Messrs. Tinsukia Development Corporation Ltd. vs State of Assam and Another

Mehrotra, J.—The petitioner M/s Tinsukia Development Co-operation Limited represented by Sri D D Lohia one of the Directors of the company, possesses 16 bighas 3 kathas and 7 lechas of land in dag No. 2208 of patta No. 114 of Tinsukia Town. By Notification dated 22nd July 1959 published in the Assam stated that this land along with some other land was likely to be needed for public purpose, namely for the construction of a food-grains godown. This notification was issued under Sec. 4 of the Land Acquisitions Act ----- Act 1 of 1894 (hereinafter called ''the Act'') The Notification further specified that objection may be filed under Sec. 5-A of the Act by any person interested within the meaning of the Act on or before the 31st august 1959 before the Collector of Lakhimpur. The petitioner filed an objection under Sec. 5-A of the Act before the Collector to the effect that there was no necessity for acquiring this particular land for the purpose indicated in the notification

It was also pointed out that some other alternative land more suitable for the purpose was. available. The petitioner in support of his contention led evidence before the Collector and the Collector after giving due hearing to the petitioner and inquiring into the matter, submitted his report. The State Government after consideration of the report on the 30th March 1960 issued Anr. notification under Sec. 6 of the Act to the effect, that it appeared to the Government of Assam that the land is required to be taken by the Government at the public expense and for a public purpose, namely for construction of food-grains godown by the Government of India in the village Tinsukia Town, Mouja Tinsukia Zilla Lakhimpur and thus it was declared that for the above purpose land measuring more or less 17 bighas 4 kathas 2 lechas of standard measurement with boundaries specified in the notification is required.

On the 7th April 1960 a notice was issued by the Collector under Sec. 9 of the Act intending to take possession of the land and thereafter on the 22nd September 1960 an award for compensation . under Sec. 11 of the Act was made. Thereafter a notice was issued to the petitioner under Sec. 12(2) of the Act asking him to receive the amount of Rs. 1,01,603.65 being the amount of compensation under the award, on or before the 11th October 1960. Alter this the present petition under Article 226 of the Constitution was filed in this Court on the 13th October I960 challenging the land acquisition proceedings.

The validity of the notifications issued under sections 4 and 6 of the Act has been challenged by the petitioner on various grounds. Dr. Medhi has canvassed the following points before us :

Sections 4 and 6 of the Act require the satisfaction of the appropriate Government the appropriate Government'' has been defined u/s 3 (ee) of the Act as meaning in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government. In the present case as the land was admittedly acquired for the purposes of construction of a food-grains godown by the Central Government, the acquisition was for the purposes of the Central Government and thus the appropriate Government is the Central Government. The notification could neither be issued by the State Government, nor could the satisfaction of the State Government be a valid satisfaction as required under the provisions of Secs. 4 and 6 of the Act.

The notification, issued u/s 4 of the Act is very vague. The boundary and the specification of the land has not been properly set out.

The State Government while making a declaration u/s 6 of the Act, acts in a quasi-judicial capacity and as such there has been a violation of the principles of natural justice by the State Government in making the declaration inasmuch as no hearing was given by the State Government to the petitioner before making such a declaration. Any hearing given by the Collector cannot satisfy the requirement of the principles of natural justice. It is a fundamental principle of judicial determination that the body which passes the final order, should itself hear the parties. There cannot be a divided responsibility where a body has to discharge a quasi-judicial function. In this connection it was also urged by Dr. Medhi that u/s 5-A after the inquiry has been made by the Collector, he has to submit the case for the decision of the appropriate Government together with the record of the proceedings held by him and a report containing his recommendations on the objection. This being the position at least the ultimate decision is to be taken by the State Government and in making such a decision which is a condition precedent for the exercise of powers u/s 6, the State Government acts in a quasi judicial capacity. Thus irrespective of the fact whether the declaration u/s 6 is an exercise of quasi judicial function or not, the decision cannot be taken by the State Government with regard to the necessity of the land for a public purpose without itself hearing the petitioner.

The declaration has not been issued in the name of the Governor, nor has it been shown that it has been authenticated by an officer who has been empowered under the rules of business under Article 166 of the Constitution to do so. In this connection it was also urged that the State Government has failed to establish that the Government at all applied its mind to the question of the existence of a public purpose or the necessity of acquisition for such a purpose in the present case. It has not been shown by the opposite parties that at any stage the Governor or the Minister concerned applied his mind to the existence of a public purpose.

Section 4 (1) of the Act provides as follows :

Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and'' the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.

Section 5-A provides as follows:

5A. (1) Any person interested in any land which has been notified u/s 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objection an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the appropriate Government together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the appropriate Government on the objections shall be final.

(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

Section 6 sub-section (1) of the Act reads as follows:

Subject to the provisions of Part VII of tin''s Act, when the appropriate Government is satisfied, after considering the report, if any, made under Sec, 5-A, Sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders.

There is a proviso to this sub-section which is not necessary for the purpose of the present case. Section 3(ee) defines an appropriate Government'' as meaning in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government. Reading these sections it is clear that before a notification is-issued u/s 4, it should appear to the appropriate Government that the land is needed for a public purpose. u/s 6 after the appropriate Government is satisfied taking into consideration the report of the Collector u/s 5-A that the land is needed for a public purpose, a declaration is to follow to that effect under the signature of the Secretary to the said Government or some officer duly authorised to do so.

The submission made on behalf of the petitioner is that as the land was needed for construction of the food-grains godown by the Government of India the purpose was a Union purpose and the Central Government was the appropriate Government. It is not disputed that the two notifications under Sections 4 and 6 were issued on behalf of the State Government. From a perusal of the notification u/s 6 it is also clear that it was the State Government which was satisfied that the land was needed for a public purpose before issuing a declaration u/s 6.

The contention on behalf of the State is two-fold in reply to the argument of the counsel for the petitioner. Firstly it is urged that merely because the land is needed for construction of a food-grains godown by the Central Government, it does not necessarily follow that the purpose is a Union purpose. The maintenance of proper supply of food-grains to the inhabitants of this State is as much the responsibility of the State Government as that of the Central Government. The benefit by the construction of the food-grains godown will be derived by the public of this State and as such it is a public purpose and not a purpose of the Union alone.

