vil Appeal Nos
2704 06 of 1979
From the Judgment and Order dated 151979 of the Guja rat High Court in Special Civil Appln
Nos 133 of 1976 325 and 384 of 1976
AB Rohatagi Harish N Salve Ms Palavi Shroff SS Shroff PS Shroff and R Sasiprabhu for the Appellants
Kapil Sibbal Suresh Shelat PH Parekh and Ms Gitan jali for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
These appeals by certificate are from a common judgment of the Gujarat High Court giving some monetary benefits to the respondents
The facts of the case cane be quite shortly stated The appellant No 1 is a public trust and other appel lants are its trustees
The trust was running a science college at Ahmedabad
The college initially had temporary affiliation to the Gujarat University under the Gujarat University Act 1949
From June 15 1973 onwards the col lege had permanent affiliation under the said Act as amended by Gujarat Act No VI of 1973
The University teachers and those employed in the affiliated colleges were paid in the pay scale recommended by the University Grants Commission
At one stage there was some dispute between the University Area Teachers Association and the University about the implementation of certain pay scales
That dispute by agreement of parties was referred to the Chancellor of the University for decision
On June 12 1970 the Chancellor gave his award in the following terms 1 That the revised pay scales as applicable to teachers who joined before April 1 1966 should similarly be applicable to those who joined after April 1 1966
and they be continued even after April 1 1971
2 That these pay scales be exclu sive of dearness allowance
Therefore fixing the pay of the teachers who joined after April 1 1966 no petition of existing dearness 701 allowance would be merged
However with effect from April 1 1971 in respect of both the categories of teachers ie Pre 1966 and Post 1966 teachers dearness allowance was to be merged with the salary
3 That arrears for the period from April 1 1966 to March 31 1970 accruing due under the award were to be paid without interest in ten equal instalments beginning from April 1 1971
4 The award was to be given effect to from April 1 1970
There are other provi sions also
But we are not concerned with those provisions for our purpose
 This award of the Chancellor was accepted by the State Government as well as by the University
The latter issued direction to all affiliated colleges to pay their teachers in terms thereof
The appellants instead of implementing the award served notice of termination upon 11 teachers on the ground that they were surplus and approached the University for permission to remove them
But the Vice Chancellor did not accede to their request
He refused the permission sought for
There then the management we mean the trust took a suicidal decision
The decision was to close down the college to the detriment of teachers and students
The affiliation of the college was surrendered and the University was informed that the management did not propose to admit any student from the academic year 1975 76
It was again a unilateral decision without approval of the Univer sity
The college was closed with effect from June 15 1975 with the termination of services of all the academic staff
The academic staff under law were entitled to terminal benefits
In fairness that ought to have been paid simulta neously while being removed
But the management did not do that
The teachers waited with repeated representations only to get a negative reply and ultimately they moved the High Court with writ petitions for the following reliefs To issue a writ of mandamus or writ in the nature of mandamus or any other appro priate writ or direction or order directing the respondent Trust and its trustees respond ents to pay to the petitioners their due salary and allowances the provident fund and gratuity dues in accordance with the Rules framed by the University and pay them 702 compensation that would be payable to them under Ordinance 120 E and they may be further directed to pay the difference of pay payable to them on the implementation of the UGC pay scales in accordance with Government Resolution as clarified by the Award passed by the Chancellor
 As is obvious from these reliefs the retrenched persons were not agitating for their continuance in the service
They seem to have made a tryst with the destiny and accepted the closure of the college
They demanded only the arrears of salary provident fund gratuity and the closure compen sation which were legitimately due to them
The trust however resisted the writ petitions on every conceivable ground
The objections raised by the trust may be summarised as follows i The trust is not a statutory body and is not subject to the writ jurisdiction of the High Court ii the Resolution of the University directing payment to teachers in the revised pay scales is not binding on the trust iii The University has no power to burden the trust with additional financial liability by retrospec tively revising the pay scales iv the claim for gratuity by retrenched teachers is untenable
It is payable only to teachers retiring resigning or dying and not to those removed on account of closure of the college and v Ordi nance 120E prescribing closure compensation is ultra vires of the powers of the syndicate
It is at any rate not bind ing on the trust since it was enacted prior to affiliation of the college
The High Court rejected all these submissions and accepted the writ petitions by delivering a lengthy judg ment
The High Court thus directed the trust to make pay ments in the following terms 1 Amount of the remaining six instalments as per Chancellor s Award in respect of arrears from 14
1966 to 313
1970 as detailed category No 1 above 2 Salary for the period from 141975 to 1461975 as per revised payscales 3 Com pensation as per sub clause a and b of clause vii of Ordinance 120 E 4 Provident Fund dues as per the approved scheme
 The trust by obtaining certificate has ap pealed to this Court
Counsel for the appellants mercifully concedes the just right of the teachers to get salary for the period of two and a half months from 703 April 1 1974 to June 14 1974
He has also no objection to pay provident fund dues
He however says that the trust is entitled to get reimbursement from the Government and that question must be determined in these appeals
