TaxTMI 
TaxTMI 
1958 (9) TMI 90
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....icipal Committee. The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956, deflected importing within the municipal limits certain cloth without 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 Committee and went on hunger strike for securing the appointment of a committee to enquire into the misconduct of the first appellant. Copies of the leaflets containing the demands and charges which are said to have been widely distributed are annexures I and 11 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 Collector, Raipur, personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would look into the matter. The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the complaints of maladministration of the affairs of the Municipal Committee. By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956, the said N. R. R....
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.... (c) failed to control the President who issued orders in cases in which he had no authority (d) spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e) allowed unconcerned persons to interfere in its working, (f) 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 persons without any charge, similarly distributed 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, (m) spent huge amount on the maintenance of the r....
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.... out of which the present appeal has arisen and on January 11, 1958, obtained an order staying the operation of the order of appointment of the Executive Officer. The writ petition was dismissed on February 20, 1958. There was a Letters Patent Appeal which was dismissed in limine on February 21, 1958. The application for -certificate under Arts. 132 and 133 was refused on March 21, 1958. The present appellants applied for and 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 up 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 in exercise of the power conferred on the State 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 under s. 57 it is ultra vires and bad since the statutory requirements of affording reasonable opportunity to explain has not been complied with; (i....
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.... to the exclusion of, their exercise and performance by the said committee, president, vice-president or secretary. (4) The secretary of the committee shall be subordinate to the executive officer. (5) The executive officer shall have the right to attend all meetings of the committee and any joint committee or sub-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. " " 57. (1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, 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 or abuses its powers to a grave extent, the State Government may,....
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....are, by far, greater in number, obviously constitute abuse of powers and from this circumstance the conclusion is sought to be drawn that in substance and in reality the impugned notification must have been made under s. 57 and that that being so the notification cannot be sustained because of the non-compliance with the provisions of sub-s. (5) of s. 57 which expressly lay down that no order tinder sub-s. (1) or (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. I am not persuaded to uphold this argument. In the first place it has to be remembered that, the sections under consideration only confer certain powers on the State Government but that the latter is not bound to take any action under either of them. In the next place it should be noted that the two sections differ materially in their scope and effect. Under s. 53-A the State Government may only appoint a servant of the Government as the Executive Officer of the committee and may determine, from time to time, which powers and duties and functions of the committee, its president, vice-president or secretary shall be exercised and performed by such officer and indic....
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.... can be taken under both if the committee "is not competent to perform the duties imposed on it. To the extent that the requirements of the two sections overlap the State Government has the option of taking steps under one section or the other according to its own assessment of the exigencies of the situation. The position, therefore, is that if a committee is not competent to perform the duties imposed on it the State Government has to make up its mind as to whether it should take any action all and, if it thinks that action should be taken, then it has further to decide for itself as to which of the two sections it would act under. If the State Government considers that the incompetency does not run to a grave extent and the exigencies of the situation may be adequately met by appointing an Executive Officer for a short period not exceeding 18 months with certain powers to be exercised by him, either in addition to or in exclusion of their exercise by the committee, the president, vice-president or the secretary, the State Government may properly take action under s. 53-A. On the other hand if the State Government considers, having regard to all the circumstances of the case, tha....
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....bused its power might also have been reasonably regarded as incompetent to perform the duties imposed on it That apart, supposing 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 under s. 53-A ? The mere inclusion of the findings of abuse of power in the catalogue of the Committee's misdeeds does not obliterate the findings on incompetency. I see nothing wrong in the State Government telling the committee: " You have been guilty of incompetency as well as of abuse of power; but I shall not, just at this moment, take drastic action of' dissolving you outright, but shall be content to take action and appoint an Executive officer for 18 months and confer some power on him under s. 53-A". In my judgment the State Government was well within its tights, in exercise of its option, to take action, under s. 53-A as it has in terms purported to do. To say that because some of the findings amount to abuse of power the State Government must act under s. 57 is to deprive it of its discretion which the Act undoubtedly confers on it. In my view the fact that the impugn....
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.... 141 and 144, 145 arid 147 to 149 are still vested in and are exercisable by the committee. Likewise the powers under ss. 120, 121, 122, 123 to 127, 129, 150, 152 to 160 to 162, 163, 163A and 168 are still vested in and exercisable by the president. These powers that are still left with the committee 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 ail argument in aid of a charge of mala fides, but, as here-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 effect, must be regarded as having been made under 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 does not arise for consideration at all. 185 Re. (iii): In the writ application, out of which this appeal arises, the principal prayer of the appellants is for a writ in the natu....