It is a purpose in which the State Government is equally interested and as such the satisfaction of the State Government was sufficient compliance with the provisions of Section 6. Secondly it was urged that by notification dated 24th March 1952 the Central Government in the exercise of its power conferred by clause (1) of Article 258 of the Constitution entrusted to the Government of Assam with their consent the functions of the Central Government under the Land Acquisition Act, 1.894 in relation to acquisition of land for the purposes of the Union within their respective territories. This delegation is still in force and in view of the said delegation the Central Government will include the State Government in the matters of acquisition of land within the State of Assam by virtue of Section 3(8)(b) of the General Clauses Act which reads as follows:

In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context, --

(8) "Central Government" shall

(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include :

(i) in relation to functions entrusted under clause (1) of Article 258 of the Constitution to the Government of a State, the State Government acting within the scope of the authority given to it under that clause;

''Public purpose has not been defined anywhere in the Act; nor has the ''purposes of the Union'' been defined anywhere in the Act. The words for the purposes of in -the definition of the expression ''appropriate Government'' in my opinion cannot be equated with the words ''for constructing some building by the Union Government''. It may be that a particular building may be constructed by the Central Government and the food-grains may be stocked by the Central Government, but nonetheless if the food-grains are to be distributed among the inhabitants of the State, it is as much a State purpose as a Union purpose. It is essential for a public benefit in which the State is as much interested as the Central Government.

In the case of The State of Bombay Vs. Ali Gulshan, it was held that housing a member of the staff of a Foreign consulate was a public purpose even if it may be regarded as one appertaining to a Union purpose. It was further held that if a room is requisitioned for a member of a consulate, it does not necessarily ccase to be a State purpose or a general public purpose only because it was one appertaining to a Union purpose. The validity of an order of requisition by the Bombay Government for housing a member of the staff of a foreign consulate, came up for decision before the Supreme Court. The requisition was made u/s 6(4)(a) of the Bombay Land Requisition Act, 1948 which provided that:

The State Government may, by order in writing requisition the premises for the purpose of a State or any other public purpose, and may use on deal with the premises for any such purpose in-such manner as may appear to it to be expedient.

The argument was that as the foreign affairs was the responsibility of the Central Government, it was an obligation cast on the Union Government to provide for the housing of the staff of the consulate and thus it was a Union purpose and neither a State purpose nor any other public purpose. The premises therefore could not be requisitioned under the aforesaid provisions of the Bombay Act. This argument was not accepted and the following observations may be apposite:

There is Anr. way of looking at the question involved. An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose. Even it one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily ccase to be a State purpose or a general public purpose.

At p. 870 of the report (SCR): (at p. 812 of AIR) it was further observed as follows:

It can hardly foe said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate, ft was conceded, by Mr. Rajinder Narain, counsel for the respondent, that there is no duty cast upon the Union to provide-accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador. The trade and commerce of the State which appoints him with the State in which he is located arc his primary concern. The State-of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State. We are inclined to regard the purpose for which the requisition was made in this case more as-a State purpose than as a Union purpose.

Applying the same reasoning it can be said that it is as much the duty of the State Government to see that there is proper supply of food-grains to the inhabitants of the State as that of the Central Government and the State Government is equally interested in the efficient carrying out of the plan of the Central Government in regard to the supply of food-grains to the State.

As to the second contention raised by the State Government Dr. Medhi contends that the definition of the expression ''Central Government'' in the General Clauses Act will include a State Government only in respect of the functions entrusted under clause (1) of Article 258 of the Constitution and as according to his submission, the function with regard to the acquisition of the land in the State of Assam for the purposes of the Union could not be delegated under Article 258 of the Constitution, there was no proper delegation and the provisions of the General Clauses Act will thus not heath-acted in the present case.

Article 258 of the Constitution gives power to the President with the consent of the Government of a State to entrust to it or to its officers functions in relation to any matter to which the executive power of the Union extends. The delegation under Article 258 of the Constitution can only be made in respect of an executive power of the Union and not in respect of any judicial or legislative power. The main question, therefore, will be whether the acquisition can be regarded as an exercise of the executive power or any other power. The second contention of Dr. Medhi to which I have already referred, is that the appropriate Government in issuing a declaration, acts in a quasi judicial, capacity.

If therefore, the exercise of the power of issuing a declaration u/s 6 of the Act is a judicial power, the question of delegation will not arise at all. Of course it may be that the acquisition itself may be an executive power. But the issue of a declaration by which effect is given to the acquisition may have to be done in a quasi-judicial capacity. The contention of Dr. Medhi mainly, however, is that under Article 258 of the Constitution the President can only delegate the functions in relation to any matter to which the executive power of the Union extends and in order to ascertain the extent of the Union''s executive power, one has to go back to Article 73 of the Constitution, which provides as follows:

(1) Subject to the provisions of this Constitution, the executive powers of the Union shall extend

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement:

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly pro-vided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the Stale has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the Stale or officer or authority thereof could exercise immediately before the commencement of this Constitution.

Article 162 of the Constitution provides the extent of executive power of the State and lays down that:

Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made ''by Parliament upon the Union or authorities thereof.

The effect of the proviso to Article 73 is that the executive authority in regard to matters in, the Concurrent List shall be ordinarily left to the States and the Parliament will be entitled to provide that in exceptional cases the executive power of the Union shall also extend to these subjects. It is argued that by the Constitution (Seventh Amendment) Act, 1956 item 42 of the Concurrent List of the Seventh Schedule has been redrafted and under the amended item 42 the subject of acquisition and requisition of property has been placed in the Concurrent List.

Prior to the Constitution (Seventh Amendment) Act, 1956 item 33 of List I of the Seventh Schedule provided for acquisition for Union purposes, and item 36 of the State List provided, for acquisition or requisition of property except for the purposes of the Union subject to the provisions of entry 42 of List III. Item 42 List III prior to the Constitution (Seventh Amendment) Act, 1956 provided for principles on which compensation for property acquired or requisition for the purposes of the Union or of a State or for any other public purpose is to be determined and the form and the manner in which such compensation is to be given.

By the Constitution (Seventh Amendment) Act, 1956, item 33 of List I and item 36 of List II have been omitted and the entire subject of acquisition and requisition of property has been placed in the Concurrent List. It is argued that by this amendment under the proviso to Article 73 the executive power of acquisition is now left to the State. The power of the Union Government does not extend by virtue of Article 73 to acquisition of property and as such there could be no question of delegation by the President of the aforesaid power to the State Government.

