Dhananjay Seth v. The Union of India through Secretary Department of Finance and Commerce, New Delhi

Judgment

5. ... ... Respondents ====================================================== Civil Writ Jurisdiction Case No. 16155 of 2021 ====================================================== Mr. Ram Ayodhya Singh Son of Shiv Ratan Singh Resident of Village- Bishunpur Pakari, P.O.- Pakri, P.S.- Beur, District- Patna. ... ... Petitioners

1. Versus The State of Bihar through the Principal Secretary, Finance Department, Govt. of Bihar, Patna.

2. M.D. and C.E.O., I.C.I.C.I. Bank, Regional Office- I.C.I.C.I. Bank Tower, Near Chakali Circle, Old Padara Road, Vadodara, Gujarat. Corporate Office- I.C.I.C.I. Bank Tower, Bandra Kurla Complex, Mumbai.

4. Zonal Manager, I.C.I.C.I. Bank, Zonal Office, Patna, Plot No. 6B, Sahdeo Mahto Marg, Sri Krishna Puri, Patna. Branch Manager, I.C.I.C.I. Banak, Anisabad, Patna. ... ... Respondents ====================================================== Civil Writ Jurisdiction Case No. 19461 of 2021 ====================================================== Janam Jay Kumar Son of Muni Singh at Hathidah, P.O.- Hathidah, P.S. Hathidah, District- Patna. ... ... Petitioner Versus

1. Union of India though the Secretary, Department of Finance and Company Act, New Delhi-1.

4. The Chief Manager, Reserve Bank of India at South Gandhi Maidan, Patna- 4. Indusind Bank Limited 211 Saran Chambers (ii), 5, Parth Road Lucknow 226001 through its Chief Manager. Branch Manager Indusind Bank Limited at Golu Suzuki, Auto Mobile near Amardeep Cinema Anex-31, Harhar Mahav Chauk Begusarai 851101. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

5. The State of Bihar through the District Magistrate, Purnea. ... ... Respondents ====================================================== Civil Writ Jurisdiction Case No. 7944 of 2022 ====================================================== Geetanjali Wife of - Deomunni Prasad, at Kumhrar Chowk Par, Bahadurpur, Police Station- Agamkuan, District - Patna. Versus ... ... Petitioner

7. The State of Bihar The Home Commissioner, Government of Bihar, Patna. The Director General of Police, Bihar, Patna. The Secretary, Department of Transport Government of Bihar Patna. The Chief Manager, Reserve Bank of India, South Gandhi Maidan, Patna. Superintendent of Police, Patna. Branch Manager Sri Ram Finance Company Limited at Lav Kush Tower 3rd floor Exhibition Road Police Station- Gandhi Maidan Patna.

8. Amit Kumar at Khabra Muzaffarpur, C/o Sri Ram Transport Finance Company Limited Patna. ... ... Respondents ====================================================== Civil Writ Jurisdiction Case No. 8056 of 2022 ====================================================== Shashi Kant Kumar Son of Jay Jay Ram Pandit, At Mohalla - Ward no. - 12 Near Kali Mandir Baghra Puraini Madhepura, P.S.- Puraini Bazar, District – Madhepura. ... ... Petitioner Versus The State of Bihar Bihar. The Home Commissioner, Government of Bihar, Patna. The Director General of Police, Bihar, Patna. The Secretary, Department of Transport Government of Bihar Patna. The Chief Manager, Reserve Bank of India, South Gandhi Maidan, Patna. Superintendent of Police, Madhepura.

7. M/S Tata Motor Finance Solutions Limited Registered Office 10th Floor 106 A and B maker chamber iii, Nariman, Mumbai 400021 through General Manager.

