9911796707
TMI Blog1982 (1) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid. The Punjab State Co-operative Land Mortgage Bank Ltd., Respondent No. 3, (hereinafter called 'the Mortgage Bank') is an Apex Society, which on the Petitioner's own showing is registered under the Punjab Co-operative Societies Act, 1961. Pritam Singh Gill, the writ Petitioner, was originally appointed as a Legal Assistant in the Mortgage Bank on 15th March, 1963. It is averred that he was later promoted as Assistant Secretary (Admn.) in the year 1969. He was prematurely retired with effect from 1st June, 1974, from the service of the Mortgage Bank under the orders of its Administrator. He later illegally attempted to join the Bank and ultimately,--vide Annexure P-24, the impugned order of the Managing Director, it was directed that he stands retired from the service of the Mortgage Bank with effect from 1st June, 1974 and was consequently relieved forthwith from his duties. 3. The writ Petitioner primarily seeks a writ in the nature of certiorari for quashing the impugned order of retirement Annexure P-24 and it was the common case that the primary relief sought was against the Mortgage Bank, Respondent No. 3. 4. This case first came up before my learned brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Definitions--In this Act, unless the context otherwise requires: (a)* * * * * (b)* * * * * (c)* * * * * (d) "Mortgage Bank" means a Primary Land Mortgage Bank or State Bank registered or deemed to be registered under the Punjab Co-operative Societies Act, 1954. (e)* * * * * (f) "Primary Land Mortgage Bank" means a co-operative Land Mortgage Bank registered or deemed to be registered under the Punjab Co-operative Societies Act, 1954 and affiliated as a member to the State Bank; (g) "Registrar" means the person appointed by the State Government to be Registrar of Co-operative Societies for the State of Punjab, or any person appointed by the State Government to assist the Registrar, under Section 3 of the Punjab Co-operative Societies Act, 1954; (h) "The State Bank" means the Punjab State Co-operative Land Mortgage Bank Limited to be established for the purposes of this Act; (i)* * * * * (* Now Punjab Co-operative Societies Act, 1961). 7. Now a plain reading of the aforesaid provisions (as also of other Sections of the Mortgage Banks Act) would pointedly show that this statute does not even remotely create any primary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Co-operative Central Bank Ltd. and Anr. v. Narayan Rath and Anr. A.I.R. 1977 S.C. 112 had concluded as follows: In view of the above, affirming the earlier judgments of this Court, we would answer the question posed at the outset in the negative to the effect that a Society merely registered under the Act is not amenable to the writ jurisdiction under Article 226 of the Constitution of India. 10. However, somewhat new dimensions in this context have been elaborately considered by the final Court in Ramanna Dayaram Shetty v. The International Airport Authority of India and Ors. AIR 1979 SC 1628 A.I.R. 1979 S.C. 1628. Therein a strenuous objection was pressed on behalf of the Respondents that the International Airport Authority of India even though created by the International Authority Act, 1971, was not amenable to the writ jurisdiction because it was a Corporation not within the ambit of Article 12. Repelling this stand on principle Bhagwati, J., speaking for the Court observed as follows: If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital 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." (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." (3) "It may also be a relevant factor ... whether the corporation enjoys monopoly status which is the State conferred or State protected." (4) "Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality." (5) "If the functions of the corporation are of public importance and closely related to the governmental functions, it would be a relevant factor in classifying (sic) as an instrumentality or agency of Government the corporation as an instrumentality or agency of Government." (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 of agency of Government". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive Societies Act is in essence an instrumentality or agency of the State it would become amendable to the writ jurisdiction under Article 226 of the Constitution of India in the same manner as the State itself is. 16. Though the learned Counsel for the Petitioner succeeds, in his stand on the aforesaid issue, yet this is no more than a pyrrhic victory. This is so because his attempts to establish that the mortgage bank herein is an instrumentality or agency of the State, appears to border on a total futility. Mr. Saini very fairly conceded that in the writ petition not the least factual foundation whatsoever has been laid to show that the functions of the mortgage bank were either governmental in nature stricto sensu or so closely analogous thereto that it can be, labelled as a projection of the State so as to come within the ambit of what has now become virtually a term of art, namely, an instrumentality or agency of the State. 17. It had to be conceded by the learned Counsel for the Petitioner that there was no material worth the name which could establish tests Nos. 1, 2, 3, 5 and 6 as authoritatively laid and quoted above in para No. 12 from Ajay Hasia's case (supra). O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State. 