WP (C) No.6448 of 2007 Page 1 of 22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (C) No.6448 of 2007 Reserved on : 05.12.2008 % Date of decision: 19.12.2008 Smt.Saroj Devi (Widow) …PETITIONER Through: Mr.G.S.Lobana, Adv. for R-1/UOI Versus Union of India & Ors. ...RESPONDENTS Through: Ms.Madhu Sharan and Mr.Jai Bansal, Advs for UOI/R-1. Mr.A.K.Tewari, Adv.for R-3. None for R-2. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? SANJAY KISHAN KAUL, J. 1. Late Subedar Ram Dhari Ram, husband of the petitioner, joined Department of Posts as a Postal Assistant on 01.09.1968. He volunteered to serve in the Army Postal Service Corps in the rank of a Warrant Officer on 03.07.1971 and earned his promotions to the rank of a Subedar. Late Subedar Ram Dhari Ram while serving in the Army Postal Service Corps had got his name registered with the Army Welfare Housing Organization („AWHO‟ for short) on 01.05.2005 for allotment of a deluxe apartment at WP (C) No.6448 of 2007 Page 2 of 22 Greater Noida Scheme in Phase III by remitting an amount of Rs. 75,500/- towards the registration fee. He was, however, at Serial No.49 in the waiting list. Subedar Ram Dhari Ram unfortunately met with a fatal road accident while serving in the unit on 13.09.2006. The petitioner was granted family pension with effect from 14.09.2006. Late Subedar Ram Dhari Ram is also survived by his son Dr. Suresh Chand. It is Dr. Suresh Chand who was made a nominee by his deceased father in the Greater Noida Scheme. Dr. Suresh Chand addressed a letter dated 18.01.2007 to the AWHO informing them about the demise of the registrant (his late father). The following queries were also made by Dr.Suresh Chand from AWHO: i) Is there any preference we can get in the allotment; ii) In the Project under planning at Greater Noida Phase III, whether waitlisted candidates will get any preference; and iii) What, if anything he can do to get preference for the allotment. 2. It is the case of the petitioner that the AWHO advised Dr.Suresh Chand to withdraw his application for substitution of his name in place of his late father and to obtain refund of the amount deposited with a fresh application being put up in the name of the petitioner as a widow of the deceased Ram Dhari Ram to be considered in the new scheme at Dwarka. No response was sent in writing to the letter of Dr.Suresh Chand dated 18.01.2007 which is a fact borne out from the records of the AWHO. WP (C) No.6448 of 2007 Page 3 of 22 3. The next communication is a letter dated 29.01.2007 by the AWHO, to the effect that Dr. Suresh Chand was a nominee of his father and certain documents should be forwarded to enable the AWHO to refund the registration fee to him, which documents were duly submitted and the refund was made on 29.03.2007. 4. The petitioner thereafter applied for a fresh registration in Dwarka Scheme on 05.05.2007 in lieu of her late husband Subedar Ram Dhari Ram. This application was, however, rejected by the AWHO under the cover of the letter of June, 2007 on the ground that the widows of Army Postal Service („APS‟ for short) are not eligible. 5. It is the case of the petitioner that there was no such exclusion of the widows of the APS and in that behalf reliance has been placed on para of 12(b)(i) of AWHO Brochure. The said clause 12(b) appears in Chapter II of the brochure dealing with the eligibility conditions and is reproduced below: “12. The following are eligible to apply: …… (b) Widows of All Ranks (i) Widows who are in receipt of family pension. ii) Widows who re-marry a real brother of their deceased husband and are in receipt of family pension. iii)War widows who re-marry any person and are in receipt of family pension. iv)Widows who re-marry serving army personnel.” (emphasis supplied) 6. The petitioner made a representation dated 08.07.2007 to the Quarter Master General pointing out that had her husband not died, he would have participated in the draw WP (C) No.6448 of 2007 Page 4 of 22 and could have got the flat in the Greater Noida Scheme of AWHO and the same would have been the position if he had retired from service in normal course. It was submitted that there was nothing to exclude the widow of such an officer especially when there is three per cent reservation for widows in the allotment of flats of AWHO. Such a reservation is provided in Chapter VI of the brochure of AWHO. 7. The representation was, however, rejected vide letter dated 10.08.2007. The stand of the respondents in the said letter is that the applicability of widows of APS was not there as per the latest Master Brochure amended up to 01.05.2007. The petitioner has thereafter filed the present writ petition seeking the following reliefs: “ i) To issue a writ of certiorari or any other appropriate writ, order or direction, quashing the impugned order dated 08.06.2007 and the order dated 10.08.2007 by which the valid and legal claim of the petitioner ( a widow) for registration of her name for Army Welfare Housing Organization dwelling unit in Dwarka Scheme has been denied, illegally and arbitrarily; ii) To issue a writ of mandamus directing the respondents to entertain her application for AWHO Dwarka Scheme for allotment of a dwelling unit in the Special Category of widows against 3 per cent quota reserved for widows; and iii)To pass such order and further order which this Hon‟ble Court may deem fit and proper. 8. The AWHO/R-3 has contested the matter by filing the counter affidavit. A preliminary objection has been raised WP (C) No.6448 of 2007 Page 5 of 22 about the maintainability of the writ petition against the AWHO which is a registered Society under the Registrar of Societies, Delhi within the provisions of Societies Registration Act, 1860. The object of the AWHO is to promote and provide dwelling units to serving and retired Army personnel apart from their widows on a no profit no loss basis. The Executive Committee of the AWHO is stated to be in charge of the day to day business which is chaired by the Adjutant General Army Headquarters in „Ex Officio capacity‟ who in turn is assisted by a team of executives. In terms of the Rules & Regulations and Bye- laws of the AWHO, land is acquired by the AWHO at concessional rates through Government, Semi-Government or private agencies. It is pleaded by AWHO/R-3 that the funds of the organization are created by the AWHO itself and the Union of India or the Adjutant General‟s branch has no control over the funds of the AWHO. The AWHO is stated to be a welfare Society without any member being nominated by the Government. AWHO/R-3 has further pleaded that R-1 and R-2 have nothing to do with the matter being the Union of India and the Quarter Master General and the only object of impleading them as respondents is to somehow create jurisdiction under Article 226 of the Constitution of India. 