IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 650 of 2009()
1. REV. FR. MATHEW NARIVELY AND 2 OTHERS
... Petitioner
Vs
1. STATE OF KERALA AND OTHERS
... Respondent
For Petitioner :SRI.T.P.KELU NAMBIAR (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :06/07/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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W.A. No. 650 of 2009
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Dated this the 6th day of July, 2009.
JUDGMENT
Bhavadasan, J,
This litigation is an offshoot of Ext.P3 order,
whereby the State declared two churches situate side by side
and a two storied building as protected monuments under the
Kerala Ancient Monuments and Archaeological Sites and
Remains Act, 1968 (hereinafter referred to as “the Act” for
brevity).
2. The monuments are located in Ramapuram, a
little known town in Kottayam District. There are three
structures involved. They are (1) St. Mary’s Church, (2) St.
Augustine’s Church and (3) a two storied building in which
Thoma Kathanar was residing in Ramapuram in Meenachil
Taluk of Kottayam District.
3. It is believed that the first church was built in
1450 A.D., which was dedicated to Virgin Mary and the
WA. 650/2009. 2
present small church was built in 1599 at the very same site where
the old one was situated. The main altar of the old church
constructed in 1450 A.D with mural paintings in Indian style
having preserved in sanctum of the present church and the same
has been dedicated to the memory of St. Augustine. The new
church constructed in 1864 is larger in size than the first church,
but is an exact replica of the smaller one. They are situated in the
heart of Ramapuram town. These churches are the centre of
attraction for a large number of pilgrims and visitors, both from
inside and outside the State. We get a glimpse of the grandeur of
the churches from the two reports available in the records. The
structures appear to be very unique and exquisite. As further
description of the churches may not be very relevant here, they are
skipped. It admits of no doubt that the churches and the two
storied building attract devotees, pilgrims and visitors.
Considering the structure, the age and importance of the churches
WA. 650/2009. 3
and the building, and the need for preservation and protection of
the same, the State felt that these structures must be brought within
the ambit of the Act.
4. When the State formed such an opinion as envisaged
under Section 4(1) of the Act, they have issued Ext.P1 notification,
thus disclosing their intention to declare that the church and other
building as protected monuments. Petitioners and others filed
their objections. After considering the objections and hearing
them, the State issued a notification under Section 4(3) of the Act
declaring the ancient monuments to be protected monuments. The
said notification was challenged in the writ petition.
5. In the writ petition, several grounds were taken.
Among them, what were urged at the time of hearing appear to be
(1) the formation of opinion as contemplated under Section 4(1)
was not supported by any material, (2) Section 4(1) and (3) did not
lay down any guidelines for exercising the power conferred with
WA. 650/2009. 4
the State and therefore they are unconstitutional.
6. The learned Single Judge found on a consideration
of the various provisions of the Act that there are sufficient
guidelines provided by the statute itself for formation of the
opinion. The learned Single Judge referred to Section 2(a), (d), (g)
and (k) read along with Section 4(1) and (3) and came to the
conclusion that sufficient indication and criteria were given in the
statute. This criteria was sufficient for determining the issues
involved and the Sections do not suffer from any vice. The learned
Judge held that formation of the opinion on the basis of the
materials available from the statute itself, which provides
sufficient guidelines would satisfy the requirements of law.
7. It is interesting to note that the learned Judge
referred to the objections filed by the petitioners to Ext.P1
notification and has extracted the statements which find a place in
the objections numbered as items. 1 to 12, which would indicate
WA. 650/2009. 5
that the structures qualified to fall within the ambit of the Act.
The learned Judge has also noticed that the petitioners have
admitted that the structures are more than 100 years old. Based on
the above materials, the learned Judge repelled the contentions
taken by the petitioners.
8. In this appeal, the challenge was made only on the
following grounds:
(i) Principles of natural justice were violated.
(ii) There were absolutely no materials before the State
for forming an opinion as envisaged under Section 4(1).
(iii) Even if there were materials, they were not
disclosed to the petitioners and their explanation sought for, and
(iv) Even if there were materials, based on which
opinion was formed, they must find a place in the order itself. It is
stated that the order must speak for itself.
WA. 650/2009. 6
9. In support of their contentions, learned counsel
appearing for the appellants relied on the decisions reported in
Bhikhubhai Vithlabhai Patel v. State of Gujarat ((2008) 4 SCC
144), Indian Nut Products v. Union of India ((1994) 4 SCC 269)
and Swadeshi Cotton Mills v. Union of India ((1981) 1 SCC
664).
10. Per contra, learned Government Pleader pointed out
that a reading of the Act will show that it provides for guidelines
based on which the State is to form an opinion as contemplated
under Section 4(1). It provides for the procedure to be followed
and then the final determination to be made under Section 4(3) of
the Act. All that the authority concerned is to see whether the
structure in question satisfies the definition contained in the Act.
Section 4(1) of the Act provides for calling for objection when a
particular structure is sought to be declared as a protected
monument. Section 4(3) provides for declaring the structure as a
WA. 650/2009. 7
protected monument after considering the objection. There is no
dispute in this case that notice was given to the petitioners for
filing their objections as contemplated under Section 4(1) of the
Act. They filed their objections and they were heard also. The
statute requires only to provide an opportunity to object and
nothing more. The formation of opinion and the subsequent
declaration do not involve any quasi judicial or judicial function.
A perusal of the records, according to the learned Government
Pleader will clearly show that all necessary steps have been
followed and there is no legal or factual illegality or irregularity in
the proceedings.
11. Before going into the rival contentions, some
relevant aspects may be noticed. The Act was brought into force
since the State felt the necessity and importance of preserving and
protecting ancient monuments and archaeological sites. They are
considered to be national treasures. The State consider as its duty
WA. 650/2009. 8
to properly maintain, protect and preserve them.
12. The Act defines an ancient monument,
archaeological sites, remains and monuments etc. Section 4 of the
Act deals with the power of the Government to declare a particular
structure as an ancient monument etc. The procedure to be
followed under Section 4 will be discussed later. Section 5 deals
with the acquisition of rights in a protected monument. Section 6
deals with matters relating to the preservation and protection of the
monument. Sections 8 and 9 deal with the repair and maintenance
of the monument. One must notice here that Section 5 infact
reserves the right to use any protected monument for customary
and religious observances. The Act also envisages an agreement to
be entered into between the owner of the structures with the
Government through the Director.
13. One of the grounds of attack is that there are no
materials in the case whereby the State could have formed an
WA. 650/2009. 9
opinion that the structures are ancient monuments. This is
followed by the argument that if there were infact any materials
before the State or the authority concerned, they ought to have
been disclosed to the petitioners and their explanation sought for.
It is further stated that the declaration issued under Section 4(3)
does not mention the reasons for the declaration.
14. In the decision reported in Bhikhubhai Vithlabhai
Patel v. State of Gujarat ((2008) 4 SCC 144) the words
“consider” and “opinion” came up for consideration. It was held
that formation of opinion though subjective must be based on
materials and that formation of opinion must reflect an application
of mind. It was held that the discretion conferred is not unfettered.
It is also held that the word “consider” means active application of
mind. It meant consideration of all relevant aspects.
15. In the decision reported in Indian Nut Products v.
Union of India ((1994) 4 SCC 269, it was held as follows:
WA. 650/2009. 10
“It is well-settled that if a statute requires an
authority to exercise power, when such authority is
satisfied that conditions exist for exercise of that power,
the satisfaction has to be based on the existence of
grounds mentioned in the statute. The grounds must be
made out on the basis of the relevant material. If the
existence of the conditions required for the exercise of
the power is challenged, the courts are entitled to
examine whether those conditions existed when the
order was made. A person aggrieved by such action can
question the satisfaction by showing that it was wholly
based on irrelevant grounds and hence amounted to no
satisfaction at all. In other words, the existence of the
circumstances in question is open to judicial review.”
16. In the decision reported in Swadeshi Cotton Mills
v. Union of India ((1981) 1 SCC 664), the necessity to follow the
principles of natural justice was emphasized.
17. Here, one needs to notice the difference between an
administrative and quasi judicial function. In the decision reported
WA. 650/2009. 11
in State of H.P. v. Raja Mahendra Pal ((1999) 4 SCC 43), it was
held as follows:
“The submission that the Pricing Committee was a
quasi-judicial tribunal constituted by the State
Government in exercise of its statutory as well as
plenary executive powers can also not be accepted in
the light of the functions assigned to the Committee.
