Appeal against appointment of a Government servant as Executive Officer of the Dhamtari Municipal Committee under s. 53A of the C.P. and Berar Municipalities Act, 1922. Majority held the action was administrative, not quasi-judicial; appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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1440 STJPREME COUB.T RE;PORTS • • [1959]
business by :Messrs. Army a,.11d '.Ila vy St-0e:o still remains Ghaio unfilled. The applications of the appellants and other /!fall 6- So11s applicants were for a grant of L-2 license for 1954/ v. 1955. That year has gone ptist and accordingly in the 1'he Sltde of changed eircumstances wo direct. the Chief Commis- Delhi ~ Others sioner o fill ap the vacancy ctrnsed by the closure of the business by ?.fossrs. Army and Xavy Stores by D,.sC.j. inviting applications from intending licensees including the appellitnts and Messrs. Gainda Mall Hem ltaj and granting the oame to the most suitable party .• We, therefore, accept this appP1l, reverse the order of the High Court and issue a mandamus to the effect aforesaid and also direct the respondents Xos. l to 4 lo pay the appellant.s' costs of this appeal and of the proceed. ings int.he High Court out of which this appeal ha arisen. Messrs. Gainda '.\Iall Hem Raj arc to hear their own costs throughout.
Appeal allowed .
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SHRI RADESH1A'.ll 'KHARE & ANOTHER••
Seplembt:r 30.
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THE STATE OF !llADHYA PHADESH & OTHEHS
• (S. H. DAS c. J., BHAGWATI, s. K. DAS, ,J. L. KAPUR and 81.'BBA RAo ,JJ.)
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Municipality -- Appoi11tmmt of Excwtivc OJJiccr •by State Go·,:crnmcnt--lf an adtninistrafi;,·c act-C. J>. and Berar i'funicipali- ties Act, 1922 (Act I I of 1922). ss. 53A and 57. , • The n1ain point for cltci:;ion in this appeal by the lttunicipal Comn1ittcc of Dhamtari and its Prcsi<lcnt \·as, \·hcther in appointing an Executive Officer in exercise of its po,,·ers under s. 53A of the C. P. and Bei;ar }!unicipalities Ac$, 1922, the State Go'crn• 1nr.nt acted iii a judicial capacity or in an administrave one . Complai.tng been made against the appellants, the a<ldi• tiona~ ollcctor \Vas directed to hold an enquiry and on his •r~pOrt the State Go,·crnn1i;nt, by a notilicatiou un<lcr that** secti~n. apppin(cd all' Executive Officer of the Municipal Com- **mittee for !8 Tnonth;> ,,·ith specified po\l,·crs and duJies. The ·~ppellants were gi'en notice of the said enqlliry, filed objections
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and the Presiq,ent was pe•sonally present on some occasions during the enquiry. The notific"ation charged the appellants with incompetency as well as abnse of power. Against that Shri Radeshyam notification the appellants moved tne High Court under Art. 226 Khare & Another of the Constitution for a writ of certiorari quashing the same, v. but their application was rejected by the Judge sitting singly. The State of An appeal under the Letters Patent against his deci'j,iOn was Madhya Pradesh summarily dismissed. It was contended before this Court on & Others behalf of the appellants that, (1) although the notification purported to be one under s. 53A of the Act, it was in effect and • reality one under s. 57 of the Act, that (2) it was, therefore, incumbent on the Government under s. 57(5) of the Act to afford the appellants an opportunity to furnish explanation and that (3) even if the notification was one under s. 53A of the Act, the Government was bound by the rules of natural justice to give the appellants an opportunity to defend themselves.
• Radeshyam & Another v.
Held (per curiam), that ss. 53A and 57 of the C. P. and llerar Municipalities Act, 1922, differed materially in their scope and effect, but it was not obligatory under either of them for the Government to take any action at all. Although a finding of incompetency of the Municipal Committee was a condition precedent to action under both the sections, the Government was free to choose its remedy as the occasion demanded and it could .not be conteri<ied that because a notification made under s. 53A • of the Act, along with a finding of incompetency, contained some instances of abuse of power"as well, it must be held to have been made u01der s. 57 of the Act.
• • Nor could the vesting of power in the Executive Officer by <t:he notification, however substantial in character, be said, in effect and reality, to amount to a dissolution of the Municipal Committee under s. 57 of the Act.
Per Das C.J. and Kapur ].-The real test whether the State Government functioned in a quasi-judicial capacity or in an administrative capacity in exercising its powers under s. ·53A of the Act was whether the statute required it to act judicially either ex!'ressly or by implication. The Act contained no express ' provision to that effect, nor could the determination of the fact of.incompetency as a condition precedept to any action under that sction, by itself, carry such an implication. In making the notification under s. 53A of the Act, therefore, the Govern- ment functioned in an administrative capacity and not in a quasi-judicial one. Even so, by the enquiry held, the State Government afforded th appellants ampl<i opportunity to defend !hemselves and there could hardly be any ground for complaint.
Province of Bombay v. Kusaldas S. Advani, [1950] S.C.R. 621, Rex v. Electricity Commissioners, [L924] l K.B. 171, Rex v. London County Council, [1913] 2 K. B. 215, R. v. begislaMve,Commiltee of he Church•Assembly, (1928) l K.B. 4rr and .Nakkudct Ali's Case, 1951) A.C. 66, referred to. • •
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1442 SUPREME CORT RPORTE, • [1959]
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1958 !'er Bhagwati ].-Since the enuiry hcld0 in this case fully • satisfied the requirements of natural justice, it \!as unnecessary Shri Radrshyan1 to determine for the purpose of this case \·hcther the State /(luue & A11other Government in acting undc·r s. 53A of the Act di<l so in a v. quasi.judicial capacity or in an adrninistrati'e one. Th• State of ]'er_ S. K. Das J.-lf the question was one of compliance _Madhya Prade>h with th• rules of natural justice, the enquiry held in the pfcscnt & OthtrJ case coulcl hardly be said to have compliccl "·ith such rules'; but , since the State Government in acting under s. 53A of the Act harl only to consider policy and expediency and did at no stage ha'c anv form of lis before it, its action thereunder \·as purJcy Ov( an adn1inistrativc charactr not atnenable to a \Vrit Of certiorari. R. v. Manchester Legal Aid Commillee, (1952) 2 Q. B. 413, applied.
!'er Suhha lfao J.-On a proper appreciation of the criteria laid down bv s. 53A of the Act itself, there could be no doubt that it imposed a duty on the Stak Government to act judicially in ascertaining the fact of the incornpctcncy of the i\lunicipal Committee to perfor1n its duties. It is clear that the clctcrrnination of such a jurisdictional fact could not have been left to the subjective satisfaction of the (;oyernmcnt but \·as intended to be arri'etl at objectively and, therefore, it \·as ;ncumbent up-• on the Government to give a reasonable opportunity to the • appellants to explain the charge levelled against them. Such enquiry as was held in the instant case could hardly t~ke the place of reasonable opportunit)•to he given by the Governm'tn1 for the proposed action under s. 53A of the Act. •
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Rc.t v. The Electricity Commissionas. (1924) 1 K. B. 171, l'roi·ince of /30111ha)· v. Kusaldas S. Adi1111i. [1950] S.C.K 621 and R. v. Manchester Legal Aid Committee, (1952) 2 Q.B. 413, referred to . •
CIVIL APPELLATE JURISIJICTIO:<r: Civil Appert! No. 301 of 1958. •
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Appeal by ~peciaJ lca,·e from the judgment a1,1d order clat.ed February 21, 1958, oft.he i\ladhya Prlldesh High Court: at ,Jalmlpur in Letters Patent Appeal Xo. 22 of 1958, against the order dated February 20, 1958, of the said High Court in :Ilise. Petilion ~o. 266 of 1957. . • • •
• M. K. Narnbiyar, S. N. Andley, J. B. Dwiachanji and Rmneshwar Nath, for. the appellants. Jf. Adhik<rri, Arfrocate-General, Jfadhya Pradesh and J.. N. Shroff, for tnc respondents. • · • ' •• • • ... .. • • • •
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S.C.R. • .SUPREME COPRT REPORT..S .1443
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• 1958. SeJitember 38. The following Judgments were delivered :
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Shr'i Radeshyam DAS C.J.-There· are two appellants in this appeal. Khare & Another The second appellant is the Municipal Committee of v. Dhamtari constituted ·under the C. P. and Berar The State of Municipalities Act, 1922 (Act II of 1922) and the first Madhya Pradesh appe 11 ant is its · · P res1 'd ent h avrng een e · b 1 ec t ·e d as sue . h & -~ Others on July IO, 1956. He assumed charge of his office as Das c. ;. President on July 27, 1956. It may be mentioned that•he was returned as a Congress candidate but has since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate.
It appears that there are two factions in the Munici1Jal Committee. The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956, detected importing within the municipal limits certain cloth with• out paying the octroi duty. Dhurmal Daga, on the other • ·hand, alleged that the first appellant was guilty of grave mismanagement of the affairs of the Municipal Committe~ and went on hunger strike for securing the appointment of a committoo to enquire into the mis•conduct ·of the first appellant. Copies of the leaflets containing the demands and charges w)lich are said to have been widely distributed are annexures I and II to the present petition. It appears that several persons and firms also preferred charges against the first appellant, the President of the Municipal Committee. The Collect.,r, Raipur, personally intervened and persuaded ) the said Dhurmal Daga to abandon the fast on. an a!!sm:ance that he would look into the matter. The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the compln,ints of mal-administration of the affairs of the Municipal Committee. By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956, the said N. R. Rana called upon the first appellant as the President of tho second appellant to give deta,iled explanation of each complaint, a list of which was enclo!;ed t)lernwitli. A copy of-that mamorandum along wit:b its 22°enclosur~s.
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1444
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SUPREME COU.RT REPORTS. , [l9:l9]
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'958 is <inncxecl to the petition ;i,n<l •nmrked • JU. Annexurcs Shn /ladeshyam Iv and v t-0 the retiion are copies of the detailed KJ.are & A•othu report on the obicct10n'll and the reply to the charges v made against the .\lunicipitl Committee Aubmitted from The-''"'' of the oflice of the .\lunicipal Committee by the first Madhya I'radesh appelhmt as the President of the Municipal Committee. 6- Others 'I'I 1c Ad<l itinnal Deputy CollPctor thereafter held the .- Das C. j. enquiry. The High Court states that it had "gone through the materials on which the State Government based its action on enquiry into the charges le:elled against t.he .\Junicipal Committee" and th<Lt the records of the enquiry showt'd that "on some occasions the petitioner was presem during the enquiry". There is no suggcBtion that the appellants wanted an opportunity to adduce any e\•ic!cnce or were prevent-0d fro doing so or that they were in any way hampered in their defence. Presumably the Additional Deputy Collector had nrndc a report which in due course must have been forwarded to the Stale Go,·~rnment.
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On No,·ember 18, 1957, a notification woo published. in the Official Gazette wherchy,the State Government, in exercise of the powers conferred on it. by R. 53-A of the C. P. & Berar Municip~\lities Act, 1922, app7iinted one Shri B. P. ,Jain, the second rl'spondent. before t.rs;, as the Executi'e Officer of the l\Jnnicipal Committee, Dhamtari, fi;r •a period of 18 months with certain powt>rs as therein mentioned. A copy of that notilica. • tion has been annexed to the petition and marked VIII but as th<> major part of the arguments canva,~,cd before us turns on t.hc contents of that 1.1otification t.lw same is rcpro1lucecl below in ext-0nso: ·"Dated, Bhopal, the 18th November, 195l, Xo. !)262!115:{8-U-XVIl[-\Vhercas it appear• th the Srntc Go'ernment that. the :\I unicipal Committee, Dhamrnri, has proved itself incompetent to perform the duties imposed on it by or U!1der the Central Pro• vinces and Berar Iunicipalities Act, l!J22 (11OP1922), • inasmuch as it( a) grnnteil gmin and building advances t-0 the employees wiJhou prior sanction and no efforts were made for the'ir rcr.ovcry, '• (b) showed carelessness in cases or embe;:dement , .. • .. • .. • • •
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' S.C.R. ~UPREM1i1 COURT REPORTi3 1445 . . .
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of the empl~yees and• did, not report such cases to '958 Government, (c) failed to control the President who issued orders Kh;;, Sh . Rd ; 'no;her hy m in cases in which he had no authority, v. (d) spent thousands of rupees ·on sanitation and The state of other works although there was no provision, in the Madhya Pradesh budget, . & Others (e) allowed unconcerned persons to interfere in its Das C .• j working, IJ) showed partiality in the appointments and dismissals of the employees, further such appointments and dismissals were made against rules, (g) delayed the constitution of the committee and the framing of budget, • _ (h) misused the trucks of the municipality, (i) failed to recover the lease money, (j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi ,duty is not leviable it was levied just to harass the • people, (k) distributed municipal manure to certain perso without any charge, similarly distributed the fntl.nure free of cost and usea the truck of the municipality for this purpose, (I) failed to control its president • wpo spent the money of the Municipal Committee without any authority, (m) spent huge amount on the maintenance of • the roads and drainage but their condition has remain-. ed unsatisfactory' • (n) failed to give copies of the documents. as allow"ed under rules, also failed to allow its members to inspect the records as is permissible under rules,
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(o) failed to invite tenders of purchase of articles, and whereas, the State Government considers that a gene6al improvement in the administmtion of th_e Municipality is likely to be secured by the appointment of a servant of the Government as Executive Officer of the Committee. ·
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Now, therefore, in exercise of the pow.erlj conf~rred by section 53-k of the Central Provinces and Bera.r•
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1446 S!JPREME CORT llPORTS. • [1959]
1 958 :\Tunicipalities Act, Hl22 (II ofol!)22), tlie tate Govern- 0h . , , , rneut 11rc pll'ascd to appoint Shri B. P. Jain, Deputy /(hare _, " .<a"""Y""'_ 6 . AtiJther** C ·O II (~e t **or, a.s t>xecut1vc . "'"' .>!.ueer o f" t l le ·' 'I un1c1pa . . l C 'om. v. mittcr, Vhamtari, for a period of eightecu months The St•tc of from r.he dt1tc of his taking o,·er charge and with Madhya P.ad"h refere11ce to sub-section (i!) thereof a.re further plt><1s('.d & Othm t-0 direcl that the Excruti,·e Officer shall ex.,n·ise and Da, • C. j. perform the folloll'ing powers a.nd dut.ies of t.he Committcc to the exclusion of the Committee, President, Viee-PreHident or Sncretary, under the provisio1s of the Ccntrnl Provi'.1cc:; and Berar :\Iuuicipalities Act, 1922 ( lI of 1922), na.mely :-
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Chapter III. Appointment of Officers a.nd servants-Sect.ions 25, 26 1rnd 28.
Chapt.cr TV. Procedure in Committee meeting--. Scetion 31.
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Chapl-0r V. Property, contract an<l liabiliticsSect ion:; :n to 45. Ch11pter VI. Duties of Committee-Sections 50 an<l 51. •
Chapter VIII. The municuial fund-whole. Chapter IX. Imposition, assessment a.nd collection of 1.axes-whole. • Chapter X. :llunici1ial Budgets and account~ whole.
Clmptcr,X•L Powers to regulate streets and buildi11g8-Sections !JO lo 94, !16, 98, 99, 103 and I 04. Chapt.l!r XII. Power8 to prevent disea.He and • public 11ui~a11ce-Sectio11s 117, 118(1), 119 and 132. Chapter XV I I l. Offences, practice and. procedure-Sections 218.223.
. Cha pl"r XIX. Special provi"ions for recovery ,pf taxcs-w hole. '
The Exccut.ive ofticer shall exercise general supervising powers in respct:t of all matters covered by t.he Central Pro,·iqccs awl Bcrar i\l1111icipalitieH Act, 1922 • (II of 1922)'. • • In Hindi (By order of the GO\·ernor of .Madhya Pradesh) • S. S. Joshi, • •• Deputy Sccretary• . " , .. • • .. .. • • • •
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'958 Radesh:.m • & Anather v. The State of Madhya Prndesh & Others Das c. t
On December'21, 1957., the two appellants before us '958 presente~ before the Mad~1ya Pradesh High Court the Shri Radesh:.m writ pet1t10n out of wh10h the present appeal has I<lum & Anather arisen and on Januarv 11, 1958, obtained an order v. staying the operation of the order of appointment of The State of the ~xecutive Officer. The writ petition was dis!pissed Madhya Prndesh on February·20, 1958. There was a Letters Patent & Others Appeal which was dismissed in limine on February 21, Das c. t 1958. The application for certificate under Arts. 132 and 133 was refused on March 21, 1958. The present appellants applied for aud on April 1, 1958, obtained from this Court special leave to appeal from the judgment of the Madhya Pradesh High Court. The interim stay order made by this Court was eventually vacated on May 13, 1958. The appeal has now come u"p before us for final disposal.
Shri M. K. Nambiar, appearing in support of this appeal, urged three points, namely :
(i) that though the Notification purports to have , been made ii1 exercise of the powers conferred on the • Btate Government by s. 53-A, in substance and in reality it has been made' under s. 57 of the Act;
(ii? that if the Notification is held to be one made u~for s. 57 it is ultra vires a.nd bad since the statutory requirements of affording reasonable opportunity to explain has not been complied with ;.
(iii) that even if the impugned Notification be held to come within s. 53-A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving ltny opportunity to the appellants to defend th~mselves. .
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There• was a charge of mala fide made against the State Government founded on the fact that the first appellant's leaving the Congress p1>rty had resulted in ill-will towards the first appellant of that party which was thPo ruling party in the State Goveriun1lnt, but as that charge has not been pressed before us nothing further need be said about it. I now proceed to deal with the three points formulated above by learned counsel for the appellants. · ' •. •. 184. • .
