Andhra Pradesh High Court - Amravati
K. Ramesh Reddy, vs Union Of India on 23 December, 2021
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION Nos.9214 OF 2021, 11574 OF2021 AND 14395 OF 2021
COMMON ORDER:
Since the petitioner in all these cases is one and the same
and as the issues in these Writ Petitions are interrelated, this Court
deems it appropriate to dispose of these Writ Petitions by way of
this common order.
2. In Writ Petition No.9214 of 2021, the action of the
Secretary and Director General, The Institute of Engineers (India),
Kolkata, in not holding Council Meeting, Extraordinary General
Meeting, Special General Meeting on time, i.e., November/
December, 2020, and instead extending the term of the President,
Vice President and Council Members by one year and further
extending the term by one year is under challenge.
In Writ Petition No.11574 of 2021, the petitioner herein calls
in question the action of the Secretary and Director General,
Institute of Engineers (India), Kolkata, allegedly in connivance with
the President of the Institute of Engineers, appointing nearly 29
Boards after expiry of his term as President of Institute of
Engineers and the petitioner is also praying to quash Bye-law
No.14 as being contrary to Royal Charter Laws, Bye-law Nos.5, 6,
7(a), 7(b), 8, 11, 20, 21, 22, 25, 26 and 32(a)(i) and the petitioner is
also seeking a direction to restrain respondent Nos.3 and 4 from
continuing in their offices.
In Writ Petition No.14395 of 2021, the petitioner is
questioning the action of the respondents in issuing Ex.P4 dated
30.05.2021 to conduct election divisions, Ex.P7 dated 27.04.2021,
appointing Board of Scrutineers and Ex.P8 dated 08.07.2021,
which is an election notification issued by the Secretary and
Director General of Institute of Engineers (India), Kolkata, and the
petitioner is also praying for a direction that the election be
conducted by a competent I.T.Company.
3. According to the petitioner, the Institute of Engineers
(India), Kolkata, is a Central Government registered society which
came into being in the year 1920 and incorporated under Royal
Charter, 1935, and its object is to promote and advance the
Engineering, Science and Technology. According to the petitioner,
he is a Member of the Institute of Engineers for the last 30 years
with Fellow Membership No.F-121765-4 and is associated with
Tirupathi Centre and he was also an elected Executive Committee
Member in Andhra Pradesh State Centre, Vijayawada, for the
sessions 2019-20 and 2020-21. According to the petitioner, the
term of members of the Executive Council, including the President,
came to an end on 30.12.2020, but vide notice dated 17.07.2020,
Secretary and Director General, while postponing the elections,
which was scheduled to be held in 2020, by one year, extended the
term of Council and State/Local Centres upto 2021 on the ground
of Covid-19. According to the petitioner, the said action is without
any authority of law and respondent Nos.3 and 4 have no power to
postpone the elections and the impugned action is also contrary to
the Bye-laws. In the above background, these Writ Petitions came
to be filed at various stages.
4. Counter affidavits have also been filed by the
respondent-Institute of Engineers (India), resisting the Writ
Petitions and denying the averments and allegations made in the
affidavits filed in support of the Writ Petitions.
5. Heard Sri N.Subba Rao and Sri Nagaraju Naguru,
learned counsel for the petitioner, and Sri K.L.N.Swamy, learned
Standing Counsel for the Institute of Engineers (India), apart from
perusing the material available on record.
6. Contentions/Submissions of the learned advocates for
the petitioner:
(1) According to Bye-law No.5, the Council shall, in its
meeting prior to Annual General Meeting, elect the President from
amongst the Fellows in the Council, excluding the past Presidents
and the Members co-opted under Bye-law Nos.4(c), 12(a), 12(b) and
13.
(2) The term of the office of the President shall be one session
only, i.e., one year, as per Bye-law No.7(a) and thereafter such
President is not eligible for re-election at any time.
(3) As per Bye-law No.6, the term of Council Members, who
got elected directly through Council election, shall be 4 years only.
(4) As per Bye-law No.7(b), the President may nominate two
Vice Presidents from amongst the Members in the Council but
excluding the past Presidents and the term of office of the Vice
President shall be only one session, i.e., one year and thereafter,
not eligible for re-nomination at any time.
(5) As per Bye-law No.25, the Council may make, amend or
rescind Bye-laws, provided the same being not repugnant to the
Charter and no such additions, amendments and rescissions shall
come into operation until the same get the approval of
Extraordinary General Meeting of Corporate Members.
(6) As per Bye-law No.26, the Council may make or amend or
rescind Regulations provided the same not being repugnant to the
Charter and the Bye-laws and no such addition, amendment or
rescission shall come into operation until the same are approved by
a Special General Meeting of Corporate Members.
(7) Unless the Extraordinary General Meeting (EOGM) or
Special General Meeting (SGM) amends Bye-laws after approval by
the Council, neither the President nor the others are entitled to
continue beyond one year. But taking advantage of the Covid-19,
they are continuing beyond the stipulated period and on the
ground that during lockdown, neither the Council nor many of the
States/Local Centers of Institute of Engineers (India) could hold
meetings as per Bye-laws and Regulations.
(8) Activities at various centres including national level were
regularly conducted through online/offline methods and webinars,
as such, the reasons assigned by the respondents are not
sustainable.
7. Contentions/Submissions of Sri K.L.N.Swamy, learned
Standing Counsel for the Institute of Engineers (India):
(1) Institute of Engineers (India) is not a State within the
meaning of Article 12 of the Constitution of India, as such, it is not
amenable to the writ jurisdiction under Article 226 of the
Constitution of India, as such, the Writ Petitions are liable to be
dismissed on the ground of maintainability.
(2) Institute of Engineers (India) was incorporated under
Royal Charter, 1935, containing a grant by the Crown of United
Kingdom in the form of Letters Patent under the Kings Signs
Manual dated 09.09.1935 and the Royal Charter in the instant
case was executive in character and not a legislative function of the
King and the same should not be considered to be a law within the
meaning of Article 372 of the Constitution of India and the same
was not created under any Statute.
