State of Andhra Pradesh Vs. S. M. K.
Parasurama Gurukul [1973] INSC 113 (3 May 1973)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
PALEKAR, D.G.
CITATION: 1973 AIR 2237 1974 SCR (1) 191 1973
SCC (2) 252
ACT:
Andhra Pradesh Charitable and Hindu Religious
Institutions and Endowments Act, 1966, Ss. 6, 15, 16 and 82-Appointment of
trustee-If quasi-judicial function.
HEADNOTE:
Under s. 15(1)(a) of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act, 1966 in respect
of a charitable or religious institution or endowment included in the list
published under s. 6(a), whose annual income 'exceeds Rs. 2 lacs, the
Government may, in the case where there is a hereditary trustee, and shall in
any other, constitute a Board of trustees. The respondent applied to be
appointed as a trustee of a temple covered by s. 15(1) (a), but was not
appointed. Instead, a board of 9 trustees.
was appointed. The High Court quashed the
appointment on the ground that the authorities under the Act exercise
quasi-judicial functions and that the order appointing the Board was not a
speaking order.
Allowing the appeal to this Court,
HELD : (1) The tests for determining whether
a derision is administrative or quasi-judicial are : (a) there must be a lis;
(b) the opinion of the tribunal should be formed on the objective and not on
the subjective satisfaction of the tribunal; and (c) there must be a duty on
the tribunal to act judicially.
[193B-D] Province of Bombay v. K. S. Advani
& Ors. [1950] 1 S.C.R.
621, Sliri Radheshyam Khare & Anr. v. The
State of Madhya Pradesh & Ors. [1959] S.C.R. 1440, R. v. Manchester Legal
Aid Committee, [1952] (2) Q.B. 413, and Gullapal, Nageswara Rao & Ors. v.
Andhra Pradesh State Road Transport Corporation & Anr. [1959] Suppl. 1 S.C.R.
319, referred to :
(2) In the present case, neither the
respondent nor any of those appointed had a right to be appointed as a trustee.
There was no proposition or opposition and
hence there was no between the parties. Nor was there any question of contest
between the authority proposing to do the act and the subject opposing it.
[196D] (3) Further, none of the other tests is satisfied in this case. The
legislature has left the matter to the discretion of the appointing authority
subject to the guidelines laid down in Ss. 15 and 16. Normally the appointing
authority would exercise his own discretion as to who is best fitted to
discharge the duties and functions of a trustee. But that is not to say that
the appointing authority must set out the reasons or record a speaking order as
to why he has appointed a particular person as a trustee and not somebody else.
The fact that under s. 82 the Commissioner has power of revision in respect of
orders passed by his subordinates and the Government, in respect of orders
passed by the Commissioner as well as his subordinates, does not in any way
limit the powers of the appointing authority under s. 15. [176E to 197P]
Commissioner, H. R. & C.E. v. B.E.V. Venkatachalapathi, 85 L.W. 349
approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 796 of 1971.
Appeal by special leave from the judgment and
order dated December 31, 1969 of the Andhra Pradesh High Court at Hyderabad in
Writ Petition No. 366 of 1969.
P. Ram Reddy and P. Parameshwararao, for the
appellant.
A. Subbarao, for the respondent.
192 The Judgment of the Court was delivered
byALAGIRISWAMI, J.This is an appeal by the State of Andhra Pradesh against the
judgment of the Division Bench of the High Court of Andhra Pradesh holding that
the appointment of nine trustees to the Kalahastiswara Swami Temple in the town
of Kalahasti in the Chittoor district of Andhra Pradesh was liable to be,
quashed on the short ground that the impugned order was not a speaking order.
For this purpose the Bench relied upon its own judgment in Writ Petition No.
2536 of1967 that the, functionaries under the Andhra Pradesh Charitable and
Hindu Religious Institutions and Endowments Act, 1966, though administrative
tribunals, are exercising quasi-judicial functions in appointing nonhereditary
trustees. By the time this. appeal came up for hearing the, period of office of
the trustees, whose appointment was challenged by the respondent, was over and
the respondent, therefore, contended that the appeal should be dismissed as
having become infructuous. On behalf of the State of Andhra Pradesh. it was
urged that the question is one of considerable importance to itand that
appointment of trustees to a number of institutions is being held up because of
the judgment of the Andhra Pradesh High Court.
We, therefore, indicated that we would be
prepared to hear the appeal but would make it conditional on the respondent
getting his costs from the appellant irrespective of the result. The State of
Andhra Pradesh has no objection.
