IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:-24-03-2005 Coram:- The Hon'ble Mr. Justice P. SATHASIVAM The Hon'ble Mr. Justice D. MURUGESAN and The Hon'ble Mr. Justice S.R. SINGHARAVELU Writ Petition No. 18366 of 2003 and W.P.M.P.No. 22963 of 2003. A. Joseph Louis, No.7-B, Crawford Colony, Trichy-12. .. Petitioner. Vs. 1. The District Welfare Fund Committee, represented by its President, the District Collector, Mc. Donalds Road, Cantonment, Trichy-1. 2. N. Balasubramanian, No.24, Govinda Konar Street, Sangiliandapuram, Trichy-1. 3. State of Tamil Nadu, represented by the Commissioner, Land Administration, Chennai. .. Respondents. Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the first respondent to accept the highest Tender of Rs.2,07,999/- per month made by the petitioner herein in respect of lease of "Thiyagaraja Bagavathar Mandram" cinema theatre, Kalaiarangam, Trichy-1. Mr. P.S. Raman, Senior counsel for Mr. P.R. Raman:- For petitioner. https://hcservices.ecourts.gov.in/hcservices/ Mr. R. Yashodvardhan for Mr. K. Kannan:- For 1st Respondent. Mr. N.R. Chandran, Advocate General for Mr. R. Natarajan:- For 2nd Respondent. Mr. V. Raghupathy, Government Pleader:- For 3rd Respondent. ORDER (Order of Court was made by P. Sathasivam, J.,) This Writ Petition is filed by one A. Joseph Louis against District Welfare Fund Committee represented by its President-District Collector, Trichy-1, N. Balasubramanian, Trichy-1 and State of Tamil Nadu represented by Commissioner, Land Administration, Chennai for a Writ of Mandamus, directing the first respondent-District Welfare Fund Committee to accept the highest Tender of Rs.2,07,999/- per month made by him (petitioner) in respect of lease of "Thiyagaraja Bagavathar Mandram" Cinema Theatre, Kalaiarangam, Trichy-1. 2. First, the Writ Petition came before the First Bench consisting of Hon'ble The Chief Justice and D. Murugesan, J. The Division Bench based on the averments in the affidavit and counter affidavit and after finding a prima facie opinion that the first respondent-Committee did appear to be performing public functions, expressed their inability to follow the earlier Division Bench decision of this Court in W.P.Nos. 1043 and 1896/2002 and 23534 and 26501/2001 dated 26-2-2002 holding that the Writ Petition against the first respondent is not maintainable and referred the matter to this Larger Bench. 3. The text of the Reference made to the Larger Bench is reproduced hereunder: "12. In Management of GE Power Controls India (Pvt) Ltd., & another v. Workmen of GE Power Controls India Pvt. Ltd., & others (2005 1 L.W. 126), it has been held that ordinarily no writ lies against a body, which is not an instrumentality of the State, unless it is performing public functions. The entire case law on this point has been considered in great detail (vide General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (2003 (8) SCC 639). 13. In our opinion, though the petitioner may not able to lay adequate factual foundation in paragraph-8 https://hcservices.ecourts.gov.in/hcservices/ of its affidavit that the first respondent is an instrumentality of the State, yet we are prima facie of the opinion that the first respondent does appear to be performing public functions, as is evident from the factual allegations in the writ petition and in the counter affidavit of the first respondent. In fact, in paragraph-11 of the counter affidavit of the first respondent, it is stated "District Welfare Fund Committee is using every one of the resources only for the upliftment of the poor and downtrodden. The funds are spent only for the poor and needy". 14. In our opinion, the work of upliftment of poor and downtrodden is certainly a public function in a Welfare State, as it is the duty of the State to uplift the poor and downtrodden, in view of the mandate in the Directive Principles of State policy contained in Part-IV of the Constitution. In view of the above, we are of the opinion that the decision of the Division Bench of this Court in W.P.Nos. 1043 and 1896 of 2002 and 23534 and 26501 of 2001 dated 26-02-2002 (A.V. Sundaram & three others Vs. The District Collector, Trichy and another) holding that no writ lies against the first respondent requires to be reconsidered by a Larger Bench of this Court." 4. Before considering the above Reference in detail, brief facts which are required for answering the above Reference are stated hereunder: It is the case of the petitioner that a very valuable piece of property comprising of a vacant land of an extent of 2.5 acres and a constructed building area of 34200 sq.ft. known as the Kalaiarangam in the heart of Trichy belonged to the State. The said land was under the administrative control of the then Municipality of Trichy (now Corporation of Tiruchirapalli). The details regarding formation and activities of the first respondent-committee have been stated in the affidavit filed at the time of filing of the writ petition as well as additional affidavit dated 7-2-2005 filed pursuant to the order dated 24-1-2005 of the Division Bench. The following details are available in both the affidavits. In 1962 one Gulam Mohamed Basha, I.A.S., then District Collector of Trichy, organised a