(3) In the Institute of Engineers (India), there is no
Government nominee nor there is any one having any nexus with
the Government directly and there is no Administrator nor there is
any other control over the affairs of the institute by the State or
Central Government or any official agency in any manner
whatsoever and the Institute of Engineers (India) is not a University
nor it is controlled nor funded by the State or Central Government
and it does not confer any degree and it gives only honorarium
certificates and it is not an authority under Article 372 of the
Constitution of India and it is neither a State nor instrumentality of
the State under Article 12 of the Constitution of India, as such,
Writ Petitions are not maintainable against the Institute of
Engineers (India).
(4) Petitioner is an elected Executive Committee Member in
the Andhra Pradesh State Centre, which is located in Vijayawada
for the Sessions 2019-20 and 2020-21, but under Regulation 23(h)
of the Institute of Engineers (India), the Election Grievance
Redressal Committee of the institution decided that the nomination
for contesting in the election by the petitioner to the Committee of
the Andhra Pradesh State Centre was to be treated as rejected and
the same is the subject matter of Writ Petition No.20042 of 2019,
wherein this Court granted stay of decision of Election Grievance
Redressal Committee and the said Writ Petition is pending.
(5) The contention that as no General Body Meeting was held,
as scheduled under Bye-law No.32(a), and as the President's term
came to an end in November, 2020, the election process
undertaken gets vitiated, is incorrect and the entire process went
on as per Bye-laws including Bye-law No.14.
(6) In view of the language employed in Bye-law Nos.5(a), 5(b),
1(h), 7(a) and 14 of the Bye-laws, the impugned action cannot be
faulted.
8. In the light of the pleadings and the contentions
narrated supra, now the issues that emerge for consideration of
this Court are:-
(1) Whether the present Writ Petitions, filed under Article
226 of the Constitution of India, are maintainable and
whether the Institute of Engineers (India) can be treated
as a State under Article 12 of the Constitution of India?
(2) Whether the actions impugned in these Writ Petitions,
having regard to the Bye-laws and facts and
circumstances of the case, are sustainable and tenable?
9. Issue No.1: According to the learned counsel for the
petitioner, the Institute of Engineers is a Central Government
registered society, incorporated under the Royal Charter, 1935,
which came into being in the year 1920 and its object is to promote
and advance Engineering and Technology. It is also the contention
of the learned counsel that the Institute of Engineers is a statutory
body and it is amenable to the jurisdiction of this Court under
Article 226 of the Constitution of India and the Royal Charter,
creating the Institute of Engineers (India) is a legislative act, having
force of law under Article 372 of the Constitution of India. It is also
the contention of the learned counsel that having regard to the
averments in the affidavit filed before the Delhi High Court in
W.P.(Civil) No.3790 of 2013, Institute of Engineers (India) cannot go
back and cannot say that it is not amenable to writ jurisdiction.
In support of his contentions as to the maintainability of the
Writ Petitions, learned counsel for the petitioner relies on the
following judgments:
(1) M.Nagaraj Vs. The Institute of Engineers (India) and another1.
(2) Rakesh Kumar Krail Vs. State of Punjab and another2.
(3) Manohar Prasad Saha Vs. The Institution of Engineers (India)
and others3.
(4) Kartar Singh Vs. Union of India and others 4.
10. On the other hand, Sri K.L.N.Swamy, learned Standing
Counsel for the Institute of Engineers (India), contends strenuously
that the Institute of Engineers (India) is not a State within the
meaning of Article 12 of the Constitution of India and Royal Charter
is only executive in character and in order to substantiate his stand
as to the non-maintainability of the Writ Petitions, he places
reliance on the following judgments:
(1) Saikat Ghosh Vs. The Institution of Engineers5.
(2) Ashwani Kumar Srivastava Vs. Institution of Engineers 6.
(3) Samir Chakraborty Vs. The Institution of Engineers (India)
and others7.
11. In order to adjudicate the aspect of the maintainability
of the Writ Petitions under Article 226 of the Constitution of India,
it would be highly essential to refer to certain provisions of the
Constitution of India. It is a cardinal and well-established principle
W.P.No.33737 of 2010 dated 10.08.2012 of Karnataka High Court
Civil W.P.No.22823 of 2017 dated 24.11.2020 of Punjab and Haryana High Court
W.P.No.2374 of 2003 dated 26.07.2016 of Chhattisgarh High Court
C.W.P.No.1640 of 2008 dated 06.11.2012 of Punjab and Haryana High Court
AIR 1996 Calcutta 47
AIR 1986 Allahabad 251
W.P.No.9768(W) of 2018 dated 29.08.2018 of Calcutta High Court
of law that a Writ Petition is maintainable against the State and its
instrumentalities and when there is non-adherence to the
provisions of the Constitution of India or Statutes. The term 'State'
is defined under Article 12 of the Constitution of India and the
same reads as under:
"12. Definition: In this part, unless the context
otherwise requires, the State includes the Government and
Parliament of India and the Government and the Legislature
of each of the States and all local or other authorities within
the territory of India or under the control of the Government
of India "
12. It is also not in dispute that when a body discharges
statutory public duty, then also Writ Petition is maintainable under
Article 226 of the Constitution of India. Therefore, the Writ
Petitions are being entertained against to private educational
institutions also, when they are discharging their functions under
the statutes made by the States. It is important to note in this
context that initially the Institute of Engineers (India) was
incorporated under the Companies Act and thereafter it was
brought under the cover of the Royal Charter. The contention of
the learned counsel for the petitioner precisely is that since the
Institute of Engineers (India) was incorporated by way of Royal
Charter, it became a statutory body and in view of the Article 372
of the Constitution of India, the Institute of Engineers is amenable
to writ jurisdiction. In this connection, it become pertinent to refer
to Article 372 of the Constitution of India, which reads as under:
"372. Continuance in force of existing laws and their
adaptation:
(1) Notwithstanding the repeal by this Constitution of the
enactments referred to in Article 395 but subject to the other
provisions of this Constitution, all the laws in force in the
territory of India immediately before the commencement of
this Constitution, all the laws in force in the territory of India
immediately before the commencement of this Constitution
shall continue in force therein until altered or repealed or
amended by a competent Legislature or other competent
authority.
