One of the finest buildings
of its kind, the Attara Katcheri, better known as the High Court today, is an institution
in itself. It is one of the few buildings in the world to house all the three
wings of the Government-Legislature, Executive and Judiciary for several
decades and this was when the Mysore
State
The Attara Katcheri was built
in 1868. More than a hundred years later, the Ramakrishna Hedge Government wanted
to demolish the building and construct a new structure.
The decision of the
Government was met with a wave of protests and for the first time ever,
Bangaloreans gathered in large numbers and used every conceivable form of
protest, including sit-ins, dharnas, satyagraha, road rallies, seminars and
finally a court case to assail the Government order and save the building.
Though the petition was dismissed, the Government was forced to give in to the demands of the people and extensively repair, renovate the building, while at the same time constructing a new building incorporating all the designs and architecture of the old building.
The Karnataka High Court,
which was located on the premises of the Attara Katcheri hard out the first public
interest litigation (PIL) filed and this pertained to the move of the
Government to demolish the building.
The details of the case is as
follows. The case details can be accessed from Law books, law journals, AIR and
other other books on law and jurisprudence.
B.V.
Narayana Reddy And Ors. vs State Of Karnataka
And Ors
Equivalent
citations: AIR 1985 Kant 99, ILR 1984 KAR 631
Author:
Venkatachaliah
Bench:
M Venkatachaliah, D V Rao
JUDGMENT
Venkatachaliah,
J. (Since this judgment was written by Venkatachalaiah, his name appears as the
author)
1. This petition under Art.
226 of the Constitution raises an interesting question as to the scope of the
Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains
Act, 1961 ('Act' for short). Petitioner seek a mandamus to the State Government
to consider and dispose of their representation dt.10-4-1983 as to the question
of declaring the 'Attara Cutcherry', a Government building in which the
Karnataka High Court is housed, as a "Protected monument" under S. 4
of the said Act. The petition is filed as sequel to the Government Order No.
DPAR/188/SHC/82 dt. 24-3-1982 which has accorded administrative approval for
the demolition of the existing 'Attara Cutcherry' and for the construction of a
new High Court Building
2. Petitioners in their
efforts to avert the demolition of this ancient building, which they cherish as
a cultural-heritage and as an enduring source of enrichment of the
environmental beauty and cultural-tone of the City of Bangalore
3.The State of Karnataka,
Respondent1, has opposed this petition and has sought to justify its decision
as one arrived at after a careful consideration of all factors relevant to the
decision. It has also contended that petitioners can-not be considered
aggrieved parties and have no standing to sue, and that, at all events, they
have no enforceable rights under the 'Act' entitling them to any relief.
The Director of Archaeology,
Government of Karnataka and the Bangalore Urban Art Commission, an authority
constituted under S. 51 of the Bangalore Development Authority Act, 1976, are,
respectively, Respondents-2, and 3.Respondents 4 to 36 are Advocates of this
Court who have impleaded themselves in these proceedings. They oppose the
petition.
4. Before we consider the
merits of questions raised in the petition, we may advert to two aspects:
It must, at the out-set, be
said that petitioners, who are respectable citizens of Bangalore
The second aspect is that
'Attara Cutcherry' is, it is not disputed, a beautiful land-mark in the City of
Bangalore
It would appear that in the
second half of the last century the public offices of the old Mysore State were
housed in an old building called the 'Tippu's palace' in the Fort area of
Bangalore. But when Mr. Bowring assumed charge as Commissioner in 1862, he felt
the need for a suitable new building and prepared a blue print for the
"Attara Cutcherry'. Public Offices were shifted to it when it was
completed. The name 'Attara Cutcherry', has, historical associations. It is
said that the Secretariat of Chikkadevaraya, a Ruler of Mysore, consisted of 18
departments or 'chavadies', hence the name 'Attara Cutcherry'. Chikkadevaraya
is believed to have been influenced by Moghal traditions in this respect Vide
Karnataka State Gazetteer, 1983 Edn. at page 246. It is also claimed that the
functional division of Government into 18 traditional departments of State, was
derived from the constitutional system established by the legendary Yudhisthira
of the Maha Bharatha. The 'Rajatarangini', it is said, refers to the emulation
by Indian Rulers, through the centuries, of this pattern of functional
departmentalisation of Government, a predilection for which is stated to have
been shown by the rulers of some of the larger States in modem India
It is also stated that the
association of this building with historical events, marking an eventful phase
in the history of the State of Mysore, is unique. It is stated that the
building is unique in that all the three organs of the State of the princely
State of Mysore viz., the Executive, the Legislature and the Judiciary were all
located in it. Even after the attainment of independence, the building
continued to retain this character 611 the 'Vidhana Soudha', the new Secretariat,
was built.
Petitioners say that this
building is a precious cultural-heritage and one of historical and artistic-
interest and a part of an ancient legacy which any city would treasure, and
"that a sense of belonging to a city is a sense acquired by its citizen
through years of growing with it." This sense of belonging, they Say, is
promoted by the instances of familiarities and intimacies of important
land-marks which animate and sustain that sense of belonging and make them an
integral part of the City's culture and environment. This building, petitioners
say, is a symbolic connecting-chord between the past and the, present and
sustenance for the future and its destruction snaps an emotional experience
vital to a sense of belonging to this beautiful city. The building, it is said,
represents the architecture of a bygone era, a consideration which, by itself,
would justify the preservation of the building. Petitioners say that the
decision manifests an insensitivity to the pricelessness of this historic monument
in terms of its cultural value and its architectural-beauty. The City of Bangalore
5. There is, apparently, some
difference of opinion as to the structural stability of this 116 y ears old
building. State Government is of the opinion that the building has become
dilapidated and has out-lived its functional utility and would require to be
replaced by a modern-building to meet the urgent and increasing needs of the
High Court. There is, however, some material on record indicating that the
building could be strengthened, by application of modem engineering techniques,
and that, if so reinforced at a cost of about 75 lakhs of rupees, the building
would have a fresh lease of life. But Government's view is that from the point
of view of its functional utility, such an idea is pointless.
6. There has been, in the
present times, an increasing awareness of the importance of the properties
which. are associated with history and culture of a people. They are regarded as
important, not merely for the people immediately associated with it, but as
part of a universal heritage of inestimable value and to generations yet
unborn. These are the philosophical foundations of movements such as the
"World Heritage Convention" concerned with the protection of the
cultural and natural heritages of the world. There are, in addition, other
institutions such as "International Council of Monuments and Sites"
(Icomos) with global membership; "International Council of Museums"
(Icom); the "International Union of Architects" (IUA) which, it is
stated, work in the related fields. These institutions cherish -- and are
committed to - the idea that preservation of building of cultural heritage
"apart from making good economic sense - it costs less to restore an old
structure than to build a new one and satisfying the nostalgia of an earlier
age, helps us to find ourselves."