As regards the arrears of salary payable under the Chancellor s Award the counsel contends that it is the liability of the Government and not of the management of the college
As regards the closure compensation payable under the Ordinance he repeats the contention taken before the High Court
He also main tains that the trust is a private body and is not subject to the writ jurisdiction under Article 226
Having heard the counsel for both parties we are left with an impression that the appellants are really trying to side track the issue and needlessly delaying the legitimate payments due to the respondents
The question whether the State is liable to recompense the appellants in respect of the amount payable to the respondents was not considered by the High Court and indeed could not have been examined since the State was not a party to the proceedings
However by the persuasive powers of the counsel in this Court the State has been impleaded as a party in these appeals
Per haps this Court wanted to find out the reaction of the State on the appellants  assertion for reimbursement
We heard counsel for the State
He disputes the appellants  claim
In fact he challenged the claim on a number of grounds
He says that the State is under no obligation to pay the appellants as against the sum due to the respond ents
We do not think that we need rule to day on this controversy
It is indeed wholly outside the scope of these appeals
We are only concerned with the liability of the management of the college towards the employees
Under the relationship of master and servant the management is pri marily responsible to pay salary and other benefits to the employees
The management cannot say that unless and until the State compensates it will not make full payment to the staff
We cannot accept such a contention
Two questionshowever remain for consideration i The liability of the appellants to pay compensation under Ordi nance 120E and ii The maintainability of the writ petition for mandamus as against the management of the college
The first question presents no problem since we do not find any sustainable argument
The power of the Syndicate to enact the Ordinance is not in doubt or dispute
What is however argued is that the Ordinance is not binding on the manage ment since it was enacted before the college was affiliated to the University
This appears to be a desperate contention overlooking the 704 antecedent event
The counsel overlooks the fact that the college had temporary affiliation even earlier to the Ordi nance
That apart the benefits under the Ordinance shall be given when the college is closed
The college in the instant case was closed admittedly after the Ordinance was enacted
The appellants cannot therefore be heard to contend that they are not liable to pay compensation under the Ordinance
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 Public Trust 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 Executive Committee of Vaish Degree College Shamli and Others vs Lakshmi Narain  Ors  and b Deepak Kumar Biswas vs Director of Public Instructions the first of the two cases the respondent institution was a Degree College managed by a registered co operative 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 Co operative Societies Act and affiliated to the Agra University and subsequently to Meerut University was a statutory body
The importance of this contention lies 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 manage ment 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
The decision in Vaish Degree College was followed in Deepak Kumar Biswas case
There again a dismissed lecturer of a private college was seeking reinstatement in service
The Court refused to grant the relief although it was found that the dismissal was wrongful
This Court instead granted substantial monetary benefits to the lecturer
This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced
But here the facts are quite different and therefore we need not 705 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 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 conven ient remedy mandamus cannot be denied
It has to be appre ciated that the appellants trust was managing the affiliat ed 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 institu tions
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 charac ter
See The Evolving Indian Administration Law by MP Jain 1983 p 266
So are the service conditions of the academic staff
When the University takes a decision regard ing 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 pro tection by University decisions creating a legal right duty relationship between the staff and the management
When there is existence of this relationship mandamus can not be refused to the aggrieved party
The Law relating to mandamus has made the most spectacu lar advance
It may be recalled that the remedy by preroga tive writs in England started with very limited scope and suffered from many procedural disadvantages
To overcome the difficulties Lord Gardiner the Lord Chancellor in pursu ance of Section 31e of the Law Commission Act 1965 requested the Law Commission to review the existing reme dies for the judicial control of administrative acts and omission with a view to evolving a simpler and more effec tive procedure
 The Law Commission made their report in March 1976 Law Com 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 706 At one stroke the courts could grant whatever relief was appropriate
Not only certiorari and mandamus but also declaration and injunc tion
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 important safeguards
In par ticular 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 previ ous 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
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 authori ties 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
Article 226 reads 226
Power of High Courts to issue certain writs 1 Notwithstanding anything in article 32 every High Court shall have power throughout the territories in relation to which it exer cises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories direc tions orders or writs includ 707 ing Writs in the nature of habeas corpus mandamus prohibition quo warranto and certi orari or any of them for the enforcement of any of the rights conferred by Part II and for any other purpose