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1448 ~UPP.EulE CO'CRT JU<:PORTfi [1959] ' • • • " Iy;S Re._ (i) and (ii): Tht-se j.wo f>Oints arc \jOrt•elated and . may lw com-e11ienth· deaft with t.ouethcr. The a.rgu- Si;ii u,1arshj11Hi • f' 't . I l "1 . 1\·1:,_ 1r1, r· .·hic.Jiiri nu•nt 111 8l1Jlport. o t 11e1R 1s c e\·t' ope< n1 t\'O \rays. Jn v. t.he jirsr. place it is said that the grounds set forth in Tl" srnr, ,, 1 he impugned notilication clearly indicttte that in .11"d'•.•·n J'on1r•;, s11bsta11ce >111cl in rcalitv it. ha8 been iss11ecl mtlwr ,.,. ot1.cis un(ler s. 57 of the 1\ct t:lla.n under !-{, !13- ... . In order • to a1•11rr,,iate this arg_11nw11t it is nccessar,' to set. out- J>a.; C. J. t.he two sections of tlw C. P. and Bcrar :.\lunicipn.lit ies Ar·t, l!l22 i11 extenso:
"53-A. (I) If :1 committee is not compet1;11t to perform tlw duties imposed 011 it. or 1111dertake11 by it h' or under this Act or any other ennctment for t-lw t.fine being in force :ind i'lw Stafo (im·crnmcnt considers that a general impro\·ement in the administ ration of the municipality is likely to be secured hy tle appointment of " servant of t-he Go'ernmcnt as the excc11tivc officer of the committee, t.he State Uovernmcnt nmy, by an tll'flrr stat-i11g the reasons t.lien•for ptiblishcd in the Gazette, appoint such s·,·an1 as I.he~ t•xec11t.i,·e officer of the committee for s11ch period not • exceeding eight~en months as ·may be speciliPcl in such order. •
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(2) Any executiYe officer 1tppoi11ted under s11hscction (I) shall he clcemecl to be an officl'l' lent to thr' committee bv. ( :o\·ernment 11ndel' sub-section (3) of section 25. • •
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(:) When under s11b-section (I) .:in exe•·uti\·e • officer is appointed for :.111.v committee, the State Go,-ernmcnt shall de!C'rminc from tinw to time which powers, duties and fu11ct inns of 1 he committc!e, preside11t, ,. ice-pl'csidcnt Ol' se<'retary under this Act or :IJJY rule or h\·elaw madP t here11nclel' shall be c·xereisf.'d and performc;cl by .-;urh oflit:el', in nddition to, or to the exclusion of, their exel'cise and pel'formance by the said cummitt<>c, president, ,-ice-president Ol' seerctary. (4) Th scrret:iry of the co"mmit.tee shall l1e sub• ordinate t.o the exe.cutirn oflicer.
• (5) The execut.i,-c officer shall lm'c the right to at.te;1d all m:etins of tie commit.tee and any joint i:ommittc~ Ol' oil b-comn11ttce and to take part. m t.he • tliscnssi•m so a,; fo make an cxplanati~n in 1'bgard to , •
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S.O.R .• ."IUPl~EME OOIJRT REPOR'IOS 1449
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• the subject i!nder disc~rnsiQn, but shall not move, 58 / • second, or vote on any resolution or other motion. " . 'tt . t t t t Shr·i Radeshyam " 57 . (l) If a comm1 eel ·no, ?ompe en o per- I<ha" 6 . Another form, or persistently makes default. m the performance v. of, the duties imposed on it or undertaken by it under The Stote of this B.ct or any other enactment for the time being in Madhya Prndesh force, or exceeds or abuses its powers to a grave & Others extent, the State Government may, by an order -- • stating the reasons therefor published in the Official Das c. J. Gazeite, dissolve such committee and may order a fresh election to take place.
(2) If after fresh election the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds cii: abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, declare the committee to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and .supersede it•for a period to be specified in the order. • (3) If a conunittee• is so cliHsol ved or superseded, the following consequences shall ensue : (aj all members of the ,committee shall, as from thl'l date of the order, vacate their offices as such members;
(b) all powers and duties of the ccm11nittee may, until the committee is reconstituted, be exercised and performed by such person or persons as the State Government may appoint in that behalf;
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(c) 1111 property vested in it shall until the committee is reconstituted rnst in the State Government.
• (4) On the expiration of the period of supersession specified in the order, the committee shall be reconstituted, and the persons who vacated their offices under sub-section (3), clause (a), shall not, by reason solely of such supersession be ?eemed disqualifjed for being membePs. •
(5) No order under sub-sect.ion (1) or sub-section (2) shall be passed until reasonable opportunity has been given to the committee to fu1nish .an explna.. tion. · • '. (6) Any person or persons appointed by • • • the Stat~• • ..
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1450 SUPHEME COURT REPORT& , [1959)
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| • SlrriNnde$hY"'r. Khare c:~AtMther ."· n,swcof Madhyal'.a·/c;h ,S..Othrrs ·-- _]Jas_C.}. • • • , .. • |
Gon•rnmcnttoexerciseandp'erform th!J'powersand rluticsofadissolvednrsupersededcommitteemay . .1. l·s (' d' · receivepa..yn1ent,i t H! 1ta.te :iovernmcntso ire('ts, for hisurtlwirservicesfromthemunicipalfund." Learnedcoun8Pl furtheappellantspointsoutthat, <Lctiuwnmybetakenunders. 53-A "if_n_commit.teei;; t t f h d · · 1 · nu·compeenttoperormte utresIlll]H>SC< on1t ...............1111dt.lwStateGo,·ernmrntconsidersthata generalimprovr·mentintheadministrnt.ionofthe municipalityislikelytobe securerl..................". Whereasunders. 57actioncanbetakennutnnh·"if acommitt€eisnotcompetentl-0p~·rformorpersistently makesdefaultinthepcrform:rnceofthedutiesimpos- edonitor...............",butalsoifthecommittee "iexceedsorabusesitspuwt>rstoagraseextent**.......'.i.** ltis pointer!outthatincaseofincompetencyacti<>11 canbetakeneitherund<'r s.5:.Aors. 57butincast> ofabuseofpowerad.ioncanb0 t.akt'nonlyunder s. 57. Heforence isthenmadetothegrou11dsrnume- ratedinthe11otificationitselfitllditis-arguedthat. exceptperhapsgroundsa,b,andgwhichmaybe • indi('ativcofinc01npetcncy,theothergrounds••which arc,byfar,greaterinn1unber,obviouslyconstit.11t.0 abuseofpowersandfromthiscircum,;tancethncl\n. clusionis 80•1ghttobedrawnthfLt.insubstanceandin realitythe.impugnednotificationmusthavebeen nrndcunders.5iandthatthatbeingsotlwnotifici>- tioncannothesustainedbecaus1'ofthenon-compliance withtlwpro,·isionsofsub-s.(;i)ofs. 57whichexpressly laydownthatnoorderundersub.s.(l)or(2).shallbe passecluntilrcasonahlcopport11nit.yhasbcnn give.nto t.hecommitteetofumishanexplanation. Ia!11liot. persuadedtouph.,lclthisargument.. Inthefirstplaceithastoberememberedthattlw sectionsunderconsiderationonlyconforcertainpowers ontheState.Governmentbuthatthelatterisnot bou11dtot.ikeanvactionundercit.herofthm.111 the11extplaceit.houldbe11oterlthatthet.wo s!'ol ions differmakriallyin t.heirscopeandeffect. U11<lcr s.5:1-Athe.:-itatGovernment.mayonlyappointa serv:rnt. ot'the(i,i,·crnnwnta8theExecutiveJ.)fh"t'rof •lhccommitteeandmayde;crmi1w, fro'mtimetotiui.~, .. • • • • |
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S.C.R. • •SUPREME COURT REPOR~S 1451
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• which powern and dut1es and functions of the com- I958 , mittee, its president, vice-president or secretary shall Shri Radeshyam be exercised and performetl by such officer and Kha" & Anoth" indicate whether they should be exercised and perv. formed in addition to, or to the exclusion of, their The State of cxcfoise and performance by the said committee, Madhya Prndesh &- Others president, vice-president or secretary. The wor ing d -. of s. 53-A mi.kes it quite clear that the action that Das C. ]. may be taken thereunder is to be effective for a temporary duration not exceeding 18 months and the purpose of taking such action is to ensure the proper performance and discharge of only certain powers, duties and functions under the Act. The section does not, in terms, affect, either legally or factually, the o('Xistence of the committee, its president, vice-president or the secretary. i:lection 57, however, authorises the State Government, in the circumstances mentioned in the opening part of that section, to dissolve the committee itself and order a fresh election to take place so
• that the c"mmittee as a legal entity ceases to exist • and all the sitting mevibers of the committee become functj officio. If after such fresh election the same situation prevails, then th~t section further authorises ; the State Government to declare the committee to be incompetent or in default or to have exceeded or abused its power as the case may be allcL to supersede it for such period (not limited by the section) as may be specified in the order. The effect of an order made under s. 57 is, therefore, extremely drastic and puts an ·end t(\ the very existence of the committee itself and, in view of the grave nature of the consequences that .vill. ensue, the legislature presumably thought· that some protection should be given to the committee before such a drastic action was taken and accordingly it provided, by sub-s. (5) of that section, that no order should be passed uptil reasonable qpportunity had been given to the committee to furnish a1i eKplanation -a provision which clearly indicates that action under s. 57 can only be taken after hearing and considering all the explanations furnish)'d by o; on. behalf .of the commij;tee. The legislature did not think tit to provide a similar safeguard in s. 53A presumably becaMe . ' . ••
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1452
ST.iPHEME COC~T ItEl'ORTS •• [ 195\J]
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, ~ the order 1111der t.h1' last, m~itioncd seetiou mis of I<ha" Sh ti. / r- adtSllJ,111 ,. 1 . ,,011,,, d a 1 'cl temµorarv not ti1rl'aten t"' duration. the 'ery was ex18tencc of not , very " drastic • the com-n,nd v. mittec. A cursory reading of the t.wo sec:t.ions The s1 .. 1e c/ will also inclic:ite lhttt the conditions precedent Jladh1" p,";,-" to the t'>Kercise of the powers under hoth sections o·err011 "" lap to some C'xtcnt, naml'ly, that act ion can lw taken .--under both if the committee" is not com1>c!ent. to f>Cl'/l . .s c. J. form the duties imposed on it ......... ". To thP extent· tha.t. the requircnwnto of t.h1• two Heclion> o\·erln1• the ~tale ( ;0-cl'llment !ms the option of taking steps under one ection or (.he ot.her according io its o\·n assessment. of the exigencies of the sitnMiou. The position, therefore, is that if a committee is not competent t.o perform the dutie' imposed on it t.hc State Con'rn:• ment !ms to makte up ivi mind as l•l whether it should take :wv action M all and, if it thinks that act ion should b1' taken, then it ha.s furl her to clcide for itself 11s t.o "hich of the t\·o sections it. would act under. ff t.hc Stat<' Gm·emmcnt considers th11t th8 incompc- • tency docs not. rnn tu a grn\·" C\tentancl the <'xigcncics of the :;ituation lllay he ackqtmtely met by appointing :1n Exl'cuti''V Oliicer for :t sl1ort prriud not t'X<:c:~ding 18 months with certain powers to be <'V>r1:is1'd by hinf, •• C'ither in addition to or in exc:iusion of t.heir C:\Pl'Cise hy the committet', the president., vicc-prcsident 01· tlrn secretary, the State Government may properly take action under s. :i3-A. On t hP other hand if the State • Gm·crnment consirlc•rs, having regard to all the cin:ums.t:tntcs oft IH> case, that the incompet.0,tll'y is much too gra.,-c t.o permit the committee, it.s presidl.'lll, vi,,e.prc,icknt or the secrt:t.ary to t'unct.ion at all, i• m11v take action un<ler s. 5i and dissohc the cumruittec a.nrl din>ct fresh eleet.iou to take pince. In other words i11competc11cy on t.he µart of the eommittec gi'es to the St.;ck Govcmment <111 option to a.~ply one uf two rcme• dies under tlie :<\ct, if, t.hat is to say, it c•msioors it 1wcessa.rv t.1> take ill'tion at nil.
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What; then, is the poition here ? Certa.iu 1·lmrgcs h;td been madi; in '\riting :igainst the committee and it pl'esidcnl which were {'orwardcd t.o the prrsident \l'it.h a reqnest t.o si1l1mit. cxpln,nations ii"i detail. The , ..
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S.C.R. SUPREME COURT REPORTS 1453 • • • • • •
president, ating in hi;, official capacity, gave detailed z95B explanations in writing and Sent the Same officially ch . Rd h f rom t h e o ffi ce o t e f h mm1101pa . . 1 conrnut . t ee t o th e Khare ·' " & a es Another yam Additional Deputy Collector who was deputed by the v. Collector to hold the enquiry. The Additional Deputy The state of Col!ector held the enquiry during which the J:\resident Madhya Pradesh appeared in person on several days and came to cerc~ Others ta.in findings and presumably made his report which -. in due course must have reached the :State Govern- Das c. f. ment. The State Government apparently accepted such of those findings as have been set out in the notification itself. Even according to leamed comrnel for the appellants some of those findings ;i,mount only to incompetency and the rest, he contends, amount to abuse of power. I need not pause to consider whethel" "the abuse of power thus found was of a grave nature so as to fall within s. 57 as such or was of a minor chamcter so as to be evidence of mere. incompetency. Taking the position to be as contended by learned counsel for. the appellants the position was that, as a result of the enquiry, the St.;i,te Government found two things against th~ appellant committee, namely, (i) tlmt it was guilty of iucompetency and (ii) that it •was also guilty of certain' abuses of power. I have
•already ·stated that the State Government was not obliged to take any action at all eithe.r under s. 53-A or under s. 57. If the State Government considered that it was necessary to take action, it was entirely for the State Government to consider whether it would take action for incompetency or for abuse of power.' In the present case the State Government might have thought that the abuse of power so found was not of a very grave nature but evidenced only incompetency. Surely a committee which abused its power might also have been reasonably regarded as "incompetent to perform the duties imposed on it". That .apart, supposil1g the committee' was guilty of incompetency as well as of some abuses, what was there to prevent the State Government, as a matter of policy, to take action .for incompetency 1mder s. 53-A ? The mere inclusio11 of th'e fim'l.ins of abuse of pmer in • the catalogue of · the Committee/1'
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1454 SQPREME COURT ~EPORTS [1959]
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• • • • , ,1958 misdeeds doeo not obliterate lhi finding~ 011 incompc. . · ···tency. I see nothing wrong in the State t;ovcmment. l(h Sim ...1re !ladr;hpm <..:> , I' 1 nnl· / u:rtc • 11mg . ,_,tic lc:omm1ttcc: • ' . , ,,._i_ou l1a'Cbeengudtv . •of . v. 111co111pet11cy as well as of abuse uf power; hut 1 n, -"•'' "! sh;dl not, just at this moment, take drastic •1etion of J/adhy., I'rnde;t. dissolving you outright, but shall be content to t;i.ke "'-Ott.en action and appoint ;rn Executive officer for 18 mouths • and confer some power on him under '· [i3-A ". In DrH C. /. d l G my ju gment tie 8tatc •Overnment waH well within its rights, in exercise of its option, to take action, under s. ;;:-A as it has in terms purported t.o do.· To say that heeirnse some of the findings amount to ahusc of power the Stale Government must act under s. 57 is to deprive it of its <liscret.ion which tl11• Act 11ndo11htcdlv confers 011 it. Jn mv view the fact. that the imp;;gned notific<Ltion reco;ds, apart from the• findi11gs of incompetency, certain findings of abuse of power, docs nut. lead to the co11dusion, <is enntenclt-<1 for the <1ppcllants, that the State·' Government had t<1k1m act ion under s. ;)i and not under s. 53- . .\ although, in ternrn, it says it '1cted und(~r the last • men t.ionecl section. •
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Lea.med counsel for the appdlants in support c.f hi~ content.ion that th<' impugr1ed notification w<1s real~. made umler s. 57 of the Act, refers us t11 th<> p01nn·s • and duties conferred on the cxecutiYc Officer thcrcbv 11ppuintecl to' be exercised and performed by him t'O the "xdnsion of the committee, its president., ,·iceprrsiclcnt., or t.he se<'retary. His argument is that although the municipal committee i' not ostensibly dissoh·cd, it is in effoet and in re;llity so dissol"ec!, for the .snbsta.1wCJ of the powers of the committee, its president., vice-president or the secretary has Jice!1 taken aw;iy from them leaving only a sembbi.nce of power which is n"thing but mere husk 1111<l the conclusion urged Ly learnl,d counselis thfll the impugned not.ification •mt!8t bt• reg;1l'ded its ha Ying hcen. made • nnder s. 57. ln the fir~t place, s .. '\7 cloes not contemplate the ;ippointment of any executive Officer or the confrrm<'llt of any power !HI him, while such appoi11tme.nt0 ;ind ·c<1,1fern'l.ent of• power is direct\' contemt>l.1.t.c<l by· s. 53-A. In the second lace" t legal
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S.O.R. • .SUPREl\1~ oopRT REPORT.S 1455
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• existence of .the municfpal ,committee and the status r958 / • secretary of its members h ave not een impatre and b its president, vice-president or . . d a a . t '11 I n th e eye the Kha" Sm , . Rade> & Another 1 •yam of the law the municipal committee still exists and v. along with it the members of the committee, the presi- The State of den11, vice-president and the secretary still hokl their Madhya Prnd"h respective offices. These features clearly militate & Others against the suggestion that action has been taken -• Das C. ]. under s. 57. Learned counsel says that we must look beyond mere form and get to the substance of the matter. There can be no doubt that most of the important powers have been taken away from the committee, its president, vice-president and the secretary, but that may well be due to the degree of g_ravity of the incompetency found or inferred from the other findings. :Further, a cursory perusal of the Act and of the notification will show that various other powers and duties have not been taken away from the committee or conferred on the Executive • • Officer. Tims the powers of the committee under • ss. 128, 130, 131, 133 ~ 141 and 144, 145 and 147 to 149 are still vested in and are exercisable by the committee. Likewise the powers under ss. 120, 121, 122, 01!3 to 127, 129, 150, 152 to 160 to 162, 163, 163Aand 168 are still vested in and exercisable by the president. These powers that are still left with th13 JJommittee or the president can hardly or with propriety be described as mere husks. It should not be overlooked • that the suggestion that the real power has been taken away leaving only a semblance of it, is really an argument in aid of a charge of mala fides, but, as h.-re-in-before stated, the charge of mala fides· or fraud on the part of the State Government has not been persisted in or pressed before us. In my judgment, therefore, there is no warrant for contending that the impugned notification, judged by its efl:ect, must he regarded as having been made-urider s. 57 of the Act. In this view of the matter the argument of • • invalidity of the action founded on non-compliance with the requirements of sub-s. (5),of s, 57 doe.snot arise fo:t consideration at all.' '
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1451i SUPREIIIE C01JRT·UEPORTS , [1959]
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• • ' '.<:~ Re, (iii): In the writ. ttp~lication, iout of which SI.n , 1 1.,.this appt,,i!11rises,theprincipalprnyerofthe t1ppel- "' a '"' ·'"' ] . c . . h f , , ' J J<Ju 11 e & **.. 1 ,;,,ti:ei·_** ant~ 18 H)l' a. \'l'lt 111 t, e•nature o <.:t"rt1ora.r1 1or quas 1- v. ing t.hc order passed by the Stale Government. on The s'"" of ?\ovembe;r 18, l!Jiii, The next prayer which is for n Afodli)a hak<h writ of mandam1rn restraining tlw re:;pondcuts •from {.,.. Otlu:rs g1vmg e tee! · · j" tot J w 11npugneu · , I oruer .l rn · e l'ar 1 1 y conse.- Dn.< C. }. quenlia.J on or ancillary to the main praym" The !11st prayer is in the rmture of the usual prayer for further or other re lid's, Therefore the present p<'J;ition is esseutia.llv one for the issue of a writ of certiorari. The writ of certiorari is a. well.known ancient high prcrogMi'e writ t!rn.t used to be issued by the Court.s of the King's Bench to correct the e1-ro1's of the inferior Courts strictly so called. Gradually the 8t:OL11' of these writs came to be enlarged so as to enable t.ht: Superior Courts to exereise comrol over n1rio110 bodies whid1 11·crc not, strictly speaking, Courts at u,]] but-. which 1rnrc, by l:itute, Yest.ed with powers tl!ld clutit'8 tlmt rcRernblcrl t.hosc that W<'rc vested i11 dw ordinan·. • inferior Courts. The law iH 1~ow well-set.tied thrtt ;1 writ. of certiorari will lie to control such a stat.uton· body if it purports t-0 a.c~ without jurisdict.io1~ or iii exceso of it or in 1·iolatinn of the principles of natufa'L ju,;tice, or eornmits any error app11rent on the face of t.he record8, ~n'l.>'ide<l lhat, on tt true eon8t.r11ctio11 of the statute creating such hody, it can be saicl to be a quasi-judicial body entrusted with quasi-judicit1! func• tions. It is equally Wf'll-set.llccl t.hat certiorari will not lie to correct the errors of a statutory body ,which is entrusted with purely administrative functions. It is, the<'eforc, necessan' to ascertain the t.rnc mtture of tJ1., fu11ctimrn cnt.rustd to nnd cxcrcioccl In' the ·tat-c (;ovcrnnwnt. under s. 5:!-A of the Act. " In l'rovince of JJ01nbuy v. Ku-•uldas S. Admni (') this Court hr. discussed al c11Hiuerable length the • nature of t!ie two kinds of act, judicial an<l d<lrnini . • strat.ive, and has laicl down certain tests for ascertaining whether the a<'t of a statutory bo<ly iH a quasijudieial ac.t';"'' an arlrninitrative act. It will, therefore, • • • (1) [1950~ S.C.H. (J.::J. • , .. • • .. • • • •
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S.C.R. , .SUPRE¥E 00,URT REPORTS 1457
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• suffice to ref-.r to the c~lebi;;i,ted definition of a quasi- '958 / judicial body given by Atkin L. J. as he then was, in si . R d 1 Rex v. Electricity Commissioners (1) and which now Kh;;, ;, ;;:,;, holds the field. It runs as follows: v.
