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PETITIONER: SHR1 RADESHYAM KHARE & ANOTHER

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH & OTHERS

DATE OF JUDGMENT: 30/09/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. DAS, S.K. KAPUR, J.L. SUBBARAO, K.

CITATION:  1959 AIR  107            1959 SCR  Supl. (1)1440  CITATOR INFO :  F          1962 SC1110  (8)  R          1965 SC1518  (9,10)  R          1965 SC1578  (16)  OPN        1967 SC1353  (5)  RF         1967 SC1507  (6)  RF         1973 SC2237  (3)

ACT: Municipality  -  Appointment of Executive Officer  by  State Governmcnt-If   an  administrative  act-C.  P.   and   Berar Municipalities Act, 1922 (Act II of 1922), ss. 53A and 57.

HEADNOTE: The main point for decision in this appeal by the  Municipal Committee  of  Dhamtari and its President  was,  whether  in appointing  an Executive Officer in exercise of  its  powers under  s.  53A of the C. P. and  Berar  Municipalities  Act, 1922,  the State Government acted in a judicial capacity  or in an administrative one Complaints having been made against the appellants, the additional Deputy Collector was directed to  hold an enquiry and on his report the State  Government, by a notification under that section, appointed an Executive Officer  of  the  Municipal Committee  for  18  months  with specified  powers  and duties.  The  appellants  were  given notice of the said enquiry, filed objections 1441 and  the President was personally present on some  occasions during the enquiry.  The notification charged the appellants with  incompetency as well as abuse of power.  Against  that notification the appellants moved the High Court under  Art. 226,  of the Constitution for a writ of certiorari  quashing the  same, but their application was rejected by  the  judge sitting singly.  An appeal under the Letters Patent  against his  decision  was summarily dismissed.   It  was  contended before  this  Court on behalf of the  appellants  that,  (1) although  the notification purported to be one under s.  53A of the Act, it was in effect and reality one under s. 57  Of the  Act,  that  (2) it was,  therefore,  incumbent  on  the Government  under  s.  57(5)  of  the  Act  to  afford   the

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appellants  an opportunity to furnish explanation  and  that (3)  even  if the notification was one under s. 53A  of  the Act,  the  Government  was bound by  the  rules  of  natural justice  to  give the appellants an  opportunity  to  defend themselves. Held  (per  curiam), that ss. 53A and 57 of the  C.  P.  and Berar Municipalities Act, 1922, differed materially in their scope and effect, but it was not obligatory under either  of them for the Government to take any action at all.  Although a  finding of incompetency of the Municipal Committee was  a condition  precedent to action under both the sections,  the Government  was  free to choose its remedy as  the  occasion demanded  and  it  could not be  contended  that  because  a notification  made  under s. 53A of the Act,  along  with  a finding  of incompetency, contained some instances of  abuse of power as well, it must be held to have been made under S. 57 of the Act. Nor  could the vesting of power in the Executive Officer  by the notification, however substantial in character, be said, in  effect  and reality, to amount to a dissolution  of  the Municipal Committee under S. 57 Of the Act. Per Das C. T. and Kapur J.--The real test whether the  State Government functioned in a quasi-judicial capacity or in  an administrative  capacity in exercising its powers  under  S. 53A  of the Act was whether the statute required it  to  act judicially  either  expressly or by  implication.   The  Act contained no express provision to that effect, nor could the determination  of  the fact of incompetency-as  a  condition precedent to any action under that section, by itself, carry such  an implication.  In making the notification  under  S. 53A  of the Act, therefore, the Government functioned in  an administrative  capacity  and not in a  quasi-judicial  one. Even so, by the enquiry held, the State Government  afforded the  appellants ample opportunity to defend  themselves  and there could hardly be any ground for complaint. Province  Of  Bombay  v. Kusaldas S. Advani,  [1950]  S.C.R. 621,  Rex v. Electricity Commissioners, [1924] 1  K.B.  171, Rex  v.  London County Council, [1913] 2 K. B.  215,  R.  v. Legislative Committee Of the Church Assembly, (1928) 1  K.B. 411 and Nakkuda Ali’s Case, 1951) A.C. 66, referred to. 1442 Per  Bhagwati J.-Since the enquiry held in this  case  fully satisfied  the  requirements  of  natural  justice,  it  was unnecessary  to  determine  for the  purpose  of  this  case whether the State r Government in acting under s. 53A of the Act   did  so  in  a  quasi-judicial  capacity  or   in   an administrative one. Per S. K. Das J.-If the question was one of compliance  with the  rules  of  natural justice, the  enquiry  held  in  the present case could hardly be said to have complied with such rules; but since the State Government in acting under s. 53A of  the Act had only to consider policy and  expediency  and did  at no stage have any form of lis before it, its  action thereunder  was  purley of an administrative  character  not amenable to a writ of certiorari. R.v. Manchester Legal Aid Committee, (1952) 2 Q. B.  413, applied. Per  Subba Rao J.-On a proper appreciation of  the  criteria laid  down  by s. 53A of the Act itself, there could  be  no doubt that it imposed a duty on the State Government to  act judicially  in ascertaining the fact of the incompetency  of the Municipal Committee to perform its duties.  It is  clear that  the determination of such a jurisdictional fact  could not  have  been left to the subjective satisfaction  of  the

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Government  but  was intended to be arrived  at  objectively and, therefore, it was incumbent upon the Government to give a  reasonable opportunity to the appellants to  explain  the charge  levelled against them.  Such enquiry as was held  in the  instant case could hardly take the place of  reasonable opportunity  to be given by the Government for the  proposed action under s. 53A of the Act. Rex  v. The Electricity Commissioners, (1924) i K.  B.  171, Province of Bombay v. Kusaldas S. Advani, [1950] S.C.R.  621 and R.   v.  Manchester Legal Aid Committee, (1952) 2 Q.B.  413, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 301 of 1958. Appeal  by special leave from the judgment and  order  dated February  21,  1958,  of the Madhya Pradesh  High  Court  at Jabalpur  in Letters Patent Appeal No. 22 of  1958,  against the order dated February 20, 1958, of the said High Court in Misc.  Petition No. 266 of 1957. M.K.   Nambiyar,  S.  N. Andley,  J.  B.  Dadachanji  and Rameshwar Nath, for the appellants. M.   Adhikari, Advocate-General, Madhya Pradesh and 1. N. Shroff, for the respondents. 1443 1958.    September   30.   The  following   Judgments   were delivered: DAS  C.J.-There  are  two appellants in  this  appeal.   The second  appellant  is the Municipal  Committee  of  Dhamtari constituted  under the C. P. and Berar  Municipalities  Act, 1922  (Act  11  of  1922) and the  first  appellant  is  its President having been elected as such on July 10, 1956.   He assumed charge of his office as President on July 27,  1956. It  may  be  mentioned that he was returned  as  a  Congress candidate  but has since been expelled from that  party  for having contested the last general election as an independent candidate against the Congress candidate. It  appears  that there are two factions  in  the  Municipal Committee.   The  first appellant alleges that  one  Dhurmal Daga,  a member of the committee belonging to  the  Congress party was on August 7, 1956, deflected importing within  the municipal  limits  certain cloth without paying  the  octroi duty.   Dhurmal  Daga, on the other hand, alleged  that  the first  appellant  was guilty of grave mismanagement  of  the affairs of the Municipal Committee and went on hunger strike for securing the appointment of a committee to enquire  into the  misconduct  of  the first  appellant.   Copies  of  the leaflets  containing the demands and charges which are  said to  have been widely distributed are annexures I and  11  to the  present petition.  It appears that several persons  and firms  also preferred charges against the  first  appellant, the  President of the Municipal Committee.   The  Collector, Raipur, personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would  look into the matter.  The Collector deputed one Shri N. R.  Rana the   Additional  Deputy  Collector  to  enquire  into   the complaints  of  maladministration  of  the  affairs  of  the Municipal Committee.  By a Memorandum No. K/J N. P. Dhamtari dated  August 24, 1956, the said N. R. Rana called upon  the first appellant as tile President of the second appellant to give detailed explanation of each complaint, a list of which was  enclosed  therewith.  A copy of that  memorandum  along with its 22 enclosures

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1444 is annexed to the petition and marked 111.  Annexures IV and V to the petition are copies of the detailed  report on  the objections  and  the reply to the charges made  against  the Municipal  Committee  submitted  from  the  office  of   the Municipal Committee by the first appellant as the  President of the Municipal Committee.  The Additional Deputy Collector thereafter held the enquiry.  The High Court states that  it had  "  gone  through  the  materials  on  which  the  State Government  based  its action on enquiry  into  the  charges levelled  against  the  Municipal  Committee  and  that  the records of the enquiry showed thaton  some  occasions   the petitioner was present duringthe  enquiry  ".  Thereis   no suggestion  that  the appellants wanted  an  opportunity  to adduce any evidence or were prevented from doing so or  that they were in any way hampered in their defence.   Presumably the  Additional Deputy Collector had made a report which  in due course must have been forwarded to the State Government. On  November 18, 1957, a notification was published in  the Official  Gazette whereby the State Government, in  exercise of  the  powers conferred on it by s. 53-A of the  C.  P.  & Berar  Municipalities  Act, 1922, appointed one Shri  B.  P. Jain,  the  second respondent before us,  as  the  Executive Officer  of the Municipal Committee, Dhamtari, for a  period of  18 months with certain powers as therein  mentioned.   A copy  of that notification has been annexed to the  petition and marked VIII but as the major part of the arguments  can- vassed before us turns on the contents of that  notification the same is reproduced below in extenso: " Dated, Bhopal, the 18th November, 1957, No.  9262/11538-U- XVIII-Whereas  it appears to the State Government  that  the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the  Central Provinces  and Berar Municipalities Act, 1922 (11 of  1922), inasmuch as it- (a)granted  grain and building advances to  the  employees without  prior sanction and no efforts were made  for  their recovery, (b)  showed carelessness in cases of embezzlement 1445 of   the  employees  and  did  not  report  such  cases   to Government, (c)failed  to control the President who issued  orders  in cases in which he had no authority (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed   unconcerned  persons  to  interfere  in   its working, (f)showed partiality in the appointments and dismissals of the employees, further such appointments and dismissals were made against rules, (g)delayed  the  constitution  of the  committee  and  the framing of budget, (h)  misused the trucks of the municipality, (i)  failed to recover the lease money, (j)  shown partiality in the issue of transit passes to certain  traders, further excess octroi duty was charged  on certain  articles and in certain cases where octroi duty  is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any  charge, similarly distributed the manure free  of  cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money  of the Municipal Committee without any authority,

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(m)spent  huge amount on the maintenance of the roads  and drainage but their condition has remained unsatisfactory, (n)failed  to  give. copies of the  documents  as  allowed under rules, also failed to allow its members to inspect the records as is permissible under rules, (o)failed  to invite tenders of purchase of articles,  and whereas,  the  State  Government considers  that  a  general improvement  in  the administration of the  Municipality  is likely to be secured by the appointment of a servant of  the Government as Executive Officer of the Committee. Now,  therefore,  in  exercise of the  powers  conferred  by section 53-A of the Central Provinces and Berar 1446 Municipalities Act, 1922 (11 of 1922), the State  Government are pleased to appoint Shri B. P. Jain, Deputy Collector, as executive Officer of the Municipal Committee, Dhamtari,  for a  period  of eighteen months  from the date of  his  taking overcharge and with reference to sub-section (3) thereof are further  pleased to direct that the Executive Officer  shall exercise and perform the following powers and duties of  the Committee  to  the exclusion of  the  Committee,  President, Vice-President  or  Secretary, under the provisions  of  the Central Provinces and Berar Municipalities Act, 1922 (11  of 1922), namely:- Chapter 111.  Appointment of Officers and  servants-Sections 25, 26 and 28. Chapter IV.  Procedure in Committee meeting Section 31. Chapter V. Property, contract and liabilities Sections 37 to 45. Chapter VI.  Duties of Committee-Sections 50 and 51. Chapter VIII.  The municipal fund-whole. Chapter IX.  Imposition, assessment and collection of taxes- whole. Chapter X. Municipal Budgets and accounts whole. Chapter  XI.   Powers  to regulate  streets  and  buildings- Sections 90 to 94, 96, 98, 99, 103 and 104. Chapter XII.  Powers to prevent disease and public nuisance- Sections 117, 118(1), 119 and 132. Chapter  XVIII.  Offences, practice  and  procedure-Sections 218-223. Chapter  XIX.   Special provisions for  recovery  of  taxes- whole. The  Executive  officer shall exercise  general  supervising powers  in  respect of all matters covered  by  the  Central Provinces and Berar Municipalities Act, 1922 (11 of 1922). In Hindi (By order of the Governor of Madhya Pradesh)                  S. S. Joshi,               Deputy Secretary." 1447 On December 21, 1957, the two appellants before us presented before  the Madhya Pradesh High Court the writ petition  out of  which the present appeal has arisen and on  January  11, 1958,  obtained an order staying the operation of the  order of appointment of the Executive Officer.  The writ  petition was  dismissed  on February 20, 1958.  There was  a  Letters Patent Appeal which was dismissed in limine on February  21, 1958.  The application for -certificate under Arts. 132  and 133  was refused on March 21, 1958.  The present  appellants applied  for and on April 1, 1958, obtained from this  Court special  leave  to appeal from the judgment  of  the  Madhya Pradesh  High  Court.  The interim stay order made  by  this Court  was eventually vacated on May 13, 1958.   The  appeal has now come up before us for final disposal. Shri  M.  K. Nambiar, appearing in support of  this  appeal,