(2) For the purpose of bringing the provisions of any law in
force in the territory of India into accord with the provisions of
this Constitution, the President may by order make such
adaptations and modifications of such law, whether by way of
repeal or amendment, as may be necessary or expedient, and
provide that the law shall, as from such date as may be
specified in the order, have effect subject to the adaptations
and modifications so made, and any such adaptation or
modification shall not be questioned in any court of law.
(3) Nothing in clause ( 2 ) shall be deemed
(a) to empower the President to make any adaptation or
modification of any law after the expiration of three years from
the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent
authority from repealing or amending any law adapted or
modified by the President under the said clause Explanation I
The expression law in force in this article shall include a law
passed or made by a legislature or other competent authority
in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding
that it or parts of it may not be then in operation either at all
or in particular areas Explanation II Any law passed or made
by a legislature or other competent authority in the territory of
India which immediately before the commencement of this
Constitution had extra territorial effect as well as effect in the
territory of India shall, subject to any such adaptations and
modifications as aforesaid, continue to have such extra
territorial effect Explanation III Nothing in this article shall be
construed as continuing any temporary law in force beyond
the date fixed for its expiration or the date on which it would
have expired if this Constitution had not come into force
Explanation IV An Ordinance promulgated by the Governor of
a Province under Section 88 of the Government of India Act,
1935 , and in force immediately before the commencement of
this Constitution shall, unless withdrawn by the Governor of
the corresponding State earlier, cease to operate at the
expiration of six weeks from the first meeting after such
commencement of the Legislative Assembly of that State
functioning under clause ( 1 ) of Article 382, and nothing in
this article shall be construed as continuing any such
Ordinance in force beyond the said period."
13. From a reading of the above provision of the
Constitution of India, it is very much vivid that all the laws in force
in the territory of India immediately before commencement of the
Constitution of India, shall continue to be in force until the same
are altered, repealed or amended by a competent legislature or
other competent authority, however, subject to other provisions of
the Constitution of India.
14. In order to further examine, analyze and adjudicate the
issue, it would be highly essential and apposite to refer to the
judgments cited by the learned advocates for the petitioner and
respondents in support of their respective stands.
15. In M.Nagaraj's case (1 supra), the Karnataka High Court
had an occasion to deal with the issue against the Institution of
Engineers. The fact remains that the judgment rendered by the
Karnataka High Court in the above referred case was also
confirmed by the Hon'ble Supreme Court in Special Leave to Appeal
(C) No.29277 of 2014 dated 03.03.2017. However, the reality
remains that the issue of maintainability of the Writ Petition never
fell for consideration in the said case.
16. In Rakesh Kumar Krail's case (2 supra), rendered by the
Punjab and Haryana High Court in Civil Writ Petition No.22823 of
2017, also the aspect of maintainability did not fall for
consideration and has no relevance to the facts and circumstances
of this case.
17. In Manohar Prasad Saha's case (3 supra), the
Chhattisgarh High Court at paragraph Nos.6, 8, 9, 10, 11, 12, 13,
14, 37 to 40 held as under:
"6. Per contra, learned counsel appearing for the
respondent No.1 would argue that the said respondent not
being creature of any statute nor being under the control of any
State Government or the Central Government, this petition is
not maintainable to the writ jurisdiction of this Court, because
it is not covered within the definition 'state' within the meaning
of Article 12 of the Constitution of India.
8. The respondent No.1 has raised the objection regarding
maintainability of the writ petition, therefore, this Court would
first address on the issue. Respondent No.1 claims that it has
neither been created by statute nor the functions and powers
exercised by it are statutory in nature. Since it is not controlled
either by the State Government or the Central Government, it is
not a 'state' within the meaning of Article 12 of the Constitution
of India.
9. To appreciate the submission, the origin of the
respondent No.1 and its functions are to be understood. The
respondent No.1, Institution of Engineers (India) created by a
Royal Charter issued by Buckingham Palace on 13.08.1935 by
the King's Most Excellent Majesty in Council. The Royal
Charter was prepared with the advice of the Privy Council and
was issued. It reads thus:-
THE INSTITUTION OF ENGINEERS (INDIA) ROYAL
CHARTER AT THE COURT AT BUCKINGHAM PALACE,
The 13th day of August 1935 PRESENT THE KING'S
MOST EXCELLENT MAJESTY IN COUNCIL WHEREAS
there was this day read at the Board a Report of a
Committee of the Lords of His Majesty's Most
Honourable Privy Council, dated the 1st day of August,
1935, in the words following, viz. :-
"YOUR MAJESTY having been pleased, by Your Order of
the 21st day of February, 1935, to refer unto this
Committee the humble Petition of Sir Thomas Guthrie
Russell, President of the Institution of Engineers (India)
and others praying for the grant of a Charter of
Incorporation to the said Institution :
"THE LORDS OF THE COMMITTEE, in obedience to
Your Majesty's said Order of Reference, have taken the
said Petition into consideration, and do this day agree
humbly to report, as their opinion, to Your Majesty, that
a Charter may be granted by Your Majesty in terms of
the Draft hereunto annexed."
HIS MAJESTY, having taken into consideration the said
Report, and the Draft Charter accompanying it, was
pleased, by and with the advice of His Privy Council, to
approve thereof, and to order, as it is hereby ordered,
that the Most Honourable the Marquess of Zetland, one
of His Majesty' s Principal Secretaries of State, do cause
a Warrant to be prepared for His Majesty's Royal
Signature, for passing under the Great Seal a Charter in
conformity with the said Draft, which is hereunto
annexed.
E.C.E. Leadbitter.
George the Fifth, by the Grace of God of Great Britain,
Ireland and the British Dominions beyond the Seas,
King, Defender of the Faith, Emperor of India.
To all to whom these Presents shall come, Greeting!
