LawDistill
Supreme Court of India

STATE OF ANDHRA PRADESH vs S. M. K. PARASURAMA GURUKUL on 3 May, 1973

Cites 0 provisionsCites 4 judgmentsCited by 0
Official PDFBench Devidas Ganpat Palekar, Alwar Naicker Alagiriswami
PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
S. M. K. PARASURAMA GURUKUL
DATE OF JUDGMENT03/05/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
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,

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. 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 it- and 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. 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 quasi-

judicially." (1) [1950] (1) S.C.R. 621. -L944 Sup.C.I./73 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 fulfilment 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 quasi-

judicial act if the, authority is nevertheless

required by the statute to act judicially." 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 evi-

dence; 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 administra-

tively 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 provi sions 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.

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 judi-

cially 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 thereunder, 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 weight 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 Legislaturehas 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. 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.