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urged three points, namely (i)that though the Notification purports to have been made in   exercise  of  the  power,,;  conferred  on  the   State Government  by s. 53-A, in substance and in reality  it  has been made under s. 57 of the Act; (ii)that  if the Notification is held to be one made  under s.  57  it  is  ultra vires  and  bad  since  the  statutory requirements of affording reasonable opportunity to  explain has not been complied with; (iii)that even if the impugned Notification be held  to come  within  s. 53-A it is still ultra vires  since  before promulgating it the State Government has committed a  breach of   the  rules  of  natural  justice  in  not  giving   any opportunity to the appellants to defend themselves. There  was  a  charge of mala fide made  against  the  State Government  founded on the fact that the  first  appellant’s leaving the Congress party had resulted in ill-will  towards the  first  appellant of that -party which  was  the  ruling party  in the State Government, but as that charge  has  not been  pressed before us nothing further need be  said  about it.  I now proceed to deal with the three points  formulated above by learned counsel for the appellants. 184 1448 Re. (i) and (ii): These two points are correlated and may be conveniedtly  dealt with together.  The argument in  support of them is developed in two ways.  In the first place it  is said that the grounds set forth in the impugned notification clearly  indicate  that in substance and in reality  it  has been issued rather under s. 57 of the Act than under s.  53- A.  In order to appreciate this argument it is necessary  to set   out  the  two  sections  of  the  C.  P.   and   Berar Municipalities Act, 1922 in extenso: "  53-A. (1) If a committee is not competent to perform  the duties  imposed on it or undertaken by it by or  under  this Act  or any other enactment for the time being in force  and the State Government considers that a general improvement in the  administration  of  the municipality is  likely  to  be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may,  by an order stating the reasons therefor published  in the  Gazette, appoint such servant as the executive  officer of  the  committee for such period  not  exceeding  eighteen months as may be specified in such order. (2)Any  executive officer appointed under  subsection  (1) shall  be deemed to be an officer lent to the  committee  by Government under sub-section (3) of section  25. (3)When under subsection (1) an executive officer    is appointed  for  any committee, the  State  Government  shall determine  from  time  to  time  which  powers,  duties  and functions  of  the committee, president,  vice-president  or secretary  under  this  Act  or  any  rule  or  byelaw  made thereunder shall be exercised and performed by such officer, in  addition to, or to the exclusion of, their exercise  and performance by the said committee, president, vice-president or secretary. (4)  The secretary of the committee shall be subordinate  to the executive officer. (5)  The  executive officer shall have the right  to  attend all  meetings  of the committee and any joint  committee  or sub-committee  and to take part in the discussion so  as  to make an explanation in regard to 1449 the subject under discusion, but shall not move, second,  or vote on any resolution or other motion.  "

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"  57.  (1) If a committee is not competent to  perform,  or persistently makes default in the performance of, the duties imposed  on  it or undertaken by it under this  Act  or  any other  enactment for the time being in force, or exceeds  or abuses  its powers to a grave extent, the  State  Government may,  by an order stating the reasons therefor published  in the Official Gazette, dissolve such committee and may  order a fresh election to take place. (2)If after fresh election the new committee continues  to be  incompetent  to  perform,  or to  make  default  in  the performance of, such duties or exceeds or abuses its  powers to  a  grave extent, the State Government may, by  an  order stating  the  reasons  therefor published  in  the  Official Gazette,  declare  the  committee to be  incompetent  or  in default,  or to have exceeded or abused its powers,  as  the case  may be, and supersede it for a period to be  specified in the order. (3)If  a  committee  is so dissolved  or  superseded,  the following consequences shall ensue : (a)all members of the committee shall, as from the date of the order, vacate their offices as such members; (b)all  powers and duties of the committee may, until  the committee  is reconstituted, be exercised and  performed  by such person or persons as the State (Government may  appoint in that behalf; (c)  all  property vested in it shall until the commitee  is reconstituted vest in the State Government. (4)On  the  expiration  of  the  period  of   supersession specified  in  the order, the committee shall  be  reconsti- tuted, and the persons who vacated their offices under  sub- section (3), clause (a), shall not, by reason solely of such supersession be deemed disqualified for being members. (5)  No order under sub-section (1) or subsection (2)  shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. (6)  Any person or persons appointed by the State 1450 Government to exercise and perform the powers and duties  of a dissolved or superseded committee may receive payment,  if the  State Government so directs, for his or their  services from the municipal fund." Learned counsel for the appellants points  out  that action may be taken under s. 53-A "  if  a committee is not competent to perform the duties imposed  on it ............... and the State Government considers that a general   improvement   in   the   administration   of   the municipality  is  likely to be secured Whereas under  s.  57 action  can  be  taken  not only " if  a  committee  is  not competent  to perform or persistently makes default  in  the performance of the duties imposed on it or  but also if  the committee exceeds or abuses its powers to a grave extent  It is  pointed out that in case of incompetency action  can  be taken either under s. 53-A or s. 57 but in case of abuse  of power  action  can be taken only under s. 57.  Reference  is then  made  to the grounds enumerated  in  the  notification itself and it is argued that except perhaps grounds a, b,  c and  g  which may be indicative of incompetency,  the  other grounds,  which  are, by far, greater in  number,  obviously constitute  abuse of powers and from this  circumstance  the conclusion  is sought to be drawn that in substance  and  in reality the impugned notification must have been made  under s.  57  and that that being so the  notification  cannot  be sustained because of the non-compliance with the  provisions of  sub-s.  (5) of s. 57 which expressly lay  down  that  no order  tinder  sub-s.  (1)  or (2)  shall  be  passed  until reasonable  opportunity has been given to the  committee  to

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furnish  an explanation.  I am not persuaded to uphold  this argument. In  the  first  place  it has to  be  remembered  that,  the sections  under consideration only confer certain powers  on the  State  Government but that the latter is not  bound  to take any action under either of them.  In the next place  it should  be noted that the two sections differ materially  in their scope and effect.  Under s. 53-A the State  Government may  only  appoint  a  servant  of  the  Government  as  the Executive  Officer of the committee and may determine,  from time to time, 1451 which powers and duties and functions of the committee,  its president,  vice-president or secretary shall  be  exercised and  performed  by such officer and  indicate  whether  they should be exercised and performed in addition to, or to  the exclusion  of,  their exercise and performance by  the  said committee,  president,  vice-president  or  secretary.   The wording of s. 53-A makes it quite clear that the action that may  be taken thereunder is to be effective for a  temporary duration  not exceeding 18 months and the purpose of  taking such  action  is  to  ensure  the  proper  performance   and discharge of only certain powers, duties and functions under the  Act.   The section does not, in terms,  affect,  either legally  or factually, the existence of the  committee,  its president,  vice  president or the secretary.   Section  57, however,   authorises   the   State   Government,   in   the circumstances mentioned in the opening part of that section, to dissolve the committee itself and order a fresh  election to take place so that the committee as a legal entity ceases to exist and all the sitting members of the committee become functi  officio.   If  after such fresh  election  the  same situation prevails, then that section further authorises the State Government to declare the committee to be  incompetent or in default or to have exceeded or abused its power as the case may be and to supersede it for such period (not limited by  the  section)  as may be specified in  the  order.   The effect of an order made under s. 57 is, therefore, extremely drastic  and  puts  an  end to the  very  existence  of  the committee  itself  and, in view of the grave nature  of  the consequences  that  will ensue, the  legislature  presumably thought  that  some  protection  should  be  given  to   the committee  before  such  a  drastic  action  was  taken  and accordingly it provided, by sub-s. (5) of that section, that no  order should be passed until reasonable opportunity  had been  given  to the committee to furnish  an  explanation  a provision  which clearly indicates that action under  s.  57 can  only  be taken after bearing and  considering  all  the explanations  furnished  by or on behalf of  the  committee. The  legislature  did  not think fit to  provide  a  similar safeguard in s. 53A presumably because 1452 the  order  under  the  last  mentioned  section  was  of  a temporary  duration,  was  not  very  drastic  and  did  not threaten  the  very existence of the committee.   A  cursory reading  of  the two sections will also  indicate  that  the conditions  precedent  to the exercise of the  powers  under both  sections overlap to some extent, namely,  that  action can  be taken under both if the committee "is not  competent to  perform  the  duties imposed on  it............  To  the extent that the requirements of the two sections overlap the State  Government has the option of taking steps  under  one section or the other according to its own assessment of  the exigencies  of the situation.  The position,  therefore,  is that  if a committee is not competent to perform the  duties

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imposed  on it the State Government has to make up its  mind as  to  whether  it should take any action all  and,  if  it thinks  that action should be taken, then it has further  to decide  for itself as to which of the two sections it  would act  under.   If  the State Government  considers  that  the incompetency  does  not  run  to  a  grave  extent  and  the exigencies  of  the  situation  may  be  adequately  met  by appointing  an  Executive  Officer for a  short  period  not exceeding  18 months with certain powers to be exercised  by him, either in addition to or in exclusion of their exercise by  the  committee,  the president,  vice-president  or  the secretary,  the  State Government may properly  take  action under  s. 53-A.  On the other hand if the  State  Government considers,  having  regard to all the circumstances  of  the case, that the incompetency is much too grave to permit  the committee, its president, vice-president or the secretary to function at all, it may take action under s. 57 and dissolve the  committee and direct fresh election to take place.   In other words incompetency on the part of the committee  gives to the State Government an option to apply one of two  reme- dies  under  the Act, if, that is to say,  it  considers  it necessary to take action at all. What, then, is the position here ? Certain charges had  been made  in  writing against the committee  and  its  president which  were  forwarded to the president with  a  request  to submit explanations in detail.  The 1453 president,  acting in his official capacity,  gave  detailed explanations  in writing and sent the same  officially  from the  office  of the municipal committee  to  the  Additional Deputy  Collector who was deputed by the Collector  to  hold the  enquiry.   The  Additional Deputy  Collector  held  the enquiry  during  which the president appeared in  person  on several  days  and came to certain findings  and  presumably made  his report which in due course must have  reached  the ;State Government.  The State Government apparently accepted such  of  those  findings  as  have  been  set  out  in  the notification  it-self Even according to learned counsel  for the  appellants  some  of  those  findings  amount  only  to incompetency  and the rest, he contends, amount to abuse  of power.   I need not pause to Consider whether the  abuse  of power thus found was of a grave nature so as to fall  within s.  57  as  such or was of a minor character  so  as  to  be evidence  of mere incompetency Taking the position to be  as contended by learned counsel for the appellants the position was  that, as a result of the enquiry, the State  Government found two things against, the appellant committee, namely, (i)  that it was guilty of incompetency and (ii) that it was  also guilty of certain abuses of power.  I have already stated that the State Government was not obliged to take any action  at all either under s. 53-A or under s. 57.  If  the State  Government considered that it was necessary  to  take action, it was entirely for the State Government to consider whether  it would take action for incompetency or for  abuse of  power.  In the present case the State  Government  might have  thought that the abuse of power so found was not of  a very grave nature but evidenced only incompetency.  Surely a committee  which  abused  its power  might  also  have  been reasonably  regarded  as incompetent to perform  the  duties imposed on it That apart, supposing the committee was guilty of incompetency as well as of some abuses, what was there to prevent the State Government, as a matter of policy, to take action  for incompetency under s. 53-A ? The mere  inclusion of  the findings of abuse of power in the catalogue  of  the Committee’s

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1454 misdeeds  does not obliterate the findings on  incompetency. I  see  nothing wrong in the State  Government  telling  the committee: " You have been guilty of incompetency as well as of  abuse  of power; but I shall not, just at  this  moment, take  drastic action of’ dissolving you outright, but  shall be  content to take action and appoint an Executive  officer for  18 months and confer some power on him under s.  53-A". In  my  judgment the State Government was  well  within  its tights, in exercise of its option, to take action, under  s. 53-A  as  it  has in terms purported to  do.   To  say  that because  some of the findings amount to abuse of  power  the State  Government must act under s. 57 is to deprive  it  of its discretion which the Act undoubtedly confers on it.   In my  view  the fact that the impugned  notification  records, apart from the findings of incompetency, certain findings of abuse  of  power,  does  not  lead  to  the  conclusion,  as contended for the appellants, that the State Government  had taken action under s. 57 and not under s. 53-A although,  in terms, it says it acted under the last mentioned section. Learned  counsel  for  the  appellants  in  support  of  his contention  that the impugned notification was  really  made under s. 57 of the Act, refers us to the, powers and  duties conferred  on the executive Officer thereby appointed to  be exercised  and  performed  by him to the  exclusion  of  the committee,  its president, vicepresident, or the  secretary. His argument is that although the municipal committee is not ostensibly  dissolved,  it is in effect and  in  reality  so dissolved, for the substance of the powers of the committee, its  president,  vice-president or the  secretary  has  been taken away from them leaving only a semblance of power which is nothing but mere husk and the conclusion urged by learned counsel  is that the impugned notification must be  regarded as having been made under s. 57.  In the first place, s.  57 does  not  contemplate  the  appointment  of  any  executive Officer  or the conferment of any power on him,  while  such appointment and conferment of power is directly contemplated by s. 53-A.  In the second place the legal 1455 existence  of the municipal committee and the status of  its members  and its president, vice-president or the  secretary have  not been impaired at all.  In the eye of the  law  the municipal  committee  still  exists and along  with  it  the members of the committee, the president, vice-president  and the  secretary still hold their respective  offices.   These features clearly militate against the suggestion that action has  been taken under s. 57.  Learned counsel says  that  we must  look beyond mere form and get to the substance of  the matter.   There can be no doubt that most of  the  important powers  have  been  taken  away  from  the  committee,   its president,  vice-president and the secretary, but  that  may well  be  due to the degree of gravity of  the  incompetency found  or  inferred  from the other  findings.   Further,  a cursory perusal of the Act and of the notification will show that  various  other powers and duties have not  been  taken away  from  the  committee or  conferred  on  the  Executive Officer.   Thus the powers of the committee under  ss.  128, 130, 131, 133 to 141 and 144, 145 arid 147 to 149 are  still vested  in and are exercisable by the  committee.   Likewise the  powers under ss. 120, 121, 122, 123 to 127,  129,  150, 152 to 160 to 162, 163, 163A and 168 are still vested in and exercisable  by the president.  These powers that are  still left with the committee or the president can hardly or  with propriety  be  described as mere husks.  It  should  not  be

