Abu Backer Adam Sait and Others vs Advocate General of Tr. Cochin State and Others

Sankaran, J.—This is a petition under Article 226 and 227 of the Constitution. The Petitioners are three in number, of whom the first Petitioner is one of the 7 members of a Board of Trustee in whom the management of a public charitable trust known as "Abdul Sathar Hajee Moosa Dharmasthapanam" is vested. Petitioners 2 and 3 are stated to be persons interested in this trust. The trust was founded by one Abdul Sathar Hajee Moossa Sait of Cochin by his last will and testament to which he gave his consent before the registering officer on 19-5-1099. Copy of the testamentary instrument thus registered has been produced and marked as Ex. X in these proceedings. This document has evolved an elaborate scheme for the management of the trust and the founder of the trust has given detailed directions as to the manner in which the trust affairs have to be conducted. A board of 7 members has been constituted by the deed of endowment and the management of the trust has been vested in this board. One of these 7 members is to be the managing trustee, preference being given to the descendants of the founder in the matter of appointment as managing trustee.

It is further stipulated that one of the other members of the board should invariably be non-muslim and should be a respectable lawyer in the Cochin State. The other members of the board are to be members of the founder''s own community. The board has been given the power to remove the managing trustee from office on grounds of mismanagement, incompetency or unfitness, and to appoint Anr. proper person in his place. The manner in which vacancies arising in the board have to be filled up is also specified in the deed of endowment. The board functioning at present consists of the 1st Petitioner and Respondents 2 to 7, the 2nd Respondent being the managing trustee.

The Petitioners'' attempt to obtain the sanction of the competent authority for instituting a suit to remove the 2nd Respondent from his office as the managing trustee, to compel him to render accounts for the period of his. management and to have a fresh scheme framed by the Court for the proper management of the trust, proved unsuccessful, and that is why they have resorted to the filing of the present petition seeking the interference of this Court by way of the issue of appropriate writs and directions enabling them to obtain the sanction as contemplated by Section 92, CPC for the institution of the suit claiming the aforesaid reliefs.

The first move in the direction of obtaining the sanction for the contemplated suit was by means of a petition dated 23-10-1950 presented by the 1st Petitioner along with Anr. person, before the State Government u/s 77 of the Cochin CPC which was then in force. Ex. C is copy of that petition. u/s 77 of the Cochin CPC as amended, suits of the kind contemplated by that section could be instituted by two or more persons having an interest in the trust, only with the consent of the Chief Minister of the State. After considering the allegations made by the Petitioners and also the objections raised by the managing trustee, the petition was disposed of by the order dated 31-12-1950. Ex. F is copy of that order. By that order the Petitioners were directed to agitate the question of the removal of the managing trustee from office before the board of trustees as per the provision contained in the deed of trust. If the Petitioners were dissatisfied with the result of such a move, they were given the liberty to apply to the Government again for the required sanction.

On 12-2-1951 Anr. petition, copy of which is Ex. A, was filed by the same Petitioners before the State Government praying that the order Ex. F may be reviewed and the sanction contemplated by Section 77, CPC may be issued. Before any orders could be, passed on that petition, the Cochin CPC was replaced by the Indian Code of Civil Procedure. u/s 92 of that Code, the consent for the institution of suits contemplated lay that section by two or more persons having an interest in the trust, had to be obtained from the Advocate General of the State. Accordingly the petition dated 12-2-1951 was forwarded by the Government to the Advocate General for disposal.

On 14-7-1951 the present Petitioners filed a fresh petition u/s 92, CPC before the Advocate General praying for sanction for their instituting a suit in the District Court of Anjikaimal against the managing trustee and the five other members of the Board of trustees for removal of the managing trustee from office, for appointing Anr. proper person as the managing trustee, for calling upon the present managing trustee to render accounts and for the settlement of a scheme to carry out the objects and purposes of the trust in an efficient manner and also for other incidental reliefs. Ex. H is copy of this petition.

of the several allegations set forth in that petition, the more important alone may be mentioned here. At a time when there were ample cash balances available with the managing trustee as per the entries in the trust accounts, he drew a total amount of Rs. 13,900/- by means of three cheques, out of the amount which stood to the credit of the trust in the Ernakulam Branch of the South Indian Bank Ltd. The amount was drawn in three instalments of Rs. 1500/- on 29-5-1950, Rs. 6000/- on 31-5-1950 and Rs. 6400/- on 2-6-1950. These withdrawals were made without the sanction of the Board of trustees and for no purposes connected with the trust. Even though the amounts were remitted back within a few months, the unauthorised withdrawals of these amounts by the managing trustee for his own private purpose amounted to acts of breach of trust on his part Contrary to the directions contained in the deed of trust, the managing trustee is seen to have been consistently retaining with him cash balances far in excess of the sanctioned amount of Rs. 1000/-. Such retention of trust funds beyond period of three months, sanctioned by the trust deed, is stated to be Anr. act of breach of, trust committed by the managing trustee.

In the year 1125 he is stated to have spent Rs. 7589-9-0 for building construction and Anr. sum of Rs. 3000/- for distribution of charities in connection with Ramzan, without obtaining the previous sanction of the board of trustees. On his own responsibility he is realising the rent of the building constructed for the trust only at a low rate of Rs. 150/- per month. The cocoanut estates of the trust yielding an annual income of rupees one lakh are being managed in manner leading to the suspicion that the managing trustee is making much profit for himself to the detriment of the trust. The board of trustees have not framed the necessary rules to prevent such acts of breach of trust on the part of the managing trustees and to ensure a proper and efficient management of the trust. The proposal of the 1st Petitioner to have the accounts of the year 1126 re-audited with a view to find out the amounts temporarily misappropriated and wrongfully retained by the managing trustee for periods beyond three months, was turned down by the board of trustees.

The board also ratified the excess expenditure incurred by the managing trustee for the building construction and also approved the amount spent for Ramzan charities. The Petitioners further alleged that a resolution for the removal of the managing trustee from office may not lead to success in the meeting of the board where the managing trustee has a packed majority on his side and that therefore the only course open to them is to seek the aid of the Court by the institution of a suit as contemplated by Section 92, CPC

Notice of the petition for sanction having been served on the counter-Petitioners, all of them entered appearance and filed their objections. The managing trustee filed a separate objection petition in which he traversed the several acts of breach of trust attributed to him by the Petitioners. He maintained that ever since he became the managing trustee in the year 1120, he has been properly looking, after the trust attaint with the result that the trust has been regularly prospering from year to year. He also contends that as a descendant of the founder of the trust he has much more interest than the Petitioners to see that the objects of the trust are properly carried out and that it is purely out of personal animosity that the Petitioners are attempting to drag the trust into a ruinous litigation. In a joint objection petition filed by the other members of the managing board, they strongly resented the Petitioners'' allegation that they form a packed majority on the side of the managing trustee.

It was also pointed out that four out of them became members of the board of trustees only after the month of May 1951, the legal trustee having been nominated by the Court and the three Ors. having been unanimously elected at a meeting in which the 1st Petitioner also participated. These counter-Petitioners maintain that ever since they became members of the board they have been using their independent judgment in deciding all questions that arose in connection with the management of the trust and they will continue to do so in future also. According to them there is no necessity for framing a new scheme for the management of the trust and the scheme evolved in the deed of trust has stood the test of time and no serious defects have been noticed in its successful working. It was also stated that the members of the board of trustees are ever willing to listen to any constructive suggestions which the 1st Petitioner might put forward and to frame the necessary rules to secure the better and more efficient management of the trust.

As for the allegation of temporary diversion of trust funds by the managing trustee for his own personal necessities, the stand taken by these counter-Petitioners was that it will be proper and desirable to wait for the final result of the criminal case already launched against him for the alleged temporary misappropriation of such funds and then to consider the question of his removal from office, in the light of the decision in that case. However these counter-Petitioners were definitely of the view that it will not be in the interests of the trust to permit the Petitioners to institute a suit of the kind contemplated by them.

The Advocate General proceeded to consider the Petitioners'' request for sanction to institute the suit as desired by them, in the light of the several objections raised by the counter-Petitioners before him. The petitions, orders and other documents relied on by the Petitioners were marked as Exs. A to Y and the documents relied on by the counter-Petitioners were marked as Exs. I to XIV. Both sides were represented by lawyers who appear to have addressed elaborate arguments before the Advocate General on the question he had to decide.

