Research › Search › Judgment

Patna High Court · body

2011 DIGILAW 1266 (PAT)

Arjun Ram v. B. S. Co-opt. Mkt. Union

2011-07-01

VIKASH JAIN

body2011
Order This writ petition has been filed, inter alia, for grant of due salaries of the petitioners and also for payment of the current monthly salary. 2. At the stage of admission, a preliminary objection has been made on behalf of the respondent BISCOMAUN to the effect that the writ petition is not maintainable, in view of the fact that the Managing Committee had been restored and as such BISCOMAUN could not be treated as an authority within the meaning of Article 12 of the Constitution of India. In support of his submission, he relies on various decisions comprised in the counter affidavit filed on behalf of BISCOMAUN. 3. He further places strong reliance on the decision of this court in 1985 PLJR 1078 (Harender Narain Banker vs. The State of Bihar) wherein the six authoritative tests for determining whether a body can be treated as State or an instrumentality thereof as laid down in Ajay Hasia's Case, 1981 (1) SCC 722 (Ajay Hasia and Ors. vs. Khalid Mujib Sehravardi and Ors.) have been considered. Applying those tests this court came to the conclusion that BISCOMAUN did not come within the meaning of State and as such no writ could be maintained against it. 4. In 2005(6) SCC 289 (Supriyo Basu & Ors. vs. W.B. Housing Board & Ors.), it was held that a society was not a department of the State and also not a creature of a statute but merely governed by a statute. Only if it is established that a mandatory provision of a statute has been violated would a writ petition be maintainable. In Biscomaun vs. State of Bihar, 1993(1) PLJR 333, it was held that BISCOMAUN being a Co-operative Society is not State and thus not amenable to writ jurisdiction. In 2005(4) SCC 649 (Zee Telefilms Ltd. & Anr. vs. The Union of India & Ors.), the Union of India was treated as merely exercising regulatory control over the Board which was otherwise autonomous and as such the Board did not amount to State. 5. In 2011 (2) PLJR 978 (Abdul Wahid & Ors. vs. The State of Bihar & Ors.), it has been held that BISCOMAUN while functioning under the management committee is not amenable to writ jurisdiction being not State. 5. In 2011 (2) PLJR 978 (Abdul Wahid & Ors. vs. The State of Bihar & Ors.), it has been held that BISCOMAUN while functioning under the management committee is not amenable to writ jurisdiction being not State. The sum and substance of the submissions of the respondent, therefore, is that upon BISCOMAUN functioning under the managing committee which had been restored from the earlier position when the administrator was in charge of the management and control of BISCOMAUN during its supersession, it did not amount to State and as such no writ could be issued against it. 6. On the other hand, Mr. Jitendra Kishore Verma, learned counsel appearing for the petitioner seeks to distinguish the aforesaid decisions insofar as the present case is concerned. At the outset, he draws a distinction between Articles 12 and 226 of the Constitution of India and points out that almost all the decisions relied upon by the learned counsel for the respondent BISCOMAUN starting from Ajay Hasia's case (supra) have dealt with the question in the light of Article 12 of the Constitution of India without going into the question whether a writ could be maintained under Article 226 of the Constitution of India. 7. He invites attention to the decision in 1989(2) SCC 691 para 20 whereof may be reproduced hereunder:- "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." 8. 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." 8. He accordingly submits that it is the nature of the duty to be performed, and not the person, that is the relevant in deciding whether or not a writ is maintainable under Article 226 of the Constitution of India and if the concerned body is discharging a public duty, a writ would be so maintainable. 9. He further places reliance on a Division Bench decision of this court in L.PA No. 745 of 2004 and analogous cases (Hari Nandan Prasad and Ors. vs. State of Bihar) wherein this matter has been dealt with in a slightly altered perspective. While noticing another Bench decision in Rajender Prasad vs. State of Bihar, 2000(4) PLJR 273 , this court has given greater weightage to the public duty aspect of the matter. It has been observed that BISCOMAUN is admittedly discharging a public duty and in that backdrop those appeals were disposed of. 10. It is no doubt true that Hari Nandan Prasad's case has been subsequently noticed in Abdul Wahid's case. Yet as pointed out above, the latter decision proceeded in the context of Article 12 and not Article 226 of the Constitution of India. 11. The main submission of the petitioner is therefore, that inasmuch as, the scope of Article 226 of the Constitution of India is far wider in the matter of issuance of writs than is to be found under Article 12 of the Constitution of India, which is limited to issuance of writs for upholding fundamental rights. It is submitted that if the body concerned is discharging a public duty then a writ can be maintained against it and the character of the body itself is not really relevant. The language of Article 226 of the' Constitution of India itself permits issuance of writs to "any person or authority" in contradistinction to the "other authorities" in Article 12. 