1


      HIGH COURT OF MADHYA PRADESH,
                JABALPUR

 DB: HON'BLE SHRI JUSTICE S. K. SETH &
   HON'BLE SHRI JUSTICE H.P. Singh .


                    W.A. No.273/2017


 M.P. State Taekwondo Association & Others.

                          Versus

      Taekwondo Federation of India & Others.
______________________________________
      Shri S.K. Rawat, Advocate for appellants.

      Shri     Rahul      Diwakar,     Advocate         for
respondents.

_______________________________________

                     J U D G M E N T

(04.04.2017)

1. This intra-court appeal is directed against the order dated 6.3.2017 handed down by the learned Single Judge in Writ Petition No. 13843/2016 whereby the petition preferred by the petitioners (appellants herein) was dismissed on the ground of non maintainability 2 but appellants invoked the jurisdiction of learned Single Judge by challenging the order dated 10.8.2016 passed by the respondent nos. 2 and 3 herein.

2. Relevant facts in short leading to the said case are as under:-

3. Respondent no.1 is a registered Society and the respondent nos. 2 and 3 are the Office Bearers of the said Society whereas the appellant no.1 is the registered Association for the State of M.P. A notice was issued to show cause why the election held on 31.8.2014 be not declared as null and void. Reply to the said show cause notice was submitted and thereafter by order dated 10.8.2016, the respondent no.1 cancelled the affiliation of appellant no.1 and also cancelled the election and ad-hoc body was formed to look after routine affairs of appellant no.1. It is an admitted fact that after the said order the respondents have appointed Returning Officer and process of election is on.

4. Respondents filed their reply before the learned Single Judge and raised preliminary 3 objection that the respondent no.1 is not the State within the meaning of Article 12 of the Constitution of India and as such the petition was not maintainable. Learned Single Judge by the order impugned sustained the objection and dismissed the writ petition. Hence this intra- Court appeal.

5. We have heard the rival submissions at length. Perused the material available on record.

6. Learned counsel for the appellant placed reliance into the decisions of the Supreme Court in the case of Board of Cricket Control BoardVs Cricket Association Bihar and others- (2015) 3 SCC 251. We find that the Supreme Court held that the Board of Control of BCCI is an Authority within the meaning of Article 12 of the Constitution of India and as such amenable to writ jurisdiction of the High Court under Article 226 of the Constitution of India. A careful reading of the judgment shows that it was an admitted position that the respondent BCCI does discharge several important public functions and therefore it was 4 held to be an Authority within the meaning of Article 12 of the Constitution of India.

7. On the other hand, learned counsel for the respondents have cited several decisions. A few of them are as under:

(1) Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology-2002 (5)SCC

111. (2) Federal Bank Vs. Sagar Thomas- (2003) 10 SCC 733 (3) Balmer Lawire & Company Vs. Pratha Sarathi Sen Roy and others-(2013) 8 SCC 345 & (4) K.K. Saxena Vs. International Commission-(2015) 4 SCC 670.

In the case of Pradeep Kumar Biswas (supra) it was held by the Supreme Court in paragraphs 96, 97 and 100 as under:-

"96. The terms instrumentality or agency of the State are not to b e found mentioned in Article 12 of the Constitution. Nevertheless they fall within the ken of Article 12 of the Constitutio n for the simple reason that if the State chooses to set up an instrumentality or agency and entr usts it with the same power, fu nction or acti on which would otherwise have been exercised or undertaken by itself, there is no reason why such instrumentality or agency should not be subject to the same 5 constitutional and public law limit ati o ns as the State would have been. In different judicial pronouncements, some of which we have reviewed, any company, co rporation, society or any other entity having a juridical existence if it has been held to be an instrumentality or agency of the State, i t has been so held only on having been found to be an alt er ego, a d ouble or a proxy or a limb or an offspring or a mini-incarnati on or a vicarious creature or a surrogate and so on -- by whatever name called -- of the Stat e. In short, the material available must justify holding of the entity wearing a m ask or a veil worn o nly legally and outwar dly which o n piercing fails to obliterate the true charac ter of t he State in disguise. Then it is an instrumentality or agency of the St at e.

97. It is this basic and essential distinction between an "instrumentality or agen cy" of the State and "other author ities" which has to be borne in mind. An authority must be an authority sui juris to fall within the m eaning of the expression "other authorities" under Article 12. A juridical entity, though an authori ty, may also sati sfy the test of being an instrumentality or agency of the State in which event such authority may be held to be an instrumentality or agency of the State but no t vice versa.