'958 / • . R d 1 Kh;;, ;, ;;:,;, v. The State of Madhya Prndesh & Others Da-:;;, j. j.
"Whenever any body of persons having legal The State of authority to determine questions nffecting rights of Madhya Prndesh subjects, nnd having the duty to act judicinlly act iu & Others excess of their legal.nuthority they are subject to the Da-:;;, j. j. controlling jurisdiction of the King's Bench Division exeruised in these writs."
This definition wns nccepted as correct in Rex v. London County Council(') and many subsequent cases both in England and in this country. It will be noticed that this definition insists on three requisites ch of which must be fulfilled in order thnt the net of the body may be said to be qunsi-judicial act, nnmely, thnt the body of persons (1) must have legal nuthority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act udicially. .'lince a writ of certiornri can be issued only to correct the erro1 of a court or a quasi-judicial body, it would follow that the real and determining test for nscertaining whether nn act authorised by n Eli;>!,tute is a quasi-judicial act or an administrative net !s whether the statute has expressly or impliedly imposed upon the statutory body the fluty to net judicially as required by the third condition in the definition given by Atkin L. J. Therefore in considering whether in taking action under s. 53-A the State Governl!lent is to be regarded as functioning as a quasi-judicial body or a mere administrative body it ha. to be ascertained whether the statute has expressly or impliedly imposed upon the State Government a duty to act judicially.
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Helying on paragraphs 114 and 115 of Halsbury's Laws of England, 3rd Bdition, Volume 11, at pages 5558 and• citing the case· of R. v. Mancheste1• Legal Aid Committee (3 ), learned counsel for the appellants contends that where a statute requires a decision to be arrived at purely from the point of view of polic,y or . . . . (1) [1~24] 1 K.B. 171. (2) [1931] ! 1'.13. 215.
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1458
SUPREME COU,RT ll~PORTS •• [1959]
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• 'i958 expediency the authority. is \mder no .duty to act 'h . R-I . judicially. He urges tlmt where, on the other hand, ·' " 0 ' crnyam h d h l 1 -' 'd . h d Kime 6 Another t e or er as o ie passc-u on ev1 ence e1t er un er an v. express provision of the statute or by implication 1111d Tiu srare of determination of particular facts on which its juris<lic- Madh.va i""de>h tion to. exercise its power depends or if there is &pro& Orhm posal and an opposition the authority is under a duty • to a.ct ju<liciidly. As stated in paragraph ll5 of Vas C. ]. Halsbury's Laws of England, Volume ll, at page 57, the duly lo act judicially may arise in widely diffJ:ring circumstances which it would be impossible to i•ttempt t-0 define exhaustively. The question whether or not then~ is a duty to act judicially must be decided in carh case in the light of the circumstances of the particular case and t.hc construction of the particula,i· statute with the assistance of the general principles laid down in the judicial decisions. The ;lrinciples de<luciblc from the various judicial decisions considered by this Court in the Province of Bombay v. K. 8. Adrnni(') at page 725 were thus formulated, namely: • •
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"(i) that if a statute empwers an authority, not being IL Court in the ordinary sense, to d"cide clispute8 arising out of a claim p1adc by one party ' under the statute which claim is opposed by another pal'tl a11d to determine the respcctirn rights of the conll'sting parties )'ho are opposed to each other, there is a /is iu1d primafacie and in the absence of anything in the statute to the contrary it is the duty of the authority • t-0 act judicially and the dceision of the authority i8 a quasi-judicial act; and , (ii) that if a statutory authority has power to do any act which will prejudicially affect the subje.f.t, then, although there are not two partieH apart' from the ;rnthority and the contest is between the authorit.y proposing to do the act and the subject opposing it, the final determination of the nuthority will yet be a quasi-judicial act provided the authority is rcrptired by • the statute to act judicially." • It is clear that in the present case there is no que8tion of auy CO\ltt bet.ween t~\rn contending parties which the State•Gb'erqment is, under s. 53-A, to d!ll.!ide and, • • (1) [1950] S.C.R. 621. • • •• .... •• • • • •
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S.C.R., • SUPREME COURT REPOR~S 1459
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therefore, tliere is no ''lis ';in the sense in which that I958/ • word is understood generally, and the principle refer- Shi Rad,.hyam red to under the first heading has no application. We Kha" & Another have, therefore, to consider whether the case comes v. within the principle enunciated under the second head, Th, Stafr of nafnely, whether the C. P. and Berar Municipalities Madhya Pradesh If>. Others Act, 1922, requires the State Government to act -~ judicially when taking action under s. 53-A. Das c. ;.
Learned counsel for the appellant draws our attention to the language in which s. 53-A is couched. He concedes that the ultimate order under that section is purely discretionary, that is·to say, the State Government is not obliged to take any action under the section. It may make an order under the section or .jt may not according as it thinks fit. But. in case the State Government chooses to act under the section, it can only do so if the conditions therein laid down are fulfilled. A cursory reading of s. 53-A will show that there are two pre-requisites to be s>ttisfied before the State GoV'ernment can take action under s. 53-A, namely, (1) that the municipal committee is not competerit to perform the duties imposed on it and (2) that the State Government .considers that a general .' fmprovement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive -Officer of the committee. When both these conditions are fulfilled, then and then only may the State Government take action and make an order under s. 53-A. Of the two conditions the second one, by the very language in ; which it is expressed, is left entirely a matter for the tat.e Government to consider, for it depends entirely on the view of its own duty and responsibility that the State Government may take on a consideration of the situation arising before it. In other words, the statute has left that matter tli the subjective .i;let)rmination of the State Government. The first requisite, however, is an objective fact, namely, whether the committee is or is not competent to perform the duties imposed on it. The determination of that fat, it ~s pointeti out, has not been l,eft to the subjective. deterntination VY
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1460
SUPRE:VIE COl113T RoE,PORTS •• [1959]
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918 the Strite Government. Lca.rncc:I counsel f0tr the appel. 51.,,liaddv""!ants 1.1rgcst.ha.t. if itwerP-i1tcndcd toleavet.l1cdeter. l>'h.,,, ,, . . 1>;,, 11,,, n11nat1on of this iaC't of mcompetcncy also to tho " suhjPcti'e opinion of the State GoYcmmcnt, the ection n,· .,,,,,, nf would ha Ye been framed otherwise. It would ha Ye ,\fo.ihyn l'rad01 • said sornrthi11g like this: "If the State GoYcrnntent (,. Others •- consi er:; t 1at a d J committee is not competent to pel'form [),, C . _/. the clutics ...... anrl that t.hc general im]>roYcment in the administration of the municipalities is likely to be S<'cnrcd by ...... ". This the Legislature has not done and has, thus, cl<'ar!Y evinced an intention not to lea Ye it to the ipse dixit of Stf1te Go'ernment. Section 53-A, it is pointed out, differs materially in this re8pect from s. :inf the Bomhay Lauri Requisition Ordinance (V of 1947) which wn.5 <'onsidercd by this Court in _]{11s11lda11 0 Adrani's cn8c_ ('). That section of the Bombay Ordi11a nee open eel with I-he words: " If in the opinion of the ProYincial Governmeut ............ " 11·hidt were t .. >kcn as indicatiYe of the Legislature's intention tu k11,ve the determi1mtion <>f the existence of,.]] the con- • rlitions precedent entirl'ly to th subjective upi11ion of the Prol'incial (;01·ernmcnt so as t.o make the :>etion a purely Mhnini'31TMive one .• The nrgnnwut. is thar the first requirmuent is the liurling of a fact which may ]Jt)• called a, juri:;dict.ional fact, HD t.h:>t the power under • s. 53-A «an <rnlS· be «xiercisl'd when thn.t jmiHdictiornd fact is cst:>hlished to exist. The c1"tC'rmi11ation of the • existence of th1it juri8didiu11al fo.ct., it is contended, is unt left to the suhjcctil'e opi11ion of the State GoYernment :rnd that alt.hough the ultimate act is an aqminist.rntil'e one tlw State Go1·crnment must. at the preliminn:ry stage of determining the jurisclietional fact act \ judicially and dvtcrmiuc it. objecti1·ely, that is to "say, i11 a quasi-judicial wn.y. It is ass1rn1ed that whf'1te1·cr there has to lw a cletermi1mtio1t of a fact which affects the rights of .t.he,.JHHties, t.!tP dcciion must he a qun.si• · judicittl dei:ision, so as to Le liable to be conecter' Ly a • writ of certiorari. In Adrnni's case(') Kania C. ,J. with whom Patanjali Sastri J. agreed, said at page ua2 : · . . • : "The resjionclul's n.rgunwnt that whenever there • • • • • •• .. • t •...
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S.C.R.. • SUPREME CQURT REPORTS 1461
• is a determination of a' fact which affects the rights of '958 / parties, the decision is quasi-judicial, does not appear Shri Rad<>hyam to be SOUnd." • Rhare & Another
'958 / Shri Rad<>hyam Rhare & Another v. The State of Madhya Pradesh (''>' - Others Das C. ].
]'urther down the learned Chief Justice said:
" ......... It is broadly sta(,ed that when the fact has to jje determined by an objective test and wh1m that decision affects rights of someone, the decision or act is quasi-judicial. This last statement overlooks the aspect that every decision of the executive generally is a-decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step in the discharge of an executive fm1ction, it does not follow that it must determine those ,;(acts 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 and the exercise of the power based thereon are alike • matters of'an administrative character and are not amenable to the writ oi certiorari."
To the like effect is the following observation of Faz! Ali J .• in the same case at ]i>age 642 : ·
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; • "The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which tfie •decision has to be arrived at which makes the difference, and the real test is: Is there any duty to decide judicially? As I have already said, there is nothing in the Ordina:u.ce to show that the Provincial Government has to decide the existence of a public purpose judicially Oi q11asi-judicially." ·
Dealing with the essential characteristics of a quasijudicial act as opposed to an administrative act, I said at page 719: •
" ......... the two kfods of acts have--many common featur~s. Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his. power. He has to consider facts and circumstancei! and ~o weigh pros and cons in Iois minq before he makes up ·his mind to exei;,. cise his po":er just as a pepon exercising a judicial or.
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STJPREME COU!{T REPORTS •• [19.59]
1462
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• • 'i95S qu:ii-judicial function ha t-0' <lo. Both.have t-0 net Sh, 1 Rafoh;·""' in good faith. . A good an.d valid a?minitrati,·e or _I<ha" :;, ,i., 01 ,,,, exec11t.1vc act brnds the stibicct and affects his rights or v. imposes liability on him just as effectively as a qLiasi- n, State of judicial act does. The exercise of nn aclminiqr:i,ti,-e Madhya J',.,1e.,1z or exel'\1ti\·c act may well be and is frequently n,adt! "". Othm <lependent by the Legislature upon a condition or contingency which may invol'e a question of fact, but DHC. ]. the questiiJn of fulfilment of which may, ne\·erthdess, be left to the subjective opinion or satisfaction of the cxccutin! authority, as was dune in the se-cral Ordin:tnc:e:;, regulations and enactments con.-;idered and construed in the SC'Cral cases referred to ahtJ-c. Thi! first two items of the definition given by Atkiu L. J. may be equally applicable to ttn administrative acte The rc:i.l test which distinguishes :i. q1rnsi-j11dicial act from an administrative :i.ct is the third item in Atkin L. ,J.';; <iefinit.ion, namely, the duty lo ai:!. judi.,ially." J found support for my opinion on the following passage occurring in t.he judgnwnt of LtU'd Hewart. C. ,J. in R. v. Legislatii·e Ca;mnittte of the Church Assemlily (1) : "ln order that a bot' may Sttti;;fy the rc"quired test it i8 not enough that. it should haw legal autlru~ rity to determine questions alfrcting the rights ot' suhjt!ct.s; th"r~ must be super-adde<l to that diarncteristic the fort.her characteristic that the bodv has • the duty t-0 act judicially." • The abon' passage was quoted wit.h approval by Lord Radcliffe in deli\•ering the judgment of t.h'' Privy Council in Nakkud11 Ali's case (') . r ll!J\' proceed lo apply the prin<:iplcs disc:usood \ :•hove tu the fads of the present case. The simple fact. that the incompetency of the committee goes to the root. of the jurisdiction of the Sutto Go\·ernmcut t.o exercise. itf>.jlower uutler s. r>3-A docs not rcr1uire • thnt that fact. must. be <lctermined juclicially. 'J'hc sole • •p1Cstio11 i;;, tloeH the statute require th" State Government to act judicially. There net·d not he any expl'e~ prov.isi()n that. the;Stitte Govemment must act • lLHlicially: "[t will be sufficient if tliis rlut.i; may be \1) 119iSJ I E.B. 111, 4I5. (2) [1951J A.C. 66 . • • • . •• • • • •
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S.C.R. • UPREMEJ COURT REPORT 1463
implied from h provisins .of the statute. The mere r95B / fact that a question of fact has to be determined as . R- h . . . . . k S/in ades yatn a prehmmary cond1t1on befo1't:l aet10n can be ta en Hhare & Another under the statute by itself does not carry that implicav. tion. There must be some indication in the statute The state of as to"the manner or mode in which the preliminary Madhya Pradesh fact is to be determined. I find nothing in s. 53-A & Others which in terms imposes any duty on the State Govern-· .d Das -· c. J. • ment to act judicially. No form of procedure is hu down. or even referred to from which such a dnty could be inferred. On the contrary, one finds a significant omission of any provision like that embodied in snb-s. (5) of s. 57 which requires that no order under that section shall be passed until reasonable opportulll.ty has been given to the committee to furnish an explanation. It is also material to note that whereas an order under s. 57 is of a permanent character the one to be made under s. 53-A is to be of a limited duration, i.e., for such period not exceeding 18 months .'ts may be specified in such order. Further, s. 53-A • contemplates swift acti and a judicial hearing may easily frustrate the very purpose contemplated by s. 53-A, for a judicial act wiU be subject to the powers f•superintendence of the superior courts and the operation of the order under s. 53-A may be postponed, as it has been done in this very c!arre, by taking the matter from court to court until it is set at rest by this Court. In this connection reference may also • be made to s. 25-A of the Act which authorises the State Qovernment to require the committee to appoint, inter alia, a Chief Executive Officer. If such CQ,Ulrnittee fails to comply with the requisition wi1'hin the period specified, the State Government may, under sub-s. (3), if it thinks fit, appoint such officer and fix ' his pay and allowance. Sub-section (4) authorises the State Government to rquire the comm~tee to delegate to the "fficer so appointed such powers, dnties and functions of the committee, its president, vice-president or • • the secretary under this Act or any rule or bye-law made thereunder as may be SP.ecified jn such requisition and if t!ie committee fails to comply :nith lluch requisition within a reasonable time, the State Governme!ft• 1$6 •
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1464 SVPREME COT.'.RT REPORT~ • [1959]
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• ' i958 may determine the power~, du\ies am! fu111ctions which Sh . R 1 h shall be exercised and performed b' such ofliccr in ad<li- J\h;;e** c?(c,~~;;;;, **t-ion to or to the exclusir>n of their .. exercise or 1•erforn1- v. a.nee by committee, it.s prsidcnt, vice-president or sec- '/'he State of rclary. Nobody will say that the State (;u,·crnnwnt Madhyu 1'.a<fph must exercise the powers 11nder s. 25-A aft.er holding & Othm any judicial enquiry. The only difference in the Ian;., J. guage of s. 2-5-A a.ml s. 5:3-A both of which were ino;erted in t.he Act in 194 i is tha.t action can he taken under 8. 53-A only when the nmmittee is incompetent to perform the dutie< imposed on it-a fact the determination of which is not in so many words left t.o the subjective opinion of the State Goverrmwut, whereas action can he ta.ken under s. 25-A on t.he satisfaction of the Stal<! Go'ernmPnt a.s t-0 certain facts whic1i is, in t.enns, left to the subjcctiV(! determimtt.ion of t.i1e State Go'ernJtient. If, as 1 have said, the determination of a jurisdictional fact is not hy itself sufficient to inrlicate tlrnt, it lrns u, be done juclicially, there is nothing else in s. 5:J-A or in any other H(«:tion of th(:. Act which will lead t-0 the coiwlusion tlmt, the State • Government must act. jndicially. The only other thing strongly relied on .by learned couns..I icn· the appellants is that the State Go'ernment may exercts<. its power under s .. 53-A "by an order stat.irrg reasons therefor publis1wd in the Gazette". The re'}uir<>ment that the i)tatc Government must gil'l;. reasons for t.he order it makes does not. necessarily re'}uire it to record • a judgment judicially im·i'ed at. The kgislat.urc might well hae thonght that public policy j'('quirl'd .. that the State Go'ernment entrnsll'd with large administrati,·e power should record its re<Lso'!s Jin· exercising the same so as to allay any misgi,·ings that \ may arise in the minrl of the public. ln my judgment, the action ta.ken by the State (;o'ernment uu<ler s. 53-A is not 1!.iudieinl or quai-judicial act but is an • a<lminist.raii,-e itet. Learned cou1J>;c] for th n.ppcl• • hrnts relied on the case of C1qud ,. Child_ ('). That decision clearly went upon the construction of the st>Ltwtc t.hat came.up for ;consid.,ra.tion. The fact that actiou cou1d•be t<Lkcn under Umt statute on ~ffidn.nt.s 0 • • (1) 2 Cr. & Jr. 55f; 37 H. R. 761. • • •• ... .. • • • •
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• S.C.R. ~UPREME COURT ltEPORTS 1465 • • • •
was constru~ • as a cleilr iqdication that the Bishop I958 ~ had to arrive at a decision as to the negligence of the - ' ' V!car. on h earmg . ev1 "d ence a dd uce . e ore 1 d b f "t b Y a . a-ffid J(hare Shri Radeshyam ,;;, Another v1t which led to the next conclus10n that the Vicar v. must be given an opportunity of being heard and of The State of addttcing evidence in his own defence. From tl1is cir- Madhya Pradesh cumstance it was inferred that even when the Bishop & Others acted on his knowledge of fact he must also proceed Das C. J. judicially, for the two modes of procedure were treated OQ the same footing by the section itself. As I have said, there is nothing ins. 53-A or any other section which may lead us to infer a duty to proceed judicially as was done in that case. On the contrary there are indications leading to a different conclusion.
• To say that action to be taken under s. 53-A is au aaministrati ve action is not to say that the State Government has not. to observe the ordinary rules of fair play. Reference to the observation made by Fortesque J. in Dr. Bentley's case about God asking •. • Adam and Ji]ve whether they had eaten the forbidden • fruit appearing in the judgment of Byles J. in Cooper v. The Wandsworth Board of Works(') is apposite. The decisil\n in the last mentioned case clearly establishes . taat in some cases it may be necessary to give an "opportunity to a party to have his say before an administrative action is taken against him. But that is quite different from the well-ordered procedure involving notice and opportunity of hearing necessary to be followed before a quasi-judicial action, open to correction by a superior court by means of a writ of certiorari, can be taken. The difference lies in the iqanner and mode of the two procedures. For_ the brea~h of the rules of fair play in taking administrative action a writ of certiorari will not lie.
I have already recounted the events and proceedings that preceded the actu.al passing of the order under s. 53-.4. If the action taken under tlr.tt gection is to be regarded as an administrative action, as I hold it should be, then I have no donbt that the appellants have had more than fair play. It is said that the State Government did not •hold aby enqniry l:iefore • • (1) [1863] '4 C.B'. (N.S.) 180; 143 E. R. 414. • • •
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1466 SVPHE:11E CDURT I$EPORTS [1959] • • • • •
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1958 making t.he order n.nd th.at, Oiercfore, t cannot. be _<l,,-;-d , sai<l that the appell<ints had <m opportunity to defend Khare • "' & .a ""Y""' ,;,,other t I H'lllSC 1 'eS ag1unst . D.n _,I' <l <'f 0 ,. t I . k' US 'lll(J. l do not v. consi<ler tlrnt there is :tny substance in this content.ion. The State of If the State Go,·cr·nment wantc<l to hol<l any enquiry Madhya I'radeslt it wotLkl <lo SCJ through scinie of its officers. 'ho °' Othm would he more appropriate n.nd competent to hold the Da< • C. f. enquiry . except the officers on the spot? The Additioun.l Deputy Colleetor is obviously the person to whom the duty of enquiry could properly be cntnste<l. All the elrnrgcs lc'elled n.gainst the appellams were forwarded to them, :ind they Hubmit.ted exp\a.11ation. The fir,t n.ppdlant, 11·ho is the President, personally n.ttend!'cl mn.ny of the sittings. There is no ""ggestion thn.t they Jrnd been prennh·cl from adduc:ing c\·ic!Pnce in their owll defence, The enquiry was held info wh:tt had been allegccl n.gn.fnst their conduct. It. was sure.ly 11ot a J>lll'JHlSl'less enquiry. As a result of the enquiry certn.in finding; \n•re arrived al which were accepted by the Stn.te Government a.nd a.ii order wn.s, ,. ma.de nndcr s. 53-A. J. do not sec wh&t. grievance the , appelln.nts can possibly have. 0 ln my judgment there !ms been no remissness on the p&rt of the• State Government. • • • For reasons stat.eel ahove I would dismiss tiiis" appeal. · lJliogr1·.lli _/. BHAGWATJ J.-I also agree that the appeal should be dismissed with cosk; bnt would like to add a fow • words of my own. 1 have l;n.d the h .. nefit of reading the jnc.lgm<'nts prepared by my Lord the Chief .Jnstice, Kapur J. and Snbbn. Hao ,J. l agree with the reasoning anp tlw co11cluKio11s r&c·.hecl in those judgments in r<·gard to points Nos. (i) & (ii), viz., ' • (i) that though the Xot.ification purports to hn.ve been made in exercise of the P!>Wers conferred on the St:ttc ()oycfnnient by s. 53-A, in substance r.nd in reality it has been made under s. 57 of the Act; 1ind, •• (ii) thar if the Notifien.ti!)l1 is held to be one made unde1· H. 57 it. jg ultra i:irn~ and bn.d since. the stR.tntor·v
·' rcquiremeiit .'of a;·ording re&Honn.blc opportunity tJ ~xplain has not been complied with. • . . •• ... .. • • • •
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• In regard.to point J\i1i. (iii), viz.,
(iii) that even if the impugned Notification be Shri Radeshyam held to come within s. 53-A i~ is still ultra vires since Khare & Another before promulgating it the State Government has v. committed a breach of the rules of natural justice in The State of not•giving any opportunity to the appellants tQ defend Madhya Prade>h & Others themselves, however, there is a difference of opinion between my Lord the Chief Justice and Kapur J. on Bhagwa7i J. the one hand, and Subba Rao J. on the other, as to the • character of the act performed by the State Government while arriving at tho conclusion that the Committee is not competent to perform the duties imposed on it or undertaken by it. Whereas the former are of the view that in arriving at such con0clusion the State Government performs only an administrative function, the latter is of the view that the fact whether the committee is not competent to perform the duties imposed on it or undertaken by it is a jurisdictional fact and in arriving at thflt conclusion · • the State Government performs a quasi-judicial func• tion. In my opinion, the determination of the question whether the State Government performs an admini&"trative or a quasi-judicial function in the matter •o{ arriving at such conclusion is immaterial for the •purposes of this appeal, inasmuch as an inquiry had been instituted by the State Government.in the matter of the charges levelled against the appellants and full opportunity had been given to them to defend them• selves. I need not add anything in this regard to what has been said by my Lord the Chief Justice in the judgment just delivered by him. I only wish t,p say that the circumstances adverted to therein am~y demonstrate that the appellants had notice of the charges which had been levelled against them and .. , had rendered full explanation in regard to the same, ' and, in the matter of·the inquiry in regard to those chargA<s the principles of natural justi"e had been complied with and the conclusion reached by the State • • Government in the matter of the incompetence of the committee was unassailable: .
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That being so, I would prefer not to· el::press any opinion°on the-vexed question as to whether the ooe •
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ST)PREl\IE COUJ{T H~POltT8 • • (1959]
1468
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, ~ performed by the State UQvcrf1rnent is <jj1asi-j11dicial • Khare S nr1'. " na< .~ 1 esnyaiu Auotlirr, or 'l'I administmt.ive IC rcsu t, J h owe\·er, in character. l'f . the same and I agree with . "· the order proposed dismiosing the appeal with cost.s.
n, State of S. K. DAS J.-·I agree generall.r with the concl11- /ltCJ:iliy" Pradc.~h & oihm sions re'achcd hy mv Lord the Chief .Justice an<l'the ,- reasons on which th'osc conclusions 1uc founded. Bnt. s. K. Das J. I wish to add n fow words \l;it.!1 regard to the t.hird ciuestion, namely, if in making the impugned notification, the 8tate C:o,·crnment viol11t.ecl the principles of naturnl justice. The ;1 n:;wer to that quest.ion depends on whether on a true construct.ion of t.he '"'levant statute, the 8tai.e Covernment pnformcd an aclminis. tmti'C function or what has been callee! 11 quasrjndicial function in making the impugned notifica, .. tion.
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I am of the Yiew that t.he action Utken bv the St.:Lte Government under s. !l:l-A of the Act is in its.true nltture an administrative act. It iil said that where t.hcre i~ ':t c!uty to act judicially', the fuuctiorf is quasijudici;L!: that howe,·cr does not. hdp us very much in 11ndPrstan<ling the distinction between an adrui11istrati,·c function and a <prasi.judicial function. Where. the statute clearly in<licat"s that the function is ju di-• ei,11, there is little diffieult'. The difficult\· <irises in cases when• •tlic point ta.lrnn is that hy necessary impli<,,ttion the st . .ituk re4uirc>s an .iclministmti,·e hocly or executive authority to act judicially. lt is in<kccl gerwrally correct lo say that where an ttdminist.rative bod\• or 1111thriritv is under a dut\· to ac.t, jurlici:tlly, its f~uietion is jud-icial or quasi-juc'lieial. But it: is, t<l some extent, a tautology t<> say that the (un8ti<>ll i" judicial or qwtsi-jndici<d if it is to lw <lone jnd icially .
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To get to the bottom of the clistinction, we nurnt go a little rleeVir W.to t.he coutBnt ol' the expression 'duty • to act judicially'. As has been repeated so•ottcn, • the question may arise in widely differing circumstances and a precise, clear-cut or exhaustive dchmtion <'lf the.cx.presf!lon is rot possible. But in decisions dealing with "the <jUCHtion se'tral tests.have br,en lard 0down ; for exam pie-
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S.C.R, .SUPREM.E COURT REPORTS 1469 • • •
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(i) w hetker there is' a li.s inter partes ; '!!/· (ii) whether ·there is a claim (or proposition) and Shri Radeshyam an opposition ; • Khare b Another (iii) whether the decision is to be founded on the v. taking of evidence or on affidavits; The State of Madhya Pradesh (iv) whether the decision is the decision is decision is actuated in whofo or in & Others part by questions of policy or expediency, by questions of policy or expediency, and if so, --; whether in arriving at the decision, the statutory S. K. Das].'
(iv) whether the decision is the decision is decision is actuated in whofo or in part by questions of policy or expediency, by questions of policy or expediency, and if so, whether in arriving at the decision, the statutory body has to consider proposals and objections and • evidence ; and
(v) whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of lis.
The last twci tests were discussed and considered in
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• I am content to rest my decision on the aforesaid ground, as I am not satisfied that t~e enquiry held by the Deputy Collector was a proper ertquiry if it be held thats. 53-A entrusts a quasi-judicial function to the State Government and therefore requires compliance with the principles of natural justice. That enquiry was for a different purpose altogether, the charges were not the same, and in my view the Muni<!ipal Committee had no real opportunity of meeting the charges on which the State Government ultimately took action. I prefer, therefore, to base my decision on the third question. on the short ground that the function which the State Government--ex<;rcised under s. 53-A was administrative in nature and it is settled law that such action is not amenable to a writ of certiorari.
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On the first two que.stionEI I am fo entjr~ agreement (<) [1~52] 2 Q.B•413. • • •
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1470 SUPHE.\IE couiiT ll-E.l'OH.TS •• (1!)59] • with mv Lord the Chief .1 ust,ce and h:.ve nothing useful lo add. lo add. add.
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• '~958 with mv Lord the Chief .1 ust,ce and h:.ve nothing useful lo add. lo add. add. Shri Hade:;hyani Khare t;. Anothe1 KAPUR J.-This appeal pursuant to special learn v of this Court is directed ag>iinst. the judgment and The .).late of order of the :lfadhya l:'rndesh High Court. Tlw ap1icl. ,!adliya Pr,1dc1h 0- Other5. huts ate the .\lunieipal Committee of lJlmmtari and .-its !'resident Jfadhcshyam Khare who are challenging l.tip11r J. the order of the 8tak Governme11l of i\IadhY<L l'rnde:;h appointing an Executirn Otlieer of the :llu11l.,ipal Committee u11der s. 53-A of the C. P. & Bcrar Munid'ipalitics Act (Act 11 of Ui22) to he termed in this judgnwnt, the Act.
The facts leading lo this appeal arc that. one Dhuruial Daga who was a member of the Dhamtari .\lu11icipal Committee (appellant No. 2) wa::; fou11d im•0 porting cottDn into the municipal area without paying octroi duty. He the11 wc11t 011 hunger >:trike and tdso <list.rihuted pamplilet" making all<>g"tiuns against both the appellants. At this stfLgc the Collector of Haipur di,;trict pnrsonally i11t-0n·cneu ant.I persuaded l.Jhurmal • • Dag<t to break 111s fast 011 an tlssura11ce that he (the Colketor) would look into his allegations. I 11 ])llrSUancc of that assura11ce Mr. Hana, Deput.y Collecl<.V'• held an enquiry and c;.\llc<l the expla11atio11 of the• l\Iunicipn,l Con1111ill-0e ant.I its President >ind submitted his report on ':\o\·ember 22, Hl56, which was forwarded to the State Govemrne11t on April 24, l!.l57. The St.at-0 • <;o,·ermncnt tlwreupon took action under s. 53-A of the Aet ;tud by a notitica;,i,111 dated " 01-cmbcr 18, l!l57, appoiutcu a Deputy Collector B. P .• fain res1JUndent ~o. 3 as Exccuti'e Ulticl'!" of the Dhamt.ari Municip1d Comi11ittec for a period of 18 months on the gr•untl th1tt the .\I1111ieip1d Commit.t.ec was iueompcteut in the pcrformauce of its duties under t.he Act. The relevant part of the nut itication Wt\S as fq)lows:
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"\'hcrnas -"it appears to tl'lc St.iLl.-0 Gu\·cr,1me11t • t;hat the 1\lunieip1d Cumrnitt.ee, DhamLari, h1ts pro'e<l • • itself incompetent to perform the dutis impo8ed on it by or under the Central Provinces 1t11d Bcmr Municipalities Acti, l!J22 (H of l 9'22), inasmuch as it• • {<t) grnkd grain and building arl vance; to the
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S.C.R. SUPREM]l] COURT REPORTS 1471 • • • •
employees '~thout priot saJJ.ction and no efforts were 1958 / made for their recovery, shri Radeshyam (b) showed carelessness in cases of embezzlement Kha" & Another of the employees and did not report such cases to v. Government, The State of .(c) failed to control the President who. issued Madhya Pradesh orders in cases in which he had 110 authority, & Others (d) spent thousands of rupees on sanitation rupees on sanitation sanitation and Kapur-. 1_
(d) spent thousands of rupees on sanitation rupees on sanitation sanitation and other works although there was no provision in the budget,
(e) allowed unconcerned persons to interfere in its working,
(f) showed partia,lity in the appointment and dismissals of the employees, further such appointments and dismissals were made against rules,
•, (g) delayed the constitution of the committee and the framing of budget,
(h) misused the trucks of the municipality,
(i) failed to recover the lease money,
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(j) sho\j'n partiality in the issue of transit passes
• •to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroioduty is not leviable it was levied just to harass 1'he people, •
• (k) distributed municipal manure to certain persons without any charge, similarly 8i~tributed the manure free of cost and used the truck of the municipality for this purpose, (1) failed to control its president who spent the money of the municipal Committee without any authority,
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(m) spent huge amount on the maintenance of tlie mads and drainage but their condition has remained unsatisfactory, (n) failed to give copies of the documents as allowed under rules, alfID failed to allow its members to inspect. the records as i~ permissible un1!1ir rules,
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(o) failed to invite tenders of purchase of articles." This order of the State Government was challenged under Art. 226 in the Madhya Pradesh High Com;t on • the allegation that the orde'r passM bj. the State Governntent constituted • •
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SDPHEME COUHT HEPORT~ . .
