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Civil Appeals Nos. 6‑D and 7‑D of 1957,: decided on 21st May 1958.

(On appeal from the judgment and decree of the High Court of Judicature at Dacca in East Bengal (now High Court of East Pakistan), dated the 30th March 1955, in Appeal from Appellate Decree Nos‑. 683 and 678 of 1952 with Civil, Rules 47 (s) and 53 (s) of 1955).

S. 7‑Consideration of objections‑Whether a quasi judicial function of Government.

The Government in disposing of the objections under section 7'of the Bengal Municipal Act, acts purely in an administrative capacity. The Act does not mention the factors which the Provincial Government has to consider in deciding whether the local area should or should not be included in a Municipality, and there is no indication, whatsoever, in section 7 as to the nature of the grounds on which objections may be made. The Provincial Government., therefore, has full authority to reject an objection and to act on its own view, even if the alleged ground of the objection be made out. Unlike some other provisions of the Act, e.g. section 149 and section 516, section 7 lays down no proce dure for the consideration of the objections and does not give the objector the right to be heard in person or to substantiate by evidence his objection. There is, therefore, no lis in the sense in which the existence of a lis or an issue makes the proceedings judicial or quasi‑judicial and the final order to be made by the Government remains essentially an administrative order without the precedence of a quasi‑judicial proceeding.

S. 7‑Objector whether has a right to be heard in person.

Though the Government is bound to consider the objection under section 7 of the Bengal Municipal Act, it is not bound by the Act to grant the objector a hearing oar an opportunity to adduce, evidence.

Ss. , 7 & 8 Proceedings before Government under S. 7 culminating in Notifi cation under S. 8‑Presumption of regularity.

Where a statute expressly provides that a certain action can be taken by a public authority only after certain steps have been taken and the proceedings held show that the authority was cons cious of the steps that had to be taken, the presumption is that those steps were taken before the taking of the final action and the burden of showing that that was not the case is on the person who alleges to the contrary.

Under the Bengal Municipal Act any inhabitant or any rate payer is, within three months from the date of the publication of a declaration under section 6, entitled to submit his objections in writing and the statute imposes upon the Government the obligation of taking such objections into consideration, and a notification under section 8 can only be made after the time for submitting the objections has expired and the objections submitted have been considered by the Government. Where, therefore, the notification under section 6 itself invited objections within three months of the notification and the notification under section 8 was published long after the time for submitting objections had expired, it was held under the circumstances, that the natural pre sumption was that the Government did not publish the notification under section 8 until the objections had been considered.

U. K. Roy, Senior Advocate, Supreme Court, (S. C. Bose, Advocate, Supreme Court with him)instructed by D. N. Datta, Attorney for Appellant in Appeal No. 1.

R. R. Guha, Senior Advocate, Supreme Court, (S. C. Sen, Advocate, Supreme Court, with him), instructed by A. N. M. Nasir uddin, Attorney for the Respondent No. I in Appeal No. 1.

A. B. Mahmud Hussain, Advocate, Supreme Court, instructed by A. N. M. Nasiruddin, Attorney, for Respondent No. 2 in Appeal No. 1.

Hamidul Haq, Choudhry, Senior Advocate, Supreme Court (S. R. Pal and Abdul Hye, Advocates, Supreme Court, with him), instructed by Nasiruddin Ahmad, Attorney for Appellant in Appeal No. 2.

For Respondents Nos. 1 and 2 in Appeal No. 2 as in Appeal No. 1

Dates of hearing: 20th and 21st May 1958.

.‑These two civil appeals, certified by the High Court of East Pakistan as involving a substantial question of law, arise out of an unsuccessful attack on a notifica tion of the Bengal Government under section 8 of the Bengal Municipal Act. The record of the proceedings, which ended in that notification is not available and the East Pakistan Govern ment, as successor to the defunct Bengal Government, was called upon to defend the legality of the proceedings.

By a resolution adopter on 31st August 1945, the Commis sioner of the Narayangani Municipality recommended to the Provincial Government to include a certain area in their Municipality. The resolution was forwarded to the Government by a letter; dated the 7th December 1945, giving reasons for the inclusion. On the 23rd March 1946, the Government issued a notification under section 6 of the Act, declaring its intention to include that area in the Municipality. The noti fication stated that objections to the proposed inclusion were to be filed. in writing within three‑months of the publication of the notification. Among the actual objectors were the two appellant, ii.‑., the Chittaranjan Cotton Mills Ltd. and the Dhakeshwary Cotton Mills Ltd. The objections covered several grounds, including 'the' allegation that three‑fourths of the adult population of the area intended to be included was not engaged in occupations other than agriculture and that the Commissioners' resolution recommending extension had been passed mala fide and with 'the' ulterior motive of augmenting the revenues of the Municipality by acquiring the power to tax the appellants. It is common ground that the objectors were not heard in person or through their representatives before the final notification under section 8 including the proposed area within the Municipality was published in the Calcutta Gazette of the 30th January 1947.