If the effect of the Seventh Amendment of the Constitution is to place the executive power for acquisition in the hands of the States alone, even though the acquisition may be for the purposes of the Union and further the States have been empowered to legislate for acquisition of the property within their territories, even though for the Union purposes, it is difficult to hold that the State Government cannot acquire the land for the Union Government under the Central Act. By the amendment the distinction between the Union purpose and the State purpose has in effect been abolished and a power has been given to the State Government to acquire land for any purpose which may be regarded as a public purpose so long as the property is within its territorial jurisdiction and the State Government will in such cases also be the appropriate Government within the meaning of Section 3(ee) of the Act. Besides this, the proviso applies only to the executive power referred to in clause (1)(a) of Article 73. Article 73 does not define the executive power. It only lays down the extent of the executive power. As laid down by their Lordships of the Supreme Court in the case of Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, neither of these articles, namely Articles 73 and 162 contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of, the executive power between the Union on the one hand and the States on the other. It was further observed at p. 235 of the report (SCR): (at pp. 555-56 of AIR) as follows: It may not be possible to frame an executive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute regidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to Anr. .

By the Constitution (Seventh Amendment) Act, 1956, Article 298 has been redrafted and it now reads as follows:

The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose:

Provided that--

(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and

(b) the said executive power of each State shall, an so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.

This section (sic) also to my mind, cleanly provides that the executive power of the Union will extend to the acquisition of property and if the extent of the executive power in so far as the acquisition is Concerned is to foe determined in accordance with the provisions of Article 298, the proviso to Article 73 will not be attracted. As I have already pointed out, the proviso to Article 73 is attracted only with regard to the executive power referred to in clause (1)(a) of Article 73 and not to the executive power referred to under any other provisions of the Constitution.

Dr. Medhi has tried to meet this difficulty by contending, that the power of acquisition given under Article 298 of the Constitution only refers to acquisition under a contract and not to lire exercise of the right of eminent domain by the Government. I do not think that any such limited meaning can be given to the word ''acquisition'' under Article 298. There is nothing in the language of the article or the object for which this provision has been enacted to show that the word ''acquisition'' should be construed in its limited sense.

The executive power of the Union extends to acquisition, whether voluntary or in the exercise of its right of eminent domain. The only limitation of the exercise of the power of eminent domain is to be found in Article 31 of the Constitution which provides that no person shall be deprived of his property save by authority of law. If therefore by acquisition the State Government intends to deprive a citizen of his property, it has to do it in accordance with the authority law, and thus a law may be necessary before such a power could be exercised but nonetheless the power exercised is an executive power conferred under Article 298 of the Constitution and its extent and distribution between the Union and the State are to be governed by the provisions of Article 298 of the Constitution and not with reference to the provisions of Article 73 of the Constitution.

There is Anr. aspect of the matter. The proviso to Article 73 clearly lays down that the executive power referred to shall be subject to the express-previsions in the Constitution or any law made by Parliament. It can be legitimately contended that the Land Acquisition Act when it provides that if the acquisition is to be for Union purposes the appropriate Government is the Central Government, it provides that in cases of acquisition for Union Government the extent of the executive power of the State Government is subject to the provisions of the Land Acquisition Act.

Dr. Medhi contends that the Land Acquisition Act cannot be called a law made by Parliament within the meaning of the proviso to Article 73. By virtue of Article 372 of the Constitution the Land Acquisition Act may be a law in force at the time when the Constitution came into existence but it cannot be culled the law made by Parliament. In the view, however, which we have taken on the other points raised, it is not necessary to finally decide this point but the contention raised by the State that the Central law in force at the date of the commencement of the Constitution can come within the meaning of the word ''law'' made by Praliament cannot be said to be without force.

In our opinion, therefore, it cannot be said that the delegation made by the Central Government by its notification dated 24th March 1952 is invalid as after the Seventh Amendment of the Constitution such a power could not be delegated by the Central Government. I am also of opinion that the fact that the land was acquired by the State Government for enabling the Central Government to erect a food-grains godown does not necessarily mean that the acquisition was for the Union purpose and that the purpose ccased to be a State purpose.

Coming to the next contention raised by Dr. Medhi that the notification issued u/s 6 of the Act is ultra vires as the principle of natural justice was violated inasmuch as no personal hearing was given by the Government to the petitioner, -- it is first to be examined whether the Government while declaring that the land is needed for a public purpose u/s 6 of the Act, acts in a quasi judicial capacity or in an administrative capacity. The tests for determining whether a tribunal or a body acts in a quasi-judicial capacity have been laid clown by Atkin L. J. in the case of R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co., (1920) Ltd., reported in (1924) I KB 171 as follows:

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of the legal authority they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs.

These observations have been agreed to by their Lordships or'' the Supreme Court in the case of Province of Province of Bombay Vs. Kusaldas S. Advani and Others, Dr. Medhi contends that the law has since this decision of the Supreme Court developed further. The law essentially is dynamic and progressive. It need not be static and with the change in the social conditions and progress of legislation it is bound to develop. But that does not necessarily mean that the principles laid down in the case referred to above have either been dissented from or have been reviewed in any subsequent decision of their Lordships of the Supreme Court.

The, law laid down in the above case has been consistently followed in the subsequent decisions by their Lordships of the Supreme Court. The difficulty only arises in applying those principles to a particular legislation or to a particular power exercised by a body under a statute. But it cannot be said that the principles laid down in this case have been subsequently dissented from. As far as India is concerned the test that has got to be applied is the test which was laid down by the Supreme Court in the case of AIR 1950 SC 222. There is nothing in, the subsequent decisions which is contrary to what was laid down in this case. The subsequent decisions have only clarified what was stated in this case.

The definition given by Lord Justice Atkin in the case referred to by me earlier lays, down three tests -- (I) they must be a body of persons who have legal authority to determine questions, (2) the questions which they have to determine affect the rights of the subjects and (3) a duty must be imposed upon this body of persons to act judicially. It may be argued in the present case that before issuing a declaration u/s 6 of the Act, the State Government has to determine whether the land is needed for a public purpose.

It may also be said that any determination by the State Government will affect the rights of a subject. The difficulty arises in ascertaining whether the third test laid down does or does not exist in the present case. It has to be determined having regard to the provisions of the statute whether any duty is cast upon the Government to act judicially before issuing a declaration. In the case of AIR 1950 SC 222. Kania C. J. observed as follows at page 226:

It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a Judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inqury judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed.

