TaxTMI 
TaxTMI 
2021 (3) TMI 485
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...."(A) Issue a writ in the nature of certiorari or any other appropriate writ or order and quash the possession notice dated February 28, 2015 issued by respondents Nos 1 and 2 (annexure 'A') which is not in accordance with law. (B) Stay all proceedings thereto by respondents Nos. 1 and 2 including alleged possession notice. (C) Issue any other writ, order or direction that this hon'ble court deems fit in the circumstances of the case and in the ends of justice." 3. The petitioner's grievance is against M/s. Citi Bank which is a private financial institution and it would not fall under definition of article 12 of Constitution. In view of the Full Bench decision of this court in the case of K. V. Panduranga Rao v. Karnataka Dairy Development Corporation reported in [1994] 1 KLJ 149 [FB], elaborately discussed while interpreting respondent-Corporation would fall under definition of article 12 of the Constitution or not ? in paragraphs 12 to 22. Paragraphs 12 to 22 reads as under : "12. The question for consideration is having regard to the afore said factors, the Federation can be said to be an instrumentality or agency of the State and the....
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....he Government is specifically transferred to the Corporation ; (g) Whether any statutory duties are imposed upon the Corporation. 14. The Supreme Court pointed out that these tests were neither conclusive nor clinching, but are merely indicative indicia which have to be used with care and caution. The court cautioned that while stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. Thereafter the court proceeded to consider the question whether corporate bodies create under a statute and not by a statute, could be considered as 'State' and held as follows : 'We may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as how the juristic person is born but why it has been brought into existence. The Corporation may be a statutory Corpor....
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....of the Society have also to be submitted to both the Governments for their scrutiny and satisfaction, the Society is also to comply with all such directions as may be issued by the State Government with the approval of the Central Government in respect of any matters dealt with in the report of the Reviewing Committee. The control of the State and the Central Governments is indeed so deep and pervasive that no immovable property of the Society can be disposed of in any manner without the approval of both the Governments. The State and the Central Governments have even the power to appoint any other person or persons to be members of the Society and any member of the Society other than a member representing the State or Central Government can be removed from the membership of the Society by the State Government with the approval of the Central Government. The Board of Governors, which is in charge of general superintendence, direction and control of the affairs of Society and of its income and property is also largely controlled by nominees of the State and the Central Governments. It will thus be seen that the State Government and by reason of the provision for approval, the Centra....
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....urt cautioned that mere Governmental control is not sufficient to hold that a Corporation created by or under a statute will be an instrumentality of the State ; but it is further necessary to show that either Governmental business had been undertaken by the entity or what was expected to be public obligation of the 'State' should be undertaken to be per formed as a part of the entity's function. Tekraj Vasandi v. Union of India [1988] 1 SCC 236 and Chander Mohan Khanna v. National Council of Educational Research and Training [1991] 4 SCC 578. 19. In Tekraj Vasandi v. Union of India [1988] 1 SCC 236 the question that arose for consideration was whether the Institute of Constitutional and Parliamentary Studies (ICPS), a Society registered under the Societies Registration Act was an instrumentality of the State. After referring to the gamut of earlier decisions on the subject and the tests laid down to find out whether an entity is an instrumentality of the State, the Supreme Court observed : 'It is time to turn to the facts of the present case to find out as to what the conclusion should be when the tests formulated by the several cases of this cour....
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.... considered whether the National Council of Educational Research and Training (NCERT) a Society registered under the Societies Registration Act was an instrumentality of State. The court held that NCERT did not satisfy the requirements of 'State' under article 12 and was merely an autonomous body. The relevant portions of the judgment are extracted below : 'Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the Government within the sweep of the expression "State". A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost sight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State Control. The State control does not render such bodies as "State" under article 12. The State Control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largel....
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.... principles, let us consider the position of the Federation. It is true that the entire share capital is not met by the State Government ; that the membership is open not only to the State and Central Governments, but also to the Co-operative Milk Producers' Unions ; that provision is made for obtaining finances from sources other than the Government; that the power of management lies in a Board which consists not only the Government nominees and officers, but Chairman of affiliated Milk Producers' Unions ; and that provision is made for distribution of profits among the members, by way of dividend on the paid-up share capital. But these answers in the negative, to some of the tests do not mean that the federation is not 'State'. It is not necessary that all the tests laid down by the Supreme Court should be satisfied to reach the conclusion as to whether a given entity is a State." 4. The hon'ble apex court in the following three decisions hold that the writ petition is not maintainable in so far as remedy under the SARFAESI Act, 2002 : "(ii) United Bank of India v. Satyawati Tondon reported in [2010] 158 Comp Cas 251 (SC) ; [2010] 8 SCC 110 and the....