Gujarat High Court
The Rajkumar College Trust vs Hh Shri Padmarajsinhji ... on 2 September, 2021
Bench: Nikhil S. Kariel
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10967 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10968 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10969 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10971 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
============================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
============================================
THE RAJKUMAR COLLEGE TRUST
Versus
HH SHRI PADMARAJSINHJI GHANSHYAMSINHJI JADEJA
============================================
Appearance:
MR MEHUL S SHAH FOR MR JENIL M SHAH(7840) for the
for the Respondent(s) No. 2,3
MR PERCY KAVINA FOR MR SUJAY J ADESHRA(9325) for the
MR DEVANG NANAVATI FOR MK PUROHIT for the Respondent
No.1
============================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 02/09/2021
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
1. learned Senior Counsel Shri Mehul S. Shah with learned Advocate
Shri Jenil Shah for the petitioner in all the four petitions, learned Senior
Counsel Shri Percy Kavina with learned Advocate Shri S.J. Adesara for the
respondent No.1 in Special Civil Application No.10967 of 2021 and learned
Senior Counsel Shri Devang S. Nanavati with learned Advocate Shri M.K.
Purohit for the respondent No.1 in Special Civil Application Nos.10968 of
2021, 10969 of 2021 and 10971 of 2021 and learned AGP Shri Ishan Joshi
for respondent No.2 in all four matters.
2. In all four matters, orders passed by the respondent No.3 Election
Officer for the election to Rajkumar College Trust, Rajkot is under
challenge, whereby names of the respective respondent No.1 in all four
matters have been directed to be included in the electoral role of Rajkumar
College Trust for Group A - Salute States. Since the issue raised in all four
matters being similar, all the matters have been heard together and whereas
a common order is being passed in all four matters.
3. At the outset, learned Senior Counsel Shri Kavina and learned Senior
Counsel Shri Devang Nanavati have raised a preliminary objection with
regard to the maintainability of the present petition before this Court.
4. Learned Senior Counsels for the respondent No.1 in all four matters
have submitted that the order under challenge is passed by an Election
Officer of a Public Trust and whereas it is neither a statutory nor a public
authority against the order of which a writ petition invoking jurisdiction
under Article 226 of the Constitution of India would lie. It is submitted by
the learned Senior Counsels that there is neither any issue of public law
involved nor public law element involved and hence, a writ petition before
this Court would not be maintainable. Learned Senior Counsels have further
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submitted that apart from the issue of maintainability of the petitions, since
the petitioners have challenged an order of including names of voter in
voters' list therefore, as per the law laid down by the Full Bench of this
Court in the case of Daheda Group Sava Sahkari Mandali Ltd. Vs. R.D.
Rohit reported in 2006(1) GCD 211, a writ petition under Article 226 would
not lie against the same. Learned Senior Counsels would qualify their
submissions made by relying upon the judgment of the Full Bench as stated
hereinabove by submitting that while the findings of the Full Bench was
with regard to Rule 28 of the Gujarat Agricultural Marketing Produce
Committee Rules, 1965, yet according to the Learned Senior Counsels,
findings of the Full Bench would apply with equal or even more force in the
facts of the present case, more particularly, since the said decision was with
regard to an election being held under the Statute whereas in the present
case, the election being held as per the Rules of the Trust. Learned Senior
Counsels for the respondent No.1 have further submitted that the petitioner
has an alternative efficacious remedy in approaching the competent
Authority under Section 22 of the Gujarat Public Trust Act and whereas
according to the learned Senior Counsels, the position is no more res
integra as in similar circumstance, learned Singe Judge had arrived at such
findings which had been upheld by a Division Bench of this Court in
Special Civil Application No.5103 of 2008 and Letters Patent Appeal
No.310 of 2008 respectively. Learned Senior Counsels have therefore,
submitted that since the election is of a Charitable Trust and the order being
passed by an Election Officer of the said Trust, therefore, the writ petition
would not lie, inclusion of names in the voters' list could not be termed as
an extraordinary circumstances, warranting interference under Article 226 of
the Constitution of India and on the ground of the petitioners having an
alternative efficacious remedy in filing application under Section 22 of the
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Gujarat Public Trust Act, therefore, this writ petition may not be entertained
by this Court and the same may be rejected.
4.1 Apart from the submissions with regard to the maintainability of the
present petition, learned Senior Counsels have submitted that present
petition also requires to be rejected on the ground of material suppression
of the facts. In this regard, attention of this Court is drawn to an order of
the learned Joint Charity Commissioner dated 01.01.2020 in Misc.
Application No.26 of 2019 which has been placed in a paper-book in
Special Civil Application No.10.968 of 2021 and whereas it is submitted by
the learned Senior Counsel that the said order of the Joint Charity
Commissioner was absolutely relevant and ought to have been produced on
record. It is further submitted that by now, it is well settled proposition that
any person, who invokes jurisdiction of any Court should come with clean
hands disclosing all material facts relevant for the purpose of adjudicating
the lis between the parties. It is submitted that the order of the Joint Charity
Commissioner dated 01.01.2020 being one of the most relevant documents
for determining the dispute between the parties, ought to have been placed
before this Court and having not done so, the petitioner has suppressed the
material facts before this Court and therefore, on that count itself, the
present petition may be dismissed by this Court.
