TaxTMI 
TaxTMI 
2014 (12) TMI 1286
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....gment dated April 25, 2011, which met the same fate as the said review petition was dismissed by the High Court by orders dated August 05, 2011. 3) From the aforesaid, it is apparent that the issue agitated before us pertains to the maintainability of the writ petition under Article 226 of the Constitution of India against the respondents herein. This has arisen in the following circumstances: 4) The appellant herein was appointed to the post of Secretary, ICID, vide letter of appointment dated January 03, 1997. Pursuant to that letter, he joined the services in ICID on January 20, 1997. Thereafter, his services were terminated vide letter dated August 15, 1999, with immediate effect from August 16, 1999, on the ground that the same were no longer required by the ICID. It was followed by a communication dated August 27, 1999 whereby the appellant was given two cheques in the sum of Rs.77,388/- and Rs.98,141.50/- towards three months' basic pay in lieu of notice and the dues towards contributory provident fund respectively. It would be pertinent to note that these dues were given pursuant to the request of the appellant contained in his letter dated August 19, 1999 claiming th....
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....draw salary from ICID. Additional plea was taken that in any case writ petition under Article 226 of the Constitution of India was maintainable even if ICID does not qualify to be a 'State' within the purview of Article 12 of the Constitution inasmuch as the term 'other authority' appearing in Article 226 was of much wider connotation and it would embrace within itself those authorities which discharge public functions or public duty of great magnitude. The appellant pleaded that going by the functions which ICID is discharging, it is apparent that these are public functions and, therefore, writ petition under Article 226 of the Constitution of India could be filed against it. 6) ICID filed its counter affidavit controverting the aforesaid pleas taken by the appellant in his writ petition. The stand taken by the appellant was refuted by contending that ICID is neither a State under Article 12 of the Constitution of India nor is it amenable to writ jurisdiction under Article 226 of the Constitution. It was put forth that the said society does not fulfill the requisite tests which would bring it within the purview of Article 12 of the Constitution inasmuch as the man....
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....pacity. 8) The order of termination was sought to be justified on merits as well, taking up the contention that the appellant was not performing the duties satisfactorily and, therefore, his services were dispensed with, as per the Rules and, hence, no inquiry was necessary. Various other grounds were also pleaded to justify the order of termination. 9) After hearing the arguments on either side, the learned Single Judge of the High Court dismissed the writ petition at the threshold, without going into the question about the validity of the termination of the appellant's services as he held that ICID is neither a 'State' under Article 12 of the Constitution, nor is it discharging functions which will bring it within the ambit of public duty making it amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India. As a result, writ petition was dismissed vide judgment dated January 17, 2006. As pointed out above, this view of the learned Single Judge has been upheld by the Division Bench of the High Court vide impugned judgment dated April 25, 2011. In the process, the Division Bench has discussed the aspect of maintainability on the touc....
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....Article 3 deals with Membership. The basis of membership is as follows: "3.1 ICID consists of National Committees of Participating Countries, on the basis of one National Committee for each such country. Where no National Committee exists, officers of government or of an institution or institutions effectively representing interests within the scope of the objects of the Commission may participate in ICID activities. In such cases one officer shall be designated as Representative. 3.2 Any geographical area independently administered by a sovereign government and having interest in the activities of the Commission shall be eligible to participate in the activities of the Commission. Accordingly, in exceptional cases, the Council may, having regard to the coexistence of separate sovereign geographical areas or countries, accept the representation of the sovereign parts of a country by separate National Committees. In the case of a Federal System of government, or similar set-up, only one National Committee shall be recognized for membership in ICID." 16. Article 4 deals with the composition of the national committees and its responsibility. 17. Article 5 deals with the Intern....
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....r special purposes, the National Committees or representative organizations of participating countries shall regularly pay to the order of the Secretary-General annual subscriptions (in as near the beginning of each calendar year as may be possible) on the basis pre-determined by the Council and taking into consideration, inter alia, the interest and the capacity to pay of the participating country. National Committees or representative organizations of participating countries shall also pay such other special subscriptions as may be determined by the Council. 10.2 For each Congress, regional conference, technical session, international workshop or such other international activity, the Council may, in consultation with the National Committee of the host country, fix individual registration fees, or fees for participating organizations. In addition, the portion of the proceeds that should accrue to the budget of the Central Office of the Commission from such events shall also be determined by the Council. Funds 10.3 The Central Office shall be authorized to receive and to handle as funds of the Commission, any subscription, subvention or gift that may be made in the general i....
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....State' or 'other authority' within the meaning of Article 12. It took note of the Constitution Bench decision in Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. (1981) 1 SCC 722, wherein the following six tests were culled out from its earlier judgment in the case of Ramana Dayaram Shetty v. International Airport Authority of India & Ors (1979) 3 SCC 489: "(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 State protected. (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 of pu....
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....dicating a pervasive State control of the Board." 17) Before arriving at the aforesaid conclusion, the Court had summarized the legal position, on the basis of earlier judgments, in para 22, which reads as under: "22. Above is the ratio decidendi laid down by a sevenJudge Bench of this Court which is binding on this Bench. The facts of the case in hand will have to be tested on the touchstone of the parameters laid down in Pradeep Kumar Biswas case. Before doing so it would be worthwhile once again to recapitulate what are the guidelines laid down in Pradeep Kumar Biswas case for a body to be a State under Article 12. They are:- "(1) Principles laid down in Ajay Hasia 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. (2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government. (3) Such control must be particular to the body in question and must be pervasive. ....