There has been animated
debate, on an emotional level, on the issue of preservation of 'Attara
Cutcherry'. Recently, an Institution, called 'Indian National Trust for Art and
cultural Heritage" (INTACH) appears to have expressed its concern at the
decision to destroy this monument. Petitioners say that on their representation
the Director of Archaeology had expressed an opinion that the monument should
be protected. Government, however, did not place these records before us.
The intensity of the concern
of the petitioners for the preservation of this building and the emotional
overtones in their efforts to communicate that concern are therefore, quite
understandable. But Government, and those who are like minded with it on this
issue, would say, as one News-paper reported, See: Hindu dated 25-6-1984, page
10 that conserving the building will be dangerous to public safety besides being
uneconomic and that the building has exhausted its economic and physical life
and its conservation is an "elitist exercise in false nostalgia and
anachronistic sentimentality". See: Hindu dt. 25-6-1984, page 10.
Petitioners retort, however, is that this price-less treasure of architecture
is not in a "dangerous condition" but is, at the hands of those
insensitive to its value, in an "endangered condition."
7. Let us now turn to the
circumstances Linder which the decision of 24-3-1983 came to be taken by the
Government.
The then Chief Justice of
Karnataka, in his letter dt. 4-12-1982 to the Chief Minister, referred to the
joint inspection they had had in connection with the proposal for the
construction of a new High Court Building and to the alternative proposals
submitted by the Chief Architect. The letter says:
"The Chief Architect in
his letter cited above had forwarded three alternate proposals as per the copy
of the plans enclosed which were examined by me along with other Hon'ble Judges
of the High Court on 4-12-1982 and it was unanimously agreed to accept Scheme
No. 3 which contemplates construction of New High Court Building in place of
the existing Court building taking up in stages. All the Judges in the High
Court expressed their sentiments in regard to the construction of the New Building
The Scheme 3 has been
countersigned and forwarded to Chief Architect for preparing detail plans in
anticipation of the Government's approval.
xxx xxx xxx
Under the above
circumstances, I request you to convey approval of the Government for
sanctioning Scheme 3 and to take up construction of the New Building
8. The proposal of a new
construction on the same site was placed before an urgent meeting of the
"Central Administrative Area and Beautification Committee" held on
8-12-1982 under the Chairmanship of the Chief Secretary. The Committee while
generally agreeing with the proposal for the construction of a new High Court
Building in place of the 'Attara Cutcherry', however, pointed out the need to
retain and reproduce, the architectural design of the old building. The
Committee said :
"The existing Atthara
Kacheri building, in its architectural style particularly its facade as also
its colour, provides a perfect counterpoise to the Vidhana Soudha edifice,
These two buildings are like two ornaments by which Bangalore
of 10 feet, (Underlining
supplied)
The note of the Public Works
Secretariat dated 17-12-1982 is this:
"P.D.W. agrees to the
above proposals subject to obtaining concurrence by Finance Department as the
work is Dot included in the budget estimates of the year 1982-83, is also
getting detailed plans and estimates before according administrative
approval."
Thereafter the Chief
Secretary placed the following note dt. 1-3-1983 for consideration of the
Cabinet:
"CABINET NOTE
Subject No. C.99/83 :
Construction of New High
Court Building Bangalore Administrative approval for the plan and estimate
amount to Rs. 11.00 crores.
Para No. 4: The
Beautification Committee in its meeting held on 8-12-1982 has approved the
construction of a new High Court Building in place of the existing (Attara
Kacheri), subject to certain conditions which have been accepted and will be
kept in view when the designs are prepared and construction is taken up.
Sd/- R. A. Naik,
Chief Secretary.
1-3-1983."
The decision of the Cabinet
thereon was:
"Subject No. C.99/83
Construction of New High
Court building in Bangalore
DECISION OF CABINET
Administrative approval is
accorded to the Construction of a New High Court Building at an estimated cost
of Rs. 11.00 crores in stages. Suitable provision should be made in the Budget
for the year 1983-84.
Sd/- Ramakrishna Hegde,
Chief Minister
4-3-1983"
On 23-3-1983 consequential
orders according administrative sanction were issued.
9. On 11-8-1983, however,
there was some interpellation on the floor of the Legislature about the
demolition and reconstruction and the sentiments of the public in the matter.
The Public Works Department appears to have sought the opinion of a certain Sri
Achuta Rao, said to be an expert in the field. The said Sri Achyutha Rao gave
report dt. 7-9-1983. There after in the File No. PWD 25/BGA 83 the Minister for
Public Works made the following notings : (at paras40 and 41).
"Para
No. 40. 1 have also inspected the building. The life of the building can be
enhanced if we spent about Fifty Lakhs for another twenty to twenty-five years.
There is no dearth for technical advice to save the building. But the C.J. is
insisting to take up the construction of the new building by dismantling the
present building and construction of new building has not been sanctioned. But
a provision of Rs. 3.5 crores is made in the current year budget. The line
estimate for Rs. 11crores is prepared and administratively approved. The
Finance Department has cut down the LOC by 50% to renovation provided for this
year.
Para No. 41 : If the Finance
Department is prepared to provide sufficient funds to construct the proposed
new building by about 3 to 4 years, the PWD has no objection to take up the
work.
Sd/- H.D. Devegowda,
Minister for Public Works and
Irrigation.
1-11-1983."
In the meanwhile, the Urban
Area Committee, Respondent-3 had also sent a representation to the Chief
Secretary.
Thereafter the file was
placed before the Chief Minister who made the following note on 27-11-1983 :
"This was discussed with
the Minister PWD and Secretary PWD. In view of the decision already taken
earlier and also in view of the apprehension of the High Court Judges and
Advocates about safety, it was decided to go ahead with the work. PWD may
proceed."
10. It is in the light of the
foregoing events the State Government, in its statement of objections. says :
"The State Government
had obtained the opinion of the competent Engineers of the P.W.D. and the Chief
Architect of Government of Karnataka before taking the decision to demolish the
building in question."
"It is quite likely that
the old building may develop cracks and other defects after some lapse of time
at places other than the one existing now. The opinion expressed by Sri M.
Achutha Rao has been perused. It is submitted that even after considering his
report, the State Govt. has felt that it is desirable that a new building
should come in the existing place to provide better, suitable and functional
accommodation."
"Moreover the existing
building if repaired will not be as safe as the new building."
"It is humbly submitted
that during several discussions with the High Court and the members of the Bar,
it was opined that the High Court building should be located only in the place
where it is situated. The State Government has also felt that this desire to
locate the High Court Building in the very same place is also reasonable and
useful. Moreover it was felt that it is not advisable to put the building for
any other public use. The State Government is of the considered opinion that in
the place where the present High Court building is situated, a new building
should b constructed which should be used by the High Court ........"