12. As a matter of fact, the decision in Zee Telefilms in 2005(4) SCC 649 (Zee Telefilms Ltd. & Anr. VS. The language of Article 226 of the' Constitution of India itself permits issuance of writs to "any person or authority" in contradistinction to the "other authorities" in Article 12. 12. As a matter of fact, the decision in Zee Telefilms in 2005(4) SCC 649 (Zee Telefilms Ltd. & Anr. VS. The Union of India & Ors.), relied upon by the learned counsel for the respondent also deals with the aspect of public duty. Para 156 of the judgment may fruitfully be reproduced herein:- Having regard to the modern conditions when the Government is entering into business. like the private sector and also undertaking public utility services, many of its actions may be State actions even if some of them may be non-governmental in the strict sense of the general rule. Although the rule is that a writ cannot be issued against a private body but thereto the following exceptions have been introduced by judicial gloss:- (a) Where the institution is governed by a statute which imposes legal duties upon it. (b) Where the institution is "State" within the meaning of Article 12. (c) Where even though the institution is not "State" within the purview of Article 12, it performs some public function, whether statutory of otherwise. 13. It is evident on a perusal of clause (c) of the above that even in this decision which has been relied upon by the learned counsel for the respondent categorically lays down that as long as an institution performs, some public function, a writ would be maintainable even though the same may not amount to State within the purview of Article 12 of the Constitution. Hon'ble Court's Modification Order dt. 11.8.2011. 14. Learned counsel for the petitioner has further adverted to the well-settled distinction between public law and private law. It has authoritatively been propounded in 2004(2) SCC 150 (Union of India vs. S.B. Vohra) as follows and page 846 of Rama Chandran Law of Writs Vol. 1. 15. He further relies on AIR 1999 SCC 753 (U.P. State Co-operative Land Development Bank Ltd. VS. Chandra Bhan Dubey & Ors.), to support his submission that the High Court has a power to issue writs even against cooperative societies. It has further been held in 1999(3) PLJR 110, (Belsund Sugar Co. 1. 15. He further relies on AIR 1999 SCC 753 (U.P. State Co-operative Land Development Bank Ltd. VS. Chandra Bhan Dubey & Ors.), to support his submission that the High Court has a power to issue writs even against cooperative societies. It has further been held in 1999(3) PLJR 110, (Belsund Sugar Co. Ltd. vs. The State of Bihar) that a cooperative society is an extended arm of the State by reason of which a writ could be issued to it. 16. Over and above the decisions of the courts, it has also been pointed out by the learned counsel for the petitioner that various provisions of the Bihar Cooperative Societies Act, which is applicable also to BISCOMAUN, establish the extent of the State's control to regulate the applicable service conditions, including by way of laying down criteria by way of rules for determining the service conditions as provided in Section 66B. Section 13(A) deals with the aspect of promotion of the cooperative movement by the State. Section 14 provides that the Managing Director of the Co-operative Society shall be an officer of the State. 17. To buttress his submission with regard to the wide extent of State control, he also relies on the observation recorded in para 30 of the Full Bench decision reported in 1990(1) PLJR 133 (Sheetal Prasad & Ors. VS. The State of Bihar & Ors.), to the effect that the State holds 99.70% of the share capital in BISCOMAUN. This according to him establishes deep and pervasive, control which the State exercise over the working of BISCOMAUN. 18. .In the above view of the matter, it is evident that a distinction does require to be drawn in the matter of issuing writs as far as Article 12 and Article 226 are concerned. The power of the High Court while issuing writs under Article 226 being not limited in respect of fundamental rights alone and, therefore, the decisions relied upon on behalf of the respondent BISCOMAUN cannot be said to be author'• its for the purposes of counteracting the proposition being advanced on behalf of the petitioner. 19. It is evident that in the context of Article 226 performance of public function assumes more relevance and is the decisive factor in determining whether or not a writ is maintainable. 19. It is evident that in the context of Article 226 performance of public function assumes more relevance and is the decisive factor in determining whether or not a writ is maintainable. In the instant case there is no gainsaying that BISCOMAUN is discharging public duties as has already been observed by a Division Bench of this court in Hari Nandan Prasad's case and in this view of the matter this court is of the view that a writ . would be maintainable against the BISCOMAUN. 20. Let the matter be listed under the heading "For Admission" for being taken up on its merits on 25.7.2011 on priority basis within the first 20 cases, considering that the matter relates to 2004 and the petitioners not having received their salary for more than 10 years now.