IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.11.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN Writ Appeal No.477 of 2007, W.P.No.6530 of 2006 and WPMP.No.7039 of 2006 W.A.No.477 of 2007: S.Rudiramurthy ... Appellant Vs. 1.All India Board of Technical Studies in Architecture and Regional Planning, represented by its Chairman, New Delhi. 2.Institute of Town Planners of India, represented by its President, No.4-A, Ring Road, Indhraprastha Road, New Delhi. 3.Chennai Metropolitan Development Authority, represented by its Member Secretary, No.1, Gandhi Irwin Road, Egmore, Chennai 4.Mr.R.Krishnamurthy ... Respondents W.P.No.6530 of 2006: Citizens Care Foundation (Regn.No.87/2006), rep.by its President Mr.K.M.Sadhanandh, having its Registered office at B.7 Chanakya Apartments, Sidhankudi, Pondicherry-13. ... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs. 1.Government of India, rep.by its Secretary to Government, Urban Development Department, New Delhi. 2.All India Board of Technical Studies in Architecture and Religious Planning, rep.by its Chairman, New Delhi. 3.Institute of Town Planners of India, rep.by its President, No.4-A, Ring Road, Indhraprastha Road, New Delhi-110002. ... Respondents * * * Writ Appeal No.477 of 2007 has been preferred under Clause 15 of the Letters Patent as against the order of the learned single Judge dated 15.2.2007 made in W.P.No.41061 of 2006. Writ Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus, calling for the proceedings of the 2nd respondent relating to the certificate dated 7.6.2006 awarding Associate Membership issued in favour of the 4th respondent and quash the same and consequently direct the 3rd respondent to forbear from according any service benefits like promotion etc to the 4th respondent pursuant to the award of Associate Membership to him. Writ Petition No.6530 of 2006 has been filed under Article 226 of the Constitution, as a Public Interest Litigation, praying to issue a Writ of Mandamus, directing the 2nd and 3rd respondents to forbear them from violating the governing Rule 22 of the Bye-law of the Institue of Town Planners of India and the Regulation which regulates the awarding of Fellowship and Associate Membership of their Fellow Students beyond the prescribed period of six years and a further period of two years as contemplated under the said Rule 22, without following the due process of law and as per the Bye- laws and Regulations of the Institute of Town Planners of India. * * * https://hcservices.ecourts.gov.in/hcservices/ For appellant in WA : Mr.V.Vijayshankar For petitioner in WP: Mr.D.S.Rajasekaran For R.2 in W.A., who is R.3 in W.P. : Mr.S.J.Jayadev For R.3 in W.A.(CMDA): Mr.D.Veerasekaran For R.4 in W.A. : Mr.N.G.R.Prasad for M/s.K.M.Nalinishree * * * COMMON JUDGMENT ELIPE DHARMA RAO, J. Since a common question of law is involved in both these matters, they are taken up for common hearing and disposal. 2. For the sake of convenience and easy reference, the parties are referred to as per their ranking in the Writ Appeal. 3. The appellant by name Mr.S.Rudiramurthy has filed W.P.No.41061 of 2006 before this Court praying to issue a Writ of Certiorarified Mandamus to call for the proceedings of the second respondent relating to the certificate dated 7.6.2006 awarding Associate Membership issued in favour of the fourth respondent and quash the same and consequently direct the third respondent to forbear from according any service benefits like promotion etc. to the fourth respondent, pursuant to the award of Associate Membership to him. 4. It is his contention that he was appointed as Planning Assistant Grade-II on 25.9.1987 in the Chennai Metropolitan Development Authority (CMDA) and thereafter promoted as Planning Assistant Grade-I on 25.3.1991 and as Assistant Planner on 13.7.2000. He is a BE (Civil) with First Class from the Anna University in the year 1994 and also successfully completed the Master of Town and Country Planning (MTP) with First Class securing Gold Medal in January 1997 and he has been admitted as an Associate Member of the Institute of Town Planners of India/the second respondent in the year 1999. According to him, he is due for promotion from the post of Assistant Planner to Deputy Planner in the CMDA; that the fourth respondent who is working as Assistant Planner in the CMDA, does not possess the qualification prescribed for the post viz. a pass in MTP/AITP with four years of experience; https://hcservices.ecourts.gov.in/hcservices/ that the persons other than those having qualification prescribed viz. Civil Engineering and Post Graduate in Town Planning are bound to enroll themselves as Student Member and undergo the course under the 1st and 2nd respondents to qualify for Associate-Membership by submitting their Thesis as per the Bye-laws, Rules and Regulations formulated by the respondents 1 and 2; that the fourth respondent who is not qualified to register as Associate Member directly for want of technical