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HIGH COURT OF ALLAHBAD
RAGHUBAR DAYAL, AGARWALA, JJ.
Swami Shantanand Sarswati
Versus
Advocate-General, U.P., Allahabad
Special Appeal No.127 of 1954
Decided On : 07-01-1955
CIVIL PROCEDURE CODE - SECTION 92 - CONSENT OF ADVOCATE GENERAL - QUASI-JUDICIAL ACT - SCOPE AND PROCEDURE - JUDICIAL REVIEW - WRIT OF CERTIORARI - AVAILABILITY.
Fact of the Case:
The appellant, Swami Shantanand Saraswati, was nominated as the successor to the mahantship of Jotir Math by the late Swami Brahmanand Saraswati. However, some persons, including respondents 3 to 6, challenged the appellant's accession to the mahantship and applied to the Advocate General for permission to institute a suit under Section 92 of the Civil Procedure Code (CPC). The Advocate General granted permission, and the respondents filed a suit against the appellant. The appellant filed a petition under Article 226 of the Constitution, challenging the Advocate General's sanction and seeking to quash it.
Finding of the Court:
The court held that the Advocate General's act of granting consent under Section 92 of the CPC was not a quasi-judicial act but an administrative or executive act. Therefore, the Advocate General was not bound to act judicially or quasi-judicially in giving his consent. The court further held that the Advocate General was not bound by the rules framed for his guidance to hold an enquiry or to give an opportunity to the party concerned of being heard. The court also held that the Advocate General was not bound to act upon the report of the District Officer or to give his consent only on the basis of the facts and circumstances as determined upon the enquiry. The court concluded that the Advocate General was at liberty to act upon his own pure discretion in spite of the report of the District Officer.
Issues: 1. Whether the Advocate General's act of granting consent under Section 92 of the CPC was a quasi-judicial act? 2. Whether the Advocate General was bound to act judicially or quasi-judicially in giving his consent? 3. Whether the Advocate General was bound by the rules framed for his guidance to hold an enquiry or to give an opportunity to the party concerned of being heard? 4. Whether the Advocate General was bound to act upon the report of the District Officer or to give his consent only on the basis of the facts and circumstances as determined upon the enquiry?
Ratio Decidendi: 1. The court held that the Advocate General's act of granting consent under Section 92 of the CPC was not a quasi-judicial act but an administrative or executive act. The court reasoned that Section 92 of the CPC or any other provision of the CPC did not require the Advocate-General to hold any enquiry or to give an opportunity to the party to be affected of being heard. The court also held that the rules framed for the guidance of the Advocate-General even if they are treated as statutory rules do not make it Incumbent upon the Advocate-General in all cases to give an opportunity to the party concerned of being heard. Further, the Advocate General is not bound by the rules to act upon the report of the District Officer or to give his consent only on the basis of the facts and circumstances as determined upon the enquiry. He is at liberty to act upon his own pure discretion in spite of the report of the District Officer. 2. The court held that the Advocate General was not bound to act judicially or quasi-judicially in giving his consent. The court reasoned that where an officer or other authority is not bound by any rule of law to hold an enquiry and to act strictly in accordance with the facts and circumstances of the case as they appear upon the enquiry, he cannot be said to be acting judicially or quasi-judicially. Even where he is directed to hold an enquiry-but where he is not bound to act in accordance with the facts and circumstances of the case-he merely acts in an executive or administrative manner. 3. The court held that the Advocate General was not bound by the rules framed for his guidance to hold an enquiry or to give an opportunity to the party concerned of being heard. The court reasoned that the rules framed for the guidance of the Advocate-General even if they are treated as statutory rules do not make it Incumbent upon the Advocate-General in all cases to give an opportunity to the party concerned of being heard. 4. The court held that the Advocate General was not bound to act upon the report of the District Officer or to give his consent only on the basis of the facts and circumstances as determined upon the enquiry. The court reasoned that the Advocate General is at liberty to act upon his own pure discretion in spite of the report of the District Officer.
Final Decision: The court dismissed the appellant's petition under Article 226 of the Constitution, holding that the Advocate General's sanction was not void and that the appellant had a remedy of taking that plea in the suit which was pending in the court of the District Judge of Banaras.
AGARWALA, J.:- This is a special appeal from a judgment of a single Judge of this Court in a case under Art.226 of the Constitution. The dispute relates to the succession to the mahantship of a math known as the Jotir Math. The Jotir Math is one of the four maths founded by the first Shankaracharya at the four corners of India, and is situated in Pauri Garhwal in this State. The other maths are at Shringiri in Mysore, Gobardhan Peeth in Puri and Sharda Peeth in Gujerat. The Mahants of these maths are also called Shankaracharyas. The last Shankaracharya of Jotir Math was swami Brahmanand Saraswati who died or. 20-5-1953. He was alleged to have executed a will, dated 18-12-1952, by which he had nominated as his successor to the mahantship of Jotir Math, as also to his personal properties, Swami Shantanand Saraswati, the appellant before us. Some persons, including respondents 3 to 6, were dissatisfied with the nomination of the appellant to the mahantship and they challenged the accession of the appellant to the mahantship of the math.
The four respondents - 3 to 6 - as well as one Swami Sarupanand made an application to the Advocate General on 25-11-1953, asking him to accord them permission to institute a suit under S.92, Civil P.C. for some of the reliefs mentioned in that section against the appellant in respect of the properties pertaining to Jotir Math. On receipt of that application the Advocate General directed the Collector of Banaras to hold an enquiry and to submit his report to him. The Collector thereupon issued notice to the appellant and held an enquiry in which both sides adduced evidence before him and he reported that Swami Sarupanand and others, who wanted the consent of the Advocate-General to the institution of a suit under S.92, Civil P.C., were not entitled to the permission sought. The Advocate General, however, came to a contrary decision and considered that permission should be granted to them and accordingly he granted the permission by an order, dated 29-1-1954.
Later on, Sarupanand, who himself claimed to be the senior-most disciple of the late Swami Brahmanand Saraswati and on that account to be entitled to succeed to the gaddi of Mahant, did not consider that he should himself be a party to that suit. The remaining four persons thereupon made a fresh application to the Advocate-General on 26-4-1954, for a fresh permission being granted to them. The Advocate-General granted them the required permission by an order, dated 29-4-1954. On this occasion no further enquiry was made by the Advocate-General as to whether he should grant the permission or not.
2. Armed with the sanction of the Advocate-General respondents 3 to 6 filed a suit against the appellant under S.92, Civil P.C. in the court of the District Judge of Banaras. The appellant thereupon made an application under Art.226 of the Constitution in this Court praying that the sanction granted by the Advocate-General to the opposite parties may be quashed as the opposite parties had no interest in the math and further because no enquiry had been made by the Advocate-General before he granted the sanction and no opportunity was given to the appellant to show cause why the permission should not be granted. It was alleged that the Advocate-General was bound to act in a quasi-judicial manner in giving his consent under S.92, Civil P.C. and that he was bound to make an enquiry which he did not do.
The learned single Judge before whom the matter came up for orders dismissed the application without issuing notice to the opposite parties. He based his decision on the ground that if the sanction granted by the Advocate-General was void the petitioner had a remedy of taking that plea in the suit which was pending in the court of the District Judge of Banaras and that, on the other hand, if the sanction of the Advocate General was not void and the plea relating to it could not be taken by him in the suit the order of the Advocate General could not be v
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