8. Branch Manager Tata Motor Finance Solutions Limited at 1st Floor Manju Complex Bhata Bazar Purnia 854301.

9. Kare Roy, Himanshu Roy and Sudhanshu Roy, Son of Subhash Roy, At Tetri, Post and Police Station- Naugachiya, District - Bhagalpur. ====================================================== ... ... Respondent/s Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 : Mr. Anuj Kumar (Adv.) Mr. Sanjay Kumar Pandey (Advocate), Mr. Anil Kumar Verma, Advocate Mr.Anil Kumar Singh (Gp26) Appearance : (In Civil Writ Jurisdiction Case No. 3456 of 2021) : For the Petitioner/s Mr. Badri Narayan Singh, Advocate Mr. Sanjay Kumar Pandey, Advocate Mr. Manoj Kumar, Advocate Mr. Sushan Kumar Keshari, Advocate For the Respondent/s Mr. Manoj Kumar, AC to GP 24 Respondent No. 5 : Mr. Rajiv Kumar and Manoj Priydarshi, Advocate (In Civil Writ Jurisdiction Case No. 16155 of 2021) : For the Petitioner/s For the Respondent/s : For the Respondent No. : Mr. Y.V. Giri, Sr. Advocate Mr. Prabhakar Nath Rai, Advocate (In Civil Writ Jurisdiction Case No. 19461 of 2021) For the Petitioner/s : Mr. Sanjay Kumar Pandey, Advocate Mr. Manoj Kumar, Advocate Mr. Sushen Kumar Keshari, Advocate For the Respondent/s : (In Civil Writ Jurisdiction Case No. 7944 of 2022) Mr. Badri Narayan Singh, Advocate : For the Petitioner/s Mr. Sanjay Kumar Pandey, Advocate Ms. Indira Kumari, Advocate For the Respondent : (In Civil Writ Jurisdiction Case No. 8056 of 2022) For the Petitioner/s : Mr. Sanjay Kumar Pandey, Adv. Ms. Indira Kumari, Adv. For the Respondent/s ====================================================== Mr.Dr. Krishna Nandan Singh (ASG) Mr. Badri Narayan Singh, Advocate Ms. Divya Verma AC to AAG-3 Mr. Badri Narayan Singh, Adv. Mr.Md. Nadim Seraj (Gp5) : CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 19-05-2023 Heard learned counsel for the petitioners led by Mr. Y.V. Giri, learned Senior Advocate, learned counsel for the contesting respondents and Mr. Abhinav Srivastava, learned Amicus Curiae in all these writ applications.

2. Let it be recorded at the outset that in this batch of six writ applications, earlier five of them were tagged and heard on Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 different dates by the Hon’ble Division Bench as per the then Roster. In the light of the change of Roster, these writ applications were listed before this Court. Vide order dated 18.04.2023 passed by the learned predecessor Court, CWJC No. 2808 of 2023 (Shivram Singh Vs. The State of Bihar and Others) has also been tagged with the lead case being C.W.J.C. No. 3456 of 2020. In this case no counter affidavit on behalf of the State Bank of India has been filed, hence, this Court thinks it just and proper to de-tag this case from the batch of cases in which the Bank and Finance Companies have taken a stand by filing a counter affidavit. It is once again placed on record that in C.W.J.C. No.3456 of 2021 and C.W.J.C. No. 8056 of 2022 the same and one Finance Company is the contesting respondent. Counter affidavit has been filed in C.W.J.C. No. 3456 of 2021 and the same stand has been taken in both the cases.

3. On the request of learned counsel for the parties, all these writ applications have been taken up together and are being disposed of by this common judgment. Brief facts of the case

4. In all these writ applications, the petitioners are aggrieved by the action of the contesting respondents, namely, Tata Motor Finance Limited, IndusInd Bank Limited, Shri Ram Finance Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 Company, ICICI Bank and the State Bank of India. Their common grievance is that their respective vehicles which they had purchased with the financial assistance from these institutions have been forcibly seized with the help of goons and musclemen of the contesting respondents during odd hours.

