1. The four petitioners ask for a writ of certiorari or other appropriate writ, order or direction for the purpose of ensuring that the first respondent, the Dy. Commissioner Jammu, does not revoke the consent which was accorded by him to the petitioners for instituting a suit under Section 92 of the CPC against the second respondent and some others. The facts leading up to this petition lie within a brief compass and are not in dispute. The petitioners successfully applied to the first respondent for necessary consent for instituting a suit under Section 92 of the CPC against the second respondent and others. After obtaining the consent, they instituted the suit in the court of the District Judge at Jammu. While the suit was pending, the second respondent moved the first respondent for revoking the consent. The first respondent thereupon caused notice to issue to the petitioners. The petitioners resisted the application of the second respondent on the ground, inter-alia, that the first respondent was not competent to revoke during the pendency of the suit the consent which was validly given by him. The first respondent over-ruled that objection and held that he was competent to review or revoke the consent which was previously accorded by him to the petitioner. The petitioners have therefore moved this court in writ.
2. The first contention urged by Mr. Vidya Sagar learned counsel for the petitioners is that the first respondent in according the sanction for laying an action under Sec. 92 of the Code exercised a judicial or a quasi-judicial function and could not therefore seek to review his order unless a right of review was expressly conferred by statute. The learned Advocate General appearing for the first respondent has on the other hand contended that in giving consent under Sec. 92 the first respondent acted purely in an administrative capacity it, therefore, falls for determination whether the first respondent in according sanction under S. 92 of the CPC acted as a judge or a quasi-judge. There is nothing in the terms of Sec. 92 itself which enjoins upon a Dy. Commissioner the duty to act judicially in granting the required consent. Nor does the essential nature of the function he has to exercise under this section partake of any judicial process. In R. v. Electricity Commrs., (1924) 1 KB 171, Atkin, L.J pronounced the rule as follows:
“Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.”
3. Hewart, C.J in R. v. Legislative Committee of Church Assembly, (1928) 1 KB 411 at p. 415 pointed out that the decisive test to determine whether a Tribunal set up under a statute is required to act in a quasi-judicial or merely in an administrative capacity is to see whether the statute requires the Tribunal to act judicially.
4. Cases where the statute itself requires the authority to act judicially can hardly present any difficulty. But from the mere circumstance that a statute does not expressly so require, one cannot infer that the authority is not bound to act judicially. An act is not necessarily quasi-judicial merely because it affects the rights of subjects, nor does the circumstance that the statutory authority has to apply its mind to the materials before it afford an infallible criterion. Even in Performing an administrative act the authority will have to apply its mind to the materials before it. But the distinction seems to lie in the method and manner of its arriving at the determination. A quasi-judicial act necessarily presupposes the application of some judicial process there is an unmistakable distinction between forming a personal or subjective opinion about a matter and arriving at a conclusion judicially. This necessary element of judicial procedure marks off the region of administrative action from that of quasi-judicial determination.
5. Even if the statute does not say so in express and explicit words, it must be possible to spell out from its relevant provisions that a certain judicial standard was required to be observed and a degree of Judicial process to be followed by the statutory functionary. If the existence of this crucial element cannot be inferred from the provisions of the statute, it will be wrong to hold that the statutory authority is a quasi-judge. There is, as I already indicated, nothing in the provisions of section 92 of the Code to warrant the inference that the Dy. Commissioner in according his consent under that section is bound to follow any judicial process or to act in conformity with recognized judicial norms. Because stress the absence of any duty to act judicially on the part of the Dy. Commissioner, I should not be understood as saying that the Dy. Commissioner acting under section 92 is called upon to determine any question affecting the rights of the parties. His function, is only to satisfy himself prima facie whether consent should be given to the institution of a suit under Sec. 92 and not to adjudicate upon any right of a party. Indeed, he is not bound before giving his consent to hear the persons against whom the suit is proposed to be laid. It is for the court and the court alone to decide upon the Tights of the respective parties and not for the Dy. Commissioner.
6. It cannot, therefore, be said that any of the conditions postulated by Atkin, L.J in (1924) 1 KB 171 (supra), is satisfied in a case of giving or declining to give consent under Sec. 92. I am, therefore, unable to hold on principle that the Dy. Commissioner in exercising functions under Section 92 of the CPC acts in a quasi-judicial capacity. The decisions of several High Courts also point in the same direction.
