JUDGMENT The petitioner was commissioned in the Indian Army in 1969. He retired as Lt. Col. of the Indian Army on 29th June, 1997. The writ petition was filed on 14th September, 1997. The basic allegation in the writ petition is that the respondents were misutilising property belonging to the Army for commercial purposes. The land is question is a recreational centre called "Sangam” run by the Army Officers' Institute. According to the petitioner, civilians were being permitted to use the facilities at Sangam upon payment of hiring charges for holding various social functions. The petitioner has claimed that such user of Army land for commercial purposes was illegal. His complaint is that such user jeopardised defence security as the land was situated in Fort William, a high security area. His further grievances are that by such use, Army personnel were being deprived of the freedom to use the facilities in the complex and also that monies realised from such commercial activity were not being properly accounted for by the AOI nor deposited with the Government Treasury. 2. The petitioner has claimed that he had an impeccable service record. It is his allegation that after he was posted in Calcutta in 1994, he had raised questions regarding the running of the Sangam Complex by the Army Officers' Institute. According to the petitioner by reason of this, the respondents No.3, 5, 6 and 7 who are all office holders of the Army Officer Institute had acted vindictively against the petitioner and his family. The petitioner’s membership of the Army Officers Institute was ultimately suspended by the respondents Nos. 5, 6 and 7 on 5th November, 1996. In the writ petition apart from claiming several reliefs with regard to the running of the Army Officers' Institute, the petitioner has also challenged the termination of his membership. This challenge was not pressed by the petitioner. 3. The respondents Nos.5, 6 and 7 have filed an affidavit-in-opposition. The other respondents have not filed any affidavit but have supported the stand of the respondents Nos. 5, 6 and 7. 4. Apart from denying the allegations made by the petitioner on merit, the respondents have raised two preliminary objections. According to the respondents the writ application was not maintainable because the Army Officers' Institute (AOI) was not an in Instrumentality of the State within the meaning of Article 12 of the Constitution. 5, 6 and 7. 4. Apart from denying the allegations made by the petitioner on merit, the respondents have raised two preliminary objections. According to the respondents the writ application was not maintainable because the Army Officers' Institute (AOI) was not an in Instrumentality of the State within the meaning of Article 12 of the Constitution. They say that AOI is not a statutory body nor is it managed out of public funds. They claim that the AOI is a private organisation in the nature of a member's service club which provides social and sports facilities to Army Officers and their families. They have also claimed that no Central or State Organisation has any control whatsoever over the conduct of the affairs and administration of the Institute. The respondents have relied upon a Bench decision of the High Court of Jammu & Kashmir in (1) Mrs. Asha Khosa v. Chairman, Army Public School reported in Military Law Journal 1997 J & K 71, and an unreported decision of a Single Judge of the Punjab and Haryana High Court in (2) Sarasamma v. Union of India (Civil Writ Petition 12654 of 1993: Judgment dated October 31, 1995) in support of this contention. 5. The second preliminary objection taken by the respondents is that the petitioner did not have the locus standi to challenge the running of the AOI as he was not a member of the Institute at present. 6. The first preliminary objection is misconceived. The question whether the AOI is an Instrumentality of the State or other authority within the meaning of Article 12 of the Constitution arises only when there is a separate legal persons or entity sought to be made liable under Article 226. Thus the Issue would have been germane if the AOI were a company or a registered society or a statutory body which can be sued or sue in its own name. The AOI is none of these. 7. The setting up of Institutes to deal with the recreational facilities for Army personnel is referred to in the Governmental publication setting out Scales of Accommodation for Defence Services, 1983. The publication lays down parameters for various types of accommodation both residential and official. Chapter VIII deals with training and recreational facilities. The AOI is none of these. 7. The setting up of Institutes to deal with the recreational facilities for Army personnel is referred to in the Governmental publication setting out Scales of Accommodation for Defence Services, 1983. The publication lays down parameters for various types of accommodation both residential and official. Chapter VIII deals with training and recreational facilities. There include Auditorium cum Cinema Hall, Education Buildings, Gymnasium, Institutes including Officers Institutes, Parade Grounds, Ranges, Recreation Grounds and Playing Courts and Swimming Pools. The floor area and the special facilities have been indicated for the Officers Institutes. In other words, Army Officers' Institutes are set up as part of the facilities made available to the Defence Services personnel by the Government. 