IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP 2486 of 1987 DATE OF DECISION : APRIL 03 , 2008 PARDIP KAUR & ORS. ....... PETITIONER(S) VERSUS THE JALANDHAR CENTRAL CO-OP. BANK LTD. ETC. ... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Ashutosh Gupta, Advocate, for the petitioners. Mr. AK Sharma, Sr. DAG, Punjab. Mr. Ashwani Prashar, Advocate. Mr. Rahul Sharma, Advocate, for respondents No.6, 11, 15, 17, 21, 22 and 24. AJAI LAMBA, J. This judgment shall dispose of three writ petitions viz. CWP Nos.2087 (Sham Sunder v. The State of Punjab and another), 2399 (Mohinder Pal Singh v. The Jalandhar Central Cooperative Bank Limited etc.) and 2486 (Pardip Kaur and others v. The Jalandhar Central Cooperative Bank Limited etc.), all of 1987. Learned counsel for the respondents has taken a preliminary objection to the effect that the writ petitions are directed against the CWP 2486 of 1987 2 Jalandhar Central Cooperative Bank Limited, as the selection made by the said Bank is under challenge. The contention is that the writ petitions are not maintainable against the Cooperative Bank as has been held by the Hon'ble Supreme Court of India and this Court in various judgments. Learned counsel for the respondents has drawn my attention towards preliminary objection No.1 taken in the written statement filed on behalf of respondents No.6, 9, 17, 21, 22 and 24. The objection reads as under:- “1. That the bank is only a Cooperative Society registered under the Cooperative Societies Act. The Board of Directors is an elected body consisting of the members elected by the various societies. The Managing Director is also an elected Director. The Government had a share capital of Rs.89700/- out of a share capital of 1.5 crores at the time of selection. Now, even that money had been withdrawn by the Government. The Government exercises no control whatsoever over the Society. No action whatsoever has been taken by the Government or any agency of the Government. Neither any Governmental business is undertaken by the Bank nor any public obligation of the State is undertaken to be performed by the respondent-Bank. Consequently, the writ petition is wholly incompetent. In view of the ratio of the Full Bench in Pritam Singh's case and Supreme Court decision in Tek Raj Vasadev vs. Union of India 1988 SCC 236, the writ petition is wholly incompetent and deserves to be dismissed on this ground alone.” Learned counsel for the respondents has drawn my attention towards the reference to a number of judgments in the written statement. The contention is that the issue whether a Cooperative Society and, in particular, a Cooperative Bank, would be a 'State' under Article 12 of the Constitution of India, has been considered and it has been held that no writ is competent against a Bank such as the respondent-Bank. Learned counsel for the respondents has relied on a judgment rendered by the Hon'ble Supreme Court of India in General Manager, CWP 2486 of 1987 3 Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. v. Satrughan Nishad and others, JT 2003 (8) SC 235, wherein in paras 8 and 9, the following has been held:- “8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Law 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of State Government in the CWP 2486 of 1987 4 committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution. 9. Learned counsel appearing on behalf of the contesting respondents submitted that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include any private person or body. Learned counsel appearing on behalf of the appellant, on the other hand, submitted that mandamus can be issued against private person or body only if infraction alleged is in performance of public duty. Reference in this connection may be made to the decisions of this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust and others v. V.R.Rudani and others, JT 1989 Supp. SC 128, in which this Court examined the various aspects and distinction between an authority and a person and after analysis of the decisions referred in that regard came to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. In the cases of K. Krishnamacharyulu and others v. Sri Venkateswara Hindu College of Engineering and another, JT 1997 (3) SC 455, and VST Industries Ltd. v. VST Industries Workers' Union and another, JT 2001 (1) SC 36, the same principle has been reiterated. Further, in the case of VST Industries Ltd. (supra), it was observed that manufacture and sale of cigarettes by a private person will not involve any public function. This being the position in that case, this Court held CWP 2486 of 1987 5 that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution. In the present case, the Mill is engaged in the manufacture and sale of sugar which, on the same analogy, would not involve any public function. Thus, we have no difficulty in holding that jurisdiction of the High Court under Article 226 of the Constitution could not have been invoked.” A perusal of the afore-reproduced portion would show that the Cooperative Society registered as such under the Uttar Pradesh Co- operative Societies Act, 1965, in which 50% of the shares were held by the State Government, was held to be not 'State' within the meaning of Article 12 of the Constitution of India. It has further been observed that manufacture and sale of sugar in which the Cooperative Society was involved, was not a public function. The other judgment to which a reference has been made is S.S. Rana v. Registrar, Co-operative Societies and another, JT 2006 (5) SC 186. Reliance has also been placed on Division Bench judgments of this Court rendered in CWP 4795 of 2003 (Jatinder Singh v. State of Punjab etc.) decided on 2.5.2005 and CWP 16584 of 2003 (Sarabjeet Singh and others v. State of Punjab and others) decided on 11.5.2006. A particular reference has been made to a recent judgment rendered by this Court in CWP 2595 of 1991 (Bhajan Singh etc. v. The State of Punjab and others) decided on 5.9.2007. In Bhajan Singh's case (supra), the entire case law on the issue has been considered. Particular reference has been made in view of the fact that in the cited case, the respondent was none other but respondent-Bank herein i.e. the Jalandhar Central Cooperative Bank Limited, which was impleaded as respondent No.4.After considering CWP 2486 of 1987 6 the entire case law on the issue, it has been held that the writ petition is not maintainable against the Jalandhar Central Cooperative Bank Limited. Having regard to the pleadings as noticed in the earlier part of the judgment and the law as laid down by the Hon'ble Supreme Court of India and this Court and, in particular, the judgment rendered by this Court in Bhajan Singh's case (supra), these petitions are dismissed as not maintainable against the respondent-Bank. The petitioners may, however, avail of any other remedy which may be available to them. April 03 , 2008 ( AJAI LAMBA ) Kang JUDGE