It appears that the respondent has also filed
a suit claiming that the temple in question is either a private family temple
not falling within the definition of the term temple, in the Act or at least
that he is a hereditary trustee thereof. That suit is still pending. The
decision in this appeal therefore, simply proceeds on the basis that the
respondent was one of the persons who had applied to be appointed as a trustee
of the temple in question. We are, therefore, concerned only with the question
whether in appointing trustees under section 15(1)(a) of the Act the Government
acts as a quasi-judicial tribunal. That section provides that in respect of a
charitable or religious institution or endowment included in the list published
under clause (a) of section 6 (there is no dispute that the temple in question
falls under it) whose-annual income exceeds rupees two lakhs, the Government
may, in the case where there is a hereditary trustee, and shall in any other
case, constitute a Board of Trustees consisting of not less than seven and not
more than eleven persons appointed by them. This Court has held in K. A.
Samajam v. Commer, H. R. & C.E. (1) dealing with this very section 15, that
the power to appoint non-hereditary trustees or executive officers under ss. 15
and 27, even where there is already a hereditary trustee or trustees,
notwithstanding that there is no mismanagement. is only for the purposes of
ensuring better and efficient administration and management of the institution
or endowment. It also pointed out that in making the appointment of trustees it
has been enjoined that due regard should be given to the religious denomination
or any section thereof to which the institution belongs or the endowment is
made and the wishes of the founder and held this section valid. While Aft.
Subba Rao appearing for the respondent wanted to contest the correctness of
this decision and argued that it (1) [1971] (2) S.C.R. 878.
193 should be reconsidered, we indicated that
we do not propose to do so and that if and when he succeeds in the, suit he is
said to 'have filed in establishing that he is an hereditary trustee it may be
open to him to urge this point at the appropriate time. We, therefore, proceed
on the basis that section 15 is valid.
The test for determining whether a decision
is 'an administrative one or quasi-judicial has been clearly specified in a
number of decisions of this Court.
Essentially, they are three in number 1.
There must be a lis between the two parties;
2. the opinion should be formed on the
objective satisfaction and should not depend upon the subjective satisfaction
of the tribunal; and 3. there must be a duty to act judicially.
In Province of Bombay v. K. S. Advani &
Ors.(1) Kania C.J.
with whom Patanjali Sastri, J. agreed, said
"The respondent's argument that whenever there is a determination of a
fact which affects the rights of parties, the decision is quasi judicial, does
not appear to be sound.
Furtheron the learned Chief Justice said
"It is broadly stated that when the fact has to be determined by an
objective test and when that decision affects rights of someone, the decision
or act is quasi-judicial. This last statement overlooks the aspect that every
decision of the executive generally is a decision of fact and in most cases
affects the rights of someone or the other. Because an executive authority has
to determine certain objective facts as a preliminary step in the discharge of
$in executive function, it does not follow that it must determine those facts
judicially. When the Executive authority has to form an opinion about an
objective. matter as a preliminary step to the exercise of a' certain power
conferred on it, the determination of the objective fact and the exercise of
the power based thereon are alike matters of an administrative character and
are not amenable to the writ of certiorari." To the like effect is the
observation of Fazl Ali, J. in the same case "The mere fact that an
executive authority has to decide something does not make the decision
judicial. It is the manner in which the decision has to be arrived at which
makes the difference, and the real test is : Is there any duty to decide
judicially ? As I have already said, there is nothing in the Ordinance to show
that the' Provincial Government has to decide the existence of a public purpose
judicially or quasijudicially." (1) [1950] (1) S.C.R. 621.
-L944 Sup.C.I./73 194 Dealing with the
essential characteristics of a quasijudicial act as opposed to an
administrative act, Das, J.
(as he then was) observed "........ the,
two kinds of acts have many common features. Thus a person entrusted to do an
administrative act has often to determine questions of fact to enable him to
exercise his power. He has to consider facts and circumstances and to weigh
pros and cons in his mind before he makes up his mind to exercise his power
just as a person exercising a judicial or quasi-judicial function has to do.
Both have to act in good faith. A good and valid administrative or executive
act binds the subject and affects his rights or imposes a liability on him just
as effectively as a quasi-judicial act does. The exercise of an administrative
or executive act may well be and is frequently made dependent by the
Legislature upon a condition or contingency which may involve a question of
fact, but the question of fulfillment of which may, nevertheless be left to the
subjective opinion or satisfaction of the. executive authority, as was done' in
the several Ordinances, regulations and enactments considered and construed in
the several cases referred to above.. . . . The real test which distinguishes a
quasi-judicial act from an administrative act is...... the duty to act
judicially.. . .
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 lis 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 parties apart from 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 impose 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 quasijudicial act if the, authority is nevertheless
required by the statute to act judicially." 195 The observations in
Advard's case were quoted with approval by Das, C.J. in Shri Radeshywn Khare
& Anr. v. The State of Madhya Pradesh & Ors. (1) S. K. Das, J. who in
general agreed with the learned Chief Justice in that case observed :
"To get to the bottom of the distinction,
we must go a little deeper into the content of the expression 'duty to act
judicially'. As has been repeated so often, the question may arise in widely
differing circumstances and a precise, clear-cut or exhaustive definition of
the expression is not possible. But in decisions dealing with the question
several tests have been laid down; for example(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 affidavits;
(iv) whether the decision is actuated in
whole or in part by questions of policy or expediency, and if so, whether in
arriving of the decision, the statutory body has to consider proposals and
objections and evidence; and (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 lis.