9. Insofar as the merits of the matter are concerned, the plea taken is that the widows of the APS are not eligible for being considered for registration in any housing scheme promoted anywhere in India by R-3. AWHO/R-3 has WP (C) No.6448 of 2007 Page 6 of 22 submitted that in order to obviate any misgiving relating to the interpretation of Rule 12 of the Rules of Allotment, the Executive Committee of R-3 in its 109th meeting held on 17.10.2007 again deliberated the issue and re-affirmed the Rules that the widows of APS are not eligible for registration of dwelling units promoted by the AWHO/R-3. 10. In view of the aforesaid pleadings, in our considered view, only two aspects need to be examined: i) Whether the writ filed by the petitioner for redressal of her grievance is maintainable under Article 226 of the Constitution of India ii) Whether the widows of APS are excluded from the benefit of registration for dwelling units promoted by AWHO/R-3. Whether the writ filed by the petitioner for redressal of her grievance is maintainable under Article 226 of the Constitution of India 11. The aspect of maintainability of the writ petition under Article 226 of the Constitution of India has to be considered with reference to the said Article which reads as under: 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 exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, order or writs, including (writs the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. 12. We have unfortunately not had the benefit of reference to any case law by both the learned counsel for the parties. It WP (C) No.6448 of 2007 Page 7 of 22 is, however, necessary to examine the legal position in this behalf in order to appreciate the factual matrix. 13. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors; (1989) 2 SCC 691 the difference in the meaning of the word „authority‟ as used under Article 226 of the Constitution of India and under Article 12 of the Constitution of India has been brought out. It was observed that a writ petition under Article 226 of the Constitution of India would be maintainable even against a private body as it would fall within the definition of „any person or authority‟ performing a public duty and owing a positive obligation to the affected party. Such a duty on the person or authority need not be imposed by Statute so long as it is doing a public function having a public character. In the facts of the case, the writ petition had been filed under Article 226 of the Constitution of India by the retrenched teachers of a public aided college (a public trust) affiliated to the University seeking a writ of mandamus for compelling the college management to pay them terminal benefits and arrears of salary due. Such a petition was held to be maintainable. The maintainability of the writ petition was challenged on the ground that the respondent-entity was a registered trust under the Bombay Trust Act and thus not amenable to the writ jurisdiction of the High Court. A distinction was made between enforcing the service contract and claiming terminal benefits and arrears of WP (C) No.6448 of 2007 Page 8 of 22 salary. It would be useful to reproduce the following observations: “15. 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 convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated 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 institutions. 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 character. (See-The Evolving Indian Administrative Law by M.P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding 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 protection 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. 16. The Law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(c) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and more effective 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 the 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": At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. 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 particular, 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 previous 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 WP (C) No.6448 of 2007 Page 9 of 22 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. 17. 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 statute. So Government Departments local authorities, 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 a 'any person or authority". It can be issued "for the enforcement of any or the fundamental rights and for any other purpose". 20. 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 parson 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, 21. In Praga Tools Corporation v. Shri C.A Imanual and Ors. 1969 (3) SCR 773, 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 officials or statutory body. It was observed (at 778) ; It is however not necessary that the person or the authority on whom the statutory 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 undertakings. 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. Vol. II p. 52 and onwards). 22. 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 affecting 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 WP (C) No.6448 of 2007 Page 10 of 22 must be easily available 'to reach injustice whenever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.” 14. In Binny Ltd. and Anr. v. V. Sadasivan and Ors. ; (2005) 6 SCC 657, the writ petition under Article 226 of the Constitution of India against private bodies was held to be maintainable though pre-eminently a public law remedy if the triple condition is satisfied. The said three conditions are: i) Such private body is discharging a public function; ii) The decision sought to be corrected or enforced is in discharge thereof; and iii) The public duty imposed is not of a discretionary character. 15. It was observed that the scope of mandamus is determined by the nature of the duty to be enforced rather than the identity of the authority against whom it is sought though the courts always retain the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It was held that a body is performing a public function when it seeks to achieve some collective benefit for the public or a section thereof and is accepted by the public or a section thereof as having authority to do so. Bodies, therefore, exercise public functions when they intervene or participate in social or economic affairs in the public interest though there cannot be any general definition of „public authority‟ or „public function‟ and the facts of each case would decide the point. Once again it would be useful to extract the relevant paragraphs: WP (C) No.6448 of 2007 Page 11 of 22 “10. The Writ of Mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the sovereign to subordinates. In England, in early times, it was made generally available through the Court of King's Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporation which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (Ninth Edition) by Sir William Wade and Christopher Forsyth, (Oxford University Press) at page 621, the following opinion is expressed: "A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases." 11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" WP (C) No.6448 of 2007 Page 12 of 22 when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf