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Judgment
Sujoy Paul, J—Heard.
This petition is directed against the order dated 21.7.2015 whereby the respondent No. 3 has rejected the stay application of the petitioner by holding that the same is not maintainable.
The petitioner filed an appeal along with stay application against the order dated 18.5.2015 passed by District Level Fees Regulating Committee. The appeal of the petitioner is still pending. In the order dated 18.5.2015 certain coercive measures were directed to be taken, therefore, petitioner filed the stay application. The learned Commissioner opined that as per the scheme of Government Circular dated 30.4.2015, the stay application cannot be entertained.
Shri Vivek Jain, by placing reliance on The State of Maharashtra and Others Vs. Saeed Sohail Sheikh etc. etc., AIR 2013 SC 168 : (2013) CriLJ 214 : (2013) 1 RCR(Criminal) 200 : (2012) 10 SCALE 660 , submits that the dividing line between quasi judicial and administrative order is almost obliterated. The said Committee was required to deal with the rival contentions of the parties and judicially decide the relevant questions. Hence, this activity is almost quasi judicial in nature. The adjudication in appeal on the said order of Committee is also almost quasi judicial, hence, the power of stay must be treated as inherent with the appellate authority. Reliance is placed on 1969 SC 430 (Income Tax Officer, Cannanore Vs. M.K. Mohammad Kunhi).
Prayer is opposed by Shri Bansal. He submits that the impugned orders are not quasi judicial orders. In the circular of School Education Department, the power to grant interim relief has not been granted to the appellate authority.
I have heard the learned counsel for the parties with their consent.
The question regarding difference in quasi judicial and administrative/ministerial action came for consideration before Supreme Court on various occasions. In The State of Maharashtra and Others Vs. Saeed Sohail Sheikh etc. etc., AIR 2013 SC 168 : (2013) CriLJ 214 : (2013) 1 RCR(Criminal) 200 : (2012) 10 SCALE 660 , the Apex Court opined as under:-
"In Province of Bombay Vs. Kusaldas S. Advani and Others, AIR 1950 SC 222 : (1950) 1 SCR 621 this Court had an occasion to examine the difference between a quasi-judicial order and an administrative or ministerial order. Chief Justice Kania, in his opinion, quoted with approval an old Irish case on the issue in the following passage:
".........the point for determination is whether the order in question is a quasi-judicial order or an administrative or ministerial order. In Regina (John M'' Evoy) v. Dublin Corporation [1978] 2 L.R. Irish 371, 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 and adjudicate upon the validity of acts judicial. In this connection, the term ''judicial'' does not necessarily mean 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 seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others." This definition was approved by Lord Atkinson in From e United Breweries Co. v. Bath Justices [1926] A.C. 586, 602, as the best definition of a judicial act as distinguished from an administrative act."
"In Province of Bombay Vs. Kusaldas S. Advani and Others, AIR 1950 SC 222 : (1950) 1 SCR 621 , the Court was examining whether the act in question was a ministerial/administrative act or a judicial/quasi-judicial one in the context of whether a writ of certiorari could be issued against an order under Section 3 of the Bombay Land Requisition Ordinance, 1947. The Court cited with approval the observation of L.J. Atkin in The King v. The Electricity Commissioner [1924] 1 K.B. 171 that laid down the following test:
"Whenever anybody 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."
The Court quoted with approval the decision in The King v. London County Council [1931] 2 K.B. 215 according to which a rule of certiorari may issue; wherever a body of persons
(1) having legal authority
(2) to determine questions affecting rights of subjects
(3) having the duty to act judicially
(4) act in excess of their legal authority-a writ of certiorari may issue.
Justice Fazl Ali, in his concurring opinion in Khushaldas'' case(supra) made the following observations as regards judicial and quasi-judicial orders:
"16. Without going into the numerous cases cited before us, it may be safely laid down that an order will be a judicial or quasi- judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorised to act as if he was a court or a judge. To act as a Court or a judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of enquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of the controversy before any decision affecting the rights of one or more parties is arrived at. The procedure to be followed may not be as elaborate as in a court of law and it may be very summary, but it must contain the essential elements of judicial procedure as indicated by me.
xxx xxx xxx
xxx xxx xxx.
The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference and the real test is: Is there any duty to decide judicially?"
The detailed concurrent opinion of Justice Das, in the same case, also agreed with the above test for determining whether a particular act is a judicial or an administrative one. Das J., observed:
"The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L.J.''s definition, namely the duty to act judicially."
