Full Judgment Text
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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,
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
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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.
JUDGMENT:
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 by-
ALAGIRISWAMI, 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 of-
1967 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
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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 satis-
faction and should not depend upon the subjective satis-
faction 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."
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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
194
Dealing with the essential characteristics of a quasi-
judicial 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
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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."
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 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
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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.
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 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
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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. Venkatachala-
pathi 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.
198