The Advocate General considered the several points urged before him and on 26-11-1951 passed an order holding that he was not satisfied that under the existing state of affairs the paramount interests of the trust call for the issue of sanction to institute a suit for the relief mentioned in the petition and accordingly dismissing the petition. The Petitioners who are dissatisfied with this order have therefore come up invoking the jurisdiction of this Court under Article 226 and 227,of the Constitution to call up the records of the proceedings before the Advocate General and to quash the order passed by him by the issue of appropriate writs and directions.

The allegations urged in the petition presented before the Advocate General have been related in the present petition also and it is contended that the facts proved and admitted are by themselves sufficient to make out a ''prima facie'' case making it obligatory on the part of the Advocate General to give his consent for the contemplated suit. His order declining to give such sanction is attacked as being "incorrect illegal, arbitrary, unjust and opposed to natural justice." It is stated that the Advocate General failed to exercise the jurisdiction lawfully vested in him u/s 92, CPC and has passed the order in question without applying his judicial mind to the points raised before him. He is stated to have missed the real question which was bound to consider and to have passed the order after taking into consideration irrelevant matters and after omitting to consider matters which are really relevant.

It is further contended that by accepting an engagement on 17-7-1952 from the managing trustee for appearing on his behalf in A. S. No.(sic) of 1951 on the file of this Court, the Advocate general had become disqualified from deciding (sic) question of sanction raised by the Petitioners without laying himself open to the suspicion of partiality or bias. On these grounds it is prayed that the order passed by the Advocate General may be quashed by a writ of certiorari.

It is further stated that the circumstances of the case fully justify the issue of a writ of mandamous directing the Advocate General to accord the sanction prayed for by the Petitioners. Lastly, it is prayed that the sanction contemplated by Section 92, CPC may be directly issued by this Court after setting aside the order of the Advocate General, in the exercise of the general powers of superintendence vested in this Court under Article 227 of the Constitution.

The petition is opposed by all the Respondents. The Advocate General, who is the first Respondent, has filed a counter-affidavit denying the allegations made against him and challenging the sustainability of the petition itself. He has stated that the impugned order was passed by him in the proper exercise of his jurisdiction, after hearing exhaustive and detailed arguments, and after a careful and anxious consideration of all the relevant facts. He contends that the correctness of the conclusion arrived at by him as a public authority in the exercise of the discretionary power vested in him by statute, is not amenable to a writ of certiorari and that in passing the order he was not acting as a judicial or quasi-judicial tribunal. He has also stated that there has been nothing in his conduct to justify even a suspicion of bias on his part.

His engagement as the senior counsel in A.S. No. 538 of 1951 was for and on behalf of the trust, in which the Petitioners as well as the other counter-Petitioners are all equally interested, and that, as such, there is no scope for his being partial towards or biased in favour of the 2nd counter-Petitioner. Beyond accepting the engagement the Advocate General had done nothing further in the case up to the time of his passing the order impugned. The other Respondents also support the general grounds of objections raised by the Advocate General. The 2nd Respondent has in addition traversed the particular allegations levelled against him by the Petitioners. In the affidavit filed by the 3rd Respondent, the objections raised by him before the Advocate General have again been reiterated.

As agreed to by both sides, the exhibits marked at the enquiry before the Advocate General were treated as the exhibits for the purpose of the consideration of the petition before this Court also.

Before proceeding to examine the question as to whether there is a case for the interference of this Court with the impugned order by the issue of writs of certiorari and mandamus, the preliminary objection urged on behalf of the Respondents as to the sustainability of this petition may be disposed of. It is contended that orders passed by the Advocate General u/s 92, CPC are not amenable to the writs contemplated by Article 226 of the Constitution. The position of the Advocate General is attempted to be equated to that of the Attorney General of India. No doubt the powers exercised and the duties performed by the Advocate General are more or less analogous to the powers and duties of the Attorney General. All the same it will not be correct to say that the position of the Advocate General is akin to that of the Attorney General in every respect. Even in the case of the Attorney General there is no warrant for the assumption that he is under no circumstances amenable to the prerogative writs under the English law.

It is well recognised that where there is a case of refusal on his part to exercise the jurisdiction vested in him under law, a writ will lie to compel him to exercise such jurisdiction. This is borne out from the following passage in Halsbury''s Laws of England, Vol. VI, (Hailsham, 2nd Edition) p. 670.

The Attorney General may present a petition for the revocation of a patent, and his fiat is in some cases necessary to authorise any other person to do so. His certificate on fiat is necessary in many cases before proceedings in which the Crown may be interested can be initiated, and a number of statutes provide that prosecutions for offences thereunder cannot be instituted without the consent or certificate of the Attorney General or Solicitor-General. The Attorney - General''s decision is conclusive, so that ''no mandamus will lie to compel him to grant a fiat, except in the event of his refusing to bear an application. The fiat cannot, however, be arbitrarily withheld.

Under the Indian Constitution the Advocate General cannot be said to be a representative of the Crown. On the other hand, he is only an officer of the State charged with certain duties. This is clear from Article 165 of the Constitution which states that the Advocate General for the State is an officer appointed by the Governor or the Raj Pramukh, as the case may be, and that lie holds office during the pleasure of the appointing authority. Clause 2 of this Article defines his duties in the following terms:

It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

In discharging the functions assigned to him u/s 92, CPC he is discharging duties of a legal character as contemplated by Clause 2 of Article 165.

Under Article 226 of the Constitution the High Court has the power, throughout the territories in relation to which it exercises jurisdiction, ''to issue to any person or authority, including, in appropriate cases, any Government'', within those territories, directions, orders or writs, including writs in the nature of ''habeas corpus, mandamus, prohibition, quo-warranto and certiorari'' or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. When the jurisdiction is thus conferred on the High Court to issue writs in appropriate cases even as against a Government, there is no point in contending that such writs will not lie against the Advocate General who is only an Officer under Government. His orders are undoubtedly liable to scrutiny by the High Court and are amenable to appropriate writs under Article 226. provided that there are justifiable grounds, calling for such interference by the High Court. The preliminary objection has no substance in it and it is accordingly overruled.

The next objection urged on behalf of the Respondents is that in passing the impugned order the Advocate General was only discharging his executive or administrative function and as such the order is not amenable to a writ of certiorari. The Petitioners, on the other hand, maintain that the order in question is a quasi-judicial order and not an administrative or executive order. The features which distinguish a judicial act from a purely administrative or executive act, has been explained in a large number of cases.

The Queen v. Corporation of Dublin'' (1878) ILR Ir 371 (A) is one of the earliest of these cases, where, in dealing with the scope of a writ of certiorari, the following observations were by May C.J.:

It is established that the writ of certiorari does not lie to remove an order mere ministerial such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term ''judicial'' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters or law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of Ors. .

In most of the subsequent cases dealing with the same subject, the definition of the term ''judicial'' as given by May C.J. in the above Passage has been accepted and followed. In - ''The King v. Electricity Commissioners'', (1924) 1 KB 171 (B), Atkin L.J.; placed particular emphasis on the presence of the judicial element when he down the following rule enunciating the four conditions to be satisfied in order that a particular order may become amenable to a writ of certiorari.

Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty of, (Sic) judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King''s Bench Division exercised in the(sic) writs.

As to when a particular act can be said to be a judicial Act, has been further explained by Scrutton L.J. in the following words in King v. London County Council'' (1931) 2 KB 215 at p. 243 (C).

It is not necessary that it should be a Court in the sense in which this Court is a Court; it is enough if it is in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari.

These and a series of other English decisions bearing on the same subject, have been exhaustively reviewed by the Supreme Court in - Province of Bombay Vs. Kusaldas S. Advani and Others, and the following tests have been laid down to determine whether a particular act is a judicial or quasi-judicial act or only a purely executive or administrative act.

At p. 226 His Lordship Kania C.J. has observed as follows:

It seems to me that the true position is when the law under which the authority making a decision, itself requires a judicial approach, the decision will be quasi judicial Prescribed forms of procedure are not necessary to make an inquiry, judicial, provided in coming to the decision the well-recognised principles of approach are required to be, followed.