19. What has been said with regard to Section 11 seems to apply doubly in the context of Section 40. Herein again, the section confers a power on the Board to make regulations. In contrast to Section 11, this power of the Board to do so is not subject in any way to either the State Government or any one of its agencies. Therefore, Section 40 far from indicating any control by the State Government only confers a power on the Board itself for controlling and exercising general supervision over the primary land mortgage banks subject to the obvious limitations that they are net inconsistent with the Mortgage Banks Act or the rules framed thereunder. It seems unnecessary to elaborate the matter and counsel's reliance on Section 40 in this context seems to be hardly well-conceived. Then a last ditch attempt in this context was made by making a reference to Section 12 of the Mortgage Banks Act which empowers the Registrar to order recoveries by distraint and sale of the producer of the mortgaged land etc. A larger reading of Section 12 is plainly indicative of the fact that it is indeed far removed from in any way showing any deep or pervasive control of the State over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of persons, not exceeding three or one-third of the 'total number of members thereof, whichever is less, as the Government may determine: Provided that where the Government have subscribed to the share capital of a co-operative society to the extent of twenty lacs of rupees or more, the Government may, notwithstanding anything contained in the bye-laws of the society,-- (a) appoint one of the members nominated in the afore-said manner as Chairman of the Committee of such society; or (b) nominate another member in addition to those nominated in the aforesaid manner and appoint him as Managing Director ; Provided further that no person shall be appointed to act as Managing Director unless he is a member of the Indian Administrative Service, Punjab Civil Service, (Executive Branch) or a Deputy Registrar, a Joint Registrar or an Additional Registrar, Co-operative Societies. (b) where the Industrial Finance Corporation, the State Finance Corporation or any other financing institution notified in this behalf by the Government has, provided finance to a co-operative society, the Industrial Finance Corporation, State Finance Corporation or other financing institution as the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Chairman and the Managing Director of the Society. Herein again what observes highlighting is that these provision come into play only if the pre-eminent conditions is satisfied that the government's contribution to the share capital is to the extent of twenty lacs of rupees or more. In the case before us, there is indeed no averment whosoever to this effect. It would follow, therefore, that even in cases where the government's subscription to the share capital is to the tune of Rs. nineteen lacs, it has no over-riding power of nominating a Chairman or the Managing Director. Assuming, however, that the contribution to the share capital does exceed the prescribed limit, can it be said that the mere discretionary or enabling .power to appoint a Chairman or a Managing Director, out of the three nominated members, would necessarily turn the Mortgage Bank into an instrumentality of the State. I do not think so. As at present advised, no exceptional or total controlling power is spelled out in the Chairman or the Managing Director of the Mortgage Bank. The Chairman of the Board again would only be one of the 18 other Directors of the Bank, the vast majority of whom are elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers differ on a specific matter from the others, then the same would not be resolved by majority, but would become the subject-matter of reference to the government for its decision. It is not in each and every matter that the nominated members must be presumed to differ from the elected ones. Sub-section (4), therefore, prescribes merely for an exceptional situation. Even here it does not lay down that in such a situation, the view of the three nominated members even though in a patent minority would override those of the elected ones. In the event of a difference of opinion between the elected members on one side and the three, nominated members collectively on the other, the matter is merely passed on to the government for decision. By judicial precedent, it is now well settled that the government in such a situation does not and cannot act arbitrarily like private individuals and in such a reference, would be bound to decide the issue on merits after considering the view points of the elected members and those who are nominated. It is not that the view of the nominated members must inevitably prevail and the balance is evenly held by the government on merits to decide the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tish Kumar v. Punjab State Co-operative Bank Limited Chandigah and Ors. AIR 1981 P&H 282. Therein an identical stand was sought to be taken on behalf of the Petitioner that the Punjab State Cooperative Bank Ltd. (which admittedly was a society registered under the Co-operative Societies Act), was an instrumentality or agency of the State and therefore, amenable to the writ jurisdiction. My learned brother Tandon, J. in a judgment of remarkable perspicacity tested that claim on the anvil of the six tests' enunciated in Ajay Hasia's case (supra) and concluded as follows: In view of discussion above, I hold that the Bank (Ludhiana Central Co-operative Bank) is not an instrumentality or agency of the State nor is it its projection. It is, therefore, not an authority within the meaning of Article 12 of the Constitution, amenable to writ jurisdiction under