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TMI Blog2024 (2) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the judgment of the learned Single Judge refusing to consider the matter on merits on the ground that the writ petition is not maintainable against the 1st respondent therein, since the 1st respondent company is not State under Article 12 of the Constitution of India. A decision of a learned Single Judge of this Court in K.J. Johnson v. Kerala Industrial and Technical Consultancy and others [ILR 1992 (1) Kerala 808] was relied on by the learned Single Judge to hold that the writ petition is not maintainable. The judgments in W.P.(C).No .26071/2021 and W.P. (C)No. 30515/2021 were also referred to. 2. We have heard Sri. Joseph Marcos, the learned Senior Counsel appearing for the appellant as instructed by Adv. Sri. Abraham Joseph Markos, Sri. E.K. Nandakumar, the learned Senior Counsel appearing for the 1st respondent as instructed by Adv. Sri. Jai Mohan, Sri. B. Unnikrishna Kaimal, learned Senior Government Pleader, Sri. S. Manu, learned DSGI appearing for the 4th respondent and Sri. B. Ashok Shenoy, the learned counsel appearing for the additional respondent No. 5. at considerable length. 3. The learned Senior Counsel appearing for the appellants drew our attention to the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Works. Initially, in relation to such General Civil Construction Works, the 1st respondent used to be allotted work as Project Management Consultant on nomination basis. Presently, such public works are being allotted to the 1st respondent by way of tender from a pool of such similar accredited agencies, Its status as a public sector undertaking is admitted by the 1st respondent in Exhibits P6(b) and P6(c) communications. It is thus submitted that the 1st Respondent is amenable to writ jurisdiction under Article 226. 5. Reliance is placed on Section 2(45) of the Companies Act, 2013 which defines a Government Company. Section 139(5) and 139(6) of the Act are also relied on. Section 617 and 619B of the Companies Act, 1956 with regard to deemed Government Companies are also referred to. 6. The Certificate of Incorporation of the company is produced as Ext. P3 along with the writ petition. The Ministry of Corporate Affairs, Government of India lists the 1st respondent company as the Union Government Company as evidenced by Ext. P3(a). Further, Ext. P3(b) GST Registration Certificate issued by the Government of India would show that the company is listed as a Public Sector Undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Rekhi v. Union of India [(1981) 1 SCC 449], Binny Ltd & Ors. v. Sadasivan and others [(2005) 6 SCC 657], Anandi Mukta Sadguru S.M.V.S.S.J.M.S. Trust and others v. V.R. Rudani and others [(1989) 2 SCC 691], Grid Corporation and others v. Rasananda Das [(2003) 10 SCC 297], Ramana Dayaram Shetty v. International Airport Authority of India and others [Civil Appeal No.. 895 of 1978] and Sukhdev Singh and others v. Bhagat Ram and others [AIR 1975 SC 1331] . 8. The learned counsel appearing for the respondent would, on the other hand, contend that the mere fact that the company has SIDBI, ICICI, Government of Kerala and Public Sector Banks as its share holders will not confer the status of the State on it. It is contended that the State control to be considered should be direct control either by the State Government or of the Central Government and any alleged control exercised over the affairs of the company by other instrumentalities of the State would not itself make the company a Central Government company amenable to writ jurisdiction under Article 12 of the Constitution of India. 9. The learned Senior counsel appearing for the 1st respondent places reliance on the decisions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts in respect of Government companies would show that Government control is exercised over the company in question. It was, therefore, held that such company would also be an instrumentality of the State and would answer the definition of State under Article 12 of the Constitution of India. 11. We have considered the contentions advanced. We have also given our anxious consideration to the judgments of the Apex Court and the various High Courts on the question of how the issue whether an authority is an instrumentality of the State under Article 12 of the Constitution of India is to be determined. We notice that in the case of entities in different states which are similar in nature to the 1st respondent herein, cases have arisen before the respective High Courts on the question whether such bodies are instrumentality of the State within the meaning of Article 12. In the case of Asok Kumar Singh and others v. Bihar Industrial and Technical Consultancy Organisation Limited and others, the Patna High Court held that the BITCO is an instrumentality of the State, while the Bombay High Court in R.V Dnyansagar v. Maharashtra Industrial and Technical Consultancy Organisation Limited has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company. The provisions of the Memorandum and Articles of Association would make it clear that the SIDBI has a decisive opinion in all matters of policy of the company. 13. It is submitted that in the judgment of the learned single Judge in K.J. Johnson, it was stated that the Government of Kerala has only 3% share in the 1st respondent. It was further stated that the accounts of the company do not require scrutiny and satisfaction of the Government and auditing is not done by State agency. It was further held that merely because nationalised banks have contributed to the share capital of the respondent, it does not become an authority as provided under Article 12 of the Constitution of India and that the memorandum and articles of association do not show any substantial control over the company by the Government. Further it was held at paragraph 11 of the judgment as follows:- "11. Respondent company is a public limited company registered under the Companies Act and its shares are held by Industrial Development Bank of India, Industrial Finance Corporation of India, Industrial Credit and Investment Corporation of India, Kerala State Industrial Development Corporation, Go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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