qualification, had enrolled as Student-Member with the 1st and 2nd respondents in the year 1992; that as per Rule 22 of the bye-laws of the 1st and 2nd respondents, a student member has to necessarily complete the course by submitting the Thesis within six years from the date of enrolment or on an extension of a further period of two years, provided he satisfies the Council that he was taking steps to qualify for Associate Membership; that the fourth respondent did not complete the course within the period prescribed under Bye-law 22 of the 1st and 2nd respondents and on the other hand, he was influencing the 1st and 2nd respondents to award the Certificate for Associate Membership in the year 2006 i.e. after 14 years from the date of his enrolment, which is clearly illegal and in contravention of their bye-laws and therefore void. Therefore, the appellant has filed the writ petition with the above prayer. The learned single Judge, dismissed the said writ petition, on the ground that the second respondent is not a 'State' within the meaning of Article 12 of the Constitution of India. Aggrieved, the petitioner therein has come forward to prefer this appeal. 5. Before the filing of this writ petition, another writ petition, in W.P.No.6530 of 2006, has been filed by the citizens care foundation, as a public interest litigation, on similar averments. 6. Since the issues involved in both the matters are common, both these matters are clubbed together and arguments are heard in common. 7. Though many issues have been argued on either side regarding Rule 22 before and after its amendment and the total non- compliance of the provisions of Bye-laws in effecting the bye-law, since the prime issue that needs to be answered is about the maintainability of the writ petition against the second respondent, we shall now proceed to deal with the same. 8. A strong objection has been raised on behalf of the second respondent, both before the learned single Judge and before us, that it is not a statutory body but incorporated under Section 25 of the Indian Companies Act, 1956 and as such, no writ will lie https://hcservices.ecourts.gov.in/hcservices/ under Article 226 of the Constitution of India against them. The learned single Judge has upheld this contention of the second respondent and dismissed the writ petition as not maintainable. 9. The learned counsel appearing for the appellant in the writ appeal and the learned counsel appearing for the petitioner in the probono publico, would vehemently argue that the second respondent Institute discharges the duties of public importance in the matter of education as it is the only Institute of its kind in India which awards Degrees/Diploma in Town Planning and hence a Writ Petition against the second respondent is certainly maintainable under Article 226 of the Constitution of India. They have further argued that the first respondent/All India Board of Technical Studies in Architecture and Regional Planning is one of the several technical Boards coming under the purview of AICTE under Section 13(2) and 13 (4) of the AICTE Act. They have further argued that under AICTE, there are several technical and professional Boards such as All India Board of Pharmaceutical Education, All India Board of Management Studies, All India Board of Technical Education, All India Board of Post Graduate Education and Research in Engineering and Technology, All India Board of Hotel Management and Catering Technology, All India Board of Information Technology and All India Board of Town and Country Planning. The learned counsel appearing for the appellant in the writ appeal would further argue that besides the second respondent, CMDA is also a party to the writ as the third respondent against whom the writ is definitely maintainable and therefore, the order passed by the learned single Judge needs to be set aside and would pray to allow the writ appeal. 10. Adding further, the learned counsel appearing for the petitioner in the writ petition would argue that many irregularities have been committed by the second respondent Institute in issuing the certificates, one such glaring example is the certificate issued to the fourth respondent in the writ appeal viz. Mr.R.Krishnamurthy and would, therefore, pray to allow the writ petition. 11. On the other hand, on the part of the learned counsel appearing for the fourth respondent in the writ appeal would argue that the object of the appellant, who is admittedly the junior of the fourth respondent is to get promotion to the post of Deputy Planner before the promotion of the fourth respondent. It has further been argued that the present litigation has been initiated at the instance of the appellant, without verifying the fact that Rule 22 of the bye-law, which earlier provided a time limit for completing the certificate course, has been amended, taking away https://hcservices.ecourts.gov.in/hcservices/ the time limit and the attempts made on the part of the appellant to impart motives to the second respondent are all baseless. He would further argue that the learned single Judge has rightly arrived at the conclusion of dismissing the writ petition as not maintainable and would pray to dismiss the writ appeal and the writ petition filed under the garb of public interest litigation. 