5. As against the same, learned Senior Counsel Shri Mehul S. Shah on
behalf of the petitioner has strongly opposed the preliminary objection and
has submitted that (1) the Election Officer has been appointed by an order
passed by the Joint Charity Commissioner and hence, the Election Officer is
a statutory authority, (2) the Election Officer is a delegatee of the Joint
Charity Commissioner, therefore, the impugned order passed by the
Election Officer should be construed as being passed by the Charity
Commissioner under the Act, (3) the Election Officer by way of the
impugned order has adjudicated a dispute between the parties and therefore,
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essentially he was acting as an Adjudicating Authority or a Judge and thus,
his order would be amenable to writ jurisdiction, (4) that the Election
Officer is essentially discharging public duties inasmuch as the issue of
Election to the Rajkumar College Trust would affect a segment of the
society and thus, the writ petition would lie, (5) assuming without admitting
that the Election Officer even if however exercising jurisdiction as an
officer of the Trust then also, since the Trust is public educational trust,
undertaking function of the State, since its main object is to impart
education to the students studying in the institution runs by the Trust and
therefore, a writ petition would be maintainable challenging the order of an
Election Officer of the said Trust.
It is further submitted by the learned Senior Counsel that Section 6
of the Gujarat Public Trust Act envisages appointment of Subordinate
Officer by the State Government and the said Section also envisages
delegation of such power of the State to the Charity Commissioner for
appointing the Subordinate Officer. It would be submitted that the Election
Officer has been appointed in exercise of powers available under Section 6
of the Gujarat Public Trust Act. It is further submitted that the Election
Officer is appointed by the Charity Commissioner in an application under
Section 41(A) of the Act and whereas it is submitted that Section 41A
confers wide powers upon the Charity Commissioner to issue direction
including the direction to the Trust for holding election. It is submitted that
under Section 74 of the Gujarat Public Trust Act, all inquiries are treated to
be judicial proceedings within the meaning of Sections 193, 219 and 228 of
the Indian Penal Code and therefore, the Election Officer being delegatee
on behalf of the Charity Commissioner and since the proceedings being in
the nature of judicial proceedings and more particularly, since the Election
Officer has adjudicated a dispute between the parties and since the Election
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Officer himself states about being an Officer nominated by the Charity
Commissioner for all these reason, present petition would be maintainable.
6. Learned Senior Counsel has relied upon the decision of the Hon'ble
Supreme Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust and others Vs. V.N. Rudani
and others reported in 1989 (2) SCC 691 and has submitted that the
Hon'ble Supreme Court in the said judgment has inter alia held that a
mandamus cannot be denied on the ground that the duties sought to be
enforced is not imposed by the statute. Furthermore, the Hon'ble Supreme
Court has also inter alia held that if nature of duties imposed upon a body
concerned is in the nature of positive obligation then mandamus cannot be
denied. Learned Senior Counsel has further relied upon decision of the
Hon'ble Supreme Court in case of Federal Bank Ltd. Vs. Sagar Thomas and
Ors. reported in 2003(10) SCC 733 to submit that in the said judgment, the
Hon'ble Supreme Court has held where a private body is discharging public
duties or positive obligation of public nature then a writ petition under
Article 226 would lie. Learned Senior Counsel further relied upon the
decision of the Hon'ble Supreme Court in the case of Binny Ltd. V/s.
Sadasivan and Ors. reported in 2005 (6) SCC 657 and submitted that in said
judgment, the Hon'ble Supreme Court has held that a writ of mandamus
could be issued even against a private authority, condition precedent being
that such authority must discharge a public function and the decision sought
to be corrected must be in discharging of public duties. Learned Senior
Counsel has further relied upon the decision of the Hon'ble Supreme Court
in the case Ramesh Ahluwalia Vs. State of Punjab and others reported in
2012(12) SCC 331 where the Hon'ble Supreme Court has taken a view that a
writ petition would be maintainable even against the private unaided
educational institution, which is engaged in the public functions. Placing
reliance on the judgment as above, learned Senior Counsel Shri Shah has
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submitted that since the Election Officer is a delegatee of the Charity
Commissioner and since the issue is with regard to the election to a Trust,
which is engaged in imparting education to the children, which is essentially
a public function, therefore, a writ petition against the order impugned
would be maintainable before this Court. Learned Senior Counsel has
further relied upon the decision in the case of Ishwar Singh Vs. State of
Rajasthan reported in 2005(2) SCC 334 with regard to the meaning of the
word "delegate" and the decision of the High Court of Bombay in the case
of Imperator Vs. P.A. Joshi reported in AIR 1948 Bombay 248 with regard
to the term "Judge".
6.1 Learned Senior Counsel Shri Shah has further relied upon the
decision of the Hon'ble Supreme Court in the case reported in the case of
Benedict Denis Kinny Vs. Tulip Brian Miranda & Ors. reported in AIR
2020 SC 3050 to submit that in the said judgment, the Hon'ble Supreme
Court has inter alia held that while the jurisdiction of the High Court under
Article 226 is extraordinary and discretionary and it is the look out of the
High Court to see that when injustice has resulted on account of any
decision of the Constitutional Authority, Tribunal, Statutory Authority or
the Authority within under Article 12 of the Constitution of India and
remedy the injustice. It is submitted in this context that the respondent
Election Officer has done a gross injustice by including the name of the
respondent No.1 in respective petition in the electoral list and therefore,
exercising jurisdiction under Article 226 of the Constitution of India, this
should remedy the injustice.
