Certiorari Writ

CHAPTER IV
CERTIORARI IN INDIA
1. Hletory
Certiorari, with the other prerogative writs, was first intro-
duced into India by the charter of 1774 creating the Supreme Court in
Calcutta. Territorial jurisdiction was restricted to the town of
Calcutta by the Act of 1781, except as regards European British
subjects. The charter of 1800 in Madras and 1823 in Bombay
empowered the Supreme Ciourts in those cities to issue the writ. When
the Supreme Gourts were amalgamed with the Sadar Adalats, the
Indian High Courts Act, 1861, confined the territorial jurisdiction of
the Presidency Towns High Courts in relation to the issue of writs to
the Presidency Towns.1 Moreover the writ could not be issued against
Government.° In 1871 the writ was issued in Bombay to remove pro-
ceedings instituted in the Small Cause Court for Trial in the High
Court, ° but
" though the power to issue the writ existed in India for more
than a century, the development of the law has taken place only
in recent years ... even in i 949 there were no rules in the
Madras High Court regulating the procedure regarding applica-
’ tions for the writ of certiorari” *
When the Indian Constitution came into force in 1950 the juris-
diction of the High Courts was enlarged. Article 226 ,empowers a High
Court to issue the writ to a person within the territory over which it
exercises jurisdiction, not necessarily original, including any Govern-
ment. The writ may be issued to protect a fu ndamental right (a new
jurisdiction) and “ for any other purpose ”, which, in practice implies
the kind of situation in which the writ might have issued before the
Constitution. The Supreme Court’s jurisdiction under Art. 32 terri-
torially extends throughout the whole territory of Tndia, but it may
issue a writ of certiorari only for the purpose of protecting a Funda-
mental Right.
2. Nature of the wrlt
" The ancient writ of rrr/(orari in England is an original writ
which may issue out of a superior court requiring that the record
l. Ryofs of Garabandho v. fiamindar of Parlakimedi, A.T.R. 1943 P.C. 164 :
Hamid Hassan v. Banwari(al Roy, A.I.R. 1947 P.C. 90.
2• Thyagarajo Ghettiar v. Secretary to Goa»inm»nt of Madras, A.I.R. 1939
head. 940 PttlHgonda Venkafaralnam v• Sicrelars af Scan, A.I.R. 1930
;
Mad. 896.
3. Pirbhai v. The Baioda and C.I.Rly. for (1871) 8 Born. H.C.R. 59.
4. A.T. Markose, Judi‹:ial Control of Adminisvatiae Action in India, p. 192.
60 JUD ICIA L REVIEW THROUGH WRIT PETITIONS
of the proceedings in some cause or matter pending before an

inferior court should be transmitted into the superior court to be
dealt with. The writ is so named because, in its original Latin
form it required that the King should be certified ’ of the pro-
ceedings to be investigated, and the object is to secure by the
exercise of the authority of a superior court that the jurisdiction
of the inferior tribunal should be properly exercised. This writ
does not issue to correct purely executive acts, but, on the other
hand its application is not strictly limited to inferior courts in the
strictest sense. Broadly speaking it may be said that if the act
done by the inferior body is a judicial act as distinguished from
being a ministerial act, certiorari will lie ”. 5
In England it has been laid down that wherever any body of
person, having legal authority to determine questions affecting rights of
subjects and having the duty to act judicially, act in excess of legal authority,
certiorari may issue.° This has been cited with approval by the Supreme
Court.'
These decisions preceded the revival in England in 1952 of the use
of certiorari to correct error of law apparent on the face of the re cor d , 8 £tf l d
I Il d i £t Il C o ll r tS a t fi r s t Sh ow e d r e 1t1C tance to HS E cert iora ri for such
purposes, ° but in 1954 the Supreme Court set the seal of its approval on this
extension to the scope of the writ.10
3. Judlclal and quael-judlclal proceedlnge

" When the executive has to form an opinion about an objective
matter as a preliminary step to the exercise of a certain power
conferred upon it, the determination of the objective fact and the
exercise of the power based thereon are of an administrative
character and are not amenable to the writ of certiorari. When
the law under which the authority is making a decision, itself
requires a judicial approach the decision will be quasi-judicial.
Prescribed forms of procedure are not necessary, provided that in
coming to the decision the well-recognized principles of approach
are required to be followed ”."
5. Ryols of Garabandho v. famindar, A.I.R. 1943 P. C. 164.

6. Per Atkin L.J. in R. v. Electricity Commissioners, [1924] 1 K.B. 171.
7. Prouin« of Bombay v. Hhuslialdas, A.I.R. 1950 S.C. 222.
8. R. v. Northumberland .4ppeal tribunal, [1952) 1 All E.R. 122.
9. See, e.g., Shen Kumar v. V. G. Oak, A.I.R. 1953 All. 633.
10. T. C!. Basappa v. T. Nagappa, A.I.R. 1954 S.C. 440.
11. Province of Dombay v. Khushaldas A.I.R. 1950 S.G. 222.
CERTIORARIININDIA 61
But there is still no satisfactory formula whereby an authority
under a duty to act judicially or quasi-judicially, and therefore
amenable to certiorari can be distinguished from a body exercising
ministerial or administrative functions. It has recently been said that
the question must be determined by the circumstances of each case,
having regard to the statutory provisions under which the action is
taken.'°
When there is a lii, when the authority has to weigh a question
from two sides and decide, '° it is easy to say there is a duty to act
judicially. Where the authority makes a proposal and is empowered
to hear and decide an objection to it, it has been held that there is a
duty to act judicially if the proposal is calculated to affect {he rights of
subjects or impose duties on them, and the statute calls for a judicial
approach."
Wage Boards investigate relevant conditions in an industry,
and consult the interests affected ; they reach decisions on disputes
relating to *he number of employees, rationalisation, wages, hours of
work and leave. It has been a matter of controversy whether they
exercise administrative, legislative or judicial functions. Iñ the United
Kingdom their functions seem generally to be regarded as legislative.
But the Indian Supreme Court has cited with approval from an
opinion of Holmes, J :
“ A judicial enquiry investigates, declares and enforces liabilities
as {hey stand on present and past facts and under laws supposed
to exist ... Legislation, on the other hand, lookf to the future
and changes existing conditions by making a new rule ”.' 5
In the U.S.A. the difficulty is solved by assigning the tribunal to the
category indicated by its predominant functions. Bhagw ati, J while
recognising that wage boards do not exercise purely judicial functions,
and that they are administrative bodies, inasmuch as they determined
issues between a proposition and an opposition, on data and materials
collected in answers to questionnaires and on evidence led before
them, holds that they perform quasi-judicial functions and are under a
duty to act judicially.'°
An amendment to the Motor Vehicles Act, 1939, provided for the
progressive nationalisation of the public motor transport ; a scheme to
12. Nagendranath Bora v. C!ainmissioner A.I.R. 1958 S.C. 398.

13. Province of Bombay v. Khushaldas, A.I.R. 1950 S.C. 222 at 259.
14. Prauince af Bombay v. Hhushaldas, A.I.R. 1950 S.C. at 259.
15. Prentis v. Atlantic Caast Line Co. Ltd., (1908) 211 U.S. 210 at 226.
16. Ecpress Newspapers a. Union, A.I.R. 1958 S.C. 578.
62 JUDICIAL REVIRW TEROUOH WRIT PETITIONS
inaugurate State enterprise over a particular area was published and

objections invited ; these were heard by the Secretary to Government
in the Department concerned. Though it was contended on behalf of
the State Government that Government *was discharging an adminis-
trative duty in approving the scheme in the public interest, it was held
that the State Transport Undertaking threatened to infringe the rights
of the citizen, who could object to the scheme on public or personal
grounds. That there was a lis between the Undertaking and the
citizen, with the State Government as arbiter was clear from the
statutory provisions requiring the State Government to decide in
accordance with the procedure prescribed."
If a statutory body has only to consider questions of policy and
expediency, and at no stage has before it does any form of lis arise,
there is no duty to act judicially ; the position is otherwise if, though
the decision is founded wholly or partially on questions of policy or
expediency, the authority is obliged to consider proposals and objections,
and to take evidence.' ®
Almost every executive decision is on facts and affects rights of
citizens, but it does not follow that such a decision is quasi-judicial ;
the question must be decided on the words of the relevant statute.
Where the statute empowered the State Government to supersede
temporarily a municipality and vest its powers in an executive officer if
the municipality was not competent to perform its duties and if the
State Government considered that an improvement in administration
would result, the Supreme Court held that the second condition was a
matter for subjective determination by Government but the former
was a question of objective fact. But another provision of the Act
dealing with permanent supersession forbade such an order to be passed
until the municipality had been given the opportunity to rurnish an
explanation. What the former provision contemplated was swift
action, so that insistence on a judicial enquiry would frustrate the
purpose of the provision relating to temporary supersession.'"
I f an authority is empowered to act “ if it is of opinion. ” 0 or
if it “ considers......likely to be secured ”,°' or if it has “ reasonable
grounds to believe ”,°° or " if it appears to ” the authority,°° the
17. Gullapolli v. A.P. State Rood Transport Gtrpn., A.I.R. 1959 S.C. 308.
18. Radhishyam v. State of M. P., A.I.R. 1959 S.G. 107.
19. Ibid.
20. H.D. Go. v. H.N. Singh, A.I.R. 1956 S.C. 446.
21. Radlushyam v. Siote of M.P., A.I.R. 1959 S.C. 107.
22. Y. D. On. v. X. N. Singh, A.I.R. 1956 S.C. 446.
23. A4tfiséei v. ñfwiiri§of C*ef$orefien, (1958] B.L.R. 515,
C ERTIORARI IN INDIA 63
ascertainment of thee jurisdictional fact is by subjective process, and
there is no duty to act judicially or quasi-judicially. Even statutory
provisions for appeal° 4 or which make the original order subject to
con firmation by another authority° 5 will not affect the exclusion of the
duty to act judicially resulting from such words as those set out above.
In Radheshyam’s case 25& J ustice S. K. Das observed : “ It is indeed
generally correct to say that where an administrative body or authority
is under a duty to act judicially, its function is judicial or quasi-
judicial. But it is to some extent a tautology to say that the function
is judicial or quasi-judicial if it is to be done judicially ”. His Lord-
ship then lays down tests to arrive at the content of the expression
" duty to act judicially ”. °’b
In Shivji Nathubai's case,°’* the Supreme Court has declared as
settled law the opinion of S. R. Das, J. (as he then was), in Kushaldoss
S. Advant’s case.°5° The opinion was as hereunder :
“ (i) That if a statute empower 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 /ii 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, and
(ii) that if a statutory authority has power to do any act which
will prejudicially affect the subject, then although there are not two
24. Hanuman Bar v. S.D.0., Srinagar, A.I.R. 1952 Assam 115.

25. Bharot BoM v. Employers A.I.R. 1950 S.C. 188.
25a. Radhishyam v. Stake of M.P., A.I.R. 1959 S.C. 107 at 120.
25b. Ibid. at pp. 120-121. The five tests laid are :
(i) Whether there is a lis inter partes;
(ii) Whether there is a claim (or proposition) and an opposition ;
(iii) Whether the decision is to be founded on the taking of evidence or on
a&davits ;
(iv) Whether the decision is actuated in the whole or in part by questioñi
of policy or expediency and if so, whether in arriving at the decision,
the statutory body has to consider proposals and objections and evid-
ence J
(v) Whether in arriving at its decision, the statutory body has only to
consider policy and expediency and at no stage has before it any form
of tie.
25c. Shiaji Nothubai v. Uniaii of India, A.I.R. 1960 S.C. 606.
25d. Province af Bomboy v. Hushold«ss S. Advant, [1950] S.C•R. 620 at 725.
64 JUDICIAL REVIEW THROU EH WRIT PBTITI ONS
parties apart from the authority and the contest is between the
authority proposing to do the act and the subject opposing it, the final
determination of the authority will yet be a quasi-judicial act provided
the authority is required by the statute to act judicially ”.
The following have been held to be quasi-judicial orders subject
to correction by certiorari :
1. Orders under sec. l5 of the Payment of Wages Act."6
2. Orders of a Regional Transport Authority and a State
Transport Authority when issuing or cancelling permits°' or when
imposing conditions ;"® orders of the appellate authority under the
Motor Vehicles Act, 1939,"" and of the State Government when
exercising its revisional powers under sec. 63-A of the Act.30
3. Orders of Authorities confiscating smuggled goods, or imposing
penalties under secs. 182-184 of the Sea Customs Act.°1
4. Orders of a State Government disqualifying a proprietor
under the U. P. Court of Wards Act ;°* Orders of Courts of Wards
directing an enquiry into a proprietor’s circumstances, and assuming
superintendence of a proprietor’s estate under secs. 8-16 of the Act .°3
5. Orders of a State Government suspending a President of a
Municipality,°' and dismissing a panchayat under sec. 20 of the
Madhya Bharat Panchayat Act, 1949.°5
6. Orders of a Board of Revenue °6
7. Orders of a Sales Tax Officer on the question whether a
prospective assessee was a dealer or an intermediary ; 3' orders of an
26. A.V.D’Costa v. Patil, A.I.R. 1955 S.C. 412.
27. Boburam v. State, A.I.R. 1953 All. 641 ; Oosman Ismail v. Tra0ancore-Cochin
Stat•, A.I.R. 1952 T.C. 74.
28. Vedachalo v. State, A.I.R. 1952 Mad. 270 ; Dholapur Co-operative Union v.
Appellate Authority, A.I.R. iuse naj. 194. See also Veeroppa Pillai v. Raman
(1952] S.C.R. 583 and Raman v. Madras, A.I.R. 1956 S.C. 464.
29. N.P.T. and Go. v. N.S.T. and Go. [1957] S.C.R. g.
30. Veeroppa v. Raman› A.I.R. 1952 S.C. 192.
31. Sempujanrai v. Collector, A.I.R. 1958 S.C. 845 ; to ftoJ v. Superintendent,
A.I.R. 1958 S. C. 119 ; Collector v. Lalagopi Krissen, A.I.R. 1955
Mad. 167.
32. Aaodkesh v. State of U. P., A.I.R. 1952 All. 63.
33. Ravi Pratap v. State of U. P., A.I.R. l9fi3 AH. 99. But see Raja Hormahendro
si•zh v. $tote •,f #unjaé, A.I.R. 1953 Punjab 30 ; A1°J < wnar v. Serfs
A.I.R. 1957 Orissa 150.
34. J*S1•’ t Singh v. State of Hydirabad, A.I.R. 1954 Hyd. 28.
35. Purshottain Singh v. Horain Singh, A.I.R. 1955 Ttaj. 203.
36. Setbwaja Goundir v. Bd. o/ ftirinuc, A.I.R. 1953 Mad. 972.
37. CI. P. Coal trading if Distributor to. v. Commissioner of Sales Tax, A.I.R.
!954 Nag. log ; and see Bengal limnunity C’o. case, A.I.R. 1955 S.C. 661,
CERTIORARI IN INDIA 65
Income-tax Officer directing an assessee to produce his account

books.°®
8. Orders of the Controlling Authority under the Rent Control
legislation ;° orders of the Rent Control appellate authority.4°
9. Orders of officials acting under statutory orders made under
the Essential Supplies Act, c.g., order refusing to renew a license
under the Yarn Dealers Control Order."
10. Orders of authorities under the Administration of Evacuee
Property Act.' S
11. Orders of a Municipal Sub-committee on objections to
valuations of holdings and assessments ;' 3 orders of the appellate
authority on objections to assessments ;4 ' orders of a municipal com-
mittee imposing a tax ;'^ orders of a municipal authority granting or
refusing a license to carry on a business.4°
12. Order of a tribunal constituted under the Hyderabad Public
Servants Tribunal of Enquiry Act ;47 o1'de rs passed in a departmeTl t £tl
enquiry under sec. 7 of the Police Act.'^
13. Ordef's of the Chancellor under the Allahabad University
Act on a dispute as to whether a person has been duly elected or
appointed to a University body or authority ;'" orders of the Executive
Committee of a University cancelling a decree conferred on a success-
ful candidate ;5° or de r S Of it U l1iv er sit y t uth Ority, ca22ce lliTl g t he
examination of a candidate for misconduct. 5'
38. Madan Gapal v. Union, A.I.R. 1951 Raj. 94.
39. Laxman Rao v. Addl. Dy. Gommr., A.I.R. 1955 Nag. 158 ; Hurshid v. Rent
Clontroller, I.L.R. [1946) Born. 940 ; Ghondrobhan v. Rent Gontrol And Eoic•
tion OQ ir, A.I.R. 1954 All. 6.
Indra v. Gangooly, (1950) 87 C.L.]. 130 ; Krishnasiuainy v. Mohanlal, I.L.R.
[1949) Mad. 657.
41. If . Roman O Co. v. State of Madras, A.I.R. 1953 Mad. 84.
42. Abdul Majid v. P.R. NayaL, A.I.R. 1951 Bonn. 440 ; Sardara Singh v. Husto-
dion, A.I.R. 1952 Pepsu 12 ; ff artar Singh v. Custodian, A.I.R. 1952
Pepsu 82. ; Pardwnan Singh v. State of Punjab, A.I.R. 1958 Punj. 63.
43. Ghunilal v. Palashbari down i oint illei , A.I.R. 1953 Assam 132.
44. Ra N«r«in v. St«t f U. P, A.I.R. 1957 S.C. 18.
45. Manak Ghand v. Municipal Clounci!, A.I.R. 1951 Raj. 139.
46. Balar•inan v. Madras Corporation, A.I.R. 1952 Mad. 778.
47. Jo3jif Singh v. State of Hyderabad, A.I.R. 1954 Hyd. 28.
48. Sial« • f C’.P. v. Nuuh, A.I.R. 1958 S.C. 86.
49. Ishwari Prasad v. Registrar, A.I.R. 19â5 All. 131.
50. Lakshmi Faroyan v. G.B. Makojon, A.I.R. 1955 All. 534.
5T. Dipa Pal v. Unkersily of Galcutto, A.I.R. 1952 Gal. 594.
66 y UDICIAL REVIEW THRO UG H WRIT PETITIO NS
14. Orders of the Board of Censors under the Cinematograph

