Land Acquisition Act, we think it will suffice to point out first that the Land Acquisition Act is of an exceptional character. It aims at promoting important public interests; Salus popoli supreme lEx. And to interests of such paramount importance, private interests may justifiably be subordinated. And it has been recognised that in interpreting the intention of the Legislature in statutes of that character, construction necessary to effectuate that intention, must be given thereto. Secondly, the Land Acquisition Act takes away no right to recourse to the Courts, but while providing a special procedure for convenient and speedy determination as to the amount of compensation, allows an appeal to the High Court (Section 54). Thirdly, under the Land Acquisition Act the special procedure provided for the purpose of determining the right to compensation still leaves a right to sue for the amount of compensation awarded (Article 17, Limitation Act, 1887, Schedule 2) and does not provide for any final decision as to the person entitled thereto. But the most important distinction between the Land Acquisition Act and the Indian Forest Act lies in this : that whereas in the Land Acquisition Act the Legislature has expressly constituted the Local Government the sole arbiter as to what land shall be acquired for a public purpose, the Indian Forest Act gives the power to afforest subject to conditions as to the fulfilment of which the Local Government is given no express power to decide. This will be at once apparent on comparing Section 4 of the Land Acquisition Act with Section 3 of the Indian Forest Act. The former runs "whenever it appears to the Local Government that land in any locality is likely to be needed for any public purpose"; that is to say, it suffices for the exercise of the power that the Local Government is satisfied as to the existence of the condition precedent to the exercise of its powers. But Section 3 of the Indian Forest Act does not make the exercise of the power conferred dependent on the opinion or decision of the Local Government but upon a question of fact. It runs : "the Local Government may constitute any forest land or waste land which is the property of Government, etc." If the land actually fulfils that condition Government can exercise the power, not otherwise. The test is, not what appears to the Local Government, but what is the actual fact. And as the enabling section gives the Local Government no power to decide that fact it can only be decided by recourse to the courts which have authority finally to decide on questions of law and fact wherever their jurisdiction is not expressly barred by the Legislature.
In construing the section of an Act or an Ordinance of the type under consideration, it is necessary to bear in mind the observations of Lord Greene in Ayr Collieries Ltd. v. Lloyd George (supra) as to the form of language in which the Act or Ordinance has been expressed.
I shall now consider the case on which the Petitioner's counsel relied--Rao v. Advani (supra). In that case, the Bombay Provincial Government requisitioned a flat in a house called "Paradise" at Warden Road, Bombay, u/s 3 of the Bombay Land Requisitioning Ordinance V of 1947 which had come into force on December 4, 1947. Section 3 of the Ordinance runs as follows:
Section 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 religions worship...shall be requisitioned under this section.
Like our Act the Bombay Ordinance gives to the Provincial Government power to obtain information relating to the land it seeks to requisition.
The order requisitioning the land was issued by the Governor and signed by P.V. Rao as Secretary to that Government, Health and Local Government Department. The person aggrieved filed the petition in the High Court of Bombay praying for a writ of certiorari to bring up the records of the case to the High Court for the purpose of being quashed, for a writ of prohibition prohibiting the Respondent from enforcing the order of requisition. There was also a prayer u/s 45 of the Specific Belief Act. A rule nisi was granted and notices of the petition and the rule were under the terms of an order made by the learned Judge who granted the rule given to the Dominion of India. The petition had been filed in the first instance against P.V. Rao alone. But it was subsequently amended by adding as parties the Province of Bombay and G.D. Vartak, a Minister of the Government of Bombay, formerly in charge of Health and Local Government Department. The application came up for hearing before Bhagwati J. His Lordship granted a writ of certiorari against all the Respondents. On appeal, the order was set aside against the Respondents, save and except Respondent Rao. But, a certiorari was granted. Chagla C.J. who was one of the members of the Appellate Court took the view that the order in question was a judicial or quasi-judicial order and he observed at p. 387:
...I would like to state what in my opinion is the true definition of a judicial or quasi-judicial act as a result of a review of the authorities that were cited at the Bar. In the first place, a duty must be cast by the Legislature upon the person or persons who is empowered to act to determine or decide some fact or facts. There must also be some lis or dispute resulting from there being two sides to the question he has to decide. There must be a proposal and an opposition. It must be necessary that he should have to weigh the pros and cons before he can come to a conclusion. He would also have to consider facts and circumstances bearing upon the subject. In other words, the duty cast must not only be to determine and decide a question but there must also be a duty, to determine or decide that fact judicially.
