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B.V. Narayana Reddy and ors. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 20676 of 1983
Reported inAIR1985Kant99; ILR1984KAR631
ActsConstitution of India - Article 226; Karnataka Ancient and Historical Monuments and Archaeological sites and Remains Act, 1961 - Sections 2(I) and 4(I)
AppellantB.V. Narayana Reddy and ors.
RespondentState of Karnataka and ors.
Appellant AdvocateG.P. Shivaprakash, Adv.
Respondent AdvocateN. Santhosh Hegde, Adv. General, ;M.N. Pramila, ;G.B. Raikar and ;S. Vijayashankar, Advs.
- constitution of india .article 26-a: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] right to establish and maintain educational institution - held, the right to establish and maintain educational institution is also conferred on every religious denomination or any section thereof, irrespective of the fact that they belong to majority or minority community in the nation, under article 26(a) of the constitution. education is per se regarded as an activity that is charitable in nature. education is a recognized head of charity. therefore a right to establish and maintain institution for charitable purposes includes a right to establishment and administration of educational institution. however, it is a right not conferred on individuals but on a religious denomination or a.....venkatachaliah, j. 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 on the site. this petition is.....

Venkatachaliah, J.

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 on the site. This petition is before us on its reference to a Division Bench by Swami, J.

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, now appeal to the provisions of the 'Act'. They have also challenged the decision of Government as an arbitrary decision uninformed by relevant considerations.

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 and men of eminence in their respective fields are acting with the highest of motives and in public-interest, as they conceive it. None of them has any collateral-motives.

The second aspect is that 'Attara Cutcherry' is, it is not disputed, a beautiful land-mark in the City of Bangalore. It was built during the year 1864-68 at a cost of about 4 1/2 lakhs. Of rupees in Grecian style and is located in the sprawling 100 acre garden, in the heart of the city, named after Sir Mark Cubbon, a former Chief-Commissioner of the old princely State of Mysore (Mysore Gazetteer, Vol. 5, 1930 edition.)

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 also. The 18 traditional departments of the State restated to be referred to in the classic 'Rajatarangini'.

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 priceless ness of this historic monument in terms of its cultural value and its architectural-beauty. The City of Bangalore, they say, will be poorer for its absence.

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 in the same place where the present building is located.

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 by demolition of the existing structure by stages.'

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 Attara 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 city is known now all over the country and every Bangalore an is very proud of them. Whereas there would be no objection to a new Building coming up within more or less the same space to replace the existing building of the High Court, especially considering the needs of the additional accommodation required by the High Court, and the weakness of the existing structure which is over 115 years old, it would be in the fitness of things if the existing style and facade were repeated without any change whatsoever while providing for the required additional levels within the proposed additional height

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:


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. 1. Consequent to the increase in the strength of the Judges of the High Court and the strength of the staff of the High Court is well, the High Court has been frequently requesting the Government to provide additional accommodation. The question of providing additional accommodation to the High Court as also to the office of the Advocate-General has therefore been under consideration of Government for some time.

Para No. 2. On 1-12-1982, the then Chief Minister along with the Chief Justice, Judges of the High Court, the then Minister for Animal Husbandry, Law & Parliamentary Affairs, the Chief Secretary and the then Advocate General, jointly inspected the High Court building. After this inspection it was decided to construct a new High Court building in place of the existing one as the existing building is 115 years old and is no longer fit for occupation in the interest of the safety of the Judges, the staff and the litigant public.

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.

Para No. 9 . in the circumstances explained above, orders of the Cabinet are solicited to the proposal for construction of a new High Court building all an estimated cost of Rs. 11.00 crores in stages.

Sd/- R. A. Naik,

Chief Secretary.


The decision of the Cabinet thereon was:

'Subject No. C.99/83

Construction of New High Court building in Bangalore . Administrative approval for the plan and estimate amount to Rs. 11.00 crores.


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


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.


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, 'action popular is' 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 Shivaprakash referred 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 : AIR1954All735 ; Kamala Banerjee v. Calcutta University : AIR1956Cal563 R. K. Manufacturers v. M. M. Trading Corpti. (1973) 2 Mad L.J 389 and A. K. Roy v. Union of India : 1982CriLJ340 . We will refer to the latter two later.

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 salutary restraints.'

Indeed, as has been pointed out, Marshall's own life and work is a conspicuous illustration of how he left on the American Constitution the impress of his own mind-, and 'molded it, while it was still plastic and malleable, in the fire of his own intense convictions.' Judicial review has now broken down the legislative barricade of administrative finality. The concept of unfettered discretion and its unreviewable finality are a matter of the past (Constitutional Fundamentals Pp. 42, 43). As Lord Atkin said 'finality is a good thing, but justice is a better.' (Ras Behari Lal v. Emperor, .

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 'favorite 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 Council 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 Symons 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 151islation 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 : 1982CriLJ340 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 : AIR1961Cal545 (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 83, 143 Ne2d 570. '(footnote No. 13)

(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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