8. According to the Cantonment Land Administration Rule, 1937 (referred to as the Rules) framed under the Cantonments Act, 1924 and published in the Military Lands Manual, land in a Cantonment is classified into three categories; (i) Class A land-which is required or reserved for specific military purposes; (ii) Class B land-which is not so required or reserved but contained In the Cantonment for effective discharge of the duties of the Central Government in respect of military administration and (iii) Class C land-which is vested in the Cantonment Board under Section 108 of the 1924 Act. Land In Class A is further sub divided into two categories viz. A-1 and A-2. Class A-1 land is land in the “Active occupation of the Army", Class A-2 land is land which for specific reasons must be kept vacant and must not be built over. There is no dispute that the Sangam Complex is on defence land which classified as A-1. 9. Rule 5 gives further particulars of Class A-1 land :- "Class A(i) Land which is actually used or occupied by the Military Authorities, for the purposes of 'fortifications, barracks, stores, arsenals, aerodromes, bungalows for Military Officers which are the property of Government, parade grounds, military recreation grounds, rifle ranges, grass farms, dairy farms, brick fields, soldiers and hospital gardens as provided for in Paragraphs 419, 421 and 425 of the Regulations for the Army in India and other official requirements of the Military Authorities." 10. The phrase "Military Recreation Grounds" has been clarified in Memo No. 554-R/D-4 dated 15th June, 1938 published in the Land Manual :- "The definition of military recreation grounds has been deliberately framed with some strictness in order to secure the correct classification of Class "A" land and to put an end to the ambiguous position which many such grounds have occupied in the past Recreation grounds which arc not strictly reserved for the use of the troops alone. but which are also open to the civil members of the community cannot properly be placed in Class "A". A race course for Instance, cannot under the definition be included in Class “A" land unless not only all the officials in whom management of the club vests are members of the Army, but also the ruin of the club provide that they must be so. Where areas of land are used for the general recreation of the community or for the members. whether civil or military of a particular club, and it is desired to retain the land for this purpose, the only correct course is for the club or other body which maintains the ground to take out a regular lease from the Military Estate Officer." 11. Rule 9(6) (II) of the Rules provides : “Class “A"(i) Land under the Management of the Military Estate Officer. By Defencc Department letter No. 974/R/2/D.4. dated 2nd September, 1938, all Class “A"(i) land in cantonments other than that placed under the management of the Military Authorities themselves has been entrusted under sub rule (i) of this rule to the management of the Military Estate Officer. While military recreation grounds other than golf courses and race courses have been entrusted to the management of the military authorities, parade grounds or portion of parade grounds which are used for recreational purposes, but which are not separately classified as "Military Recreation Grounds" will remain under the management of the Military Estate Officer." 12. Special Rules have been framed for Class “A” land in Chapter 4 of the Cantonment Administration Rules. Rule 14 inter alia provides : "14. Special Rules for Class "A" Lands-(i) The administrative control of Class "A" (1) land including the detection and prevention of encroachment thereon, shall vest in the Military Authorities for the time being in occupation of the land. Rule 14 inter alia provides : "14. Special Rules for Class "A" Lands-(i) The administrative control of Class "A" (1) land including the detection and prevention of encroachment thereon, shall vest in the Military Authorities for the time being in occupation of the land. The administrative control of Class “A” (2) land shall vest in the Central Government. * * * * * * * * (3) Land in Class “A” (i) shall not be used or occupied for any purpose other than those stated in sub rule (i) of Rule 5 without the previous sanction of the Central Government or such authority as they may appoint in this behalf ; Provided that the temporary use of Class "A" (1) land which is under the management of the Military Authorities may be permitted by those Authorities for the storage of materials by contraction for the purpose of carrying out Government work. Such permission shall be given in writing by the Officer of the Military Engineer Services in charge of the work and shall remain in force only for such period as be may consider reasonable." 13. It is clear from the aforesaid that the AOI and the entire recreational complex is on defence land the management of which is vested in the Military Authorities for specific military purposes. The providing of recreational facilities to any personnel is recognised as a military purpose. No lease has been produced by the respondents nor does it appear from the balance sheet of AOI that the lands in its occupation are occupied by it as lessee for which rent is paid to the Army Authorities. The occupation and use of AOI is the occupation and use of the Military Authorities. It is not a private organisation. 