1-172
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''958 ·•a ffogrnnt :dn15e uf Lhe jiowPrs c;nierrcd uncler SI JTl.R-;--d- r1 r~ 1 iyam seetion ;)il-A of the :llnni<'ipalitics Act. The cha1gc,; - _Kha"_ & _A,. 011,,,_ enumc:ratcd in the not.ilieatinn wprc nc1·er frnnwd. The v. State Con,rnnient did not SPl'"C :my nntiee on the _The S1a1t of_ :\Iuuicip:d Commit.tee or its l'rcside1{t to show cause _Madhya P.aJ,.,,,_ against the charges nor werP thny afforded auy O!'J>Or& Otl1e1:, tnn1ty · tu l 1:1'C t I · 1e11· s:iy 111 · tie I matter." ·- l(at•rtr ). The appellarots submitted that the finding about the ineo111p1'lcncy of the rommitt<>e was 1·it iated becftusc 110 enquiry mi.' held and there was no cYiden.cc in uppnrt thereof :iml thr order wa l'Oid and inoperntil'e hccause
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(I) "there is non-olrnervancc of t.he mandaton· pro1·isions. The power h:is not bel'n exPreiserl withii1 the limit,:; prescribed. .•
(2) th<'re is no <letermination of the basic: facts.
(3) t,here is a 1·iola.tion of t.he rules of 11:it.11rnl justice.
(4) the action is rnala fid<-."
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Tlw respondents denied tlw allegii.tions a,ncl submit-. tc(\ that. the State (;01·ernment.111ade t.he order 1111der - ;):).A of the Act 011 the report. of ;\Ir. TI1tna., .Deputy CoJk,ci.or who held 1t11 c11quiry i11lo thl' allcgat,inn.-; made against thte :ippdla.nl under the orders of tll. Collector of Ha.ipur; that proper notice was gi1·en to t.he Sccrel:ir.¥ o"f the illuni<:ipal Committee which filed its Written ~tatement through it.,; l'rPsident :ippell<tnt l\o. I who appeared personally during the proce<,dings of the enquiry, b11t no opportunity for" leading any e1·idenee" was <lemandcd by the appellant nu;- was it denied. Tlwy also pleaded thut nu formal enquiry mi,: required under t.he law and t.hat the Court couJd not go into the sutlieieney or otherwise of the retiwns for t.1\king 1i.ction" and the same will not he enquired into b.1· t.he Court ohjcct.ively."
A learnedingle ,T udge of t,1e High Court cl is miss• ed the petition holding that whatc1·cr he t.he !'Ositiun under s. 57, under s. 53-A no explanation w;is r<'q11ired to lw callt!d from the municipal committee a.ml t.li<: St1tt (;o,·er~me11J, was ;iuthorisecl under t,he law to t\Ct prompt!(. '(he High Court 1wgatived the allcga•t1on that the Slate Guvernment had proce0ded against • • • • •
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S.C.R .• ~UPREME COURT REPOR'LS 1473
• • the Municip~l Committee,• appellant No. 2,atthe instance of Dhurmal Daga. The learned Judge said: •
"I have gone through the material on which the Statti Government based its action on enquiry into the charges levelled against the municipal committee and find that there were several other complaints besides those made by Dhurmal Daga. The record of the enquiry shows that on some occasions the petitioner was ')Jresent during the enquiry. I am satisfied that the invocation of the power of th is Court under Art. 226 of the Constitution is not open to the present petitioner".
r95 B / --,, Shri Radeshyam /{hare & Another v. The State of Madhya Pradesh & Others Kapur • J.
JI'
A Letters Patent appeal against this judgment was rtismissed on February 21, 1958.
The appellants have come in appeal to this Court by special leave and have raised four points before us:
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(1) That the notification though it purports to be • under s. 53,. A of the Act is real! v under s. 57 which is shown by the grounds given iii the notification, the powers vested in the "Executive Officer and by the effect"of the order;
; •(2) and if it is a notification under s. 57 it is ultra vires because the statutory requirements of the section had not been complied with;
(3) even if the notification be held 0 to be under s. 53-A of the Act it was still null and void and inoperative as it violated the principles of natural justice .and
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(4) that the order made was mala \fide inasmuch a.s it had been passed with an ulterior object of tal<ing awa,y the control of the municipality from the Independent Party which was in a majority and that this was m accordance with the policy adopted by the State Government of ~uperseding or suspending municipalimes which were not controlled by the Congress Party. As further proof of the mala fides of l'tespondent No. 1, the State Government, it was alleged that Radheshyam Khare appellant No. 1 was expelled from 1Jie Congress Party "for six ye":in\ in about March .1957 Because he stood as' an Independe.1• •
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1474 SIJPREl\IE COURT HEPOH-TS- • [1959) ' . ' 1 95 8 candidate for election to .I.he tower Hotl!;c of l'adi:• rnent in the 1957 rlcetions. Sliri Hadtsliyan: lihar1 {- ,1., 011.,, The allegation of m!tla fides was not seriously v. pressed nor is 1here1tny material to sustain it. The Stat of In order to <lecidc the other q ucst ions raised iu this !11adhyr1 Prndeli appeaL it is necessary to examine the scheme oi the (..). Othe1 s Act and its provisions relating to the powers of the Kat11r • }. tatc GoYernmcnt in regard to mu11icipal com111itte(·S . Chapter I of tlw Act makes proyisions for the constitution of municipalities. .Section 4 empower the State Grn-crnmcut to siguify by uotifieat ion its intention lo declare a local area t-0 be a municipality, to alter its limits or to withdraw the whole of it from a municipality. Section 5 gi1·es the right to the inhitbitants of such local area to file objections againe+ anything contained in the notification within a period of 6 weeks and after consideration of such objections if an·, f.hc Stat<' Covemmeut can confirm, vary or reverse its notification under s. 4. Sect.ions 6 to 8 cical with consequential orders on inclusion •and exclu- • sion of local areas. , Seetion 9 1rnthoriscs the State Gornrnmcnt t~ gi 1·e such powers to it municij;iality its in its opinion it i~ suited for. l t provides : • • "If t.hc circumst11nccs of any munici1mlity are such that, ill ·the oninion of the faale Go1·ernment, nny proYi;;ion of tl\is Act is unsuited thereto, the Stnte Government may, bv notification: • (a.) withdraw the 'operMion of that prnvision from the municipality; • (b) apply that provi,ion to the municipality i11 It • modified form to be Hpecitied in Rt>eh notificMion' • (c) rnako any additional provision for the muni<!ipalit.y in respect of the matter mentioned in t.he \ pro1·ision which has been withdrawn from, or applied in a modified form to, the 1111111i<!ipality." Chapter Ii cfc'.ils with the memliership of com1T1ittees • and chapter Ill with Subordimttl' Agencies. Under • • this chapter fall Sub-Commit.tees, President;; a.nd other officers of .'.11unicipal Committees. Section _2:) . .-_ which • deals with" !he ajJfl<•i11t.1na11t of 1~ Chief E~ecutive Officer, Health Ollicer or Supervisor is 0aB und<?r: • • • •' ...
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S.C.R. • "SUPREME COURT REPOR'FS 1475
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(1) "TrTe State Govern"ment may, if in its opinion r958• the appointm~nt of. . Shd Radeshyam (a) a Chief Executive Officer IS necessary for Khare .;;, A1>other general improvement in the administration of the v. mnr;icipality .................. and it is satisfied that the The State of state of the municipal fond justifies expendilure on Madhya Pradesh · h · 't &Others suc h appointment, reqmre t c committee to appom • any such officer. J{apur J.
(2) A requisition under sub-section (1) shall state the period within which the committee shall comply therewith.
(3) If the committee fails to comply with the requisition within the stated period, the State Government may, if it thinks fit, appoint such officer at the ~.ost of the committee and fix his Pi>Y and allowances, the rate of his contribution to the provident fund or to his pension and other conditions of service.
(4) The State Government may requfre the committee to delegat.e to the Chief Executive Ofticer
• ............... • ... appointed under this se_ction such powers,
• duties and functions of•the committee, president, vicepresident, or secretary under this Act or any rule or b1e-law made thereunder s may be specified in such •requisition, and if the committee fails to comply with such requisition within a reasonable time, the State Government may determine which powel's, duties and functions shall be exercised and performed by such officer in addition to, or to the exclusion of, their exercise and performitnce by the committee, president, vice-prsident or secretary.
(5) The secretary of the committee shall be subotdiqate to the Chief Executive Officer. • (6) The provisions of sub-section (5) of section 53-A shall apply to the Chief Executive Officer or Health Officer or S~1pervisor appointed under this section ". • •. .
Chapter IV deals with the procedure to be followed in Committee Meetings, chapter V with property, contracts and liabilities and .chapter VI with duties of committees. Chapter VIII is head<>d" G:_ontrol ": It prescribes the ;rnthorities which have the· power ~o. conti;pl the. acts of commit.tees. and also lays down the.
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1476
S"t'JPREME COUHT ltEPOltTS• • [1959]
~ • '958 extent of such contrnl and Urn elho<l ;f ts exercise. Shri R 11.-u'<,h yr1m Sect.ion 52 gives , to thP De1)ut\· Commissionei· • . ... , , the gJuol! 5,.. Andl//r fJO\"CI' to l'xam1ne the 1n·oceed1ngs of cn1nm1ttec8 or v. o'.Ib-eomrnit.ees. SP"tion 53 empowers a Deputy Com. n, Si.tc of missiorwr to suspend the execution of any orde1; or Ma.ihya p,,,desh r"solution of a committc. or a sub-commit tee and &. Othm prescribes the circ11111sta11ces in whid1 this power can Kotur J. be exercised. Then comes s. 53.,\ which em[JO\l'J'8 the nppointment of an Executi'e Officer by the State Government.. Section 54 prnvideo that i1r the r;tse of emergency the State (;pyernrncnt, on the receipt nf the report under s. :)2 or otherwise may require a municipality to ext>cute any work or pcrfonn nny ac. which in its opinion is neccssitry for t.he scrnce of t.hc public. U11der s. 55 the Stall Covcrnmc11t if S<tt.isned after recPiving a report under s. 52 or after enquiry if any that a municipal committt>e has made rlcfault. in performing its dnties ma.y appoint "some pernon lo perform " the rluty nn<l can direct the municip:d "ommittee to pay• rca;onabl1, • remuneration to the person 80 <Rppoinled. If default, • is maclc in any such payment Uw State CoH·r14ment can under 8. 5G direct a• per-<on haYing custody o~ municipal fn11ds to make such payment. Sect ion tN • empowers the Statr G(l"crnnw11t to dissoln: and.'01· to suiwrserle th1! 1nunicipal cmnmitteP. h·1·tion 58 °gin•s to th1· State (;oyernrncnt. the power of l'O'ision rtnd • an ovemll control ovn the actions of otlicet·,; acting or ta kin er an' ;L<:tio11 1111dcr the Act. But it cannot 0 " ' l'PV"1'se auy orrlcr 11nlPss notice. is given to t.l1e •JlcLl'I ics inteTeslPd and they arc allowed to appear ;111rl he hcafrl. Seel.ion 58.A aut.horises the State Governjllcl'IL to Pnforce its orders. Section 58-B gi\·ies to the .ta.le (;o,·ernrnent the power of review o! order.-; pa8st>d hy itself and Commissio11nrH and Deputy Commissioncrn !Ht'C simil:v powerH of reYi"'ing i.hcir own order • 1n·o,·idc<l that no order shall be var}.,d unless n1t.ice is • gi\·cn to t.}w p;Lrties interested to appear an1l be heard in support of the order ..
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U 1lder s. r:.o celitain oiliccrs appointed by gern•.ral or special i>r~crs G>f the State Gonn·nn1fnl are.en tit lc>d t, Mtcncl any me1:ting of t.hc committee apd ·a<tdress •' .
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S.C.R 0SUPREM.E COURT REPORTS 1477 • • • •
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'958 /.
it on any matter affecting. the work of their de1iart- '958 ments. Section 60 provides for . t.h0 settlement of I SI iri . R-d a es •h yani disputes between the committees and other loca Kha>e & Another bodies. v.
As ss. 53-A and 57 are the subject matter of contro- The State of ver~y in this case it is necessary to quote tpem in Madhya Pradesh full : & Othm
& Othm
Section 53-A "(1) If a committee is not competent to perform the duties imposed on it or undertaken by it bx or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the. administration of the municipality is likefy to be secured by the appointment of a servant. of the Government as the executive officer of the Committee, the State 0Government may, by an order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may .be
Kapur• J.
• specified i:t\ such order.
(2) Any executive officer appointed under subsection (1) shall be deemed to be an officer lent to the comnhttee by Government under sub-section (3) of '!rection 25. •
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• (3) When under sub-section (1) an executive officer is appointed for any . commit.tee, the State Government shall determine from time to time which powers, duties and functions of the committee, president, vice-president or secretary under this Act or any rule or bvelaw made thereunder shall be exercised and perfor.ti1ed by such officer, in addition to, or to the e.xclusion of, their exercise and performance bx the said •committee, president, vice-president or secretary.
(4) The Secretary of the committee shall be subordinate to tho executive officer.
(5) The executive <;>fficer shall have the right to atten<i all meetings of the committee aJtd aRy joint committee and to take part in the discussion so as to make an explanation in regard to the subject under discussion, but shall not move, second, or vote on any resolution or other motion ". ' • ·. • "
Section: 57 wl!ich gives power to· the Governmelll1' • • ,,
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1478 SUPHEIE COURT REPORTS • • • • •[1959] ' '958 to dissoh·e or s11persede th mtmicia1dity iH as • - follows : • . Sliri • J("dt.<./;yatu mme ,c,. Anotlia "(1) If a committee is.not competent to perform, or v. persistently makes default in the performa11ec of, 1.hc. Tile Stute of dut.ies imposPd on it or undertnkcn by it under this Madhy.• p.,.,i,,1i Act. or . ;tn\· . other enactment for the time being ., i11 farce , & Othm or exceeds or abuses iLs powers to a gra,·e extent, the 8tatc Government may, by nn order ;;titting t lw Klpu' /. re;tso11s tlwrefor published in the Oflici<d Gazette, dissolve s11ch committee and mav order a fresh election to ta.Im pl<tce. • • (2) If after fresh elections the new commitl.ec continues to b<' incompclent to perform, or to make default in the performance of, such duties or exceeds or abus!" it-s power:i t~> a grave !'xt.cnt, the State (:overnnwnt may, by 1m order stating the reasons therdot~ published i11 the Official Gazette, declare the commit.t<.·e t-o he incompetent or in default, or to have exc"eded or abused its powers, ns the cas« 111ay be, and supers!,<le it for a pt,riod to be Hpeciticd in the order. • (3) lf a committ.ee is so dissolved or superseded, the following co11scque11ecs shall e11~11e: (a) all mrn1bers of th" cnmmittl'c shall, as •from the <l:ttc of the order, nrcal<' their offices as suc11• members; •
(h) tdl poweri, a11d <lut ics of the comrnitt"e may, 1111t-il the com!nitwr is rcco1rnt ir-.ut{,d, b" exercised and performed by s1wh person or persons as t-hc St;it" • Government may appoint i11 that belmlf;
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(c) all property vested in it shall u11t.il the eom111it.t"e is reco11stitutrnl vest. in the State Government.. • • (4) 011 the expiration of the period of supcrscssion speci°fied i11 the order, the committee shall be reco¥st.~ • t-uted, and the persons who Yacated tlwir ofliccs 1111der sub.section (3), cla11se (n), shall not, by reason solely of such superscssio11 be deemed 1lisqualified for being 1nen1bcrs. • · • • - • • shall (i)) !'\o be pasHed order under nnt-il n'aso1ia.ble s11b.,eetio11 (I) oppDrtunity or 'uh-section !ms (2) hee11 gi,·011 tu the commit}!'C to furnish a11 expbrna. tiou. • • • • • • !ti) Any pc;son -or llersons appoil1teil by ti~ State • • ,, • .. • • • I
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• • S.C.R .• •SUPREME CQURT REPORTS 1479
. . / Government-to exercise ancl perform the powers and r958 • dutieS" of a dissolved or superseded committee may - • receive . paymen t , 1 'f' t h es t t G a e 't>vernmen t so d' 1rec t s, ior ,, Kha Shri e Radeohyam & An 0 th his or their services from the municipal fund." ' v. "
A review of all these provisions shows that under the ~ct the municipalities are not independent •corporations exercising powers unregulated by Governmenta! control. They confer regulatory authority on the State Government to keep control over municipalit.ies, the extent of control and the mode of its exercise being dependent on circumstances and expediency varying with the exigencies of evary case. The Statute leaves the discretion to the State Government to choose the action to be taken and the provision under i,yhich it IS to be taken. vVherever the legislature intended an enquiry to be held before taking any action provision is made for it and wherever it intended a person to be allowed to appear and be heard it has specifically provided for it. Generally speakiug
The State of Madhya Pradesh & Others -• J(apur ] .
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• particular person, ther~ is no provision for a hearing. The nature and extent of regulatory powers of the State 'Government and the Jllode of their exercise are .iitatters of policy and expediency and indicate t.he taking of administrative action by the State Govern. ment and not the exercise of any juditiia,J power and would therefore be excluded from judicial review.