Act, 1918.^°
IS. Orders of the Registrar under the U. P. medical Act striking
a medical practitioner off the Register.53
16. Orders of the State Government reviewing proceedings of
subordinate officials under the Madras Co-operative Societies Act.5*
17. Orders of the State Government reviewing a scheme under
the East Punjab Holdings (Consolidation and Prevention of Frag-
mentation) Act, 1948. The statute provided that for the purpose of
satisfying itself as to the legality or propriety of any order passed by
any officer under the Act, Government could call for and examine any
record and pass such order as it thought fit. The court remarked that
identical language had been used in other statutes to grant powers
which, it had been held, must be exercised judicially.°’
18. Orders of a Collector under the U.P. Zamindari Abolition
Rules exercising his option to remove an encroachment and repair
damage or to file a civil suit.°6
19. Orders of a Gram Panchayat under the Punjab Gram
Panchayats Act to an occupier to put his property in a state of proper
sanitation or repair within a prescribed period after which, in default,
the Panchayat would execute the work and recover the cost."
20. An order of an Assistant Agent under the Agency Tracts
Interest and Land Transfer Act evicting a person in possession of land
under a document of transfer forbidden by the statute.’
21. When the Government rejected an application for licence
under the Mines and Minerals (Regulation and Development) Act
(LIII of 1948) read with r. 32 of the Mineral Concession Rules
(1949) and the rejected applicant filed a review application within the
stipulated period of two months under r. 52 to the Central Govern-
ment, the order of the Central Government thereon was held to be quasi-
judicial.^®* For r. 54 enables calling for records and explanation, if
any, from the State Government. On a consideration of
52. Rodha Jtffrts Ltd. v. lv. Bengal Baard of Clensars, A.I.R. 1952 Cal. 653.
53. D.N. Kesarboni v. U.P. Medical Council, A.I.R. 1953 All. 580.
54. S«ty«n«r«yan« v. 7 A«t«r«mafiy«, A.I.R. 1947 Mad. 401.
55. Fauja Singh v. Director, A.I.R. 1958 Punj. 305.
56. Bobulal v. Hashini, A.I.R. 1958 All. 97.
57. Norain v. W State, A.I.R. 1958 Punj. 372.
58. 2ft«furo P&en v. Gongodliar, A.I.R. 1953 Orissa 238.
58a. Sbia)i Nathubai v. Union of India, A.I.R. 1960 S.C. 606 following Proyiyc« of
Bombay v. Kusbaldoss S. Advant, [1950] S.C.R. 620 at 725.
CERTIORARI IN IN DIA 6?
the review application, the Central Government can cancel or revise
the order of the State Government in such manner as may be te st and
proper. Thus, there is a lii, a proposition and an opposition as also the
duty to act judicially. The opinion was that even if order under r. 32
is deemed administrative, the duty to act judicially under r. 54 was
manifestly clear by the use of the words ’jwt and proper ’. The fact
that the Central Government is not bound to call for records does not
negative the duty cast upon it to act judicially since courts have power
to dismiss appeals even without calling for records.
It may however be stated that the phrase “ just and proper ” by
themselves cannot connote a quasi-judicial approach. On the other
hand, the words denote the scope of the provisional powers “ can
cancel or revise ” in such manner as may be just and proper.
Regarding the following orders there is a conflict of authority in
the courts :
(1) Orders of the Advocate-General under sec. 92 of the Civil
Procedure Code granting his fiat for private persons to bring a suit in
relation to a public trust. According to Travancore-Cochin, this is a
judicial function5° but, according to Rajasthan, it is an administrative
function.^
(2) Orders cancelling or suspending a license under sec. 18 of
the Indian Arms Act are judicial orders according to Allahabad,
Calcutta, Madras, Patna and Pepsufil but executive according to
Rajasthan.6°
4. Executive orders
Tbe following orders have been held to be executive orders and
therefore not subject to correction by certiorari :
1. Order by the State Government in exercise of its powers of
review of an order of a District Magistrate granting or refusing
permission to £1e a suit to evict a tenant under the U. P. (Temporary)
Control of Rent and Eviction Act. 6H
2. Order by the Government referring a dispute to an Industria
Tribunal under the Industrial Disputes Act, 194},61
59. Abuba‹kcr v. Ad» cotc-Gemrol, A.I.R. 19â4 T. C. 331.
60. Shrimali Lal v. Ad»ocote-General, A.I.R. 1955 Raj. 166.
61. Benichond v. District ñfogiiirale, A.I.R. 1953 All. 476 ; H aft M hd. v. Corn-
missi mr of Police, A.I.R. 1954 Cal. 157 ; Farasiinho v. District Magistrate,
A.I.R. 1953 Mad. 476 ; Sudhansu Aonfa v. Bihar, A.J.R. 1954 Patna 299 ;
J•zm I Singh v. Slotc of Pepsu, A.I.R. 1956 Pepsu 37.
62. Kishore Singh v. Rajasthan, A.I.R. 195a Raj. 264.
63. Harottom Saram v. •o»ernmenI of U.P., A.I.R. 195a All. 232.
bI. Stott »f ModY‹U V. orotlifl, tl963] S.C.R. 334.
68 ]UD1GIAL REVIEW THRU UGH WRIT PETITIONS
3. Order of Government requisitioning property under the Bombay

Land Requisition Act, 1948,65 or tl Il d e r si mi lar legislation. 6"
4. Order of Government superseding a District Board, when the
statute left Government with an option to call for an explanation.6'
5. Order of Government fixing a minimum wage under the
Minimum Wages Act, I 948.6^
6. Order of Government modifying the terms of a lease of fish-
ing tanks.°°
7. Proceedings of a Conciliation Officer under the Industrial
Disputes Act, 1947.'0
8. Taking possession of property by a custodian under the
Administration of Evacuee Property Act."
9. Action of a Collector to recover, as an arrear of land revenue,
an employer’s contribution under the Employees’ State Insurance
Act.'°
10. Order of the Controller of Insurance under the Insurance
Act initiating proceedings against an insurer for acting to the prejudice
of the interest of the policy holders.'°
11. Order of dismissal of a servant of the Damodar Valley
Corporation ;" proceedings of a court of inquiry investigating charges
against a government servant not entitled to the protection of
Art. 311 (2).’5
12. Order of an income-tax officer extending time for payment
of tax'° or making an assessment of tas on undeclared income or
imposing a penalty for delay in making payment."
13. Order of the head of an educational institution inflicting
punishment on a student for misconduct.'
65. Bombay v. Khushaldas, [1950] S.C.R. 621.

66. Hanumanhax v. S.D.0, A.I.R. 1952 Assam 115.
67. Bidhu Bhusan v. State of W. Bengd, A.I.R. 1952 Cal. 901.
68. N. ñ. Haiti v. £o6our Commissioner, A.I.R. 1957 Raj. S5.
69. N.C'. Society v. Collector, A.I.R. 1956 Andhra 119.
70. Royal Cal«utto Got f Club v. If. Beugol, A.I.R. 1956 Gal. 550.
7l. Masumati v. Custodian of Evacuee Property, (1951) 6 D.L.R.
45.
72. Gholelol v. Mangali, A.I.R. 1957 All. 135.
73. Jupiter General Insurance Co. v. Rajagapalan, A.I.R. 195a Punj. 9.
74. Bibhuti Bushon v. Damodar Valley Gore., A.I.R. 1953 Gal. 581.
75. A. ff . M oitra v. Ministry of Defence, A.I.R. 1955 All. 512.
76. I.T. Gommiisianer v. RajeShwa7 Phased, A.I.R. 1956 Put›j. 164.
77. Calcutta Discount to. v. I.T.0, A.I.R. 1952 Gal. 606
78. ,fogeiidra v. University of Allahabad, A.I.R. 1956 All. 503 ; Raml«l v.
Allahabad University, A.I.R. 1956 All. 46.
14. Order of a‘ Commissioner of Police under the Indian Defence

Rules, 1939, cutting an individual’s telephone connection.'°
5. Parties
Any party to the proceedings before the authority or tribunal
against which certiorari is sought may opetition for the writ. But the
question is whether any other interested person can initiate proceed-
ings. A bank dismissed some of its employees, and the petitioner, who
was temporarily employed, later made representations resulting in the
questions of the dismissal being referred to an Industrial Tribunal, but
by that time the petitioner was no longer an employee. The Tribunal’s
award was appealed, and the petitioner moved for certiorari to quash
t he appellate award. It was held that he had no locus standi, because
there was nothing to show that the award reinstating the dismissed
employees affected his interests. When an unsuccessful election
candidate’s petition was dismissed by an Election Tribunal and he let
the matter rest, an application for certiorari by an elector, who was no
party to the election petition, was admitted. The court accepted his
contention that he had not only a right to vote but also a right to see
that his constituency was properly represented and that the election
was conducted fairly and legally. He could enforce this right by
praying for rrrfiornri if the Tribunal was without jurisdiction or if its
finding was erroneous. ' That the courts will be readier to assume
jurisdiction when violation of a public right is pleaded ,than when a
private right is involved is supported by certain decisions in relation
to quo warranto which hold that when it is in the public interest that
the legal position should be legally determined, a writ will issue at the
instance of a member of the public, provided he acts 6ona fide and is
not a man of straw set up by interested parties. ° But where a share-
holder’s rights had been abridged by a statute, it was held that he
could not found a writ petition on the ground that the company’s
Fundamental Right had been infringed by the statute 83
Some Fundamental Rights are available to citizens only ; others
are available to all persons, and “ person ” includes a body of persons
whether incorporated or not. The provisions of Arts. 5, 6 and 8 of the
Clonstitution, and of the Citizenship Act, 1955, do not seem to contem-
plate that an artificial person can be a citizen. It has been held that
79.
80. Sisic F um•• •- I- N. Mayumdar, A.I.R. 1955 Cal. 309.
8I. Daiiiadac v. Narnarayana, A.I.R. 1965 Assam 163.
82. R'ayendrafuinar v. Stay of Madhya Pradesh, A.I.R. 1957 M.P. 60 ; Sicorama-
krishnan v. Armnuglia, A.I.R. 1957 Mad. 17.
83. Ghiranyit foal v. Union, A.I.R. 1951 S.G. 4l.
70 )U DICIAL REVIEW THROUGH WRIT PETITIONS
a corporation cannot be a citizen ' and that it is not entitled to a

citizen’s rights. But there are dicta in a Supreme Court judgment to
the effect that a corporation whose shareholders are citizens and which
is domiciled in India is capable of exercising the Fundamental Rights
except those which by their nature cannot be exercised by an artificial
person.86 The Bombay High Court held that, where all the share-
holders and directors were citizens, a corporation was entitled to the
protection of Art. 19( l) (g) ; if there were non-citizen shareholders or
directors, it would be for the court to consider whether the corporation
was a citizen or not ; ^' though this case was appealed, the point was
not taken in the Supreme Court. The point was not taken again in
two cases in the Supreme Court in which the provision of Art. 19 were
applied for the benefit of corporations.®
Though Art. 32 is silent on the subject of parties, Art. 226
mentions, as respondents, “ any person or authority, including in
appropriate cases any Government ”. If the action of a Government
is impugned in the petition, prima /ncir Government must be a party,
but there seems to be cases in which the joinder of ‹Government may
not be appropriate. In some cases where discriminatory action by
Government has been impugned as repugnant to Art. 14 it has been
assumed that “ the State ” is a person, but the petition has been dis-
missed for reasons analogous to those urged by K’ing Charles I at his
trial ; a King and a subject are two different things. ° But in another
case it was held that “ the State ” is not a " person ", at least in the
context of Art. 14. Apart from the expression in Art. 226 quoted
above it was deemed necessary to insert in Art. 300 of the Consti-
tution a special provision to enable a State Government to be sued in
the name of a State. In Art. 14 (and presumably in Art. 15{1) ) “ the
State ” and the “ person ” stand in opposition ; in this context it is
not appropriate to make Government a respondent.°
6. Terrltorlal jurlsdlctlon
Though limited to the protection of Fundamental Rights, the
jurisdiction under Art. 32 is not limited territorially, but the jurisdic-
tion Of the High Courts, though more extensive in relation to subject
84. Jupiter Insurance Com V. R*j•8•p•!*•› A- -R- » J •
85. Gheiiy Hosiery Mills V. S. N. Gh›se, A.I.R. 1959 Cal. 397.
86. Ghir« fit Lal v. Union, [1950] S.G.R. 869 at 920, 930.
87. few f B ml y v. Ghainarbaugiualla› A.I.R. 1956 Born. 1.
88. Bombay Dyiing ahd itf anufacturing Go. Ltd. v. State o Bombay, A.I.R. 1958
Ltd. v. Union, A.I.R. 19â8 S.C. 578.
89. Jain Transport v. U.P.A.I.R. 1957 All. 300 ; NatiH Chandra v. Orilia,
A.I.R. 1957 Orissa 56.
90. six #orifiad v. T*8njeé, A.I.R. 1957 Punj. 150.’
matter, is restricted to the territory within which they exercise other
jurisdiction. Furthermore jurisdiction is not determined by the place
in which the cause of action arises ; it is the residence of the respon-
dent which determines the jurisdiction of the High Court. ' As the
Union Government and many of its administrative authorities are
located in Delhi, only the Punjab High Court is competent to entertain
a writ petition not involving a Fundamental Right against the Union
Government or an administrative authority or tribunal located in
Delhi.
If however the act complained of is done by an agent or subordi-
nate official within the territorial jurisdiction of a High Court, he cannot
plead superior orders from an authority located in Delhi for :
" there can be no agency in the matter of the commission of a
wrong ... Even if the principal cannot be reached by reason of
his being outside the territories, the arm of the law would certainly
reach the agent who is guilty of having committed the wrong and
the High Court could certainly issue a writ against him under
Art. 226 ".°°
This principle does not apply when the order qf the subordinate
authority within the jurisdiction has merged in the order of a superior
authority outside the jurisdiction, as when the superior authority has
passed orders in administrative appeal or revision, °* unless the subordi-
nate authority acted without jurisdiction for in such a case the order
of the appellate authority, whatever its nature, cannot alter the fact
that the original order was null and void.
Where a tribunal is appointed ad for, so that the members disperse
after it is functus offlcio, as is the case with election tribunals, for
instance, the statute providing for their appointment usually requires
the record to be sent to the District j udge or other authority for safe
keeping. Certiorari °' is directed against the record so that when it is
sought to question the decision of a tribunal of this kind which has
already dispersed, the High Court within whose jurisdiction the record
is preserved has jurisdiction to issue ccrhorari.°'
It is submitted that the existing rules governing territorial juris-
diction of High Courts need amendment, as they are manifestly unfair
to prospective petitioners on the periphery of India. It is suggested
9t. Election I ommission v. Sada V•nkaia Ra», [1953) S.C.R. 1144.

