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Sharad Bansilal Vakil Vs. Sankalchand Himatlal Sheth and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR1019
AppellantSharad Bansilal Vakil
RespondentSankalchand Himatlal Sheth and ors.
Cases ReferredNaresh v. State of Maharashtra
Excerpt:
- - the judicial power of the existing high courts at the commencement of the constitution conferred by the material clauses of the letters patent as well as by the then extent laws made by the appropriate legislature is thus saved by article 225 read with section 223 of the government of india act, 1935, section 106 of the government of india act, 1915 and section 9 of the high courts act, 1861. articles 226 and 227 respectively invest the high court with the power to issue writs and the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. besides the power and jurisdiction accordingly saved and conferred upon the high court under the constitution, the high court is also invested with the power of.....order:inspection of judge's minute book cannot be given. copies of the minute books cannot, in my opinion, be given. it does not form a part of the record (see 9 b.l.r. 1042). if supreme court wants it, it will be sent there.sd. s.h. sheth. j,16-7-80sd. s.l. talati, j.16-7-80.7. the substance of the order made as above was communicated to the petitioner by a communication dated july 19, 1980 issued under the signature of the assistant registrar of this high court (respondent no. 5) and the petitioner was informed that:.their lordships have, on consideration of your request, directed me to inform you that the inspection of the judge's minute books cannot be permitted nor the copies of such notes taken down by their lordships in the minute books can be supplied. i am also to inform you that.....
Judgment:
ORDER

:

Inspection of Judge's minute book cannot be given. Copies of the minute books cannot, in my opinion, be given. It does not form a part of the record (See 9 B.L.R. 1042). If Supreme Court wants it, it will be sent there.

Sd. S.H. Sheth. J,

16-7-80

Sd. S.L. Talati, J.

16-7-80.

7. The substance of the order made as above was communicated to the petitioner by a communication dated July 19, 1980 issued under the signature of the Assistant Registrar of this High Court (respondent No. 5) and the petitioner was informed that:.Their Lordships have, on consideration of your request, directed me to inform you that the inspection of the Judge's Minute Books cannot be permitted nor the copies of such notes taken down by Their Lordships in the Minute Books can be supplied. I am also to inform you that if the Supreme Court wants the notes in question the same would be supplied to them.

It might be stated that after the receipt of the aforesaid communication from the Assistant Registrar, the petitioner applied for a certified copy of the text of the order made by the learned Judges and that thereupon a certified copy of the said order, which has been extracted above, was supplied to him.

8. It is under these circumstances that the present petition has been instituted by the petitioner for the relief's set out above. Be it clarified at this stage that the tenor of the petition suggests-and in response to a query specifically made to the petitioner at an earlier stage of the hearing he in terms clarified-that the petition is instituted by him in his personal capacity and that it has not been filed in his capacity as an Advocate representing the Union of India and its other officers who were the respondents in the original writ petitions.

9. When the matter reached preliminary hearing before us on an earlier occasion, at the outset we pointed out to the petitioner, who was then appearing in person, that it appeared to us that there was an insurmountable difficulty in his way which went to the root of the matter and touched the maintainability of the petition and that the difficulty was that the impugned order dated July 16, 1980 made by the two learned Judges, holding that inspection of Judge's minute book and copies of the minute book cannot be given as it does not form a part of the record, is a judicial order of the High Court in exercise of its judicial power and that it is, therefore, not amenable to writ jurisdiction. After the matter was heard for some time, the petitioner orally applied for an adjournment on the ground that he required time to prepare himself on the point and/or to engage a Counsel to represent him. The application was granted and the matter has again reached preliminary hearing today.