The notification led to two suits, one by the appellant Chittaranjan Cotton Mills Ltd. and the other by the appellant Dhakeshwari Cotton Mills Ltd., in the Court of the 6th Additional Subordinate Judge; Dacca. Having been consolidated the suits were tried together and dismissed The appeals against the decrees‑of ‑the Subordinate Judge also failed before the District Judge; Dacca. In second appeal the High Court affirmed the decrees of both, the Courts below but on the appellants' application certified the case to be a fit one for appeal to the Federal Court on the ground that a substantial question of law, namely, whether in disposing of the objections under section 7 of the Bengal Municipal Act the Government had acted ir_ a quasi judicial or a ,,purely administrative capacity, arose between the parties which needed 'an authoritative determination by the Federal Court:.

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The suits were based on the allegations that the appellant did not need the benefit of any amenity from the Municipality; that the object underlying the resolution of the Commissioners was to add to the revenues of the Municipality by taxing the appellants, that the appellant mills were separated from the nearest Municipal limit by two, miles of marshy land, that more than 25 per cent of the inhabitants of the area intended to be included were, agriculturists, that the population of the area was less than 1000 per square mile, that the description of the area was vague and inaccurate, that though the appel lants had filed objections to the extension of the limits of the Municipality the notification under section 8 was issued without considering the objections, and that the resolution of the Commissioners of the Municipality was mala fide, illegal and without jurisdiction. The relief claimed was that the Municipality be restrained from assessing to tax the newly added area and from otherwise treating it as a part of the Municipality. None of these allegations succeeded in the Court of first instance or either of the Appellate Courts.

The scope of tire present appeal has been very much restricted, the only points mooted before us being:

(1) whether the Government, in considering the objections under section 7 of the Act, acted in a quasi judicial capacity ;

(2) if the answer to question No. 1 be in the affirmative, whether the notification was vitiated by the fact that the objectors were not heard ;

(3) consideration of the objections being the pre‑requisite of a notification under section 8 of the Act, whether the objec tions were not considered and for that reason the notification became void and inoperative ; and

(4) whether any error in description iii the notifications under sections 6 and 8 of the Act vitiated both the notifications in their entirety.

Mr. Hamidul Haq Choudhury and Mr. Roy have reiterated the argument repelled by each of the Courts below, that con sideration of the objections under section 7 of the Act is a quasi judicial function of the Government. In the High Court several English decisions, most of them based on the text of the Housing Acts, were relied on and the judgment of that Court which is full and lucid shows that they received the consideration to which, by reason of the eminence of their authors, they were entitled. As pointed out by that Court in a carefully written judgment, they are all distinguishable because of their peculiar facts and the words of the relevant statute, and the same remarks apply to some other decisions that have been cited before us. Among these decisions is B. Johnson & Co. Ltd. v. The Minister of Health ((1947) All Eng. Rep. 395), which constitutes the sheet anchor of the appellants, argument and therefore deserves special notice. The judgment in that case was based on the provisions of the English Housing Act, 1936, para. 4 of the First Schedule to which provided for a public local enquiry before the Minister confirmed the order of compulsory purchase of land by a local authority for housing. Accommodation. At the relevant time the Housing Act had been amended, relieving the Minister of the obligation of causing a public local enquiry to be held but preserving the obligation to consider the objections. It was contended by the owners of the land comprised in the com pulsory purchase order made by the local authority under section 74 of the Act and confirmed by the Minister of Health under para. 4 of the First Schedule to the Act, that the Minister in considering the objections was bound to act in a quasi judicial manner and that he had failed in that duty because he had not made available to the, objectors the contents of certain letters which had been written to the Minister by the local authority before the confirmation order was made. The Judges of the Court of Appeal held that the confirmation of the order was essentially an administrative act and that the obligation of the Minister did not extend beyond making available to both sides matter which had come into existence for the purposes of the quasi lis, the inception of which was marked and constituted by the making of the objection. In the judgment of Lord Greene M. R. there occur observations to the effect that the consideration of the objections in that case was a quasi judicial function, though that point, in view of the actual decision, was not directly in issue and the, judgment seems to proceed on the assumption that even if consideration of the objections was a quasi judicial function, the objectors in that case were not entitled to have disclosed to them the contents of official documents which had been received by the Minister before the objections were filed, even if they had in fact been taken into consideration when the order of confirmation was made. The observations of Cohen L. J., however, are more pertinent to the present case and against the appellants' contention. He says:

" Here, however, the position is entirely different. The Minister is not required to hear and determine the objection. The objection having been made he has to comply with the terms imposed upon him by the Act. He has to consider the objection and the report, but he is not required to give a determination on the merits of the objection. He has, in his executive capacity, to decide whether or not to confirm the order. He may, as Counsel for the Minister points out, come to the conclusion that the objection is well founded, but he may, nonetheless, confirm the order, because he taken (sic) the view that it is in the national interest to disregard the objection."