92. T.K. Musaliar v. V nkafachalam, A.I.R. 1956 S.C. 246.
93. Ibid.
94. Arthur v. CofiacIor o/ Comm, A.I.R. 1958 Ker. 357.
95. Hari Vishnu v. Aheiad Jshaqu , A.I.R. 1955 S.C. 233.
72 yU DICIA L REVIEW THR OUC•H WRIT PETITIONS
that the place where the impugned order is intended to operate and the
place where the cause of action accrues should determine territorial
jurisdiction and that Collectors should be appointed agents for the
purpose of accepting notice on behalf of the Government, tribunal or
authority concerned.
Q_uestions of jurisdiction need not necessarily be pleaded. It can
be raised at the hearing. There can be no hard and fast rule in this
regard. It is however proper to raise it in the petition itself. Where
a respondent had submitted to the jurisdiction of Road Transport
Authority, he was allowed to plead that the Authority had no jurisdic-
tion to vary the conditions of a permit even though not specifically
pleaded in the application under Art. 226.°^• The Madras High
Court’s decision was however that the delegation to the Regional
Transport Officer of the power to vary conditions of a permit was not
valid.°°b The Supreme Court by a majority was of the contrary view
approving of the view of the Andhra Pradesh High Court.°5*
Absence of jurisdiction in the High Court to issue the writ has
been considered as an insuperable hurdle to interfere even in cases
where there is patent violation of the rules of natural justice. In
Pooh’s case, 9’° the High Court set aside in certiorari the dismissal
order of a Police Constable on the ground that rules of natural justice
and fairplay had been violated in that the enquiry officer had con-
tinued to preside over the trial even after he placed on record his own
testimony as against that of another witness. The Supreme Gourt, on
appeal, while upholding the above view, yet allowed the appeal on the
ground that the order of dismissal was before the Constitution came
into force and that therefore the High Court had no jurisdiction to
invoke Art. 226 in a pre-Constitution cause of action.°°•
I f the appeal is directly from a High Court’s order, the Supreme
Court need not go into the question of jurisdiction of the original
administrative authority.°°* The interference of the Supreme Court
95a. A. it. Arunachalain Pillar v. M|s. Southern Roadways Ltd., and Another,
A.1.R. 1960 S.C 1191.
95b. i6id, approving T. Krishnaswamy .4f udalior v. P. S. Palini Pillar, A.I.R. 1957
Mad. 599 (F.B.).
95c. Veeraswamy v. Stan •f Andhra Pradesh, A.I.R. 1959 Andh. Pra. 413.
95d. State of Uttar Pradesh v. Muhammad Nuth, A.I.R. 1958 S.C. 86,
95e. An attempt to reopen this statement of law in f tr item of Assam v. Radha
Raman Dan was unsuccessful. C.A. No. 410/1956 against Assam High Court
Rule 59/51. (Judgment of Supreme Court dated M5-1960. Not yet
reported.)
95f. Balwant Rat Ghimanlol Tri0edi etc. v. M.N. Nogr uhna, A.I.R. 1960 S.C.
407 (Review Petition 37/59 against this decision was dismissed on 3-B-
£0).
GERTI ORAR1 IN INDIA 73
in special leave has been refused in cases of want of jurisdiction when

the justice of the case did not merit it.ssg
7. Scope of the jurisdiction under Arts. 32 and 226
No question other than that relating to a Fundamental Right will
be determined in a writ petition under Art. 32, °^ but the right to
such a petition is a Fundamental Right itself and the Supreme Court
cannot refuse to entertain petitions seeking protection against infringe-
ments of the Fundamental Rights because the wrong writ has been
prayed for °' or because there is an alternative remedy " or
because it involves the determination of a question of fact, °° or on
the ground that it is a case where a delegated legislation violates
only prescriptions of a procedural nature.' ° Where a writ application
is dismissed and an application for certificate of appeal is pending,
in certain special circumstances, the Supreme Court has exercised
its powers in entertaining another writ to it under Art. 32.10*
But the Court has held that if a writ petition filed by a party
under Art. 226 is considered on the merits as a contested matter and
was dismissed no petition under Art. 32 would lie. 1°° The principles of
Res Judicala will then apply as the party neglected to take advantage of
the provision to file an appeal from the High Court decision.
However, for the issuance of a writ under Art. 32, it must be
clearly shown that the exercise of a fundamental right has been
infringed, 103 and the Constitution of India itself should not provide
immunity specifically against interference by courts.' 0'
A High Court acting under Art. 226 is as much 'bound as the
Supreme Court under Art. 32 to enforce the Fundamental Rights.'
But the position is different when a writ issues under Art. 226
" for any other purpose ". It has been held that this involves establish-
95g. See also A. M. Allison v. B. L. ten, A.I.R. 1957 S.C. 227.

96. ••••‘•e*1•’ V. Stole of Rojosfhan, A.I.R. 1955 S.C. 504.
97. !‘^**1*’! <•l v. U»i»t, A.I.R. 1951 S.C. 41.
98. Himmatlal v. State af M. P., A.I.R. 1954 S.C. 403.
99. Koch Eni v. 3tatt a/ Madra, A.I.R. 1959 S.C. 725.
100. N«renilro Kumar v. Union a 'Intia, A,T.R. 1960 S.C. 430.
101. Shriniu‹uo v. Staff •f of yr r«, A.I.R. 1960 S.C. 350.
102. Daryao v. Stott f U.P.› A.I.R. 1961 S.C. 1457.
103. All Indie Station Masters’ and Assistant Stalin t Moslem’ Association v.
Oincrol Manager, Gintrol Railways, A.I.R. 1960 S.C. 384.
104. As Art. 3lA gives to governmental action under the Bombay Tenancy and
Agricultural Lands (Amendment) Act 13 of 1956. See Sri Row Narain
M• d i and 0 / cm v. Stole ofBomL« , A.S.R. 1959 S.C. 459.
Main v. T‹n›n Area C eiii«, pgs2j S.C.R. 572.
74 yUDIGIAL REVIEW THROUGH WRIT PETITIONS
ing that some legal right has been infringed, ° but writ petitions have
been founded on alleged breaches of provisions of the Constitution
other than the Fundamental Rights.° However, unless the courts had
defined self-imposed limits, based on considerations other than subject-
matter of the jurisdiction, most other forms of judicial procedure
would have become obsolete. The power to issue the writs “ for any
other purpose ” is discretionary ; the discretion must be exercised
judicially that is to say in accordance with principles established by
precedent.
The cases already decided seem to have established the following
principles:
1. Subject to exceptions discussed above, the right to be enforced
must be the right of the petitioner himself.*
2. The writ jurisdiction cannot be invoked when there exists an
alternative remedy which is equally efhcient and adequate. 6 If the
statute under which the tribunal or authority acts itself provides for
recourse to the courts, as when Sec. 116-A of the Representation of
the People Act, 1951, gives a right of appeal to the High Court from the
decision of an Election Tribunal, a petition for a writ will be refused.°
3. As the object of the writ jurisdiction is the enforcement rather
than the establishment of rights, no writ will issue if the right cannot
be established by the summary procedure followed in the hearing of
writ petitions.' A writ petition cannot be converted into a suit.®
The decision in the Kochunni case, ^ would however recommend the
examination of disputed questions of fact by afhdavits or examination
of witnesses by a commissioner or otherwise. Though the decision is
tinder Art. 32, the same principles could be extended to proceedings
under Art. 226, at any rate where there is an alleged infringement of a
fundamental right.
4. A writ petition will not issue when the determination of the
same issue is pending in a court.°
2. State of Orissa v. Madangopat, [1952] S.C.R. 28.

3. Biman‹handta v. Dr. 3fNfizrjce, (1952) 56 G.W.N. 651 ; Karkari v. Sluad«
A.I.R. 1952 Nag. 330.
+. ctitan)itlol v. Union, [1950] S.G.R. 869.
6. mil/Jzog/ni v. /toyo 4oinor, A.I.R. t959 S.G. 422.

7. &iâuii v. Dainodar Valley Corporation, A.I.R. 1953 Gal. 581.
8. Si i‹ of m‹a » . K‹n i i c «rim , A.E.R. 1957 Mad. 361.
8a. yoc/tunni v. Stofa a/Madra, A.I.R. 1959 S.C. 725.
9. &•il• h v. A. A. c., a.I.R. 1952 Ajm 31.
CERTIORARI IN IN DIA 75
5. A writ petition will be dismissed in tickler if the petition or
affidavit in support contains mis-statements or conceals material facts
with intent to mislead the court.'0
6. Relief may be refused on the ground of acquiescence as to
jurisdiction.” The exception to this is where there is inherent lack
of jurisdiction "• and when the condition which goes to the root
of jurisdiction has not been performed or fulfil1ed . 11b When
a petitioner having consented to the transfer of his case from one Income-
tax Officer to another, after the assessment was made, challenged the
provision of law under which the transfer was made such acquiesence
bars remedy by writ. " c.
7. Delay may result in the refusal of the relief claimed, if there
is no satisfactory explanation.'° Instances of satisfactory explanation
are :—
(a) The petitioner did not promptly object to an illegal tax, as it
was a social organization without experience of litiga-
tion.**
(b) The petitioner was pursuing another legal remedy." If the
relevant statute provides for a departmental appeal, that is
considered a legal remedy in this context,* 5 but not the
pursuit of extra-legal remedies such as appeals ad tniicri-
cordiain before departmental officials.'°
(c) The petitioner had protested to the proper authority, which
ignored the protest.'7
The court will, however, be more ready to condone delay where
the authority whose act is impeached never applied its mind to the
matter,' where an order is manifestly erroneous or without jurisdic-
tion,'° and where an illegal tax has been imposed."0
J0.
11. Asiatic Engineering Go. v. Achdhiu 2tatn, A.I.R. 1951 All. 746.
I la. M. U. M. S«rai«s v. fi. T. A., A.I.R. 1953 Mad. 59.
Holionol Gaol Goy v. Data, A.I.R. 1966 Pat 294 at 296.
\ tb. £f.C. Bad v. Urir lPorls» A.I.R. 1951 S.C. 230 at 237.
11c. Pannalal Bin1**1 Y. fHion Of Indd A.I.R. 1957 S.C. 397 at 412.
12. K chunni v. Star af Madra, A.I.R. 1959 S.C. 725.
1S. Gasrnopalitan C'/ué v. fi. G. Tom OQcrr, [1952] D.L.R. 144, (Mad). A.I.R.
1952 M ad. 814.
l4. tsandhinogor wtotar Transport Sooty v. Stalc of Bombay, A.I.R. 1954 Bonn. 202.
Is. #hoofr/t«nd v. Nogp«r Unirrrñ ty, A. I.R.. 1937 Bonn. 215.
16. Dacre v. florin Ministcr, A.I.R. 1957 Hyd. 14.
17. Ger rat M•n•ger v. Takub, A.I.R. 1959 Mad. 88.
18. J*81!“^* fH fOS v. Statc af Bombay, [l952j 7 D.L.R. 149, (Bonn).
}9. Damodor ñ. Narnorayan, A.I.R. 1955 Assam 163.
20. Samatt rn ol v. Sian of *1 than A.l. R. 1954 Raj. 162,
76 jU DIGIAL REVIEW THROUGH WRIT PETITIONS
0. In exercising the writ jurisdiction, the courts act in a super-

visory, not in an appellate capacity. Certiorari cannot be used to
question findings of fact, nor even questions of law, unless apparent on
the face of the record. The court will also review questions of juris-
diction and violation of procedure or principles of natural justice.°l
9. The object of the writ of certiorari is to quash irregular
proceedings ; the court will not assume the powers of the tribunal or
authority whose action is impeached to make an order or decide a
question t›n its merits, but it will direct an order to be passed in
accordance with law, provided that does not involve interference with
a discretion vested in the tribunal or authority.°°
8. Alternative remedy
As stated above, the existence of an ,alternative remedy may be
pleaded in reply to an application for certiorari, but relief is less likely
to be refused on this ground than when the application is for
mandarins, for the rule that the existence of an alternative remedy is a
bar to relief is, in relation to certiorari, a rule of policy, convenience
and discretion rather than a rule of law.°° If there is a jurisdictional
error apparent on the face of the record °' or if the rules of natural
justice have been infringed, the existence of an alternative remedy
will be no bar, not even if it is a right of appeal created by statute.°^
The plea that there exists an alternative remedy will not succeed
unless the alternative remedy is speedy, effective and adequate. Where,
for instance, the respondent, in answer to a petition to quash an order
for payment of deficient stamp duty and penalty, pleaded that there
were two alternative remedies to move the Board of Revenue to
revise the order or to make a reference to the High Court, the plea
was rejected on the ground that warrants were about to issue for the
attachment of the petitioner’s property.° 6 Where the alternative
remedy provided by statute involved payment of the whole assessment
as an essential preliminary to the institution of a departmental appeal,
this was held not to be an adequate alternative to a writ petition.° ' If
21. P4/rappa v. Jtwa», A.I.R. 1952 S.C. J92 j flanar‹Iiian v. State a/ I-fz‹t• ratad,
A.I.R. 1951 S.C. 217.
22. Basappa v. Hago9pa, A.I.R. l9â4 S.G. 440.
23. Stair of U. P. v. Md. N•uh, A.I.R. 1958 S.C. 86.
24. Actional Coal Gv. v. Dan, A.LR. 1956 Pat. 294 ; Is9aliani v. Union, A.I.R .
1957 Cal. 430.
fl5. State o,f U.P. v. Md. P••h, A.I.R. 1958 S.C. 86.
26. Subromania v. 2trornur Diaisionol OQr•r, A.I.R. 1956 Mad. 454.
27. Himmollal v. AI. P., A.I.R. 1954 S.C. 403.
a statute is void for infringement of a constitutional limitation, such

as that in Art. 286, the fact that the statute provided for appeal to
administrative authorities will not bar a writ petition for no such
administrative authority will go into the question of rirefi.°
As has already been indicated, the existence of an alternative
remedy is no bar when a fundamental right is involved.° This is
particularly so when the writ is under Art. 32, since the constitutional
remedy under that article is itself a fundamental right. The Kochunni
case°° however did not make any pronouncement in this regard so far
as applications under Art. 226 are concerned.
9. Errors of jurtsdlctton
The Race Course Betting Board case °°* made the ground of error
apparent on the face of the record to be dropped as a ground for
certiorari until the Northumberland case.°0b The early Indian eases °'
recognised that certiorari could issue in case of errors of law also. In
Mahabalesuiarappa case 31 Venkatasubba Rao, ]., recognised that certiorari
could issue when in the exercise of a jurisdiction an error of law
occurred which was disclosed by the proceeding. The rule was that
the error must be apparent on the face of the record.
Taking jurisdictional grounds for the issue of cerftorori, it may be
stated that it will lie to correct absence of jurisdiction, excess of
jurisdiction and abuse of jurisdiction. The distinction between excess
and abuse of jurisdiction is difhcult to draw, but it has been said that,
assuming that George Washington’s gift of an axe from his father gave
implied authority to cut down brushwood on the family estate, cutting
down brushwood outside the family estate would be excess of jurisdic-
tion but cutting down the cherry tree in the family estate would be
abuse of jurisdiction.
Absence of jurisdiction may arise from the nature of the subject-
matter ; the tribunal may be without authority to enter upon the
enquiry or part of it. When a Commissioner under the Workmen’s’
Compensatiofi Act made an award that a contractor should pay
compensation for the death of three employees, this was quashed by
certiorari as the injuries to which they had succumbed were “ war
28. Bengal i ns uni ly Co. v. State of Bear, A.I.R. 1955 S.C. 661.
29. Kochunni v. Stata of Madras, A.I.R. 1959 S.C. 725.
30, A.I.R. 1959 S.C. 725.
30a. Race Gourse Betting Clonvol Baord v. Secrclay for Air [1944) Ch. 114
30b. R. v. Northumberland App«ots Tribunal (1952) 1 A.E.R. 122 in appeal from
[l95lj 1 A.E.R. 268.
31. Krishnanuami v. Moiianlol, A.I.R. 1949 Mad, 535; MMba iswarappo v. ftottie•
chandra mo, I.L.R. [1937) Mad. 132.
78 ]U DIGIAL REVIEW THROUG J GRIT PETITIONS
injuries " within the meaning of the War Injuries Ordinance, l94l,
and by it excluded from the Commissioner’s jurisdiction. 3° A Uni-
versity Act empowered the University to interfere with action taken
against a teacher but not against a principal by the Governing Body
of a constituent college. When the University reversed an order of
dismissal of a person who was both principal of a college and professor
of mathematics, it was held that the University was without jurisdic-
tion in reversing the order of dismissal in so far as it related to his
post as principal."°
Absence of jurisdiction may also arise from the absence of some
essential preliminary or of facts collateral to those forming the subject
matter of the tribunal’s enquiry, but whose existence is a condition
precedent to the assumption of jurisdiction .°4
If workers are not “workmen ” within the meaning of the
Industrial Disputes Act, 1947, a claim on their behalf is not an
industrial dispute, and an Industrial Tribunal has no jurisdiction to
adjudicate a dispute between them and the employer. 3^ Section 7 of
the Evacuee Property Act provides for notice and enquiry before a
declaration is made that specific property is “ evacuee property ”.
Once this declaration is made and the property has vested in the
Custodian, the Act empowers him to deal with it in various ways but
until the enquiry is complete and the declaration is made, the property
does not vest in the custodian, so that, if the evacuee dies before the
declaration is made, the property will pass to his heirs, and the custodian
will have no jurisdiction to deal with the property under the provisions of
the Act.°® Under the U. P. Land Utilization Act, 1948, after notice to
show cause had been served on a landlord, the Collector could allot land
belonging to the landlord to others for the purpose of cultivation. Except
in cases provided for by the statute, personal service on the landlord
was an essential pre-requisite to the exercise of jurisdiction to allot the
land.°'
The statute under which a tribunal acts may give it i isdiction if
a specified state of facts exists. In that case, if the tribunal exercises
the statutory jurisdiction in the absence of that state of facts, it acts
without jurisdiction and is amenable to certiorari.^ Sections 33 and
32. Nufinini v. Annada, A.I.R. 1952 Cal. 112.
33. J.K. Ghaudhury v. Dutta •u§fu, A.LR. 1958 S.C. 722.
34. fibrAim v. Cmtodi«n off Pro u« Properly, [1952] S.C.R. 696; A.I.R. t952
S.C. 319,
35. MedirH Match Indwtzics v. labour n#praf tribunal, A.I.R. 1957 Mad. 688.
36. Ebraliim Aboobakcr v. T#r£r/isnd, A.LR. 1953 SU. 298.
37. iflab Singh v. Ceflectpr, A.I.R. 1953 All. 58S.
38. Ibrahim v. Gusttdian-General, A.LR. 1932 S.C. 319.
33A of the Industrial Disputes Act, 1947, provide that in Industrial
Tribunal may take cognizance of an employee’s complaint that his
employer has, infer alia, altered conditions of service in regard to
which there is an industrial dispute pending before the tribunal, and
adjudicate upon the complaint as though it were a dispute pending
before it. The conditions laid down are collateral conditions on which
the jurisdiction of the tribunal depends ; the High Court in a petition
for certiorari is entitled to determine upon its independent judgment
whether the conditions have been established.39
But alternatively the statute may place the jurisdictional facts on the
same footing as the facts forming the subject-matter of the main enquiry,
giving the tribunal jurisdiction to decide whether such facts exists. In such
case the certiorari court could only interfere with a finding of the
tribunal as to the jurisdictional facts in such circumstances as it could
interfere with a finding of fact on the mhin issue, that is to say, only if
there were no evidence in support. The Bombay Land Requisition Act,
1948, empowers Government to requisition premises that have been vacant
for a specified period, and makes a declaration of vacancy conclusive
evidence that the premises were vacant. This has been held to prevent
interference by Certiorari, on t h e gr Ct un d th £t t t h e d e claratio n w£ts w r ofl g
iT1 f£tct.' 0 The Bihar Buildings’ Lease (Rent and Eviction) Control Act,
1947, inter alia provides for the eviction of a tenant on non-payment of
rent. The decision of the Controller as to whether rent was in arrears is
declared to be final, subject to appeal to the Commissioner. It was
held that the preliminary finding as to non-payment of rent, as well as the
main decision to evict, were equally within the Controller’s jurisdiction,
and his decision on the jurisdictional fact could not be challenged on the
ground that it was wrongly decided."
Absence of jurisdiction may result from a misconstruction of the
statute under which the tribunal purports to act. An industrial
tribunal acting under the Industrial Disputes Act, 1947, can only take
cognizance of an “ industrial dispute ” the definition of which includes
a dispute between employers and workmen connected with employ-
ment or non-employment or terms of employment or conditions of
labour. In one case the dismissal of a clerk by a club was referred to
an Industrial Tribunal. It was held that, as the other employees had
not objected, there was only an individual dispute between employer
39. Bala She» Go. Ltd. v. Ali Masian, A.LR. 1956 Pat. 518.
40. Lilaaaii v. Stott of Bombay, A.I.R. 1957 S.C. 521.
41. S»wji Kutchi v. Bajrang Agaiwala, A.I.R. 1955 Pat. 516.
80 yUDIGIAL REVIEW THROU OH WRIT PEDITIONS
and one employee ; an industrial dispute involves a claim on behalf of

