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TMI Blog2021 (7) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... consisting of 24 Members, who are neither appointed nor nominated by respondent No.1. The nominated Members of the Government cannot exceed three in number. The nominated Members have no voting rights and therefore, cannot participate in the decision making process of the Committee. The Committee controls the finances, staff and appointments, renewal, cancellation, suspension and termination of its Members. It is the Committee which make Rules in relation to conditions of service, appointment, promotion, dismissal etc. The primary source of funds is the subscription of Membership, which are sufficient for the proper functioning of the GJEPC. It is stated that no funding is provided by respondent No.1. The only funding received by GJEPC from the respondent No.1 is for a particular project as and when certain specific export, promotion activities under the MAI scheme and MDA scheme are taken up, and the said funds are used for the specific use and no portion is utilized for any other activity beyond the scheme - The respondent No.1 states that the only power exercised by the government is enumerated in clause 47 of the AoA. The said clause empowers the Central Government to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination in question as illegal and NONEST in the eyes of law pass any other order as this Honorable Court deems fit and proper to meet ends of justice. Said petitioner is a lady in person prosecuting her case from a distance place like Berhampur in Odisha the matter on hand deserves to be placed before the Honorable Court subject to discretion of the Court on merits having regard to the justiciability and the location of Respondent no.1 Ministry of Commerce and Industry (MoCI) under which authority Respondent no.2 Sabyasachi Ray is functioning subject to the administrative and financial control. Thus, this Court has got territorial jurisdiction to adjudication the subject. 2. On April 16, 2021 when this matter was first listed, this Court raised an issue on the maintainability of this petition against respondent No.2 i.e., The Gem and Jewellery Export Promotional Council ( GJEPC for short). Additionally, this Court directed the respondent No.1 to file an affidavit, clarifying the position/status of respondent No.2 as an entity being financed and controlled by respondent No.1 or not. An affidavit dated May 30, 2021 has been filed vide Diary No. 391834/2021 by respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ield in which GJEPC operates involves greater financial/economic aspects for generation of revenue in the process of export of commodities. This aspect coupled with the reply to the RTI application proves the substantial degree of control. 6. It is her case that, even the recruitment and appointment procedure contains similar conditions of service which conform with Article 311 of the Constitution. She states that although her appointment letter does not mention the applicability of CCS Rules but the same are echoed in the terms of employment. 7. The Petitioner argues that various decisions of the Supreme Court and the High Court have determined the following factors for ascertaining whether an organisation falls within the definition of State under Article 12 of the Constitution; A. Origin of the Company; B. Share Capital, whether owned by the government in entirety; C. Nature of Business and whether there is a monopoly status; D. Public Nature and function of the entity being of public importance related to government functions, whether government department may be transferred to the corporation; E. Financial aid, whether it meets almost the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t body which discharges public duties by generating revenue in the form of foreign exchange and strengthening the exchequer. 9. Mr. Vivekanand Mishra learned Counsel appears along with Mr. Aman Raj Gandhi on behalf of respondent No.2 and has at the very outset argued that the parameters essential for respondent No.2 to be declared as an entity within the meaning of State under Article 12 of the Constitution have not been met. He states that GJEPC is not a statutory body but rather a company incorporated under Section 25 of the Companies Act, 1956 (Section 8 of the Companies Act, 2013). The respondent No.2 has a voluntary membership and is not under statutory control. He also argued that the respondent No.2 neither possesses any powers to make laws nor issue binding directions amounting to law which govern its relationship with public or the affairs of public, their rights, duties, liabilities and / or other legal relations as being a necessary precondition under Article 13 of the Constitution. Even the functions performed by the respondent No.2 do not fall within the purview of sovereign functions of the State and as per the MoA the object of respondent No.2 is to support, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional and only when GJEPC makes an application to the respondent No.1 for a particular project, funds are provided to it. The Schemes for granting funds are notified on the website of respondent No.1 and are open for all. The funds are received for certain specific export promotion activities under the Market Access Initiative Scheme ( MAI scheme for short) and Market Development Assistance Scheme ( MDA scheme for short ). If these funds are sanctioned the same are used for the aforementioned specific schemes and no portion is utilised for any other activity beyond the said scheme. The funds / grants