Fazl Ali I. has said at page 229 as follows:

I have said enough with regard to the first contention, but I shall add just a few words more. For prompt action, the executive authorities have often to take quick decision and it will be going too far to say that in doing so they are discharging any judicial or quasi-judicial functions. The word ''decision'' in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is there any duty to decide judicially?

Das J. has summarised at page 259 as follows:

What are the principles to be deduced from the two lines of cases I have referred to ? The principles, as I apprehend them, are : (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 by one party under the statute which claim is opposed by Anr. party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, tire final determination of the authority Will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.

(12-13) These observations were again made in the case of Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, by S. R. Das, C. J. at page 116. After dealing with the case of Province of Bombay Vs. Kusaldas S. Advani and Others, and other English cases the learned Chief Justice observed as follows:

(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 by one party under the statute which claim is opposed by Anr. party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and

(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.

S. K. Das, J. at page 120 observed as follows:

To get to the bottom of the distinction, we must go a little deeper into the content of the expression ''duty to act judicially''. As has been repeated so often, the question may arise in widely differing circumstances and a precise, clear-cut or exhaustive definition of the expression is not possible. But in decisions dealing with the question several tests have been aid down; for example,

(i) whether there is a lis inter parties;

(ii) whether there is a claim (or proposition) and an opposition;

(iii) whether the decision is to be formded on the taking of evidence or on affidavits;

(vi) whether the decision is actuated in whole or in part by questions of policy or expediency and it 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.

In the case of ''Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation reported in AIR 1950 SC 308 at page 321 Subba Jao J., says that:

The criteria to ascertain whether a particular act is a judicial act or an administrative one, have been laid down with clarity by Lord Justice Atkin in 1924-1 KB 171 elaborated by Lord Justice Serutton in R. v. London County Council, Ex parte Entertainments Protection Association Ltd., 1931-2 KB 215 and authoritatively re-stated by this Court in AIR 1950 SC 222. They laid down the following conditions: (a) the body of persons must have legal authority; (b) the authority should be given to determine questions affecting the rights of subjects and (c) they should have a duty to act judicially.

He then quoted with approval the observation of Das, J. as he then was, in Khushaldas''s case AIR 1950 SC 222. Further be observed:

"This Court again, in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, in the context of the provisions of Eastern Bengal and Assam Excise Act, 1910 (I of 1910), considered the scope of the concept of ''judicial act''. Sinha, J., who delivered the judgment of the Court, made the following observations at page 408:

Whether or not an administrative body or authority functions as a purely administrative one or in a quasi-judicial capacity must be determined in each case, on an examination of the relevant statute and the rules framed thereunder.

In Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, this Court again reviewed the law on the subject to ascertain whether the Wage Board functioning under the Working journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955) was only discharging administrative functions or quasi-judicial functions. Bhagwati, J. made the following observation at p. 613:

If the functions performed by the Wage Board would thus consist of the determination of the issues as between a proposition and an opposition on data and material gathered'' by the Board in answers to the questionnaire issued to all parties interested and the evidence led before it, there is no doubt that there would lie imported in the proceedings of the Wage Board a duty to act judicially and the functions performed by the Wage Board would be quasi-judicial in character.

The authorities dealt with above clearly accepted the tests laid down by Lord Justice Atkin as the criteria for ascertaining whether a particular act is a judicial act or an administrative one. It is also clear from the reading of these cases that the real test which differentiates an administrative act from (sic) judicial act is the third criterion, namely whether (sic) is a duty to act judicially. The duty is to be (sic) from the provisions of the statutes and (sic) rules framed thereunder.

Ordinarily if there is a proposition by one party and an opposition by the other which is to he decided by the third party after taking evidence, there is a duly cast upon the body to act judicially, or, in other words, if there is a lis ordinarily there will be a duty on the part of the authority to act judicially. Even in cases where there are no two parties one making a claim and the other opposing it, and a third body has to decide the respective rights of the contesting parties, -- still if the statutory authority has power to do any act which would prejudicially affect the subject, the contest will be between the authority purporting to do the act and the subject opposing it and the final determination of the authority will still be a quasi-judicial act provided the authority is required by the statute to act judicially.

Reading the provisions of the statute under consideration in, the light of the observations set out above, in my opinion the State Government when making a declaration u/s 6, does not act in a quasi-judicial capacity. There is no duty cast upon the Government under the provisions of the Act or any rules framed thereunder to act judicially, liven an administrative act requires certain amount of determination and a fair and a just approach. But that does not mean that the act should necessarily be regarded as a quasi-judicial act. While making the declaration there are no two contending parties before the Government.

There are no indications in the provisions of the Act to show that the Government while making up its mind to issue the declaration has to give opportunity to the parties concerned to produce evidence before it and decide the matter on consideration of the evidence before it. The act of the State Government in issuing a declaration does not come under the first test laid down by Das, J. in the case of AIR 1950 SC 222, for determining whether there is an implied duty cast upon the body to act judicially. It can only come under the second test laid down by him; for there are no two contending parties whose rights are to be determined by a third party.

Dr. Medhi''s contention is firstly that the case is covered by the first test laid down by Das, J. inasmuch as there is a claim by his client that the land is not needed for a public purpose and there is an opposition by the department concerned for whose purpose the land is sought to be required. The matter is to be decided by the State Government after considering the respective claims of the parties and thus there is a lis. As I have already pointed out the acquisition may be for the purpose of constructing a food-grains godown by the Central Government but nonetheless u/s 6 of the Act the power of acquisition is sought to be exercised by the State Government.

In view of the provisions of the Constitution the power cannot be exercised except for a public purpose and before the State Government is satisfied that the land is needed for a public purpose, it may be expedient and necessary for the Government to ascertain certain facts. But it cannot be said that there is any proposition or opposition before the State Government which it has to decide before issuing a declaration and there is no question of a lis before the Government. Reliance was placed on the case of this Court reported in Mahesh Chandra Acharya Vs. Krishna Chandra Rudrapal and Others, Prabhat Chandra Deka v. K. C. Barua. That was a case where the land was requisitioned under, the Assam Land (Requisition and Acquisition) Act. The Act gave power to the authority to requisition land on existence of certain conditions. The order of requisition was appealable to the Government and the question for consideration was Whether the State Government when hearing the appeal against the order of requisition by the local authority was acting in a quasi-judicial capacity. There the requisition was made by a local authority which was opposed by the party. The statute had provided a right of appeal against the order of the requisitioning authority to the State Government.