" Even if extensive
repairs are carried out for the existing building, it was felt that the
accommodation available in the present building is wholly insufficient to meet
the needs of the High Court.........".
11. We have heard Sri G. P.
Shivaprakash, learned counsel for the petitioners; learned Advocate-General for
Respondents 1 to 3; Sri G. B. Raikar and Smt. Pramila for the Advocates who
have impleaded themselves as party-respondents. Sri S. K. Venkataranga. Iyengar
and Sri V. Krishnamurthy, Senior Counsel, intervened and made some
submissions.
12. The contentions urged at
the hearing admit of being identified and formulated thus:
(a)That petitioners cannot be
considered to be aggrieved-parties and have, therefore, no locus standi to
maintain the petition;
(b) That the 'Act' is an
enabling statute and merely enables something to be done, which was previously
not within authority of the executive; and there is nothing in the scheme or
the policy of the Act which can be said to convert what is clearly an enabling,
discretionary power into a duty entitling petitioners to a mandamus for its
enforcement;
(c) That the executive
decision to demolish 'Attara Cutcherry' and to put up a new building on the
site is arbitrary and Government is liable to be restrained from effectuating
that decision;
(d) That the Act, having regard
to its scheme, is not attracted to a building owned by Government and the
petition to enforce any Statutory duty under the 'Act' is not maintainable;
(e) That to qualify to be an
"ancient monument" within the statutory definition under Sec. 2(1) of
the Act, the building should have been in existence "for not less than one
hundred years" as on 15-9-1966, the date on which the Act came into force,
and
(f) That the responsibility
of providing a building for the High Court is that of the Union Government
under Entry 78 List-1 of the Seventh Schedule and the State Government cannot
undertake any expenditure in that behalf.
13. Re : Point (a) - This
concerns the locus standi of the petitioners. In yester-years, and perhaps even
in the not too distant a past, the one recurring theme that be devilled
administrative-law and judicial review most was the vexed question of locus
standi. But there is a much wider concept of locus standi now. It now takes in
any one who is not a mere "busy-body" or a "meddle-some interloper"
and all that need be shown is a sufficiency of interest in the matter to which
the petition relates. We have, "actio popularis" by which any citizen
can enforce law for the benefit of all, against public authorities touching
their statutory duties.
Petitioners are undoubtedly
litigating a matter of public interest. Though they have no personal interest,
they have a special interest as part of a group. Their concern is deeper than
that of a mere busy-body. To say that they have no enforceable rights and that
therefore they have no locus standi is to beg the question; and to confuse
between locus standi on the one hand and justiciability and merits on the
other. Both aspects, no doubt, are in overlapping areas and sufficiency of
interest must, of course, be seen against the subject-matter of the proceeding,
the nature of the duty sought to be enforced and the nature of the breach. The
words of a learned author on the subject may be recalled 'Administrative Law'
by Craig, 1983 edn. Pp. 442, 443 :
"The approach of the
House of Lords to the question of how one determines whether an applicant has
sufficient interest or not is one of the most interesting in the whole
case."
xxx xxx xxx
"The one matter on which
their Lordships agree, albeit with differing degrees of emphasis, is that
standing and the merits often cannot be separated in this way. While it may be
possible to do so in relatively straightforward cases, in those which are more
complex it will be necessary to consider the whole legal and factual context to
determine whether an applicant possesses a sufficient interest in the matter.
This will include the nature of the power or duties involved and the breach of
those allegedly committed. The term merits here is not being used in the sense
of a value judgment as to whether the applicant's claim is meritorious or good.
It means that the court will look to the substance of the allegation in order
to determine whether the applicant has standing."
Even if a person has locus
standi the issue raised by him may, yet be non-justiciable. There may be
degrees of justiciability.
In the present case it must
be held that petitioners have a sufficiency of interest to sustain their
standing to sue. They cannot, therefore, be told off at the threshold.
Indeed though a plea as to
standing, of the petitioners is taken in the statement of objections we did
not, however, understand the learned Advocate- General to have placed
particular emphasis on it.
14. Point (a) is accordingly
answered in favour of the petitioners.
15. Re: Point (b) -- This
question is the crux of the petition and really determines its success or
failure. The point turns on the policy of the 'Act' and the provisions made to
effectuate that policy. The preamble of the 'Act' provides :
"Whereas it is expedient
to provide for the preservation of ancient arid historical monuments and
archaeological sites arid remains in the State of Mysore other than Those
declared by or under law made by Parliament to be of national importance and for
the protection of sculptures, carvings and other like objects"
S. 2(1) defines an 'ancient
monument' to mean any structure, erection or monument, or any tumulus or place
of interment, or any cave, rock-sculpture, inscription or monolith which is of
historical, archaeological or artistic interest and which has been in existence
for not less than one hundred years.
S. 2(10) defines a 'protected
monument' to mean an ancient monument which is declared to be protected by or
under this Act.
S. (3) declares that all ancient
and historical monuments which have been declared to be protected monuments
under the previous legislation shall be deemed to be protected monument under
the present Act.
S. 4(1) may be set-out:
"4. Power of Government
to declare ancient monuments to be protected monuments:-
1) Where the Government is of
opinion that any ancient monument should be declared as a protected monument,
it may, by notification in the Official Gazette, give two Months' notice of its
intention to declare such ancient monument to be a protected monument and a
copy of every such notification shall be affixed in a conspicuous place near
the monument." (Underlining ours)
Sections 5, 6 and 7 provide,
where the monument is in private ownership, for the acquisition of the
'protected monument' or agreement with The owner for its preservation etc., Ss.
8 to 18 provide for repair, maintenance of protected monuments and enforcement
of agreements, Sees. 19 to 23 provide for the procedure to declare the
'Archeological Sites and Remains' as protected Area arid the restriction on use
of property within the protected area and connected matters. Sees, 24 and 25
provide for payment of compensation in certain cases. Secs. 26 to 31 set-out
offences and penalties and jurisdiction to try offences. S. 32 is the repeating
section.