Whereas the Association or Institution incorporated
under the Indian Companies Act, 1913, and known as
the Institution of Engineers (India) hath petitioned Us
for a Charter of Incorporation such as is in and by these
Presents granted :
AND WHEREAS We are minded to comply with the
prayer of such Petition :
NOW THEREFORE We by virtue of Our Royal
Prerogative in that behalf, and of all other powers
enabling Us so to do, of Our special grace certain
knowledge and mere motion do hereby, for Us, Our
Heirs and Successors, will, grant, direct, appoint and
declare as follows :-
1. The Persons now Members of the said Association or
Institution known as the Institution of Engineers (India)
and all such persons as may hereafter become Members
of the Body Corporate hereby constituted pursuant to or
by virtue of the powers granted by these Presents, and
their Successors, shall for ever hereafter (so long as they
shall continue to be such Members) be by virtue of these
Presents one Body Corporate and Politic by the name of
"The Institution of Engineers (India)" and by the same
name shall have perpetual succession and a Common
Seal, with power to break, alter and make a new the
said Seal from time to time at their will and pleasure,
and by the same name shall and may sue and be sued
in all Courts, and in all manner of actions and suits,
and shall have power to do all other matters and things
incidental or appertaining to a Body Corporate,
including power to take an hold personal property and
power to purchase, take on lease and hold lands,
tenements or hereditaments or any interest in any
lands, tenaments or hereditaments whatsoever in Our
Indian Empire for the purposes of the Institution and
power to sell, let on lease, alienate, or otherwise dispose
of the same or any part thereof.
2. The objects and purposes for which the Institution of
Engineers (India) (hereinafter called "the Institution") is
hereby constituted are to promote the general
advancement of engineering and engineering science
and their application in India and to facilitate the
exchange of information and ideas on those subjects
amongst the Members of and persons attached to the
Institution and otherwise, and for that purpose--
xxx xxx xxx
xxx xxx xxx
xxx xxx xxx
4. The Institution shall not carry on any trade or
business or engage in any transaction with a view to the
pecuniary gain or profit of the Members thereof. No
Member shall have any personal claim on any property
of the Institution and no part of the income or property
of the Institution shall be paid or transferred directly or
indirectly by way of dividend or bonus or otherwise
howsoever by way of profit to the Members of the
Institution except in the case of and as a salaried officer
of the Institution.
10. There is, thus, no controversy that the Institution of
Engineers (India) has been established and constituted by a
Royal Charter as a body corporate having perpetual succession
and a Common Seal.
11. 'Royal Charter' means 'a charter proceeding from a
sovereign', as mentioned in the Oxford English Dictionary.
'Charter' in the same dictionary has been given the meaning "A
written document delivered by the sovereign or Legislature
granting privileges to or recognising rights of the people or of
certain classes or individuals.' In Webster's Dictionary 'Charter'
has been given the meaning. "An instrument in writing, from
the sovereign power of a state or country, executed in due form,
granting or guaranteeing rights, franchises or privileges.'
12. While dealing with applicability of the provisions
contained in Article 183 of the Limitation Act, 1908, the issue
came up for consideration before the Full Bench of the
Rajasthan High Court in Government of Rajasthan and another
v. Sangram Singh and others1. The Full Bench held that the
erstwhile Bikaner High Court was established by a letters
patent, which falls within the meaning of Royal Charter,
therefore, the erstwhile Bikaner High Court may be treated as a
High Court established by a Royal Charter. The Full Bench
observed that Article 183 of the Limitation Act had been
enacted to apply to the judgment, decree or order of any court
established by letters patent. In the year 1861 the Indian High
Courts Act was passed by the Parliament of England
empowering the Crown to establish by letters patent High
Courts at Calcutta, Madras, Bombay. Thereafter, by
appropriate Charters High Courts at Allahabad, Lahore, Patna
and Nagpur were established.
13. Relying upon the law laid down by the Supreme Court in
Ameer-un-Nissa Begum and Others v. Mahboob Begum and
Others wherein the Supreme Court observed that it cannot be
disputed that prior to the integration of Hyderabad State with
the Indian Union and the coming into force of the Indian
Constitution, the Nizam of Hyderabad enjoyed uncontrolled
sovereign powers. He was the supreme legislature, the supreme
judiciary and the supreme head of the executive, and there
were no constitutional limitations upon his authority to act in
any of these capacities.
The 'Firmans' were expressions of the sovereign Will of the
Nizam and they were binding in the same way as any other 1
AIR 1962 Rajasthan 43 law;--nay, they would override all other
laws which were in conflict with them.
14. Comparing the language of proclamation issued by the
Maharaja of Bikaner with the Royal Charter or the letters
patent by which various High Court were established, the Full
Bench concluded that the language of the proclamation being
similar to the Royal Charter or letters patent, the High Court of
Bikaner may fall within the meaning of Royal Charter and the
High Court established by them may be treated as a High Court
to which Article 183 of the Limitation Act would apply. It is,
thus, crystal clear that the Royal Charter is an instrument
having force of law by which even the High Court can be
created, therefore, applying the same principle, the respondent
No.1 having been constituted and established by Royal Charter
and having conferred status of a body corporate having a
perpetual succession and a Common Seal would be a statutory
body and would, thus, be covered within the meaning of 'state'
for the purpose of Article 12 of the Constitution of India.
xx xxx xx
37. Since the Royal Charter specifically prohibited for
carrying on any trade or business or engage in any transaction
with a view to the pecuniary gain or profit, the warrant/grant
and the consequent Charter was only with a view to do public
duty like an educational institution or University having powers
to grant degree or certificate having equivalence of qualification
of Engineers as recognized by the Government of India or local
Governments. Therefore, the Royal Charter constituting
Institution of Engineers (India) was legislative in character and
not an executive function giving away some property or
entering into contract giving some benefit to recipient.
38. I am in respectful disagreement with the law laid down
by the Allahabad High Court in Ashwani Kumar Srivastava
(supra), which held that the Royal Charter was executive
function and not a legislative function.