10. Mr. V.M. Tarkunde appears on behalf of the petitioner now and he addressed us at length on the question of the maintainability of the petition. Counsel fairly stated to the Court that if, in fact and in law, the impugned order was a judicial order made by the learned Judges in exercise of their Judicial power, then the writ petition would not be maintainable because such a judicial order cannot be challenged in a collateral proceeding such as a writ petition and that a writ of mandamus or a writ in the nature of mandamus cannot issue to quash such a decision. Counsel, however, strenuously urged that the impugned order was not a judicial order made by a Division Bench of this Court in exercise of its judicial power but it was merely a ministerial order passed by the two learned Judges in exercise of their administrative powers and that, therefore, the petitioner would be entitled to relief in the writ jurisdiction, if on merits it is found that there is substance in the cause. Having given our most anxious consideration to Counsel's submissions on the point, we are unable to uphold the same for reasons which follows.

11. Under the Constitution, there is to be a High Court for every State consisting of a Chief Justice and such other Judges as the president may from time to time appoint. The High Court is to be a Court of record with all powers of such a court including the power to punish for contempt of itself (see Articles 214, 215 and 216). Article 225 preserves the jurisdiction of existing High Courts, subject to the provisions of the Constitution and of any law made by the appropriate Legislature. The judicial power of the existing High Courts at the commencement of the Constitution conferred by the material clauses of the Letters Patent as well as by the then extent laws made by the appropriate Legislature is thus saved by Article 225 read with Section 223 of the Government of India Act, 1935, Section 106 of the Government of India Act, 1915 and Section 9 of the High Courts Act, 1861. Articles 226 and 227 respectively invest the High Court with the power to issue writs and the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Article 228 confers upon the High Court the power of transfers of certain cases pending in courts subordinate to it. Besides the power and jurisdiction accordingly saved and conferred upon the High Court under the Constitution, the High Court is also invested with the power of adjudication, original or appellate, of disputes between citizens and citizens as well as between citizens and the State under laws made by the appropriate Legislature under the Con situation. It would thus appear that the High Court is a court of record created by the Constitution and that it is invested with the judicial power of the State under the Constitution as well as under the laws made by the appropriate Legislature.

12. In addition to preserving the judicial power of the existing High Courts at the commencement of the Constitution, Article 225 also preserves the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, subject to the provisions of the Constitution and of any law made by the appropriate Legislature. It might be recalled that the legislative power of the High Court has its genesis in the relevant clauses of the Letters Patent and Section 13 of the High Courts Act, 1861 and that a similar provision was to be found in Sections 106 and 108 of the Government of India Act, 1915 and Section 223 of the Government of India Act, 1935. In addition to preserving the legislative power at the commencement of the Constitution, Article 227(2) and (3) empowers the High Court to make and issue general rules and prescribe forms for regulating the practice and proceedings of Courts subject to its superintendence and to settle table of fees to be allowed to the staff of and legal practitioners practicing in such Courts, subject to the previous approval of the Governor. Besides the legislative power thus conferred by the constitutional enactments, the High Court has also been invested with legislative power under Section 122 of the Code of Civil Procedure 1908, Section 23 of the Contempt Courts Act, 1971, Section 158 of the Patents Act, 1970 and other laws.

13. The Constitution also vests in the High Court's administrative power besides the judicial and legislative powers. Under Article 237(2), the High Court is empowered to call for returns from all the subordinate Courts. The authority to issue necessary administrative directions general or special - to the subordinate Courts upon scrutiny of such returns inheres, in the High Court by virtue of the said provision. Under Article 235, the High Court is vested with the sole control over the subordinate Courts and, broadly speaking, the control jurisdiction empowers the High Court, amongst other things (1) to hold an inquiry into the conduct of a member of the subordinate judiciary, (2) to suspend from service a member of the subordinate judiciary with a view to holding a disciplinary inquiry, (3) to impose upon him punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Article 311(2), (4) to transfer, promote and confirm persons holding posts in the Judicial Service inferior to that of District Judge, (5) to transfer District Judges and to recall them from ex-cadre posts or from deputation on administrative posts, (6) to award selection grade to the members of the Judicial Service, including District Judges, and to order further promotion confirmation of District Judges after their initial appointment to the cadre, and (6) to order premature or compulsory retirement of Judges of the District Courts and subordinate Courts.

