IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24/03/2005
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
The Hon'ble Mr. Justice D. MURUGESAN
and
The Hon'ble Mr. Justice S.R. SINGHARAVELU
Writ Petition No. 18366 of 2003
and
W.P.M.P.No. 22963 of 2003.
A. Joseph Louis,
No.7-B, Crawford Colony,
Trichy-12. .. Petitioner.
-Vs-
1. The District Welfare Fund Committee,
represented by its President, the
District Collector,
Mc. Donalds Road, Cantonment,
Trichy-1.
2. N. Balasubramanian,
No.24, Govinda Konar Street,
Sangiliandapuram,
Trichy-1.
3. State of Tamil Nadu,
represented by the Commissioner,
Land Administration, Chennai. .. Respondents.
Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Mandamus, directing the first respondent to accept the highest
Tender of Rs.2,07,999/- per month made by the petitioner herein in respect of
lease of "Thiyagaraja Bagavathar Mandram" cinema theatre, Kalaiarangam,
Trichy-1.
!Mr. P.S. Raman, Senior counsel for Mr. P.R.
Raman:- For petitioner.
^Mr. R. Yashodvardhan for Mr. K. Kannan:- For
1st Respondent.
Mr. N.R. Chandran, Senior counsel for Mr.
R. Natarajan:- For 2nd Respondent.
Mr. V. Raghupathy, Government Pleader:- For
3rd Respondent.
:ORDER
(Order of Court was made by P. Sathasivam, J.,)
This Writ Petition is filed by one A. Joseph Louis against District Welfare
Fund Committee represented by its PresidentDistrict Collector, Trichy-1, N.
Balasubramanian, Trichy-1 and State of Tamil Nadu represented by Commissioner,
Land Administration, Chennai for a Writ of Mandamus, directing the first
respondent-District Welfare Fund Committee to accept the highest Tender of
Rs.2,07,999/- per month made by him (petitioner) in respect of lease of
“Thiyagaraja Bagavathar Mandram” Cinema Theatre, Kalaiarangam, Trichy-1.
2. First, the Writ Petition came before the First Bench consisting of Hon’ble
The Chief Justice and D. Murugesan, J. The Division Bench based on the
averments in the affidavit and counter affidavit and after finding a prima
facie opinion that the first respondent-Committee did appear to be performing
public functions, expressed their inability to follow the earlier Division
Bench decision of this Court in W.P.Nos. 1043 and 1896/2002 and 23534 and
26501/2001 dated 26-2-2002 holding that the Writ Petition against the first
respondent is not maintainable and referred the matter to this Larger Bench.
3. The text of the Reference made to the Larger Bench is reproduced
hereunder:
“12. In Management of GE Power Controls India (Pvt) Ltd., & another v.
Workmen of GE Power Controls India Pvt. Ltd., & others (2 005 1 L.W. 126),
it has been held that ordinarily no writ lies against a body, which is not an
instrumentality of the State, unless it is performing public functions. The
entire case law on this point has been considered in great detail (vide
General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (2003
(8) SCC 639).
13. In our opinion, though the petitioner may not able to lay adequate
factual foundation in paragraph-8 of its affidavit that the first respondent
is an instrumentality of the State, yet we are prima facie of the opinion that
the first respondent does appear to be performing public functions, as is
evident from the factual allegations in the writ petition and in the counter
affidavit of the first respondent. In fact, in paragraph-11 of the counter
affidavit of the first respondent, it is stated “District Welfare Fund
Committee is using every one of the resources only for the upliftment of the
poor and downtrodden. The funds are spent only for the poor and needy”.
14. In our opinion, the work of upliftment of poor and downtrodden is
certainly a public function in a Welfare State, as it is the duty of the State
to uplift the poor and downtrodden, in view of the mandate in the Directive
Principles of State policy contained in Part-IV of the Constitution. In view
of the above, we are of the opinion that the decision of the Division Bench of
this Court in W. P.Nos. 1043 and 1896 of 2002 and 23534 and 26501 of 2001
dated 26-02-2 002 (A.V. Sundaram & three others Vs. The District Collector,
Trichy and another) holding that no writ lies against the first respondent
requires to be reconsidered by a Larger Bench of this Court.”
4. Before considering the above Reference in detail, brief facts which are
required for answering the above Reference are stated hereunder:
It is the case of the petitioner that a very valuable piece of property
comprising of a vacant land of an extent of 2.5 acres and a constructed
building area of 34200 sq.ft. known as the Kalaiarangam in the heart of
Trichy belonged to the State. The said land was under the administrative
control of the then Municipality of Trichy (now Corporation of
Tiruchirapalli). The details regarding formation and activities of the first
respondent-committee have been stated in the affidavit filed at the time of
filing of th e writ petition as well as additional affidavit dated 7-2-2005
filed pursuant to the order dated 24-1-2005 of the Division Bench. The
following details are available in both the affidavits. In 1962 one Gulam
Mohamed Basha, I.A.S., then District Collector of Trichy, organised a District
Cattle Fair and generated a surplus of Rs.642/-. Making the said amount as
corpus, the District Collector along with Thiru Ka.P.V. Viswanathan, renowned
Tamil scholar started an informal and unregistered association of persons
called Trichy District Welfare Fund Committee. The very next year a State
level cattle fair was organised in Trichy which generated a further sum of
Rs.1,161.56 and in the same year, the Trichy Fire Department conducted a fire
fighting demonstration which generated a further sum of Rs.8,513.70 all of
which was donated to the Committee.
5. In 1964, K. Chokalingam, I.A.S., District Collector brought the famous
drama troupe TKS Nataka Sabha to Trichy and raised a sum of Rs.1,00,033/-
which was also donated to the Committee. In 1968, K. Haribhaskar I.A.S.,
District Collector organised a huge dance performance by which he raised a sum
of Rs.25 lakhs which was entirely donated to the State Government for the
conduct of the World Tamil Conference. Since the said conference itself had a
surplus, the entire sum of Rs.25 lakhs was returned in the name of the
Committee for the purpose of constituting a medical college. Due to various
reasons, a medical college could not be started and instead, an idea to start
an Agricultural University was mooted for which purpose the Committee gave a
donation to the then Chief Minister a sum of Rs.14 lakhs to be used as corpus
for establishing the University. When this idea also did not fructify, the
said amount of Rs.14 lakhs was returned back to the Committee.