On merits :
39. In so far as the relief for continuing the old policy in
respect of the petitioner to allow him to appear in 'B' section
examination for a further period of five years is concerned, it is
to be seen that the petitioner was registered as studentship in
May, 1979, but could not clear both the sections till 1993 i.e.
for 14 years when the subject amendment in the bye-laws was
incorporated giving 6 years time to the students to complete the
studentship. The petitioner, thereafter, continued to appear in
the summer or winter examination for a further period of 6
years and as a matter of fact he was allowed to appear in 'B'
section examination till 2006, however, he could not complete
the 'B' section examination, therefore, it is not a case where the
respondents have acted in an arbitrary and unreasonable
manner. Moreover, the validity of the bye-laws have not been
challenged in specific terms. Had the respondent No.1 was
arbitrary in dealing with the petitioner he would not have been
allowed to appear in further examination even after expiry of six
years period. It is also to be seen that in his application for
examination re-registration for 'B' section examination
(Annexure - P/35) the petitioner had submitted undertaking
that exemption in subject (s) secured during the stipulated
period as well as in extended period in 'B' section examination
shall be forfeited once his application for examination for re-
registration is accepted by the Institution and he shall not
claim in future to carry forward such exemptions. Thus, while
accepting the re-registration for appearing in Winter 2001
examination the petitioner has forfeited his claim to secure any
future exemptions and, thus, he has no right to claim any fresh
attempt for clearing 'B' section examination of the AMIE course.
40. For the foregoing, while holding that the Royal Charter
creating the Institution of Engineers (India) is a legislative act
having force of law under Article 372 of the Constitution of
India and the Institution of Engineers (India) is a statutory
body, therefore, the writ petition under Article 226 of the
Constitution of India is maintainable, the writ petition is
dismissed on merits."
18. It is very much manifest from a reading of the above
judgment, the Chhattisgarh High Court entertained the said Writ
Petition and held in favour of the maintainability of the Writ
Petition while dealing with the educational courses offered by the
Institute of Engineers India.
19. In Kartar Singh's case (4 supra), in C.W.P.No.1640 of
2008 dated 06.11.2012, a Division Bench of the Punjab and
Haryana High Court dealt with a case in connection with the
Institution of Engineers. In the considered opinion of this Court,
the said judgment rendered by the Punjab and Haryana High
Court, wherein the issue of maintainability did not fall for
consideration, would not render any assistance to the petitioner
herein.
20. Coming to the judgments cited by the learned Standing
Counsel for the Institute of Engineers (India) --
In Saikat Ghosh's case (5 supra), the Calcutta High Court,
while referring to the judgment of a Division Bench of the
Allahabad High Court in Ashwani Kumar v. The Institution of
Engineers (India) (6 supra), at paragraph Nos.13 to 19, 30, 31 and
32 held as under:
"13. Mr. Hirak Mitra, Learned Counsel for the respondent
No. 1 has submitted that there is a long catena of cases in
which several High Courts of this country as well as the apex
court of our land have held that unless an authority comes
within the ambit of "a State" within Article 12 of the
Constitution of India, there is no question of invoking the writ
jurisdiction of this court against that authority. The Learned
Counsel has in this connection first drawn the attention of
this court to an unreported decision of this Court in Matter
No. 803 of 1976 (Radha Kanta Samanta v. The Secretary,
Ministry of Education and others, (Annexure "A" to the
Affidavit-in-Opposition) in which the Learned single Judge of
this High Court had to decide the question whether the
respondent No. 1, namely, the Institution of Engineers (India)
was an authority within the meaning of Art. 12 of the
Constitution. In that case the petitioner who was an Engineer
filed a writ application for quashing the decisions of a meeting
of the Council of the Institution held on 3lst May, 1976 on the
ground, inter alia, that the Institution was a Statutory Body
and/or a Local Body within the meaning of definition of Article
12 of the Constitution of India and a public authority
performing public duties within the meaning and definition of
the law of the land. The Learned Judge dealt with the genesis
of the Institution of Engineers (India) and ultimately came to
the decision that the Institution had no external or internal
characteristic of an authority within the meaning of Article 12
of the Constitution. It was further held that the Institution
was neither created under any statute nor it depended for its
continued existence on its statute. It did not discharge any
governmental function nor did it administer any public duty.
It had no statutory powers and had no power to enforce its
decision. The action of the Institution were not protected by
any statute.
14. The Learned Counsel for the respondent No. 1 also
referred to the decision of a Division Bench of the Allahabad
High Court in Ashwani Kumar v. The Institution of Engineers
(India) in which same question fell for decision. In that case
the petitioner filed a writ petition under Article 226 of the
Constitution of India for quashing cartain orders and further
for Mandamus directing the respondents to declare the
petitioner's result of Summer Examination held in 1979. It
was held by Their Lordships that since the Institution of
Engineers (India) does not owe its existence to a statute, being
not a Statutory Body, no writ petition under Article 226 of the
Constitution lies against it.
15. It was further held, the Institution of Engineers (India)
was a body incorporated under the Royal Charter, 1935
containing a grant by the Crown of the U.K. in the Form of
Letters Patent under the Kings Signs Manual dated 9th
September, 1935. Incorporation by a Royal Charter was the
executive and not the legislative function of the King. Being an
executive power, it could not be considered to be law in force
within the meaning of Article 372 of the Constitution of India.
Thus the Royal charter granted by the Crown was in exercise
of the executive function and as such it could not be hit by
Article 372 of the Constitution.
16. The Learned Counsel has also referred to the principles
laid down in Director, Cultivation of Science, Jadavpur v.
Ashok Roy (96 CWN 798), a Division Bench judgment of this
court in which it was held that the Indian Association for the
Cultivation of Science, Jadavpur is an Association registered
under the Societies Registration Act and is dominated by
private persons. It is free to accept grants from the
Government and is only answerable to the Government
concerned in respect of the grants received from them and so
long as the said Association receives grants from the
Governments, the Accounts were required to be Audited by
the Comptroller and Auditor General of India. It is free to
apply its income and property towards the promotion of its
objectives and implementation of its programmes. There is no
provision that the said Association has to comply with the
directions issued by the Central Government in that behalf.
