[Cites 54, Cited by 0]
Karnataka High Court
Sri. Karibasavaraj Badami vs The Deputy Registrar Of Societies on 27 January, 2026
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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®
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 27TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 103179 OF 2025 (CS-RES)
BETWEEN
1 . SRI. KARIBASAVARAJ BADAMI
S/O. LATE SHIVAYOGAPPA BADAMI,
AGED ABOUT 49 YEARS,
OCC. AGRICULTURE AND BUSINESS,
MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY,
R/O. HAGARIBOMMANAHALLI,
VIJAYANAGAR DISTRICT-583212
2 . SRI. DARUR SHANTANAGOUDA
S/O. MALLIKARJUNGOUDA,
AGED ABOUT 57 YEARS,
OCC. AGRICULTURE,
MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY,
Digitally signed R/O. WARD 18, S. N. PETE,
by SHWETHA NEAR MMTC KACHERI,
RAGHAVENDRA
BALLARI, BALLARI DISTRICT-583212
Location: HIGH
COURT OF ...PETITIONERS
KARNATAKA (BY PROF. RAVI VARMA KUMAR., SR. ADVOCATE FOR
SRI. DESAI SUNIL SHANTAPPA., ADVOCATE)
AND
1. THE DEPUTY REGISTRAR OF SOCIETIES
BALLARI DIVISION, BALLARI,
JANATA BAZAR BUILDING,
BALLARI, DIST. BALLARI-583103
2. THE VEERASHAIVA VIDYA VARDHAKA SANGHA,
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GANDHINAGAR, BALLARI,
DIST. BALLARI-583103
REP. BY ITS SECRETARY
3. SRI. KALGUDI MANJUNATH,
AGE. MAJOR,
OCC. MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY
AND AGRICULTURE,
R/O. KAMPLI, DIST. BALLARI-583132
4. SRI. GUDEKOTE NAGARAJ,
AGE. MAJOR,
OCC. MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY
AND AGRICULTURE,
R/O. SANDUR, DIST. BALLARI-583119
5. SRI. K. KOTRESH,
AGE. MAJOR,
OCC. MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY
AND AGRICULTURE,
R/O. HOSAPETE,
DIST. VIJAYANAGARA-583201
6. SRI. S. SATISH BABU,
AGE. MAJOR,
OCC. MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY
AND AGRICULTURE,
R/O. BASAVESHWAR NAGAR,
DIST. BALLARI-583101
7. SRI. MUNDASAD CHANNABASAVARAJ,
AGE. MAJOR,
OCC. MEMBER OF MANAGING COMMITTEE
OF THE 2ND RESPONDENT SOCIETY
AND AGRICULTURE,
R/O. KAKKAL ROAD,
GANDHI NAGAR,
BALLARI,
DIST. BALLARI-583101
.... RESPONDENTS
(BY SRI. JAYAKUMAR S. PATIL., ADVOCATE FOR
SRI. SRINIVAS B. NAIK., ADVOCATE FOR C/R2;
SRI. K.L. PATIL., ADVOCATE FOR R3, R5 TO R7;
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SRI. A.S. PATIL., ADVOCATE FOR R4 )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE ANY WRIT, ORDER,
OR DIRECTIONS IN THE NATURE OF CERTIORARI TO SET ASIDE THE
PROCEEDINGS OF THE MANAGING COMMITTEE NO.17 DATED
10.04.2025 (VIDE ANNEXURE-A) CONSEQUENTLY DECLARE ALL
FURTHER PROCEEDINGS ARE ILLEGAL AND NOT BINDING ON THE
PETITIONERS.
AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 25.10.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. Petitioners are before this court seeking for the
following reliefs:
A. ISSUE any Writ, Order, or directions in the nature of
Certiorari to set aside the proceedings of the Managing
Committee No.17 dated 10.04.2025 (vide Annexure-A)
consequently declare all further proceedings are illegal and not
binding on the Petitioners;
AA. ISSUE any Writ, Order, or directions in the nature of
Certiorari to set aside the proceedings of the Managing
Committee No: 18 dated 14.04.2025, bearing No.
WAS/Turtu.Ka.Ka.Sa: Sabhe/18/2024 (vide Annexure-H)
consequential intimation letter dated 14.04.2025,
VVAS/Aa.Mam.A./2025-26/49/1 bearing No. vide ANNEXURE-J
intimation letter dated 14.04.2025, bearing No.
WAS/Aa.Mam.A./2025-26/49/9 vide ANNEXURE-J1; Intimation
letter dated 14 04.2025, bearing VVAS/Aa.Mam.A./2025-
26/49/3 No. vide ANNEXURE-J2; intimation letter dated
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14.04.2025, bearing No. VVAS/Aa.Mam.A./2025-26/49/10
vide ANNEXURE-J3; and intimation letter dated 14.04.2025,
bearing VVAS/Aa.Mam.A./2025-26/49/8 No. vide ANNEXURE-
14; declare all further proceedings are Illegal and not binding
on the Petitioners;
B. Grant any other reliefs as deemed fit by this Hon'ble Court
in the facts and circumstances of the case including awarding
of the cost, in the interest of justice and equity.
2. Respondent No.2 is stated to be established in the
year 1918 and has been running educational
institutions to provide education in backward areas of
the earlier Bellary District and has established
different educational institutions. Nearly 50% of the
institutions are either affiliated with or come under the
grant provided by the Government of Karnataka, and
on that basis, it is contended that the Respondent
No.2-Society is a public institution and must be
construed as a State for all practical purposes.
3. The administration of Society being under the control
and supervision of the general body, all members of
Society being the members of the general body, there
are disputes which have arisen as regards the
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elections to Respondent No.2-Society held on
17.03.2024 and the subsequent proceedings taken up
by the elected Managing Committee, the Managing
Committee held a meeting on 14.04.2024 and elected
the President of the Governing Bodies of Subordinate
Institutions, through the process of election.
4. The election to the Governing Bodies was held on
14.04.2024, where the petitioner No.1 was elected as
the president of the governing body of certain
subordinate institution of respondent No.2. Petitioner
No.1, upon assuming the office of the president,
alleges that he has made efforts for the improvement
of the Institution under his chairmanship. When the
said institutions were in the process of development,
certain vested interests in the institutions wield ill will
against the Petitioners since the petitioners did not
yield to the alleged illegal demands and anti-social
elements.
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5. The president had submitted his resignation to the
post of the Respondent No. 2 institution, and one
other person had been elected on 1.03.2025.
6. The Petitioners alleged that they have a political
difference with the new president. The secretary of the
Respondent Society had called a meeting of the
Managing Committee on 5.04.2025. Notice of the
meeting having been issued on 29.03.2025, the
meeting was adjourned on 4.04.2025 and rescheduled
on 10.04.2025. In the adjourned meeting, though
there was no subject pertaining to no confidence
motion or removal of the petitioners from the post of
president, without there being any subject and without
there being any intimation to the Petitioners or the
members or requisition being there by the members,
the President had taken up the subject arbitrarily and
mentioned that 22 members had requested for no-
confidence motion against the petitioners and that the
petitioners were removed by way of a no-confidence
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motion without holding any motion or conducting
election. Thereafter, Respondents No.3 to 7 were
appointed to the governing bodies of the institutions
on the basis of an alleged resolution dated
14.04.2025. It is in that background that the
petitioners are before this court seeking the aforesaid
reliefs.
7. A preliminary objection was raised as regards the
maintainability of the writ petition since reliefs have
been sought against Respondent No. 2, which is a
Society registered under the Societies Registration Act
and Respondent No.3 to 7 are private individuals.
Though the Deputy Registrar of Society has been
made as a party, there is no relief which has been
sought for against the first respondent. All the reliefs
have been sought for as regards the actions of the
managing committee of Respondent No.2 and or
Respondents No.3 to 7. There being no relief sought
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against the official respondent, a writ petition is not
maintainable against a private party.
8. Prof.Ravi Verma Kumar, learned Senior Counsel,
appearing for the petitioners, submits that,
8.1. The petition is maintainable against the private
Society and its members since Respondent No.2
discharges public function of providing education
in the rural areas of the State of Karnataka.
8.2. His submission is that when any institution,
though private, is rendering public duties and
discharging public functions, it would be
amenable to writ jurisdiction. The respondent
No.2-Society being registered under the
Societies Registration Act, and the educational
institutions run by respondent No.2 being
registered under the Karnataka Education Act,
are governed by the Societies Registration Act
and the institutions are governed by the
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Karnataka Education Act, since respondent No.2-
Society and the educational institution render
public duty and render public service.
8.3. His submission is that the management and
operations of the Society, being an integral part
of the running of the Society, any disputes as
regards the management of a Society which
renders public service could also be amenable to
Article 226 of the Constitution.
8.4. His submission is that even if there are any
alternative remedies which are available, the
petitioners can exercise their rights and seek for
reliefs under Article 226 of the Constitution and
the existence of any other remedy cannot be a
bar for consideration of the claim of petitioners.
8.5. In support of the above, he relies on the decision
in Shri Chandrakant vs. Karnataka State Bar
Council, more particularly paras 13 to 41
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thereof, which are reproduced hereunder for
easy reference:
13. The point that falls for determination for the disposal
of the appeal is:
"1. Whether a writ petition under Article 226 is
maintainable against a private entity?
2. Whether the Bar Association is amenable to the writ
jurisdiction of the High Court under Article 226 of the
Constitution of India?"
14. Both the points are taken up together for
consideration and determination as common facts and
points of law are involved.
15. The points for consideration formulated above are no
more res integra as the Hon'ble Apex Court has in a
catena of rulings consistently held that the central theme
that requires to be looked into and ascertained is, as to
whether the entity would answer the definition of "other
authority" within the meaning of Article 12 and the term
"any person or authority" under Article 226 of the
Constitution of India and thereby render it amenable to
writ jurisdiction i.e., whether the said authority performs a
public duty or discharges an obligation of a public
character or the impugned order/proceeding is an affront
to the rule of law. In our considered opinion, the answer
to the above points for consideration is not far to seek.
The Hon'ble Apex Court in the case of Supreme Court Bar
Association and others vs. B.D.Kaushik reported in (2011)
13 SCC 774 has succinctly enunciated the concept,
character and the role of the Bar Association and its
unique position vis a vis other entities registered under
the Societies Registration Act. The discussion on the
subject as contained in para 27 to 29 are as under:
"27. The Supreme Court Bar Association, as the name
suggests, is a society primarily meant to promote the
welfare of the advocates generally practicing in the
Supreme Court. The name, i.e., the Supreme Court Bar
Association was formally registered under the Societies
Registration Act, 1860 only on 25.08.1999. One of the
prime objectives of the SCBA is to establish and maintain
adequate library for the use of the members and to
provide other facilities and convenience of the members.
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Thus, the formation of the SCBA is in the nature of aid to
the Advocates Act, 1961 and other relevant statutes
including Article 145 of the Constitution.
28. There is no manner of doubt that court annexed Bar
Associations constitute a separate class different from
other lawyers' associations such as Lawyers' Forum, All
India Advocates' Association, etc. as they are always
recognized by the court concerned. Court annexed Bar
Associations function as part of the machinery for
administration of justice. As is said often, the Bench and
Bar are like two wheels of a chariot and one cannot
function without the other. The court annexed Bar
Associations start with the name of the court as part of
the name of the Bar Association concerned. That is why
we have the Supreme Court Bar Association, Tis Hazari
District Court Bar Association, etc. The very nature of such
a Bar Association necessarily means and implies that it is
an association representing members regularly practicing
in the court and responsible for proper conduct of its
members in the court and for ensuring proper assistance
to the court. In consideration thereof, the court provides
space for office of the association, library and all
necessary facilities like chambers at concessional rates for
members regularly practicing in the court, parking place,
canteen besides several other amenities. In the functions
organized by the court annexed Bar Associations the
Judges participate and exchange views and ascertain the
problems, if any, to solve them and vice-versa. There is
thus regular interaction between the members of the Bar
Association and the Judges. The regular practitioners are
treated as officers of the court and are shown due
consideration.
29. Enrolment of advocates not practicing regularly in the
court is inconsistent with the main aim and object of the
association. No court can provide chambers or other
facilities for such outside advocates, who are not regular
practitioners. Neither the Association nor the court can
deal with them effectively if they commit any wrong.
There are sufficient indications in the Memorandum of
Association and the Rules and Regulations of SCBA, which
indicate that the Association mainly tries to promote and
protect the privileges, interest and prestige of the
Association and to promote union and cooperation among
the advocates practicing in the court and other
associations of advocates. This is quite evident if one
refers to sub- clause (iii) of clause (3) of the Aims and
Objectives of the Association. It is significant to note that
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the signatories of the Memorandum of Association,
namely, Members of the Executive Committee, whose
names are mentioned, are all regular practitioners, who
got the Association registered under the Societies
Registration Act, 1860. Mr. P.P. Rao, learned Senior
Counsel has given all credit for registration of Association
to Shri K.K. Venugopal, one of the senior-most counsel of
this Court."
(emphasis by this Court)
16. Notwithstanding the categorical and unimpeached
finding rendered by the Hon'ble Apex Court, this Court
endeavours to trace the observations of the Hon'ble Apex
Court in cases involving private entities discharging duties
with public character and where the Hon'ble Apex Court
has been pleased to hold that writ petition would be
maintainable against such a private entity.
17. One of the earliest in the line of such cases is the
ruling rendered by the Hon'ble Apex Court in the case of
Dwarka Nath, vs. Income Tax Officer, Special Circle, D
Ward, Kanpur and another reported in AIR 1966 SC 81,
while dealing with the objection regarding the
maintainability of a writ petition against an administrative
order of the Commissioner of Income Tax was pleased to
hold in paragraph 4 as under:
"4. We shall first take the preliminary objection, for if we
maintain it, no other question will arise for consideration.
Article 226 of the Constitution reads :
"... every High Court shall have power, throughout the
territories in relation to which it exercise jurisdiction, to
issue to any person or authority, including in appropriate
cases any Government, within those territories directions,
orders, or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other
purpose."
This article is couched in comprehensive phraseology and
it ex facie confers a wide power on the high court to reach
injustice wherever it is found. The constitution designedly
used a wide language in describing the nature of the
power, the purposes for which and the person or authority
against whom it can be exercised. It can issue writs in the
nature of prerogative writs as understood in England; but
the scope of those writs also is widened by the use of the
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expression "nature", for the said expression does not
equate the writs that can be issued in India with the those
in England, but only draws in analogy from them. That
apart, High Courts can also issue directions, orders or
writs other than the prerogative writs. It enables the High
Courts to mould the reliefs to meet the peculiar and
complicated requirements of this country. Any attempt to
equate the scope of the power of the High Court under
article 226 of the Constitution with that of the English
courts to issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over the years
in a comparatively small country like England with a
unitary form of Government to a vast country like India
functioning under a federal structure. Such a construction
defeats the purpose of the article itself. To say this is not
to say that the High Courts can function arbitrarily under
this Article. Some limitations are implicit in the article and
others may be evolved to direct the article through
defined channels. This interpretation has been accepted
by this Court in T. C. Basappa v. Nagappa, 1955 -1 SCR
250: and Irani v. State of Madras (AIR 1961 SC 1731).
(emphasis by this Court)
18. The Hon'ble Apex Court in Andi Mukta Sadguru Shree
Mukta Jeevandas Swami Suvarna Jayanti Mahotsav
Smarak Trust and others reported in (1989) 2 SCC 691,
while dealing with the issue of writ against a private body
was pleased to observe and hold in paragraphs 14, 15,
16, 17, 20 and 22 as under:
14. But here the facts are quite different and, therefore,
we need not go thus far. There is no plea for specific
performance of contractual service. The respondents are
not seeking a declaration that they be continued in
service. They are not asking for mandamus to put them
back into the college. They are claiming only the
terminal benefits and arrears of salary payable to them.
The question is whether the trust can be compelled to
pay by a writ of mandamus?
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--
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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
Administration 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 superadded
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.
16. The Law relating to mandamus has made the most
spectacular advance. It may be recalled that the remedy
by prerogative writs in England started with very limited
scope and suffered from many procedural
disadvantages. To overcome the difficulties, Lord
Gardiner (the Lord Chancellor) in pursuance of Section
3(1)(e) of the Law Commission Act, 1965, requested the
Law Commission "to review the existing remedies for the
judicial control of administrative acts and omission with
a view to evolving a simpler and more effective
procedure." The Law Commission made their report in
March 1976 (Law Commission Report No.73). It was
implemented by Rules of Court (Order 53) in 1977 and
given statutory force in 1981 by Section 31 of to
Supreme Court Act, 1981. It combined all the former
remedies into one proceeding called Judicial Review.
Lord Denning explains the scope of this "judicial review":
At one stroke the courts could grant whatever relief was
appropriate. Not only certiorari and mandamus, but also
declaration and injunction. Even damages. The
procedure was much more simple and expeditious. Just
a summons instead of a writ. No formal pleadings. The
evidence was given by affidavit. As a rule no cross-
examination, no discovery, and so forth. But there were
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important safeguards. In particular, in order to qualify,
the applicant had to get the leave of a judge.
The Statute is phrased in flexible terms. It gives scope
for development. It uses the words "having regard to".
Those words are very indefinite. The result is that the
courts are not bound hand and foot by the previous law.
They are to 'have regard to' it. So the previous law as to
who are--and who are not--public authorities, is not
absolutely binding. Nor is the previous law as to the
matters in respect of which relief may be granted. This
means that the judges can develop the public law as
they think best. That they have done and are doing."
(See--The Closing Chapter--by Rt. Hon Lord Denning
p.122).
17. There, however, the prerogative writ of mandamus
is confined only to public authorities to compel
performance of public duty. The 'public authority' for
them mean every body which is created by statute--and
whose powers and duties are defined by statue. 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 Courts 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".
20. The term "authority" used in Article 226, in the
context, must receive a liberal meaning unlike 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
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imposed. If a positive obligation exists mandamus
cannot be denied.
22. Here again we may point out that mandamus cannot
be denied on the ground that the duty to be enforced is
not imposed by the statute of this law, Professor De
Smith states: "To be enforceable by mandamus a public
duty does not necessarily have to be one imposed by
statute. It may be sufficient for the duty to have been
imposed by charter, common law, custom or even
contract." (Judicial Review of Administrative 'Act 4th Ed.
p. 540). We share this view. The judicial control over the
fast expanding maze of bodies effecting the rights of the
people should not be put into water- tight compartment.
It should remain flexible to meet the requirements of
variable circumstances. Mandamus is a very wide
remedy which must be easily available 'to reach injustice
wherever it is found'. Technicalities should not come in
the way of granting that relief under Article 226. We,
therefore, reject the contention urged for the appellants
on the maintainability of the writ petition."
(emphasis by this Court)
8.6. By relying on Chandrakant's case, he submits
that a Bar Association is held to be amenable to
writ jurisdiction under Article 226 of the
Constitution. This Court has categorically come
to the conclusion that a prerogative writ of
mandamus can be issued to any public authority,
which would mean any authority performing
public functions. Right to association being a
fundamental right, the same could be agitated
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before this Court. His submission is that the
term any person or authority used under Article
226 is not confined to statutory authorities and
instrumentalities of the State, but would cover
any other person or body performing public duty
and that the duty of such person or authority is
to be judged in the light of positive obligation
owed by the person or authority to the affected
party.
8.7. He relies on the decision in Mrs. Revathi vs.
Central Board of Secondary Education, more
particularly paras 17, 22 & 37 thereof, which are
reproduced hereunder for easy reference:
17. Per contra, Lieutenant Colonel Ganesh, learned
counsel for the respondents 4 & 5 contended that Writ
Petition is not maintainable as against the 5th respondent
which is a private educational institution as no grant
whatsoever provided by the Government and it is further
contended by him that State Government has no role
whatsoever in controlling the school run by the Army
Welfare Education Society (AWES). The Teachers and
Staff members have been appointed as per the bye-laws
of the AWES.
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22. The point that primarily arises for consideration in the
writ petitions is whether the writ is maintainable as
against the respondents 4 & 5.
37. When the issue with regard to maintainability of writ
petition against the Army Public School has reached its
finality and the SLPs filed by the Army Public School came
to be dismissed and the judgements of the High Court of
Uttarakhand at Nainital and High Court of Delhi have been
confirmed by the Supreme Court by dismissing the SLPs
filed by the Army Public School, WEB the respondents 4 &
5 cannot say that the school run by them is a private
unaided school and as such writ is not maintainable
against them. In Dr.Janet Jevapaul v. SRM University and
others also the Supreme Court has held that imparting
education is a public duty and as such writ petition is very
well maintainable. Therefore, the contention of the
respondents 4 & 5 in this regard is non-suited.
