(1) The pettioners pray for the issue of a writ of certiorari or other appropriate writ under Art. 226 of the constitution to quash teorder of the learned Advocate General of Madras dated 6-1-1961 in sanction Appln No. 11 of 1960, preferred before him for the necessary consent for the institution of a suit under S. 92 C.P.C.
(2) The petitioners are residents in the village of Sirunaickanpetti Dngual tauk, Mathurai Dt. and they are Roman Catholic Christians by religion. The bulk of the population of the village of Sirunaickenpatti consists of Roman Catholic Christians. There is a Church in the village, St. Anthony Church and there is also another church, the Church of S. Thomas situated on the top f ahillock near the village. The catholic Christians of the village appear to have raised funds for levying contribations and subscriptions from all the Catholic and purchased statues, pictures, ornaments, and carriage for carrying corpses to the burial ground and other articles necessary and useful for the Christian population residing in the locality.
Respondents 2 to 4 in this petition are stated to be funtioning as trustees managing the communal properties. The articles referred to above were entrusted to them for safe custody; they were bound to celebrate the festivals connected with the churches, and afford use of the articles to the members of the christian public as and when required. These respondents also made collections from their co-religionists in the village and incurred the necessary expensives for the upkeep and maintenance of the properties and for the conduct of the religious festivals. The second respondent is alleed to be "nattamai" or the communal head, and the third respondent is alleged to be the "maniam" possibly assisting the Nattamai. The 4th respondent is the accountant employed by the second and the third respondents to keep the accounts of the trust.
The petitioners allege that the 4th respondent has been lending out the surplus amounts of the trust available with him after meeting all charges and expenses to several Christian residents of the village, taking bonds and documents in his own name for and behalf of the community. This fund is described and wn as St. Sebastiar Koil common fund. It is now aparent that there is a faction in the village amongst the members of the Roman Catholic Christian community. The petitioners charge respondents 2 to 4 with having commited gross breach of trust in regard to the moneys belonging to the trustin having retained the surplus amount in their own hands without investement for the last two years and in having to refuse to render true and proper accounts to the other members of the community.It is also alleged that respondents 2 ans 4 failed in their duty to call for a meeting of the community and to consult them in matters relating to the common affairs of the community.
The ill-feeling between the petitioners' group and the respondents' group gradually developed and this led to respondents 2 to 4 denying the petitioners their un doubted privileges of participating in the public function in the church and refusing them to use of the furenal car to take corpses to the burial ground. The petitioner filed a suit in a representative caoacity under O.1 Rule 8 C. P.C. against respondents 2 to 4 in the O.S No. 226 of 1959 on the file of the District Munsif's Court of Dindigul for a declaration that the funeral car under the management of respondents 2 to 4 belongs to the Roman Catholic community of srinaickenpatti and that all the members of the community are entitled to make use of it and that respondent 2 to4 should make the car available for the use of the community as such. This suit was decreed by consent of parties on 1-4-1960.
(3) Respondents 2 to 4 are firmly entreched in their position as trustees in respect of the management of the Church and the communal properties. They have also trust funds in their hands, if the allegation of the petitioners is true, in respect of which as trustees they were certainly liable not merely to keep regular accounts but also to render accounts to the beneficiaries of the trust when called upon to do so. The petitioners therefore contemplated the filing of a suit against respondent 2 to 4 and framed a plaint praying for the following reliefs:
(a) For an order for the removal of respondents 2 to 4 from thir respective capacities in which they were funtioning as trustee and accountants thereof;
(b) for the appontement of new trustees from among the community in their places;
(c) for veswting the trust in the custody of new trustees to be appointed;
(d) for directing the respondents 2 to 4 to render a true and proper account of the receipts and disbursements relating to the trust during the period of their management;
(e) to frame ascheme for the proper administration of the chruches and their affairs in the interst of the Roman Catholic community of Srirunaickenpatti.
This suit clearly felt in the ambit of S. 92 of the C. P. Code and the petitioners had therefore to approach the Advocate General of Madras, the first herein, for consent and sanction. They accordingly preffered Sanction Appln. 11 of 1960 before him. This application is accompanied by the copy of intended plaint. The Advocate General to the respondents 2 to 4 and hearing both sides, the petitioners and respondents 2 to 4, pass4ed an order on 6-1-1961 refusing consent. The folloeing is the order: "Consent is refused."
(4) The petitioners field aggrieved by the order of the learned Advocate General refusing consent and hence this petition has been field. The preliminary question that arises for whether the power exercisable by the Advocate General under S. 92 C.P.C. is a judicial power and whether resultant act is a judicial order within the scope of a certirari under Art. 226 of the constitution. It is quite well settled and it can be taken to be established law without citation of any authority that certiorari will not lie unless the body or Tribunal whose proceedings are sought to be quashed has the legal authority to determine questions affecting rights of the subjects and owes a duty to act judicially.
(5) There is no completing statutory obligation on the part of the Advocate General to hear witness, to admit documentary evidence and to hold an enquiry before granting and refusing consent when he moved under S. 92 C.P.C. Adherence to judicial forms of procedure is salutary, indeed advisable to dispeal fear or apprehension of arbitrariness in the mind of the aggrieved person. In Pitchayya v. Venkatakrishnamacharlu, AIR 1930 Mad 129: ILR 58 Mad 223, Kumaraswami Sastri J.observed thus at page 131,
"The authority giving the sanction must consider the various aspects before giving the sanction and one important consideration should be as regards the status and position of those who come forward to represent the community. We may in this connection state that it would be more desirable, before giving the sanction that notice should be given to the institution or the trustees althrough it is not obligatory."