7. As against the same, learned Senior Counsel Shri Kavina has
submitted that (1) the Election Officer is not a delegatee of the Charity
Commissioner rather the Election Officer had been appointed by the
Charity Commissioner being a Member of the Registry of the Joint Charity
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
Commissioner, who had passed an order, more particularly, since the Trust
itself was not conducting the election.
8. As far as Section 6 of the Gujarat Public Trust Act is concerned, it is
submitted by the learned Senior Counsel that said Section envisages
appointment of Officer and other staff and it is submitted that the
appointment envisaged under Section 6 of the Act is by the State
Government and not by the Charity Commissioner and in any case, the
appointment of the Election Officer cannot be construed as being under
Section 6 of the Act. It is sought to be contended by the learned Senior
Counsel that education is not a State function and that only on account of
fact that the institution is imparting education that by itself would not be
sufficient to make the said Authority amenable to writ jurisdiction. As far as
the decision of the Hon'ble Supreme Court in the case of Andi Mutka
(Supra). Learned Senior Counsel has submitted that in later decision of the
Hon'ble Supreme Court in the case of Ramkrishna Mission and Anr. Vs.
Kago Kunya and Ors. reported in 2019 (16) SCC 303 and the decision in
the cases of Andi Mukta and Federal Bank, Binny, Ramesh Ahluvaliya, all
relied upon by the petitioners have been distinguished. According to the
learned Senior Counsel in the case of Ramkrishna Mission (Supra), the
Hon'ble Supreme Court inter alia held that an organization can be held to
be discharging a public function if the function is of such character that it is
closely related to the functions which are performed by the State in its
sovereign capacity. The Hon'ble Supreme Court has also held that the
character of an organization as public authority would be dependent on the
circumstances of the case. According to the learned Senior Counsel, the
petitioner trust runs educational institution and whereas the institution is
not a grant-in-aid institution and therefore, there is no element of State
Control over the said institution and that merely on account of the fact that
the Trust is running a school may not be construed as relevant factor for the
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
institution to be held as discharging of a public function. Even otherwise, it
is submitted by the learned Senior Counsel that dispute is with regard to an
order passed by the Election Officer of the Trust, therefore, such an order
may not be stated to be passed by the Public Authority and hence, a writ
may not be lie.
8.1 Learned Senior Counsels have further submitted that vide
Notification dated 17.06.2021, the election process has started and having
regard to the settled position of law in this regard that this Court may not
interfere with the process of election, more particularly, in view of the
efficacious remedy available to the petitioner of filing an application under
Section 22 of the Gujarat Public Trust Act, in the nature of an Election
Petition after the election, this Court may not entertain the present petition.
9. Heard learned Senior Advocates for the parties and perused the
records. With regard to the preliminary objection raised by the respondent
No.1 in respective petition as regards the maintainability of the present
petition, learned Senior Counsels for the respondent No.1 in respective
petitions have contended that orders under challenge in each of the petition
are passed by an Election Officer of the Public Trust and whereas the
Election Officer is neither a statutory nor a public authority and further
since there is public law element involved in the dispute, therefore, a writ
petition under Article 226 of the Constitution of India would not be
maintainable. On the other hand, learned Senior Counsel for the petitioner
has sought to contend that the Election Officer being appointed by an order
of the Joint Charity Commissioner and therefore, being a delegatee of the
Joint Charity Commissioner, the Election Officer is a statutory authority and
more particularly, since the Election Officer has adjudicated a dispute
between the parties, therefore, the impugned order would be amenable to
writ jurisdiction. In the alternative, it has been contended by the learned
Senior Counsel for the petitioner that the Election Officer is essentially
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discharging public functions since the election to the trust would effect a
segment of the society and furthermore, since the main object of the trust
is between the institution which imparting education, therefore, a writ
petition would be maintainable.
10. While learned Senior Counsels for the respondent No.1 have raised
few other contentions mainly with regard to writ petition being maintainable
for the issue with regard to inclusion or exclusion in voters' list, the
petitioner having an alternative efficacious remedy under Section 22 of the
Gujarat Public Trust Act, the election process having been declared and
hence, this Court being requested not to interfere and contention with
regard to the suppression of material facts yet, this Court deems it
appropriate to decide the issue of maintainability of the present writ
petition as a preliminary issue and only after the same has been decided, if
required, other issues would be required to be taken up.
11. At the outset, it is required to be noted that the order under challenge
has been passed by the Election Officer of Rajkumar College Trust Election
- 2021, Rajkot and whereas such an Election Officer had been appointed by
the Joint Charity Commissioner, Rajkot vide order dated 28.11.2019 in the
proceedings preferred against the petitioner trust under Section 41A of the
Gujarat Public Trust Act. The order passed by the Charity Commissioner
being under Section 41A of the Gujarat Public Trust, this Court deems it
appropriate to reproduce the same herein below for better appreciation.
"Section 41A : Power of Charity Commissioner to issue direction to
trustees and other persons:
(1) Subject to the provisions of the Act, the Charity Commissioner
may, from time to time, issue directions to any trustee of a public
trust or any person connected therewith to ensure that such trust is
properly administered and the income thereof is properly accounted
for or duly appropriated and applied to the object and for the
purposes of the trust.
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(2) It shall be the duty of every such trustee and person to comply
with a direction issued to him under Sub-Section (1).
