A private body must be found to be discharging a public function closely related to functions performed by the State in its sovereign capacity to be amenable to the writ jurisdiction of the Court under article 226 of the Constitution.

JUDGMENT

Yashwant Varma, J. - CM aPPL. 20346/2022(for exemption)

allowed, subject to all just exceptions.

The application shall stand disposed of.

W.P.(C) 6701/2022 & CM aPPL. 20345/2022(Interim Relief)

1. The petitioner who is a member of the Trained Nurses association of India ['association'] has petitioned this Court seeking the following reliefs: -

'a) Quash and set aside the Minutes of the Meeting dated 12.03.2022-13.03.2022 to the extent that the elections are sought to be postponed by 2 more years;

b) Quash and set aside Circular No. TNaI/PRIM/CIRCULaR LETTER/2O22/0911 dated 25.03.2022 and Notice dated 08.04.2022;

c) Issue of Writ of Mandamus directing the Respondents to conduct elections as scheduled in December 2022;'

The challenge in essence is to the postponement of elections for constituting the Managing Body of the association.

2. a preliminary objection is taken by the association to the maintainability of the writ petition with learned counsel for the respondent contending that the association is neither State nor is it an authority which would be subject to the jurisdiction of the Court as conferred by article 226 of the Constitution. It is submitted that the association is a purely private body and that its functioning is governed by Byelaws which are non-statutory in character. according to learned counsel those Byelaws have no statutory flavor and consequently, the writ petition would not be maintainable. In support of the aforesaid submissions, learned counsel has also placed reliance on the judgment rendered by a Division bench of the Court in S.D. Siddiqui vs. University of Delhi and Ors 2005 SCC OnLine Del. 1226. It becomes pertinent to note that S.D. Siddiqui was dealing with the correctness of the view as expressed by a learned Judge of the Court holding that a writ petition against the Delhi University Teachers' association would be maintainable. While considering the challenge to that judgment in the Letters Patent appeal, the Division Bench after noticing the various judgments rendered by the Supreme Court in the context of articles 12 and 226 of the Constitution held as follows: -

'16. The powers of the Supreme Court under article 32 and High Court under article 226 have been considered by the Supreme Court in a large number of decisions. In the case of Shri anadi Mukta Sadgiri S.M.V.S.J.M.S. Trust v. V.R. Rudani (1989) 2 SCC 691, the Supreme Court considered the writ jurisdiction of the High Court exercisable under article 226 of the Constitution of India. The following conclusion of Their Lordships are relevant: (vide paras 19 and 21)

19. The term 'authority' used in article 226, in the context, must receive a liberal meaning unlike the term in article 12. article 12 is relevant only for the purpose of enforcement of fundamental rights under article 32. article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.

21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.' (Judicial Review of administrative act 4th Ed. p. 540). We share