PARVATIBEN BHANABHAI PATEL v. JUGABHAI JEEBHAI — 1961 DIGILAW 92 (GUJ)

J. M. SHELAT, J. ( 1 ) THIS is a petition for a writ or order in the nature of mandamus or certiorari to set aside the order passed by the City Deputy Collector Ahmedabad dated the 7th of June 1961 and to compel the State Government to grant a lease in respect of the land in question viz. survey No. 231 for the year 1961-62 to the petitioner. The petitioner is the owner of survey No. 230 which is situate adjacent to the land in question viz. survey No. 231. Survey No. 231 is a land which became liable to be disposed of under section 32p or section 84c of the Bombay Tenancy and Agricultural Lands Act 1948 Until its final disposal as contemplated under the Act the land was to be given on lease for a year so that it may not remain uncultivated until the time that it was disposed of. On the 24th of August 1959 an eksal lease was granted by the revenue authorities to the petitioner for the year 1959-60 On the expiry of that lease the petitioner applied on 22nd February 1961 for a fresh eksal lease for the year 1960-61. A similar application was also made by two other individuals the 1st respondent and one Kevdaji Panaji. By his order dated May. 20 1960 the mamlatdar granted lease for the year 1960-61 to the 1st respondent and Kevdaji. The petitioner filed an appeal against that order and by his order dated June 23 1960 the Deputy Collector set aside that order of the mamlatdar. The 1st respondent thereupon filed an appeal before the collector. The collector held that no appeal lay against the order passed by the mamlatdar but nevertheless set aside the order of the mamlatdar and remanded it to the mamlatdar observing that the mamlatdar had passed the order in a perfunctory manner. After the matter went back to the mamlatdar the parties were said to have led evidence and on August 30 1960 the mamlatdar passed an order holding that whereas the petitioner was an agriculturist within the meaning of section 2 (2) of the Bombay Tenancy and Agricultural Lands Act 1948 the 1st respondent was not. The 1st respondent thereupon filed a revision application dated October 24 1960 The collector dismissed that revision application confirming the mamlatdars order which was in favour of the petitioner. The 1st respondent thereupon filed a revision application dated October 24 1960 The collector dismissed that revision application confirming the mamlatdars order which was in favour of the petitioner. ( 2 ) ON February 28 1961 the mamlatdar issued a notice inviting applications for a lease of the said land for the year 1961-62. The petitioner as also the 1st respondent filed their applications accordingly on the 7th of March 1961. It is alleged by the petitioner that between March 7 1961 and April 25 1961 she made inquiries in the office of the mamlatdar but no satisfactory reply was given to her and she was in fact told that her application was still pending However she received an order of the mamlatdar dated April 7 1961 whereunder survey No. 231 was given on lease for the year 1961-62 to the 1st respondent. She filed an appeal before the collector. The collector held that no appeal lay before him and thereupon she filed a revision before the State Government presumably under section 86 of the Bombay Tenancy and Agricultural Lands Act. She was informed on the 6th of June 1961 that the Government did not see any reason to interfere with the order passed by the mamlatdar. On June 8 1961 possession of survey No. 231 was taken from the petitioner and the requisite panchnama was made. Contrary to the allegations made by the petitioner in the petition the panchnama records that the petitioner had removed the harvest from the land in question and that only stalks of jowar crop worth about Rs. 40/remained in the land. On June 8 1961 the petitioner filed the present petition. ( 3 ) THE main contention of Mr. Pathak on behalf of the petitioner was that section 84d of the Act under which the mamlatdar passed the order in question contemplates an inquiry that that inquiry is a judicial or a quasi-judicial inquiry and that being so it was incumbent upon the mamlatdar to give a hearing to the petitioner before he passed his order in question. The contention in other words was that the mamlatdar while passing the order in question violated the principles of natural justice and therefore his order must be held to be illegal and void. In our view there is no substance in this contention. The contention in other words was that the mamlatdar while passing the order in question violated the principles of natural justice and therefore his order must be held to be illegal and void. In our view there is no substance in this contention. ( 4 ) SECTION 84d provides that where any land has become liable to be disposed of under section 32p or 84c and the collector or the mamlatdar as the case may be considers that such disposal is likely to take time and that with a view to prevent the land remaining uncultivated it is necessary to take such a step he may lease the land for cultivation to any agriculturist who has under personal cultivation land less than the ceiling area. The section then provides that the lease shall be for a period of one year the lessee shall pay rent at the rate fixed by the mamlatdar and applicable to the land under section 9 the lessee shall be liable to pay the land revenue and other cesses payable in respect of the land and finally that if the lessee fails to vacate the land on the expiry of the term of the lease he shall be liable to be summarily evicted by the mamlatdar. Sub-section (2) then provides that the person holding land on lease under sub-section (1) shall not be deemed to be a tenant within the meaning of the Act. It is clear from the provisions of section 84d that the legislature has conferred power on the collector or on the mamlatdar as the case may be to grant leases for one year in respect of undisposed lands and in which rights to such lands have become vested in the State Government by reason of section 32p or section 84c of the Act. The scheme of sections 84a to 84d is that where such lands become vested in the State Government the mamlatdar or the