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Ramakrushna Padhy v. Ramesh Chandra Das And Others
Structured Summary of the Opinion (R.L. Narasimham, C.J.)
Factual and Procedural Background
This appeal arises under Clause 10 of the Letters Patent of the Patna High Court (applied to Orissa by the Orissa High Court Order 1948) against a judgment of a single Judge in Miscellaneous Appeal No. 81 of 1956. That miscellaneous appeal had been filed against an appellate judgment of the Commissioner of Hindu Religious Endowments, Orissa, which was passed under Section 44 of the Orissa Hindu Religious Endowments Act, 1951 (the "new Act"). The Commissioner's order dismissed an appeal from an order of the Assistant Commissioner (made under Section 41 of the new Act) which had declared a particular religious institution to be a public institution and had declared Ramesh Chandra Das and his agnates to be the hereditary trustees of that institution.
A preliminary objection was raised as to the maintainability of the present appeal: the single Judge's judgment was said to have been passed in the exercise of appellate jurisdiction (a second appeal), and Clause 10 of the Letters Patent was argued to require a certificate of fitness from the single Judge before a further appeal to a Division Bench could be entertained. The Court considered the meaning of "court subject to the superintendence of the High Court" in Clause 10 and whether the Commissioner exercising appellate jurisdiction under S.44 is such a "court".
Legal Issues Presented
- Whether the Commissioner (when exercising appellate jurisdiction under sub-section (1) of Section 44 of the new Act) and the Assistant Commissioner (when deciding disputes under Section 41) are "courts subject to the superintendence of the High Court" within the meaning of Clause 10 of the Letters Patent of the Patna High Court.
- Whether, if they are such "courts", an appeal from a single Judge's judgment in respect of their orders lies to a Division Bench of the High Court without the certificate of fitness required by Clause 10 of the Letters Patent.
Arguments of the Parties
Appellant's Arguments
- It was contended (by Mr. A. Das for the appellant) that the Commissioner and the Assistant Commissioner were not "courts subject to the superintendence" of the High Court but rather were statutory/quasi‑judicial administrative tribunals; therefore Clause 10's restriction would not apply and the party had a right of appeal to a Division Bench without a certificate.
- It was argued that the juxtaposition of the words “court” and “tribunal” in Article 227 shows that a tribunal—even if exercising judicial functions—would not necessarily be a "court subject to the superintendence" within Clause 10 of the Letters Patent.
- Reliance was placed on the fact that certain provisions (for example sub-section (2) of Section 35) required the Commissioner to obtain prior approval of the State Government for some declarations, suggesting lack of finality and involvement of policy considerations; Labour Relation Board Saskatchewan v. John East Iron Works was relied upon for the principle that where policy considerations influence final outcomes, the authority may not be a "court".
- It was further argued that sub-section (3) of S.74, by requiring the High Court to give the Commissioner an opportunity to be heard in appeals, showed that the Commissioner could not be treated as a court in the ordinary sense (the submission being that an appellate court would not normally implead the lower court as a party if the lower body were truly a court).