Quasi-judicial acts are such acts which mandate an
office the duty of looking into certain facts not in a way
which it specifically directs but after a discretion, in its
nature judicial. The exercise of power by such tribunal
or authority contemplates the adjudication of rival
claims of the persons by an act of the mind or judgment
upon the proposed course of official action s to an
object of the corporate power, for the consequences of
which the official will not be liable, although his act
was not well judged. A quasi-judicial function has
been termed to be one which stands midway a judicial
and an administrative function. The primary test is as
to whether the authority alleged to be a quasi-judicial
WA. 650/2009. 12
one, has any express statutory duty to act judicially in
arriving at the decision in question. If the reply is in the
affirmative, the authority would be deemed to be quasi-
judicial, and if the reply is in the negative, it would not
be. The dictionary meaning of the word “quasi” is “not
exactly”.
It follows, therefore, that an authority is described
as quasi-judicial when it has some of the attributes or
trappings of judicial functions, but not all. This court in
Province of Bomaby v. Khushaldas S. Advani dealt
with the actions of the statutory body and laid down
tests for ascertaining whether the action taken by such a
body was a quasi-judicial act or an administrative act.
The Court approved the celebrated definition of the
quasi-judicial body given by Atkin, L.J., as he then was
in R.v. Electricity Commrs., in which it was held:
“Whenever any body of persons having legal
authority to determine questions affecting rights of
subjections, 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
WA. 650/2009. 13
exercised in these writs.”
The aforesaid definition was accepted as correct in
R.v.London Country Council and many subsequent
cases both in England and in India. Again this court in
Radeshyam Khare v. State of M.P. Relying upon its
earlier decision held:
“It will be noticed that this definition insists on
three requisites each of which must be fulfilled in order
that the act of the body may be quasi-judicial act,
namely, that the body of persons (1) must have legal
authority, (2) to determine questions affecting the rights
of parties, and (3) must have the duty to act judicially.
Since a writ of certiorari can be issued only to correct
he errors of a court or a quasi-judicial body, it would
follow that the real and determining test for ascertaining
whether an act authorised by a statute is a quasi-judicial
act or an administrative act is whether the State has
expressly or impliedly imposed upon the statutory body
the duty to act judicially as required by the third
condition in the definition given by Atkin, L.J.
* * *
WA. 650/2009. 14
Relying on paras 114 and 115 of Halsbury’s Laws
of England, 3rd Edn., Vol. 11 at pp.55-58 and citing the
case of R.v.Manchester Legal Aid Committee learned
counsel for the appellants contends that where a statute
requires decision to be arrived at purely from the point
of view of policy of expediency the authority is under
no duty to act judicially. He urges that where, on the
other hand, the order has to be passed on evidence
either under an express provision of the statute or by
implication and determination of particular facts on
which its jurisdiction to exercise its power depends or if
there is a proposal and an opposition the authority is
under a duty to act judicially. As stated in para 115 of
Halbury’s Laws of England, vol.11 at57 the duty to act
judicially may arise in widely differing circumstances
which it would be impossible to attempt to define
exhaustively. The question whether or not there is a
duty to act judicially must be decided in each case in
the light of the circumstances of the particular case and
the construction of the particular statute with the
assistance of the general principles lid down in the
WA. 650/2009. 15
judicial decisions. The principles deducible from the
various judicial decisions considered by this Court in
Khushaldas v. Advani at p.725 (of SCR): (at p.260 of
AIR) were thus formulated, namely –
(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 and the contest is between 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
WA. 650/2009. 16
statute to act judicially.”
In the instant case the order appointing the Pricing
committee which was amended on 26.11.1986
specifically provided:
“The aforesaid Pricing Committee was established
to determine (not merely to advise on) the price and
terms and conditions for the supply of resin, resin
blazes, standing trees and other foreign produce to be
handed over by the H.P. Forest Department to the
H.P.State Forest Corporation Ltd., from time to time.”
Applying the tests noticed hereinabove, it cannot be
said by any stretch of imagination that the said
Committee was or intended to be a quasi-judicial
tribunal as argued on behalf of respondent 1. This
Committee can also not be stated to have been
constituted in exercise of the plenary administrative
power of the appellant-State. It has been conceded
before us that the said Committee was not constituted in
terms of Section 6 of the Himachal Pradesh Forest
Produce (Regulation of Trade) Act, 1982. No other
statutory provision has been relied on either. The
WA. 650/2009. 17
Committee appears to have been constituted for
settlement of the claims and disputes between the
appellant-State and the respondent-Corporation. The
decisions of the Committee were applicable to the
parties to the said Committee and not to any third
person. The said Committee had no source of its
constitution in any statute nor was it intended to
determine or adjudicate the claims of parties with
respect to the matters referred to it for opinion and
suggestion or even for settlement between the parties
concerned. The decision of the committee, not being
statutory, thus could not be given effect to by the High
Court.”
