{"id":170032,"date":"2005-03-24T00:00:00","date_gmt":"2005-03-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-joseph-louis-vs-the-district-welfare-fund-on-24-march-2005"},"modified":"2018-06-21T02:19:58","modified_gmt":"2018-06-20T20:49:58","slug":"a-joseph-louis-vs-the-district-welfare-fund-on-24-march-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-joseph-louis-vs-the-district-welfare-fund-on-24-march-2005","title":{"rendered":"A. Joseph Louis vs The District Welfare Fund … on 24 March, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
A. Joseph Louis vs The District Welfare Fund … on 24 March, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 24\/03\/2005 \n\nCoram \n\nThe Hon'ble Mr. Justice P. SATHASIVAM   \n\nThe Hon'ble Mr. Justice D. MURUGESAN    \nand \nThe Hon'ble Mr. Justice S.R. SINGHARAVELU    \n\n\nWrit Petition No. 18366 of 2003\nand \nW.P.M.P.No. 22963 of 2003.  \n\n\nA. Joseph Louis,\nNo.7-B, Crawford Colony,\nTrichy-12. .. Petitioner.\n\n-Vs-\n\n1. The District Welfare Fund Committee,\n   represented by its President, the\n   District Collector,\n   Mc. Donalds Road, Cantonment,  \n   Trichy-1.\n\n2. N. Balasubramanian, \n   No.24, Govinda Konar Street,\n   Sangiliandapuram,\n   Trichy-1.\n\n3. State of Tamil Nadu,\n   represented by the Commissioner,\n   Land Administration, Chennai. .. Respondents.\n\n\n        Writ Petition filed under Article 226 of the Constitution of India, to\nissue a Writ of Mandamus, directing the first respondent to accept the highest\nTender of Rs.2,07,999\/- per month made by the petitioner herein in respect  of\nlease  of  \"Thiyagaraja  Bagavathar  Mandram\"  cinema  theatre,  Kalaiarangam,\nTrichy-1.\n\n\n!Mr.  P.S.  Raman, Senior counsel for Mr.  P.R.\nRaman:- For petitioner.\n\n^Mr.  R.  Yashodvardhan for Mr.  K.  Kannan:- For\n1st Respondent. \n\nMr.  N.R.  Chandran, Senior counsel for Mr.\nR.  Natarajan:- For 2nd Respondent.\n\nMr.  V.  Raghupathy, Government Pleader:- For \n3rd Respondent. \n\n\n:ORDER  \n<\/pre>\n
(Order of Court was made by P.  Sathasivam, J.,)<\/p>\n
This Writ Petition is filed by one A.  Joseph Louis against  District  Welfare
\nFund  Committee  represented  by its PresidentDistrict Collector, Trichy-1, N.
\nBalasubramanian, Trichy-1 and State of Tamil Nadu represented by Commissioner,
\nLand Administration, Chennai for a  Writ  of  Mandamus,  directing  the  first
\nrespondent-District  Welfare  Fund  Committee  to accept the highest Tender of
\nRs.2,07,999\/- per month made by  him  (petitioner)  in  respect  of  lease  of
\n“Thiyagaraja Bagavathar Mandram” Cinema Theatre, Kalaiarangam, Trichy-1.\n<\/p>\n
2.  First, the Writ Petition came before the First Bench consisting of Hon’ble
\nThe Chief Justice  and  D.    Murugesan,  J.   The Division Bench based on the
\naverments in the affidavit and counter affidavit and  after  finding  a  prima
\nfacie  opinion that the first respondent-Committee did appear to be performing
\npublic functions, expressed their inability to  follow  the  earlier  Division
\nBench decision  of  this  Court  in W.P.Nos.  1043 and 1896\/2002 and 23534 and
\n26501\/2001 dated 26-2-2002 holding that the Writ Petition  against  the  first
\nrespondent is not maintainable and referred the matter to this Larger Bench.\n<\/p>\n
3.   The  text  of  the  Reference  made  to  the  Larger  Bench is reproduced
\nhereunder:\n<\/p>\n
“12.  In Management of GE Power  Controls  India  (Pvt)  Ltd.,  &  another  v.
\nWorkmen of GE  Power  Controls India Pvt.  Ltd., & others (2 005 1 L.W.  126),
\nit has been held that ordinarily no writ lies against a body, which is not  an
\ninstrumentality of  the  State, unless it is performing public functions.  The
\nentire case law on this point  has  been  considered  in  great  detail  (vide
\nGeneral Manager, Kisan  Sahkari  Chini  Mills Ltd.  v.  Satrughan Nishad<\/a> (2003
\n(8) SCC 639).\n<\/p>\n
13.  In our opinion, though the  petitioner  may  not  able  to  lay  adequate
\nfactual  foundation  in paragraph-8 of its affidavit that the first respondent
\nis an instrumentality of the State, yet we are prima facie of the opinion that
\nthe first respondent does appear to be  performing  public  functions,  as  is
\nevident  from  the factual allegations in the writ petition and in the counter
\naffidavit of the first respondent.  In fact, in paragraph-11  of  the  counter
\naffidavit  of  the  first  respondent,  it  is  stated  “District Welfare Fund
\nCommittee is using every one of the resources only for the upliftment  of  the
\npoor and downtrodden.  The funds are spent only for the poor and needy”.\n<\/p>\n
14.   In  our  opinion,  the  work  of  upliftment  of poor and downtrodden is
\ncertainly a public function in a Welfare State, as it is the duty of the State
\nto uplift the poor and downtrodden, in view of the mandate  in  the  Directive
\nPrinciples of  State policy contained in Part-IV of the Constitution.  In view
\nof the above, we are of the opinion that the decision of the Division Bench of
\nthis Court in W.  P.Nos.  1043 and 1896 of 2002 and 23534 and  26501  of  2001
\ndated 26-02-2 002  (A.V.  Sundaram & three others Vs.  The District Collector,
\nTrichy and another) holding that no writ lies  against  the  first  respondent
\nrequires to be reconsidered by a Larger Bench of this Court.”\n<\/p>\n
4.   Before  considering  the above Reference in detail, brief facts which are
\nrequired for answering the above Reference are stated hereunder:
\nIt is the case of the petitioner  that  a  very  valuable  piece  of  property
\ncomprising  of  a  vacant  land  of  an  extent of 2.5 acres and a constructed
\nbuilding area of 34200 sq.ft.  known as  the  Kalaiarangam  in  the  heart  of
\nTrichy belonged  to  the  State.    The said land was under the administrative
\ncontrol  of  the   then   Municipality   of   Trichy   (now   Corporation   of
\nTiruchirapalli).   The details regarding formation and activities of the first
\nrespondent-committee have been stated in the affidavit filed at  the  time  of
\nfiling  of  th  e writ petition as well as additional affidavit dated 7-2-2005
\nfiled pursuant to the order dated  24-1-2005  of  the  Division  Bench.    The
\nfollowing details  are  available  in  both the affidavits.  In 1962 one Gulam
\nMohamed Basha, I.A.S., then District Collector of Trichy, organised a District
\nCattle Fair and generated a surplus of Rs.642\/-.  Making the  said  amount  as
\ncorpus, the District Collector along with Thiru Ka.P.V.  Viswanathan, renowned
\nTamil  scholar  started  an  informal  and unregistered association of persons
\ncalled Trichy District Welfare Fund Committee.  The very  next  year  a  State
\nlevel  cattle  fair  was  organised in Trichy which generated a further sum of
\nRs.1,161.56 and in the same year, the Trichy Fire Department conducted a  fire
\nfighting  demonstration  which  generated  a further sum of Rs.8,513.70 all of
\nwhich was donated to the Committee.\n<\/p>\n
5.  In 1964, K.  Chokalingam, I.A.S., District Collector  brought  the  famous
\ndrama  troupe  TKS  Nataka  Sabha  to Trichy and raised a sum of Rs.1,00,033\/-
\nwhich was also donated to the Committee.  In 1968,  K.    Haribhaskar  I.A.S.,
\nDistrict Collector organised a huge dance performance by which he raised a sum
\nof  Rs.25  lakhs  which  was  entirely donated to the State Government for the
\nconduct of the World Tamil Conference.  Since the said conference itself had a
\nsurplus, the entire sum of Rs.25  lakhs  was  returned  in  the  name  of  the
\nCommittee for  the  purpose of constituting a medical college.  Due to various
\nreasons, a medical college could not be started and instead, an idea to  start
\nan  Agricultural  University was mooted for which purpose the Committee gave a
\ndonation to the then Chief Minister a sum of Rs.14 lakhs to be used as  corpus
\nfor establishing  the  University.   When this idea also did not fructify, the
\nsaid amount of Rs.14 lakhs was returned back to the Committee.\n<\/p>\n
6.  In 1974, the then District Collector, M.  Vaidyalingam, I.A.S.,  organised
\na  programme for raising funds for setting up the Navalar Nedunchezian College