16. The central question is
whether having regard to the subjective form and the permissive words of S. (4)
it admits of being construed as merely granting a power or whether there is
something in the policy and the scheme of the Act which imposes a duty on the
Government to apply its mind and to consider any representation made to it on
the question whether any particular monument which is an 'ancient monument'
deserves to be declared a 'protected monument' under the Act. That the 'Attara
Cutcherry' falls within the definition under S. 2(1). and is an ancient
monument is not otherwise disputed. This is, of course, subject to the
contentions reflected in Points d) and (e) advanced by Sri G. B Raikar,
17. Sri Shivaprakash says that
the purpose and the policy of the 'Act' is to provide for the preservation of
ancient and historical monuments and archaeological sites and that the
provisions of S. 4(1) though apparently couched in subjective and permissive
language must not receive a bare mechanical interpretation devoid of the
concept of purpose reducing them to futility, but must be interpreted in the,
light of the general purpose of the, Act itself. So 'purposively' construed,
says counsel what appears apparently permissive becomes objective and
obligatory. Sri Shivaprakash accordingly contended that where Government does
not exercise the discretion vested in it that inaction itself is actionable. He
relied upon the observations of the House of Lords in Padfield v, Minister of Agriculture
(1968) 1 All ER 694 and Secretary of State v. Tameside. Sri Shivaparakash
refeired to the following passage in Wade's Law' Fifth Edn. Pp. 228, 229:
"The hallmark of
discretionary power is permissive language using words such as 'may' or 'it
shall be lawful', as opposed to obligatory language such as 'shall'. But this
simple distinction is not always a sure guide, for there have been many
decisions in which permissive language has been construed as obligatory.'
Learned counsel referred to
the following passage in de-smith Judicial Review of Administrative Action,
Fourth Edn.:
"Partial or total
failure to exercise a discretion may occur because the competent authority has
failed to appreciate the amplitude of its discretion."
18. Learned Advocate General
urged that the 'Act' merely confers a power which becomes available to the
authority it forms an opinion that the monument should be preserved and that it
would be against all canons of construction to say that even in such a case the
authority could be compelled to form an opinion one way or the other. It would
be as tendentious as it would be if Government was compelled to form an opinion
under the law enabling compulsory acquisition whether a property is needed for
a public purpose or not or for that matter, whether the detention is necessary
under laws of preventive detention. Learned Advocate General relied on the
decision in Saroj Rawat v, Secy. Bar Council ; Kamala Banerjee v. Calcutta
University R. K. Manufacturers v. M. M. Trading Corpti. (1973) 2 Mad L.J 389
and A. K. Roy v. Union of India
19. In a Government, by law,
there is nothing like an unreviewable executive discretion. But this does not
mean that wide executive discretion is inconsistent with Rule of law. The
Modern pluralist, social-welfare, State which is, indeed, a "service
corporation" demands for its governance discretionary powers which are
necessarily as wide as they are varied, Prof. Wade says ibid page 347:
"It used to be thought
to be classical constitutional doctrine that wide discretionary power was
incompatible with the rule of law. But this dogma cannot be taken seriously
today, and indeed it never contained much truth. What the rule of law demands
is not that wide discretionary power should be eliminated, but that the law
should be able to control its exercise. Modern Government demands discretionary
powers which are as wide as they are numerous."
The concern of law is the
primordial need for preservation of order in society; and its purpose to
discipline power and prevent its abuse, All powers have legal limits.
20. The operation of a
statute is not automatic and can never be so. Like other legal principles and
rules it takes effect through the interpretation of courts. Interpretation is
therefore a search and discovery of a meaning which, however, obscure and
latent, has, none-the-less, a real and ascertainable pre-existence in the mind
of the Legislature, But problems arise where the question which is raised on
the statute had not occurred to the legislature, in which case the process of
interpretation tends towards a guess as to what the Legislature would have
intended if the point had been present in its mind.
21. Montesquieu said:
"The Judges of the nation are only the mouths that pronounce the words of
the law, inanimate beings, who can moderate neither its force nor its
rigor." "Justice Marshall said Osborne v. Bank of the United States 9
Weat 738, 866 : Judicial power is never exercised for the purpose of giving
effect to the will of the judge; always for the purpose of giving effect to the
will of the legislature, or in other words, to the will of the law". But
these thoughts are legal sentiments of the part. The one almost obsessive,
preoccupation of administrative law in the last thirty years has been the
kindling, or the rekindling, of the concern of the courts to remedy abuse and
unfairness in Government. The Judges have been embroiled in a series of battles
against the misuse of power at the highest level and have established, or
rather re-established, some very salutory restraints."
Indeed, as has been pointed
out, Marshall Ind
Legislative retaliation of
this expansive of judicial mood took two forms one direct and the other
indirect; the former by express exclusion of jurisdiction, and the latter by
resort to the now familiar legislative technique and expedient of grant of
power in such wide and subjective terms that there appear to be nothing left for
the court to judge.
Referring to the judicial
re-action to this "favourite device" Prof. Wade says:
"For over 40 years the
judges have been showing signs of resistance to these insidious provisions and
now in the Tameside case the House of Lords has confirmed that they are not to
be disarmed so easily .......".
"Liberties are taken
with the literal meaning of the words which, though not so daring the liberties
taken in cases like Anisminic, are just as necessary if the judges are to make
an effective resistance to Parliament's attempt to deprive them of their proper
function. It is abuse of legislative power, as well as abuse of executive
power, against which they are fighting." (Page 69)
(Underlining supplied)
Another learned lawyer spoke
(In Current Legal Problems 1983 page 31 (The Faculty of Laws - University
College London) "Changed. Attitude to Law - Fifty Years on" by Lord
Lloyd of Hampste page 5 1) of Lord Denning's contribution in this field:
"As for statute law, the
judges possess the constitutional right to interpret this and Lord Denning
would doubtless approve old Bishop Hoadly's celebrated observation that
"whoever hath an absolute authority to interpret an written laws. it is he
who is truly the Lawgiver."
"Given sufficient
strength of mind, as Lord Denning himself has repeatedly demonstrated in his
own decisions, by looking at the purpose of the statute and with the
presumption that Parliament's intention within the frame-work of that
overriding purpose must be to do justice between the parties, statutes may
always, or nearly always be construed to promote and produce that desirable
end."
In the field of
administrative law Lord Denning together with judges have control of the
executive .......".
"...... By pointing the
way to a robust exercise of the inherent power of judicial review of
administrative acts, the courts have created a new form of administrative law,
doubtless a good deal more limited than the jurisprudence of the French Conseil
d' Etat, but unique in the way it deploys the jurisdiction of the ordinary
courts for this purpose." (Underlining supplied)
The old limitations that a
court of construction imposed on itself in the task of effectuating the purpose
of a statute is well illustrated in the following statement of Lord Symonds in
Inland Revenue Commr. v. Ayrshire Employers Mutual Insurance Association Ltd.
(1946) 1 All ER 637, 641:
The section.... section 31 of
the Finance Act 1933, is clearly a remedial section.... It is at least clear
what is the gap that is intended to be filled and hardly less clear how it is
intended to fill that gap. Yet I can come to no other conclusion than that the
language of the section fails to achieve its apparent purpose and I must
decline to insert words or phrases which might succeed where the draftsman
failed."
