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2005 DIGILAW 1613 (ALL)

Suresh Ram Late Jagdish v. State of U. P.

2005-08-30

RAKESH TIWARI

body2005
RAKESH TIWARI, J. ( 1 ) HEARD learned counsel for the parties and perused the record. ( 2 ) KSHETRIYA Shri Gandhi Ashram Khadi Bhandar, Saidpur, District Ghazipur is a society registered under the U. P. Co-Operative Societies Act, 1965. The petitioner claims that while he was working as the Incharge of Shri Gandhi Ashram Khadi Bhandar he made a complaint against respondent no. 4 out of which personal grudge he was not only transferred from Shri gandhi Ashram Khadi Bhandar, Station Road, Mirzapur to Shri Gandhi Ashram Khadi Bhandar, chowk, Mirzapur but also reverted to the post of Assistant. The petitioner filed a representation against the aforesaid order of transfer and reversion alleged to have been passed against him by the respondents out of vengeance for the above-mentioned complaint. However, respondent no. 2 by order dated 8. 10. 2003 directed that the petitioner shall remain posted on the post of Incharge. Thereafter the petitioner was transferred from Shri Gandhi Ashram Khadi Bhandar, Chowk, mirzapur to Shri Gandhi Ashram Khadi Bhandar, Chopan, District Sonebhadra vide order dated 7. 4. 2004. The petitioner has come up in this writ petition against the impugned order dated 7. 4. 2004. ( 3 ) THE learned counsel for the petitioner has submitted that the day-to-day information is sent by shri Gandhi Ashram Khadi Gram Udyog regarding sale etc. which does not in any way establish that respondent Nos. 2, 3 and 4 are State within the meaning of Article 12 of the Constitution in view of the Division Bench decision of this Court rendered in Writ Petition No. 3110 of 1990. ( 4 ) A preliminary objection has been raised by Sri Rajeev Sharma, learned counsel fore the respondents that the writ petition is not maintainable as Shri Gandhi Ashram Khadi Bhandar has been held not to be a State by a Division Bench of this Court in Writ Petition No. 3842 of 1990 (Ram Jokhan Singh and Ors. v. Union of India and Ors.) connected with Writ Petition No. 8639 of 1990 (Dhirendra Brahmchari and Ors. v. Union of India and Ors. ). He has also placed reliance upon the judgments passed by His Lordship Honble Mr. Justice Sunil Ambwani in Writ Petition nos. v. Union of India and Ors.) connected with Writ Petition No. 8639 of 1990 (Dhirendra Brahmchari and Ors. v. Union of India and Ors. ). He has also placed reliance upon the judgments passed by His Lordship Honble Mr. Justice Sunil Ambwani in Writ Petition nos. 51147 of 2003 (Chhabi Lal v Union of India and Ors.) and 40101 of 2002 (Santosh Kumar rastogi v. President, Khadi Gram Udyog Sangh, Allahabad and Ors.) as well as on the judgment passed by His Lordship Honble Mr. Justice S. K. Singh in Writ Petition No. 11302 of 2003 (Ram nagina Singh v. U. P. Khadi Evam Gram Udyog Board, Lucknow and Ors. ). ( 5 ) THE preliminary objection in those cases was accepted after hearing the learned counsel for the parties at length and it was held that Shri Gandhi Ashram Khadi Bhandar is not a State within the meaning of Article 12 of the Constitution. ( 6 ) THE respondents have raised a preliminary objection that in view of the decision of the honble Supreme Court rendered in The General Manager Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad, (2003) 8 S. C. C. 639, there is no foundation laid in the writ petition as to how the respondent-Kisan Sewa Sahkari Samiti Ltd. , Kharkhaunda No. 2, district Meerut is an instrumentality of the State as has been held in Ajay Hasia v. Khalid Mujib Sehravardi, (1981)1 S. C. C. 722 and Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 s. C. C. 489. In the aforesaid case of International Airport Authority of India (supra) the following principles have been laid down which may be a pointer as to whether a co-operative society is a state or other authority within the meaning of Article 12 of the Constitution or not or not: (1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of government. (S. C. C. p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost: entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (S. C. C. p. 508, para 15) (3) It may also be a relevant factor. . . (S. C. C. p. 507, para 14) (2) Where the financial assistance of the State is so much as to meet almost: entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (S. C. C. p. 508, para 15) (3) It may also be a relevant factor. . . whether the corporation enjoys monopoly status which is state-conferred or State-protected. (S. C. C. p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (S. C. C. p. 508, para 5) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (S. C. C. p. 509, para 16) (6) specifically, if a department of Government is -transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government. (S. C. C. p. 510, para 18)If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority case, be an authority and, therefore, state within the meaning of the expression in Article 12. " ( 7 ) IN this case no foundation has been laid down as to how the respondent is State or other authority within the meaning of Article 12 of the Constitution. ( 8 ) THE writ petition is not maintainable in view of the decision rendered in General Manager, kisan Sahkari Chini Mills Ltd. , Sultanpur v. Satrughan Vishad and Ors. , (2003) 8 S. C. C. 639, as the respondent-Mills is not instrumentality or agency of the State Government within the meaning of Article 12 of the Constitution. ( 9 ) IN the facts and circumstances of the case, I am of the opinion that the petitioner is not State within the meaning of Article 12 of the Constitution. ( 10 ) THE preliminary objection raised by the learned counsel for the respondents sustains. The writ petition is dismissed being not maintainable. . .