Ram Singh vs State of M.P. & Ors.

Heard Learned counsel for the parties on I.A. No.11262/2016, an application seeking amendment in the cause title of the writ petition. The petitioners have filed the aforesaid IA for impleading respondents No.4, 5 and 6 in the cause title of the writ petition on the ground that respondent No.1-T.F.I. is affiliated to the Indian Olympic Association and recognised by the Ministry of Youth Affairs and Sports, Government of India. TFI constitution may be governed or controlled by the Govt. of India through Ministry of Youth Affairs and Sports, therefore, Union of India, through Secretary, Ministry of Youth Affairs and Sports, Govt. of India, appears to be necessary party as one of the respondents in the writ petition in question. It is further contended that the petitioner-Association is also affiliated with M.P. Olympic Association, Govt. of Madhya Pradesh, therefore, M.P. Olympic Association is also a necessary party in the writ petition as respondent No.5 and in the interest of justice, the adhoc body is also necessary party as respondent No.6 in the cause title of the writ petition. The respondents have filed reply to the said application and opposed the said application on the ground that the dispute raised in the writ petition is only between the petitioners and the present respondents, however, the newly proposed respondents do not have any role to play in the controversy in question. It has further been submitted that respondent No.1-Federation is in no way controlled or monitored either by the Ministry of Youth Affairs and Sports or by the Olympic Association of India. The present respondent No.1-Federation is an independent society having its own constitution and reading of the constitution shall reveal that the respondents are not under any controlled by the Ministry of Youth Affairs and Sports. It has further been submitted that the application has been filed by the petitioners only on the basis of the objection raised by the

present respondents regarding maintainability of the writ petition. Since the petitioners want to bypass the objection raised by the respondents regarding maintainability of the writ petition, therefore, the application is liable to be rejected. I have heard learned counsel for the parties and perused the averments made in the application for amendment. From perusal of the averments made in the application, it reveals that the petitioners have not claimed any relief against the proposed respondents. It further reveals that the application has been filed only to bypass the objection raised by the respondents regarding maintainability of the writ petition. As no relief is claimed by the petitioners against the proposed respondents, therefore, I.A. No.11626/2016 is hereby rejected. Also heard learned counsel for the parties on the question of maintainability. The petitioners have filed the present writ petition challenging the impugned order dated 10/08/2016 passed by respondents No.2 and 3 on the ground that the said order is illegal, without jurisdiction and violative of principles of natural justice.

Petitioner No.1 is a registered Association and is recognized by the department of Sports and Youth Welfare Madhya Pradesh. Petitioner No.1-association is also approved by the M.P. Olympic Association. Petitioner No.2 is the President of petitioner No.1-Association who elected in the duly conducted election held on 31/08/2014 for a period of four years. Petitioner No.3 is the General Secretary of petitioner No.1-association.

Respondents No.1 and 2 had issued a show cause notice dated 22/07/2016 under Article 4.5.1 of Taekwondo Federation of India Constitution for declaring the election of the petitioner No.1-association held on 31/08/2014 as null and void. The petitioners as well as M.P. Olympic Association have filed their reply to the said show cause notice on 01/08/2016. Thereafter the respondents had issued an order dated 10/08/2016 thereby disaffiliating the petitioner-association and cancelling their election and further asked to form an ahoc body to look after the routine affairs of STA. Being aggrieved by the impugned orders, the petitioners have filed the present writ petition. The impugned order has been challenged on the ground that the

said order is illegal, arbitrary, without jurisdiction and has been passed without issuing any show cause notice.

The respondents have filed their reply and in the reply the respondents have raised a preliminary objection to the maintainability of the writ petition. The respondents have stated that respondent No.1 is purely a civil body having its constitution and set of rules to work. It is submitted that respondent No.1 does not obtain any aid from the Government and neither the Government has any control directly or indirectly over respondent No.1-Federation and, therefore, respondent No.1-Federation is not a ''State'' as per Article 12 of the Constitution of India, thus, is not amenable to writ jurisdiction of this Court. It has further been submitted that the petitioners have not approached before this Hon''ble Court being aggrieved for violation of any fundamental right, rather the dispute in question is purely with regard to the improper election held by the petitioner No.1-Association and disaffiliation of the petitioner No.1- Association which cannot be resolved by resorting to a remedy under Article 226 of the Constitution of India. It has further been submitted that the dispute regarding conduct of