100. We may now examine the characteristics of CSIR. On a care ful examination of the material available c onsisting of the m emorandum of association, rules and regulations and bye-laws of the Society and i ts budget and st ate ment of receipts and outgoings, we proceed to record our conclusions. The Government does not hold the entire share capit al of CSIR. It is not owned by the Government. Presently, the government funding is about 70% and gr ant by the Government of India is one out of five c ategories of avenues to derive its funds. Receipts from other sources such as research, development, consultat ion activities, monies received for specific project s and jobwork , assets of the society, gifts and donations are permissible sources of funding of CSIR without any prior permission/consent/sanction from the Government of India. Financial assistance from the Government does not meet almost al l expenditure of 6 CSIR and appare ntly it fluctuates too depending upon variation fro m its own sources of income. It does not enjoy any monopoly stat us, much less conferred or pro t ected by the Go vernment. The Governing Body does not con sist entirely of government nominees. The membership of the Society and the manning of its Go verning Body -- both consist substanti ally of private individuals of eminence and independence who canno t be regarded as the hands and voice of the State. There is no provision in the rules or the bye-laws that the Government can issue such directives as it deems necessary to CSIR and the latter is bound t o c arry out the same. T he functions of CSIR cannot be regarded as g overnmental or of essential public importance or as closely related to governmental functions or being fundamental to the life of the people or duties and obligations t o the public at large. The functio ns entrusted to C SIR can as well be carried out by any private person or organiz ation. Historically, it was no t a depar tment of the Government which was transferred to CSIR. There was a Bo ard of Scientific and Industri al Research and an Industrial Research Utilisation Committee. CSIR was set up as a s ociety registered under the Societies Registration Act, 1860 to coordinate and g enerally exercise administrative control over the two or ganiz atio ns which would tender their advice only to CSIR. T he membership of the Society and the Governing Body of the Council may be terminated by the President, not by the Government of India. The Go verning Body is headed by the Dir ector General of C SIR and no t by the President of the Society (i.e. the Prime Minister). Certainly the Board and the Committee, taken over by CSIR, did not disch arge any regal, governmental or sovereign functions. CSIR is not the offspring or the blood and bon es or the voice and hands of the Government. CSIR does not and cannot m ake law."

In the case of Federal Bank (supra) it was held by the Supreme Court in para 27 as under:-

"27. Such private companies would normally not be amenable to t he writ jurisdictio n under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be c ompli ed with by all con cerned including the private comp anies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wag es Act, the F act o ries Act or fo r maintaining pro p er environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control o f Pollution) Act, 1974 etc. or statut es of the like nature which fasten certain duties and responsibilities statu torily upon such private bodie s which they are bound to c omply with. If they viol ate such a statut ory provision a writ would cert ainly be issued for compliance with those provisions. For instance, if a pr ivate employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bo dies and the com panies in that reg ard. But the difficulty in issuing a writ m ay arise where there may not be any non-compliance with or violation of any s tatu tory pr ovision by the priv ate body. In that event a writ may no t b e issued at all. Other remedies, as may be availabl e, may have to be resorted to. "

In the case of Balmer Lawire & Company (supra) it was held by the Supreme Court in para-28 as under:-

" 28. In o r de r to de te r mi ne w he the r an autho r ity is a me nable to w r it jur isd ict io n e xce pt in the c ase o f habe as co r pus o r quo w ar r anto , it m u st be e xamine d , w he the r the co mpany/co r po r atio n is an ins t r ume ntal ity o r an age ncy o f the State , and if the same car r ie s o n busi ne ss fo r the be ne fit o f the publ ic; w he the r the e ntir e shar e capi tal o f the co mpany i s he ld by the G o ve r nme nt; w he t he r its ad min istr a tio n is i n the ha nds o f a B o ar d o f D ir e cto r s appo in te d by the G o v e r nme nt; an d 8 e ve n if the B o ar d o f D ir e cto r s has be e n appo in te d by th e G o ve r nme nt, w he the r it is co mple te ly fr e e fr o m go ve r nme ntal co n tr o l in the dischar ge o f its func tio ns ; w he the r the co mpany e njo ys mo no po ly status ; and w he the r the r e e xists w ithin the co mpa ny, de e p and pe r vasive State co ntr o l. T he o the r facto r s that may be co nside r e d ar e w he the r the funct io ns car r ie d o ut by the co mpany /co r po r atio n ar e clo se ly r e late d t o go ve r nme ntal funct io ns, o r w he the r a de partme nt o f the G ove r nme nt has be e n tr ansfe r r e d to the co mpan y/co r po r atio n, and the q ue sti o n in e ach ca se , w o uld be w he the r in l igh t o f t he cumu l ative fac ts as e stablis he d, th e co mpany is fina ncia lly , funct io nal ly and admin istr at ive l y unde r the co ntr o l o f t he G o ve r nme nt. In t he e ve nt tha t the G o ve r nme nt pr o vide s finan c ial su ppo r t to a co mpany, but do e s no t r e tain any co ntr o l/w atch o ve r ho w it is spe nt, the n t he same w o uld n o t fall w i thi n the ambi t o f e xe r cising de e p and pe r vasive co ntr o l. Such co ntr o l must b e par ticular to the bo dy in que stio n, a nd n o t ge ne r al in natur e . It must also be de e p and pe r vasive . T he co ntr o l sho uld no t, the r e fo r e , be me re ly r e gulato r y."