12. From the bare perusal of the Section, it can be made out that the
Charity Commissioner is empowered to issue directions to the Trustee of
the public trust or any person connected thereof for ensuring that the Trust
is properly administrated. As held by this Court in the case of Syedna
Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi
Bohra Community Vs. Charity Commissioner, Gujarat State, Ahmedabad
and Others reported in 1992 GLH 1 331, a direction of the Charity
Commissioner under Section 41A presupposes that there is no proper
administration of the Trust. In the instant case, a grievance had been raised
before the Charity Commissioner in an application under Section 41A being
Application No.41/15/2018 inter alia that the elections of the Trust were
not being held by the present management and it is in such a context that
the order appointing the Registrar of the Office of the Joint Charity
Commissioner as an Election Officer came to be issued. The Election
Officer had been given authority by Joint Charity Commissioner to appoint
more than one employee for assisting the Election Officer and whereas the
Election Officer had also been provided with remuneration for conducting
the election and also for paying remuneration to the person, who had been
appointed for assisting in conduct of the election. Learned Senior Counsels
Shri Shah for the petitioner had contended that the Election Officer was a
delegatee of the Charity Commissioner and thus, any order by such
delegatee has to be treated as the order by the Charity Commissioner i.e. the
delegatee and thus amenable to writ jurisdiction. Learned Senior Counsel
has relied upon the decision of the Hon'ble Supreme Court in the case of
Ishwar Singh (Supra). Learned Senior Counsel has relied upon paras 8, 11
and 12 of the said judgment to submit that the Charity Commissioner had
conferred the authority available to him upon the Election Officer to
conduct the election and therefore, the Election Officer was a delegatee of
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the Charity Commissioner. Paras 8,11 and 12 are quoted herein below for
better appreciation.
"8. It is an accepted position in law that to 'delegate' to another is
not to denude yourself. As was observed by Wills, J. in Huth v.
Clarke:
"In my opinion the word, in its general sense and as generally
used, does not imply, or point to, a giving up of authority, but
rather the conferring of authority upon someone else".
As observed by Lord Coleridge, C.J. in Huth QBD at 394, the word
'delegation' implies that powers are committed to another person or
body which are as a rule, always subject to resumption by the power
delegating. The person delegating does not denude himself. (Per
Wharton's Law Lexicon, 1976 Reprint Ed. at page 316). Delegation
implies also the power to withdraw delegation. As indicated in
Wharton's Law Lexicon, delegation is a sending away; a putting into
commission; the assignment of a debt to another; the entrusting
another with a general power to act for the good of those who
depute him. The word 'delegate' means little more than an agent. An
agent exercises no power of his own but only the powers of his
principal. The observation in Huth's case (supra) was referred to in
Roop Chand's case (supra). In general, a delegation of power does
not imply parting with authority. The delegating body will retain not
only power to revoke the grant, but also power to act concurrently
on matters within the area of delegated authority except in so far as
it may already have become bound by an act of its delegate. See
Battelley v. Finsbury Borough Council.
11. In Black's Law Dictionary, 6th Edition, the word 'delegate'
has been stated to mean a person who is appointed, authorized,
delegated or commissioned to act in the stead of another. Transfer
of authority from one to another. A person to whom affairs are
committed by another. 'Delegation' according to said dictionary
means, instructing another with a general power to act for the good
of those who depute him; transfer of authority by one person to
another.
12. According to Venkataramaiya's Law Lexicon, 'delegation' as the
word generally used does not imply a parting with powers by the
person who grants the delegation, but points rather to a conferring
of an authority to do things which otherwise the person would have
to do himself."
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A conjoint reading of the quoted paras leads to a conclusion that a
delegatee would be a person, who is appointed or authorized to act instead
of the delegator and whereas while delegation does not imply parting of the
powers by delegator but rather the same imply conferring of authority upon
the delegatee.
13. In the considered opinion of this Court, relying upon the
observations above that by appointing the Election Officer, the Charity
Commissioner was not delegating or parting with any of the powers
available to the Charity Commissioner under the Statute rather as envisaged
under Section 41A, the Charity Commissioner had issued a direction for
holding of election to achieve the aim of proper administration of the Trust
and whereas the Election Officer was appointed for facilitating the election.
Neither the Charity Commissioner had parted with any powers available to
him nor the Election Officer could be said to have been appointed or
authorized to act on behalf of the Charity Commissioner. Further, in the
considered opinion of this Court, Section 41A does not envisage any
delegation of powers rather it envisages direction for proper administration
of the Trust and since the Charity Commissioner did not have any power or
authority while exercising of jurisdiction under the said Section to delegate
the power or the authority available to him to any Subordinate, therefore,
the submission of learned Senior Counsel Shri Shah cannot be
countenanced.
14. That the finding referred to hereinabove would apply mutatis
mutandis, the submission of learned Senior Counsel that the Election
Officer being appointed by an order of the Joint Charity Commissioner,
hence, the Election Officer is Statutory Authority. That apart from the
findings hereinabove, since it has been sought to be contended by the
learned Senior Counsel that under Section 6 of the Gujarat Public Trust
Act, appointment of Subordinate Officer is envisaged and whereas the
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Election Officer should be deemed to be a Subordinate Officer appointed
under Section 6 and therefore, the order of such Subordinate Officer shall
be amenable to writ jurisdiction. A perusal of Section 6 clearly reveals that
while the State Government is empowered to appoint Subordinate Officer
for the purpose of carrying out the provision of this Act, the State is
further empowered to delegate its power to the Charity Commissioner, Joint
Charity Commissioner and Assistant Charity Commissioner to appoint
Subordinate Officers and servants. In the considered opinion of this Court,
the provision is a general power conferred upon the State or the Charity
Commissioner as the case may be, whereby Subordinate Officers are to be
appointed for the purpose of fulfilling the object and provisions of the Act.