8.8. By relying on Revathi's case, his submission is
that any school run by the Army Welfare
Education Society would be amenable to writ
jurisdiction since imparting education is a public
duty.
8.9. He relies on the decision in Orissa
Administrative Tribunal Bar Assn. v. Union of
India1, more particularly paras 36-39 thereof,
1 (2023) 18 SCC 1
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which are reproduced hereunder for easy
reference:
36. The appellants are OAT Bar Association, Cuttack
and the Odisha Retired Police Officers' Welfare
Association. Both associations are registered under the
Societies Registration Act, 1860. Section 6 of the
Societies Registration Act, 1860 authorises registered
societies to sue and be sued. Both the appellants are
therefore organisations which are entitled to approach
the High Court under Article 226 of the Constitution.
37. Both the appellants have also alleged that an
existing legal right of theirs was violated. As held by
this Court in Ghulam Qadir v. Special Tribunal [Ghulam
Qadir v. Special Tribunal, (2002) 1 SCC 33] , the
existence of a legal right of the petitioner which is
alleged to have been violated is the foundation for
invoking the jurisdiction of the High Court under Article
226 : (SCC p. 54, para 38)
"38. There is no dispute regarding the legal proposition
that the rights under Article 226 of the Constitution of
India can be enforced only by an aggrieved person
except in the case where the writ prayed for is for
habeas corpus or quo warranto. Another exception in
the general rule is the filing of a writ petition in public
interest. The existence of the legal right of the
petitioner which is alleged to have been violated is the
foundation for invoking the jurisdiction of the High
Court under the aforesaid article. The orthodox rule of
interpretation regarding the locus standi of a person to
reach the court has undergone a sea change with the
development of constitutional law in our country and
the constitutional courts have been adopting a liberal
approach in dealing with the cases or dislodging the
claim of a litigant merely on hypertechnical grounds. If
a person approaching the court can satisfy that the
impugned action is likely to adversely affect his right
which is shown to be having source in some statutory
provision, the petition filed by such a person cannot be
rejected on the ground of his not having the locus
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standi. In other words, if the person is found to be not
merely a stranger having no right whatsoever to any
post or property, he cannot be non-suited on the
ground of his not having the locus standi."
(emphasis supplied)
38. In State of Orissa v. Ram Chandra Dev [State of
Orissa v. Ram Chandra Dev, 1963 SCC OnLine SC 179
: AIR 1964 SC 685] , a Constitution Bench of this Court
held that the existence of a right is the foundation of a
petition under Article 226 : (SCC OnLine SC para 8)
"8. ... Under Article 226 of the Constitution, the
jurisdiction of the High Court is undoubtedly very wide.
Appropriate writs can be issued by the High Court
under the said article even for purposes other than the
enforcement of the fundamental rights and in that
sense, a party who invokes the special jurisdiction of
the High Court under Article 226 is not confined to
cases of illegal invasion of his fundamental rights alone.
But though the jurisdiction of the High Court under
Article 226 is wide in that sense, the concluding words
of the article clearly indicate that before a writ or an
appropriate order can be issued in favour of a party, it
must be established that the party has a right and the
said right is illegally invaded or threatened. The
existence of a right is thus the foundation of a petition
under Article 226."
(emphasis supplied)
39. In this case, the Odisha Retired Police Officers'
Welfare Association alleged that its right to speedy
redressal of grievances (a facet of the fundamental
right of access to justice) was violated. OAT Bar
Association joined the Odisha Retired Police Officers'
Welfare Association in alleging that the State's action of
abolishing OAT violated its right under Article 14 of the
Constitution. Having alleged that these rights were
violated by the abolition of OAT, they were entitled to
invoke the High Court's jurisdiction under Article 226 of
the Constitution. Whether there is substance in the
grievance is a separate matter which has to be
analysed.
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8.10. By relying on Orissa Administrative Tribunal
Bar Association's case, he submits that so long
as there is any legal right which has been
violated, this Court could exercise powers under
Article 226 of the Constitution.
8.11. He relies on the decision in Union of India v.
Tantia Construction (P) Ltd2., more
particularly paras 33 and 24 thereof, which are
reproduced hereunder for easy reference:
33. Apart from the above, even on the question of
maintainability of the writ petition on account of the
arbitration clause included in the agreement between the
parties, it is now well established that an alternative
remedy is not an absolute bar to the invocation of the
writ jurisdiction of the High Court or the Supreme Court
and that without exhausting such alternative remedy, a
writ petition would not be maintainable. The various
decisions cited by Mr Chakraborty would clearly indicate
that the constitutional powers vested in the High Court
or the Supreme Court cannot be fettered by any
alternative remedy available to the authorities. Injustice,
whenever and wherever it takes place, has to be struck
down as an anathema to the rule of law and the
provisions of the Constitution.
34. We endorse the view of the High Court that
notwithstanding the provisions relating to the arbitration
2 (2011) 5 SCC 697
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clause contained in the agreement, the High Court was
fully within its competence to entertain and dispose of
the writ petition filed on behalf of the respondent
Company. We, therefore, see no reason to interfere with
the views expressed by the High Court on the
maintainability of the writ petition and also on its merits.
8.12. By relying on Tantia Construction's case, his
submission is that an alternative remedy is not
an absolute bar to the invocation of a writ
jurisdiction. This Court in appropriate cases,
exercises the writ jurisdiction to remedy any
injury caused to a litigant.
8.13. He relies on the decision in Ramesh Ahluwalia
v. State of Punjab3 , more particularly paras 11
to 14 thereof, which are reproduced hereunder
for easy reference:
11. On the other hand, Mr S.S. Ray, learned counsel
appearing on behalf of Respondents 2 to 4 submitted
that no writ petition would be maintainable against the
respondent institution. In support of his submission, the
learned counsel has placed reliance on Pradeep Kumar
Biswas v. Indian Institute of Chemical Biology [(2002) 5
SCC 111 : 2002 SCC (L&S) 633] particularly making
reference to para 40 of the aforesaid judgment. Para 40
3 (2012) 12 SCC 331
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of the aforesaid judgment is extracted hereunder: (SCC
p. 134)
"40. The picture that ultimately emerges is that the
tests formulated in Ajay Hasia [Ajay Hasia v. Khalid
Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S)
258] 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."
12. We have considered the submissions made by the
learned counsel for the parties. In our opinion, in view
of the judgment rendered by this Court in Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust [(1989) 2 SCC 691] there can
be no doubt that even a purely private body, where the
State has no control over its internal affairs, would be
amenable to the jurisdiction of the High Court under
Article 226 of the Constitution, for issuance of a writ of
mandamus. Provided, of course, the private body is
performing public functions which are normally expected
to be performed by the State authorities.
13. In the aforesaid case, this Court was also
considering a situation where the services of a Lecturer
had been terminated who was working in the college
run by the Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust. In
those circumstances, this Court has clearly observed as
under: (V.R. Rudani case [(1989) 2 SCC 691] , SCC pp.
700-701, paras 20 & 22)
"20. The term 'authority' used in Article 226, in the
context, must receive a liberal meaning unlike the term
in Article 12. Article 12 is relevant only for the purpose
of enforcement of fundamental rights under Article 32.
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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.
***
22. Here again we may point out that mandamus cannot
be denied on the ground that the duty to be enforced is
not imposed by the statute. Commenting on the
development of this law, Professor de Smith states: 'To
be enforceable by mandamus a public duty does not
necessarily have to be one imposed by statute. It may
be sufficient for the duty to have been imposed by
charter, common law, custom or even contract.' [ S.A.
de Smith, Judicial Review of Administrative Action (4th
Edn., Stevens & Sons Ltd., London 1980) at p. 540] We
share this view. The judicial control over the fast
expanding maze of bodies affecting the rights of the
people should not be put into watertight compartment.
It should remain flexible to meet the requirements of
variable circumstances. Mandamus is a very wide
remedy which must be easily available 'to reach
injustice wherever it is found'. Technicalities should not
come in the way of granting that relief under Article
226. We, therefore, reject the contention urged for the
appellants on the maintainability of the writ petition."
The aforesaid observations have been repeated and
reiterated in numerous judgments of this Court
including the judgments in Unni Krishnan [(1993) 1 SCC
645] and Zee Telefilms Ltd. [(2005) 4 SCC 649] brought
to our notice by the learned counsel for the appellant,
Mr Parikh.
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14. In view of the law laid down in the aforementioned
judgments of this Court, the judgment of the learned
Single Judge [Ramesh Ahluwalia v. State of Punjab, WP
(C) No. 11691 of 2009, decided on 5-8-2009 (P&H)] as
also the Division Bench [Ramesh Ahluwalia v. State of
Punjab, LPA No. 368 of 2010, order dated 25-10-2010
(P&H)] of the High Court cannot be sustained on the
proposition that the writ petition would not be
maintainable merely because the respondent institution
is a purely unaided private educational institution. The
appellant had specifically taken the plea that the
respondents perform public functions i.e. providing
education to children in their institutions throughout
India.
8.14. By relying on Ramesh Ahluwalia's case, his
submission is that even a private body where the
State has no control over its internal affairs
would be amenable to the jurisdiction of the High
Court. The form of the body concerned is not
relevant. What is relevant is the nature of the
duty imposed on the body. Even if the private
educational institution is an unaided body, it
would be amenable to writ jurisdiction.
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8.15. He relies on the decision in Janet Jeyapaul v.
SRM University4 , more particularly paras 16 to
31 thereof, which are reproduced hereunder for
easy reference:
16. Pointing out from various well-known English
commentaries such as de Smith's Judicial Review, 7th
Edn.; H.W.R. Wade and C.F. Forsyth's Administrative
Law, 10th Edn.; Michael J. Beloff in his article "Pitch,
Pool, Rink,......Court?: Judicial Review in the Sporting
World", 1989 Public Law 95; English decisions in Breen
v. Amalgamated Engg. Union [Breen v. Amalgamated
Engg. Union, (1971) 2 QB 175 : (1971) 2 WLR 742 :
(1971) 1 All ER 1148 (CA)] ; Reg. v. Panel on Take-
overs and Mergers, ex p Datafin Plc. [Reg. v. Panel on
Take-overs and Mergers, ex p Datafin Plc., 1987 QB
815 : (1987) 2 WLR 699 : (1987) 1 All ER 564 (CA)] ;
Evans v. Newton [Evans v. Newton, 1966 SCC OnLine
US SC 1 : 15 L Ed 2d 373 : 382 US 296 (1966)] ; and
of this Court in Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust
v. V.R. Rudani [Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust
v. V.R. Rudani, (1989) 2 SCC 691] and Zee Telefilms
Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of
India, (2005) 4 SCC 649] , Mr Harish Salve submitted
that perusal of these authorities/decisions would go to
show that there has been a consistent view of all the
learned authors and the courts all over the world
including in India that the approach of the Court while
deciding such issue is always to test as to whether the
body concerned is formed for discharging any "public
function" or "public duty" and if so, whether it is
actually engaged in any public function or/and
performing any such duty.
17. According to the learned counsel, if the aforesaid
twin test is found present in any case then such
4 (2015) 16 SCC 530
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person/body/organisation/authority, as the case may
be, would be subjected to writ jurisdiction of the High
Court under Article 226 of the Constitution.
18. The learned Senior Counsel elaborated his
submission by pointing out that the expression "any
person or authority" used in Article 226 is not confined
only to statutory authorities and instrumentalities of
the State but may in appropriate case include any
other person or body performing "public function/duty".
The learned counsel urged that emphasis is, therefore,
always on activity undertaken and the nature of the
duty imposed on such authority to perform and not the
form of such authority. According to Mr Harish Salve,
once it is proved that the activity undertaken by the
authority has a public element then regardless of the
form of such authority it would be subjected to the
rigor of writ jurisdiction of Article 226 of the
Constitution.
19. The learned counsel then urged that in the light of
several decisions of this Court, one cannot now perhaps
dispute that "imparting education to students at large"
is a "public function" and, therefore, if any body or
authority, as the case may be, is found to have been
engaged in the activity of imparting education to the
students at large then irrespective of the status of any
such authority, it should be made amenable to writ
jurisdiction of the High Court under Article 226 of the
Constitution.
20. The learned counsel further pointed out that the
case in hand clearly shows that Respondent 1, a juristic
body, is engaged in imparting education in higher
studies and what is more significant is that Respondent
1 is conferred with a status of a "Deemed University"
by the Central Government under Section 3 of the UGC
Act. These two factors, according to Mr Harish Salve,
would make Respondent 1 amenable to writ jurisdiction
of the High Court under Article 226 because it satisfies
the twin test laid down for attracting the rigor of writ
jurisdiction of the High Court.
21. In reply, Mr Sanjay R. Hegde, learned Senior
Counsel for Respondent 1 while supporting the
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impugned order [S.R.M. University v. Janet Jeyapaul,
2013 SCC OnLine Mad 3887] contended that if this
Court holds that Respondent 1 is amenable to writ
jurisdiction then apart from employees even those who
are otherwise dealing with Respondent 1 would start
invoking writ jurisdiction which, according to the
learned counsel, would open the floodgate of litigation
in courts.
22. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find force
in the submissions urged by Mr Harish Salve.
23. To examine the question urged, it is apposite to
take note of what De Smith, a well-known treatise, on
the subject "Judicial Review" has said on this question
[See de Smith's Judicial Review, 7th Edn., p. 127 (3-
027) and p. 135 (3-038)].
"amenability test based on the source of power
The courts have adopted two complementary
approaches to determining whether a function falls
within the ambit of the supervisory jurisdiction. First,
the court considers the legal source of power exercised
by the impugned decision-maker. In identifying the
'classes of case in which judicial review is available',
the courts place considerable importance on the source
of legal authority exercised by the defendant public
authority. Secondly and additionally, where the 'source
of power' approach does not yield a clear or
satisfactory outcome, the court may consider the
characteristics of the function being performed. This
has enabled the courts to extend the reach of the
supervisory jurisdiction to some activities of non-
statutory bodies (such as self-regulatory
organisations). We begin by looking at the first
approach, based on the source of power."
"judicial review of public functions
The previous section considered susceptibility to
judicial review based on the source of the power:
statute or prerogative. The courts came to recognise
that an approach based solely on the source of the
public authority's power was too restrictive. Since 1987
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they have developed an additional approach to
determining susceptibility based on by the type of
function performed by the decision-maker. The 'public
function' approach is, since 2000, reflected in the Civil
Procedure Rules: Rule 54.1(2)(a)(ii), defines a claim
for judicial review as a claim to the lawfulness of 'a
decision, action or failure to act in relation to the
exercise of a public function'. (Similar terminology is
used in the Human Rights Act, 1998 Section 6(3)(b) to
define a public authority as 'any person certain of
whose functions are functions of a public nature', but
detailed consideration of that provision is postponed
until later). As we noted at the outset, the term 'public'
is usually a synonym for 'governmental'."
(emphasis supplied)
24. The English Courts applied the aforesaid test in
Reg. v. Panel on Take-overs and Mergers, ex p Datafin
Plc. [Reg. v. Panel on Take-overs and Mergers, ex p
Datafin Plc., 1987 QB 815 : (1987) 2 WLR 699 : (1987)
1 All ER 564 (CA)] , wherein Sir John Donaldson, MR
speaking for three-Judge Bench of Court of Appeal
(Civil Division), after examining the various case laws
on the subject, held as under: (All ER p. 564g-h)
"In determining whether the decisions of a particular
body were subject to judicial review, the court was not
confined to considering the source of that body's
powers and duties but could also look to their nature.
Accordingly, if the duty imposed on a body, whether
expressly or by implication, was a public duty and the
body was exercising public law functions the court had
jurisdiction to entertain an application for judicial
review of that body's decisions."
25. In Andi Mukta case [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , the
question before this Court arose as to whether
mandamus can be issued at the instance of an
employee (teacher) against a Trust registered under
the Bombay Public Trusts Act, 1950 which was running
an educational institution (college). The main legal
objection of the Trust while opposing the writ petition
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of their employee was that since the Trust is not a
statutory body and hence it cannot be subjected to the
writ jurisdiction of the High Court. The High Court
accepted the writ petition and issued mandamus
directing the Trust to make payments towards the
employee's claims of salary, provident fund and other
dues. The Trust (Management) appealed to this Court.
26. This Court examined the legal issue in detail. K.
Jagannatha Shetty, J. speaking for the Bench agreed
with the view taken by the High Court and held as
under: (Andi Mukta case [Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , SCC
pp. 696-98 & 700, paras 11-12, 15 & 20)
"11. Two questions, however, remain for consideration:
(i) the liability of the appellants to pay compensation
under Ordinance 120-E and (ii) the maintainability of
the writ petition for mandamus as against the
management of the college. ...
12. The essence of the attack on the maintainability of
the writ petition under Article 226 may now be
examined. It is argued that the management of the
college being a trust registered under the Bombay
Public Trusts Act is not amenable to the writ jurisdiction
of the High Court. The contention in other words, is
that the trust is a private institution against which no
writ of mandamus can be issued. In support of the
contention, the counsel relied upon two decisions of
this Court: (a) Vaish Degree College v. Lakshmi Narain
[Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC
58 : 1976 SCC (L&S) 176] and (b) Dipak Kumar Biswas
v. Director of Public Instruction [Dipak Kumar Biswas v.
Director of Public Instruction, (1987) 2 SCC 252 :
(1987) 3 ATC 505] . In the first of the two cases, the
respondent institution was a Degree College managed
by a registered cooperative society. A suit was filed
against the college by the dismissed principal for
reinstatement. It was contended that the Executive
Committee of the college which was registered under
the Cooperative Societies Act and affiliated to Agra
University (and subsequently to Meerut University) was
a statutory body. The importance of this contention lies
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in the fact that in such a case, reinstatement could be
ordered if the dismissal is in violation of statutory
obligation. But this Court refused to accept the
contention. It was observed that the management of
the college was not a statutory body since not created
by or under a statute. It was emphasised that an
institution which adopts certain statutory provisions will
not become a statutory body and the dismissed
employee cannot enforce a contract of personal service
against a non-statutory body.
***
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 M.P. Jain,
The Evolving Indian Administrative Law (1983) 226] 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.
***
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20. The term 'authority' used in Article 226, in the
context, must receive a liberal meaning unlike the term
in Article 12. Article 12 is relevant only for the purpose
of enforcement of fundamental rights under Article 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."
27. This issue was again examined in great detail by
the Constitution Bench in Zee Telefilms Ltd. v. Union of
India [Zee Telefilms Ltd. v. Union of India, (2005) 4
SCC 649] wherein the question which fell for
consideration was whether the Board of Control for
Cricket in India (in short "BCCI") falls within the
definition of "State" under Article 12 of the
Constitution. This Court approved the ratio laid down in
Andi Mukta case [Andi Mukta Sadguru Shree Muktajee
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust
v. V.R. Rudani, (1989) 2 SCC 691] but on facts of the
case held, by majority, that BCCI does not fall within
the purview of the term "State". This Court, however,
laid down the principle of law in paras 31 and 33 as
under: (Zee Telefilms Ltd. case [Zee Telefilms Ltd. v.
Union of India, (2005) 4 SCC 649] , SCC p. 682)
"31. Be that as it may, it cannot be denied that the
Board does discharge some duties like the selection of
an Indian cricket team, controlling the activities of the
players and others involved in the game of cricket.
These activities can be said to be akin to public duties
or State functions and if there is any violation of any
constitutional or statutory obligation or rights of other
citizens, the aggrieved party may not have a relief by
way of a petition under Article 32. But that does not
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mean that the violator of such right would go scot-free
merely because it or he is not a State. Under the
Indian jurisprudence there is always a just remedy for
the violation of a right of a citizen. Though the remedy
under Article 32 is not available, an aggrieved party
can always seek a remedy under the ordinary course of
law or by way of a writ petition under Article 226 of the
Constitution, which is much wider than Article 32.
***
33. Thus, it is clear that when a private body exercises
its public functions even if it is not a State, the
aggrieved person has a remedy not only under the
ordinary law but also under the Constitution, by way of
a writ petition under Article 226."