14. It would thus appear that the High Courts have to perform multifarious functions which are entrusted to them under the Constitution as well as under the laws made by the appropriate Legislature. It would be pertinent to note, however, that these multifarious functions have to be performed by the High Courts for and in relation (of the administration of justice, which is a term of wider import than mere adjudication of causes from the seal of justice. Even an administrative function, when it is required to be performed by the Chief Justice or by the High Court, is, therefore, consistently regarded by the statutes as a function in the administration of justice (see in this connection Clause 8 of the Letters Patent for the High Court's of Calcutta, Bombay and Madras, Section 9 of the High Courts Act, 1861, Section 106 of the Government of India Act, 1915 and Sections 223 and 224 of the Government of India Act, 1935.) However, as observed in Baradakanta v. Registrar Orissa High Court A.I.R. 1974 S.C. 713 at p.722, though Judge's integrity and authority are not divisible in the context of administration of justice, his functions are divisible and it becomes necessary, therefore sometimes to ascertain the source of power underlying a particular action of one or more Judges or of the High Court as a whole. The task is not that complex or difficult because there is an indefinable, yet appreciable, difference between the performance of the various functions entrusted to the High Court and to the Judges constituting the High Court. Often the line of distinction is thin, but the principles for ascertaining the true character of the functions are well-settled. The question, in the instant case, is whether the impugned order amounts to a judicial or an administrative decision and it would be proper, therefore, to confine attention to the distinction between those two kinds of decisions.

15. Broadly speaking, it might be stated that the decisions recorded by Courts of law in cases brought before them judicially fall obviously under the category of judicial decisions. A judicial decision is the act of a body or authority invested by law with the authority to determine questions or disputes affecting the rights of citizens. However, when Judges presiding over Courts reach decisions in certain administrative matters in a purely executive manner, their decisions fall clearly under the category of administrative or executive orders. The crucial question, which must be considered, therefore, in order to determine whether the determination by a Judge in a given case is judicial or administrative, is whether the decision was taken in exercise of the judicial power. And that takes us to the question: What is judicial power?

16. The Judicial Committee of the privy Council in Shell Company of Australia Ltd v. Federal Commissioner of Taxation (1931) Appeal Cases 275 at page 295 quoted with approval the following definition given by Criffith, C.J. in Huddari, Parker & Co. v. Moorehead:

I am of opinion that the words 'judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

It would thus appear that the exercise of judicial power postulates the presentation of a dispute as to rights between the parties in a formal way to a duly constituted organ of the State and the authority to give a binding and authoritative decision in regard to such dispute. In Prentis v. Atlantic Coast Line Co. Ltd. (1)(8) 211 U.S. 210 Holmes, J. observed at pages 226-227 as follows:

A judicial inquiry investigates, declares, and enforces liabilities as they stand in present or past facts and under laws supposed already to exist. That is its purpose and end.

The further postulate imported by the aforesaid definition is the final determination of the dispute under the extent laws.

17. The leading decision in our country which distinguishes an administrative act from a judicial act is in Province of Bombay v. Khushaldas S. Advani : [1950]1SCR621 . Kanis, C.J. held in that decision at page 226:

Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed, in my opinion, the conditions laid down by Slesser LJ. in his judgment correctly bring out the distinction between a judicial or quasi-judicial decision on the one hand and a ministerial decision on the other.' The conditions laid down by Slesser, L.J. to which the learned Chief Justice made a reference are to be found in The King v. London County Council 1931: 2 K.B. 215 at p. 243 where the learned Lord Justice held that four conditions were required before a certiorari may issue, namely, wherever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority, a writ of certiorari will issue.

18. Mahajan, J. observed in that case at pp. 234-35:

The question, however, whether an act is a purely ministerial or a judicial one depends on the facts and circumstances of each case...the question whether an act is a judicial or a quasi-judicial one or a purely executive act depends on the terms of the particular rule, the nature, scope and effect of the particular power in exercise of which the act may be done. ...if the decision of all the questions is to be arrived at by a subjective process then there can be no doubt that the act of the Government in making the requisition will be a purely ministerial act arid will not fall within the mischief of the writ; if on the other hand, these questions of fact and law have to be determined objectively, then the inference is irresistible that the determination will be of a judicial nature. The method and manner of reaching it will be a judicial process. It will consider a proposition and an opposition; both sides of the question will have to be considered, i.e. the Governments' point of view as well as the point of view of the person affected and the determination would only be reached an a consideration of facts and circumstances.

Mukherjea, J. held at pp. 239-40:

There cannot indeed be a judicial act which does not create rights or impose obligations; but an act, as has been already pointed out, is not necessarily judicial because it affects the rights of subjects. Every judicial act presupposes the application of judicial process. There is a well-marked distinction between forming a personal or private opinion about a matter, and determining it judicially. In the performance of an executive act, the authority has certainly to apply his mind to the materials before him; but the opinion he forms is a purely subjective matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenced by any extraneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other hand, the process or method of application is different. The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method.' Robson's Justice and Administrative Law p. 83. It involves a proposal and an opposition, and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. Vide R. v. London County Council 1931(2) K.B. 215 at p. 233. It is not necessary that the strict rules of evidence should be followed; the procedure for investigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at must not be his 'subjective', 'personal' or 'private' opinion. It must be something which conforms to an objective standard or criterion laid down or recognised by law, and the soundness or otherwise of the determination must be capable of being tested by the same external standard. This is the essence of a judicial function which differentiates it from an administrative function; and whether an authority is required to exercise one kind of function or the other depends entirely upon the provisions of the particular enactment.

Das, J. held at pp. 259-60:

What are the principles to be deduced from the two lines of cases I have referred to? The principles, as I apprehend them, are; (i) that if a statute empowers 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 Us and prima fide, 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 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.

In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor imposes upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.

19. It might be mentioned that though both Mahajan and Mukherjea, JJ. were in minority, so far as the ultimate decision rendered in the afore said case is concerned, the tests evolved by them do not conflict with and have substantially the approval of the Court. That is the view taken in two later decisions of the Supreme Court, in one of which the test evolved by Mukherjea, J. and, in the other, that evolved by Mahajan, J. have been referred to and cited with approval.

20. It would thus appear that the resolution of the question whether a decision is judicial or ministerial depends upon the facts and circumstances of each case and on the terms of the statute and on the nature, stop; and effect of the particular power in exercise of which the decision is arrived at. If the power which is exercised is Judicial, that is to say, the power to determine a controversy, which is formally presented to a duly constituted statutory authority, by a binding and authoritative decision (ffhithec subject to appeal or not), and if the decision on questions of fact and law has to be objectively arrived at after considering a proposition and an opposition and upon application of a body of rules or principles and according to the rules of reason and justice and not subjectively upon personal and private opinion, the decision would be judicial. It is not necessary that in every case strict rules of evidence should be followed; the procedure for investigation of facts or decisions on points of law may vary according to the requirement of a particular situation. While the presence of two parties before the deciding authority will ordinarily clothe the decision with judicial character, provided other requirements are present and satisfied, the absence of two such parties is not decisive in determining the character of the decision. The ultimate test would appear to be whether the authoritative decision upon the controversy formally presented to a duly constituted organ of the State has been objectively arrived at after due investigation of present or past facts and upon the basis of objective standard of criterion laid down or recognised by law so that the soundness or otherwise thereof is capable of being tested by an external standard.

21. Before we proceed to consider the question whether the decision impugned in this case is judicial or ministerial on the basis of the afore said test, it would be necessary to refer to the material rules governing the practice and procedure of this Court framed under the statutory authority conferred on the High Court. Those rules are the Bombay High Court Appellate Side Rules, 1969 (hereinafter referred to as the 'Rules'), which still continue to be the law in force.