At p. 239 His Lordship Mukerjee J. has explained the position in the following passage:

There cannot indeed be a judicial act which does not create rights or impose obligations but an act, as has been already pointed out, is not necessarily judicial, because it affects the rights of subjects. Every judicial act presupposed the application of judicial process. There is well-marked distinction between forming a personal or private opinion about a matter, and determining it judicially. In the performance of an executive act, the authority has certainly to apply his mind to the materials before him; but the opinion he forms is a purely subjective matter which depends entirely upon his state of mind. It is of course necessary that he must act in good faith, and if it is established that he was not influenced by an extraneous consideration, there is nothing further to be said about it. In a judicial proceeding, on the other hand, the process or method of application is different. "The judicial process involves the application of a body of rules or principles by the technique of a particular psychological method". Robon''s Justice and Administrative Law, p. 33.

It involves a proposal and an opposition, and arriving at a decision upon the same on consideration of facts and circumstances according to the rules of reason and justice. Vide (1931) 2 KB 215 at p. 233 (C). It is not necessary that the strict rules of evidence should be followed: the procedure for investigation of facts or for reception of evidence may vary according to the requirements of a particular case. There need not be any hard and fast rule on such matters, but the decision which the authority arrives at must not be his ''subjective'', ''personal'' or ''private'' opinion. It must be something which conforms to an objective standard or criterion laid down or recognised by law, and the soundness or otherwise of the determination must be capable of being tested by the same external standard.

Then again at p. 241 it is stated that:

if the foundation of the exercise of the powers by an authority is his personal satisfaction or subjective opinion about certain facts, the function is to be regarded as executive, and not judicial....On the other hand if the statute imposes an objective condition precedent of fact to the exercise of powers by an authority, and not merely his subjective opinion about it, the function would be prima facie judicial.

At p. 257 His Lordship Das, J. has stated as follows:

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 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, regulation and enactments considered and construed in the several cases referred to above.

The first two items of the definition given by Atkin L.J., may be equally applicable to an administrative act. The real test which distinguishes a quasi-judicial act from an administrative act, is the third item in Atkin L.J.''s definition, namely, the duty to act judicially. As was said by Lord Hewart, C.J. in - ''R. v. Legislative Committee of the Church Assembly'' (1928) 1 KB 411 at p. 415 (E), in order that body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicial.

Further on at p. 260 the following two tests have been laid down:

(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 Anr. 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 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 Advocate General''s order has to be tested in the light of these principles to determine whether it is a quasi-judicial order or only an executive or administrative order. The order is one passed u/s 92, CPC Under that section the Advocate General has been constituted the authority empowered to decide whether sanction or consent should be given to two or more persons having an interest in the public trust, to institute a suit of the nature contemplated by that section. It is indicated in the section itself that the persons seeking such sanction or consent should be persons having an interest in the trust.

The Petitioners in the present case have come forward as persons having such an interest in the public trust in question. As beneficiaries they have an undoubted right to see that the trust is properly administered. They have also the right, in cases of mal-administration, to institute a suit seeking the aid of the Court in the matter of setting matters right. Section 92, CPC has placed a restraint on the exercise of this right by persons having an interest in the trust. Clause 2 of the section lays down that such persons can exercise their right to institute a suit for the reliefs mentioned in Clause 1, only with the consent in writing of the Advocate General, Thus it is obvious that the decision of the Advocate General, whether the consent asked for should be given or not, is a decision affecting the rights of these persons. When the consent is sought for, it is the duty of the Advocate General to come to a definite decision as to whether such consent should be given or not.

The next aspect to be considered is whether the decision is purely a matter depending upon his opinion based on his subjective satisfaction as to whether there is necessity to institute a suit as., contemplated or whether he has to arrive at a decision on that question after a judicial consideration of the grounds urged in support of the request for sanction or consent. The questions which he has to Consider and decide in that connection have been indicated in Section 92 itself. He has to decide whether the trust is a public trust, whether the alleged breach in respect of that trust is prima facie and well-founded, whether there is a case for seeking the direction of the Court for the proper administration of the trust and whether the persons seeking the sanction to institute a suit for reliefs contemplated by the section are persons having an interest in the trust. These are matters requiring decision after due investigation.

The allegations of acts of breach of trust are undoubtedly directed against the trustees. Whenever they deny such allegation, any decision either way is possible only after investigating into the truth or otherwise of the allegations. Such investigations may be called for in respect of other matters also. Even though the section does not specify the manner and the extent of the investigation in these directions, it is obvious that the section contemplates the necessary investigation and inquiries being made by the Advocate General before he finally decides whether the sanction or consent applied for should be given or, not. It is equally obvious that he has to make a judicial approach to the question in controversy and then to arrive at a decision after due consideration of the facts and the evidence made available to him. Applying the tests already mentioned, there cannot be any doubt that the decision which the Advocate General arrives at u/s 92, CPC is a quasi-judicial decision.

So far as the order impugned is concerned, the manner and the circumstances under which it happened to be passed by the Advocate General give no room for doubt that it is a quasi-judicial order. The Petitioner''s application for sanction u/s 92 was opposed by the Respondents who entered appearance before the Advocate General and traversed one and all the allegations made by the Petitioners as grounds justifying the institution of a suit as contemplated by the section. Naturally, therefore, the Advocate General proceeded to enquire into the matters in controversy and collected as much evidence as was deemed necessary. Exts. A to Y were marked for the Petitioners and Exts. I to XIV were marked for the Respondents. After that both sides were fully heard by the Advocate General. Paragraph 9 of his order states that

very elaborate arguments were addressed by the learned Counsel on both sides, and various points of law and fact were thrashed out with great clarity and thoroughness.

In para. 3 of the counter-affidavit filed by the Advocate General in these proceedings he has stated that

the order was passed after a careful and anxious consideration of all the facts and on hearing exhaustive and detailed arguments spread over four days between 29-9-1951 and 17-11-1951.

Thus it is clear that there has really been a judicial approach as well as a judicial consideration of all the relevant points on which the parties were at variance and the order in question was passed as a result of such a consideration. It is undoubtedly a quasi-judicial order. If it is further established that in passing the order, the Advocate General acted in excess of his jurisdiction or legal authority or that he failed to exercise the jurisdiction lawfully vested in him, the order is liable to be interfered with by the issue of a writ of certiorari.

The next point urged on behalf of the Respondents is that u/s 92, Code of Civil Procedure, the Legislature has left the decision as to whether the sanction applied for should be given or not, to the complete discretion of the Advocate General and that the exercise of that discretion one way or the other is not liable to be interfered with by a Court of law.

No doubt there is nothing in Section 92 to Compel the Advocate General to give, his sanction or consent to institute a suit in respect of a public trust whenever two or more persons having an interest in such trust come forward with a request in that direction on the allegation that such trustees are guilty of breach of trust. On the other hand, the duty is cast on him to consider the allegations on the merits and to decide for himself whether the paramount interests of the trust require the institution of the contemplated suit. He has to exercise his own discretion in the matter and come to a definite conclusion one way or the other. It is a judicial discretion which has to be properly and reasonably exercised in accordance with certain well-recognised principles of law.

These principles have been repeatedly laid down in a series of cases. In - King v. Board of Education'' (1910) 2 KB 165 (F) at pp. 178 to 180, the question of the exercise of the discretion vested in a public authority has been dealt with by Farwell L.J. in the following terms:

The point is of very great importance in these latter days, when so many Acts of Parliament refer questions of great public importance to some Government department. Such department when so entrusted becomes a tribunal charged with the performance of a public duty, and as such amenable to the jurisdiction of the High Court, within the limits now well established by law.

If the tribunal has exercised the discretion, entrusted to it bona fide, not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the Courts cannot interfere; they are not a Court of appeal from the tribunal, but they have power to prevent the intentional usurpation or mistaken assumption of a jurisdiction beyond that given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of extraneous considerations in arriving at their conclusion or deciding a point other than that brought before them, in which case the Courts have regarded them as declining jurisdiction. Such tribunal is not an autocrat free to act as it pleases, but is an inferior tribunal subject to the jurisdiction which the Court of King''s Bench,for centuries, and the High Court since the Judicature Acts, has exercised over such tribunes.

At p. 180 the following observations Lord Esher in - ''Reg. v. Vestry of St. Pancreas (1890) 24 QBD 371 at p. 375 (G), have been, quoted with approval:

They must fairly consider the application and exercise their discretion on it fairly, and not take into account any reason for their discretion which is not a legal one. If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, when in the eye of the law they have not exercised their discretion.

