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TMI Blog2014 (12) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. The learned counsel argued that once the society is registered in India it cannot be treated as international body. This argument is hardly of any relevance in determining the character of ICID. 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. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 ₹77,388/- and ₹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 three months' salary as per the rules as also payments for provident fund. After receiving these cheques, the appellant requested for revocation of the order of termination, which was followed by reminders dated September 02, 1999 and October 16, 1999. As he did not receive any response to the aforesaid requests, he approached the High Court by filing writ petition under Article 226 of the Constitution of India alleging that the termination of his services by the ICID was an act of arbitrariness and unreasonableness and, thus, violative of Article 14 of the Constitution. Plea of the appellant in this behalf was that the said order of termination was without holding the inquiry and no reason was given to dispense with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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 management of the affairs of the society is vested in an International Executive Council (IEC) consisting of office bearers and one duly appointed representative from each National Committee; that the office bearers of ICID consist of one President, 9 Vice Presidents and 1 Secretary General and all the office bearers, except the Secretary General, who is the full-time office bearer appointed by IEC, are elected by majority of votes of the members of the said Council; that the representatives of the World Bank, FAO, United National Educational, Scientific and Cultural Organization (UNESCO) and International Irrigation Management Institute amongst others, have a place in the International Executive Council of ICID as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 touchstone of Article 12 as well as Article 226 of the Constitution of India, in great details. 10) Mr. Dinesh Agnani, learned senior counsel appearing for the appellant, was candid in conceding that he was not joining issues insofar as the judgment of the High Court hold ICID not to be 'State' under Article 12 of the Constitution. Thus, this part of the judgment has been accepted by the appellant. However, the quintessence of the argument advanced by him, with great emphasis, was that ICID was performing public duty. He referred to the functions which ICID is discharging and made a strenuous attempt to show that those functions would come within the ambit of public functions and the duties of ICID as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, 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 International Executive Council. Clause 5.1 of Article 5 reads as follows: 5.1 The International Executive Council, hereinafter called the Council, the Executive Council or the IEC is vested with the management of the affairs of the International Commission on Irrigation and Drainage. 5.2 The Council shall consider all matters of policy which may be initiated or sponsored by any member National Committee or Office-Bearer or by the Management Board and may itself initiate and determine or otherwise advise and lay down any matter of policy. The Central Office of ICID shall act as an instrument for carrying into effect all decisions taken by the Council. The Council shall also co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interests of the objects of the Commission, or for specific research, special investigation or experimental work; and it may arrange, under general authority given by the Council, cooperative research, investigations or experimental work with other international organizations, properly qualified institutions, governmental or private, or with technical societies or associations. 21. Article 12 deals with dissolution and liquidation. Clause 12.1 deals with dissolution which reads as follows: 12.1 ICID may be declared dissolved only by a decision to be reached at a regular or a special meeting of the Council and provided that at le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p.509, para 16) (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p.510, para 18). 15) The Court also took into consideration and referred to the following passage from the judgment in Pradeep Kumar Biswas Ors. v. Indian Institute of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adeep 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. (4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State. 18) It is in the context of the aforesaid legal position and the Constitution of ICID, its bye-laws were examined by the High Court and conclusion arrived at (as already extracted above) that ICID does not qualify to be a 'State' under Article 12 of the Constitution. 19) It would be necessary to keep in mind the aforesaid legal position qua Article 12, which has been accepted by the learned senior counsel for the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, 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 and making it available worldwide. (f) Addressing of international problems and challenges posed by irrigation, drainage and flood control works and promoting evolution of suitable remedial measures. (h) Promoting savings in use of water for agriculture. (i) Promoting equity including gender equity between users and beneficiaries of irrigation, drainage and flood control systems. (j) Promotion of preservation and improvement of soil and water quality of irrigated lands. 23) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust Ors. v. V.R. Rudani Ors. (1989) 2 SCC 691, has further said that form of body concerned is not very much relevant and what is relevant is the nature of duty imposed on the body. Thus, according to him, the writ against ICID was admissible on account of its above defined nature of duty. He further argued that, in fact, the learned Single Judge had admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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' includes the Government and Parliament of India and the Government and Legislature of each State as well as all local or other authorities within the territory of India or under the control of the Government of India . It is in this context the question as to which body would qualify as 'other authority' has come up for consideration before this Court ever since, and the test/principles which are to be applied for ascertaining as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Court, the service conditions of academic staff were not purely of a private character as the staff had super-aided protection by University's decision creating a legal right and duty relationship between the staff and the management . Further, the Court explained in para 19 that the term 'authority' used in Article 226, in the context, would receive a liberal meaning unlike the term in Article 12, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legal interest . The Court also held that: ...an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute. (See Sohan Lal v. Union of India, 1957 SCR 738). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 direction for 'any other purpose' has been held to be included in Article 226 of the Constitution 'with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of the King's Bench in England. It is for this reason ordinary 'private law remedies' are not enforceable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate 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 play. The activities undertaken by the respondent-society, a nongovernmental organization, do not actually partake the nature of public duty or state actions. There is absence of public element as has been stated in V.R. Rudani and others (supra) and Sri Venkateswara Hindu College of Engineering and another (supra). I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 courts taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In Queen (on the application of Hopley) v . Liverpool Health Authority Ors. (unreported) (30 July 2002), Justice Pithford helpfully set out three th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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