28. It is clear from a reading of the ratio decidendi of
the judgment in Zee Telefilms Ltd. [Zee Telefilms Ltd.
v. Union of India, (2005) 4 SCC 649] that firstly, it is
held therein that BCCI discharges public duties and
secondly, an aggrieved party can, for this reason, seek
a public law remedy against BCCI under Article 226 of
the Constitution of India.
29. Applying the aforesaid principle of law to the facts
of the case in hand, we are of the considered view that
the Division Bench of the High Court erred in holding
that Respondent 1 is not subjected to the writ
jurisdiction of the High Court under Article 226 of the
Constitution. In other words, it should have been held
that Respondent 1 is subjected to the writ jurisdiction
of the High Court under Article 226 of the Constitution.
30. This we say for the reasons that firstly, Respondent
1 is engaged in imparting education in higher studies to
students at large. Secondly, it is discharging "public
function" by way of imparting education. Thirdly, it is
notified as a "Deemed University" by the Central
Government under Section 3 of the UGC Act. Fourthly,
being a "Deemed University", all the provisions of the
UGC Act are made applicable to Respondent 1, which
inter alia provides for effective discharge of the public
function, namely, education for the benefit of the
public. Fifthly, once Respondent 1 is declared as
"Deemed University" whose all functions and activities
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are governed by the UGC Act, alike other universities
then it is an "authority" within the meaning of Article
12 of the Constitution. Lastly, once it is held to be an
"authority" as provided in Article 12 then as a
necessary consequence, it becomes amenable to writ
jurisdiction of the High Court under Article 226 of the
Constitution.
31. In the light of the foregoing discussion, we cannot
concur with the finding rendered by the Division Bench
and accordingly while reversing the finding we hold
that the appellant's writ petition under Article 226 of
the Constitution against Respondent 1 is maintainable.
8.16. By relying on Janet Jeyapaul's case, his
submission is that the approach of the Court
while deciding whether it should exercise
jurisdiction or not is to test as to whether the
body concerned is formed for discharging any
public function or public duty and if it is actually
engaged in such public function and or
performing any such public duty, then this Court
would have to exercise under Article 226 of the
Constitution.
8.17. He relies on the decision in Unitech Ltd. v.
Telangana State Industrial Infrastructure
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Corpn., more particularly paras 38, 39 thereof,
which are reproduced hereunder for easy
reference:
38. Much of the ground which was sought to be
canvassed in the course of the pleadings is now
subsumed in the submissions which have been urged
before this Court on behalf of the State of Telangana
and Tsiic. As we have noted earlier, during the course of
the hearing, the learned Senior Counsel appearing on
behalf of the State of Telangana and Tsiic informed the
Court that the entitlement of Unitech to seek a refund is
not questioned nor is the availability of the land for
carrying out the project being placed in issue. The
learned Senior Counsel also did not agitate the ground
that a remedy for the recovery of moneys arising out a
contractual matter cannot be availed of under Article
226 of the Constitution. However, to clear the ground, it
is necessary to postulate that recourse to the
jurisdiction under Article 226 of the Constitution is not
excluded altogether in a contractual matter. A public law
remedy is available for enforcing legal rights subject to
well-settled parameters.
39. A two-Judge Bench of this Court in ABL
International Ltd. v. Export Credit Guarantee Corpn. of
India Ltd. [ABL International Ltd. v. Export Credit
Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] [ABL
International] analysed a long line of precedent of this
Court [K.N. Guruswamy v. State of Mysore, (1954) 2
SCC 125 : AIR 1954 SC 592; Gujarat State Financial
Corpn. v. Lotus Hotels (P) Ltd., (1983) 3 SCC 379;
Gunwant Kaur v. Municipal Committee, Bhatinda,
(1969) 3 SCC 769] to conclude that writs under Article
226 are maintainable for asserting contractual rights
against the State, or its instrumentalities, as defined
under Article 12 of the Indian Constitution.
39.1. Speaking through N. Santosh Hegde, J. the Court
held : (ABL International case [ABL International Ltd. v.
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Export Credit Guarantee Corpn. of India Ltd., (2004) 3
SCC 553] , SCC p. 572, para 27)
"27. ... the following legal principles emerge as to the
maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
(b) Merely because some disputed questions of fact
arise for consideration, same cannot be a ground to
refuse to entertain a writ petition in all cases as a
matter of rule.
(c) A writ petition involving a consequential relief of
monetary claim is also maintainable."
This exposition has been followed by this Court, and has
been adopted by the three-Judge Bench decisions of this
Court in State of U.P. v. Sudhir Kumar Singh [State of
U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 : 2020
SCC OnLine SC 847] and Popatrao Vyankatrao Patil v.
State of Maharashtra [Popatrao Vyankatrao Patil v.
State of Maharashtra, (2020) 19 SCC 241] .
39.2. The decision in ABL International, cautions that
the plenary power under Article 226 must be used with
circumspection when other remedies have been
provided by the contract. But as a statement of
principle, the jurisdiction under Article 226 is not
excluded in contractual matters.
39.3. Article 23.1 of the development agreement in the
present case mandates the parties to resolve their
disputes through an arbitration. However, the presence
of an arbitration clause within a contract between a
State instrumentality and a private party has not acted
as an absolute bar to availing remedies under Article
226 [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003)
2 SCC 107; Ram Barai Singh & Co. v. State of Bihar,
(2015) 13 SCC 592 : (2016) 1 SCC (Civ) 770] .
39.4. If the State instrumentality violates its
constitutional mandate under Article 14 to act fairly and
reasonably, relief under the plenary powers of Article
226 of the Constitution would lie. This principle was
recognised in ABL International [ABL International Ltd.
v. Export Credit Guarantee Corpn. of India Ltd., (2004)
3 SCC 553] : (ABL International case [ABL International
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Ltd. v. Export Credit Guarantee Corpn. of India Ltd.,
(2004) 3 SCC 553] , SCC p. 572, para 28)
"28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the
fact that the power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provisions of the Constitution.
The High Court having regard to the facts of the case,
has a discretion to entertain or not to entertain a writ
petition. The Court has imposed upon itself certain
restrictions in the exercise of this power. (See Whirlpool
Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v.
Registrar of Trade Marks, (1998) 8 SCC 1] .) And this
plenary right of the High Court to issue a prerogative
writ will not normally be exercised by the Court to the
exclusion of other available remedies unless such action
of the State or its instrumentality is arbitrary and
unreasonable so as to violate the constitutional mandate
of Article 14 or for other valid and legitimate reasons,
for which the Court thinks it necessary to exercise the
said jurisdiction."
(emphasis supplied)
39.5. Therefore, while exercising its jurisdiction under
Article 226, the Court is entitled to enquire into whether
the action of the State or its instrumentalities is
arbitrary or unfair and in consequence, in violation of
Article 14. The jurisdiction under Article 226 is a
valuable constitutional safeguard against an arbitrary
exercise of State power or a misuse of authority.
39.6. In determining as to whether the jurisdiction
should be exercised in a contractual dispute, the Court
must, undoubtedly eschew, disputed questions of fact
which would depend upon an evidentiary determination
requiring a trial. But equally, it is well settled that the
jurisdiction under Article 226 cannot be ousted only on
the basis that the dispute pertains to the contractual
arena. This is for the simple reason that the State and
its instrumentalities are not exempt from the duty to act
fairly merely because in their business dealings they
have entered into the realm of contract. Similarly, the
presence of an arbitration clause does (sic not) oust the
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jurisdiction under Article 226 in all cases though, it still
needs to be decided from case to case as to whether
recourse to a public law remedy can justifiably be
invoked.
39.7. The jurisdiction under Article 226 was rightly
invoked by the Single Judge and the Division Bench of
the Andhra Pradesh High Court in this case, when the
foundational representation of the contract has failed.
Tsiic, a State instrumentality, has not just reneged on
its contractual obligation, but hoarded the refund of the
principal and interest on the consideration that was paid
by Unitech over a decade ago. It does not dispute the
entitlement of Unitech to the refund of its principal.
8.18. By relying on Unitech Ltd.,'s case, his
submission is that even when there are disputed
questions of fact, this Court could exercise
jurisdiction when the rights of a citizen are
infringed upon.
8.19. He relies on the decision in Umri Pooph
Pratappur Tollways Pvt. Ltd., vs. M.P. Road
Development Corporation and Another5,
more particularly paras 4, 4.1, 8, 8.1 to 8.4
thereof, which are reproduced hereunder for
easy reference:
5 2025 INSC 907
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4. The learned Senior Counsel for the appellant
submitted that the writ petition filed by Respondent No.
1 before the High Court was not maintainable as the
appellant is a private company and does not function as
an instrumentality of the State. Reliance was placed on
the judgment of this Court in S.Shobha v. Muthoot
Finance Ltd4, wherein it was held that a writ petition is
maintainable only against a body that qualifies as 'State'
under Article 12 of the Constitution. Therefore, the High
Court erred in entertaining the writ petition and passing
the impugned order against the appellant.
4.1. Reference was also made to the decisions of this
Court in Jagmittar Sain Bhagat v. Director, Health
Services, Haryana and others5 and Kanwar Singh Saini
v. High Court of Delhi6, to submit that the issue of
maintainability of a writ petition can be raised at any
stage of the proceedings, and must be determined at the
threshold.
8. At the outset, the learned Senior Counsel for the
appellant submitted that the writ petition filed by
Respondent No.1 was not maintainable against the
appellant as it was directed against a private party. It is
well settled that the remedy under Article 226 of the
Constitution is not confined to individuals seeking
enforcement of fundamental rights. Even juristic
persons, including State Corporations, are entitled to
invoke the writ jurisdiction for enforcement of legal
rights.
However, when a State Corporation seeks relief against a
private party, the maintainability of the writ petition
must satisfy certain threshold requirements, namely,
that the dispute involves a public law element rather
than being confined to the realm of private contractual
obligations, and that the private party is performing a
public duty or is subject to a statutory obligation in
relation to the State entity.
8.1. In the present case, Respondent No.1 is a State -
owned entity and the project in question pertains to the
development of Umri - Pooph - Pratappur Road under a
Concession Agreement on a BOT (Toll + Annuity) basis.
Although the dispute emanates from a works contract
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governed by the said agreement, the writ petition was
not filed for enforcement of any contractual obligation.
Rather, it was filed to challenge the invocation of
arbitration by the appellant under the Arbitration and
Conciliation Act, 1996, despite the existence of a
statutory remedy before the Madhya Pradesh Arbitration
Tribunal constituted under the Madhya Pradesh
Madhyastham Adhikaran Adhiniyam, 1983. The issue,
therefore, pertained to the availability and exclusivity of
a statutory dispute resolution mechanism, and not
merely to the adjudication of a claim on merits arising
out of a private contractual dispute.
8.2. In this context, reference was made to the decision
in Federal Bank Ltd. v. Sagar Thomas16, wherein, this
Court provided a classification of entities against whom a
writ petition may be maintainable. The following
paragraph is pertinent:
"18. From the decisions referred to above, the position
that emerges is that a writ petition under Article 226 of
the Constitution of India may be maintainable against (i)
the State (Government); (ii) an authority; (iii) a
statutory body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and owned by
the State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or
positive obligation of public nature; and (viii) a person or
a body under liability to discharge any function under
any statute, to compel it to perform such a statutory
function."
8.3. This Court in Binny Ltd v. Sadasivan17, noted the
distinction between public and private functions; and
clarified the scope of writ jurisdiction under Article 226 in
the context of private contractual disputes involving
entities that may be performing public functions. The
relevant paragraphs are extracted below for ready
reference:
"11. It is difficult to draw a line between public functions
and private functions when they are being discharged by
a purely private authority. 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
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accepted by the public or that section of the public as
having authority to do so. Bodies therefore exercise
public functions when they intervene or participate in
social or economic affairs in the public interest."
"29. Thus, it can be seen that a writ of mandamus or the
remedy under Article 226 is pre-eminently a public law
remedy and is not generally available as a remedy
against private wrongs. It is used for enforcement of
various rights of the public or to compel the
public/statutory authorities to discharge their duties and
to act within their bounds. It may be used to do justice
when there is wrongful exercise of power or a refusal to
perform duties. This writ is admirably equipped to serve
as a judicial control over administrative actions. This writ
could also be issued against any private body or person,
especially in view of the words used in Article 226 of the
Constitution.
However, the scope of mandamus is limited to
enforcement of public duty. The scope of mandamus is
determined by the nature of the duty to be enforced,
rather than the identity of the authority against whom it
is sought. If the private body is discharging a public
function and the denial of any right is in connection with
the public duty imposed on such body, the public law
remedy can be enforced. The duty cast on the public
body may be either statutory or otherwise and the
source of such power is immaterial, but, nevertheless,
there must be the public law element in such action.
Sometimes, it is difficult to distinguish between public
law and private law remedies. According to Halsbury's
Laws of England, 3rd Edn., Vol. 30, p.682,
"1317. A public authority is a body, not necessarily a
county council, municipal corporation or other local
authority which has public statutory duties to perform
and which perform the duties and carries out its
transactions for the benefit of the public and not for
private profit."
There cannot be any general definition of public authority
or public action. The facts of each case decide the point."
Applying these principles, it can very well be said that a
writ of mandamus can be issued against a private body
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which is not a State within the meaning of Article 12 of
the Constitution and such body is amenable to the
jurisdiction under Article of the Constitution and the High
Court under Article 226 of the Constitution can exercise
judicial review of the action challenged by a party. But
there must be a public law element and it cannot be
exercised to enforce purely private contracts entered into
between the parties."
8.4. Respondent No. 1 was incorporated on 14.07.2004
to develop, build, maintain, and operate the State
Highways, District or other local body roads,
expressways, and government buildings in Madhya
Pradesh. Respondent No. 1 also, on contract, develops
and maintains National Highways in or passing through
Madhya Pradesh. The Madhya Pradesh Highways Act,
2004, repealing the 1936 Act, also reiterates the State's
role in the development, construction, and maintenance
of roads in the State.
Since the right to access any part of the country, with
certain exceptions and restrictions under certain
circumstances, is a fundamental right guaranteed under
Article 19(1)(g) of the Constitution, and the right to safe,
well-maintained, and motorable roads is recognised as a
part of the right to life under Article 21 of the
Constitution of India, it is the responsibility of the State
to develop and maintain the roads directly under its
control. The contract for laying of a State
Highway/District Road, when assigned by the
Corporation owned and run by the government, assumes
the character of a public function - even if performed by
a private party - and would satisfy the functionality test
to sustain the writ petition.
Accordingly, in view of the statutory framework and the
nature of relief sought, the writ petition involves a public
law element and was thus maintainable before the High
Court. The decisions relied upon by the appellant are
factually distinguishable and pertain to materially
different contexts. As such, they do not advance the
appellant's case and have no application to the facts and
legal issues involved in the present case.
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8.20. By relying on Umri Pooph Pratappur Tollways
Pvt. Ltd., case, his submission is that even if the
entity is a private company and is not an
instrumentality of the State, High Court could
exercise its jurisdiction under Article 226 of the
Constitution against such a private company
which performs public functions.
8.21. In support of the above, he relies on the decision
in Kaushal Kishor vs. State of Uttar Pradesh
and others6, more particularly paras 51, 52, 76,
77, 78, 79, 81.13, 81.14, 81.15, 81.16, 82 & 83
thereof, which are reproduced hereunder for
easy reference:
51. The second question referred to us is as to whether
a fundamental right under Articles 19 or 21 can be
claimed against anyone other than the State or its
instrumentalities. Actually, the question is not about
"claim" but about "enforceability".
52. To use the phraseology adopted by the philosophers
of Law, the question on hand is as to whether Part III of
the Constitution has a "vertical" or "horizontal" effect.
Wherever constitutional rights regulate and impact only
the conduct of the Government and Governmental
6 (2023) 4 SCC 1
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actors, in their dealings with private individuals, they
are said to have "a vertical effect". But wherever
constitutional rights impact even the relations between
private individuals, they are said to have "a horizontal
effect".
76. Having taken an overview of the theoretical aspect
of "verticality v. horizontality" and the approach of
constitutional courts in other jurisdictions, let us now
come back to the Indian context.
77. Part III of the Indian Constitution begins with Article
12 which defines the expression "the State" to include
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.
78. After defining the expression "the State" in Article
12 and after declaring all laws inconsistent with or in
derogation of the fundamental rights to be void under
Article 13, Part III of the Constitution proceeds to deal
with rights. There are some articles in Part III where the
mandate is directly to the State and there are other
articles where without injuncting the State, certain
rights are recognised to be inherent, either in the
citizens of the country or in persons. In fact, there are
two sets of dichotomies that are apparent in the articles
contained in Part III. One set of dichotomy is between :
(i) what is directed against the State; and (ii) what is
spelt out as inhering in every individual without
reference to the State. The other dichotomy is between
: (i) citizens; and (ii) persons. This can be illustrated
easily in the form of a table as follows:
Sl. Provisions containing a Provisions On whom
Nos. mandate to the State declaring the the right is
rights of the conferred
individuals
without reference
to "the State"
1. Article 14 mandates the - Any person
State not to deny to any
person equality before law
or the equal protection of
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the laws within the territory
of India.
2. Article 15(1) mandates - Any citizen
the State not to
discriminate against any
citizen on grounds only of
religion, race, caste, sex,
place of birth or any of
them.
3 Article 15(2)
mandates that no Citizen
citizen shall be
subject to any
disability, liability,
restriction or
condition, with
regard to-- (i)
access to shops,
public restaurants,
hotels and places of
public
entertainment; or
(ii) the use of wells,
tanks, bathing
ghats, roads and
places of public
resort maintained
wholly or partly out
of State funds or
dedicated to the
use of general
public, only on
grounds of religion,
race, caste, sex,
place of birth or any
of them.
4. Article 16(1) declares that - Only citizens
there shall be equality of
opportunity for all citizens
in matters relating to
employment or
appointment to any office
under the State.
5. Article 16(2) states that no - Citizen
citizen shall on grounds of
only religion, race, caste,
sex, descent, place of birth,
resident or any of them be
ineligible for or
discriminated against in
respect of any employment
or office under the State.
6. Article 17 abolishes Neither the
untouchability and word "citizen"
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forbids the practice nor the word
of the same in any "person" is
form and declares it mentioned in
to be a punishable Article 17. It
offence. means that
what is
abolished is
the practice
and any
violation of
this injunction
is punishable.
7. - Six types of rights Citizens
are listed in Article
19(1), as available
to all citizens.
8. Article 20 confers three - Persons
different rights, namely, (i)
not to be convicted except
by the application of a law
in force at the time of the
commission of offence; (ii)
not to be prosecuted and
punished for the same
offence more than once;
and (iii) right against self-
incrimination.
9. - Article 21 protects Persons
life and liberty of all
persons.
10. Article 21-A mandates the - Children
State to provide free and
compulsory education to all
children of the age of six to
fourteen years.
11. Article 22 provides - All persons
protection against arrest except an
and detention generally and enemy alien
saves preventive detention [Article
with certain limitations. 22(3)(a)
makes the
provision
inapplicable to
an enemy
alien].
12. - Article 23(1) Any person
prohibits traffic in
human beings and
begar and other
similar forms of
forced labour. Any
contravention is
made a punishable
offence.
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13. - Article 24 prohibits Children
the employment of
children below the
age of fourteen
years in any factory
or mine.
14. - Article 25(1) Persons
declares the right of
all persons to
freedom of
conscience and the
right freely to
profess, practice
and propagate
religion.
15. - Article 26 confers Religious
four different types denomination
of rights upon every
religious
denomination or
any section thereof.
16. Article 27 confers right not - Person
to be compelled to pay any
taxes, for the promotion of
any particular religion.
17. - Article 28(1) forbids Person
religious
instructions being
provided in any
educational
institution wholly
maintained out of
State funds, with
the exception of
those established
under any
endowment or
trust.
18. - A right not to take Person
part in any religious
instruction imparted
in an educational
institution
recognised by the
State or receiving
aid out of State
funds, is conferred
by Article 28(3).
19. - A right to conserve Citizens
the language, script
or culture distinct to
any part of the
territory of India is
conferred by Article
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29(1).
20. A right not to be denied This applies to Citizen
admission into any institutions
educational institution maintained by the
maintained by the State or State or even to
receiving aid out of State institutions
funds, on grounds only of receiving aid out of
religion, race, caste, State funds.
language or any of them is
conferred by Article 29(2).