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overlooked that the suggestion that the real power has  been taken  away  leaving only a semblance of it, is  really  ail argument in aid of a charge of mala fides, but, as  here-in- before stated, the charge of mala fides or fraud on the part of the State Government has not been persisted in or pressed before  us.  In my judgment, therefore, there is no  warrant for contending that the impugned notification, judged by its eftect, must be regarded as having been made under s. 57  of the  Act.   In  this  view of the  matter  the  argument  of invalidity of the action founded on non-compliance with  the requirements  of  sub-s.  (5) of s. 57 does  not  arise  for consideration at all. I85 1456 Re. (iii): In the writ application, out of which this appeal arises, the principal prayer of the appellants is for a writ in the nature of certiorari for quashing the order passed by the State Government on November 18, 1957.  Tile next prayer which is for a writ of mandamus restraining the  respondents from  giving effect to the impugned order is clearly  conse- quential  on  or  ancillary to the main  prayer.   The  last prayer  is in the nature of the usual prayer for further  or other   reliefs.    Therefore  the   present   petition   is essentially one for the issue of a writ of certiorari.   The writ of certiorari is a well-known ancient high  prerogative writ  that  used to be issued by the Courts  of  the  King’s Bench to correct the errors of the inferior Courts  strictly so  called.  Gradually the scope of these writs came  to  be enlarged  so  as to enable the Superior Courts  to  exercise control  over  various  bodies  which  were  not,   strictly speaking,  Courts at all but which were, by statute,  vested with powers and duties that resembles those that were vested in  the  ordinary  inferior Courts.  The law  is  now  well- settled that a writ of certiorari will lie to control such a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice,  or commits any error apparent on the face  of  the records,  provided  that,  on a  true  construction  of  the statute  creating such body, it can be said to be  a  quasi- judicial  body entrusted with quasi-judicial functions.   It is  equally ",well-settled that certiorari will not  lie  to correct  the errors of a statutory body which  is  entrusted with  purely  administrative functions.  It  is,  therefore, necessary  to  ascertain the true nature  of  the  functions entrusted to and exercised by the State Government under  s. 53-A of the Act. In  Province of Bombay v. Kusaldas S. Advani this Court  has discussed at considerable length the nature of the two kinds of  act,  judicial  and administrative, and  has  laid  down certain  tests  for  ascertaining  whether  the  act  of   a statutory  body is a quasijudicial actor  an  administrative act.  It will, therefore, (1)  [1950] S.C.R, 621. 1457 suffice  to refer to the celebrated definition of  a  quasi- judicial body given by Atkin L. J. as he then was, in Rex v. Electricity Commissioners and which now holds the field.  It runs as follows "  Whenever  any body of persons having legal  authority  to determine questions affecting 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 Beneh -Division exercised in these writs." This  definition  was accepted as correct in Rex  v.  London Count?/  Council  (2  ) and many subsequent  cases  both  in

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England  and in this country.  It will be noticed that  this definition insists on three requisites each of which must be fulfilled  in order that the act of the body may be said  to be quasi-judicial act, namely, that the body of persons  (1) must  have  legal  authority,  (2)  to  determine  questions affecting the rights of parties, and (3) must have the  duty to act judicially.  Since a writ of certiorari can be issued only  to correct the errors of a court or  a  quasi-judicial body, it would follow that the real and determining test for ascertaining  whether  an act authorised by a statute  is  a quasi-judicial  act or an administrative act is whether  the statute   has  expressly  or  impliedly  imposed  upon   the statutory body the duty to act judicially as required by the third  condition  in  the definition given by  Atkin  L.  J. Therefore  in considering whether in taking action under  s. 53-A  the State Government is to be regarded as  functioning as  a quasi-judicial body or a mere administrative  body  it has  to be ascertained whether the statute has expressly  or impliedly  imposed upon the State Government a duty  to  act judicially. Relying  on  paragraphs 114 and 115 of  Halsbury’s  Laws  of England,  3rd Edition, Volume 11, at pages 5558  and  citing the  case  of  R. v. Manchester  Legal  Aid  Committee  (1), learned  counsel  for the appellants contends that  where  a statute requires a decision to be arrived at purely from the point of view of policy or (1)  [1924] 1 K.B. 171. (3) [1952] 2 (2)  [1931] 2 K.B. 215. 413. 1458 expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to  be passed on evidence either under an express provision of  the statute  or by implication and determination  of  particular facts  on  which  its jurisdiction  to  exercise  its  power depends  or  if there is a proposal and  an  opposition  the authority  is under a duty to act judicially.  As stated  in paragraph 115 of Halsbury’s Laws of England, Volume 1 1,  at page  57,  the duty to act judicially may  arise  in  widely differing  circumstances  which it would  be  impossible  to attempt to define exbaustively.  The question whether or not there  is 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 statute with the assistance  of  the  general principles  laid  down  in  the judicial  decisions.   The  principles  deducible  from  the various  judicial decisions considered by this Court in  the Province of Bombay v. K. S. Advani (1) at page 725 were thus formulated, namely: "  (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 another 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 quasijudicial 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

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authority is required by the statute to act judicially." It is clear that in the present case there is no question of any  contest between two contending parties which the  State Government is, under s. 53-A, to decide and, (1)[1950] S.C.R. 621. 1459 therefore,  there is no " lis " in the sense in  which  that word is understood generally, and the principle referred  to under  the  first  heading has  no  application.   We  have, therefore,  to  consider whether the case comes  within  the principle enunciated under the second head, namely,  whether the  C. P. and Berar Municipalities Act, 1922, requires  the State Government to act judicially when taking action  under s. 53-A. Learned counsel for the appellant draws our attention to the language in which s. 53-A is couched.  He concedes that  the ultimate  order under that section is purely  discretionary, that  is to say the State Government is not obliged to  take any action tinder the section.  It may make an order  Tender the  section or it may not according as it thinks fit.   But in  case  the  State Government chooses  to  act  under  the section,  it can only do so if the conditions  therein  laid down are fulfilled.  A cursory reading of s. 53-A will  show that there are two prerequisites to be satisfied before  the State Government can take action under s. 53-A, namely,  (1) that the municipal committee is not competent to perform the duties  imposed  on  it and (2) that  the  State  Government considers  that a general improvement in the  administration of  the  municipality  is  likely  to  be  secured  by   the appointment of a servant of the Government as the  Executive Officer  of the committee.  When both these  conditions  are fulfilled, then and then only may the State Government  take action  and  make  an  order under  s.  53-A.   Of  the  two conditions the second one, by the very language in which  it is  expressed,  is  left entirely a  matter  for  the  State Government to consider, for it depends entirely on the  view of its own duty and responsibility that the State Government may take on a consideration of the situation arising  before it.  In other words, the statute has left that matter to the subjective determination of the State Government.  The first requisite,  however, is an objective fact,  namely,  whether the  committee is or is not competent to perform the  duties imposed on it. The determination of that fact, it is pointed out, has not been left to the subjective determination by 1460 the  State Government.  Learned counsel for  the  appellants urges that if it were intended to leave the determination of this fact of incompetency also to the subjective opinion  of the  State  Government, the section would have  been  framed otherwise.  It would have said something like this: " If the State Government considers that a committee is not competent to  perform the duties and that the general  improvement  in the administration of the municipalities is likely to be secured by This the Legislature has not done and has,  thus, clearly evinced an intention not to leave it to   the   ipse dixit of State Government.  Section 53-A, it is pointed out, differs materially in this respect from s.   3 of the Bombay Land Requisition Ordinance (V of 1947) which was  considered by  this Court in Kusaldas Advani’s casc (1).  That  section of  the Bombay ordinance opened with the words: " If in  the opinion  of the Provincial Government  which were  taken  as indicative  of  the  Legislature’s intention  to  leave  the determination  of  the  existence  of  all  the   conditions precedent   entirely  to  the  subjective  opinion  of   the Provincial  Government  so as to make the  action  a  purely

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administrative   one.   The  argument  is  that  the   first requirement  is the finding of a fact which may be called  a jurisdictional  fact,  so that the power under s.  53-A  can only   be  exercised  when  that  jurisdictional   fact   is established to exist.  The determination of the existence of that  jurisdictional fact, it is contended, is not  left  to the  subjective  opinion of the State  Government  and  that although the ultimate act is an administrative one the State Government must at the preliminary stage of determining  the jurisdictional   fact  act  judicially  and   determine   it objectively,  that is to say, in a quasi-judicialay.  It  is assumed  that whenever there has to be a determination of  a fact  which affects the rights of the parties, the  decision must  be a quasijudicial decision, so as to be liable to  be corrected  by  a writ of certiorari.  In Advani’s  case  (1) Kania  C. J. with A hom Patanjali Sastri J. agreed, said  at page 632 : " The respondent’s argument that whenever there (1)  [1950] S.C.R. 621. 1461 is  a  determination of a fact which affects the  rights  of parties, the decision is quasi-judicial, does not appear  to be sound." Further down the learned Chief Justice said determined  by  an  objective test and  when  that  decision affects  rights  of someone, the decision or act  is  quasi- judicial.   This  last statement overlooks the  aspect  that every  decision of the executive generally is a decision  of fact and in most cases affects the rights of someone or  the other.   Because  an executive authority  has  to  determine certain  objective  facts  as  a  preliminary  step  in  the discharge of an executive function, it does not follow  that it   must  determine  those  facts  judicially.   When   the executive  authority  has  to  form  an  opinion  about   an objective matter as a preliminary step to the exercise of  a certain  power  conferred on it, the  determination  of  the objective  fact and the exercise of the power based  thereon are alike matters of an administrative character and are not amenable  to the writ of certiorari." To the like effect  is the following observation of Fazl Ali J. in the same case at page 642: "  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: Is  there  any duty  to decide judicially ?  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." Dealing  with  the  essential characteristics  of  a  quasi- judicial act as opposed to an administrative act, I said  at page 719: features.   Thus a person entrusted to do an  administrative act  has often to determine questions of fact to enable  him to  exercise  his  power.   He has  to  consider  facts  and circumstances and to weigh pros and cons in his mind  before he makes up his mind to exercise his power just as a  person exercising a judicial or 1462 quasi-judicial function has to do.  Both have to act in good faith.  - A good and valid administrative or  executive  act binds  the  subject  and  affects  his  rights  or   imposes liability on him just as effectively as a quasijudicial  act does.   The exercise of an administrative or  executive  act may  well  be  and  is  frequently  made  dependent  by  the

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Legislature  upon  a  condition  or  contingency  which  may involve  a question of fact, but the question of  fulfilment of  which  may,  nevertheless, be  left  to  the  subjective opinion  or satisfaction of the executive authority, as  was done  in the several Ordinances, regulations and  enactments considered  and construed in the several cases  referred  to above.  The first two items of the definition given by Atkin L.  J. may be equally applicable to an  administrative  act. The real test which distinguishes a quasi-judicial act  from an  administrative  act is the third item in Atkin  L.  J.’s definition,  namely,  the duty to act judicially."  I  found support for my opinion on the following passage occurring in the  judgment  of  Lord Hewart C. J. in  B.  v.  Legislative Committee of the Church Assembly (1): "  In order that a body may satisfy the required test it  is not enough that it should have legal authority to  determine questions  affecting the rights of subjects; there  must  be super-added    to    that   characteristic    the    further characteristic   that   the  body  has  the  duty   to   act judicially." The above passage was quoted with approval by Lord Radcliffe in  delivering the judgment of the Privy Council in  Nakkuda Ali’s case I now proceed to apply the principles discussed above to the facts  of  the  present  case.  The  simple  fact  that  the incompetency  of  the  committee goes to  the  root  of  the jurisdiction  of the State Government to exercise its  power under  s.  53-A  does not require that  that  fact  must  be determined  judicially.   The  sole question  is,  does  the statute  require  the State Government  to  act  judicially. There  need  not  be any express provision  that  the  State Government  must act judicially.  It will be  sufficient  if this duty may be (1) [1928] 1 K.B. 411, 415. (2) [1951] A.C. 66. 1463 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.   I find  nothing in s. 53-A which in terms imposes any duty  on the  State  Government  to  act  judicially.   No  form   of procedure is laid down or even referred to from which such a duty could be inferred.  On the contrary, one finds a signi- ficant omission of any provision like that embodied in  sub- s.  (5)  of s. 57 which requires that no  order  under  that section  shall  be passed until reasonable  opportunity  has been  given to the committee to furnish an explanation.   It is  also material to note that whereas an order under s.  57 is of a permanent character the one to be made under s. 53-A is  to be of a limited duration, i.e., for such  period  not exceeding  IS  months  as may be specified  in  such  order. Further,  s. 53-A contemplates swift action and  a  judicial hearing  may easily frustrate the very purpose  contemplated by s. 53-A, for a judicial act will be subject to the powers of superintendence of the superior courts and the  operation of the order under s. 53-A may be postponed, as it has  been done in this very case, by taking, the matter from court  to court  until  it  is set at rest by  this  Court.   In  this connection reference may also be made to s. 25-A of the  Act which  authorises  the  State  Government  to  require   the committee to appoint, inter alia, a Chief Executive Officer.

