Gujarat High Court
Vikramsinh Dolatsinh Parmar & 6 vs State Of Gujarat on 30 October, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/5809/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5809 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
5 Circulate in all subordinate Courts.
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VIKRAMSINH DOLATSINH PARMAR & 6....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1 - 7
MR KL PANDYA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 30/10/2015
CAV JUDGMENT
1 By this writ application under Article 227 of the Constitution of Page 1 of 32 HC-NIC Page 1 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT India, the applicants - original accused call in question the legality and validity of the order dated 19.09.2015 passed by the 8th Additional Sessions Judge, Surat, in the Criminal Revision Application No.131 of 2015, by which, the learned additional Sessions Judge rejected the Revision Application preferred by the applicants herein, thereby, affirming the order of the learned Judicial Magistrate First Class, Surat, dated 04.08.2015 passed below Exhibit: 159 in the Criminal Case No.7995 of 2011.
2 The facts of this case may be summarized as under:
2.1 Shri Dolatsinh Pruthusinh Parmar, Digvirsinh Nathusinh Parmar, Arvindsinh Nathusinh Parmar and their family members owned parcels of land situated at village: Oon and Bhestan of District: Surat. The proceedings under the Urban Land Ceiling (Regulations) Act, 1976 (hereinafter shall be referred to as "ULC Act") were initiated. The necessary declarations were to be made by the land owners in the prescribed format. In such proceedings, under the ULC Act, the land owners are alleged to have submitted false and bogus documentary evidence before the competent authority with the intention to conceal necessary declarations of the free hold land. Such documents were furnished on or about 06.04.1989, pursuant to which, no surplus land was declared under the said Act. The survey Nos.34 paiki, No.37 paiki at village: Oon and Survey No.157 paiki at village: Bhestan were declared Page 2 of 32 HC-NIC Page 2 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT surplus under the ULC Act. It is the case of the prosecution that pursuant to the claims of 28 heirs and considering 20 units per legal heir, 30,000 sq. mtrs of land was available, and therefore, no surplus land was declared.
2.2 The land owners vide affidavit dated 29.08.1988 of 20 persons and other documentary evidence are alleged to have obtained the advantage fraudulently. Digvirsinh Nathusinh Parmar passed away on 08.08.1996, Arvindsinh Nathusinh Parmar passed away on 12.01.2008 and Dolatsinh Pruthusinh Parmar passed away on 14.07.2010.
2.3 It is the case of the prosecution that thereafter, on or about 03.04.2010, one Bharatsinh Vijaysinh Parmar submitted an application before the Collector, ULC Branch, in connection with the fraudulent acts.
2.4 In such circumstances referred to above, the Police Inspector asked one Shri P.N. Thakore, the Mamlatdar City Taluka, to lodge the First Information Report in that regard. The First Information Report was accordingly registered with the Sachin Police Station, Surat bearing IC.R. No.189 of 2010 dated 12.08.2010 of the offence punishable under Sections 465, 467, 468, 471 read 114 of the Indian Penal Code.
2.5 On completion of the investigation, the Investigating Officer filed a chargesheet. In the said chargesheet, one Shri S.M. Vyas, the Page 3 of 32 HC-NIC Page 3 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT authorized officer (competent officer) and the Deputy Collector (ULC, Surat) has been shown as one of the prosecution witnesses. Shri S.M. Vyas came to be cited as a prosecution witness in the chargesheet since he had passed an order dated 06.04.1989 under the provisions of the ULC Act. The said order has been produced and exhibited at Exhibit: 43 in the trial. It also appears that no police statement of Shri S.M. Vyas was recorded by the Investigating Officer during the investigation.
2.6 It appears that the prosecution proposes to examine Shri Vyas, the Deputy Collector, as one of the witnesses for the prosecution. The accused persons herein objected the decision of the prosecutor to examine Shri S.M. Vyas by filing an application Exhibit: 159. The objection was raised relying upon Section 121 of the Evidence Act, as according to the accused persons, the order passed by Shri Vyas has already been exhibited. The sum and substance of the objection raised by the accused persons is that Shri Vyas, being the Deputy Collector, should not be compelled to answer any question as to his own conduct. 2.7 The trial Court, vide order dated 04.08.2015, rejected the application filed by the applicants herein.
2.8 Being dissatisfied, the applicants have come up with this application.
Page 4 of 32 HC-NIC Page 4 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT 3 Mr. A.D. Shah, the learned counsel appearing for the applicants herein submitted that the Courts below committed a serious error in passing the impugned orders. Mr. Shah submitted that although Shri Vyas, in his capacity, as the Deputy Collector, under the ULC Act, has been cited as one of the witnesses in the chargesheet, yet the prosecution cannot examine him in view of Section 121 of the Evidence Act. Mr. Shah submitted that as such Shri Vyas has no role to play. He is the officer who is said to have passed the order on the basis of the alleged false documents said to have been produced by the applicants (accused persons). Mr. Shah submitted that the order, which was passed by Shri Vyas, has already been exhibited. In such circumstances referred to above, Mr. Shah prays that the impugned orders be quashed and Exhibit: 159 be allowed.
