2017 Supreme(Del) 697

IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
RAJVEER SHARMA – Petitioner
Versus
NATIONAL THERMAL POWER CORPORATION LTD. & ANR. - Respondents
W.P. (C) No. 6595, 10113, 6931, 8094, 8101, 8105, 8107, 8112, 8116, 8117, 8119, 8146, 9848, 9963, 9974, 10022, 2010, 2092, 2289, 2327, 4839, 6125, 6179, 6930, 7076, 9513, 9536, 9538, 9539 of 2016, W.P. (C) No. 1093, 1414, 1848 of 2017
Decided On : 28-02-2017

A writ petition undoubtedly lies against an authority or organization which is a State under Article 12 of the Constitution of India. However, the power under Article 226 of the Constitution of India is wide and is not limited to issuing prerogative writs only against organizations and institutions which are State under Article 12 of the Constitution of India. Even as against a purely private body, writ petitions have been held to be maintainable, however, before such writ petitions against private bodies are entertained, it has to be found that the private body is carrying out statutory functions/duties under a Statute or is performing a public function.

Headnote:

Whether the present writ petition will lie under Article 226 of the Constitution of India, inasmuch as, it is argued on behalf of the respondents that respondent no.2/Pension Trust is a private body, i.e. it is not a State under Article 12 of the Constitution of India and neither the respondent no.1/NTPC nor the respondent no.2/Pension Trust perform any statutory functions or public functions in terms of the administration and running of the respondent no.2/Pension Trust.

Fact of the Case:

Petitioner Sh. Rajveer Sharma by this writ petition seeks the relief of mandamus being issued to the respondents for the petitioner being paid pensionary benefits w.e.f. 1.7.2013 along with interest at the rate of 12% per annum. Pensionary benefits are claimed under the Self-Contributory Superannuation Benefits (Pension) Scheme of 1995. There are two respondents in the writ petition. The first respondent is the National Thermal Power Corporation (NTPC), and which was the employer of the petitioner. Respondent no.2 is the NTPC Pension Trust. This Pension Trust being the respondent no.2 has been created under the Trust Deed dated 12.3.1997, and which is responsible for paying of the pensionary benefits to the retired employees of the respondent no.1/NTPC.

Finding of the Court:

The court held that the writ petition is not maintainable under Article 226 of the Constitution of India. The court observed that the respondent no.2/Pension Trust is a private body and not a State under Article 12 of the Constitution of India. The court further observed that neither the respondent no.1/NTPC nor the respondent no.2/Pension Trust perform any statutory functions or public functions in terms of the administration and running of the respondent no.2/Pension Trust.

Issues: 1. Whether the present writ petition will lie under Article 226 of the Constitution of India? 2. Whether the respondent no.2/Pension Trust is a State under Article 12 of the Constitution of India? 3. Whether the respondent no.1/NTPC or the respondent no.2/Pension Trust perform any statutory functions or public functions in terms of the administration and running of the respondent no.2/Pension Trust?

Ratio Decidendi: 1. A writ petition undoubtedly lies against an authority or organization which is a State under Article 12 of the Constitution of India. 2. The power under Article 226 of the Constitution of India is however wide and is not limited to issuing prerogative writs only against organizations and institutions which are State under Article 12 of the Constitution of India. 3. Even as against a purely private body, writ petitions have been held to be maintainable, however, before such writ petitions against private bodies are entertained, it has to be found that the private body is carrying out statutory functions/duties under a Statute or is performing a public function. 4. These aspects have been considered and such ratio laid down by the Supreme Court in its various judgments and the following judgments in this regard are relevant and thus are being referred. 5. 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, the Supreme Court held that law with respect to maintainability of a writ petition have developed considerably and it is not the legal position that a writ petition will not lie against a private body. 6. Of course, the private body must perform what is known as a public function. The relevant paras of the judgment in the case of Andi Mukta (supra) which makes the observations with respect to maintainability of the writ petitions are paras 13 to 21 and which read as under: 7. That the subject of education is a public function is no longer res integra not only because of the judgment of the Supreme Court in Andi Mukta’s case (supra) but also because of the Constitution Bench judgment of the Supreme Court in the case of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others (1993) 1 SCC 645. 8. In Binny Ltd. and Another Vs. V. Sadasivan and Others (2005) 6 SCC 657 similar observations as made in Andi Mukta’s case (supra) were made by the Supreme Court. The relevant paras of the judgment in Binny Ltd.’s case (supra) are paras 9 to 11 and 29 to 32 and which paras read as under: 9. A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. 10. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus: 11. 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 the 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. 12. A reading of the aforesaid paras of the judgment in Binny Ltd.’s case (supra) also shows that the private body must perform a public law function or a public function before a writ can be held to be maintainable against such a private organization.

Final Decision: The writ petition is dismissed with liberty to the petitioner to approach the competent court to seek reliefs in accordance with law.