Subba Rao, J., who differed from the
majority, after referring to the, formulation of the principles in Advani's
case, earlier referred to, as unexceptionable and also to the discussion in R.
v. Manchester Legal Aid Committee(2), stated the principles in his. own words
thus :
"Every act of an administrative
authority is not an administrative or ministerial act. The provisions of a
statute may enjoin on an administrative authority to act administratively or to
act judicially or to act in part administratively and in part judicially. if
policy and expediency are the guiding factors impart or in whole throughout the
entire process culminating in the final decision it is an obvious case of
administrative act. On the other hand, if the statute expressly imposes a duty
on the administrative body to act judicially, it is again a clear case of a
judicial act. Between the two there are many acts, the determination of whose
character creates difficult problems for the court.
There may be cases where at one stage of the
process the said body may have to act judicially and at another stage
ministerially.
The rule can be broadly stated thus : The
duty to act judicially may not be expressly conferred but may be inferred from'
the provisions of the statute.. it may be gathered from the cumulative effect
of the nature of the rights affected, the manner disposal provided, the
objective criterion to (1) [1959] S.C.R.1440. (2) [1952] (2) Q. B 413.
196 be adopted, the phraseology used, the
nature of the power conferred or the duty imposed on the authority and other
indicia afforded by the statute. In short a duty to act judicially may arise in
widely different circumstances and it is not possible or advisable to lay down
a hard and fast rule or an inexorable rule of guidance." In Gullapalli
Nageswarg Rao & Orv. Andhra Pradesh State Road' Transport Corporation &
Anr.(1) Subba Rao, J., after referring to the various decisions on this subject
held :
"........ whether an administrative
tribunal has a duty to act judicially should be gathered from the provisions of
the particular statute and the rules made there under, and they clearly express
the view that if an 'authority is called upon to decide respective rights of
contesting parties or, to put it in other words, if there is a lis, ordinarily
there will be a duty on the part of the said authority to act judicially."
It is hardly necessary to say that in this case the respondent had no right to
be appointed a trustee; nor had any of the other persons who were appointed
trustees. There was no question of a proposition and an opposition. There is,
therefore, no question of any lis. Nor is here any question of contest between
the authority proposing to do the act and the subject opposing it. Such a
question will arise only 'If any right of the subject is affected. None of the
other tests laid down above are satisfied in this case.
An examination of the provisions of the
statute, which is an Act to consolidate and amend the law relating to the
administration and government of charitable and Hindu religious institutions
and endowments does not show that in appointing trustees to temples the
concerned authorities have to act judicially. Nor is the appointment of
trustees under section 15 left to the administrative authority without any
guidelines laid down by the Legislature for being followed. Section 16 lays
down the disqualification for being appointed a trustee. Section 15(4) lays
down that in making the appointment of trustees due regard shall be had to the
religious denomination or any section thereof to which the institution belongs
or the endowment is made and the wishes of the founder. in the appointment
satisfies the above tests and if the person appointed is not disqualified under
any of the clause& of section 16, the appointment will not be affected in
any way. The administrative authority concerned does not have to weigh the
relative merits of various candidates in making the appointment of trustees.
Normally it would exercise its own discretion
as to who is best fitted to discharge the duties and function of a trustee. But
that is not to say that it must set out the reasons I as to why it has
appointed somebody as trustee and not appointed somebody else as a trustee. The
Legislature has left the matter to the discretion of the appointing authority
subject to the guidelines that it has laid down in sections 15 and 16, We do
not consider that the fact that under section 82 of the Act the Commissioner
has got the power of revision in respect of (1) [1959] (Suppl.) 1 S.C.R. 319.
197 orders passed by his subordinates and the
Government in respect of orders passed by the Commissioner as well as his
subordinates (there is no provision in the Act for a judicial review in respect
of the orders passed by the Government) in any way limits their powers under
section 15(1) (a). We are of opinion that the learned Judges of the High Court were
in error insofar as the implication of their observation is that in exercising
their powers under section's 15 the administrative authorities concerned are
exercising quasi-judicial functions and that it was necessary to have a
speaking order. We find that the madras Court in Commissioner, H.R. & C.E.
v. B. R. Venkatachalapathi after a very elaborate and instructive discussion
has taken a similar view in respect of the powers of appointment of
non-hereditary trustees under section 47 of the Madras Hindu Religious and
Charitable Endowments Act, 1959, which more or less corresponds to section 15
of this Act.
The appeal is, therefore, allowed and the
judgment of the Andhra Pradesh High Court set aside. The appellant Will pay the
respondent's costs.
H.P.S. Appeal allowed.
(1) 85 L.W. 349.
Back
