S.Rudiramurthy v. All India Board of Technical Studies in Architecture and Regional Planning

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.11.2010CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANWrit Appeal No.477 of 2007, W.P.No.6530 of 2006 and WPMP.No.7039 of 2006W.A.No.477 of 2007:S.Rudiramurthy... AppellantVs.1.All India Board of Technical Studies in Architecture and Regional Planning, represented by its Chairman, New Delhi.2.Institute of Town Planners of India, represented by its President, No.4-A, Ring Road, Indhraprastha Road, New Delhi.3.Chennai Metropolitan Development Authority, represented by its Member Secretary, No.1, Gandhi Irwin Road, Egmore, Chennai4.Mr.R.Krishnamurthy... RespondentsW.P.No.6530 of 2006:Citizens Care Foundation (Regn.No.87/2006),rep.by its President Mr.K.M.Sadhanandh,having its Registered office at B.7 Chanakya Apartments,Sidhankudi,Pondicherry-13.... Petitioner https://hcservices.ecourts.gov.in/hcservices/ Vs.1.Government of India, rep.by its Secretary to Government, Urban Development Department, New Delhi.2.All India Board of Technical Studies in Architecture and Religious Planning, rep.by its Chairman, New Delhi.3.Institute of Town Planners of India, rep.by its President, No.4-A, Ring Road, Indhraprastha Road, New Delhi-110002.... Respondents * * *Writ Appeal No.477 of 2007 has been preferred under Clause 15of the Letters Patent as against the order of the learned singleJudge dated 15.2.2007 made in W.P.No.41061 of 2006.Writ Petition filed under Article 226 of the Constitution of India,praying to issue a writ of certiorarified mandamus, calling for theproceedings of the 2nd respondent relating to the certificate dated7.6.2006 awarding Associate Membership issued in favour of the 4threspondent and quash the same and consequently direct the 3rdrespondent to forbear from according any service benefits likepromotion etc to the 4th respondent pursuant to the award ofAssociate Membership to him.Writ Petition No.6530 of 2006 has been filed under Article 226of the Constitution, as a Public Interest Litigation, praying toissue a Writ of Mandamus, directing the 2nd and 3rd respondents toforbear them from violating the governing Rule 22 of the Bye-law ofthe Institue of Town Planners of India and the Regulation whichregulates the awarding of Fellowship and Associate Membership oftheir Fellow Students beyond the prescribed period of six years anda further period of two years as contemplated under the said Rule22, without following the due process of law and as per the Bye-laws and Regulations of the Institute of Town Planners of India.* * * https://hcservices.ecourts.gov.in/hcservices/ For appellant in WA: Mr.V.VijayshankarFor petitioner in WP: Mr.D.S.RajasekaranFor R.2 in W.A., whois R.3 in W.P.: Mr.S.J.JayadevFor R.3 in W.A.(CMDA): Mr.D.VeerasekaranFor R.4 in W.A.: Mr.N.G.R.Prasad for M/s.K.M.Nalinishree* * *COMMON JUDGMENTELIPE DHARMA RAO, J.Since a common question of law is involved in both thesematters, they are taken up for common hearing and disposal.2. For the sake of convenience and easy reference, the partiesare referred to as per their ranking in the Writ Appeal.3. The appellant by name Mr.S.Rudiramurthy has filedW.P.No.41061 of 2006 before this Court praying to issue a Writ ofCertiorarified Mandamus to call for the proceedings of the secondrespondent relating to the certificate dated 7.6.2006 awardingAssociate Membership issued in favour of the fourth respondent andquash the same and consequently direct the third respondent toforbear from according any service benefits like promotion etc. tothe fourth respondent, pursuant to the award of AssociateMembership to him. 4. It is his contention that he was appointed as PlanningAssistant Grade-II on 25.9.1987 in the Chennai MetropolitanDevelopment Authority (CMDA) and thereafter promoted as PlanningAssistant Grade-I on 25.3.1991 and as Assistant Planner on13.7.2000. He is a BE (Civil) with First Class from the AnnaUniversity in the year 1994 and also successfully completed theMaster of Town and Country Planning (MTP) with First Class securingGold Medal in January 1997 and he has been admitted as an AssociateMember of the Institute of Town Planners of India/the secondrespondent in the year 1999. According to him, he is due forpromotion from the post of Assistant Planner to Deputy Planner inthe CMDA; that the fourth respondent who is working