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2012 Supreme(UK) 313
UTTARAKHAND HIGH COURT
Barin Ghosh and U.C. Dhyani
Special Appeal No. 208 of 2012
SMT. SHAKUNTALA DEVI & ANR. – Appellants
Versus
J & K BANK & ANR. – Respondents
Decided on : 23.07.2012
For the Appellants : Mr. Piyush Garg, Adv.
For the Respondents: Mr. L.K. Tiwari, Adv.
Headnote:Constitution of India, 1950, Arts. 226, 12 — Writ Petition — Maintainability of — Held — Merely because respondent J & K Bank is not an authority or instrumentality of the State within the meaning of Art. 12 of the Constitution of India — It cannot be contended that the writ petition, in the backdrop of the pleadings contained therein, was not maintainable u/Art. 226 of the Constitution of India.
(Para 2)
Hkkjrh; lafo/kku] 1950] vuqPNsn 226] 12 & fjV ;kfpdk & dh iks”k.kh;rk & flQZ bl dkj.k fd J.K. cSad jkT; dk vfHkdj.k ;k izkf/kdkjh ugha gS U/Art. 12] Hkkjrh; lafo/kku ds vFkZ esa & ;g ugha ekuk tk ldrk fd fjV ;kfpdk] vfHkopuksa dh i`”Brk ij iks”k.kh; ugha U/Art. 226 Hkkjrh; lafo/kkuA ¼izLrj 2½
Barin Ghosh, C.J. (Oral)
In the writ petition filed by the appellants, it was contended by the appellants that respondent J & K Bank had certain statutory obligations under the Securitization Act and the Rules framed thereunder. It was contended that respondent J & K Bank did not discharge its such obligations and, accordingly, the actions complained of, being contrary to the statutory mandate of law, are non est. Respondent Bank contended that it is not an ‘other authority’ within the meaning of Article 12 of the Constitution of India and, accordingly, while fundamental rights are not enforceable against it, no writ is also maintainable against it. In support of the said contention, a judgment of the Hon’ble Jammu & Kashmir High Court, rendered in the case of Firdous Ahmad Tanki and others Vs. The J & K Bank Ltd. and others reported in 2006(1) S.L.J. Page 1 was cited. Accepting the finding recorded in the said judgment, by the judgment and order under appeal, the writ petition has been dismissed on the ground that respondent J & K Bank is not amenable to writ jurisdiction under Article 226 of the Constitution of India since it is not an authority or instrumentality of the State within the meaning of Article 12 of the Constitution of India. It is one thing that a person (individual or juristic) is an authority or instrumentality of the State within the meaning of Article 12 of the Constitution of India and it is other thing that such person is duty bound by the mandate of a law to do a certain thing in a certain manner. In the first case, such person may not be strictly held to be obliged to uphold fundamental rights of a citizen, but in the second case, it would be, if not acted in the manner it is obliged to act by law, made to act in such manner by issuing appropriate writs under Article 226 of the Constitution of India.
2. In the circumstances, merely because respondent J & K Bank is not an authority or instrumentality of the State within the meaning of Article 12 of the Constitution of India, it cannot be contended that the writ petition, in the backdrop of the pleadings contained therein, was not maintainable under Article 226 of the Constitution of India.
3. We, accordingly, allow the appeal, set aside the judgment and order under appeal and request the learned Single Judge, taking the writ petition, to decide the same on its merits after calling for affidavits.
