Sandeep Kumar Jindal vs Uoi & Ors.

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6357/2012 & CM 16968/12 (Stay)

%                                                          4th October, 2013

SANDEEP KUMAR JINDAL                                     ......Petitioner
                 Through:                Mr. M.M.Sudan, Adv.

                          VERSUS
UOI & ORS.                                               ...... Respondents
                          Through:       Mr. Ankur Chhiber, Adv. for R-1.

                                         Mr. Yoginder Handoo, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    This writ petition is filed by the petitioner who was working with the

respondent no.2-Air Force Naval Housing Board.


2.    The issue which arises is that whether respondent no.2 is a State, or

whether it is doing a public duty/public function, for a writ to be

maintainable under Article 226 of the Constitution of India.


3.    So far as the respondent no.2 not being a State is concerned, this issue

is no longer res-integra and a Division Bench of this Court has in the case of

Lt. Col. Ashok M. Chacko Retd. Vs. Union of India & Ors. in WP(C)

WPC 6357/2012                                                               Page 1 of 6
 16699/2006 decided on 2.6.2010 squarely dealt with this issue and held the

respondent no.2 not to be a State or an instrumentality of State.


4.    I am bound by this judgment and therefore I hold that the respondent

no.2 is not a State for a writ being maintainable under Article 226 of the

Constitution of India.


5.    Learned counsel for the petitioner has argued that various issues were

not argued before the Division Bench and therefore, this Court should hold

that respondent no.2 is a State. In my opinion, I do not think I can override a

view taken by a Division Bench of this Court merely because certain

arguments were not addressed before the Division Bench in Lt. Col. Ashok

M. Chacko Retd's (supra) case. This issue probably can only be decided by

a Division Bench and not by this Court. However, in the interest of justice, I

have examined the following submissions which have been urged on behalf

of the petitioner to contend that respondent no.2 is a State:-


(i)   The Board of respondent no.2 undoubtedly comprises as governing

body members officers of Air Force and Navy who by virtue of their being

such highly placed officials in the Air Force and Navy become members of

the Board and therefore, government control exists.


WPC 6357/2012                                                               Page 2 of 6
 (ii)    Government has given land at subsidized rates and consequently

government funding exists for the respondent no.2 to be a State or

instrumentality of State.

(iii)   Various employees of the government are deputed for work to the

respondent no.2 and which shows that respondent no.2 is an instrumentality

of State.


6.      So far as the first argument is concerned, the same is without any

merit because surely simply because government servants are members of a

society, government does not exercise control over the society on the aspect

of 'control' which is so required for the entity to be a State or an

instrumentality of State. Government servants are members of many clubs

or societies or associations, but simply for that reason of their being

members of such clubs, societies or associations, such societies or

associations or clubs cannot be a State or an instrumentality of State because

government does not intend to exercise control on such employees as

members of clubs, societies and associations. I therefore reject the argument

that since highly placed officials of Air Force and Navy are members of the

governing board of respondent no.2, respondent no.2 is an instrumentality of

State. The members are members in their individual capacities and not as

WPC 6357/2012                                                              Page 3 of 6
 representatives of the State. There is no such regulation in the rules of

respondent no.2 of exercise of governmental control.


7.    Even the second argument is without any merit that land has been

given at concessional rates to make the respondent no.2 an instrumentality of

State. This is because, for example, government gives lands to many private

cooperative societies for house building at concessional rates, but,

obviously only for this reason that the private societies and many

multistoried cooperative societies are given land at concessional rates,

respondent no.2 does not become an instrumentality of State just because it

has received land at concessional rates. I therefore, reject the argument that

the land being given at subsidized rates to the respondent no.2 will make the

respondent no.2 a State or an instrumentality of State. Government does not

intend to exercise its dominant control or a pervasive control by allotment of

land and therefore allotment of land at subsidized rates will not make the

respondent no.2 a State or instrumentality of State.


8.    The third argument of government employees being employees of

respondent no.2 is also rejected as I asked the counsel for the petitioner to

show me any document that government servants are deputed for working to

the respondent no.2 and in response to which counsel for the petitioner could

WPC 6357/2012                                                              Page 4 of 6
 not point out to me any document to show that government servants have

been deputed by the government for working with the respondent no.2-

society. Also it is a moot point as to how many employees have been

deputed and therefore what is the so called extent of government funding. In

the absence of any document, a self serving averment cannot make the

respondent no.2 an instrumentality of State more so because a Division

Bench in the case of Lt. Col. Ashok M. Chacko Retd. (supra) has decided

otherwise.


9.    In view of the above, respondent no.2 is not a State or an

instrumentality of State and therefore a writ under Article 226 of the

Constitution of India does not lie.


10.   Counsel for the petitioner thereafter sought to contend that respondent

no.2 is doing a public duty or public function and therefore, writ is

maintainable.   Even this argument is without any merit because surely

housing is not a public function or public duty. Housing is a normal

commercial business activity, and which is performed mainly by private

individuals and bodies. May be in certain cases government also provides

housing however, merely because of that reason, the activity of housing does

not become a public duty or public function.         Therefore, I hold that

WPC 6357/2012                                                             Page 5 of 6
 respondent no.2 cannot be said to be doing a public duty or a public function

for a writ to be maintainable.


11.   In view of the above, the writ petition is without any merit and is

accordingly dismissed, leaving the parties to bear their own costs.




OCTOBER 04, 2013/ib                          VALMIKI J. MEHTA, J.