The House of Lords referred
to this as an unhappy legacy of past. It is said (1981 AC 251 at P. 280):
"The unhappy legacy of
this judicial attitude, although it is now being replaced by an increasing
willingness to give a purposive construction to the Act, is the current English
style of legislative draftsmanship .It is wary of laying down general
principles to be applied by the courts to the varying facts of individual cases
rather than trying to provide in express detail what is to be done in each of
all foreseeable varieties of circumstances. In the attempt to do this the
draftsman will have taken account of technical and competing canons of
construction that are peculiar to English written law; and will have relied
heavily on precedent in his use of words and grammatical constructions and
general layout used in earlier Acts of Parliament that have been the subject of
judicial exegesis."
Indeed, the Pearlsweig case
(Liversidge v. John Anderson, 1942 AC 206) did indicate a particular judicial
inclination towards executive power formulated in subjective Tameside, Padfield
cases have placed that case where it belongs; in the "War-museum".
This dynamic and activist
role of the Judge against legislative fortifications of executive discretion is
not without its internal-dissenters. Lord Devlin's pessimism that
"Judicial interference with the executive cannot for long greatly exceed
what white hall will accept and the caution that "The British have no more
wish to be governed by judges than they have to be judged by
administrators" are now widely known. But they are, apparently, more known
than shared. Prof, Wade says Hamlyn Lectures: Constitutional Fundamentals p. 6
"........Lord Develin
spoke of possible retaliation by Acts providing that a minister's decision may
not be reviewed in any court of law. "And that," he says, "puts
the lid on". But the Anisminic case showed just the opposite when the
House of Lords removed the lid and threw it away."
Lord Devlin, however, went
further and said 'Judges and Lawmakers' - Modern Law Review, Volume 39 -
January 1976, Pp. 8,14, 2, 15:
"I have now made it
plain that I am firmly opposed to judicial creativity or dynamism as I have
defined it, that is, of judicial operations in advance of the consensus
......."
"Five judges are no more
likely to agree than five philosophers upon the philosophy behind an Act of
Parliament and five different judges are likely to have five different ideas
about the right escape route from the prison of the text ........"
"My question is not
about dynamic lawmaking but about whether the judiciary should be employed in
it. It would seem to require a surer political touch than a judge is likely to
have."
"It is this
evenhandedness which is the chief characteristic of the British judiciary and
it is almost beyond price. If it has to be paid for in impersonality and
remoteness the bargain is still a good one."
"Thus the executive
commands both the principle and the detail of the statute. Is the judge in the
case to go into partnership with the government of the day?."
But in this Denning-Devlin
dialogue over the philosophy of judicial creativity, Devlin appears to have
lost ground, it appears to be Denning Era now.
22. So far so good. But the
discovery of a in "policy" of the Act, to further which a process of
'purposive' construction is called into aid, should not reach a point where the
court is compelled to discover and supply a 'policy', not in the Act. With all
this law, a mere enabling power and a matter of, what may be called, 'pure
judgment still remains so.
In the case before us, S.
4(l) of the Act provides that where the "Government is of opinion that any
ancient monument should be declared as a protected monument, it may,"
initiate steps culminating in a declaration in that behalf under sub-sec. (4).
The statute does not specify or give even broad indications as to what may be
called, the "policy" of the Act so that in the context of that
"policy" a power may become susceptible of becoming an obligation.
The courts are prepared to supply omissions of the legislature and to imply
into the statute legislative intention that cannot be seen on its face. But the
material must be available from the statute itself; and nowhere else. The
"policy- of the 'Act' can only be ascertained on a construction of the
statute as a whole. It must stem from the provisions of the Act It cannot be
imposed ab-extra. If the "policy" is not in the words of the statute,
construed as a whole, it is nowhere else. Indeed the "policy" of the
statute might, itself, consist in the grant of a mere enabling permissive
power.
There is ample and high
authority for the proposition that the conditions whose existence or
non-existence render a power into a duty, must be found in and emanate from the
statute itself. It is no part of a court's function to discover or supply a
"policy" where it is not in the provision of the statute. There may
still be matters which remain in the area of -pure judgment" or subjective
opinion. We may now examine some of the cases bearing on the point.
In Julius v. Lord Bishop of
Oxford (1880) 5 AC 214 a complaint was preferred by a certain Dr. Julius before
the Bishop of Oxford against a Rector of the Parish alleging unauthorized
deviations from the rituals in the communion service, and required the Bishop
to issue a commission under the Church Discipline Act to inquire into that
charge. Bishop declined. The Queens Bench, oil
the application of Dr. Julius, commanded the Bishop to issue the commission. The
court of appeal reversed the decision of the Queens-Bench. In the House of
Lords, Lord Chancellor (Earl Cairns) adverting to the words "it shall be
lawful" occurring in the third section of the Church Discipline Act asked:
"Under the words
"it shall be lawful" is the bishop bound, on the application of any
party, to issue a commission or has he a discretion as to whether he will
issue."
Lord Chancellor proceeded to
answer:
The words "it shall be
lawful" are not equivocal. They are plain and unambiguous, They are words
merely making that legal and possible which there would otherwise be no right
or authority to do, They confer a faculty or power, and they do not of
themselves do more than confer a faculty power. But there may be something in
the nature of the thing empowered to be done, something in the object for which
it is to be done, something in the conditions under which it is to be done,
something in the title of the person or persons for whose benefit the power is
to be exercised, which may couple the power with a duty, and make it the duty
of the person in whom the power is reposed, to exercise that power when called
up to do so......".
x x x x x x
And the words "it shall
be lawful" being according to their natural meaning permissive or enabling
words only, it lies upon those, it seems to me, who contend that an obligation
exists to exercise this power, to show in the circumstances of the case
something which according to the principles I have mentioned, creates this
obligation. (vide Pp. 222 and 223) (Underlining supplied)
Court can, indeed, go behind
the words which confer the power to the general scope and object of the Act in
order to find out what was intended. But the 'scope' and 'object' of the Act
must be ascertained with reference to its provisions and their scheme. This
view was affirmed in the Padfield's case (1968 (1) All ER 694). Lord Pearce
observed:
There is no provision as to
what are the duties of a Minister in this respect. Has he a duty to further
complaints of substance which have no other outlet? Or can he refuse them any
outlet at all if he so chooses? Need he have, any valid reason for doing so? Or
if he exempt from any interference by the courts ,provided that he either gives
no reasons which are demonstrably bad or gives no reasons at all? No express
answer to these questions is given in the Act of 1958. The intention of
Parliament, therefore, must Se- implied from its structure." (vide P.
713).
