Kishen Rao vs Mahboob Ali and Another

Manohar Pershad, J.—This is a petition for the issue of a Writ of Certiorari under Article 226 of the Constitution of India to quash the order of the Additional Collector, Gulbarga, directing that possession of the house may be given to one Yakub Ali.

The facts which have given rise to this petition are that Mohamed Mahbub Ali made a complaint to the Civil Administrator that Tukaram transferred his house in favour of his brother Mohamed Ismail who is living jointly with him and the Petitioner who is the son of Tuka ram has no right to the said house, as the house fell to the share of Tukaram on partition. But taking advantage of the Police Action, he had forcibly taken possession of the said house in the month of September 1948. The Collector thereupon issued a notice to the Petitioner to appear and show his right to possession of the house by producing evidence. The Petitioner appeared before the Collector and objected that he had no statutory authority to enquire into the allegations This plea of the Petitioner was rejected by the Additional Collector and the Petitioner was directed to give possession of the house to the complainant, & on his refusal, the Additional Collector asked the District Superintendent of Police to evict the Petitioner. Aggrieved by this order, the present petition has been filed for the issue of a Writ of Certiorari.

In this petition it is contended first that the Additional Collector had no jurisdiction to enquire into the question of title to property and the order of the Additional Collector is ''ultra vires'' and void. The second contention is that the order of the Additional Collector is based on the circular of the Civil Administrator, but this circular was never published in the Gazette nor has it been sanctioned by the Legislature; as such, it has no binding effect. Following up this contention, it is urged that it contravenes the provisions of Article 191 of the Constitution of India. The third contention is that Respondent 1 has no locus standi to file a petition for possession against the Petitioner.

On behalf of Respondent 1, Shri Gopalrao Ekbote, Advocate, in reply, contends that the conditions prevailing then were abnormal. The Collector was responsible for keeping law and order and accordingly he directed that possession of the house be given to Mohamed Munir, as he was of the opinion that Mohd. Munir was forcibly dispossessed during the Police Action. This order of the Collector, he contends, is an executive order and however illegal or ''ultra vires'' the act may be this Court cannot issue any Writs. Reliance is placed on the case of � Province of Bombay Vs. Kusaldas S. Advani and Others, . The second contention is that the issue of a Writ of Certiorari is discretionary and the Court should be reluctant to issue such a Writ when the person who has come to Court has not come with clean hands. Reliance is placed on the case of � Mohammad Ibrahim v. High Commissioner for India in Pakistan AIR 1951 Nag 38 (B). The last contention is that no Writ can be issued where the proceedings are vexatious.

A similar argument was advanced by shri Narahari Sastri, the Advocate for the State.

In order to appreciate the view points of the learned Advocate, we have to see first what the nature of the order of the Collector is whether it is judicial, quasi-judicial or administrative. It is true that if the order in question is purely an administrative or an executive order, this Court would be reluctant to issue any Writ, but if the nature of the proceedings is judicial or quasi-judicial, a writ of Certiorari would be issued provided it is a fit case for the issue of the same. The learned Advocate appearing for the Respondent has very candidly conceded before us that if it is held that the order of the Collector is Judicial or quasi-judicial, a Writ of Certiorari could be issued. The tests for the determination of the question would, in our opinion, be:

(a) is there any duty cast by the Legislature upon the person or persons who is or are empowered to act, to determine or decide some fact or facts;

(b) is there some lis or dispute resulting from there, being two sides to the question he has to decide; and

(c) is there a proposal and an opposition. To constitute a Judicial or quasi-judicial order it must be necessary that the Tribunal should have to weigh the pros and cons before it can come to a conclusion. It would also have to consider facts and circumstances bearing upon the subject. In other words, the duty cast on the Tribunal must not only be to determine and decide a question, but there must also be a duty to determine or decide that fact judicially. If the determination or decision of the authority results in binding the subject so as to affect his right or impose a liability upon him, and if the exercise of the power by the authority is made dependent by the Legislature upon a contingency or a condition, which condition or contingency is an objective fact to bo established and not left to the opinion of the authority, then, the court would come to the conclusion that there is a duty upon the authority not only to decide & determine but to decide and determine judicially.