22. Part I, Chapter I of the Rules prescribes the jurisdiction of single Judges and Benches of the High Court. Rule 1 provides that the Civil and Criminal jurisdiction of the Court shall, except in cases where it is otherwise provided for by any law in force or by the Rules, be exercised by a Division Court consisting of two or more Judges. Rule 2 provides that save as otherwise expressly provided by any law in force or by the Rules, a single Judge may dispose of the several matters enumerated in the said Rule. One of the matters enumerated therein is applications under Article 226 of the Constitution of India except those where vires of any provision of a statute or a statutory Rule are challenged and except those relating to the Acts therein specified. One of the Acts specified is the Central Excises and Salt Act, 1944. It is by virtue of this rule that the original writ petitions, which related to the Central Excises and Salt Act, 1944, were heard and disposed of by the Division Bench consisting of the two learned Judges who are respondents Nos. 1 and 2 herein.

23. Chapter VIII of the Rules is entitled 'Search and Copies.' Rule 1 thereof provides that an application for search shall bear the court fee stamp of the prescribed value and shall state precisely the number of the proceeding the record of which the search is sought; and if the application is for the search of a register prescribed by the Rules, the description of and the year of the register. Rule 3 provides that an application for search presented by a third party, unless presented through an Advocate of this Court, shall be accompanied by an affidavit stating the grounds on which the search is required. The application may be rejected if the grounds thereof are considered insufficient. Rule 4 provides that all applications for search shall be dealt with by the Assistant Registrar. Rule 5 provides that on an application bearing court fee stamps of 20 n.p. in that behalf the original papers in the record of any civil or criminal proceedings may be supplied to the Government Pleader or the parties or their agents for the purposes of taking copies, provided that the papers are kept under the control and supervision of an officer of the Court; provided further that not more than ten documents shall be supplied on any single application. On a bare reading of these rules it is apparent that the power conferred on the Assistant Registrar to allow search is confined to the record of a proceeding. Similarly, the power of supply of documents for the purpose of making copy is also confined to the original documents on record of any civil or criminal proceeding. The Assistant Registrar would not be able to exercise the power unless the documents are on record, that is to say, put in evidence and formally brought on record of toe proceeding.

24. Chapter XIII deals with certified copies. Rules 1 and 2 of the said Chapter provide for the contents of the application and deposit to be made along with the application. Rule 3 provides that copies of documents in any civil or criminal proceeding and copies of judgments of the High Court shall not be given to person other than the parties interested therein without the order of the Assistant Registrar and that such applications shall be accompanied by an affidavit stating the grounds on which they are required. Rules 4 and 5 provide for making of additional deposit upon estimation of the copying charges and the time limit for supplying ordinary and urgent copies. These rules also indicate that they deal with the supply of copies of documents in any civil or criminal proceeding or copies of judgments of the High Court. The power of Assistant Registrar to order supply of copies to third parties is also confined to such documents only. It does not contemplate supply of certified copies of any other kind of documents.

25. It would be worthwhile to emphasise at this stage again that the various rules relating to the practice and procedure of the Court are for and in relation to the administration of justice. Merely because the rules confer some of the powers upon the ministerial officers of the Court, it cannot be readily inferred that all functions discharged under those rules are necessarily administrative in character. Even those ministerial officers, when acting at least under some of those rules, would be discharging judicial functions, depending upon the facts and circum stances of the case and terms of the rule and the nature, scope and effect of their decision. It is significant to note in this connection that Rule 7 of Chapter II, which is entitled 'powers of the Registrar, Deputy Registrar and Assistant Registrar', provides that any orders passed by the Registrar, Deputy Registrar, Assistant Registrar or the Special Officer under Rules 1 to 5 in the said Chapter or under any other rules shall be subject to revision by a single Judge upon a motion of the party aggrieved and that such motion has to be made within a period of 15 days from the date of the order complained of. We are needed to say no more on the subject because, in the instant case, the impugned order is passed not by a ministerial officer but by two learned Judges of the Court.