4 In support of his submissions, he has placed reliance on two decisions, one of the Calcutta High Court in the case of The King Emperor v. Deratulla Sheikh and others [AIR 1930 Cal 443] and the another of the Supreme Court in the case of Union of India v. Orient Engg and Commercial Co Ltd [1978 (1) SCC 10].
5 On the other hand, this application has been vehemently opposed by Mr. K.L. Pandya, the learned Additional Public Prosecutor appearing for the State respondent and Mr. Arpit A. Kapadia, the learned advocate Page 5 of 32 HC-NIC Page 5 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT appearing for the de facto complainant. Both submitted that no error, not to speak of any error of law could be said to have been committed by the Courts below. Both submitted that Section 121 of the Evidence Act as such has no application in the present case. They submitted that the Deputy Collector, under the ULC Act, is not a Judge or a Magistrate for the purpose of Section 121 of the Evidence Act.
6 In such circumstances referred to above, they prayed that there being no merit in this application, the same be rejected. 7 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the Courts below committed any error in passing the impugned orders.
8 I need to address the following issues:
(1) What is the scope of Section 121 of the Evidence Act?
(2) Whether an Authorized Officer (competent authority) and the Deputy Collector (ULC) would fall within the meaning of a Judge for the purpose of applicability of Section 121 of the Evidence Act. To put it in other words, whether the competent authority under the ULC Act is a Judge for the purpose of Section 121 of the Evidence Act?
(3) The privilege contemplated by Section 121 of the Evidence Act is Page 6 of 32 HC-NIC Page 6 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT the privilege of the witness, i.e. of the Judge or the Magistrate who is sought to be examined. Whether it would lie in the mouth of the accused person to assert the privilege on behalf of the Judge or the Magistrate?
(4) Whether the Deputy Collector, while passing the order at Exhibit:
143, exercised judicial functions, quasijudicial function or administrative?
9 SCOPE OF SECTION 121 OF THE EVIDENCE ACT:
"121. Judges and Magistrates No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.
Illustrations
(a) A, on his trial before the Court of Sessions, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge B may be examined as to what occurred."
9.1 Judge and Magistrates are competent witnesses i.e., they may if they so like, testify, but they are not compellable to answer any question as to their conduct in Court as such Judges or Magistrates. From motives Page 7 of 32 HC-NIC Page 7 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT of public policy, Judges enjoy certain privileges as to matters in which they have been judicially engaged. The test to be applied when a Judge or a Magistrate claims privilege is whether the question relates to his conduct in Court as such Judge or Magistrate, or to anything which came to his knowledge in Court as such Judge or Magistrate. Thus, a Judge cannot be asked whether he took down a deposition improperly, or what were the terms of the deposition. He may, however, be called upon to speak to any foreign and collateral matters which happened in his presence while the trial was pending or after it was ended. With regard to thing not coming to his knowledge as Judge, a Judge is as competent and compellable a witness like any other person. Thus, a Judge may be made to testify to an attempted murder by a prisoner whilst on his trial before him, or to an attempted rescue of a prisoner in Court.
10 The Evidence Act does not give any definition of a Judge or a Magistrate, though the word "Judge" is defined by Section 19 of the Indian Penal Code. Section 19 of the Indian Penal Code defines the word "Judge" as under:
"19. "Judge"
The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed Page 8 of 32 HC-NIC Page 8 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
Illustrations
(a) A collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under Regulation VII, 1816, of the Madras Code, to try and determine suit, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has power only to commit for trial to another Court, is not a Judge." 11 I have to my advantage a decision of the Supreme in the case of Surendra Kumar Bhatia v. Kanhaiyalal and others [AIR 2009 SC 1961], wherein the issue before the Supreme Court was whether a Collector / Land Acquisition Officer making an award under Section 11(2) of the Land Acquisition Act, 1894 is entitled to the immunity of a Judge under Section 77 IPC. To put it in other words, the question before the Supreme Court was whether the Collector / Land Acquisition Officer, while making an inquiry and award under the Act, acts in a judicial capacity or not. I may quote the observations made by the Supreme Court in paras 12, 13, 14, 15 and 16 as under:
"12. Section 77 IPC provides that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. Section 19 IPC Page 9 of 32 HC-NIC Page 9 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT defines a 'Judge' as denoting not only every person who is officially designated as a Judge, but also every person who is empowered by law to give in any legal proceedings, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons empowered by law to give such a judgment. The question is whether the Collector (or any officer appointed by the appropriate government or other acquiring authority) performing functions assigned under the Land Acquisition Act, can be said to be a 'Judge' as defined in section 19 IPC, that is, a person empowered by law to give a definitive judgment in a legal proceeding and acting judicially in the exercise of such power.
13. The findings of the High Court that a Collector/Land Acquisition Officer making an award under Section 11 (2) of the Act is entitled to the immunity of a Judge under section 77 IPC, is based on the following reasoning :
"Once an agreed award is passed by the competent authority and that award acquires the status of an executable decree under the law, the evidence which came before the competent authority on the basis of which such award is passed, cannot be subjected to investigation by the police authorities."