\nand raised Rs.4,50,000\/-, but since the college was not started,  this  amount
\nwas like  wise  retained  in the name of the Committee.  It was felt that huge
\namounts have been collected which needed to be utilised for some  purpose  and
\nsince  the  educational  institutions were not materialising, it was felt that
\nsome permanent building could be constructed by the Committee.   As  suggested
\nby  the  then  District  Revenue Officer, Trichy, the Government have issued a
\nmemo dated 15-6-1974 giving permission to the Committee to enter upon  certain
\nextents of  land  for  the purpose of putting up an auditorium.  On 6-8-1975 a
\nsociety was formally registered under the name  and  style  of  “The  District
\nWelfare Fund Committee”.    Between  1975  and 1976 the said M.  Vaidyalingam,
\nDistrict Collector organised one more public  function  for  establishing  the
\nRajaji  Sanitorium  and collected Rs.15 lakhs which amount was also given over
\nto the Committee as the Sanitorium was not built.  Another sum of  Rs.4  lakhs
\nwas  also  given  to the Committee by the District Collector from his District
\nfunds for the purpose of the building of an auditorium.  By 1976, the building
\nwas completed and the “Kalaiarangam” was inaugurated with a cinema theatre and
\nan auditorium for conducting conferences and meetings.\n<\/p>\n
7.  By 1986, when  the  society  was  celebrating  its  Silver  Jubilee,  over
\nRs.1,22,58,174.89  have  been  collected  from  public and substantial amounts
\nexpended on giving welfare to the poor  and  the  needy  of  Trichy  including
\nconstruction  of  permanent  premises  for  road  side  vendors and food stall
\noperators.  The lands on which the  Kalaiarangam  was  constructed  which  the
\nsociety  had entered upon in 1974 under a memo was finally assigned absolutely
\nin its favour by the State Government-vide G.O.Ms.No.  290 Revenue  Department
\ndated  13-02-1982 wherein specific reference is made to the earlier enter upon
\npermission as also a clear stipulation that the assignment was being made  for
\nthe express  purpose  of  the  construction of the Kalaiarangam.  A total of 1
\n.4988 Hec.  of prime land in the heart of Trichy was given to the society  for
\nthe above purpose for a nominal sum of Rs.4,83,900\/- with 9% interest from the
\ndate of  taking  possession  in  1974.  The Government Order refers to various
\ninternal  communications  between  the  State  Government  and  the   District
\nCollector and  the  District  Revenue  Officer and the Additional P.A.  to the
\nDistrict Collector recommending  the  assignment.    The  aforesaid  3  senior
\nDistrict  Officials  are the Exofficio President, Vice President and Secretary
\nof the Society.  The above facts  would  clearly  demonstrate  that  the  very
\norigin,  administration  and maintenance of the society are deeply governed by
\nthe District Administration and can never be  considered  or  equated  to  any
\nother private  society  or  association.  The bye laws of the society provides
\nthat there can only be 33 members to the society at any point of time of which
\n22 shall be ex-officio Government servants of whom the  three  referred  above
\nhold the key Administrative posts.\n<\/p>\n
8.   The  very  aims and objects of the society as well as its source of funds
\n(largely collected from the public  through  public  functions  organised  for
\nvarious  specific purposes which never took place) and the fact that the funds
\nof the society are being  applied  only  for  public  charitable  and  welfare
\npurposes  in the District of Trichy, it cannot be stated that these activities
\nare not public duties.\n<\/p>\n
9.  With reference to the averments stated in the affidavit filed at the  time
\nof  the  writ  petition,  the  first  respondentCommittee  has filed a counter
\naffidavit wherein it is stated that the writ  petition  is  not  maintainable.
\nThe  Division  Bench  of  this  Court had already held on 26-2-2002 in W.P.No.
\n23534 and 26501 of 2001 and W.P.No.  1043 and 1896 of 2002 that the Distric  t
\nWelfare  Fund  Committee  (1st respondent herein) is not an instrumentality of
\nthe State and hence not amenable to writ jurisdiction.  As  far  as  the  said
\ncommittee  is concerned, the award of lease to the second respondent is purely
\ncontractual and beyond the paramount interest of  the  committee  by  securing
\njust  returns  for  its property through dependable and solvent lessee nothing
\nelse matters.  The property was transferred to the  society  by  means  of  an
\nassignment issued  under G.O.  760\/Rev\/L2 dated 11-5-90 for a consideration of
\nRs.4,84,203\/-.  The amount was remitted by the society on 28-06-90.  The funds
\nwere accumulated over a period of time by judicious conduct of  the  committee
\nin conducting various cultural programmes and collecting donations through the
\npublic.   The  District  Welfare  Fund  Committee  is  using  every one of its
\nresources only for the upliftment of the poor and downtrodden.\n<\/p>\n
10.  With reference to the same affidavit, the second respondent has  filed  a
\ncounter  stating  that  the  writ  petition  is  not  maintainable  since  the
\nrespondents against whom the relief was sought for is  not  amenable  to  writ
\njurisdiction under  Article  226  of  the  Constitution  of  India.  The other
\naverments relate to merits of the case which we are not concerned.\n<\/p>\n
11.  For the additional affidavit dated 7-2-2005 giving more  information  and
\nmaterials, respondents 1 and 2 have not filed counter affidavit.  In the light
\nof  the  materials,  facts  and  figures,  let  us  consider whether the first
\nrespondent committee is an instrumentality of  the  State  or  performing  any
\npublic  function  and  whether a Writ under Article 226 of the Constitution of
\nIndia lies against the said Committee and also besides  whether  the  decision
\nrendered in 2005 1 L.W.  126 ( cited supra) and order dated 26-02-2002 in Writ
\nPetition Nos.    1043  and  1896 of 2002 and 23534 and 26501 of 2001 have been
\ncorrectly decided.\n<\/p>\n
12.  Part III of the Constitution deals with Fundamental Rights.   Article  12
\ndefines “State” as under:\n<\/p>\n
“12.   Definition.-  In this part, unless the context otherwise requires, “the
\nState” includes the Government and Parliament of India and the Government  and
\nthe  Legislature  of  each  of  the  States and all local or other authorities
\nwithin the territory of India or  under  the  control  of  the  Government  of
\nIndia.”\n<\/p>\n
It  is  also  relevant  to  refer  Article  32  which  speaks  about  right to
\nConstitutional Remedies:\n<\/p>\n
“32.  Remedies for enforcement of rights conferred  by  this  Part.-  (1)  The
\nright to move the Supreme Court by appropriate proceedings for the enforcement
\nof the rights conferred by this Part is guaranteed.\n<\/p>\n
(2) The Supreme Court shall have power to issue directions or orders or writs,
\nincluding  writs  in  the  nature of habeas corpus, mandamus, prohibition, quo
\nwarranto and certiorari, whichever may be appropriate, for the enforcement  of
\nany of the rights conferred by this Part.”\n<\/p>\n
Article 226 enables High Courts to issue certain writs:\n<\/p>\n
“226.   Power  of  High  Courts  to  issue certain writs.- (1) Notwithstanding
\nanything in article  32,  every  High  Court  shall  have  powers,  throughout
\nterritories  in  relation  to which it exercises jurisdiction, to issue to any
\nperson or authority, including in appropriate cases,  any  Government,  within
\nthose  territories  directions, orders or writs, including writs in the nature
\nof habeas corpus, mandamus, prohibition, quo warranto and certiorari,  or  any
\nof  them,  for  the enforcement of any of the rights conferred by Part III and
\nfor any other purpose.”\n<\/p>\n
13.  The powers of the Supreme Court under Article 32  and  High  Court  under
\nArticle  226  have  been  considered  by  the Supreme Court in large number of
\ndecisions.  In the case of Shri Anadi Mukta Sadgiri S.M.V.S.J.M.S.   Trust  v.