21. (i) A right to establish and -- Religious and
administer educational linguistic
institutions of their choice is minorities
conferred by Article 30(1)
upon the religious as well
as linguistic minorities.
(ii) The State is mandated
under Article 30(2) not to
discriminate against any
educational institution while
granting aid.
22. The right to move The words
the Supreme Court "State",
for the enforcement "citizen" or
of the rights "person" are
conferred by Part not mentioned
III is guaranteed in Article 32,
under Article 32. indicating
thereby that
the right is
available to
one and all,
depending
upon which
right is sought
to be
enforced.
79. The above Table would show that some of the
articles of Part III are in the form of a directive to the
State, while others are not. This is an indication that
some of the rights conferred by Part III are to be
honoured by and also enforceable against, non-State
actors.
81.13. In Indian Medical Assn. v. Union of India
[Indian Medical Assn. v. Union of India, (2011) 7 SCC
179] , the policy of an Army College of Medical
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Sciences to admit only those who are wards of army
personnel, based on scores obtained in an entrance
test, was under challenge. The question that came up
for consideration was whether this discriminatory
practice by a private entity would be in violation of
Article 15 of the Constitution. This Court in para 187
stated : (SCC pp. 259-60)
"187. Inasmuch as education, pursuant to T.M.A. Pai
[T.M.A. Pai Foundation v. State of Karnataka, (2002) 8
SCC 481 : 2 SCEC 1] , is an occupation under sub-
clause (g) of clause (1) of Article 19, and it is a service
that is offered for a fee that takes care of all the
expenses of the educational institution in rendering
that service, plus a reasonable surplus, and is offered
to all those amongst the general public, who are
otherwise qualified, then such educational institutions
would also be subject to the discipline of clause (2) of
Article 15. In this regard, the purport of the above
exposition of clause (2) of Article 15, when read in the
context of egalitarian jurisprudence inherent in Articles
14, 15, 16 and Article 38, and read with our national
aspirations of establishing a society in which equality of
status and opportunity, and justice, social, economic
and political, would imply that the private sector which
offers such facilities ought not to be conducting their
affairs in a manner which promote existing
discriminations and disadvantages."
(emphasis supplied)
81.14. In Society for Unaided Private Schools of
Rajasthan [Society for Unaided Private Schools of
Rajasthan v. Union of India, (2012) 6 SCC 1 : 4 SCEC
453] , the constitutionality of Section 12 of the Right of
Children to Free and Compulsory Education Act, 2009
was challenged on the ground that it violated Articles
19(1)(g) and 30 of those who had established schools
in the private sector. While upholding the
constitutionality of the provision, which required all
schools, private and State-funded, to reserve 25% of
its intake for students from disadvantaged background,
this Court held : (SCC p. 81, para 222)
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"222. The provisions referred to above and other
provisions of international conventions indicate that the
rights have been guaranteed to the children and those
rights carry corresponding State obligations to respect,
protect and fulfil the realisation of children's rights. The
obligation to protect implies the horizontal right which
casts an obligation on the State to see that it is not
violated by non-State actors. For non-State actors to
respect children's rights casts a negative duty of non-
violation to protect children's rights and a positive duty
on them to prevent the violation of children's rights by
others, and also to fulfil children's rights and take
measures for progressive improvement. In other
words, in the spheres of non-State activity there shall
be no violation of children's rights."
(emphasis in original and supplied)
81.15. In Jeeja Ghosh v. Union of India [Jeeja Ghosh
v. Union of India, (2016) 7 SCC 761 : (2016) 3 SCC
(Civ) 551] , the petitioner, a disabled person suffering
from cerebral palsy, was unceremoniously ordered off a
SpiceJet aircraft by the flight crew on account of the
disability. The petition was filed for putting in place a
system to ensure such a violation of human dignity and
inequality is not meted out to similarly placed persons.
This Court observed as follows : (SCC p. 771, para 10)
"10. It is submitted by the petitioner that the Union of
India (Respondent 1) has an obligation to ensure that
its citizens are not subject to such arbitrary and
humiliating discrimination. It is a violation of their
fundamental rights, including the right to life, right to
equality, right to move freely throughout the territory
of India, and right to practise their profession. The
State has an obligation to ensure that these rights are
protected -- particularly for those who are disabled."
(emphasis supplied)
This Court awarded compensation to the petitioner
against the private Airline on the ground that the
airline, though a private enterprise, ought not to have
violated her fundamental right.
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81.16. In Zee Telefilms Ltd. v. Union of India [Zee
Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] ,
this Court held that though BCCI does not fall within
the purview of the term "State", it discharges public
duties and that therefore even if a remedy under
Article 32 is not available, the aggrieved party can
always seek a remedy before the ordinary courts of law
or by way of a writ petition under Article 226. This
Court pointed out that the violator of a constitutional
right could not go scot-free merely because it is not a
State. The said logic was extended by this Court to a
"Deemed to be University" in Janet Jeyapaul v. SRM
University [Janet Jeyapaul v. SRM University, (2015)
16 SCC 530 : 8 SCEC 68] , on the ground that though
it is a private university, it was discharging "public
functions", by imparting education.
82. All the above decisions show that on a case-to-case
basis, this Court applied horizontal effect, considering
the nature of the right violated and the extent of
obligation on the part of the violator. But to enable the
courts to have certain basic guidelines in place, for
dealing with such cases, this Court developed a tool in
K.S. Puttaswamy (Privacy-9 J.) [K.S. Puttaswamy
(Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] .
While affirming the right to privacy as a fundamental
right, this Court laid down the landscape as follows :
(SCC p. 539, paras 397-98)
"397. Once we have arrived at this understanding of
the nature of fundamental rights, we can dismantle a
core assumption of the Union's argument : that a right
must either be a common law right or a fundamental
right. The only material distinctions between the two
classes of right--of which the nature and content may
be the same--lie in the incidence of the duty to respect
the right and in the forum in which a failure to do so
can be redressed. Common law rights are horizontal in
their operation when they are violated by one's fellow
man, he can be named and proceeded against in an
ordinary court of law. Constitutional and fundamental
rights, on the other hand, provide remedy against the
violation of a valued interest by the "State", as an
abstract entity, whether through legislation or
otherwise, as well as by identifiable public officials,
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being individuals clothed with the powers of the State.
It is perfectly possible for an interest to simultaneously
be recognised as a common law right and a
fundamental right. Where the interference with a
recognised interest is by the State or any other like
entity recognised by Article 12, a claim for the violation
of a fundamental right would lie. Where the author of
an identical interference is a non-State actor, an action
at common law would lie in an ordinary court.
398. Privacy has the nature of being [Ed. : The word
between two asterisks has been emphasised in
original.] both [Ed. : The word between two asterisks
has been emphasised in original.] a common law right
as well as a fundamental right. Its content, in both
forms, is identical. All that differs is the incidence of
burden and the forum for enforcement for each form."
(emphasis supplied)
83. Thus, the answer to Question 2 is partly found in
the nine-Judge Bench decision in K.S. Puttaswamy
(Privacy-9 J.) [K.S. Puttaswamy (Privacy-9 J.) v. Union
of India, (2017) 10 SCC 1] itself. We have seen from
the line of judicial pronouncements listed above that
after A.K. Gopalan v. State of Madras [A.K. Gopalan v.
State of Madras, 1950 SCC 228 : AIR 1950 SC 27] 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 v. State of Madras [S. Krishnan v. State of
Madras, 1951 SCC 499 : AIR 1951 SC 301] : (S.
Krishnan case [S. Krishnan v. State of Madras, 1951
SCC 499 : AIR 1951 SC 301] , 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)
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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 "agency
of the Government" to "impregnation with
Governmental character" to "enjoyment of monopoly
status conferred by State" to "deep and pervasive
control" [Ramana Dayaram Shetty v. International
Airport Authority of India, (1979) 3 SCC 489] to the
"nature of the duties/functions performed" [Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989)
2 SCC 691] . Therefore, we would answer Question 2
as follows:
"A fundamental right under Articles 19/21 can be
enforced even against persons other than the State or
its instrumentalities."
8.22. By relying on Kaushal Kishor's case, his
submission is that some of the rights which are
recognised under Part III of the Constitution can
be enforced against any person or entity. Some
of the rights, though are restricted to be
enforced by citizens or children or persons
belonging to a particular denomination, those are
religious or linguistic denominations. Apart from
those rights, the other rights could be exercised
by any citizen. His submission is that such
exercise of rights by a citizen can be made not
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only against a public authority coming within the
meaning of Article 12, but against any person or
entity discharging public functions. His
submission is that the society which is running
several educational institutions, providing
education to thousands of students and having
on his roll hundreds of teaching and non-
teaching staff, the functioning of the society
would have an impact on the student, their
families, as well as the staff and their families.
Therefore, if there is any allegation made against
the Managing Committee of the society and any
redress is sought for by any member of the
society, the same could be done by way of a writ
petition under Article 226 of the Constitution.
9. Sri.Jaya Kumar S. Patil, learned Senior Counsel
appearing for Respondent No. 2 submits that,
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9.1. The petitioners have an alternative remedy
under Section 15 of the Karnataka Societies
Registration Act. The dispute is between the
Managing Committee and members as regards
the appointment of a chairman to the
subordinate institutions and the internal affairs
or decisions/ resolution of the Managing
Committee, which is a private affair of the
Society, a constitutional court cannot exercise
writ jurisdiction in respect thereto. On that
basis, it submits that the remedy available to the
petitioners is to file a suit before a competent
civil court by invoking Section 15 of the Societies
Registration Act and not by way of a writ
petition.
9.2. His submission is that there is no public interest
or duty discharged by Respondent No.2 within
the meaning of Articles 12, 19 and 21 of the
Constitution of India. Education, which is
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provided by Respondent No. 2 is on receipt of
fees, and as such, it can be said to be a
commercial venture of Respondent No.2. Merely
because education is provided by Respondent
No.2 and its subordinate institutions on payment
of fees would not make the said service public
service with public interest.
9.3. The dispute essentially in the present matter
being between two factions of the members of
the Society, it has nothing to do with the affairs
of the Society. The dispute is purely personal in
nature and writ jurisdiction cannot be invoked to
resolve personal conflicts as regards which the
parties would have to avail of regular civil
remedies.
9.4. The fundamental rights under Article 19 or 21
cannot be claimed against anyone other than the
State or its instrumentalities; in fact, there is no
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fundamental right that is sought to be agitated.
The subject matter of the writ petition is a
private dispute between the parties. neither
Respondent No.2 nor the subordinate institutions
fall within the definition of State or
instrumentality of the State under Article 12 of
the Constitution. There is no public law element
in the operations of Respondent No.2 and its
subordinate institutions, and most definitely no
public law element is involved in the dispute
between the Petitioners and Respondents.
9.5. In support of his contentions, he relies on the
decision in St. Mary's Education Society v.
Rajendra Prasad Bhargava7, more particularly
paras 30 to 76 thereof, which are reproduced
hereunder for easy reference:
30. We may at the outset state that CBSE is only a
society registered under the Societies Registration Act,
1860 and the school affiliated to it is not a creature of
7 (2023) 4 SCC 498
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the statute and hence not a statutory body. The
distinction between a body created by the statute and a
body governed in accordance with a statute has been
explained by this Court in Executive Committee of Vaish
Degree College v. Lakshmi Narain [Executive Committee
of Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC
58 : 1976 SCC (L&S) 176] , as follows : (SCC p. 65, para
10)
"10. ... It is, therefore, clear that there is a well marked
distinction between a body which is created by the
statute and a body which after having come into
existence is governed in accordance with the provisions
of the statute. In other words the position seems to be
that the institution concerned must owe its very
existence to a statute which would be the fountainhead
of its powers. The question in such cases to be asked is,
if there is no statute would the institution have any legal
existence. If the answer is in the negative, then
undoubtedly it is a statutory body, but if the institution
has a separate existence of its own without any reference
to the statute concerned but is merely governed by the
statutory provisions it cannot be said to be a statutory
body."
31. As stated above, the school is affiliated to CBSE for
the sake of convenience, namely, for the purpose of
recognition and syllabus or the courses of study and the
provisions of the 2009 Act and the Rules framed
thereunder.
32. The contention canvassed by Respondent 1 is that a
writ petition is maintainable against the Committee of
Management controlling the affairs of an institution
(minority) run by it, if it violates any rules and Bye-laws
laid down by CBSE. First, as discussed above, CBSE itself
is not a statutory body nor the regulations framed by it
have any statutory force. Secondly, the mere fact that
the Board grants recognition to the institutions on certain
terms and conditions itself does not confer any
enforceable right on any person as against the
Committee of Management.
33. In Regina v. St. Aloysius Higher Secondary School
[Regina v. St. Aloysius Higher Secondary School, (1972)
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4 SCC 188 : AIR 1971 SC 1920] , this Court held that the
mere fact that an institution is recognised by an
authority, does not itself create an enforceable right to
an aggrieved party against the Management by a teacher
on the ground of breach or non-compliance of any of the
Rules which was part of terms of the recognition. It was
observed as under : (SCC p. 198, para 24)
"24. ... The Rules thus govern the terms on which the
Government would grant recognition and aid and the
Government can enforce these rules upon the
management. But the enforcement of such rules is a
matter between the Government and the management,
and a third party, such as teacher aggrieved by some
order of the management cannot derive from the rules
any enforceable right against the management on the
ground of breach or non-compliance of any of the rules."
34. In Anita Verma v. D.A.V. College Management
Committee [Anita Verma v. D.A.V. College Management
Committee, (1992) 1 UPLBEC 30] :
"... 30. Where the services of a teacher were terminated,
the Court held that the writ petition under Article 226 is
not maintainable as the institution cannot be treated as
the instrumentality of the State. The matter was
considered in detail in Harbans Kaur v. Guru Tegh
Bahadur Public School [Harbans Kaur v. Guru Tegh
Bahadur Public School, 1992 SCC OnLine All 444 : 1992
Lab IC 2070] , wherein the services of the petitioner
were terminated by the Managing Committee of the
institution recognised by CBSE. It was held that the
Affiliation Bye-laws framed by CBSE have no statutory
force. The Court under Article 226 of the Constitution of
India can enforce compliance of statutory provision
against a committee of management as held in a Full
Bench decision of this Court in Aley Ahmad Abidi v.
District Inspector of Schools [Aley Ahmad Abidi v. District
Inspector of Schools, 1976 SCC OnLine All 325 : AIR
1977 All 539] . The Affiliation Bye-laws of CBSE having
no statutory force, the only remedy against the
aggrieved person is to approach CBSE putting his
grievances in relation to the violation of the Affiliation
Bye-laws by the institution."
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35. Thus, where a teacher or non-teaching staff
challenges the action of Committee of Management that
it has violated the terms of contract or the rules of the
Affiliation Bye-laws, the appropriate remedy of such
teacher or employee is to approach CBSE or to take such
other legal remedy available under law. It is open to
CBSE to take appropriate action against the Committee
of Management of the institution for withdrawal of
recognition in case it finds that the Committee of
Management has not performed its duties in accordance
with the Affiliation Bye-laws.
36. It needs no elaboration to state that a school
affiliated to CBSE which is unaided is not a State within
Article 12 of the Constitution of India [see Satimbla
Sharma v. St Paul's Senior Secondary School [Satimbla
Sharma v. St Paul's Senior Secondary School, (2011) 13
SCC 760 : (2012) 2 SCC (L&S) 75] ]. Nevertheless the
school discharges a public duty of imparting education
which is a fundamental right of the citizen [see K.
Krishnamacharyulu v. Sri Venkateswara Hindu College of
Engg. [K. Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S)
841] ]. The school affiliated to CBSE is therefore an
"authority" amenable to the jurisdiction under Article 226
of the Constitution of India[see Binny Ltd. v. V.
Sadasivan [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657
: 2005 SCC (L&S) 881] ]. However, a judicial review of
the action challenged by a party can be had by resort to
the writ jurisdiction only if there is a public law element
and not to enforce a contract of personal service. A
contract of personal service includes all matters relating
to the service of the employee -- confirmation,
suspension, transfer, termination, etc. [see Apollo Tyres
Ltd. v. C.P. Sebastian [Apollo Tyres Ltd. v. C.P.
Sebastian, (2009) 14 SCC 360 : (2009) 5 SCC (Civ) 358
: (2010) 1 SCC (L&S) 359] ].
37. This Court in K.K. Saksena v. International
Commission on Irrigation & Drainage [K.K. Saksena v.
International Commission on Irrigation & Drainage,
(2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2
SCC (L&S) 119] , after an exhaustive review of its earlier
decisions on the subject, held as follows : (SCC pp. 692
& 696, paras 43 & 52)
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"43. What follows from a minute and careful reading of
the aforesaid judgments of this Court is that if a person
or authority is "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 a 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.
The reason is obvious. A 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 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.
***
52. It is trite that contract of personal service cannot be
enforced. There are three exceptions to this rule,
namely:
(i) when the employee is a public servant working under
the Union of India or State;
(ii) when such an employee is employed by an
authority/body which is a State within the meaning of
Article 12 of the Constitution of India; and
(iii) when such an employee is "workmen" within the
meaning of Section 2(s) of the Industrial Disputes Act,
1947 and raises a dispute regarding his termination by
invoking the machinery under the said Act.
In the first two cases, the employment ceases to have
private law character and "status" to such an
employment is attached. In the third category of cases, it
is the Industrial Disputes Act which confers jurisdiction
on the Labour Court/Industrial Tribunal to grant
reinstatement in case termination is found to be illegal."
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38. The following decisions have been adverted to in
K.K. Saksena [K.K. Saksena v. International Commission
on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2
SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] :
1. Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani
[Andi Mukta Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani,
(1989) 2 SCC 691 : AIR 1989 SC 1607] ,
2. G. Bassi Reddy v. International Crops Research
Institute [G. Bassi Reddy v. International Crops Research
Institute, (2003) 4 SCC 225] ,
3. Praga Tools Corpn. v. C.A. Imanual [Praga Tools
Corpn. v. C.A. Imanual, (1969) 1 SCC 585] ,
4. Federal Bank Ltd. v. Sagar Thomas [Federal Bank Ltd.
v. Sagar Thomas, (2003) 10 SCC 733] .
39. This Court in Janet Jeyapaul v. SRM University [Janet
Jeyapaul v. SRM University, (2015) 16 SCC 530 : (2015)
13 Scale 622 : 8 SCEC 68] , held that when a private
body exercises its public functions even if it is not a
State, the aggrieved person has a remedy, not only
under the ordinary law, but also by way of a writ petition
under Article 226 of the Constitution. In Binny case
[Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005
SCC (L&S) 881] , this Court held that Article 226 of the
Constitution is couched in such a way that a writ of
mandamus could be issued even against a private
authority. However, such private authority must be
discharging a public function and that the decision sought
to be corrected or enforced must be in the discharge of
public function.
40. Para 11 of the judgment in Binny [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] is
reproduced below : (SCC pp. 665-66)
"11. Judicial review is designed to prevent the cases of
abuse of power and neglect of duty by public authorities.
However, under our Constitution, Article 226 is couched
in such a way that a writ of mandamus could be issued
even against a private authority. However, such private
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authority must be discharging a public function and that
the decision sought to be corrected or enforced must be
in discharge of a public function. The role of the State
expanded enormously and attempts have been made to
create various agencies to perform the governmental
functions. Several corporations and companies have also
been formed by the Government to run industries and to
carry on trading activities. These have come to be known
as public sector undertakings. However, in the
interpretation given to Article 12 of the Constitution, this
Court took the view that many of these companies and
corporations could come within the sweep of Article 12 of
the Constitution. At the same time, there are private
bodies also which may be discharging public functions. It
is difficult to draw a line between public functions and
private functions when it is being discharged by a purely
private authority. 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. Bodies therefore exercise public
functions when they intervene or participate in social or
economic affairs in the public interest."
(emphasis supplied)
41. This Court considered various of its other decisions
to examine the question of public law remedy under
Article 226 of the Constitution. This Court observed in
Binny case [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC
657 : 2005 SCC (L&S) 881] as under : (SCC p. 673, para
29)
"29. Thus, it can be seen that a writ of mandamus or the
remedy under Article 226 is pre-eminently a public law
remedy and is not generally available as a remedy
against private wrongs. It is used for enforcement of
various rights of the public or to compel the
public/statutory authorities to discharge their duties and
to act within their bounds. It may be used to do justice
when there is wrongful exercise of power or a refusal to
perform duties. This writ is admirably equipped to serve
as a judicial control over administrative actions. This writ
could also be issued against any private body or person,
specially in view of the words used in Article 226 of the
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Constitution. However, the scope of mandamus is limited
to enforcement of public duty. The scope of mandamus is
determined by the nature of the duty to be enforced,
rather than the identity of the authority against whom it
is sought. If the private body is discharging a public
function and the denial of any right is in connection with
the public duty imposed on such body, the public law
remedy can be enforced. The duty cast on the public
body may be either statutory or otherwise and the source
of such power is immaterial, but, nevertheless, there
must be the public law element in such action.