The State Government obviously was a third party which had to decide the contesting claims of the requisitioning officer and the third party. Besides tins under the procedure prescribed by the Governor, the Minister hearing such appeals as a matter of practice used to issue notices to the parties, in view of all these circumstances it was held by this Court that the State Government was acting in a quasi-judicial capacity. That case in my opinion, therefore, does not help the petitioner.

Reliance was then placed on tire case of AIR 1959 SC 308 which I have already referred to. I have already quoted some observations made by Subba Rao, J., in that case which will go to show that the principles laid down in this case do not go contrary to the observations made in Khushaldas''s case AIR 1950 SC 222. On the consideration of the statute and the rules made thereunder it was held in that case that the Government in disposing of the objections was acting in a quasi-judicial capacity. The requirements of the Motor Vehicles Act which came up for consideration in Gullapalli Nageswara Rao''s case, AIR 1959 SC 308 are set out at page 324 of the Report. They are as follows:

The steps to be taken for nationalising the Road Transport under the Act are as follows: (1) The State Transport Undertaking, which is a statutory, authority under the Act, proposes a scheme; (2) the scheme may provide that the road transport services should be run or operated by the State Transport Undertaking to the exclusion of a per-son or persons; (3) any person affected may file objections before tire Government; (4) the Government "following the rules of judicial procedure decides the dispute between the Undertaking and that, person or persons affected; (5) the dispute is not necessarily confined only to the question whether the statutory requirements have been complied with, but may also relate to the question whether a particular person or persons should not be excluded; and (6) a personal hearing should be given to both the parties by the Government.

Under the Motor Vehicles Act an undertaking is created which presents a scheme providing for road transport services, in relation to an area to be operated by the said undertaking and persons are given opportunity to file objections before the State Government. The Government gives personal hearing to the objectors and the undertaking. The entire scheme of the Act visualises in case of conflict between 11 the undertaking and the private bus owner that the State Government should sit in judgment and resolve the conflict. Before the State Government there is a lis. The provisions of the Motor-Vehicles Act cannot be equated with Section 6 of the Act.

The argument of Dr. Medhi comes to this that in every case where the matter has not been left to the subjective determination of the authorities but that before exercising a power an authority has to determine certain facts objectively, necessarily there is an implied duty cast upon the authority to act judicially in such a circumstance. This contention cannot be accepted. As pointed out by Das, C. J. in the case reported in Radeshyam Khare and Another Vs. The State of Madhya Pradesh and Others, at p. 1.18:

The mere fact that a question of fact has to-be determined as a preliminary condition bolero action can be taken under the statute by itself does not carry that implication. There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined.

The following remarks made by Hewart, C. J. in. R. v. Legislative Committee of Church Assembly; Ex parte Haynes-Smith, (1928) 1 KB 411 at p. 415 which were approved by Lord Radeliffe in Nakkuda Ali v. M. F. De S. Jayaratne, 1951 AC 66, were quoted with approval by Das, C. J. in the above case:

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.

Dr. Medhi then contends that there is a very simple method for applying the third test laid down by Lord Justice Atkin and that is to find out whether the particular authority or tribunal has to ascertain facts according to law and if that tribunal or authority has to ascertain facts according to law and in ascertaining those facts that authority or tribunal cannot be influenced, by any considerations of policy or expediency then we must infer and must come to the conclusion that the tribunal or authority has to act judicially. If the tests were so simple, the task of courts would have been simplified and as observed by Chagla, C. J. in the case of Glaxo Laboratories (India) Private Ltd. Vs. A.V. Venkateswaran and Another,

Such simple tests, are always denied to Courts of law ... If all that had to be done was to apply the test as suggested by the Advocate General, then it would be/unnecessary for the courts in England to have emphasised the necessity of considering each case, on its own merits. In Advani''s case, AIR 1950 SC 222, it was pointed out that in applying this test it made no difference whether a decision of an officer was subjective decision or an objective decision.

Chagla, C J. further observed at page 376 of the report as follows :

It seems to us a rather difficult proposition to accept that whenever an officer is acting objectively and whenever he is required to act impartially and not to be influenced by policy or expediency, his order must in every case and of necessity be a quasi-judicial order. As one of the Judges in England has said, even an administrative officer not acting judicially may act reasonably, and we may say that even an administrative officer not acting judicially must act honestly and impartially. But to suggest that whenever there is a duty to act impartially and honestly, to be loyal to facts and not to persons, converts the decision of an officer into a quasi-judicial order, is a proposition which on the authorities we find it difficult to accept.

It may be convenient to examine at this stage the case of R. v. Manchester Legal Aid Committee; Ex parte R. A. Brand and Co., (1952) 2 QB 413 which though not cited before us by the counsel for the petitioner, has been considered in many cases. In this case a debtor had applied for legal aid and a certificate for legal aid was given to him. The debtor then became insolvent and the trustee in bankruptcy then applied for the legal aid certificate which had been given to the debtor. The legal aid certificate was given to the trustee to continue the bankrupt''s claim against the defendant which happened to be a company.

The company applied for an order of certiorari on the ground that the committee, under the Legal Aid and Advice Act of 1949 which had issued the certificate, had no power to grant a certificate to a trustee in bankruptcy, and the question that was raised and discussed at great length was whether the order passed by this committee was an administrative order or a quasi-judicial order, because a writ of certiorari could not have been issued unless it was held that the order passed by the committee was a quasi-judicial order.

Sir Hartley Showcross in his argument said that it would be shocking if a committee consisting entirely of lawyers had not to make its decisions judicially. Mr. Justice Parker in his judgment emphasised that it is not necessary that there should be a formal lis before it could be said that the decision of the authority is a, quasi-judicial decision. It is sufficient if there are proposals and opposition and evidence has to be taken by the authority. At p. 428 he observed as follows:

"The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances, which it would be impossible, and indeed, inadvisable, to attempt to define exhaustively. Where the decision is that of a Court, then, unless, as in the case, for instance, of justices granting excise licenses, it is acting in a purely ministerial capacity, it is clearly under a duly to act judicially. When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at that decision. 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."

Another passage at p. 431 is apposite and may be quoted:

The present case, as it seems to us, is an a fortiori case. Though the local committees may be said to be administrative bodies in the sense that they are responsible for administering the Act, they are quite unconcerned with questions of policy. They cannot refuse legal aid because the fund is-becoming depleted or because they think that certain forms of action should be discouraged. They have to decide the matter solely on the facts of the particular case, solely on the evidence before them and apart from any extraneous considerations. In other words, they must act judicially, not judiciously.

The judgment in this case also emphasised the fact that no exhaustive definition can be given of the circumstances in which it could be said that there was any duty on an authority or a tribunal to act judicially. It has to be inferred from the provisions of the statute; nor can it be said that in all cases where the decision is not to be guided purely by considerations of policy, there is an implied duty to act judicially. Even in cases where an administrative body''s decision is not to be actuated in whole or in part by questions of policy, before it can be inferred that it has to act judicially there must be a proposal and an opposition and the body must foe-required to base its decision on evidence.

Section 6 of the Act contemplates three stages, -- firstly that the appropriate Government should after consideration of the report submitted by the collector u/s 5-A be satisfied that the land is needed for a public purpose, secondly that: the said declaration should be made after the satisfaction and thirdly that the said declaration should be published under sub-section (2) of the section In the making of the declaration there is no implied duty cast on the State Government to act judicially. The State Government is not even bound to accept the report made by the Collector u/s 5A.

It is the satisfaction of the State Government alone which gives the jurisdiction to issue a declaration. The declaration under sub-section (3) of Section 6 will, be conclusive evidence that the land is needed for a public purpose. Reading of Section 6, to my mind, clearly leads to the conclusion that no duty has been cast on the State Government tinder See. 6 to act judicially in making a declaration u/s 6(1). The contention of the petitioner is that a writ of certiorari should be issued quashing the declaration issued under See. 6, as the State Government as the appropriate Government has not heard the petitioner and has thus violated the principles, of natural justice.

The argument is not that the condition precedent for the issue of a declaration u/s 6 namely the observance of the procedure laid down u/s 5A has not been complied with; nor the argument is that the acquisition for constructing a food-grains godown does not constitute a public purpose.

Some argument was made on the language of Section 5A(2) which provides that:

Every objection under Sub-section (1) shall be to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any as he thinks necessary submit the case for the decision of the appropriate Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the appropriate Government on the objections shall be final.

It is urged that the declaration u/s 6 embodies the decision of the Government on the objection filed by a person interested in the land before the Collector u/s 5A and as the Government has to decide and the Collector has to take evidence, the decision of the Government embodied in the declaration u/s 6 must be regarded as a quasi-judicial act and there must be an implied duty east upon the Government to act judicially when issuing a declaration u/s 6. In my opinion this argument has no substance. A declaration u/s 6 cannot be said to incorporate the decision of the Government on the objections. u/s 6(1) the Government has to be satisfied after taking into consideration the report made u/s 5A.

It nowhere speaks of the decision of the Gov-ernment on the objections filed u/s 5-A. Moreover, it may be that when the Collector is hearing the objection he may have to act judicially as he is required to give a hearing to the objector. But this does not necessarily mean that when the Government issues a declaration u/s 6 taking into consideration the report submitted u/s 5A, it has to act judicially. Thirdly it can also not be said that because the Government has to decide on the objections and its decision shall be final, it necessarily means that in deciding, the Government has to act judicially. The word ''decision'' is a neutral word and as pointed out by Fazl Ali. J. in the case of Khushal Das S. Advani, AIR 1950 SC 222 that by itself will not imply any duty to act judicially.

Lastly even if it is accepted that when the Collector is hearing the objections under See. 5-A and the Government is deciding the objection, it has to act judicially, a writ of certiorari maybe to quash the decision of the Government or the report of the Collector if the principles of natural justice have been violated, but unless it can be held that the Government has to act judicially in issuing the declaration, u/s 6, no writ of certiorari can issue quashing the said declaration for non-observance of the principles of natural justice.

There has been no violation of the principles of natural justice also in the present case. The contents of the principles of natural justice cannot be exhaustively defined. The argument is that a duty to act judicially is imported into the provisions of Section 6 of the Act, by reading that section along with Section 5-A. u/s 5-A the legislature itself provides that the hearing is to be given by the Collector and the satisfaction is to be of the State Government after taking into consideration the report made by the Collector and if the hearing has been given by the Collector, there can be no violation of the principles of natural justice in the State Government not giving any hearing to the petitioner before making a declaration. In the case of AIR 1959 SC 308 (ibid) it was held that:

The rules of natural justice vary with varying constitutions of statutory bodies, and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act.

The petitioner refers to the following observations at page 327 in support of his contention:

The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and Anr. decides, then personal hearing becomes'' an empty formality.

These observations have got to be read in the light of the facts and the provisions of the Motor Vehicles Act. As pointed out in this passage the Act and the rules framed thereunder had imposed a duty on the State Government to give a personal hearing and if some rule in the nature of instructions lay down some procedure which is contrary to the statute and the rules, that could not be upheld. In the present case, however, the statute itself provides that the hearing is to be given by the Collector.

The next point urged is that the notifications are vague and therefore should be quashed it is urged that from the perusal of the notification the area is not clear and it cannot be clearly found out which is the land which is sought to be acquired. The purpose of the notification u/s 4 of the Act is to carry on a preliminary investigation with a view to finding out after necessary survey whether the land was adapted for the purpose for which lit was sought to be required. It is only u/s 6 that a declaration is to be made by the Government that any particular land with proper description in area so as to be identifiable is needed for a public purpose or for a company.

What is a mere proposal u/s 4 becomes the subject-matter of a definite proceeding for acquisition u/s 6. Any vagueness in the notification u/s 4 therefore, cannot vitiate the entire acquisition proceeding. After the notification is issued u/s 4, persons interested have to file objections u/s 5A and in the present case the petitioner did file objection before the Collector. It cannot, therefore, be said that they were in any way misled by the absence of proper description of the land in the notification issued u/s 4. The boundary of the land which is declared to be needed for a public purpose u/s 6, is clearly set out in the notification and there can be no vagueness about the notification issued u/s 6 of the Act. The proceedings, therefore, cannot be held to be illegal for vagueness of the notifications.

Lastly it is urged that the notification is defective as it does not express to be in the name of the Governor. Reliance is placed on Article 166(1) of the Constitution, which provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. This clause of Article 166 does not deal with the manner in which the executive action is to be performed. It only lays down how the action is to be expressed. Clause 2 lays down the way in which the order is to be authenticated.