a class. In the instant case the tribunal was without jurisdiction.'°
In another case when a linotypist was dismissed, the U.P. Working
journalists Union, with which he had no connection whatever, took up
his case, and eventually the matter was referred to the Industrial
Tribunal. It was held that there was no jurisdiction to entertain an
individual dispute unless the workmen as a body or a considerable
section of them made common cause with the individual.'°
Want of jurisdiction may also arise from the tribunal not being
properly constituted; as when a decision of a tribunal purporting to act
under the Madras Estates Act, 1948, was held without jurisdiction in
that it was composed of two members whereas the statute required
three.*'
If the statute which vests powers in an authority is ti/fro rirei the
legislature, the authority exercising them does so without jurisdiction.' 5
This rule would also apply to a statute repugnant to a Fundamental
Right'° or any other constitutional limitation.
If an order is passed without jurisdiction, it cannot be urged that
certiorari will not lie on the ground that the order is a nullity.4'
Excess of jurisdiction is the extension of a power given to a
tribunal to a matter not within its scope. In deciding whether the
dismissal of a workman is justified, an Industrial Tribunal may
consider whether the employer acted in good faith, whether the
dismissal amounted to victimization or unfair labour practice, whether
there was a violation of natural justice, or whether the decision was
perverse, but, if it goes beyond this, acting as a court of appeal from
the decision of the employer, and substituting its own judgment, it is
liable to correction by certiorari for exceeding its jurisdiction .4®
Abuse of jurisdiction is the exercise of a power given to a tribunal
mala fide or for some purpose other than that contemplated by the
statute. The Motor Vehicles Act, 1939, empowered Regional Trans-
port Authorities to issue and renew permits for stage carriages over
prescribed routes. When an Authority refused to renew licenses of
42. Bengal Club Lfd. v. Sanfi Ranjan, A.I.R. 1956 Cal. 545.
43. Niwspapzrs Lid. v. Stall Industrial tribunal, A.I.R. 1957 S.C. 532 c/. also
S.N.O. Sugar Lid. v. Ali Hassan, A.I.R. 1959 S.C. 230.
tie ñminaf v. R«m«, A.I.R. 1953 Mad. 129.
45. Rajalimnndry Eltclric s4ighly to. v. State of Andhra, [l954j !S.C•.R. 779.
46. Crockmll v. Stan •f U. P., A.I.R. 1952 All. 746.
47. Gammissiaiur of Police v. Gardhandas, A.I.R. 1952 iS.G. 16.
48. M|s. Indian iron and SI«I Co. v. their \\’orfmn, A.I.R. t958 S. C. t30.
private operators on the ground that the state proposed to run
nationalised services, it was held that the Act did not contemplate a
state monopoly of stage carriages, nor authorise the refusal of permits
in order to enable Government to oust the private operators. The
orders of the Authority rejecting the applications for renewal of
permits were quashed.4 Under sec. 74 of the Motor Vehicles Act,
1939, a District Magistrate may prohibit or restrict in the interests of
public safety or convenience the driving of motor vehicles or any
specified class of motor vehicles on a specified road. Such a prohibi-
tion or restriction may be subject to exceptions and conditions, but if
these are made arbitrarily or on considerations other than public
safety or convenience, they are an abuse of the power, while a prohi-
bition against anyone plying on a road without previous written
permission is beyond the scope of the statutory power.°0
i 0. Error of law apparent on the face of the record
As has been indicated, before legislation restricted the contents of
the record in summary proceedings before justices in England, the
Gourt of King’s Bench insisted on comprehensive records being
compiled, and would quash for comparatively minor errors appearing
on the record. When Parliament effectively deprived the court of the
power to use certiorari for this purpose, it was forgotten until revived
in the Northumberland case,^' but no attempt has been made in England
to draw a distinction between “ error of law ” and “ error of law
apparent on the face of the record ”,. other than that arising from their
literal meaning. In India, on the other hand, the case law suggests
that “ error apparent on the face of the record ” is confided to errors
so blatant, or so serious in their consequences as to shock the court’s
sense of justice.
The Madras High Court seems to have been the ftrst to recognize
the possibility of error apparent on the face of the record being a
ground for cr rIiorari.5° This grñund was mentioned in a judgment of
the Supreme C.ourt in 1952.5° In 1954 the Supreme Court, citing the
Northumberland case, said that error consisting of c)ear ignorance or
disregard for a provision of law, apparent on the face of the record might
call for interference by certiorari ; a patent error would be corrected, but
not a wrong decision. ^'
49. S• M. Islam v. Sims of Bihar, A.I.R. 1956 Pat. 73.
50. New Motor mansioni Go. v. A. T. A., A.I.R. 1952 Nag. 11}.
51. A. v. Northumberland Appeals Tribunal, [1952] 1 All. E.R. 122.
52. ñfa/ia6nfes/imoroppa v. 2tanocfiandra Eton, I.L.R. (1937) Mead. 132.
53. Krer«99a v. Oman, A.I.R. 1952 S.C. 192.
54. T. G. B‹ a§#a v. T. N«gn99a, A.I.n. 1954 S.C. 440.
82 JUDICIAL REVI EW THROUGH WRIT PETITI ONS
The Bombay High Court had earlier defined " error of law
apparent on the face of the record ” as involVing misrepresentation of
a statute or disregard of its provisions so patent and manifest that the
court could not permit the tribunal to proceed, but an error which
only became evident after a long and elaborate argument, would not
be a ground for granting rrrftorari.55
Though this test may be helpful in some cases, it fails to draw a
true distinction between errors of law which call for correction by
certiorari and those which do not. An Election Tribunal had held
that a candidate who got government servants to sign his nomination
form was guilty of a corrupt practice sufficiently grave to justify his
disqualification, and the High Court accepted this as a possible inter-
pretation of the relevant provision of the Representation of the People
Act, 1951. Though the Supreme Court held this to be an error of law,
it was clearly not an error patent without legal argument. The
Supreme Court in appeal granted certiorari, and it would seem that it
did .so because of the serious consequences of this misinterpretation of
the law. Had the High Court decision stood, it would have imposed
greater disabilities on public servants in their capacity as electors than
the public interest demanded ; in other words certiorari issued to
correct an error of law, not because it was obvious, but because it
would result in manifest injustice.5°
In a subsequent decision, the Supreme Court pointed out the
restricted value of the test of the error being self-evident, since what
might be self-evident to one judge might not be so to another. What
is an error manifest on the face of the record, it was said, cannot be
defined precisely because there is an element of indefiniteness inherent
in its very nature and it must be determined judicially on the facts of
each case." When it is said that a discretionary power is to be
exercised judicially, it is implied that it must be exercised in accordance
with precedent so that little more can be said on this matter than by
giving some indication of errors which have been held to come within
the category of " error apparent on the face of the record ” and errors
which have been held outside it.
A study of the recent Supreme Court decisions give the following
impressions. Where the administrative tribunal comes to a conclusion
on an appreciation of evidence, the effort to discover apparent error of
55. Mushtan v. Patil, I.L.R. [1952) Born. 995.

56. Raj Krushna v. Binud, A.1.R. 1954 S.C. 202.
57. Hari Vishnu v. Ahmad Iskaquc, A.1.R. 1955 S.C. 233 ; (1955] 1 S.C.R.
l’l04 at 1123 affirmed in Shri Ambica Mills v. S.B. Boat and Officri,
A.I.R. 1961 S.CI. 970,
GERTI ORARI IN INDIA 83
law in its conclusions is discouraged,°'• while in the realm of adminis-
trative interpretation of statutes or agreements judicial reversal on this
ground is favoured only where statutory policy is overturned°'* or
serious injustice has resulted in the individual case 5'• and lastly
where supervisory power over inferior administrative bodies is legisla-
tively conferred on the Government in wide terms, interference of the
court on the basis of error of law is generally difficu1t,5'°
In Kaushalya Devi v. Bachiiar Singh,*! • reversing the Administrative
Tribunal’s order, the Punjab High Court held that a finding of fact
that an order existed was based on no evidence. The Supreme Gourt
entered reversal obviously because the entire record subsequent to the
denied order was meaningless without assuming its existence. In the
later case oY Shri Ambita Mills*!• the administrative tribunal held two
clauses of an agreement to be cumulative and not mutually exclusive
while both the High Court and the Supreme Court thought them to
be exclusive of each other. The error was one of law being the
construction of a statutory document. The issue of teiliorari by the
High Court was sustained by the Supreme Court. In Satyanarayana
Hegde’s case,°7b on the other hand, the issue of a writ for apparent
error by the High Court was reversed by the Supreme court on the
ground that the error was not apparent. In that case the High
Gourt of Bombay reversing the order of the administrative tribunal
held that a statute correctly interpreted did not require an antecedent
notice as a condition precedent for the institution of an ejectJnent
petition. The interpretation of a statute is plainly a question of law
and as in
Hariaishnu Kamalh’s case ,• 7e the action of the tribunal was possibly only
57a. See Nagindra Nalh Bora v. the Gommissionir of Hills Diuisi0n, A.I.R. 1958
S.G. 398 : (1958) S.C.R. 1240 ; Kaushalya Dc»i v. Borâifor Singh, A.I.R. 1960
S.G. 1168 ; fi. Chinniah Naidu v. Slate of Madras, No. 329/1957 ; judgment
of S. Gt. on 18—&l9h0.
57b. Salyanarayana Laxtni Narayan ffegde v. Mallikar juna Bhawanappa A.I.R. 1960
S.G. 137, where the Supreme Gourt found the administrative interpretation
of the statute agreeing with the policy of the legislation than that given by
the High Court but being reluctant to declare it said instead that they did
not find the error of law apparent.
57c. Shri Ambica Mills Go. v. S.B. Bhaf and Others, A.I.R. 1961 S.G. 970 Givil
Appeal No. 243/1959 ; S. Gt. Judgment on I2-12—1960 (A case of inter-
pretation of an agreement between mill owners and Labour Association).
57d. Raman an.d Raman Lfd. v. State af Madras, A.I.R. 1956 S.C. 463 Ghinniah
Haidu v. State of Madror, G.A. 329/1957 ; Judgment of Supreme Gourt on 18-
&-1960. (These cases are in the revisionary power of State Governs ment in
the grant of route permits under the Motor Vehicles Act).
57e. MariNshnu Itamath v. Ahmad Iskaque, A.I.R. 1955 S.G. 233.
84 JUDICIAL REVIEW THROUGH WRIT PETITIONS
on one interpretation which the High Court found to be wrong. The

error of law was as much apparent here as in Z:I. K. Kamath’s case.
The Supreme Court reversed the High Court pointing out that the
error was not apparent.
In fi. Chiniah Naidu v. Jfafr o/ fadrai, 5' a the High Court refused
to issue the writ and the Supreme Court agreed with the High Court
in holding that there was no apparent error. In this case also, the
appreciation of evidence being material, formed the subject-matter.
Differing views among the administrative tribunals on materials
indicating past convictions, present possession of buses and other
similar permits to others, the administrative tribunals have to decide
who among the different applicants for a road permit should get it.
In this area, errors of law have little chance even to be pleaded
because of the amplitude of the provision of sec. 64A of the Madras
Amendment to the Motor Vehicles Act which empowers the Govern-
ment to do whatever they want (“ as they think fit ”) with the decisions
of the tribunals established to grant route permits.
(a) Caoeo fn whlch certiorari wae granted
1. An Estates Land Tribunal acting under the Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1948, held a village to
be an “ inam estate ” and so liable to conversion under the Act, hold-
ing that the nature of the tenure was determined by a particular grant
from Government, that the use of the words “ to demise, let and farm
let ” in the grant did not derogate from the entirety of the grant and
that the conduct of the grantee and his tenants in invoking the
provisions of the Act indicated the nature of the grant. It was held
that cerfiorori was rightly issued as the Tribunal was in patent error on
all three points. The grant-was only a lease.5
2. A house owner, having been ordered by the Municipal Com-
mittee to pull down part of her house, sought permission from the
Rent Controller to determine a lease of a gh›und-floor tenant so that
the house could be rebuilt. The appellate authority held that the
statutory provision for permission to be granted if " the landlord
desires to make essential repairs or alterations which cannot be made
without the tenant vacating the house ” did not cover demolition and
rebuilding. Certiorari issued on the ground that ” alterations ” covers
rebuilding if necessary, and the demolitions already effected had been
necessary because of faulty construction .^9
58. Potto6loi v. Gorindo, A.I.R. 1956 Chad. 72 at 77.
59. Badainiboi v. P.A. Tobin, A.I.R. 1953 Nagpuf 16.
GERTIORARI IN INDIA 85
3. An Income-tax Officer held that donations to a Prior of a

monastery for the construction of a college (though these were gifts
of a non-recurring nature) and a stipend to a priest for saying masses
(though this was a donation to the individual priest) were wrongly
assessed to tax as income of the monastery. The High Court held the
assessments orders to be wrong, °0
4. A returning officer rejected a nomination Paper of a candidate
•for election to a Municipal Corporation on the ground that he had an
interest in a contract with the Municipality, though there was a
statutory exception in favour of a tenant holding land under the
Municipality.°'
5. A discharged workman raised an industrial dispute which was
referred to an industrial tribunal which held the dismissal justified.
He then alleged that his employer had promised to reinstate him at the
conclusion of the enquiry ; this was referred to a second tribunal which
found in favour of the workman. But when the first tribunal upheld
the dismissal the workman ceased to be an employee, and his second
grievance was a personal dispute with his employer, not an industrial
dispute which could be referred to an induftrial tribunal.°°
6. An election tribunal rejected a petition on the grounds that
the challans filed only pledged the deposit with the Election Commis-
sioner and did not state that the money was to cover costs of the
respondent. But the circumstances showed that the money was
deposited with the Commissioner as security for costs, and the statute
had been substantially complied with.°°
7. Under the Lease and Rent Control Order, a statutory instru-
ment under the Travancore-Cochin Public Safety Measures Act, the
petitioner had successfully applied for fixation of a fair rent. The
respondent who had purchased the mortgagor’s interest and leased
back appealed to the state Government which set aside the order on the
ground that the statutory instrument only applied when the landlord-
tenant relationship existed, and it did not exist in this case. Certiorari
was granted for error of law.^'
8. A tribunal appointed to decide title and apportion compensa-
tion for acquired land wrongly held that a licensee could claim
60. Father Prior v. I. T. OQ ccr, A.I.R. 1956 Tray. - Co. 240.