6. In 1974, the then District Collector, M. Vaidyalingam, I.A.S., organised
a programme for raising funds for setting up the Navalar Nedunchezian College
and raised Rs.4,50,000/-, but since the college was not started, this amount
was like wise retained in the name of the Committee. It was felt that huge
amounts have been collected which needed to be utilised for some purpose and
since the educational institutions were not materialising, it was felt that
some permanent building could be constructed by the Committee. As suggested
by the then District Revenue Officer, Trichy, the Government have issued a
memo dated 15-6-1974 giving permission to the Committee to enter upon certain
extents of land for the purpose of putting up an auditorium. On 6-8-1975 a
society was formally registered under the name and style of “The District
Welfare Fund Committee”. Between 1975 and 1976 the said M. Vaidyalingam,
District Collector organised one more public function for establishing the
Rajaji Sanitorium and collected Rs.15 lakhs which amount was also given over
to the Committee as the Sanitorium was not built. Another sum of Rs.4 lakhs
was also given to the Committee by the District Collector from his District
funds for the purpose of the building of an auditorium. By 1976, the building
was completed and the “Kalaiarangam” was inaugurated with a cinema theatre and
an auditorium for conducting conferences and meetings.
7. By 1986, when the society was celebrating its Silver Jubilee, over
Rs.1,22,58,174.89 have been collected from public and substantial amounts
expended on giving welfare to the poor and the needy of Trichy including
construction of permanent premises for road side vendors and food stall
operators. The lands on which the Kalaiarangam was constructed which the
society had entered upon in 1974 under a memo was finally assigned absolutely
in its favour by the State Government-vide G.O.Ms.No. 290 Revenue Department
dated 13-02-1982 wherein specific reference is made to the earlier enter upon
permission as also a clear stipulation that the assignment was being made for
the express purpose of the construction of the Kalaiarangam. A total of 1
.4988 Hec. of prime land in the heart of Trichy was given to the society for
the above purpose for a nominal sum of Rs.4,83,900/- with 9% interest from the
date of taking possession in 1974. The Government Order refers to various
internal communications between the State Government and the District
Collector and the District Revenue Officer and the Additional P.A. to the
District Collector recommending the assignment. The aforesaid 3 senior
District Officials are the Exofficio President, Vice President and Secretary
of the Society. The above facts would clearly demonstrate that the very
origin, administration and maintenance of the society are deeply governed by
the District Administration and can never be considered or equated to any
other private society or association. The bye laws of the society provides
that there can only be 33 members to the society at any point of time of which
22 shall be ex-officio Government servants of whom the three referred above
hold the key Administrative posts.
8. The very aims and objects of the society as well as its source of funds
(largely collected from the public through public functions organised for
various specific purposes which never took place) and the fact that the funds
of the society are being applied only for public charitable and welfare
purposes in the District of Trichy, it cannot be stated that these activities
are not public duties.
9. With reference to the averments stated in the affidavit filed at the time
of the writ petition, the first respondentCommittee has filed a counter
affidavit wherein it is stated that the writ petition is not maintainable.
The Division Bench of this Court had already held on 26-2-2002 in W.P.No.
23534 and 26501 of 2001 and W.P.No. 1043 and 1896 of 2002 that the Distric t
Welfare Fund Committee (1st respondent herein) is not an instrumentality of
the State and hence not amenable to writ jurisdiction. As far as the said
committee is concerned, the award of lease to the second respondent is purely
contractual and beyond the paramount interest of the committee by securing
just returns for its property through dependable and solvent lessee nothing
else matters. The property was transferred to the society by means of an
assignment issued under G.O. 760/Rev/L2 dated 11-5-90 for a consideration of
Rs.4,84,203/-. The amount was remitted by the society on 28-06-90. The funds
were accumulated over a period of time by judicious conduct of the committee
in conducting various cultural programmes and collecting donations through the
public. The District Welfare Fund Committee is using every one of its
resources only for the upliftment of the poor and downtrodden.
10. With reference to the same affidavit, the second respondent has filed a
counter stating that the writ petition is not maintainable since the
respondents against whom the relief was sought for is not amenable to writ
jurisdiction under Article 226 of the Constitution of India. The other
averments relate to merits of the case which we are not concerned.
11. For the additional affidavit dated 7-2-2005 giving more information and
materials, respondents 1 and 2 have not filed counter affidavit. In the light
of the materials, facts and figures, let us consider whether the first
respondent committee is an instrumentality of the State or performing any
public function and whether a Writ under Article 226 of the Constitution of
India lies against the said Committee and also besides whether the decision
rendered in 2005 1 L.W. 126 ( cited supra) and order dated 26-02-2002 in Writ
Petition Nos. 1043 and 1896 of 2002 and 23534 and 26501 of 2001 have been
correctly decided.
12. Part III of the Constitution deals with Fundamental Rights. Article 12
defines “State” as under:
“12. Definition.- In this part, unless the context otherwise requires, “the
State” includes the Government and Parliament of India and the Government and
the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of
India.”
It is also relevant to refer Article 32 which speaks about right to
Constitutional Remedies:
“32. Remedies for enforcement of rights conferred by this Part.- (1) The
right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.”
Article 226 enables High Courts to issue certain writs:
“226. Power of High Courts to issue certain writs.- (1) Notwithstanding
anything in article 32, every High Court shall have powers, throughout
territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within
those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and
for any other purpose.”
13. The powers of the Supreme Court under Article 32 and High Court under
Article 226 have been considered by the Supreme Court in large number of
decisions. In the case of Shri Anadi Mukta Sadgiri S.M.V.S.J.M.S. Trust v.