an election cannot be resolved in a proceeding under Article 226 of the Constitution of India as, firstly, the same does not involve any public element; secondly, there is no breach of any fundamental right; thirdly, there are various disputed questions of facts involved and lastly the society is not a ''State'' as per Article 12 of the Constitution of India. In view of above submissions, learned counsel for the respondents submits that the writ petition under Article 226 of the Constitution is not maintainable. The respondents have further raised an objection that the petitioners have an alternate remedy as per the constitution of respondent No.1. For the said preposition, the respondents have relied upon the judgment passed by the Apex Court in the cases of Pradeep Kumar Viswas Vs. Indian Institute of Chemical Biology and others, reported in (2002) 5 SCC 111, Federal Bank Ltd. Vs. Sagar Thomas and others, reported in (2003) 10 SCC 733, Balmer Lawrie & Company Ltd. And others Vs. Pratha Sarathi Sen Roy and others, reported in (2013) 8 SCC 345, K.K. Sakshena Vs. International Commission on Irrigation and Drainage and others, reported in (2015) 4 SCC 670, and the judgments passed by this Court in the

cases of Rotary Club Birla Nagar and others Vs. Rotary International through General Secretary, reported in 2013 (4) MPLJ 185 and Yashwant Singh Sikarwar Vs. Teresian Carmel Education Society and others, reported in 2008 (4) MPLJ 611.

As per clause 4.6 of the Constitution of respondent No.1, unresolved disputes shall be settled by the Indian Olympic Association and respondent No.1-federation surrenders its right of seeking redress in any Court of law at the first instance. Further Clause 4.7 of the constitution provides that all affiliated members shall commit themselves to voluntarily surrender their right of seeking redress in any Court of law at the first instance and they appeal only to the President of the federation who shall place the matter before the next immediate Executive Council meeting. Thus, petitioner No.1-association being aggrieved with anything ought to have got the matter raised before the President of respondent No.1-federation and thereafter respondent No.1 could have got the matter solved in the meeting of the executive council. Thus, the petitioners have directly approached this Court without resorting to the alternate

remedy available to them as per the constitution of respondent No.1-federation.

The petitioners have filed the rejoinder and stated that the present writ petition is maintainable. Whether a writ petition would lie against any person, body, organization or authority, the test is to examine in the first instance the object and purpose for which such body, authority, organization is formed so also the activity which it undertakes to fulfill the said object/purpose and while deciding such issue, it is always to test as to whether the concern body is formed for discharging any public functions and public duty. In the light of these things or test, maintainability is to be examined by this Court.

Learned counsel for the petitioners argued that expression ''any person or authority'' used in Article 226 of the Constitution of India are not confined to the statutory authority and instrumentality of the State but may in appropriate case include any other person or body performing public function or duty. Thus, for determination of the maintainability of this writ petition, it is to be decided whether the activity and nature of the public duty and once it

is proved that the activity undertaken by the authority has a public element, then it would be subject to rigor of writ jurisdiction of the constitution of India. He further submits that respondent No.1-federation is discharging the public function and public duty in the territory of India as well as out of India in respect of Taekwondo and its selection, competition, championship and international level and Olympic and Asian games and sports and physical activities between public at large involving public function, relating to Taekwondo.

Respondent No.1-association is aided by Govt. of India, Ministry of Youth Affairs and Sports in respect of sports activities and, therefore, it comes within the purview of writ jurisdiction under Article 226 of the Constitution of India. The Government of India, Ministry of Youth Affairs and Sports Department has recognized respondent No.1- federation as one of the National Sports Federation for the discipline of Taekwondo as per recognition certificate dated 23/11/2011 and on the basis of this certificate, the federation is entitled to get the financial assistance under the relevant scheme of the Ministry concerned. Respondent No.1 is

taking financial assistance from time to time from the Government of India. All these documents which are filed by the petitioners along with rejoinder establish that respondent No.1 is receiving grant-in-aid by the Government of India, therefore, is amenable under Article 226 of the Constitution of India. So far as objection regarding availability of the alternate remedy under respondent No.1- federation is concerned, learned counsel for the petitioners submits that as the impugned order has been passed without giving any opportunity of hearing and also without giving any opportunity of cross-examining or submitting evidence, therefore, alternate remedy is not an efficacious remedy, thus, the present writ petition is maintainable.

