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LPA/2140/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2140 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8930 of 2009
=========================================================
NIRANKARSINH
BALBIRSINH TYAGI & 1 - Appellant(s)
Versus
MANAGING
DIRECTOR - Respondent(s)
=========================================================
Appearance
:
MR
KISHOR M PAUL for
Appellant(s) : 1 - 2.
MS GR VIJAYALAKSHMI for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 28/09/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
By
this appeal, the appellants challenge the following order passed in
Special Civil Application No.8930 of 2009 on 26th August,
2009:
This
petition under Article 226 of the Constitution of India is filed by
the petitioners against Four Square Media Pvt. Ltd. Petition against
a Private Limited Company is not maintainable and hence present
petition is dismissed as having not maintainable.
In
the petition, the appellants made following prayers:
(A) This
Honourable Court may be pleased to admit this petition;
(B)
This Honourable Court may be pleased to issue writ of mandamus or
any other writ, order or direction by directing the
respondent-company to pay legitimate dues like Provident Fund,
Gratuity, Leave Pay etc. with appropriate interest to the
petitioners;
(C)
This Honourable Court may be pleased to pass such other and further
relief, as the nature and circumstances of the present case may
require.
Before
filing the petition, the appellants had given a notice to the
respondent, in reply to which, the respondent raised the contention
that the petitioners were not in employment but were working on
contractual basis.
Learned
advocate, Mr.Paul, for the appellants submitted that the
petitioners’ petition has been dismissed in limine on technical
ground of maintainability. He relied on following judgments to
support his case that the petition was maintainable:
i)
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and
Others, (1998)8 SCC page 1;
ii)
Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others,
(2003)2 SCC page 107; and
iii)
Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna
Jayanti Mahotsav Vs. V.R. Rudani and others, AIR 1989 SC page 1607.
Mr.Paul
submitted that a petition against a private party would be
maintainable to protect an individual’s fundamental right and,
therefore, the petition ought to have been entertained by the
learned Single Judge. It is submitted that the appeal may,
therefore, be entertained.
Learned
advocate, Ms.Vijayalakshmi, for the respondent has opposed this
appeal. According to her, the impugned order is correct. No
fundamental right of the petitioners is violated. A petition against
a private party would not be maintainable and, therefore, this
appeal may be dismissed.
We
have examined rival submissions. From the record it is found that
the prayer of the appellants was for issuance of a writ of mandamus
or any other writ, order or direction directing the respondent
Company to pay legitimate dues like Provident Fund, Gratuity, Leave
Pay, etc. with appropriate interest to the petitioners. The fact
that the respondent is a Private Company is revealed from the cause
title as well as the prayer clause and is not in dispute. The
annexures to the appeal also would go to show that the respondent
Company is engaged in the business of advertisement and was not
engaged in performing any public duty. With this undisputed facts,
in our view, learned Judge was right in dismissing the petition on
the ground of maintainability.
Learned
advocate, Mr.Paul, has relied on certain judgments. They are in
respect of maintainability of a writ petition where an alternative
remedy is available and Courts have said that it cannot be said that
jurisdiction of the Court is divested where there is an alternative
remedy available or differently put, it cannot be said that the
Court should not exercise jurisdiction where an alternative remedy
is available. The Court certainly can use its writ jurisdiction
provided other parameters for maintainability of writ petition are
satisfied.
In
case of Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami
Suvarna Jayanti Mahotsav(supra) relied upon by learned advocate,
Mr.Paul, the Hon’ble Supreme Court has examined this very issue and
has observed in para 19 thus:
The
term authority used in Article 226, in the context, must
receive a liberal meaning unlike the term in Article 12. Article 12
is irrelevant only for the purpose of enforcement of fundamental
rights under Art.32. Article 226 confers power on the High Courts 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.
Thus,
it is clear that the scope of issuance of writ under Article 226 is
wider and not restricted to issuance of writ against an authority
under Article 12, but the person or authority must be imposed with
performance of public duty. In the instant case, the respondent is a
Private Limited Company engaged in the business of advertising and
it cannot, by any stretch of imagination, be considered to be
engaged in performance of public duty. As such, no duty is imposed
on it least a public duty.
The
grievances that the appellants have against the respondent arise
only out of a contract, may be contract of work or contract of
employment, but it does not arise out of failure on part of the
respondent in performing any public duty.
Under
the circumstances, we do not find any substance in this appeal.
Learned Judge was justified in holding that the petition has to fail
on account of non-maintainability. The appeal must fail and stands
dismissed. No order as to costs.
(A.L.Dave,
J)
(M.D.Shah,
J)
radhan/
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