A) ABSTRACT / HEADNOTE

The Supreme Court in Province of Bombay v. Kusaldas S. Advani and Others, addressed the scope and ambit of issuing a writ of certiorari against executive or administrative actions under Section 3 of the Bombay Land Requisition Ordinance, 1947. The key issue revolved around whether the requisition of property by the Government for a public purpose was a quasi-judicial act amenable to judicial review through writ jurisdiction. The case saw a split in judicial opinion, with the majority holding that the act was purely administrative and hence not subject to a writ of certiorari, while the dissent viewed the act as quasi-judicial, requiring adherence to principles of natural justice. The judgment plays a pivotal role in defining administrative law jurisprudence and demarcates boundaries between administrative and judicial functions. It also delves into the meaning of “public purpose”, the importance of natural justice, and whether the subjective satisfaction of executive authorities can oust judicial scrutiny.

Keywords: Certiorari, Quasi-Judicial, Administrative Action, Public Purpose, Bombay Land Requisition Ordinance, Natural Justice, Judicial Review, Writ Jurisdiction, Government Discretion, Article 32.

B) CASE DETAILS

i) Judgement Cause Title: Province of Bombay v. Kusaldas S. Advani and Others

ii) Case Number: Civil Appeal No. 111 of 1949

iii) Judgement Date: 15th September, 1950

iv) Court: Supreme Court of India

v) Quorum: Kania C.J., Fazl Ali, Patanjali Sastri, Mehr Chand Mahajan, Mukherjea, Das JJ.

vi) Author: Kania C.J. delivered the lead majority judgment; dissenting opinions by Mahajan and Mukherjea JJ.

vii) Citation: AIR 1950 SC 222; 1950 SCR 621

viii) Legal Provisions Involved:

• Bombay Land Requisition Ordinance, 1947 – Sections 3, 4, 10, 12

• Government of India Act, 1935 – Sections 176, 306

• Article 32 of the Constitution of India (for writ jurisdiction)

• Specific Relief Act, 1877 – Section 45

ix) Judgments overruled by the Case (if any): None specifically overruled.

x) Case is Related to which Law Subjects:

• Constitutional Law

• Administrative Law

• Land and Property Law

• Writs and Remedies

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The case arose during the immediate post-partition refugee crisis, with the government using emergency legislative powers to requisition unoccupied properties in urban centers to accommodate refugees. The Bombay Land Requisition Ordinance, 1947 was enacted to empower the government to requisition properties in furtherance of this public purpose. In this backdrop, the flat occupied by the petitioners, who were themselves refugees, was requisitioned by the government and reallocated to another refugee. This led the petitioners to challenge the requisition order on the ground that it was passed without following due process and without valid justification under the Ordinance. The legal contention centered on whether such requisition was an administrative or quasi-judicial act and whether the High Court had jurisdiction to issue a writ of certiorari against the government.

D) FACTS OF THE CASE

One Abdul Hamid Ismail held tenancy of a flat on the first floor of a building named “Paradise” in Bombay. On January 29, 1948, Ismail transferred the tenancy rights to Kusaldas S. Advani, the petitioner, and two of his relatives—all refugees from Sind. Shortly after, on February 4, 1948, the petitioner took possession of the flat. However, on February 26, 1948, the Government of Bombay issued a requisition order under Section 3 of the Bombay Land Requisition Ordinance, 1947, declaring the need to take over the said premises for a public purpose. The same day, the government allotted the flat to another refugee, Mrs. C. Dayaram, and directed an Inspector to take possession.

Feeling aggrieved, the petitioner filed an application under Article 32 before the High Court of Bombay, seeking a writ of certiorari and other reliefs under Section 45 of the Specific Relief Act. The single judge of the High Court allowed the writ against the government. This was later confirmed in part and appealed by the Province of Bombay to the Supreme Court of India.

E) LEGAL ISSUES RAISED

i) Whether the requisition order under Section 3 of the Bombay Land Requisition Ordinance, 1947 was a quasi-judicial act or an administrative one?

ii) Whether a writ of certiorari could lie against the executive government for such administrative orders?

iii) Whether the government’s satisfaction on “public purpose” was subject to judicial review?

iv) Whether the High Court of Bombay had jurisdiction under the Government of India Act, 1935 to issue such writs against the provincial government?

v) Whether requisitioning the premises of one refugee in favor of another refugee could be termed as fulfilling a “public purpose”?

F) PETITIONER / APPELLANT’S ARGUMENTS

i) The counsels for Petitioner / Appellant submitted that:

• The Government’s opinion under Section 3 was not judicial but administrative.

• No duty existed under the Ordinance requiring the government to act judicially or to hold any hearing before requisitioning land.

• The decision to requisition land was based on subjective satisfaction, and the law did not provide any mechanism for public participation or hearing, unlike in land acquisition proceedings.

• The language of the Ordinance, especially the phrase “if in the opinion of the Provincial Government…”, indicated a subjective, non-reviewable discretion.

• They relied on the decision in Franklin v. Minister of Town and Country Planning [(1948) AC 87], where administrative discretion was held not to be amenable to certiorari.

• Argued that no lis existed and no act of adjudication took place, hence no writ could lie.

G) RESPONDENT’S ARGUMENTS

i) The counsels for Respondent submitted that:

• The existence of a public purpose was a condition precedent to the exercise of power under Section 3, making it justiciable.

• The government had a duty to act judicially, as the rights of individuals were being affected.

• The function was not merely administrative, since the government had to form an objective opinion about facts and apply legal standards.

• They relied heavily on Rex v. Electricity Commissioners [(1924) 1 KB 171] and Rex v. London County Council [(1931) 2 KB 215] to support that any authority affecting rights must act judicially and is subject to certiorari.

• It was also argued that constitutional remedies under Article 32 could not be ousted by mere procedural limitations in the Ordinance.

• Cited Hamabai Framji Petit v. Secretary of State for India (42 IA 44), to assert that public purpose is justiciable.

H) RELATED LEGAL PROVISIONS

i) Section 3, 4, 10, 12 – Bombay Land Requisition Ordinance, 1947
ii) Section 176, 306 – Government of India Act, 1935
iii) Article 32 – Constitution of India
iv) Section 45 – Specific Relief Act, 1877
v) Sections 176, 177 – Indian Penal Code, 1860

I) JUDGEMENT

a. RATIO DECIDENDI

i) The majority (Kania C.J., Fazl Ali, Patanjali Sastri, Das JJ.) held that the requisition order was an administrative act, not a quasi-judicial one. Therefore, writ of certiorari was not maintainable.

• The existence of public purpose, though foundational, was to be determined by the subjective satisfaction of the government.

• There was no express or implied duty under Section 3 requiring the government to act judicially.

• Judicial review could exist in cases of mala fides or colorable exercise of power, but not otherwise.

• The majority leaned on English precedents to distinguish between judicial and administrative functions and laid down the standard that “duty to act judicially” is essential to maintainability of certiorari.