Section 6 envisages the appointment of the Officer possessing the
prescribed qualification and further envisages assignment of powers, duties
and functions to Subordinate Officers under the Act. A general power to
appoint Subordinate Officers for carrying out the provisions of the Act
cannot be read to mean that the Election Officer appointed for the purpose
of conducting election of the petitioner Trust could be deemed to be a
Subordinate Officer, more particularly, since Section 41A of the Gujarat
Public Trust Act only envisages direction to be issued for better
administration of the Trust.
Learned Senior Counsel Shri Shah had also submitted that since the
respondent No.3 had adjudicated upon the dispute between the parties and
he was acting as a Judge and thus, his order would be amenable to writ
jurisdiction. Learned Senior Counsel has also relied upon the decision of the
Bombay High Court in the case of Imperator (Supra) to submit that when
the Authority passes definitive judgment when he acts as Judge as defined in
Section 19 of the Indian Penal Code and therefore, such decision is
amenable to writ jurisdiction to the said lis. Such a contention is absolutely
far fetched as inasmuch as the Election Officer had vide order impugned
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held that the name of the respondent No.1 is to be updated in electoral role
of the petitioner Trust and whereas in the considered opinion of this Court,
while such a decision may not be termed as an adjudication but in any case,
the Election Officer would not be termed as a Judge and merely on such
account, the order of the Election Officer would not be amenable to
interfere in the writ petition. The judgment relied upon by the learned
Senior Counsel Shri Shah was in context of the proceedings under Section
197 of the Code of Criminal Procedure, 1898 and whereas the observation
of the High Court of Bombay are not at all relevant for the purpose of
deciding the present issue.
15. A contention has been raised that the Election Officer was
discharging public duty, more particularly, since the issue of election to
Rajkumar College Trust would effect a segment of the society and thus
amenable to writ jurisdiction. Further, learned Senior Counsel in alternative
had also submitted that the Trust being a public educational Trust is
undertaking function of the State and therefore, writ petition challenging
the order of the Election Officer of the said Trust would be maintainable.
Since the issues are interconnected inasmuch as the Election Officer doing a
public function and / or the Trust having a public character being
interconnected are taken up for adjudication together. Essentially what is
sought to be contended by the learned Senior Counsel Shri Shah is that the
Election Officer and / or the Trust would fall in category "any person or
authority" under Article 226 of the Constitution of India and therefore, a
writ petition would lie. In this regard, learned Senior Counsel Shri Shah has
relied upon the decision of the Hon'ble Supreme Court in the cases of Andi
Mukta and Federal Bank, Binny and Ramesh Ahluvaliya (Supra). In the
judgment of Andi Mukta, the Hon'ble Supreme Court has inter alia stated
that the words 'any person or authority' used in Article 226 are not to be
confined only to Statutory Authorities and instrumentalities of the State and
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they may cover any other person or body performing public duty. The form
of body concerned is not relevant rather what is relevant is a nature of the
duty imposed on the body. In this regard, it is submitted by learned Senior
Counsel Shri Shah that the Election Officer discharging public duties as
election would be effecting a segment of the Society and on the other hand,
the Trust since it is imparting education and therefore, doing a State
function would also be termed as a public authority and therefore, either
way order of the Election Officer would be amenable to writ jurisdiction.
16. As against the judgment relied upon by learned Senior Counsel Shri
Shah, learned Senior Counsels Shri Kavina and Shri Nanavati have sought to
rely upon a decision of the Hon'ble Supreme Court in the case of
Ramkrishna Mission (Supra) and have submitted that the decisions relied
upon by learned Senior Counsel Shri Shah having been distinguished in later
judgment of Ramkrishna Mission, the same could not be applicable. Having
perused the judgments relied upon by learned Senior Counsel Shri Shah as
well as judgment in the case of Ramkrishna Mission (Supra), this Court is of
the considered opinion that the Hon'ble Supreme Court in the case of
Ramkrishna Mission has not distinguished the decision of Andi Mukta
(Supra) and later judgment rather in the considered opinion of this Court,
the Hon'ble Supreme Court had been pleased to explain the scope of Andi
Mukta and later judgments including Federal Bank, Binny, Ramesh
Ahuvaliya (Supra) relied upon by the petitioner. The Hon'ble Supreme
Court in the case of Ramkrishna Mission has inter alia relied upon the
observation of the Hon'ble Supreme Court in the case K.K. Saksena Vs.
International Commission on Irrigation & Drainage reported in 2015 4 SCC
670, inter alia held that a writ would not lie to enforce purely private law.
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In the case of K.K. Saksena (Supra), the Hon'ble Supreme Court has
discussed the issues with regard to the scope and extent of Article 226 of
the Constitution in detail and whereas the observation of the Hon'ble
Supreme Court are quoted herein below for the purpose of better
appreciation.