as AssistantPlanner in the CMDA, does not possess the qualification prescribedfor the post viz. a pass in MTP/AITP with four years of experience; https://hcservices.ecourts.gov.in/hcservices/ that the persons other than those having qualification prescribedviz. Civil Engineering and Post Graduate in Town Planning are boundto enroll themselves as Student Member and undergo the course underthe 1st and 2nd respondents to qualify for Associate-Membership bysubmitting their Thesis as per the Bye-laws, Rules and Regulationsformulated by the respondents 1 and 2; that the fourth respondentwho is not qualified to register as Associate Member directly forwant of technical qualification, had enrolled as Student-Memberwith the 1st and 2nd respondents in the year 1992; that as per Rule22 of the bye-laws of the 1st and 2nd respondents, a student memberhas to necessarily complete the course by submitting the Thesiswithin six years from the date of enrolment or on an extension of afurther period of two years, provided he satisfies the Council thathe was taking steps to qualify for Associate Membership; that thefourth respondent did not complete the course within the periodprescribed under Bye-law 22 of the 1st and 2nd respondents and on theother hand, he was influencing the 1st and 2nd respondents to awardthe Certificate for Associate Membership in the year 2006 i.e.after 14 years from the date of his enrolment, which is clearlyillegal and in contravention of their bye-laws and therefore void.Therefore, the appellant has filed the writ petition with the aboveprayer. The learned single Judge, dismissed the said writpetition, on the ground that the second respondent is not a 'State'within the meaning of Article 12 of the Constitution of India.Aggrieved, the petitioner therein has come forward to prefer thisappeal. 5. Before the filing of this writ petition, another writpetition, in W.P.No.6530 of 2006, has been filed by the citizenscare foundation, as a public interest litigation, on similaraverments. 6. Since the issues involved in both the matters are common,both these matters are clubbed together and arguments are heard incommon.7. Though many issues have been argued on either sideregarding Rule 22 before and after its amendment and the total non-compliance of the provisions of Bye-laws in effecting the bye-law,since the prime issue that needs to be answered is about themaintainability of the writ petition against the second respondent,we shall now proceed to deal with the same.8. A strong objection has been raised on behalf of the secondrespondent, both before the learned single Judge and before us,that it is not a statutory body but incorporated under Section 25of the Indian Companies Act, 1956 and as such, no writ will lie https://hcservices.ecourts.gov.in/hcservices/ under Article 226 of the Constitution of India against them. Thelearned single Judge has upheld this contention of the secondrespondent and dismissed the writ petition as not maintainable.9. The learned counsel appearing for the appellant in the writappeal and the learned counsel appearing for the petitioner in theprobono publico, would vehemently argue that the second respondentInstitute discharges the duties of public importance in the matterof education as it is the only Institute of its kind in India whichawards Degrees/Diploma in Town Planning and hence a Writ Petitionagainst the second respondent is certainly maintainable underArticle 226 of the Constitution of India. They have further arguedthat the first respondent/All India Board of Technical Studies inArchitecture and Regional Planning is one of the several technicalBoards coming under the purview of AICTE under Section 13(2) and 13(4) of the AICTE Act. They have further argued that under AICTE,there are several technical and professional Boards such as AllIndia Board of Pharmaceutical Education, All India Board ofManagement Studies, All India Board of Technical Education, AllIndia Board of Post Graduate Education and Research in Engineeringand Technology, All India Board of Hotel Management and CateringTechnology, All India Board of Information Technology and All IndiaBoard of Town and Country Planning. The learned counsel appearingfor the appellant in the writ appeal would further argue thatbesides the second respondent, CMDA is also a party to the writ asthe third respondent against whom the writ is definitelymaintainable and therefore, the order passed by the learned singleJudge needs to be set aside and would pray to allow the writappeal. 10. Adding further, the learned counsel appearing for thepetitioner in the writ petition would argue that manyirregularities have been committed by the second respondentInstitute in issuing the certificates, one such glaring example isthe certificate issued to the fourth respondent in the writ appealviz. Mr.R.Krishnamurthy and would, therefore, pray to allow thewrit petition.11. On the other hand, on the part of the learned counselappearing for the fourth respondent in the writ appeal would arguethat the object of the appellant, who is admittedly the junior ofthe fourth respondent is to get promotion to the post of DeputyPlanner before the promotion of the fourth respondent. It hasfurther been argued that the present litigation has been initiatedat the instance of the appellant, without verifying the fact thatRule 22 of the bye-law, which earlier provided a time limit forcompleting the certificate course, has been amended, taking away https://hcservices.ecourts.gov.in/hcservices/ the time limit and the attempts made on the part of the appellantto impart motives to the second respondent are all baseless. Hewould further argue that the learned single Judge has rightlyarrived at the conclusion of dismissing the writ petition as notmaintainable and would pray to dismiss the writ appeal and the writpetition filed under the garb of public interest litigation. 12. As has already been observed supra, though many issueshave been argued and urged on either side, the preliminary issuethat needs to be answered by us is regarding the maintainability ofthe writ petitions, since a question has been raised on the part ofthe second respondent that it is not a 'State' within the meaningof Article 12 of the Constitution, so as to maintain the writpetitions.13. No doubt, the High Courts are empowered under Article 226of the Constitution to exercise judicial review to correctadministrative decisions and under this jurisdiction, the HighCourts can issue to any person or authority, any direction or orderor writs for enforcement of any of the rights conferred by Part-IIIof the Constitution or for any other purpose. Though thejurisdiction conferred on the High Court under this Article is verywide, it is an accepted principle that this is a public law remedyand is available against a body or person performing public lawfunction.14. The learned counsel for appellant in the writ appeal andthe learned counsel for the petitioner in the writ petition wouldargue that even if the second respondent is held to be a privateparty, the writ is very well maintainable against it and in supportof their arguments, they would rely on a judgment of the HonourableApex Court in ANDI MUKTA SADGURU SHREE MUKTAJEE VANDAS SWAMISUVARNA JAYANTI MAHOTSAV SMARAK TRUST AND OTHERS vs. V.R.RUDANI ANDOTHERS [(1989) 2 SCC 691], wherein the Honourable Apex Court hasheld in the following terms"The appellant-management of the college, which is atrust registered under Bombay Public Trusts Act isamenable to the writ jurisdiction of the High Courtunder Article 226. The court can compel the managementby a writ of mandamus to pay to its teachers whoseservices were terminated by it, the terminal benefitsand arrears of salary payable to them.""The appellant-trust was managing the affiliated collegeto which public money is paid as government aid. Publicmoney paid as government aid plays a major role in thecontrol, maintenance and working of educationalinstitutions. The aided institutions like government https://hcservices.ecourts.gov.in/hcservices/ institutions discharge public function by way ofimparting education to students. They are subject tothe rules and regulations of the affiliating University.Their activities are closely supervised by theUniversity authorities. Employment in suchinstitutions, therefore, is not devoid of any publiccharacter. So are the service conditions of theacademic staff. The service conditions of the academicstaff are, therefore, not purely of a private character.It has super-added protection by University decisionscreating a legal right-duty relationship between thestaff and the management. When there is existence ofthis relationship, mandamus cannot be refused to theaggrieved party. In absence of any plea for specificperformance of contractual service or declaration forcontinuance in service, the writ petition wasmaintainable." 