IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WA.No. 650 of 2009() -------------------- APPELLANT(S)/PETITIONERS: ----------------------------------------- 1. REV. DR. GEORGE NJARAKUNNEL, VICAR, ST. AUGUSTINE'S FORANCE CHURCH, RAMAPURAM P.O., PALA. 2. JOHNY JACOB, VALUMMEL, (TRUSTEE) RAMAPURAM BAZAR P.O., RAMAPURM, PALA. 3. GEORGE JOSEPH, MANNAPRAMBIL HOUSE, (TRUSTEE), RAMAPURAM BAZAR P.O., RAMAPURM. BY ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE SRI. ROY CHACKO. RESPONDENT(S)/RESPONDENTS: ---------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO THE GOVT. , DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF ARCHAEOLOGY, THIRUVANANTHAPURM. 4. JOSEPH PULIKUNNEL, PULIKUNNEL HOUSE, EDAMATTOM, PALA, KOTTAYAM DISTRICT. 5. JOSEPH ZACHARIAS, S/O. LATE M.M. ZACHARIAS, RESIDING AT MUNDACKAL THEMMENATTU HOUSE, RAMAPURAM BAZAR P.O., PALA, KOTTAYAM DISTRICT. 6. VINCENT, S/O. CHERIAN, KURISUMMOOTTIL HOUSE, CHAKKAMPUZHA POST, KOTTAYAM. 7. THOMAS SEBASTIAN, PULICKAPADOVIL, RAMAPURAM POST. R1 TO R3 BY GOVT. PLEADER SRI. R. LAKSHMI NARAYAN. R4 BY ADV. SRI. ASOK M. CHERIYAN. R5 BY ADV. MR. GEORGE KURUVILLA (ALAPPUZHA) MR. BENHUR JOSEPH MANAYANI MR. JESTIN MATHEW R6 & R7 BY ADV. MR. MATHEW JOHN MR. AJEESH K. SASI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009 THE COURT ON 06/07/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 650 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of July, 2009. JUDGMENT Bhavadasan, J, This litigation is an offshoot of Ext.P3 order, whereby the State declared two churches situate side by side and a two storied building as protected monuments under the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 (hereinafter referred to as “the Act” for brevity). 2. The monuments are located in Ramapuram, a little known town in Kottayam District. There are three structures involved. They are (1) St. Mary's Church, (2) St. Augustine's Church and (3) a two storied building in which Thoma Kathanar was residing in Ramapuram in Meenachil Taluk of Kottayam District. 3. It is believed that the first church was built in 1450 A.D., which was dedicated to Virgin Mary and the WA. 650/2009. 2 present small church was built in 1599 at the very same site where the old one was situated. The main altar of the old church constructed in 1450 A.D with mural paintings in Indian style having preserved in sanctum of the present church and the same has been dedicated to the memory of St. Augustine. The new church constructed in 1864 is larger in size than the first church, but is an exact replica of the smaller one. They are situated in the heart of Ramapuram town. These churches are the centre of attraction for a large number of pilgrims and visitors, both from inside and outside the State. We get a glimpse of the grandeur of the churches from the two reports available in the records. The structures appear to be very unique and exquisite. As further description of the churches may not be very relevant here, they are skipped. It admits of no doubt that the churches and the two storied building attract devotees, pilgrims and visitors. Considering the structure, the age and importance of the churches WA. 650/2009. 3 and the building, and the need for preservation and protection of the same, the State felt that these structures must be brought within the ambit of the Act. 4. When the State formed such an opinion as envisaged under Section 4(1) of the Act, they have issued Ext.P1 notification, thus disclosing their intention to declare that the church and other building as protected monuments. Petitioners and others filed their objections. After considering the objections and hearing them, the State issued a notification under Section 4(3) of the Act declaring the ancient monuments to be protected monuments. The said notification was challenged in the writ petition. 5. In the writ petition, several grounds were taken. Among them, what were urged at the time of hearing appear to be (1) the formation of opinion as contemplated under Section 4(1) was not supported by any material, (2) Section 4(1) and (3) did not lay down any guidelines for exercising the power conferred with WA. 650/2009. 4 the State and therefore they are unconstitutional. 6. The learned Single Judge found on a consideration of the various provisions of the Act that there are sufficient guidelines provided by the statute itself for formation of the opinion. The learned Single Judge referred to Section 2(a), (d), (g) and (k) read along with Section 4(1) and (3) and came to the conclusion that sufficient indication and criteria were given in the statute. This criteria was sufficient for determining the issues involved and the Sections do not suffer from any vice. The learned Judge held that formation of the opinion on the basis of the materials available from the statute itself, which provides sufficient guidelines would satisfy the requirements of law. 7. It is interesting to note that the learned Judge referred to the objections filed by the petitioners to Ext.P1 notification and has extracted the statements which find a place in the objections numbered as items. 1 to 12, which would indicate WA. 650/2009. 