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TMI Blog2021 (3) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 (7) TMI 376 - SUPREME COURT] held writ does not lie against a private person not discharging any public duty. Even on this principle writ is not maintainable. The writ petition stands dismissed reserving liberty to the petitioner to approach appropriate forum - petition dismissed. - Writ Petition No. 26425 of 2015 (GM-RES). - - - Dated:- 3-11-2020 - P. B. BAJANTHRI, J. Shivaprasad (D. P.) for the petitioner. Manjunath (B. S.) for respondents Nos. 1 and 2. JUDGMENT On October 20, 2020 the following order was passed : None appears for the petitioner. On perusal of the records, it is evident that writ petition is not maintainable against the respondent-M/s. City Bank. Further, the petitioner has remedy under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In order to give one opportunity, relist this matter on November 3, 2020. If there is no representation on the fixed date, writ petition would be dismissed in terms of the aforesaid issue. 2. Today also none appears. Consequently, the matter is taken up for final disposal. In the present petition, the petitioner has prayed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled out and summarised the several relevant tests from the earlier decisions, in particular from the decision in Ramana Dayaram Shetty v. The International Airport Authority [1979] 3 SCC 489, to deter mine as to when an entity can be said to be an instrumentality or agency of Government. The tests are : (a) Whether the entire share capital of the Corporation is held by Government. If so, it would go a long way towards indicating that the Corporation is an instrumentality or agency of the State Government ; (b) Whether the financial assistance of the State to the Corporation is so much as to meet almost the entire expenditure of the corporation. If so, it would afford some indication of the Corporation being impregnated with Governmental character ; (c) Whether the Corporation enjoys monopoly status, which is State conferred or state protected ; (d) Whether there is a deep and pervasive State control. If so it indicates that the Corporation is a State agency or instrumentality ; (e) Whether the functions of the Corporations are of public importance and closely related to Governmental functions ; (f) Whether any department or unit of the Government is specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, Srinagar was 'State' under article 12 and answered the question in the affirmative in the following manner : 'It is in the light of this discussion that we must now proceed to examine whether the Society in the present case is an authority falling within the definition of State in article 12. Is it an Instrumentality or agency of the Government ? The answer must obviously be in the affirmative if we have regard to the memorandum of association and the Rules of the Society. The composition of the Society is dominated by the representatives appointed by the Central Government and the Governments of Jammu and Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval of the Central Government. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu and Kashmir and even if any other monies are to be received by the Society, it can be done only with the approval of the State and the Central Governments. The Rules to be made by the Society are also required to have the prior approval of the State and the Central Governments and the accounts of the Society have also to be submitted to both the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer v. Union of India [1984] 2 SCC 141, the Supreme Court considered whether Indian Council of Agriculture Research (ICAR) which was a society registered under the Societies Registration Act, an instrumentality of the State. It was found that ICAR came into existence as a department of the Government and continued to be an attached office and in almost inseparable adjunct of the Government ; that though it had an outward form of being a Society, it could be styled as a Society set up by the State ; that it was wholly financed by the Government of India ; that its object was agricultural research, for development of agriculture, which was a responsibility of the Government ; that Government of India transferred the Research institutes set up by it to ICAR ; that the control of Government of India permeated through all its activities. Applying the principles laid down in Ramana Dayaram Shetty v. The International Airport Authority [1979] 3 SCC 489 and Ajay Hasia v. Khalid Mujib Sehravardi [1981] 1 SCC 722, ICAR was held to be an instrumentality of the State. 18. In two subsequent decisions the Supreme Court cautioned that mere Governmental control is not sufficient to hold that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pointed out on more than one occasion by this court, Govern mental control is very pervasive and in fact touches all aspects of social existence. In the absence of a fair application of the tests to be made, there is possibility of turning every non-governmental society into an agency or instrumentality of the State. That obviously should not serve the purpose and may be far from reality. A broad picture of the matter has to be taken and a discerning mind has to be applied keeping the realities and human experiences in view so as to reach a reasonable conclusion. Having given our anxious consideration to the facts of the case, we are not in a position to hold that ICPS is either an agency or instrumentality of the State so as to come within the purview of other authorities in article 12 of the Constitution. We must say that ICPS is a case of its type-typical in many ways and the nor mal tests may perhaps not properly apply to test its character.' 20. In Chander Mohan Khanna v. National Council of Educational Research and Training [1991] 4 SCC 578, the Supreme Court considered whether the National Council of Educational Research and Training (NCERT) a Society registered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om other sources, and (iii) income from its own assets. It is free to apply its income and property towards the promotion of its objectives and implementation of the programmes. The Government control is confined only to the proper utilisation of the grant. The NCERT is thus largely an autonomous body.' 21. Reference may also be made to a Full Bench decision of this court in Rudrappa v. State of Karnataka, wherein this court considered the question whether a Primary Co-operative Agricultural and Rural Development Bank governed by Chapter XI of the Karnataka Co-operative Societies Act, 1959, is 'State' under article 12. This court held that as the funds used by such Bank are Governmental funds, and as the bank discharges governmental functions for the benefit of the Society and is thus an instrumentality through which the developmental activities are sought to be accelerated and as substantial control of the Bank vests in the State Government or its Officers, such a Bank is 'State' under article 12. 22. Applying these aforesaid principles, let us consider the position of the Federation. It is true that the entire share capital is not met by the State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves in as much as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute . . . It is a matter of serious concern that despite repeated pronouncement of this court, the High Courts continue to ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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