Counsel for the appellants firstly submitted that although the State Government has pnrported to act under s, 53-A, in fact and in reality the order falls under s. 57 and because the provisions of sub-sectn (5) have not been complied with, the order of· the Stat Government is illegal, null and void. A comparison of the two sections 53-A and 57 shows the difference m the powers exercisable by the State Government under th.; two sections and the consequences -that result therefrom. Under' s. 53-A all that the State Government does is to appoint for a period of not more than eighteen months an Executive Officer who exercises such powers under the Act as are J11entioned I88 ip. • the order which . may be in addition to . or • to •
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1480 SPHEME COCJT R~:l'OHTS. • (1959]
• • the exclusion of their exercise hy the muni.ipality, etc., • >i power a!:<o cx<rcisahle under s. 25-A or to a lrmitcd l(h S/i,i are lladeshyu"' (.:." , ,· 1 11c;,. t1er'egree iun der s. "- " u· 'm l r s. b ·7 t l w 11111nw11ia . . I vomv. mittee itRelf is dissolved and nmy he superseded in The s1u1e o.t which case its members cease to Pxist and \·acate t-heir J:ladhya l'rnd«h offices• and the powern and duties of the mtmi!!ipal & Othm committee then become \·estcd in the ]Hernon or prrRons •- >tppointed for the purpose by the 1'tate Gowrnment 1\·ap11r J. and its property also 1·ests in the Stal<· Go1·ernment. These consec111enccs do not follow an order u.ndcr s. 53-A. But it i8 submitted that in re1dity the result is the same lwc>tuse of.the powers which un"der the notilicat.ion have been given to the Executive Officer and what is left with the Committee is onlv "hnsk''. If this were so then whenever any act.ion is take'" whether und<•r s. !l of th<' Act. or under s. 2ii-A in c01i. ceivable cascH it wo11ld amount to HupPrSe>ision of the munieipn,l committee and would tlwrefore fall under s. 5i which argument was neither submit.led nor is tenable. Accordi11g to the language of 'he two S<'C·, ? tions, 53-A and 5i of the Act tltc two n!ass' counsel on t1ie \i·ithdrnwal oft.he power> oft.he nrnniei• - pality and particularly under H. 31 and it was cont.tmd• ed that th Commit.tee would not be able to hold its monhh· meetings as required under that section. lt. is diftic~lt.w·lnteriiret the notitic>1t.ion in this Jll<Lnne1-, • • (1) ~lCJ<•51 :.C. .. 426.. • • • - ·' •• • • I •
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S.C.R. • SUPREME COURT REPORTS 1481 • • • •
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because so 1t;rpreted t wirnld me.an that the Execu- r95B /. tive 0fficer alone will meet for. the transaction of busi- Shri Radehyam ness at least once a month winch would amount to an Khare & Anothe. absurdity. The reference in the notification must be v. to sub-section (2) of s. 31 which deals with the power The State of of ehe President, etc., to call a meeting suo mot11. or on Madhya Pradesh '-' [..,, Others the requisition of a fifth of the members. Similarly the mention of Chapter V in the notification cannot vest Kapur•]. the property of the committee in the Executive Officer. The. notification deals with powers and duties and not with the vesting of property. It may however be mentioned that even where no ExecutJve Officer is appointed by the State Government it can direct that any property vested in the municipality shall cease to be •qo vested and it can make such orders as it thinks fit regarding the disposal and management of such property (s. 38). No doubt the powers under s. 39, which deals with the management of public institutions, powers a.nd duties of the municipality, are taken away and. are vested in the Executive Officer but • these powers in any <lase are subject to rules mde by Government a.nd these rules are always subject to change by the Sta,te Government. The powers of • 01lhe municipal committee• under s .. 40 to request the State Government for acquisition under the Land Acquisition Act have also been withdrawn. Section 41 deals with transfers of municipal pro0perty to the Government and s. 42 with power of the municipality to transfer municipal property but under that section •• the control of the State is not excluded even when there is no Executive Officer. Section 44 deals with tJ:ie making of contracts and the other sections in. that • chaffeter do not deal with the powers and duties • of a municipal committee excepting s. 49. Chapter VI ) prescribes the duties of a municipal committee and • some of those also have been vested in the Executive Officoc. There is no aoubt that some very important • powers have by the notification been taken away from - the municipal committee and have been vested in the • Executive Officer but that· is a far step from s_aying· that the committee has theriby be<ln srnipe0i1ded. This • exercis of its functions by the State Government is.Dii' •
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1482 SUPHEME COURT REPORTS, [1959] • • • •
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' 1 958 no <lifferPnt q1rn.lity leading, to 'different Jit.'Sults thau ' 5h . 11 'n d , what would have happcnc<l had action been aken • a '"'Y""' d 2- A l · J \ h Kha" ,, A"oiher nn l'r s. :J- or 11111 er R. oft w, ct. lt cannot t ~rev. fore be said under the circunrntanccs of this case that 1"he state of the action of the State Government is cobweb varnish Madhya Prnd"" or that,it is merely a coluumble order or a de\·ice to &01 ""' aYoid the requirements of suh-s. 5 of s. 57.
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l t was then contended that the notification en111neratcs acts of the municipality some of which n.re instances of mismanagement and others of abue of power. It cannot be said that the allp,gations in regard t-0 the spending of m,oney "'ithout a proYision in the budget or showing partiality in the matter of appointment and dismissal or in the matter of issuing of transport p:isses or di;;tributinn of municipal 11i:1n11rc0 or t.he charge of spending huge amounts on rnaintcn: ance of roads and drninage without improving their condition are nothing short of gross mismanagement or abuse of power and cannot. fall under the charge of incompetency in the performance of <lut.ici or in the , exercise of powers by the municipality. Assuming • that ing wrog t.hev ctm in t.hc onh· 0 State be instances Gornrnment 'of abuse, cnumcmtirfg there is noth-all the misdeeds and wrongs d(ne bv the committee am!• then saying that it prefors to tale action under s. 53-A •· as it has done a.11d not under s. 57. If the acts and omissions are 0instances of abuse the State Go\·ernment could if it thought fit, take action under s. 57. If •• having two courses open to it the State Government took the lesser of the two actions, it.s discretion cannot bo questioned, in the absence of proof of bad faith. It cannpt therefore be said that t.he State GO\·ernment lui.s only prnlPnded t-0 act un<ll'r s. 53-A but in rPality it: was acti11g under s. 57 of the Act.
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lt was lastlv contended that t.he St<>te Government when it a.els t;nder s. 53-A has a.duty to act j1idicially and the rules f natural justice required tha.t the • appell:ints should have been gi\·c11 an opportunity to • show cause against act.ion being taken under that section. 1\s said above under s. 9 of the Act the 1-itttte Gove1:nmef!t Li"as, oti the ground of unsuitability, t.he 1"""'r to withdra11· from the municipality an~ of the •
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S.C.R. .SUPREME COURT REPORTS 1483 . . . .
• • powers confured under the, Act either wholly or partially·and under s. 25-A it has the power of appoint- Sh . R d •, mg a · Ch' ie f' E xecutive ' Offi cer, 'f I 't IS ' necessary or · e f th Khare " & a ""yam Another general improvement in the administration of the v. municipality and exactly the same consequences The State of wo11ld follow as they do when an Executive Officer is Madhya Prnd"h appointed under s. 53-A. There are also sections 52, & Others 53, 54, 55 and 56 which place regulatory coutrol in J(a;;;-; J. certain Government agencies. If action taken under those provisions is an exercise of executive functions of the State Government can it be said that the exercise of similar power under s. p3-A and for similar object i.e. improving the general administration in case of incompetency of the municipality will change i'n administrative decision into a judicial or quasijudicial decision ? The real test to distinguish between a quasi-judicial and an administrative act of an authority is based on the duty of that authority having power to determine a question, to act judicially. '. , Lord Hewa.rt C. J. in R. v. Legislative Committee of the • Church Assembly (1 ) sai<j. : "In order that a body may satisfy the required test it is not enough that it.should have legal authority • te determine question affecting the rights of su hjects; there must be superadded to that characteristic the further characteristic that the body hall the duty to act judicially".
And thus the authority taking a decision should not merely determine a question it should also be under a duty t~ act judicially. It is that essential characteristic which the State Government lacks in the present Oj,Se.. When it considers something likely to result from' its action it is merely taking executive action and not determining a question or acting judicially. This dictum of Lord Hewart was quoted with approval by Das J. (as he then wa&.; in Kusaldas {ldvani's case('). He said, "Therefore, in considering whetlier a particular statutory authority is a quasi-judicial body or a mere administrative body it has to be ascertained whether the statu"tory authority has the duty t11. act judicially". There' is tto~indication (1) [1928] r !{.B. 411, 415. {2) [195oj S.C.R. 621, 720. • • • • • . .. • • •
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1484
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~ i958 in the statute itself t.hal tlw Stat~ .Gun,rn1rnn1t. Sh Tl•R-l 0' t''>J'IHJ/. has a <lut.v J to act 1'udieialh· J whe11 it. n,plloints [' au I<hm 6 .:lnot/.r. Executive Officer under~- 53-A nor has :tny procedure " liecn pwscribcrl a<; to the m11nncr in which the power The >101, of un<lcr thi,; sect.ion is to be exercised bv the State 1 \fadiiya l'radesli (~ovcrMrnent \Vbich tna.l gj\·e. a.11 intliefition a. to 6· Other.s nature o · 1. I t 1c < I eci,;1011 · t11ken. The municipal committe1' is a crel\l.ion of the Act and therefore it h11R all t lw power,; and is subject to 111l the cont.rob under the Act which arc to be exercised as pro,ided tlwrcunder.
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The Act giyes dilf"rPnt morlcs of reg11lat11ry 1·011trol to the State Go,·crnment and the power,; of the St.ate GoYernmcnt extend from rnvi:;ion of the actio11s, orders and resolutions of the municip:d committl'o to t.h\l exclusion of local :•rcas from its jurisdiction, t11king away power:; given unclm· tho Act, the appointment of Executive Oflicern, suspension and supersession of m1111icipalitics. In certain sections e.g. s. ;)7 <lc:ding with this rcgul:Llory control the statute rc•1uires that, • · t.he e:<pla1mtion of the commillf,e he r111lcd for before • a particnla,r action is bi.ken by the Stak Go,·ernmcnt :rncl in others no ouch rcquLremcnl is prcscribc1l. 'That. is a clear indic11tion of the intention of tlw lel.!isl:it11Pcl that 11n opportunity wa.s to be giYtlll in one ca,;c ,. :rnd . not in t.lrn ot)lc'r. In ot.her words a kind of ljlIijndicia.l approad1 was intended in ono case and aclniinislr:tti "C in thP other. The Privv Council in Xal.:kmla Ali's crrne (') (a case under a Ce.\· Ion Regulat.ion) said :
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"But, 1 hat. l]HHt, no procedure is hid down ·by the , rcgu.!ation for securing that the licPnsc holder i~ Lo have notice of the Controller's intent.ion to re,·ok·•;, the lieensr~. or that there must. be any en1j11iry, pu hlic or • pri vale, before the Controller :tct s " . fn Admni's cas~(') Fazl Ali J. .irnmining the clnty of • anthoritis t'o act. judicially Raid "t p. 641: • • "Tlwrc are no ex pre"" words in R. :~ or any other eetion, tu impose such a duty (to c!Ptermine judicially); nor i ther~ ai1ything to (ompel us to hold that suc:li 11 rluty i8 i11113li'bd ".. • • • (I) 1951] A.C. 66, i· .:) ~1950] ~.C.H. r.'121 • ••. • •
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S.C.R. .SUPREME COURT REPORTS 1485 • • • •
The learneci Judge to~k ipto consideration the fact that ertain sections specifically provided an enquiry Sh·' - . ~ ~ and others did not, and obseved: Kha"
r958 /. Sh·' - • . ~ ~ Radeshyam Kha" & Anothn v.
" ......... the fact remains that there is nothing in the Ordinance to suggest that .the public purpose is to be determined in a judicial way ". Therefore where in a statute like the present one some sections prescdbe the calling for the explanation of the municipality before any action is taken by the Staw Government and others do not, it is an indication of the intention of the legislature. to exclude. the application of principles of audi q,lteram partem in the latter case.
The State of Madhya Pmdesh &- Others Kapu. • J.
The section (s. 53-A) has to be read as one whole and ,pot in compartments. The relevant words are: ' "If the committee is not competent to perform the duties imposed upon it ......... and the State considers that a general improvement in the administration of the municipality is likely to be secured by ............ "
• The latter portion i. e. "the State Government con• siders ...... is likely to be seemed" indic<J,tes a purely subjetive determination and taking a policy decision. The use of the words "considers" and "is like.Iv" • 'rMate to a subjective and not an objective procss. " To consider " means to think, to contemplate mentally, to regard and "likely " means prl'.loobly ; such as might well happen; apparently suitable for. These words cannot have any reference to objectivity but suggest subjectiveness. The opening words of the section," If the committee is not competent ...... " cannot be read separately from the latter part. When =d~r s. 53-A the State Government appointl5 an Exe<Jutive Officer which act it considers likely to improve the general administration of the municipality it does not take two decisions, one objective as to the incompetency of the administration of.the municipality and ie other subjective as to the action likely to improve the administration. The decision is only one. The State Government is the sole judge of both matters, namely, of the incol)lpeteny anp t,he remedy needed .• Both are parts of one mtegrat!id whole a decision. taken 'in the exercise of the administratiTe'
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Sl;PREME COU~T R.~PORTS • , [l!J5!J].. •
148G
. . • 1 958 functions of the State Guvm-r1ment and tt<lmits of no ' Sh ri.•R-d a 1:5 1 1yani elemc;1t. c1f juJici;i] l'rorcss. ~ , ( Vide The Proi·inc.e . o' 'J Khare & A,, 01 ,,., Bombay v. A usa/das Atlmm (') (pc'r Kama ( '. J. at v. p. 633.u3!i) <ind per Das .J. (as he then "·as) at p. 703). Th• St•tc of The State Government. must nccessarih· be the sole Madhya Pia:lesh juf the stn.te of incompct.<'ncy c,f the' municiJt:flity <>- Othm otherwise it woulcl not be able to ta kc its udminist.rn. K.;;;::: J. ti,·e decision as to the action \rhieh it ;;hould take and which it considers is likely to improve the administratinn. Bot.h t ht> decisions as to the incompeteny of the municipality 11,ml thr exercise of the executive function as tn the, act.ion to be taken thereon are matters of like clmraet"r i.e. administrative matters. (!( usaldas Admni's case at p. 6:l:I). lf that we, re' not sot.hen on the question of incompetency the Stat,,. Government procedure will be analogous to a judicial prneess suhject to re\·icw of Courts arnl the act ion it will take will be an administrative decision not subjerL Lo ju1lici;d reyicw which will not ouly lead to inconvPnicnce but to confusi•m. The Pr•vy Council , poinw<l out in Vcnkalarau '" Screlary of State(') tha,t • " incoll\·eniPncc is uut a final consideration in a matter of construction, but it is at, least worthy of eousideration, ancl it can lu1rdly be doubted that the suggcstL"lf • proce<lurn of control by the CourlH over Covcrnmem in the llltl:lt.d<:!lailed work of managing its Hcrvices w11uld ca11se not mer!'h· inconvenience but confusion". The very fact that ,;n order under s. 53._.\ is in the •• uaturc of >Lll emergency action to protect the iuterests of th<! mu.' payer and has ;1 limit<'d duration ,not ex. eceding 18 months also neg<ttives the order being founded cm an objective determination as to the iu• r.ompeteney of the committee. uch a const.rnhion will defeat the very purpose of'· 53-A. Further act.ion • under s. fi7 is of a permanent nature :111d has accordiwdv been expresslr made· 8ul:rject to an explanation bv"' the municipal cmmittee. The absPnce of t1uch a • p;·ovision from s. 53-A cleal'ly shows tluit the legisla• tme did not intend that there should be un elaborate heari.ng but intended tha L the Sl!lte should under s. 5:-A 1.;Lke' a s'wift alministrative decision. The • • • 1·,1 \103&1 LR u4 1+ 55.
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S.C.H. • •SUPREME CQURT HEPOR~S 1487
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correct posi~on, as indicated above, is that the decision df the State Government as to incompetency and the decision as to the action• to be taken were really one decision, one integrated whole-a subjective decision of the State Government that it considered that by the appointment of an executive officer a ~eneral improvement in the hitherto general administration was likely to be secured. Merely because the fact of incompetency is a preliminary step to the exercise of an a.dministrative function by the State Government, under s. 53-A it is not necessary that the fact is to be determined judicially. Where the exercise of the administrative fonctions of an Executive authority like the State Government are subject to a decision as ;_o the existence of a fact, there is no duty cast on the State Government to act judicially. Both the decision as to the fact and as to the action to be taken are really one and not two decisions, the determination being for the purpose of taking an appropriate admi- < • nistrative decision. As has been said above it is one
Shri Radeshyam Khare &- Another v. The State of Madhya Pradesh & Others
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• integrated whole and oonnot be separated into parts with ~ifferent legal qualities. This was the view of Kania C. J. in the Provinoe of Bombay v. Kusaldas
• °Advan·i (1) where it was observed at p. 633:
" 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 objeJ]tive matter as a preliminary step to the exer.r cise of a power conferred on it, the determination of tlii.e objective fact and the exercise of the exem1tive powJr based thereon are alike matters of au administrative character".
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Faz! Ali J. in that case said at p. 642 :
"For prompt action:the executive a,.uthorities have often to take quick decisions and it will he going too far to say that in doing so they are discharging any judicial or quasi-judicial functions. The word ' decision ' in common parlance js mor'< or l~s;; a na:tural (3) [1o950] S.C.I!. 621. ..
