TaxTMI 
TaxTMI 
2014 (12) TMI 1286
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....review petition seeking review of the judgment 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....
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....-officio Secretary General, though he does not 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 A....
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.... those performable by the State in its sovereign capacity. 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 ....
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....in the French version) and among international authorities, as CID (CIID)." 15. 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....
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....pposite to reproduce clauses 10.1, 10.2 and 10.3, which read as follows: "Annual Subscriptions 10.1 In order to defray the cost of the activities of the Commission or for 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....
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.... issue undertaken by the High Court is keeping in view the principles laid down by this Court in catena of judgments and the tests which are to be applied to arrive at the decision as to whether a particular authority can be termed as '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 ....
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....lso granting of permission to allow the foreign teams to come to India. 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 case is not a factor indicating 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 cas....
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....ues for sustainable agriculture in the world. Scope 2.2 The Commission in achieving its mission may consider the following objectives: "(a) Planning, financing, socio-economic and environmental aspects of irrigation, drainage, flood control and undertakings for the reclamation and improvement of lands as well as the design, construction and operation of 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 re....
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....oreigners; (ii) ICID was not granted any international status by Government of India under UN Privileges and Immunities Act; and (iii) ICID was not listed as an international body in the Government of India, Ministry of External Affairs list of international organizations in India. 25) Referring to the judgment in M/s. Zee Telefilms Ltd. (supra), Mr. Agnani's submission was that in that case the Constitution Bench had held that if the function 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 f....
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...., according to the note on his selection as new Secretary of ICID, was appointed to a public office and ICID, by its own admission, was a Government sponsored society. 27) Learned counsel for respondent No.1, on the other hand, placed heavy reliance upon the reasons given by the High Court in its judgment and submitted that every aspect of the matter has been lucidly and convincingly dealt with in the impugned judgment, which was rendered keeping in view the principles 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 dea....
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....rose between the Trust which was managing and running science college and teachers of the said college. It pertained to payment of certain employment related benefits like basic pay etc. Matter was referred to the Chancellor of the Gujarat University for his decision. The Chancellor passed an award, which was accepted by the University as well as the State Government and a direction was issued to all affiliated colleges to pay their teachers in terms of the said award. However, 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 ....
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....uthority'. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose". xx xx xx 19. The term "authority" used in Article 226, in the context, must receive a liberal meaning like the term in Article 12. Article 12 is relevant 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 nonfundamental 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." 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 charac....
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....Institute & Anr. (2003) 4 SCC 225, the Court was concerned with the nature of function performed by a research institute. The Court was to examine if the function performed by such research institute would be public function or public duty. Answering the question in the negative in the said case, the Court made the following pertinent observations: "28...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." Merely because the activity of the said r....
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.... can either be statutory or even otherwise, but, there has to be public law element in the action of that body. 37) Reading of the categorization given in Federal Bank Ltd. (supra), one can find that three types of private bodies can still be amenable to writ jurisdiction under Article 226 of the Constitution, which are mentioned at serial numbers (vi) to (viii) in para 18 of the judgment extracted above. 38) What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is a 'State' within the 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 b....
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....High Court under Article 226. The discussion of the High Court is contained in paras 33 to 35 and we reproduce the same for the purpose of our appreciation: "33. On a perusal of the preamble and the objects, it is clear as crystal that the respondent has been established as a Scientific, Technical, Professional and Voluntary Non-Governmental International Organization, dedicated to enhance the world-wide supply of food and fibre for all people by improving water and land management and the productivity of irrigated and drained lands so that the appropriate management 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 bullet....
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..... The focus has to be on the function discharged by ICID, namely, whether it is discharging any public duties. Though much mileage was sought to be drawn from the function incorporated in the MOA of ICID, namely, to encourage progress in design, construction, maintenance and operation of large and small irrigation works and canals etc., that by itself would not make it a public duty cast on ICID. We cannot lose sight of the fact that ICID is a private body which has no State funding. Further, no liability under any statute is cast upon ICID to discharge the aforesaid function. The High Court 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 ....