received from respondent No.1 do not meet any major expenses incurred by respondent No.2 and to that extent the grants received from Respondent No.1 are not substantial when compared to the total revenue generated by GJEPC. Mr. Mishra states that according to the EXIM Policy 1997-2002 formulated by the MOCI, all Export Promotion Councils, including GJEPC were granted an autonomous status, this status is further bolstered by the fact that the earnings from the aforesaid sources do not require prior consent or sanction from respondent No.1. Mr. Mishra has submitted figures (reproduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15,96,40,676 1,16,02,21,023 14% 21 14 2012-2013 18,45,13,123 1,31,73,17,085 14% 16 15 2013-2014 13,78,67,008 1,54,62,33,886 9% 20 16 2014-2015 13,85,04,199 1,47,90,52,211 9% 18 17 2015-2016 9,18,63,610 1,53,32,49,012 6% 7 18 2016-2017 9,43,44,476 1,39,20,95,171 7% 10 19 2017-2018 18,52,12,386 1,66,54,04,113 11% 10 20 2018-2019 19,77,68,986 1,97,82,92,859 10% 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated March 28, 2014 of this Court in the case of Bharat Bhushan v. Union of India and Ors. W.P. (C) 1199/2014 wherein the petition was withdrawn with the liberty to the petitioner to approach the appropriate forum. He further argues that the documents upon which the petitioner has placed reliance also demonstrate that GJEPC is not an instrumentality of State since: a) The compilation of documents filed by the Petitioner are certain pages from the website of the MOCI, merely listing out the names of various export promotion councils and their organisational set up and functions, such as them being registered under the Companies Act, 1956 or the Societies Registration Act 1860, them being non-profit organisations. This does not demonstrate GJEPC as being an instrumentality of the State. b) The officer who is in charge of handling public/staff grievance in the respondent No.2 is an employee of the said respondent and not a government nominee on the Administrative Committee. The fact that all public/staff grievances are handled internally and that too, without any external support makes it evident that respondent No.2 is not governed by respondent No.1 and is an aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit states that the Department of Commerce provides funding under the various schemes such as MAI, Trade Infrastructure for Export Scheme (TIES), scheme for setting up Common Facility Centres for Gems and Jewellery Sector, etc. The funding provided by the Department of Commerce is scheme specific funding and no financial assistance is given by the Department of Commerce to the GJEPC for running routine business or for their administrative functions. Respondent No.1 states that it is not a proper or a necessary party in the present proceedings. 17. According to the petitioner the objectives of GJEPC are promoting Brand India, connecting government and trade, upholding diamond integrity, spreading education and providing health insurance for its employees. GJEPC has been created by MOCI like the other 13 Export Promotion Councils (mentioned on the website of the Department of Commerce), which discharge the responsibilities including technical assistance on behalf of the government as a form of public service even though GJEPC has been incorporated as company. The power of declaring an Export Promotion Council as defunct lies with the government alone. No private body can be listed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent No.2 was to fail in holding timely elections, the clause allows for government intervention. Clause 3.3 of the AoA provides for the admission of an associate member upon getting an Import-export code number from the Director General of Foreign Trade. According to the petitioner government notification No. 12/8/2007-E MDA dated February 22, 2012 is evidence that GJEPC does not have any liberty or authority to conduct elections for the Administrative Committee, since the GJEPC is bound to follow the rules prescribed by the MOCI. Members who are on the Denied Entity List of the Directorate General of Foreign Trade would not be considered for the position within the Administrative Committee. Such a member cannot even cast a vote since the membership registration for that company would lapse based on the data generated by Directorate General of Foreign Trade. Based on the above, she states, GJEPC cannot be classified as an independent entity. 21. She states that the membership fee from which GJEPC now claims to earn revenue from, is a recent phenomenon as earlier it was known as user fees, a fee which was introduced as a result of the changes in Fiscal Policies post 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in performing public duty. She states that the power to issue directions to GJEPC in cases concerning the national economy makes respondent a necessary party and contends that the above- mentioned arguments would apply in the case of respondent No1, since GJEPC is carrying out public functions on behalf of the respondent No.1. 24. The petitioner has filed a rejoinder vide diary number 404794 as on July 06, 2021. Wherein she alleges that the termination letter dated October 13, 2020 through which her services were terminated ought to have been signed by the appointing authority which is not the case here since the termination letter has been signed by Dharmesh Shah, Assistant Director, HR Admin. The same has also not placed any letter of authorization on record to show that he had the authority to sign the said letter. She alleges that being a permanent employee, she was not given notice and the procedure adopted was not transparent or fair. She argues that permanent employees enjoy a lien on their posts, hence cannot be terminated without assigning any reasons and following due procedure established by law. She states that the decision was taken by the higher authorities and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sundara Nadar and Anr. v. Muthuraman 1967 SCC Online Mad 380. 