V.R. Rudani, reported in A.I.R. 1989 Supreme Court page 1607, the Supreme
Court considered the writ jurisdiction of the High Court exercisable under
Article 226 of the Constitution of India. The following conclusion of Their
Lordships are relevant: (paras 19 and 21)
“19. The term “authority” used in Article 226, in the context, must receive a
liberal meaning unlike the term in Article 12. Article 12 is relevant only
for the purpose of enforcement of fundamental rights under Article 32.
Article 226 confers power on the High Court to issue writs for enforcement of
the fundamental rights as well as non-fundamental rights. The words “Any
person or authority” used in Article 226 are, therefore, not to be confined
only to statutory authorities and instrumentalities of the State. They may
cover any other person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the nature of the
duty imposed on the body. The duty must be judged in the light of positive
obligation owed by the person or authority to the affected party. No matter
by what means the duty is imposed. If a positive obligation exists mandamus
cannot be denied.
21. Here again we may point out that mandamus cannot be denied on the ground
that the duty to be enforced is not imposed by the statute. Commenting on the
development of this law, professor De Smith states: “To be enforceable by
mandamus a public duty does not necessarily have to be one imposed by statute.
It may be sufficient for the duty to have been imposed by charter, common law,
custom or even contract.” (Judicial Review of Administrative Act 4th Ed. p.
540). We share this view. The judicial control over the fast expanding maze
of bodies affecting the rights of the people should not be put into
water-tight compartment. It should remain flexible to meet the requirements
of variable circumstances. Mandamus is a very wide remedy which must be
easily available ‘to reach injustice wherever it is found’. Technicalities
should not come in the way of granting that relief under Article 226….”
14. While considering the maintainability of the writ petition filed under
Article 32 of the Constitution of India against Board of Control for Cricket
in India (BCCI), the Supreme Court in Writ Petition (C) No. 541/2004 [M/S.
Zee Telefilms Ltd., and another v. Union of India and others]- 2005 (1) SCALE
p. 666 considered the term “State” under Article 12 and also considered the
scope and interference under Article 32 by the Supreme Court and under Article
226 by the High Court. The main question for consideration before the Supreme
Court was whether the ‘Board’ (BCCI) fell within the definition of the ‘State’
as contemplated under Article 12 of the Constitution. It was the argument of
the Board that it did not come under the term ” other authorities”, hence it
is not a State for the purpose of Article 12. After considering the decision
in Sabhajit Tewary vs. U.O.I. & Others [(1975) 3 SCR 616] and Sukhdev Singh
and others vs. Bhagatram Sardar Singh Raghuvanshi and another [1975 3 SCR
619], the Court held:(para 16)
“16. The distinction to be noticed between the two judgments referred to
hereinabove namely Sukhdev Singh & Ors and Sabhajit Tewary (supra), is that in
the former the Court held that bodies which were creatures of the statutes
having important State functions and where State had pervasive control of
activities of those bodies would be State for the purpose of Article 12.
While in Sabhajit Tewary’s case the Court held a body which was registered
under a statute and not performing important State functions and not
functioning under the pervasive control of the Government would not be a State
for the purpose of Article 12.”
15. After referring to the decisions in Ramana Dayaram Shetty Vs.
International Airport Authority of India & Others [AIR 197 9 SC 1628 : 1979 3
SCR 1014] and Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology
and others [2002 5 SCC 111), Their Lordships concluded thus:
“24. To these facts if we apply the principles laid down by seven Judge Bench
in Pradeep Kumar Biswas (supra), it would be clear that the facts established
do not cumulatively show that the Board is financially, functionally or
administratively dominated by or is under the control of the Government. Thus
the little control that the Government may be said to have on the Board is not
pervasive in nature. Such limited control is purely regulatory control and
nothing more.
25. Assuming for argument sake that some of the functions do partake the
nature of public duties or State actions they being in a very limited area of
the activities of the Board would not fall within the parameters laid down by
this Court in Pradeep Kumar Biswas’s case. Even otherwise assuming that there
is some element of public duty involved in the discharge of the Board’s
functions even then as per the judgment of this Court in Pradeep Kumar Biswas
(supra) that by itself would not suffice for bringing the Board within the net
of “other authorities” for the purpose of Article 12.
xx xx
29……Assuming that the above mentioned functions of the Board do amount to
public duties or State functions, the question for our consideration is:
would this be sufficient to hold the Board to be a State for the purpose of
Article 12. While considering this aspect of the argument of the petitioner,
it should be borne in mind that the State/Union has not chosen the Board to
perform these duties nor has it legally authorised the Board to carry out
these functions under any law or agreement. It has chosen to leave the
activities of cricket to be controlled by private bodies out of such bodies’
own volition (self arrogated). In such circumstances when the actions of the
Board are not actions as an authorised representative of the State, can it be
said that the Board is discharging State functions? The answer should be
no…..
30….But this control over the activities of the Board cannot be construed as
an administrative control. At best this is purely regulatory in nature and
the same according to this Court in Pradeep Kumar Biswas’s case (supra) is not
a factor indicating a pervasive State control of the Board.
31. Be that as it may, it cannot be denied that the Board does discharge some
duties like the selection of an Indian cricket team, controlling the
activities of the players and others involved in the game of cricket. These
activities can be said to be akin to public duties or State functions and if
there is any violation of any constitutional or statutory obligation or rights
of other citizens, the aggrieved party may not have a relief by way of a
petition under Article 32. But that does not mean that the violator of such
right would go scot-free merely because it or he is not a State. Under the
Indian jurisprudence there is always a just remedy for violation of a right of
a citizen. Though the remedy under Article 32 is not available, an aggrieved
party can always seek a remedy under the ordinary course of law by way of a
writ petition under Article 226 of the Constitution which is much wider than
Article 32.”