Sometimes, it is difficult to distinguish between public
law and private law remedies."
(emphasis supplied)
42. In the penultimate paragraph, this Court [Binny Ltd.
v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S)
881] ruled as under : (Binny case [Binny Ltd. v. V.
Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ,
SCC p. 674, para 32)
"32. Applying these principles, it can very well be said
that a writ of mandamus can be issued against a private
body which is not "State" within the meaning of Article
12 of the Constitution and such body is amenable to the
jurisdiction under Article 226 of the Constitution and the
High Court under Article 226 of the Constitution can
exercise judicial review of the action challenged by a
party. But there must be a public law element and it
cannot be exercised to enforce purely private contracts
entered into between the parties."
(emphasis supplied)
43. In the background of the above legal position, it can
be safely concluded that power of judicial review under
Article 226 of the Constitution of India can be exercised
by the High Court even if the body against which an
action is sought is not State or an authority or an
instrumentality of the State but there must be a public
element in the action complained of.
44. A reading of the above extract shows that the
decision sought to be corrected or enforced must be in
the discharge of a public function. No doubt, the aims
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and objective of Appellant 1 herein are to impart
education, which is a public function. However, the issue
herein is with regard to the termination of service of
Respondent 1, which is basically a service contract. A
body is said to be 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.
45. In Delhi Public School v. M.K. Gandhi [Delhi Public
School v. M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5
SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] , this Court
held that no writ is maintainable against a private school
as it is not a "State" within the meaning of Article 12 of
the Constitution of India.
46. In Trigun Chand Thakur v. State of Bihar [Trigun
Chand Thakur v. State of Bihar, (2019) 7 SCC 513 :
(2019) 2 SCC (L&S) 378] , this Court upheld the view
[Trigun Chand Thakur v. State of Bihar, 2008 SCC
OnLine Pat 994] of a Division Bench of the Patna High
Court which held that a teacher of privately managed
school, even though financially aided by the State
Government or the Board, cannot maintain a writ petition
against an order of termination from service passed by
the Management.
47. In Satimbla Sharma [Satimbla Sharma v. St Paul's
Senior Secondary School, (2011) 13 SCC 760 : (2012) 2
SCC (L&S) 75] , this Court held that the unaided private
minority schools over which the Government has no
administrative control because of their autonomy under
Article 30(1) of the Constitution are not "State" within
the meaning of Article 12 of the Constitution. As the right
to equality under Article 14 of the Constitution is
available against the State, it cannot be claimed against
unaided private minority private schools.
48. The Full Bench of the Allahabad High Court in
Roychan Abraham v. State of U.P. [Roychan Abraham v.
State of U.P., 2019 SCC OnLine All 3935 : AIR 2019 All
96] , after taking into consideration various decisions of
this Court, held as under : (SCC OnLine All para 38)
"38. Even if it be assumed that an educational institution
is imparting public duty, the act complained of must have
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direct nexus with the discharge of public duty. It is
undisputedly a public law action which confers a right
upon the aggrieved to invoke extraordinary writ
jurisdiction under Article 226 for a prerogative writ.
Individual wrongs or breach of mutual contracts without
having any public element as its integral part cannot be
rectified through petition under Article 226. Wherever
Courts have intervened in exercise of jurisdiction under
Article 226, either the service conditions were regulated
by statutory provisions or the employer had the status of
"State" within the expansive definition under Article 12 or
it was found that the action complained of has public law
element."
(emphasis supplied)
49. We may refer to and rely upon one order passed by
this Court in S.K. Varshney v. Our Lady of Fatima Higher
Secondary School [S.K. Varshney v. Our Lady of Fatima
Higher Secondary School, (2023) 4 SCC 539] , in which
the dispute was one relating to the retirement age of a
teacher working in an unaided institution. This Court,
while dismissing the appeal preferred by the employee,
held as under : (SCC p. 523, paras 4-8)
"4. Both the petitions were dismissed by the learned
Single Judge on the ground that no writ would lie against
unaided private institutions and the writ petitions were
not maintainable.
5. Aggrieved thereby, writ appeals have been filed before
the Division Bench without any result. The Division Bench
held [S.K. Varshney v. Our Lady of Fatima Higher
Secondary School, 1999 SCC OnLine All 908] that the
writ petitions are not maintainable against a private
institute. Aggrieved thereby, these appeals have been
filed.
6. The counsel for the appellant relied on a decision
rendered by this Court in K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg. [K.
Krishnamacharyulu v. Sri Venkateswara Hindu College of
Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841] He
particularly relied on the observation made by this Court
in para 4 of the order that when an element of public
interest is created and the institution is catering to that
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element, the teacher, being the arm of the institution, is
also entitled to avail of the remedy provided under Article
226.
7. This Court in Sushmita Basu v. Ballygunge Siksha
Samity [Sushmita Basu v. Ballygunge Siksha Samity,
(2006) 7 SCC 680 : 2006 SCC (L&S) 1741] in which one
of us (Sema, J.) is a party, after considering the
aforesaid judgment has distinguished the ratio by holding
that the writ under Article 226 of the Constitution against
a private educational institute would be justified only if a
public law element is involved and if it is only a private
law remedy no writ petition would lie. In the present
cases, there is no question of public law element involved
inasmuch as the grievances of the appellants are of
personal nature.
8. We, accordingly, hold that writ petitions are not
maintainable against the private institute. There is no
infirmity in the order passed by the learned Single Judge
and affirmed by the Division Bench. These appeals are
devoid of merit and are, accordingly, dismissed. No
costs."
(emphasis supplied)
50. We may also refer to and rely upon the decision of
this Court in Vidya Ram Misra v. Shri Jai Narain College
[Vidya Ram Misra v. Shri Jai Narain College, (1972) 1
SCC 623 : AIR 1972 SC 1450] . The appellant therein
filed a writ petition before the Lucknow Bench of the High
Court of Allahabad challenging the validity of a resolution
passed by the Managing Committee of Shri Jai Narain
College, Lucknow, an associated college of Lucknow
University, terminating his services and praying for issue
of an appropriate writ or order quashing the resolution. A
learned Single Judge of the High Court finding that in
terminating the services, the Managing Committee acted
in violation of the principles of natural justice, quashed
the resolution and allowed the writ petition. The
Managing Committee appealed against the order. A
Division Bench of the High Court found that the
relationship between the college and the appellant
therein was that of master and servant and that even if
the service of the appellant had been terminated in
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breach of the audi alteram partem rule of natural justice,
the remedy of the appellant was to file a suit for
damages and not to apply under Article 226 of the
Constitution for a writ or order in the nature of certiorari
and that, in fact, no principle of natural justice was
violated by terminating the services of the appellant. The
writ petition was dismissed. In appeal, this Court upheld
the decision of the High Court holding that the lecturer
cannot have any cause of action on breach of the law but
only on breach of the contract, hence he has a remedy
only by way of suit for damages and not by way of writ
under Article 226 of the Constitution.
51. In Vidya Ram Misra [Vidya Ram Misra v. Shri Jai
Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450] ,
this Court observed thus : (SCC p. 629, paras 12-13)
"12. Whereas in P.R.K. Jodh v. A.L. Pande [P.R.K. Jodh v.
A.L. Pande, (1965) 2 SCR 713] , the terms and
conditions of service embodies in Clause 8(vi)(a) of the
"College Code" had the force of law apart from the
contract and conferred rights on the appellant there, here
the terms and conditions mentioned in Statute 151 have
no efficacy, unless they are incorporated in a contract.
Therefore, appellant cannot found a cause of action on
any breach of the law but only on the breach of the
contract. As already indicated, Statute 151 does not lay
down any procedure for removal of a teacher to be
incorporated in the contract. So, Clause 5 of the contract
can, in no event, have even a statutory flavour and for
its breach, the appellant's remedy lay elsewhere.
13. Besides, in order that the third exception to the
general rule that no writ will lie to quash an order
terminating a contract of service, albeit illegally, as
stated in S.R. Tewari v. District Board, Agra [S.R. Tewari
v. District Board, Agra, (1964) 3 SCR 55 : AIR 1964 SC
1680] , might apply, it is necessary that the order must
be the order of a statutory body acting in breach of a
mandatory obligation imposed by a statute. The college,
or the Managing Committee in question, is not a
statutory body and so the argument of Mr Setalvad that
the case in hand will fall under the third exception cannot
be accepted. The contention of counsel that this Court
has sub silentio sanctioned the issue of a writ under
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Article 226 to quash an order terminating services of a
teacher passed by a college similarly situate in P.R.K.
Jodh [P.R.K. Jodh v. A.L. Pande, (1965) 2 SCR 713] ,
and, therefore, the fact that the college or the Managing
Committee was not a statutory body was no hindrance to
the High Court issuing the writ prayed for by the
appellant has no merit as this Court expressly stated in
the judgment that no such contention was raised in the
High Court and so it cannot be allowed to be raised in
this Court."
52. In the case on hand, the facts are similar. Rule 26(1)
of the Affiliation Bye-laws, framed by CBSE, provides that
each school affiliated with the Board shall frame Service
Rules. Sub-rule (2) of it provides that a service contract
will be entered with each employee as per the provision
in the Education Act of the State/Union Territory, or as
given in Appendix III, if not obligatory as per the State
Education Act. These rules also provide procedures for
appointments, probation, confirmation, recruitment,
attendance representations, grant of leave, code of
conduct, disciplinary procedure, penalties, etc. The model
form of contract of service, to be executed by an
employee, given in Appendix III, lays down that the
service, under this agreement, will be liable to
disciplinary action in accordance with the Rules and
Regulations framed by the school from time to time. Only
in case where the post is abolished or an employee
intends to resign, Rule 31 of the Affiliation Bye-laws of
the Board will apply. It may be noted that the above
Bye-laws do not provide for any particular procedure for
dismissal or removal of a teacher for being incorporated
in the contract. Nor does the model form of contract
given in Appendix III lay down any particular procedure
for that purpose. On the contrary, the disciplinary action
is to be taken in accordance with the Rules and
Regulations framed by the school from time to time.
53. On a plain reading of these provisions, it becomes
clear that the terms and conditions mentioned in the
Affiliation Bye-laws may be incorporated in the contract
to be entered into between the school and the employee
concerned. It does not say that the terms and conditions
have any legal force, until and unless they are embodied
in an agreement. To put it in other words, the terms and
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conditions of service mentioned in Chapter VII of the
Affiliation Bye-laws have no force of law. They become
terms and conditions of service only by virtue of their
being incorporated in the contract. Without the contract
they have no vitality and can confer no legal rights. The
terms and conditions mentioned in the Affiliation Bye-
laws have no efficacy, unless they are incorporated in a
contract. In the absence of any statutory provisions
governing the services of the employees of the school,
the service of Respondent 1 was purely contractual. A
contract of personal service cannot be enforced
specifically. Therefore, Respondent 1 cannot find a cause
of action on any breach of the law, but only on the
breach of the contract. That being so, the appellant's
remedy lies elsewhere and in no case the writ is
maintainable.
54. Thus, the aforesaid order passed by this Court
makes it very clear that in a case of retirement and in
case of termination, no public law element is involved.
This Court has held that a writ under Article 226 of the
Constitution against a private educational institution shall
be maintainable only if a public law element is involved
and if there is no public law element is involved, no writ
lies.
55. In T.M.A. Pai Foundation v. State of Karnataka
[T.M.A. Pai Foundation v. State of Karnataka, (2002) 8
SCC 481 : 2 SCEC 1] , an eleven-Judge Bench of this
Court formulated certain points in fact to reconsider its
earlier decision in Ahmedabad St. Xavier's College
Society v. State of Gujarat [Ahmedabad St. Xavier's
College Society v. State of Gujarat, (1974) 1 SCC 717 : 1
SCEC 125] , and also Unni Krishnan, J.P. v. State of A.P.
[Unni Krishnan, J.P. v. State of A.P., (1993) 4 SCC 111 :
1 SCEC 645] , regarding the "right of the minority
institution including administration of the student and
imparting education vis-à-vis the right of administration
of the non-minority student".
56. In the said case, very important points arose as
follows : (T.M.A. Pai Foundation case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2
SCEC 1] , SCC pp. 709-10, para 450)
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"450. ... Q. 5. (c) Whether the statutory provisions which
regulate the facets of administration like control over
educational agencies, control over governing bodies,
conditions of affiliation including recognition/withdrawal
thereof, and appointment of staff, employees, teachers
and principals including their service conditions and
regulation of fees, etc. would interfere with the right of
administration of minorities?
A. So far as the statutory provisions regulating the facets
of administration are concerned, in case of an unaided
minority educational institution, the regulatory measure
of control should be minimal and the conditions of
recognition as well as conditions of affiliation to a
university or board have to be complied with, but in the
matter of day-to-day management, like appointment of
staff, teaching and non-teaching and administrative
control over them, the management should have the
freedom and there should not be any external controlling
agency. However, a rational procedure for selection of
teaching staff and for taking disciplinary action has to be
evolved by the management itself. For redressing the
grievances of such employees who are subjected to
punishment or termination from service, a mechanism
will have to be evolved and in our opinion, appropriate
tribunals could be constituted, and till then, such tribunal
could be presided over by a judicial officer of the rank of
District Judge. The State or other controlling authorities,
however, can always prescribe the minimum
qualifications, salaries, experience and other conditions
bearing on the merit of an individual for being appointed
as a teacher of an educational institution.
Regulations can be framed governing service conditions
for teaching and other staff for whom aid is provided by
the State without interfering with overall administrative
control of management over the staff,
government/university representative can be associated
with the Selection Committee and the guidelines for
selection can be laid down. In regard to unaided minority
educational institutions such regulations, which will
ensure a check over unfair practices and general welfare
of teachers could be framed."
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57. We now proceed to look into the two decisions of this
Court in Ramesh Ahluwalia [Ramesh Ahluwalia v. State of
Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 :
4 SCEC 715] and Marwari Balika Vidyalaya [Marwari
Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449
: (2021) 1 SCC (L&S) 854] respectively.
58. In Ramesh Ahluwalia [Ramesh Ahluwalia v. State of
Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 :
4 SCEC 715] , the appellant therein was working as an
administrative officer in a privately run educational
institution and by way of disciplinary proceedings, was
removed from service by the Managing Committee of the
said educational institution. A writ petition was filed
before the learned Single Judge of the High Court
challenging the order of the disciplinary authority
wherein he was removed from service. The writ petition
was ordered [Ramesh Ahluwalia v. State of Punjab, 2009
SCC OnLine P&H 11755] to be dismissed in limine
holding that the said educational institution being an
unaided and a private school managed by the society
cannot be said to be an instrument of the State. The
appeal before the Division Bench also came to be
dismissed [Ramesh Ahluwalia v. State of Punjab, 2010
SCC OnLine P&H 13111] . The matter travelled to this
Court.
59. The principal argument before this Court in Ramesh
Ahluwalia case [Ramesh Ahluwalia v. State of Punjab,
(2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC
715] was in regard to the maintainability of the writ
petition against a private educational institution. It was
argued on the behalf of the appellant therein that
although a private educational institution may not fall
within the definition of "State" or "other
authorities/instrumentalities" of the State under Article
12 of the Constitution, yet a writ petition would be
maintainable as the said educational institution could be
said to be discharging public functions by imparting
education. However, the learned counsel for the
educational institution therein took a plea before this
Court that while considering whether a body falling within
the definition of "State", it is necessary to consider
whether such body is financially, functionally and
administratively dominated by or under the control of the
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Government. It was further argued that if the control is
merely regulatory either under a statute or otherwise, it
would not ipso facto make the body "State" within Article
12 of the Constitution. On the conspectus of the peculiar
facts of the case and the submissions advanced, this
Court held that a writ petition would be maintainable if a
private educational institution discharges public
functions, more particularly imparting education. Even by
holding so, this Court declined to extend any benefits to
the teacher as the case involved disputed questions of
fact.
60. We take notice of the fact that in Ramesh Ahluwalia
[Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC
331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] the
attention of the Hon'ble Judges was not drawn to the
earlier decisions of this Court in K. Krishnamacharyulu
[K. Krishnamacharyulu v. Sri Venkateswara Hindu
College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S)
841] , Federal Bank [Federal Bank Ltd. v. Sagar Thomas,
(2003) 10 SCC 733] , Sushmita Basu v. Ballygunge
Siksha Samity [Sushmita Basu v. Ballygunge Siksha
Samity, (2006) 7 SCC 680 : 2006 SCC (L&S) 1741] , and
Delhi Public School v. M.K. Gandhi [Delhi Public School v.
M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5 SCC (Civ)
461 : (2015) 3 SCC (L&S) 745] .
61. In Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] , this Court followed Ramesh
Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012)
12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715]
referred to above.
62. We may say without any hesitation that Respondent
1 herein cannot press into service the dictum as laid
down by this Court in Marwari Balika Vidyalaya [Marwari
Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449
: (2021) 1 SCC (L&S) 854] as the said case is
distinguishable. The most important distinguishing
feature of Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] is that in the said case the
removal of the teacher from service was subject to the
approval of the State Government. The State
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Government took a specific stance before this Court that
its approval was required both for the appointment as
well as removal of the teacher. In the case on hand,
indisputably the Government or any other agency of the
Government has no role to play in the termination of
Respondent 1 herein.
63. In context with Marwari Balika Vidyalaya [Marwari
Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449
: (2021) 1 SCC (L&S) 854] , we remind ourselves of Bye-
law 49(2) which provides that no order with regard to the
imposition of major penalty shall be made by the
disciplinary authority except after the receipt of the
approval of the Disciplinary Committee. Thus unlike
Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v.
Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC
(L&S) 854] where approval was required of the State
Government, in the case on hand the approval is to be
obtained from the Disciplinary Committee of the
institution. This distinguishing feature seems to have
been overlooked by the High Court while passing the
impugned order.
64. In Marwari Balika Vidyalaya [Marwari Balika
Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :
(2021) 1 SCC (L&S) 854] , the school was receiving
grant-in-aid to the extent of dearness allowance. The
appointment and the removal, as noted above, is
required to be approved by the District Inspector of
School (Primary Education) and, if any action is taken
dehors such mandatory provisions, the same would not
come within the realm of private element.
65. In Trigun Chand Thakur [Trigun Chand Thakur v.
State of Bihar, (2019) 7 SCC 513 : (2019) 2 SCC (L&S)
378] , the appellant therein was appointed as a Sanskrit
teacher and a show-cause notice was issued upon him on
the ground that he was absent on the eve of
Independence day and Teachers Day which resulted into
a dismissal order passed by the Managing Committee of
the private school. The challenge was made by filing a
writ petition before the High Court which was dismissed
on the ground that the writ petition is not maintainable
against an order terminating the service by the Managing
Committee of the private school. This Court held that
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even if the private school was receiving a financial aid
from the Government, it does not make the said
Managing Committee of the school a "State" within the
meaning of Article 12 of the Constitution of India.
66. Merely because a writ petition can be maintained
against the private individuals discharging the public
duties and/or public functions, the same should not be
entertained if the enforcement is sought to be secured
under the realm of a private law. It would not be safe to
say that the moment the private institution is amenable
to writ jurisdiction then every dispute concerning the said
private institution is amenable to writ jurisdiction. It
largely depends upon the nature of the dispute and the
enforcement of the right by an individual against such
institution. The right which purely originates from a
private law cannot be enforced taking aid of the writ
jurisdiction irrespective of the fact that such institution is
discharging the public duties and/or public functions. The
scope of the mandamus is basically limited to an
enforcement of the public duty and, therefore, it is an
ardent duty of the court to find out whether the nature of
the duty comes within the peripheral of the public duty.
There must be a public law element in any action.
67. Our present judgment would remain incomplete if we
fail to refer to the decision of this Court in Ramakrishna
Mission v. Kago Kunya [Ramakrishna Mission v. Kago
Kunya, (2019) 16 SCC 303] . In the said case this Court
considered all its earlier judgments on the issue. The writ
petition was not found maintainable against the Mission
merely for the reason that it was found running a
hospital, thus discharging public functions/public duty.