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1488 SBPRE.ME COU~T REl'Ol{TS • • [l!J.59] :'°' • •
• '958 expression und it l»ln be used with rcfere1e to purely Siui u.u!esiiya,, 1 (>:XPC:utivP as '\ell a.s juicia-l orders. The n1e1'e faCt Kliaoc 0 . . 1 ,, 01 h,, that it11 executive uuthority !ms to decide somet.hing v. 1!01's not rn"ke the decision judicial. It is the rnunner Tlie State of in which the decision has to he arri>cd at which Madhya l'rnd«h makes• the difference, arnl lht' real test is : ls t.!iere & Others d JI ._ u11y duty l<i act ju icia y ~ " Iiap"' J. The l:inguage of sub-section ( 1) of s. 53-A indicates that the question whether the .Stale Government considers th:Lt the action takeu under t-he section •i. e., the appointment of an Executive Ofiicer is likely to secure an impro,·ement in the gt·neral administration of the municipality is one of expediency, opinion and policy, matt.er:; which a.r<' peculiarly for the State Governnwnt to decide aud of which, always assumi11,s that it is actiug bonot fide, it is the sole judge. :\o objective test is possible. Thcrdore the 11sc of these words " considers " and " is likely " nega.ti vcs any objective approa.r:h or judicial or quasi-judicial process. •. The State Governuwnt is not essentially :J! judicial or. a c1uasi-j11dicial body but itscsntial function is admi• niHtrat.ive. The various proYisions of the Act. show that it takes its d<,cisions a.I! t.o the mode and extent of control of municipalities in pursuance of it;; opinic11;. a.nd policy awl on grounds of expediency. In arriving at. itos C!ecision it at no sllLgc ha,; any form of lis or quasi-lis before it. nor c:an it be said that then' •• are two parties before iL The i\Iunieipal Committee and itself cannot be termed quasi. litigants or parties to" proposition and oppositio11. It is not bpund to take action un<l"r s. 53.A or anv (Jtlier section of the Act: It. ha.s to consider the c1uestion from t.he poi .. t. of ,.i<'w of policy and expediency and the exigencies of the ease which shows that it is not under a dutv a.t • any stage lo ad judicially to determine a question . This further H1q;ports t.lw viC<l that a correct inter• pretation of the words " considers" and " is li,<ely to • he secured" i11dic>Ltes a. subjective decision :rnd thce • words m:1ke the order of the State (;oYcrnnwnt administmtive and not_juclicia.1 or 'JlH\Hi-judicial. The argtiment t.hat the order is quasi-judicial 'JJecause it ·affects t.he rights of • t.he ~~unicipal • • • • • •• .. • • • •
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S.C.R. • •SUPREME COURT REPORTS 1489
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Committee P.;; ~acuous becoose all that the order com- 1958 "': plained of does is that it restricts the exercise of . -• cer am powers y t. · b th e munwJlla · · 1 omm1 •tt ee · an d ves s t Kha" Sh>i Radeshyam & Another some powers in. another authonty contemplated by v. the statute. Besides every decision of the Executive The State of genrally affects the rights of one citizen or ooother. Madhya Pradesh In Advani's case (1) Kania C. J. said at page 632: & Others
1958 "':
& Others Kapu'. ___.,1 ·
" ........... .it is broadly stated that when the fact has to be determined by an objective test and when that deci~ion affects rights of some one, the decision or act is quasi-judicial. This last statement overlooks the aspect that every decision of the t>Xecutive generally is a decision of fact and in most cases affects the rights of some one or the other."
• But it was contended that in its order the State Government has to state reasons for taking action under s. 53-A. In a democratic system of government there is always the other party, the electors and citizens, who must know why the State Government
• takes one i:mrticular action rather than another. Be• sides the mere requirement of giving reasons would not change what was an administrative body into a judicial body or an admjnistrative decision into a .Jddicial or quasi-judicial determination.
The following passage from Halsbury's Laws of England, Vol. II, p. 56 (3rd Edition) a!JtJy states the law and may usefully be quoted:
"If, on the other hand, an administrative body m arriving at its decision has before it at no stage any form •Jf lis and throughout has to consider the question from the point of view of policy and expedien~y, it cannot be said that it is under a duty at.any time'to act judicially ". ·
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See also R. v. Manchester Legal Aid Committee (2 ).
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In B. Johnson & Co. (Builders) Ltd. v. Minister of Health(') it was also h4ld that the Mini,ster was entitled to infd'rm his mind by informal machinery of an enquiry and merely because in order to inform his mind the enquiry had to be held it could not be said that the Minister was not performing ,his i:i.d!l;)inistPative
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1490 SGPREME COVUT ThEPORTS • • [1959] • • :" 1958 function. At p. 405 Cohen L. J. went further and ..._ said: Kh Slni art /ladt<l•)'am_ ._~ , _A_ **_no_** ,. **_11cr_** " H · d , . is uoy • as rPgarc s 1111ormatrnn j · >. r • recen·e ' d b l ' .... v 11m v. in his executive capacity is to use that informal ion The Slate of fairly 1Lnd impartially. This may involve that he Madhya P.ad••" should give an opportunity to the authority or to"the &. Oihm object.or, as the case m1Ly b", of defiling with some - allegation in a communicMion he has recei\·cd before Kap10' J. the quasi-!is startl'd, but, if he fails to do so, he is responsible only to Parliamcmt for the discharge of his executive duties, and cannot be made rcsponoiLle in these courts." • Appell1Lnts' counsel relied on some English cases, the first of which was Cooper '. Wands1corth Board of Works(') where Byles ,J. said !Lt p. 420: ,• " ...... although there arc no positive words in a statute requiring that the party shall Le heard, yet the justice of the common law will supply the omission of the legislature." This view is not in accord with the moder!~ exposition • • of the law in Nakkuda Ali'.~ case (') or Franklin's case ('). Lord Shaw in Arlidye's case (') n,ected . the concept of natural justl'r:e in the following langy• • age: " ............ in,so far as it attempts lo reflect the old jus naturale tt is a. confused and uuwarrant<xl trnnsfor into the et.hical sphere of a term employed for •• other distiuctions; and, in so far it is rnsortecl lo for other purpoHes, it is vacuous." ln R. '" Jlrmchester Legal Aid Committe!!{') th<' • court obs('n·ed : "The true view, as it seems to us, is that thcl11Cv • to act j11dic.ially may arise in widely different circun;. stances which it would Le impossible, and, indeed, • inadvisable, to attempt to dcfinl' exhaustively. Where the decisio11 is hat of a court then, uuless, as. in the • case, for instance, of .Justices granting excise lim•nces, • • it is acting in a purely mini8lerial capacity, it is • clearly under a duty t-0 a,ct judicially. Wlwu, on the • (1) [1863]-i:4..B. (j.ti.) tSo, f43 E.R. 414, 420. (2) [1951T A.C. 6'1, 7$. (31 [1<14.SJ **:.4_** 8i. • ... (4) [1915] A.C.· 120, 13tl. • (5} f1952J 2 Q.D. ·P~· 43!. • • •• • •• • • • •
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S.C.R. • •SUPREME CQURT REPORi'S 1491 • • other handthe decision i that of an administrative ~ • body' and is actuated in whole or in part by ques- Sh . R d shyam tions of policy, the duty to act judicially may arise in K;:,,; ~nothe> the course of arriving at that decision." v. But, at page 431 it was said : The State of
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The State of Madhya Pradesh & Others ___. l{apur J.
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"If, on the other hand, an admmistrative body m arriving at its decision at no stage has before it any form of !is and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially." ,
That was a case of a debtor who applied for and obtained a certificate of legal aid under the Legal .Aid and Advice Act, 1949, in connection with his claim 0for damages against a company but was thereafter adjudicated bankrupt and at his instance the certificate was cancelled as his claim vested in the trustee in bankruptcy. The trustee then applied for and " , obtained ii> certificate of legal aid. The National Assistance Board and the local Committee considered • only the financial circumstances of • the bankrupt and not M the trustee whose. disposa.ble income was in 0 1>xcess of the lowest limit entitling a certificate of legal • aid. The debtor company applied for an order of certiorari to quash the certificate alleging hat the Committee had exceeded its jurisdiction. Under the Legal Aid (General) Regulation, 1950, reg. 4(1), it was a condition precedent to the grant of a certificate that there should have been a determination by the National Assistance Board of the disposable income of the trustee who was personally liable vis a vis his oppCillent. !t v3as held that the Board having legal authority to determine questions affecting rights of subjects had a duty to act judicially and that it had exceeded its jurisdiction. The case ;has some distinguishing features, wantg in the case before us. Tne Ertatute there prescribed the limit of income of applicant for a certificate of legal aid and the regulations required the determination by the .National Assistance Bord of of } the disfosable income and disposable cli.pitii.J of such to such t!J. applica_nt whroh was a condition' prcedent cli.pitii.J to such t!J. t!J.~ • • • • .. • •
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14!!2 SUPHEME couwr HF,PORTS •• [HJ.5!l]
• • • ' r95B grant, of the certificate. CJ.:arly without •such det.cr- s'. .. minatio11 the graut of the certificate was not wilhi~1 the "" llade,hy""' . • 1 · . f h I' <l I I . I _liha>r .<- """"" Jlll'IS( 1ct10n o t e .>oar ftm t 1crcforc tie Board ha<l v tn dctermine a question and was required to act j11<li- 1he State of ci<llly within the rule laid down in the majority judg- _Madhy• J>,ade•'• ment i11 Kusaldas Advani's case ('). The Board uni.lcr '" Othm t.hat statute waR bound to gi,·c aid, if certain condi..._ lions were fulfilled and was quit<) unconeenwd with I<apur J. · f ]' 'l'h I <l quc,t10ns o po icy. " ey 1a,·e to deci e the m<1tter solely on the factR of a pa,rtieular case, solely 011·thc e\·idence before them an<l apart from any ext.raucous consid(•rations. Jn ot.her wordo, they must n,ct jndicifllly, not judiciously."
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In Gabel v. Child (') the words "Whenever it shall appeflr to the satisfaction oft.he Bishop" were held.• to imply a duty lo act judicially and thereforn the principles of 1mtural justice a,ppliecl. This rule is inconsistent with t.he decision of the l'rin· Council in Nakkuda Ali's ca.e (')or the deciRion of the House of Lor<b in Franklin's case (') or the interprctaion placed • upon the word "satisfied" in some of the later • English ca;;es, Robin80n , .. .1Jinio1trr of Town and Country /'lanning (')and B .• Johnson cf• Go. (Buifders) Ltd. v. ;l!ini.fer of Health('). This Court in Ku.salda· • Adi-ani's case(') fl!so held this word to indicate a, snhjecti'C approacfi. See 1tl80 Wij(;y8eha '· Festinf! (') where the words of the Statute were" wheneYer it shall •• appPttl' to the (;ovcmor ...... ". See also R. '. Metro710/ifan Police Commio1sioner (') where also the words were" ......... if he is so satisfied ......... "and it was held that these words <lid not imply " a judge or a quasi-judge". The deci:<ion in these cases la:tin1' down th<' rnle of application of natural justice must be <'<mfincd to their own facts and the language of the • particular statute they int.erprctecl. No general rnle (•a,n be deduce<! tl1cr<'from nor c·an they be applied to • other stat.uteJ and other circumstances. •
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• The c:tse before m; is not one where 110 enljuiry has • (1) f1950] S.C-H. 621, ;20 (2) f832]2Cr.&Jr.558. 37 H.l.761. (3) :1951] l~.:t. '"1.i. 78. • • (4) [1948J A.C. i• ·) [1947] K.B. 7oi. (6) [1947] 2 A.£.R .. ~95.• {i) [1919} A.C. 54r,. • (8) [r953] 2 A.E.H.. ~17. • • • • ••
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S.C.It. , ·SUPRE~E CQURT REPOR;rs 1493 " . .
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been held. •There was an .enquiry against the appel- z958 !ants 'in regard to specific allegations made against ---. them and a ter f h earing . t h em• a report was ma d b e Y a Kha" Shri Radeshyam & Another Deputy Collector which was forwarded to the State v. Government before it took action. One Dhurmal Daga The State of marle a number of allegations Annexures l•and II .Wadhya Prad"h and those allegations were supported by others like & Others Dear & Co., Poonam Chand Somraj, Dhamtari Traders __. and Shilaram and the affidavit of the State Govern- Kapur·1 · meat in the High Court shows that the notice was issued to both the appellants to reply to the allegations. Radheshyam appellant No. 1 appeared before the Enquiry Officer and gave a long explanation denying the allegations made by Dhurmal Daga and others. J.t was after this that the Enquiry Officer made his report which was sent ~o the State Government and it took action which it considered apposite and that is the action com plained of.
z958 •
But it was submitted that no notice was given to ' • the appell11nts as to the nature of the complaint • against them and the various charges which have been enumerated in the notification were never specifically'brought to their noti,ce and they were not called • 'i.rpon to show cause why action should not be taken under s. 53-A. In the first place the words of the section as explained above do not contemplate any such notice and the argument based on the opening words of the section that the municipality was guilty of incompetence was an objective fact cannot be accept¥d. It cannot be said in this case that in point .<_ of fact the appellants did not know what the complaint against them was or that they had no opportunity of giving their explanation in regard to the charges. All the acts which are enumerated in the notification are contained in the various allegations which were made against the appellants by Dhurmal and others. The appellants put a _fong'_ explanation giving their version of the facts contained in the complaint and the Enquiry Officer sent his report after hearing the appellants and on the considerati;rn of _> this report the State Gov~rnment pa'SseQ.. its order under .El. 53-A. • The High Court after go,ing through • • • • .. ,•
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1494 SlJPREME COUlT I{.E_PORTS •• [1959] ' , '958 the record of the enquiry 1\ia;; satisfied . . as•to the pro. sh,; 1indahymn prity and legality of the enquiry and that portilln of I<hu" ,s. Auoth" its Judgment has been quuted abo'e, v. Then it was submitted that the enquiry hy :llr. The State of Hana was unauthorised bv t.hc State Government. and },fadhya Pradesh ... • & Othus was n" suhsr.itute for the enquiry required by the statute. But the statute has prescribed no procedure • KapHr j. for enquiries under s. 53-A even if it were to be said that the section contemplates <.1.n enquiry. And it i.-; no defect affecting the final decision of the State Government whether the en<piiry origiuates in th<· manner it did "r the.State Government ordered it. lu the;;e circumstances the third point rnis"d by the appellants cannot he sustained and the sulimission. of the appell:u1ts is without substance. The appeal thcrn.• fore fails and is dismissed with costs r.hroughout. **_Subbn l?no_** _]._ St:BBA H.Ao J.-1 have had the ad'antage of re.iding the judgmi>nt prepared by my Lord. tlw Ch id Justice .ind my learned brot.her, lpm .J. I , regret my inability to agree with them in their vi""'" • on the follwi11g tw" question;: (I) Whether 11ndel' s. ;i3-A of the C. P. & Berar Municipalities Act (A"ct 11 of 1922), hereinafter called 'tlw Act., the Uov0mme1l(' performs a judicial act; and (2) whether in fact the • Go\·ernmcnt !'=plied with the principles CJf natural justice in making th<' Order dated Xo\·emhcr 8, 1956, under s. 53-A of the Act .. •• As the facts have been folly 11:1rrntcd by my Lord, the Chief .Jnstic<,, it would sutlicc ift.he facts rle\·ant to the aforesaid questions are briefly stated here. The second appellant is the Municip:tl Commit.t<,e, Dhani.• tn.ri, nnd t.Iw first appellant is its President. He ms elected as President on July 10, l!l56, and took charge • of his offiec on .July 27, 1956. On August 8, 1956, one Dhurmal Daga went on a hpnger strike for the redress of hi grievances against t.he appellants.• The • • Collector, Haipur, intervened and persuaded him tu • • break his fast and ordered <.1.n inquiry into the charg<' <>f mladministration. The Deput': Collector, who madt• th<!}111J.°uiry," giwe i10tiee of the said inuiry to the Secrctarv tu tr1e Committee and thc'first a11pcllant • • • . • •• • .. • • • •
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S.C.R. , UPRE'lE COlJRT REPOR'CS 1495
filed a written reply on Se!'tember 7, 1956, and perso- 1 958 • nally ttprieared at the inquiry. Presumably, the result . - ~ . . O Shrt Radesr1yam of the mqmry was forwarded to the Government. n Khare c; Anoth" November 18, 1957, the Government issued an Order, v. under s. 53-A of the Act, enumerating fifteen charges The state of invoiving acts of non-feasance, misfeasance,• gross Madhya Prndesh negligence aud fraud, and stating that, by reason of "" Othm the said acts, it appeared to the Government that the Subba Ra: J. Committee had proved itself incompetent to perform the duties imposed on it by or under the said Act. The order further proceeded to state that the Government considered tha.t a general improvelillent in the administration of the Municipality wa.s likely to be secured by appointing a servant of the Government as the ExecuJ<ive Officer of the Committee. The said Order also appointed Shri B. P. Jain as Executive Officer and entrusted to him most of the important powers and duties of the Committee and the President. Before the drastic action was taken, no opportunity was given •either to tht> President or to the Committee to explain their conduct in regard to any one of the charges. The previous inquiry made by the Deputy Collector was to attempt to persuade Dhurmal Daga, to give up his fast .an.d that inquiry by the Deputy Collector could not, in any sense of the term, be regarded as an inquiry for taking action under s. 53-A of the Act: .;Records also do not disclose whether that inquiry related to the same charges which were the foundation for the .. Government taking action under the Act. I, therefore, proceed, on the footing that the Government acted under s. 53-A of the Act without giving any opportnnity tG. the appellants to explain their conduct in regard to tli.e grave charges levelled against them, on the • basis of which they were held to be incompetent within the meaning of s. 53-A of the Act. • The material part of;s. 53-A reads: " If a committee is not competent' to perform the • duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in • • force and the State Government considers that a general ,impro,:ement m the administr1it~ of the 190 • • • • • • • •• • . • ••..
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• • r9.s8 municipality is likely to b@secured by th<appoi11tment • of a scrnrnt of the Government as the exccutin! officer Shn Radc;hyam f' h . I "' l' I K IHlTt• <7 , A no 11,,. 1otecom1111ttee,t.ie"tak.overnmentma', •JV ..an v. Order st!Lting the n•asons therefor published in the The s1a1e of Gazette, appoint such servant as the executive officer .ltadhya l'rndd of t-hcommittee fur such period not exceedingeigl\teen 6 · Othm months as may be specified in such onkr." ' - The learned AdnJcate-(;encral, a1ipearinir for the S111:Ua Rao ]. .._,
The learned AdnJcate-(;encral, a1ipearinir for the State, contended broadly that under thi,; section .._, the Go'ernment: performs only an adminigtratil'e agt hy appointing !Lll Executi\·c Officer for a short pPriod and therefore no opport.rnity need be given to the affected parties before action is taken thereunder. :\Ir. M. K. Nam biar. counsel for the appellants, argued that under this section the Gtl\·ernment is empowered .t.r> dPprive t.he :-1 unicipal Commit.tee, duly elected und<,r t.he Act, of its powers, though for eighteen months, on the basis of its incompetency :rnd it is against all principles of natural justice to stigmatize such a body as incompett<nt without gidng it an opl'ortunity tr• ·' explain its conduct. He would say that whether the Committee is competent or not is an objecti1;c and jurisdiction:il fact to be <ieided judicially by the Stall.' Col'ermnent and, therefore, the act of the Uo1·ernmcit. is a judicial act, whi0h can only be discharged by following the principles of natural justice.