Other Parties / Respondent Arguments
The opinion does not contain a detailed account of distinct arguments presented on behalf of the respondent as a separately identified party; the Court's opinion focuses on the appellant's contentions and the Court's analysis in response.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Royal Aquarium and Summer and Winter Garden Society v. Parkinson, 1899-1 QB 431 | Illustrates that a functionary may perform both administrative and judicial functions—i.e., in some matters act as an administrative authority and in others as a court. | The Court invoked this principle to acknowledge the dual (administrative and judicial) nature of the Commissioner/Assistant Commissioner roles and to evaluate whether, when exercising certain statutory powers, they function as "courts". |
| Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 App Cas 275 | Shows that a tribunal may have trappings of a court but still not be a court; distinction between form and judicial character. | The Court cited it to emphasize the need to examine substance (attributes and functions) rather than superficial trappings when deciding whether an authority is a court. |
| Cooper v. Wilson, (1937) 2 QBD 309 | Used in the opinion (and quoted with approval in later cases) for the analytical framework distinguishing a true judicial decision from a quasi‑judicial decision, setting out requisites of a judicial decision. | The Court relied on and quoted the relevant passage at length (the four requisites of a judicial decision) and applied that test to conclude that proceedings under S.41 and S.44 satisfy the requisites of a judicial decision. |
| Bharat Bank Ltd., Delhi v. Employees of Bharat Bank Ltd., Delhi, AIR 1950 SC 188 | Cited as an instance where earlier principles about judicial/quasi‑judicial distinction were approved by the Supreme Court. | Used to support reliance on English authority and the Cooper test as accepted in Indian jurisprudence when assessing the Commissioner/Assistant Commissioner’s character. |
| Maqbool Hussain v. State Of Bombay, AIR 1953 SC 325 | Cited similarly as another Supreme Court approval of the analytical approach to judicial versus quasi‑judicial bodies. | Supported the Court's adoption of the established tests to determine whether the statutory officers possess the attributes of a court in the matters under consideration. |
| Brajnandan v. Jyoti Narain, (S) AIR 1956 SC 66 | Another decision cited as approving the distinction and tests for court versus quasi‑judicial tribunal. | Reinforced the weight of authority relied upon to apply the Cooper‑type test in the present statutory context. |
| Virindra Kumar v. State of Punjab, (S) AIR 1956 SC 153 | Cited as a Supreme Court decision approving the principles distinguishing courts from quasi‑judicial tribunals. | Used to corroborate the proposition that an authority charged with deciding disputes judicially and declaring rights possesses the attributes of a court; the Court relied on this to conclude the Assistant Commissioner/Commissioner have those attributes under S.41/44. |
| Sri Jagannath v. State of Orissa, AIR 1954 SC 400 | Cited concerning the legislative response (amendments) to the Supreme Court's decision and consequent changes to the Orissa Act (the new Act and its 1954 amendment). | The Court referred to this Supreme Court decision as the reason for subsequent amendment (Orissa Act XVIII of 1954) and linked that legislative history to how the new Act altered the Commissioner's functions and status. |
| Labour Relation Board Saskatchewan v. John East Iron Works, 1949 AC 134 (AIR 1949 PC 129) | Relied upon by the appellant for the principle that where an authority's ultimate decision is determined by considerations of policy, it may not qualify as a "court". | The Court acknowledged the authority and the appellant's reliance on it (in the context of S.35(2) requiring government approval) but limited its applicability: it held that it was not deciding on the nature of decisions under S.35(2) and confined its conclusion to S.41 and S.44 as they stand. |
Court's Reasoning and Analysis
The Court engaged in a step‑by‑step statutory and contextual examination to resolve whether the Commissioner and the Assistant Commissioner, when exercising powers under S.44(1) and S.41 (read with S.74) respectively, qualify as "courts subject to the superintendence of the High Court" within Clause 10 of the Letters Patent.
- Interpretation of Clause 10 and its historical context: the Court read Clause 10 with reference to the Letters Patent issued in 1916 and to Section 107 of the Government of India Act, 1915 (which conferred powers of superintendence over "all courts for the time being subject to its appellate jurisdiction"). The Court concluded that the phrase "courts subject to the superintendence of the High Court" in Clause 10 was intended to refer to the courts over which the High Court had Section 107-type superintendence.
- Distinction between "courts" and "tribunals": the Court acknowledged established authorities distinguishing ordinary civil/criminal courts from other bodies and considered whether the Commissioner and Assistant Commissioner are to be regarded as "courts" for the purpose of Clause 10. The Court emphasized substance over form, applying established tests from English and Indian authorities.
- Comparative statutory history (old Act v. new Act): the Court reviewed the previous Orissa Act, 1939 and highlighted that under the old Act the Commissioner was primarily an administrative officer whose decisions affecting civil rights were subject to a right of suit in civil courts. The rules and protections for the Commissioner were more administrative in character under the old Act.