This Court considered the issue in reference to the
element of public function which should be akin to the
work performed by the State in its sovereign capacity.
This Court took the view that every public function/public
duty would not make a writ petition to be maintainable
against an "authority" or a "person" referred under
Article 226 of the Constitution of India unless the
functions are such which are akin to the functions of the
State or are sovereign in nature.
68. Few relevant paragraphs of the said judgment are
quoted as under for ready reference : (Ramakrishna
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Mission case [Ramakrishna Mission v. Kago Kunya,
(2019) 16 SCC 303] , SCC pp. 309-11 & 313, paras 17-
22 & 25-26)
"17. The basic issue before this Court is whether the
functions performed by the hospital are public functions,
on the basis of which a writ of mandamus can lie under
Article 226 of the Constitution.
18. The hospital is a branch of the Ramakrishna Mission
and is subject to its control. The Mission was established
by Swami Vivekanand, the foremost disciple of Shri
Ramakrishna Paramhansa. Service to humanity is for the
organisation co-equal with service to God as is reflected
in the motto "Atmano Mokshartham Jagad Hitaya Cha".
The main object of the Ramakrishna Mission is to impart
knowledge in and promote the study of Vedanta and its
principles propounded by Shri Ramakrishna Paramahansa
and practically illustrated by his own life and of
comparative theology in its widest form. Its objects
include, inter alia to establish, maintain, carry on and
assist schools, colleges, universities, research
institutions, libraries, hospitals and take up development
and general welfare activities for the benefit of the
underprivileged/backward/tribal people of society without
any discrimination. These activities are voluntary,
charitable and non-profit making in nature. The activities
undertaken by the Mission, a non-profit entity are not
closely related to those performed by the State in its
sovereign capacity nor do they partake of the nature of a
public duty.
19. The Governing Body of the Mission is constituted by
members of the Board of Trustees of Ramakrishna Math
and is vested with the power and authority to manage
the organisation. The properties and funds of the Mission
and its management vest in the Governing Body. Any
person can become a member of the Mission if elected by
the Governing Body. Members on roll form the quorum of
the annual general meetings. The Managing Committee
comprises of members appointed by the Governing Body
for managing the affairs of the Mission. Under the
Memorandum of Association and Rules and Regulations
of the Mission, there is no governmental control in the
functioning, administration and day-to-day management
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of the Mission. The conditions of service of the employees
of the hospital are governed by service rules which are
framed by the Mission without the intervention of any
governmental body.
20. In coming to the conclusion that the appellants fell
within the description of an authority under Article 226,
the High Court placed a considerable degree of reliance
on the judgment of a two-Judge Bench of this Court in
Andi Mukta [Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] . Andi
Mukta [Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] was a
case where a public trust was running a college which
was affiliated to Gujarat University, a body governed by
the State legislation. The teachers of the University and
all its affiliated colleges were governed, insofar as their
pay scales were concerned, by the recommendations of
the University Grants Commission. A dispute over pay
scales raised by the association representing the
teachers of the University had been the subject-matter of
an award of the Chancellor, which was accepted by the
Government as well as by the University. The
management of the college, in question, decided to close
it down without prior approval. A writ petition was
instituted before the High Court for the enforcement of
the right of the teachers to receive their salaries and
terminal benefits in accordance with the governing
provisions. In that context, this Court dealt with the issue
as to whether the management of the college was
amenable to the writ jurisdiction. A number of
circumstances weighed in the ultimate decision of this
Court, including the following:
20.1. The trust was managing an affiliated college.
20.2. The college was in receipt of government aid.
20.3. The aid of the Government played a major role in
the control, management and work of the educational
institution.
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20.4. Aided institutions, in a similar manner as
government institutions, discharge a public function of
imparting education to students.
20.5. All aided institutions are governed by the rules and
regulations of the affiliating University.
20.6. Their activities are closely supervised by the
University.
20.7. Employment in such institutions is hence, not
devoid of a public character and is governed by the
decisions taken by the University which are binding on
the management.
21. It was in the above circumstances that this Court
came to the conclusion that the service conditions of the
academic staff do not partake of a private character, but
are governed by a right-duty relationship between the
staff and the management. A breach of the duty, it was
held, would be amenable to the remedy of a writ of
mandamus. While the Court recognised that "the fast
expanding maze of bodies affecting rights of people
cannot be put into watertight compartments", it laid
down two exceptions where the remedy of mandamus
would not be available : (SCC p. 698, para 15)
'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.'
22. Following the decision in Andi Mukta [Andi Mukta
Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti
Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC
691 : AIR 1989 SC 1607] , this Court has had the
occasion to re-visit the underlying principles in
successive decisions. This has led to the evolution of
principles to determine what constitutes a "public duty"
and "public function" and whether the writ of mandamus
would be available to an individual who seeks to enforce
her right.
***
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25. A similar view was taken in Ramesh Ahluwalia v.
State of Punjab [Ramesh Ahluwalia v. State of Punjab,
(2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC
715] , where a two-Judge Bench of this Court held that a
private body can be held to be amenable to the
jurisdiction of the High Court under Article 226 when it
performs public functions which are normally expected to
be performed by the State or its authorities.
26. In Federal Bank Ltd. v. Sagar Thomas [Federal Bank
Ltd. v. Sagar Thomas, (2003) 10 SCC 733] , this Court
analysed the earlier judgments of this Court and
provided a classification of entities against whom a writ
petition may be maintainable : (SCC p. 748, para 18)
'18. From the decisions referred to above, the position
that emerges is that a writ petition under Article 226 of
the Constitution of India may be maintainable against (i)
the State (Government); (ii) an authority; (iii) a
statutory body; (iv) an instrumentality or agency of the
State; (v) a company which is financed and owned by
the State; (vi) a private body run substantially on State
funding; (vii) a private body discharging public duty or
positive obligation of public nature; and (viii) a person or
a body under liability to discharge any function under any
statute, to compel it to perform such a statutory
function.' "
(emphasis in original)
69. The aforesaid decision of this Court in Ramakrishna
Mission [Ramakrishna Mission v. Kago Kunya, (2019) 16
SCC 303] came to be considered exhaustively by a Full
Bench of the High Court of Allahabad in Uttam Chand
Rawat v. State of U.P. [Uttam Chand Rawat v. State of
U.P., 2021 SCC OnLine All 724 : (2021) 6 All LJ 393] ,
wherein the Full Bench was called upon to answer the
following question : (Uttam Chand Rawat case [Uttam
Chand Rawat v. State of U.P., 2021 SCC OnLine All 724 :
(2021) 6 All LJ 393] , SCC OnLine All para 1)
"1. ...'(i) Whether the element of public function and
public duty inherent in the enterprise that an educational
institution undertakes, conditions of service of teachers,
whose functions are a sine qua non to the discharge of
that public function or duty, can be regarded as governed
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by the private law of contract and with no remedy
available under Article 226 of the Constitution?"
70. The Full Bench proceeded to answer the aforesaid
question as under : (Uttam Chand Rawat case [Uttam
Chand Rawat v. State of U.P., 2021 SCC OnLine All 724 :
(2021) 6 All LJ 393] , SCC OnLine All paras 16-20)
"16. The substance of the discussion made above is that
a writ petition would be maintainable against the
authority or the person which may be a private body, if it
discharges public function/public duty, which is otherwise
primary function of the State referred in the judgment of
the Supreme Court in Ramakrishna Mission [Ramakrishna
Mission v. Kago Kunya, (2019) 16 SCC 303] and the
issue under public law is involved. The aforesaid twin test
has to be satisfied for entertaining writ petition under
Article 226 of the Constitution of India.
17. From the discussion aforesaid and in the light of the
judgments referred above, a writ petition under Article
226 of the Constitution would be maintainable against (i)
the Government; (ii) an authority; (iii) a statutory body;
(iv) an instrumentality or agency of the State; (v) a
company which is financed and owned by the State; (vi)
a private body run substantially on State funding; (vii) a
private body discharging public duty or positive
obligation of public nature; and (viii) a person or a body
under liability to discharge any function under any
statute, to compel it to perform such a statutory
function.
18. There is thin line between "public functions" and
"private functions" discharged by a person or a private
body/authority. The writ petition would be maintainable
only after determining the nature of the duty to be
enforced by the body or authority rather than identifying
the authority against whom it is sought.
19. It is also that even if a person or authority is
discharging public function or public duty, the writ
petition would be maintainable under Article 226 of the
Constitution, if Court is satisfied that action under
challenge falls in the domain of public law, as
distinguished from private law. The twin tests for
maintainability of writ are as follows:
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1. The person or authority is discharging public
duty/public functions.
2. Their action under challenge falls in domain of public
law and not under common law.
20. The writ petition would not be maintainable against
an authority or a person merely for the reason that it has
been created under the statute or is to be governed by
regulatory provisions. It would not even in a case where
aid is received unless it is substantial in nature. The
control of the State is another issue to hold a writ
petition to be maintainable against an authority or a
person."
(emphasis supplied)
71. We owe a duty to consider one relevant aspect of the
matter. Although this aspect which we want to take
notice of has not been highlighted by Respondent 1, yet
we must look into the same. We have referred to the
CBSE Affiliation Bye-laws in the earlier part of our
judgment. Appendix IV of the Affiliation Bye-laws is with
respect to the minority institutions. Clause 6 of Appendix
IV is with respect to the disciplinary control over the staff
in a minority educational institution. We take notice of
the fact that in Clause 6, the State has the regulatory
power to safeguard the interests of their employees and
their service conditions including the procedure for
punishment to be imposed.
72. For the sake of convenience and at the cost of
repetition, we quote Clause 6 once again as under:
"6. Disciplinary control over staff in Minority
EducationalInstitutions.--While the managements
should exercise the disciplinary control over staff, it must
be ensured that they hold an inquiry and follow a fair
procedure before punishment is given. With a view to
preventing the possible misuse of power by the
management of the Minority Educational Institutions, the
State has the regulatory power to safeguard the interests
of their employees and their service conditions including
procedure for punishment to be imposed."
(emphasis supplied)
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73. It could be argued that as the State has regulatory
power to safeguard the interests of the employees
serving with the minority institutions, any action or
decision taken by such institution is amenable to writ
jurisdiction under Article 226 of the Constitution.
74. In the aforesaid context, we may only say that
merely because the State Government has the regulatory
power, the same, by itself, would not confer any such
status upon the institution (school) nor put any such
obligations upon it which may be enforced through issue
of a writ under Article 226 of the Constitution. In this
regard, we may refer to and rely upon the decision of
this Court in Federal Bank [Federal Bank Ltd. v. Sagar
Thomas, (2003) 10 SCC 733] . While deciding whether a
private bank that is regulated by the Banking Regulation
Act, 1949 discharges any public function, this Court held
thus : (Ramakrishna Mission case [Ramakrishna Mission
v. Kago Kunya, (2019) 16 SCC 303] , SCC pp. 315-16,
paras 33-35)
"33. ...'33. ...'in our view, a private company carrying on
banking business as a scheduled bank, cannot be termed
as an institution or a company carrying on any statutory
or public duty. A private body or a person may be
amenable to writ jurisdiction only where it may become
necessary to compel such body or association to enforce
any statutory obligations or such obligations of public
nature casting positive obligation upon it. We do not find
such conditions are fulfilled in respect of a private
company carrying on a commercial activity of banking.
Merely regulatory provisions to ensure such activity
carried on by private bodies work within a discipline, do
not confer any such status upon the company nor put
any such obligation upon it which may be enforced
through issue of a writ under Article 226 of the
Constitution. Present is a case of disciplinary action being
taken against its employee by the appellant Bank. The
respondent's service with the Bank stands terminated.
The action of the Bank was challenged by the respondent
by filing a writ petition under Article 226 of the
Constitution of India. The respondent is not trying to
enforce any statutory duty on the part of the Bank.'
(Federal Bank case [Federal Bank Ltd. v. Sagar Thomas,
(2003) 10 SCC 733] , SCC pp. 758-59, para 33)
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34. Thus, contracts of a purely private nature would not
be subject to writ jurisdiction merely by reason of the
fact that they are structured by statutory provisions. The
only exception to this principle arises in a situation where
the contract of service is governed or regulated by a
statutory provision. Hence, for instance, in K.K. Saksena
[K.K. Saksena v. International Commission on Irrigation
& Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654
: (2015) 2 SCC (L&S) 119] this Court held that when an
employee is a workman governed by the Industrial
Disputes Act, 1947, it constitutes an exception to the
general principle that a contract of personal service is not
capable of being specifically enforced or performed.
35. It is of relevance to note that the Act was enacted to
provide for the regulation and registration of clinical
establishments with a view to prescribe minimum
standards of facilities and services. The Act, inter alia,
stipulates conditions to be satisfied by clinical
establishments for registration. However, the Act does
not govern contracts of service entered into by the
hospital with respect to its employees. These fall within
the ambit of purely private contracts, against which writ
jurisdiction cannot lie. The sanctity of this distinction
must be preserved."
(emphasis in original and supplied)
75. We may sum up our final conclusions as under:
75.1. An application under Article 226 of the Constitution
is maintainable against a person or a body discharging
public duties or public functions. The public duty cast
may be either statutory or otherwise and where it is
otherwise, the body or the person must be shown to owe
that duty or obligation to the public involving the public
law element. Similarly, for ascertaining the discharge of
public function, it must be established that the body or
the person was seeking to achieve the same for the
collective benefit of the public or a section of it and the
authority to do so must be accepted by the public.
75.2. Even if it be assumed that an educational
institution is imparting public duty, the act complained of
must have a direct nexus with the discharge of public
duty. It is indisputably a public law action which confers
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a right upon the aggrieved to invoke the extraordinary
writ jurisdiction under Article 226 for a prerogative writ.
Individual wrongs or breach of mutual contracts without
having any public element as its integral part cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions or
the employer had the status of "State" within the
expansive definition under Article 12 or it was found that
the action complained of has public law element.
75.3. It must be consequently held that while a body
may be discharging a public function or performing a
public duty and thus its actions becoming amenable to
judicial review by a constitutional court, its employees
would not have the right to invoke the powers of the
High Court conferred by Article 226 in respect of matter
relating to service where they are not governed or
controlled by the statutory provisions. An educational
institution may perform myriad functions touching
various facets of public life and in the societal sphere.
While such of those functions as would fall within the
domain of a "public function" or "public duty" be
undisputedly open to challenge and scrutiny under Article
226 of the Constitution, the actions or decisions taken
solely within the confines of an ordinary contract of
service, having no statutory force or backing, cannot be
recognised as being amenable to challenge under Article
226 of the Constitution. In the absence of the service
conditions being controlled or governed by statutory
provisions, the matter would remain in the realm of an
ordinary contract of service.
75.4. Even if it be perceived that imparting education by
private unaided school is a public duty within the
expanded expression of the term, an employee of a non-
teaching staff engaged by the school for the purpose of
its administration or internal management is only an
agency created by it. It is immaterial whether "A" or "B"
is employed by school to discharge that duty. In any
case, the terms of employment of contract between a
school and non-teaching staff cannot and should not be
construed to be an inseparable part of the obligation to
impart education. This is particularly in respect to the
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disciplinary proceedings that may be initiated against a
particular employee. It is only where the removal of an
employee of non-teaching staff is regulated by some
statutory provisions, its violation by the employer in
contravention of law may be interfered with by the Court.
But such interference will be on the ground of breach of
law and not on the basis of interference in discharge of
public duty.
75.5. From the pleadings in the original writ petition, it is
apparent that no element of any public law is agitated or
otherwise made out. In other words, the action
challenged has no public element and writ of mandamus
cannot be issued as the action was essentially of a
private character.
76. In view of the aforesaid discussion, we hold that the
learned Single Judge [Rajendra Prasad Bhargava v.
Union of India, 2017 SCC OnLine MP 2337] of the High
Court was justified in taking the view that the original
writ application filed by Respondent 1 herein under
Article 226 of the Constitution is not maintainable. The
appeal court could be said to have committed an error in
taking a contrary view.
9.6. By relying on Rajendra Prasad Bhargava's
case, it is submitted that there is a distinction
between a body created by a statute and a body
governed in accordance with a statute. A society
registered under the Societies Registration Act is
governed in accordance with a statute but is not
created under a statute. Therefore, it would not
be amenable to writ jurisdiction. His submission
is also that merely because the schools run by
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Respondent No.2 society are affiliated to the
state board and/or are regulated in terms of the
Karnataka Education Act, the same would not
make the society one created under the
Karnataka Education Act and as such, it is a pure
and simple private society would not be
amenable to writ jurisdiction more so as regards
internal dispute relating to management
amongst the member of the Society.
9.7. Insofar as the management of the society, he
submitted that the same is purely contractual in
terms of the bylaws of the society. There is no
public element related to it and as such, Article
226 would not be applicable to any private
dispute between members of the management
committee of the society.
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9.8. He relies on the decision in Dileep Kumar
Pandey vs. Union of India and Others8, more
particularly paras 1, 13 to 23 thereof, which are
reproduced hereunder for easy reference:
1. The issue involved in these two appeals is whether
the Air Force School, Bamrauli, in District Allahabad, is a
'state or authority' within the meaning of Article 12 of
the Constitution of India.
13. By the impugned judgments, the Division Bench of
the Allahabad High Court held that the Society is not a
'state' within the meaning of Article 12 of the
Constitution. We must refer to the assertions made by
the appellant in the writ petition filed before the Single
Judge of the High Court on this aspect. In the writ
petition that is the subject matter of Civil Appeal No.
10899 of 2013, in paragraphs 5 to 7, the appellant has
stated thus:
"5. That for the effective management and
administration of the Air Force School at various units,
the Society has framed an Education Code Air Force
Schools 2005. The Code aforesaid is identical to
Education Code framed for the managing to Kendriya
Vidyalay.
6. That the Air Force Schools are financed by the
Central Government, through Indian Air Force School,
controlled by the officers of the Indian Air Force and the
purposes is to impart education to the children of
officers and employees of the Indian Air Force. The Air
Force Schools come within the meaning of the word
"State" under Article 12 of the Constitution of India.
7. That the Air Force School, Bamrauli, Allahabad, is a
school established by the aforesaid Society and the said
8 2025 SCC Online SC 1192
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school comes under the definition of "State" under
Article 12 of the Constitution of India."
14. In the counter filed before the High Court, the
respondents contended that the Society is a non-profit
making welfare association and the said school is a non-
public fund school. The finance is arranged from the
fees collected from students under various heads, and
the air force personnel make a contribution through
their welfare fund. It is specifically pleaded that neither
in the welfare fund nor in the school finances is any
money of the Central Government involved. Moreover,
there is no control by the Central Government or the
Ministry of Defence over the running or management of
the school. While addressing the contents of paragraph
5 of the petition, it is specifically pleaded that the
Education Code issued by the Society is not identical to
the Education Code issued by the CBSE or Kendriya
Vidyalaya. It is reiterated, while dealing with paragraph
6 of the writ petition, that the said school does not
receive any grant from any agency having a link to any
of the governments.
15. Now, we will refer to the law laid down on this
aspect. Paragraphs 15 and 20 of the decision of this
Court in the case of Andi Mukta Sadguru Shree
Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust1 read thus:
"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.
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Employment in such institutions, therefore, is not devoid
of any public character. [See The Evolving Indian
Administrative Law by M.P. Jain (1983), p. 226] 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.
.. .. .. .. .. .
20. The term "authority" used in Article 226, in the
context, must receive a liberal meaning unlike the term
in Article 12. Article 12 is relevant only for the purpose
of enforcement of fundamental rights under Article 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.
(emphasis added)
16. In the case of Pradeep Kumar Biswas2, this Court
dealt with the aspect of control over the institution. This
Court relied upon the decision in the case of Ajay
Hasia5. In paragraph 40, this Court held thus:
"40. The picture that ultimately emerges is that the
tests formulated in Ajay Hasia [Ajay Hasia v. Khalid
Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S)
258] are not a rigid set of principles so that if a body
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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."
(emphasis added)
17. In the case of All India Sainik Schools Employees
Association4, as a matter of fact, it was found that the
entire funding for running the school was provided by
the State and Central Governments. Even the overall
control was found vested in governmental authority.
18. In the case of Raj Soni3, this Court, as can be seen
from paragraph 10, found that it was not necessary to
decide whether or not the school is a 'state' or
'authority' under Article 12 of the Constitution of India.