18. It will be useful to refer to the decision reported in
Indian National Congress (I) v. Institute of Social Welfare
(2002(2) KLT 548). Therein it was held that in order to qualify as
a quasi judicial function, there must be a lis between two persons
and it must be necessary to resolve the dispute based on their
respective rights by an independent authority. Therefore, there
WA. 650/2009. 18
have to be two or more parties contesting each others claims and
the statutory authority requires to adjudicate the rival claims
between the parties. When that exercise is undertaken, the
function exercised by the authority is said to be quasi judicial in
nature. What function is an administrative act or a quasi judicial
act is, in the case of quasi judicial functions under the relevant law
the statutory authorities required to act judiciously. In other words,
where law requires that an authority before arriving at a decision
must make an enquiry, such a requirement of law makes the
authority a quasi judicial authority. In a quasi judicial function,
there are some aspects of judicial function. In some cases, an
administrative authority may determine a question of fact before
arriving at a decision, which may affect the right of a person. But
such a decision would not be a quasi judicial act.
19. True, the distinction between administrative and
quasi judicial function is very thin. In quasi judicial function the
WA. 650/2009. 19
adjudication of civil rights of a person is involved. The legal rights
of persons are decided according to legal rules and prudence. But
an administrative authority does not do so. It is true that a balance
has to be struck between executive function and legal protection of
right of the citizen. Abuse of discretionary power should be
checked.
20. It is well settled that in judicial review of an
administrative action, the court looks at the manner in which and
the procedure followed in arriving at the decision. The court is not
concerned with the decision as such, but the decision making
process. The courts are not sitting as a court of appeal, but simply
reviews the manner in which the decision was taken. It is accepted
that the courts usually do not have the expertise to correct
complicated and technical administrative decisions. The courts
usually do not substitute its own decisions without the necessary
expertise. The intention is to check malafide, perverse and
WA. 650/2009. 20
arbitrary action. It is trite that judicial review is held to be an
integral part of the constitution and its basic structure.
21. If the executive or administrative authority comes
to a decision without any basis or it is unreasonable, so
unreasonable as no persons would come to such a conclusion, the
court will certainly interfere. Usually the interference is only when
the decision is found to be unfair or unjust or so unreasonable that
no reasonable man would have come to such a conclusion.
22. In such cases, usually Wednesbury test is applied.
23. While the powers must be exercised reasonably, it
is no less important that the court must not overstep the limit.
Merely because the court feels that another more reasonable
conclusion could have been reached, by itself is not a ground to
interfere with the administrative action. The test is to see whether
the administrative authority’s decision is based on the relevant
matters and the authority has eschewed the irrelevant matters. The
WA. 650/2009. 21
attempt would be to find out whether the decision making authority
(i) exceeded its power, (ii) committed an error of law (iii)
committed breach of the rules of natural justice. (iv) whether
relevant aspects have been omitted to be considered and irrelevant
aspects have taken into consideration and whether the authority has
exceeded or abused its powers. Wednesbury test means that the
decision reached is so unreasonable that no reasonable man under
the circumstances would have come to such a conclusion.
24. Bearing these principles in mind, an attempt shall
now be made to see how far the principles apply to the facts of the
present case.
25. Coming back to Section 4(1) of the Act, it says that
if the Government are of the opinion that ancient monuments
should be declared to be a protected monument, they may issue a
notification. Two months notice should be given of their intention
to declare such ancient monument as protected monument and that
WA. 650/2009. 22
the notification shall be affixed in a conspicuous place near the
monument. Section 4(2) enables any person interested in the
matter, within two months after the issue of the notification, to
object to the declaration.
26. One may here at once notice that the definition of
ancient monument as contained in Section 2(a). One may also
refer to Sections 2(d) and 2(k). These provisions have been
extracted in the judgment of the learned Single Judge and hence it
is not necessary to extract them again.