14. The AOI's Rules also indicate that it is not an entity separate from the Army nor a private organisation as contended by the respondents. The main object of AOI, according to AOI's Rules, is to provide facilities for Army Officers. Rule 2 reads:- "The aim of the Army Officers' Institute. Fort William is to provide social and sport facilities to Army Officers and their families living in greater Calcutta as economically as possible in keeping with their social status." 15. The main object of AOI, according to AOI's Rules, is to provide facilities for Army Officers. Rule 2 reads:- "The aim of the Army Officers' Institute. Fort William is to provide social and sport facilities to Army Officers and their families living in greater Calcutta as economically as possible in keeping with their social status." 15. According to its rules the Patron of the Institute is the GOC-in-C, Eastern Command; the President is the Chief of Staff at the Headquarters Eastern Command and the general body consists of serving Army Officers' members. Civilians are not entitled to membership of the Institute. The AOI is, therefore, manned exclusively by Senior Army personnel who control its running ex officio. The overall control of the AOI is in the board of management made up of Senior Army Officers who also hold the posts ex-officio. The Rules provide for AOI's accounts to be audited quarterly by an Audit Board appointed by the H.Q. Eastern Command. The Audit Board proceedings is required to be submitted to H.Q. Easter. Command Rule 45(b) also provides :- “An annual stock taking-cum-survey-cum-valuation board will be detailed in April every year by H.Q. Easter. Command to take the stock of entire property of the Institute and also to survey the same as to their serviceability and value. Proceedings will be put up to H.Q. Eastern Command for information of the President by 31st July each year. 16 In Mrs. Asha Khosa's case (Supra) cited by the respondents, the Principal of the Army - Public School had claimed relief under Article 226 against the School regarding her working conditions. The writ petition was rejected on the ground that the Army Public School was not an instrumentality of the State. It was a society registered under the Societies Act and was run by a governing body and the source of the funds were from tuition fees and private donations and not governmental nor was the School controlled by the Central or State Government. The AOI is not a registered society. 17. In the unreported Punjab & Haryana case relied on by the respondents, the question which arose for consideration was whether an Army Canteen was an instrumentality of the State. The AOI is not a registered society. 17. In the unreported Punjab & Haryana case relied on by the respondents, the question which arose for consideration was whether an Army Canteen was an instrumentality of the State. The learned Judge decided the question in the negative in the background of the facts that the Canteen was not created by statute; that the Canteen paid rent, water and electricity charges for the use of the premises provided to it ; that there was no evidence of funds being provided by the Government ; that the food supplied by the Canteen Stores Department was paid for by the Canteen; that Its accounts were audited privately and that no agency of the Government either controlled or regulated the appointment of the employees of the Canteen. This case is therefore also distinguishable on facts. 18. It is clear from the facts of this case that the AOI is a part of the Army. The AOI is method by which the Army itself regulates the recreational facilities to Officer members of the Armed forces and their families. I would therefore hold that as the relief claimed is against the defence authorities and the State under Article 12 there can be no question that the writ application is maintainable. 19. The second submission of the respondent is also untenable. The petitioner is not seeking to ventilate a private grievance. The relief claimed is “corrective rather than compensatory". The issues raised affects public interest and the petitioner could maintain the action as a concerned Citizen. As a retired Army Officer, the petitioner has a right to casual membership or the AOI and the use of its facilities. He cannot be described as a mere officious by tender nor can it be said that the writ petition is actuated by personal grudge. According to Paragraph 49 of the petition the petitioner questioned the activities of the AOI relating to the use of "Sangam" as early as 1994 much before the dispute with regard to the petitioner's suspension as a member of AOI. The fact has not been denied in the affidavit by the respondents Nos. 5, 6 and 7 nor indeed by the other respondents. The genuineness and bona fides of the concern relating to the alleged misutilisation of defence land and funds cannot therefore be denied. 10. This brings me to the merits of the case. The fact has not been denied in the affidavit by the respondents Nos. 5, 6 and 7 nor indeed by the other respondents. The genuineness and bona fides of the concern relating to the alleged misutilisation of defence land and funds cannot therefore be denied. 