\nV.R.  Rudani,<\/a>  reported  in  A.I.R.  1989 Supreme Court page 1607, the Supreme
\nCourt considered the writ jurisdiction of the  High  Court  exercisable  under
\nArticle 226  of  the Constitution of India.  The following conclusion of Their
\nLordships are relevant:  (paras 19 and 21)<\/p>\n
“19.  The term “authority” used in Article 226, in the context, must receive a
\nliberal meaning unlike the term in Article 12.  Article 12  is  relevant  only
\nfor  the  purpose  of  enforcement  of  fundamental  rights  under Article 32.
\nArticle 226 confers power on the High Court to issue writs for enforcement  of
\nthe fundamental  rights  as  well  as  non-fundamental rights.  The words “Any
\nperson or authority” used in Article 226 are, therefore, not  to  be  confined
\nonly to  statutory  authorities  and instrumentalities of the State.  They may
\ncover any other person or body performing public duty.  The form of  the  body
\nconcerned is  not  very  much relevant.  What is relevant is the nature of the
\nduty imposed on the body.  The duty must be judged in the  light  of  positive
\nobligation owed  by  the person or authority to the affected party.  No matter
\nby what means the duty is imposed.  If a positive obligation  exists  mandamus
\ncannot be denied.\n<\/p>\n
21.   Here again we may point out that mandamus cannot be denied on the ground
\nthat the duty to be enforced is not imposed by the statute.  Commenting on the
\ndevelopment of this law, professor De Smith states:   “To  be  enforceable  by
\nmandamus a public duty does not necessarily have to be one imposed by statute.
\nIt may be sufficient for the duty to have been imposed by charter, common law,
\ncustom or  even  contract.” (Judicial Review of Administrative Act 4th Ed.  p.\n<\/p>\n
540).  We share this view.  The judicial control over the fast expanding  maze
\nof  bodies  affecting  the  rights  of  the  people  should  not  be  put into
\nwater-tight compartment.  It should remain flexible to meet  the  requirements
\nof variable  circumstances.    Mandamus  is  a  very wide remedy which must be
\neasily available ‘to reach injustice wherever it is  found’.    Technicalities
\nshould not come in the way of granting that relief under Article 226….”\n<\/p>\n
14.   While  considering  the maintainability of the writ petition filed under
\nArticle 32 of the Constitution of India against Board of Control  for  Cricket
\nin India  (BCCI),  the  Supreme Court in Writ Petition (C) No.  541\/2004 [M\/S.
\nZee Telefilms Ltd., and another v.  Union of India and others]- 2005 (1) SCALE
\np.  666 considered the term “State” under Article 12 and also  considered  the
\nscope and interference under Article 32 by the Supreme Court and under Article
\n226 by the High Court.  The main question for consideration before the Supreme
\nCourt was whether the ‘Board’ (BCCI) fell within the definition of the ‘State’
\nas contemplated  under Article 12 of the Constitution.  It was the argument of
\nthe Board that it did not come under the term ” other authorities”,  hence  it
\nis not  a State for the purpose of Article 12.  After considering the decision
\nin Sabhajit Tewary vs.  U.O.I.  & Others [(1975) 3 SCR 616] and Sukhdev  Singh
\nand others  vs.    Bhagatram  Sardar Singh Raghuvanshi and<\/a> another [1975 3 SCR
\n619], the Court held:(para 16)<\/p>\n
“16.  The distinction to be noticed between  the  two  judgments  referred  to
\nhereinabove namely Sukhdev Singh & Ors and Sabhajit Tewary (supra), is that in
\nthe  former  the  Court  held that bodies which were creatures of the statutes
\nhaving important State functions and where  State  had  pervasive  control  of
\nactivities  of  those  bodies  would  be  State for the purpose of Article 12.
\nWhile in Sabhajit Tewary’s case the Court held a  body  which  was  registered<\/p>\n
under  a  statute  and  not  performing  important  State  functions  and  not
\nfunctioning under the pervasive control of the Government would not be a State
\nfor the purpose of Article 12.”\n<\/p>\n
15.   After  referring  to  the  decisions  in  Ramana  Dayaram   Shetty   Vs.
\nInternational Airport Authority of India & Others [AIR 197 9 SC 1628 :  1979 3
\nSCR 1014]  and  Pradeep Kumar Biswas Vs.  Indian Institute of Chemical Biology
\nand others [2002 5 SCC 111), Their Lordships concluded thus:\n<\/p>\n
“24.  To these facts if we apply the principles laid down by seven Judge Bench
\nin Pradeep Kumar Biswas (supra), it would be clear that the facts  established
\ndo  not  cumulatively  show  that  the  Board  is financially, functionally or
\nadministratively dominated by or is under the control of the Government.  Thus
\nthe little control that the Government may be said to have on the Board is not
\npervasive in nature.  Such limited control is purely  regulatory  control  and
\nnothing more.\n<\/p>\n
25.   Assuming  for  argument  sake  that some of the functions do partake the
\nnature of public duties or State actions they being in a very limited area  of
\nthe  activities of the Board would not fall within the parameters laid down by
\nthis Court in Pradeep Kumar Biswas’s case.  Even otherwise assuming that there
\nis some element of public duty  involved  in  the  discharge  of  the  Board’s
\nfunctions  even then as per the judgment of this Court in Pradeep Kumar Biswas
\n(supra) that by itself would not suffice for bringing the Board within the net
\nof “other authorities” for the purpose of Article 12.\n<\/p>\n
xx xx\n<\/p>\n
29……Assuming that the above mentioned functions of the Board do amount  to
\npublic  duties  or  State  functions,  the  question for our consideration is:
\nwould this be sufficient to hold the Board to be a State for  the  purpose  of
\nArticle 12.   While considering this aspect of the argument of the petitioner,
\nit should be borne in mind that the State\/Union has not chosen  the  Board  to
\nperform  these  duties  nor  has  it legally authorised the Board to carry out
\nthese functions under any law or agreement.    It  has  chosen  to  leave  the
\nactivities  of  cricket to be controlled by private bodies out of such bodies’
\nown volition (self arrogated).  In such circumstances when the actions of  the
\nBoard  are not actions as an authorised representative of the State, can it be
\nsaid that the Board is discharging State functions?    The  answer  should  be
\nno…..\n<\/p>\n
30….But this control over the activities of the Board cannot be construed as
\nan administrative  control.    At best this is purely regulatory in nature and
\nthe same according to this Court in Pradeep Kumar Biswas’s case (supra) is not
\na factor indicating a pervasive State control of the Board.\n<\/p>\n
31.  Be that as it may, it cannot be denied that the Board does discharge some
\nduties  like  the  selection  of  an  Indian  cricket  team,  controlling  the
\nactivities of  the  players and others involved in the game of cricket.  These
\nactivities can be said to be akin to public duties or State functions  and  if
\nthere is any violation of any constitutional or statutory obligation or rights
\nof  other  citizens,  the  aggrieved  party  may not have a relief by way of a
\npetition under Article 32.  But that does not mean that the violator  of  such
\nright would  go  scot-free  merely because it or he is not a State.  Under the
\nIndian jurisprudence there is always a just remedy for violation of a right of
\na citizen.  Though the remedy under Article 32 is not available, an  aggrieved
\nparty  can  always  seek a remedy under the ordinary course of law by way of a
\nwrit petition under Article 226 of the Constitution which is much  wider  than
\nArticle 32.”\n<\/p>\n
16.  In General Manager, Kisan Sahkari Chini Mills Ltd., v.  Satrughan Nishad,<\/a>
\nreported  in  (2003)  8  Supreme  Court  Cases  639,  the Supreme Court had an
\noccasion to consider “other authority” under Article 12.  In  that  case,  the
\nappellant-Mill   is  a  cooperative  society  registered  as  under  the  U.P.