61. f alund0rji« v. Ram Naidu, A.I.R. 1957 Hyd. 27.
62. Belsund Sugar to, v. Labour Appcllau Tribunal, A.LR. 1958 Cal. 456.
6J. Bali Ram v. Election Tribunal A.I.R. 1958,J. & K. 54.
64. V. Dyer v. Gathulit Bank, A.LR. 1957 Kerala 109.
86 JU DIGIAL REVIEW THROU t3H WRIT PETITIONS
adverse possession commencing before the death of the person by

whose indulgence he was in occupation.^’
9. A Rent Controller dismissed an application to evict a tenant
on the ground that he was not in arrears of rent, having deposited the
rent with the prescribed authority after the landlord had refused it.
Though this point was decisive against the landlord, the appellate
authority reversed the Rent Controller’s order, without coming to any
finding on it.°6
10. A member of a Municipal Board being in arrears of
municipal taxes was liable to disqualification, but the Director of Local
Bodies wrongly held that an order to that effect could not be passed as
notice had not been served as required by the statute.6'
11. An Industrial Tribunal applied as provision of the Industrial
Standing Orders Act to an industrial establishment, notwithstanding
that the Act does not apply unless there are at least a hundred emplo-
yees.°
12. The Chancellor of Allahabad University decided that a
retiring professor was not entitled to be a member of the Executive
Council on the ground that•his status as a member of the court
under- went a radical alteration, though the statute provided that a
member would continue for a period of not more than three years while
he remained a member of the court.6°
13. A custodian purporting to exercise the powers of “review ”,
interfered with an order of his predecessor, though there was no new
material and no mistake or error apparent on the face of the record.
It was held that “review ” must be given the same meaning as in the
Civil Procedure code.'0
In all the above cases certiorari was granted because of what was
a fairly obvious error of law. A tribunal also errs in law when it
comes to a conclusion of fact supported by no evidence, or where it
comes to a conclusion without adverting to the evidence before it.'1
A case of doubtful authority dealt with an otder passed by a
Customs Official confiscating a vessel or imposing a fine of 4 lakhs in
lieu under sec. 167(12A) of the Sea Customs Act on the ground that it
65. Tristram v. K.L. Bands, A.t.R. 1956 Nag. 11.
66. Vargluse v. Moyideen, A.I.R. 1957 T. C. 177.
67. Raghunath Rat v. State of Rajasthan, A.I.R. 1958 Raj. 91.
68. Malatati Tea Estate v. B. MunJa, A.I.R. 1959 Trip. 8.
69. Ishwari Prasad v. Reg“ulrar A.I.R. 1955 All. 131.
70. Bibi Nama v. R.P. Sinha, A.t.R. 1954 Pat. 43.
71. !ioinpton Parkinson v. ifl Workinm, A.I.R. 1959 S. C. 1089 ; fi‹uoppe v.
N« Mpa, A.I.R. 1954 S.G. 440.
was constructed for the purpose of concealing goods. The court held
that irrespective of knowledge or complicity of the owners or anyone
else, if a vessel so constructed enters Indian waters liability to the pre-
scribed penalty is incurred, but as the official assessed the penalty
without taking into consideration such factors as personal knowledge
or complicity of the owners, there was an error of law apparent on the
face of the record.'°
It may be added that an error of law could be of any law includ-
ing constitutional law as in Gokul ‹Sf Co. v. Asstt. Collector of Sales
Wor,'°• where sales tax was attempted to be imposed on sales exempted
under Art. 286(1) being sales in the course of import into India.
(b) Cases tn whtch certlorart was refused
The following cases illustrate some of the circumstances in which
error of law apparent on the face of the record was unsuccessfully
pleaded :
1. A District judge rejected an application to dismiss an election
petition filed by a candidate whose nomination paper had been reject-
ed, holding him to be a “ candidate at the election ”.'°
2. The Liquidator of a Company being wound up on a creditor’s
petition was allowed to sell the business and goodwill to a new com-
pany, but before the sale deed was executed, the services of certain
workmen were terminated. They made an application under sec. 42
of the Bombay Industrial Relations Act for reinstatement to the Labour
Court. The Appellate Authority set aside the order of dismissal and
directed the Labour Court to deal with the petition on its merits. On
an application to quash, the court upheld the finding of the Appellate
Authority that the new company was the successor of the old one, and
72. Everett Orient Line v. Jasjii Singh, A.I.R. 1959 Cal. 237.
72a. . 7. Co£u/ U Co. 'v. be Asslt. Collector of Sales tax etc. A.I.R. 1960
S.C. 595. It is perhaps unnecessary to add that if a writ is issued by the
High Court on the ground that a constitutional condition was not fulfilled
it will be vacated when the Supreme Court holds that the condition is only
directory.
J• st as cer liorari can be granted when a fundamental right is violated or
on grounds of unconstitutionality, there can also be a refusal of the writ on
constitutional grounds. Thus, where the High Court issued the writ against
the order Of dismissal of an Inspector of Police for failure to consult the
Public Service Commission as enjoined by Art. 320(3) the Supreme Court
in appeal quashed the order of the High Court on the ground that the
provision In Art. 320(3) is not mandatory: vide Stall of Bombay v. D.A.
dlergaMar ,- G. A. 289/1958 ; Supreme .Court Ju dgment on 6-5-1960.
73. Vishwa Miltra v. Dist. judge, A.I.R. 1966 All. 89.
88 JUDICIAL REVIEW THROUGH WRIT PETITIONS
held that the definition of “ employee ” in the statute included one

whose services had been terminated.'4
3. A Customs official seized bars of gold from a passenger on an
aircraft. Statutory provisions empowered him to do this on reasonable
suspicion that they were smuggled.'°
4. An application under the Bihar Buildings (Lease, Rent and
Eviction) Act, 1947, by a landlord to evict a tenant had been allowed
on findings by the two lower authorities (a) that irregular deposit of
the rent with the Collector constituted non-payment, and (b) the land-
lord needed the house for his own requirements. The Commissioner
reversed them on both points. On an application to quash, it was
held that the Commissioner was entitled in law to come to his own
conclusions.'°
5. A cargo of rayon staple fibre was in a ship which caught fire
in Karachi ; it was salvaged and brought to Cochin, where the Customs
Authorities demanded duty based on the invoiced value and refused a
rebate. Whether this decision was right or wrong on the facts,
certiorari could not be granted for error of law apparent on the face of
the record."
6. A Labour Appeal Tribunal held that a Rule of a Municipality
preventing any of its officers from standing for election to any other
Municipality was uftra otrei the Municipal Act. As two views were
possible, this could not be regarded as error of law apparent on the
record.'
7. A Deputy Custodian-General complied with the essential
requirements of the law, but failed to give effect to an executi ve in-
struction which had no statutory authority.°°
8. An Arbitrator appointed under the Hyderabad Co-operative
Societies Act held a former secretary of a Co-operative Association
liable to the Association for a sum of money not accounted for. It was
contended that the statutory provision under which the arbitrato r was
appointed applied only to officers and not to ex-oSicers. The court
held that, even if this was correct it was not sufficient to justify the
issue of a writ .®°
i4. New G•i•rat Cutt n faiths v. Labour Affillati Tribunal, A.I.R. 1957 Bonn. 111.
75. Balchand Patni v. OQcer-in-Charge of Customs, A.I.R. 1956 Trip. 35.
76. Site Dear v. Commissioner, A.I.R. 1957 Pat. 57.
77. Artbw Import I' Export to. v. Collector of Clustoms, A.I.R. 1958 Kerala 357.
78. Baiuk K. Vyas v. burnt Borough Municipality, A.I.R. 1953 Born. 133.
79. S. Kabul Singh v. Niranjan Singh, A.I.R. 1958 Punj. 168.
80. i talreddy v. ]oinl Registrar, A.I.R. 1955 Hyd. 238.
9. Section 2(d)(i} of the Administration of Evacuee Property Act
defines an “ evacuee ” as “ a person who on account of the setting up
of the Dominions of India and Pakistan...has on or after lst March,
1947, left any place in a State for any place outside the territory now
forming part of India ”. The petitioner left India for Pakistan on a
temporary permit issued on August 26, 1949, valid up to August 25,
1950, and did not return. An Assistant Custodian held him to be an
evacuee. 1
10. Inconsistencies between one part of the judgment and

another of an Appellate Authority acting under the Motor Vehicles
Act were alleged but there was nothing to suggest that a provision of
law had been misunderstood. °
11. An Industrial Tribunal has statutory power to give an award
retrospective operation, and if it does so, the fact that from the nature
of the award respective effect cannot be given to it does not create an
error apparent on the face of the record. °
12. Where an Industrial Tribunal had erred in calculating the
gratuity to be paid to an employee whose services had been dispensed
with, this was held not to be an error of law on the face of the record,
but it )s submitted that this is comparable to a finding of fact un-
supported by evidence.®*
13. When the evidence on the record was insufficient to justify
the petitioner’s contention that he was entitled to abatement of income-
tax from the beginning of the financial year up to a specified date on
which he alleged that his business had passed to another, it was held
that there was no error apparent on the face of the record.®°
(c) What Ie the record
The method through which certiorari achieves its object is by
getting seizure of the proceedings in which the impugned administra-
tive action has taken place. Certiorari brings up the records of the
inferior court or other quasi-judicial body for examination by the
superior court so that the latter may be satisfied that such court or
81. Masalkban v. Gust dian, A.I.R. 1959 M. P. 256.
82. Dhalpur to-operative T• ‹S M. Unitn v+ Appellate Authority, A.I.R. 1955 Raj.
19.
83. Bangalore Woollen, Bolton and Silk Mills v+ State of Mysore A.I.R. 1958
Mysore 85.
84. Har«ndra Naih v. ]udge, A.I.R. 1958 Cal. 208.
85. ]anordkan v. I. T. Officer, A.I.R. 1957 Kerax= 2*».
85a. State of BOWbay v. D.A. KorgaMo7 C.A. 289t195,8 k it. Judy
6-/1960,
90 jUDIGIAL REVIEW THROUGH WRIT PEDITIONS
body has not gone beyond its jurisdiction and has exercised its jurisdics
tion within the limits fixed by the law. ° Non-production of record-
completely defeats the very purpose for which writs are issued. When
a superior court issues a rule on an application for certiorari, it is
incumbent on the inferior body to whom it is addressed to produce the
entire records before the court with its return. ^•
A vital enquiry in certiorari, therefore, centres round the meaning
of the word " record ”.
The “ record ” has been defined in England as “ all those docu-
ments which are kept by a tribunal for a permanent memorial and
testimony of its proceedings ”, the document initiating the proceedings,
the pleadings and the adjudication, but not the evidence, nor the
reasons, unless the tribunal chooses to incorporate them. 6b This has
been cited with approval in Calcutta, with the gloss that if a court
approached for a writ of certiorari, itself calls for the record of other
proceedings, although they may be in some way connected with the
proceedings under consideration, the proceedings called for cannot be
said to be part of the record ; an error apparent on the subsidiary
record is not an error of law apparent on the face of the record. But
when an error of jurisdiction is alleged, the objection to having re-
course to a subsidiary record cannot be sustained. ' A somewhat wider
view was taken in an Andhra case ; a grain purchase tahsildar was
held guilty by a tribunal of conniving at the illegal issue of grain by a
miller. A report giving full information to his superiors and recom-
mending action against the miller was not mentioned in the tribunal’s
judgment, so it was held that there was an error of law apparent on
the face of the record ; it was said that all records in a departmental
enquiry leading up to the order of dismissal can be examined in writ
proceedings ; ' the face need not be the surface and it may be a place
of little below, appearing...if the face is scratched ”. ® In a Nagpw
case, ® ° (though this dealt with award of arbitrators) words were cited
from an English case with approval to the effect that error included
any erroneous proposition of law in any document incorporated in the
record such as a note appended by the arbitrator stating his reasons
for his judgment.
86. M|s. Ghaio Mal ‹S- Setts v. State af Delhi, A.I.R. 1959 S.C. 65.
86a. Ibid.
b6b. fi. v. N•rthumbirland tribunal, [1952] 1 All E.R. 122.
87. S.K. Dutta v. A.I. but Mills, A.I.R. 1957 Cal. 514.
88. M. RaWamn•••*’- 4. o“•ut of Madras, A I.R. 1956 A. P. 203.
89,. Haji P vi6 v. Bhikamchand, A.I.R. 1954 Nag. 306.
na. • ‹ie difficulty is sometimes encountered in getting the Government to
produce all relevant records In Gf«iio Mat G Sons v. Stan •f Delhi, A.I.R
i i. Natural juGttce
Certiorari will be granted for violation of any of the rules of
natural justice, which do not materially differ from those recognized in
England. In an Allahabad case they were formulated in these words:
—
1. Every person whose civil rights are affected must have
reasonable notice of the case he has to meet.
2. He must have a reasonable opportunity of being heard in
his defence.
3. The hearing must be by an impartial tribunal, i.e., a person
who is neither directly nor indirectly a party to the case or
who has an interest in the litigation or is already biased
against the party concerned.
4. The tribunal must act in good faith, reasonably and not
arbitrarily .°0
It is sometimes claimed that the rules of natural justice include the
right to reasons for the decision, but it cannot be maintained that any
such right has yet been established in India. j ust as Lord Goddard in
England has urged upon administrative tribunals the necessity of
making “ speaking orders ”, so in India we find the Supreme Court
pointing out that if a Wage Board will give reasons for its decision,
which it is under no statutory obligation to do, this will assist the court
in its task of review.°' It is submitted that, where the nature of the
activities of an administrative tribunal make this feasible, this right
should be given by statute, as, for instance, in sec. 60(2) of the Motor
Vehicles Act, but it is doubtful whether the general interest would be
served by making this a rule to be observed by all administrative
tribunals.
(a) Dlsqualtflcatton for llkellhood of .bias
The impartiality of a tribunal may be impeached on the ground
that it is the judge of its own cause or because a member of the tribu-
nal has a pecuniary interest in the cause or because he has a personal
bias or an official bias against one of the parties.
1959 S.C. 65 at 69, S. R. Das, C.J., had to observe: We strongly deprecate

the attempt on the part of the respondents to bypass the court. We are
bound to observe that the facts appearing on the records before us disclose
a state of affairs which does not reflect any credit on the administration of
the erstwhile Delhi State ”. Here the High Gourt‘s order calling for the
entire records was not answered by the administration.
90. MuLhtar Singh v. State of U. P., A.I.R. 1957 All. 297.
91. Express HewS#apers v. Union, A.I.R. 1958 S.G. 578.
92 y U DIGIAL REVIEW THROUGH WRIT PETITIONS
The principle governing the doctrine of bias applicable to judicial

tribunals are also applicable to quasi-judicial tribunals. These are
well settled and they are : (1) No man shall be a judge in his own
cause ; (2) ,Justice should not only be done but manifestly and un-
doubtedly seem to be done.°'•
These two maxims suggest that if a member of a judicial body is
subject to bias (whether financial or other) in favour of or against any
party to a dispute or is in such a position that bias can be assumed to
exist, it is his solemn duty not to take part in the decision or sit on the
tri bunal. 91b
Where technical non-compliance of rules discovered during
inspection of godowns was the stray instance pitched for cancelling
licence under section 25 of the Bihar Mica Act (10 of 1948), the
Supreme Court held on the strength of the affidavits and records in the
case, that rtrftorari should issue to quash the order as it was affected
by bias on account of political rivalry between the Revenue Minister
and the applicant.°'^
A clear instance of violation of the principle that no man may be
the judge of his own cause was when a full bench of a gram panchayat
allowed an appellant from a conviction by a bench, who was himself a
panch, to sit on the full bench hearing the appeal, "° but the Supreme
Court has pointed out that there is no violation of the principle unless
the power to make the order complained of is put in the hands of the
person who launches the prosecution so that when the’ police initiated
the proceedings and collected the evidence on which a magistrate
passed an order of externment in exercise of a power to do so “ if he
has reason to believe that such person is likely to engage himself in the
commission of an offence ”, there was no denial of the principle.°°
Pecuniary bias, however small, will wholly disqualify a person
from acting as a judge.°'
Whereas bias of the two kinds mentioned above is an absolute dis-
qualification, the position is different when personal bias is alleged. It
is not then necessary to show that his judgment has been affected by
personal bias ; the tests are whether there is a reasonable ground for
assuming the possibility of bias, whether it is likely to produce in
the
minds of the litigant or the public a reasonable doubt about the fair-
ness of the adjudication ; whether the litigant could reasonably
91a. Mineral Deaelopmint Ltd. v. State of Bihar A.I.R. 1960 S.C. 468 at 472.
91b. Xageswara Raw v. Stat» af Andhra Pradesh, A.I.R. 1959 S.C. 1376 at 1378.
92. Ramjag Singh v. State of Bihar, A.I.R. 1958 Pat. 7.
93. Hari v. Dy. Commissioner, A.I.R. 1956 S G. 559.
94. 3fone/r Sof v. Mr. Prep Gland, A.I.R. 1957 S.C. 425.
apprehend that a bias attributable to a member of the tribunal might

have operated against him in the final decision of the tribunal.° 5 It
is immaterial that the prejudice is unconscious but it must first be
established ; where it was alleged that an ofhcial who had heard an
election petition belonged to the respondent’s party was friendly with
the respondents and had been seen driving in a jeep belonging to
them but this was denied in a counter affidavit, the plea of bias was
rejected.°6
Personal bias may arise from close relationship between a member
of the tribunal and one of the parties or hostility of a member arising
out of events happening before or during the ‘inquiry. When a
Superintendent of Police holding a departmental enquiry against a
head constable himself gave evidence which was recorded by a Deputy
Superintendent, the Supreme Court held that the procedure was con-
trary to the rules of natural justice and fairplay.°'
Crrtioreri was refused when the only circumstances urged to
support a plea of personal bias was that the wife of the 'Chairman of
the Election Tribunal whose decision was impugned was‘ a member of
Congress and the applicant had been defeated by a Congress candi-
date.° The Legal Remembrancer of the Bihar Government was
appointed to hold an enquiry under the Public Servants (Inquiries)
Act against an Executive Engineer. Though official bias was also
urged in an application for certiorari another ground was that the
Legal Remembrancer had sanctioned the appointment of a junior
counsel for the prosecution, but it transpired that the Legal Remem-
brances had not taken the initiative in the appointment ; his sanction
was a mere formality. A bare possibility of bias is not enough.°
A plea of personal bias will be rejected if the applicant, with full
knowledge of the relevant facts and his rights, acquiesces in the
enquiry proceedings before the member of the tribunal to whom he
takes objection in his writ petition. A complaint of professional mis-
conduct was filed against an advocate and the chairman of the tribunal
95. Maud Lal (supra).

96. Bhusan v. OWr, A.I.R. 1956 AH. 715.
97. State f U. P. v. Md. Nooh, [1958] S.C.R. 595 ; see also the subsequent case
of Balwaiit Rat G. Trir#di v. Nagnrzânon, A.LR. 1960 S.C. 407 and State of
Assam v. Radha Raman, ; C.A. 410/56 ; S.Ct. judgment on 5-5-1960. Could
not the Supreme Court have granted relief to Md. Nooh under Art. 136 ?
See Baladin v. State of U. P., A.I.R. 1956 S.C. 181 and daripada Day v.
Star of W. Bengal, A.I.R. 1956 S.C. 757.
98. Mwli Dear v Kadatn Singh, A.I.R. 1954 M.B. 111.
99. Gunidiuo Narayan v. State of Bihar, A.I,R. 1955 Pat. 131.
94 y U DTCIAE REVIEYV THROUGH WRIT PETITI ONS
appointed under the Bar Councils Act was a senior advocate who had
once appeared for the complaint in the case out of which the complaint
arose, but the advocate against whom the complaint was made raised
no objection during the course of the enquiry. Though the constitution
of the tribunal suffered from a serious infirmity, the advocate was
aware of the facts and mustbe deemed to be conscious of his legal rights
so waiver was inferred.' 00 But in the case of the head constable who
was dismissed after a departmental enquiry before a Superintendent
of Police who himself gave evidence, though the plea of waiver
was ra2sed, 2t was not accepted.1
When official bias is alleged, the question whether it will justify
interference is more difficult because, in the nature of things, the
official with statutory powers to reach a decision involving an element
of policy has an interest 2n the policy of his department being imple-
mented. What is necessary to suppprt a plea of official bias is
evidence of abnormal desire to uphold a particular departmental policy
sufficient to prevent an impartial adjudication of the dispute.° But 2n
two recent cases before the Supreme Court when objections to a Road
Transport Scheme were heard and disposed of, the Supreme Court
held that the plea of official bias could be sustained against the
Secretary of the Department, who was part of it, but it could not be
sustained against the Minister, who was only primarily responsible for
the disposal of business pertaining to the Department.° Where a
Gollector had cancelled a liquor shop license because the licensee had
diluted liquor in his possession, it was contended that the Gollector, as
head of the District, was vitally interested in preventing loss of liquor
revenue and in checking malpractices of licensees, so there was a
reasonable suspicion in the mind of the petitioner that he would not
approach the case with an open mind, but this contention rnas
rejected, 4
(b) Reasonable notice
There are circumstances in which it would not be reasonable to
expect notice to be given before an order is passed to a person’s pre-
judice, as for instance when a municipality orders a building to be
100. flfoiifi I.of v. Dr. Prein Ghand, [l9â7] S.C.R. 575.
1. State of U.P. v. Md. look, [1958] S.C.R. 595.
2. V•Mata‹halain v. State of Madras, A.I.R. 1957 Mad. 623.
3. Gullapalli v. A. P. State Road Transport Corp., A.I.R. 1959 S. G. SO8
G ullapalli v. State •f A. P., A.I.R. 1959 S.C. 1S76.
4. Commit v. C’«//rctor, A.I.R. 1955 Patna 345,
CERTIORARIININDIA 95
demolished in the interests of public safety or the security of the in-

mates, ^ or where immediate action is necessary to meet a’n emergency
threatening public order, ° in the absence of exceptional circumstances
of this kind, failure to give notice is a violation of the rules of natural
justice. Where a customs officer passed an order of confiscation
without notice, it was held that the principles of natural justice had
been infringed.' The notice must be definite ; it should give the res-
pondent sufficient information of the case he has to meet, so that when
a public servant was called to face a departmental inquiry and was
given notice to show cause why “ disciplinary action such as reduction
in rank, withholding of increments etc.” should not be taken, it was
held the notice was too vague.® A police officer was called to the
Superintendent's Bungalow and given notice to show cause why pro-
ceedings should not be initiated against him for taking a bribe ; he
immediately wrote out a denial ; he was suspended and the examina-
tion of witnesses in proceedings under sec. 7 of the Police Act com-
menced then and there. It was held that hehad not received adequate
warning of the nature of the proceedings to be taken agaznst him.°
The procedure adopted in this case suffered from the additional defect
that the police officer was not given sufficient time to consider his
representation. If a person is in jail, two days’ notice is inadequa te.10
A specific charge and enquiry thereon are necessary, in order to
arrive at a condemnation. In other words notice should be specific
and the hearing should follow such a notice. Thus, in Amalendu’s
case,'°• a statutory departmental enquiry into a railway accident
wherein the appellant, a station master, was also examined was
followed by a notice to show cause why the penalty of reduction in
rank should not be visited on him as he was found responsible for the
accident. Without any subsequent inquiry, he was reduced in rank.
His writ petition under Art. 226 was dismissed by the High Court.
He came under Art. 136 for special leave to appeal and was successful
2n obtaining certiorari to quash the order of reduction, The Supreme
Court held that the general enquiry for neglect of duty or violation of
statutory rules could not take the place of a specific enquiry against
him and he should be given a chance to show his innocence to which
5. A1•J Kumar v. C!alculto Corporation, A.I.R. 1956 Cal. 410.

6. ,BapuYDO v. Star, A.I.R. 1956 Bonn. 300.
7. C!ollector of Customs v. A.H.A. Raliiman, A.I.R. 1957 Mad. 496.
8. Lakshmi Xarain v. A.N. Pwi, A.I.R. 1954 Cal. 335.
9. Lalta Prasad v. I. G•. of Police, A.I.R. 1954 All. 438.
10. Bhanuad v. Saurashvo, A.I.R. 1953 Sau. 3.
10a. Amatemu v. Dist. Trade Sup‹rint•ndeni, N.E. Rly , A.I.R. 1960 S.C. 992.
96 JUDICIAL REVIEW THROUOH WRIT PETITIONS
purpose an enquiry should have been held in respect of the charge

that he was responsible for the accident.
(c) Opportunity to be beard
Generally a respondent has a right to be heard by the tribunal
which makes the order. The Motor Vehicles Act provided for the
nationalisation of motor road transport, but required a scheme to be
published, and obliged the State Government to give a personal
hearing to objectors. When the objections were heard by a secretary
and the decision was taken by a Minister, it was held that this
principle had been violated.' 1 When the statute provides that a
named individual must hear a dispute there can be no question of
delegation, for the objection of the rule audi alteraltt §ar/errt is to ensure
that a person is enabled to place his case before the authority which
makes the decision. I f there is no statutory ban on delegation and
the body which decides is unwieldy (in the 2nstant case it had twenty-
one members), it is no breach of the rule to appoint a small committee
of enquiry to make a report on which the larger body acts.1°
If the authority given the power to determine the question,
instead of exercising his own judgment, acts on the opinion of a
superior officer, without giving the respondent an opportunity of
meeting the superior officer’s views, the rule is violated. 1* When after
the hearing was completed, the Income-tax Appellate Tribunal
accepted information from a representative of the Income-tax Depart-
ment which the assessee was not permitted to rebut, the Supreme
Court said that a fundamental rule of justice had been violated. 14
Any decision based on materials received behind the back of the
affected party, of which he is given no information, and of which he
is given no opportunity to rebut violates the audi alteram parlem rule.'5
But where a party before a tribunal is aware that the tribunal was
relying on information contained in a document, but makes no
objection and does not ask for an opportunity to rebut the statements
contained in it, he will be deemed to have waived his right to make a
representation regarding it.'6
11. Gullapalli v. AMlira Pradesh SiaI• Raad Tr p»ii Work., A. I. R. 1959
S.C. 308.
12. Bijoy Raman v. *Stete Medical Fatally of W. Bengal, A.I.R. 1954 Cal. 193.
13. Mahadayal v. Conn ercia l tax OQcer, A.I.R. 1958 S.G. 667.
14. Drinks out Gotten Mills v. Commissioner of Incom •tas. W. Bengal, [1955) 1
S,G.R. 941.
Muktar Singh V. S(ale of U.P., A.I.R. 1957 All. 297 ; Gobardhan v. State of
Bihar, A.I.R. 1957 Pat. 340.
16. No Prakash Transport to. v. Nm 6ttwdrne Transport Go., A.I.R. 1957 S.C.
232.
G ER TI ORARI IN INDIA 97
In the case last referred to the Supreme Court held that rules of
natural justice vary with the different constitutions of statutory bodies
and the rules prescribed by the legislature under which they act, so
that the question whether in a particular case they have been con-
travened must be judged, not by any preconceived notion of what
they may be, but in the light of the provisions of the relevant Act. In a
case dealing with the dismissal of a public servant after an enquiry
under Art. 311, which specifically demands reasonable opportunity of
showing cause, the Supreme Court said :—
" Stating it broadly and without intending to be exhaus-
tive, it may be observed that rules of natural justice require
that a party should have the opportunity of adducing all
relevant evidence on which he relies, that the evidence of the
opponent should be taken in his presence and that he should
be given the opportunity of cross-examining the witnesses
examined by that party and that no materials should be relied
on against him without his being given an opportunity of
explaining them ”."
This passage was cited in a recent case in which the Supreme
Court upheld the finding of a Industrial Tribunal that an employee
had been improperly dismissed, but the facts were that the employer
had recorded statements of witnesses on a charge of theft in the
absence of the employee ; when the employee was confronted with
the witnesses, the employer asked if the statements they had made
were correct, and said he could amend them if they were not so ; the
employee was not informed of what the witnesses had said.' There was
a clear breach of the rules of natural justice, but it is submitted, not all
the rules in the extract from the earlier case [Union of India v. T.L.
Varma, [l 958] S.C.R. 499] need be strictly observed in every case when a
workman is discharged for misconduct. Rules of natural justice require
a person to be given a fair opportunity to state his case before he is
punished. The Motor Vehicles Act forbids a Transport Authority to
suspend a permit without giving the holder an opportunity to show
cause, but when bus owners on being asked to show cause, practically
admitted overloading, and did not ask for an oral hearing oy for an
opportunity to examine witnesses and the Transport Authority suspended
their permits, it was held that they had not been denied a fair opportu-
nity to state their case.'° A dogmatic and apriori statement on when rules
17. Union of India v. T.R. Vamia, ({958) S.C.R. 499.

18. Phulbari Sea Estate v. Its Workmen, A.I.R. 1959 S.C: 1111.
19. K. Balagangadhar v. G. A. Tr4Qc Board, A.I.R. 1957 Trav.-Co. 141.
98 JU DICIAL RE VIE W THROUGH WRIT P ETITIONS
of natural justice stand violated is difficult. For example, in Mrs. Fedco

(Pte.) Ltd. v. S.N. Bilgrami,!’• what was violation of natural justice to
one learned judge was not a violation to the majority of the Bench
which decided the case.
It is essential that in all administrative or quasi-judicial proceed-
ings, an opportunity to be heard should be given.'°••
Where two alternative procedures are pointed out by law, one of
which is not in substance of inferior efficacy or discriminatory'" b t O
the other, the fair observance of one of them is enough.'°°
Though the Stamp Act provides for revision by the Board of
Revenue of an order of a Revenue Officer levying stamp duty on a
document and imposing a penalty, there is no provision of law, requir-
ing the Board of Revenue to give an oral hearing. When a petitioner
had stated all his grounds of objection to the Revenue Officer’s orders
in his petition for revision to the Board of Revenue, certiorari was
refused when claimed on the ground that the refusal of an oral hearing
violated the rules of natural justice.*° The Motor Vehicles Act provides
for appeals to the State Government from the decisions of the State
Transport Authority inter alia when a permit to operate a bus is
renewed ; the statute requires the State Government to consider the
application, call for and examine the record and pass such orders as it
19a. A.I.R. 1960 S.C. 415.
l9aa. This was denied to an applicant under Rule 54 of the Mineral Concession
Rules (1949) ; the enquiry was quasi-judicial. The Supreme Court quash-
ed the order of the High Court refusing to issue a writ as also its appellate
confirmatory order.
19b. For instance, it was held discriminatory that a dismissed servant was
enquired under the Disciplinary Proceedings (Administrative Tribunal)
Rules, 1951, instead of under the Bihar and Orissa Subordinate Service
Discipline and Appeal Rules, 1935. ( Zñs State o/ Orissa v. Dhirendranath,
Civil Appeal No. 103/1952 ; S. C. judgment on 1-8—1960). r#r iiorori was
issued because Rule 4(1) (a) and (b) of the Tribunal Rules infringed Art. 14
of the Constitution as the delinquent was denied a right of appeal to the
superior authority under the Tribunal Rules, its findings being only
recommendatory, while he would have got such a right under the 1935
Rules.
19c. In S. Kapur Singh v. Union of India, A.I.R. 1960 S.C. 493, the public servant
had examined for himself 82 witnesses and had filed a number of docu-
ments in the enquiry conducted under the Public Servants’Inquiries Act (38
of 1950.) He cannot therefore justifiably complain that he had not a
reasonable opportunity and the enquiry should have been conducted pro-
perly under Rule 55 of Civil Service (Classification and Control and
Appeal) Rules.
20. In r Shantnuga Mudaliar, [1950) 2 M.L.). 399.
thinks fit. A person aggrieved by an order of the Authority had stated
all grounds of objection in his application to Government, but moved
for c rtiorari against Government’s order of dismissal because he had
not been heard in person and his lawyer had not been heard. The
court held that these were not essential ingredients of the requirement
that he must be given an opportunity of showing cause. Whether a
personal hearing should be given would depend on the facts and
circumstances of each case. As for the claim to be represented by
pleader, it was pointed out that, except when it is proposed to pass an
order to the prejudice of a petitioner, no party has a right to appear in
person or by pleader before a Criminal Court when exercising powers
of revision.°' Where objection was taken to a Rule made by Govern-
ment in the exercise of powers under the Bombay Go-operative
Societies Act that in certain proceedings no party should be repre-
sented by legal practitioner, it was held that this was a rule of
procedure ; it did not affect his right to be heard.°°
12. Questions of fact
(a) What Is a question of fact ?