- Structural changes in the new Act: the Court identified "radical changes" in the new Act (1951, as amended in 1954). Under the new Act, both the Commissioner and Assistant Commissioner were to be members of the Judicial Service, many decisions affecting rights were made appealable to the High Court (substituting an appeal to the High Court for a right of suit in a civil court), and S.74 conferred on them the powers of a civil court while trying a suit and the protections of the Judicial Officers Protection Act.
- Application of the judicial‑decision test: relying on the authorities and the quoted passage describing requisites of a true judicial decision (presentation of the parties' cases, ascertainment of facts by evidence, legal argument where law is in question, and a definitive decision applying law to facts), the Court found that proceedings under S.41 (and appeals under S.44) satisfy these requisites: there is a dispute; enquiry under Code of Civil Procedure provisions; application of law to facts; and a final binding decision subject to appeal to the High Court.
-
Response to specific appellant contentions:
- On the contention that the Commissioner/Assistant Commissioner are only quasi‑judicial or administrative: the Court held that while they retain administrative functions, when exercising jurisdiction under S.41/44 (read with S.74) they perform judicial functions possessing all attributes of a court.
- On the argument from sub‑section (3) of S.74 that the Commissioner is impleaded to be heard on appeal: the Court noted that special statutory provisions allowing a lower body to be heard on appeal do not alter the essential nature of that body where it otherwise meets the requisites of a court.
- On the argument based on S.35(2) requiring State Government approval and the Labour Relations Board authority: the Court acknowledged the point but expressly limited the present decision to the nature of functions under S.41 and S.44 (read with S.74), not to decisions under S.35(2).
- Constitutional supervisory power and final conclusion: the Court concluded that Article 227 (restoring both judicial and administrative superintendence to High Courts) extends the High Court's superintendence not only over regular civil courts but also over other "courts" (that is, bodies possessing the attributes of courts). Therefore, the Commissioner acting under S.44(1) is a "court subject to the superintendence of the High Court" within Clause 10 of the Letters Patent.
Holding and Implications
HOLDING: The appeal was rejected as not maintainable. The Court held that the Commissioner (under S.44(1)) and the Assistant Commissioner (under S.41, read with S.74) function as "courts" for the purposes of Clause 10 of the Letters Patent and are "courts subject to the superintendence of the High Court." Consequently, a further appeal from the judgment of a single Judge in respect of such matters does not lie to a Division Bench of this Court unless the single Judge has certified the case as fit for appeal under Clause 10.
Direct consequences on the parties: The present appeal is dismissed as not maintainable. There is no order as to costs.
Broader implications noted in the opinion: The opinion observed that the question was of considerable importance and affected many decisions of the Commissioner pending in appeal in the High Court; the Court undertook the authoritative determination that, for matters under S.41 and S.44 (read with S.74), the certificate of fitness required by Clause 10 is necessary before a further appeal to a Division Bench lies.
Final disposition in the text: "Appeal rejected." (G. C. Das, J. agreed.)
R.L Narasimham, C.J:— This is an appeal under Cl. 10 of the Letters Patent of the Patna High Court (which is applicable to Orissa by virtue of the Orissa High Court Order 1948) against the judgment (in appeal) of a single Judge of this Court in Miscellaneous Appeal No. 81 of 1956. That appeal was filed against the appellate judgment of the Commissioner of Hindu Religious Endowments, Orissa (hereinafter referred to as the Commissioner) passed under Section 44 of the Orissa Hindu Religious Endowments Act 1951 (Orissa Act No. II of 1952 — hereinafter referred to as the new Act) dismissing an appeal against the order of the Assistant Commissioner of Hindu Religious Endowments Orissa (hereinafter referred to as the Assistant Commissioner) passed under section 41 of that Act declering a particular religious institution to be a public one and one Ramesh Chandra Das and his agnates to be the hereditary trustees of the same.
2. A preliminary objection was taken to the entertain ability of this appeal on the ground that the judgment of the single Judge was passed in second appeal and that consequently by virtue of clause 10 of the Letters Patent a further appeal to a Division Bench of this Court will not lie in the absence of a certificate of fitness from the Judge concerned. This point is of considerable importance affecting many decisions of the Commissioner pending in appeal in this Court and it is desirable to give an authoritative decision. The material clauses of the Letters Patent of the Patna High Court may now be referred to.