Before I deal with the question of lis, I would like to quote an observation of Atkin L.J. made in Rex v. Electricity Commissioners (1924) 1 K.B. 171, 204 to point out the distinction between a writ of certiorari and a writ of prohibition which is not infrequently misunderstood:
The question now arises whether the persons interested are entitled to the remedy which they now claim in order to put a stop to the unauthorised proceedings of the Commissioners. The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Court. Both writs are of great antiquity, forming part of the process by which the King's Courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction certiorari requires the record or the order of the court to be sent up to the King's Bench Division, to have its legality inquired into, and if necessary, to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.
As to lis : In Errington v. Minister of Health (1935) 1 K.B. 249 which was a decision on the Housing Act, 1930, a question arose as to the position of the Minister of Health in confirming an order establishing a clearance area under the Housing Act of 1930. The Act by Section 1(1) gave the local authority power to declare an unhealthy area to be a clearance area, but the order is not binding upon any one until it had been confirmed by the Minister of Health. Before the local authority can make an order under the Act, it has to be satisfied on four topics. The first one is a pure question of fact, whether the dwelling houses in the area are by reason of disrepair or sanitary defects unfit for human habitation, or are by reason of other circumstances mentioned in the section dangerous or injurious to the health of the inhabitants of the area. The second thing is, that the most satisfactory method of dealing with the conditions in the area is the demolition of all the buildings in the area and there the usual alternative is that of re-conditioning the houses in the area. The third qualification is that suitable accommodation is available for the persons displaced by the clearance and the fourth is, that the resources of the authority are sufficient for the purpose of carrying the resolution into effect.
The first schedule provides that a clearance order shall be in the prescribed form and published in the manner indicated in the schedule. Clauses 3 and 4 of the schedule are as follows:
Clause 3.--So soon as may be after the required notices have been given the local authority shall submit order to the Minister for confirmation.
Clause 4.--If no objection is duly made by any of the persons upon whom notices are required to be served, or if all objections so made are withdrawn, the Minister may, if he thinks fit, confirm the order with or without modification; but in any other case he shall, before confirming the order, cause a public local inquiry to be held and shall consider any objection not withdrawn and the report of the person who held the inquiry and may then confirm the order, either with or without modification:
Provided that the order as confirmed by the Minister shall not apply to any building to which the order would not have applied if it had been confirmed without modification.
Under this Act, what is the position of the Minister? Maugham L.J. says (pp. 270-1) this:
The main question of law is as to the position which the Minister occupies when under para. 4 of the First Schedule, he causes a public local inquiry to be held and proceeds to consider any objection made to the clearance order and either to confirm the order with or without modification, or to reject it. Are his acts in that respect merely acts of administration in reference to which the only remedy of the subject, if his powers are improperly exercised, is an application to Parliament, or is he exercising a quasi-judicial function, a function I may observe of a somewhat vague character? As I do not like using words the meaning of which I do not know, I will say at once that I use the phrase "quasi-judicial" in the sense in which it has been used in some of the decisions and in particular having regard to the qualification upon its meaning which I think is to be found in the decision of the House of Lords in Board of Education v. Rice (1911) A.C. 179. The Minister is not, in my opinion, in the position of a judge and he has not to hold a judicial proceeding. What he has to do is to ascertain the law, so far as the law is material and the facts; and in my view, he is in the same position as the Board of Education was in the case of Board of Education v. Rice (supra). Lord Loreburn L.C. (at page 182) remarks as follows and I may say that his statement has constantly been approved by other judges : "I need not add that in doing either"--that is in ascertaining the law and ascertaining the facts--"they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But, I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view". I repeat that is the sense in which I use the phrase "quasi-judicial". I may add that in the Arlidge case that statement was in effect approved by various lords.
