R.S. Rawat vs Uoi And Ors.
2013 Latest Caselaw 4669 Del

$~R-71
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) 1237/1999
%                                                                 08.10.2013

R.S. RAWAT                                    ..... Petitioners
                          Through None

                          versus

UOI AND ORS.                                  ..... Respondents

Through CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The petitioner was an employee of respondent No. 2-Central Board of

Irrigation and Power. Respondent No. 2 in the counter-affidavit has taken

an objection that the respondent No. 2 is not a State and hence not amenable

to the jurisdiction under Article 226 of the Constitution of India.

2. I have in a bunch of cases with lead case being W.P.(C) 3934/1998

titled as H.S. Rawat vs. Central Board of Irrigation and Power & Ors.

decided on 18.09.2013 held that respondent No. 2- Central Board of

Irrigation and Power is not a State. The relevant paras of the judgment in

the case of H.S. Rawat vs. Central Board of Irrigation and Power & Ors.

(supra) are 4,5,6,8 & 9 which read as under :

"4. The law with respect to an entity or an autonomous organization being or not being an instrumentality of State under Article 12 of the Constitution of India is now well settled. Two most important aspects are; first, whether the majority funding of the entity is by the Government and which shows consequent control of the entity by the Government; and the second is that even if the funding is not substantial yet, it is the Government which controls the entity by means of its nominees in the Government Body of the entity.

5. A reading of the affidavit dated 5.9.2013 filed by the respondent No. 1 shows the following:

(i) The Government of India has stopped providing funds from 1975 and before which a sum of ` 20,000/- per annum used to be provided to the Board for its up-keep. The balance sheets and profit loss accounts which have been filed with this affidavit dated 5.9.2013 also shows that there is no overwhelming contribution of the Government, much less towards the control to be exercised by the Government.

(ii) Though the members of the respondent No. 1 include Government organizations, State Boards, however, private membership is permitted and in fact exists. List of members, which are filed along with this affidavit dated 5.9.2013, shows membership both of Government organizations/State Boards as also private membership. There are 98 Government organizations and 63 private organizations who are members. All these members contribute subscriptions and other fees which is the basis of funding of the respondent No. 1.

(iii) Respondent No. 1 in a Public Interest Litigation being 13170-71/2005 titled as Staff Welfare Association of CBIP against the respondent No. 1-Board, on the directions of a Division Bench of this Court, Ministry of Water Resources filed an affidavit that respondent No. 1 is no more under the control of the Ministry which has no connection with the respondent No.1-Board.

(iv) Accounts of the respondent No. 1-Board are audited by

private Chartered Accountants and not by the Government or its agencies.

(v) The functions of the Board are not Government functions which can be said to be public functions. Respondent No. 1 performs functions of holding various conferences in the field of water resources, power and renewal energy and research besides engaging itself in publication of manuals, guidelines, special reports etc in related fields.

6. In my opinion, therefore, it is quite clear that the Government does not control the functioning and working of the respondent No. 1-Board. Government is not in overall charge and control of the respondent No. 1-Board either through its nominees or otherwise. The rules and regulations of the respondent No. 1-Board also does not entitle Government predominance in running of the functions of the board. Merely because majority of organizations who are members of the respondent No. 1-Board are Government organizations/Electricity Board will not make the respondent an instrumentality of the State because merely on account of membership of Government organization in a private body such a body cannot become an instrumentality of the State, once, it is found that Governmental control is not existing and there is no parent Ministry of the Union of India under which the respondent No. 1 works. I may note that simply because the Government organizations would contribute to the subscription and fees payable to the respondent No. 1 cannot mean that Government would be funding the respondent No. 1 because if Government organizations are members of a private body, surely Government funds are to come in, but the same is not with the ultimate object of control over of the respondent No. 1. It is not unknown that Government organizations are members of various private Clubs, but surely it cannot be argued on that count that the private body or private Club will become State or instrumentality of State under Article 12 of the Constitution of India. It is also extremely relevant that in a Public Interest Litigation the respondent No. 1 has given a specific affidavit that there is no control of any Ministry of the Government of

India so far as the respondent No. 1 is concerned.

8. I may state that counsel for the petitioner did seek to argue on the basis of unamended earlier Rules and Regulations as if only Government organizations and State Electricity Boards or Water Boards can be members of the respondent No. 1-Board, however, I note that along with the affidavit dated 5.9.2013, the respondent No. 1 had filed its present Rules and Regulations ( as amended) and as per which now besides the Government organizations and State Boards who can be members, private persons or entities can also be members. As already stated, it is pursuant to this provision in the Rules that around 63 private members have membership in the respondent No. 1.

9. In view of the above, I do not find that respondent No. 1- Board is an instrumentality of State under Article 12 of the Constitution of India. The respondent No. 1 is also performing those functions which cannot be said that they are public functions/public duties. Therefore, the writ petition under Article 226 of the Constitution of India would not lie."

3. Adopting the ratio in the case of H.S. Rawat vs. Central Board of

Irrigation and Power & Ors. (supra) this writ petition is also dismissed as

not maintainable as respondent No. 2- Central Board of Irrigation and Power

is not a State and is also not doing any public function/public duty. Parties

are left to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 08, 2013 godara