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....re subject to the controlling jurisdiction of the King's Bench -Division exercised in these writs." This definition was accepted as correct in Rex v. London Count Council [1931] 2 K.B. 215 and many subsequent cases both in England and in this country. It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be said to be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act 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 Government is to be regarded as functioning as a quasi-judicial body or a mere admin....
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.... be a quasi-judicial act provided the authority is required by the statute to act judicially." It is clear that in the present case there is no question of any contest between two contending parties which the State Government is, under s. 53-A, to decide and, therefore, there is no " list " in the sense in which that word is understood generally, and the principle referred to under the first heading has no application. We have, therefore, to consider whether the case comes within the principle enunciated under the second head, namely, whether the C. P. and Berar Municipalities Act, 1922, requires the State Government to act judicially when taking action under s. 53-A. 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 tinder the section. It may make an order Tender the section or it 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. ....
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....he action a purely administrative one. The argument is that the first requirement is the finding of a fact which may be called a jurisdictional fact, so that the power under s. 53-A can only be exercised when that jurisdictional fact is established to exist. The determination of the existence of that jurisdictional fact, it is contended, is not left to the subjective opinion of the State Government and that although the ultimate act is an administrative one the State Government must at the preliminary stage of determining the jurisdictional fact act judicially and determine it objectively, that is to say, in a quasi-judicially. It is assumed that whenever there has to be a determination of a fact which affects the rights of the parties, the decision must be a quasi judicial decision, so as to be liable to be corrected by a writ of certiorari. In Advani's case [1950] S.C.R. 621 Kania C. J. with A hom Patanjali Sastri J. agreed, said at page 632 : "The respondent's argument that whenever there is a determination of a fact which affects the rights of parties, the decision is quasi-judicial, does not appear to be sound." Further down the learned Chief Justice said d....
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....ations and enactments considered and construed in the several cases referred to above. The first two items of the definition given by Atkin L. J. may be equally applicable to an administrative act. The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L. J.'s definition, namely, the duty to act judicially." I found support for my opinion on the following passage occurring in the judgment of Lord Hewart C. J. in B. v. Legislative Committee of the Church Assembly [1928] 1 K.B. 411, 415: "In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially." The above passage was quoted with approval by Lord Radcliffe in delivering the judgment of the Privy Council in Nakkuda Ali's case [1951] A.C. 66 I now proceed to apply the principles discussed above to the facts of the present case. The simple fact that the incompetency of the committee goes to the root of the jurisdiction of the State Government ....
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.... 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 the powers, duties and functions which shall be exercised and performed by such officer in addition to or to the exclusion of their exercise or performance by committee, its president, vice-president or secretary. Nobody will say that the State Government must exercise the powers under s. 25-A after holding any judicial enquiry. The only difference in the language of s. 25-A and s. 53-A both of which were inserted in the Act in 1947 is that action can be taken under s. 53-A only when the committee is incompetent to perform the duties imposed on it a fact the determination of which is not in so many words left to the subjective opinion of the State Government, whereas action can be taken under s. 25-A on the satisfaction of the State Government as to certain facts which is, in terms, left to the subjective determination of the State Government. If, as I have said, the determination of a jurisdictional fact is not by itself sufficient to indicate that, it has to be done judicially, there is nothing else in s. 53-A or in any othe....
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....cases it may be necessary to give an opportunity to a party to have his say before at) 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 manner and mode of the two procedures. For the breach 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 actual passing of the order under s. 53-A. If the action taken tinder that section is to be regarded as an administrative action, as I hold it should be, then I have no doubt that the appellants have had more than fair play. It is said that the State Government did not hold any enquiry before making the order and that, therefore, it can-not be said that the appellants had an opportunity to defend themselves against an order of this kind. I do not consider that there is any substance in this contention. If the State Government wanted to hold any enquiry it would do so....
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....Whereas the former are of the view that in arriving at such conclusion 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 that conclusion the State Government performs a quasi-judicial function. In my opinion, the determination of the question whether the State Government performs an administrative or a quasi-judicial function in the matter of 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 themselves. 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 to say that the circumstances adverted to therein amply 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 t....
