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TMI Blog2004 (8) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... 13th August, 2004. The respondent No. 2 and the respondent No. 1 appeared through their learned Counsel for the parties. Mr. Mukherjee, learned senior counsel, appearing on behalf of the petitioner, contended that the object of the said Association is to secure accurate circulation figures and data relating to all periodicals and media that sell advertising space and in regard to such publications to obtain information as to area of distribution and fix standard forms and methods for ascertaining the net sales figures of its members publications and further to collect and distribute amongst members of the Association information relating to all forms and methods of advertisement. Accor-ding to him, by such circulation figures and after ascertaining the net sales figures it assists the advertisers in estimating the value of any publication for advertising purposes and thereby the members of the Association are benefited. He further contended that the advertisers after considering the circulations of the members of the said Audit Bureau of Circulations, respondent No. 2, published advertisement and by such method the rate of the advertisement is also based on the said circulation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violating Article 19(1)( a ) read with Article 14 of the Constitution of India. 7. He further contended that the respondent No. 2 was incorporated to discharge a public duty in authenticating the actual figures of its members publications so as to enable the advertisers and advertising agencies to arrive at an educated decision regarding placement of advertisements and to enable members publications to justify the rates of advertisements on the basis of the authenticated circulation figures. According to him, implementation of the new Guidelines is opposed to public policy and against the public interest. 8. He also submitted that the respondent No. 1 has a duty and obligation to ensure the functioning of a company incorporated under section 25 of the Companies Act, 1956 is such that the objects for which such company was granted licence is not diluted. It is further submitted that the petitioners are seriously affected and prejudiced by the said Notification and the Guidelines issued by the respondent No. 2 and the petitioner is likely to suffer loss. 9. He further contended that in order to arrive at the correct Net-Paid Sales figures of a publication, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that the respondent No. 2 also not performing any statutory duty which has to be carried out by the respondent No. 2 in terms of the statute under or by which a company is constituted or to carry out duties placed on them by the statutes authorising the respondent No. 2 to perform the said duty. Hence, he submitted that by taking into account such action of the respondent No. 2, the respondent No. 2 cannot be said to be performing any public duty and thereby is not amenable to the writ jurisdiction. He further contended that in the facts and circumstances of the instant case the decisions cited by Mr. Mukherjee in V.R. Rudani s case ( supra ) and Tata Press Ltd. s case ( supra ) have no application. 13. On the contrary, he relied upon a decision in Federal Bank Ltd. v. Sagar Thomas [2003] 10 SCC 733 and submitted that a writ petition under Article 226 of the Constitution of India is maintainable against ( i ) the State (Government); ( ii ) an authority; ( iii ) a statutory body; ( iv ) an instrumentality or agency of the State; ( v ) a company which is financed and owned by the State; ( vi ) a private body run substantially on State funding; ( vii ) a pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 12. The question in each case would be - whether in the light of cumulative facts as established, the bodies 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 the said test is satisfied by the body, then the said 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". Therefore, applying the said test in my opinion, the respondent No. 2 cannot be treated as "authority" or "any other person". 17. It further appears to me that the Audit Bureau of Circulations being the respondent No. 2, is voluntary body formed by publishers, advertising agencies and advertisers in print media. The primary object is to certify circulation figures of member publications and disseminate the data among all members every six months. In order to avail on ABC Certificate, publishers voluntarily enroll themselves as members of the Bureau and accept to abide by Bureau s prescribed guidelines and procedures. Therefore, it appears to me from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e must mean for any other purpose for which any of the writs mentioned would, according to well-established principles issue ." "28. A writ under article 226 can lie against a person if it is a statutory body or performs a public function or discharges a public or statutory duty ( Praga Tools Corpn. v. C.A. Imanual AIR 1969 SC 1306, Shri Anadi Mukta Sadguru Trust v. V.R. Rudani [1989] 2 SCC 691 and VST Industries Ltd. v. Workers Union [2001] 1 SCC 298, ICRISAT has not been set up by a statute nor are its activities statutorily controlled. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case, that branch of the law and its remedies should and normally will be applied; and ( b )Where there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic Tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute." (p. 305) 21. After considering all these aspects of the matter and the test laid down by the Hon ble Apex Court and after analysing the facts of this case, in my opinion, the respondent No. 2 cannot be treated as "a person" or "any other authority" since it does not perform a public function or discharges a public duty for which Article 226 of the Constitution can be invoked. 22. The activities of the respondent No. 2 is purely voluntary. It has not been set up by a statute writs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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