5. In CWJC No. 3456 of 2021, the allegations is that the vehicle was forcibly seized in the month of February, 2020 but the petitioner got the same released after payment of Rs.3,80,000/-. It is stated that soon thereafter the unprecedented pandemic Covid- 19 came because of which the entire country went under a lockdown as a result of which the vehicle could not be run during the period 23.03.2020 to 03.06.2020 so no installment was paid for this period. It is stated that this was the exempted period declared by the Government of India but the Financer (respondent no. 4) seized the truck near village Rahnam through two persons, namely, L.H. Pandit and Kavindra Tiwary along with some goons who were armed. The truck was taken away. It is stated that a sum of Rs.40,000/- was lying in the upper box of the vehicle as the vehicle was returning after sale of sand of Rs.50,000/-. The driver reported the matter to the petitioner whereafter the petitioner contacted L.H. Pandit and Kavindra Tiwary but they did not take any care. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

6. It is the case of the petitioner that he had invested Rs.3,00,000/- as down payment against the price of the chasis plus Rs.3,00,000/- in construction of truck body and had also paid a sum of Rs.9,31,000/- as installment. The dues during the Covid period against the petitioner was only Rs.2,15,500/- for which the vehicle in which the petitioner had invested Rs.17,31,000/- was seized with the use of arms.

7. Petitioners have relied upon a judgment of the Hon’ble Supreme Court in the case of ICICI Bank Vs. Shanti Devi Sharma & Ors arising out of SLP (Crl.) No. 4935 of 2006 reported in (2008) 7 SCC 532 in which the Hon’ble Supreme Court has held such action of the Bank illegal. The petitioner has also relied upon the judgment of this Court in case of Sujay Kumar Vs. Uco Bank reported in 2020(1) PLJR 583 wherein this Court has declared the seizure of this nature illegal and ordered the financial institution to return the vehicle to the owner with liberty to claim damage by the owner. This Court also held that the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘SARFAESI Act, 2002’ or ‘Act of 2002’). and the Rules framed thereunder are to be followed in the matter of seizure of the vehicles. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

8. In CWJC No. 16155 of 2021, the case of the petitioner is that he had got a financial assistance of Rs.10,00,000/- from the Bank. He was paying the Equal Monthly Installment (EMI) of the said vehicle properly, it was lastly deposited on 29.06.2021. The Bank had taken post-dated cheques from the petitioner to secure the loan of Rs.10,00,000/- but even as the petitioner was depositing EMI, the Bank got bounced the cheque without any notice to the petitioner. It is his case that during pandemic period, four installments of EMI became due. For this reason, it is stated that the vehicle in question has been pulled down/seized while it was on way. The respondent bank neither followed the procedure prescribed under the SARFAESI Act, 2002 and rules framed thereunder nor gave any notice to the petitioner seeking to re- possess the vehicle. The petitioner tried to approach the authorities of the bank but they did not hear the grievance of the petitioner.

9. In CWJC No. 19461 of 2021, the grievance of the petitioner is that his truck bearing no. BR 53G-1698 was seized forcibly and illegally by the goons of the respondent bank during the pandemic period on 02.09.2021. The petitioner has paid the installments during the period 21.11.2018 to 31.01.2021 which comes to a sum of Rs.20,51,400/-, out of which the petitioner had Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 already paid Rs.20,11,200/-, thus, only a sum of Rs.40,200/- was due in January, 2021.

10. It is stated that during the pandemic period, the Government of India as well as the Reserve Bank of India had given instruction not to take any coercive measure besides giving a moratorium period of six months. It is stated that in this case, the Bank issued a notice dated 20.09.2021 under Section 13(2) of the SARFAESI Act, 2002 to declare the property as Non-Performing Asset (NPA) but the notice reached five days after the posting. The vehicle had already been re-possessed on 02.09.2021. The petitioner, in response to the notice wrote to the Bank on

27.09.2021 vide Annexures ‘2’, ‘2A’ and ‘3’ to the writ application and informed that he was ready to pay the real dues. Request was made to release the vehicle but it was not paid heed to.