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....ether there is a list inter parties (ii) whether there is a claim (or proposition) and an opposition; (iii)whether the decision is to be founded on the taking of evidence or on affidavits; (iv)whether the decision is actuated in whole or in part 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 list. The last two tests were discussed and considered in R. v. Manchester Legal Aid Committee [1952] 2 Q.B. 4I3. It is fairly clear to me that tests (i) to (iv) are inappropriate in the present case by reason of the provisions in s. 53-A is contrasted with s. 57 and other sections of the Act. The test which is fulfilled in the present case is test (v), and that makes the function under s. 53-A a purely administrative function in spite of the requirement of an initial determination of a jurisdictional fact and the recording of reasons for the decision. I am content to rest my decision on the afore....
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....ncompetent in the performance of its duties under the Act. The relevant part of the notification was as follows: " Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), inasmuch as it- (a) granted grain and building advances to the I employees without prior sanction and no efforts were made for their recovery, (b)showed carelessness in cases of embezzlements of the employees and did not report such cases to Government, (c)failed to control the President who issued orders in cases in which he had no authority, (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed unconcerned persons to interfere in its working, (f)showed partiality 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) f....
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....g the proceedings of the enquiry, but no opportunity for " leading any evidence" was demanded by the appellant nor was it denied. They also pleaded that no formal enquiry was required under the law and that the Court could not go into the sufficiency or otherwise of the reasons for taking action " and the same will not be enquired into by the Court objectively." A learned Single Judge of the High Court dismissed the petition holding that whatever be the position under s. 57, under s. 53-A no explanation was required to be called from the municipal committee and the State Government was authorised under the law to act promptly. The High Court negatived the allegation that the State Government had proceeded against the Municipal Committee, appellant No. 2, at the instance of Dhurmal Daga. The learned Judge said: "I have gone through the material on which the State 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 present during the enquiry. I am satisfied that the invo....
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....cation under S. 4. Sections 6 to 8 deal with consequential orders on inclusion and exclusion of local areas: Section 9 authorises the State Government to give such powers to a municipality as in its opinion it is suited for. It provides: " If the circumstances of any municipality are such that, in the opinion of the State Government, any provision of this Act is unsuited thereto, the State Government may, by notification: (a)withdraw the operation of that provision from the municipality; (b)apply that provision to the Municipality in a modified form to be specified in such notification ; (c)make any additional provision for the municipality in respect of the matter mentioned in the provision which has been withdrawn from, or applied in a modified form to, the municipality." Chapter II deals with the membership of committees and chapter III with Subordinate Agencies. Under this chapter fall Sub-Committees, Presidents and other officers of Municipal Committees. Section 25-A which deals with the appointment of a Chief Executive Officer, Health Officer or Supervisor is as under: (1)" The State Government may, if in its opinion -the app....
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....the State Government. Section 54 provides that in the case of emergency the State Government, on the receipt of the report under s. 52 or otherwise may require a municipality to execute any work or perform any act which in its opinion is necessary for the service of the public. Under s. 55 the State Government if satisfied after receiving a report under s. 52 or after enquiry if any that a municipal committee has made default in performing its duties may appoint " some person to perform " the duty and can direct the municipal committee to pay reasonable remuneration to the person so appointed. If default is made in any such payment the State Government can under s. 56 direct a person having custody of municipal funds to make such payment. Section 57 empowers the State Government to dissolve and/or to supersede the municipal committee. Section 58 gives to the State Government the power of revision and an overall control over the actions of officers acting or taking any action under the Act. But it cannot reverse any order unless notice is given to the parties interested and they are allowed to appear and be heard. Section 58-A authorises the State Government to enforce its orders. S....
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....ny resolution or other motion ". Section 57 which gives power to the Government to dissolve or supersede the municipality is as follows: " (1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, dissolve such committee and may order a fresh election to take place. (2) If after fresh elections the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuse.; 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 committee is so dissolved or superseded, the following consequences shall ensue: (a)all members of the co....
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....ct under s. 53-A, in fact and in reality the order falls under s. 57 and because the provisions of sub- section (5) have not been complied with, the order of the State Government is illegal, null and void. A comparison of the-two sections 53-A and 57 shows the difference in the powers exercisable by the State Government under the 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 mentioned in the order which may be in addition to or to the exclusion of their exercise by the municipality, etc., a power also exercisable under s. 25-A or to a limited degree under s. 9. Under s. 57 the municipal committee itself is dissolved and may be superseded in which case its members cease to exist and vacate their offices and the powers and duties of the municipal committee then become vested in the person or persons appointed for the purpose by the State Government and its property also vests in the State Government. These consequences do not follow an order Under s. 53-A. But it is submitted that in reality the res....