5 that the structures qualified to fall within the ambit of the Act. The learned Judge has also noticed that the petitioners have admitted that the structures are more than 100 years old. Based on the above materials, the learned Judge repelled the contentions taken by the petitioners. 8. In this appeal, the challenge was made only on the following grounds: (i) Principles of natural justice were violated. (ii) There were absolutely no materials before the State for forming an opinion as envisaged under Section 4(1). (iii) Even if there were materials, they were not disclosed to the petitioners and their explanation sought for, and (iv) Even if there were materials, based on which opinion was formed, they must find a place in the order itself. It is stated that the order must speak for itself. WA. 650/2009. 6 9. In support of their contentions, learned counsel appearing for the appellants relied on the decisions reported in Bhikhubhai Vithlabhai Patel v. State of Gujarat ((2008) 4 SCC 144), Indian Nut Products v. Union of India ((1994) 4 SCC 269) and Swadeshi Cotton Mills v. Union of India ((1981) 1 SCC 664). 10. Per contra, learned Government Pleader pointed out that a reading of the Act will show that it provides for guidelines based on which the State is to form an opinion as contemplated under Section 4(1). It provides for the procedure to be followed and then the final determination to be made under Section 4(3) of the Act. All that the authority concerned is to see whether the structure in question satisfies the definition contained in the Act. Section 4(1) of the Act provides for calling for objection when a particular structure is sought to be declared as a protected monument. Section 4(3) provides for declaring the structure as a WA. 650/2009. 7 protected monument after considering the objection. There is no dispute in this case that notice was given to the petitioners for filing their objections as contemplated under Section 4(1) of the Act. They filed their objections and they were heard also. The statute requires only to provide an opportunity to object and nothing more. The formation of opinion and the subsequent declaration do not involve any quasi judicial or judicial function. A perusal of the records, according to the learned Government Pleader will clearly show that all necessary steps have been followed and there is no legal or factual illegality or irregularity in the proceedings. 11. Before going into the rival contentions, some relevant aspects may be noticed. The Act was brought into force since the State felt the necessity and importance of preserving and protecting ancient monuments and archaeological sites. They are considered to be national treasures. The State consider as its duty WA. 650/2009. 8 to properly maintain, protect and preserve them. 12. The Act defines an ancient monument, archaeological sites, remains and monuments etc. Section 4 of the Act deals with the power of the Government to declare a particular structure as an ancient monument etc. The procedure to be followed under Section 4 will be discussed later. Section 5 deals with the acquisition of rights in a protected monument. Section 6 deals with matters relating to the preservation and protection of the monument. Sections 8 and 9 deal with the repair and maintenance of the monument. One must notice here that Section 5 infact reserves the right to use any protected monument for customary and religious observances. The Act also envisages an agreement to be entered into between the owner of the structures with the Government through the Director. 13. One of the grounds of attack is that there are no materials in the case whereby the State could have formed an WA. 650/2009. 9 opinion that the structures are ancient monuments. This is followed by the argument that if there were infact any materials before the State or the authority concerned, they ought to have been disclosed to the petitioners and their explanation sought for. It is further stated that the declaration issued under Section 4(3) does not mention the reasons for the declaration. 14. In the decision reported in Bhikhubhai Vithlabhai Patel v. State of Gujarat ((2008) 4 SCC 144) the words “consider” and “opinion” came up for consideration. It was held that formation of opinion though subjective must be based on materials and that formation of opinion must reflect an application of mind. It was held that the discretion conferred is not unfettered. It is also held that the word “consider” means active application of mind. It meant consideration of all relevant aspects. 15. In the decision reported in Indian Nut Products v. Union of India ((1994) 4 SCC 269, it was held as follows: WA. 650/2009. 10 “It is well-settled that if a statute requires an authority to exercise power, when such authority is satisfied that conditions exist for exercise of that power, the satisfaction has to be based on the existence of grounds mentioned in the statute. The grounds must be made out on the basis of the relevant material. If the existence of the conditions required for the exercise of the power is challenged, the courts are entitled to examine whether those conditions existed when the order was made. A person aggrieved by such action can question the satisfaction by showing that it was wholly based on irrelevant grounds and hence amounted to no satisfaction at all. In other words, the existence of the circumstances in question is open to judicial review.” 