"14. We may also like to point out that the aforesaid examination of
the issue undertaken by the High Court is keeping in view the
principles laid down by this Court in catena of judgments and the tests
which are to be applied to arrive at the decision as to whether a
particular authority can be termed as 'State' or 'other authority' within
the meaning of Article 12. It took note of the Constitution Bench
decision in Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.,
wherein the following six tests were culled out from its earlier judgment
in the case of Ramana Dayaram Shetty v. International Airport
Authority of India & Ors: (Ajay Hasia case, SCC 737, para9)
"(1) One thing is clear that if the entire share capital of the corporation
is held by Government it would go a long way towards indicating that
the corporation is an instrumentality or agency of Government. (SCC
p.507, para 14)
(2) Where the financial assistance of the State is so much as to meet
almost entire expenditure of the corporation, it would afford some
indication of the corporation being impregnated with governmental
character. (SCC p.508, para 15)
(3) It may also be a relevant factor...whether the corporation enjoys
monopoly status which is State conferred or State protected. (SCC
p.508, para 15)
(4) Existence of deep and pervasive State control may afford an
indication that the corporation is a State agency or instrumentality.
(SCC p.508, para 15)
(5) If the functions of the corporation of public importance and
closely related to governmental functions, it would be a relevant factor
in classifying the corporation as an instrumentality or agency of
Government. (SCC p.509, para 16) (6) "Specifically, if a department of
Government is transferred to a corporation, it would be a strong factor
supportive of this inference' of the corporation being an
instrumentality or agency of Government. (SCC p.510, para 18)."
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
15. The Court also took into consideration and referred to the
following passage from the judgment in Pradeep Kumar Biswas & Ors.
v. Indian Institute of Chemical Biology & Ors.: (SCC page 134, para
40)
"40. The picture that ultimately emerges is that the tests
formulated in Ajay Hasia are not a rigid set of principles so that
if a body falls within any one of them it must, ex hypothesi, be
considered to be a State within the meaning of Article 12. The
question in each case would be - whether in the light of the
cumulative facts as established, the body is financially,
functionally and administratively dominated by or under the
control of the Government. Such control must be particular to
the body in question and must be pervasive. If this is found
then the body is a State within Article 12. On the other hand,
when the control is merely regulatory whether under statute or
otherwise, it would not serve to make the body a State."
16. The aforesaid judgment was relied upon by another
Constitution Bench in M/s. Zee Telefilms Ltd. & Anr. v. Union of
India & Ors. In that case, the Court was concerned with the issue as to
whether Board of Control for Cricket in India (BCCI) is a 'State' within
the meaning of Article 12 of the Constitution. After detailed
discussion on the functioning of the BCCI, the Constitution Bench
concluded that it was not a 'State' under Article 12 and made the
following observations in this behalf: (SCC page 681-82 para 30)
"30. However, it is true that the Union of India has been exercising
certain control over the activities of the Board in regard to
organising cricket matches and travel of the Indian team abroad as
also granting of permission to allow the foreign teams to come to
India. But this control over the activities of the Board cannot be
construed as an administrative control. At best this is purely
regulatory in nature and the same according to this Court in
Pradeep Kumar Biswas case is not a factor indicating a pervasive
State control of the Board."
17. Before arriving at the aforesaid conclusion, the Court had
summarized the legal position, on the basis of earlier judgments, in
para 22, which reads as under: (Zee Telefilms Ltd. Case, SCC page 679,
para 22)
"22. Above is the ratio decidendi laid down by a seven-Judge
Bench of this Court which is binding on this Bench. The facts
of the case in hand will have to be tested on the touchstone of
the parameters laid down in Pradeep Kumar Biswas case.
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
Before doing so it would be worthwhile once again to
recapitulate what are the guidelines laid down in Pradeep
Kumar Biswas case for a body to be a State under Article 12.
They are:-
"(1) Principles laid down in Ajay Hasia are not a rigid set
of principles so that if a body falls within any one of
them it must ex hypothesi, be considered to be a State
within the meaning of Article 12.
(2) The question in each case will have to be considered
on the basis of facts available as to whether in the light of
the cumulative facts as established, the body is financially,
functionally, administratively dominated, by or under the
control of the Government.
(3) Such control must be particular to the body in
question and must be pervasive.
(4) Mere regulatory control whether under statute or
otherwise would not serve to make a body a State."
32. If the authority/body can be treated as a 'State' within the
meaning of Article 12 of the Constitution of India, indubitably writ
petition under Article 226 would be maintainable against such an
authority/body for enforcement of fundamental and other rights.
Article 12 appears in Part III of the Constitution, which pertains to
'Fundamental Rights'. Therefore, the definition contained in Article 12
is for the purpose of application of the provisions contained in Part
III. Article 226 of the Constitution, which deals with powers of High
Courts to issue certain writs, inter alia, stipulates that every High Court
has the power to issue directions, orders or writs to any person or
authority, including, in appropriate cases, any Government, for the
enforcement of any of the rights conferred by Part III and for any
other purpose.
33. In this context, when we scan through the provisions of
Article 12 of the Constitution, as per the definition contained therein,
the 'State' includes the Government and Parliament of India and the
Government and Legislature of each State as well as "all local or other
authorities within the territory of India or under the control of the
Government of India". It is in this context the question as to which
body would qualify as 'other authority' has come up for consideration
before this Court ever since, and the test/principles which are to be
applied for ascertaining as to whether a particular body can be treated
as 'other authority' or not have already been noted above. If such an
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
authority violates the fundamental right or other legal rights of any
person or citizen (as the case may be), writ petition can be filed under
Article 226 of the Constitution invoking the extraordinary jurisdiction
of the High Court and seeking appropriate direction, order or writ.