19. Now, we turn to the decision of this Court in the
case of St. Mary's Education Society9. It is true that this
Court did not consider the decision of this Court in the
case of Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust1 of this
Court. However, this Court has discussed all relevant
principles. The principles laid down in the said decision
in the case of St. Mary's Education Society are in
paragraphs 75.1 to 75.5, which read thus:
"75.1. An application under Article 226 of the
Constitution is maintainable against a person or a body
discharging public duties or public functions. The public
duty cast may be either statutory or otherwise and
where it is otherwise, the body or the person must be
shown to owe that duty or obligation to the public
involving the public law element. Similarly, for
ascertaining the discharge of public function, it must be
established that the body or the person was seeking to
achieve the same for the collective benefit of the public
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or a section of it and the authority to do so must be
accepted by the public.
75.2. Even if it be assumed that an educational
institution is imparting public duty, the act complained
of must have a direct nexus with the discharge of public
duty. It is indisputably a public law action which confers
a right upon the aggrieved to invoke the extraordinary
writ jurisdiction under Article 226 for a prerogative writ.
Individual wrongs or breach of mutual contracts without
having any public element as its integral part cannot be
rectified through a writ petition under Article 226.
Wherever Courts have intervened in their exercise of
jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions or
the employer had the status of "State" within the
expansive definition under Article 12 or it was found
that the action complained of has public law element.
75.3. It must be consequently held that while a body
may be discharging a public function or performing a
public duty and thus its actions becoming amenable to
judicial review by a constitutional court, its employees
would not have the right to invoke the powers of the
High Court conferred by Article 226 in respect of matter
relating to service where they are not governed or
controlled by the statutory provisions. An educational
institution may perform myriad functions touching
various facets of public life and in the societal sphere.
While such of those functions as would fall within the
domain of a "public function" or "public duty" be
undisputedly open to challenge and scrutiny under
Article 226 of the Constitution, the actions or decisions
taken solely within the confines of an ordinary contract
of service, having no statutory force or backing, cannot
be recognised as being amenable to challenge under
Article 226 of the Constitution. In the absence of the
service conditions being controlled or governed by
statutory provisions, the matter would remain in the
realm of an ordinary contract of service.
75.4. Even if it be perceived that imparting education by
private unaided school is a public duty within the
expanded expression of the term, an employee of a
non-teaching staff engaged by the school for the
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purpose of its administration or internal management is
only an agency created by it. It is immaterial whether
"A" or "B" is employed by school to discharge that duty.
In any case, the terms of employment of contract
between a school and non-teaching staff cannot and
should not be construed to be an inseparable part of the
obligation to impart education. This is particularly in
respect to the disciplinary proceedings that may be
initiated against a particular employee. It is only where
the removal of an employee of non-teaching staff is
regulated by some statutory provisions, its violation by
the employer in contravention of law may be interfered
with by the Court. But such interference will be on the
ground of breach of law and not on the basis of
interference in discharge of public duty.
75.5. From the pleadings in the original writ petition, it
is apparent that no element of any public law is agitated
or otherwise made out. In other words, the action
challenged has no public element and writ of mandamus
cannot be issued as the action was essentially of a
private character."
(emphasis added)
20. The law laid down in this decision was followed by
this Court in the case of Army Welfare Education
Society8. In that case, this Court dealt with a school
taken over by the Army Welfare Education Society,
which required existing teachers to requalify under new
conditions. The High Court held that the school could
not impose service conditions to the teachers'
disadvantage. In the said decision, this Court was
concerned with a case where a school was taken over
by the petitioner - the Army Welfare Education Society.
A letter was sent to the teachers in the school run by St.
Gabriel's Academy indicating that those among the
teachers who are eligible in terms of CBSE guidelines
would be considered for appointment on ad hoc basis
for one year and thereafter, they will have to appear
and qualify written test conducted by the Army Welfare
Education Society. The teachers approached the High
Court. Learned Single Judge held that the school cannot
impose the service conditions on the teaching staff to
their disadvantage. The issue before this Court in the
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said case was whether the Army Welfare Education
Society was a "state" or "authority" within the meaning
of Article 12 of the Constitution. This Court found that
the Society was a purely unaided private Society
established for the purpose of imparting education to
the children of the army personnel. This Court applied
the law laid down in the case of St. Mary's Education
Society9 and held that though the Society was imparting
education, which involves public duty, the relationship
between the respondents and the Army 'Welfare
Education Society was that of an employee and private
employer arising out of a private contract. Therefore, a
breach of contract does not touch any public law
element, and the school cannot be said to be
discharging any public duty in connection with the
employment of the teachers.
21. We have perused the application made to CBSE for
affiliation. The application was made on 22nd August
1985. It was in the name of the Air Force Primary
School. Although it is stated that the school was fully
financed by the IAF, there is no evidence to show that
the school was actually financed by the IAF. The
Education Code, which applies to Air Force Schools, is
not a statutory code that has the force of law. It is
issued under the authority of the Chairman of the Board
of Governors of the IAF Educational and Cultural
Society. It provides that all Air Force Schools are
administered under the Society. As per the
Memorandum of Association of the Society, the
members of the Society are IAF officers who hold their
posts ex-officio. The Command Schools Managing
Committees do not have control over the dayto-day
running of Air Force Schools. The day-to-day control is
with the School Managing Committee. Even if the school
building is constructed out of Public funds, there is no
record to show that it receives a grant from Public
Funds. There is nothing in the Education Code to show
that the IAF has control over the said school. The
audited accounts of the school for the period from 2019-
2020 to 2023-2024 indicate that no public funds or
grants were received by the school. Even if pay scales
applicable to all IAF schools are determined by the IAF,
that by itself will not amount to pervasive control by the
IAF over the functioning of the schools.
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22. It is not shown how the IAF headquarters has any
control over the management of the said school.
Although some funds may have originated from the
Army Welfare Society, it cannot be said that the State
or the IAF has any control, let alone all-pervasive
control, over the school. Moreover, the said Society is
not governed by any statutory rules.
23. In the impugned judgment, the Division Bench
recorded the undisputed position that the appellants are
employees of the said school, which is not governed by
any statutory regulations. The Education Code, which
applies to the said school, does not have any statutory
sanction or force. A finding of fact was recorded that
there is no material to show that the Government or the
IAF has any control over the management of the school.
It is not possible for us to take a contrary view.
9.9. By relying on Dileep Kumar Pandey's case, his
submission is that even if an educational
institution is imparting a public duty, the act
complained upon must have a direct nexus with
the discharge of the public duty. It is only a
discharge of a public duty which would confer a
public law remedy by invoking the extraordinary
writ jurisdiction under Article 226 seeking for a
prerogative writ. His submission is that
individual wrongs or breach of contracts without
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any public element cannot be agitated by way of
a writ petition.
9.10. Sri.Jayakumar Patil, learned senior counsel
submits that he does not dispute the principle
that even a private entity would be amenable to
writ jurisdiction, but his submission is that the
amenability of a private entity or a private party
to a writ jurisdiction would have to be
ascertained with respect to the nexus of the
public functionality vis-a-vis the public. The
claim which has been made and or the right
alleged to have been infringed on. On that basis,
he submits that the society in the present
matter, even if it were to be held to discharge
public function, the dispute between the parties
relating to the management committee would
have to be agitated only by the process and
procedure prescribed under the Societies
Registration Act and not by way of a writ
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petition. His further submission is that if there is
any violation of the Karnataka Education Act, a
complaint could be filed before the appropriate
authorities seeking redressal thereof. The
petitioners cannot oppose this Court seeking for
exercise of power under Article 226 of the
Constitution.
9.11. He relies on the decision in K.K. Saksena v.
International Commission on Irrigation &
Drainage9, more particularly paras 7, 23, 31 to
33, 43 and 52 thereof, which are reproduced
hereunder for easy reference:
7. The plea of the appellant regarding availability of
remedy under Article 226 of the Constitution was
opposed on the ground that ICID does not perform any
public duty which would make it amenable to writ
jurisdiction since its objects stimulate and promote the
development and the application of the arts, sciences
and techniques of engineering, agriculture, economics,
ecology and social sciences in managing water and land
resources for irrigation, drainage, flood control and
river training and for research in a more
comprehensive manner adopting up to date techniques
and its activities cannot be stated to be intrinsically
9 (2015) 4 SCC 670
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public in nature or closely related to those performable
by the State in its sovereign capacity.
23. From the aforesaid it transpires that ICID has been
established as a scientific, technical, professional and
voluntary non-governmental international organisation
dedicated to enhance the worldwide supply of food and
fibre for all people by improving water and land
management for the productivity of irrigated and
drained lands so that there is appropriate management
of water, environment and the application of irrigation,
drainage and flood control techniques. In the opinion of
the High Court, these functions are not similar to or
closely related to those performed by the State in its
sovereign capacity. The activities undertaken by ICID,
a non-governmental organisation, do not actually
partake the nature of public duty or State action and
there was absence of public element. The High Court
also held that duties discharged do not have a positive
application of public nature as ICID carries on voluntary
activities, which many a non-governmental
organisations perform.
31. We have given our thoughtful consideration to the
arguments of the learned counsel for the parties.
32. If the authority/body can be treated as "State"
within the meaning of Article 12 of the Constitution of
India, indubitably a 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 the 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.
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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 authority violates the fundamental
right or other legal rights of any person or citizen (as
the case may be), a 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 "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.
43. What follows from a minute and careful reading of
the aforesaid judgments of this Court is that if a person
or authority is "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 a
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. The reason is obvious. A private law
is that part of a legal system which is a part of common
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law that involves relationships between individuals,
such as law of 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.
52. It is trite that contract of personal service cannot
be enforced. There are three exceptions to this rule,
namely:
(i) when the employee is a public servant working
under the Union of India or State;
(ii) when such an employee is employed by an
authority/body which is a State within the meaning of
Article 12 of the Constitution of India; and
(ii) when such an employee is "workmen" within the
meaning of Section 2(s) of the Industrial Disputes Act,
1947 and raises a dispute regarding his termination by
invoking the machinery under the said Act.
In the first two cases, the employment ceases to have
private law character and "status" to such an
employment is attached. In the third category of cases,
it is the Industrial Disputes Act which confers
jurisdiction on the Labour Court/Industrial Tribunal to
grant reinstatement in case termination is found to be
illegal.
9.12. By relying on K K Saksena's case, his
submission is that a particular body can be
treated as other authority within the meaning of
Article 226. If such body violates the
fundamental rights or other legal rights of any
person or citizen, unless this test is satisfied, the
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extraordinary jurisdiction in Article 226 cannot be
exercised.
9.13. He relies on the decision in S.K. Varshney v. Our
Lady of Fatima Higher Secondary School10,
more particularly paras 6 & 7 thereof, which are
reproduced hereunder for easy reference:
6. The counsel for the appellant relied on a decision
rendered by this Court in K. Krishnamacharyulu v. Sri
Venkateswara Hindu College of Engg. [K.
Krishnamacharyulu v. Sri Venkateswara Hindu College
of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841] He
particularly relied on the observation made by this
Court in para 4 of the order that when an element of
public interest is created and the institution is catering
to that element, the teacher, being the arm of the
institution, is also entitled to avail of the remedy
provided under Article 226.
7. This Court in Sushmita Basu v. Ballygunge Siksha
Samity [Sushmita Basu v. Ballygunge Siksha Samity,
(2006) 7 SCC 680 : 2006 SCC (L&S) 1741] in which
one of us (Sema, J.) is a party, after considering the
aforesaid judgment has distinguished the ratio by
holding that the writ under Article 226 of the
Constitution against a private educational institute
would be justified only if a public law element is
involved and if it is only a private law remedy no writ
petition would lie. In the present cases, there is no
question of public law element involved inasmuch as
the grievances of the appellants are of personal nature.
10 (2023) 4 SCC 539
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9.14. By relying on S.K.Varshney's case, he submits
that a writ petition under Article 226 of the
Constitution against a private educational
institution would be justified only if a public law
element is involved.
9.15. He relies on the decision in Janet Jeyapaul v.
SRM University11, more particularly paras 22,
23, 29 to 33 thereof, which are reproduced
hereunder for easy reference:
22. Having heard the learned counsel for the
parties and on perusal of the record of the case,
we find force in the submissions urged by Mr
Harish Salve.
23. To examine the question urged, it is apposite
to take note of what De Smith, a well-known
treatise, on the subject "Judicial Review" has said
on this question [See de Smith's Judicial Review,
7th Edn., p. 127 (3-027) and p. 135 (3-038)].
"amenability test based on the source of power
The courts have adopted two complementary
approaches to determining whether a function falls
within the ambit of the supervisory jurisdiction.
First, the court considers the legal source of power
exercised by the impugned decision-maker. In
identifying the 'classes of case in which judicial
11 (2015) 16 SCC 530
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review is available', the courts place considerable
importance on the source of legal authority
exercised by the defendant public authority.
Secondly and additionally, where the 'source of
power' approach does not yield a clear or
satisfactory outcome, the court may consider the
characteristics of the function being performed.
This has enabled the courts to extend the reach of
the supervisory jurisdiction to some activities of
non-statutory bodies (such as self-regulatory
organisations). We begin by looking at the first
approach, based on the source of power."
"judicial review of public functions
The previous section considered susceptibility to
judicial review based on the source of the power:
statute or prerogative. The courts came to
recognise that an approach based solely on the
source of the public authority's power was too
restrictive. Since 1987 they have developed an
additional approach to determining susceptibility
based on by the type of function performed by the
decision-maker. The 'public function' approach is,
since 2000, reflected in the Civil Procedure Rules:
Rule 54.1(2)(a)(ii), defines a claim for judicial
review as a claim to the lawfulness of 'a decision,
action or failure to act in relation to the exercise of
a public function'. (Similar terminology is used in
the Human Rights Act, 1998 Section 6(3)(b) to
define a public authority as 'any person certain of
whose functions are functions of a public nature',
but detailed consideration of that provision is
postponed until later). As we noted at the outset,
the term 'public' is usually a synonym for
'governmental'."
(emphasis supplied)
29. Applying the aforesaid principle of law to the
facts of the case in hand, we are of the considered
view that the Division Bench of the High Court
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erred in holding that Respondent 1 is not
subjected to the writ jurisdiction of the High Court
under Article 226 of the Constitution. In other
words, it should have been held that Respondent 1
is subjected to the writ jurisdiction of the High
Court under Article 226 of the Constitution.
30. This we say for the reasons that firstly,
Respondent 1 is engaged in imparting education in
higher studies to students at large. Secondly, it is
discharging "public function" by way of imparting
education. Thirdly, it is notified as a "Deemed
University" by the Central Government under
Section 3 of the UGC Act. Fourthly, being a
"Deemed University", all the provisions of the UGC
Act are made applicable to Respondent 1, which
inter alia provides for effective discharge of the
public function, namely, education for the benefit
of the public. Fifthly, once Respondent 1 is
declared as "Deemed University" whose all
functions and activities are governed by the UGC
Act, alike other universities then it is an
"authority" within the meaning of Article 12 of the
Constitution. Lastly, once it is held to be an
"authority" as provided in Article 12 then as a
necessary consequence, it becomes amenable to
writ jurisdiction of the High Court under Article 226
of the Constitution.
31. In the light of the foregoing discussion, we
cannot concur with the finding rendered by the
Division Bench and accordingly while reversing the
finding we hold that the appellant's writ petition
under Article 226 of the Constitution against
Respondent 1 is maintainable.
32. This takes us to the next argument urged by
the learned counsel for the respondents. Placing
reliance on para 231 of the decision of this Court
in T.M.A. Pai Foundation v. State of Karnataka
[T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] the learned counsel
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contended that even assuming that the appellant's
writ petition is maintainable, yet it should not be
entertained for hearing on merits and instead the
appellant be granted liberty to approach the
District Judge/Additional District Judge of the
District concerned which is designated as Tribunal
till formation of regular Tribunal for redressal of
her grievances as directed by the Constitution
Bench in para 231 of T.M.A. Pai case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC
481 : 2 SCEC 1] .
33. In normal course, we would have been
inclined to accept this submission made by the
learned counsel for the respondents and would
have also granted liberty to the appellant to
approach the Tribunal in terms of the directions
given by the Constitution Bench of this Court. But
since in this case, the Single Judge not only
entertained the appellant's writ petition but he
allowed the writ petition on merits whereas the
Division Bench held [S.R.M. University v. Janet
Jeyapaul, 2013 SCC OnLine Mad 3887] the writ
petition as not maintainable and thus declined to
examine the merits of the controversy involved in
the writ petition.
9.16. He also relies on Janet Jeyapaul's case which
has been relied upon by the petitioner, though
albeit different paragraphs in relation to the said
judgment, and submits that even in Janet
Jeyapaul's case, the Hon'ble Apex Court, left
the discretion to the High Courts to exercise
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jurisdiction under Article 226 inasmuch as certain
tests have been laid down. It is only if those
tests are satisfied that this Court could exercise
jurisdiction under Article 226 and not otherwise
and in that regard, he submits that the injury
which is complained of by the petitioner is not a
fundamental right or a legal right but is a
contractual right under the bylaws of the society
which cannot be enforced by way of a writ
petition under Article 226 of the Constitution.
9.17. He relies on the decision in Rohtas Industries
Ltd. v. Rohtas Industries Staff Union12, more
particularly paras 8 to 16 thereof, which are
reproduced hereunder for easy reference:
8. The short but important issue, which has projected
some serious questions of law, is as to whether the
impugned part of the award has been rightly voided by
the High Court. We may as well formulate them but
highlight the only major submission that merits close
examination, dealing with the rest with terse
sufficiency. In logical order, counsel for the appellant
urged that : (1)(a) an award under Section 10-A of the
12 (1976) 2 SCC 82
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Act savours of a private arbitration and is not amenable
to correction under Article 226 of the Constitution. (b)
Even if there be jurisdiction, a discretionary desistence
from its exercise is wise, proper and in consonance
with the canons of restraint this Court has set down.
(2) The award of compensation by the arbitrators
suffers from no vice which can be regarded as a
recognised ground for the High Court's interference. (3)
The view of law taken by the High Court on (i) the
supposed flaw in the award based on 'mixed motives'
for the offending strike; (ii) the exclusion of remedies
other than under Section 26 of the Act; and (iii) the
implied immunity from all legal proceedings against
strikers allegedly arising from Section 18 of the Trade
Unions Act, 1926 is wrong. A few other incidental
arguments have cropped up but the core contentions
are what we have itemised above.
(1) (a) and (b)
9. The expansive and extraordinary power of the High
Courts under Article 226 is as wide as the amplitude of
the language used indicates and so can affect any
person -- even a private individual -- and be available
for any (other) purpose -- even one for which another
remedy may exist. The amendment to Article 226 in
1963 inserting Article 226 (1-A) reiterates the targets
of the writ power as inclusive of any person by the
expressive reference to 'the residence of such person'.
But it is one thing to affirm the jurisdiction, another to
authorise its free exercise like a bull in a china shop.
This Court has spelt out wise and clear restraints on
the use of this extraordinary remedy and High Courts
will not go beyond those wholesome inhibitions except
where the monstrosity of the situation or other
exceptional circumstances cry for timely judicial
interdict or mandate. The mentor of law is justice and a
potent drug should be judiciously administered.
Speaking in critical retrospect and portentous prospect,
the writ power has, by and large, been the people's
sentinel on the qui vive and to cut back on or liquidate
that power may cast a peril to human rights. We hold
that the award here is not beyond the legal reach of
Article 226, although this power must be kept in
severely judicious leash.
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10. Many rulings of the High Courts, pro and con, were
cited before us to show that an award under Section
10-A of the Act is insulated from interference under
Article 226 but we respectfully agree with the
observations of Gajendragadkar, J., (as he then was) in
Engineering Mazdoor Sabha [Engineering Mazdoor
Sabha v. Hind Cycles Ltd., 1963 Supp (1) SCR 625,
640 : AIR 1963 SC 874 : (1962) 2 LLJ 760] which nail
the argument against the existence of jurisdiction. The
learned Judge clarified at p. 640:
"Article 226 under which a writ of certiorari can be
issued in an appropriate case, is, in a sense, wider than
Article 136, because the power conferred on the High
Courts to issue certain writs is not conditioned or
limited by the requirement that the said writs can be
issued only against the orders of courts or tribunals.