3. Clause 10 (omitting immaterial portions) is as follows:—
“An appeal shall lie……from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in reject of a decree or order made in exercise of the appellate jurisdiction by a court subject to the superintendence of the High Court…….) of one Judge of the said High Court, and…… notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court…….made on or after the first day of February, 1929 in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal.”
4. The aforesaid clause makes it clear that if the judgment of a single Judge of this court is passed in exercise of appellate jurisdiction “in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court” an appeal shall lie only if the single Judge concerned declares that the case is a fit one for appeal.
5. In the present case the Commissioner's order was passed in exercise of his appellate jurisdiction over the order of the Assistant Commissioner conferred by the new Act and the judgment of the ??? judge of this Court was also passed in exercise of the High Court's appellate jurisdiction. If the Commissioner be held to be a “court subject to the superintendence” of this High Court while passing the appellate order in question, it is apparent that a further appeal will not lie except under a certificate of fitness from the single Judge concerned.
6. It was however, urged that the Commissioner was not a “court subject to the superintendence” of this High Court and that consequently, the earlier part of Cl. 10 of the Letters Patent would apply and the party had a right of appeal to a Division Bench of this Court against the judgment of a single Judge, without any such certificate.
7. The order of the Assistant Commissioner was passed under S. 41 of the new Act; the order of the Commissioner on appeal was passed under sub-s. (1) of S. 44; and the order of single Judge of this Court was passed under sub-section (2) of S. 44 of the new Act. Can it be said that the Commissioner while exercising his appellate jurisdiction under sub-section (1) of S. 44 is a ‘court subject to the superintendence’ of this court? The answer to this depends on a careful scrutiny of the relevant provisions of the new Act and also of the relevant provisions of the Letters Patent — bearing in mind the distinction between a ‘court’ on the one hand and a ‘quasi judicial tribunal’ on the other.
8. The Letters Patent were issued by His Majesty on the 9th February, 1916 when the Government of India Act 1915 was in force. Section 107 of the Act conferred on every High Court powers of superintendence over “all courts for the time being subject to its appellate jurisdiction”. Hence when in the Letters Patent the words “courts subject to the superintendence of the said High Court” were used, it is obvious that the ??? concerned was referring to courts over which the High Court had powers of superintendence under Section 107 of the Government of India Act 1915 in fact, that section is expressly referred to in a portion of that Clause.
9. A scrutiny of clauses 11 and 20 of the Letters Patent would further show that a distinction was made between the ordinary civil and criminal courts on the one hand and other courts subject to the superintendence of the High Court on the other. Thus, clause 11 says that the High Court shall be a court of appeal
“From the civil courts of the Province of Bihar and Orissa and from all other courts subject to the superintendence of the High Court”.
10. Similarly, clause 20 says that the High Court of Judicature at Patna
“shall be a court of appeal from the criminal courts of the Province of Bihar and Orissa and from all other courts subject to the superintendence of the High Court”.
11. Clauses 9, 10, 11 and 12 of the Letters Patent are placed under the heading “Civil Jurisdiction of the High Court”. Hence, when clause 10 refers to a ‘court subject to the superintendence of the High Court’ it means—
(i) the ordinary civil courts functioning in the Province of Bihar and Orissa; and
(ii) any other court dealing with civil rights subject to the superintendence of the said High Court.
12. The power of superintendence conferred by Section 107 of the Government of India Act, 1915, included both judicial and administrative superintendence. But in the corresponding section of the Government of India Act 1935 the power of superintendence was limited to administrative superintendence only, and judicial power was taken away by lection (2) of section 224. Later, in Cl. (1) of Article 227 of the Constitution the old provision was restored and the High Court was invested with both judicial and administrative superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction”.