11. In CWJC No. 7944 of 2022, the grievance of the petitioner is that his Bus No. BR 01 PA-9979 was seized forcibly and by the goons of the respondent finance company on

10.05.2022 at Khabra in the District of Muzaffarpur and the vehicle was loaded with passengers. It is stated that the goons led by one Amit Kumar of Khabra with Branch Manager of the Finance Company took possession of the vehicle on the point of pistol and power. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

12. In CWJC No. 8056 of 2022, it is the case of the petitioner that his truck bearing no. BR43 GA 5925 was seized forcibly and illegally by the goons of the respondent finance company on 07.02.2021 through a recovery agent. It is his case that the finance company had given an assistance of Rs.29,57,000/- against which the petitioner has paid about Rs.25,00,000/- in different installments before seizure, still the finance company seized the vehicle through goons on road which has become the habit of the private financing institutions. Infact, sensing the threat from the finance company, the petitioner had earlier filed a writ petition in this Court on 18.01.2020 giving rise to C.W.J.C. No. 1480 of 2022 in which he had expressed his apprehension about the seizure of the vehicle by the financer but during pendency of the writ application, the vehicle was seized as a result whereupon the writ application was permitted to be withdrawn with liberty to take recourse to such remedies which are available in accordance with law and in case, the need so arises, he may approach this Court by filing a proper petition.

13. In all these writ applications the petitioners have the grievance against the manner in which their respective vehicles were seized and possessed by the Finance Companies/contesting respondents without taking recourse to the process of law. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

14. The petitioners in all these writ applications are seeking a direction to the contesting respondents to hand over their respective vehicles with all papers. They are also seeking compensation to the loss of reputation and other kinds of compensation. Stand of the contesting respondents

15. It is the stand of the contesting respondents that writ petition as framed is not fit to be entertained in this Court as no part of the cause of action has arisen within the territorial jurisdiction of this Court. It is contended that the writ application involves disputed question of facts, hence, cannot be entertained. Further it is the submission of the contesting respondents that the Banks and Finance Companies which are involved in the financing business are not a State or instrumentality of the State within the meaning of Article 12 of the Constitution of India, hence, no writ may be issued. Lastly, it is submitted that the respondent Bank and Finance Company has an option either to re-possess the hypothecated vehicles in terms of the Loan Agreement and without taking recourse to court or to follow the procedure prescribed under the SARFAESI Act, 2002 and Rules framed thereunder. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

16. In CWJC No. 3456 of 2021, the respondent company has taken a plea that the petitioner had surrendered the vehicle on his own free will to the answering respondent and he had given his consent to sell or dispose of the said vehicle at the best possible price and as per instruction of the petitioner in the said case, the vehicle in question was taken possession on 14.12.2020 and sold on 31.12.2020 and the sale proceeded thereof amounting to Rs. 15,25,590/- has been adjusted in the loan amount of the petitioner.

17. Mr. Y.V. Giri, learned Senior Counsel for the ICICI Bank Limited has led the argument which has been adopted by learned counsel representing the contesting respondents in other cases. Learned counsel submits that a writ petition would not lie against the Finance Companies and the Banks involved in financing business. It is his contention that the process of re- possession of the vehicle was initiated as per the rights conferred upon the answering respondents under the loan agreement and it was not incumbent upon the answering respondent to follow the procedures prescribed under SARFAESI Act, 2002 and the rules framed thereunder.

18. Learned counsel has relied upon the judgments of the Hon’ble Supreme Court in the Case of Magma Fincorp Ltd. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 v. Rajesh Kumar Tiwari reported in (2020) 10 SCC 399 and in the case of Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay reported in (1974) 2 SCC 402.

19. On going through the records, this Court finds that by virtue of a direction issued by the Hon’ble Divison Bench of this Court in course of hearing of this writ application on

15.11.2022, the State was directed to submit a report from the local Superintendent of Police with regard to the factual aspect of the alleged act of forceful seizure. Mr. Abhinav Srivastava, a learned Advocate of this Court was appointed as an ‘Amicus’ to assist this Court on the issue with regard to the competence, legality and otherwise of the action of the contesting respondents and what order the Court may pass so as to ensure establishment of rule of law especially with regard to the borrower being protected from recovery procedure in a patently illegal manner by sheer might of people who otherwise do not have authority to do so. In this regard this Court deems it just and proper to reproduce the order dated 15.11.2022 as under:- “Heard Mr. Badri Singh, learned counsel for the petitioners in all the cases and different learned counsels for the State. In CWJC No.19461 of 2021 Ms. Archana Shahi, learned counsel for the respondents no. 3 and 4 (financial institutions) appears and states that the copy of the brief has Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 not been served on her and further that she may be given time to file a detailed response.