collector as the case may be is authorised under section 84d (pending their final disposal) to grant yearly leases on the conditions laid down in section 84d. The scheme of sections 84a to 84d is that where such lands become vested in the State Government the mamlatdar or the collector as the case may be is authorised under section 84d (pending their final disposal) to grant yearly leases on the conditions laid down in section 84d. The only restriction to the power to grant such a lease is that the person in whose favour such lease is granted must be an agriculturist within the meaning of section 2 (2) of the Act and must be a person who has under personal cultivation land less than the ceiling area. Section 84d does not in fact contemplate any inquiry into any claim either of the petitioner or of the 1st respondent. ( 5 ) IT was however contended by Mr. Pathak that before granting the lease it was necessary for the mamlatdar to determine whether the person to whom he proposed to grant the lease was an agriculturist or not and if so whether he had under personal cultivation land less than the ceiling area. Mr. Pathak therefore argued that the exercise of power under section 84d was either a judicial or a quasi-judicial exercise of power and therefore that power had to be exercised by the mamlatdar without violating in any manner the principles of natural justice. As to what is a judicial or a quasi-judicial proceeding has now been well settled. As stated in the Province of Bombay v. Kusaldas S. Advani and others 1950 S. C. R. 621 when an Act or regulation commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. The mere fact that the 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 ? The mere fact that the 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 ? It is there also observed that the question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rule and the nature scope and effect of the particular power in exercise of which the act may be done and would therefore depend on the facts and circumstances of each case The Supreme Court in that case was dealing with section 3 of the Bombay Land Requisition Ordinance (V of 1947) and it held that the question whether land is required for a public purpose or is being used for public worship involves difficult questions of law and fact seriously affecting the rights of parties. These were not questions for the mere determination of the Government subjectively by its own opinion but were matters for determination objectively and in a judicial manner on materials which the Government had sufficient power to call for under sections 10 and 12 of the Ordinance after hearing any opposition to its proposal and therefore the High Court had jurisdiction to issue a writ of certiorari. Das J. as he then was held that if a state empowered 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 quasi-judicial act. He then observed that if a statutory body had the power to do any act which would prejudicially affect the subject then although there were not two parties apart from the authority and the contest was between the authority proposing to do the act and the subject opposing it the final determination of the authority would yet be a quasi-judicial act provided the authority was required by the statute to act judicially. A mere provision for an enquiry as a preliminary step to coming to a decision would not necessarily make the decision a quasi-judicial Act for the purpose of the enquiry might only be to enable the deciding authority to make up its mind to do what might be a purely administrative Act. ( 6 ) IT is clear therefore that the mere fact that under section 84d of the Act the mamlatdar has to decide whether the person to whom he proposes to grant the lease is an agriculturist within the meaning of sub-section (2) of section 2 of the Act or not does not render his inquiry a judicial or a quasi-judicial inquiry. It is also clear that the petitioner had no right title or interest in survey No. 231 or any claim therein. Such a claim can only arise after a lease is granted. Similarly granting of a lease by the mamlatdar to an individual cannot be said to prejudicially affect any right title or interest of the petitioner in the land. Therefore merely because the mamlatdar has to decide whether the person to whom he proposes to grant the lease is an agriculturist or not cannot make the inquiry by him either a judicial or a quasi-judicial act. ( 7 ) SIMILARLY in T. C. Basappa v. T. Nagappa and another 1955 S. C. R. 250 the Supreme Court observed that a writ of certiorari can be only availed of to remove an illegality or adjudicate upon the validity of judicial acts which expression includes the exercise of quasi-judicial functions by administrative bodies or other authorities pr persons who are obliged to exercise such functions but does not include purely ministerial acts. One of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove an illegality or adjudicate on the validity of judicial acts. Citing with approval the observations of Atkin L. J. in Rex v. Electricity Commissioners (1923) 1 K. B. 171 at 205 the Supreme Court observed that whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction exercised by superior courts by means of a writ of certiorari. When the mamlatdar passed the order in question under section 84d there was no question of his order affecting the right of the petitioner in survey No. 231. The provisions of section 84d do not contain any indication that the mamlatdar was to act judicially and not in his ministerial capacity in granting the lease for a year to any one of the applicants who made applications to him in response to his notice. The act therefore of the mamlatdar in granting the lease to the 1st respondent cannot be said to be either a judicial or a quasi-judicial act in the sense in which Atkin L. J. in Rex v. Electricity Commissioners observed. ( 8 ) MR. Pathak however relied upon the decision of the High Court of Andhra Pradesh in Collector of Anantapur v. Tavvineni Gangappa and another A. I. R. 1958 Andhra Pradesh 140 where it was held that the grant of Government lands under the Darkhast Rules to persons on satisfaction of certain