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2014 Supreme(HP) 1160
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir, Tarlok Singh Chauhan, JJ.
Laxmi Narain & ors – Appellants
Vs.
Kuldeep Singh & ors – Respondents
LPA No. 236 of 2011 along with LPA Nos. 182 & 183 of 2007 Reserved on 23.8.2014
Decided on: 17th September, 2014
Advocate Appeared:
LPA No. 236 of 2011
For the Appellants:Mr. Surinder Saklani, Advocate
For the Respondents:Mr. Dilip Sharma, Senior Advocate with Ms. Nishi Goel, Advocate, for respondent No. 1 to 3, Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma, Mr. V.S. Chauhan, Addl.AGs, Mr. J.K. Verma, and Mr. Kush Sharma, Dy. AGs, for respondents No. 4 and 5, Mr. Ramakant Sharma, Advocate, for respondent No.6.
LPA No.182 of 2007
For the Appellants:Mr. Sunil Mohan Goel, Advocate
For the Respondents:Mr. Bimal Gupta, Advocate for respondents No. 1 & 2, Mr. Ramakant Sharma, Advocate, for respondents No. 3 & 4. Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma, Mr. V.S. Chauhan, Addl. AGs, Mr. J.K. Verma, and Mr. Kush Sharma, Dy. AGs, for respondent No.5.
LPA No.183 of 2007
For the Appellants:Mr. Sunil Mohan Goel, Advocate
For the Respondents:Mr. Bimal Gupta, Advocate for respondents No. 1 & 2. Mr. Ramakant Sharma, Advocate, for respondents No. 3 & 4. Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma, Mr. V.S. Chauhan, Addl. AGs, Mr. J.K. Verma, and Mr. Kush Sharma, Dy. AGs, for respondent No.5.
A writ petition is not maintainable against a body that is not a State within the meaning of Article 12 of the Constitution of India and does not fall within the expression “any person” or “authority” under Article 226(1) of the Constitution of India, even if it is performing public functions.
Headnote:
Writ petition against Jogindra Central Co-operative Bank Ltd. is not maintainable as it is not a State within the meaning of Article 12 of the Constitution of India and does not fall within the expression “any person” or “authority” under Article 226(1) of the Constitution of India.
Fact of the Case:
The preliminary question required to be determined in these appeals is whether a writ petition is maintainable against Jogindra Central Co operative Bank Ltd.
Finding of the Court:
The court held that the Jogindra Central Co operative Bank Ltd is not a State within the meaning of Article 12 of the Constitution of India and does not fall within the expression “any person” or “authority” under Article 226(1) of the Constitution of India.
Issues: Whether a writ petition is maintainable against Jogindra Central Co operative Bank Ltd.
Ratio Decidendi: The court relied on the following principles to arrive at its decision: * A writ petition is maintainable against an instrumentality or agency of the State while performing public functions and discharging public duties. * The existence of such entity, be statutory or non-statutory is irrelevant because it is only the nature of the activity which becomes a determinative factor to bring it within the purview of instrumentality or authority under Article 226 of the Constitution of India. * The functions to be performed by the respondent bank are, in no manner, governmental functions so as to bring them within the compass of public duty or public functions to enable the court to compel the respondent bank to yield to the jurisdiction of this court under Article 226.
Final Decision: The court allowed the appeals and set aside the judgment passed by the learned Single Judge taking a contrary view.
Tarlok Singh Chauhan, J.
The preliminary question required to be determined in these appeals is whether a writ petition is maintainable against Jogindra Central Co operative Bank Ltd. The learned Single Judge considered this objection and concluded as follows:
“1. the respondent-Bank, i.e. Central Cooperative Bank Ltd. Is an “instrumentality/agency” of the State Government, thus it is a State within the meaning of Article 12 of the Constitution of India and is amenable to the writ jurisdiction of this Court;
2. that the Central Cooperative Bank Ltd. is an “authority” as well as “person” within the meaning of Article 226 (1) of the Constitution of India and amenable to the writ jurisdiction of this Court;
3. the writ would lie against the functionaries of the State who passes the order under the Himachal Pradesh Cooperative Societies Act, 1968 and Rules framed thereunder.
4. the State Government is having majority share capital in the respondent-Bank;
5. the State of Himachal Pradesh exercises deep and pervasive control over the Bank financially, functionally and administratively since out of 13 Directors, 4 are nominated through the State Government and one Managing Director who is also appointed by the State Government is also one of the Directors of the respondent-Bank;
6. the State Government exercises control over the functioning of the respondent-Bank in view of the provisions cited here-in-above commencing from the registration up to the winding up of the Co-operative Societies;………..”
2. Before we proceed, it may be noticed that after the aforesaid impugned judgment had been rendered by the learned Single Judge, a learned Division of this court, while hearing CWP No.3634 of 2012 vide order dated 20.7.2012 referred the following question of law for consideration by Full Bench:
(i) “Whether the Kangra Central Co operative Bank, the Himachal Pradesh State Co operative Bank Ltd and the Central Co operative Bank are State within the meaning of Article 12 of the Constitution of India and;
(ii) whether a writ would lie against them?”.
3. While answering the first part of the question insofar the respondent Bank is concerned, it was held
“10. That takes us to Central Cooperative Bank, whether it is a State within the meaning of Article 12. As regards this Bank, the decision pressed into service is of the learned Single Judge of this Court in the case of Mehar Chand and another vs. Central Cooperative Bank and others 12. No decision of the Division Bench of this court has been brought to our notice, which has taken in CWP No. 641 of 2002 decided on 26th September, 2007 the view that the said Bank Constitution. Thus understood, it is again not a case of conflicting opinion of two coordinate Benches of the same High Court on the point. If the matter of Bank were to proceed before the learned Single Judge of this Court perhaps the Single Judge Bench would be bound by the said decision, unless it was persuaded to take a different view in which case the only option available to that Judge would be to refer the matter to Larger Bench. In that case, the matter could proceed before the Division Bench of two Judges of our High Court and may not require consideration by a Full Bench. On the other hand, if the issue was to be raised before the Division Bench, in the first instance, and that Bench was not inclined to follow the view taken by the learned Single Judge Bench of this Court, it would be free to take a different view and hold that the Bank is not a State within the meaning of Article 12 of the Constitution of India. Since the writ petition pertaining to Bank is still pending, ordinarily, therefore, the issue ought to be dealt with by the Division Bench in the first instance and not by the Full Bench of the High Court. In other words, the pending writ petition pertaining to Bank must proceed before the concerned Bench, who would be free to take appropriate decision in the matter and including keeping in mind the contours expounded by t