To determine whether consideration of the objections in the present case was a judicial function the precise nature of the right involved in the creation or extension of a Municipality, the ground of the objections and the importance that the Act attaches to them have all to be examined. Under section 6 of the Act the Provincial Government may, by notification, declare its intention to include within a Municipality any contiguous local area, provided that the Government is satisfied that three‑fourths of the adult male population of that area are chiefly employed in pursuits other than agriculture. When a notification under section 6 of the Act has been issued, any inhabitant of the local area or any rate payer of the Municipality may, if he objects to anything contained in the notification, submit his objection in writing to the Provincial Government within three months from the date of its publication, and the Government shall take his objection into consideration. The next step that has to be taken in the process of extension is under section 8 which provides that when three months from the date' of the publication of the notification have expired, and the objections, if any, have been considered, the Government may by notification include the local area or any part thereof in the Municipality. Read together what these provisions lay down is that first the Provincial Government must declare by notification its intention to extend the limits of a Municipality. On such intention being notified, certain classes of persons become entitled to object to the proposed extension. Such objections must be in writing and put in within three months of the publication of the notification, and the Provincial Government is under an obligation to consider them. When the period of three months for the making of objections has expired and the objections submitted have been considered, the Provincial Government, if it so likes, may by notification include the local area within the limits of the Municipality. The Act does not mention the factors which the Provincial Government has to consider in deciding whether the local area should or should not be included in a Municipality, and there is no indica tion, whatsoever, in section 7 as to the nature of the grounds in which objections may be made. The Provincial Government, therefore, has full authority to reject an objection and to act on it's own view, even if the alleged ground of the objection be made out. Unlike some other provisions of the Act e.g., section 149 and section 516, section 7 lays down no procedure for the consideration of the objections and does not give to the objector the right to be heard in person or to substantiate by evidence his objection. There is, therefore, no lis in the sense in which the existence of a lis or an issue makes the proceedings judicial or quasi judicial and the final order to be made by the Government remains essentially an administrative order without the precedence of a quasi judicial proceeding.

Mr. Hamidul Haq contends that the obligation on the part of the Government to consider the objections implies a correspon ding right in the objector to be heard in person, but the contention is not supported by authority or principle. The real question, which the Provincial Government when it decides to incorporate inhabitants of a predominantly urban area into a Municipality, has to address itself to is whether the public interests demand that the inhabitants of the area should be entrusted with the power of subordinate legislation and the power to levy taxes through their representatives. This is not at all a judicial or a quasi judicial matter and no basic right such as that of property or person or of the freedom to carry on an economic activity is involved. The matter is not therefore, one for a Court to consider but essentially depends on the judgment and wisdom of the Provincial Government, which is not liable to be reviewed by a Court on any defined legal principle or from the point of view of any unqualified legal right or liability.

Even if it be held that an objector under section 7 can raise the question that the notification under section 6 was bad because three‑fourths of the adult male population of the local area are not chiefly employed in pursuits other than agriculture, the issue is not between the objector and the Municipality but between him and the Government and though the Government is bound to consider the objection, the Act does not bind it to grant him a hearing or an opportunity to adduce evidence.

As regards the contention that, whether the proceedings before the Government under section 7 of the Act be quasi judicial or entirely administrative, a notification under section 8 is bad if the objections were not considered by the Government, it is sufficient to state that the proceedings culminating in a notification under section 8 carry with themselves a presumption of regularity. Under the statute any inhabitant or any rate payer is, within three months from the date of the publication of a declaration under section 6, entitled to submit his objections in writing and the statute imposes upon the Government the obligation of taking such objections into consideration, and a notification under section 8 can only be made after the time for submitting the objections has expired and the objections submitted have been considered by the Government. In the present case the notification under section 6 itself invited objections within three months of the notification and the notification under section 8 was published long after the time for submitting objections had expired. The natural presumption, therefore, is that the Government having itself invited the objections did not publish the notification under section 8 until the objections have been considered. Where a statute expressly provides that a certain action can be taken by a public authority only after certain steps have been taken and the proceedings held show that the authority was conscious of the steps that had to be taken, the presumption is that those steps were taken before the taking of the final action and the burden of showing that that was not the case is on the person who alleges to the contrary. Accordingly it must be, held in this case, as has been held by the Courts below, that the Government took the objections into consideration before the publication of the notification under section 8.

The last contention raised by the appellants is that the notification under section 6 as well as that under section 8 was defective in as much as a part of the western boundary of the area proposed to be included in the Municipality was described as C. S. Plot No. 130 of Mauza God nail and not as C. S. Plot No. 130 of Mauza Hajiganj which was the correct description of the area intended to be included. The notifications were, however accompanied by maps, which showed that Mauza Hajiganj and not Mauza God nail was intended, and, in any case, the appellants are not the persons who were in any way misled by this misdescription. They put in the objections as if C. S .Plot No. 130 of Mauza Hajiganj was intended to be included, and they cannot now be permitted to make capital of an inadvertent error in description.

We see no force in these appeals, which are accordingly dismissed with costs.

K.B.A Appeals dismissed.

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