However, under Article 226 of the Constitution, the power of the
High Court is not limited to the Government or authority which
qualifies to be a 'State' under Article 12. Power is extended to issue
directions, orders or writs "to any person or authority". Again, this
power of issuing directions, orders or writs is not limited to
enforcement of fundamental rights conferred by Part III, but also 'for
any other purpose'. Thus, power of the High Court takes within its
sweep more "authorities" than stipulated in Article 12 and the subject
matter which can be dealt with under this Article is also wider in
scope.
34. In this context, the first question which arises is as to what
meaning is to be assigned to the expression 'any person or authority'.
By catena of judgments rendered by this Court, it now stands well
grounded that the term 'authority' used in Article 226 has to receive
wider meaning than the same very term used in Article 12 of the
Constitution. This was so held in Shri Anadi Mukta Sadguru (supra).
In that case, dispute arose between the Trust which was managing and
running science college and teachers of the said college. It pertained to
payment of certain employment related benefits like basic pay etc.
Matter was referred to the Chancellor of the Gujarat University for his
decision. The Chancellor passed an award, which was accepted by the
University as well as the State Government and a direction was issued
to all affiliated colleges to pay their teachers in terms of the said award.
However, the aforesaid Trust running the science college did not
implement the award. Teachers filed the writ petition seeking
mandamus and direction to the trust to pay them their dues of salary,
allowances, provident fund and gratuity in accordance therewith. It is
in this context an issue arose as to whether writ petition under Article
226 of the Constitution was maintainable against the said Trust which
was admittedly not a statutory body or authority under Article 12 of
the Constitution as it was a private trust running an educational
institution. The High Court held that the writ petition was
maintainable and said view was upheld by this Court in the aforesaid
judgment.
35. The discussion which is relevant for our purposes is contained in
paras 15 to 20. However, we would like to reproduce paras 15, 17 and
20, which read as under: (Andi Mukti Sadguru Case, SCC page 698 -
700)
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
"15. If the rights are purely of a private character no mandamus
can issue. If the management of the college is purely a private
body with no public duty mandamus will not lie. These are two
exceptions to Mandamus. But once these are absent and when
the party has no other equally convenient remedy, mandamus
cannot be denied. It has to be appreciated that the appellants-
trust was managing the affiliated college to which public money
is paid as Government aid. Public money paid as Government
aid plays a major role in the control, maintenance and working of
educational institutions. The aided institutions like Government
institutions discharge public function by way of imparting
education to students. They are subject to the rules and
regulations of the affiliating University. Their activities are closely
supervised by the University authorities. Employment in such
institutions, therefore, is not devoid of any public character. (See
- The Evolving Indian Administrative Law by M.P. Jain (1983)
p.266). So are the service conditions of the academic staff. When
the University takes a decision regarding their pay scales, it will
be binding on the management. The service conditions of the
academic staff are, therefore, not purely of a private character. It
has super- added protection by University decisions creating a
legal right-duty relationship between the staff and the
management. When there is existence of this relationship,
mandamus cannot be refused to the aggrieved party.
xx xx xx
17. There, however, the prerogative writ of mandamusmus (sic)
confined only to public authorities to compel performance of
public duty. The 'public authority' for them means every body
which is created by statute - and whose powers and duties are
defined by statute. So Government departments, local
authorities, police authorities, and statutory undertakings and
corporations, are all 'public authorities;. But there is no such
limitation for our High Courts to issue the writ 'in the nature of
mandamus'. Article 226 confers wide powers on the High Court
to issue writs in the nature of prerogative writs. This is a striking
departure from the English law. Under Article 226, writs can be
issued to 'any person or authority'. It can be issued "for the
enforcement of any of the fundamental rights and for any other
purpose".
xx xx xx
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
20. The term "authority" used in Article 226, in the context,
must receive a liberal meaning like the term in Article 12. Article
12 is relevant only for the purpose of enforcement of
fundamental rights under Art.32. Article 226 confers power on
the High Courts 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."
17. Having elaborately discussed on this aspect, the Hon'ble Supreme
Court had come to a conclusion that if a person or the authority is a 'State'
within meaning of Article 12 of the Constitution a writ would lie though
even in such cases a writ may not be available to enforce private law right.
On the other hand, the Hon'ble Supreme Court has further concluded that
even if a person or authority does not come within the ambit of the term
'State' under Article 12 but is performing a public duty than a writ petition
would lie. The relevant conclusions of the Hon'ble Supreme Court in this
regard are found at para 43 and 45 of the said judgment, which are
reproduced herein below:
"43. What follows from a minute and careful reading of the
aforesaid judgments of this Court is that if a person or authority
is a 'State' within the meaning of Article 12 of the Constitution,
admittedly a writ petition under Article 226 would lie against such
a person or body. However, we may add that even in such cases
writ would not lie to enforce private law rights. There are catena
of judgments on this aspect and it is not necessary to refer to
those judgments as that is the basic principle of judicial review of
an action under the administrative law. Reason is obvious. Private
law is that part of a legal system which is a part of Common Law
that involves relationships between individuals, such as law of
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
contract or torts. Therefore, even if writ petition would be
maintainable against an authority, which is 'State' under Article 12
of the Constitution, before issuing any writ, particularly writ of
mandamus, the Court has to satisfy that action of such an
authority, which is challenged, is in the domain of public law as
distinguished from private law.
45. On the other hand, even if a person or authority does not
come within the sweep of Article 12 of the Constitution, but is
performing public duty, writ petition can lie and writ of
mandamus or appropriate writ can be issued. However, as noted
in Federal Bank Ltd., such a private body should either run
substantially on State funding or discharge public duty/positive
obligation of public nature or is under liability to discharge any
function under any statute, to compel it to perform such a
statutory function."