16. In the decision reported in Swadeshi Cotton Mills v. Union of India ((1981) 1 SCC 664), the necessity to follow the principles of natural justice was emphasized. 17. Here, one needs to notice the difference between an administrative and quasi judicial function. In the decision reported WA. 650/2009. 11 in State of H.P. v. Raja Mahendra Pal ((1999) 4 SCC 43), it was held as follows: “The submission that the Pricing Committee was a quasi-judicial tribunal constituted by the State Government in exercise of its statutory as well as plenary executive powers can also not be accepted in the light of the functions assigned to the Committee. Quasi-judicial acts are such acts which mandate an office the duty of looking into certain facts not in a way which it specifically directs but after a discretion, in its nature judicial. The exercise of power by such tribunal or authority contemplates the adjudication of rival claims of the persons by an act of the mind or judgment upon the proposed course of official action s to an object of the corporate power, for the consequences of which the official will not be liable, although his act was not well judged. A quasi-judicial function has been termed to be one which stands midway a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi-judicial WA. 650/2009. 12 one, has any express statutory duty to act judicially in arriving at the decision in question. If the reply is in the affirmative, the authority would be deemed to be quasi- judicial, and if the reply is in the negative, it would not be. The dictionary meaning of the word “quasi” is “not exactly”. It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicial functions, but not all. This court in Province of Bomaby v. Khushaldas S. Advani dealt with the actions of the statutory body and laid down tests for ascertaining whether the action taken by such a body was a quasi-judicial act or an administrative act. The Court approved the celebrated definition of the quasi-judicial body given by Atkin, L.J., as he then was in R.v. Electricity Commrs., in which it was held: “Whenever any body of persons having legal authority to determine questions affecting rights of subjections, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division WA. 650/2009. 13 exercised in these writs.” The aforesaid definition was accepted as correct in R.v.London Country Council and many subsequent cases both in England and in India. Again this court in Radeshyam Khare v. State of M.P. Relying upon its earlier decision held: “It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct he errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the State has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin, L.J. * * * WA. 650/2009. 14 Relying on paras 114 and 115 of Halsbury's Laws of England, 3rd Edn., Vol. 11 at pp.55-58 and citing the case of R.v.Manchester Legal Aid Committee learned counsel for the appellants contends that where a statute requires decision to be arrived at purely from the point of view of policy of expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in para 115 of Halbury's Laws of England, vol.11 at57 the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles lid down in the WA. 650/2009. 15 judicial decisions. The principles deducible from the various judicial decisions considered by this Court in Khushaldas v. Advani at p.725 (of SCR): (at p.260 of AIR) were thus formulated, namely - (i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided the authority is required by the WA. 650/2009. 16 statute to act judicially.” In the instant case the order appointing the Pricing committee which was amended on 26.11.1986 specifically provided: “The aforesaid Pricing Committee was established to determine (not merely to advise on) the price and terms and conditions for the supply of resin, resin blazes, standing trees and other foreign produce to be handed over by the H.P. Forest Department to the H.P.State Forest Corporation Ltd., from time to time.” Applying the tests noticed hereinabove, it cannot be said by any stretch of imagination that the said Committee was or intended to be a quasi-judicial tribunal as argued on behalf of respondent 1. This Committee can also not be stated to have been constituted in exercise of the plenary administrative power of the appellant-State. It has been conceded before us that the said Committee was not constituted in terms of Section 6 of the Himachal Pradesh Forest Produce (Regulation of Trade) Act, 1982. No other statutory provision has been relied on either. The WA. 650/2009. 17 Committee appears to have been constituted for settlement of the claims and disputes between the appellant-State and the respondent-Corporation. The decisions of the Committee were applicable to the parties to the said Committee and not to any third person. The said Committee had no source of its constitution in any statute nor was it intended to determine or adjudicate the claims of parties with respect to the matters referred to it for opinion and suggestion or even for settlement between the parties concerned. The decision of the committee, not being statutory, thus could not be given effect to by the High Court.” 