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TMI Blog2004 (2) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. The petitioner therefore allegedly addressed letters on 27-11-2003, 16-12-2003, 26-12-2003, requesting Vasavi Bank for permission to clear the principal outstanding amount with loan facility availed from M/s. The Associates . The same was rejected by Vasavi bank. 2. It appears that at the time of availing loan under the loan rules, the petitioner was required to subscribe 41 A class shares of Vasavi Bank worth about Rs. 41,000. The petitioner subscribed those shares. He has also kept some amount in fixed deposit receipts of Vasavi Bank. The petitioner states that in the proceedings dated 7-3-2003, as per proceedings, it is permissible for Vasavi Bank to adjust the share capital amount as well as the amounts towards redemption of FDRs for liquidating the loan. The petitioner also requested the bank to adjust the share capital amount as well as FDRs amount towards loan, in vain. Therefore, petitioner invoked the jurisdiction of this Court under article 226 of the Constitution praying for a Writ of mandamus directing respondents to consider the representations of petitioners dated 27-11-2003, 16-12-2003 and 26-12-2003 for liquidating outstanding amounts against petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 21 of the National Assistance Act, 1948. The local authority under the said Act made arrangements to accommodate both the claimants in a home run by the LCF. The claimants were indeed patients in the said home for about 17 years. LCF decided to cease to operate the home in the form in which it existed. The residents who could not be accommodated at the home were to be relocated in community based units. They applied for judicial review of the decision of the LCF to close the home. They contended that while providing accommodation to them, LCF was exercising functions of a public nature within the meaning of section 6(3)( b ) of the Human Rights Act, 1998. Section 6(3)( b ) defined public authority for the purpose of section 6 in these terms: "In the section, public authority includes...( b ) any person certain of whose functions are functions of a public nature......" The Judge, before whom application for judicial review came up, dismissed the same holding that LCF was not a public authority within the meaning of section 6(3) of the Human Rights Act. The Court of Appeal, placed reliance on the earlier judgment of Lord Woolf, C.J. in Poplar Housing Regenerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra ). It was held : "40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722 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. The question in each case would be - whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." (p 134) 6. As held by the Supreme Court, every legal entity of public character does not necessarily become an authority within the meaning of article 12 of the Constitution. Even if a body or organization is a creature of statute, unless such body or organization is entrusted with governmental functions, fundamental to the life of people, the same cannot be treated as autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don t find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution." 8. In Sri Konaseema Co-operative Central Bank Ltd. v. N. Seetharama Raju AIR 1990 AP 171(FB), the Full Bench of this Court considered this question whether a writ petition lies against any society and if it does in what circumstances. The conclusions of the Full Bench on these questions are as follows : "51. . . .( i ) If a particular co-operative society can be characterized as a State within the meaning of article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be an authority within the meaning, and for the purpose of article 226 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public law remedies. They are not available to enforce private law rights. Every act of a society which may be a State within the meaning of article 12, does not necessarily belong to public law field. A society, which is a State , may have its private law rights just like a Government. A contractual obligation, which is not statutory, cannot be enforced by way of a writ petition under article 226 of the Constitution. Prior to entering into contract, however, article 14 operates, as explained by the Supreme Court in E.E. C. Ltd. v. State of West Bengal, AIR 1975 SC 266, and Ramana Dayaram Shetty AIR 1979 SC 1628." (p. 198) 9. Another Full Bench in Sum Prasad v. Andhra Pradesh State Federation of Co-operative Spg. Mills Ltd. 2001(6) ALT 233 (FB) considered the question whether A.P. State Federation of Co-operative Spinning Mills is a State within the meaning of article 12 of the Constitution. The Court referred to Sri Konaseema Co-operative Central Bank Ltd. s case ( supra ) as well as the relevant case law on the subject and observed as under : "In U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey [1999] 1 SCC 741, relied on by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e body is constituted, namely, whether it is a society or a co-operative society or a company, is not decisive. The real status of the body with respect to the control of Government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under article 12 of the Constitution. In this context, bye-laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter-affidavit filed on behalf of the State and it was averred that majority of the shares were held by canegrowers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter-affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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