2. Basically the issue in a nutshell in all these cases is whether the lending institutions, for the purposes of recovery on the ground of default or otherwise, can resort to extra judicial/legal mode of forcibly taking possession of the hypothecated vehicles. By an earlier order the Court had directed the learned State Counsel to take a report from the local police with regard to the factual aspect of the matter in CWJC 3456 of 2021. A report has been submitted by the Superintendent of Police, Kaimur at Bhabua admitting that without any due process of law or information to the local police forcibly the vehicle was seized. The Court being conscious of the prevailing ground reality and taking into account the fact that such things are happening on a regular basis and in a very open and brazen manner and has now almost attained a type of acceptance, in active connivance with the State authorities, especially the local police, the Court request Mr. Abhinav Srivastava, learned counsel to assist the Court on the issue with regard to the competence, legality and otherwise of such action and what order the Court may pass so as to ensure establishment of the rule of law especially with regard to the borrower being protected from recovery procedures in a patently illegal manner by sheer might of people who otherwise don’t have authority to do so and with the active connivance of the State authorities, especially the local police. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 Let learned counsel for the petitioner serve a copy of the briefs on Mr. Abhinav Srivastava, learned Amicus by day after tomorrow. Copy of CWJC No. 19461 of 2021 be also served on Ms. Archana Shahi by day after tomorrow.

3. In the meantime learned counsel for the petitioners in the other cases will also file an affidavit from where actually the vehicle has been seized and learned State counsels shall also submit a report by filing affidavit with regard to the factual aspect of the alleged act.

4. As jointly prayed for, the matters be listed on

05.12.2022 for admission among the top 5 cases. Learned State counsels would also file their affidavit within two weeks. All the counsels for the concerned respondents besides serving a copy of the counter affidavit on learned counsel for the petitioner shall also serve a copy on the learned Amicus. In the meantime the vehicles, if already not sold, shall not be sold without the leave of the Court.

5. Let the name of Mr. Abhinav Srivastava, learned Amicus be printed in the cause list in the column of the petitioners. In all cases learned State counsels would submit a report from the local S.P. if the place of seizure is disclosed in the writ petition.

6. In the meantime by day tomorrow learned counsel for the petitioners shall file the original hard copy of the writ petition which shall be accepted by the registry.” Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

20. Again vide order dated 20.12.2022 the Hon’ble Court recorded that in few cases in which the concerned Superintendent of Police of the District have found that there was forceful seizure but at their level no action had been taken for the reason that nobody came forward to lodge any complaint with the Police and further that the matter is sub-judiced in the present proceeding. The Hon’ble Division Bench did not approve the stand of the District Police that nobody came forward to inform may be a ground available to them. The District Police was reminded of the law which require that whenever a cognizable offence is brought to the notice of the authority concerned, the natural consequences have to follow.

21. This Court has perused the counter affidavit filed on behalf of the Superintendent of Police, Kaimur in C.W.J.C. No. 3456 of 2021. He has referred the reports submitted by the S.H.O. of the concerned Police Station. He has stated that the vehicle in question was seized by the Agent of Tata Finance. This counter affidavit says that the vehicle was seized by a recovery agent of Tata Finance,Varanasi on 14.12.2020 and has been sold to one Heyat Ahmad on 31.12.2020 i.e. within 17 days.