18. In view of the aforesaid proposition laid down by the Hon'ble
Supreme Court, what requires to be culled out is whether the Election
Officer or the Trust itself is a State within the meaning of Article 12 of the
Constitution of India. In this regard, the observation at para 15 relying
upon the decision of Pradeep Kumar Biswas Vs. Indian Institute of
Chemical Biology reported in (2002) 5 SCC 111 would be relevant i.e.
whether the body is financially, functionally, administratively domain by or
under control of the Government and such control must be particular to
the body in question and must be pervasive. In the instant case, as held by
this Court herein above, the Election Officer is neither a delegatee of the
Charity Commissioner nor exercised any powers other than those available
to him for holding election and on the other hand as regards the Trust, from
the recital found in the Rules for management of Rajkumar College Trust,
Rajkot, one finds the purpose for which the Trust had been created being
that "Rajkumar College is the name of College / School in Rajkot is also of
the foundation (now a Public Trust), both created by Rulers of Saurashtra
for General Rajwara Service in India and for education of the worthy scions
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
/ kumars of their houses (i.e. agnatic house-lineages), the proprietors of the
foundation".
19. From a perusal of the object of Trust which can be discerned from
recital quoted hereinabove and since it is not the case of the petitioner that
the trust is in any way under control or domain of the Government,
therefore, the Trust may not be termed as State under Article 12 of the
Constitution of India relying the proposition laying down in Pradeep
Kumar Biswas (Supra) referred to hereinabove.
20. On the other hand, whether the Election Officer or the Trust is
performing a public duty as noted by the Hon'ble Supreme Court in the
case of K.K. Saksena (Supra) relying upon the decision of Federal Bank that
private body should either runs substantially on State funding or discharge
duty / positive obligation of public nature or is under law to discharge any
function under any statute to compel it to perform any statutory function.
As found hereinabove, neither the Trust nor the Election Officer runs on
State funding, the question is whether they discharge any public duty or
positive obligation of public nature. In this regard, reliance can be placed to
the object of the trust from the recital quoted hereinabove and whereas the
trust had been created for running a College / School for catering to the
educational needs of a very limited section of the Society and that cannot
be stated to be performing any State function or discharging any public duty.
In this regard, the observations of the Hon'ble Supreme Court in the case
of Binni (Supra) can be relied upon, more particularly, at para 11 where the
Hon'ble Supreme Court held that "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."
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
21. In the present case, the body concerned i.e. the Trust does not seek
to achieve any collective benefit for public or for any section of the public
rather as observed hereinabove, the body seeks to cater to the benefit of a
very limited section of the Society. On the other hand, neither the Trust is
under any law to discharge any function under a statute nor is Election
Officer under any such obligation. What requires to be appreciated here is
that the Trust is not formed with the intend of discharging any public duties
rather as held hereinabove the very object of the Trust is to cater to the
educational needs of a limited segment of the society and on the other
hand, as far as the Election Officer is concerned, since the Election Officer
though appointed by the Charity Commissioner under exercise of
jurisdiction under Section 41A of the Gujarat Public Trust Act, yet remains
an Election Officer of the Trust and as found hereinabove and does not
discharge any public function or duties which would make an order passed
by such Election Officer amenable to the writ jurisdiction of the High
Court under Article 226 of the Constitution of India.
22. Again in decision of the Ramkrishna Mission (Supra), the Hon'ble
Supreme Court has inter alia observed at para 33:
"Before an organisation can be held to discharge a public function,
the function must be of a character that is closely related to functions
which are performed by the State in its sovereign capacity."
It has not been the case of the petitioner that the functions
performed by the Trust are closely related to those performed by the State
in its sovereign capacity, in any case, in the considered opinion of this
Court, since there is nothing on record to indicate that the Trust performed
the functions which are akin to those solely performed by the State,
therefore, in the considered opinion of this Court, a decision of an Election
Officer of the Trust would not be amenable to the writ jurisdiction, more
C/SCA/10967/2021 CAV JUDGMENT DATED: 02/09/2021
particularly, since the trust would not be a State under Article 12 of the
Constitution of India.
23. In view of the discussion and findings as hereinabove, this Court
comes to a conclusion that preliminary object as raised by the respondent
required to be upheld inasmuch as the petitions challenging the decision of
the Election Officer of the petitioner trust would not be amenable to the
writ jurisdiction of this Court under Article 226 of the Constitution of
India and therefore, the same are hereby dismissed as not maintainable.
Learned Senior Counsel Shri Mehul Shah has requested the Court
after passing of the judgment that since the election process is in progress
and since the petitioner intends to challenge the present decision, therefore,
this Court may stay the election process for some reasonable time. Such
request is strongly opposed by the learned Senior Counsel Shri Devang
Nanavati for the respondent No.1.
Having regard to the fact that even during the pendency of the
present petition, this Court has not granted any interim relief in favour of
the petitioner and moreover, since the Court has taken a view that present
petition is not maintainable under Article 226 of the Constitution of India,
therefore, such request cannot be acceded to. Suffice it to observe that the
vide order dated 23.08.2021, this Court had directed that the election
process would be subject to final decision of this Court in the present
petition and whereas such an interim relief is extended for a further period
of two weeks from the date of the order with a clarification that the
outcome of the election would be subject to result of the Letters Patent
Appeal, which may be filed by the petitioner against the present order.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