The respondents also supported the said finding by referring to the various provisions of the Act relating to the powers exercised by the Collector (which term includes not only the Collector of a District or Deputy Commissioner, but any officer specially appointed by the appropriate Government to perform the functions of a Collector under the Act). Section 9 requires the Collector to cause public notice to be given stating that the Government intends to take possession of land in pursuance of the acquisition and that claims to compensation for all interests in such land may be made to him. Section 10 empowers the Collector to require any such person to make a statement containing the names of persons possessing any interest in the land and of the nature of such interest etc. Section 11 authorizes and requires the Collector to hold an enquiry and make an award in regard to the true area of land, the compensation which, in his opinion should be allowed for the land, and the apportionment of the compensation among all the persons interested in the land. It also provides that no award shall be made by the Collector without the previous approval of the appropriate Government or officer authorized by it. Section 12 provides that the award so made shall be final and conclusive evidence as between the Collector and the person interested, of the true area and value of the land and the apportionment of the compensation among the persons interested. Section 13 empowers the Collector to adjourn the inquiry from time to time for any cause he deems fit. Section 13A empowers the Collector to correct any clerical or Page 10 of 32 HC-NIC Page 10 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT arithmetical mistakes in the award within six months. Section 14 empowers the Collector for the purpose of enquiries under the Act, to summon and enforce the attendance of witnesses, including the parties interested or any of them and to compel the production of documents by the same means and so far as may be in the same manner, as is provided in the case of a Civil Court only or of Civil Procedure Code. Section 15 requires the Collector to be guided by the provisions contained in Sections 23 and 24 of the Act in determining the amount of compensation. Having regard to the said provisions, it was contended that the powers and functions exercised by the Collector under the Act were judicial powers of a Civil Court in rendering definitive judgments and therefore a Collector making an award, determining the compensation is a Judge as defined in section 19 IPC.
14. On the other hand, the appellant contended that the Land Acquisition Officer merely makes an offer on behalf of the Government/Acquiring Authority and does not discharge any judicial functions. It was also submitted that the award made by the Collector does not bind the claimants, as they have the choice of not accepting the award and requiring the Collector to refer the matter to the Civil Court for determination of the compensation. The appellants pointed out that while Section 26 of the Act specifically provided that the award by the 'Judge' (Reference Court) shall be deemed to be a decree and the statement of the grounds of such award, a judgment, section 11 contains no such provision in regard to the awards by Collector.
15. The question whether the Collector/ Land Acquisition Officer while making an enquiry and award under the Act, acts in a judicial capacity or not, has been considered in a series of judgments. The well settled principles are :
(a) Any inquiry as to the market value of property and determination of the amount of compensation by the Collector, is administrative and not judicial in nature, even though the Collector may have power to summon and enforce the attendance of witnesses and production of documents. In making an award or making a reference or serving a notice, the Collector neither acts in judicial nor quasi judicial capacity but purely in an administrative capacity, exercising statutory powers as an agent and representative of the Government/Acquiring Authority.
(b) The award by a Collector is merely an offer of the amount mentioned as compensation, on behalf of the Government/Acquiring Authority to the persons interested. It is neither an executable decree, nor binds the owners or persons interested in the acquired property.
(c) The Collector does not function as a Judicial Officer who is required to base his decision only on the material placed in the enquiry in the presence Page 11 of 32 HC-NIC Page 11 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT of parties, but functions as a valuer who ascertains the market value on material collected from all sources, personal inspection and his own knowledge and experience.
(See the decision of the Privy Council in Ezra vs. Secretary State 1905 (32) Indian Appeals 93, the decision of the Patna High Court in Gokul Krishna Banerji vs. Secretary of State AIR 1932 Pat. 134 and the decisions of this Court in Raja Harish Chandra Raj Singh vs. The Dy. Land Acquisition Officer 1962 (1) SCR 676; M/s. Boman Behramy. State of Mysore 1974 (2) SCC 316; Mrs. Khorshed Shapoor Chenai vs. Controller of Estate Duty 1980 (2) SCC 1; Sharda Devi v. State Government of Bihar. 2003 (3) SCC 128, and Kiran Tandon v. Allahabad Development Authority 2004 (10) SCC 745).
16.Only Judges (as defined in section 19 IPC) acting judicially are entitled to the protection under Section 77 IPC. The Collector is neither a Judge as defined under Section 19 nor does he act judicially, when discharging any of the functions under the Act. Therefore he is not entitled to the protection under Section 77 IPC. The decision of the High Court that the FIR is to be quashed as the subject matter of the complaint related to the action taken by the Collector/Special Officer in his capacity as a 'Judge' is opposed to law and therefore, liable to be set aside."