The same question came up for consideration In - ''Associated Provincial Picture House Ltd. v. Wednesbury Corporation'' (1948) 1 KB 223 (H). At pp. 228 and 229 Lord Green, M.R. expressed himself as follows:

When discretion of this kind is granted the law recognises certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any Court of law. What, then, are those principles? They are well understood. They are principles which the Court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.

Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters. There have been in the cases expressions used relating to the sort of things that authorities must not do, not merely in cases under the Cinematograph Act, but generally speaking, under other cases where the powers of local authorities came to be considered. I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty - those of course stand by themselves - unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question.

If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent. For instance, we have heard in this case a great deal about the meaning of the word "unreasonable". It is, true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretion often use the? word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably."

Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L. J. in Short v. Poole Borough'', (1926) Chn 66 at pp. 90, 91 (I), gave the example of the redhaired teacher, dismissed because she had red hair. That is unreasonable in one sense, In Anr. sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith and, in fact, all these things run into one Anr. .

The same principles have been stated in - Moti Lal and Others Vs. The Government of the State of Uttar Pradesh and Others, where the following observations occur.

The law, as I understand it, is that if people who are under a statutory duty to exercise a public duty, by exercising their discretion, take into account matters which are extraneous, then in the eye of law they have not exercised their discretion. They must fairly exercise their discretion and not take into account any reason which is not a legal reason. It is incumbent on a statutory body to act in a bona fide manner, consistently with the duty cast on it by the statute and not act arbitrarily or highhandedly. Where the language of the statute shows that a power has been conferred and has been coupled with a duty to do something, then, there may be something in the nature of the thing empowered to be done, which may make it the duty of person in whom the power is reposed to exercise that power when called upon to do so.

Then again, in ''Gayadinram v. A.D. Khan'', 55 CWN 667 at p. 668 (K) it is stated as follows:

A Court of law does not ordinarily exercise jurisdiction to review an exercise of discretion vested in a public officer entrusted with discharge of public duties. If, however, the reasons given are irrelevant to the matter in hand and if people who have to exercise a public duty, while exercising discretion, take into account matters which the Court considers not to be proper for guidance of their discretion, then in the eye of law they have not exercised their discretion. An arbitrary and capricious exercise of discretion would be no exercise at all.

Within the limits explained in these decisions, the discretion vested in the public authority by the Legislature is absolute. Where the discretion has been properly exercised as contemplated by law, the decision reached by the authority concerned cannot be interfered with by a Court.

In ''Julius v. Lord Bishop of Oxford'' (1880) 5 AppCas 214 at p. 228 (L), Earl Cairns L.C. has explained this position in the following words:

I will only add that if I am right in holding that the Bishop has, under the statute, a discretion as to proceeding or not proceeding, in the way in which the Appellant calls upon him to do, Your Lordships have not, as it seems to me, any occasion or indeed any right to examine into the manner in which, or the principles upon which, that discretion has been exercised, For the exercise of that discretion the Bishop, and the Bishop alone is responsible, and it would, in my opinion, be inconsistent to hold that his discretion is an answer to the application for a mandamus, and at the same time, on that application, to criticise the grounds upon which that discretion has been exercised.

Such an immunity does not attach itself to a decision arrived at by the authority in whom the power to decide is vested by statute when the decision is arrived at without a proper exercise of his discretion in the manner already explained. In - ''Board of Education v. Rice'' 1911 AppCas 179 at p. 182 (M), Lord Loreburn L.C. observed that

if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.

In (1880) 5 AppCas 214 at p. 225 (L), Karl Cairns L.C. has observed as follows:

that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and this Court will require it to be exercised.

The same rule is stated in Halsbury''s Laws of England, Volume 9 (Hailsham, 2nd Edition) where it is stated that:

If public officials or a public body fail to perform any public duty with which they have been charged, a writ of mandamus will lie to compel them to carry it out....

The question therefore is whether the impugned order calls for interference by this Court on any of the grounds indicated in the rulings cited above. A perusal of the order shows that the several points raised by the contesting parties had been duly considered by the Advocate General in coming to the conclusion that it will not be in the paramount interest of the trust to drag it into a litigation as desired by the Petitioners. It has to be examined whether this conclusion is the result of the Advocate General having taken into account matters which he ought not to have taken into account at all or the result of his refusal or neglect to take into account matters which he was bound to take into account. It has also to be seen whether the ultimate conclusion arrived at by him can be said to be so unreasonable that no reasonable authority could ever have come to it. The exact nature and scope of the jurisdiction vested in the Advocate General u/s 92, CPC have to be kept in mind while considering these different aspects.

It is obvious that in enacting Section 92, the Legislature wanted to place a restraint on free and indiscriminate litigations in respect of public trusts which, instead of advancing the interests of the trust, might result in its ruination. The duty, is undoubtedly cast on the Advocate General to satisfy himself that the situation is such as to justify the institution of a suit of the nature contemplated by Clause 1 of the section to safeguard the prosperity and well-being of the trust, before himself instituting a suit or giving his sanction or consent to two or more persons having an interest in the trust to prosecute such a litigation. Every allegation of breach of trust as against the managing trustee may not justify the adoption of such a course. Even when the matter, comes before Court in the shape of a properly instituted suit, the Court will be very cautious in interfering with the management of the trust.

The broad principles which should guide the Court in the matter of exercising its jurisdiction in that direction, as laid down in decided cases, have been collected and incorporated in the following passage in Lewin on Trusts, 15th Edition, at p. 416:

In exercising its inherent jurisdiction of removing trustees, the Court had laid down the broad principle that its main guide must be the welfare of the beneficiaries. In cases of positive misconduct a Court of Equity has no difficulty in interposing to remove trustees who have abused their trust; but it is not every mistake or neglect of duty, or inaccuracy of conduct of trustees which will induce the Court to adopt such a course. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity. Friction or hostility between trustees and beneficiaries, or between a trustee and his co-trustees, is not of itself a reason for the removal of trustees.

In - AIR 1947 22 (Oudh) the following principles were laid down:

Where the removal of trustees for misconduct or breach of trust is alleged, the test which must be applied is Whether the acts or omissions complained of disclose conditions which render intervention necessary in order to save the trust property. It is to be seen whether such state of affairs was brought about deliberately or wilfully and whether the trustees were actuated by dishonest and corrupt motives. Again there may be cases where there is an utter lack of competence to administer the trust property. Errors of judgment or miscarriage of discretion have to be disregarded unless they be sufficiently chronic. One is apt occasionally to magnify such shortcomings into what are sometimes characterised as breaches of duty, misconduct, misfeasance or gross neglect. But if they are not the result of want of fidelity, they cannot be made the basis of interference.

These principles are so well recognised in all jurisdictions that it does not seem necessary to cite more authorities in support of them. Even though the final decision as to whether in a given case the trustee has to be removed from office or not, is a matter resting with the Court, the principles which should guide the Court in respect of that matter could equally be accepted and followed by the Advocate-General also in coming to the conclusion as to whether there are prima facie grounds justifying the institution of a suit for such a relief.

It is apparent from the order of the Advocate General that he was fully conscious of this position. In paras. 13 and 14 of his order, he has stated as follows:

The main question therefore that falls to be considered is as to whether a fit and proper case has been made out for according sanction u/s 92. The primary consideration that must weigh with me is as to whether the Interests of the institution call for such action.

It is thus clear that he had approached the question before him in a real and proper perspective. It is also seen that he had weighed the several aspects placed before him for reaching his ultimate conclusion. All the same the Petitioners have challenged his manner of approach to the question mainly on two grounds and they are: (1) that he has refused to consider certain matters having an important bearing on the question for decision and (2) that he has been guided by irrelevant matters,

In support of the first ground it is pointed out that the Advocate General acted unreasonably in turning out the requests which the Petitioners had made in their petitions Exs. L, L(1), L(2) and L(3). These petitions were presented before the Advocate General, at a stage when the enquiry before him had reached the closing stage prayer in the petition Ex. L was that the Advocate General may make a reference to Shri T.K. Narayana Pillai who had questioned the managing trustee in connection with the first petition that had been presented before Government for sanction u/s 77 of the Cochin Code of Civil Procedure, as to whether the managing trustee had not then admitted that he had diverted trust funds for his sister''s marriage as alleged by the Petitioners.