XXX XXX XXX XXX  The scope of this article has been ex plained by Subba Rao in Dwarkanath vs Income Tax Officer  at 540 41 This article is couched in compre hensive phraseology and it ex facie confers a wide power on the High Courts to reach injus tice wherever it is found
The Constitution designedly used a wide language in describing the nature of the power the purpose 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 use of the expression na ture for the said expression does not equate the writs that can be issued in India with those in England but only draws an 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 pecul iar 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 intro duce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure
Such a construction defeats the purpose of the arti cle itself
 The term authority used in Article 226 in the con text 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 enforce ment of the fundamental rights as well as nonfundamental 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 708 the duty imposed on the body
The duty must be judged in the light of positive obligation owed by the person or authori ty to the affected party
No matter by what means the duty is imposed
If a positive obligation exists mandamus cannot be denied
In Praga Tools Corporation vs Shri CA Imanual  Ors   this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public offi cials or statutory body
It was observed at 778 It is however not necessary that the person or the authority on whom the statu tory duty is imposed need be a public official or an official body
A mandamus can issue for instance to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their under takings
A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities
See Halsbury s Laws of England 3rd Ed
II p 52 and onwards
 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 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 conten tion urged for the appellants on the maintainability of the writ petition
In the result the appeals fail and are dismissed but with a direction to the appellants to pay all the amounts due to the respondents as 709 per the judgment of the High Court
The amount shall be paid with 12 per cent interest
The balance remaining shall be paid within two months from today
The appellants shall also pay the costs of the respondents teachers which we quantify at Rs 26000
RSS Appeals dismissed


Summary:
Proceedings were initiated in 1974 under the Orissa Land Reforms Act 1960 for declaration of surplus land of the appellants
The appellants filed objections asserting inter alia that in view of the partition in their families in the year 1965 the land in the ancestral properties which fell in their share could not be clubbed with those of their father
This contention was not accepted on the definition of the term family contained in section 37b of the Act
Such of the major married sons who as such had separated by parti tion before the 26th day of September 1970 as contemplated by the definition of the term family were allotted sepa rate ceiling units but so far as the appellants were con cerned their shares were clubbed with those of their fa ther
The appellants having failed to get relief in the appeals and revisions filed by them under the Act chal lenged the orders passed by the various authorities in writ petitions before the High Court of Orissa which were dis missed relying on its earlier Full Bench decision in Nitya nanda Guru vs State of Orissa AIR 1983 Orissa 54
Before this Court it was contended that 1 the protec tion under Article 31C would not be available to section 37b of the Act and it would be hit by Article 14 unless it was established that it had nexus with the policy of the State towards securing any of the principles laid down in Part IV of the Constitution 2 section 37b of the Act had to be read in such a manner as to exclude the land which had fallen to the share of the appellants even though they did not fail within the category of a major married son as contemplated by the definition of the term family in that section by adding the word or between the words major and married 3 the words as such qualify only son and not major married son and are meant to distinguish son from brother or uncle etc
Dismissing the appeals it was 605 HELD 1 The Act aims at agrarian reform and Section 37b has a clear nexus with the policy of the State towards securing the principle laid down in Article 39b of the Constitution occurring in Part IV thereof
607E F Tumati Venkaish etc
vs State of Andhra Pradesh   Seth Nand Lal  Anr
vs State of Haryana  and Waman Rao  Ors
vs Union of India  referred to
2 It is difficult to take recourse to the suggested mode of interpretation of section 37b ie by adding the word or between the words major and married in view of its plain language
608C D 3 On a plain reading of the definition of the term family in section 37b of the Act the said definition as it stands is neither meaningless nor of doubtful meaning
608F British India General Insurance Co Ltd vs Captain Itbar Singh Ors referred to
4 Keeping in view the agrarian reform which was con templated by the Act and particularly the provisions of Chapter IV relating to ceiling and disposal of surplus land which were calculated to distribute the surplus land of big tenure holders among the overwhelming havenots of the State
the Legislature in its wisdom gave an artificial meaning to the term family
608F G 5 The main provision containing the definition of the term family  is to be found in the first part of section 37b namely family in relation to an individual means the individual the husband or wife as the case may be of such individual and their children whether major or minor
The latter part of section 37b namely but does not include a major married son who as such had separated by partition or otherwise before the 26th day of September 1970 does not on the face of its contain a matter which may in substance be treated as a fresh enactment adding something to the main provision but is apparently and unequivocally a proviso containing an exception
This admits of no doubt in view of the words but does not include
608G H 609A B Commissioner of Income Tax Mysore vs The lndo Mercan tile Bank Limited 1959 Supp
2 SCR 256 referred to
6 Given its proper meaning the words as such can only be 606 interpreted to mean that it is only such son who would get the benefit of the exception who had separated by partition or otherwise before the 26th day of September 1970 as major married son
609F