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Maintainability Of Article 226 Against Private Parties

Writ petitions under Article 226 are maintainable against private parties.


Backdrop
  • Mandamus and certiorari are issued to a government instrumentality (both statutory and non-statutory). Such a government instrumentality character is included under the ambit of "authorities" that fall within the extent of "state" as they occur in Art. 12. Accordingly, they so far have been issued to:
    1. Statutory bodies like International Airport Authority, the Warehousing Corporation.
    2. Non-statutory government companies registered under the Companies Act.
    3. A registered society sponsored, financed and supervised by the government.
       
  • The narrow government instrumentality approach under Art. 12 is relevant only for purposes of Art. 32 which is limited to enforcement of fundamental rights. Under Art. 226, writs can be issued "for any other purpose" along with enforcement of fundamental rights. Therefore, the term "authority" in Art. 226 is given a more liberal interpretation than the term "other authority" in Art. 12 and writs under Art. 32 by extension.
     
  • In the past, mandamus and certiorari have been issued under Art. 226 to bodies falling outside the purview of government instrumentality, as well when it is a public utility service, or to enforce a statutory or public duty, or when it is discharging a function under some statutory provision. Thus, a writ can be issued to a company, or a co-operative society, or even a private person when it discharges functions under a statute, if a party colludes with the government, has charity functions and so on.
     
  • The jurisprudence is segmented with respect to the courts considerations while assessing the applicability of Art. 226. Courts have delved into two major facets- nature of the bodies in question and the functions they serve. The Supreme Court ultimately arrived at "any person or body performing public duty" position in the interpretation of "any authority" thereby widening the scope of Art. 226. We shall look into these aspects through the judicial pronouncements.
     
  • Certiorari has been issued to a large number of sundry bodies exercising some type of adjudicatory function, such as, industrial tribunals, disciplinary authorities, Court-martial held under the Army Act, 1950.
     

Judicial Pronouncements

  1. Government Instrumentality Discourse

    In the following cases, the court identified an element of government instrumentality:
    1. Master Vibhu Kapoor v. Council of Indian School Certificate Examination, AIR 1985 Del. 142

      The Council of Indian School Certificate Examination is a society registered under the Societies Registration Act. It exercises a public function of imparting education. The council is deeply impregnated with governmental character not only structurally but also functionally. The council has been held to be an instrumentality of the State.
       
    2. U.P. State Coop. Land Development Ltd. v. Chandra Bhan Dubey. AIR 1999 SC 753
      The U.P. State Co-operative Land Development Bank Ltd. functioning as a co-operative society under the Societies Act, but constituted under the Bank Act, has been held to be an 'instrumentality' of the State and hence an 'authority' under Art. 12. Therefore, writ petitions filed by its dismissed employees to challenge the orders of their dismissal were held to be maintainable.
       
    3. The Mysore Paper Mills Ltd. v. The Mysore Paper Mills Officers Association, AIR 2002 SC 609
      Herein, a government company, under the control of the State Government which was technically a non-statutory body was held to be an 'authority' under Art. 12
       
  2. Liberal Interpretation Beyond Government Instrumentality Under Art. 226

    Courts have devised different routes to widen the ambit of "authorities" under Art. 226 in order to make sure that no body abuses its powers by discounting itself from the accountability ensured by writ petitions. Emphasis has been put on the nature of duties and execution of positive obligations of parties:
    1. Sohan Lal v. Union of India AIR 1957 SC 529
      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. 11, Lord Simonds Edn., p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court.
       
    2. Engg. Mazdoor Sabha v. Hind Cycles Ltd. AIR 1963 SC 874
      It was held that an arbitrator appointed under Section 10-A of the Industrial Disputes Act is not a private arbitrator even though he cannot be equated with a tribunal to be amenable under Article 136 of the Constitution of India. The Court held that in discharging his duties as an arbitrator, the arbitrator is clothed with some trappings of a court and a writ of certiorari would be maintainable against him. So even though an arbitrator, acting under Section 10-A of the Industrial Disputes Act, is a private individual, he discharges public function. So the ratio in the Constitution Bench decision in Engg. Mazdoor Sabha is consistent with the decision in Sohan Lal.
       
    3. Praga Tools Corp v. C.V. Imanual, AIR 1969 SC 1306:
      The Supreme Court explained that the words "any person or authority" in Art. 226 are not to be confined only to statutory authorities and instrumentalities of the state. "They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied." The Court also maintained that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by a statute.
       
    4. General Manager, United India Fire and General Ins. Co. v. Nathan, (1981) Lab IC 1076:
      Certiorari or mandamus may issue even to a private person or a body regarded as a government instrumentality even when it is incorporated or registered under a statute, e.g., a co-operative society or a limited company.

      Relevant paragraph:
      "with reference to Art. 226 the only consideration will be whether the appellant company can be said to be a public authority or not. Having regard to what we have pointed out above, with regard to the rights, privileges and duties of the appellant-company, in the light of the provisions contained in Central Act 57 of 1972, we have no hesitation whatever in holding that the appellant-company will come within the scope of Art. 226 of the Constitution of India and well, therefore, be amenable to the writ jurisdiction of the High Court."
       