Exhibit L (3) is Anr. similar petition requesting the Advocate General to refer the Petitioners'' allegation that the managing trustee had committed certain irregularities in the sale of the cocoanuts from the trust estate and also the allegation that the unauthorised drawings of trust funds by the managing trustee had been questioned at the meeting of the Board of Trustees held on 15-1-1126 and on 19-1-1126, for the remarks of Sri T.S. Narayana Iyer who was at that time the lawyer trustee and who later on resigned his office. In the petition Ex. M filed by the managing trustee he had objected to the grant of the requests contained in Exs. L and L(3). The objection raised was that it would not be proper to call for the remarks of the two gentlemen already mentioned and that if the request is to be allowed, it may inevitably necessitate their cross-examination and the letting in of further evidence by either party.

It has to be remembered in this connection that the enquiry which the Advocate General could undertake u/s 92, CPC was limited in its scope and character and it was not open to him to embark on any detailed investigation into all minor allegations made by the parties and to call witnesses and administer oath to them and to permit their examination and cross-examination as if he was functioning as a regular Court. The order Ex. F passed by Government on the first petition for sanction u/s 77 of the Cochin CPC was already before the Advocate General and it could give him an idea as to what transpired at the enquiry alleged to have been conducted by the then Chief Minister Shri T.K. Narayana Pillai. Similarly there was Ex. S, letter of Shri T.S. Narayana Iyer which could give the Advocate General an idea as to what Sri T.S. Narayana Iyer felt about the conduct of the managing trustee.

It was under such circumstances that the Advocate General declined to call for the remarks of Sri T.K. Narayana Pillai and T.S. Narayana Iyer as desired by the Petitioners and dismissed the two petitions Exs. L and L(3). We do not see any reason to hold that in dismissing those petitions the Advocate General acted improperly or that he omitted to consider matters having a great bearing on the question he had to decide.

The request in the petition Ex. L(1) was that the managing trustee should be directed to file a statement specifying the purposes for which trust funds had been drawn by him on 29-5-1950, 31-5-1950, and 2-6-50. These drawings form the basis of the allegation that trust funds had been diverted by the managing trustee for his own purposes and in the objection petitions filed by him he had offered his own explanations. No doubt he had not specified the exact purpose for which these funds were utilised by him. It was open to the Advocate General to form his own inference arising from such omission. All the same he could not compel the managing trustee to file a statement specifying the exact purposes for which the amounts were drawn. Even if the Advocate General had formed the impression that there was a temporary diversion of trust funds and a consequent breach of trust committed by the managing trustee, it was still open to him to consider whether that reason alone would justify the institution of a suit in respect of the public trust.

At any rate, the rejection of the petition Ex. L(1) cannot also be said to amount to an improper conduct resulting in the failure to consider any important and relevant fact. Then there is the petition Ex. L(2) which contained a request to appoint an auditor to examine the trust accounts, to And out the extent of the amounts which the managing trustee had retained with him contrary to the directions contained in the trust deed and also the duration of the period for which he had retained such amounts with him. The accounts had already been audited by a reputed firm viz., Varma and Varma, chartered accountants, and their report Ex. R was already available for perusal and consideration by the Advocate General. In such a situation it cannot be said that he acted improperly or unreasonably in refusing to order a re-audit of the accounts as desired in the petition Ex. L(2).

The materials necessary to enable the Advocate General to form a conclusion as to how far the several allegations made by the Petitioners would justify the institution of a civil suit as desired by them, had already been made available to the Advocate General and all such materials have been duly taken into account by him in forming his own conclusion in the matter as the result of a due exercise of the discretion vested in him u/s 92, CPC

Even though certain irregularities had been alleged against the managing trustee in relation to the dealings of the cocoanut yield of the trust estate, to building construction and to Ramazan charity, these irregularities were not pressed before the Advocate General. It is so stated in para. 17 of his order. Before this Court also these allegations were not pressed at the time of arguing the petition.

The objection that the Advocate General had been guided by considerations of irrelevant matters may now be examined. The position taken up by the Petitioners is that the temporary diversion of trust funds by the managing trustee was itself sufficient to constitute a breach of trust on his part and when there was prima facie evidence in proof of that fact, the Advocate General was bound to give his consent for the institution of a suit u/s 92, CPC and that he should not have taken into account the pendency of the criminal case against the managing trustee for the alleged offence of temporary misappropriation in respect of the identical amounts, or the coming into existence of a new Board of trustees or the possibility of their taking appropriate action against the managing trustee and removing him from office when it is conclusively established that he is guilty of gross acts of breach of trust, or the anxiety of the founder of the trust as disclosed by the deed of endowment that as far as possible the trust should not be dragged into any Litigation.

This position cannot be accepted as correct: it will be wrong to assume that the Advocate General had only to consider whether a prima facie case is made out in support of the allegation that the managing trustee had temporarily diverted trust funds for his own purposes and had thus committed an act of breach of trust. As explained already, the real question that the Advocate General had to consider was whether the existing situation was such that the trust would suffer unless a suit was instituted forthwith for the removal of the managing trustee from office and for getting a proper scheme framed by the Court for the efficient management of the trust. The surrounding circumstances were really relevant in that connection. One such circumstance was the re-constitution of the board of trustees.

Barring the 1st Petitioner and the managing trustee, there are five members in the Board and four out of these five members came into the board only long after the alleged misdeeds and irregularities by the managing trustee had been committed. Even if such acts are true and well founded, no sort of responsibility for such acts could be attributed to these new comers on the board of trustees.

21a. Under Ex. X the deed of endowment the founder of the trust had been careful to make detailed provisions for the proper and efficient management of the trust. Very large powers have been conferred on the board of management. By Clause 21 of the deed of endowment, the board has been authorised to remove the managing trustee from office on the board being satisfied that he is guilty of serious acts of mismanagement and to appoint Anr. proper and competent person in his place. No doubt the existence of such a domestic forum will not oust the jurisdiction of the Court to deal with the same question when it is brought before it. Similarly it will not prevent the Advocate General from considering the question whether the matter should be permitted to be taken to a Court of law. All the same it was perfectly within his discretion to consider and decide whether the interests of the trust will not be best served by giving the new board an opportunity to set matters right by taking appropriate action in exercise of the powers conferred on it by CI. 21 of Ex. X.

In viewing the matter in that light, he appears to have been influenced by the fact that the four members who have newly come to the board and who by themselves form a majority in it are persons of unchallenged integrity and fairmindedness. Excepting the bare allegation that the five members of the board excluding the managing trustee and the 1st Petitioner form a packed majority on the side of the managing trustee, the Petitioners were not able to bring to the notice of the Advocate General any discrediting circumstances against these five trustees. The only thing said against them is that they were not too ready to precipitate matters by accepting the resolution moved by the 1st Petitioner for the removal of the managing trustee from office for the alleged breach of trust in connection with the temporary diversion of trust funds.

The board deferred the consideration of the matter because the members were of opinion that since the alleged diversion of trust funds has. already been made the subject matter of a criminal prosecution against the managing trustee as evidenced by Ex. XIII, it would be advisable to wait for the decision of that case to know whether the managing trustee had been really acting fraudulently and dishonestly. At the same time the members of the board were prepared to express their willingness to accept and implement any constructive suggestions calculated to the well-being of the trust. In the counter-affidavit filed by the 3rd Respondent it has been definitely stated that on a case being made out that the trust is suffering at the hands of the managing trustee, he would be removed from office by a resolution of the board and that it will be unnecessary to institute a suit for that purpose. Such an attitude and outlook on the part of the members of the board cannot be characterised as improper.

All these circumstances appear to have induced the Advocate General to think in the following terms:

To my mind the new board of trustees will have to be given fair chance of Scrutinising and setting right the irregularities in the management, if any. Their discretion, it has to be assumed, will be exercised in a fair free and impartial spirit with due regard to their responsibility as trustees of a public trust. They could not be said to be guilty of negligence or misconduct, nor could it be said that the interest of the trust in their hands is in "jeopardy."

He was also of the view that

the formation of a new committee will certainly arrest any tendencies injurious to the estate. At least they have done nothing so far to merit even a charge of unfitness or partiality.