16. In General Manager, Kisan Sahkari Chini Mills Ltd., v. Satrughan Nishad,
reported in (2003) 8 Supreme Court Cases 639, the Supreme Court had an
occasion to consider “other authority” under Article 12. In that case, the
appellant-Mill is a cooperative society registered as under the U.P.
Cooperative Societies Act, 1965. The contesting respondents filed writ
applications in the High Court alleging therein that they had worked on Class
III and IV posts in the Mill for a period ranging from 5 to 12 years. The
services of surplus workmen were dispensed with without giving any notice and
paying retrenchment compensation as required under Section 6-N of the U.P.
Industrial Disputes Act, 1947 in spite of the fact that they had worked for
more than 240 days which necessitated filing of writ applications in the High
Court. The said writ petitions were contested by the Mill on the grounds,
inter alia, that the Mill, which is a cooperative society, was neither a
‘State’ nor an ‘instrumentality’ or ‘agency of the State’ within the meaning
of Article 12 of the Constitution; hence the writ jurisdiction of the High
Court could not be invoked. The learned Single Judge of the High Court
over-ruled the preliminary objection raised on behalf of the Mill came to the
conclusion that the Mill which is a Society within the meaning of Article 12
of the Constitution as it was an instrumentality of the State and there was
infraction of the provisions of Section 6-N of the Act. Accordingly, the writ
applications were allowed. The said order has been affirmed by the Division
Bench on appeals being preferred by the Mill, hence the Mill has approached
the Supreme Court by way of special leave. An argument was advanced before
the Supreme Court stating that the contesting respondents could not have been
allowed to invoke the writ jurisdiction of the High Court as the Mill, which
is a registered cooperative society, was not State within the meaning of
Article 12 of the Constitution as it was neither an instrumentality nor an
agency of the Government of Uttar Pradesh. On the other hand, counsel
appearing on behalf of the contesting respondents submitted that the Mill was
an instrumentality of the Government, as such it was an authority within the
meaning of Article 12 of the Constitution. The following discussion of the
Supreme Court are relevant:-
“6. The point raised is no longer res integra as the same is concluded by
decisions of this Court. In the case of Ajay Hasia v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722], a Constitution Bench of this Court, while
approving the tests laid down in the case of Ramana Dayaram Shetty v.
International Airport Authority of India (1979 ) 3 SCC 489 as to when a
corporation can be said to be an instrumentality or agency of the Government,
observed at pp.736-37 which runs thus: (SCC para 9)
“9. The tests for determination as to when a corporation can be said to be an
instrumentality or agency of Government may now be culled out from the
judgment in the International Airport Authority case (1979) 3 SCC 489. These
tests are not conclusive or clinching, but they are merely indicative indicia
which have to be used with care and caution, because while stressing the
necessity of a wide meaning to be placed on the expression ‘other
authorities’, it must be realised that it should not be stretched so far as to
bring in every autonomous body which has some nexus with the Government within
the sweep of the expression. A wide enlargement of the meaning must be
tempered by a wise limitation. We may summarise the relevant tests gathered
from the decision in the International Airport Authority case as follows:
(1) One thing is clear that if the entire share capital of the corporation is
held by Government, it would go a long way towards indicating that the
Corporation is an instrumentality or agency of Government. (SCC p.507, para
14)
(2) Where the financial assistance of the State is so much as to meet almost
entire expenditure of the corporation, it would afford some indication of the
corporation being impregnated with governmental character. (SCC p.508, para
15)
(3) It may also be a relevant factor….whether the corporation enjoys
monopoly status which is State-conferred or Stateprotected. (SCC p.508, para
15)
(4) Existence of deep and pervasive State control may afford an indication
that the corporation is a State agency or instrumentality. (SCC p.508, para
15)
(5) If the functions of the corporation are of public importance and closely
related to governmental functions, it would be a relevant factor in
classifying the corporation as an instrumentality or agency of Government.
(SCC p.509, para 16)
(6) ‘Specifically, if a department of Government is transferred to a
corporation, it would be a strong factor supportive of this inference’ of the
corporation being an instrumentality or agency of Government. (SC p.510, para
18)
If on a consideration of these relevant factors it is found that the
corporation is an instrumentality or agency of Government, it would, as
pointed out in the International Airport Authority case (1979) 3 SCC 489, be
an ‘authority’ and, therefore, ‘State’ within the meaning of the expression in
Article 12.
7. In the case of Pradeep Kumar Biswas v. Indian Institute of Chemical
Biology [(2002) 5 SCC 111:2002 SCC (L&S) 633, a Bench of Seven Judges of this
Court, in para 27 of its judgment has noted and quoted with approval in
extenso the aforesaid tests propounded in International Airport Authority case
[(1979) 3 SCC 489] and approved in the case of Ajay Hasia [(1981) 1 SCC 722]
for determining as to when a corporation can be said to be an instrumentality
or agency of the Government so as to come within the meaning of the expression
” authority” in Article 12 of the Constitution. There the Bench referred to
the case of Chander Mohan Khanna v. NCERT [(1991) 4 SCC 578] where, after
considering the memorandum of association and the rules, this Court came to
the conclusion that NCERT was largely an autonomous body and its activities
were not wholly related to governmental functions and the government control
was confined only to the proper utilisation of the grants and since its
funding was not entirely from government resources, the case did not satisfy
the requirements of the State under Article 12 of the Constitution. Further,
reference was also made in that case to the decision of this Court in Mysore
Paper Mills Ltd. v. Mysore Paper Mills Officers’ Association where it was
held that the company was an authority within the meaning of Article 12 of the
Constitution as it was substantially financed and financially controlled by
the Government, managed by a Board of Directors nominated and removable at the
instance of the Government and carrying on important functions of public
interest under the control of the Government.”
After saying so, Their Lordships have further held that:
“8. From the decisions referred to above, it would be clear that the form in
which the body is constituted, namely, whether it is a society or a
cooperative society or a company, is not decisive. The real status of the
body with respect to the control of Government would have to be looked into.