12 What is discernible from the above referred decision of the Supreme Court is that only the Judges, "as defined in Section 19 IPC"
acting judicially, are entitled to the immunity under Section 77 of the IPC. The Supreme Court further held that even though the Collector may have power to summon and enforce the attendance of witnesses and production of documents, any inquiry as to the market value of property and determination of the amount of compensation would be an act administrative in nature and not judicial. The Collector neither acts in judicial nor quasijudicial capacity, but purely in an administrative capacity, exercising statutory powers as an agent and representative of the Government/Acquiring Authority.Page 12 of 32
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13 In the case in hand, I am concerned with the functions of the Deputy Collector or I may say so a competent authority under the ULC Act so far as the declaration of vacant land held in excess of the ceiling limit is concerned. I will discuss the provisions of the ULC a little later. 14 The Supreme Court took the view that the Collector is neither a Judge, as defined under Section 19 of the IPC nor does it act judicially when discharging any of the functions under the Act. 15 Taking a clue or applying the analogy from the above noted decision, I should look into whether a Deputy Collector or a competent authority discharges in all the judicial functions under the Urban Land Ceiling (Regulations) Act and could it be said that in the present case, the competent authority acted judicially so as to bring him withing the ambit of "Judge" for the purpose of Section 121 of the Evidence Act. 16 In order to fall under the category of a "Judge", even every person though not officially designated but who is empowered by law to give in any legal proceeding a definitive judgment would still be a Judge. The definition of Judge under Section 19 of the Penal Code, therefore, if analyzed, clearly envisages that, in any legal proceeding, a person who is empowered to give a definitive judgment which is final or becomes final, if confirmed by the appellate authority, would fall under this category. Page 13 of 32 HC-NIC Page 13 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT Such a person who gives such a judgment in any legal proceedings would be denoted as a Judge. The word "Judge" is also defined under Section 2 of the Judges (Protection) Act, 1985. Under the Judges (Protection) Act, 1985, "Judge" means not only every person who is officially designated as a Judge but also every person (a) who is empowered by law to give in any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in Clause
(a).
17 It can be stated at once that the meaning of the term 'judicial' varies according to the purpose for which the term has to be defined. It is clear that not only do definitions of the term 'judicial' vary between different legal contexts, but they will not infrequently vary within one individual legal context.
18 It can be broadly stated that the more closely a statutory body resembles a Court stricto sensu the more likely is it that that body will be field to act in a judicial capacity. It must not, however, be assumed that because a body closely resembles a Court each and every one of its actions will be characterised as judicial function. But where all the Page 14 of 32 HC-NIC Page 14 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT functions performed by the Courts cannot be characterised as judicial, the administrative or executive authorities may have to act quasi judicially in dealing with some matters entrusted to their jurisdiction. It is, therefore, clear that just as bodies analogous to Courts must be held to exercise nonjudicial functions, so all bodies that are not analogous to Courts may be held to exercise judicial functions. It follows that the answer to the question whether a particular body is acting in a judicial capacity when performing a particular function does not necessarily depend upon the degree in which that body's general characteristics resemble those of an ordinary Court although the degree of resemblance may be a factor influencing a decision that the function in question is judicial.
19 Attempts have been made out of a plethora of decisions, to evolve certain tests for identifying judicial functions. In this highly acrobatic part of the law, however, one can only broadly state the principal tests. It is not uncommon to find in the decision that the normal meaning of words were stretched, contorted or were made to stand upside down to suit tile purpose of the user. It must, however, be acknowledged that "the Courts have shown a remarkable dexterity in adapting their vocabulary to the requirements of particular situations." Nevertheless what leaps to the eye is that the classification of the functions as judicial of administrative has often been taken to be nothing more than a Page 15 of 32 HC-NIC Page 15 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT rationalisation of a decision. Which one carefully examines the important cases in this branch of law, it becomes obvious that nowhere is the pattern more intricate or more fascinating that in the law relating to judicial review of administrative orders. The words of Mahajan, J., as he then was, in Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621 at p. 656 : (AIR 1950 SC 222 at p. 234) in this connection are pertinent.
"In the actual application of the abstract proposition to the circumstances of different cases the exercise of jurisdiction to issue a writ of certiorari varies according to the foot of the Chancellor."
20 In this background if we analyse the various tests so far evolved, they fall under two broad categories : First is the character of the judgment and the other procedural attributes in making that decision. In this connection I may briefly refer to four principal tests now uniformly accepted. The first test that is applied for distinguishing judicial functions from the other functions is to find out whether the performance of the function terminates in the order that has conclusive effect,This characteristic is generally regarded as one of the essential features of judicial power and a body exercising powers which are of a mere advisory, deliberative or investigatory character or which do not have effect until confirmed by another body, will not normally be held to be acting in judicial capacity. It must, however, be remembered that merely because the orders made by an administrative body are given Page 16 of 32 HC-NIC Page 16 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT finality or they are exempted from judicial review, they do not thereby acquire a judicial quality if no other characteristics of judicial power are present. It follows from what has been stated above that power to make orders that are binding and conclusive is not in all cases a decisive factor.