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If  such  committee  fails to comply  with  the  requisition within the period specified, the State Government may, under sub-s.  (3), if it thinks fit, appoint such officer and  fix his pay and allowance.  Sub-section (4) authorises the State Government  to  require  the committee to  delegate  to  the officer  so appointed such powers, duties and  functions  of the   committee,  its  president,  vice-president   or   the secretary  under  this  Act  or any  rule  or  bye-law  made thereunder  as may be specified in such requisition  and  if the committee fails to comply with such requisition within a reasonable time, the State Government 186 1464 may  determine the powers, duties and functions which  shall be exercised and performed by such officer in addition to or to  the  exclusion  of  their  exercise  or  performance  by committee,  its  president,  vice-president  or   secretary. Nobody will say that the State Government must exercise  the powers  under  s. 25-A after holding any  judicial  enquiry. The  only difference in the language of s. 25-A and s.  53-A both  of  which  were inserted in the Act in  1947  is  that action can be taken under s. 53-A only when the committee is incompetent  to perform the duties imposed on it a fact  the determination  of which is not in so many words left to  the subjective  opinion of the State Government, whereas  action can be taken under s. 25-A on the satisfaction of the  State Government  as to certain facts which is, in terms, left  to the  subjective determination of the State Government.   If, as  I have said, the determination of a jurisdictional  fact is  not by itself sufficient to indicate that, it has to  be done judicially, there is nothing else in s. 53-A or in  any other  section of the Act which will lead to the  conclusion that  the  State Government must act judicially.   The  only other  thing strongly relied on by learned counsel  for  the appellants  is  that the State Government may  exercise  its power  under s. 53-A " by an order stating reasons  therefor published  in the Gazette ". The requirement that the  State Government must give reasons for the order it makes does not necessarily  require  it  to record  a  judgment  judicially arrived  at.  The legislature might well have  thought  that public  policy required that the State Government  entrusted with  large administrative power should record  its  reasons for  exercising the same so as to allay any misgivings  that may  arise in the mind of the public.  In my  judgment,  the action taken by the State Government under s. 53-A is not  a judicial or quasi-judicial act but is an administrative act. Learned  counsel  for the appellants relied on the  case  of Capel  v.  Child (1).  That decision clearly went  upon  the construction of the statute that came up for  consideration. The  fact that action could be taken under that  statute  on affidavits (1)  2 Cr. & Jr, 558; 37 R. R. 761. 1465 was  construed as a clear indication that the Bishop had  to arrive  at a decision as to the negligence of the  Vicar  on hearing evidence adduced before it by affidavit which led to the  next  conclusion  that  the  Vicar  must  be  given  an opportunity  of being heard and of adducing evidence in  his own  defence.  From this circumstance it was  inferred  that even when the Bishop acted on his knowledge of fact he  must also  proceed,  judicially, for the two modes  of  procedure were treated on the same footing by the section itself.   As I  have said, there is nothing in s. 53-A or any other  sec- tion which may lead us to infer a duty to proceed judicially as  was  done  in  that case.  On  the  contrary  there  are

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indications leading to a different conclusion. To  say  that  action  to  be taken  under  s.  53-A  is  an administrative   action  is  not  to  say  that  the   State Government  has  not to observe the ordinary rules  of  fair play.  Reference to the observation made by Fortesque J.  in Dr.  Bentley’s  case about God asking Adam and  Eve  whether they had eaten the forbidden fruit appearing in the judgment of  Byles J. in Cooper v. The Wandsworth Board of Works  (1) is  apposite.   The  decision in  the  last  mentioned  case clearly  establishes that in some cases it may be  necessary to give an opportunity to a party to have his say before at) administrative  action  is taken against him.  But  that  is quite  different from the well-ordered  procedure  involving notice  and opportunity of hearing necessary to be  followed before  a  quasi-judicial action, open to  correction  by  a superior  court  by means of a writ, of certiorari,  can  be taken.   The difference lies in the manner and mode  of  the two procedures.  For the breach of the rules of fair play in taking  administrative action a writ of certiorari will  not lie. I  have  already recounted the events and  proceedings  that preceded the actual passing of the order under s. 53-A.   If the action taken tinder that section is to be regarded as an administrative  action, as I hold it should be, then I  have no  doubt that the appellants have had more than fair  play. It  is  said  that the State Government  did  not  hold  any enquiry before (1)  [1863] 14 C.B. (N.S.) 180; 143 E. R. 414. 1466 making  the  order and that, therefore, it can-not  be  said that the appellants had an opportunity to defend  themselves against an order of this kind.  I do not consider that there is   any  substance  in  this  contention.   If  the   State Government wanted to hold any enquiry it would do so through some  of  its officers.  Who would be more  appropriate  and competent  to  hold the enquiry except the officers  on  the spot  ?  The Additional Deputy Collector  is  obviously  the person  to  whom  the  duty of  enquiry  could  properly  be entrusted.  All the charges levelled against the  appellants were forwarded to them, and they submitted explanation.  The first  appellant, who is the President, personally  attended many of the sittings.  There is no suggestion that they  had been prevented from adducing evidence in their own  defence, The  enquiry  was held into what had  been  alleged  against their conduct.  It was surely not a purposeless enquiry.  As a  result  of the enquiry certain findings were  arrived  at which were accepted by the State Government and an order was made  under  s.  53-A.   I do not  see  what  grievance  the appellants can possibly have.  In my judgment there has been no remissness on the part of the State Government. For reasons stated above I would dismiss this appeal. BHAGWATI  J.-.I  also  agree  that  the  appeal  should   be dismissed with costs but would like to add a few words of my own. I have had the benefit of reading the judgments prepared  by my Lord the Chief Justice, Kapur J. and Subba Rao J. I agree with  the  reasoning and the conclusions  reached  in  those judgments in regard to points Nos. (i) & (ii), viz., (i)that though the Notification purports to have been made in exercise of the powers conferred on the State  Government by  s.  53-A, in substance and in reality it has  been  made under s. 57 of the Act; and, (ii)that  if the Notification is held to be one made  under s.  57  it  is  ultra vires  and  bad  since  the  statutory requirement  of affording reasonable opportunity to  explain

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has not been complied with. 1467 In regard to point No. (iii), viz., (iii)that even if the impugned Notification be held  to come  within  s. 53-A it is still ultra vires  since  before promulgating it the State Government has committed a  breach of   the  rules  of  natural  justice  in  not  giving   any opportunity to the appellants to defend themselves, however, there  is a difference of opinion between my Lord the  Chief Justice  and Kapur J. on the one hand, and Subba Rao  J.  on the  other, as to the character of the act performed by  the State  Government while arriving at the conclusion that  the Committee is not competent to perform the duties imposed  on it or undertaken by it.  Whereas the former are of the  view that  in  arriving at such conclusion the  State  Government performs  only an administrative function, the latter is  of the  view  that  the  fact  whether  the  committee  is  not competent to perform the duties imposed on it or  undertaken by  it  is  a jurisdictional fact and in  arriving  at  that conclusion  the State Government performs  a  quasi-judicial function.  In my opinion, the determination of the  question whether the State Government performs an administrative or a quasi-judicial  function in the matter of arriving  at  such conclusion  is immaterial for the purposes of  this  appeal, inasmuch  as  an inquiry had been instituted  by  the  State Government in the matter of the charges levelled against the appellants  and full opportunity had been given to  them  to defend  themselves.  I need not add anything in this  regard to  what has been said by my Lord the Chief Justice  in  the judgment just delivered by him.  I only wish to say that the circumstances adverted to therein amply demonstrate that the appellants had notice of the charges which had been levelled against them and had rendered full explanation in regard  to the  same,  and, in the matter of the inquiry in  regard  to those  charges  the principles of natural justice  had  been complied  with  and  the conclusion  reached  by  the  State Government  in  the  matter  of  the  incompetence  of   the committee was unassailable. That being so, I would prefer not to express any opinion  on the vexed question as to whether the act 1468 performed  by  the  State Government  is  quasi-judicial  or administrative in character. The result, however, is the same and I agree with the  order proposed dismissing the appeal with costs. S.K.  DAS  J.-I  agree  generally  with  the  conclusions reached  by  my Lord the Chief Justice and  the  reasons  on which  those conclusions are founded.  But I wish to  add  a few  words with regard to the third question, namely, if  in making  the  impugned  notification,  the  State  Government violated  the principles of natural justice.  The answer  to that  question depends on whether on a true construction  of the  relevant  statute, the State  Government  performed  an administrative  function  or what has been called  a  quasi- judicial function in making the impugned notification. I  am  of  the  view that the  action  taken  by  the  State Government under s. 53-A of the Act is in its true nature an administrative act.  It is said that where there is ’ a duty to  act  judicially ’, the function is  quasijudicial:  that however  does  not help us very much  in  understanding  the distinction between an administrative function and a  quasi- judicial function.  Where the statute clearly indicates that the  function is judicial, there is little difficulty.   The difficulty arises in cases where the point taken is that  by necessary implication the statute requires an administrative

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body or executive authority to act judicially.  It is indeed Generally  correct to say that where an administrative  body or authority is under a duty to act judicially, its function is judicial or quasi-judicial.  But it is, to some extent, a tautology  to  say that the function is judicial  or  quasi- judicial if it is to be done judicially. 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 laid down; for example- 1469 (i)  whether there is a lis inter partes (ii) whether  there  is  a claim  (or  proposition)  and  an opposition; (iii)whether  the  decision  is to be  founded  on  the taking of evidence or on affidavits; (iv)whether the decision is actuated in whole or in part by questions  of  policy or expediency, and if so,  whether  in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and (v)whether in arriving at its decision, the statutory body has  only to consider policy and expediency and at no  stage has before it any form of lis. The  last two tests were discussed and considered in  R.  v. Manchester  Legal Aid Committee (1).  It is fairly clear  to me  that tests (i) to (iv) are inappropriate in the  present case  by reason of the provisions in s. 53-A ,is  contrasted with s. 57 and other sections of the Act.  The test which is fulfilled  in the present case is test (v), and  that  makes the function under s. 53-A a purely administrative  function in spite of the requirement of an initial determination of a jurisdictional  fact  and the recording of reasons  for  the decision. I am content to rest my decision on the aforesaid ground, as I  am  not  satisfied that the enquiry held  by  the  Deputy Collector  was a proper enquiry if it be held that  s.  53-A entrusts  a quasi-judicial function to the State  Government and  therefore  requires compliance with the  principles  of natural  justice.  That enquiry was for a different  purpose altogether,  the charges were not the same, and in  my  view the  Municipal Committee had no real opportunity of  meeting the  charges on which the State Government  ultimately  took action.   I  prefer, therefore, to base my decision  on  the third  question on the short ground that the function  which the   State   Government  exercised  under   s.   53-A   was administrative  in  nature and it is settled law  that  such action is not amenable to a writ of certiorari. On the first two questions I am in entire agreement (1)[1952] 2 Q.B. 4I3. 1470 with  my Lord the Chief Justice and have nothing  useful  to add. KAPUR J.-This appeal pursuant to special leave of this Court is  directed  against the judgment and order of  the  Madhya Pradesh  High  Court.   The  appellants  are  the  Municipal Committee of Dhamtari and its President Radheshyam Khare who are challenging the order of the State Government of  Madhya Pradesh  appointing  an Executive Officer of  the  Municipal Committee under s. 53-A of the C. P. & Berar  Municipalities Act (Act 11 of 1922) to be termed in this judgment, the Act. The  facts leading to this appeal are that one Dhurmal  Daga who  was  a  member  of  the  Dhamtari  Municipal  Committee

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(appellant  No.  2)  was found  importing  cotton  into  the municipal area without paying octroi duty.  He then went  on hunger   strike  and  also  distributed   pamphlets   making allegations against both the appellants.  At this stage  the Collector  of  Raipur  district  personally  intervened  and persuaded  Dhurmal  Daga to break his fast on  an  assurance that he (the Collector) would look into his allegations.  In pursuance of that assurance Mr. Rana, Deputy Collector  held an  enquiry  and called the explanation  of  tile  Municipal Committee  and  its President and submitted  his  report  on November  22,  1956,  which  was  forwarded  to  the   State Government   on  April  24,  1957.   The  State   Government thereupon  took  action under s. 53-A of the Act  and  by  a notification  dated  November 18, 1957, appointed  a  Deputy Collector  B. P. Jain respondent No. 3 as Executive  Officer of  the  Dhamtari  Municipal Committee for a  period  of  18 months  on  the  ground that  the  Municipal  Committee  was incompetent in the performance of its duties under the  Act. The relevant part of the notification was as follows: "  Whereas  it  appears to the  State  Government  that  the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the  Central Provinces  and Berar Municipalities Act, 1922 (11 of  1922), inasmuch as it- (a)  granted grain and building advances to the I 1471 employees  without prior sanction and no efforts  were  made for their recovery, (b)showed  carelessness in cases of embezzlements  of  the employees and did not report such cases to Government, (c)failed  to control the President who issued  orders  in cases in which he had no authority, (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed   unconcerned  persons  to  interfere  in   its working, (f)showed partiality in the appointment and dismissals  of the employees, further such appointments and dismissals were made against rules, (g)delayed  the  constitution  of the  committee  and  the framing of budget, (h)  misused the trucks of the municipality, (i)  failed to recover the lease money, (j)  shown partiality in the issue of transit passes to  certain traders, further excess octroi duty was  charged on  certain articles and in certain cases where octroi  duty is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any  charge, similarly distributed the manure free  of  cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money  of the municipal Committee without any authority, (m)spent  huge amount on the maintenance of the roads  and drainage but their condition has remained unsatisfactory, (n)failed to give copies of the documents as allowed under rules,  also  failed  to allow its members  to  inspect  the records as is permissible under rules, (o) failed to invite tenders of purchase of articles." This order of the State Government was challenged under Art. 226 in the Madhya Pradesh High Court on the allegation  that the order passed by the State Government constituted 187 1472 " a flagrant abuse of the powers conferred under section 53-

