LPA No. 626/2013. Case: Anil Dutta Mishra Vs Gandhi Smarak Sangrahalaya Samiti & Ors.. High Court of Delhi (India)
| Case Number | LPA No. 626/2013 |
| Counsel | For Appellant: Mr. B.P. Patil, Senior Advocate, Mr. Purushottam Sharma Tripathi, Mr. Ravi Chandra Prakash, Mr. Mukesh Kumar Singh and Ms. Filza Moonis, Advocates and For Respondents: Mr. Ravinder Aggarwal, Advocate and Mr. M.P. Singh, Advocate |
| Judges | Pradeep Nandrajog and V. Kameswar Rao, JJ. |
| Issue | Constitution of India - Articles 12, 19(1)(a), 21A, 226 |
| Judgement Date | August 27, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
V. Kameswar Rao, J.
1. This appeal has been filed challenging the order of the learned Single Judge dated July 17, 2013 in WP(C) No. 13051/2009 and CM Nos. 14016/2009 and 17010/2012 whereby the learned Single Judge has dismissed the writ petition filed by the appellant as not being maintainable. The challenge in the writ petition was inter alia to the orders passed by the respondent Nos. 1, 2 & 4 compulsorily retiring the appellants from service. The respondent no. 1 is Gandhi Smarak Sangrahalaya Samiti.
2. This Samiti is registered under the Societies Registration Act, 1860 in the year 1965. The objects of the society and other functions have been laid down in the Memorandum of Association and Rules and Regulations.
3. The Department of Culture, Union of India which had filed an affidavit in the writ petition has taken a stand that it had given one time grant of ` 10 crores to the respondent No. 2 which is National Gandhi Museum, which is managed by the Samiti. It is also the stand of the Union of India that it is not in the management and control of the respondent No. 2.
4. The learned Single Judge was of the view that a writ petition lies against the Union of India or the State Government or a body which is a state or instrumentality of State as per Article 12 of the Constitution of India. He further holds that even against a private body a writ petition will lie but that too in those cases wherein issue arises of compliance of certain welfare legislations or equally important legislatives by the private body.
5. The issue whether an organization is a state or its agency or instrumentality of State within the meaning of Article 12 of the Constitution of India, to make a writ petition maintainable under Article 226 of the Constitution of India has come up for consideration before the Supreme Court and this Court, on many occasions. One of the earliest judgment of the Supreme Court is reported as 1979 (3) SCC 489 Ramana Dayaram Shetty v. International Airport Authority of India wherein the Supreme Court has propounded tests for determining, as to when the corporation will be said to be an instrumentality or agency of the Government. The aforesaid judgment of the Supreme Court was followed by the judgment reported in 1981 (1) SCC 722 Ajay Hasia v. Khalid Mujib Sehravardi wherein the Supreme Court noted with approval the ratio in Ramana Dayaram Shetty's case (supra) and wherein the Supreme Court laid down the following tests:
(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.
(2) Where the financial assistance of the...
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