I have heard learned counsel for the parties on the question of maintainability of the writ petition. From perusal of the writ petition, it reveals that the petitioners have filed the present writ petition challenging the impugned order dated 10/08/2016 passed by respondent No.1 thereby cancelling the election of the petitioner-association and directed to hold the free and fair election. It has further been directed to constitute adhoc committee to look after the 11 routine affairs of the association before passing the impugned order, a show cause notice was issued to the petitionerassociation on 22/7/2016. In reply to the said show cause notice, the petitioner-association has filed its reply on 01/08/2016 and after considering the reply, impugned order has been passed. Thus, the contention of learned counsel for the petitioners that the impugned order is violative of principles of natural justice cannot be accepted. So far as the maintainability of the writ petition is concerned, respondent No.1-federation is a private federation and is not receiving any aid from the Government and neither the Government has any control directly or indirectly over respondent No.1- federation. The petitioners have not filed any document to show that respondent No.1-federation is receiving any aid from the Government. The main object of respondent No.1- federation is to promote sport activities with respect to Taekwondo and it does not discharge any public function or duties.

The petitioners have filed certain documents along with their rejoinder showing that respondent No.1-federation is receiving financial assistance from the Central Government.

From perusal of these documents, it reveals that for organizing some of the events, financial assistance has been given to respondent No.1-federation, it does not mean that respondent No.1-federation is receiving aid from the Central Government regularly.

The Apex Court in the case of Pradeep Kumar Biswas (surpa) in para-100 has held as under : "100. We may now examine the characteristics of CSIR. On a careful examination of the material available consisting of the memorandum of association, rules and regulations and byelaws of the society and its budget and statement of receipts and outgoings, we proceed to record our conclusions. The Government does not hold the entire share capital of CSIR. It is not owned by the Government. Presently, the Government funding is about 70% and grant by Government of India is one out of five categories of avenues to derive its funds. Receipts from other sources such as research, development, consultation activities, monies received for specific

projects and job work, 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 all expenditure of the CSIR and apparently it fluctuates too depending upon variation from its own sources of income. It does not enjoy any monopoly status, much less conferred or protected by the Government. The Governing Body does not consist entirely of Government nominees. The membership of the society and the manning of its governing body - both consist substantially of private individuals of eminence and independence who cannot be regarded as hands and voice of the State. There is no provision in the rules or the byelaws that the government can issue such directives as it deems necessary to CSIR and the latter is bound to carry out the same. The functions of CSIR cannot be regarded as governmental 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 to the public at large.

The functions entrusted to CSIR can as well be carried out by any private person or organization. Historically, it was not a department of the Government which was transferred to CSIR. There was a Board of Scientific and Industrial Research and an Industrial Research Utilisation Committee. The CSIR was set up as a society registered under the Societies Registration Act, 1860 to coordinate and generally exercise administrative control over the two organizations which would tender their advice only to CSIR. The membership of the society and the governing body of the council may be terminated by the President, not by the Government of India. The Governing Body is headed by the Director General of CSIR and not by the President of Society (i.e. the Prime Minister). Certainly the board and the committee, taken over by CSIR, did not discharge any regal, governmental or sovereign functions. CSIR is not the offspring or the blood and bones or the voice and hands of the government. CSIR does not and cannot make law."

The Apex Court in the case of Sagar Thomas and

others (supra) in para-33 has held as under : "33. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don''t find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action

being taken against its employee by the appellant Bank. Respondent''s service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed."

The Apex Court in the case of Partha Sarathi Sen Roy and others (supra) in para-28 has held as under: "28. In order to determine whether an authority is amenable to writ jurisdiction except in the case of habeas corpus or quo warranto, it must be examined, whether the company/corporation is an instrumentality or an agency of the State, and if the same carries on business for the benefit of the pubic; whether the entire share capital of the company is held by the government; whether its administration is in the hands of a Board of Directors appointed by the government; and even if the Board of Directors has been appointed by the

government, whether it is completely free from governmental control in the discharge of its functions; whether the company enjoys monopoly status; and whether there exists within the company, deep and pervasive State control. The other factors that may be considered are whether the functions carried out by the company/corporation are closely related to governmental functions, or whether a department of the government has been transferred to the company/corporation, and the question in each case, would be whether in light of the cumulative facts as established, the company is financially, functionally and administratively under the control of the government. In the event that the Government provides financial support to a company, but does not retain any control/watch over how it is spent, then the same would not fall within the ambit of exercising deep and pervasive control. Such control must be particular to the body in question, and not general in nature. It must also be deep and pervasive. The control should not therefore, be merely regulatory."