In State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, AIR 1967 SC 1269 : (1967) 15 FLR 209 : (1967) 2 LLJ 266 : (1967) 2 SCR 625 Justice Shah, speaking for the Court observed that the duty to act judicially arose from the very nature of the function intended to be performed. It need not be shown to be superadded. The Court held:
"If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power."
"In A.K. Kraipak and Others Vs. Union of India (UOI) and Others, AIR 1970 SC 150 : (1969) 2 SCC 262 : (1970) 1 SCR 457 , Hegde, J., as His Lordship then was, recognised that the dividing line between an administrative power and a quasi-judicial power was fast vanishing. What was important, declared the Court, was the duty to act judicially which implies nothing but a duty to act justly and fairly and not arbitrarily or capriciously. The Court observed:
"13. The dividing line between an administrative power and a quasi- judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi- judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power."
In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, AIR 1978 SC 851 : (1978) 1 SCC 405 : (1978) 2 SCR 272 , the Apex Court held as under:-
"48. Once we understand the soul of the rule as fair play in action - and it is so - we must hold that it extends to both the fields. After all, administrative power in a democratic set- up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one''s bonnet. Its essence is good conscience in a given situation: nothing more - but nothing less. The "exceptions" to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alter am partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation."
In Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Another, AIR 2003 SC 1917 : (2003) 2 JT 320 : (2003) 2 SCALE 518 : (2003) 4 SCC 257 : (2003) 2 SCR 473 : (2003) AIRSCW 1399 : (2003) 2 Supreme 335 , the Apex Court opined as under:-
"14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization. "The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges." (See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p. 13.) P. Ramanatha Aiyar''s Law Lexicon defines judicial function as the doing of something in the nature of or in the course of an action in court. (p. 1015) The distinction between "judicial" and "ministerial acts" is: If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting magisterially. (pp. 1013-14).Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may construe the law and apply it to a particular state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. (Law Lexicon, ibid., p. 1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty."
All these judgments were considered by the Apex Court in Saeed Sohil etc. etc. (supra). The Apex Court opined as under:-
"Applying the above principles to the case at hand and keeping in view the fact that any order that the Court may make on a request for transfer of a prisoner is bound to affect him prejudicially, we cannot but hold that it is obligatory for the Court to apply its mind fairly and objectively to the circumstances in which the transfer is being prayed for and take a considered view having regard to the objections which the prisoner may have to offer. There is in that process of determination and decision- making an implicit duty to act fairly, objectively or in other words to act judicially. It follows that any order of transfer passed in any such proceedings can be nothing but a judicial order or at least a quasi-judicial one."
In the opinion of this Court, if the circular dated 30.4.2015 is minutely examined, it is clear that it gives power to the Committee which is more than administrative power. It may not be exactly judicial power. It may be between administrative and judicial power. Clause 8 of circular dated 30.4.2015 gives power of deciding appeal to the said committee. Clause 9 is enabling provision for preferring appeal.
In view of aforesaid judgments, it is clear that the dividing line between administrative and quasi judicial orders is fast vanishing. This Court is basically concerned with the duty of respondents to act judicially. It is the duty to act justly and fairly and not arbitrarily or capriciously. Thus, I find force in the argument of Shri Vivek Jain that the said dividing line is being gradually obliterated. Resultantly, the appellate authority is vested with the power to adjudicate on the validity of order of the Committee.
In Income Tax Officer, Cannanore Vs. M.K. Mohammad Kunhi (supra), the Apex Court opined that the Income Tax Appellate Tribunal is not a Court to exercise judicial powers. Hence, the power to prevent injustice is impliedly available to the Tribunal. Thus, it can stay the proceedings which may result in causing mischief to the other side. In the present case, whether or not circular dated 30.4.2015 gives power of stay, fact remains that Commissioner was given appellate power of adjudication against the order of the Committee. During such adjudication, the appellate authority cannot be treated as powerless in relation to grant of interim reliefs. In fit cases, the said appellate authority can issue interim orders. This power, in my view, is inherent with the appellate authority.
In this view of the matter, the order dated 21.7.2015 is set aside. The matter is remanded back to respondent No. 3 to decide the stay application in accordance with law. The petitioner shall appear along with copy of this order before respondent No. 3 on 6th August, 2015. The Commissioner shall rehear the parties and decide the stay application afresh. Till decision on said stay application is taken, status-quo which is prevailing today, shall be maintained by the parties.
With the aforesaid, petition is disposed of without expressing any view on the merits of the case.