District Cattle Fair and generated a surplus of Rs.642/-. Making the said amount as corpus, the District Collector along with Thiru Ka.P.V. Viswanathan, renowned Tamil scholar started an informal and unregistered association of persons called Trichy District Welfare Fund Committee. The very next year a State level cattle fair was organised in Trichy which generated a further sum of Rs.1,161.56 and in the same year, the Trichy Fire Department conducted a fire fighting demonstration which generated a further sum of Rs.8,513.70 all of which was donated to the Committee. https://hcservices.ecourts.gov.in/hcservices/ 5. In 1964, K. Chokalingam, I.A.S., District Collector brought the famous drama troupe TKS Nataka Sabha to Trichy and raised a sum of Rs.1,00,033/- which was also donated to the Committee. In 1968, K. Haribhaskar I.A.S., District Collector organised a huge dance performance by which he raised a sum of Rs.25 lakhs which was entirely donated to the State Government for the conduct of the World Tamil Conference. Since the said conference itself had a surplus, the entire sum of Rs.25 lakhs was returned in the name of the Committee for the purpose of constituting a medical college. Due to various reasons, a medical college could not be started and instead, an idea to start an Agricultural University was mooted for which purpose the Committee gave a donation to the then Chief Minister a sum of Rs.14 lakhs to be used as corpus for establishing the University. When this idea also did not fructify, the said amount of Rs.14 lakhs was returned back to the Committee. 6. In 1974, the then District Collector, M. Vaidyalingam, I.A.S., organised a programme for raising funds for setting up the Navalar Nedunchezian College and raised Rs.4,50,000/-, but since the college was not started, this amount was like wise retained in the name of the Committee. It was felt that huge amounts have been collected which needed to be utilised for some purpose and since the educational institutions were not materialising, it was felt that some permanent building could be constructed by the Committee. As suggested by the then District Revenue Officer, Trichy, the Government have issued a memo dated 15-6-1974 giving permission to the Committee to enter upon certain extents of land for the purpose of putting up an auditorium. On 6-8-1975 a society was formally registered under the name and style of "The District Welfare Fund Committee". Between 1975 and 1976 the said M. Vaidyalingam, District Collector organised one more public function for establishing the Rajaji Sanitorium and collected Rs.15 lakhs which amount was also given over to the Committee as the Sanitorium was not built. Another sum of Rs.4 lakhs was also given to the Committee by the District Collector from his District funds for the purpose of the building of an auditorium. By 1976, the building was completed and the "Kalaiarangam" was inaugurated with a cinema theatre and an auditorium for conducting conferences and meetings. 7. By 1986, when the society was celebrating its Silver Jubilee, over Rs.1,22,58,174.89 have been collected from public and substantial amounts expended on giving welfare to the poor and the needy of Trichy including construction of permanent premises for road side vendors and food stall operators. The lands on which the Kalaiarangam was constructed which the society had entered upon in 1974 under a memo was finally assigned absolutely in its favour by the State Government-vide G.O.Ms.No. 290 Revenue Department dated 13-02-1982 wherein specific reference is made to the earlier enter upon permission as also a clear stipulation that the assignment was being made for the https://hcservices.ecourts.gov.in/hcservices/ express purpose of the construction of the Kalaiarangam. A total of 1.4988 Hec. of prime land in the heart of Trichy was given to the society for the above purpose for a nominal sum of Rs.4,83,900/- with 9% interest from the date of taking possession in 1974. The Government Order refers to various internal communications between the State Government and the District Collector and the District Revenue Officer and the Additional P.A. to the District Collector recommending the assignment. The aforesaid 3 senior District Officials are the Ex- officio President, Vice President and Secretary of the Society. The above facts would clearly demonstrate that the very origin, administration and maintenance of the society are deeply governed by the District Administration and can never be considered or equated to any other private society or association. The bye laws of the society provides that there can only be 33 members to the society at any point of time of which 22 shall be ex-officio Government servants of whom the three referred above hold the key Administrative posts. 8. The very aims and objects of the society as well as its source of funds (largely collected from the public through public functions organised for various specific purposes which never took place) and the fact that the funds of the society are being applied only for public charitable and welfare purposes in the District of Trichy, it cannot be stated that these activities are not public duties. 