In Ex. X the founder of the trust had disclosed his anxiety that this trust may not be dragged into a litigation and obviously with that object in view a provision was inserted in Clause 33 authorising the Government to take possession of the trust properties by appointing a receiver and to arrange for the proper management of the trust when it is seen that the affairs of the trust are in jeopardy and that the members of the board are not taking proper steps to set matters right Even though such provision will not stand in the way of institution of a suit as contemplated by Section 92, Code of Civil Procedure, the Advocate General was certainly in order in taking this aspect also into consideration in deciding whether the necessity for the institution of a suit as desired by the Petitioners has become imminent and imperative.

In fact, the several, aspects already adverted to were really relevant to the question as to whether a suit u/s 92, CPC is called for in view of the situation as it exists at present in respect, of this particular trust. The final conclusion reached by the Advocate General is that "I am not satisfied that the paramount interests of the trust call for a sanction at this stage". In view of the several circumstances already adverted to, the conclusion reached by the Advocate General cannot be characterised as unreasonable and unjustified.

At this stage one other contention urged on behalf of the Petitioners may be disposed of. That contention is that on the available materials the Advocate General should have given his consent for the suit contemplated by Section 92, CPC and that since he has refused to give such consent or sanction, this Court has to exercise the jurisdiction conferred by Article 226 and 227 of r the Constitution, by issuing the sanction from this Court direct or by directing the Advocate General by the issue of a writ of mandamus to give the sanction applied for. This Court is thus required to consider the several facts and circumstances urged by the Petitioners and to form an independent conclusion that such facts and circumstances fully warrant the issue of the sanction applied for by them.

The Legislature has vested the power and the jurisdiction to come to a decision on this matter, on the Advocate General and on him alone. This is obvious from Section 92, CPC It is therefore clear that the Petitioners could not have directly approached this Court with a request for the sanction contemplated by that section. They approached the Advocate General himself as required law, and he exercised the jurisdiction vested him u/s 92 and came to a decision unfavourable to them. It is on the allegation the Advocate General''s decision is not the result of a proper exercise of the jurisdiction vested in him that this Court''s interference with that order is sought for by the issue of writs of certiorari and mandamus or other appropriate orders and directions. The question is whether this Court''s power of interference in these directions includes the power to substitute its own independent decision for that of the Advocate General.

It has already been found that the Advocate General was functioning as a quasi-judicial tribunal in giving the decision on the question agitated before him. Such a decision could be reversed and a contrary decision substituted in its place by this Court only by exercising an appellate jurisdiction over the decision of the Advocate General. Right of appeal from a subordinate tribunal to a superior tribunal is a substantive right which must have its origin in some statutory enactment. In the absence of any such legislative provision, a right of appeal cannot be presumed to exist. The existence of an appellate jurisdiction can alone enable a superior Court to review the decision of the inferior Court or tribunal and to substitute its own decision on the same cause in place of the decision of such inferior Court or tribunal.

In doing so the superior Court will be exercising the jurisdiction which the inferior Court or tribunal has over the cause and will be giving a decision which such inferior Court or tribunal ought to have given. No such extended and appellate jurisdiction can be presumed to exist in the superior Court. On the other hand, such appellate jurisdiction must be traceable to and must be derived from some statutory authority, and in such a situation only the superior Court will be entitled to review the decision of the inferior Court or tribunal and to give a fresh decision on the merits of the cause. There is no express provision of law conferring an appellate jurisdiction on the High Court in respect of the Advocate General''s order u/s 92, CPC In fact, there is no provision for any appeal against such orders.

The jurisdiction of the superior Court to interfere with the orders of inferior Courts or tribunals by the issue of writs of certiorari and mandamus as universally understood is not the same as an appellate jurisdiction. The considerations which should weigh with the superior Court in interfering with a particular order by the issue of a writ of certiorari, are whether the order is a judicial or quasi-judicial order passed by an inferior Court or tribunal and whether in passing such order the tribunal has acted in excess of its authority by committing an error in the exercise of its jurisdiction. The writ is essentially intended to rectify such errors in the exercise of the Jurisdiction and not to pronounce on the correctness of the decision in question. When the order or decision is quashed on account of the defect or error in the exercise of the jurisdiction, the matter is left at large, so that the tribunal has again to decide the question after a proper and due exercise of the jurisdiction vested in it.

The superior Court''s power to rectify errors in the exercise of jurisdiction by the inferior tribunal has never been understood to be the same as an appellate power enabling that Court to examine the decision on its merits. The extent of the power of the superior Court in issuing a writ of certiorari has been explained by Lord Sumner in - ''Rex v. Nat Bell Liquors Ltd.'' (1922) 2 AppCas 128 at p. 158 (O) in the following terms:

Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for, in so doing, it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points. One is the area of the inferior jurisdiction and the qualifications and conditions of its exercise, the other is the observance of the law in the course of its exercise.

Where the superior Court has no appellate jurisdiction to review the decision of the inferior Court or tribunal and to come to an independent decision on the merits of the cause, it is obvious that it cannot issue a writ of mandamus directing such inferior Court or tribunal to decide a matter in a particular manner. The same principle is laid down in Halsbury''s Laws of England, Vol. 9 (Hailsham, 2nd Edition) at pp. 764, 765 and 767. There it is stated as follows:

In cases where application is made for the issue, of a writ of mandamus to tribunals of a judicial character, the writ will only be allowed to go commanding such tribunals to hear and decide a particular matter. No writ will be issued dictating to them in what manner they are to decide....Where any other tribunal of a judicial character has in fact heard and determined any matter within their jurisdiction no mandamus will issue for the purpose of reviewing their decision.

The rule holds good even though such decision is erroneous, not only as to facts, but also in point of law; and although the particular circumstances of the case are such that there is only one way of performing the duty in question. The Court will only interfere when the tribunal has not properly exercised its jurisdiction and has not heard and determined according to law, because it has taken into account extraneous matters and allowed itself to be influenced by them..... The rule that the Court will not question by mandamus the honest decision of a tribunal, even though erroneous, in matters within its jurisdiction, and in regard to which it has been intrusted with a discretion, applies to all tribunals and not only to those of a judicial character.

It is contended on behalf of the Petitioners that the express powers conferred on the High Court by Article 226 of the Constitution are so wide that the exercise of such powers cannot be subject to any of these limitations. The decision of a Full Bench of the Nagpur High Court in - ''Bhai Lal v. Addl. Deputy Commr., Akola'' AIR 1953 Nag 89 (P) is also relied on in support of such a contention. It is seen from that decision .that on the question of the extent of the powers conferred on the High Court by Article 226, there was keen difference of opinion among the Judges who sat on that Special Bench.

Three Judges who formed the majority rul6d as follows:

In interpreting a constitution or organic statute, that construction most beneficial to the widest possible amplitude of its power must be adopted. This does not connote that High Courts are given unlimited power to do anything by their writs or orders under Article 226; but some limitation must be placed by them on their own powers. At the same time, the power conferred by Article 226 is ample and wider than the power of issuing English prerogative writs. That being so, it would not be correct to limit that power to the Indian law which preceded the Constitution or to the English Common Law. Article 226 is, as it stands, an overriding and unfettered article and it is not made subject to any existing laws or to any restrictions imposed by law.

It was further held that

While quashing the order the High Court could pass an appropriate order which ought to have been passed by the authority concerned.

The other two Judges who formed the dissentient minority took the view that the power conferred by Article 226 is not so unlimited or unrestricted as it is supposed to be. They stated their view in the following terms:

Article 226 must be taken to have given some concrete and definite powers. The power which has been granted must be exercised in accordance with well-established principles. It must stop short with getting rid of orders which are wrong; but the High Court cannot arrogate to itself the powers of every conceivable tribunal or body in the country and to pass orders in matters which are specially within the competence of those bodies. What is meant by the Article is that sometimes a direction, sometimes an order and sometimes a writ, appropriate to the case, should issue. The words are ''directions, orders or writs'', and not ''any direction, order or writ''. Categories are mentioned, but the Article has nowhere said that the High Court can issue any order or direction. The High Court acting under the process of certiorari and mandamus as universally understood, cannot either decide a case itself or compel the inferior legal tribunal to come to a particular decision.