21 The second test can be attributed to the presence or absence of certain procedural attributes. The manner in which Courts proceed is distinguished by a number of special characteristics. It may be that a body has been endowed with many of the 'trappings of a Court' but it is not always sufficient to establish conclusively that such a body has been invested with judicial power. Presence of such trappings may however support that conclusion. Several matters connected with these procedural tests of a judicial function can be mentioned. Firstly a body that hears evidence in a dispute between parties will not normally be held to be acting in a judicial capacity, unless it has power to give a binding decision. Secondly, in administrative law many of the issues that arise between contending parties are different in character from those typically determined by Courts. And, thirdly, the rules of natural justice must be observed by a body that acts in a judicial capacity. 22 The third test is mostly based on the characteristic of the final decision. An authority acts in a judicial capacity when after investigation Page 17 of 32 HC-NIC Page 17 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT and deliberation, it determines an issue conclusively by the application of the preexisting legal rule, or any fixed rule and applies objective standards to the facts of a given situation.
23 The fourth and the last test looks primarily to the characteristics of the final decision. An authority acts in a judicial capacity when after investigation and deliberation it performs an act or makes a decision that is binding and conclusive and imposes obligations upon and affects the rights of individuals. To be classified as judicial an act or decision had to affect the rights of the individuals. The term 'rights' is normally given a broad interpretation. The rights affected might appertain to personal liberty or status or they might be of a proprietary or fiscal or contractual nature. The rights referred to above are legal rights. They would not obviously include mere honours or precedents claimed or recognised as a matter of courtesy or usage. This list is by no means exhaustive. The term 'rights' is to be understood in a very broad sense. In this connection it must be borne in mind that if the statutory authority has power to do any act which will prejudicially affect the subject, then although there are two parties apart from the authority purporting 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. (See Board of High School and Intermediate Education U.P. Allahabad v. Ghanshyam Das, AIR 1962 SC 1110.) Page 18 of 32 HC-NIC Page 18 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT 24 After having formulated the basic principles which distinguish judicial functions from those of the administrative or executive, it is necessary to bear in mind the distinction between quasijudicial proceeding and that of a judicial proceeding. A quasijudicial proceeding has to be distinguished on the one hand from a judicial proceeding, and on the other, from an administrative and ministerial proceeding. I have already stated the essential characteristics of judicial function. The real distinction between a Tribunal and a Court cannot also be lost sight of. It is not necessary for my purpose to point out in this case thatdistinction. The distinction between judicial and quasijudicial functions has been expressed by Lopes L.J. in Royal Aquarium and Summer and. Winter Garden Society v. Parkinson, (1892) 1 QB 431 at p. 452 :
"The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind...... that is a mind to determine what is fair and just in respect of the matters, under consideration. Justices, for instance, act judicially when administering the law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them as, for instance, levying a rate."
Dealing with the distinction between a quasijudicial order and an administrative or ministerial order May, C.J. in Reg. (John M'Evoy) v. Dublin Corporation, (1878) 2 LR Ir 371 at p. 376 observe as follows :
"It has been contended in this case that no certiorari can issue to remove the borough rate, and this point must be first considered. It is established Page 19 of 32 HC-NIC Page 19 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT that the writ of certiorari, does not He to remove an order merely ministerial such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others. And if there be a body empowered by law to inquire into facts, makes times to impose a rate on a district, it would seem to me that the acts of such a body involving such consequences would be judicial acts."
This definition of May, C.J., was approved by Lord Atkinson in Frome United Breweries Co. v. Bath Justices, 1926 AC 586 at p. 602 as one of the best definitions of judicial act as distinguished from an administrative act, which in turn was followed in several other cases. It will be seen that what May, C.J., emphasises is that in order to constitute an order as a quasijudicial order the determination must affect the rights and liabilities of subjects, which is arrived at after consideration of facts and circumstances by a competent authority although such authority may not be a Court in the regular sense of the term, I have already pointed out that these elements however do not conclusively point to a quasijudicial decision as distinguished from an administrative decision. Although the features mentioned by May, C.J., and followed in several other cases are essential characteristics of a quasijudicial decision they do not constitute the exclusive features of a quasijudicial decision inasmuch as an administrative decision also very often possesses these characteristics. Following (1924) I KB 171 to which reference has already been made by me above Scrutton LJ in King v. Page 20 of 32 HC-NIC Page 20 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT London County Council, (1931) 2 KB 215 at p. 233 observed as follows :
"It is not necessary that the Tribunal should be a Court in the sense in which this Court is a Court : 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; and it is not necessary to be strictly a Court. If it is a Tribunal which has to decide rights after hearing evidence and opposition, it is subject to the writ of certiorari ."