27. Even going by the stand taken by the petitioners,
they admit that the structures are more than 100 years old. The
documents available with the department also show that structures
are unique and of much significance and importance. The present
state of affairs of these monuments are disclosed in the petition
itself. It was applying the ingredients available in the Statute that
the Government had formed the opinion about these structures.
WA. 650/2009. 23
There is nothing to show that the opinion so formed was arbitrary
or fanciful. As already noticed, the Statute itself provides the
necessary ingredients to be looked into and the elements to be
taken into consideration. One need not therefore go in search of
them outside the Act. One need not import anything else. In fact
the very objection filed by the petitioners to the notice published
under Section 4(1) of the Act would reveal that all the ingredients
are satisfied. The main objection was that only the smaller church
needs to be retained and the larger one needs to be demolished and
a new church is to be put up. It is on the basis of the ingredients
stipulated, as per the statute, which were found available in the
case on hand, that the State had formed the opinion. By no stretch
of imagination it could be said that the opinion so formed is
without any basis or is unreasonable.
28. Coming next to the issues that the materials were
not disclosed, there is absolutely no merit in the contention. The
WA. 650/2009. 24
nature of the structure, its importance, and its significance are
matters on which there is no dispute and they are known to the
petitioners. There are two reports in the records made available in
the case. These reports show the necessity to carry on repairs
under the supervision of the archaeological department. It makes
mention of the damages caused to the structures and the necessity
to protect the structures. The statute only requires notice of
intention to declare such ancient monument to be protected
monument and an opportunity to be given to persons to prefer their
objections. No judicial or quasi judicial function in the sense
affecting any religious right is involved. The only right is to file
objections to the proposal for consideration before forming an
opinion. The statute does not envisage a hearing of the persons,
who have preferred their objection. It may not be feasible also.
There may be innumerable number of objectors and it is not
practical to hear them all. In the decision reported in Mohd.
WA. 650/2009. 25
Ibrahim Khan v. State of M.P. (AIR 1980 SC 517), it has been
held that the mere fact that the persons are given their right to file
their objection does not take within its ambit a right for hearing
also. It is pointed out that in such cases there may be hundreds of
objectors it is not feasible or practical to give hearing to all those
persons. But in the instant case the objectors were heard. In such
a circumstance, there is no merit in the contention that there is any
violation of the principles of natural justice.
29. Coming to the contention based on non-mention of
the reason in the decision arrived at by the authority concerned,
that too is without much substance. As already mentioned, there
are materials available in the records to show that the authority
concerned has taken note of the relevant matters into consideration
and especially the two reports of the two competent authorities of
the archaeological department. Age of the church, its historical
and its archaeological importance are matters on which there can
WA. 650/2009. 26
be no serious dispute.
30. In the decision reported in Income Tax Officer v.
Biju Patnaik (1991 (1) SCC 161), it was held that even though the
order does not ex facie disclose satisfaction of the officer, if the
records disclose the same, the order cannot be challenged on
ground of non application of mind.
31. It is to be borne in mind that by the notification
issued under Section 4(3) of the Act, the owner does not divest his
ownership over the monument at all. Certain restrictions are
imposed on the use of the building, but maintenance and repairs
are to be done by the State. True, one of the reports found in the
records shows that the church authorities may be permitted to do
repairs and maintenance. But however, another report by a
superior officer has highlighted the need to do the repairs under the
supervision of the departmental authorities as the process involved
is complicated and needs expertise and skill.
WA. 650/2009. 27
32. The apprehension expressed by the owners of the
monument is unfounded and misconceived. The State cannot put
to use those monuments to any use they choose. The restriction
imposed regarding the use of the building is only by way of
caution to protect and preserve the structures. It is disturbing to
note that such being the state of affairs, a section of the public is
against the move. Destruction is easy. In fact, everyone should be
anxious to see that such structures are protected and preserved by
the State.
33. The presumption is that the statutory authorities are
exercising their powers in accordance with law. The burden is on
the person, who says otherwise to establish the said fact. In the
case on hand, the learned Single Judge has considered these
matters in detail and has come to the conclusion that there is no
merit in any of the contentions taken by the petitioners.
There is nothing to show that the said finding suffers
WA. 650/2009. 28
from any legal or factual infirmities. The result is that this appeal
is without merit and it is liable to be dismissed. We do so,
confirming the impugned judgment.
P.R. Raman,
Judge
P. Bhavadasan,
Judge
sb.