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....sposal and management of such property (s.38). No doubt the powers under s. 39, which deals with the management of public institutions, powers and duties of the municipality, are taken away and are vested in the Executive Officer but these powers in any case are subject to rules made by Government and these rules are always subject to change by the State Government. The powers of the 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 property 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 the' 'Making of contracts and the other sections in that chapter 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 Officer. There is no doubt that some very important powers have by the notification been taken away from the municipal committee and ha....
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.... either wholly or partially and under s. 25-A it has the power of appointing a Chief Executive Officer if it is necessary for the general improvement in the administration of the municipality and exactly the same consequences would follow as they do when an Executive Officer is appointed. under s. 53-A. There are also sections 52, 53, 54, 55 and 56 which place regulatory control in 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. 53-A and for similar object i.e. improving the general administration in case of incompetency of the municipality will change an administrative decision into a judicial or quasijudicial decision ? The real test to distinguish between a quasi-judicial and an administrative act of ail authority is based on the duty 'of that authority having power to determine a question' to act judicially. Lord Hewart, C. J. in R. v. Legislative Committee of the Church Assembly [1928] 1 K.B. 411, 415 said: In order that a body may satisfy the required test it is not enough that it should have legal authority to determine....
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....ulation) said : "But, that apart, no procedure is laid down by the regulation for securing that the license holder is to have notice of the Controller's intention to revoke the license, or that there must be any enquiry, public or private, before the Controller acts ". In Advani's case [1950] S.C.R. 621 Fazl Ali J. examining the ditty of authorities to act judicially said at p. 641 : There are no express words in s. 3 or any other section, to impose such a duty (to determine judicially); nor is there anything to compel us to hold that such a duty is implied The learned judge took into consideration the fact that certain sections specifically provided an enquiry and others did not, and observed: " 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 prescribe the calling for the explanation of the municipality before any action is taken by the State Government and others do not, it is an indication of the intention of the legislature to exclude the application of principles of audi alteram partem in the latt....
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....and the action it will take will be an administrative decision not subject to judicial review which will not only lead to inconvenience but to confusion. The Privy Council pointed out in Venkatarao v. Secretary of State (1936) L.R. 64 I.A. 55 that " inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion ". The very fact that an order under s. 53-A is in the nature of an emergency action to protect the interests of the rate payer and has a limited duration not exceeding 18 months also negatives the order being founded on an objective determination as to the incompetency of the committee. Such a construction will defeat the very purpose of a., 53- A. Further action under s. 57 is of a permanent nature and has accordingly been expressly made subject to an explanation by the municipal committee. The absence of such a provision from s. 53-A clearly shows that the legislature did not intend that there should be an elaborate hearin....
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....n has to be arrived at which makes the difference, and the Teal test is: Is there any duty to act judicially ? The language of sub-section (1) of s. 63-A indicates that the question whether the State Government considers that the action taken under the section i. e., the appointment of an Executive Officer is likely to secure an improvement in the general administration of the municipality is one of expediency, opinion and policy, matters which are peculiarly for the State Government to decide and of which, always assuming that it is acting bona fide, it is the sole judge. No objective test is possible. Therefore the use of these words "considers " and " is likely " negatives any objective approach or judicial or quasi-judicial process. The State Government is not essentially a judicial or a quasi-judicial body but its essential function is administrative. The various provisions of the Act show that it takes its decisions as to the mode and extent of control of municipalities in pursuance of its opinion and policy and on grounds of expediency. In arriving at its decision it at no stage has any form of list or quasi-list before it nor can it be said that there are two parties before....
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....t any time to act judicially ". See also R. v. Manchester Legal Aid Committee In B. Johnson & Co. (Builders) Ltd. v. Minister of Health (I947) 2 A.E.R. 395 it was also held that the Minister was entitled to inform 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 administrative function. At p. 405 Cohen L. J. went further and said: " His duty as regards information received by him in his executive capacity is to use that information fairly and impartially. This may involve that he should give an opportunity to the authority or to the objector, as the case may be, of dealing with some allegation in a communication he has received before the quasi-list started, but, if he fails to do so, he is responsible only to Parliament for the discharge of his executive duties, and cannot be made responsible in these courts." Appellants' counsel relied on some English cases, the first of which was Cooper v. Wandsworth Board of Works [1863]14 C.B. (N.S.) 180; 143 E.R. 414, 420. 2,0.7 where Byles J. said at p. 420: "although there are no positive words ....