Before cunsidering the 'alidity of the argunwnts based upon the provisions of the sect-ion, it wo1ild be •• convenient at thi8 stage to notice briefly the distinction bP-lween a judieial and an administrati1·e act Lnd the criria laid down by decisions for ascertaining whether • a particular ad is a judicial act or an administratwc one. The said crit.cria haYe been laid down with clarit.Y by Lord ,Justi<·c Atkin in Re.r 1·. '1.'he Electricity Com- • missioners ('),elaborated by Lord ,Justice Scrutton in Re.i· '. London County Councilt') and authoritatively restated in Province of Bombay v. Kusaldas S. Ad,.mii (') . • • Th.- aforesaid decisions lay clown the following condi• • tions to he com plied "·ith : (I) The body of persons must, hal'e. legal authority; (2) the authority should . . (1) :1924~• h~- B. 171. t2) (1931~ 2 K. 0. ·.z'e.') . • • 0 •• (3) l1950J S.C.R. 621. • • • • • • • • • •• • • • •
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• • . • ' be given to t!etermine quest.ions affecting the rights of i95S • subjects; and (3) they should have a duty to act h . - h• JU . d' wrn . ]] y. S " o lar th ere IS . na d' !SpU t e. Th e ques t' ron Khare S rillades 6 . Another yam raised in this case is what do the words" a duty to v. act judicially" mean. If the statute in express terms The State of says"that the decision should be arrived at judicially, Madhya Pradesh , then it is an obvious case. If it does not expressly say "'Others so, can the intention of the Legislature be gathered or Subba 11~: J. implied from the terms of the statute? If it can be so gathlilred, what are the guiding factors for implying such a duty on the part of a tribunal or authority ? In this context a brief discussion of s~me of the relevant cases will be helpful. This Court, as I have already stated, restated the law laying down the criteria for ~certaining whether an act is a judicial act or not in Kusaldas's case (1). There the question was whether the Provincial Government was acting judicially in making the order of requisition ·under s. 3 of the Bombay Land Requisition Ordinance (Born. Qrdinance ' • V of 194 7). • The material part of the section under • discussion read as follow$:
"If in the opinion of the Provincial Government it is n"ecessary or expedient to do so, the Provincial .Gl'lvernment may, by order in writing requisition any land for any public purpose."
To ascertain the nature of the act of tl:re .Government under that section, this Court reviewed the law on the subject and held, by a majority, that on a proper construction of s. 3 of the Ordinance, the decision of the Bomba;ii Government that the property was required • for a public purpose was not a judicial or a quasijuilic\a] decision but an administrative act and• the Bombay High Court had, therefore, no jurisdiction to issue a writ of Certiorari in respect of the order of requisition. Das J. as he then was, after considering the law on the subject :summarized the principles at page 7!5 thus : • '
"(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made 'py one party irnder. the 1 statute \j;hich claim is opposed by anothel' 0 rty and (1) [1i50] S.C.R 62r. •
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1498
Sl}PREME COUllT 1u;ronTS •• [1959
• 0 • 1958 to detenninC' the n•spccti.-c r~ights of tl1" contesting • pa,rtic8 who arc opposed to each •>ther, tlwre is a /.is Is:•• \ntHt~adeAshya 0- rill 1 ntt ~' and prima Jade and in , ~he nbsencc of anvthin ,, 0" in the v. statute to the contrary rt is the duty of the nuthority The Staie o! to act judicin,Jly and the decision of the aut.hority is a Madhya l'•ad"h quasi-iudicial act ; and • <> 011om (ii) that if a statutory aut.hority has power to do • any act which will prejudicially affect the subject, Subb<i /lo'lo ] . then, although there are not. two parries apart from t.hc authority and the cont{'St is bet\ <'<'n the authorit ~: proposing to do the act ancl th" subject opposing it, the final determination ,of the authority will yet be acpiasijudicial act provided the authority is rerp1ircd by the statute to ar:t judicially."
The propositions so stated appear to me to he urwxcetltional. But the further difficulty is whether the duty to act judicially should be expressly so stated in tl;e statute or whether it can be gathered or implied from the pro\·isions of the statute. I do not think that Das J. as he thm1 was, meant to lay down a8oa condition, that the duty to act judic:i:lly should be expressly stated in the statute, for rarclv anv statute would describe the character of <ji.<posi;l of a particulai· proceeding. lf it was intended to inoiot upon an expr<l!!. condition in the statute, t.1w· learned Judge would not h:we scrutiqizerl the pmvi,ions of the Ordinance t.o asecrlain whether the order thereunder was intcnckd to be a judicial act or not. A useful discussion bringing •• out in bold relief the difference between a judicial and an administrative act is found in JI. v. Manchester Legal Aid Committee('). There a debtor applied t-0 a loci! aid committ.et', 8Ct np under the Legal Aid apd • Advice Act, 1949, for a certificate for lc'gal ad to pursue a claim for alleged breach of contra.et. agair,,;t :t • limited company. As he was adjudicated insolvent, the certificate was re\·okcd al<! on application made by his trust.cc, 'it was granted to him :tgain. One of • • the question;; raised was wheth<'r the legal r1id com• mittee in issuing I.ht' certificate was acting judiciall· • and. therefore subject to-an order of ce.rtiomri. The court. hel!f t.liat tlte said liody was under a dt~ty to r1ct • • • . • • • . . . • •
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S.C.R. • SUPREME COURT REPORTS 1499 •
judicially. - Parker J. delivering the judgment of the r95S • Court, summarized the law on the subject at page 428 Shti Rad~shyam thus: Khare & Another
thus: Khare & Another " The true view, as it seems to us, is that the duty v, to act judicially may arise in widely different circum- The state of st:tnces which it would be impossible, and, indeed, Madhya Prade.•h inadvisable, to attempt to define ex austive y. h I "h ,, ere & Others the decision is that of a Court, then, unless, as ' in the subba Rao 1. case, for instance, of justic.es granting excise licences, it i.s acting in a purely ministerial capacity, it is clearly under a duty to act judicially. When, on the other hand, the decision is that pf an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the 0course of arriving at thatdecision. Thus, if,in order ·to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry .........
0 Furthm;, an administrative body in ascertaining facts or law may b,e under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the ~ •0 practice of a court of Ia~ ................... ..
If, on the other hand, an administ.rative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially."
On the basis of the aforesaid principles, the learned .Judge held that the local committee, though an administrative body, was acting judicially in issuing the certificate, as in ascertaining the facts for issuing the certifi0<1te it was quite unconcerned with any question of policy. ; I respectfully agree with the prineiples enunciated by the learneil Ju'dge and they are not in any way inconsistent with the principles laid down by this Court. The law has been neatly summarised in Halsbury's,Laws of England,, Third Editiop, Volume 11, at pages 55 and· 56 and it is as follows : · , "
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1500 SUJ?REME COUR.T RllJ:fORTS • .[1959]
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• • • • r958 "It is- not necessa1\y thal ft should be a.court: -an Sh.. R•dh m administrative body-in ascertaining facts or law may Khare " c;. a " Another ya b e un d er a d uty to act JUcnC!a · .J.: • II y notw1t · · h stan d' mg t h at v. its proceedings have none of the formalities of, and Th• s1a1e 'of are not·in accordance I with the·practice of,. a court of Madhya PradBih law. It. is enough tf it is exercising, after hea-ritlg & Othsrs ·d d J f h ev1 ence, ju icia unctions in the sense that it as to j Subb;;"R.o 1.. decide on ·e'Vi.dence between a proposal and an opposition. A body· may be under a duty, however, to act judicially (and subject to· control by means of these orders) althot!gh there is no form of lis inter partes before it; it is enough.that it should.have to __ determine a question solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations." • "Moreover an administrative body, whose decision· • is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision ........................ If, on the ,.. other hand, an administrative body in arriving at its • ,> decisiou has before it at no stage.any form of lis and throughout has to consider the question from the point of view o:fi policy and.expediency, it. canuo( be said that it is under .a duty at any time to act judi.• • • cially." It is not neces:>il.ty to multiply citations. The concept of a " judicial act", has been eon•• ceived and developed by the English Judges with a view to keep the administrative. tribunitls and authorities within bounds. Unless the said conCJlpt is broadly .and libero,lly interpreted, the object itself will be defeated, that -is, the power of judicial review will. • become innocuoµs and ineffective. The comprehensive phraseology of Art: 226 of the Constitution' supports • rather tha1i negatives the liberal interpretation of that concept. The ar,e;ument that Uie Court shall not • obstruct the ·smooth working of the administr&tive • machinery does not appeal to me, for the simple • • reason that the exercise of the power of judicial review or, tO be more precise, the ~xistence of such power in courts-for .• haTdly one act in thousands come.before ,. oomts-elimina:tes "arbitrary action and enables the . . • . • • •
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administrstive machinr.l' tp function without bias or i958 • as discrrimination. I appre hdhen t em, With , this may background, b e conmse y . 1 the state principles, dh t us: Khare 5 , rirsaesyam . R....d_ a;. Anoth" h Every act of an admini&trative authority is not an y. administrative.or ..m..ipisterial act. The provisions of a n. state of stll.tute may enjqin on a.n administrative authority tQ Madhya P••d"h act administrativ()ly or to act judjcially or to act in <>- " part administratively and in pa·t judicially. If policy Subba Rao J. ·and expediency are the guitlin.g factors in part or i whole throughout the entire process culminating in the final decision, it is an obvious case of administrative act. On the other hand,. i£. the statute expressly imposes a duty on the administrative body to act judicially, it is again a clear case of a judicial act . • Between the. two there are many acts, the determina• • tion of whose character creates .difficult problems for th.e court. There may be cases where at one stage of .the Ji!rocess the said body ms.y have to act judicially and at another stage ministerially. The rule can be • broadly siated thus: The duty to act judicially may • not be expressly conrred but may. be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the .nature of the rights • • oaffected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power confen or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to aot judicially may •• arise in widely different circumstanqes and it is not possible or advisable to lay down a hard and fast rnle or an "inexorable rule of guidance.
• In the present case, s. 53-A of· the Act itself prnvides the-"necessary criteria to answer the qnestion. Before the Government can take action under the section, three preliminary condition& for· the exercise of the power are laid down:: (1) The Committee is not competenA to perform the duties imposed -dn it ; (2) the State Government considers that a general improvement in the administration of the municipality·is likely to be secured by the appoirrj;ment.of >a .sei;vant .of the Government; (3) an orderstating 'the reaso;is therefor. '.].'he fir;t condition depends upon the· d.eterminatiort <1f
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1502 SUPJtEME COUPT HEPOP..TS ' Lltl59]
1 958 an objecti,·c fact, namely, 1<hcthcr the culllmittee is Kh;;, Sh . R ;d';;;,;;, 1 competent is a jurisdictional fact to perform the that dutie3 imposed upon it: confon; juriscliction 011 the lt v. Govrrnnwnt to take further aetio11. The determination n, s1a1, of of this fact is not left to the suhjectirn :mtisfaotio11 of Madhya Prnd"h the Government. Indeed, the difforent phra,culcigy "'° thm trncd in regard to the second condition, nanwly, "the Subba Rao J. 8tn.t.e Gcl"ernment consiclers ", bri11gs out iu bold relief the distinction between the two; while i11 the former an objective fact has to be determined, m the laHer the fact is left to the subjective satisfaction of the Government. If the facts covered by both the conditions Me left t.o the subjective satisfaction of tlw Government, the phraseology would have been different •rncl the clanse would have run thus: "If the GovernmPnt considers that the committee is not competent to perform the duties imposed on it or undcrtak<·n by it by or under this Act or any other enact. ment for t.he time being in force and that ;L general improvement in r.hc administration of the m1.nic::ipality is likely to IH, seeurecl by the ap;ioinlment of a servant of the Gornrr.ment as the Executive Otlicer of the Committee ...... " To accept the argument of the Counsel fur the respondents will be to rewrite the sectiou in'· the abu'·" nHLlllWr which is not permissible. Thne is also a goocl rer.sl>n and a justification for the diffcreuco in the phmscology used in the section. The municipality is u.n elect.eel corporate body and is cntrnsted with re,;ponsiblc statutory fonctions. While it may be. nePcss<1ry, in public interest, to cleprive the committee of some powers for a short period when it is proved to be dc,montrnbly inc:ompetcnt, such a body canuo~ <>asily be relegated to a subordi11atc posit.ion on "the mere will and pleasure of the Go»ernment. The section reconciles the public good and the committee's rights and prestige, by condition'ng the exercise of the power of the Government to depend upon the ohjec. ti,·e determina.tion of tho jurisdictional ffl,Ct. Whaternr ambiguity there may he in the section, it is dispelled hy the thir<l eqndition, nat11ely, that. which enjoinH on the (overIUnnt to gi,·e rea!mns. What is the object M"the Legislature in impo8ing the Sa.id conc!&ion, if • • . . • • •
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the matter ls left to the subjective satisfaction of the z958• Government ? The concept ~f . subjective satisfaction l 5 , 1tri . R d h a es ya1n o t e overnment f h G d oes not mvo ve any attempt to Kha",., Another satisfy the mind or appeal to the good sense of v. another. The working of the mind need not be dis- The state of closed and the validity of the section need not 'depend Madhya Pradesh upon any objective standard. The condition to pass a "'Othl's speaking order is destructive of any idea of invulner- Subba Rao J. ability, for the said condition implies that the order should satisfy the mind of a 'reasonable man.
It is contended that a comparative study of the provisions of ss. 53-A and 57 shows that the Government has to give notice before taking action under s. 57, whereas no such duty is cast upon it under , !!. 53-A and that would indicate the intention of the Legislature that the Government is not expected to act judicially under s. 53-A. There is some force in this contention, but that is not decisive of the question . to be decided in this case. If the provisions of a
• 'particular 'section necessarily imply a duty to act judicially, the mere fad't that there is no express provisim1. to issue a notice to the affected parties cannot (\Pnvert a judicial act into ~n administrative one. Nor
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• does the argument that the order of appointment of an Executive Officer is only for a te;nporary period indicate the administrative character of the act. The finding of incompetency carries a stigma with it and what is more derogatory to the reputation of the members of the committee than to be stigmatized as incompetent to discharge their statutory duties? Would it be reasonable to assume that public men in a demoo1'atc country are allowed to be condemned unheard ? What is material is not the period of the tenure of the executive officer, but the ground for the appointment of the officer, namely, thE;incompetency of the committee. Shor°tlY stated, the psition is this : The committee is comprised of elected representatives of the respective constituencies; they are presumably competent men in whom the electorate has co:qfidence. 'l'he Government has to arrive at the finding of theii; inc!ilpipetenby on the basis of objective facts to be ascertain'!la and to
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1504 SUPRE:lfE CO"L"RT f{EPOitTb' • [1959] •
• • • give reasons for its finding. It is against all canpns of natural justice that a tribunal should arrive at a finrl- Shri R,.d.sil"am · f ~ l · · h · · K 11are' .,. , A 11ot11er ', mg o 1ar-reac • ung J , consequence wit out g1v111g an v. opportumty t-0 explam to the persons who would be Tiu SM, of affoctcI by such a finding. For the aforesaid reas{)ns, Madhya Pradtsh I have no doubt that the section imposes a duty on &-.01!iers the Government to <ict judicially in ascertaining the objective :\nd jmisdictional fact., namely, whether the S11bba Rao ]. committee is incompet<•nt. It is a necessary condition of such a duty to give an opportunity to the committee to exph\in the grave charges levolled against. it. Admittedly, no sucli. opportunity was given to the committee and I cannot agree with the learned Ad,·ocate-Ocnernl that the inquiry by the Deputy Collector at an oarlier st.agfl for a different. purpose Imel in effect' gi,·cn an opportunit.y to the committee. It is not known what were r.he chal'g"s for which that inquiry was held. The record discloses that the inquiry was held by a subordinate ofliccr-thcre is nothng on re. cord to show that thll (;ovcrnment authorised either the Collector or the Deputy tollector t-0 make the inquiry in connection with the fast of Dhurmal Jo)aga. Jn my view, the inquiry caflnof, presumably take thil• place of reasonable opportunity to be given by the • Go,·crnment fo the proposed action under s. 53-A of the Act. In lhe result, it follows that the Order of the 1-1 igh Court should be set aside and that of the Govern•• ment appointing the Executive Officer quashed. I do it accordingly. ORDER l'ER Cu1tIAl1 : This appeal is dismissed wit.It.costs, in this court and the courts below. • Appeal dismissed .
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2 issues framed by the court
Whether the notification appointing an Executive Officer was in substance made under s. 57 rather than s. 53A of the C.P. and Berar Municipalities Act, 1922.
Whether the State Government, acting under s. 53A, was bound by rules of natural justice to hear the committee before holding it incompetent.
Colour shows how this judgement treated each authority
Province of Bombay v. Kusaldas S. AdvaniRelied on
[1950] S.C.R. 621 · Who else cites this
Rex v. Electricity CommissionersReferred
[1924] 1 K.B. 171
Rex v. London County CouncilReferred
[1931] 2 K.B. 215
R. v. Legislative Committee of the Church AssemblyReferred
[1928] 1 K.B. 411
Nakkuda Ali's CaseReferred
[1951] A.C. 66
R. v. Manchester Legal Aid CommitteeApplied
[1952] 2 Q.B. 413
Cooper v. The Wandsworth Board of WorksReferred
[1863] 14 C.B. (N.S.) 180
3 provisions across 2 enactments
Shri Radeshyam Khare
Municipal Committee of Dhamtari
The State of Madhya Pradesh
B. P. Jain (Executive Officer)
S. R. Das
Bhagwati
S. K. Das
L. Kapur
Subba Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