The Association is free to dispose of its movable and
immovable properties and obtain loans which makes it clear
that there was no absolute control of the Central Government
over the affairs of the said Society. Such being the position, it
cannot be held that the Central Government is functioning
through the Society. The word "State" or "Instrumentality" of
the State means that the Government is functioning, though
it is in the form of a Society or a Co-operative Society or a
Company and this is a decisive factor for the purpose of
determining whether it is an authority under Article 12 of the
Constitution of India or not.
17. It was also held that the Indian Council for the
Cultivation of Science is not an authority within the meaning
of Article 12 of the Constitution and it was only an
Autonomous Body independent to carry on its affairs under
its bye-laws and regulations. Whatever may be the form of the
Body concerned, what is relevant is the nature of the duty
imposed. If the duty imposed upon the authority is public in
nature, a writ in the nature of Mandamus would lie for the
purpose of fulfilling ,its public duties and/or responsibilities.
Mandamus does not lie to enforce private duties and/or
private obligations.
18. The Learned Counsel for the respondent No. 1 has also
referred to the principles laid down in Shri Anupum Ghosh v.
Union of India (Cal LT 1991 (1) HC 300), in which a Division
Bench of this High Court was seized with the same question.
In that case the writ petitioner who was the earstwhile
Finance Director of Andrew Yule & Co. Ltd. a Government
Company contended that the Company was a State within
the meaning of Article 12 of the Constitution and the order of
termination of service was mala fide and as such appropriate
relief should be granted to the writ petitioner. The Learned
single Judge dismissed the application. Thereafter an appeal
was preferred and the Learned Division Bench dismissed the
appeal holding, inter alia, that the Constitution Bench of the
Supreme Court in Ajoy Hassia's case has held that a
Corporation may be a Statutory Corporation created by a
Statute or it may be a Government Company or a Society
registered under the Societies Registration Act but whatever
may be its genetical origin, it would be "State" under Article
12, if only it becomes an agency or instrumentality of the
State on a consideration of various relevant factors indicated
therein. It was held in that case that the Company was not a
"State" within the meaning of Article 12 of the Constitution.
19. The Learned Counsel has also referred to the principles
laid down in a Full Bench decision of the Bombay High Court
in Shamrao Vithal Co-operative Bank v. Padubidri . In that
case it was held that the manner in which an origanization is
created is not of any direct relevance. What is required to be
seen is whether there is pervasive State control over its
Management and functioning. Moreover, merely because an
Organization performs functions of public importance, it
cannot be held that the organization is "State" under Article
12. The regulatory laws are enacted to cover a large number
of organizations. The laws which regulate the functioning for
such organizations are presumably incorporated in public
interest. This does not mean that any of these organizations,
if they perform public function, automatically become "State"
under Article 12 of the Constitution.
30. It is clear from above that the contention of the
respondent No. 1 that it is not Government aided and that its
resources are private resources and that it is governed by its
own bye-laws and regulations are not denied.
31. From Annexure "A" to the affidavit-in-opposition, i.e. an
unreported judgment of this Court in Radha Kanta Samanta's
case, it appears that the Institution consists of Honorary
corporate and non-corporate members. Among its Members,
there is no ' Government nominee or any one having any
nexus with the Government directly or indirectly. The Council
consists of the president, the past two Presidents, the
Chairpersons of the local Centres, a Corporate Member of
each of the local Centres elected by the Corporate Members,
Additional Corporate Members etc. etc. There is no official
representative or any one having any connection with the
Central or State Government. The Council elects its President
from among the Members of the Council excluding the past-
President and the chairpersons of the local centres. It is
obvious that prima facie there is no administrative or
financial or any other control over the affairs of the
Institution of Engineers (India) by the State or Central
Government or any official agency in any manner whatsoever.
This fact stands unchallenged. The only point which has been
hammered by the Learned Counsel for the writ petitioner is
that the Institution is giving degrees or certificates and these
are equivalents to the degrees given by recognised
Government Engineering Colleges and other recognised
Institutions. These are pass-ports to getting jobs in the public
offices and other concerned establishments so in a sense,
granting of degrees or certificates which is an essential
function of the State organ is exercised by the respondent No.
1, therefore, it comes within the meaning of the expression
'the State' under Article 12. Unfortunately, this argument of
the Learned Counsel does not hold water. First, the
Institution does not confer any degree. It only gives some
certificates. The students are working techanical students.
They join the Institute only for acquiring proficiency
certificates for brightening their career prospects. There is no
statutory requirement anywhere that unless they acquire the
proficiency certificate from the Institute they cannot get an
entry into the service anywhere. Working technical students
are free to join or not to join the Institute and to offer
themselves for examination conducted by the Institute. The
only purpose of the Institute in holding the professional
examination is to maintain a high professional standard in
the work culture of the country. Institute is governed by its
own bye-laws and regulations. It is not a creature of statute.
Its functions are not controlled either directly or indirectly by
the Government in any manner whatsoever. It does not
receive any funding from the Government. It may be that by
its contribution towards the national effort in maintaining a
high professional standard for engineers and technicians; it is
discharging a public duty as a private social organisation.
But that fact itself is not sufficient to bring it within the folds
of the expression a "State" under Article 12 of the
Constitution. This is in keeping with the principles laid down
in the Constitution Bench decision of the apex Court Ajoy
Hassia's case, (supra) as also the cases sited by the Learned
Counsel for the respondent No. 1 referred to above. Moreover,
this Court does not find any reason to differ from the view
taken by the Hon'ble Judges of this Court and other High
Courts taken on the point whether the Institution of
Engineers (India) is an authority coming under the expression
a "State" under Article 12 of the Constitution.
32. Thus considering the myriad aspects of the case, I am
convinced that in the facts of the case it must be held that
the respondent No. I is not an authority coming under Article
12 of our Constitution as a "State". Therefore, the writ
petition is found not to be maintainable."