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A of the Municipalities Act.  The charges enumerated in  the notification  were never framed.  The State  Government  did not  serve  any  notice on the Municipal  Committee  or  its President  to show cause against the charges nor  were  they afforded any opportunity to have their say in the matter." The   appellants  submitted  that  the  finding  about   the incompetency  of  the  committee  was  vitiated  because  no enquiry  was  held  and there was  no  evidence  in  support thereof and the order was void and inoperative because (1)" there is non-observance of the mandatory  provisions. The   power  has  not  been  exercised  within  the   limits prescribed. (2)  there is no determination of the basic facts. (3)  there is a violation of the rules of natural justice. (4) the action is mala fide." The  respondents denied the allegations and  submitted  that the State Government made the order under s. 53-A of the Act on  the  report of Mr. Rana, Deputy Collector  who  held  an enquiry  into  the allegations made  against  the  appellant under  the  orders of the Collector of Raipur;  that  proper notice was given to the Secretary of the Municipal Committee which  filed  its Written Statement  through  its  President appellant   No.  1  who  appeared  personally   during   the proceedings of the enquiry, but no opportunity for " leading any  evidence"  was  demanded by the appellant  nor  was  it denied.   They  also  pleaded that  no  formal  enquiry  was required under the law and that the Court could not go  into the  sufficiency  or  otherwise of the  reasons  for  taking action " and the same will not be enquired into by the Court objectively." A  learned  Single  Judge of the High  Court  dismissed  the petition holding that whatever be the position under s.  57, under s. 53-A no explanation was required to be called  from the  municipal  committee  and  the  State  Government   was authorised  under the law to act promptly.  The  High  Court negatived  the  allegation  that the  State  Government  had proceeded against 1473 the Municipal Committee, appellant No. 2, at the instance of Dhurmal Daga.  The learned Judge said: "  I  have  gone through the material  on  which  the  State Government  based  its action on enquiry  into  the  charges levelled against the municipal committee and find that there were several other complaints besides those made by  Dhurmal Daga.   The  record  of  the  enquiry  shows  that  on  some occasions the petitioner was present during the enquiry.   I am satisfied that the invocation of the power of this  Court under  Art.  226  of the Constitution is  not  open  to  the present petitioner ". A Letters Patent appeal against this judgment was  dismissed on February 21, 1958. The appellants have come in appeal to this Court by  special leave and have raised four points before us: (1)That the notification though it purports to be under s. 53- A of the Act is really under s. 57 which is shown by the grounds given in the notification, the powers vested in  the Executive Officer and by the effect of the order ; (2)and  if  it is a notification under s. 57 it  is  ultra vires because the statutory requirements of the section  had not been complied with; (3)  even if the notification be held to be under s.53-A  of  the  Act  it was  still  null  and  void  and inoperative as it violated the principles of natural justice

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and (4)that  the order made was mala fide inasmuch as  it  had been  passed  with  an ulterior object of  taking  away  the control of the municipality from the lndependent Party which was  in a majority and that this was in accordance with  the policy  adopted  by the State Government of  superseding  or suspending  municipalities which were not controlled by  the Congress Party.  As further proof of the mala fides of  Res- pondent  No.  1, the State Government, it was  alleged  that Radheshyam  Khare  appellant  No. 1 was  expelled  from  the Congress  Part for six years in about March 1957 because  he stood as an Independent 1474 candidate  for election to the Lower House of Parliament  in the 1957 elections. The  allegation of mala fides was not seriously pressed  nor is there any material to sustain it. In order to decide the other questions raised in this appeal it  is  necessary to examine the scheme of the Act  and  its provisions relating to the powers of the State Government in regard to municipal committees.  Chapter I of the Act  makes provisions for the constitution of municipalities.   Section 4  empowers the State Government to signify by  notification it,-,   intention   to  declare  a  local  area  to   be   a municipality,  to alter its limits or to withdraw the  whole of it from a municipality.  Section 5 gives the right to the inhabitants  of such local area to file  objections  against anything contained in the notification within a period of  6 weeks and after consideration of such objections if any, the State   Government   can  confirm,  vary  or   reverse   its notification  under  S.  4.  Sections  6  to  8  deal   with consequential  orders  on inclusion and exclusion  of  local areas: Section  9  authorises  the State Government  to  give  such powers to a municipality as in its opinion it is suited for. It provides: " If the circumstances of any municipality are such that, in the  opinion of the State Government, any provision of  this Act  is  unsuited  thereto, the  State  Government  may,  by notification: (a)withdraw  the  operation  of that  provision  from  the municipality; (b)apply that provision to the Municipality in a  modified form to be specified in such notification ; (c)make  any additional provision for the municipality  in respect  of the matter mentioned in the provision which  has been  withdrawn from, or applied in a modified form to,  the municipality." Chapter  II  deals  with the membership  of  committees  and chapter  III with Subordinate Agencies.  Under this  chapter fall  Sub-Committees,  Presidents  and  other  officers   of Municipal  Committees.   Section 25-A which deals  with  the appointment of a Chief Executive Officer, Health Officer  or Supervisor is as under:                      1475 (1)"  The  State Government may, if in  its  opinion  -the appointment of- (a)a  Chief  Executive Officer is  necessary  for  general improvement     in     the     administration     of     the municipality.................. and it is satisfied that  the state  of the municipal fund justifies expenditure  on  such appointment,  require  the  committee to  appoint  any  such officer. (2)A  requisition  under sub-section (1) shall  state  the period  within which the committee shall  comply  therewith.

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(3)If  the committee fails to comply with the  requisition within  the stated period, the State Government may,  if  it thinks  fit,  appoint  such  officer  at  the  cost  of  the committee  and fix his pay and allowances, the rate  of  his contribution  to the provident fund or to. his  pension  and other conditions of service. (4)The  State  Government  may require  the  committee  to delegate  to  the Chief Executive  Officer  ................ appointed  under  this  section  such  powers,  duties   and functions  of  the committee, president,  vicepresident,  or secretary  under  this  Act  or any  rule  or  bye-law  made thereunder  as may be specified in such requisition, and  if the committee fails to comply with such requisition within a reasonable  time, the State Government may  determine  which powers,   duties  and  functions  shall  be  exercised   and performed  by  such  officer  in  addition  to,  or  to  the exclusion   of,  their  exercise  and  performance  by   the committee, president, vice-president or secretary. (5)The secretary of the committee shall be subordinate  to the Chief Executive Officer. (6)The provisions of subsection (5) of section 53-A  shall apply  to the Chief Executive Officer or Health  Officer  or Supervisor appointed under this section ". Chapter  IV  deals  with the procedure  to  be  followed  in Committee  Meetings, chapter V with property, contracts  and liabilities  and  chapter  VI  with  duties  of  committees. Chapter  VIII  is  headed " Control  ".  It  prescribes  the authorities  which  have the power to control  the  acts  of committees and also lays down the 1476 extent  of  such  control and the method  of  its  exercise. Section  52  gives to the Deputy Commissioner the  power  to examine  the  proceedings of  committees  or  subcommittees. Section  53  empowers a Deputy Commissioner to  suspend  the execution  of  any order or resolution of a committee  or  a subcommittee and prescribes the circumstances in which  this power  can be exercised.  Then comes s. 53-A which  empowers the  appointment  of  an  Executive  Officer  by  the  State Government.   Section  54  provides  that  in  the  case  of emergency  the.   State Government, on the  receipt  of  the report  under s. 52 or otherwise may require a  municipality to execute any work or perform any act which in its  opinion is necessary for the service of the public.  Under s. 55 the State Government if satisfied after receiving a report under s. 52 or after enquiry if any that a municipal committee has made  default  in performing its duties may appoint  "  some person  to perform " the duty and can direct  the  municipal committee  to pay reasonable remuneration to the  person  so appointed.  If default is made in any such payment the State Government can under s. 56 direct a person having custody of municipal  funds to make such payment.  Section 57  empowers the  State  Government to dissolve and/or to  supersede  the municipal   committee.   Section  58  gives  to  the   State Government the power of revision and an overall control over the  actions of officers acting or taking any  action  under the  Act.  But it cannot reverse any order unless notice  is given  to  the parties interested and they  are  allowed  to appear  and  be heard.  Section 58-A  authorises  the  State Government to enforce its orders.  Section 58-B gives to the State  Government  the power of review of orders  passed  by itself  and  Commissioners  and  Deputy  Commissioners  have similar  powers of reviewing their own orders provided  that no  order  shall  be varied unless notice is  given  to  the parties interested to appear and be heard in support of  the order.

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Under s. 59 certain officers appointed by general or special orders  of the State Government are entitled to  attend  any meeting of the committee and address 1477 it  on any matter affecting the work of  their  departments. Section  60 provides for the settlement of disputes  between the committees and other local bodies. As ss. 53-A and 57 are the subject matter of controversy  in this case it is necessary to quote them in full : Section  53-A  "  (1) If a committee  is  not  competent  to perform  the duties imposed on it or undertaken by it by  or under this Act or any other enactment for the time being  in force  and  the State Government considers  that  a  general improvement  in  the administration of the  municipality  is likely to be secured by the appointment of a servant of  the Government  as the executive officer of the  Committee,  the State  Government  may,  by an  order  stating  the  reasons therefor  published in the Gazette, appoint such servant  as the  executive officer of the committee for such period  not exceeding eighteen months as may be specified in such order. (2)Any  executive officer appointed under  subsection  (1) shall  be deemed to be an officer lent to the  committee  by Government under sub-section (3) of section  25. (3)When under subsection (1) an executive officer    is appointed  for  any committee, the  State  Government  shall determine  from  time  to  time  which  powers,  duties  and functions  of  the committee, president,  vice-president  or secretary  under  this  Act  or any rule  or  bye  law  made thereunder shall be exercised and performed by such officer, in  addition to, or to the exclusion of, their exercise  and performance by the said committee. president, vice-president or secretary. (4)The Secretary of the committee shall be subordinate  to the executive officer. (5)The executive officer shall have the right to attendall  meetings  of  the  committee  and  any  joint committeeand to take part in the discussion so as to make an  explanation in regard to the subject  under  discussion, but  shall  not move, second, or vote on any  resolution  or other motion ". Section 57 which gives power to the Government 1478 to dissolve or supersede the municipality is as follows: "  (1)  If  a  committee is not  competent  to  perform,  or persistently makes default in the performance of, the duties imposed  on  it or undertaken by it under this  Act  or  any other  enactment for the time being in force, or exceeds  or abuses  its powers to a grave extent, the  State  Government may,  by an order stating the reasons therefor published  in the Official Gazette, dissolve such committee and may  order a fresh election to take place. (2)If after fresh elections the new committee continues to be  incompetent  to  perform,  or to  make  default  in  the performance  of,  such  duties or exceeds  or  abuse.,;  its powers  to a grave extent, the State Government may,  by  an order stating the reasons therefor published in the Official Gazette,  declare  the  committee to be  incompetent  or  in default,  or to have exceeded or abused its powers,  as  the case  may be, and supersede it for a period to be  specified in the order. (3)If  a  committee  is so dissolved  or  superseded,  the following consequences shall ensue: (a)all members of the committee shall, as from the date of the order, vacate their offices as such members; (b)all  powers and duties of the committee may, until  the

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committee  is reconstituted, be exercised and  performed  by such  person or persons as the State Government may  appoint in that behalf; (c)all property vested in it shall until the committee  is reconstituted vest in the State Government. (4)On  the  expiration  of  the  period  of   supersession specified  in  the order, the committee shall  be  reconsti- tuted,  and  the  persons who vacated  their  offices  under subsection  (3), clause (a), shall not, by reason solely  of such supersession be deemed disqualified for being members. (5)No  order under subsection (1) or subsection (2)  shall be  passed. until reasonable opportunity has been  given  to the committee to furnish an explanation. (6)  Any person or persons appointed by the State 1479 Government to exercise and perform the powers and duties  of a dissolved or superseded committee may receive payment,  if the  state Government so directs for his or  their  services from the municipal fund." A  review of all these provisions shows that under  the  Act the   municipalities   are  not   independent   corporations exercising powers unregulated by Governmental control.  They confer regulatory authority on the State Government to  keep control  over municipalities, the extent of control and  the mode  of its exercise being dependent on  circumstances  and expediency  varying with the exigencies of every case.   The Statute  leaves  the discretion to the State  Government  to choose the action to be taken and the provision under  which it  is  to be taken.  Wherever the legislature  intended  an enquiry  to  be held before taking any action  provision  is made for it and wherever it intended a person to be  allowed to appear and be heard it has specifically provided for  it. Generally  speaking  excepting  where all  order  is  to  be reversed qua a particular person, there is no provision  for a  hearing.  The nature and extent of regulatory  powers  of the  State  Government and the mode of  their  exercise  are matters of policy and expediency and indicate the taking  of administrative  action by the State Government and  not  the exercise  of  any  judicial power  and  would  therefore  be excluded  from judicial review. Counsel for  the  appellants firstly  submitted  that although the State  Government  has purported  to act under s. 53-A, in fact and in reality  the order  falls under s. 57 and because the provisions of  sub- section  (5) have not been complied with, the order  of  the State Government is illegal, null and void.  A comparison of the-two  sections  53-A and 57 shows the difference  in  the powers  exercisable  by the State Government under  the  two sections and the consequences that result therefrom.   Under s. 53-A all that the State Government does is to appoint for a  period  of  not more than eighteen  months  an  Executive Officer who exercises such powers under the Act as are  men- tioned in the order which may be in addition to or to 188 1480 the exclusion of their exercise by the municipality, etc.,  a  power  also exercisable under s. 25-A or  to  a  limited degree  under  s.  9. Under s. 57  the  municipal  committee itself is dissolved and may be superseded in which case  its members  cease  to exist and vacate their  offices  and  the powers  and  duties of the municipal committee  then  become vested in the person or persons appointed for the purpose by the  State  Government and its property also  vests  in  the State Government.  These consequences do not follow an order Under  s.  53-A.  But it is submitted that  in  reality  the result  is  the same because of the powers which  under  the