10. This brings me to the merits of the case. That the Sangam Complex is used by civilians is not in dispute. According to respondents Nos. 5, 6 and 7 the civilians avail of the Sangam Complex only as guests. The respondents have said in their affidavit that "all bookings must be made in the name of a member of the Institute". The language in the respondent’s affidavit would suggest that the bookings may be made for utilisation by outsiders under the cover of an Officer's name who is a member of the Institute. The reservation forms appended to the rules of AOI in fact show that separate charges have been framed for different classes of users. These are :- (I) Serving and retired Officers; (II) Non-member serving Officers posted in Eastern Command; (III) Non-member serving Officers outside Eastern Command, and released Officers members only and (IV) Parties sponsored by members. 21. The fourth class of users includes civilians. A sponsor is someone who takes responsibility or stands surety for another. That "other" docs not fall within the three other categories and are therefore by definition non-members who are another serving Officers nor retired 'Officers nor released Officers. They can therefore only be civilians. The distinction between the four classes is also revealed from the scale of charges realised from each of those four categories. For example, in respect of Class (I) noted earlier, reservation for the guests is Rs. 750/- and A.C. charges for utilisation of the Sangam hall in Rs. 500/-. Charges leviable for Classes (ii) and (iii) in respect of the same two Items are Rs.1,500/- and Rs. 750/- respectively. However, In respect of the sponsored parties reservation is Rs.5,000/- for the first 100 guests and the A.C. charges for the Sangam hall is Rs.1,000/-. 22. To sponsor a party does not mean that the persons sponsored are the guests of the sponsorer as contended by the respondents. 750/- respectively. However, In respect of the sponsored parties reservation is Rs.5,000/- for the first 100 guests and the A.C. charges for the Sangam hall is Rs.1,000/-. 22. To sponsor a party does not mean that the persons sponsored are the guests of the sponsorer as contended by the respondents. If that were so this would be covered by the charges specified for Class (i) as the guests would be guests of the Officer and there would be no need to provide for separate charges in cases of sponsored parties 23. That the Sangam Complex is utilised for functions held by civilians is also borne out by an advertisement published in the local newspaper which reads a. follows:- “Raja Dance, 97 at Sangam. Fort William June 8. Cards available at Commonwealth Jewellers opposite Scoop, New Empire Cinema." 24. It may be, as stated by the respondents, that the dance was subsequently cancelled. But the advertisement would show that Sangam was open to user by the public. The petitioner also produced several cards relating to social functions such as marriages and other receptions held at Sangam by civilians. 25. The respondents had stated in their affidavit that they would produce all the records at the hearing. That was not done. But the facts on record establish the further allegation of the petitioner that the Sangam Complex was and is being utilised for commercial purposes in the sense that the Army land is being wrongly allowed to be utilised by the civilians for a consideration. Apart from the fact that Class “A" land can only be used strictly for military purposes and personnel no authority has been shown to this Court by the respondents as to how though the Army Officers' Institute, lands reserved strictly for the use of the troops alone can become the source of profit. The need is to provide recreational facilities to the Army personnel, economically i.e. on a no profit no loss basis. It may be that the object of earning the profit is laudable, but it is not an activity which is permitted by law. 26. The need is to provide recreational facilities to the Army personnel, economically i.e. on a no profit no loss basis. It may be that the object of earning the profit is laudable, but it is not an activity which is permitted by law. 26. In any event, it is clear from the Rules as well as Memo No. 554-R/D 4 quoted earlier that as long as the area occupied by the AOI Including Sangam remains classified as Class "A" land no civilians can be permitted to utilise the facilities to the manner the respondents have and are allowing them to be utilised. 27. The final complaint of the petitioner pertains to the utilisation of the amounts realised on account of the charge, of sponsored parties. The petitioner has relied upon a circular issued by the Ministry of Defence to the Chiefs of Army, Naval and Air Staff dated 20th December, 1995 to contend that the revenue realised by the respondents was bound to be deposited in the Government Treasury. There is no dispute that the amounts realised by the AOI from the sponsored parties are not deposited to the Government Treasury. According to the affidavit-in-opposition, the funds of the AOI have been kept in deposit. with "Scheduled Banks and Government Undertakings like SAIL etc.” In another part of the affidavit of the respondents Nos. 5, 6 & 7. It has been said that "the deposits have bees duly made with various organisations as investments in the name of Chief Staff Welfare Funds". It is further stated that the funds of the Institute were "its own property and that its surplus funds are transferred to Chief of Staff Welfare Funds and maintained in such account". 28. As the AOI is not a separate entity as observed earlier the question of the funds belonging to the AOI does not arise. It may be that the accounts of the AOI are duly audited but nevertheless it is not permissible for the respondents to treat the income of the Institutes as “Its private property and not as part of Government funds" The question of any part of the defence services reaping profits from utilisation of military lands and treating the profits as its own and not as part or the Government foods does not arise. 