Generally an administrative body is the sole j,udge of those facts
on which it reaches decisions within its competence, so that only
exceptionally will a court exercising the power of judicial review over
an administrative body interfere with its finding of facts. It might
make a more satisfactory categorisation of the grounds of judicial
review to say that in all cases where the court interferes with findings
of fact it does so for error of law, but this might create misunder-
standings about what the courts and jurists have said on this subject.
In England the original basis of the distinction between a question
of fact and a question of law was that the latter was determined by
the judge and the former was left to the jury. With the shrinking of
the scope of jury trial in England and the near-absence of it in Ihdia,
the question arises whether this distinction serves any useful purpose,
particularly in relation to writ petitions, with which juries were never
concerned. Without claiming anything approaching perfection for
them, these two definitions may be tentatively adopted. A question of
fact arises when the issue is whether a phenomenon has happened, is
happening, or will happen, independent of or anterior to any assertion
21. Mababir 3foior Co. v. State off Bihar, A.I.R. 1956 Pat. 437.
22. Mul‹hand v. Mukund A.I.R. 1952 Bonn. 296.
100 j U DICIAL REVIEW THROUGH WRIT PETITIONS
as to its legal effect ;° 3 a question of law arises when the issue is what
rule is applicable to a particular case.°4
This definition of question of law will obviously cover the case
where a medical appeals tribunal misapplies a statutory definition to
facts,° but it is less easy to fit into the category of English decisions
where there is no evidence to support primary findings of fact°° and
where the reviewing court disagrees with the conclusions to be drawn
from them ;"' interference being justified on the ground that the court
was dealing with a question of law. A recent commentator has
remarked that, in relation to jurisdiction to quash by certiorari in
England, it is still too early to define the boundary between law and
fact ; it may vary with the nature of the subject-matter, and with the
court’s opinion of the tribunal’s expertise.°
(b) Facte In proceedings other than on wrlta
Section 100 of the Code of Civil Procedure provides for a second
appeal on the ground that a decision is contrary to law or some usage
having the force of law, but not on facts ; so there is a large body of
case law which, mutatis mutandis will be of assistance in distinguishing
between questions of fact and questions of law. It has been held that
whether a fact has been proved, evidence having been properly
admitted, is a question of fact, but the questions' whether there was
any evidence, whether evidence was admissible, and what is the legal
effect of a proved fact are all questions of law.° The construction of
a document of title and the legal inferences to be drawn from a
document are questions of law.° 0 Whether the court misread the
evidence ; whether the court overlooked important evidence ; 3'
whether it came to its conclusion on inadmissible evidence ;"° all these
are questions of law. Not only is the question whether there is any
evidence to support a finding on a question of law, but a finding baked
on conjecture or surmise is tantamount to a finding on no evidence."°
23. L. L. Jaffe, judicial R«0’tew : Qmstion of Law, H.L.R. Vol. 69, p. 241.
24. L. L. Jaffe, o§. cit., p. 247.
25. 2t. v. M•dicat Appeals Tribunal, cx. p. Burpitt, [1957) 2 Q.B. 584.
26. R. v. Birmingham Apptols Tribunal› 4x. p. Road Haulage Ex«culiti [1952] 2 All
E.R. 100.
27. 2t. v. Medical Appcals tribunal, cx. p. Gilvor«, [1957] 1 Q_.B. 574.
28. de Smith, o§. rif., p. 89.
29. Hafar Chandra Pal v, Shukur, (1918) 45 I.A. 183 ; LL.'R, 46 Gal. 189.
30. S. of State v. Krishna Rna, (1945) 72 I.A. 21 l; A.I.R. 19+5 P.C. 165.
31. Madhabananda v. Rabindronaih, A.I.R. 1954 Orissa 40.
32. Kishau fat v. Sohan Lal, A.I.R. 1955 Raj. 45.
33. Abdul Sbakur v. II twal«shwar, A.I.R. 1958 All. 54.
Whether a finding was reached on an erroneous view of the burden of

proof is a question of law,°' but the credibility of witnesses is a
question of fact.° 5 Provided that it has been reached on evidence to
which none of the objections noted above can be raised, the amount
of damage resulting from wrongful attachment, the amount of mesne
profits, whether an act was done bona ldc, or maliciously and in the
absence of reasonable and probable cause, whether a party had
sufficient or reasonable notice, whether a party acted under coercion,
whether consideration had passed, whether the presumption in favour
of marriage had been rebutted, whether a gift had been accepted,
whether a document was colourable, whether a party had attorned to
another, hether a party was in possession, whether a contract had
been abandoned, and whether property was the self-acquisition of a
Hindu coparcener have all been held to be questions of fact. Whether
there was legal necessity for the alienation of joint family property is a
question of law;°6 whether a Hindu family is joint may be only a
question of fact but it may be a mixed question of fact and law 37
The same is true of adverse possession.° ® Whether a person is a partner or
agent of a firm is a mixed question of law and fact.°° Whether a
particular transaction was a sale or a mortgage is a question of law 10
If we are to draw analogies between second appeals and judicial
review, we must remember that not all questions of law are subject to
judicial review, and that administrative tribunals are not ordinarily
bound by the rules in the Indian Evidence Act. But in Administrative
Law also the legal effect of a fact is a question of law. In proceedings
under the Workmen’s Compensation Act, whether an employee was
injured is a question of fact, but whether the injury arose out of his
employment and during the course of it is a question of law. Whether
a finding of fact is reached on mere surmise and not on the evidence before
a tribunal, is a question of 1aw ,d0$, Where the issue clearly falls
within one category or other, the Indian courts proceed on that
assumption, but when the true category is less certain, the judge if
34. Mohamd v. Ramchandran, [1953] N.L.J. Sh. N. 27.

35. door Mohd. y. Piru Bhai, A.I.R. 1958 Raj. 280.
36. Rajdkar Ethan v. Annapoarna Bat [1953] N.L- J S> N. 120.
37. Basdionaiain ›‹. 2f arutnatifon, (1947) 26 Pat. 592.
38. Lochmeshwar v. Manowar, (1892) 19 Cal. 253.
39. Debt Parskad v. Jai In, A.I.R. 1952 Punj. 284.
40. How 2toj v. ñfat non, A.1.R. 1952 Punj. 181.
40a. Croin§ioii Por£inion (Works j v. Its Wotkmeny A• I •R. 1959 S.C. 1089 a t
1094.
102 jU DICIAL REVIEW THROUGH WRIT PETITIONS
satisfied with an administrative tribunal’s finding of fact is apt to be

astute to discover a question of law which will give him jurisdiction.
Some statutes dealing with administrative action explicitly provide
for review of decisions of administrative tribunals by civil courts.
Section 27 of the Workmen’s Compensation Act, 1923, empowers a
Commissioner to submit questions of law to the High Court and makes
the decision binding on him ; section 30 of the same statute provides
for an appeal tO the High Court where a substantial question of law is
involved and the amount in dispute is not less than Rs. 300/- but the
nature of the appealable orders are such as involve questions of mixed
fact and law. Section 18 of the Land Acquisition Act, 1894, provides
for a reference by the Collector to the District Court, and section 54
provides for an appeal to the High Court ; the proceedings in the civil
courts may involve both questions of fact and questions of law. These
provisions apply to acquisitions under the Indian Forest Act, 1927
(sec. 39) and the Ancient Monuments Preservation Act, 1904
(sec. 20-C), There are similar provisions in the Indian Works of
Defence Act (Secs. 18, 30 and 43), and in the Telegraphs Act (sec. 16).
Though the provisions of the Land Acquisition Act apply to com-
pensation for entry upon land to execute necessary works, compensa-
tion for accidents is determined by the Claims Commissioner, and
section 82F gives a right of appeal to the High Court against an order
refusing compensation or against the amount of compensation. There
are similar provisions in section 1 l0D of the Motor Vehicles Act, 1958,
in regard to compensation for injuries caused in motor accidents.
Section 40 of the Road Transport Corporation Act, 1950, requires
compensation for the acquisition of a motor transport undertaking to
be determined by an arbitral tribunal, from whose decision an appeal
lies to the High Court. When property is requisitioned under the
Requisitioning and Acquisition of Immoveable Property Act, 1952,
the appeal from the order of expropriation lies to the Central Govern-
ment ; the compensation, when not agreed, is fixed by an arbitrator,
but section 11 provides for an appeal within 30 days to the High
Court, and no restrictions are imposed on the grounds of appeal.
There are similar provisions regarding compensation for acts done
under the Atomic Energy Act, 1948, in section 16. The Cantonments
(House Accommodation) Act, 1923, empowers the Officer Command-
ing a Station to requisition houses fit for occupation by military
officers within cantonments, and fix a rent to be paid to the owner,
who, if dissatisfied, may refer the matter to the District. Court,
from whose order an appeal lies to the High Court (sections lS, 19,
and 29).
Taxing Acts usually provide for administrative appeals, and for

reference to the High Court of questions of law, as in the Income-tax
Act, Estate Duty Act, 1953, Wealth Tax Act, 1957, Expenditure Tax
Act, 1957. Statutes providing for the imposition of cesses to create
funds for the development of agricultural activities, such as the Indian
Coconut Committee Act, 1944 (section 12), the Indian Oil-Seeds Com-
mittee Act, 1946 (section 12), the Rubber Act, 1947 (section 12) and the
Central Silk Board Act, 1948 (section 10) provide for an appeal by the
assessee to the District Court.
In other statutes, provision is made for administrative appeals, the
decision of an administrative appellate authority being designated
" final ”. An appeal to the Central Government against the act of
requisitioning or acquisition under the Requisitioning and Acquisition
of Immoveable Property Act, 1952 (sec. 10) and against eviction under
the Public Premises Eviction Act, 1950 (sec. 5) is final. For damages
recoverable under Seaward Artillery Practice Act, 1949 (sec. 6) an
appeal lies from the revenue officer to the Collector, and under the
Manoeuvres Field Firing and Artillery Practice Act (sec. 6) to a Com-
mission consisting of the Collector, a person nominated by the Officer
Commanding and two persons nominated by the District Board.
Though the Sea Customs Act, 1878, provides Yoz a reference to the High
Court when literature alleged to be seditious has been seized in respect
of other acts done under this statute, sec. 188 gives the person aggrieved
a right of appeal to the Chief Customs Authority or such customs
official as the Central Government directs ; section 191 gives a further
right of appeal to the Central Government.
Now that the Industrial Disputes (Appellate Tribunal) Act, 1950,
has been repealed, there is no statutory provision for appeals from the
decisions of authorities established under the Industrial Disputes Act,
1947. But an appeal can lie on special leave to the Supreme Court
under Art. 136. This leaves recourse to the Supreme Court’s jurisdiction
under Art. 136 with its own limitations as the chief available forum for
a person aggrieved by the decisions of such authorities. 40*
(c) Facts ln wrlt proceedings
Though statutory declarations that a decision of an administrative
authority is final cannot prevail against the constitutional powers of the
Supreme Court under Art. 32 and of the High Court under Arts. 226
and 227, the general rule is that findings of fact of an administrative
authority will not be interfered with while exercising the power of
40b. Kaye Oanstruction Gt. Prioafr £fd. v. Its Wurkm n, A.I.R. 1959 S.C. 208.
104 yUDICIAL REVIEW THROUGH WRIT PETITIONS
judicial review ; normally, findings of fact are binding on a cer/iorori

Co u rt. 41
But historically, certiorari was available to quash not only for
defect of jurisdiction but also for error on the face of the record, and
in the l7th century certiorari would quash for errors of no great
moment apparent on the face of the record. Must this be restricted to
error of law, now that point to quash for error on the face of the
record has been revived in the Northumberland case ? **
The statute under which an administrative authority is constituted
may confer jurisdiction depending on the objective existence of facts.
For instance the Madras Buildings (Lease and Rent Control) Act,
1946, empowered a rent controller to give permission to a tenant to
make repairs and deduct the cost from the rent, if he had given notice
to the landlord, who had failed to repair within a reasonable time. The
Madras High Court quashed an order granting permission to deduct the
cost, when the repairs had been made without notice. 4° Where
jurisdiction depends on the objective existence of facts collateral to
those which it is the function of the authority to investigate, the court
will generally consider and decide the question whether those facts
exist.
But the language of the statute may be such that the question of
jurisdiction is placed on the same footing as other questions which the
authority is empowered to determine. For instance the Madras Shops
and Establishments Act, 1947, prescribed conditions of service for com-
mercial employees, but preserved the rights of employees in any
institution, if they were more favourable than those laid down in the
Act. The statute also said that the question whether any part of the
Act applied to an establishment was to be decided by the commissioner
whose decision was to be final. The Supreme Court held that the
Commissioner's finding on such a question could not be impeached in a
certiorari petition.4' Where language of this kind is used, it will be
more difficult to induce the court to go into questions of jurisdictional
fact, for a court exercising the power of judicial review is not acting as
an appellate court, and, provided an authority or tribunal has jurisdic-
tion to decide wrongly as well as rightly, and the court will not review
or reweigh the evidence on which the decision of the inferior tribunal
purports to have been passed.'^
41. Mari Vishnu v. Syid Ahmed, [19553 S.C.J. 267.
42. R. v. North birland Affirms Tribunal is. ft. Shaw, [1952] 1 K.B. 338.
43. Ranta Subbiah v. Clem, A.I.R. 1952 Mad. 590. See also Nolini v. Annada,
A.I.R. 1952 Cal. 112.
44. Pory ‹S• to. a. Gommircial Et ployiis, [1952] S.C.J. 275.
45. T. G• Basappa v. T. Nagappo, A.I.R. 1954 S.C. 440.
In relation to election petitions, High Courts have refused to

review findings on whether an election candidate was disqualified for
non-payment of taxes 4° and whether a voter had cast separate votes for
each of the three candidates, or whether he had given them all to one
candidate.4' When exercising its power to grant special leave to appeal
under sec. 136, the Supreme Court has also declined to reopen findings
of fact recorded by a competent tribunal. It refused to reopen the
question whether the result of an election had been materially affected
by improper rejection of a nomination, ' the question whin a person
became a candidate for an election and whether a sum of money paid
on the eve of an election was a bona fide charitable gift or was intend-
ed to further the donor’s candidature. 4 When a High Court, acting
under Art. 226, quashed a finding of an Election Tribunal that a candi-
date had secured his election by corrupt practices, on the ground that
there was not sufficient evidence to support the finding the Supreme
Court, in appeal, pointed out that there was evidence in support of the
Tribunal’s finding, which was one of fact, and whether it was right or
wrong was immaterial ; the finding must stand. 50 The Supreme Court
has ruled :—
“ Mere formal or technical errors, even though of law, will not
be sufficient to attract jurisdiction under Art. 226. Where the
errors cannot be said to be errors of law on the face of the record,
but are merely errors of appreciation of documentary evidence or
afhdavits, errors in drawing inferences or omission to draw
inferences, or in other words errors which a court sitting as a court
of appeal only could have examined and, if necessary, corrected
and the appellate authority under the statute has unlimited discre-
tion to examine and appreciate the evidence. there is no case
for the exercise of the jurisdiction under Art. 226 ".°'
There are dicta suggesting a wider scope for review of questions of
fact. In one case the Supreme Court said that error of law includes a
finding of fact not supported by any evidence or if it is unreasonable or
pemerse, 5° and in another case that the Supreme Court does not inter-
fere With findings given on a consideration of the evidence, wiless they
46. Waman Rao v. Chief Esycytiaz Officer, A.LR. 1955 Nag. 110 ; fa tell Ahmed
v. Ananl Singh, A.I.R. 1957 Pat. 241.
47. Rama Sewak v. Election tribunal, A.I.R. 1955 All. 163.
48. Surendranaik v. S. Dalip Singh, A.I.R. 1957 S.C. 242.
49. Khadir v. ñfunu corny, A.I.R. 1955 S.C. 775.
50. T. G. Basappo v• xogo9§o, A.I.R. 1954 S.C. 440.
51. Nogcndronsffi v. Commissioner, A.I.R. 1958 S.C. 398.
52. Shri Meenakshi Mills i,td. v. Incotnc-tax Commissioner, A.I.R. 1957 S.G. 49
106 JUDICIAL RRVI BW THROUGH WRTT PETITIONS
are perverse or based on no evidence 53 On the other hand the Supreme

Court has said that when an Industrial Tribunal finds that the relationship
between two persons is that of master and servant, that is a question of
fact and cannot be questioned under Art. 226 unless at the least it is fully
unsupported by evidence, ^* and, in a recent case, that if a decision is one of
fact turning on the appreciation of evidence, the Supreme Court will not
interfere in appeal under Art. 136.” It does not seem possible to cite any
instance in which a court has, while exercising the power of judicial
review, interfered on the ground that a finding of fact was perverse but
instances of interference with findings unsupported by evidence can
easily be found. In one case an Election Tribunal found an elected
candidate guilty of the corrupt practice defined in section 123(7) of the
Representation of the People Act, 1951, in that he had employed
government servants to prepare carbon copies of electoral rolls. There was
evidence that government servants had done this work at the candidate’s
expense, but the Supreme Court held that whether they were employees or
independent contrac- tors was a question of fact, on which no evidence was
available. The finding of the Tribunal was reversed. 5 6 Where a
finding of fact was
based on guess work 5' £tnd off a m e r e possl bl lity u n suppor t e d by
factual data, 5 the court interfered.
Assuming basic facts to be established by evidence, is the conclu-
sion drawn from them by an administrative tribunal a matter of fact
or of law ? The proper legal effect of a proved fact is a question of
law. Whether the proper inference from facts was that a tenancy was
permanent, ^ and whether there had been a dedication or lost grant of
a cremation ground ^ have been held to be questions of law• But it
has been held that whether a transaction was benami is one of fact.
Where an inference from basic facts is an inference of fact only, it is
not open to review, but where the inference is one of law or of mixed
fact and law, the question whether the inference was justified by the
facts is a question of law. 6' The pos ition, as thus stated, leaves a
63. Dhinbandu v. Jadutnoni, A.I.R. 1954 S.C. 411.
54. Dharangadara C!hemical Works t. State ufsaurashtra, A.I.R. 1957 S.C. 264.
55, fi. Cotton Mills v. Commissioner, i nconti- tax and E.P. Fax, A.I.R. 1959 S.C.
270.
56. Hariscbandra Bajpai v. Trilaki Singh, A.T.R. 1957 S.C. 444.
57. Dfi«\‹ hxari C0tton Mills v. Co////nizzioner a inform-box, A.I.R. 1955 S.G.
65.
58. bask'ut N•rvin v. Deo Clmndro, A.I.R. 1954 S.C. 5t3.
59. Dhanna Mol v. f /i okur, A.I.R. 1927 P.C. t02.
60. Za£zmizf/uzr Mitra v. /tongofcf, A.t.R. 1950 P.C. 56.
6l, fiirse Mssnakshi Mills v. Corrmnissionar a Income-tax, A.I.R. {957 S.C. 49.
comparatively wide discretion to the court to accept or refuse jurisdic•

tion by categorising the inference with that object in mind.
Notwithstanding the existence of some evidence, if an inference
of fact is drawn partly from that evidence and partly from material
irrelevant to the object of the enquiry, or on conjecture, surmise and
suspicion, the finding is liable to be reViewed as it is impossible to
estimate the extent to which the mind of the authority was affected by
the inadmissible material. 6° When a tribunal pursues its enquiries
under a misunderstanding of the statutory provisions defining the scope
of the enquiry, its findings are subject to correction for error of law.
Under sec. 100(1)(f) of the Representation of the People Act, 1951, an
Election Tribunal may avoid an election if it is of opinion that the
result of the election has been materially affected by improper accept-
ance or rejection of nominations. But it has been held that the
mere fact that the number of wasted votes exceeded the margin
between the returned candidate and the runner-up do not justify the
conclusion that the election is void. The petitioner must produce
evidence to establish the necessary conclusion and the decision cannot
be based on speculation and conjecture.° 3 Where a tribunal speaks with
two voices, giving inconsistent and conflicting findings, the Supreme
Gourt in special appeal must decide what conclusions are to be drawn
from the facts.6'
Tribunals dealing with industrial disputes enjoy wide discre-
tionary powers to modify service contracts and impose new obligations
on employers, so that their decisions raise special problems of their
own when the Supreme Gourt’s jurisdiction is invoked. In one case
the employer had sought leave to discharge certain employees.
Section 22 of the Industrial Disputes Act contemplates permission being
given if the employer establishes a prima /4ric case for discharge, pro-
vided he is not actuated by improper motives or indulging in victimi-
sation or unfair practices. The employees in question had written
service contracts under which they were liable to be discharged without
notice, and, irrespective of the work to which they were set, they would
retain the status under which they were engaged until they received a
written declaration that they were permanent employees. The Tribunal
accepted the contention of the employees that, though originally
62. Dhirajlal v. Income-Ins Commissiomir, A.I.R. 1955 S.C. 271.