7. In Shantanand v. Advocate General, (S) AIR 1955 All 372 a Division Bench of the Allahabad High Court held that the act of the Advocate General in giving his consent to the institution of the suit under Sec. 92 cannot be called a quasi-judicial act but that it is merely an administrative and executive act.
8. To the same effect is the decision of a Division Bench of the Rajasthan High Court in Shrimali Lal v. Advocate General, (S) AIR 1955 Raj 166.
9. Both these decisions have expressly dissented from a decision of the Travancore-Cochin High Court in Abu Backer Adam Sait v. Advocate General of Trav-Co. State, AIR 1954 Trav-Co 331.
10. A Full Bench of the Kerala High Court in A.K Bhaskar… v. Advocate General…., AIR 1962 Kerala 90, has since over-ruled the decision in AIR 1954 Trav. Co. 331 (supra).
11. In Sadhu Singh v. Mangalgir Mohatmim Dera, AIR 1956 Pepsu 65 the decision in AIR 1954 Trav. Co. 331 (supra), has been followed. But these two decisions stand in the same category and do not commend themselves to me. I prefer to follow the other line of decisions already noticed.
12. The decisions rendered on analogous provisions of other statutes also point to the unacceptability of AIR 1954 Trav. Co. 331 and AIR 1956 Pepsu 65 (supra). In Abdul Kasim v. Md. Dawood, AIR 1961 Mad 244, Section 55(2) of the Muslim Wakfs Act, 1954, was considered. Under this provision no suit to obtain any of the reliefs referred to in Sec. 55(1) of that Act relating to a Wakf could be instituted by any person or authority other than the Board without the consent in writing of the Board. The question arose whether in granting or withholding sanction to a person to file a suit the Wakf Board acts in a judicial or a quasi-judicial capacity. The Madras High Court held that the granting of consent under Sec. 55(2) was only an administrative act.
13. In Gajadhar Lakshiram v. Emperor, AIR 1948 Nag 277, the question was whether a District Magistrate sanctioning prosecution under Section 10(4) of the Factories Act (1934) acts in a judicial capacity or not Hidayatullah, J. (as he then was) held:
“The action of the District Magistrate who acts under Sec. 10(4) of the Act as an Inspector is not a judicial function.
Thus, sanction by the District Magistrate to prosecute the manager of a factory for offences under the Act is not a judicial but an executive function. It is true that the rules give the manager of the factory concerned an opportunity to represent his case but that is entirely with a view to avoiding unnecessary prosecutions. Indeed there is no warrant for such a hearing in the Act itself.”
14. In In the matter of Kalagava Bapiah, ILR 27 Mad 54 it was pointed out that granting of sanction under Section 197 of the Cr PC is not a judicial act but only an executive act.
15. In State of Madras v. C.P Sarathy, AIR 1953 SC 53, the Supreme Court held that in making a reference under Section 10(1) of the Industrial Disputes Act (1947), the appropriate Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of his function does not make it any the less administrative in character.
16. In view of these authorities it does not appear to me to be tenable to contend that in according his consent to the institution of a suit under Section 92 of the CPC the Dy. Commissioner is exercising a quasi-judicial function and is not performing merely an administrative act.
17. This does not, however, dispose of the controversy between the parties. The question arises whether even if the Dy. Commissioner first respondent has given his consent under Sec. 92 in his administrative capacity it is open to him to revoke that consent while a suit instituted in pursuance of that consent is pending in a civil court. The consent is a necessary preliminary or a condition precedent to the institution of a suit. If the suit has been validly instituted on a duly obtained consent, it does not appear to me to be open to the Dy. Commissioner to seek to revoke his consent and thereby seek to affect the fortunes of the pending litigation. Once the civil court has seisin of the matter, I do not think the Dy. Commissioner can on any principle do any act so as to affect the court's jurisdiction to deal with the suit according to Law. The suit Has to take its course according to the provisions of the Code of Civil Procedure, and the Dy. Commissioner or any other authority empowered to accord consent under Sec. 92 cannot interfere with its course. To hold otherwise would be tantamount to saying that an executive authority is entitled to interfere although indirectly with the normal course of a suit of which a civil court is seized. It seems to me that such an unusual result cannot be supported on any reasoning or any construction of Sec. 92.