In determining whether the position of the Minister is that which I have described as being quasi-judicial, I think it is necessary to appreciate that under a clearance area scheme to which objections are made by the owners of the property in the area, there is a true contest as between the owners of the property and the local authority in other words, there are two sides as between whom the Minister has to come to a determination after consideration.
This case was followed in Frost v. Minister of Health (1935) 1 K.B. 286, in which Section 1 and Schedule 1 of the Housing Act were considered. Swift J. made the following observations:
I am, however, bound by the decision in Errington v. Minister of Health and I adopt for the purpose of my judgment the following words of Grear L.J. : "In so far as the Minister deals with the matter of a confirm*ion of a closing order in the absence of objection by the owners, it is clear to me and I think to my brethren, that he would be acting in a ministerial or administrative capacity and would be entitled to make such inquiries as he thinks necessary to enable him to make up his mind whether it was in the public interest that the Order should be made. But the position, in my judgment, is different where objections are taken by those interested in the properties which will be affected by the order if confirmed and carried out. It seems to me that in deciding whether a closing order be made in spite of the objections which have been raised by the owners, it seems to me reasonable that the Minister should be regarded as exercising quasi-judicial functions." I accept that. From the moment an objection is made the Minister is exercising quasi-judicial functions, but it seems to me to be clearly recognised by the Court of Appeal that up to the time of objection being made the Minister acts in an administrative and not a judicial, capacity.
Errington's case (supra) was cited with approval in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (1937) 3 All E.R. 324. One of the members of the Board was Lord Maugham, who as Lord Justice, was a member of the Court of Appeal which decided Errington's case.
In re Brighton (Everton Place Area) Housing Order, 1937, E. Robins and Son, Ltd.'s application (1938) 4 All E.R. 446 which affirmed the decision of Du Parcq J. (1938) 2 All E.R. 146, Errington's case was referred to with approval. This case considered the Housing Act of 1936. The Applicants were the owners of a site which admittedly could properly be declared to be a clearance area. They had for some time been in communication with the local authority upon the question of the demolition of the property and the redevelopment of the site. The local authority without further notice to the Applicants declared the area to be a clearance area and on the same day made a compulsory order in respect of the property, which order was confirmed by the Minister after an enquiry had been held.
Held, (i) Any injury to the Applicants was caused solely by the act of compulsory purchase and this was an act which the local authority were specifically authorised by the statute to perform, (ii) When the Minister confirmed the order, there were no objections before him which would properly have been taken under the statute. There was, therefore, no lis between the parties and the Minister acted and was entitled to act, ministerially and not quasi-judicially. (iii) It is a matter for the discretion of a local authority whether they choose to proceed by means of a clearance order or by means of a demolition order.
The contention in that case was that there was an exercise of judicial authority and not of ministerial authority and that, therefore, any discretion exercised either by the local authority or by the Minister had to be exercised upon judicial principles. The section that was construed is as follows:
Section 25(3).--So soon as may be after a local authority have declared any area to be a clearance area, they shall, in accordance with the appropriate provisions hereafter in this Act contained, proceed to secure the clearance of the area in one or other of the following ways, or partly in one of those ways and partly in the other of them, that is to say, (a) by ordering the demolition of the buildings in the area; or (6) by purchasing the land comprised in the area and themselves undertaking, or otherwise securing, the demolition of the buildings thereon.