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.... appurtenant engineering works including dams, reservoirs, canals, drains and other related infrastructure for storage, conveyance, distribution, collection and disposal of water. (b) Planning, financing, socio-economic and environmental aspects of schemes for river training and behaviour, flood control and protection against sea water intrusion of agricultural lands as well as the design, construction and operation of appurtenant works, except such matters as relate to the design and construction of large dams, navigation works and basic hydrology. (c) Research and development, training and capacity building in areas related to basic and applied science, technology, management, design, operation and maintenance of irrigation, drainage, flood control, river training improvement and land reclamation. (d) Facilitation of international inputs required by the developing countries, particularly the low income countries lagging in the development of irrigation and drainage. (e) Promotion of the development and systematic management of sustained irrigation and drainage systems. (f) Pooling of international knowledge on the topics related to irrigation, drainage and flood control....
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....ion of the body were akin to State functions, the aggrieved party could always seek remedy by way of writ petition under Article 226 of the Constitution even if the body was not the State. According to him, the High Court omitted to refer to its following functions laid down by the Government of India in 1948 and incorporated in the MOA of ICID as the objects and the means of accomplishing these objects: "To encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals (including navigation canals); to bring together information thereon; and to study all questions relating thereto." He argued that the design, construction, maintenance and operation of irrigation works are functions of State Irrigation Departments, duly supported by the Ministry of Irrigation. The Ministry does not directly execute these works but only facilitates their execution and its facilitating activities do not take it away from the ambit of State functions. ICID also works as Secretariat and its above functions were akin to State functions. Para 31 of the Constitution Bench decision in M/s. Zee Telefilms Ltd. (supra), while referring to the decision i....
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....inciples laid down by this Court and, therefore, it would not warrant any interference. 28) We have given our thoughtful consideration to the arguments of learned counsel for the parties. 29) If the authority/body can be treated as a 'State' within the meaning of Article 12 of the Constitution of India, indubitably writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears in Part III of the Constitution, which pertains to 'Fundamental Rights'. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose. 30) In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the 'State' i....
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....wever, the aforesaid Trust running the science college did not implement the award. Teachers filed the writ petition seeking mandamus and direction to the trust to pay them their dues of salary, allowances, provident fund and gratuity in accordance therewith. It is in this context an issue arose as to whether writ petition under Article 226 of the Constitution was maintainable against the said Trust which was admittedly not a statutory body or authority under Article 12 of the Constitution as it was a private trust running an educational institution. The High Court held that the writ petition was maintainable and said view was upheld by this Court in the aforesaid judgment. The discussion which is relevant for our purposes is contained in paras 14 to 19. However, we would like to reproduce paras 14, 16 and 19, which read as under: "14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated tha....
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.... 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." 32) In para 14, the Court spelled out two exceptions to the writ of mandamus, viz. (i) if the rights are purely of a private character, no mandamus can issue; and (ii) if the management of the college is purely a private body "with no public duty", mandamus will not lie. The Court clarified that since the Trust in the said case was an aiding institution, because of this reason, it discharges public function, like Government institution, by way of imparting education to students, more particularly when rules and regulations of the affiliating University are applicable to such an institution, being an aided institution. In such a situation, held the Co....
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....mable 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." Merely because the activity of the said research institute enures to the benefit of the Indian public, it cannot be a guiding factor to determine the character of the Institute and bring the same within the sweep of 'public function or public duty'. The Court pointed out: "28...In Praga Tools Corporation v. C.V. Imanual, AIR 1960 (sic -1969) SC 1306, the Court construed Art. 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 ....
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....he meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. Reason is obvious. Private law is that part of a legal system which is a part of Common Law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is 'State' under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. 39) Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Subba Rao AIR 1953 SC 210 that administrative law in India has been shaped in the English mould. Power to issue writ or any order of ....
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....of water, environment and the application of irrigation, drainage and flood control techniques. It is required to consider certain kind of objects which are basically a facilitation process. It cannot be said that the functions that are carried out by ICID are anyway similar to or closely related to those performable by the State in its sovereign capacity. It is fundamentally in the realm of collection of data, research, holding of seminars and organizing studies, promotion of the development and systematic management of sustained irrigation and drainage systems, publication of newsletter, pamphlets and bulletins and its role extends beyond the territorial boundaries of India. The memberships extend to participating countries and sometimes, as by-law would reveal, ICID encourages the participation of interested national and non0member countries on certain conditions. 34. As has been held in the case of Federal Bank Ltd. (supra), solely because a private company carries on banking business, it cannot be said that it would be amenable to the writ jurisdiction. The Apex Court has opined that the provisions of Banking Regulation Act and other statutes have the regulatory measure to p....
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....is right in its observation that even when object of ICID is to promote the development and application of certain aspects, the same are voluntarily undertaken and there is no obligation to discharge certain activities which are statutory or of public character. 43) There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual & Ors. (1969) 1 SCC 585, as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the concerned employee was seeking reinstatement to an office. 44) We have also pointed out above that in Sata Venkata Subba Rao (supra) this Court had observed that administrative law in India has been shaped on the lines of English law. There are catena of judgments in English co....