In the case of K.K. Saxena (Supra) it was held by the Supreme Court in paragraphs-49, 50, 51 and 53 as under:-

"49. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performi ng public duty is amenable to writ jurisdiction, all it s decisions are not subject t o judicial review, as already pointed o ut above. Only those decisions which have public element therein can be judici ally r eviewed under writ jurisdiction. In Praga To ols Corp n. v. C.A. Imanu al, as already discussed above, this Court held that the action challenged did no t have public element and w rit of mandamus could not be issued as the action was essentially of a pr ivate charac ter. T hat was a case where the employee concerned was seeking reinstatement to an office.

50. We have also pointed ou t above that in Sak a Venkata Rao th is Court had observed that administrative law in India has been shaped on the lines of English law. There are a catena of judgments in English courts t aking same view, namely, contractu al and commercial obligations are enforceable only by ordinary ac tio n and no t by judicial review. In R. (Hopley) v. Liverpool Health Authority (unrepor ted)(30-7-2002), Justice Pitchford helpfully set out three things that had to be identified when considering whether a pu blic bo dy with statut ory powers was exercising a public function amenable to judicial review or a private function. They are : (i) whether the d efendant was a public body exercising statutory powers; (ii) whether the function being perf ormed in the exercise of those powers was a pub lic or a private one; and (iii) whether the defendant was performing a publ ic duty o wed to t he claimant in the particular circ umstances under consideration.

51. Even in Andi Mukta Sadguru, which took a revolutionary turn and departure fr om the earlier views, this Court held that "any other authority" mentioned in Article 226 is not confined to statutory authorities or inst rumentalities of th e State defined under Article 12 of the C onstit ution, it also emphasised that if the rights are purely of a private charac ter, no m andamus could issue.

53. In the present case, though w e have held that ICID is not d ischarging any public duty, even otherwise, it is clear th at the impug ned action does not involve public law element and no "public l aw rights" have accr ued in favour of the appellant which are infringed. The service conditions of the appellant are not governed in the same manner as was the position in Andi Mukta Sadgu ru .

8. From the various authorities of the Supreme Court the following tests would be applicable for determining whether a 10 corporation or Government Company or Private body is an instrumentality or agency of the State namely:

(i) Whether the entire share capital is held by the Government.

  (ii)     Whether    the   corporation      enjoys
           monopoly   status conferred      by the
           State.
  (iii)    Whether     the  functions    of   the
           corporation     are      governmental

functions or functions closely related thereto.

(iv) If a department of the Government has been transferred to the corporation.

(v) The volume of financial assistance received from the State.

(vi) The quantum of State control.

(vii) Whether any statutory duties are imposed upon the corporation.

(viii) The character of the corporation may change with respect to its different functions.

  (ix)     A private institution does not become
           an   instrumentality   of    the   State

because of the mere fact that it has received recognition or affiliation from the State.

9. On the parameter of above tests laid down by the Supreme Court and in absence of relevant data and 11 material, it cannot be held that respondent no.1 is an Authority within the meaning or the ambit of Article 12 of the Constitution of India.

10. Mere fact that it had received certain amounts from the Government or Olympic Association does not confer any right because those amounts were paid for specific events not for the general functioning of federation. The dispute between the appellants and the respondents is in-house dispute and in our considered opinion does not partake the character of an Authority within the meaning of Article 12 of the Constitution of India and as such the writ petition filed by the appellants was rightly dismissed by the learned Single Judge.

11. Moreover in a writ appeal, we do not sit as an Appellate Authority over the order of Single Judge but the object of writ appeal is to correct factual mistake if any, committed by the learned Single Judge.

12. Thus we find no merit and substance in the appeal. The same is accordingly dismissed summarily.

13. Ordered accordingly.

     (S. K. Seth)                         (H.P. Singh)
       Judge                                 Judge

DUBEY/
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