22. In C.W.J.C. No. 16155 of 2021, the Senior Superintendent of Police, Patna has submitted a report vide letter Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 no.1082 dated 13.05.2022 confirming that the vehicle (Scorpio) was seized at the Bypass Toll Tax, Didarganj, Patna by one Amit Raj who is said to be the owner of Amit Raj Consultancy Private Limited which is the Channel Partner of ICICI Bank. The said vehicle has also been auction sold. Facts Emerging From the Records

23. From the materials available on the record and the submissions made on behalf of the parties referred hereinabove, the following facts would emerge :- (i) In all these cases, for one reason or the another the contesting respondents have a case that the petitioners had committed default in the matter of payment of EMI against their respective vehicle loan accounts; (ii) The Banks and Finance Companies who are involved in this case have entered into a hypothecation cum loan agreement whereunder they have a right to repossess the vehicle in case of default. Allegation in all these cases are that the vehicles have been seized/possessed by use of force, in some cases it is alleged use of pistol in the process of seizure. (iii) These Banks and Finance Companies are governed by the guidelines issued by the Reserve Bank of India in the matter of appointment of Recovery Agents and the procedures which are Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 required to be followed in the matter of recovery of loans and re- possession /sale of the hypothecated vehicles; (iv) The contesting respondents in these cases have not followed the provisions of the SARFAESI Act, 2002 and the Rules framed thereunder in the matter of re-possession of movable properties; (v) A Master Circular DBOD.No.BP.BC.9/21.04.048/ 2014-15 dated July 1, 2014 consolidating instructions/guidelines issued to the Banks till June 30, 2014 relating to statutory and other restrictions of loans and advances has been issued on July 1, 2015. A copy of the same has been brought on record with the 5th Supplementary Affidavit filed on behalf of the respondent no. 2 to 4 in C.W.J.C. No. 16155 of 2021. (vi) In these cases the guidelines of the Reserve Bank of India as contained in its Master Circular in the matter of appointment of Recovery Agent and re-possession of the vehicle have not been followed.

24. In the aforementioned background of the facts which are emerging from the records, Mr. Y. V. Giri, learned Senior Advocate representing the contesting respondents in C.W.J.C. No. 16155 of 2021 has gone to the extent of submitting that the contesting respondents derive its power to seize the Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 vehicle without recourse to law under the loan agreement hence no fault may be found in the action of the respondents in taking possession of the vehicle and sale thereof. Consideration

25. Mr. Y.V. Giri, learned Senior Counsel has given much emphasis on his submission that the private respondents who are the Banks and Financial Institutions cannot be subjected to a writ under Article 226 of the Constitution of India. It is his submission that these contesting respondents are neither a State nor an instrumentality of the State or any other authority within the meaning of Article 12 of the Constitution of India, therefore, the petitioners cannot maintain a writ application against their action in the matter of seizure of the vehicles in question.

26. This argument of learned Senior Counsel for the contesting respondents, namely, ICICI Bank Limited in C.W.J.C. No. 16155 of 2021 has been adopted by the learned counsel for the contesting respondents in other writ applications also, therefore, this Court deems it just and proper to answer this issue at the threshold.

27. To this Court, it appears that after the decision of the Hon’ble Constitution Bench of the Supreme Court of India in the case of Kaushal Kishore Vs. State of Uttar Pradesh and Others Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 reported in (2023) 4 SCC 1, the submissions as framed above on the question of issuance of a writ to a non-State actor is devoid of merit.

28. Assuming the submission as it is and without going into a question as to whether in these cases the contesting respondents would come within the meaning of Article 12 of the Constitution of India or not, this Court deems it expedient to have a glance over the developments on this aspect by way of judicial pronouncements.

29. The Hon’ble Supreme Court while considering the question no. 2, framed in the case of Kaushal Kishore (Supra) has dealt in detail as to how the law has developed so far and has recognized that a fundamental right under Article 19 or 21 can be claimed against anyone other than the State or its instrumentality. The Hon’ble Apex Court has discussed the question as to whether Part III of the Constitution has a “vertical” or “horizontal” effect. It has been held that wherever constitutional rights regulate and impact only the conduct of the government and government actors in their dealings with private individuals they are said to have a “vertical” effect. But wherever constitutional rights impact even the relations between private individuals, they are said to have a “horizontal” effect. Patna High Court CWJC No.3456 of 2021 dt.19-05-2023

30. In Kaushal Kishore (supra), the Hon’ble Supreme Court has shown that some of the Articles of Part III are in the form of a Directive to the State while others are not. In paragraph ‘79’ of the judgment, their Lordships observed inter alia:- “This is an indication that some of the rights conferred by Part III are to be honored by and also enforceable against, non-State actors.”