In the same case Slesser, L.J., analysed the conditions laid down by Atkin, L.J., and approved "the same. It will thus be observed that Atkin, C.J., mentions not only the features of a determination by a competent authority affecting the rights and liabilities of a subject, but also 'the duty to act judicially'. Under the analysis of Slesser, L.J. also of the conditions as laid down by Atkin, L.J. 'the duty to act judicially' is one of these conditions. Scrutton, L.J. must be taken to have approved of the same line of approach. What is the distinction between a judicial power and power in the exercise of which there is a duty to act judicially ? In this connection it is profitable to refer to a decision in Rola Co., (Australia) Pty. Ltd. v. The Commonwealth, 69 CLR 185 Rich, J., said at page 203 :
"......it is important to remember that judicial power, and power in the exercise of which there as a duty to act judicially, are two different things. The former is a special case of the latter. If a person is invested with power, not to create new legal rights or to impose new legal duties or liabilities, but to determine, as between disputants, whether one of them possesses, as against the other, sortie already existing legal right to which he claims to be entitled, or is subject to some already existing legal liability to the other which the other is claiming against him, then, not only when exercising the power, is he required, amongst other things, to act judicially, but the power itself is judicial power. On the other hand, if he has no authority to determine the already existing legal rights or liabilities of persons, but is empowered to impose on them new legal duties or Page 21 of 32 HC-NIC Page 21 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT liabilities from which they were previously free, or to alter or abrogate legal rights to which they were previously entitled, his power is not judicial, although in exercising it he may be, and commonly is, subject to a legal duty to act judicially............"
25 I must also see what exactly is meant by "the duty to act judicially". The difference between judicial power and the power In the exercise of which there is a duty to act judicially has been discussed in a number of cases amongst others, Errington v. Minister of Health, (1935) 1 KB 249 and Robins and Son Ltd. v. Minister of Health, (1939) 1 KB 520 at p. 533 and 1950 SCR 621 : (AIR 1950 SC 222). Till recently an idea was prevalent that this duty was to be defined exclusively in procedural terms. A body was under a duty to act judicially only if it was bound by express statute to decide on evidence between a proposal and an opposition. In 1950 SCR 621 : (AIR 1950 SC 232) the Supreme Court had laid down that a decision may be quasijudicial only if the obligation to act judicially is laid down in the statute which has established the authority whose decision is in question. It is when the law under which the authority is making a decision itself required a 'judicial approach', that the decision will be quasijudicial. To the same effect is the decision in AIR 1962 SC 1110.
26 In Anglo American Direct Tea Trading Co. Ltd. v. Their Workmen, AIR 1963 SC 874, Gajendragadkar, J., who spoke for the Bench, however, observed :
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HC-NIC Page 22 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT "The question whether an act is a judicial or a quasijudicial one, or a purely executive act depends on the terms of the particular statute and on the nature, scope and effect of the particular powers in exercise of which they may be done. Where an authority is required to act judicially either by the express provision of the statute under which it acts or by necessary implication of the said statute, the decision of such an authority generally amounts to quasijudicial decision. Where however the executive or administrative bodies are not required to act judicially and are competent to deal with the issues referred to them administratively, their conclusions cannot be treated as quasijudicial conclusions."
To the same effect is the decision in Radeshyam v. State of M.P., AIR 1959 SC 107 at p. 134, where Subba Rao, J., observed :
"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."
27 In Nakkuda Ali v. M.F. de S. Jayaratne, 1951 AC 66 at p. 75 the Judicial Committee of the Privy Council laid down that the only relevant criterion was the nature of the process by which the decision was to be reached. "When it is a judicial process or a process analogous to the judicial, certiorari can be granted" observed their Lordships. Any view that judicial duties arose only when explicit provision had been made for an authority to determine an issue resembling a its inter partes cannot be said to be wholly true. Duty to act judicially may thus arise by implication from the effect of the exercise of a power upon the rights of individuals, despite the absence of any express duty to follow a Page 23 of 32 HC-NIC Page 23 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT procedure analogous to the judicial. Cases also are not wanting where certiorari was issued to quash orders made in excess of authority despite the fact that the body concerned was under no express or implied duty to afford a hearing to the contending parties. It is thus clear that the duty to act judicially may exist in situations other than those in which there is express statutory provision for the determination of an issue analogous to a lis inter partes. In this connection it is profitable to refer to R. v. Manchester Legal Aid Committee, Ex Parte R.A. Brand and Co. Ltd., (1952) 2 QB 413 at pp. 428 and 429. It was observed 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." Their Lordships went on to observe that the Legal Aid Committee must act "judicially not judiciously". If on the other hand, an administrative body in arriving at its decision had at no stage any form of lis before it, and throughout had to consider the question from this point of view of policy and expediency, it could not be said that it was at any stage under a duty to act judicially.
28 What follows from this discussion is that a Court can partition the functions of the quasijudicial authority into separate compartments and hold that it is under a duty to act judicially only at a certain stage of its functions and even in such a case writ will issue to quash an order if the decision is in excess of jurisdiction committed at a nonjudicial phase of Page 24 of 32 HC-NIC Page 24 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT its functions. It acts judicially if it determines questions in relation to the rights of individuals or its decision affects the interests of individuals and in which a 'policy' element is absent or is relatively small. This is more so in cases where an express or implied duty is cast to hear the parties likely to be affected by its orders.
29 In Board of High School v. Ghanshyam Das Gupta, AIR 1962 SC 1110 the learned Judges quoted with approval the following observations of Parker, J. in (1952) 2 QB 413 :
"The statute is not likely to provide in so many words that the authority passing the order is required to act judicially : that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively."