18. Once a suit is laid pursuant to the sanction accorded by the authority specified under Sec. 92, that authority becomes functus officio and does not have jurisdiction to take any action in respect of the suit which he would be doing if he were permitted to revoke his consent to the institution of the suit. No provision of law clothes the person competent to accord consent under Sec. 92 with such a far-reaching power to interfere with proceedings in a court of law. To allow any such power would run counter to the entire scheme and the provisions of the Code of Civil Procedure and will amount to permitting a person to do indirectly what he is forbidden from doing directly. Furthermore, if such a power is conceded to the Dy. Commissioner it will be open to him to exercise it at any stage of the litigation even when it has reached the stage of ultimate appeal. The conferment of a power the exercise of which would involve such extraodinary consequences could not have been in the contemplation of the legislature. I, therefore have no doubt that in the present case the Dy. Commissioner has no jurisdiction or authority to revoke his consent and thereby seek to affect the suit which is pending in the district court.
19. The learned Advocate General has however pressed upon me a ruling of a Division Bench of the Nagpur High Court in Nanhoobeg v. Gulam Hussain, AIR 1951 Nag 394. This decision does not seem to support him. There, the Collector did not seek to review or revoke his consent pending a suit. The following passage from the judgment at p. 395 clearly demonstrates this:
“The original sanction is dated 17-12-1934 and what has been termed a review is nothing more than an amplification of the original order. That was on 19-1-1935. The suit was not filed till 12-2-1935, so the two read together constitute a valid sanction.”
20. This decision cannot, therefore, avail the respondents in the present case.
21. The instant case presents another aspect as well. The validity of a suit so far as the present question of consent is concerned has to be judged at the time of its institution and if it was instituted after obtaining the required consent under Section 92 of the CPC, a subsequent withdrawal of that consent affect (sic) the maintainability or the validity of the suit. This is the principle which was adopted in Rajahmundry Electric Supplycorporation Ltd. v. 1. A. Nageshwara Rao, (S) AIR 1956 SC 213. There an application was made under Section 153-C of the Companies Act. Sub-clause 3(a)(1) to Sec. 153-C provided that a member of a company is entitled to apply for relief only if he has obtained the consent in writing of not less than 100 members of the company or not less than 1/10th in number of the total members, whichever is less. One of the contentions raised before the Supreme Court was that after the application was made, 13 of the members who had consented to the filing of the application had withdrawn their consent and that therefore the application was incompetent as not being supported by the consent of the requisite number of members. This contention was repelled by the Supreme Court which held:
“The validity of a petition must be judged ort, the facts as they were at the time of to presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation.
Thus where the applicant under Sec. 153-C has obtained the consent of not less than one-tenth in number of the members and has presented the application, the withdrawal of consent by some of those members subsequent to the presentation of the application cannot affect either the right of the applicant to proceed with the application or the jurisdiction of the Court to dispose of it on its own merits.”
22. The principle of this decision indicates that even if the Dy. Commissioner revokes his consent the suit will continue to be maintainable in law and has to be proceeded with according to law by the court in which it is pending. From this point of view it appears to be futile for the Dy. Commissioner to seek to continue proceedings for revoking the consent accorded by him. Thus, from more than one point of view this seems to me to be a fit case for forbidding the Dy. Commissioner to revoke the consent.
23. The question now is as to what order I, should issue to the Dy. Commissioner. The petitioners have asked for a writ of certiorari. But that writ can issue only to authorities entrusted with quasi-judicial functions. As the Dy. Commissioner, in the instant case is only an administrative functionary, I do not think a writ of certiorari is the appropriate writ to issue. But the petitioners have prayed for any other writ, order or direction as the circumstances of the case justify. I think the appropriate writ is a writ of Mandamus, restraining the Dy. Commissioner from revoking the consent which was accorded by him and on the basis, of which a suit has been instituted and is now pending in the district court (Please see State of Bihar v. D.N Ganguly, AIR 1958 SC 1018 at p. 1026). This petition is allowed and a writ of Mandamus will issue accordingly. I make no order as to costs in this proceeding.
FF/D.H.Z
24. Petition allowed.