31. Addressing the question as to how the Courts in India have dealt with cases where there were complaints of infringement by non-State actors, of fundamental rights, the Hon’ble Supreme Court referred the judgments in the case of P.D. Shamdasani Vs. Central Bank of India reported in (1951) SCC 1237, Vidya Varma Vs. Dr. Shiv Narain reported in AIR 1956 SC 108, Sukhdev Singh Vs. Bhagatram Sardar Singh Raghuvanshi reported in (1975) 1 SCC 421, People’s Union for Democratic Rights Vs. Union of India reported in (1982) 3 SCC 235; S. Rangarajan Vs. P. Jagjivan Ram reported in (1989)2SCC 574; Nilabati Behera Vs. State of Orissa reported in (1993) 2SCC 746; Lucknow Development Authority Vs. M.K. Gupta reported in (1994) 1 SCC 243; Bodhisattwa Gautam Vs. Subhra Chakraborty reported in (1996) 1 SCC 490; M.C. Mehta Vs. Kamal Nath reported in (1997) 1 SCC 388, Vellore Citizens’ Welfare Forum Vs. Union of India reported in (1996) 5 SCC 647, M.C. Mehta Vs. Kamal Nath reported in Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 (2000) 6 SCC 213; Consumer Education and Research Centre & Ors. Vs. Union of India & Ors. reported in (1995) 3 SCC 42; Vishaka Vs. State of Rajasthan reported in (1997) 6 SCC 241; Githa Hariharan (Ms.) & Anr. Vs. Reserve Bank of India & Anr. reported in (1999) 2 SCC 228; Indian Medical Association Vs. Union of India reported in (2011) 7 SCC 179; Society for Unaided Private Schools of Rajasthan Vs. Union of India reported in 2012) 6 SCC 1; Jeeja Ghosh Vs. Union of India reported in (2016) 7 SCC 761; Zee Telefilms Ltd. Vs. Union of India reported in (2005) 4 SCC 649; Janet Jeyapaul Vs. S.R.M. University reported in (2015) 16 SCC 530; Justice K.S. Puttaswamy Vs. Union of India reported in (2017) 10 SCC 1.

32. At this stage, this Court finds that at least paragraphs ’81.15’, 81.16’, 82 and 83 from the judgment in Kaushal Kishore (Supra) are required to be reproduced to end this discussion:- “81.15. In Jeeja Ghosh v. Union of India [Jeeja Ghosh v. Union of India98, the petitioner, a disabled person suffering from cerebral palsy, was unceremoniously ordered off a SpiceJet aircraft by the flight crew on account of the disability. The petition was filed for putting in place a system to ensure such a violation of human dignity and inequality is not meted out to similarly placed persons. This Court observed as follows : (SCC p. 771, para 10)” 98 2016) 7 SCC 761 : (2016) 3 SCC (Civ) 551] Patna High Court CWJC No.3456 of 2021 dt.19-05-2023 “10. It is submitted by the petitioner that the Union of India (Respondent 1) has an obligation to ensure that its citizens are not subject to such arbitrary and humiliating discrimination. It is a violation of their fundamental rights, including the right to life, right to equality, right to move freely throughout the territory of India, and right to practise their profession. The State has an obligation to ensure that these rights are protected — particularly for those who are disabled.” (emphasis supplied) This Court awarded compensation to the petitioner against the private Airline on the ground that the airline, though a private enterprise, ought not to have violated her fundamental right.

81.16. In Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India99, this Court held that though BCCI does not fall within the purview of the term “State”, it discharges public duties and that therefore even if a remedy under Article 32 is not available, the aggrieved party can always seek a remedy before the ordinary courts of law or by way of a writ petition under Article 226. This Court pointed out that the violator of a constitutional right could not go scot-free merely because it is not a State. The said logic was extended by this Court to a “Deemed to be University” in Janet Jeyapaul v. SRM University,100