The various tests, as indicated above, would have to be applied and considered
cumulatively. There can be no hard-and-fast formula and in different
facts/situations, different factors may be found to be overwhelming and
indicating that the body is an authority under Article 12 of the
Constitution.”
Considering the ratio of the nominees of the State Government and the
Management of the committee, Their Lordships have held: (para 8)
“8……..Under the bye-laws, the State Government can neither issue any
direction to the Mill nor determine its policy as it is an autonomous body.
The State has no control at all in the functioning of the Mill much less a
deep and pervasive one…..”
At the end, an argument was advanced on behalf of the contesting respondents
that even if the Mill is not the authority within the meaning of Article 12 of
the Constitution, writ application can be entertained as mandamus can be
issued under Article 226 of the Constitution against any person or authority
which would include any private person or body. On the other hand, learned
counsel appearing on behalf of the appellant submitted that mandamus can be
issued against a private person or body only if the infraction alleged is in
performance of public duty. Finally the Court held thus: (para 9)
“9…..Reference in this connection may be made to the decisions of this Court
in Shri Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Samarak Trust v. V.R. Rudani [(1989) 2 SCC 691] in which this Court
examined the various aspects and distinction between an authority and a person
and after analysis of the decisions referred in that regard came to the
conclusion that it is only in the circumstances when the authority or the
person performs a public function or discharges a public duty that Article 226
of the Constitution can be invoked. In the cases of K. Krishnamacharyulu v.
Sri Venkateswara Hindu College of Engineering [(1997) 3 SCC 571} and VST
Industries Ltd. v. Workers’ Union [(2001) 1 SCC 298] the same principle has
been reiterated. Further, in the case of VST Industries Ltd., it was observed
that manufacture and sale of cigarettes by a private person will not involve
any public function. This being the position in that case, this Court held
that the High Court has no jurisdiction to entertain an application under
Article 226 of the Constitution. In the present case, the Mill is engaged in
the manufacture and sale of sugar which, on the same analogy, would not
involve any public function. Thus, we have no difficulty in holding that the
jurisdiction of the High Court under Article 226 of the Constitution could not
have been invoked.”
17. In Federal Bank Ltd., v. Sager Thomas [2003 (4) CTC 418], the question
that arose for consideration was, whether Federal Bank which is a private bank
is a State or its agency or instrumentality within the meaning of Article 12
of the Constitution of India and whether writ petition under Article 226 is
maintainable. After referring all the earlier authorities, the Supreme Court
has held: ( para 18)
“18. From the decisions referred to above, the position that emerges is that
a writ petition under Article 226 of the Constitution of India may be
maintainable against (i) the State (Govt.); ( ii) Authority; (iii) a statutory
body; (iv) an instrumentality or agency of the State; (v) a company which is
financed and owned by the State; (vi) a private body run substantially on
State funding; (vii) a private body discharging public duty or positive
obligation of public nature; (viii) a person or a body under liability to
discharge any function under any Statute, to compel it to perform such a
statutory function.”
Ultimately the Court held that: (para 33)
“33…….A private body or a person may be amenable to writ jurisdiction only
where it may become necessary to compel such body or association to enforce
any statutory obligations or such obligations of public nature casting
positive obligation upon it. We don’t find such conditions are fulfilled in
respect of a private company carrying on a commercial activity of banking.
Merely regulatory provisions to ensure such activity carried on by private
bodies work within a discipline, do not confer any such status upon the
company nor puts any such obligation upon it which may be enforced through
issue of a writ under Article 226 of the Constitution. Present is a case of
disciplinary action being taken against its employee by the appellant Bank.
Respondent’s service with the bank stands terminated. The action of the Bank
was challenged by the respondent by filing a writ petition under Article 226
of the Constitution of India. The respondent is not trying to enforce any
statutory duty on the part of the Bank. That being the position, the appeal
deserves to be allowed.”
18. The next decision cited by learned counsel for 1 st respondent is in the
case of G. Bassi Reddy v. International Crops Research Institute, reported
in AIR 2003 Supreme Court 1764. The appellants in that decision were
employees of International Crops Research Institute (‘ICRISAT’ in short)/first
respondent therein. Their services were terminated. They filed Writ
Petitions before the High Court of Karnataka against ICRISAT and the Union of
India. The Writ Petitions were dismissed on the ground that ICRISAT was not
amenable to writ jurisdiction under Article 226 of the Constitution, and that
a writ could not be issued to ICRISAT. Against the ruling of the High Court,
the petitioners therein moved to Supreme Court. After considering earlier
decisions and scope for issuance of writ under Article 22 6 of the
Constitution by the High Court, Their Lordships have held: (paras 25 to 29)
“25. A writ under Article 226 lies only when the petitioner establishes that
his or her fundamental right or some other legal right has been infringed
(Calcutta Gas Co. v. State of W.B., AIR 11 62 SC 1044, 1047-1048). The
claim as made by the appellant in his writ petition is founded on Arts. 14
and 16. The claim would not be maintainable against ICRISAT unless ICRISAT
were a ‘State’ or authority within the meaning of Art.12. The tests for
determining whether an organization is either, has been recently considered by
a Constitution Bench of this Court in Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology and others (2002) 5 SCC 111 at p.134 in which we
said:
“The question in each case would be-whether in the light of the cumulative
facts as established, the body is financially, functionally and
administratively dominated by or under the control of the Government. Such
control must be particular to the body in question and must be pervasive. If
this is found then the body is a State within Article 12. On the other hand,
when the control is merely regulatory whether under statute or otherwise, it
would not serve to make the body a State”.
26. The facts which have been narrated earlier clearly show that ICRISAT does
not fulfil any of these tests. It was not set up by the Government and it
gives its services voluntarily to a large number of countries besides India.
It is not controlled by not is it accountable to the Government. The Indian
Government’s financial contribution to ICRISAT is minimal. Its participation
in ICRISAT’s administration is limited to 3 out of 15 members. It cannot
therefore be said that ICRISAT is a State or other authority as defined in
Article 12 of the Constitution.