26. Now, in the instant case, the application upon which the impugned order has been passed made a threefold prayer; (1) for inspection of the Minute-books of the learned Judges containing their notes of the arguments advanced by the petitioner herein during the course of the hearing of the original writ petitions, (2) for supply of certified copies of the notes of the arguments recorded by the learned Judges in their Minute-books, and (3) for grant of permission to take photostat of the extracts from the said Minute-books pertaining to the arguments recorded during the course of the hearing of the original writ petitions for the purpose of getting the same certified from the office of the Court.

27. Although it is possible to argue, upon the postulate that the Minute-books were a part of the record of the original writ petitions, that the first and second prayers could have been dealt with by the Registry of the Court, so far as the third prayer is concerned, none of the relevant rules appears to confer upon the Registry the power to grant permission to take Photostats. The Registry, therefore, could not possibly have acceded to the said request. Even as regards the first and second prayers, the Minute-books in which the learned Judges recorded the arguments were not a part of the ordinary or regular record, in the sense that they were not pleadings or documents tendered by the parties and formally taken on record. It would not be out of place to point out here that though Rule 2 of Chapter XI contemplates 'Speaking to the minutes', the Rules do not anywhere refer to the Minute-books of the Judges. Chapter XV, which deals with destruction of records and lays down detailed guidelines with regard to the preservation of various kinds of documents, makes no provision with regard to the Minute-books. The contention of the petitioner, inter alia, is that since the learned Judges had referred their Minute-books in the course of their order on the note for speaking to the Minutes and based their decision on a question arising before them on the record of arguments in such Minute-books, the Minute-books automatically became a part of the record. It is apparent that the question whether inspection of the Minute-books could be given and whether copies of the extracts there from could be supplied was, under the aforesaid circumstances, not within the purview of the Assistant Registrar to decide. The application containing the aforesaid prayers could, therefore, have been decided only by the learned Judges who had decided the original writ petitions and the subsequent application for speaking to the minutes and it was rightly referred to them by the Registrar. It is against this background that the question with regard to the nature and character of the impugned order made by the learned Judges on the application of the petition will require examination.

28. It appears to us, on an overall consideration of the facts and circumstances of the case, that in fact and in law, in form and in sub stance, the impugned order is passed in the exercise of judicial power of the Court. The power to decide an application for discovery, production and inspection of documents is, under the general law of the land, vested in the Court and the proceeding is indubitably judicial (see Order 11, C.P.C). Even under the Rules under consideration, although the power relating to the grant of search is conferred upon a ministerial officer of the Court, such power has to be exercised not on subjective considerations but on application of recognised principles and in terms of the relevant Rules. Such power, in other words, has to be exercised judicially and the decision of the ministerial officer will be subject to revision at the hands of the Court. An application for search or copies by a third party has to be considered on the basis of the affidavit stating the grounds on which the search or copies are required and it can be rejected only if the grounds are considered insufficient. In reaching his decision on such an application, the ministerial officer will undoubtedly exercise the judicial power of the Court and the soundness or otherwise of his decision, if challenged in revision by the aggrieved party, will have to be tested on the basis of external standards.

29. So far as the present case is concerned, the question of grant of certified copies is inevitably linked up with the question of grant of inspection and both these questions ultimately have a nexus with the larger question whether the Minute-books form a part of the record. We have indicated earlier that the Minute-books are not a part of the record in the ordinary or regular sense since they are not pleadings or documents tendered by the parties and formally taken on record. The Rules also do not seem to indicate anywhere that they are a part of the record. The petitioner's contention, on the basis of the grounds stated in his application for grant of inspection and certified copies, however, was that the Minute-books formed a part of the record and that on the facts and in the circumstances of the case, he was entitled to inspection thereof and copies of extracts there from. Apart from the consideration that ordinarily the power relating to grant of inspection is judicial, it is difficult to comprehend-indeed impossible to conceive-against the aforesaid back ground, that the decision on the questions raised by the petitioner could have been arrived at otherwise than in exercise of the judicial power. The learned judges had to determine the controversy formally presented to them on consideration of the relevant facts and in light of the material provisions of law and their decision was required to be reached - and it is indeed shown to have been reached-not subjectively upon personal and private opinion but upon what they considered to be a matter covered by judicial precedent. Their decision, therefore, cannot but be treated as judicial.