The Supreme Court in the case of K.K. Saksena (supra) in para-49 and 50 has held as under : "49. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corpn. v. Shri C.A. Imanual, as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the employee concerned was seeking reinstatement to an office.

We have also pointed out above that in Sata Venkata Rao this 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 taking same view, namely, contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. In R. (Hopley) v. Liverpool Health Authority (unreported) (30-07-2002), Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are: (i) whether the defendant was a public body exercising statutory powers; (ii) whether the function being performed in the exercise of those powers was a public or a private one; and (iii) whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration."

This Court in the case of Rotary Club Birla Nagar and others (supra) in paras-10 and 11 has held as under : "10. In the considered opinion of this Court, to determine whether a body falls within the definition of "State" or any "other authority" as mentioned in Article 12, it is necessary for the petitioner to file complete data and relevant documents to show the aim and object, nature of constitution of the body, element of Government control over it (if any), source of finance, nature and territory of activity etc. In absence thereof, no presumption can be drawn that a body is ''State'' or ''authority''. The petitioners have not placed any documents to show the constitution of the Rotary Club, its nature, activity, aim, object and aforesaid relevant factors to enable this Court to examine whether the necessary ingredients to treat it as ''State'' or ''authority'' are available. The reliance was placed by the learned senior counsel on a judgment of Supreme Court in (2005) 5 SCC 733, Noise Pollution (V), in Re vs. Union of India and another wherein the Apex Court in para 168 observed that awareness can be created through service clubs such as Rotary International and Lions International and Societies engaged in preventing noise pollution....

In the opinion of this Court, the aforesaid observation alone, by no stretch of imagination, can bring the Rotary Club within the ambit of State/authority as contemplated in Article 12 of the Constitution. At the cost of repetition, in my opinion, whenever it is submitted that a body is ''State'' or its ''instrumentality'' or an ''authority'', the burden is on the petitioner to establish it by placing adequate material that the said body falls within the ambit of Article 12 of the Constitution. In absence of basic material, no definite opinion can be formed by the Court in this regard."

This Court in the case of Yashwant Singh Sikarwar (supra) in paras-8 and 9 has held as under :

"8. The order passed by the Apex Court makes it very clear that in case of retirement and in case of termination, no public law element is involved. The Apex Court has held that a writ under Article 226 of the Constitution of India against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies. In the present writ petition, the petitioner is claiming continuance in service beyond 58 years of age and, therefore, there is no question of public law element involved inasmuch as the grievance of the petitioner is of personal nature.

Keeping in view the judgments delivered by the Apex Court in the aforesaid cases, the present writ petition is not at all maintainable against the respondent/society as the respondent No.1/society i.e. Carmel Convent School is a private institution not receiving grant-in-aid either from the State Government or from the Central Government. Resultantly, as the petitions are not maintainable before this Court, the same are hereby dismissed. No order as to costs."

To determine whether a body falls within the definition of ''State'' or any other authority as mentioned Article 12 of the Constitution, it is necessary for the petitioners to file complete data and relevant documents to show the aim and object, nature of the Constitution of body, element of Government control over it (if any), source of finance nature and territory of activity etc. In absence thereof, no presumption can be drawn that a body is ''State'' or authority. The burden is on the petitioners to establish it by placing adequate material that the said body falls within the ambit of Article 12 of the Constitution of India. In the present case, the petitioners have not filed any relevant document to show the nature of the constitution of the body and element of Government control over it. The petitioners have not even filed the documents to show the source of finance. Thus, in absence of these details, it cannot be said that the writ petition would be maintainable against the petitioner-

association. The petitioners have also failed to point out that the respondent-federation is discharging a public duty or is performing any statutory function. Thus, in absence of these, no writ petition would lie against respondent No.1-federation.

Thus, in the light of the aforesaid discussions as well as the judgments cited above by the Hon''ble Apex Court as well as this Court, the writ petition is not maintainable.

Accordingly, the writ petition is dismissed as not maintainable without any order as to cost.