Article 226 of the Constitution. What has been said in the aforesaid Satish Kumar's case applies with equal, if not with greater, force in the present case. It would consequently be prolix to restate all that was said therein. It suffices to highlight that it was rightly pointed out therein that none of the six tests spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows: ...Having regard to three special features, we have no hesitation whatsoever in coming to the conclusion that the Appellant company will come within the scope of the expression 'other authorities' occurring in Article 12 of the Constitution. In the first place, under Section 24 of the Act, a right and exclusive privilege to carry on the general insurance business in India is conferred only on the four companies, it is such a right that has been conferred and protected by the statute. Secondly under Section 31 of the Act every officer or other employee of the Corporation as well as of the acquiring company shall be deemed to be a public servant for the purpose of Chap. IX, Indian Penal Code. Thirdly, under Section 32 an indemnity is provided by the Central Government and the Corporation and the acquiring company in respect of the discharge of duties by the officers and other employees of the Corporation or acquiring company. It is pertinent to note that under Section 32, for the purpose of the indemnity, every officer or other employee of the company is treated on a par with the officers of the Central Government. These three circumstances cumulatively, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve precedent of the final Court itself and curiously enough to the larger benches of the Andhra Pradesh High Court and equally to innumerable Division Benches and Full Bench judgments of this Court and other High Courts. Indeed the learned Single Judge, even after expressly noticing the directly contrary view in the matter Re: Naqabhushan Reddy AIR 1951 Mad 249, Naraisimhan v. Chicacole Co-operative Central Bank Ltd. (1959) 1 Lah. L.J. 554 (A Division Bench judgment of the Andhra Pradesh High Court itself) Re: V.S. Harrharan AIR 1960 A.P. 518 M. Durgaiah v. Agent Tandur Collieries AIR 1961 A.P. 400 and R. Lakshmi v. Neyveli Lingnite Corporation AIR 1966 Mad 299, further observed as follows: These cases and others of the Punjab and Calcutta, Jammu and Kashmir High Courts which have been referred to by the learned Counsel for the Respondent-company, do undoubtedly furnish abundant authority for, the argument of the Respondent-company that no writ would lie against it which was incorporated under the Companies Act. If I were to follow these judgments, I should have rejected this writ petition on the ground that it was not maintainable. But, I regret to say that both on principle and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself pointedly noticed as follows: It must be particularly noted that what we are concerned in this case is with the issuance of a writ of mandamus "A writ of mandamus is always held to be available even against corporate bodies and companies".... Thus even though the issue was narrowly confined in the context of a writ of mandamus, the learned Single Judge made wide ranging observations about a writ of certiorari. It is settled beyond doubt that the, scope and nature of the writs of mandamus and certiorari are very far from being identical. Inevitably, therefore, the observations in T. Gattaiah and others case (supra) made with regard to the nature of the writ of certiorari are clearly obiter dicta-when the sole, issue before the Court was the issuance or otherwise of a writ of mandamus alone. 32. Now apart from the above, the basic premise, which seems to underlie the view of the learned Single Judge in T. Gattaiah and others case, that even a writ of certiorari, would lie against a private person, seems to be the rather wide language in which Article 226 of the Constitution is couched. Because this Article uses the words "any person", it was sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises from treating the writs in the nature of habeas corpus, prohibition, quo warranto and certiorari, as being all at par or identical. With great humility, if one may say so, the confusion in the judgment is arising from the assumption that the writ of certiorari is identical in scope, its nature and to whom it can issue, with the wide variety of other writs. It is settled beyond doubt that the long and ancient history of the specific writs in English law makes meaningful and significant distinctions betwixt the scope and nature of the different writs and to whom and when they should be, lawfully issued. To treat all the different and wide varieties of writs as if they were identical or synonyms is, therefore, basically fallacious. This is evident from the fact that it was not seriously contested before us at the/bar that a writ of habeas corpus might well lie against a private person masquerading in the garb of some authority and illegally depriving the citizen of his liberty. Similarly, a writ of quo warranto would also issue against a private person who is a mere pretender to a public office. Again it has been authoritatively settled by their Lordships of the Supreme Court th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquired into, and if necessary, to have the order quashed. It is to be noted that both writs deal with questions, of excessive jurisdiction and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be and would not be recognized as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.... There is no gainsaying the fact that the aforesaid statement of Lord Justice