conditions amounted to a discharge of judicial function. The test whether the function was a judicial or a quasi-judicial function or not relied upon by the High Court was the one laid down in Wilson v. Esqaimalt and Nandimo Ry. Co. (1922) 1 AC 202 where it was said that the statute of 1904 required that before the authority to issue a Crown grant under section 3 was acted upon the Lieutenant-Governor of a province had to decide the question whether or not there was reasonable proof of improvement or occupation and of intention to reside in it. Their Lordships of the Privy Council in that case considered that the function of the Lieutenant Governor in Council in deciding upon such questions was judicial in the sense that he must to adapt the language of Lord Moulton preserve a judicial temper and perform his duties conscientiously with a proper feeling of responsibility in view of the fact that a decision in favour of the applicant must result in the transfer to the applicant of property to which but for the statute and but for the production of the necessary proof the respondent company would have possessed an unassailable right. These observations relied upon by the High Court of Andhra Pradesh from the decision of the Privy Council show that the basis of the test was that a decision in favour of the applicant by the Lieutenant Governor would result in the transfer to the applicant of property to which but for the statute of 1904 the respondent company would have possessed unassailable right. In the case before the High Court of Andhra Pradesh reliance was placed upon several rules which clearly indicated that the officers were to perform their duties conscientiously and with proper feeling of responsibility and a decision under the exercise of powers under the rules therefore was judicial. Ansari J. who delivered the judgment of the Division Bench quoted several paragraphs of the Darkhast Rules under which the grant of Government land was made. Under these rules the authorities had to decide the rival claims and certain preferential claims etc. Those very rules also provided an appeal and also an application in revision. It is therefore clear from the rules themselves quoted by the learned Judge that the function entrusted to the officers concerned was a judicial or in any event a quasi-judicial function and therefore the High Court was held competent to issue a writ of certiorari against the decision of such officer. ( 9 ) THERE are no rules framed by the State Government under section 84 and as we have already observed there is no indication in that section that the function entrusted to the mamlatdar or the collector as the case may be is anything but a ministerial function. When a mamlatdar or a collector decides to grant an eksal lease to a particular individual he is not called upon under section 84d to decide any rival claims to the property in question nor does his granting the lease in any way affect prejudicially the right title or interest of the petitioner in the land in question or otherwise. It is difficult therefore to appreciate as to how the decision in Collector of Anantapur v. Tavvineni Gangappa and another can possibly assist Mr. Pathak. It is difficult therefore to appreciate as to how the decision in Collector of Anantapur v. Tavvineni Gangappa and another can possibly assist Mr. Pathak. ( 10 ) SIMILARLY the case of Jagatchandra N. Vora v. the Province of Bombay 51 Bombay Law Reporter 997 was a case where under the provisions of the Bombay Land Requisition Act 1948 the decision as to the existence of premises as defined therein by the requisitioning authority was a judicial or in any event a quasi-judicial act. The first proviso to section 6 (4) of the Act provided for an inquiry in cases where no intimation was given. Under the provisions of the Act Government were bound to satisfy themselves that the intimation related to premises as defined under section 4 (3) that such premises were vacant within the meaning of sub-section (1) read with the explanation in section 4 and that the intimation was given bona fide by the real landlord. These were objective facts not left to the subjective determination of Government and therefore the act of requisition was a quasi-judicial act even in cases where an intimation of vacancy was given by the landlord. ( 11 ) THE case nearest to the one before us is a decision in Shivji Nathubhai v. Union of India A. I. R. 1960 S. C. 606. There it was held that the Central Government while deciding an application under rule 54 of the Mineral Concession Rules 1949 framed under the Mines and Minerals (Regulation and Development) Act 1948 was acting in a quasi-judicial capacity. It was also held that there was prima facie a lis in such a case as between the person to whom the lease had been granted and the person who was aggrieved by the refusal and therefore prima facie it was the duty of the authority to review the matter judicially and there was nothing in rule 54 to the contrary. It was therefore incumbent upon the Central Government before coming to a decision to give a reasonable opportunity to the other party in the review application whose rights were being affected to represent his case. In the case before the Supreme Court the appellant was granted a mining lease by the then Ruler of Gangapur State shortly before the merger of that State with the State of Orissa. In the case before the Supreme Court the appellant was granted a mining lease by the then Ruler of Gangapur State shortly before the merger of that State with the State of Orissa. This lease was thereafter annulled and the appellant was granted services of approval in respect of prospecting licenses and mining leases Eventually the appellant applied for mining leases for five areas in the district of Sundergarh. In the meantime the third respondent also made applications for mining leases for the same area. Eventually the State of Orissa granted the mining leases of the five areas to the appellant taking into account rule 32 of the Rules which prescribed priority. It was held that the appellants applications were prior and therefore the leases were granted to him. Possession of the area leased was