13. Neither in the Government of India Act of 1915 nor in the Government of India Act of 1935 was the word ‘tribunal’ used. That word was inserted, for the first time, in clause (1) of Article 227 of the Constitution. Mr. A. Das on behalf of the appellant urged that the use of the words ‘court’ and ‘tribunal’ in juxtaposition in that clause would show that a tribunal, even though it may be exercising judicial functions, will not be a “court subject to the superintendence” of this High Court within the meaning of Cl. 10 of the Letters Patent. He further urged that the functions of the Commissioner and the Assistant Commissioner, as described in the new Act, would show that they were only administrative tribunals exercising quasi judicial functions in respect of certain matters.
14. The previous Act dealing with Hindu Religious endowments in Orissa was the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act 4 of 1939 — hereinafter referred to as the old Act). There the Commissioner alone was the statutory authority and there was no express provision for the appointment of an Assistant Commissioner. Under S. 7 of the old Act the Commissioner may be a member of either the Judicial Service or the Executive Service in the province of Orissa.
15. Section 8 stated that in the discharge of his duties he shall be under the general control of the Provincial Government. He was given expensive administrative powers over public Hindu religious endowments, maths and temples. It is unnecessary to refer to them in detail. The general scheme of the old Act was that whenever he passed an order affecting the civil rights of parties, these parties had the right of suit for challenging his order.
16. Thus S. 29 conferred power on him to take disciplinary action against a trustee. But his order was subject to appeal to the civil court. Similarly S. 30 prescribed certain disqualifications for a trustee and also gave a right of appeal to the District Court, against any decision of the Commissioner as to whether a hereditary trustee was so disqualified or not.
17. Section 33 conferred power on the Commissioner in association with another officer to be appointed by the Provincial Government, to frame a scheme for the better administration of a temple; and sub-section (4) of that section conferred a right on the aggrieved party to institute a suit in the civil court to modify or set aside the scheme. There were similar provisions in respect of maths (see sections 38 and 39).
18. Section 47 dealt with cypress application of the endowed property subject to right of suit in a civil court, under sub-s. (4) of that section — for alteration or modification of that order. The procedure to be followed by the Commissioner while holding enquiries was not embodied in the old Act but was made a part of the rules known as the Orissa Hindu Religious Endowment Rules 1939.
19. Rule 66 of these rules required the Commissioner to take evidence of witnesses, on oath or affirmation in ‘open office’. Rule 90 stated that for the purpose, of enquiry by the Commissioner the provisions of the Code of Civil Procedure, the Evidence Act, and the Circulars of the Patna High Court, shall apply so far as they may be consistent with the rules. There were some other provisions dealing with the power to issue commissions, to examine records, to hold local inspections etc.
20. It will thus be seen that under the old Act the Commissioner was essentially an administrative officer though he was required to decide certain matters in a judicial way. He may be a member of either the Judicial Service or the Executive Service. He was under the administrative control of the Government in respect of administrative matters. Where, however, his decision or determination affected the rights of parties, the aggrieved party was given a right of appeal or right of suit in the civil court.
21. The expression court was defined in sub-section (3) of S. 6 of the old Act as meaning “civil court constiutued under the Bengal, Agra and Assam Civil Courts Act, 1887”. In preparing schemes for temples or maths (sections 33 and 38) another officer to be selected by the Provincial Government was associated with him.
22. Doubtless the procedure prescribed by the Commissioner for his enquiry was very similar to that applicable to enquiries by civil courts. Witnesses were required to be examined in open office and he had powers very similar to those of civil courts with regard to the enforcement of the attendance of witnesses admissibility of evidence, etc. But he was not given the special protection under the Judicial Officers Protection Act, 1850.
23. In the new Act radical changes were brought about especially in the functions of the Commissioner and his subordinate, namely the Assistant Commissioner. The new Act was passed in 1952, but further amendments were made to the same in consequence of the decision of Supreme Court in Sri Jagannath v. State of Orissa, AIR 1954 SC 400 by the amending Act of 1954 (Orissa Act XVIII of 1954).