In the case before us the Additional Collector issued the motion to the Petitioner to appear and show his right to the possession oft the house by producing evidence. This issue of the motion by the Additional Collector to the, Petitioner to appear and produce his evidence shows that there is a ''lis'' or dispute which the Additional Collector had to decide. The dispute has been whether the subject should be deprived of his property or not. There are always two sides to the dispute. There is a proposal and an opposition, and there are equally pros and cons to be considered. The two sides are: the interest of the complainant Mohd. Ismail and others who require the property on the ground that: Tukaram has sold the house and that they were rightfully in possession and have been forcibly dispossessed by Kishen. The interest of the other side, on the other hand, is that Tukaram had no right to sell the property and that he has the right to retain it. The Additional Collector has held that the Petitioner has not produced any evidence and has failed to establish his right and title to the property and that he occupied the said house after the police action. Thus, it is clear from this, that there has been an adjudication on the matter. Such an act cannot be said to be a mere administrative or executive act. It is in our opinion, if not purely a judicial act, at least, a quasi-judicial act. As the learned Advocate for the Respondent has conceded that in case of a quasi-judicial or judicial act, a Writ of Certiorari could be issued, we do not wish to discuss in detail the ruling cited by the learned Advocate.

After this, we turn to the second argument of the Respondent which relates to the fact that the grant of a Writ of Certiorari is discretionary in nature and the Court should be reluctant to issue a Writ when the person who has come to the Court has not come with clean hands. In this connection, the learned Advocate drew our attention to the fact that the complainants were in rightful possession of the property and the Petitioner taking advantage of the disturbed conditions in the wake of the Police Action, forcibly dispossessed him by taking the law into his own hands and when he has been ordered to be dispossessed by the Additional Collector, he has come to this Court in Writ proceedings which is clear to show that he has not come with clean hands. We are afraid we cannot accept this contention in toto.

It is true that the grant of a Writ of Certiorari is discretionary in nature and it would be refused if the proceedings appear to be vexatious

and the applicant is not bona fide interested in the subject-matter of the application. In the case before us, it cannot be said that the Petitioner has not come to the Court with clean hands. Petitioner is the son of Tukaram, who is said to have transferred the property to the complainant''s brother. The contention of the Petitioner is that it is a joint family property. The contention of the complainant is that in partition the property fell to the share of Tukaram which is denied by the Petitioner. It would thus appear that rightly or wrongly, the Petitioner claims a right in the property and enters into possession, such an act of his could not be said to be an unclean or a vexatious act. It cannot also be said that he has no bona fide interest in the subject-matter.

Now, we have to see if this is a lit case where a Writ of Certiorari could be issued. Under Article 226 of the Constitution of India, a Writ of Certiorari could be issued when the person or the Tribunal acts in excess of jurisdiction or fails to exercise jurisdiction which is conferred upon it or in the exercise of its jurisdiction contravenes principles of natural justice. In the case before us, the contention of the Petitioner is that the Collector had no jurisdiction at all. The contention of the Respondents, on the other hand, is that the Additional Collector who is an executive officer possessed the requisite authority by virtue of Circular No. 1599 dated 18-6-49 and that he was acting within his jurisdiction. We find that the Additional Collector also relied on the said circular and held that he has jurisdiction, but this circular was neither produced before the Additional Collector nor has it been produced before us. We asked the learned Advocate for the Respondents whether there was any such circular & if so they should produce it. They expressed their inability. The alleged circular which is said to give jurisdiction has not been produced & no other authority has been shown. We fail to understand how the Additional Collector can get jurisdiction. Jurisdiction is not conferred on grounds of natural justice. It has to be specifically conferred by Statute and more so in the case of administrative bodies exercising judicial or quasi-judicial functions. Such bodies have to keep themselves strictly within the four corners of jurisdiction that is specifically conferred upon them, otherwise their orders become null and void. The fact that he has to keep law and order does not confer any jurisdiction to decide questions of title to property. We are, therefore, constrained to hold that the order of the Additional Collector is beyond his jurisdiction and that he assumed a Jurisdiction not conferred on him by law when passing the order under question.

After giving a careful consideration to the above circumstances, we are of the opinion that this is a fit case where we should grant relief to the Petitioner by issuing a Writ of Certiorari. The petition is therefore allowed; the order of the Additional Collector dated 24-3-1951 is hereby quashed as being ''ultra vires'' and null and void. The Petitioner would be entitled to costs which we assess at Rs. 50/-.