(Underlining supplied)
Again in Tameside case (1976
(3) ABER 665), Lord Wilberforce said:
"The section is framed
in a 'subjective' form if the Secretary of State 'is satisfied'. This form of
section is quite well known, and at. first sight might seem to exclude judicial
review. .Sections in this form may no doubt, exclude judicial review on what is
or has become a matter of, pure judgment."
(Underlining supplied)
In that case Lord Denning A
R. had said the same thing in the Court bf Appeal:
"Much depends on the
matter about which the Secretary of State has to be satisfied. If he is to be
satisfied on a matter of opinion, that is one thing. But if he has to be
satisfied that some one has been guilty of some discreditable or unworthy or
unreasonable conduct, that is another". (Underlining supplied)
In Shah v. Barnet London
Borough Council 1983) 1 All ER 226, Lord Scarman said:
"Three points emerge as
of critical importance in the court's judgment .................. and, third,
the reliance on policy considerations derived not from the education
151~islation itself but from the court's own view as to what Parliament could
or could not have intended."
(P. 237)
xxx xxx xxx
The way in which they used
policy was, in y judgment, an impermissible approach to t e interpretation of
statutory language. Judges may not interpret statutes in the light of their own
views as to policy. They may, of course, adopt a purposive interpretation if
they can find in the statute read as a whole or in material to which they are
permitted by law to refer as aids to interpretation an expression of
Parliament's purpose or policy. But that is not this case ........." (P.
238)
(Underlining ours)
23. In R.'K. Manufacturers
case (1973 (2) Mad LJ 389), relied upon by the learned Advocate-General Rama
Prasada Rao. J. in Government to issue a notification under S. 3(l) of the
Essential Commodities Act, 1955, in respect of one of the essential commodities
enumerated in S. 2(vi) of the Act, said :
" .....Until the Central
Government forms such an opinion and makes an order and notifies the same in
the official gazette and follows the prescribed procedure laid down in the said
Act, there is no obligation on the part of the Central Government to fix the
price of steel as if it has been accepted and acknowledged to be an essential
commodity. Though the Central Government is the repository of power to act
under the Essential Commodities Act, the right to exercise it is conditioned
upon the circumstances enumerated above and until the Central Government
assumes such a power in the manner indicated, it cannot be said that there has
been an avoidance of a public duty. There may be various and myriad reasons
which might not prompt the Central Government to act under the Essential
Commodities Act, 1955. No statutory body, be it the Central Government, can be
compelled to express an opinion under S. 3(l) if it is not otherwise inclined
to do so."
(vide para-17)
In A. K. Roy's case Supreme
Court declined to compel the Central Government to issue a notification under
S, 3 of the Constitution (44th Amendment) Act, 1978 for bringing its provisions
into force. Supreme Court said:
" .....The Parliament
having left to the unfettered judgment of the Central Government the question
as regards the time for bringing the provisions of 'the 44th - Amendment into
force, it is not for the Court to compel the Government to do that which
according to the mandate of the Parliament lies in its discretion to do when it
considers it opportune to do it ........"
xxx xxx xxx
.... If only the Parliament
were to lay down an objective standard to guide and control the discretion of
the Central Government in the matter of bringing the various provisions of the
Act into force, it would have been possible to compel the Central Government by
an appropriate writ to discharge the function assigned to it by the Parliament
......."
As stated earlier to find out
the policy of the Act and to construe S. 4(l) "purposively" to
effectuate the policy of the Act, such "policy" must be gathered from
the statute read as a whole. If the statute read as a whole merely grants a
power and its exercise is in the area of pure judgment and of
subjective-opinion of the Government, it remains so, In the ultimate analysis,
the words "where the Government is of opinion" and "it may"
in S. +11) are distinct words of permission only, They are enabling and
empowering words. They confer a right and power on the authority named to do a
particular thing. Petitioners have no enforceable rights enabling them to a
mandamus. The question is not whether the word "may" in S. 4(1) means
something else. As Cotton LJ said (Re ~ Baker (1890) 44 Ch D262 (270):
"I think that great
misconception it caused by saying that in some cases 'may' means 'must'. It
never means 'must', so long as the English language retains its meaning; but it
gives a power, and then it may be a question in what cases, where a judge has a
power given him by the words 'may', it becomes his duty to exercise it."
But the real question is
whether these words in S. 4(l) did or did not create a duty on the authority,
Those circumstances and conditions which imposed a duty must stem from the
statute itself, A 'policy', to be liberated and extricated from the prison of
the text by a 'purposive' construction, must be pre-existent in scheme of the
statute itself; otherwise the process of 'construction' would, dangerously
border on 'legislation' in the guise of 'adjudication'.
The very profound remarks of
Justice Frankfurter are worth recalling . "The Still Small Voice of the
Herd", 32 Political Science Quarterly 315:
"Statutes come out of
the past and aim at the future. They may carry implicit residues or mere hints
of purpose. Perhaps the most delicate aspect of statutory construction is not
to find more residues than are implicit nor purposes beyond the bound of hints.
Even for a Judge most sensitive to the traditional limitation of his function,
this is a matter for judgment not alw4ys easy of answer .................
........Judges may differ as to the point at which the line should be drawn,
but, the only safeguard against crossing the line between adjudication and
legislation is an alert recongnition of the necessity not to cross it and
instinctive, as well as trained, reluctance to do so." (Underlining ours)
24. On scrutiny of the Scheme
of the 'Act' the inference becomes inescapable that the 'policy' of the law was
to confer a "power" on the Government which stems into activity and
becomes available only "where Government is of the opinion that any
ancient monument should be declared as a protected monument". There are no
provisions in the 'Act' which even broadly hint that given certain objective
conditions, the exercise of the power becomes obligatory and renders the
repository of the power compellable to exercise it. This is still in the area
of pure judgment and subjective opinion. It is not possible in the
circumstances of the statute to compel the repository of the power to form an
opinion, though formation of a positive opinion to make a declaration is
amenable to judicial review on the accepted administrative law tests. The
arguments advanced in the case way indicate and indeed stress the need and
desirability for a more imaginative and purposive legislation on the topic; but
that idea must be born in the precincts of the legislature. If the law is to be
altered, the law is to be altered by legislation and not by judicial decision.
25. We, accordingly, hold and
answer point (b) against the petitioners.