The present practice of the Advocate General of this State is, so far as I know to hear concerned parties on both sides of the proposed suit before granting or refusing consent. But the judicial procedure adopted by the Advocate General cannot determine the true nature of his official act.
Article 165 of the Consitution prescribes the following duty to the Advocate General for the state:
165(2) It shall be the duty of the Advocate General to give advice to the Goverment of the state upon such legal matters, and to perform such other duties of a legal character; as may from time to time be referred or assinged to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate General shall hold office during the pleasure of the Governor and shall receive such remuneration as the Governor may determine."
The Advocate General is a limb of the Executive qua his official capacity. The power to give or withhold consent to actions in regard to public nuisance and in regard to public trust under Ss. 91 of the C. P. Code is a statutory power.
(6) THe position of the Advocate General in relation to public trusts is similar to that of the Attorney General in England under the Sir Samuel Romilly's Act. A proceedings under the Romily's Act should have the consent of the attorney or Solicitor General and the consent should be certified by him before the commencement of the proceedings. The object of the consent of the Advocate General, who is in the position of the parens patrae over all pblic tursts, is to safeguard the trust against frivolous actions by impecunious persons. As poimted out by Sankaran Nair and Spencer jj. in Venkatesha Malliahv. Ramayya Hegade, ILR 38 Mad 1192: (AIR 1915 Mad 127), cases may occur in which it might be inadvisable for the Advocate General to grant sanction to a particular individual either on account of his character, personal motive or his solvency. The exercise of the power of the discharge of a duty as a guardian of the trust to promote its interests or to shield it from vexatious actions, which is all that is called for under S. 92 C.P.C., cannot amount to the performance of ajudicial function.
(7) It is quite that the granting or refusing by the Advocate General under S. 92 C. P.C. is no judicial determination of any legal rights of the parties to the intended action. All the questions in controversy between the parties to such an action have to be decided only by the court entertains the suit The trst in respect of which the action is brought may not be a public trust and the court may hold that it is not of such a character. The alleged acts of breach of trust with which the defendants in the suit are charged and may be wholly unfonded and the may fail. There cannot be judicial order which is toatlly bereft of any detarmination or adjudication of legal rights binding the parties.
(8) It is now necessary to refer to the decision of the Tranvancore Cochin Highcourt in Abu Backer v. Advocate General T. C. State AIR 1954 Trav-Co 331, where a Division Bench held that the decision of the Advocate General under S. 92 C.P.C. granting or refusing santion is a decision affecting the rights of the parties and that such adecision is a quasi judicial decision amenable to a writ of certiorari At page 337 Sankaran J. observed as follows:
"The order is one passed under S. 92 C.P.C. Code. Undre that section the Advocate General has been consitituted the authority empowered to decide whether sanction or consent should be given to 2 or more persons having an interest in the public trust to institute the suit of the nature contemplate din that section. It is that section that the person seeking such sanction or consent should be person having an interest in the trust............................When the consent is sought for it is the duty of the advocate General to come to adefinite decision as to whether such sanction should be given or not...................It is equally obvious that he has to make a judicial approach to the question in controversy and to arrive at a decision after due consideration of the facts and the evidence made available to him."
It may be that the Advocate General does very often and perhaps invariably consider the question of the proprity of giving or withholding consent in ajudicial manner. But the nature of the order does not depend upon the procedure adopted by him. An Executive act with the trappings of a judicial procedure is still an executive act, through overlaid with a judicial cover, and it cannot be invested with judicial character With great respect to the learned Judges of the Tranancore Cochin High Court they appear to have mistaken the form for the substance.
(9) In Swami Shantanand Sarwati v. Advocate General U.P. Allahabad A Division Bench of the Allahabad High Court have dissented from the view taken by the Travancore Cochin High Court. The learned judges of the Allahabad High Court held that the act of the Advocate General in giving his consent to the institution of a suit under S. 92 C.P.C. cannot be called a quasi judicial act and that it is merely an administrative or executive act. At page 376 A garwala j. observed thus:
"In giving his consent under S. 92 C.P.C. the Advocate General is not expected to decide the rights of the cotending parties. Even if he has to hold an enquiry, he is merely to see whether there is a prima faciecase that should be allowed to go to a court of law. When he gives his consent to the institution of a suit he does nothingmore than this. By the consent which he gives for the institution of the suit, he does not affect the rights of the person against the whom the suit his filed. That person has full opportunity to present his case before the court in which the suit has filed. The court is not influenced in deciding the case by the fact that the Advocate General has given his consent to the institution of the suit. It is therefore not a case in which there is any decision about a dispute or a claim."
I respectfully agree with this observation of the learned Judge.
(10) The relators who approach the Advocate General for sanction to institute a suit under S. 92 have no right to institute the suit without the consent of the Advocate General. They must of course have sufficient interestin the trust as otherwise they would incompetent to figure the plaintiffs. The Advocate General himself may institute the suit claiming the reliefs provided for under S. 92 C.P.C. When the relators get his sanction and filed the suit; it is virtually the suit instituted by the Advocate General himself. The nature and the character of the suit is the same, whether the Advocate General is eo nomine a party to the suit or permits other persons interested in the trust to file the suit. This is purely a matter of procedure. I am unable to see how an act of the Advocate General permitting two or more interested persons to launch a suit against the trust or refusing such consent to them can amountto discharge of ajudicial function. In my opinion the act of the Advocate General in such matters in effect amounts to his either having instituted the suit through the medium of the relators or his having refused to file a suit.
(11) A writ of certirari under Art. 226 of the Consitution to quash the order of the learned Advocate General dated 6-1-1961 insanction Appln. 11 of 1961 is therefore not maintable. The petition is dismissed.
(11) Petition dismissed