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notification  have been given to the Executive  Officer  and what  is  left with the Committee is only "husk".   If  this were so then whenever any action is taken whether under s. 9 of  the Act or under s. 25-A in conceivable cases  it  would amount to supersession of the municipal committee and  would therefore  fall  under  s. 57 which  argurment  was  neither submitted nor is tenable.  According to the language of  the two  sections,  53- A and 57 of the Act the two  classes  of actions  contemplated  are  quite  different  and  different consequences  follow;  one should not be confused  with  the other.  The contention that the action taken under s.  53-A is colourable and the matter really falls under s.     57 is an allegation of mala fides which has not been made out.  If the  statute gives to the state Government powers under  its various  provisions and the State Government chooses in  its discretion to use one rather than the other it is beyond the power of any court to contest that discretion unless a  case of  abuse is made out (per Lord Halsbury L. C. in the  West- minster Corporation v. London and North Western Railway  Co. (1)).   And it cannot on that ground alone be held to  be  a mala fide act. A  great deal of stress was laid by the appellants’  counsel on  the  withdrawal of the powers of  the  municipality  and particularly  under  s.  31 and it was  contended  that  the Committee would not be able to hold its monthly meetings  as required  under that section.  It is difficult to  interpret the notification in this manner, (1)[1905] A.C. 426. 1481 because  ,so  interpreted it would mean that  the  Executive Officer  alone will meet for the transaction of business  at least once a month which would amount to an absurdity.   The reference in the notification must be to sub-section (2)  of s. 31 which deals with the power of the President, etc.,  to call a meeting suo motu or on the requisition of a fifth  of the  members.   Similarly the mention of Chapter  V  in  the notification  cannot vest the property of the  committee  in the  Executive Officer.  The notification deals with  powers and  duties  and not with the vesting of property.   It  may however be mentioned that even where no Executive Officer is appointed  by  the State Government it can direct  that  any property  vested  in the municipality shall cease to  be  so vested  and  it  can  make such  orders  as  it  thinks  fit regarding  the disposal and management of such property  (s. 38).  No doubt the powers under s. 39, which deals with  the management of public institutions, powers and duties of  the municipality, are taken away and are vested in the Executive Officer  but these powers in any case are subject  to  rules made  by  Government and these rules are always  subject  to change by the State Government.  The powers of the municipal committee  under s. 40 to request the State  Government  for acquisition  under the Land Acquisition Act have  also  been withdrawn.   Section  41 deals with transfers  of  municipal property  to  the  Government and s. 42 with  power  of  the municipality  to transfer municipal property but under  that section  the control of the State is not excluded even  when there  is no Executive Officer.  Section 44 deals with  the’ ’Making of contracts and the other sections in that  chapter do  not  deal  with the powers and duties.  of  a  municipal committee excepting s. 49.  Chapter VI prescribes the duties of  a municipal committee and some of those also  have  been vested  in  the Executive Officer.  There is no  doubt  that some  very  important powers have by the  notification  been taken away from the municipal committee and have been vested in the Executive Officer but that is a far step from  saying

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that  the  committee  has  thereby  been  suspended.    This exercise of its functions by the State Government is of 1482 no different quality leading to different results than  what would  have happened had action been taken under s. 25-A  or under B. 9 of the Act.  It cannot there. fore be, said under the circumstances of this case that the action of the  State Government  is  cobweb  varnish  or  that  it  is  merely  a colourable  order or a device to avoid the  requirements  of sub-s. 5 of a. 57. , It was then contended that the notification enumerates  acts of   the  municipality  some  of  which  axe  instances   of mismanagement  and others of abuse of power.  It  cannot  be said that the allegations in regard to the spending of money without  a provision in the budget or showing partiality  in the matter of appointment and dismissal or in the matter  of issuing  of  transport passes or distribution  of  municipal manure or the charge of spending huge amounts on maintenance of roads and drainage without improving their condition  are nothing  short of gross mismanagement or abuse of power  and cannot  fall  under  the  charge  of  incompetency  in   the performance  of duties or in the exercise of powers  by  the municipality.   Assuming that they can only be instances  of abuse,  there  is  nothing wrong  in  the  State  Government enumerating  all  the  misdeeds  and  wrongs  done  by   the committee  and  then saying that it prefers to  take  action under  s. 53-A as it has done and not under s. 57.   If  the acts  and  omissions  are  instances  of  abuse  the   State Government could if it thought fit, take action under s. 57. If  having two courses open to it the State Government  took the  lesser  of the two actions, its  discretion  cannot  be questioned, in the absence of proof of bad faith.  It cannot therefore  be  said  that  the  State  Government  has  only pretended to act under s. 53-A but in reality it was  acting under s. 57 of the Act. It  was lastly contended that the State Government  when  it acts  under  s. 53-A has a duty to act  judicially  and  the rules  of  natural  justice required  that  ]the  appellants should have been given an opportunity to show cause  against action being taken under that section.  As said above  under s.  9 of the Act the State Government has, on the ground  of unsuitability,  the power to withdraw from the  municipality any of the                      1483 powers  conferred under the Act either wholly  or  partially and  under  s. 25-A it has the power of appointing  a  Chief Executive  Officer  if  it  is  necessary  for  the  general improvement  in the administration of the  municipality  and exactly  the same consequences would follow as they do  when an Executive Officer is appointed. under s. 53-A.  There are also  sections 52, 53, 54, 55 and 56 which place  regulatory control  in  certain Government agencies.  If  action  taken under those provisions is an exercise of executive functions of the State Government can it be said that the exercise  of similar  power  under s. 53-A and for  similar  object  i.e. improving the general administration in case of incompetency of  the municipality will change an administrative  decision into a judicial or quasijudicial decision ? The real test to distinguish  between a quasi-judicial and an  administrative act of ail authority is based on the duty ’of that authority having  power  to determine a question’ to  act  judicially. Lord  Hewart,  C. J. in R. v. Legislative Committee  of  the Church Assembly (1) said: In order that a body may satisfy the required test it is not enough  that  it should have legal  authority  to  determine

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question  affecting  the rights of subjects; there  must  be superadded to that Characteristic the further characteristic that the body has the duty to act judicially ". And  thus the authority taking a decision should not  merely determine  a question it should also be under a duty to  act judicially.   It is that essential characteristic which  the State  Government  lacks  in  the  present  case.   When  it considers  something likely to result from its action it  is merely  taking  executive  action  and  not  determining   a question  or acting judicially.  This dictum of Lord  Hewart was  quoted  with  approval by Das J. (as he  then  was)  in Kusaldas  Advani’s  case  (2).  He  said,  "  Therefore,  in considering  whether a particular statutory authority  is  a quasi-judicial body or a mere administrative body it has  to be ascertained whether, the statutory authority has the duty to act judicially".  There is no indication (1) [1928] 1 K.B. 411, 415.   (2) [1950] S.C.R. 621, 720. 1484 in  the statute itself that the State Government has a  duty to  act  judicially when it appoints  an  Executive  Officer under  s. 53-A. nor has any procedure been prescribed as  to the  manner in which the power under this section is  to  be exercised  by  the  State  Government  which  may  give   an indication  as  to  nature  of  the  decision,  taken.   The municipal  committee is a creation of the Act and  therefore it  has  all the powers and is subject to all  the  controls under the Act which are to be exercised as provided there- under. The  Act gives different modes of regulatory control to  the State  Government  and the powers of  the  State  Government extend from revision of the actions, orders and  resolutions of  the municipal committee to the exclusion of local  areas from  its jurisdiction, taking away powers given  under  the Act,  the appointment of Executive Officers, suspension  and supersession  of municipalities.  In certain sections e.  g. s.  57  dealing  with this regulatory  control  the  statute requires that the explanation of the committee be called for before a particular action is taken by the State  Government and in others no such requirement is prescribed.  That is  a clear indication of the intention of the legislature that an opportunity  was  to  be given in one case and  not  in  the other.  In other words a kind of quasijudicial approach  was intended  in one case and administrative in the other.   The Privy  Council  in Nakkuda Ali’s case (1) (a  case  under  a Ceylon Regulation) said : "  But,  that  apart,  no procedure  is  laid  down  by  the regulation  for securing that the license holder is to  have notice of the Controller’s intention to revoke the  license, or that there must be any enquiry, public or private, before the Controller acts ". In  Advani’s  case (2) Fazl Ali J. examining  the  ditty  of authorities to act judicially said at p. 641 : There are no express words in s. 3 or any other section,  to impose  such a duty (to determine judicially); nor is  there anything to compel us to hold that such a duty is implied (1)  [1951] A.C. 66,78.             (2) [1950] S.C.R. 621. 1485 The  learned  judge took into consideration  the  fact  that certain sections specifically provided an enquiry and  others did not, and observed: " the fact remains that there is nothing in the Ordinance to suggest  that  the public purpose is to be determined  in  a judicial way ".

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Therefore  where  in  a statute like the  present  one  some sections  prescribe the calling for the explanation  of  the municipality  before  any  action  is  taken  by  the  State Government  and  others do not, it is an indication  of  the intention  of the legislature to exclude the application  of principles of audi alteram partem in the latter case. The section (s. 53-A) has to be read as one whole and not in compartments.  The relevant words are:  "  If the committee is not competent to perform the  duties imposed  upon  it  and the State considers  that  a  general improvement  in  the administration of the  municipality  is likely  to  be secured by " The latter portion i. e.  "  the State  Government  considers  is  likely  to  be  secured  " indicates  a  purely subjective determination and  taking  a policy  decision.  The use of the words " considers " and  " is  likely  relate  to a subjective  and  not  an  objective process.   "  To consider " means to think,  to  contemplate mentally,  to regard and " likely " means probably; such  as might  well  happen; apparently suitable for.   These  words cannot  have  any  reference  to  objectivity  but   suggest subjectiveness.   The opening words of the section " If  the committee  is not competent cannot be read  separately  from the  latter part.  When under s. 53-A the  State  Government appoints an Executive Officer which act it considers  likely to im. prove the general administration of the  municipality it  does  not take two decisions, one objective  as  to  the incompetency  of the administration of the municipality  and the other subjective as to the action likely to improve  the administration.   The  decision  is  only  one.   The  State Government is the sole judge of both matters, namely, of the incompetency and -the remedy needed.  Both are parts of  one integrated  whole  a decision taken in the exercise  of  the administrative 1486 functions  of the State Government and admits of no  element of  judicial  process.  (Vide The  Province  of  ,Bombay  v. Kusaldas  Advani (1) (per Kania C.J. at p. 633-635) and  per Das  J. (as he then was) at p. 703).  The  State  Government must  necessarily  be  the  sole  judge  of  the  state   of incompetency  of the municipality otherwise it would not  be able  to take its administrative decision as to  the  action which  it  should take and which it considers is  likely  to improve  the administration.  Both the decisions as  to  the incompetency  of  the municipality and the exercise  of  the executive function as to the action to be’ taken thereon are matters  of  like character i.  e.  administrative  matters. (Kusaldas  Advani’s  case at p. 633).  If that were  not  so then  on the question of incompetency the  State  Government procedure will be analogous to a judicial process subject to review  of  Courts and the action it will take  will  be  an administrative decision not subject to judicial review which will  not only lead to inconvenience but to confusion.   The Privy  Council  pointed out in Venkatarao  v.  Secretary  of State (2) that " inconvenience is not a final  consideration in  a matter of construction, but it is at least  worthy  of consideration,  and  it  can  hardly  be  doubted  that  the suggested procedure of control by the Courts over Government in  the  most detailed work of managing its  services  would cause not merely inconvenience but confusion ". The  very fact that an order under s. 53-A is in the  nature of an emergency action to protect the interests of the  rate payer  and  has a limited duration not exceeding  18  months also  negatives  the  order being founded  on  an  objective determination as to the incompetency of the committee.  Such a  construction will defeat the very purpose of a.,  53-  A.

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Further action under s. 57 is of a permanent nature and  has accordingly been expressly made subject to an explanation by the  municipal committee.  The absence of such  a  provision from  s.  53-A clearly shows that the  legislature  did  not intend  that  there  should  be  an  elaborate  hearing  but intended that the State should under S. 53-A  take  a  swift administrative decision.  The (1) [1950] S.C.R 621.          (2) (1936) L.R. 64 I.A. 55. 1487 correct  position, as indicated above, is that the  decision of the State Government as to incompetency and the  decision as  to the action to be taken were really one decision,  one integrated   whole  a  subjective  decision  of  the   State Government that it considered that by the appointment of  an executive  officer  a general improvement  in  the  hitherto general  administration  was likely to be  secured.   Merely because  the fact of incompetency is a preliminary  step  to the  exercise  of an administrative function  by  the  State Government,  under & 53-A it is not necessary that the  fact is  to be determined judicially.  Where the exercise of  the administrative functions of an Executive authority like  the State  Government  are  subject  to a  decision  as  to  the existence  of  a fact, there is no duty cast  on  the  State Government  to act judicially.  Both the decision as to  the fact and as to the action to be taken are really one and not two  decisions, the determination being for the  purpose  of taking an appropriate administrative decision.  As has  been said  above  it  is  one  integrated  whole  and  cannot  be separated  into parts with different legal qualities.   This was  the  view of Kania C. J. in the Province of  Bombay  v. Kusaldas Advani (1) where it was observed at p. 633: "  Because an executive authority has to  determine  certain objective facts as a preliminary step to the discharge of an executive  function,  it  does  not  follow  that  it   must determine  those  facts  judicially.   When  the   executive authority  has to form an opinion about an objective  matter as  a preliminary step to the exercise of a power  conferred on  it,  the  determination of the objective  fact  and  the exercise  of  the executive power based  thereon  are  alike matters of an administrative character Fazl Ali J. in that case said at p. 642: For  prompt action the executive authorities have  often  to take  quick  decisions and it will be going too far  to  say that in doing so they are discharging any judicial or quasi- judicial functions.  The word I decision’ in common parlance is more or less a natural (3)  [1950] S.C.R. 621. 1488 expression  and  it  can be used with  reference  to  purely executive 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 Teal test is: Is there any duty to act judicially ? The  language of sub-section (1) of s. 63-A  indicates  that the question whether the State Government considers that the action taken under the section i. e., the appointment of  an Executive Officer is likely to secure an improvement in  the general  administration  of  the  municipality  is  one   of expediency, opinion and policy, matters which are peculiarly for  the  State Government to decide and  of  which,  always assuming that it is acting bona fide, it is the sole  judge. No  objective test is possible.  Therefore the use of  these words "considers " and " is likely " negatives any objective