Atkira is not exhaustive. But it is a far cry therefrom to say that the same has no longer any relevance. Indeed, nearly 30 years later it was re-affirmed by Lord Goddard, C.J. in Regina v. National Joint Council for the Craft of Dental Technicians Disputes Committee and Ors. 1953 1 Q.B. 704. Therein a writ of certiorari or prohibition was sought against the Disputes Committee of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Lord Justice Atkin in Rex v. Electricity Commissioners' case (supra). Nor is it any warrant for the proposition that writ of certiorari would lie against a private person Indeed the observations made therein give the lie direct to any such stand. In this context Lord Parker, C.J. observed as follows: The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought; not to be specifically defined. They) have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter parties. Later again it extended to 'cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned. Ashworth, J. observed as follows: ...If persons agree that issues which have arisen or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no longer be taken as laying down a correct law.... 38. Yet again, some support was sought from the observations, in Rohtas Industries Ltd and Anr. v. Roktas Industries Staff Union and Ors. A.I.R. 1976 S.C. 425, by the learned Single Judge in T. Gattaiah and others case (supra) that writ of certiorari would lie against a private person. With the greatest respect, the aforesaid judgment is not open to any such construction. One of the issues before their Lordships of the Supreme Court in Rohtas Industries case (supra) was whether a writ lies against the award of the Arbitrator under Section 10A of the Industrial Disputes Act. Now there is no manner of doubt that the tribunal appointed to adjudicate on references-under, Section 10A of the Industrial Disputes Act is both a statutory tribunal and is patently one under a duty to act judicially or in any case quasi judicially. On these premises it was obviously undeniable that a writ would lie and the observations made there in Wherein again were with regard to the generality of all the writs under Article 226 of the Constitution. Nevertheless their Lordships of the Supreme Court sounded up a pungent note of caution in the following ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted as correct what is now universally labelled as the gloss of Lord Hewart, C.J. in Legislative Committee of the Church Assembly's case (supra) on the dictum of Lord Atkin in Electricity Commissioners' case (supra). Indeed this was so done also by the Privy Council in Nakkuda Ali v. M.F. De S. Jayaratha 1963 (1) Q.B. 539. However, this super added gloss of Lord Heward, C.J. has now been authoritatively rejected by the House of Lords in Ridge v. Baldwin and Ors. (supra) and in terms by the final Court in The Rampur Distillery and Chemical Co. Ltd. v. The Company Law Board New Delhi and Anr. A.I.R. 1970 S.C. 1789. Consequently without the super added gloss of Lord Hewart, C.J. the basic dictum of Atkin, L.J. in Electricity Commissioners' case (supra) stands approved by the final Court, in terms. No later judgment of the Supreme Court Was even remotely brought to our, notice in which the Electricity Commissioners' case (supra) has either been deviated from or in any way disapproved or dissented. Once the final Court has placed its seal of approval on the rule in Electricity Commissioners' case (supra), it appears to me that it would hardly be the province of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. I.L.R. (1967) A.P. 361, 40 workmen had filed a writ petition seeking a mandamus against the Praga Tools Corporation Ltd. for challenging their retrenchment in violation of settlement duly recorded under the provisions of the Industrial Disputes Act. An objection was taken before the learned Single Judge that no writ petition for mandamus could lie against an employer company registered under the Companies Act. However, the learned Single Judge without deciding this preliminary objection, dismissed the writ petition on merits. On appeal the Division Bench of the Andhra Pradesh High Court held that the company being one registered under the Companies Act and not having statutory duty or function to perform was not one against which a writ petition for a mandamus or any other writ could lie. However, the Division Bench proceeded to grant a declaration in favour of the three workmen on the ground that the impugned agreement Was illegal and void and dismissed the writ petition subject to the said declaration. On appeal by the Praga Tools Corporation, their Lordships of the Supreme Court in Praga Tools Corporation v. C.V. Imanual and Ors. A.I.R. 1962 S.C. 1306, noticed that the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s referred with approval to the earlier observations in Shri Sohan Lal v. Union of India and Anr. A.I.R. 1957 S.C. 529, wherein it was observed as follows: ...Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. II, Lord Simonds Edition, p. 84). In Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College Bihar Sharif and Ors. A.I.R. 1962 S.C. 1210, the Petitioner had sought a mandamus for appointment as Principal by virtue of statutes framed under the University of Bihar Act. Negativing such a claim their Lordships of the Supreme Court therein observed as follows: ...In order that mandamus may issue to compel the Respondents to do something it must be shown that the Statutes impose a legal duty and the Appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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