Mackinnon L.J. said at p. 455:
Is there anything within our powers under this Act, however, which enables us to quash the order of the Minister confirming the order for compulsory purchase on the ground that the proper order to be made was a demolition order, and therefore, the purchase order was wrongly made? I think that there is not.
Errington's case has been followed in subsequent cases in England.
To illustrate the point I am endeavouring to bring out, I take two other decisions of the English Courts. In Robinson v. Minister of Town and Country. Planning (1947) 1 All E.R. 851, a question arose as to the nature of the duty put on the Minister by Section 1(1) of the Town and Country Planning Act, 1944. The provision most immediately relevant to the controversy is contained in that section and is as follows:
Section 1(1).--Where the Minister of Town and Country Planning (in this Act referred to as "the Minister") is satisfied that it is requisite, for the purpose of dealing satisfactorily with extensive war damage in the area of a local planning authority, that a part or parts of their area, consisting of land shown to his satisfaction to have sustained war damage or of such land together with other land contiguous or adjacent thereto, should be laid out afresh and redeveloped as a whole, an order declaring all or any of the land in such a part of their area to be land subject to compulsory purchase for dealing with, war damage may be made by the Minister if an application in that behalf is made to him by the authority before the expiration of five years from such date as the Minister may by order appoint as being the date when the making of such applications has become practicable. A part of the area of a local planning authority as to which the Minister is satisfied as aforesaid is in this Act referred to as an "area of extensive war damage."
The trial Judge Henn Collins J. confirming his own decision in Phoenix Assurance Company, Ltd. v. Minister of Town and Country Planning (1947) 1 All E.R. 454 held that the Minister before making an order under the section must be satisfied on reasonable grounds that such an order was requisite for the purposes to which the section referred, the matter not being so peculiarly within the administrative capacity of the Minister that the making of the order was purely a matter for his discretion so that a court of law could not enquire into the grounds on which he satisfied himself or call his jurisdiction into question. Before the learned Judge, a distinction was sought to be made between such cases as Liversidge v. Anderson (1941) 3 All E.R. 338, where the interpretation of the Defence Regulations was in question and cases under the Housing Act, the Town and Country Planning Act, 1944. The distinction was based on the fact that the Defence Regulation, 1913, was a temporary measure designed to meet a national emergency, while the Housing Acts and those of 1944 and 1946 were part of the ordinary statute law and also on the inclusion in those statutes of provisions relating to the holding of public enquiry and the consideration of objections by the Minister.
From the order made by Henn Collins J. the Minister appealed. The Court of Appeal (Lord Greene, M.R. Somervell and Wrottesley L.JJ.) held that an order made under this section is made by the Minister as an executive authority and he is at liberty to base his opinion on whatever he thinks fit, whether obtained in the ordinary course of his executive functions or derived from what is brought out at a public inquiry, if there is one and the Minister cannot be compelled to disclose the source of his information. The making of the order is not a judicial or quasi-judicial decision and cannot be controlled by the courts by reference to the evidence or lack of evidence at the enquiry, if one is held. The words "requisite" and "satisfactorily" in the sub-section clearly indicate that it is for the Minister himself to be satisfied on the point and to decide and as to which, assuming always, that he acts bona fide, he is the sole judge. No objective test is possible.