26. Re: Point (c) :The next
contention is that, independently of the Act, the executive action proposing to
demolish 'Attara Cut cherry' is arbitrary and unreasonable. Indeed, what is
reasonable or unreasonable is a question of fact and one of degree; and not of
law. We may recall what Lord Hailsham said in a different context. Re W (an
infant) (1971) 2 All ER 49 at P. 56:
"Exceptional, yes. But
the test is still reasonableness, or its opposite must be judged, as Russell LJ
observed in the instant case and as both counsel agreed, by an objective (as
distinct from the subjective) test. Indeed, I cannot myself readily visualise
circumstances in which the words 'reason', 'reasonable' or 'unreasonable' can
be applied otherwise than objectively And, be it observed, 'reasonableness' or
'unreasonablene5s' where either word is employed in English Law, is normally a
question of fact and degree, and not a question, of law, so long as their, is
evidence to support the finding of the court.
xxx xxx xxx
Two reasonable parents, can
perfectly reasonably come to opposite conclusions on the same set of facts
without forfeiting their title -to be regarded as reasonable."
27. Certain tacit assumptions
underly the conviction that certain problems are inherently unsuited for
adjudicative disposition and are not susceptible of effective legal action. The
present case, in our opinion, is one. The factors that have to be put into the
scales in arriving at such an executive-decision are varied and diverse and,
indeed, symbolize the, not infrequent, conflicts that confront the
administrator the choice between the old world values, traditionally cherished,
on the one hand and the pragmatic demands of urbanization and the increasing
tempo of economic activity and the aesthetic sacrifices that go with it on the
other. A wise balance is to be struck and that is a matter for the executive
genius. The debate such as the one that is raised on this issue exists because
of and in so far as men collectively cherish and pursue certain values; be they
political issues as to the form of Government or the moral absolutes of truth,
beauty and goodness. But the point to emphasize is that it is outside the pale
of courts' function to choose between the competing demands of aesthetic values
on the one hand and a plea of compelling utilitarianism on the other. In such
matters judicial wisdom is that executive wisdom alone shall prevail; and
judicial review abstain.
As professor Wade says (ibid
page 44):
"The one distinction
which would seem to be clear is that between judicial and administrative
functions. A judicial decision is made according to law. An administrative
decision is made according to administrative policy. A judge attempts to find
what is the correct solution according to legal rules and principles. As
administrator attempts to find what is the most expedient and desirable
solution in the public - interest. It is true, of course that many decisions of
the courts can be said to be made on grounds of legal policy and that the
courts sometimes have to choose between alternative solutions with little else
that the public interest to guide them. Nevertheless the mental exercises of
judge and administrator are fundamentally different. The Judge's approach is
objective, guided by his idea of the law. The administrator's approach is
empirical, guided merely by expediency..........." (emphasis ours)
As to the scope of judicial
review the words of Lord Hailsham in Chief Constable v. Evans (1982) 1 WLR 1155
are worth recalling:,
".............But it is
important to remember in every case that the purpose of -the remedies is to
ensure that the individual is given fair treatment by the authority to which he
has been subjected and that it is no part of that purpose to substitute the
opinion of the judiciary or of individual judges for that of the authority
constituted by law to decide the matters in question. The function of the court
is to see that lawful authority is not abused by unfair treatment and not to
attempt itself the task entrusted to that authority by the law ......."
Lord Brightman in that case
said:
"Judicial review is
concerned, not with the decision, but with the decision-making process Unless
that restriction on the, power of the court is observed, the court will in my
view, under the guise of preventing the abuse of power, be itself guilty of
usurping power."
(vide P. 1173)
(Underlining supplied)
This Court, therefore, cannot
go into the merits of the controversy as to whether or not 'Attara Cutcherry'
requires to be pulled down and a new building erected in its place or not.
Judicial review is no method of inquiring into the wisdom, expediency or
reasonableness of administrative acts. We should be unwilling to substitute our
own decision for that of the responsible authority. We have set out in Para 7 (supra), what preceded the making of the
Government's decision. Petitioners own view as to the wisdom or the want of it
of the decision may be right. All the same it is difficult to appreciate the
case of the petitioners that, even apart from the Act, they can still ask the
court to strike down the decision on the ground that it is an arbitrary and
unreasonable one. It is true that administrative decisions must not be
unreasonable or, at least, not so ~unreasonable that no reasonable authority
could have arrived at that decision. That is one fact of perversity. But it is
unreasonable to assume that because another party disagrees with one's own view
of the matter his or her view is, necessarily, unreasonable. There is no
material in law to hold that the proposed
executive action is arbitrary
and unreasonable so as to become amenable to judicial review and interference.
28. We accordingly, hold and
answer Point (c) against the petitioners.
29. Re: Point (d) - The point
that Sri G. B Raikar urged is that having regard to the scheme of the Act, the
Act is not applicable to, or attracted in case of, a building owned by
Government and that, therefore, question of compelling Government to consider
the question of declaring 'Attara Cutcherry' as a protected monument under the
Act does not arise.
Sri Raikar says that S. 4(l)
provides that where the G6vemment is of opinion that any ancient monument
should be declared as a protected monument, it should notify its intention in
that behalf and sub-secs. (2) and (3) then contemplate the filing of objections
by "any person interested". This, according to Sri Raikar, would show
that S. 4 is intended to cover cases of ancient-monuments in private ownership.
Sri Raikar also referred to certain other provisions in the Act enabling the
acquisition of the monument by the Government or entering into agreements with
the 9wner for certain purposes.
30. It is no doubt, true that
the Act contains provisions touching the acquisition of the ancient monuments
from providing ownership of entering into agreements with the owners with
respect to certain matters touching the 'monument' and of payment of
compensation' etc. These provisions are peculiar to and attracted only to
ancient monuments in private ownership. But the circumstance that an Act
contains special provisions relating to a particular class of cases does not
render it inapplicable to the generality of cases. There are provisions in the
Act which would be attracted and invoked - and would indeed be necessary also -
even where the ancient monument is owned by Government and is declared a
protected monument. Secs. 19, 20, 26, 27 and 28 are some of the provisions of
this kind.
It is not correct to say that
the scheme of S. 4, by necessary implication, 6icludes its applicability to the
properties owned by Government. This implication is sought to be imputed by the
provisions of sub-secs. (2) and (3).,A "Person interested" and
entitled to object to the proposed declaration need not necessarily be its
owner. He may have sufficiency of other interest to qualify him to be a
"person interested". To the extent and in so far as the expression
"person interested" in sub-sec. (2) need not necessarily mean the
owner of the monument. Sri Raikar's argument loses its edge. The inference a
proper construction of the Act yields is that the Act is applicable to
monuments both in the ownership of Government and also in private ownership.
31. Point (d) is answered
accordingly.
32. Re: Point (e) Sri Raikar
contends that a monument to be qualified to be reckoned as an Ancient Monument
under Sec. 20) of the Act must be "in existence for not less than one
hundred years" as on the date of the coming into force of the Act. He says
that by this standard 'Attara Cutcherry' does not qualify to be "ancient
monument" within the meaning of S. 2(l) and, accordingly, the question of
declaring it as a "protected monument" tinder the Act does not arise.