    5. G Misra v. Orissa Association of Sanskritik Language and Culture, AIR 1971 Ori 212:
      The Sanskrit Council constituted under a government resolution to hold examinations and publish results has been held to be subject to mandamus because it performs a public, though not a statutory, duty.

       
    6. Harekrishna Mahtab v. Chief Minsiter, Orissa, AIR 1971 Ori 175:
      A commission of enquiry appointed under an administrative order, and not under a statutory provision, to enquire into certain allegations against an ex-Chief Minister has been held subject to certiorari.
       
    7. Tikaram v. Mundikoti Shikshan Prasarak Mandal, (1984) 4 SCC 219
      The fact that an educational institution is a private body cannot debar an employee of that institution from seeking relief against the order passed by a Government officer affecting such an employee.

      Relevant paragraph:
      4. In the circumstances, the High Court was wrong in holding that a petition under Article 226 of the Constitution did not lie against the impugned order passed by the Director. We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the management.

      But since this petition is principally directed against the order passed in a quasi-judicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders not conferred on him, we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution.
       
    8. Anadi Mukta Sadguru Shree Muktajee Vandajiswami Surana Jayanti Mahatsavak Smarak Trust v. Rudani, AIR 1989 SC 1607
      The Supreme Court has ruled that the words "any person or authority" used in Art. 226 would cover "any other person or body performing public duty". The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body.

      In the instant case, a trust registered under the Trusts Act was running a school aided by the government. The teachers filed a writ petition claiming termination benefits from the trust when it closed down the school. The Court held the trust subject to the High Court's writ jurisdiction under Art. 226 as it was discharging a public function by way of imparting education to students; it was subject to rules and regulations of the affiliating university; its activities were closely supervised by the university authorities; employment in such an institution "is not devoid of any public character".

      Relevant Paragraph:
      "The term "authority" used in Article 226 in the context must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purposes of enforcement of Fundamental Rights under Art. 32. Article 226 confers powers on the High Courts to issue writs for enforcement of Fundamental Rights as well as non-fundamental rights."

      The exposition of the law in Anadi Mukta has widened the scope of Art. 226 as well as that of mandamus. It is thus established now that the High Courts have power to issue writs not only to statutory authorities and instrumentalities of the state but also to "any other person or body performing public duty." Thus, medical colleges which are affiliated to the Universities and are receiving aid from state funds have been held subject to Art. 226. These colleges are supplementing the effort of the state.
       
    9. Sijal Rikeen Dalal v. Stock Exchange, Bombay, AIR 1991 Bom 30
      Notably, a stock exchange has also been held subject to Art. 226. A stock exchange is a public limited company but is recognised by the Securities and Exchange Board of India (SEBI) as a stock exchange and it has to comply with the conditions laid down in the Securities Contracts (Regulation) Act, 1956. The exchange is subject to the writ jurisdiction under Art. 226 if it fails to perform the public duty by going beyond the mandate of the rules and bye-laws made under the Act.
       
    10. Ramdeo Baba Kamala Nehru Engg. College v. Sanjay Kumar, (2002) 10 SCC 487:
      A writ petition against a private unaided educational institution for refund of money paid against a payment seat for admission is maintainable.
       
    11. Binny Ltd. And Another v. V. Sadasivan And Others: Supreme Court (2005) 6 SCC 657
      The Supreme Court, in this elaborate judgment, has pointed out the difficulty in drawing a line between public functions and private functions when they are being discharged by a purely private authority whilst giving pertinent descriptions as to the term "public authority". A body is performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so.

      Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest, regulate commercial and professional activities, provide legal and adjudicatory services, are involved in charitable endeavours etc. There cannot be any general definition of public authority or public action. The facts of each case decide the point. However, it was ultimately held that private contracts (subject of the matter) lack any element of public law whatsoever and therefore cannot be brought under the ambit of Art. 226.

      Relevant Paragraphs:
      11. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus:

      ".. For instance, a body is performing a public function when it provides 'public goods' or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards.

      For all these purposes, a range of legal and administrative techniques may be deployed, including rule making, adjudication (and other forms of dispute resolution); inspection; and licensing. Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function.

      The judgment further enunciated that it is important for the courts to 'recognise the realities of executive power' and not allow 'their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted'. Non-governmental bodies such as these are just as capable of abusing their powers as is Government while emphasising on existence of public law element in matters.

      29..The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England, 3rd Edn., Vol. 30, p. 682, "1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.
       
    12. S.D. Siddiqui vs University Of Delhi And Ors. 2005

      Relevant Paragraph:
      19. Article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State.

      They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
       
    13. Gattaiah (T.) And Others v. Commissioner Of Labour, Hyderabad, And Another

      In this case, some workmen were retrenched by a company. The workmen filed a writ petition against the company claiming that their retrenchment was against mandatory provisions of the Industrial Disputes Act. The Andhra High Court issued mandamus against the company to compel it to act according to law and to enforce a public duty imposed on the company by law not to retrench the workers except in accordance with the statutory conditions.

      The Court ruled that mandamus can be issued to enforce a statutory duty cast on a private body so long as it is a public duty. It was held that it is the nature of the duty and not the nature of the body which is important.

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