And Subba Rao, J. as he then was, speaking for the Supreme Court in Dwarka Nath v. I. T. Officer. AIR 1966 SC 81 observed.
"Briefly stated the law on the subject is : A statute may enjoin on an administrative authority to act administratively or judicially. If it expressly imposes a duty on the administrative body to act judicially it is clearly a case of a judicial act. But the Act may not expressly confer a duty to act judicially but this duty 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, of Page 25 of 32 HC-NIC Page 25 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT the duty imposed on the authority and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances and a hard and fast rule or an inflexible rule of guidance, is neither possible nor advisable to be laid down."
30 It is in the aforesaid background of somewhat detailed discussions, I have to consider whether the Deputy Collector or the competent authority under the ULC Act while exercising the powers vested in him under Sections, 8, 9 and 10 is under a duty to act judicially. It is now clear that 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 relevant statute with the assistance of general principles discussed above.
31 The ULC Act does not lay down that the inquiry as regards the land in excess of the ceiling limit shall be deemed to be a judicial proceeding and the officer shall have all the powers which are vested in Court under the Code of Civil Procedure for trying the suit and also that the said inquiry is deemed to be a judicial proceeding within the meaning of Sections 193 and 228 for the purpose of Section 196 of the Penal Code. Of course, it is true that some of the provisions of the Civil Procedure Code are made applicable, but not all.
32 The Ceiling Act contains elaborate procedure for determination of Page 26 of 32 HC-NIC Page 26 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT the vacant land in excess of the ceiling limit through quasi judicial process. The owner of the land is required to file a statement under Section 6 on the basis of which the competent authority prepares a draft statement as regards the area in the hands of the land owners in excess of the ceiling limit, which is to be served upon the person concerned, who has been vested with a right under Section 8 of the Ceiling Act to file objection against the draft statement. The competent authority after giving a reasonable opportunity of hearing to the objector is required to decide the objections. After the disposal of the objection a final statement is prepared by the competent authority under Section 9 and again such statement is required to be served on the landholders, who is vested with a further right to file objection. After service of the statement on the landholders under Section 9, the competent authority has to take action under Section 10 of the Ceiling Act. Subsection (1) to (3) of Section 10 of the Ceiling Act, which are relevant, are quoted below :
"10. Acquisition of vacant land in excess of ceiling limit. (1) As soon as may be after the service of the statement under Section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that
(i)such vacant land is to be acquired by the concerned State Government;
and
(ii)the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.
Page 27 of 32 HC-NIC Page 27 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT (2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under subsection (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit. (3) At any time after the publication of the notification under subsection (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under subsection (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State government free from all encumbrances with effect from the date so specified.
(4) ..................
(5) .................
(6) ................."
33 I may only say having regard to the scheme of the Act which contemplates issuance of notices and hearing of objections of the persons furnishing the statements and all other interested persons that the Deputy Collector (competent authority), in the present case, who is sought to be examined as one of the prosecutions witnesses discharged quasijudicial functions in making an inquiry into the details of the land held by the accused persons furnishing the statements under Section 6(1) of the Act. The scheme of Act and particularly, Sections 8 and 9 of the Act and rules framed thereunder would show that the procedure to be adopted by the competent authority is to be reasonable and fair. The scheme of the Act ensures an elaborate hearing by the competent authority in adjudication of the statements filed by the persons holding Page 28 of 32 HC-NIC Page 28 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT the vacant land.
34 Even while taking the view that the competent authority discharged quasijudicial functions as a judicial authority under the ULC Act, can he be termed as "Judge" within the meaning of Section 19 of the IPC for the purpose of Section 121 of the Evidence Act. In my humble view, the answer has to be in the negative. If the answer is in the negative, then Section 121 will have no application. 35 Let me for the time being assume that the Deputy Collector would fall within the ambit of a "Judge" as he passed an order in a legal proceeding discharging a quasijudicial function, I should reject this application outright holding that the accused persons in a trial have no right to invoke Section 121 of the Evidence Act and oppose the examination of a Judge or a Magistrate. The privilege contemplated by Section 121 of the Evidence Act is a privilege of the witnesses, i.e., of the Judge or the Magistrate who is sought to be examined. If he waives the privilege, or he does not object to answer the question, it does not lie in the mouth of any other person including the accused persons to assert the privilege. At the same time, a Judge or a Magistrate cannot be claimed of any privilege, if he has accepted the order of the Court, to which, he is subordinate to testify. Thus, I am of the view that the application filed by the applicants herein as accused persons, opposing Page 29 of 32 HC-NIC Page 29 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT the examination of the Deputy Collector, as one of the prosecution witnesses, was wholly misconceived and not maintainable. 36 In the case of Union of India (supra), the issue before the Supreme Court was whether the Arbitrator, who had passed an award, could be summoned for questioning as to how he arrived at the conclusion. The Supreme Court held as under:
"[1] We live and learn from counsel's arguments each day and in this case we were asked to unlearn. Counsel for the appellant has objected, in this appeal to the examination, as a witness, of an arbitrator who has given his award on a dispute between the appellant and the 1st respondent. His contention is that, on broad principle and public policy, it is highly obnoxious to summon an arbitrator or other adjudicating body to give evidence in vindication of his award. This is a wholesome principle as is evident from S. 121 of the Indian Evidence Act. That provision states that the Judge or Magistrate shall, except upon the special order of some court to which he is subordinate be compelled to answer any questions as to his own conduct in court as such Judge or Magistrate or as to anything which came to his knowledge in court as such Judge or Magistrate, but he may be examined as to other matters which occurred in his presence whilst he was so acting. Of course, this section does not apply proprio vigore to the situation present here. But it is certainly proper for the court to bear in mind the reason behind this rule when invited to issue summons to an arbitrator. Indeed, it will be very embarrassing and, in many cases, objectionable if every quasijudicial authority or tribunal were put to the necessity of getting into the witness box and testify as to what weighed in his mind in reaching his verdict. We agree with the observations of Walsh, A.C. J. in Khub Lal v. Bishambhar Sahai (AIR 1925 All 103) where the learned Judge has pointed out that the slightest attempt to get to the materials of his decision, to get back to his mind and to examine him as to why and how he arrived at a particular decision should be immediately and ruthlessly excluded as undesirable.