21. In Ashwani Kumar Srivastava's case (6 supra), a
Division Bench of the Allahabad High Court at paragraph Nos.2, 3,
16 to 30 held in the following manner:
"2. Institution of Engineers (India), 8, Gokhale Road,
Calcutta was formed at Madras in the year 1919. This
institution was initially incorporated under the Indian
Companies Act. 1913. Thereafter in 1935 a Royal Charter of
incorporation was granted by the then sovereign viz. His
Majesty the King in Council.
3. The objects and purposes for which the Institution of
Engineers (India) was constituted were to promote the general
advancement of Engineering and Engineering Science and
their application in India and to facilitate the exchange of
information and ideas on those subjects amongst the
members of and persons attached to the institution and
otherwise, and for that purpose:
(a) To promote and advance the science, practice and business
of Engineering in all its branches (hereinafter referred to, as
"Engineering") in India.
(b) To establish, subsidise, promote, form and maintain local
Associations of members belonging to the Institution and
others engaged or interested in Engineering so as to assure to
each individual member as far as may be possible equal
opportunity to enjoy the rights and privileges of the
Institution.
(c) To diffuse among its members information on all matters
affecting Engineering and to encourage, assist and extend
knowledge and information connected therewith by
establishment and promotion of lectures, discussions or
correspondence; by the holding of conferences by the
publication of papers, periodicals or journals, books, circulars
and maps or other literary undertaking, by encouraging
research work, or by the formation of a library or libraries and
collection of models, designs, drawings, and other articles of
interest in connection with Engineering or otherwise
howsoever.
(d) To promote the study of Engineering with a view to
disseminate the information obtained for facilitating the
scientific and economic development of Engineering in India.
(e) To establish, acquire, carry on, control or advise with
regard to colleges, schools, or other educational
establishments where students and apprentices may obtain a
sound education and training in Engineering on such -terms
as may be settled by the Institution.
xxx xxx
16. Counsel appearing for the respondents raised a
preliminary objection to the maintainability of the writ petition
on the ground that as respondent 1, was a Corporation
incorporated in Royal Charter, was a private association as
against which no writ could be issued under Article 226 of the
Constitution. Hence, the writ petition is liable to be rejected on
that ground.
17. The Institution of Engineers was a body incorporated
under the Royal Charter, 1935 containing a grant by the
Crown of the United Kingdom in the form of Letters Patent
under the King's Sign Manual dt. Sept 9, 1935.
18. What is to be decided is whether the issuance of
Charter was an act of Royal Prerogative.
19. In Introduction to British Constitutional Law, Fifth
Edition, D.C.M. Yardley at page 48 Chapter III dealt with. The
Royal Prerogative. Having held it difficult to find a satisfactory
division of the existing prerogatives of the Crown, D.C.M.
Yardley gave the following classification :
(a) Prerogatives which affect the person of the Monarch or the
status of the Crown.
(b) Prerogatives which are of wider implication.
(i) Legislative,
(ii) Executive,
(iii) Judicial.
20. While dealing with Executive, it was observed : --
"Executive.-- Many of these Prerogatives are mere relics of
past days, but the more important include the following. The
Monarch is technically head of all the armed forces. The
Monarch appoints and dismisses Ministers, civil servants and
officers and members of the armed forces. The Monarch
creates peers and confers honours. The Monarch may create
corporations by Royal Charter. In cases of national emergency
the Crown is responsible for defence of the realm, and is the
only judge of the existence of danger from external enemies."
21. The purpose of quoting the above paragraph is to show
that incorporation by a Royal Charter was the executive and
not the legislative function of the King.
22. Palmer in Company Law Twenty First Edition at page
825 dealt with the difference in character between a chartered
company and a company formed by or under an Act. It was
said at page 825 that:
"The Crown, in the exercise of the royal prerogative, has power
to create a corporation by the grant of a charter to persons
assenting to be incorporated. This prerogative is founded on
the common law.....
23. The statement of law in this regard further given is : --
"There is a difference of fundamental character between a
chartered company and a company formed by or under an Act
of Parliament."
24. The next question is as to what is the effect of the
Constitution of India on the Royal Charter under which a
company was incorporated. It cannot be doubted that in view
of the Constitution the United Kingdom would not exercise
any Prerogative power in our country. Prerogatives which were
issued from the Crown incorporating a company has lost its
efficacy and liability. Being an executive power, it could not be
considered to be law in force within the meaning of Article 372
of the Constitution of India. In Natendra N. Choudhury v.
Institute of Engineers India, AIR 1964 Cal 73, it was held :
"In view of the Constitution of India the Crown in the United
Kingdom would not exercise any prerogative power in our
country. Nor would the Crown recall the charter for it might
amount to repeal a law in force in India. The Crown has now
no constitutional function to perform in relation to India. The
function relating to approval of bye-laws is done by a
Committee of Her Majesty's Privy Council under the
prerogative, and hence the defendant institution cannot
approach the Privy Council in exercise of prerogative powers.
It could not also be said that by virtue of Clause 22 of
Adaptation of Laws Order read with Article 372 of the
Constitution the Crown could exercise under Clause 13 of the
Charter any authority. The Constitution of our country was
supreme and the Royal Prerogative did not operate in this
country".
25. In order to support his contention that the act of
issuing Royal Charter incorporating a company was a
legislative act, hence, the (sic) within the meaning of Section
372 of the Constitution, counsel relied upon Wade and
Phillips Constitution Law 5th Edition page 352. We are unable
to find anything in the passage relied upon to show that the
Prerogative issuing Royal Charter incorporating a company
was a legislative function of the Crown. It may be true that in
some other colonies, the Royal Charter is still in force but that
is not conclusive or determinative of the nature of power of the
Crown when a Royal Charter incorporating a company is
granted. In our view, the Royal Charter, in the instant case,
granted by the Crown was in exercise of the executive function
and as such it could not be hit by Article 372 of the
Constitution.
26. There is not any material difference between the
expression "existing law" and "a law in force". The words "law
in force" are wide enough and include not merely a legislative
enactment but Regulations and Orders. The incorporation
under a Royal Charter is neither a regulation nor an order. So
it does not fall within the expression "existing law."