With great respect to the learned Judges who took part in the above decision, we have to state that we have not been able to accept the view of the majority as correct. On the other hand, we are in general agreement with the view taken by the minority and also with the reasonings given in support of that view. No doubt Article 226 of the Constitution has conferred very wide powers and extensive jurisdiction on the High Court for the purpose of protecting and safeguarding legal rights and for preventing any unauthorised and unjustified invasion of such rights. But unless the power and the jurisdiction thus conferred taken in an all-comprehensive appellate jurisdiction also, the High Court, while interfering with orders of inferior tribunals will not be entitled to assume for itself the jurisdiction that is specially and exclusively vested in the inferior tribunal and then to proceed to decide the matter on its merits or to compel such tribunal to come to any particular decision. A direction to the inferior tribunal to decide the matter in a particular way can follow only after the High Court has itself come to an independent conclusion that such should be the decision in the cause. The power to review the decision of the inferior tribunal and to form an independent decision on the merits of the cause can rest only on the appellate jurisdiction of the superior Court.

The question, therefore, is whether Article 226 can be read and construed as conferring such an appellate jurisdiction also on the High Court. Our answer to this question is definitely in the negative. Even though Article 226 is couched in very comprehensive terms, there is a clear indication in the Constitution itself that an overriding appellate jurisdiction is not intended to be conferred on the High Court by this Article. Powers similar to those conferred on High Court by virtue of Article 226 have been conferred on the Supreme Court by Article 32. If these powers were so wide as to take in a general appellate jurisdiction also, the framers of the Constitution would not have thought it necessary to make a separate provision conferring a general Appellant jurisdiction on the Supremes Court.

But we find a separate Article like, Article 136 enacted, under which a special and general appellate jurisdiction has been conferred on the Supreme Court. That Article states that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence, or order in any case or matter passed or made by any Court or tribunal in the territory of India. Military tribunals and their orders are alone excluded from, the ambit of this jurisdiction. This shows that Article 32, or, for that matter Article 226, was not intended to confer any appellate jurisdiction on the Supreme Court or the High Court, as the case may be. The constitution has not made any provision conferring any overriding and general appellate jurisdiction on the High Court in respect of inferior tribunals functioning within its jurisdiction. The High Court''s appellate jurisdiction must, therefore, be limited to that defined in the statute under which it is functioning and to that expressly conferred by other special statutes.

This question is now beyond the stage of controversy in view of the decisions of the Supreme Court in - Parry and Co. Ltd. Vs. Commercial Employees'' Association, Madras, and in - Veerappa Pillai Vs. Raman and Raman Ltd. and Others, . In Parry and Co. Ltd. Vs. Commercial Employees'' Association, Madras, the question was whether the High Court was in order in pronouncing upon the merits of the claim which the Petitioners had urged before the Labour Commissioner, after quashing the latter''s order by the issue of a writ of certiorari. In dealing with the question the Supreme Court observed as follows:

The Commissioner was certainly bound decide the questions and he did decide them. At the worst, he may have come to an erroneous-conclusion, but the conclusion is in respect of a matter which lies entirely within the Jurisdiction of the Labour Commissioner to decide and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction.

The records of the case do not disclose any error apparent on the face of the proceeding, or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no ground here which would justify a superior Court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. ''What the High Court has done really is to exercise the powers of an appellate Court and correct what it considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do''.

The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and to such cases a mandamus might legitimately issue commanding the authority to determine questions which it left undecided; but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable.

In Veerappa Pillai Vs. Raman and Raman Ltd. and Others, the Supreme Court had to consider the extent to which the High Court could exercise its jurisdiction under Article 226 in interfering with an order passed by an inferior tribunal, and the limits of the powers of the High Court in that connection have been defined as follows:

Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunal or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess, has resulted in manifest injustice. ''However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned, and decide what is the proper view to be taken or the order to be made''.

In that case the direction which the High Court had issued to the Regional Transport Authority, whose order had been quashed by the High Court, that the Petitioner''s application should be disposed of by granting him certain specified reliefs, was characterised by the Supreme Court as a direction clearly in excess of the High Court''s power?, and jurisdiction under Article 226. These decisions afford a sufficient answer to the contention urged on behalf of the Petitioners that this Court should consider the Petitioners'' claim that they are entitled to get the sanction u/s 92 for the institution of the contemplated suit, on its merits and directly issue the sanction, or at least command the Advocate General to give such sanction or consent. The decision in that matter should essentially be that of the Advocate General and the same rests on a proper discretion to be exercised by him in the light of the relevant facts and circumstances. The High Court cannot usurp his jurisdiction in that matter and substitute its own discretion for his discretion and impose its independent decision on him.

Article 227 also cannot be invoked for the grant of the relief of the kind mentioned above. The power conferred on the High Court by this Article is undoubtedly very much limited in its scope than the power under Article 226. Under Article 227 the High Court has been given the power of general superintendence over all Courts and tribunals (excepting Military Tribunals) throughout the territories in relation to which it exercises jurisdiction. This supervisory'' jurisdiction cannot certainly amount to an appellate jurisdiction enabling the High Court to review the decisions of such Courts and tribunals and to pass fresh decisions of its own after a due consideration of the matter on its merits. The power conferred by this Article is obviously intended to see that the inferior Courts and tribunals act within the limits of their respective jurisdiction and in accordance with their authority as prescribed by law.

In Motilal Vs. State, the scope of Article 227 was considered and at p.972 it was pointed out that this Article is more limited in character and scope than Article 226. It was further pointed out that the main objective of Article 227 would, more broadly, seem to be to secure administrative supervision not easily exercisable by writs, directions or orders. Further on It is stated that the emphasis under Article 227 is on administrative control and that the limited judicial powers contemplated by it are intended for and merely ancillary to such administrative control. This power is meant to see that the Court or tribunal acts within its legitimate bounds.

The scope of the power conferred by Article 227 also came up for consideration in AIR 1953 Nag. 89 (P) and there it was observed as follows:

The power of superintendence which is given by the latter Article is a power merely to correct errors of jurisdiction. This visitorial power has never been understood to give to the High Court a power to hear appeals where such appeals do not lie. Nor does it give a power to substitute a decision which the High Court thinks is correct, in place of the decision of the inferior Court or tribunal.

Thus it is clear that the High Court cannot by exercising the power conferred on it under Article 227, form a decision of its own as to whether the sanction applied for by the Petitioners should be given or not, or issue a direction to the Advocate General that he should decide the matter in any particular manner.

In the view that we have taken that the powers conferred on the High Court under Article 226 and 227 of the Constitution are not so wide as to include a power to review the decision of an inferior Court or tribunal, we have not attempted to form an independent conclusion on the merits of the Petitioner''s application for sanction u/s 92, CPC to institute a civil suit as desired by them, after examining in detail the evidence adduced by the contesting parties and the circumstances disclosed by the evidence on record.

Only one more point remains for consideration. It relates to the suggestion that the Advocate General''s order is liable to be suspected of being vitiated by partiality or bias on his part, in favour of the managing trustee, who is the 2nd Respondent. The allegation to that effect is contained in Clause 7(f) of the petition which runs as follows:

By accepting Vakkalath from the 2nd Respondent and filing an appeal A.S. No. 538/1951 in this Honourable High Court on 17-7-1951, at a time while the sanction petition was pending before him for enquiry and orders, the Advocate General, the 1st Respondent, had rendered, himself incapable of deciding the question of sanction without letting himself open to the suspicion of partiality. Rules of natural justice have been violated thereby.

This is undoubtedly a very serious charge which if sustained in substance and in fact, would be sufficient in itself to justify the issue of a writ of certiorari to remove the order of the Advocate General and to quash it.

The seriousness with which the Question, of bias has to be viewed has been explained in - ''Rex v. Sussex Justices, Macarthy Ex parte'' (1924) 1 KB 256 (T). The applicant in that case had been prosecuted and convicted for the offence of having driven his motor vehicle in a manner dangerous to the public. The Deputy Clerk who was associating himself and assisting the Justices in the trial and decision of the case, had earlier acted as a member of the firm of. Solicitors engaged in the conduct of proceedings for damages against the same applicant in respect of the collision which was the subject-matter of the criminal prosecution. The participation of this clerk in the criminal proceedings was held to vitiate the trial and accordingly the conviction was quashed.

In that connection Lord Hewart C.J. made the following observations on the question of bias.