30. It cannot also be overlooked that the application for grant of inspection and certified copies was made in a judicial proceeding (since disposed of), as the title of the application itself suggests and that in the course of the said application, it was, in terms, stated that The inspection and certified copies were required in connection with the application for certificate of fitness under Article 133 pending in the Court against the decision rendered in the original writ petitions. The application was, therefore, in one sense, consequential to a judicial proceeding which had terminated and, in another sense, it was directly connected with a collateral judicial proceeding which was still pending. It is true that the application was not formally listed for hearing and that the petitioner was not given a personal or oral hearing before the order was made. That could not, however, make any difference in the true nature and character of the proceeding or the order made therein. The mere fact that the matter was not listed for hearing is a matter of no moment, because what is of the essence is a right to judicial consideration and not the procedure of listing a matter for hearing. We do not wish to express any opinion on the question whether a decision on a question such as the one with which the learned Judges were concerned could have been taken without giving a personal or oral hearing to the petitioner. However, assuming without assenting to the proposition that personal or oral hearing was necessary, even then the failure to give such a hearing might, at the most, affect the validity of the order but not its true nature and character. The manner in which the order is made also indicates that the learned Judges had treated the proceeding before them as judicial and that they were conscious that they were exercising the judicial power while making the order. The contents of the order, the grounds stated therein, the manner in which it has been made - all indicate that the Court acted in a judicial capacity in making the order. It is significant to note in this connection that the order is termed as 'Court's order' and that it has been signed jointly by both the learned Judges on the same day as per the practice in vogue and that the order, on the face of it, is an order made by the Division Bench.

31. Counsel for the petitioner contended that there was no Us and that, therefore, there was no occasion for the exercise of judicial power. We are afraid, the argument proceeds both on a misconception of fact as well as of law. As earlier pointed out, the application upon which the impugned order was made was, on the face of it, made in a judicial proceeding which the Division Bench had disposed of and the application in terms recited that the inspection and certified copies were required for the purpose of a pending application for certificate of fitness against the decision rendered in the original writ petitions. The application, therefore, was essentially, substantially and directly connected with two judicial proceedings in which there was a Us between the parties. The mere fact, therefore, that there was no opposition to the application would not make it any-theses an application in or connected with a proceeding in which there was a Us. That apart, even in the context of an administrative authority where the question arises as to whether its action is administrative or quasi-judicial, it has been held by Das, J. in Province of Bombay v. Khushaldas S. Advani that the absence of two parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially. Therefore, even assuming that so far as the application proper is concerned, there was no Us because there was no proposition and opposition between the parties, till and so long as the impugned order was required to be made not subjectively but objectively on the application of known rules and concepts and in accordance with reason and justice, it could not possibly be said that it was not made in exercise of the judicial power.

32. Counsel also urged that the principal question to be decided was whether certified copies of the relevant extracts from the Minute-books should be given and that the other question, namely, whether the Minute-books formed a part of the record was an incidental question and that the decision of such incidental question fell within the purview of administrative jurisdiction with regard to grant of certified copies and that, therefore, the entire decision was administrative in character. We are afraid, the argument proceeds on the reversal of the true role of each of the questions, which fell for decision. The principal question, which was required to be determined, was whether Minute-books were a part of the record so that inspection and certified copies of the relevant extracts there from could be given. It is only if that principal question was determined by a judicial process in favour of the petitioner that the question of grant of certified copies could arise. In fact, as held by us earlier, in a case like the present, even the power with regard to grant of certified copies would take the colour of a judicial power.

33. In view of the foregoing discussion, we are of the view that the impugned order of the learned Judges is a judicial decision which they arrived at in exercise of the judicial power conferred upon this Court and that it does not partake the character of an administrative decision. Under such circumstances, as earlier stated, the writ jurisdiction of this Court cannot be invoked to challenge the decision. The only remedy, if any, of the aggrieved party, even if it be a third party, is to challenge the order by way of an appeal see Naresh v. State of Maharashtra : [1966]3SCR744 .