9. With reference to the averments stated in the affidavit filed at the time of the writ petition, the first respondent- Committee has filed a counter affidavit wherein it is stated that the writ petition is not maintainable. The Division Bench of this Court had already held on 26-2-2002 in W.P.No. 23534 and 26501 of 2001 and W.P.No. 1043 and 1896 of 2002 that the District Welfare Fund Committee (1st respondent herein) is not an instrumentality of the State and hence not amenable to writ jurisdiction. As far as the said committee is concerned, the award of lease to the second respondent is purely contractual and beyond the paramount interest of the committee by securing just returns for its property through dependable and solvent lessee nothing else matters. The property was transferred to the society by means of an assignment issued under G.O. 760/Rev/L2 dated 11-5-90 for a consideration of Rs.4,84,203/-. The amount was remitted by the society on 28-06-90. The funds were accumulated over a period of time by judicious conduct of the committee in conducting various cultural programmes and collecting donations through the public. The District Welfare Fund Committee is using every one of its resources only for the upliftment of the poor and downtrodden. 10. With reference to the same affidavit, the second respondent has filed a counter stating that the writ petition is not maintainable since the respondents against whom the relief was sought for is not amenable to writ jurisdiction under Article 226 of the Constitution of India. The other averments relate to merits of the https://hcservices.ecourts.gov.in/hcservices/ case which we are not concerned. 11. For the additional affidavit dated 7-2-2005 giving more information and materials, respondents 1 and 2 have not filed counter affidavit. In the light of the materials, facts and figures, let us consider whether the first respondent committee is an instrumentality of the State or performing any public function and whether a Writ under Article 226 of the Constitution of India lies against the said Committee and also besides whether the decision rendered in 2005 1 L.W. 126 ( cited supra) and order dated 26-02-2002 in Writ Petition Nos. 1043 and 1896 of 2002 and 23534 and 26501 of 2001 have been correctly decided. 12. Part III of the Constitution deals with Fundamental Rights. Article 12 defines "State" as under: "12. Definition.- In this part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India." It is also relevant to refer Article 32 which speaks about right to Constitutional Remedies: "32. Remedies for enforcement of rights conferred by this Part.- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part." Article 226 enables High Courts to issue certain writs: "226. Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article 32, every High Court shall have powers, throughout 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, orders or writs, including writs in the nature of habeas corpus, mandamus, https://hcservices.ecourts.gov.in/hcservices/ 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." 13. The powers of the Supreme Court under Article 32 and High Court under Article 226 have been considered by the Supreme Court in large number of decisions. In the case of Shri Anadi Mukta Sadgiri S.M.V.S.J.M.S. Trust v. V.R. Rudani, reported in A.I.R. 1989 Supreme Court page 1607, the Supreme Court considered the writ jurisdiction of the High Court exercisable under Article 226 of the Constitution of India. The following conclusion of Their Lordships are relevant: (paras 19 and 21) "19. 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 Court 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. 21. 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 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...." https://hcservices.ecourts.gov.in/hcservices/ 14. While considering the maintainability of the writ petition filed under Article 32 of the Constitution of India against Board of Control for Cricket in India (BCCI), the Supreme Court in Writ Petition (C) No. 541/2004 [M/S. Zee Telefilms Ltd., and another v. Union of India and others]- 2005 (1) SCALE p. 666 considered the term "State" under Article 12 and also considered the scope and interference under Article 32 by the Supreme Court and under Article 226 by the High Court. The main question for consideration before the Supreme Court was whether the 'Board' (BCCI) fell within the definition of the 'State' as contemplated under Article 12 of the Constitution. It was the argument of the Board that it did not come under the term "other authorities", hence it is not a State for the purpose of Article 12. After considering the decision in Sabhajit Tewary vs. U.O.I. & Others [(1975) 3 SCR 616] and Sukhdev Singh and others vs. Bhagatram Sardar Singh Raghuvanshi and another [1975 3 SCR 619], the Court held: (para 16) "16. The distinction to be noticed between the two judgments referred to hereinabove namely Sukhdev Singh & Ors and Sabhajit Tewary (supra), is that in the former the Court held that bodies which were creatures of the statutes having important State functions and where State had pervasive control of activities of those bodies would be State for the purpose of Article 12. While in Sabhajit Tewary's case the Court held a body which was registered under a statute and not performing important State functions and not functioning under the pervasive control of the Government would not be a State for the purpose of Article 12." 