\nCooperative Societies Act,  1965.    The  contesting  respondents  filed  writ
\napplications  in the High Court alleging therein that they had worked on Class
\nIII and IV posts in the Mill for a period ranging from 5 to  12  years.    The
\nservices  of surplus workmen were dispensed with without giving any notice and
\npaying retrenchment compensation as required under Section  6-N  of  the  U.P.
\nIndustrial  Disputes  Act,  1947 in spite of the fact that they had worked for
\nmore than 240 days which necessitated filing of writ applications in the  High
\nCourt.   The  said  writ  petitions were contested by the Mill on the grounds,
\ninter alia, that the Mill, which is  a  cooperative  society,  was  neither  a
\n‘State’  nor  an ‘instrumentality’ or ‘agency of the State’ within the meaning
\nof Article 12 of the Constitution; hence the writ  jurisdiction  of  the  High
\nCourt could  not  be  invoked.    The  learned  Single Judge of the High Court
\nover-ruled the preliminary objection raised on behalf of the Mill came to  the
\nconclusion  that  the Mill which is a Society within the meaning of Article 12
\nof the Constitution as it was an instrumentality of the State  and  there  was
\ninfraction of the provisions of Section 6-N of the Act.  Accordingly, the writ
\napplications were  allowed.   The said order has been affirmed by the Division
\nBench on appeals being preferred by the Mill, hence the  Mill  has  approached
\nthe Supreme  Court  by  way of special leave.  An argument was advanced before
\nthe Supreme Court stating that the contesting respondents could not have  been
\nallowed  to  invoke the writ jurisdiction of the High Court as the Mill, which
\nis a registered cooperative society, was  not  State  within  the  meaning  of
\nArticle  12  of  the  Constitution as it was neither an instrumentality nor an
\nagency of the Government of  Uttar  Pradesh.    On  the  other  hand,  counsel
\nappearing  on behalf of the contesting respondents submitted that the Mill was
\nan instrumentality of the Government, as such it was an authority  within  the
\nmeaning of  Article  12  of the Constitution.  The following discussion of the
\nSupreme Court are relevant:-\n<\/p>\n
“6.  The point raised is no longer res integra as the  same  is  concluded  by
\ndecisions of this  Court.    In  the  case  of  Ajay  Hasia  v.   Khalid Mujib
\nSehravardi<\/a> [(1981) 1 SCC 722], a  Constitution  Bench  of  this  Court,  while
\napproving  the  tests  laid  down  in  the  case  of  Ramana Dayaram Shetty v.
\nInternational Airport Authority of India<\/a> (1979 )  3  SCC  489  as  to  when  a
\ncorporation  can be said to be an instrumentality or agency of the Government,
\nobserved at pp.736-37 which runs thus:  (SCC para 9)<\/p>\n
“9.  The tests for determination as to when a corporation can be said to be an
\ninstrumentality or agency of  Government  may  now  be  culled  out  from  the
\njudgment in  the International Airport Authority case (1979) 3 SCC 489.  These
\ntests are not conclusive or clinching, but they are merely indicative  indicia
\nwhich  have  to  be  used  with  care and caution, because while stressing the
\nnecessity  of  a  wide  meaning  to  be  placed  on  the   expression   ‘other
\nauthorities’, it must be realised that it should not be stretched so far as to
\nbring in every autonomous body which has some nexus with the Government within
\nthe sweep  of  the  expression.    A  wide  enlargement of the meaning must be
\ntempered by a wise limitation.  We may summarise the relevant  tests  gathered
\nfrom the decision in the International Airport Authority case as follows:
\n(1)  One thing is clear that if the entire share capital of the corporation is
\nheld by Government, it would  go  a  long  way  towards  indicating  that  the
\nCorporation is  an  instrumentality or agency of Government.  (SCC p.507, para\n<\/p>\n
14)
\n(2) Where the financial assistance of the State is so much as to  meet  almost
\nentire  expenditure of the corporation, it would afford some indication of the
\ncorporation being impregnated with governmental character.  (SCC  p.508,  para\n<\/p>\n
15)
\n(3)  It  may  also  be  a  relevant  factor….whether  the corporation enjoys
\nmonopoly status which is State-conferred or Stateprotected.  (SCC p.508,  para\n<\/p>\n
15)
\n(4)  Existence  of  deep  and pervasive State control may afford an indication
\nthat the corporation is a State agency or instrumentality.  (SCC  p.508,  para\n<\/p>\n
15)
\n(5)  If  the functions of the corporation are of public importance and closely
\nrelated  to  governmental  functions,  it  would  be  a  relevant  factor   in
\nclassifying  the  corporation  as  an instrumentality or agency of Government.
\n(SCC p.509, para 16)
\n(6)  ‘Specifically,  if  a  department  of  Government  is  transferred  to  a
\ncorporation,  it would be a strong factor supportive of this inference’ of the
\ncorporation being an instrumentality or agency of Government.  (SC p.510, para\n<\/p>\n
18)<\/p>\n
If on a  consideration  of  these  relevant  factors  it  is  found  that  the
\ncorporation  is  an  instrumentality  or  agency  of  Government, it would, as
\npointed out in the International Airport Authority case (1979) 3 SCC  489,  be
\nan ‘authority’ and, therefore, ‘State’ within the meaning of the expression in
\nArticle 12.\n<\/p>\n
7.  In  the  case  of  Pradeep  Kumar  Biswas v.  Indian Institute of Chemical
\nBiology<\/a> [(2002) 5 SCC 111:2002 SCC (L&S) 633, a Bench of Seven Judges of  this
\nCourt,  in  para  27  of  its  judgment  has noted and quoted with approval in
\nextenso the aforesaid tests propounded in International Airport Authority case
\n[(1979) 3 SCC 489] and approved in the case of Ajay Hasia [(1981) 1  SCC  722]
\nfor  determining as to when a corporation can be said to be an instrumentality
\nor agency of the Government so as to come within the meaning of the expression
\n” authority” in Article 12 of the Constitution.  There the Bench  referred  to
\nthe case  of  Chander  Mohan  Khanna v.  NCERT [(1991) 4 SCC 578] where, after
\nconsidering the memorandum of association and the rules, this  Court  came  to
\nthe  conclusion  that  NCERT was largely an autonomous body and its activities
\nwere not wholly related to governmental functions and the  government  control
\nwas  confined  only  to  the  proper  utilisation  of the grants and since its
\nfunding was not entirely from government resources, the case did  not  satisfy
\nthe requirements  of the State under Article 12 of the Constitution.  Further,
\nreference was also made in that case to the decision of this Court  in  Mysore
\nPaper Mills Ltd.    v.   Mysore Paper Mills Officers’ Association<\/a> where it was
\nheld that the company was an authority within the meaning of Article 12 of the
\nConstitution as it was substantially financed and  financially  controlled  by
\nthe Government, managed by a Board of Directors nominated and removable at the
\ninstance  of  the  Government  and  carrying  on important functions of public
\ninterest under the control of the Government.”\n<\/p>\n
After saying so, Their Lordships have further held that:\n<\/p>\n
“8.  From the decisions referred to above, it would be clear that the form  in
\nwhich  the  body  is  constituted,  namely,  whether  it  is  a  society  or a
\ncooperative society or a company, is not decisive.  The  real  status  of  the
\nbody  with  respect to the control of Government would have to be looked into.