Lord Greene M.R. at p. 859 observed:
A number of authorities were referred to in which the powers and duties of Ministers under statutes dealing in different languages with different classes of subject-matter were discussed and observations were made as to their powers and duties when acting in a quasi-judicial capacity. I am basing this judgment on the particular provisions of this statute in their application to this particular subject-matter and I do. not find anything in the decisions cited which either assists or impedes me to such an extent as to make it necessary for me to examine them. As an example of the difference to be found in the subject-matter dealt with in different statutes, I may point out that this case is different from a case where a Minister is given the duty of hearing an appeal from order such as a closing order made by a local authority. This is not the case of an appeal. It is the case of an original order to be made by the Minister as an executive authority who is at liberty to base his opinion on whatever material he thinks fit, whether obtained in the ordinary course of his executive functions or derived from what is brought out at a public enquiry if there is one. To say that, in coming to his decision, he is in any sense acting in a quasi-judicial capacity is to misunderstand the nature of the process altogether. I am not concerned to dispute that the inquiry itself must be conducted on what may be described as quasi-judicial principles, but this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself, i.e., the making of the order. The inquiry is only a step in the process which leads to that result and there is, in my opinion, no justification for saying that the executive decision to make the order can be controlled by the courts by reference to the evidence or lack of evidence at the enquiry which is here relied on. Such a theory treats the executive act as though it were a judicial-decision (or, if the phrase is preferred, a quasi-judicial decision) which it most emphatically is not.
Franklin v. Minister of Town and Country Planning (1947) 2 All E.R. 289 was a decision on the construction of Section 1(1) of the New Towns Act, 1946, which is as follows:
(1) If the Minister is satisfied, after consultation 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. (2) The provisions of Schedule I to this Act shall have effect with respect to the procedure to; be followed in connection with the making of orders under this section and Section 16 and 17 of the Town and Country Planning Act, 1944 (which relate respectively to the validity and date of operation of orders u/s 1 of that Act and to the registration of such orders in the register of local land charges), shall apply to an order made under this section as they apply to an order made u/s 1 of that Act.
There is a schedule, the relevant provisions of which are set out in the speech of Lord Thankerton:
Where the Minister proposes to make an order u/s 1 of this Act, he shall prepare a draft of the order, describing the area to be designated as the site of the proposed new town by reference to a map, either with or without descriptive matter (which, in the case of any discrepancy with the map, shall prevail except in so far as may be otherwise provided by the draft order) together with such statement as the Minister considers necessary for indicating the size and general character of the proposed new town.
Before making the order the Minister shall publish in the London Gazette in one or more newspapers circulating in the locality in which the proposed new town will be situated and in such other newspapers, if any, as he considers appropriate in the circumstances, a notice--(a) describing the area to be designated as the site of the proposed new town; (b) stating that the draft of an order u/s 1, of this Act has been prepared by the Minister in relation thereto and is about to be considered by him; (c) naming a place within the said area where a copy of the draft order (including any map or descriptive matter annexed there to) and of the statement required by the foregoing paragraph, may be seen at all reasonable hours; and (d) specifying the time (not being less than twenty-eight days from the publication of the notice in the Gazette) within which and the manner in which, Objections to the proposed order may be made and shall, not later than the date on which the notice is published in the Gazette, serve a like notice on the council of the country and of the country district in which the land, or any part of the land, to which the order relates is situated and on any other local authority who appear to him to be concerned with the order.
If any objection is duly made to the proposed order and is not withdrawn, the Minister shall, before making the order, cause a public local inquiry to be held with respect thereto and shall consider the report of the person by whom the inquiry was held.
Subject to the provisions of the last foregoing paragraph the Minister may make the order in terms of the draft or subject to such modifications as he thinks fit : provided that, except with the consent of all persons interested, the Minister shall not make the order subject to a modification including in the area designated as the site of the proposed new town any land not so designated in the draft order.