15. After referring to the decisions in Ramana Dayaram Shetty Vs. International Airport Authority of India & Others [AIR 1979 SC 1628 : 1979 3 SCR 1014] and Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others [2002 5 SCC 111), Their Lordships concluded thus: "24. To these facts if we apply the principles laid down by seven Judge Bench in Pradeep Kumar Biswas (supra), it would be clear that the facts established do not cumulatively show that the Board is financially, functionally or administratively dominated by or is under the control of the Government. Thus the little control that the Government may be said to have on the Board is not pervasive in nature. Such limited control is purely regulatory control and nothing more. 25. Assuming for argument sake that some of the functions do partake the nature of public duties or State actions they being in a very limited area of the activities of the Board would not fall within the https://hcservices.ecourts.gov.in/hcservices/ parameters laid down by this Court in Pradeep Kumar Biswas's case. Even otherwise assuming that there is some element of public duty involved in the discharge of the Board's functions even then as per the judgment of this Court in Pradeep Kumar Biswas (supra) that by itself would not suffice for bringing the Board within the net of "other authorities" for the purpose of Article 12. xx xx 29......Assuming that the above mentioned functions of the Board do amount to public duties or State functions, the question for our consideration is: would this be sufficient to hold the Board to be a State for the purpose of Article 12. While considering this aspect of the argument of the petitioner, it should be borne in mind that the State/Union has not chosen the Board to perform these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies' own volition (self arrogated). In such circumstances when the actions of the Board are not actions as an authorised representative of the State, can it be said that the Board is discharging State functions? The answer should be no..... 30....But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this Court in Pradeep Kumar Biswas's case (supra) is not a factor indicating a pervasive State control of the Board. 31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law by way of a writ https://hcservices.ecourts.gov.in/hcservices/ petition under Article 226 of the Constitution which is much wider than Article 32." 16. In General Manager, Kisan Sahkari Chini Mills Ltd., v. Satrughan Nishad, reported in (2003) 8 Supreme Court Cases 639, the Supreme Court had an occasion to consider "other authority" under Article 12. In that case, the appellant-Mill is a cooperative society registered as under the U.P. Cooperative Societies Act, 1965. The contesting respondents filed writ applications in the High Court alleging therein that they had worked on Class III and IV posts in the Mill for a period ranging from 5 to 12 years. The services of surplus workmen were dispensed with without giving any notice and paying retrenchment compensation as required under Section 6-N of the U.P. Industrial Disputes Act, 1947 in spite of the fact that they had worked for more than 240 days which necessitated filing of writ applications in the High Court. The said writ petitions were contested by the Mill on the grounds, inter alia, that the Mill, which is a cooperative society, was neither a 'State' nor an 'instrumentality' or 'agency of the State' within the meaning of Article 12 of the Constitution; hence the writ jurisdiction of the High Court could not be invoked. The learned Single Judge of the High Court over-ruled the preliminary objection raised on behalf of the Mill came to the conclusion that the Mill which is a Society within the meaning of Article 12 of the Constitution as it was an instrumentality of the State and there was infraction of the provisions of Section 6-N of the Act. Accordingly, the writ applications were allowed. The said order has been affirmed by the Division Bench on appeals being preferred by the Mill, hence the Mill has approached the Supreme Court by way of special leave. An argument was advanced before the Supreme Court stating that the contesting respondents could not have been allowed to invoke the writ jurisdiction of the High Court as the Mill, which is a registered cooperative society, was not State within the meaning of Article 12 of the Constitution as it was neither an instrumentality nor an agency of the Government of Uttar Pradesh. On the other hand, counsel appearing on behalf of the contesting respondents submitted that the Mill was an instrumentality of the Government, as such it was an authority within the meaning of Article 12 of the Constitution. The following discussion of the Supreme Court are relevant:- "6. The point raised is no longer res integra as the same is concluded by decisions of this Court. In the case of Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722],