\nThe various tests, as indicated above, would have to be applied and considered
\ncumulatively.   There  can  be  no  hard-and-fast  formula  and  in  different
\nfacts\/situations,  different  factors  may  be  found  to  be overwhelming and
\nindicating  that  the  body  is  an  authority  under  Article   12   of   the
\nConstitution.”\n<\/p>\n
Considering  the  ratio  of  the  nominees  of  the  State  Government and the
\nManagement of the committee, Their Lordships have held:  (para 8)<\/p>\n
“8……..Under the bye-laws, the  State  Government  can  neither  issue  any
\ndirection  to  the  Mill nor determine its policy as it is an autonomous body.
\nThe State has no control at all in the functioning of the  Mill  much  less  a
\ndeep and pervasive one…..”\n<\/p>\n
At  the  end, an argument was advanced on behalf of the contesting respondents
\nthat even if the Mill is not the authority within the meaning of Article 12 of
\nthe Constitution, writ application can  be  entertained  as  mandamus  can  be
\nissued  under  Article 226 of the Constitution against any person or authority
\nwhich would include any private person or body.  On the  other  hand,  learned
\ncounsel  appearing  on  behalf of the appellant submitted that mandamus can be
\nissued against a private person or body only if the infraction alleged  is  in
\nperformance of public duty.  Finally the Court held thus:  (para 9)<\/p>\n
“9…..Reference in this connection may be made to the decisions of this Court
\nin  Shri  Anadi  Mukta  Sadguru  Shree  Muktajee  Vandas Swami Suvarna Jayanti
\nMahotsav Samarak Trust v.  V.R.  Rudani<\/a> [(1989) 2 SCC 691] in which this Court
\nexamined the various aspects and distinction between an authority and a person
\nand after analysis of the decisions  referred  in  that  regard  came  to  the
\nconclusion  that  it  is  only  in the circumstances when the authority or the
\nperson performs a public function or discharges a public duty that Article 226
\nof the Constitution can be invoked.  In the cases of K.  Krishnamacharyulu  v.
\nSri  Venkateswara  Hindu  College  of  Engineering<\/a>  [(1997) 3 SCC 571} and VST
\nIndustries Ltd.  v.  Workers’ Union<\/a> [(2001) 1 SCC 298] the same principle  has
\nbeen reiterated.  Further, in the case of VST Industries Ltd., it was observed
\nthat  manufacture  and sale of cigarettes by a private person will not involve
\nany public function.  This being the position in that case,  this  Court  held
\nthat  the  High  Court  has  no jurisdiction to entertain an application under
\nArticle 226 of the Constitution.  In the present case, the Mill is engaged  in
\nthe  manufacture  and  sale  of  sugar  which,  on the same analogy, would not
\ninvolve any public function.  Thus, we have no difficulty in holding that  the
\njurisdiction of the High Court under Article 226 of the Constitution could not
\nhave been invoked.”\n<\/p>\n
17.  In  Federal  Bank Ltd., v.  Sager Thomas<\/a> [2003 (4) CTC 418], the question
\nthat arose for consideration was, whether Federal Bank which is a private bank
\nis a State or its agency or instrumentality within the meaning of  Article  12
\nof  the  Constitution  of India and whether writ petition under Article 226 is
\nmaintainable.  After referring all the earlier authorities, the Supreme  Court
\nhas held:  ( para 18)<\/p>\n
“18.   From the decisions referred to above, the position that emerges is that
\na writ petition under  Article  226  of  the  Constitution  of  India  may  be
\nmaintainable against (i) the State (Govt.); ( ii) Authority; (iii) a statutory
\nbody;  (iv)  an instrumentality or agency of the State; (v) a company which is
\nfinanced and owned by the State; (vi) a  private  body  run  substantially  on
\nState  funding;  (vii)  a  private  body  discharging  public duty or positive
\nobligation of public nature; (viii) a person or  a  body  under  liability  to
\ndischarge  any  function  under  any  Statute,  to compel it to perform such a
\nstatutory function.”\n<\/p>\n
Ultimately the Court held that:  (para 33)<\/p>\n
“33…….A private body or a person may be amenable to writ jurisdiction only
\nwhere it may become necessary to compel such body or  association  to  enforce
\nany  statutory  obligations  or  such  obligations  of  public  nature casting
\npositive obligation upon it.  We don’t find such conditions are  fulfilled  in
\nrespect  of  a  private  company carrying on a commercial activity of banking.
\nMerely regulatory provisions to ensure such activity  carried  on  by  private
\nbodies  work  within  a  discipline,  do  not  confer any such status upon the
\ncompany nor puts any such obligation upon it which  may  be  enforced  through
\nissue of  a  writ under Article 226 of the Constitution.  Present is a case of
\ndisciplinary action being taken against its employee by  the  appellant  Bank.
\nRespondent’s service  with the bank stands terminated.  The action of the Bank
\nwas challenged by the respondent by filing a writ petition under  Article  226
\nof the  Constitution  of  India.   The respondent is not trying to enforce any
\nstatutory duty on the part of the Bank.  That being the position,  the  appeal
\ndeserves to be allowed.”\n<\/p>\n
18.   The next decision cited by learned counsel for 1 st respondent is in the
\ncase of G.  Bassi Reddy v.  International Crops Research  Institute,<\/a>  reported
\nin AIR  2003  Supreme  Court  1764.    The  appellants  in  that decision were
\nemployees of International Crops Research Institute (‘ICRISAT’ in short)\/first
\nrespondent therein.   Their  services  were  terminated.    They  filed   Writ
\nPetitions  before the High Court of Karnataka against ICRISAT and the Union of
\nIndia.  The Writ Petitions were dismissed on the ground that ICRISAT  was  not
\namenable  to writ jurisdiction under Article 226 of the Constitution, and that
\na writ could not be issued to ICRISAT.  Against the ruling of the High  Court,
\nthe petitioners  therein  moved  to  Supreme Court.  After considering earlier
\ndecisions  and  scope  for  issuance  of  writ  under  Article  22  6  of  the
\nConstitution by the High Court, Their Lordships have held:  (paras 25 to 29)<\/p>\n
“25.   A writ under Article 226 lies only when the petitioner establishes that
\nhis or her fundamental right or some other  legal  right  has  been  infringed
\n(Calcutta Gas Co.   v.    State  of  W.B., AIR 11 62 SC 1044, 1047-1048).  The
\nclaim as made by the appellant in his writ petition is founded on  Arts.    14
\nand 16.    The  claim would not be maintainable against ICRISAT unless ICRISAT
\nwere a ‘State’ or authority within the meaning  of  Art.12.    The  tests  for
\ndetermining whether an organization is either, has been recently considered by
\na Constitution  Bench  of  this  Court  in  Pradeep  Kumar  Biswas  v.  Indian
\nInstitute of Chemical Biology and others<\/a> (2002) 5 SCC 111 at p.134 in which we
\nsaid:\n<\/p>\n
“The question in each case would be-whether in the  light  of  the  cumulative
\nfacts   as   established,   the   body   is   financially,   functionally  and
\nadministratively dominated by or under the control of the  Government.    Such
\ncontrol must  be particular to the body in question and must be pervasive.  If
\nthis is found then the body is a State within Article 12.  On the other  hand,
\nwhen  the  control is merely regulatory whether under statute or otherwise, it
\nwould not serve to make the body a State”.\n<\/p>\n
26.  The facts which have been narrated earlier clearly show that ICRISAT does
\nnot fulfil any of these tests.  It was not set up by  the  Government  and  it
\ngives  its  services voluntarily to a large number of countries besides India.