24. By this Act the emressinn ‘court’ was taken awav from the interpretation clause (section 3) ??? another statutory authority designated as Assistant Commissioner should be members of the Indicia Service not being below the rank of a subordinate Judge or Munsif respectively. There was no section corresponding to sub-section (1) of S. 8 of the old Act, stating that in the performance of his duties the Commissioner shall be under the control of the State Government.
25. He is an independent statutory authority. Doubtless, in respect of certain functions such as appointment of subordinate staff (See section 5-A) he was subject to the control of the State Government. But the general control of the State Government over all his actions was taken away. In the new Act wherever civil rights of parties were affected by the Commissioner's order a right of appeal to the High Court was given.
26. Thus sub-s. (5) of S. 28 gave the hereditary trustee of a temple aggrieved by any disciplinary order passed by the Commissioner a right of appeal to the High Court. Sub-section (3) of S. 35 conferred a similar right of appeal to the High Court by the Hereditary trustee of a math against an order of the Commissioner declaring him to be subject to certain disqualifications specified in that section
27. Section 41 conferred power on the Assistant Commissioner to decide any dispute as to whether an institution was a public religious institution or a temple or a math, or whether the trustee held office as a hereditary trustee, and other roarers. Section 42 conferred power on the Assistant Commissioner and the Commissioner to frame a scheme for the better administration of religious institution after holding an enquiry in accordance with the provisions of the Code of Civil Procedure relating to trial of suits.
28. The provision in the old Act providing for the association of another officer to be nominated by the Government with the Commissioner in preparing a scheme was deliberately omitted. Similarly, the right to file a civil suit for modifying the scheme prepared by the Commissioner or the Assistant Commissioner was taken away. But a right of appeal to the High Court was conferred by S. 44.
29. The order of the Assistant Commissioner regarding cypress application of funds under S. 43 was made appealable to the Commissioner and then to the High Court under S. 44. S. 74 stated that in relation to all proceeding before the Commissioner or the Assistant Commissioner orders in pursuance of which were appealable, to the High Court, the said officers shall have all the powers of a court under the provisions of the Code of Civil Procedure while trying a suit. Sub-s. (2) of that section conferred on such officers the protection generally given to indicia I officers under the Judicial Officers Protection Act, 1850.
30. The main changes brought about by the new Act are, therefore, fairly clear. The Commissioner and the Assistant Commissioner were both required to be officers of the Judicial Service of the State. Doubtless they had both judicial and administrative functions, but even in the exercise of their administrative functions they were required to approach the question with a judicial mind.
31. Whenever their orders affected rights of parties a right of appeal to the High Court was given to the aggrieved party and moreover in respect of those functions they were given most of the powers of a Civil Court while trying a suit and were also conferred special protection under the provisions of the Judicial Officers Protection Act. This substitution of a right of appeal to the High Court for a right of suit in the civil court as provided in the old Act is very significant.
32. The Commissioner and the Assistant Commissioner being themselves members of the Judicial service and being required to act judicially, there was no point in conferring on the party aggrieved by their decision a right of suit again in the ordinary civil court. Hence only a right of appeal was conferred thereby involving the assumption that, for all practical purposes, these officers were themselves exercising the functions of a civil court.
33. It is only where their orders are of an interim nature such as an order under S. 36 that the aggrieved party was given a right to establish his claim in a court of law. But where their orders finally decide rights between parties such as an order under S. 41 or 42 that right of appeal in the High Court was conferred. In the old Act the Commissioner's status as a mere administrative officer was recognised by providing for a right of suit in the civil court against his orders which affect the rights of parties.
34. It is true that the new Act makes a clear distinction between the functions of the Commissioner and the Assistant Commissioner on the one hand and those of the ordinary ‘courts of law’ on the other. Thus in sub-s. (3) of S. 36, sub-s. (8) of S. 65, and in S. 73 the expression ‘court of law’ is used which, in the context, may mean either an ordinary civil or criminal court of the State.