27. It is true that a writ under Article 226 also lies against a ‘person’ for
‘any other purpose’. The power of the High Court to issue such a writ to “any
person” can only mean the power to issue such a writ to any person to whom,
according to wellestablished principles, a writ lay. That a writ may issue to
an appropriate person for the enforcement of any of the rights conferred by
Part III is clear enough from the language used. But the words “and for any
other purpose” must mean “for any other purpose for which any one of the writs
mentioned would according to well established principles issue.
28. A writ under Article 226 can lie against a ” person” if it is a statutory
body or performs a public function or discharges a public or statutory duty
(Praga Tools Corporation v. C.V. Imanual, (1969) 1 SCC 585; Andi Mukta
Sadguru Trust v. V.R. Rudani, (1989 ) 2 SCC 691, 698; VST Ind.Ltd. v. VST
Ind. Workers’ Union and another (2001) 1 SCC 298. ICRISAT has not been set
up by a statute nor are its activities statutorily controlled. Although, it
is not easy to define what a public function or public duty is, it can
reasonably be said that such functions are similar to or closely related to
those performable by the State in its sovereign capacity. The primary
activity of ICRISAT is to conduct research and training programmes in the
sphere of agriculture purely on a voluntary basis. A service voluntarily
undertaken cannot be said to be a public duty. Besides ICRISAT has a role
which extends beyond the territorial boundaries of India and its activities
are designed to benefit people from all over the world. While the Indian
public may be the beneficiary of the activities of the institute, it certainly
cannot be said that the ICRISAT owes a duty to the Indian public to provide
research and training facilities. In Praga Tools Corporation v. C.V.
Imanual, AIR 1960 SC 1306, this Court construed Article 226 to hold that the
High Court could issue a writ of mandamus “to secure the performance of the
duty or statutory duty” in the performance of which the one who applies for it
has a sufficient legal interest”. The Court also held that:
“……….an application for mandamus will not lie for an order of
reinstatement to an office which is essentially of a private character nor can
such an application be maintained to secure performance of obligations owed by
a company towards its workmen or to resolve any private dispute (See Sohan Lal
v. Union of India, 1957 SCR 738).
29. We are therefore of the view that the High Court was right in its
conclusion that the writ petition of the appellant was not maintainable
against ICRISAT.”
19. In Virendra Kumar Srivatsava v. U.P. Rajya Karmachari Kalyan Nigam,
reported in (2005) 1 Supreme Court Cases 149, the sole point that arose for
decision before the Supreme Court was, whether U.P. Rajya Karmachari Kalyan
Nigam (Corporation) was covered by the definition of ‘State’ under Article 12
of the Constitution and was amenable to writ jurisdiction of the High Court
under Article 226 of the Constitution. In that case the services of the
petitioner had been terminated from the post of salesman in one of the stores
of the Corporation, against which he had approached the High Court, Allahabad.
A preliminary objection was raised by the Corporation to the maintainability
of the writ petition on the ground that the Corporation does not fall in the
definition of “State” under Article 12 of the Constitution. Relying on
decisions of the Lucknow Bench of the same Court in the case of Vijay Kumar
Verma v. U.P. Govt. Employees Welfare Corporation [W.P.No. 8246 (SS) of
1992, decided on 13-4-1993], the writ petition filed by the petitioner in the
High Court was dismissed as not maintainable, against which the petitioner has
preferred the appeal to the Supreme Court. After analysing the factual
materials and various factors, ultimately Their Lordships have concluded thus:
( para 27)
“27. On detailed examination of the administrative, financial and functional
control of the Corporation, we have no manner of doubt that it is nothing but
an “instrumentality” and agency of the State” and the control of the State is
not only “regulatory” but it is “deep and pervasive” in the sense that it is
formed with the object of catering to the needs of the government employees as
a supplement to their salaries and other perks. The top executives of the
government department ex officio are members and office-bearers of the
Corporation. The Corporation is fully supported financially and
administratively by the State and its authorities. Even day-to-day
functioning of the Corporation is watched, supervised and controlled by the
various departmental authorities of the State particularly the Department of
Food and Civil Supplies. The multiple test indicated to be applied both by
the majority and minority view in Pradeep Kumar Biswas [(2002) 5 SCC 111] is
fully satisfied in the present case for recording a conclusion by us that the
Corporation is covered as an ” agency and instrumentality of the State” in the
definition of “State” under Article 12 of the Constitution. It is, therefore,
amenable to the writ jurisdiction of the High Court under Article 226 of the
Constitution.”
20. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology,
reported in (2002) 5 Supreme Court Cases 111, the Constitution Bench of the
Supreme Court reconsidered the decision taken in Sabhajit Tewary (1975) 1 SCC
485. Out of 7 Hon’ble Judges, the majority view of 5 Hon’ble Judges is as
follows: (para 40)
“40. The picture that ultimately emerges is that the tests formulated in Ajay
Hasia [(1981) 1 SCC 722: 1981 SCC (L&S) 258] are not a rigid set of
principles so that if a body falls within any one of them it must, ex
hypothesi, be considered to be a State within the meaning of Article 12. The
question in each case would be whether in the light of the cumulative facts
as established, the body is financially, functionally and administratively
dominated by or under the control of the Government. Such control must be
particular to the body in question and must be pervasive. If this is found
then the body is a State within Article 12. On the other hand, when the
control is merely regulatory whether under statute or otherwise, it would not
serve to make the body a State.”