\nIt is not controlled by not is it accountable to the Government.   The  Indian
\nGovernment’s financial  contribution to ICRISAT is minimal.  Its participation
\nin ICRISAT’s administration is limited to 3 out of  15  members.    It  cannot
\ntherefore  be  said  that  ICRISAT is a State or other authority as defined in
\nArticle 12 of the Constitution.\n<\/p>\n
27.  It is true that a writ under Article 226 also lies against a ‘person’ for
\n‘any other purpose’.  The power of the High Court to issue such a writ to “any
\nperson” can only mean the power to issue such a writ to any  person  to  whom,
\naccording to wellestablished principles, a writ lay.  That a writ may issue to
\nan  appropriate  person  for the enforcement of any of the rights conferred by
\nPart III is clear enough from the language used.  But the words “and  for  any
\nother purpose” must mean “for any other purpose for which any one of the writs
\nmentioned would according to well established principles issue.\n<\/p>\n
28.  A writ under Article 226 can lie against a ” person” if it is a statutory
\nbody  or  performs  a public function or discharges a public or statutory duty
\n(Praga Tools Corporation v.  C.V.  Imanual,<\/a>  (1969)  1  SCC  585;  Andi  Mukta
\nSadguru Trust v.  V.R.   Rudani,<\/a> (1989 ) 2 SCC 691, 698; VST Ind.Ltd.  v.  VST
\nInd.  Workers’ Union and<\/a> another (2001) 1 SCC 298.  ICRISAT has not  been  set
\nup by  a  statute nor are its activities statutorily controlled.  Although, it
\nis not easy to define what a  public  function  or  public  duty  is,  it  can
\nreasonably  be  said  that such functions are similar to or closely related to
\nthose performable by the  State  in  its  sovereign  capacity.    The  primary
\nactivity  of  ICRISAT  is  to  conduct research and training programmes in the
\nsphere of agriculture purely on a voluntary  basis.    A  service  voluntarily
\nundertaken cannot  be  said  to  be a public duty.  Besides ICRISAT has a role
\nwhich extends beyond the territorial boundaries of India  and  its  activities
\nare designed  to  benefit  people  from  all over the world.  While the Indian
\npublic may be the beneficiary of the activities of the institute, it certainly
\ncannot be said that the ICRISAT owes a duty to the Indian  public  to  provide
\nresearch and training  facilities.    In  Praga  Tools  Corporation  v.   C.V.
\nImanual, AIR<\/a> 1960 SC 1306, this Court construed Article 226 to hold  that  the
\nHigh  Court  could  issue a writ of mandamus “to secure the performance of the
\nduty or statutory duty” in the performance of which the one who applies for it
\nhas a sufficient legal interest”.  The Court also held that:\n<\/p>\n
“……….an  application  for  mandamus  will  not  lie  for  an  order   of
\nreinstatement to an office which is essentially of a private character nor can
\nsuch an application be maintained to secure performance of obligations owed by
\na company towards its workmen or to resolve any private dispute (See Sohan Lal
\nv.  Union of India,<\/a> 1957 SCR 738).\n<\/p>\n
29.   We  are  therefore  of  the  view  that  the High Court was right in its
\nconclusion that the writ  petition  of  the  appellant  was  not  maintainable
\nagainst ICRISAT.”\n<\/p>\n
19.  In Virendra  Kumar  Srivatsava  v.   U.P.  Rajya Karmachari Kalyan Nigam,<\/a>
\nreported in (2005) 1 Supreme Court Cases 149, the sole point  that  arose  for
\ndecision before  the  Supreme Court was, whether U.P.  Rajya Karmachari Kalyan
\nNigam (Corporation) was covered by the definition of ‘State’ under Article  12
\nof  the  Constitution  and was amenable to writ jurisdiction of the High Court
\nunder Article 226 of the Constitution.  In  that  case  the  services  of  the
\npetitioner  had been terminated from the post of salesman in one of the stores
\nof the Corporation, against which he had approached the High Court, Allahabad.
\nA preliminary objection was raised by the Corporation to  the  maintainability
\nof  the  writ petition on the ground that the Corporation does not fall in the
\ndefinition of “State” under Article  12  of  the  Constitution.    Relying  on
\ndecisions  of  the  Lucknow Bench of the same Court in the case of Vijay Kumar
\nVerma v.  U.P.  Govt.  Employees Welfare Corporation [W.P.No.   8246  (SS)  of
\n1992,  decided on 13-4-1993], the writ petition filed by the petitioner in the
\nHigh Court was dismissed as not maintainable, against which the petitioner has
\npreferred the appeal to the  Supreme  Court.    After  analysing  the  factual
\nmaterials and various factors, ultimately Their Lordships have concluded thus:
\n( para 27)<\/p>\n
“27.   On detailed examination of the administrative, financial and functional
\ncontrol of the Corporation, we have no manner of doubt that it is nothing  but
\nan  “instrumentality” and agency of the State” and the control of the State is
\nnot only “regulatory” but it is “deep and pervasive” in the sense that  it  is
\nformed with the object of catering to the needs of the government employees as
\na supplement  to  their  salaries  and other perks.  The top executives of the
\ngovernment department  ex  officio  are  members  and  office-bearers  of  the
\nCorporation.    The   Corporation   is   fully   supported   financially   and
\nadministratively by  the  State  and  its  authorities.      Even   day-to-day
\nfunctioning  of  the  Corporation is watched, supervised and controlled by the
\nvarious departmental authorities of the State particularly the  Department  of
\nFood and  Civil  Supplies.   The multiple test indicated to be applied both by
\nthe majority and minority view in Pradeep Kumar Biswas [(2002) 5 SCC  111]  is
\nfully  satisfied in the present case for recording a conclusion by us that the
\nCorporation is covered as an ” agency and instrumentality of the State” in the
\ndefinition of “State” under Article 12 of the Constitution.  It is, therefore,
\namenable to the writ jurisdiction of the High Court under Article 226  of  the
\nConstitution.”\n<\/p>\n
20.  In  Pradeep  Kumar  Biswas  v.    Indian  Institute  of Chemical Biology,<\/a>
\nreported in (2002) 5 Supreme Court Cases 111, the Constitution  Bench  of  the
\nSupreme  Court reconsidered the decision taken in Sabhajit Tewary (1975) 1 SCC\n<\/p>\n
485.  Out of 7 Hon’ble Judges, the majority view of 5  Hon’ble  Judges  is  as
\nfollows:  (para 40)<\/p>\n
“40.  The picture that ultimately emerges is that the tests formulated in Ajay
\nHasia [(1981)  1  SCC  722:    1981  SCC  (L&S)  258]  are  not a rigid set of
\nprinciples so that if a body  falls  within  any  one  of  them  it  must,  ex
\nhypothesi, be  considered to be a State within the meaning of Article 12.  The
\nquestion in each case would be  whether in the light of the cumulative  facts
\nas  established,  the  body  is financially, functionally and administratively
\ndominated by or under the control of the Government.   Such  control  must  be
\nparticular to  the  body  in question and must be pervasive.  If this is found
\nthen the body is a State within Article 12.   On  the  other  hand,  when  the
\ncontrol  is merely regulatory whether under statute or otherwise, it would not
\nserve to make the body a State.”\n<\/p>\n
By applying various tests enunciated in  the  above  mentioned  decisions  and
\nconsidering  the  facts  relating  to  Council  of  Scientific  and Industrial
\nResearch (CSIR), the Supreme Court found that the  same  is  well  within  the
\nrange of Article 12.  It is to be noted that CSIR was set up by the Department
\nof  Commerce,  Government  of  India  with  the  broad  objective of promoting
\nindustrial growth in the country.  On 14-11-1 941, a Resolution was passed  by
\nthe Legislative Assembly and accepted by the Government of India.  The objects
\nwhich  have  been  incorporated  in  the  memorandum  of  association  of CSIR
\ndemonstrate that CSIR was set up in  the  national  interest  to  further  the
\neconomic welfare of the society by fostering planned industrial development in
\nthe country.    CSIR  was and continues to be a non-profit-making organization
\nand according to clause 4 of CSIR’s memorandum of association, all its  income
\nand  property,  however derived shall be applied only towards the promotion of