35. Hence, though Mr. Das is right in saying that the Commissioner and the Assistant Commissioner (Even in the discharge of their judicial functions under the Act which are appealable to the High Court) are not ‘court of law’ as ordinarily understood, the question still remains whether they are “courts subject to the superintendence of the High Court” within the meaning of Cl. 10 of the Letters Patent.
36. In the present case we are concerned with the order passed by the Assistant Commissioner under S. 41 of the new Act. A dispute was raised before him as to whether a particular institution was a public one or whether some persons were hereditary trustee of the same. That section confers jurisdiction on him to decide that dispute and by virtue of S. 74 already referred to he is conferred the powers of a civil court under the Code of Civil Procedure while trying a suit, and he is also given protection under the provisions of the Judicial Officers Protection Act.
37. The appellate order of the Commissioner was passed under sub-s. (1) of S. 44 of the new Act. While hearing appeal he has also got the powers of a civil court by virtue of S. 74 of the Act, and his order is subject to appeal to the High Court under sub-s. (2) of S. 44. I see no reason why the Assistant Commissioner and Commissioner, while exercising their functions under Ss. 41 and 44 of the new Act should not be held to be ‘courts’ though they may not be correctly designated as ‘civil courts’ in the State.
38. The main distinction between a ‘court’ on the one hand and a ‘quasi judicial tribunal’ on the other has been discussed in innumerable decisions, both in England and in India. But as there are recent decisions of the Supreme Court on the subject it is unnecessary to discuss them at great length I may only refer to Royal Aquarium and Summer and Winter Garden Society v. Parkinson, 1899-1 QB 431, where it was pointed out that a functionary may, in some matters function as an administrative authority and in certain other matters he may function as a court.
39. Thus, Parliament though primarily a deliberative & legislative body also functions as a court in some matters. In the well known case of Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 App Cas 275, it was pointed out that though a tribunal may have some of the trappings of a court it may not be a court. In Cooper v. Wilson, (1937) 2 QBD 309 (341), the reports of the Ministers Powers Committee of Parliament regarding judicial and quasi-judicial functions was quoted with approval and this decision has also been cited with approval in Bharat Bank Ltd. Delhi v. Employees of Bharat Bank Ltd., Delhi, AIR 1950 SC 188; Maqbool Hussain v. State Of Bombay, AIR 1953 SC 325, and Brajnandan v. Jyoti Narain, (S) AIR 1956 SC 66, and Virindra Kumar v. State of Punjab, (S) AIR 1956 SC 153. Hence I am quoting the relevant passage at length.
“A true judicial decision presupposes an existing dispute between two or more parties and then involving four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact the ascertainment of the fact by means of evidence adduced by the parties to the dispute, and often with the assistance of argument by, or on behalf of, the parties on the evidence; (3) if the dispute between them is a question of law the submission of legal arguments by the parties and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial, decision equally presupposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action the character of which is determined by the Minister's free choice.”
40. The decision of the Assistant Commissioner under S. 41 of the new Act fulfils all the aforesaid tests. There must first be a dispute for his decision: he is required to hold enquiry under the provisions of the Code of Civil Procedure to ascertain questions of fact; he is also required to apply the law to decide whether an institution is a public institution or not, and whether a person has a hereditary right of trusteeship over the same.
41. His ultimate decision must be based on his findings of fact in the dispute and on his application of the law to the facts so found. He is himself an officer of the Judicial Service trained in doing this work. His decision is binding on the parties, subject to the right of appeal conferred by S. 44. Under such circumstances there can be no escape from the conclusion that he functions as a ‘Court’. His decision is not subject to the approval of the Government so as to attract the principle laid down in (S) AIR 1956 SC 66. In (S) AIR 1956 SC 153, it was observed:
“It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide dispute in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether, having regard to the provisions of the Act, it possesses all the attributes of a Court”.
42. In my opinion, in a proceeding under S. 41 or 44 of the new Act the Assistant Commissioner and the Commissioner possess all the attributes of a court and none of the attributes of an administrative tribunal. Mr. Das urged that sometimes it may happen that disputes under S. 41 of the new Act are raised not by third parties but by the Endowments Department themselves and that it was inconceivable that in a controversy between the Department on the one hand and a third party on the other, any decision taken by the Assistant Commissioner could be said to be a decision by a ‘court’.