29. The Circular relied upon by the petitioner in this context is however inapposite. 29. The Circular relied upon by the petitioner in this context is however inapposite. The Circular which is dated 20th September, 1995 reads as follows :- "To' The Chief of Army Staff The Chief of Naval Staff The Chief of Air Staff. Sub.: Usage of temporarily surplus Defesce Lands for agricultural/horticultural purposes. Sir, I am directed to refer to this Ministry's letter No.11026/1/75/D (Lands) dated 10.5.1976 on the subject and to say that in supersession of the above it has been decided that :- (a) Land placed under the management of the Army, Navy and the Air Force, which is intended to be put to cultivation/let out for other commercial purposes, shall be placed under the management of the Defence Estates Officer concerned. (b) (I) Regimental centers/units shall not let out defence lands on lease/licence of contract nor shall they engage any troop or private labour for agricultural cultivation. Where It is considered advantageous in Government interest to let the land out on lease/licence or contract or have it cultivated by security cleared private labour, the said land shall be placed under the management of the Defence Estates Officer. (ii) All revenues realised from Defence land/Defence Estates shall be deposited in the Government Treasury so as to form part of the consolidated Fund of India (iii) The provisions, as contained in (b)(i) & (ii) above, will, however, not apply to Soldiers' and Hospital Gardens-which have been so declared by Government under the Army Regulations. 30. The subject of the letter limits its applicability to temporarily surplus defence lands for agricultural/horticultural purposes The AOI is not situated on such land. 31. The respondents have not relied upon any provision of law relating to the investment of fund by the military authorities. In my opinion the relevant provision is Section 107 of the Cantonments Act, 1924 which provides:- . ["107. Custody of Cantonment Fund.- (1) Where In or near a cantonment there is a Government Treasury or sub-treasury or a branch of the State Bank of India or a subsidiary Bank or a nationalised Bank, the cantonment fund shall be kept in such treasury, sub treasury or Bank as the Board may deem fit. ["107. Custody of Cantonment Fund.- (1) Where In or near a cantonment there is a Government Treasury or sub-treasury or a branch of the State Bank of India or a subsidiary Bank or a nationalised Bank, the cantonment fund shall be kept in such treasury, sub treasury or Bank as the Board may deem fit. Explanation-In this section,- (i) Nationalised Bank" means a corresponding new Bank specified in the first Schedule to the Bank Companies (Acquisition and Transfer of Undertakings) Act, 1970 or the Banking Computes (Acquisition and Transfer of Undertakings) Act, 1980 ; (ii) "State Bank of India" means the State Bank of India constituted under the State Bank of India Act, 1955 ; (iii) "Subsidiary Bank" means a subsidiary Bank defined in the State Bank of India (Subsidiary Banks) Act, 1959] [(2)] A [Board] may from time to time with the previous sanction of the [Officer Commanding-in-Chief, the Command] invest any portion of its cantonment fund in Security of the [Central Government] or in such other securities, including fixed deposits in Banks, as the [Central Government] may approve in this behalf, and may dispose of such investments or vary them for others of a like nature. [(3)] The Income resulting from any fixed deposit or from any such security as is referred to in (Sub-Section (2)] or from the proceeds of the sale or any such security shall be credited to the cantonment fund." 32. Although this provision would appear to deal with Class-C defence and, the same principles would apply mutatis mutandis in the absence of any other provisions in the Act. In the circumstances I am of the view that the petitioner has been able to establish irregularity in the utilisation of the Sangam Complex by the respondent authorities. Having regard to this finding, it is not necessary for me to consider the broader question as to whether such user jeopardises the defence security. The writ application is accordingly allowed by issuing a writ of mandamus on the respondents Nos. 1 & 2 to ensure that the Sangam Complex is not utilised by persons other than military personnel or for purposes other than providing recreational facilities to the military personnel whether serving or retired. No civilian should be permitted user of Sangam Complex by way of sponsored parties as long as the property remains A-1 land. The respondents Nos. 1 & 2 to ensure that the Sangam Complex is not utilised by persons other than military personnel or for purposes other than providing recreational facilities to the military personnel whether serving or retired. No civilian should be permitted user of Sangam Complex by way of sponsored parties as long as the property remains A-1 land. The respondents Nos. 1, 2 and 3 will also ensure that the Income generated from utilisation of military property under the umbrella of AOI shall, after meeting the expenses. In connection with the proper running of the Institute, be deposited in keeping with the provisions of Section 107 of the 1924 Act. There will be no order as to costs.