By applying various tests enunciated in the above mentioned decisions and
considering the facts relating to Council of Scientific and Industrial
Research (CSIR), the Supreme Court found that the same is well within the
range of Article 12. It is to be noted that CSIR was set up by the Department
of Commerce, Government of India with the broad objective of promoting
industrial growth in the country. On 14-11-1 941, a Resolution was passed by
the Legislative Assembly and accepted by the Government of India. The objects
which have been incorporated in the memorandum of association of CSIR
demonstrate that CSIR was set up in the national interest to further the
economic welfare of the society by fostering planned industrial development in
the country. CSIR was and continues to be a non-profit-making organization
and according to clause 4 of CSIR’s memorandum of association, all its income
and property, however derived shall be applied only towards the promotion of
those objects subject nevertheless in respect of the expenditure to such
limitations as the Government of India may from time to time impose. The
details regarding management and control show the dominant role played by the
Government of India in the Governing Body of CSIR is evident. The Prime
Minister shall be the ex officio President of CSIR. The Governing Body is
required to administer, direct and control the affairs and funds of the
Society and shall, under Rule 43, have authority to exercise all the powers of
the Society subject nevertheless in respect of expenditure to such limitations
as the Government of India may from time to time impose. This is evident that
the financial control lies with the Government. After analysing all the
relevant aspects, as the majority view, the Supreme Court ruled that CSIR is a
State within the meaning of Article 12 of the Constitution.
21. In Chander Mohan Khanna v. N.C.E.R.T., reported in (1991) 4 Supreme
Court Cases 578, the question that was considered was, whether the National
Council of Educational, Research and Training (NCERT)is ‘State’ as defined
under Article 12 of the Constitution. The NCERT is a society registered under
the Societies Registration Act. After verifying its object, programmes,
activities, funding, and considering the fact that the Government has got
limited control only to proper utilisation of the grant, the Court ultimately
concluded that NCERT is largely an autonomous body and does not fall within
the definition of ‘State’ under Article 12.
22. The picture that emerges from the above caselaws is in the following:
(i) In the case of U.P. Rajya Karamchari Kalyan Nigam [(2005) 1 SCC 149]:
The same was established by the State Government and wholly financed by the
Government to carry on and promote activities aimed at the welfare of the
employees of State Government. All office bearers of Governing Body are
Government servants. The only Government employees can be inducted as members
of the Corporation and that too with the previous approval of the State
Government. The Rules of Corporation can be amended, varied or deleted only
with prior approval of the State Government. Upon winding up, the assets to
be distributed in the manner determined by the State Government. The
Corporation comes under ‘ State’ and is amenable to writ jurisdiction of High
Court under Article 226 of the Constitution of India.
(ii) In the case of Board of Control for Cricket in India ( B.C.C.I) (2005 (1)
SCALE 666):
it is recognised by Government of India as the apex National body for
regulating the game of cricket in India. It selects players to represent
India in matches. It makes Rules governing activities of cricket players and
umpires. It is the sole authority for organizing major cricketing events in
India. The Government of India accepts recommendations of BCCI in regard to
awarding ‘Arjuna Awards’ to cricketers. It enjoys monopoly status in the
field of cricket. The majority view of the Supreme Court is that the BCCI is
not a ‘State’ within the meaning of Article 226 of the Constitution of India.
(iii) In the case of N.C.E.R.T. [(1991) 4 SCC 578]:
The same was set up as a society with 7 Government officers subscribing to the
memorandum of association. The object of the council is to assist and advise
the Ministry of Education and Social Welfare in the field of education
particularly school education. The income and property to be applied towards
promotion of objects only. The expenditure on grants subject to limitations
was placed by the Government of India. The Government could review the work
and take action to give effect to reports. The Governing council consists
mainly of Government officials but also includes educationalists. The
N.C.E.R.T is not a ‘State’ under Article 12 of the Constitution of India.
(iv) In the case of Kisan Sahkari Chini Mills Ltd., (‘Mill’ in short)[(2003) 8
S.C.C. 639:
It is a cooperative society. 50 per cent of its shares are held by State
Government. Membership to this Mill is open to cane growers, other societies
etc. Its committee of management has 15 members, out of which 5 are nominated
by the State Government. The State Government cannot issue any direction to
the Mill or determine its policy. The manufacture and sale of sugar does not
involve any public function. Hence, the Mill is not a ‘State’ within the
meaning of Article 12 of the Constitution of India.
23. In Karuppan v. The Patron of Chennai Rifle Club, Chennai, reported in
(2004) 1 M.L.J. 153, a Division Bench of this Court, after considering the
formation, object and the activities of Chennai Rifle Club and after analysing
various case laws on the point, held that a writ would not lie against the
Chennai Rifle Club and the said authority will not come within the purview of
Article 226. In that case, the Commissioner of Police is the President of
Rifle Club. Still the Division Bench found that the club is not an
instrumentality of the State and has not discharged any public duty. The said
decision will apply in all fours to the present case.
24. Now we shall consider the involvement of Government officials such as
District Collector, District Revenue Officer, Revenue Divisional Officer etc.,
as ex officio office bearers of the 2nd respondent Society. As per Rule 8 (1)
(a)of Tamil Nadu Government Servants’ Conduct Rules, 1973, no Government
servant shall be permitted to engage himself directly or indirectly in any
trade or business or undertake any employment without previous sanction of the
Government. However, without such sanction, Government servant can undertake
honorary work of a social or charitable nature or occasional work of literary,
artistic or scientific character, or participate in sports activities as an
amateur, subject to the condition that his official duties do not thereby
suffer. As per Rule 2, no Government servant shall, except with the previous
sanction of the Government, take part in the registration, promotion or
management of any bank or company registered under the Banking Companies Act,
1949 or the Indian Companies Act, 1913, or the Companies Act, 1956 or any
other law for the time being in force. Proviso enables a Government servant,
subject to sub-rules (7) to (10), to take part in the registration, promotion
or management of a Co-operative Society registered or deemed to be registered
under the Tamil Nadu Co-operative Societies Act, 1961, or any other law for
the time being in force or of a literary, scientific or charitable society
registered under the Societies Registration Act, 1860 or any other law for the
time being in force. However, the duty of a Government servant shall not
thereby suffer. The above provision makes it clear that the Government
servants who are associated with the +committee are doing so purely in private
capacity. Rule 8 of the Tamil Nadu Government Servants Conduct Rules permits
the government servants to be members of charitable bodies and hold honorary
posts without the prior sanction of the Government.