18. It will be useful to refer to the decision reported in Indian National Congress (I) v. Institute of Social Welfare (2002(2) KLT 548). Therein it was held that in order to qualify as a quasi judicial function, there must be a lis between two persons and it must be necessary to resolve the dispute based on their respective rights by an independent authority. Therefore, there WA. 650/2009. 18 have to be two or more parties contesting each others claims and the statutory authority requires to adjudicate the rival claims between the parties. When that exercise is undertaken, the function exercised by the authority is said to be quasi judicial in nature. What function is an administrative act or a quasi judicial act is, in the case of quasi judicial functions under the relevant law the statutory authorities required to act judiciously. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi judicial authority. In a quasi judicial function, there are some aspects of judicial function. In some cases, an administrative authority may determine a question of fact before arriving at a decision, which may affect the right of a person. But such a decision would not be a quasi judicial act. 19. True, the distinction between administrative and quasi judicial function is very thin. In quasi judicial function the WA. 650/2009. 19 adjudication of civil rights of a person is involved. The legal rights of persons are decided according to legal rules and prudence. But an administrative authority does not do so. It is true that a balance has to be struck between executive function and legal protection of right of the citizen. Abuse of discretionary power should be checked. 20. It is well settled that in judicial review of an administrative action, the court looks at the manner in which and the procedure followed in arriving at the decision. The court is not concerned with the decision as such, but the decision making process. The courts are not sitting as a court of appeal, but simply reviews the manner in which the decision was taken. It is accepted that the courts usually do not have the expertise to correct complicated and technical administrative decisions. The courts usually do not substitute its own decisions without the necessary expertise. The intention is to check malafide, perverse and WA. 650/2009. 20 arbitrary action. It is trite that judicial review is held to be an integral part of the constitution and its basic structure. 21. If the executive or administrative authority comes to a decision without any basis or it is unreasonable, so unreasonable as no persons would come to such a conclusion, the court will certainly interfere. Usually the interference is only when the decision is found to be unfair or unjust or so unreasonable that no reasonable man would have come to such a conclusion. 22. In such cases, usually Wednesbury test is applied. 23. While the powers must be exercised reasonably, it is no less important that the court must not overstep the limit. Merely because the court feels that another more reasonable conclusion could have been reached, by itself is not a ground to interfere with the administrative action. The test is to see whether the administrative authority's decision is based on the relevant matters and the authority has eschewed the irrelevant matters. The WA. 650/2009. 21 attempt would be to find out whether the decision making authority (i) exceeded its power, (ii) committed an error of law (iii) committed breach of the rules of natural justice. (iv) whether relevant aspects have been omitted to be considered and irrelevant aspects have taken into consideration and whether the authority has exceeded or abused its powers. Wednesbury test means that the decision reached is so unreasonable that no reasonable man under the circumstances would have come to such a conclusion. 24. Bearing these principles in mind, an attempt shall now be made to see how far the principles apply to the facts of the present case. 25. Coming back to Section 4(1) of the Act, it says that if the Government are of the opinion that ancient monuments should be declared to be a protected monument, they may issue a notification. Two months notice should be given of their intention to declare such ancient monument as protected monument and that WA. 650/2009. 22 the notification shall be affixed in a conspicuous place near the monument. Section 4(2) enables any person interested in the matter, within two months after the issue of the notification, to object to the declaration. 26. One may here at once notice that the definition of ancient monument as contained in Section 2(a). One may also refer to Sections 2(d) and 2(k). These provisions have been extracted in the judgment of the learned Single Judge and hence it is not necessary to extract them again. 27. Even going by the stand taken by the petitioners, they admit that the structures are more than 100 years old. The documents available with the department also show that structures are unique and of much significance and importance. The present state of affairs of these monuments are disclosed in the petition itself. It was applying the ingredients available in the Statute