12. As has already been observed supra, though many issues have been argued and urged on either side, the preliminary issue that needs to be answered by us is regarding the maintainability of the writ petitions, since a question has been raised on the part of the second respondent that it is not a 'State' within the meaning of Article 12 of the Constitution, so as to maintain the writ petitions. 13. No doubt, the High Courts are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction, the High Courts can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part-III of the Constitution or for any other purpose. Though the jurisdiction conferred on the High Court under this Article is very wide, it is an accepted principle that this is a public law remedy and is available against a body or person performing public law function. 14. The learned counsel for appellant in the writ appeal and the learned counsel for the petitioner in the writ petition would argue that even if the second respondent is held to be a private party, the writ is very well maintainable against it and in support of their arguments, they would rely on a judgment of the Honourable Apex Court in ANDI MUKTA SADGURU SHREE MUKTAJEE VANDAS SWAMI SUVARNA JAYANTI MAHOTSAV SMARAK TRUST AND OTHERS vs. V.R.RUDANI AND OTHERS [(1989) 2 SCC 691], wherein the Honourable Apex Court has held in the following terms "The appellant-management of the college, which is a trust registered under Bombay Public Trusts Act is amenable to the writ jurisdiction of the High Court under Article 226. The court can compel the management by a writ of mandamus to pay to its teachers whose services were terminated by it, the terminal benefits and arrears of salary payable to them." "The appellant-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 https://hcservices.ecourts.gov.in/hcservices/ 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. So are the service conditions of the academic staff. 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 cannot be refused to the aggrieved party. In absence of any plea for specific performance of contractual service or declaration for continuance in service, the writ petition was maintainable." 15. They would further rely on another judgment of the Honourable Apex Court in BINNY LTD. & ANOTHER vs. V.SADASIVAN AND OTHERS [2005-4-L.W.745 = (2005) 6 SCC 657], wherein it has been held as follows: "Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. 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. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law https://hcservices.ecourts.gov.in/hcservices/ remedies...." 16. The above judgments of the Honourable Apex Court make it undoubtedly clear that there must be public law element in the action of an organisation, so as to maintain the writ petition against it. 17. In fact, in PRADEEP KUMAR BISWAS AND OTHERS vs. INDIAN INSTITUTE OF CHEMICAL BIOLOGY AND OTHERS [(2002) 5 SCC 111], the Constitutional Bench of the Honourable Apex Court has held that: "40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [AJAY HASIA vs. KHALID MUJIB SEHRAVARDI 1981 (1) SCC 722] are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be — whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." 18. In this backdrop, now we have to see whether the 2nd respondent possess any public law element, so as to bring within the fold of 'State' under Article 12 of the Constitution so as to maintain the writ petitions against it. 19. From the materials on record, we are able to see that the second respondent owes its origin to a small group of Town Planners of Delhi, who, in 1947 decided to set up a professional Town Planning Institute on the lines similar to the Royal Town Planning Institute, London and since the number of planners, which then did not exceed six, was too small for a registered society to be set up and therefore, the small group formed itself into an Indian Board of Town Planners and started working towards establishing a professional Institute and after three years of continuous work, the members of the Indian Board of Town Planners, who then numbered about fifteen, evaluated the possibility of forming the Institute of Town Planners, India and later on finalized the Memorandum, Articles of Association and Bye-laws of the Institute. Thereupon, they have incorporated as a 'company' under Section 25 of the https://hcservices.ecourts.gov.in/hcservices/ Indian Companies Act. It is being run by a Council consisting of a President, Vice-President, Secretary-General, one Chairperson and 17 members. It is also having several committees for various purposes. No member is a nominee of the Government and it is purely a private organisation, having its own bye-laws and regulations. There is no element of any control by any Governmental organisation. The second respondent, in addition to the operational autonomy, is also empowered to amend its bye-laws. But, being a company registered under the provisions of the Companies Act, the amendment of Bye-laws are subject to issuance of a No Objection Certificate by the Registrar of Companies, as provided for under Rules 104 and 105 of the Bye-laws. It is being regulated by the Companies Act, rather than by the Government. Therefore, it does not at all satisfy any of the tests, to qualify itself to be a 'State' within the meaning of Article 12 of the Constitution. 