\nthose objects subject nevertheless in  respect  of  the  expenditure  to  such
\nlimitations as  the  Government  of  India  may from time to time impose.  The
\ndetails regarding management and control show the dominant role played by  the
\nGovernment of  India  in  the  Governing  Body  of CSIR is evident.  The Prime
\nMinister shall be the ex officio President of CSIR.   The  Governing  Body  is
\nrequired  to  administer,  direct  and  control  the  affairs and funds of the
\nSociety and shall, under Rule 43, have authority to exercise all the powers of
\nthe Society subject nevertheless in respect of expenditure to such limitations
\nas the Government of India may from time to time impose.  This is evident that
\nthe financial control lies with the  Government.    After  analysing  all  the
\nrelevant aspects, as the majority view, the Supreme Court ruled that CSIR is a
\nState within the meaning of Article 12 of the Constitution.\n<\/p>\n
21.  In  Chander  Mohan  Khanna  v.   N.C.E.R.T., reported in (1991) 4 Supreme
\nCourt Cases 578, the question that was considered was,  whether  the  National
\nCouncil  of  Educational,  Research  and Training (NCERT)is ‘State’ as defined
\nunder Article 12 of the Constitution.  The NCERT is a society registered under
\nthe Societies Registration Act.    After  verifying  its  object,  programmes,
\nactivities,  funding,  and  considering  the  fact that the Government has got
\nlimited control only to proper utilisation of the grant, the Court  ultimately
\nconcluded  that  NCERT  is largely an autonomous body and does not fall within
\nthe definition of ‘State’ under Article 12.\n<\/p>\n
22.  The picture that emerges from the above caselaws is in the following:\n<\/p>\n
(i) In the case of U.P.  Rajya Karamchari Kalyan Nigam [(2005) 1 SCC 149]:
\nThe same was established by the State Government and wholly  financed  by  the
\nGovernment  to  carry  on  and  promote activities aimed at the welfare of the
\nemployees of State Government.  All  office  bearers  of  Governing  Body  are
\nGovernment servants.  The only Government employees can be inducted as members
\nof  the  Corporation  and  that  too  with  the previous approval of the State
\nGovernment.  The Rules of Corporation can be amended, varied or  deleted  only
\nwith prior  approval  of the State Government.  Upon winding up, the assets to
\nbe distributed in  the  manner  determined  by  the  State  Government.    The
\nCorporation  comes under ‘ State’ and is amenable to writ jurisdiction of High
\nCourt under Article 226 of the Constitution of India.\n<\/p>\n
(ii) In the case of Board of Control for Cricket in India ( B.C.C.I) (2005 (1)
\nSCALE 666):\n<\/p>\n
it is recognised by  Government  of  India  as  the  apex  National  body  for
\nregulating the  game  of  cricket  in  India.  It selects players to represent
\nIndia in matches.  It makes Rules governing activities of cricket players  and
\numpires.   It  is the sole authority for organizing major cricketing events in
\nIndia.  The Government of India accepts recommendations of BCCI in  regard  to
\nawarding ‘Arjuna  Awards’  to  cricketers.    It enjoys monopoly status in the
\nfield of cricket.  The majority view of the Supreme Court is that the BCCI  is
\nnot a ‘State’ within the meaning of Article 226 of the Constitution of India.\n<\/p>\n
(iii) In the case of N.C.E.R.T.  [(1991) 4 SCC 578]:\n<\/p>\n
The same was set up as a society with 7 Government officers subscribing to the
\nmemorandum of  association.  The object of the council is to assist and advise
\nthe Ministry of Education  and  Social  Welfare  in  the  field  of  education
\nparticularly school  education.  The income and property to be applied towards
\npromotion of objects only.  The expenditure on grants subject  to  limitations
\nwas placed  by  the Government of India.  The Government could review the work
\nand take action to give effect to reports.   The  Governing  council  consists
\nmainly of  Government  officials  but  also  includes  educationalists.    The
\nN.C.E.R.T is not a ‘State’ under Article 12 of the Constitution of India.\n<\/p>\n
(iv) In the case of Kisan Sahkari Chini Mills Ltd., (‘Mill’ in short)[(2003) 8
\nS.C.C.  639:\n<\/p>\n
It is a cooperative society.  50 per cent of its  shares  are  held  by  State
\nGovernment.   Membership to this Mill is open to cane growers, other societies
\netc.  Its committee of management has 15 members, out of which 5 are nominated
\nby the State Government.  The State Government cannot issue any  direction  to<\/p>\n
the Mill  or determine its policy.  The manufacture and sale of sugar does not
\ninvolve any public function.  Hence, the Mill is  not  a  ‘State’  within  the
\nmeaning of Article 12 of the Constitution of India.\n<\/p>\n
23.  In  Karuppan  v.   The Patron of Chennai Rifle Club, Chennai,<\/a> reported in
\n(2004) 1 M.L.J.  153, a Division Bench of this Court,  after  considering  the
\nformation, object and the activities of Chennai Rifle Club and after analysing
\nvarious  case  laws  on  the point, held that a writ would not lie against the
\nChennai Rifle Club and the said authority will not come within the purview  of
\nArticle 226.    In  that  case, the Commissioner of Police is the President of
\nRifle Club.   Still  the  Division  Bench  found  that  the  club  is  not  an
\ninstrumentality of the State and has not discharged any public duty.  The said
\ndecision will apply in all fours to the present case.\n<\/p>\n
24.   Now  we  shall  consider the involvement of Government officials such as
\nDistrict Collector, District Revenue Officer, Revenue Divisional Officer etc.,
\nas ex officio office bearers of the 2nd respondent Society.  As per Rule 8 (1)\n<\/p>\n
(a)of Tamil Nadu Government  Servants’  Conduct  Rules,  1973,  no  Government
\nservant  shall  be  permitted  to engage himself directly or indirectly in any
\ntrade or business or undertake any employment without previous sanction of the
\nGovernment.  However, without such sanction, Government servant can  undertake
\nhonorary work of a social or charitable nature or occasional work of literary,
\nartistic  or  scientific  character, or participate in sports activities as an
\namateur, subject to the condition that his  official  duties  do  not  thereby
\nsuffer.   As per Rule 2, no Government servant shall, except with the previous
\nsanction of the Government,  take  part  in  the  registration,  promotion  or
\nmanagement  of any bank or company registered under the Banking Companies Act,
\n1949 or the Indian Companies Act, 1913, or the  Companies  Act,  1956  or  any
\nother law  for the time being in force.  Proviso enables a Government servant,
\nsubject to sub-rules (7) to (10), to take part in the registration,  promotion
\nor  management of a Co-operative Society registered or deemed to be registered
\nunder the Tamil Nadu Co-operative Societies Act, 1961, or any  other  law  for
\nthe  time  being  in  force or of a literary, scientific or charitable society
\nregistered under the Societies Registration Act, 1860 or any other law for the
\ntime being in force.  However, the duty of  a  Government  servant  shall  not
\nthereby suffer.    The  above  provision  makes  it  clear that the Government
\nservants who are associated with the +committee are doing so purely in private
\ncapacity.  Rule 8 of the Tamil Nadu Government Servants Conduct Rules  permits
\nthe  government  servants to be members of charitable bodies and hold honorary
\nposts without the prior sanction of the Government.\n<\/p>\n
25.  After a careful analysis of the above discussion, we are of the view that
\nwhether a body is a ‘State’ as defined under Article 12  of  the  Constitution
\nwill  have  to  be determined by applying the tests laid down in Pradeep Kumar
\nBiswas’s case [(2002) 5 SCC 11 1].  The multiple test  laid  down  therein  is
\nwhether  in  the  light  of  cumulative  facts  as  established  the  body  is
\nfinancially, functionally and  administratively  dominated  by  or  under  the
\ncontrol of  the  Government.    When  the control is merely regulatory whether
\nunder statute or otherwise, it would not serve to make  the  body  a  ‘State’.