The case was first tried by Henn-Collins J. who took the view that under the statute the Minister acted in a quasi-judicial and not purely in an administrative capacity. There was an appeal from this order. From the decision of the Court of Appeal, there was an appeal to the House of Lords. Their Lordships made it clear that the Act imposed no judicial or quasi-judicial duty on the Minister. His duties were purely administrative. I set out below the following passage from the speech of Lord Thankerton (pp. 296-6):
The Respondent's duties u/s 1 of the Act and Schedule I thereto are, in my opinion, purely administrative, but the Act prescribes certain methods of, or steps in, the discharge of that duty. It is obvious that, before making the draft order, which must contain a definite proposal to designate the area concerned as the site of a new town, the Respondent must have made elaborate inquiry into the matter and have consulted any local authorities who appear to him to be concerned, and obviously, other departments of the Government, such as the Ministry of Health, would naturally require to be consulted. It would seem, accordingly, that the Respondent was required to satisfy himself that it was a sound scheme before he took the serious step of issuing a draft order. It seems clear, also, that the purpose of inviting objections, and where they are 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, in order to the final consideration of the soundness of the scheme of the designation and it is important to note that the development of the site, after the order is made, is primarily the duty of the development corporation established u/s 2 of the Act. I am of opinion that no judicial duty is laid on the Respondent in discharge of these statutory duties and 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.
From the decisions I have set out above, I think I have made it clear when there is lis and when there is no lis, which determines the character of the proceeding, viz., whether it is judicial or executive? In my judgment, when there is a controversy between two persons raised on arguable objections under the statute which is to be determined by a third party, there is lis and the proceeding before him is a judicial or a quasi-judicial proceeding.
In the case before us there is no lis. There cannot be any lis. The Provincial Government or for the matter of that the officer who has the delegated authority has got to make up its or his mind as to the necessity or expediency of requisitioning the property. There is no third party which decides any question between the Government and the person whose premises are requisitioned.
If in the opinion of the Provincial Government it is necessary or expedient so to do...it may by order in writing requisition any property. It is the opinion of the Government that matters. Nobody else under the statute is to form the opinion. It is the Government that has been selected by Legislature to come to a decision. The court cannot investigate the adequacy of its reasons. We cannot investigate the rapidity or the lack of investigation, if it existed, with which it acted. We cannot investigate any of those things because legislature in its wisdom has withdrawn those matters from the courts and has entrusted them to the Provincial Government concerned. If the Government has acted in good faith it is not our concern to ascertain what facts there may have been which actuated the Government in what it did. The court has no power at all to inquire into the reasonableness, the policy, the sense or any other aspect of the matter. There is no objective test. The only thing that the court can enquire is whether the Government has acted honestly. If it has acted honestly the court cannot interfere with the order. The Act does not provide that the court should sit on appeal from any decision made by the Government or any other competent authority. The Government or the competent authority is to act on such information, as it may require, to come to a decision, the only safeguard being that the Government has to pay compensation as provided in the Act.
On these considerations, I am unable to agree with the opinion expressed by the learned Judges of the Bombay High Court that there is lis or there is judicial or quasi-judicial proceeding before the authority. There is no question in such a case of the court interfering by a writ of certiorari or prohibition, the nature of which I have already explained in an earlier part of this judgment.
The only question before the court when the matter is brought before it, is to Bee whether (1) the order has been made by a competent authority; (2) whether that authority has acted within the four corners of the powers committed to it; (3) whether it has acted honestly. If the court answers these questions in the affirmative, the court has no jurisdiction to interfere with any order made by such authority. The court has nothing to do with the Tightness or the wrongness of the order.
I have examined in detail the authorities and set out the observations of the great law Lords in England, as I am differing from a judgment of the High Court at Bombay. Otherwise, I would not have given my reasons in such detail. The matter to me was plain and simple enough on the meaning of the particular words of the section.
In the case before us it has not been proved that the competent authority acted in bad faith. It has not been proved that the Respondent made the order fraudulently. Fraud must be alleged and proved strictly. Vague suggestion of fraud or dishonesty is of no avail. Indeed counsel for the Applicant assured us that he did not charge the Respondent with any fraud or dishonesty. All that he said was that the Respondent did not make proper enquiry and had no sufficient materials before him to arrive at the conclusion he reached, grounds on which, as I have explained, the court cannot interfere with the order requisitioning the property.
The application, therefore, must fail. It is dismissed with costs.
Interim injunction, if any, is discharged.
Harries, C.J.
I agree.