20. But, an argument has been advanced on the part of the learned counsel for the appellant in the writ appeal and the petitioner in the writ petition that the second respondent is the the only Institute of its kind in India which awards Degrees/Diploma in Town Planning and hence a Writ Petition against the second respondent is certainly maintainable under Article 226 of the Constitution of India. 21. In these circumstances, it is apt to refer to a judgment of the Honourable Apex Court in GOVERNOR OF DELHI vs. V.K.SODHI [(2007) 15 SCC 136], wherein while considering the question 'whether the State Council of Education, Research and Training ( SCERT) was a State or other authority within the meaning of Article 12 of the Constitution and therefore subject to writ jurisdiction, the Honourable Apex Court has held in the following terms: "There is no simple litmus test, to determine whether an entity is "State" or "other authority" within the meaning of Article 12 of the Constitution of India. Various facets of the foundation and the working of the entity are relevant in determining the question in the context of the duties entrusted to it, or taken up by it for performance. So the question to be determined is whether in the context of the functions entrusted to it, the rules and bye-laws that govern SCERT, and the financial position enjoyed by it, SCERT can be said to be financially, functionally and administratively dominated by or under the control of the Government." 22. The above judgment of the Honourable Apex Court squarely applies to the facts of the case on hand and serves as a straight answer to the argument advanced on the part of the appellant that https://hcservices.ecourts.gov.in/hcservices/ it is the only Institute of its kind in India which awards Degrees/Diploma in Town Planning, since, a similar argument advanced therein has been answered in negative by the Honourable Apex Court in the above judgment. Further, as has already been observed supra, there is no public law element in the actions of the second respondent and it has not qualified to come within the purview of Article 12 of the Constitution, so as to maintain the writ petition against the second respondent. 23. One more argument has been advanced on the part of the appellant that even the CMDA where both the appellant and the fourth respondent are working has been impleaded as a party and hence, the writ petition is very well maintainable. But, though the CMDA has been impleaded as a party respondent to the writ proceedings, the prime relief has been claimed only against the second respondent. 24. In these circumstances, we have no hesitation to hold that the learned single Judge has correctly analysed all the facts and circumstances of the case and has arrived at an irresistible conclusion of dismissing the writ petition as not maintainable. We find no illegality or irregularity in the order passed by the learned single Judge and accordingly, the writ appeal No.477 of 2007 is liable to be dismissed. For the same reasons, the writ petition No.6530 of 2006 filed as a probono publico is also not maintainable and the same is also liable to be dismissed. Since both the matters are dismissed as not maintainable, we have not gone into merits and demerits of either of the parties and the parties have to work out their remedies before appropriate forums of law and not under Article 226 of the Constitution. In the result, the writ appeal No.477 of 2007 and the Writ Petition No.6530 of 2006 are dismissed. No costs. Consequently, WPMP.No.7039 of 2006 is also dismissed. Rao Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai 2.The Secretary to Government, Government of India, Urban Development Department, New Delhi. 3.The Chairman, All India Board of Technical Studies in Architecture and Religious Planning, New Delhi. 4.The President, Institute of Town Planners of India, No.4-A, Ring Road, Indhraprastha Road, New Delhi-110 002. + 2 ccs to Mr. S. J. Jagadev, Advocate SR No.82798, 82799 + 1 cc to Mr. V. Vijay Shankar, Advocate SR No.82677 + 1 cc to Mr. D. Veerasekaran, Advocate SR No.82314 + 1 cc to Mr. D.S.Rajasekaran, Advocate SR No.82184 SJ(CO) SR/1.12.2010 Common Judgment in W.A.477/2007 & W.P.No.6530/2006 https://hcservices.ecourts.gov.in/hcservices/