PROVINCE OF BOMBAY versus KUSALDAS S. ADVANI AND OTHERS

Citation: [1950] 1 S.C.R. 621 · Decided: 15-09-1950 · Supreme Court of India · Bench: HARILAL JEKISUNDAS KANIA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

S.c.R. 
SUPREME COURT REPORTS 
PROVINCE OF BOMBAY 
ti. 
KUSALDAS S. ADV ANI AND OTI;IERS 
[SHRI fuRILAL KANIA c. J., SAIYID FAZL ALI, 
PATANJALI SASTRI, MEHR CHAND MAHAJAN, 
Mt:KHERJV.A and DAs JJ.] 
621 
Bombay I.And Requisition Ordinance ( V of 1947), ss. 3, 4, 10, 
12-0rder requisitioning Land-Application for writ of certiorari 
-Order of requisition, whether judicial or quasi-judicial act, or 
administrative act-Construction of s. 3-Existence of public pur-
pose, whethe1· condition precedent to exercise of power ·to requisition 
-Whether collateral fact or compo,site part of power to requisition-
Distinction between jujicial or quasi-judicial acts, and administr• 
tive acts-Guiding principles and tests-Writ of certiorari-Nature 
and incidents of the writ- -Power of High Court to issu' writ 
ogainst Provincial Government-Government of India Act, 1935, 
ss. 176, 306-"Sue," meaning of. 
Held by the Full Court, (KANIA C. J., 
FAZL Au, PATANJALI 
SASTRI, · MEHR . CHAND MAHAJAN, MuKHERJEA and DAs JJ.).-A 
writ of cei·tiorari lies whenever a body of persons having legal 
authority to determine questions affecting the rights of subjects 
and having the duty to act judicially act in 
ex~ess of their legal 
authority ; it docs not lie to remove or adjudicate upon an order 
which is of an administrative or ministerial nature. 
Section 
3 
of 
the 
Bombay 
Land 
Requisition 
Ordinance 
(V of 1947) provided as follows:-"If in the opinion of the Pro-
vincial Government it is necessary or expedient to do so the Pro-
vincial Government may, by order in writing requisition any land 
for any public purpose: Provided that no land used for the pur-
pose· of public religious worship or for any purpose which the 
Provincial Government may specify by notification in the Official 
Gazette shall be requisitioned under this section." 
The l st res-
pondent wbo was a ·refugee from Sind got an assignment of the 
tenancy rights in a flat in Bombay and went into possession of 
the flat. 
A few days later the Government of Bombay issued an 
order requisitioning the Rat under s. 3 of the abovesaid Ordi-
nance, 
allotte~ the samo:: to another refugee and issued orders to 
an Inspector to take possession of the same. On an application 
under Art. 32 of the Constitution, a writ of certiorari was issued 
by the Bombay High Court against the Province of Bombay and 
others and this order was confirmed on appeal as against the 
Province· of Bombay by a Division Bench of the said High Court. 
Held, per KANIA C. J., FAzL Au, PATANJALI 
SAsTR1 and 
DAs 
]J. 
(MAHAJAN and MuKHERJEA JJ. dissenting)-that on a 
proper construction of s. 3 of the Ordinance the decision of the 
Bombay Government that the property was required for a public 
1930 
Sept. 15. 
1950 
Province. of 
Bombay 
v. 
K. S. Advtmi 
ad OtherJ. 
622 
SUPREME COURT REPORTS 
jl950J 
purpose was 
no.~ a judicial or quasi-judicial decision but an ad-
1ninistrative act and the High Court of Bombay had therefore no 
jurisdiction to issue a writ of ceriiorari in respect of the order of 
requisition. 
Per 
MAHAJAN and 
MuKlffiRJEA 
Jj. 
(contra).-The 
Go\·ernn1ent of Bombay is a body of persons having legal autho-
rity co d<;terminc questions affecting the rights of subjects and in 
deciding whether a land was required for a public purpose under 
s. 3 of the Ordinance it had to :ict judicially. The conditions 
necessary for the granting of a \\'rit of certiorari were accordingly 
satisfied :ind the. J Jigh Court of. Bo1nhay had power .to issue the 
\\'rit. 
~ 
KANIA C. J.-Though a writ of certiorari 1nay be issued where 
a body of persons having legal authority to determine questions 
affectin,;; the rights of subjects anJ haYing a duty to act judicially 
act in excess of their legal authority, yet merely because an 
c::xe~ 
cutive authoritv has to detern1ine certain objective facts affe-.:ting 
the rights of subjects as a prelin1inary step to the discharge of an 
executive function it does not follow that it tnust determine those 
facts judicially. On the contrary, when the executive 
authority 
has to forn1 an opinion about an objective matter as a preliminary 
step to the exercise of a certain power conferred on it, the 
deter~ 
mination of the ohjectivc iai.::t anJ the exercise of the power based 
thereon are alike nlatters of an administrative character and arc 
not amenable to the \\'rit of certiorari. 
It cannot be laid do\vn broadly that in order that a 
deter~ 
mination may be a judicial or 

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