27. Having heard the petitioner and the learned counsel for the respondent and perused the submissions made by them as well as the records, a question of maintainability arises; i.e., whether the respondent No.2 GJEPC falls under the definition of other Authority within Article 12 of the Constitution of India. 28. Before I consider the submissions made by the petitioner and the learned counsel for the respondents, it is necessary to refer to the position of law, as held by the Supreme Court in its various judgments. 29. In Ajay Hasia Ors. v. Khalid Mujib Sehravardi Ors. (1981)1 SCC 722, the Supreme Court has culled out the following six tests from its earlier judgment in the case of Ramanna Dayaram Shetty v. The International Airport Authority of India and ors (supra):- (A) One thing is clear that if the entire share capital 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. (B) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 33. 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 whether a particular body can be treated as 'other authority' or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), writ petition can be fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable and said view was upheld by this Court in the aforesaid judgment. 35.The discussion which is relevant for our purposes is contained in paras 15 to 20. However, we would like to reproduce paras 15, 17 and 20, which read as under: 15. 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 activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 37.Further, the Court explained in para 20 in Andi Mukta Sadguru case that the term 'authority' used in Article 226, in the context, would receive a liberal meaning unlike the term in Article 12, inasmuch as Article 12 was relevant only for the purpose of enforcement of fundamental rights under Article 31, whereas Article 226 confers power on the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 Corpn. v. C.A. Imanual this Court construed Article 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: 6....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). 40. Somewhat more pointed and lucid discussion can be found in Federal Bank Ltd. v. Sagar Thomas Ors., inasmuch as in that case the Court culled out the categories of body/persons who would be amenable to writ jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 44. Within a couple of years of the framing of the Constitution, this Court remarked in Election Commission of India v. Saka Venkata Rao 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 through extraordinary writ jurisdiction, even though brought against public authorities (see Administrative Law, 8th Edn., H.W.R. Wade and C.F. Forsyth, p. 656). In a number of decisions, this Court has held that contractual and commercial obligations are enforceable only by ordinary action and not by judicial revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s beyond the territorial boundaries of India. The memberships extend to participating countries and sometimes, as bye-law would reveal, ICID encourages the participation of interested national and non-member countries on certain conditions. 35. As has been held in Federal Bank Ltd. [Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] 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 the Banking Regulation Act and other statutes have the regulatory measure to play. The activities undertaken by the respondent Society, a non-governmental organisation, 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 Sri Venkateswara Hindu College of Engg. It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organisations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the Constitution and byelaws, it is diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers as stipulated under Article 27.3 (1)(a) 2. Subject to the provisions of clause (1), the number of members of the Committee shall be laid down by Election Rules made by the Council. Clause 27.6 Certain further provisions as to nominated members: (a) The term of office of members of the Committee who are nominated by the Central Government shall be co-terminus with the term of the committee. Provided that, if a member is nominated during the term of the Committee his term of office shall be such as the Central Government may specify. (b) The Central Government may, at any time, require such a nominee to relinquish his office and may appoint another person in his place. (c) The term of the office of the member nominated by the Committee to fill in the vacancy pursuant to the Article 20.1(c), 24.1(k), 27.3(1)(c) shall be for a period of 2 (two) years till the next election of the Committee. Clause 33.5 Internal Resources: At least 50 per cent of the internal resources of the Council excepting those derived from Government grants shall be utilized for development activities like market studies, dissemination of trade information, buyer-seller meets, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Policy of the Central Government for the time being in force. Clause 47.2 Foreign Collaboration All agreements between the Council and any foreign collaborator shall require prior approval of the Central Government. Clause 48. ALTERATION