...it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the Justices in the criminal matter. The answer to that question depends not upon what actually was done, but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

This principle was affirmed and followed in- "Rex v. Essex Justices, Perkins Ex parte'' (1927) 2 KB 475 (U). The question had again come up for consideration in - ''Frome United Breweries Co. v. Bath Justices'' (1926) AppCas 586 (V). In that, case the licensing justices of a County borough had formally resolved that a solicitor should be instructed to appear before the Compensation Authority and to oppose the application for renewal of a particular license. The solicitor thus engaged successfully opposed the renewal application and the Compensation Authority refused the application for renewal of the license. This decision was challenged on the ground that three of the Justices who sat and voted as members of the Compensation Authority, were parties to the earlier resolution of the Licensing Justices authorising the engagement of a solicitor to oppose the application for renewal of the license.

The challenge was accepted and it was ruled that the three Justices already referred to were disqualified from sitting on the Compensation Tribunal on the ground of bias and accordingly the decision of the Tribunal was set aside. In dealing with the question of bias, the following principles were laid down by Viscount Cave L.C.

if there is one principle which forms an integral part of the English Law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias, (whether financial or other), in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sir, upon the tribunal. This rule has been asserted, not only in the case of Courts of justice, and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of Ors. .

The same principles were reiterated in - ''Franklin v. Minister of Town and Country Planning'' 1948 ACC 87 (W). At p. 103 Lord Thankerton observed as follows:

My Lords, I could wish that the use of the word ''bias'' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice, which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute.

As Lord Cranworth L.C. says in ''Ranger v. Great Western Railway Co.'' (1854) 5 HLC 72 at p. 89 (X): "A Judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no (Sic) inducing him to lean to the one side rather than to the other. In ordinary cases it is a just ground of exception to a Judge that he is not indifferent, and that the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent.

To this may be added, the statement by Lord Hewart C.J. in (1924) 1 KB 256 at p. 258 (T);

It is said, and, no doubt, truly, that when that gentleman (the deputy clerk) retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting'' him, and that he scrupulously abstained from1 referring to the case in any way. But while that is so, a long line of Cases shows that it is not merely of some importance but is, of fundamental importances that justice should not only be done, but should manifestly and, undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in this criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done.

This was followed in (1927) 2 KB 475 (U).

The same question was dealt with by the Privy Council in - ''Vassiliades v. Vassiliades'' AIR 1945 P.C. 38 (Y). There, the challenge was that the judgment appealed from was a nullity on the ground that the Acting President of the District Court was not competent to sit but was disqualified, because he had been Official Receiver when the petition against Vassiliades was filed and had expressed an opinion adverse to the Appellant in Anr. case. In dealing with the objection, Lord Wright made the following comments: "This objection alleges bias and want of impartiality on the part of the Judge. It is a most serious objection, the effect of which, if it is sustained, is that the trial must be held'' to have been ''coram non judice'' and the judgment a nullify. The simplest type of bias is where ''the'' Judge is shown to have any pecuniary interest in the result of the proceedings; in that case it will be held at once that he is disqualified, however small the interest and however clear it may be that his mind could not have been affected. A striking illustration of this type is afforded by - ''Dimes v. Grand Junction Canal Co,'' (1852) 3 H.L.C. 759 (Z), where the fact that the Lord Chancellor who presided at the hearing in the House of Lords had inadvertently failed to disclose a small interest he had in the Respondent company was held to vitiate the judgment of the House. But there are other circumstances which may be relied upon as justifying an objection that a Judge is disqualified for bias".

The limitations on the application of the run of bias have also been indicated by Lord Wright in the same case. As a matter of caution it is state that it is a question of substance and fact whether the objection on the ground, of bias is good, criterion for rejecting such an objection (Sic)plained by Lord Esher in- ''Allinson v. General Medical Council'' (1894) 1 QB 750 at p. 759 (Z1), was also quoted with approval by Lord Wright.

The criterion as explained by Lord Esher is as follows:

not that any perversely minded person cannot suspect him but that he must bear such a relation to the matter that he cannot reasonably be suspected of being biased.

In that case the ground in support of the allegation of bias was that the person adjudicating had actively co-operated in bringing the charges which were being investigated. But as a matter of fact the Court held that he had taken no part in the prosecution and that therefore the objection of bias failed.

In - ''AIR 1945 P.C. 33 (Y)'', the Privy Council also held that there was nothing to show that the Judge was not capable of bringing an entirely impartial mind to the hearing of the particular application. It was further observed that

no reasonable person could think that he was biassed or "in substance and in fact" liable to be even suspected of bias merely because in the past in an official position he had dealt with, matters in which the Appellant was concerned.

In the same case the Privy Council further ruled that "as the proceedings have been in fact held, they cannot be set aside except on legal proof of Bias....".

From the nature of a particular decision it may not always be possible to know that the decision is the result of actual bias. All that can be made out is that the position of the Judge in relation to the parties between whom he had to adjudicate, was such that it could be reasonably inferred that he could not deal with the mater dispassionately with an open, impartial and unbiassed mind. Mere possibility of suspicion of bias would not be a sufficient ground to justify an order setting aside the decision on the ground that it is vitiated by bias. There must be real and substantial grounds to sustain the suspicion of bias as being legitimate and reasonable.

This position has been explained by Vaughan Williams L.J. in - ''Rex v. Sunderland Justices'' (1901) 2 KB 357 at p. 373 (Z2) in Utile following words:

Can it be said here that there was nothing more than a mere possibility or suspicion that these justices would be biassed? We must judge of this matter as reasonable man would judge of any matter in the conduct of his own business. Can one doubt that a reasonable man as a matter of business would, under the circumstances of this case, infallibly draw the inference that the justices who had negotiated and brought about this agreement would have a real bias in favour of granting the license to Duncan and Dalgleish Limited, the parties to it?

The position, of the Advocate General in relation to the parties before him at the time of passing the impugned order, has to be examined in the light of the principles stated above. The Petitioners'' averment that when the sanction petition was pending consideration by the Advocate General, the 2nd Respondent had engaged as his counsel for filing the appeal A.S. No. 538(Sic) of 1951 in this Court, is admitted by the locate General to be correct. He has stated that he had been engaged as the senior counsel that appeal which was filed in Court on 17-7- 1951. He has further stated that it is an appeal filed for and on behalf of the trust in question and that the Respondents are persons unconnected with and having no interest in the trust. The dispute involved in that appeal is one between the trust on the one hand, and the strangers Respondents on the other. Since the appeal has been filed on behalf of the trust for protecting its interests, it is obvious that the present Petitioners as well as the managing trustee and the other members of the managing board have the same interest in that litigation.

These statements have not been controverted by the Petitioners. Since there is no conflict of interest between these parties in the matter of that appeal, it cannot be said that by accepting the engagement from the managing trustee for filing that appeal, the Advocate General had placed himself in a position having any bias or partiality in favour of the managing trustee as against the present Petitioners. Beyond the bare statement regarding the acceptance of such engagement, nothing further is alleged or made out by the Petitioners to substantiate the suggested bias or partiality. Thus it is a case where, the situation does not justify even a reasonable suspicion that the Advocate General could have been biassed in favour of the managing trustee as against the Petitioners.

It may also be stated in this connection that at the time of arguing the petition the learned Counsel for the Petitioners unequivocally stated that the Petitioners do not urge or maintain that the Advocate General had any real bias in favour of the managing trustee or that the impugned order had been influenced by any such bias. This statement must set at rest the challenge against the Advocate General''s order on the ground of bias. It is no good contending that Ors. might view the conduct of the Advocate General with suspicion and attribute bias to his order. In view of the facts already stated, any such suspicion has only to be ignored as unreasonable and baseless suspicion by perversely minded persons. Thus the ground of bias also fails.

Still Anr. ground urged on behalf of the Petitioners is that the Advocate General acted improperly in not acceding to the request of the 1st Petitioner to stay the passing of orders on the sanction petition so as to enable him to move the Government for appropriate reliefs. The obvious suggestion is that the Advocate General acted without good faith in refusing to accede to such a request. The Advocate General''s answer is that the mala fides, if any, could only be on the part of the Petitioner who had addressed an express letter to him after he had passed his order on the sanction petition on 20-11-1951. The Advocate General has definitely stated that the letter containing a request to stay the passing of the order having been received by him only after the event, could only be recorded by him as one received too late. We see no reason to doubt the correctness of the statement made by the Advocate General.

In the result we hold that this petition is not sustainable on any of the grounds urged in support of it. It is accordingly dismissed with costs, one set to the 1st Respondent and Anr. set to Respondents 2 to 7 jointly. Advocate''s fee Rs. 200/-.

JOSEPH VITHAYATHIL, J.

35.I agree.