Allahabad, Oct 5 (ILNS) The Allahabad High Court on Monday held that only if the action under challenge falls in the domain of public law then remedy under Article 226 of the Constitution would be available against an authority/person discharging public duty or function.
A three-judge bench comprising Acting Chief Justice Munishwar Nath Bhandari, Justice Prakash Padia and Justice Sanjay Kumar Singh passed this order while hearing a petition filed by Uttam Chand Rawat.
The Court was hearing a reference made by a Single Judge to the Larger Bench finding conflicting judgments on the issue :
“(i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution?
(ii) Whether the decision in Rajesh Kumar Srivastava and others versus State of U.P. and others, 2020 (2) AWC 1693 is in teeth of the holding of the Full Bench in Roychan Abraham versus State of U.P. and others, (2019) SCC OnLine All 3935?”
The Court noted that, In the case of Rajesh Kumar Srivastava, Single Judge held a writ petition under Article 226 of the Constitution of India to be maintainable against the authority or the person discharging public duty only when the issue of public law is involved.
The writ petition would not be maintainable if the claim is arising out of a private contract between the two parties. The view was taken to be in conflict with the earlier judgment of the Court and, accordingly, the matter has been referred to the Larger Bench.
The questions referred to the Larger Bench is about maintainability of the writ petition against the authority or the person discharging public duty/public function which may not fall within the definition of “State or its authority” under Article 12 of the Constitution of India.
The Court held that, The issue has been considered by the Apex Court at length recently in the case of Ramakrishnan Mission and another versus Kago Kunya and others, (2019) 16 SCC 303. In the said case, the Apex Court has considered all the earlier judgments on the issue. The judgment in the case supra was given after considering the scope of Article 12 so as Article 226 of the Constitution of India. It is not only after analyzing the facts of the case but the proposition of law evolved by the Apex Court in the earlier judgments on the maintainability of the writ petition.
For the maintainability of the writ petition, the twin test is to be satisfied. The first test is about the public function/public duty by an authority or a person and the second test is about the challenge to the action that falls in the domain of public law.
The writ petition would not be maintainable against the authority or the person referred under Article 226 of the Constitution of India merely for the reason of the discharge of public function/public duty unless an issue of public law is involved.
After placing reliance on various judgments of the Supreme Court and High Court, the Court came to the conclusion that a writ petition under Article 226 of the Constitution would be maintainable against:
(i) the Government; (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.
The Court said that there is a thin line between “public functions” and “private functions” discharged by a person or a private body/authority. The petition would be maintainable only after determining the nature of the duty to be enforced by the body or authority rather than identifying the authority against whom it is sought.
The Court further said that even if a person or authority is discharging public function or public duty, the petition would be maintainable under Article 226 of the Constitution, if the Court is satisfied that action under challenge falls in the domain of public law, as distinguished from private law.
The twin tests for maintainability of the writ are as follows: The person or authority is discharging public duty/public functions.
Their action under challenge falls in the domain of public law and not under common law.
The Court observed that The petition would not be maintainable against authority or a person merely for the reason that it has been created under the statute or is governed by regulatory provisions. It would not even be in a case where aid is received unless it is substantial in nature. The control of the State is another issue to hold a writ petition to be maintainable against authority or a person.
If the petition refers to contractual obligations between the parties, it would not be maintainable. Thus, the twin test, as suggested by us in this judgment is to be satisfied for maintainability of the writ petition and that too, after taking notice of the finding and observation made by us in reference to the nature of authority or person.
Accordingly, the Court answer the questions referred by Single Judge in the following terms- (1) The remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin tests are satisfied. The authority or the person should not only discharge public function or public duty but the action challenged therein should fall in the domain of public law. The petition would not be maintainable against authority or person even if it is discharging public function /public duty if the controversy pertains to private law such as a dispute arising out of contract or under the common law.
Since the questions have been answered by the Larger Bench, the Registry is directed to place this order before the Single Judge where the writ petition is pending for hearing, the court-ordered.
The judgment of the Court in the case of Rajesh Kumar Srivastava (supra) is not against the ratio pronounced by the Larger Bench in the case of Roychan Abraham, rather it has followed the judgment of the Apex Court in the case of K. K. Saksena, the court held./ILNS/AP/SNG/