In the case of Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, it has been held that the provisions of Article 166(1) and (2) are only directory and strict compliance with the requirements of Article 166 gives only an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If therefore the requirements of the article are not complied with, the result of immunity cannot be claimed by the State. This however does not vitiate the order itself.

In this case the provisions of the Preventive Detention Act were under consideration and it was observed that all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not. That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law. In a later case of The State of Bombay Vs. Purushottam Jog Naik, an order passed u/s 3 of the Preventive Detention Act came up for consideration and it was observed as follows:

It will be noticed that Section 3 of the Preventive Detention Act enables certain authorities specified by it to make orders of detention. These include, not only State Governments but also the Central Government, any District Magistrate or Sub-Divisional Magistrate and certain Commissioner of Police. The list does not include the Governor of a State. Now though the term "State Government" appearing in an enactment means tire Governor of the State, there is no provision of law which equates the term Governor with the State Government of which he happens to be the head. On the contrary, the Constitution invests him with certain functions and powers which are separate from those of his Government. It was therefore appropriate that the order in this case should have set out that the Government of Bombay was satisfied and not some other authority not contemplated by the Act and that that Government directed the detention.

Section 6 of the Act requires satisfaction of State Government and it was just proper that the notification u/s 6 should have mentioned that it was the State Government which was satisfied and not the Governor. As to the publication, Section 6(2) itself says that the said declaration shall be published in the official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed and the approximate area. Sub-section (1) of Section 6 further requires that a declaration shall be made to that effect under the signature of Secretary to such Government or of some officer duly authorised to certify its orders. There is thus an express provision u/s 6 that the declaration is to be made under the signature of a Secretary and it is not disputed that the declaration has been made under the signature of the Secretary.

It was then contended that Section 6 requires satisfaction of the State Government. The Government has not proved by any cogent evidence that it was the minister in charge who was satisfied or who applied his mind to the purpose for which the land was needed and not any Secretary not authorised to do so. The only averment with regard to this is to be found in paragraph 8 of the petition wherein it is stated that:

It also does not appear from the notification that the appropriate Government had ever considered the matter.

From a reading of the petition as a whole to my mind, the averment only means that the Central Government which according to the petitioner is the appropriate Government in the present case, did not apply its mind and was not satisfied that the land was needed for a public purpose. There is no clear averment that the State Government which means the Governor on the advice of his ministers, did not apply its mind to the question whether the land was needed for a public purpose. The notification clearly states that it appears to the State Government that the land is required for a public purpose.

This statement in the notification satisfied to my mind, the requirement of Section 6. It is no doubt open to the petitioner to state that the appropriate Government was not satisfied and unless the appropriate Government is factually satisfied, the condition precedent for the exercise of power u/s 6 does not exist. But that would be a matter of fact to be clearly stated in the petition. There is no clear averment to that effect in the petition. Moreover the allegation in paragraph 8 of the petition has been denied by the opposite party.

In the affidavit filed by Sri R. S. Paramasivan, at present Secretary to the Government of Assam in the Revenue Department, it is clearly stated that,'' the Government was satisfied from reports received that the land was required for a public purpose as stated in the declaration and authorised the Secretary to issue the notification. There is no reason to doubt this averment and in the face of this statement in the affidavit it cannot be said that the Government has not proved the fact of satisfaction. The noting by the Minister-in-charge on the file may not be examinable by this court. What advice was given by the Minister concerned to the Governor is not a matter which can be examined by this court.

It is also not necessary that the Minister-in-charge himself should file an affidavit. As pointed out in the case reported in AIR 1952 SC 317, it is not necessary in every case to call the Minister-in-charge. If the Secretary or any other person has the requisite means of knowledge and his affidavit is believed, that will be enough to prove that the order was validly made by the Government of the State. In the result, therefore, I see no force in this petition and it should be rejected with costs -- hearing fee assessed at Rs. 300/- (three hundred). DEKA, C. J. :

I have little to add to the elaborate judgment prepared by my learned brother Mehrotra, J.-- with whom I substantially agree.

DATTA, J.

I have bad the advantage of reading the judgment; prepared by my learned brother Mehrotra, J. While agreeing with the views on the other points, I regret that I am compelled to dissent from his view relating to the contention on behalf of the petitioner, that the State Government acts quasi judicially in making its decisions under Sections 5A and; 6(1) of the Land Acquisition Act, and that, therefore, the Government should have given a hearing to the objector before making their decision.

In the aforesaid sections the procedure prescribed is as follows:

Section 5A provides that after the publication of the preliminary notification any person interested in any land which has been notified as being needed or likely to be needed for a public purpose or for a company may within thirty days after the issue of the notification object to the acquisition of the land or of any land in the locality, as the case may be. The objection is to be made to the Collector in writing and the Collector is to give a hearing to the objector either in person or by pleader.

After making such further enquiry as may be thought necessary, the Collector is to submit the case for the decision of the appropriate Government together with the record of the proceedings and a report containing his recommendations on the objections. The decision of the Government on those objections shall be final. Section 6 provides that when the Government is satisfied after considering the report made u/s 5-A, if any, that the lances needed for a public purpose or for a company, it will issue notification u/s 6(1) and proceed to acquire the land in the prescribed manner.

It is not disputed that matters of administrative character are not amenable to a writ of certiorari. So the question is whether in arriving at a decision u/s 5A and at the satisfaction u/s 6(1) of the Land Acquisition Act, the Government has to act judicially. The dictum laid down by Lord Justice Atkin (as he then was) in 1924-1 KB 171 as a test for determining a judicial act has been cited with approval in numerous cases and accepted as the correct test. It runs as follows:

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs.

This passage was referred to by Das, C. J. in AIR 1959 SC 107. His Lordship pointed out that this definition insisted on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) mast be legal authority; (2) to determine the questions affecting the rights of parties; (3) must have the duty to act judicially.

His Lordship then went on to observe that the question whether or not there was a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular stabile with the assistance of the general principles laid down in the judicial decisions. These Principles as deducible from various judicial decisions considered by the Supreme Court were then formulated as follows : (1) That if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes-arising out of a claim made by one party under the statute which claim is opposed by Anr. party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; (2) that if a statutory authority has power, to do any act, which would prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.