This argument is
unacceptable. Sri Raikar is reading something into S. 2(l) which is not there.
There is no such a cutting-of date provided in that section. The prescribed
statutory-standards must be applied as on the date on which the provisions of
the statute are sought to be applied to a particular case. That is the
"tense" in which the provisions of the statute are to be read,
unless, of course, the statute itself specifically provides otherwise and
specifies a particular date with reference to which the prescribed standards
are to be applied.
33. Point (e) is answered
against the respondents.
34. Re Point (f) - The
contention is that the providing of a suitable building to the High Court is a
topic which falls under "Constitution and Organisation7of High Courts
which is at Entry 78, List-1, Seventh Schedule to the Constitution and
therefore it is the responsibility of the Union Government and the decision of
the State Government to provide such a building is misconceived. Petitioners
rely on the decision of the Calcutta High Court in Pramdtha Nath v. Chief
Justice, High Court of Calcutta (SB).
"The topic
"Constitution and Organisation" of High Courts is at Entry 78. The
head "Administration of Justice; Constitution and Organisation of Courts,
except Supreme Court and High Courts" is at Entry 11 A of List 111. The
'words "Administration of Justice", occurring in a legislative entry,
is of very wide import. "Constitution and Organisation" of High
Courts is also part of the concept of the "Administration of
Justice". In construing legislative entries, where there is a dichotomy of
a topic of legislation in two distinct entries, one under the Union power and
the other under the State power, the topic of legislation "Administration
of Justice" must be so, construed as to exclude the topic of
"Constitution and Organisation" of High Courts which is taken out and
placed in a separate entry. The question is whether the obligation to provide a
building for the High Court falls under the topic "Administration, of
Justice" or "Constitution and Organisation of High Courts". In
our opinion, prima facie, it falls under the former. The idea
"Constitution and Organisation" in relation to a court has a definite
connotation touching its structure, jurisdiction and functions etc.
But Sri Shivaprakash urged
that providing a building is part of "Constitution and Organisation"
of the High Courts and not a part of "Administration of Justice". He
relied upon a Full Bench decision of the Calcutta High Court in Pramatha Nath's
case referred to above. What fell for consideration in that decision was
whether the question of prescription of vacation of State High Courts fell
within "Constitution and Organisation" of Courts or within the'
"Administration of Justice." In that case, Bose, J., one of the
learned Judges composing the Full Bench made the following observation:
"The matter of
organisation of the High Court includes, primarily things like the appointment
of the Judges, the division is to department, making provision and arrangements
for the housing of the Courts or in other words matters connected with the
giving of final shape to the Court so 'that it may start functioning,"
The question whether
providing a building for the High Court was part of, "Constitution and
Organisation" did not specifically arise for decision in that case.
Besides, the observation of Bose, J. relied upon cannot be
reckoned as the opinion of
the Full Bench. The other two learned Judges do not expressly lay down any such
proposition. On the contrary their observations are inconsistent with and
detract from such a proposition. P.B. Mukharit J. said:
"but taking even the
broadest view there can be no getting away from the fact here that "
administration of justice" sensibly and reasonably construed must include
"Vacation of High Courts" and is a State Legislative subject and not
within Parliament's legislative competence. It is appropriately and rightly so,
because the High Court belongs to the State (Art. 214 of the Constitution), the
State pays for it and "administration of justice" expenses are
charged on the consolidated fund of' the State exchequer. (Art. 229(3) of the
Constitution)." (per Mukharji J, vide para 19) Sinha, J. said "The
dictionary meaning of the word
constitution" is the
"act of formation of', the establishment of", any given thing. To
constitute" a High Court means to form it or establish it The dictionary
meaning of the word "organise" is "to get into working
order". Both the words "constitution" and
"organisation" mean the fixation of the form in which a High Court
should come into existence. 6iving it a liberal meaning, it could consist of a
determination of its territorial Jurisdiction, of the number of learned Judges
which it should consist of ........................".
(per Sen, J. vide para 58).
Learned counsel relies upon
what really is a passing statement of Bose J. The correctness of it, in our
opinion, is open to serious doubt. The contrary proposition that the topic of
providing a building to High Court falls within the concept of
"Administration of Justice" is eminently arguable., Indeed, in 20
American Jurisprudence (2nd Edn.) 'Courts7 it is observed:
"Generally a building
designated as the court-house is placed at the disposal of a court,. and the
care for the courthouse as a building is considered an administrative, not a
judicial function. In certain jurisdictions it is provided by statute that each
county must erect a courthouse at the country seat and keep it in repair. A
duty to provide a suitable and convenient place for the holding of the courts
necessarily includes the duty to provide a proper and sufficient court room
with facilities for conducting trials by jury, including an adequate and
sufficient jury room and the necessary conveniences." (para 38 at P. 414)
"On the failure of the
country to provide sufficient facilities, the court itself, to insure the
efficient administration of justice, has not only the right, but also the duty,
to see that it is properly equipped accommodations, and furnishings so as to be
able to act effectively as a court. Castle v. State, 237 Ind
(Underlining supplied)
However, we need not
pronounce on this question finally because petitioners have not in the
petition, pushed the proposition to its logical conclusions and have not sought
relief by way of a direction to the Government to': forbear from incurring any
expenditure in this behalf.
35. We dispose of Point (f)
accordingly.
36. We may perhaps here
notice one other contention rose in the petition. Petitioners' have expressed
their "distress" over the proposed massive investment of 11 crores of
rupees on the construction of a building to house the High Court, when
Government 61even to this day is unable to provide drinking facilities to all
the villagers in the State". This investment, according to them, is an act
of "dissipation". The question as to what outlay should be made on a
building intended for such a purpose is purely a matter dependant upon the
magnitude of the need the manner in which it is to be met and on technical and
economic considerations. Petitioners7 criticism does not appear to be an informed
one. They have not placed before court any material on which the court could
interdict the: executive action. No relief is possible to be granted on this
grievance of the petitioners.
37. In the result, for the
foregoing reasons, this writ petition fails and is dismissed is petitioners
have litigated an issue of public concern and with the best of motives, it is
appropriate that parties should be left to bear and pay their own costs.
Order on the oral application
under Art. 134A of the Constitution of India for a certificate of fitness to
appeal to the Supreme Court:
38. At the conclusion of the
pronouncement of the order, Sri G. P.Shivaprakash learned counsel for the
petitioners made an oral application under Art. 134A of the Constitution for a
certificate of fitness under Art. 133 to- appeal to the Supreme Court from the
order just now pronounced.
39. We think that this
petition does not involve any substantial question or questions of law of
general importance needing to be decided by the Supreme Court.
40. Accordingly, we refuse
the certificate prayed for and reject the oral application.
41. Petition dismissed.
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