[2] In this case a list of witnesses was furnished by the 1st respondent and the Registrar of the High Court in the routine course, granted summons, perhaps not adverting as to why the arbitrator himself was being summoned. That it was more or less mechanical is evident from the fact that the reason given for citing the arbitrator is the omnibus purpose of proving the case of the party not the specific ground to be made out. We Page 30 of 32 HC-NIC Page 30 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT should expect application of the mind of the Registrar to the particular facts to be established by a witness before the coercive process of the court is used. It is seen that the learned Judge before whom objection was taken under S. 151, C. P. C. to the summons to the arbitrator dismissed the petition on the score that he saw no ground to refuse to summon the arbitrator as a witness. The approach should have been the other way round. When an arbitrator has given an award, if grounds justifying his being called as a witness are affirmatively made out, the court may exercise its power, otherwise not. It is not right that everyone who is included in the witness list is automatically summoned; but the true rule is that, if grounds are made out for summoning a witness he will be called:
not if the demand is belated, vexatious or frivolous. Thus the court also has not approached the question from the proper perspective. If arbitrators are summoned mindlessly whenever applications for setting aside the award are enquired into, there will be few to undertake the job. The same principle holds good even if the prayer is for modification or for remission of the award. The short point is that the court must realise that its process should be used sparingly and after careful deliberation, if the arbitrator should be brought into the witness box. In no case can he be summoned merely to show how he arrived at the conclusions he did.In the present case, we have been told that the arbitrator had gone wrong in his calculation and this had to be extracted from his mouth by being examined or crossexamined. We do not think that every Munsif and every Judge, every Commissioner and every arbitrator has to undergo a cross examination before his judgment or award can be upheld by the appellate court. How vicious such an approach would be is apparent on the slightest reflection.
[3] Of course, if a party has a case of mala fides and makes out prima facie that it is not a frivolous charge or has other reasonably relevant matters to be brought out the court may, in given circumstances, exercise its power to summon even an arbitrator, because nobody is beyond the reach of truth or trial by court.In the present case, after having heard counsel on both sides, we are not satisfied that on the present material there is justification for the examination of the arbitrator. We therefore set aside the order.
[4] However, we make it clear that if the court is convinced, after hearing the respondent on a fresh application stating why he wants to examine the arbitrator, it is still open to it to issue the necessary process. Such a step must be a deliberate step and not a routine summons. With these observations we allow the appeal. There will be no order as to costs."
37 Applying the principle of law explained in the aforenoted decision of the Supreme Court, I may only say that even if the Deputy Collector is Page 31 of 32 HC-NIC Page 31 of 32 Created On Sat Oct 31 02:44:43 IST 2015 R/SCR.A/5809/2015 CAV JUDGMENT examined as one of the prosecution witnesses, he may be asked what was passed before him and what matters were presented to him for consideration, but not what passed in his own mind when exercising his power as to the matters submitted to him. He cannot be asked the ground of his order Exhibit: 121 or what were his intentions when passing the order.
38 Again, at the cost of repetition, I state that it would be for the Deputy Collector to exercise the privilege contemplated by Section 121 of the Evidence Act. If he decides to waive such privilege or he does not object to answer the question, the accused persons cannot assert the privilege on his behalf. Besides the same, even if he decides to claim the privilege, but if specifically ordered by the trial Court, then he would be obliged to answer the question.
38 I am not fully convinced with the line of reasoning adopted by the Courts below, but I am of the view that the ultimate decision reached by the Courts below is correct and I do not propose to disturb the same. 39 In view of the above, this application is disposed of with the necessary clarifications as regards the proposition of law.
(J.B.PARDIWALA, J.) chandresh Page 32 of 32 HC-NIC Page 32 of 32 Created On Sat Oct 31 02:44:43 IST 2015