Dr. Medhi contends that in the present case the Food Department of the Government of India wants the land in question and the petitioner has raised various objections. Thus there is a proposition and opposition, that is, a lis. Here the right of property of the petitioner is sought to be invaded, and hence the Government must act judicially in disposing of the objections raised by the petitioner and in arriving at the satisfaction as to the public purpose. II this argument of Dr. Medhi that there is a lis between two parties is accepted there is no difficulty and prima facie the Government has to act quasi-judicially in coming to its decision.

In my view, if no objection is raised, there is no lis and in that case the question whether the land lis or is not needed for public purpose has to be left to the subjective satisfaction of the Government. But the position becomes quite different when there is any objection. Certain Rules laid down in the Assam Land Acquisition Manual also deal with hearing of objections u/s 5-A of the Act. They arc as follows:

An objection may be filed u/s 5A(1) on the following, amongst other grounds :

(a) that the purpose for which the land is required is not a bona fide public purpose; or

(b) that the particular land notified is not the best adapted to the Purpose or that the area is greater than is necessary; or

(c) that the land contains religious buildings, tombs and graveyards.

2.(a) The objector shall state fully the nature of his interest in the land to be acquired and shall state whether he is or is not in actual possession of the interest. He will be required to prove his interest to the satisfaction of the Collector before his objection is admitted and, if he fails, the objection may be summarily dismissed.

(b) If the objection is admitted by the Collector, he shall fix date of hearing and shall send a copy of the objection to the Department of Government, Local Authority or Company, on whose behalf the acquisition proceedings have been instituted. The Collector shall allow such body to be represented at the enquiry and shall give the representative of such body an opportunity of being heard.

(c) The Collector shall examine Witnesses tendered on behalf of the objector or the opposite party. The proceedings shall be summary and only the substance of the statements made by the parties and their witnesses, if any, shall be recorded.

From the above it is quite clear that the Government Department or the local authority or the company on whose behalf the acquisition proceedings are instituted is to be treated as a party to the dispute and notice is to be served on it. Apparently in such circumstances there is a lis arid the Government has to act quasi-judicially. The owner of the land can challenge not only the public purpose but he can also raise all kinds of objections including the objections mentioned in Rule 1 above and in coming to a decision on these objections the Government should obviously follow the recognised principles of approach.

But even assuming that there is no lis and if it is a case where the Government has power to acquire the land and Sin''s will prejudicially affect the petitioner although there are not two parties apart from the Government, yet the decision of the Government will be quasi-judicial provided the Government is required by the statute to act judicially. In this connection I may again quote the observations made by Das, C. J. in the aforesaid case of AIR 1959 SC 107.

The sole question is, does the statute require the State Government to act judicially. There need not be any express provision that the Stale Government must act judicially, ft will be sufficient if this duty may be implied from the provisions of the statute. The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself, does not carry that implication. There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined.

In the case of 1950 SCR 021: (AIR 1950 SC 222) the Supreme Court by a majority held that on a proper construction of Section 3 of the Bombay Land Requisition Ordinance the decision of the Bom-bay Government that a property was required for a public purpose was not a judicial or quasi-judicial decision but an administrative act. It was submitted in that case that unlike the Land Acquisition Act, there was no provision in the Ordinance for issuing a notice or for inquiries to be made, or for rival contentions to be examined and evidence to be weighed before a decision was arrived at. In this connection Fazl Ali, J. made the following observations:

As I have already said there is nothing in the Ordinance to show that the Provincial Government has to decide the existence of a public purpose judicially or quasi judicially. It is not obliged to call for or consider any objections, make any inquiry or hear evidence, but it may proceed in its own way ex parte on prima facie ground just to see that it is acting within the limits of the power granted to it. Besides, the determination of the public purpose per so does not affect tire rights of any person. It is only when the further step is taken namely when the Provincial Government forms an opinion that it is necessary or expedient for the public purpose to requisition certain premises that the rights of Ors. can be said to be affected.

His Lordship further observed:

Without going into the numerous cases cited before us, it may be; safely laid down that an order will be a judicial or quasi-judicial order if it is made by a court or a judge, or by some person or authority who is legally bound or authorised to act as if he was a court or a judge. To act as a court or a judge necessarily involves giving an opportunity to the party who is to be affected by an order to make a representation, making some kind of inquiry, hearing and weighing evidence, if any, and considering all the facts and circumstances bearing on the merits of a controversy, before any decision affecting the rights of one or more parties is arrived at.

As I have said above, Section 5A of the Land Acquisition Act and some rules deal with disposal of objections raised by the petitioner and a procedure of inquiry is provided under the Act. So, in my opinion, "the powers to be exercised under Secs. 5-A and 6(1) of the Act are quasi-judicial powers. In this view of the matter, the Government must act according to the fundamental principles of natural justice and give the objector a hearing so that he has a reasonable opportunity of placing his case. In A.K. Gopalan Vs. The State of Madras, Fazl Ali, J. referred to several cases to show that the fundamental principle that a person whose right is affected must be heard had been observed not only in cases involving personal liberty but also in proceedings affecting other rights.

Reference may be made to Cooper v. Wands worth Board of Works, (1863) 14 CB (N. S.) 180. This was a case under an Act which empowered the District Board to alter or demolish a house where the builder had neglected to give notice of his intention seven days before proceeding to lay or dig the foundation. Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal. Erle, C J. observed in this case:

It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding.... I do not quite agree with that; ... the law, I think, has been applied to many exercises of power which in common understanding would not be at all more a judicial proceeding than would be the act of the District Board in ordering a house to be pulled down.

For the above reasons, I am of the opinion that the Government acts judicially under Sections 5A and 6(1) of the Land Acquisition Act and hence such an action must conform to the principles of natural justice. One of these principles is that a party whose civil rights are affected must have a reasonable opportunity of presenting its case. This principle is based on the maxim "Audi alteram partem" i.e., hear the other party. It is true that it does not necessarily mean that the party must be orally heard in every case unless there is statutory obligation to do so.

The requirement to give an oral hearing will depend on the circumstances of a particular case; In the present case, the petitioner gets no opportunity of rebutting the Collector''s report if it is against him or, of supporting it, if it is in his favour, unless he is given an opportunity of being orally heard. So, in my judgment he should have been given such an opportunity and as no such opportunity was given a writ of certiorari should be granted for quashing the notification u/s (5)(i) of the Lund Acquisition Act so that the same may be issued again if the objections of the petitioner are still rejected alter he has an opportunity of being heard.

ORDER BY THE COURT-

By the majority view, as given in the judgment, the rule is discharged with costs.