34. In view of the fact that we have reached the aforesaid conclusion, we do not propose to examine the other two difficulties in the way of the petitioner, which prima facie, appeared to us to go to the root of the matter and to affect the maintainability of the petition and in regard to which also we had drawn the pointed attention of the Counsel at the hearing of the petition and heard him. Those two hurdles, which the petitioner would have been required to cross even if the impugned decision were treated as administrative, are: (1) the locus standi of the petitioner to claim mandamus when he had never made a demand for inspection and certified copies and there was never a refusal of such a demand on the part of the learned Judges in his private capacity and not as an advocate representing one of the parties to the litigation, and (2) the justification for the grant of relief of mandamus which is discretionary in nature; (a) when the main question as to whether the arguments advanced by the petitioner herein at the hearing of the original writ petitions were considered by the Division Bench and whether the Division Bench had correctly appreciated those contentions and whether the decision of the Division Bench on the note for speaking to the minute is correct is sought to be brought in issue in the appeal which the original respondents propose to prefer in the Supreme Court wherein the petitioner can seek permission to intervene (see the grounds taken in the application for certificate of fitness under Article 133 of the Constitution of India; para. 7 of the petition herein), and when the learned Judges, in the course of their impugned order, have observed that if the Supreme Court wants the Minute-books, they would be made available, and (b) when the right of the petitioner to claim the relief is founded on the ground that he is entitled to inspect and to obtain copies of the relevant extracts from the Minute-books with a view to ascertaining for himself 'whether the said Minute-books support what the respondents Nos. 1 and 2 have in their order dated April 30, 1980 stated' (see para. 10.5 of the petition), which assumes that the truth or otherwise of the statements made in the course of a judgment can be tested by seeking the aid of a Court of co-ordinate jurisdiction in a collateral proceeding and by citing the Judges as respondents and by dragging them into controversy in such a proceeding. In view of the fact that we think that our decision can be safely and wholly rested on the ground above stated, we have not considered it necessary to express any opinion on these two other grounds with regard to the maintainability of the petition.

35. Before parting with the case, it must be mentioned that when the preliminary hearing of the petition commenced on August 22, 1980, Messrs G.N. Desai and K.H. Kaji, Advocates, appeared and sought permission to place on record a copy of the resolution dated August 1980, passed by the Bar Council of Gujarat resolving that ' to assist the Hon'ble Court the Bar Council should seek to intervene in the aforesaid writ petition' and that those two learned Advocates and any other Advocate who may be requested by the Chairman of the Bar Council 'may appear on its behalf only to assist the Court in case the Bar Council is permitted to intervene'. Similarly, Mr. M.D. Pandya, Advocate, appeared on behalf of the Gujarat High Court Advocates' Association and made an identical request on behalf of the said Association. We have taken on record a copy of the resolution of the Bar Council of Gujarat.

36. We have, however, not allowed the Bar Council of Gujarat and the Advocates Association to intervene in this proceeding, because we have rested our decision on the narrow ground as to whether the impugned decision is judicial or administrative and on the decision of that question it did not appear it necessary to us to have the assistance of any outside agency, especially when the petitioner was represented by a senior and experienced Counsel who has rendered fair assistance on all the questions. Had we decided to consider and rest our decision also on the other two grounds mentioned above, we would have considered the request made on behalf of the Bar Council of Gujarat and the Gujarat High Court Advocates' Association to permit them to intervene and to assist the Court, since those questions are of wider significance.

37. In view of the foregoing discussion, we summarily reject the petition on the ground that it is not maintainable. We wish to make it clear, however, that we should be taken to have expressed no opinion on merits of the issue involved in the case and that incidental observations, if any, touching the main issue are in aid of and intended to be confined only to the decision of the preliminary issue.


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