IN ARTICLES: No addition to, modification in, or deletion of, any of these articles shall be made without the prior approval of the Central Government Clause 49. REPUGNANCY TO COMPANIES ACT: where, in relation to a council to which the companies Act, 2013 applies, there is a repugnancy between the provisions of these articles and the procedures of that Act, the procedures of the Act shall to the extent of the repugnancy overrule the provisions of these articles. Clause 51. GENERAL POWER TO MODIFY. The central Government may at any time direct by an order in writing that the provisions of these articles shall stand modified in such manner as the central Government may direct, as in relation to councils generally or be in relation to a group of councils or a particular council where such a direction appears to be necessary in public interest. 34. The pleas of the petitioner primarily are:- (I) GJEPC fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the export of gems and jewellery, a function, which is not a governmental function. As of today, there are 6506 Members, none of whom are representatives of the Central Government. The Committee of administration manages GJEPC consisting of 24 Members, who are neither appointed nor nominated by respondent No.1. The nominated Members of the Government cannot exceed three in number. The nominated Members have no voting rights and therefore, cannot participate in the decision making process of the Committee. The Committee controls the finances, staff and appointments, renewal, cancellation, suspension and termination of its Members. It is the Committee which make Rules in relation to conditions of service, appointment, promotion, dismissal etc. The primary source of funds is the subscription of Membership, which are sufficient for the proper functioning of the GJEPC. It is stated that no funding is provided by respondent No.1. The only funding received by GJEPC from the respondent No.1 is for a particular project as and when certain specific export, promotion activities under the MAI scheme and MDA scheme are taken up, and the said funds are used for the specific use and no portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on:- (a) the policies and other measures, including direct and indirect taxation, adopted by them in relation to their effect on industry or commerce; (b) the steps to be taken by them to prevent and contravention of the codes of practices laid down by the Company, by any of the persons concerned where such contravention would affect the exports of gems and jewellery provided that such advice or representation shall be only so far as such policies or measures have a bearing directly or otherwise on the export of aforesaid goods. (12) Another ancillary object is to assist the Government authorities in appraisement of aforesaid goods, as and when called upon to do so. Clause 5 of the Memorandum of Association contemplates that every member of the Company other than the officials of the Government undertakes to contribute to the assets of the company in the event of the same being wound up during the time, he is a member or within one year afterwards, for payment of the debts and liabilities of the Company contracted prior to the date on which he ceases to be a member and of the costs, charges and expenses of winding up the same .. (13) Articles of the Association ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides that accounts and books of the Council shall be open for inspection by officer duly authorised in this behalf by the Union Government for ascertaining or verifying the income and expenditure of the Council or for such other purpose as may by an agreement between the Council and the Union Government be specified in this regard. (15) Article 65 provides that a certified copy of the Accounts and the Auditor's report shall be forwarded to the Union Government. The budget is required to be sanctioned by the Working Committee in consultation with the Union Government as per Article 66. The current account of the Council is required to be kept in a Bank approved by the Union Government. Article 73 provides that no change, alteration or modification shall be made in any of the foregoing articles than the prior concurrence of the Union Government. 38. The Rajasthan High Court in the case of Raj Rajeshwar Dadhich (supra), has, on the issue whether the Central Government has deep pervasive control, in para 16, held as under:- (16) All these provisions show some degree of control of the Government of India in the functioning of the Council. However, the question is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Association, the foundation members were 19 in number 13 being members besides a President and five Vice Presidents. The First President of the Society was the then Speaker of the Lok Sabha. The five Vice-Presidents were the then Minister of Railways, Minister of Law and Social Security, Minister of Communication and Parliamentary Affairs, a Former Chief Justice of India and a former Attorney General of India. Dr. L.M. Singhvi the then a member of the Lok Sabha, was its Executive Chairman. The public Trustee in the Department of Company Affairs and Insurance in the Ministry of Finance was the Director and a member of the Lok Sabha was the Society's Treasurer. The then Minister of Cultural Affairs in the Ministry of Education along with three members of the Lok Sabha, a Senior Advocate of the Supreme Court, a member of the Rajya Sabha, the then Vice -Chancellor of Rajasthan University, the respective Secretaries of the Lok Sabha and the Rajya Sabha, Secretariats and the Secretary in