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approach  or judicial or quasi-judicial process.  The  State Government is not essentially a judicial or a quasi-judicial body  but  its essential function  is  administrative.   The various  provisions  of  the  Act show  that  it  takes  its decisions   as  to  the  mode  and  extent  of  control   of municipalities in pursuance of its opinion and policy and on grounds of expediency.  In arriving at its decision it at no stage has any form of lis or quasi-lis before it nor can  it be said that there are two parties before it.  The Municipal Committee  and  itself cannot be termed  quasi-litigants  or parties to a proposition and opposition.  It is not bound to take  action under s. 53-A or any other section of the  Act. It  has to consider the question from the point of  view  of policy  and expediency and the exigencies of the case  which shows  that  it  is not under a duty at  any  stage  to  act judicially  to determine a question.  This further  supports the  view  that  a correct interpretation  of  the  words  " considers  "  and Is is likely to be secured "  indicates  a subjective  decision and these words make the order  of  the State  Government administrative and not judicial or  quasi- judicial. The  argument  that the order is quasi-judicial  because  it affects the rights of I the Municipal 1489 Committee  is vacuous because all that the order  complained of does is that it restricts the exercise of certain  powers by the municipal committee and vests some powers in  another authority  contemplated  by  the  statute.   Besides   every decision  of the Executive generally affects the  rights  of one  citizen or another.  In Advani’s case (1) Kania  C.  J. said at page 632: "............ it is broadly stated that when the fact has to be  determined by an objective test and when  that  decision affects  rights of some one, the decision or act  is  quasi- judicial.   This  last statement overlooks the  aspect  that every  decision of the executive generally is a decision  of fact and in most cases affects the rights of some one or the other." But it was contended that in its order the State  Government has to state reasons for taking action under s. 53-A.  In  a democratic  system of government there is always  the  other party,  the  electors and citizens, who must  know  why  the State  Government  takes one particular action  rather  than another.   Besides  the mere requirement of  giving  reasons would  not  change what was an administrative  body  into  a judicial body or an administrative decision into a  judicial or quasi-judicial determination. The following passage from Halsbury’s Laws of England,  Vol. II,  p.  56  (3rd  Edition) aptly states  the  law  and  may usefully be quoted: " If, on the other hand, an administrative body in  arriving at  its decision has before it at no stage any form  Of  lis and  throughout has to consider the question from the  point of view of policy and expediency, it cannot be said that  it is under a duty at any time to act judicially ". See also R. v. Manchester Legal Aid Committee In  B. Johnson & Co. (Builders) Ltd. v. Minister  of  Health (3)  it  was  also held that the Minister  was  entitled  to inform  his  mind by informal machinery of  an  enquiry  and merely  because in order to inform his mind the enquiry  had to  be held it could not be said that the Minister  was  not performing his administrative (1) [1950] S.C.R. 621.         (2) (1952) 2 Q.B. 413.431. (3) (I947) 2 A.E.R. 395. 1490

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function.  At p. 405 Cohen L. J. went further and said: "  His  duty as regards information received by him  in  his executive  capacity  is to use that information  fairly  and impartially.   This  may  involve that  he  should  give  an opportunity to the authority or to the objector, as the case may  be, of dealing with some allegation in a  communication he  has  received before the quasi-lis started, but,  if  he fails to do so, he is responsible only to Parliament for the discharge  of  his  executive duties,  and  cannot  be  made responsible in these courts." Appellants’ counsel relied on some English cases, the  first of  which was Cooper v. Wandsworth Board of Works (1)  where Byles J. said at p. 420: "......  although there are no positive words in  a  statute requiring that the party shall be heard, yet the justice  of the common law will supply the omission of the legislature." This view is not in accord with the modern exposition of the law in Nakkuda Ali’s case (2) or Franklin’s case (3).   Lord Shaw in Arlidge’3 case (4 ) rejected the concept of  natural justice in the following language : "............  in so far as it attempts to reflect  the  old jus naturale it is a confused and unwarranted transfer  into the   ethical   sphere  of  a  term   employed   for   other distinctions;  and,  in so far it is resorted to  for  other purposes, it is vacuous." In  R.  v.  Manchester Legal Aid  Committee  (5)  the  court observed : " 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 licences, it is acting in a  purely ministerial  capacity,  it is clearly under a  duty  to  act judicially.  When, on the (1)  [1863]14 C.B. (N.S.) 180; 143 E.R. 414, 420.   2,0.7 (2)  [1951] A.C. 66,78. (4)  [1915] A.C. I20,138. (3)  [1948] A.C. 87. (5)  [I952] 2 Q.B. 413, 431. 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." But at page 431 it was said: " If, on the other hand, an administrative body in  arriving at its decision at no stage I has before it any form of  lis and  throughout has to consider the question from the  point of view of policy and expediency, it cannot be said that  it is under a duty at, any stage to act judicially." That  was a case of a debtor who applied for and obtained  a certificate of legal aid under the Legal Aid and Advice Act, 1949,  in  connection with his claim for damages  against  a company  but was thereafter adjudicated bankrupt and at  his instance  the certificate was cancelled as his claim  vested in the trustee in bankruptcy.  The trustee then applied  for and  obtained  a  certificate of legal  aid.   The  National Assistance Board and the local Committee considered only the financial  circumstances  of  the bankrupt and  not  of  the trustee whose disposable income was in excess of the  lowest limit  entitling  a certificate of legal  aid.   The  debtor company  applied  for an order of certiorari  to  quash  the certificate  alleging  that the Committee had  exceeded  its jurisdiction.   Under  the Legal Aid  (General)  Regulation, 1950,  reg. 4(1), it was a condition precedent to the  grant

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of a certificate that there should have been a determination by the National Assistance Board of the disposable income of the  trustee  who  was  personally  liable  vis  a  vis  his opponent.  It was held that the Board having legal authority to  determine questions affecting rights of subjects  had  a duty  to  act  judicially  and  that  it  had  exceeded  its jurisdiction.   The case has some  distinguishing  features, wanting in the case before us.  The statute there prescribed the limit of income of applicant for a certificate of  legal aid  and the regulations required the determination  by  the National  Assistance  Board  of the  disposable  income  and disposable  capital of such applicant which was a  condition precedent to the 1492 grant  of  the  certificate.  Clearly  without  such  deter- mination  the  grant of the certificate was not  within  the jurisdiction  of  the Board and therefore the Board  had  to determine  a  question and was required  to  act  judicially within  the  rule  laid down in  the  majority  judgment  in Kusaldas  Advani’s case (1).  The Board under  that  statute was bound to give aid, if certain conditions were  fulfilled and was quite unconcerned with questions of policy.  "  They have  to  decide  the  matter  solely  on  the  facts  of  a particular  case,  solely on the evidence  before  them  and apart  from any extraneous considerations.  In other  words, they must act judicially, not judiciously." In  Capel v. Child (2) the words " Whenever it shall  appear to  -the satisfaction of the Bishop " were held to  imply  a duty  to  act  judicially and therefore  the  principles  of natural justice applied.  This rule is inconsistent with the decision  of the Privy Council in Nakkuda Ali’s case (3)  or the decision of the House of Lords in Franklin’s case (4) or the  interpretation  placed upon the word " satisfied  "  in some  of  the later English cases, Robinson v.  Minister  of Town  and  Country  Planning  (5)  and  B.  Johnson  &   Co. (Builders)  Ltd. v. Minister of Health (6).  This  Court  in Kusaldas Advani’s case (1) also held this word to indicate a subjective  approach.   See also Wijeysekra v.  Festing  (7) where  the  words of the Statute were "  whenever  it  shall appear  to the Governor See also R. v.  Metropolitan  Police Commissioner  (8)  where also the words were " if he  is  so satisfied and it was held that these words did not imply " a judge or a quasi-judge ". The decision in these cases laying down  the  rule of application of natural  justice  must  be confined  to  their  own  facts  and  the  language  of  the particular statute they interpreted.  No general rule can be deduced therefrom nor can they be applied to other  statutes and other circumstances. The case before us is not one where no enquiry has (1)  [1950] S.C.R. 621, 720. (2)  [1832] 2 Cr. & Jr. 558; 37 R.R. 761.      (3) [1951] A.C66,78.(4) [1948] A.C. 87.      (5) [1947] K.B. 702.(6) [1947] 2 A.E.R. 395.      (7) [1919] A.C. 546.(8) [1953] 2 A.E.R. 717. 1493 been  hold.  There was an enquiry against the appellants  in regard  to specific allegations made against them and  after hearing  them a report was made by a Deputy Collector  which was forwarded to the State Government before it took action. One  Dhurmal Daga made a number of allegations  Annexures  I and  II and those allegations were supported by others  like Dear  &  Co.,  Poonam Chand  Somraj,  Dhamtari  Traders  and Shilaram  and the affidavit of the State Government  in  the High  Court  shows that the notice was issued  to  both  the appellants  to reply to the allega appellant No. 1  appeared

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before  a long explanation denyDhurmal Daga and others.   It was  after  this that the Enquiry Officer  made  his  report which  was sent to the State Government and it  took  action which  it  considered  apposite  and  that  is  the   action complained of But  it  was  submitted  that no notice  was  given  to  the appellants  as to the nature of the complaint  against  them and  the various charges which have been-enumerated  in  the notification were never specifically brought to their notice and  they  were  not called upon to show  cause  why  action should  not be taken under s. 53-A.  In the first place  the word,% of the section as explained above do not  contemplate any such notice and the argument based on the opening  words of   the  section  that  the  municipality  was  guilty   of incompetence  was an objective fact cannot be accepted.   It cannot  be  said  in this case that in  point  of  fact  the appellants did not know what the complaint against them  was or that they had no opportunity of giving their  explanation in regard to the charges.  All the acts which are enumerated in the notification are contained in the various allegations which  were  made  against the  appellants  by  Dburmal  and others.  The appellants put a long explanation giving  their version  of  the facts contained in the  complaint  and  the Enquiry Officer sent his report after hearing the appellants and on the consideration of this report the State Government passed its order under s. 53-A.  The High Court after  going through 1494 the record of the enquiry was satisfied as to the  propriety and  legality  -  of the enquiry and  that  portion  of  its judgment has been quoted above. Then  it  was  submitted that the enquiry by  Mr.  Rana  was unautborised  by the State Government and was no  substitute for  the enquiry required by the statute.  But  the  statute has prescribed no procedure for enquiries under s. 53-A even if  it  were  to be said that the  section  contemplates  an enquiry.   And it is no defect affecting the final  decision of  the State Government whether the enquiry  originates  in the manner it did or the State Government ordered it. In  these  circumstances  the  third  point  raised  by  the appellants  cannot  be sustained and the submission  of  the appellants is without substance.  The appeal therefore fails and is dismissed with costs throughout. SUBBA  RAO  J.-I  have  had the  advantage  of  reading  the judgment  prepared  by  my Lord, the Chief  Justice  and  my learned  brother,  Kapur J. I regret my inability  to  agree with them in their views on   the  follwing  two  questions: (1)   Whether   under  s.  53-A  of  the  C.  P.   &   Berar Municipalities Act (Act II of 1922), hereinafter called  the Act, the Government performs a judicial act; and (2) whether in  fact  the  Government complied with  the  principles  of natural justice in making the, Order dated November 8, 1956, under s. 53-A of the Act. As the facts have been fully narrated by my Lord, the  Chief Justice,  it  would  suffice if the facts  relevant  to  the aforesaid  questions  are briefly stated here.   The  second appellant  is  the Municipal Committee,  Dhamtari,  and  the first  appellant  is  its  President.   He  was  elected  as President on July 10, 1956, and took charge of his office on July 27, 1956.  On August 8,1956, one Dhurmal Daga went on a hunger strike -for the redress of his grievances against the appellants.  The Collector, Raipur, intervened and persuaded him to break his fast and ordered an inquiry into the charge of  maladministration.  The Deputy Collector, who  made  the inquiry, gave notice of the said inquiry to the Secretary to

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the Committee and the first appellant 1495 filed  a written reply on September 7, 1956, and  personally appeared  at  the inquiry.  Presumably, the  result  of  the inquiry  was forwarded to the Government.  On  November  18, 1957, the Government issued an Order, A under a. 53-A of the Act,   enumerating   fifteen  charges  involving   acts   of nonfeasance,  misfeasance, gross negligence and  fraud,  and stating  that, by reason of the said act,%, it  appeared  to the   Government  that  the  Committee  had  proved   itself incompetent to perform the duties imposed on it by or  under the said Act.  The order further proceeded to state that the Government  considered  that a general  improvement  in  the administration of the Municipality was likely to be  secured by  appointing a servant of the Government as the  Executive Officer  of  the Committee.  The said Order  also  appointed Shri  B. P. Jain as Executive Officer and entrusted  to  him most of the important powers and duties of the Committee and the  President.   Before the drastic action  was  taken,  no opportunity  was  given either to the President or  to,  the Committee  to explain their conduct in regard to any one  of the  charges.   The  previous inquiry  made  by  the  Deputy Collector was to attempt to persuade Dhurmal Daga to give up his fast and that inquiry by the Deputy Collector could not, in  any  sense of the term, be regarded as  an  inquiry  for taking action under s. 53-A of the Act.  Records also do not disclose  whether that inquiry related to the  same  charges which  were the foundation for the Government taking  action under the Act. 1, therefore, proceed on the footing that the Government acted under s. 53-A of the Act without giving any opportunity  to the appellants to explain their  conduct  in regard  to the grave charges levelled against them,  on  the basis  of which they were held to be incompetent Within  the meaning of s. 53-A of the Act. The material part of s. 53-A reads: "  If  a committee is not competent to  perform  the  duties imposed  on it or undertaken by it by or under this  Act  or any,  other  enactment for the time being in force  and  the State Government considers that a general improvement in the administration of the 190 1496 municipality is likely to be secured by the appointment of a servant  of the Government as the executive officer  of  the committee,  the  State  Government may, by  an  other  Order stating  the  reasons  therefor published  in  the  Gazette, appoint  such  servant  as  the  executive  officer  of  the committee  for such period not exceeding eighteen months  as may be specified in such order."- The  learned  Advocate-General,  appearing  for  the  State, contended  broadly  that under this section  the  Government performs  only  an  administrative  act  by  appointing   an Executive  Officer  for  a short  period  and  therefore  no opportunity  need  be given to the affected  parties  before action is taken thereunder.  Mr. M. K. Nambiar, counsel  for the   appellants,  argued  that  under  this   section   the Government is empowered to deprive the Municipal  Committee, duly  elected,  under  the Act, of its  powers,  though  for eighteen months, on the basis of its incompetency and it  is against all principles of natural justice to stigmatize such a  body as incompetent without giving it an  opportunity  to explain  its  conduct.   He  would  say  that  whether   the Committee   is  competent  or  not  is  an   objective   and jurisdictional  fact to be decided judicially by  the  State Government  and, therefore, the act of the Government  is  a

