Karnataka High Court
Mr. S. Padmanabhan vs Bangalore Turf Club Ltd on 13 September, 2023
Bench: Krishna S.Dixit
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NC: 2023:KHC:33028
RP No. 356 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
REVIEW PETITION NO.356 OF 2023
BETWEEN:
MR. S. PADMANABHAN,
AGED ABOUT 68 YEARS,
TRAINER, BANGALORE TURF CLUB LTD.,
RACE COURSE ROAD,
BENGALURU - 560 001.
RESIDENCE: 178/E, A.E.C.S. LAYOUT,
1ST CROSS, 1ST STAGE, SANJAYNAGAR,
BENGALURU - 560 094, INDIA.
...PETITIONER
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL, ALONG WITH
SRI. SURESH T S., ADVOCATE)
AND:
Digitally signed
by SHARADA 1. BANGALORE TURF CLUB LTD.,
VANI B A PRIVATE LIMITED COMPANY,
Location: HIGH RACE COURSE ROAD,
COURT OF BENGALURU - 560 001.
KARNATAKA REPRESENTED BY ITS CEO AND SECRETARY,
MR. KIRAN M K.
2. APPEAL BOARD,
BANGALORE TURF CLUB LTD.,
BENGALURU - 560 020
REPRESENTED BY ITS CHAIRMAN,
MR. SHIVAKUMAR KENNY.
3. STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL
SECRETARY OF FINANCE,
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RP No. 356 of 2023
VIDHANA SOUDHA, BANGALORE - 560 001.
...RESPONDENTS
(BY SRI. KIRAN KUMAR, HCGP FOR R-3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1 R/W SECTION 114 OF CPC, PRAYING TO I) REVIEW THE
FINAL ORDER AND JUDGMENT DATED 14/07/2023
(ANNEXURE-A) PASSED BY THIS HON'BLE COURT IN WRIT
PETITION NO. 12491/2023 ALLOWING THE PRESENT REVIEW
PETITION AND CONSEQUENTLY, RESTORE THE SAID WRIT
PETITION ON FILE FOR HEARING, AND II) PASS SUCH OTHER
OR FURTHER ORDER(S) AS THIS HON'BLE COURT MAY DEEM
FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE
PRESENT CASE AND IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This Petition seeks review of the judgment dated
14.07.2023 whereby this Court whereby this Court
declined indulgence in W.P.No.12491/2023 filed by him
essentially on two grounds namely, the impugned action
did not have sufficient elements of public law and the
Respondent - Turf Club is not an instrumentality of the
State under Article 12 of the Constitution of India.
2. Learned Sr. Advocate appearing for the
Petitioner presses into service a recent decision of the
Apex Court in KAUSHAL KISHOR VS. STATE OF UTTAR
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PRADESH & OTHERS (2023) 4 SCC 1 to contend that the
Writ Jurisdiction constitutionally vested under Articles 226
& 227 can be invoked even when the answering
Respondent is not Article 12 Entity. He draws attention of
the Court to paragraph 83 of the Judgment which reads as
under:
"83. Thus, the answer to Question No. 2 is
partly found in the 9 Judge Bench decision in
Justice K.S. Puttaswamy(Privacy-9 J.)20 itself.
We have seen from the line of judicial
pronouncements listed above that after A.K.
Gopalan vs. State of Madras101 lost its hold, this
Court has expanded the width of Article 21 in
several areas such as health, environment,
transportation, Education and Prisoner's life
etc. As Vivian Bose, J., put it in a poetic
language in S. Krishnan vs State of Madras102:
(S. Krishnan case102, SCC p.524, para 63)
"63. Brush aside for a moment the
pettifogging of the law and forget for the
nonce all the learned disputations about
this and that, and "and" or "or ", or
"may" and "must ". Look past the mere
verbiage of the words and penetrate
deep into the heart and spirit of the
Constitution." (emphasis supplied)
The original thinking of this Court that
these rights can be enforced only against the
State, changed over a period of time. The
transformation was from "State" to
"Authorities" to "instrumentalities of State" to
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RP No. 356 of 2023
"agency of the Government" to "impregnation
with Governmental character" to "enjoyment of
monopoly status conferred by State" to "deep
and pervasive control103 to the "nature of the
duties/functions performed"39. Therefore, we
would answer Question No. 2 as follows:
"A fundamental right under Article 19/21
can be enforced even against persons
other than the State or its
instrumentalities"
3. Having heard the learned Sr. Advocate
appearing for the Review Petitioner and having perused
the Apex Court Ruling, this Court declines indulgence in
the matter and reasons for this are not far to seek: firstly,
what the Apex Court has observed in KAUSHAL KISHORE
supra, is only a reiteration of a principle of law of writs
namely a writ petition for the enforcement of Fundamental
Rights is maintainable even when the answering
Respondent is not a State Entity under Article 12.
However, it is conditioned by one requirement that the
impugned action should have sufficient public law
elements as discussed in LIC OF INDIA VS. ESCORTS LTD
(1986) 1 SCC 264. The decision highlights a great shift
from status of the answering parties to the nature of their
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action. It hardly needs to be stated that, even when the
answering party is a State Entity still, a writ petition may
not lie if its action is not animated by sufficient public law
elements.
4. Mr.Uday Holla's submission that the Racing
Monitoring Committee is constituted by virtue of State
Government's order in the Turf Club may be true.
However, that per se does not metamorphise the Turf Club
into a State Entity under Article 12. What is necessary is a
pervasive control of the State in the affairs of the Entity
concerned as contradistinguished from "some control". In
a constitutionally ordained State like ours, almost
invariably the authorities exercise some interference in the
affairs of persons & bodies of people, which the jurists
metaphored "from cradle to the grave", howsoever little it
may be. That would not make the persons or such bodies
State Entities or their acts as public functions.
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In view of the above, this Review Petition being
devoid of merits is liable to be rejected and accordingly, it
is, in limine.
Sd/-
JUDGE
ABK