25. After a careful analysis of the above discussion, we are of the view that
whether a body is a ‘State’ as defined under Article 12 of the Constitution
will have to be determined by applying the tests laid down in Pradeep Kumar
Biswas’s case [(2002) 5 SCC 11 1]. The multiple test laid down therein is
whether in the light of cumulative facts as established the body is
financially, functionally and administratively dominated by or under the
control of the Government. When the control is merely regulatory whether
under statute or otherwise, it would not serve to make the body a ‘State’.
The control must be deep and pervasive. In Zee Telefilms Vs. Union of India
(20 05 (1) SCALE 666) the Honourable Supreme Court in the penultimate
paragraph of the judgment of the majority has been pleased to hold that the
decision in Sukhdev Singh’s case [(1975) 3 SCR 619] expanding the definition
of the term “other authorities” to include bodies other than statutory bodies
was given in the context of the situation prevailing at that time. They
further held that in view of the present socio-economic policy of the
Government where the State is distancing itself from commercial activities and
concentrating on governance, it has been held that there is no necessity to
further expand the scope of the term “other authorities” occurring in Article
12 of the Constitution.
26. In cases where the body has been held to be an authority under Article
12, the Government invariably has had the power to control the functioning of
the body by issuing directions, controlling expenditure etc. In Pradeep
Biswas’s case (supra), the Council of Scientific and Industrial Research
(CSIR) was held to be a State on the basis that it was set up by the
Department of Commerce, Government of India, to carry on activities earlier
done by Department of Commerce. It was set up in the national interest to
further the economic welfare of society by fostering planned industrial
development. The Prime Minister is its ex officio President. Its Director
General is appointed by the Government of India. The power to frame, amend or
repeal bye-laws can be done only with the sanction of Government of India.
All decisions can be reviewed by the Prime Minister and his orders are binding
on governing body, As far as the employees of CSIR are concerned, the Central
Civil Services (Classification, Control and Appeal) Rules and the Central
Civil Services (Conduct) Rules are applicable to them. The scales of pay
applicable to all the employees of CSIR are those prescribed by Government of
India for similar personnel. CSIR cannot lay down or change the terms and
conditions of service of its employees and any alteration in the bye-laws can
be carried out only with the approval of the Government of India. Initial
capital as well as 70 per cent of the funds have been provided by Government
of India. The Government of India can impose limitation on expenditure. The
accounts of CSIR are required to be audited by the Comptroller and Auditor
General and placed before the Parliament. In the event of dissolution, the
assets of the CSIR shall have to be dealt with in the manner determined by the
Government.
27. In the case of first respondent- District Welfare Fund Committee, there
is no functional, financial, or administrative control by the Government. The
Government servants who are associated with the Committee are doing so purely
in private capacity. The first respondent is a Society and “Mandram” building
is the private property of the Society. The Society is not getting any
financial aid from the State and there is no pervasive control by the State
over the Society. It is not discharging any public duty. Though the
successive District Collectors by involving themselves collected necessary
funds by conducting Dramas and Cultural Programmes, originally either for
formation of a medical college or an agricultural college, the fact remains
that the funds were diverted to the corps of the Society, which paved way for
the formation of “Kalaiarangam”. Admittedly, money has not been contributed
by the Government. Likewise, the Government officials are part of the Society
as ex-officio and not under orders and permission of the Government. As ruled
in AIR 2003 SC 1764 (supra), although, it is not easy to define what a public
function or public duty is, it can reasonably be said that such functions are
similar to or closely related to those performable by the State in its
sovereign capacity. We are satisfied that the Committee is not discharging or
conducting State functions and the Government has no pervasive control much
less regulatory control over the Society. As said earlier, the funds were
accumulated through various cultural programmes and financed from the public.
The land was assigned to the Society by the Government for a consideration of
Rs.4,84,203/-. The property possessed is the ‘Kalaiarangam’ and office
complex. The rent derived from the above properties is the main source of
income to the Society and there is no financial assistance from the
Government. The accounts are being audited by a qualified Chartered
Accountant. No power was given to the Government to issue directions. The
Membership of the Society is restricted to 33 of whom 22 are Government
officers who are ex-officio members, and 11 are drawn from among reputed
social workers, educationalists, professionals etc. Upon dissolution, the
assets of the Society are transferable to other associations with identical
objects. The first respondent-Society thus cannot be construed as an
instrumentality of the State or other authority as defined in Article 12 of
the Constitution. When the body is a private body but performs statutory
functions or discharges public duties, a writ would lie. No writ would lie
when the rights purportedly infringed are merely private rights. The action
complained of in the writ petition relates to grant of lease of the
“Kalaiarangam” by way of Tender. There is no statutory or public duty or
function involved and the right of the first respondent to grant a lease is
purely private. As the first respondent Society is not an authority as
defined in Article 12 and as the action complained of is that of a private
body exercising private functions, we hold that the writ petition will not be
maintainable.
28. In the light of our discussion, we hold that the first respondent Society
is not an ‘Authority’ or ‘State’ as defined in Article 12 of the Constitution
of India. It is also not a “Body or instrumentality” as could be made
amenable to writ jurisdiction under Article 226 of Constitution of India;
hence the Writ Petition filed against it is not maintainable and the same is
dismissed. No costs. We approve the Division Bench decision rendered in
W.P.Nos. 1043 and 1 896 of 2002 and 23534 and 26501 of 2001 dated 26-02-2002
(A.V. Sundaram and three others Vs. The District Collector, Trichy and
another). The Reference is answered accordingly. The connected W.P.M.P., is
closed.
R.B.
Index:- Yes.
Internet:- Yes.
To:
1. The President/District Collector,
District Welfare Fund Committee,
Mc. Donalds Road, Cantonment, Trichy-1.
2. The Commissioner,
Land Administration, Chennai-5.