\nThe control must  be deep and pervasive.  In Zee Telefilms Vs.  Union of India
\n(20 05 (1)  SCALE  666)  the  Honourable  Supreme  Court  in  the  penultimate
\nparagraph  of  the  judgment of the majority has been pleased to hold that the
\ndecision in Sukhdev Singh’s case [(1975) 3 SCR 619] expanding  the  definition
\nof  the term “other authorities” to include bodies other than statutory bodies
\nwas given in the context of the situation  prevailing  at  that  time.    They
\nfurther  held  that  in  view  of  the  present  socio-economic  policy of the
\nGovernment where the State is distancing itself from commercial activities and
\nconcentrating on governance, it has been held that there is  no  necessity  to
\nfurther  expand the scope of the term “other authorities” occurring in Article
\n12 of the Constitution.\n<\/p>\n
26.  In cases where the body has been held to be an  authority  under  Article
\n12,  the Government invariably has had the power to control the functioning of
\nthe body by issuing directions,  controlling  expenditure  etc.    In  Pradeep
\nBiswas’s  case  (supra),  the  Council  of  Scientific and Industrial Research
\n(CSIR) was held to be a State  on  the  basis  that  it  was  set  up  by  the
\nDepartment  of  Commerce,  Government of India, to carry on activities earlier
\ndone by Department of Commerce.  It was set up in  the  national  interest  to
\nfurther  the  economic  welfare  of  society  by  fostering planned industrial
\ndevelopment.  The Prime Minister is its ex officio President.    Its  Director
\nGeneral is appointed by the Government of India.  The power to frame, amend or
\nrepeal  bye-laws  can  be  done only with the sanction of Government of India.
\nAll decisions can be reviewed by the Prime Minister and his orders are binding
\non governing body, As far as the employees of CSIR are concerned, the  Central
\nCivil  Services  (Classification,  Control  and  Appeal) Rules and the Central
\nCivil Services (Conduct) Rules are applicable to them.    The  scales  of  pay
\napplicable  to all the employees of CSIR are those prescribed by Government of
\nIndia for similar personnel.  CSIR cannot lay down or  change  the  terms  and
\nconditions  of service of its employees and any alteration in the bye-laws can
\nbe carried out only with the approval of the Government  of  India.    Initial
\ncapital  as  well as 70 per cent of the funds have been provided by Government
\nof India.  The Government of India can impose limitation on expenditure.   The
\naccounts  of  CSIR  are  required to be audited by the Comptroller and Auditor
\nGeneral and placed before the Parliament.  In the event  of  dissolution,  the
\nassets of the CSIR shall have to be dealt with in the manner determined by the
\nGovernment.\n<\/p>\n
27.   In  the case of first respondent- District Welfare Fund Committee, there
\nis no functional, financial, or administrative control by the Government.  The
\nGovernment servants who are associated with the Committee are doing so  purely
\nin private capacity.  The first respondent is a Society and “Mandram” building
\nis the  private  property  of  the  Society.    The Society is not getting any
\nfinancial aid from the State and there is no pervasive control  by  the  State
\nover the Society.    It  is  not  discharging  any  public  duty.   Though the
\nsuccessive District Collectors by  involving  themselves  collected  necessary
\nfunds  by  conducting  Dramas  and  Cultural Programmes, originally either for
\nformation of a medical college or an agricultural college,  the  fact  remains
\nthat  the funds were diverted to the corps of the Society, which paved way for
\nthe formation of “Kalaiarangam”.  Admittedly, money has not  been  contributed
\nby the Government.  Likewise, the Government officials are part of the Society
\nas ex-officio and not under orders and permission of the Government.  As ruled
\nin  AIR 2003 SC 1764 (supra), although, it is not easy to define what a public
\nfunction or public duty is, it can reasonably be said that such functions  are
\nsimilar  to  or  closely  related  to  those  performable  by the State in its
\nsovereign capacity.  We are satisfied that the Committee is not discharging or
\nconducting State functions and the Government has no  pervasive  control  much
\nless regulatory  control  over  the  Society.  As said earlier, the funds were
\naccumulated through various cultural programmes and financed from the  public.
\nThe  land was assigned to the Society by the Government for a consideration of
\nRs.4,84,203\/-.  The  property  possessed  is  the  ‘Kalaiarangam’  and  office
\ncomplex.   The  rent  derived  from the above properties is the main source of
\nincome  to  the  Society  and  there  is  no  financial  assistance  from  the
\nGovernment.    The  accounts  are  being  audited  by  a  qualified  Chartered
\nAccountant.  No power was given to the Government to issue  directions.    The
\nMembership  of  the  Society  is  restricted  to  33 of whom 22 are Government
\nofficers who are ex-officio members, and  11  are  drawn  from  among  reputed
\nsocial workers,  educationalists,  professionals  etc.   Upon dissolution, the
\nassets of the Society are transferable to other  associations  with  identical
\nobjects.   The  first  respondent-Society  thus  cannot  be  construed  as  an
\ninstrumentality of the State or other authority as defined in  Article  12  of
\nthe Constitution.    When  the  body  is a private body but performs statutory
\nfunctions or discharges public duties, a writ would lie.  No  writ  would  lie
\nwhen the  rights  purportedly infringed are merely private rights.  The action
\ncomplained of  in  the  writ  petition  relates  to  grant  of  lease  of  the
\n“Kalaiarangam” by  way  of  Tender.    There is no statutory or public duty or
\nfunction involved and the right of the first respondent to grant  a  lease  is
\npurely private.    As  the  first  respondent  Society  is not an authority as
\ndefined in Article 12 and as the action complained of is  that  of  a  private
\nbody  exercising private functions, we hold that the writ petition will not be
\nmaintainable.\n<\/p>\n
28.  In the light of our discussion, we hold that the first respondent Society
\nis not an ‘Authority’ or ‘State’ as defined in Article 12 of the  Constitution
\nof India.    It  is  also  not  a  “Body  or instrumentality” as could be made
\namenable to writ jurisdiction under Article  226  of  Constitution  of  India;
\nhence  the  Writ Petition filed against it is not maintainable and the same is
\ndismissed.  No costs.  We approve the  Division  Bench  decision  rendered  in
\nW.P.Nos.   1043 and 1 896 of 2002 and 23534 and 26501 of 2001 dated 26-02-2002
\n(A.V.  Sundaram and three others Vs.    The  District  Collector,  Trichy  and
\nanother).  The  Reference is answered accordingly.  The connected W.P.M.P., is
\nclosed.\n<\/p>\n
R.B.\n<\/p>\n
Index:- Yes.\n<\/p>\n
Internet:- Yes.\n<\/p>\n
To:\n<\/p>\n
1.  The President\/District Collector,
\nDistrict Welfare Fund Committee,
\nMc.  Donalds Road, Cantonment, Trichy-1.\n<\/p>\n
2.  The Commissioner,
\nLand Administration, Chennai-5.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A. Joseph Louis vs The District Welfare Fund … on 24 March, 2005 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-170032","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA. 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