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.... alleging that 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 opponent. It was 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, wanting in the case before us. The statute there prescribed the limit of income of applicant for a certificate of legal aid and the regulations required the determination by the National Assistance Board of the disposable income and disposable capital of such applicant which was a condition precedent to the grant of the certificate. Clearly without such determination the grant of the certificate was not within the jurisdiction of the Board and therefore the Board had to determine a question and was required to act judicially within the rule laid down in the majority judgment in Kusaldas Advani's case [1950] S.C.R. 621, 720. Th....
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....hurmal Daga and others. It was after this that the Enquiry Officer made his report which was sent to the State Government and it took action which it considered apposite and that is the action complained of But it was submitted that no notice was given to the appellants 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 notice and they were not called upon to show cause why action should not be taken under s. 53-A. In the first place the word % 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 accepted. 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 Dburmal and others. The appellants put a long explanation giving their version of th....
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....iry. Presumably, the result of the inquiry was forwarded to the Government. On November 18, 1957, the Government issued an Order, A under a. 53-A of the Act, enumerating fifteen charges involving acts of nonfeasance, misfeasance, gross negligence and fraud, and stating that, by reason of the said act,%, it appeared to the Government that the 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 that a general improvement in the administration of the Municipality was likely to be secured by appointing a servant of the Government as the Executive 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 the 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 and that inquiry by the Deputy Collector could not, in any sense....
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....and an administrative act and the criteria laid down by decisions for ascertaining whether a particular act is a judicial act or an administrative one. The said criteria have been laid down with clarity by Lord Justice Atkin in Rex v. The, Electricity Commissioners [1924] 1 K. B. 171, elaborated by Lord Justice Scrutton in Rex v. London County Council [1931] 2 K. B. 215 and authoritatively restated in Province of Bombay v. Kusaldas S. Advani [1950] S.C.R. 621. The aforesaid decisions lay down the following conditions to be complied with: (1) The body of persons must have legal authority; (2) the-authority should be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially. So far there is no dispute. The question raised in this case is what do the words " a duty to act judicially " mean. If the statute in express terms says that the decision should be arrived at judicially, then it is an obvious case. If it does not expressly say so, can the intention of the Legislature be gathered or implied from the terms of the statute If it can be so gathered, what are the guiding factors for implying such a duty on the part of a tribunal o....
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....e expressly so stated in the statute or whether it can be gathered or implied from the provisions of the statute. I do not think that Das J. as he then was meant to lay down as a condition that the duty to act judicially should be expressly stated in the statute, for rarely any statute would describe the character of disposal of a particular proceeding. If it was intended to insist upon an express condition in the statute, the learned Judge would not have scrutinized the provisions of the Ordinance to ascertain whether the order thereunder was intended 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 R. v. Manchester Legal Aid Committee [I952] 2 Q.B. 413. There a debtor applied to a local aid committee, set up under the Legal Aid and Advice Act, 1949, for a certificate for legal aid to pursue a claim for alleged breach of contract against a limited company. As he was adjudicated insolvent, the certificate was revoked and on application made by his trustee, it was granted to him again. One of the questions raised was whether the legal aid committee in issuing the certificate was actin....
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....are not in accordance with the practice of, a court of law. It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of list inter parties 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 decision has before it at no stage any form of list 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 time to act judicially." It is not necessary to multiply citations. The concept of a judicial act", has been conceived and developed by the English Judges wi....
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....e Act itself provides the necessary criteria to answer the question. Before the Government can take action under the section, three preliminary conditions for the exercise of the power are laid down: (1) The Committee is not competent to perform the duties imposed on it; (2) the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government; (3) an order stating the reasons therefor. The first condition depends upon the determination of an objective fact, namely, whether the committee is competent to perform the duties imposed upon it. It is a jurisdictional fact that confers jurisdiction on the Government to take further action. The determination of this fact is not left to the subjective satisfaction of the Government. Indeed, the different phraseology used in regard to the second condition, namely, " the State Government considers ", brings out in bold relief the distinction between the two; while in the former an objective fact has to be -determined, in the latter the fact is left to the subjective satisfaction of the Government. If the facts covered by both the conditions....
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....udicially under s. 53-A. There. is some force in this contention, buy 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 fact that there is no express provision to issue a notice to the affected parties cannot convert a judicial act into an administrative one. Nor does the argument that the order of appointment of an Executive Officer is only for a temporary 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 democratic 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. Shortly stated, the position is this: The committee is comprised of elected representatives of the respective constituencies; they are presumably competent men in whom the electorate has con....