delivered to the appellant. Under rule 52 of the Rules the third respondent then applied for review to the Central Government and the review application was allowed by the Central Government directing the Government of Orissa to grant a mining lease to the third respondent with respect to two out of the five areas. The complaint of the appellant was that he came to know only in February 1954 that the third respondent had applied to the Central Government for review. He addressed a letter to the Central Government praying that he might be given a hearing before any order was passed on the review application. He was however told by the Government of Orissa of the order passed by the Central Government by which the lease granted to him by the State of Orissa with respect to two areas was cancelled. On these facts he made an application to the Punjab High Court under article 226 of the Constitution pleading that the order was a quasi-judicial order and the rule of natural justice had not been followed inasmuch as he had not been given a hearing before the review application was allowed by the Central Government thus affecting his rights to the lease granted by the State of Orissa. The High Court of Punjab held that it was an administrative order and that there being no lis the appellant was not entitled to hearing The Supreme Court reversing the order passed by the Punjab High Court held as aforesaid. The High Court of Punjab held that it was an administrative order and that there being no lis the appellant was not entitled to hearing The Supreme Court reversing the order passed by the Punjab High Court held as aforesaid. Their Lordships of the Supreme Court as it appears from the report at page 609 were of the view that it was not right to say that no right of any kind was created in favour of a person to whom a lease was granted by the State Government. In those circumstances when there was a right of review granted under the Rules before the Central Government the order must be held to be a quasi-judicial order. The Supreme Court was also of the view that there was prima facie a lis as between the person to whom the lease was granted and the person who was aggrieved by the refusal and therefore prima facie it was the duty of the authority which had to review the matter to act judicially and there was nothing in T. 54 to the contrary. At page 609 Their Lordships assumed that the order of the State Government granting a lease under the Rules was an administrative order but the question in the case before them was what was the position after the State Government had granted a lease to one of the applicants before it and had refused the lease to others. On that footing as stated above they held that a right was created in favour of the person to whom the lease had been granted by the State Government and the Central Government while hearing the review provided for under rule 54 would be performing a judicial act when there was prima facie a lis as between the person to whom the lease was granted and the person who was aggrieved by its refusal. The facts in this decision were entirely different from those before us. If after the lease was granted by the mamlatdar to the 1st respondent there were some rules under which a review was provided for or an appeal against the order passed by the mamlatdar then the bearing of such a review or appeal would undoubtedly be a judicial or a quasi-judicial function. In such an event the principle laid down in this decision would be applicable. In such an event the principle laid down in this decision would be applicable. In this connection we may observe that it is significant that in section 70 of the Bombay Tenancy and Agricultural Lands Act where the duties and functions of mamlatdar are enumerated though sections 84a 84 and 84 are specifically set out sec. 84d is conspicuous by its absence. Similarly in section 74 which sets out orders against which there can be an appeal there is no reference to any order passed by the mamlatdar or the collector under section 84d. It is clear therefore that the mamlatdar while acting under section 84d does not perform either a judicial or a quasi-judicial function and there is no provision for an appeal or even a revision against the order passed by him under section 84d. It is no doubt true that the State Government did entertain an application of the petitioner in the matter of the lease in question and rejected that application. Prom that fact however it does not follow that the State Government entertained that application by reason of any power to entertain an appeal or a revision application in respect of the orders passed under section 84d. Section 86 of the Act provides that in all matters connected with the Bombay Tenancy and Agricultural Lands Act the State Government shall have the same authority and control over the mamlatdars and the collectors acting under the Act as they have and exercise over them in the general and revenue administration. There being no provision for an appeal or revision in respect of orders passed by the mamlatdar under section 84 it must be held that the petitioners application entertained by the State was under section 86. That application was entertained therefore under their general power of superintendence and supervision over their own revenue officers. ( 12 ) FOR the reason aforesaid we are of the view that section 84d does not contemplate any inquiry as suggested by Mr. Pathak. The fact that the mamlatdar has to give the lease to an agriculturist as defined by section 2 (2) of the Act who has under his personal cultivation lands less than the ceiling area does not mean that it is incumbent upon the mamlatdar under section 84d to hold an inquiry much less to perform a judicial or a quasi-judicial inquiry. While ascertaining that the person to whom the lease is granted by him is an agriculturist he has no doubt to institute a preliminary inquiry but that does not mean an inquiry in the sense in which Mr. Pathak means viz. a judicial or a quasi-judicial inquiry at which the petitioner had a right of being heard. ( 13 ) THE petition therefore fails and it is dismissed. Rule discharged with costs. Petition dismissed. .