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judicial act, which can only be discharged by following  the principles of natural justice. Before considering the validity of the arguments based  upon the  provisions  of the section, it would be  convenient  at this  stage  to  notice briefly the  distinction  between  a judicial  and  an administrative act and the  criteria  laid down by decisions for ascertaining whether a particular  act is  a  judicial  act or an  administrative  one.   The  said criteria  have been laid down with clarity by  Lord  Justice Atkin   in  Rex  v.  The,  Electricity  Commissioners   (1), elaborated by Lord Justice Scrutton in Rex v. London  County Council  (2)  and authoritatively restated  in  Province  of Bombay  v. Kusaldas S. Advani (3).  The aforesaid  decisions lay  down the following conditions to be complied with:  (1) The  body  of  persons must have legal  authority;  (2)  the -authority should (1) [1924] 1 K. B. 171.        (2) [1931] 2 K. B. 215. (3)  [1950] S.C.R. 621. 1497 be  given  to determine questions affecting  the  rights  of subjects; and (3) they should have a duty to act judicially. So  far  there is no dispute.  The question raised  in  this case is what do the words " a duty to act judicially " mean. If  the  statute  in express terms says  that  the  decision should be arrived at judicially, then it is an obvious case. If  it does not expressly say so, can the intention  of  the Legislature  be  gathered or implied from the terms  of  the statute  ?  If it can be so gathered, what are  the  guiding factors  for implying such a duty on the part of a  tribunal or authority ? In this context a brief discussion of some of the ’relevant cases will be helpful.  This Court, as I  have already  stated, restated the law laying down  the  criteria for ascertaining whether an act is a judicial act or not  in Kusaldas’s  case  (1).  There the question was  whether  the Provincial  Government was acting judicially in  making  the order  of  requisition  under  a.  3  of  the  Bombay   Land Requisition  Ordinance  (Bom.  Ordinance V  of  1947).   The material  part  of  the section  under  discussion  read  as follows: "  If  in  the opinion of the Provincial  Government  it  is necessary  or expedient to do so, the Provincial  Government may, by order in writing requisition any land for any public purpose." To  ascertain the nature of the act of the Government  under that section, this Court reviewed the law on the subject and held,  by a majority, that on a proper construction of s.  3 of the Ordinance, the decision of the Bombay Government that the  property  was required for a public purpose was  not  a judicial  or a quasijudicial decision but an  administrative act   and   the  Bombay  High  Court  had,   therefore,   no jurisdiction to issue a writ of Certiorari in respect of the order  of  requisition.   Das  J.  as  he  then  was,  after considering the law on the subject summarized the principles at page 725 thus: "  (i) that if a statute empowers an authority, not being  a Court in the ordinary sense, to decide disputes arising  out of  a claim made by one party under the statute which  claim is opposed by another party and (1)  [I950] S.C.R. 621. 1498 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;

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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 quasijudicial  act  provided  the authority is required by the statute to act judicially." The propositions so stated appear to me to be unexceptional. But  the  further  difficulty is whether  the  duty  to  act judicially  should be expressly so stated in the statute  or whether it can be gathered or implied from the provisions of the  statute.  I do not think that Das J. as he  then  was,, meant  to  lay  down as a condition that  the  duty  to  act judicially  should be expressly stated in the  statute,  for rarely any statute would describe the character of  disposal of  a particular proceeding.  If it was intended  to  insist upon an express condition in the statute, the learned  Judge would  not have scrutinized the provisions of the  Ordinance to ascertain whether the order thereunder was intended to be a judicial act or not.  A useful discussion bringing out  in bold  relief  the  difference  between  a  judicial  and  an administrative  act is found in R. v. Manchester  Legal  Aid Committee  (1).   There  a debtor applied  to  a  local  aid committee, set up under the Legal Aid and Advice Act,  1949, for  a  certificate  for legal aid to  pursue  a  claim  for alleged breach of contract against a limited company.  As he was  adjudicated insolvent, the certificate was revoked  and on  application made by his trustee, it was granted  to  him again.   One of the questions raised was whether  the  legal aid   committee  in  issuing  the  certificate  was   acting judicially and therefore subject to an order of  certiorari. The court held that the said body was under a duty to act (1)  [I952] 2 Q.B. 413. 1499 judicially.  Parker J. delivering the judgment of the Court, summarized the law on the subject at page 428 thus: " 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 licences, it is acting in a  purely ministerial  capacity,  it is clearly under a  duty  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......... Further, an administrative body in ascertaining facts or law may  be under a duty to act judicially notwithstanding  that its proceedings have none of the formalities of and are  not in   accordance   with   the  practice   of   a   court   of law..................... If, on the other hand, an administrative body in arriving at its  decision at no stage has before it any form of lis  and throughout  has to consider the question from the  point  of view of policy and expediency, it cannot be said that it  is under a duty at any stage to act judicially." On the basis of the aforesaid principles, the learned  Judge held  that  the local committee,  though  an  administrative body,  was acting judicially in issuing the certificates  as

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in  ascertaining the facts for issuing the  certificate  -it was  quite  unconcerned  with any  question  of  policy.   I respectfully  agree  with the principles enunciated  by  the learned Judge and they are not in any way inconsistent  with the  principles laid down by this Court.  The law  has  been neatly  summarised  in  Halsbury’s Laws  of  England,  Third Edition, Volume 11, at pages 55 and 56 and it is as follows: 1500 "  It  is  not necessary; that it should  be  a  court:  ’an administrative  body  in ascertaining facts or  law  may  be under  a  duty to act judicially  notwithstanding  that  its proceedings have none of the formalities of, and are not  in accordance  with  the practice of, a court of  law.   It  is enough if it is exercising, after hearing evidence, judicial functions  in  the sense that it has to decide  on  evidence between a proposal and an opposition.  A body may be under a duty, however, to act judicially (and subject to control  by means  of  these orders) although there is no  form  of  lis inter partes before it; it is enough that it should have  to determine  a question solely on the facts of the  particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations." "  Moreover  an  administrative  body,  whose  decision   is actuated in whole or in part by questions of policy, may  be under a duty to act judicially in the course of arriving  at that decision........................ If, on the other hand, an  administrative  body  in arriving at  its  decision  has before it at no stage any form of lis and throughout has  to consider  the question from the point of view of policy  and expediency, it cannot be said that it is under a duty at any time to act judicially." It is not necessary to multiply citations. The  concept  of a ,judicial act", has  been  conceived  and developed  by  the English Judges with a view  to  keep  the administrative  tribunals  and  authorities  within  bounds. Unless   the   said  concept  is   broadly   and   liberally interpreted,  the object itself will be defeated,  that  is, the  power  of  judicial review will  become  innocuous  and ineffective.   The comprehensive phraseology of Art. 226  of the Constitution supports rather than negatives the  liberal interpretation of that concept.  The argument that the Court shall not obstruct the smooth working of the  administrative machinery does not. appeal to me, for the simple reason that the exercise of the power of judicial review or, to be  more precise,  the existence of such power in  courts-for  hardly one act in thousands come before courts-eliminates arbitrary action and enables the 1501 administrative   machinery  to  function  without  bias   or discrimination.  With this background, the principles, as  I apprehend  them, may be concisely stated thus: Every act  of an  administrative  authority is not  an  administrative  or ministerial act.  The provisions of a statute may enjoin  on an  administrative authority to act administratively  or  to act  judicially  or to act in part administratively  and  in part  judicially.  If policy and expediency are the  guiding factors  in part or in whole throughout the  entire  process culminating in the final decision,, it is an obvious case of administrative  act.   On  the other hand,  if  the  statute expressly  imposes a duty on the administrative body to  act judicially,  it  is again a clear case of  a  judicial  act. Between  the two there are many acts, the  determination  of whose  character creates difficult problems for  the  court. There  may  be cases where at one stage of the  process  the said  body may have to act judicially and at  another  stage

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ministerially.   The  rule can be broadly stated  thus:  The duty  to act judicially may not be expressly  conferred  but may be inferred from the provisions of the statute.  It  may be gathered from the cumulative effect of the nature of  the rights  affected, the manner of the disposal  provided,  the objective criterion to be adopted, the phraseology used, the nature  of  the power conferred or the duty imposed  on  the authority  and  other indicia afforded by the  statute.   In short,  a  duty  to  act  judicially  may  arise  in  widely different circumstances and it is not possible or  advisable to  lay down a hard and fast rule or an inexorable  rule  of guidance. In the present case, s. 53-A of the Act itself provides  the necessary  criteria  to  answer the  question.   Before  the Government   can  take  action  under  the  section,   three preliminary  conditions  for the exercise of the  power  are laid down: (1) The Committee is not competent to perform the duties  imposed  on it; (2) the State  Government  considers that  a  general improvement in the  administration  of  the municipality is likely to be secured by the appointment of a servant of the Government; (3) an order stating the  reasons therefor.    The   first   condition   depends   upon    the determination of 1502 an   objective  fact,  namely,  whether  the  committee   is competent  to perform the duties imposed upon it.  It  is  a jurisdictional   fact  that  confers  jurisdiction  on   the Government  to  take further action.  The  determination  of this fact is not left to the subjective satisfaction of  the Government.   Indeed,  the  different  phraseology  used  in regard  to  the  second  condition,  namely,  "  the   State Government  considers  ",  brings out  in  bold  relief  the distinction  between  the  two;  while  in  the  former   an objective fact has to be -determined, in the latter the fact is  left to the subjective satisfaction of  the  Government. If the facts covered by both the conditions are left to  the subjective  satisfaction of the Government, the  phraseology would  have  been different and the clause  would  have  run thus:  ".If the Government considers that, the committee  is not competent to perform the duties imposed on it or  under- taken by it by or under this Act or any other enactment  for the  time being in force and that a general  improvement  in the  administration  of  the municipality is  likely  to  be secured by the appointment of a servant of the Government as the Executive Officer of the Committee........ To accept the argument  of  the  Counsel for the respondents  will  be  to rewrite  the  section  in  the above  manner  which  is  not permissible.    There   is  also  a  good   reason   and   a justification for the difference in the phraseology used  in the section.  The municipality is an elected corporate  body and  is  entrusted  with  responsible  statutory  functions. While  it may be necessary, in public interest,  to  deprive the  committee of some powers for a short period when it  is proved  to be demonstrably incompetent, such a  body  cannot easily  be relegated to a subordinate position -on the  mere will and pleasure of the Government.  The section reconciles the public good and the committee’s rights and prestige,  by conditioning the exercise of the power of the Government  to depend    upon   the   objective   determination   of    the jurisdictional fact.  Whatever ambiguity there may be in the section,  it  is dispelled by the third  condition,  namely, that which enjoins on the Government to give reasons.   What is  the  object  of the Legislature  in  imposing  the  said condition, if 1503

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the  matter  is left to the subjective satisfaction  of  the Government  ? The concept of subjective satisfaction of  the Government does not involve any attempt to satisfy the  mind or appeal to the good sense of another.  The working of  the mind  need not be disclosed and the validity of the  section need not depend upon any objective standard.  The  condition to  pass  a  speaking order is destructive of  any  idea  of invulnerability,  for  the said condition implies  that  the order should satisfy the mind of a reasonable man. It  is contended that a comparative study of the  provisions of  ss.  53-A and 57 shows that the Government has  to  give notice  before  taking action under s. 57, whereas  no  such duty  is cast upon it under s. 53-A and that would  indicate the intention of the Legislature that the Government is  not expected  to act judicially under s. 53-A.  There.  is  some force  in this contention, buy that is not decisive  of  the question to be decided in this case.  If the provisions of a particular   section  necessarily  imply  a  duty   to   act judicially, the mere fact that there is no express provision to  issue a notice to the affected parties cannot convert  a judicial  act  into  an administrative one.   Nor  does  the argument  that  the  order of appointment  of  an  Executive Officer  is  only  for  a  temporary  period  indicate   the administrative  character  of  the  act.   The  finding   of incompetency  carries  a  stigma with it and  what  is  more derogatory to the reputation of the members of the committee than  to  be stigmatized as incompetent to  discharge  their statutory  duties  ? Would it be reasonable to  assume  that public  men  in  a  democratic country  are  allowed  to  be condemned  unheard ?  What is material is not the period  of the tenure of the executive officer, but the ground for  the appointment of the officer, namely, the incompetency of  the committee.   Shortly  stated,  the  position  is  this:  The committee  is  comprised of elected representatives  of  the respective constituencies; they are presumably competent men in  whom the electorate has confidence.  The Government  has to arrive at the finding of their incompetency on the  basis of objective facts to be ascertained and to 191 1504 give  reasons for its finding.  It is against all canons  of natural  justice that a tribunal should arrive at a  finding of far-reaching consequence without giving an opportunity to -explain  to  the persons who would be affected  by  such  a finding.   For the aforesaid reasons, I have no  doubt  that the  section  imposes  a  duty  on  the  Government  to  act judicially in ascertaining the objective and  jurisdictional fact, namely, whether the committee is incompetent.  It is a necessary condition of such a duty to give an opportunity to the committee to explain the grave charges levelled  against it.   Admittedly,  no  such opportunity  was  given  to  the committee  and  I cannot agree with  the  learned  Advocate- General  that  the  inquiry by the Deputy  Collector  at  an earlier stage for a different purpose had in effect given an opportunity to the committee.  It is not known what were the charges  for  which  that  inquiry  was  held.   The  record discloses  that  the  inquiry  was  held  by  a  subordinate officer-there  is  nothing  on  record  to  show  that   the Government  authorised  either the Collector or  the  Deputy Collector to make the inquiry in connection with the fast of Dhurmal  Daga.   In my view, the inquiry  cannot  presumably take the place of reasonable opportunity to be given by  the Government for the proposed action under s. 53-A of the Act. In  the result, it follows that the Order of the High  Court should  be set aside and that of the  Government  appointing

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the Executive Officer quashed.  I do it accordingly. ORDER  PER CURIAM: This appeal is dismissed with  costs,  in this court and the courts below.               Appeal dismissed.