Province of Bombay v Kusaldas S. Advani (1950)

This is the case that fixed, for the first generation of Indian administrative law, when certiorari will lie — and the answer it gave was narrow: only where the body has a duty to act judicially. A decision that is "administrative" or "ministerial" was outside the writ altogether.

Two things make it worth close study.

First, the test it laid down. Kania CJ's formulation — the true test is whether the law under which the authority decides itself requires a judicial approach — survived even after the wider requirement was abandoned, and is still the sensible question to ask.

Second, it is the position that later collapsed. In England Ridge v Baldwin (1963) rejected the notion that a "duty to act judicially" must be superadded before natural justice applies; in India A.K. Kraipak v Union of India (1969) held the line between quasi-judicial and administrative action had become thin, and fairness applies to both. Read Advani first, then Ridge and Kraipak, and you have the whole arc.

The dissent of Mahajan and Mukherjea JJ is worth knowing in its own right, because the law moved to where the dissent stood.

Section 3 of the Bombay Land Requisition Ordinance 1947 provided:

"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: Provided that no land used for the purpose of public religious worship or for any purpose which the Provincial Government may specify by notification in the Official Gazette shall be requisitioned under this section."

The first respondent, a refugee from Sind, took an assignment of the tenancy rights in a flat in Bombay and went into possession. A few days later the Government of Bombay requisitioned the flat under s. 3, allotted it to another refugee, and ordered an Inspector to take possession.

On an application under Article 32 the Bombay High Court issued certiorari against the Province of Bombay, and a Division Bench confirmed it. The Province appealed.

Was the Government's decision that the property was required for a public purpose a judicial or quasi-judicial decision — so that certiorari would lie — or an administrative act beyond the reach of the writ?

The majority allowed the appeal. "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 quasi-judicial decision but an administrative act, and the High Court of Bombay had therefore no jurisdiction to issue a writ of certiorari in respect of the order of requisition."

The general rule

"A writ of certiorari lies whenever a body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority; it does not lie to remove or adjudicate upon an order which is of an administrative or ministerial nature."

Kania CJ — why forming an opinion on facts is not judging

"Merely because an executive authority has to determine certain objective facts affecting the rights of subjects as a preliminary step to the discharge of an executive function it does not follow that it must determine those facts judicially. On the contrary, 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."

The test — this is the part to memorise

"It cannot be laid down broadly that in order that a determination may be a judicial or quasi-judicial one there must be a proposition and an opposition, or that a lis is necessary, or that it is necessary that there should be right to examine, cross examine and re-examine witnesses. The true test is whether the law, under which the authority is making a decision, itself requires a judicial approach. Prescribed forms are not necessary to make an inquiry judicial, provided in coming to the decision well recognised principles of approach are required to be followed."

Fazl Ali J put the same point from the other side: "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 matters."

The dissent

Mahajan and Mukherjea JJ held that "the Government of Bombay is a body of persons having legal authority to determine questions affecting the rights of subjects and in deciding whether a land was required for a public purpose under s. 3 of the Ordinance it had to act judicially." On that view the conditions for certiorari were satisfied and the High Court had power to issue the writ.

Certiorari lies against a body having legal authority to determine questions affecting rights and a duty to act judicially; it does not lie against an administrative or ministerial order. Whether a decision is judicial depends not on the presence of a lis or of formal procedure but on whether the law under which it is made requires a judicial approach.

The "duty to act judicially" as a separate, superadded requirement did not survive.

• Ridge v Baldwin [1964] AC 40 held that the duty is to be inferred from the nature of the power and its effect on the individual.
• A.K. Kraipak v Union of India (1969) adopted that reasoning in India, holding the dividing line between quasi-judicial and administrative functions had become thin and that fairness applies to administrative action too.
• Maneka Gandhi (1978) completed the shift.

What survives is Kania CJ's test — does the governing law require a judicial approach — and the general proposition that certiorari goes to excess of authority.

• Direct question: When does certiorari lie? Start here for the classical requirements; then show how Ridge and Kraipak removed the judicial/administrative barrier; conclude with the modern duty of fairness.
• Quote the test, not just the result: the presence of a lis, of pleadings, of cross-examination is not decisive.
• Use the dissent. Saying that Mahajan and Mukherjea JJ dissented, and that the law later moved to their position, shows the direction of travel and is worth a mark.
• Problem question pattern: an authority forms an opinion on facts as a preliminary to exercising a statutory power. On Advani that is administrative; under Kraipak the duty to act fairly attaches anyway. Give both and explain which governs today.