43. This argument however overlooks the dual nature of the functions exercised by the Commissioner and the Assistant Commissioner. They have undoubtedly administrative functions of a far-reaching nature as referred to in the various sections of the new Act dealing with the control of religious institutions, staff, budget and other matters connected with endowments.
44. Hence, if during inspection by subordinate officers of the Endowments Department it is found that a particular religious institution which is a public institution has not been brought under the provisions of the new Act, a dispute may be started, but once the Assistant Commissioner sits to decide the dispute under S. 41 he becomes a purely judicial officer exercising only judicial functions.
45. It was further urged by Mr. Das that sub-s. (3) of S. 74 of the new Act required the High Court, while hearing an appeal from the order of the Commissioner, to give the Commissioner an opportunity of being heard and that if the Commissioner was really functioning as a court, it would be inconceivable that an appellate court would implead the lower court as a carry and give it an opportunity of being heard. This argument also does not appeal to me.
46. Though, ordinarily in appeals against decisions of lower courts that court is not made a party, in the appellate stage there are sometimes exceptional instances, such as contempt proceedings in which the court itself may be made a party. But merely because at the time of the hearing of the appeal, the lower court is made a party it will not cease to be a court if it performs all the functions of a court mentioned above: and moreover sub-s. (3) of S. 74 is a special statutory provision and it cannot alter the essential nature of the functions of the Commissioner and the Assistant Commissioner.
47. Mr. Das then draw our attention to sub-section (2) of S. 35 of the new Act which says that when the Commissioner makes a declaration under that sub-section as to whether a hereditary trustee has incurred the disqualifications specified in that sub-section he is required to obtain the prior approval of the State Government. He relied on the observations in Labour Relation Board Saskatchewan v. John East Iron Works, 1949 AC 134 : (AIR 1949 PC 129), to the effect that where the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by high considerations of policy also, the authority so deciding will not be a ‘court’ and contended that the statutory requirement in sub-s. (2) of S. 35 of the new Act about the Commissioner obtaining his prior approval of the State Government would show that his decision has no finality or binding character (which is one of the essential attributes of the decision of a court) and that questions of policy may also be involved.
48. According to him therefore, the Commissioner while passing an order under the aforesaid provisions of the Act cannot be said to be functioning as a court. There may be some force in this contention, but in this appeal we are not called upon to decide about the nature of the functions of the Commissioner while acting under sub-s. (2) of Section 35, but only with the nature of the functions of the Commissioner and the Assistant Commissioner while acting under Ss. 44 and 41 respectively, read with S. 74 of the new Act.
49. The Act does not say that decisions under those sections are subject to the prior approval of the State Government or any other authority. On the other hand, the Act expressly says in Ss. 73 and 74 that such decisions should be arrived at in a judicial manner by officers acting judicially, and are final and binding on the parties subject of course to the right of appeal to the High Court.
50. In my opinion, therefore, the Commissioner while exercising appellate powers under sub-section (1) of S. 44 and the Assistant Commissioner while passing an order under S. 41 of the new Act function only as a ‘Court’ and not as a quasi-judicial tribunal though it cannot be said that either of them functions as a ‘civil court’ as ordinarily understood.
51. But the powers of superintendence of the High Court under Cl. (1) of Article 227 of the Constitution extend not only over regular civil courts in the State but also over other ‘courts’ and hence the Commissioner acting under sub-s. (1) of S. 44 of the new Act is a “court subject to the superintendence of the High Court” within the meaning of Cl. 10 of the Letters Patent of the Patna High Court. The judgment of a single judge of this Court in Miscellaneous Appeal No. 81 of 1956 will not be appealable unless the requisite certificate of fitness under that Clause is obtained. The appeal is therefore rejected as not maintainable. There will be no order for costs.
G.C Das, J.:— I agree.
D.R.R
52. Appeal rejected.
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