Chatterjee, J. - (1.)I have read the Judgment, brother Sen J., is going to deliver. I agree with him but I propose to discuss the question regarding the maintainability of the suit.
(2.)The question in this appeal is under what circumstances a civil court can grant a decree declaring orders passed on an enquiry in terms of Article 311 of the Constitution to be null and void. In Secretary of State v. Mask and Co., 67 Ind App 222 at p. 236: (AIR 1940 PC 105 at p. 110) the Judicial Committee observed as follows;
"It is also well settled that even if jurisdiction (of civil court) is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
But these observations have not solved the problem. In Healey v. Ministry of Health 1954-3 All ER 449 Denning, L. J. observed as follows:
"Since Barnard v. National Dock Labour Board, (1953-1 All ER 1113) I take it to be clear law that the Queen's Courts can grant declarations by which they pronounce on the validity or invalidity of the proceedings of statutory tribunals. Suppose, he said, that a man bad served more than ten years and had reached the age of sixty. Under reg. 7 he would be entitled to a pension. Suppose, however, that the Minister determined that he had no right to one. Would not the courts interfere? I think that they would. In that case there would be good reason for thinking that the Minister had mistaken or misused his powers and on that ground the court would decree his determination to be invalid, in much the same way as it can declare the decision of a valuer to be invalid: see Dean v. Prince, (1954-1 All ER 749)."
It has been urged by Mr. Sen on behalf of the appellant that a declaration can be made even in cases where the statutory tribunal has found facts, even though there was mo evidence before the tribunal in support of the order passed by the tribunal; this mistake of the statutory tribunal--it is urged--in finding a fact goes to the loot of the matter and stands on the same basis as any other matter which goes to the root. What appears to me is that in a case of such palpable error as referred to in the judgment of Denning, L. J. the courts would think that the Minister misused his power or, in other words, the Minister acted in bias. Hence, the court in such circumstances would come to a finding that the decision is vibrated by something which is akin to fraud and, therefore, I am inclined to say in such cases a suit may lie; we may declare the order void on the ground of fraud. But even if the materials be not sufficient and if the tribunal snakes an error on tacts which no other court of fact would make if versed in law and having judicial experience, the said error may be a good reason tor a writ of certiorari, but that 1 am afraid, is no good reason for declaring the order null and void.
(3.)I am referred to another decision reported in Beg v. Ashford (Kent) Justices, 1955-3 All ER 604 where Singleton, L. J. observed, "An order for certiorari should not be granted merely because a witness had committed perjury.' In fact, it was also held in the aforesaid case of 1955-3 All ER 604 that "no writ should be issued where the granting of the order would involve the court in weighing one set of alleged facts against another." Hence, far from (SIC) the order invalid even a writ cannot be issued when it involves weighing of evidence by the Court. In a rather recent decision reported in Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh it was held by Gajendragadkar, J. (as his Lordship then was) as follows;
"It is necessary to add that these observations, in 67 Ind App 222: (AIR 1940 PC 105) though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the statute have not been complied with. Non-compliance with the provision of the statute to which reference is made by the Privy Council must, we think, be non-compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction."
Mr. Sen, however, says if the finding is based on no evidence then that is not a question on the "merits" of the case. Gajendragaakar, J. (as his Lordship then was) when considering the question of merits, was referring to all cases of justifiability of a decision apart from all questions of jurisdiction and apart from all infirmities and defects which make the proceedings illegal and void. The statutory authority has to consider whether there is sufficient evidence on record or not, they have that power; if they commit an error, and hold that there is sufficient evidence where there is none that is an error of law at most but no suit for declaration lies on the reason that such errors of fact or of law are not errors which affect the jurisdiction or authority of the tribunal nor are they arrived at by some violation oi: the fundamental rules of judicial procedure; it is difficult to say that such an error is due to some bias of the tribunal.