Under Article 226(1), an appropriate writ can be issued
to any person or authority, including in appropriate
cases any Government, within the territories
prescribed. Therefore even if the arbitrator appointed
under Section 10-A is not a tribunal under Article 136
in a proper cases, a writ may lie against his award
under Article 226." (p. 640)
11. We agree that the position of an arbitrator under
Section 10-A of the Act (as it then stood) vis-a-vis
Article 227 might have been different. Today, however,
such an arbitrator has power to bind even those who
are not parties to the reference or agreement and the
whole exercise under Section 10-A as well as the
source of the force of the award on publication derive
from the statute. It is legitimate to regard such an
arbitrator now as part of the methodology of the
sovereign's dispensation of justice, thus falling within
the rainbow of statutory tribunals amenable to judicial
review. This observation made en passant by us is
induced by the discussion at the Bar and turns on the
amendments to Section 10-A and cognate provisions
like Section 23, by Act 36 of 1964.
12. Should the Court invoke this high prerogative
under Article 226 in the present case? That depends.
We will examine the grounds on which the High Court
has, in the present case, excised a portion of the award
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as illegal, keeping in mind the settled rules governing
judicial review of private arbitrator's awards. Suffice it
to say, an award under Section 10-A is not only not
invulnerable but more sensitively susceptible to the
writ lancet being a quasi-statutory body's decision.
Admittedly, such an award can be upset if an apparent
error of law stains its face. The distinction, in this area,
between a private award and one under Section 10-A is
fine, but real. However it makes slight practical
difference in the present case; in other cases it may.
The further grounds for invalidating an award need not
be considered as enough unto the day is the evil
thereof.
13. Thus, we arrive at a consideration of the
appellant's second submission, perhaps the most
significant in the case, that the High Court had no
legitimate justification to jettison the compensation
portion of the award. Even here, we may state that
counsel for the appellants, right at the outset, mollified
possible judicial apprehensions springing from striking
workers being held liable for loss of management's
profits during the strike period by the assurance that
his clients were inclined to abandon realisation of the
entire compensation, even if this Court upheld that part
of the award in reversal of the judgment of the High
Court -- a generous realism. He fought a battle for
principle, not pecunia. We record this welcome fact and
proceed on that footing.
14. The relevant law which is beyond controversy now
has been clearly stated in Halsbury's Laws of England
thus:
"Error of law on the face of award : An arbitrator's
award may be set aside for error of law appearing on
the face of it, though the jurisdiction is not lightly to be
exercised .... The jurisdiction is one that exists at
common law independently of statute. In order to be a
ground for setting aside the award, an error in law on
the face of the award must be such that there can be
found in the award, or in a document actually
incorporated with it, some legal proposition which is
the basis of the award and which is erroneous.
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... where the question referred for arbitration is a
question of construction, which is, generally speaking,
a question of law, the arbitrator's decision cannot be
set aside only because the court would itself have come
to a different conclusion; but if it appears on the face of
the award that the arbitrator has proceeded illegally, as
for instance, by deciding on evidence which was not
admissible, or on principles of construction which the
law does not countenance, there is error in law which
may be ground for setting aside the award,"
(Para 623, p. 334, Vol. 2, Fourth Edn.)
We adopt this as sound statement of the law. Not that
English law binds us but that the jurisprudence of
judicial review in this branch is substantially common
for Indian and Anglo-American systems and so
Halsbury has considerable persuasive value. The wider
emergence of common canons of judicial review is a
welcome trend towards a one-world public law. Indeed,
this Court has relied on the leading English decisions in
several cases. We may content ourselves with
adverting to Bungo Steel Furniture [Bungo Steel
Furniture (P) Ltd v. Union of India, AIR 1967 SC 378 :
(1967) 1 SCR 633] and to the unreported decision
Babu Ram [L. Babu Ram v. Kanhaiyalal, CA No. 107 of
1966 decided on December 5, 1968 (SC)] . In simple
terms, the Court has to ask itself whether the arbitrator
has not tied himself down to an obviously unsound
legal proposition in reaching his verdict as appears
from the face of the award. Bhargava, J., speaking for
the majority, in Bungo Steel stated the law:
"It is now a well-settled principle that if an arbitrator,
in deciding a dispute before him, does not record his
reasons and does not indicate the principles of law on
which he has proceeded, the award is not on that
account vitiated. It is only when the arbitrator proceeds
to give his reasons or to lay down principles on which
he has arrived at his decisions that the Court is
competent to examine whether he has proceeded
contrary to law and is entitled to interfere if such error
in law is apparent on the face of the award itself." (p.
640-641)
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Bharat Barrel & Drum Manufacturing Co. [Bharat Barrel
& Drum Mfg. Co v. L.K Bose, AIR 1967 SC 361: (1967)
1 SCR 739] , dealing with a private award and the
conditions necessary for exercise of writ jurisdiction to
correct an error of law apparent on the record, did not
lay down the law differently from what we have
delineated.
15. In one of the leading English cases Champsey
Bhara & Co. [Champsey Bhara & Co. v. Jivaraj Balloo
Spg. & Wvg. Co. Ltd., AIR 1923 PC 66 : 50 IA 324]
followed in India, Lord Dunedin defined "error of law on
the face of the award" as "where the question of law
necessarily arises on the face of the award or upon
some paper accompanying and forming part of the
award" and said that then only the error of law therein
would warrant judicial correction. The Law Lord
expressed himself luscently when he stated:
"An error in law on the face of the award means, in
Their Lordships' view, that you can find in the award . .
. some legal proposition which is the basis of the award
and which you can then say is erroneous."
Williams, J., in the case of Hodkinsons v. Fernie
[(1857) 3 CBNS 189] hit the nail on the head by using
the telling test as firmly established viz. "where the
question of law necessarily arises on the face of the
award". In this view of the enquiry by the Court before
venturing to interfere is to ascertain whether an
erroneous legal proposition is the basis of the award.
Nay, still less. Does a question of law (not even a
proposition of law) necessarily arise on the award
followed by a flawsome finding explicit or visibly
implicit? Then the Court can correct.
16. Tucker, J., in James Clark [1944 KB 566]
formulates the law to mean that if the award were
founded on a finding which admits of only one
proposition of law as its foundation and that law is
erroneous on its face, the Court has the power and,
therefore, the duty to set right. While the Judge cannot
explore, by chasing subterranean routes or ferret out
by delving deep what lies buried in the unspoken
cerebration of the arbitrator and interfere with the
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award on the discovery of an error of law by such
adventure, it is within his purview to look closely at the
face of the award to discern the law on which the
arbitrator has acted if it is transparent, even,
transluscent but lingering between the lines or merely
wearing a verbal veil. If by such an intelligent
inspection of the mien of the award -- which is an
index of the mind of the author -- an error of law
forming the basis of the verdict is directly disclosed,
the decision is liable to judicial demolition. In James
Clark, the issue was posed with considerable clarity and
nicety. If, at its face value, the award appears to be
based on an erroneous finding of law alone, it must fail.
The clincher is that the factual conclusion involving a
legal question must necessarily be wrong in point of
law. Even though the award contains no statement of
the legal proposition, if the facts found raise "a clear
point of law which is erroneous on the face of it", the
Court may rightly hold that an error of law on the face
of the award exists and invalidates.
9.18. By relying on Rohtas Industries Ltd.,'s case,
his submission is that the High Court could
exercise jurisdiction only when a clear point of
law which is erroneous and has been applied is
made out.
9.19. On the above basis he submits that the present
writ petition is not maintainable and is liable to
be dismissed as such.
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10. Heard Prof.Ravi Varma Kumar, learned Senior counsel
for Sri.Desai Sunil Shantappa, learned counsel for the
petitioner, Sri.Jayakumar S.Patil, learned Senior
Counsel for Sri.Srinivas.B.Naik, learned counsel for r
No.2, Sri.K.L.Patil, learned counsel for respondents
No.3, 5 to 7 and Sri.A.S.Patil, learned counsel for
respondent No.4. Perused papers.
11. The points that would arise for determination are:
i. Whether the writ petition under Articles
226 and 227 of the Constitution of India is
maintainable against Respondent No.2, a
society registered under the Societies
Registration Act, and its managing
committee members, who are private
individuals, in the absence of any
substantive relief sought against the
statutory authority (Respondent No.1 -
Deputy Registrar of Societies)?
ii. Whether Respondent No.2-Society, in view
of its long-standing role in imparting
education, receipt of governmental grants,
and regulation under the Karnataka
Education Act, discharges public functions
or public duties so as to be amenable to
writ jurisdiction under Article 226 of the
Constitution?
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iii. Whether disputes pertaining to the internal
management, governance, and office-
bearer arrangements of a registered
society, even if engaged in public functions,
fall within the realm of public law remedies
or are essentially private law disputes
requiring recourse to statutory or civil
remedies?
iv. Whether the existence of alternative
remedies under the Societies Registration
Act or other applicable statutes constitutes
a bar, either absolute or discretionary, to
the exercise of writ jurisdiction in the facts
of the present case?
v. What order?
12. I answer the above points as under:-
13. Answer to Point No.1: Whether the writ petition
under Articles 226 and 227 of the Constitution of
India is maintainable against Respondent No.2, a
society registered under the Societies
Registration Act, and its managing committee
members, who are private individuals, in the
absence of any substantive relief sought against
the statutory authority (Respondent No.1 -
Deputy Registrar of Societies)?
13.1. Article 226 of the Constitution of India
undoubtedly confers upon the High Courts a wide
and plenary power to issue writs, orders, or
directions to "any person or authority". The
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amplitude of this expression has been repeatedly
emphasised by the Hon'ble Supreme Court to
clarify that the writ jurisdiction of the High
Courts is not confined to the State or its
instrumentalities within the meaning of Article 12
of the Constitution. However, it is equally well
settled that the width of the power does not
render it amorphous or unprincipled. The
jurisdiction under Article 226 is not a general
dispute-resolution mechanism. It is a
constitutional public law remedy, intended to
ensure that public power--whether exercised by
the State, a statutory authority, or a non-
statutory body entrusted with public functions--is
exercised lawfully, fairly, and within the bounds
of authority.
13.2. Thus, the true basis for exercise of power under
Article 226 is not merely the identity of the
respondent, but the nature of the power
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exercised and the character of the duty alleged
to have been breached.
13.3. In the present case, Respondent No.1 - the
Deputy Registrar of Societies - is undoubtedly a
statutory authority under the Karnataka Societies
Registration Act. However, a careful scrutiny of
the pleadings and the reliefs sought reveals that
no writ, direction, or declaratory relief is sought
against Respondent No.1. No order passed by
the Deputy Registrar is under challenge. No
inaction, omission, or failure attributable to him
is pleaded. No statutory power exercised by him
is alleged to be illegal, arbitrary, or ultra vires.
13.4. The entire lis, in substance and effect, is directed
against:
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13.4.1. the resolutions passed by the Managing
Committee of Respondent No.2-Society;
and
13.4.2. the consequential actions taken by
Respondents No.3 to 7, who are
admittedly private individuals.
13.5. The mere arraying of Respondent No.1 as a
party, therefore, does not infuse the dispute with
a public law character, nor does it convert what
is essentially an intra-society dispute into one
involving statutory adjudication.
13.6. It is a settled and salutary principle of
constitutional law that a writ petition cannot be
rendered maintainable merely by impleading a
statutory authority as a pro forma respondent,
particularly where:
13.6.1. no relief is claimed against such authority;
and
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13.6.2. no statutory function exercised by it is
subjected to judicial scrutiny.
13.7. To hold otherwise would enable litigants to
circumvent ordinary civil or statutory remedies
by approaching this court simply impleading a
public authority, thereby converting Article 226
into a general forum for resolution of private
disputes, which has been consistently deprecated
by constitutional courts.
13.8. The Hon'ble Supreme Court in Binny Ltd. v.
Sadasivan has unequivocally held that the writ
of mandamus is pre-eminently a public law
remedy and cannot be invoked for enforcement
of purely private rights. The Hon'ble Apex Court
made it clear that even where a private body is
involved, the determinative consideration is
whether the duty sought to be enforced is public
in nature.
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13.9. Similarly, in Federal Bank Ltd. v. Sagar
Thomas, the Supreme Court underscored that
the existence of regulatory control, or the fact
that an entity performs activities of public
importance, does not ipso facto render every
action of such entity amenable to writ
jurisdiction.
13.10. This principle has been reaffirmed in Umri
Pooph Pratappur Tollways Pvt. Ltd. v. M.P.
Road Development Corporation, wherein the
Hon'ble Supreme Court has reiterated that the
nature of the dispute, and not merely the
presence of a public or statutory party, is
decisive of maintainability.
13.11. Applying these well-settled principles, I'am of the
considered view that, in the absence of any
challenge to a statutory act or omission
attributable to Respondent No.1, the
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maintainability of the present writ petition must
necessarily be examined solely with reference to
Respondent No.2 and the private individuals
arrayed as Respondents No.3 to 7.
13.12. I answer Point No.1 by holding that a writ
petition under Articles 226 and 227 of the
Constitution of India is not maintainable
against Respondent No.2, a society
registered under the Societies Registration
Act, and its managing committee members,
who are private individuals, in the absence
of any substantive relief being sought
against a statutory authority in this case
Respondent No.1 - Deputy Registrar of
Societies?
14. Answer to Point No.2: Whether Respondent
No.2-Society, in view of its long-standing role in
imparting education, receipt of governmental
grants, and regulation under the Karnataka
Education Act, discharges public functions or
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public duties so as to be amenable to writ
jurisdiction under Article 226 of the Constitution.
14.1. Learned Senior Counsel for the petitioners has
placed extensive reliance on decisions such as
Andi Mukta Sadguru, Ramesh Ahluwalia,
Janet Jeyapaul, Revathi, Zee Telefilms, and
Chandrakant, to contend that Respondent
No.2-Society, by reason of imparting education
and receiving governmental grants, performs a
public function and is therefore amenable to writ
jurisdiction.
14.2. There can be no quarrel with the broad legal
proposition that imparting education is a public
function. This principle is now firmly entrenched
in constitutional jurisprudence. The Hon'ble
Supreme Court has consistently recognised that
education is not a purely private or commercial
activity, but one imbued with public interest and
societal significance.
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14.3. Consequently, it is well established that private
educational institutions, whether aided or
unaided, may, in appropriate cases, be subjected
to writ jurisdiction, particularly where the
grievance pertains to admissions, fixation of
fees, service conditions governed by statute, or
compliance with regulatory frameworks under
education laws.
14.4. However, constitutional jurisprudence in this
area draws a critical and carefully calibrated
distinction between:
14.4.1. the amenability of an institution to writ
jurisdiction; and
14.4.2. the amenability of every action of such
institution to judicial review under Article
226.
14.5. The Hon'ble Supreme Court has repeatedly
cautioned that amenability does not operate in
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rem. It does not follow that merely because an
institution performs a public function, every
dispute involving that institution automatically
acquires a public law character.
14.6. In Binny Ltd., the Supreme Court succinctly
held that:
"The scope of mandamus is limited to
enforcement of public duty. It cannot be
issued to enforce purely private rights."
14.7. Likewise, in Federal Bank Ltd., it was clarified
that even where an entity performs some public
functions, writ jurisdiction will lie only when the
impugned action bears a clear public law
element.
14.8. In the present case, the challenge is not directed
against the functioning of any educational
institution, the imparting of education,
compliance with the Karnataka Education Act or
allied rules, or any regulatory action affecting
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students, teachers, or the public at large.
Instead, the challenge is confined exclusively to
internal resolutions of the Managing Committee
relating to the removal and appointment of office
bearers.
14.9. Such actions, though undertaken by a society
that runs educational institutions, do not
constitute the discharge of a public function.
They relate solely to the internal governance and
administration of the Society.
14.10. Accordingly, while Respondent No.2 may, in
appropriate circumstances, be amenable to writ
jurisdiction, the present dispute neither arises
from nor implicates the public duties discharged
by the Society.
14.11. Hence I Answer Point No.2 by holding that
though Respondent No.2-Society, in view of
its long-standing role in imparting
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education, receipt of governmental grants,
and regulation under the Karnataka
Education Act, discharges public functions
or public duties and can be amenable to
writ jurisdiction under Article 226 of the
Constitution where public duties are
concerned, the present dispute/lis is not
one which would make it amenable to Writ
Jurisdication.
15. Answer to Point No.3: Whether disputes
pertaining to the internal management,
governance, and office-bearer arrangements of a
registered society, even if engaged in public
functions, fall within the realm of public law
remedies or are essentially private law disputes
requiring recourse to statutory or civil remedies.
15.1. This issue goes to the very heart of the present
controversy.
15.2. The Hon'ble Supreme Court in Zee Telefilms
and Binny Ltd. has drawn a clear and principled
distinction between actions involving the
discharge of public law functions and disputes
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relating to internal management or private
rights.
15.3. Disputes concerning election of office bearers,
passing of no-confidence motions, interpretation
of bye-laws, and the composition and functioning
of managing committees have consistently been
held to be private law disputes, notwithstanding
the public importance of the activities
undertaken by the institution concerned.
15.4. In Umri Pooph Pratappur Tollways, the
Hon'ble Supreme Court reiterated that the
functionality test must be applied to the
impugned action itself, and not to the general
nature or objectives of the institution.
15.5. Applying that test to the present case, it is
evident that the impugned actions arise out of
alleged procedural irregularities in internal
meetings, involve rival claims to office and
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authority, necessitate interpretation of bye-laws,
and would require adjudication of disputed
questions of fact.
15.6. Such matters are wholly alien to the exercise of
writ jurisdiction and fall squarely within the
domain of civil or statutory adjudication, where
evidence can be led and factual controversies
resolved.
15.7. This Court cannot, under Article 226, assume the
role of an appellate or supervisory authority over
the internal governance of a registered society.
15.8. Thus, I answer Point No.3 by holding that
disputes pertaining to the internal
management, governance, and office-
bearer arrangements of a registered
society, even if engaged in public functions,
would not fall within the realm of public law
remedies since they are essentially private
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law disputes requiring recourse to statutory
or civil remedies.
16. Answer to Point No.4: Whether the existence of
alternative remedies under the Societies
Registration Act or other applicable statutes
constitutes a bar, either absolute or
discretionary, to the exercise of writ jurisdiction
in the facts of the present case.
16.1. As held in Whirlpool, Tantia Construction,
and ABL International, the existence of an
alternative remedy is not an absolute bar to the
exercise of writ jurisdiction.
16.2. However, the same line of authority equally
emphasises that the High Court must exercise
self-imposed restraint, particularly where the
dispute is essentially private in nature and
efficacious statutory or civil remedies are
available.
16.3. Under the Karnataka Societies Registration Act,
disputes relating to management, governance,
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elections, and internal resolutions can be
agitated before the competent statutory
authorities or civil courts.
16.4. The petitioners have failed to demonstrate the
existence of any exceptional circumstance, such
as violation of fundamental rights, lack of
jurisdiction, or manifest arbitrariness by a public
authority, which would justify bypassing those
remedies.
16.5. I answer Point No.4 by holding that the
existence of alternative remedies under the
Societies Registration Act or other
applicable statutes constitutes a
discretionary bar to the exercise of writ
jurisdiction in the facts of the present case.
The extraordinary jurisdiction under Article
226 of the Constitution of India is not
intended to supplant statutory or civil
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remedies, and would ordinarily not be
exercised where such efficacious remedies
are available. It is only in exceptional and
compelling circumstances, to be established
on a case-to-case basis, that this Court may
depart from the rule of self-imposed restraint
and exercise its discretionary jurisdiction.
17. Answer to Point No.5: What order?
17.1. For the reasons discussed above, it is clear that:
17.1.1. The writ petition is not maintainable against
Respondent No.2 and Respondents No.3 to
7 in the absence of any substantive relief
against Respondent No.1.
17.1.2. Though Respondent No.2 may discharge
public functions in the field of education,
the impugned actions do not arise from
such public functions.
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17.1.3. The dispute pertains to internal
management and governance of a society
and is essentially a private law dispute.
17.1.4. Availability of alternative statutory
remedies, coupled with the private nature
of the dispute, warrants refusal to exercise
writ jurisdiction.
17.1.5. Hence, I pass the following
ORDER
i. The writ petition is dismissed as not
maintainable.
ii. Liberty is reserved to the petitioners to avail such
remedies as are available to them in accordance
with law before the appropriate forum. All
contentions are left open.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
List No.: 19 Sl No.: 1