the Ministry of Law were its Members. The registered office of the society was initially located within the Parliament House but was later on shifted to the Vithailbhai Patel House, Rafi Marg, ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Members were the President, the Vice-President and the Prime Minister of India. Though the Memorandum permitted receipt of gifts and donations from outside, it is not disputed that the main source of income of the Society has been the annual Central Government grant. xxxx xxxx xxxx 16. The objects of the Society were not governmental business but were certainly the aspects which were expected to equip Members of Parliament and the State legislatures with the requisite Knowledge and experience for better functioning. Many of the objects adopted by the Society were not confined to the two Houses of Parliament and were intended to have an impact on society at large. 17. The Memorandum of the Society permitted acceptance of gifts, donations and subscriptions. There is material to show that the Ford Foundation, a US based. Trust had extended support for some time. Undoubtedly, on annual contribution from the Government has been substantial and it would not be wrong to say that they perhaps constitute the main source of funding, yet some money has been coming from other sources. In later years, foreign funding came to be regulated and, therefore, it became necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The stress laid down by the petitioner that the accounts are being audited by the Central Government and the reports being placed before both the Houses of Parliament, prove pervasive control is not appealing. The power to audit the accounts exists because the Central Government is providing funds under certain Schemes; it must ensure, that the spending and investments made are proper and justified; the same would not ipso-facto mean, the Government has a pervasive control. 41. The petitioner has relied upon the judgment of the Division Bench of the Calcutta High Court in the case of Sunirmal Kumar Roy (supra). The Single Judge of the Court held that CAPEXIL is not amenable to the writ jurisdiction. The Division Bench by referring to the judgments noted above including Pradeep Kumar Biswas (supra), Zee Telefilms (supra) and also Clause 2.65.1 in the hand book of MOCI held that CAPEXIL is not free to decide their course contrary to the policy of the Government. It also held that the primary and sole objective of the Government is to promote and / or espouse the cause of the chemical and allied industry relating to export under the patronage of the MOCI. It controlled the entire e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be substantially financed. The said conclusion of the Supreme Court was while considering an issue whether a particular body is a public authority under the provision of Right to Information Act, 2005 and not while considering the view of other authority in Article 12 of the Constitution. Suffice to state, as depicted in the chart in Para 12 above, it is clear that the maximum grant received by the GJEPC is 27% and at times like in the year 2004-2005 the grant was only 3%. In this regard I may refer to the Judgment of the Supreme Court in the case of General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad, (2003) 8 SCC 639 , wherein the Apex Court held as under: 8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or a cooperative 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 overwhel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Mill much less a deep and pervasive one. The role of the Federation, which is the apex body and whose ex officio Chairman-cumManaging Director is the Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by the Managing Director of the Federation on 22-11-1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of the Mill, as such the same being neither an instrumentality nor an agency of the Government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution. (emphasis supplied) 44. In so far as the Judgments relied upon by the petitioner are concerned, in BCCI (supra) and Zee Telefilms Ltd. (supra), the Supreme Court held that the Board falls within the definition of State for the purpose of Article 12, as the BCCI discharge public duties, inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 226 of the Constitution of India. It is not the case of the petitioner herein that the respondent organization exercise any of the functions under the EXIM Policy framed under Section 5 of the Foreign Trade (Development and Regulation) Act. As such the said judgment has no applicability in the facts of this case. 48. In so far as the reliance placed by the petitioner on the judgment of the Madras High Court in Council for Leather Exports (supra) is concerned, the said judgment is a decision of the High Court on a tax dispute raised by the petitioner therein namely M/s. Council for Leather Exports. There is an observation in Para 4 of the order of the High Court that the petitioner is also a Government of India undertaking sponsored by the Ministry of Commerce and Industry. It appears that the petitioner is laying stress on this observation of the High Court. Suffice to state that the petitioner in that case is not the organization with which this Court is concerned. In any case, the issue before the High Court was not whether Council for Leather Exports is an other authority within the meaning of Article 12 of the Constitution of India. Hence, this Judgment has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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