27. In an unreported decision of the Calcutta High Court
given in Radha Kanta Samanta v. Secretary, Ministry of
Education Matter No, 803 of 1976, decided on 7-3-1977, a
similar controversy relating to the incorporation of the
Institution of Engineers i.e. respondent 1, came up for
consideration. The Calcutta High Court held that the
Institution of Engineers was not a body created by any Act
and as such was not an "authority" or was "other authority"
within the meaning of Article 12 of the Constitution.
28. After having found that it was not an authority the
Calcutta High Court went on to consider the nature of the
Institute of Engineers (India). It held:-
"The fact that the institution has continued to exist after the
independence of India is not relevant to the point at issue
apart from the charter it was also incorporated under the
Companies Act, in force at the relevant time and it cannot
claim to be of a status higher than a company or a registered
society........."
29. The purpose of citing the above decision of the Calcutta
High Court is to point out that the Institution of Engineers
(India) in that case was also not treated as the creature of any
Statute. We are in respectful agreement with the view taken
therein.
30. Before us, the learned counsel has cited the decision in
Executive Committee of Vaish Degree College, Shamli v.
Lakshmi Narain, AIR 1976 SC 888. In this case, the question
before the Supreme Court was about the status of the
Executive Council of a Degree College.
This decision of the Supreme Court does not help us in
finding that the Institution of Engineers (India) was the body
created in accordance with the provisions of the Statute.
As we have already pointed out that it was incorporated by a
Royal Charter and was not created by any Act. Since
respondent 1 does not owe its existence to a statute being not
a statutory body, no writ petition under Art 226 of the
Constitution lies against it."
22. In Samir Chakraborty's case (7 supra), the Calcutta
High Court while referring to its earlier judgment in Saikat Ghosh's
case (5 supra), held that the Institution of Engineers would not fall
within the definition of State.
23. In this context, it may be appropriate to refer to
judgment of the Hon'ble Apex Court in the case of Edward Mills Co.
Ltd., Beawar Vs. State of Ajmer and another 8, wherein, the Hon'ble
Supreme Court held that the words 'law in force' as used in Article
372 of the Constitution of India are wide enough to include not
merely a legislative enactment but also any regulation or order
which has the force of law but it must be a legislative and not an
executive order.
AIR 1955 SC 25
24. It is absolutely not in dispute that initially the Institute
of Engineers (India) came to be registered under the Companies Act
and subsequently, on the request made by the Institute of
Engineers (India) to issue a grant of charter of incorporation to the
Institute, a Committee of Lords was appointed by Her Excellency
Queen to offer opinion on the said proposal and the said Committee
submitted a report and basing on the said report, a warrant was
issued. According to the learned counsel for the respondents,
under the Royal Charter Queen had three functions or prerogatives,
viz., Legislative, Executive and Judicial. It is very much clear from
a reading of the judgment of the Allahabad High Court in Ashwani
Kumar Srivastava's case (6 supra), a Division Bench of the
Allahabad High Court drew a distinction between the said
prerogatives and eventually, came to the conclusion that the said
action was executive in character and eventually, found that the
same could not be brought within the parameters of Article 372 of
the Constitution of India. It is also very much clear from a reading
of the above said judgment that the Allahabad High Court referred
to a judgment of the Calcutta High Court in Natendra N.Chowdhury
and another Vs. The Institute of Engineers India and others 9. The
Allahabad High Court also categorically observed in the said
judgment that the institute was not created by any Act and cannot
be termed as a statutory body. Learned advocates for the
petitioner, in order to sustain their arguments, have placed reliance
on the opinion of the Hon'ble Attorney General on the Royal
AIR 1964 Calcutta 73
Charter. A perusal of the said opinion, which is filed as a material
paper in W.P.No.14395 of 2021, it is very much clear that the
Hon'ble Attorney General did not express any opinion as to the
nature of the Royal Charter, i.e., whether it was granted in exercise
of Legislative or Executive power. Therefore, this Court is not
inclined to agree with the contentions advanced on behalf of the
petitioner in support of maintainability of the Writ Petitions.
25. In the present case on hand, obviously, the complaint of
the petitioner herein is that the respondents have violated the Bye-
laws of the Institute of Engineers. In the instant case, the issue
pertains to the election to the Office Bearers of Institute of
Engineers (India) and the alleged contravention of the Bye-laws.
Admittedly, the Institute of Engineers is neither controlled nor
funded by the State nor has any of the instrumentalities nor it has
Office Bearers from the State. Obviously, while dealing with the
aspect of educational courses being offered by the Institute of
Engineers, which has the flavor of public duty, the Chhattisgarh
High Court held in favour of the maintainability of the Writ Petition.
26. It is also pertinent to refer to a Full Bench judgment of
the composite High Court of Andhra Pradesh in the case of SKCC
Bank Limited, Amalapuram Vs. N.Seetharama Raju 10, wherein it was
held that Bye-laws made by Co-operative Society, registered under
the Andhra Pradesh Co-operative Societies Act do not have the
force of law and in the instant case also, the petitioner herein is
A.P.L.J> 1990(1) (HC) (FB)
asking for enforcement of Bye-laws, which deal with day-to-day
administration of the Institute of Engineers (India). Therefore, in
these circumstances, this Court has absolutely no hesitation to
hold that the present Writ Petitions filed under Article 226 of the
Constitution of India are not maintainable and are liable to be
dismissed. Accordingly, issue No.1 is answered against the
petitioner.
27. Issue No.2: In view of the findings on issue No.1, issue
No.2 needs no consideration.
28. For the aforesaid reasons, all the Writ Petitions are
dismissed. There shall be no order as to costs of the Writ Petitions.
As a sequel, interlocutory applications, if any, pending in
these Writ Petitions, shall stand closed.
___________________
A.V.SESHA SAI, J
Date: 23.12.2021
siva
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
WRIT PETITION Nos.9214 OF 2021, 11574 OF2021 AND 14395 OF 2021
Date: 23.12.2021
siva