63. Vashisl Harain v. D•u Chandra, A.I.R. 1954 S.G. 213. See also
Liquidators of Pursa v. GommUiancr of Incami-tax, A.I.R. 1954 S.G.
253.
64. P. S. Mills v. Mazdoor Union, A.I.R. 1957 S.G. 95.
108 yUD I CIAL REVIEW THROUGH WRIT PETITIONS
employed temporarily on construction, they had, by being transferred

to productive work, become permanent employees. Reversing the
order refusing permission to discharge, the Supreme Court said that
the Tribunal had not applied its mind to the real question involved
and had acted on irrelevant considerations.65 In another case a
Tribunal professed to have acted in accordance with “ social justice ”,
which, it said, involved equating the rights and obligations of emplo-
yers and workmen to achieve a just formula in computating workmen’s
bonus. Without accepting this, the Supreme Court pointed out that
the Tribunal had failed to apply its own formula, it had ignored the
fact that the workers by strikes and indiscipline had contributed to the
employers’ working losses. They should not have been given a bonus
out of the accumulated profits of previous year merely because the
shareholders’ dividends came from that source. Article 136 includes
an overriding power to interfere when a Tribunal has dealt arbitrarily
with or refused a fair deal to a party before it.6°
(d) Absence of evidence
In one case the evidence disclosed that the employer had adopted
a reorganisation scheme in all parts of India where his business was
conducted but the Labour Court held that he had done this out of
malice towards his Calcutta employees and as an excuse to get rid of
them. The Supreme Court said that if the scheme had been adopted
for reasons of economy and convenience, the fact that some employees
were discharged would have no bearing on the employer’s bono fides.
An appellant under Art. 136 could not normally challenge the findings
of a labour court, but if it was not supported by and legal etidence and
was wholly inconsistent with the material on the record, the Supreme
Gourt would set aside the findings.°' But in another case the Supreme
Court said that the Evidence Act has no application to enquiries con-
ducted by tribunals though.they are judicial in character. They should
observe the rules of natural justice, i.i., a party should have the oppor-
tunity of producing all relevant evidence ; the evidence of his opponent
should be taken in his presence ; he should be given the opportunity to
cross-examine the witnesses examined by his opponent and no material
should be relied on without his being given an opportunity to explain
65. Rohtas Industries v. Brijnandon, A.I.R. 1957 S.G. 1.

66. Muir Mills v. Anti Mills fozdoor Union, A.I.R. 1955 S.C. 170.
67. D. Macropalla ‹S Go. Priuati Lid. v. D . Macropollo ‹I Co., A.I.R. 1958 S.G.
1012.
68. Cfnion o/radio v. T. B. Bernie, A.1.R. 1957 S.C. 882.
them.6 In another case the Supreme Court has said that quasi-judicial
tribunals cannot be tied down to technical rules of evidence.°° It
would seem that the expression any legal etidence referred to above was
not intended to mean " matter admissible in evidence under the
Evidence Act ” ; it was used to indicate the court’s disapproval of the
illogical conclusion drawn by the Labour Court from the facts. The
expression evidence legally adduced has also been used in the Supreme
Gourt, ' 0 but this does not mean, it is submitted, that quasi-judicial
tribunals must only rely on matter admissible under the Evidence Act.
It was cited in a Calcutta case, in which it was pointed out that the
Evidence Act, by sec. l applies to all judicial proceedings before any
court, and that a court includes all persons except arbitrators legally
authorised to take evidence." Apart from the fact that the statutory
rules under the Industrial Disputes Act empower a tribunal to accept
evidence at any stage of the proceedings in such manner as it thinks
fit, many kinds of administrative tribunal do not act judicially. The
Madras High Court had held that Industrial Tribunals should not be
hampered by the Evidence Act and could rely on data apart from
evidence adduced by the parties.'° The matter would seem to call for
regulation by statute but it seems clear that whether a tribunal is
empowered to ignore the technical rules in the Evidence Act or not,
judicial review will only be granted in the absence of material which a
reasonable educated man would deem relevant to the issue.
The Supreme Court held in a tax assessment matter that it could
intervene in appeal only “ when the fact finding authority had acted
without any evidence or upon a view of the facts which could not
reasonably be entertained or the facts found are such that no person
acting judicially and properly instructed as to the relevant law would
have come to the determination in question ”.'°•
(e) Substantial evidence
A High Court relying on two American cases '° remarked that
judicial control might be exercised on the ground that the administra-
tive determination was not based on evidence of rational probative
69. Dlmkesh‹nari Cation Mills v. Commissioner of7n‹o t•-law, A.I.R. 1955 S.C. 6J.
70. By Mahajan, ,j., in Bharat Bank v. Employers› A.I.R. 1950 S.C. 188 at 197.
71. Burrakar Coal No. v. Labour Appeal Tribunal, A.LR. 1958 Cal. 226.
72a. frâd Parish O• to. v. Gemini:mono of Incorts•Ias, Bombay, A.I.R. 1956 S.G,
554 at 558.
*T
73. J stph Stock Wards v. U. s./ t!<S5) C0 R8QLidalad £'•dison Co.
v. 298 U•S. 8 ;
Nationat labour Board› (1938) 305 U.S. 197.
i io yU DICIAL REVIEW THROUGH WRIT PETITIONS
force ; in the instant case there was no substantial evidence.

Admittedly a High Court acting under Art. 226 is not concerned with
the weight of evidence but the substantial evidence rule is a test of the
rationality of the determination for it requires such evidence as a
reasonable man would accept as adequate for a conclusion." The
administrative authority in that case had made no attempt to call for
evidence ; there had been no pretence of anything approaching a
trial ; his finding was based on his private enquiries, visual inspection
and arithmetical calculations made rx-Earle. It would have been
sufficient to invoke the “ no evidence ” rule to dispose of this case.
There does not seem to be any other Indian case in which the substan-
tial evidence rule has been referred to.
But an Indian commentator has said :—
It is suggested that India may do well to follow the American
rule regarding the scope of cir/iorori rather than the English.
Under the no evidence rule nothing but a nominal control is
possible. Few, indeed, will be the decisions which could be
quashed under this. It is not adequate. If judicial control has
to be anything more than a symbol, the ‘ substantial evidence
rule has to be adopted.” ' 6
On the other hand the Law Commission has recommended allow-

ing an appeal on facts to an independent tribunal presided over by a
person qualified to be a High Court ,Judge, assisted by a person with
administrative or technical knowledge, '° and the Franks Committee
on Administrative Tribunals and Enquiries advised against the intro-
duction of a right of appeal to the courts from administrative decisions
on questions of fact, as this would constitute an appeal from experts to
non-experts ; instead it recommended appellate tribunals except where
the tribunal was strong and well-qualified." The Franks Committee
also recommended that there should be no statutory provisions exclud-
ing cir/iorori, prohibition and mundomw ' and the Law Commission
advised against the restriction of the writ jurisdiction.' There
appears then to be a choice between creating new appellate adminis-
74. British Mcdical Shares v. Bhagiratb Mat, A.I.R. 1955 Punj. 5.

75. A. T. Markose, ]udicia! Canvol af Ad rnia isirali0c Action in India, pp. 257,
258.
76. Law Commission, 14th Report, (Rcform of judicial Administration j, Vol. II,
p. 694.
77. Cmnd. 218 (1957), 25.
78. fi. p. 27.
79. Law Commission, l4th Report, Vol. 11, p. 670.
trative tribunals or imposing the substantial evidence rule on the

courts. The recent abolition of the Industrial Disputes Appellate
Tribunal, partly because of the delays in proceedings before it, is not
an argument in favour of the first alternative. Reasonably speedy
definitive decisions in administrative matters are essential but speedy
disposal of administrative business is not going to be achieved by
creating new administrative appellate tribunals. The objections of
the Franks Committee that an appeal to the courts on facts in an
appeal from experts to non-experts is easily met. Introduction of the
substantial evidence rule is not going to turn review into appeal. The
court is not going to substitute its own opinion on facts from the
finding of the administrative body, nor interfere in quest ions which
only experts can determine. All that the substantial evidence rule
involves is that the court shall be satisfied that the decisions has been
reached on evidence which a reasonable man would regard as ade-
quate. It is only a means to ensure that the Court can effectively
discharge its duty to interfere “ when. a person has been dealt
with arbitrarily......or a tribunal......has not given a fair deal to a
litigant“’ and “ to see that injustice is not perpetrated or perpe•
t uated ^’ 80
A corrollary to the introduction of this substantial evidence rule
is the necessity of “ speaking orders ”, without which it is difficult to
exercise the present limited power of judicial review over facts. The
Supreme Court has pointed out the necessity of administrative
authorities giving reasons for their decisions, even when under no
statutory obligation, ' and the Law Commission has made a recom-
mendation in the same sense. ° The enactment of provisions on the
lines of section 12 of the (English) Tribunals and Enquiries Act 1958,
which generally requires statutory tribunals, on reque st, to give
reasons for their decisions deserves consideration.
(f) Evidence not on the record
Though High Courts have held that controversial points of fact
which cannot be decided without elaborate enquiry and reference to
evidence which parties may have to lead cannot be taken up under
Art. 226, both when a fundamental right is involved, 83 and also
when the jurisdiction is invoked “ for any other purpose ”, ' the
80. Dhakeshwari Cotton Mills v. Clom0iissioner, A.I R. 1955 S.G. 65.
81. Exprzxs Hzwspapirs Ltd. v. Union of India, A.I.R. 1958 S.G. 578.
82. Law Gommission, 14th Report, Vol. II, p. 694.
83. Man•barlal v. State, A.I.R. 1956 Pepsu 14.
84. Miralal v. State of Bilmr, A.I.R. 1957 Pat. 109; So of T un5ah v. SuMi5 m
Singh, A.I.R. 1957 Punj. 191.
112 yU DICIAL REVIEW THROUGH WRIT PETITIONS
Supreme Court has held that the Supreme Court cannot decline
jurisdiction because a question of fact is involved in a writ petition
relating to a Fundamental Right. That this may encourage the
filing of writ petitions instead of suits is irrelevant. If the petition
and affidavit is not convincing, so that the Court is not satisfied that a
breach of a Fundamental Right has been established, it may dismiss the
petition, because the burden is on the petitioner, but in appropriate
cases it may give the parties an opportunity to file further affidavits, or
issue a commission or set the application down for trial on evidence.
This was said in regard to a writ petition to restrain the application
of a new statute, on the ground that it offended against the
Fundamental Right to equal protection of the laws, but in another
case where jurisdictional facts were in question, the Privy Council held
it was proper to study affidavits and examine the depo-
n ents.@6
It would seem then that in writ petitions the record may be
supplemented by affidavits and depositions of witnesses. When a
fundamental right is involved, a party cannot insist on his right to call
evidence, but he can insist on his affidavits being read ; whether further
evidence will be admitted seems to be in the discretion of the court. If a
High Court is exercising writ jurisdiction “ for any other purpose ” the
position would seem to be similar, save that it would probably be more
difficult to induce the court to exercise its discretion to call for further
evidence. The Law Commission has recommended that High Courts
should frame rules to enable them to record evidence and determine
questions of fact when hearing writ petitions. ®'
85. K. K. Kothunni’s case, A.I.R. 1959 S.C. 725.

86. £tn§cror v. Sibnath Bannirjii, [1945] F.C.R. 195.
87. Law Commission, lath Report, Vol. II, p. 670.

Certiorari Writ

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Certiorari Writ

Caricato da

Copyright:

Formati disponibili

CHAPTER IV

of the proceedings in some cause or matter pending before an

3. Judlclal and quael-judlclal proceedlnge

5. Ryols of Garabandho v. famindar, A.I.R. 1943 P. C. 164.

12. Nagendranath Bora v. C!ainmissioner A.I.R. 1958 S.C. 398.

inaugurate State enterprise over a particular area was published and

24. Hanuman Bar v. S.D.0., Srinagar, A.I.R. 1952 Assam 115.

Income-tax Officer directing an assessee to produce his account

14. Orders of the Board of Censors under the Cinematograph

3. Order of Government requisitioning property under the Bombay

65. Bombay v. Khushaldas, [1950] S.C.R. 621.

14. Order of a‘ Commissioner of Police under the Indian Defence

a corporation cannot be a citizen ' and that it is not entitled to a

9t. Election I ommission v. Sada V•nkaia Ra», [1953) S.C.R. 1144.

in special leave has been refused in cases of want of jurisdiction when

95g. See also A. M. Allison v. B. L. ten, A.I.R. 1957 S.C. 227.

2. State of Orissa v. Madangopat, [1952] S.C.R. 28.

6. mil/Jzog/ni v. /toyo 4oinor, A.I.R. t959 S.G. 422.

0. In exercising the writ jurisdiction, the courts act in a super-

a statute is void for infringement of a constitutional limitation, such

and one employee ; an industrial dispute involves a claim on behalf of

55. Mushtan v. Patil, I.L.R. [1952) Born. 995.

on one interpretation which the High Court found to be wrong. The

3. An Income-tax Officer held that donations to a Prior of a

60. Father Prior v. I. T. OQ ccr, A.I.R. 1956 Tray. - Co. 240.

adverse possession commencing before the death of the person by

held that the definition of “ employee ” in the statute included one

10. Inconsistencies between one part of the judgment and

1959 S.C. 65 at 69, S. R. Das, C.J., had to observe: We strongly deprecate

The principle governing the doctrine of bias applicable to judicial

apprehend that a bias attributable to a member of the tribunal might

95. Maud Lal (supra).

demolished in the interests of public safety or the security of the in-

5. A1•J Kumar v. C!alculto Corporation, A.I.R. 1956 Cal. 410.

purpose an enquiry should have been held in respect of the charge

17. Union of India v. T.R. Vamia, ({958) S.C.R. 499.

of natural justice stand violated is difficult. For example, in Mrs. Fedco

12. Questions of fact

(a) What Is a question of fact ?

Whether a finding was reached on an erroneous view of the burden of

34. Mohamd v. Ramchandran, [1953] N.L.J. Sh. N. 27.

satisfied with an administrative tribunal’s finding of fact is apt to be

Taxing Acts usually provide for administrative appeals, and for

judicial review ; normally, findings of fact are binding on a cer/iorori

In relation to election petitions, High Courts have refused to

are perverse or based on no evidence 53 On the other hand the Supreme

comparatively wide discretion to the court to accept or refuse jurisdic•

62. Dhirajlal v. Income-Ins Commissiomir, A.I.R. 1955 S.C. 271.

employed temporarily on construction, they had, by being transferred

(d) Absence of evidence

65. Rohtas Industries v. Brijnandon, A.I.R. 1957 S.G. 1.

force ; in the instant case there was no substantial evidence.

On the other hand the Law Commission has recommended allow-

74. British Mcdical Shares v. Bhagiratb Mat, A.I.R. 1955 Punj. 5.

trative tribunals or imposing the substantial evidence rule on the

85. K. K. Kothunni’s case, A.I.R. 1959 S.C. 725.

Potrebbero piacerti anche