15. They would further rely on another judgment of theHonourable Apex Court in BINNY LTD. & ANOTHER vs. V.SADASIVAN ANDOTHERS [2005-4-L.W.745 = (2005) 6 SCC 657], wherein it has beenheld as follows:"Thus, it can be seen that a writ of mandamus or theremedy under Article 226 is pre-eminently a public lawremedy and is not generally available as a remedyagainst private wrongs. It is used for enforcement ofvarious rights of the public or to compelpublic/statutory authorities to discharge their dutiesand to act within their bounds. It may be used to dojustice when there is wrongful exercise of power or arefusal to perform duties. This writ is admirablyequipped to serve as a judicial control overadministrative actions. This writ could also be issuedagainst any private body or person, specially in view ofthe words used in Article 226 of the Constitution.However, the scope of mandamus is limited to enforcementof public duty. The scope of mandamus is determined bythe nature of the duty to be enforced, rather than theidentity of the authority against whom it is sought. Ifthe private body is discharging a public function andthe denial of any right is in connection with the publicduty imposed on such body, the public law remedy can beenforced. The duty cast on the public body may be eitherstatutory or otherwise and the source of such power isimmaterial, but, nevertheless, there must be the publiclaw element in such action. Sometimes, it is difficultto distinguish between public law and private law https://hcservices.ecourts.gov.in/hcservices/ remedies...."16. The above judgments of the Honourable Apex Court make itundoubtedly clear that there must be public law element in theaction of an organisation, so as to maintain the writ petitionagainst it. 17. In fact, in PRADEEP KUMAR BISWAS AND OTHERS vs. INDIANINSTITUTE OF CHEMICAL BIOLOGY AND OTHERS [(2002) 5 SCC 111], theConstitutional Bench of the Honourable Apex Court has held that:"40. The picture that ultimately emerges is that thetests formulated in Ajay Hasia [AJAY HASIA vs. KHALIDMUJIB SEHRAVARDI 1981 (1) SCC 722] are not a rigid setof principles so that if a body falls within any one ofthem it must, ex hypothesi, be considered to be a Statewithin the meaning of Article 12. The question in eachcase would be — whether in the light of the cumulativefacts as established, the body is financially,functionally and administratively dominated by or underthe control of the Government. Such control must beparticular to the body in question and must bepervasive. If this is found then the body is a Statewithin Article 12. On the other hand, when the controlis merely regulatory whether under statute or otherwise,it would not serve to make the body a State."18. In this backdrop, now we have to see whether the 2ndrespondent possess any public law element, so as to bring withinthe fold of 'State' under Article 12 of the Constitution so as tomaintain the writ petitions against it.19. From the materials on record, we are able to see that thesecond respondent owes its origin to a small group of Town Plannersof Delhi, who, in 1947 decided to set up a professional TownPlanning Institute on the lines similar to the Royal Town PlanningInstitute, London and since the number of planners, which then didnot exceed six, was too small for a registered society to be set upand therefore, the small group formed itself into an Indian Boardof Town Planners and started working towards establishing aprofessional Institute and after three years of continuous work,the members of the Indian Board of Town Planners, who then numberedabout fifteen, evaluated the possibility of forming the Instituteof Town Planners, India and later on finalized the Memorandum,Articles of Association and Bye-laws of the Institute. Thereupon,they have incorporated as a 'company' under Section 25 of the https://hcservices.ecourts.gov.in/hcservices/ Indian Companies Act. It is being run by a Council consisting of aPresident, Vice-President, Secretary-General, one Chairperson and17 members. It is also having several committees for variouspurposes. No member is a nominee of the Government and it is purelya private organisation, having its own bye-laws and regulations.There is no element of any control by any Governmentalorganisation. The second respondent, in addition to theoperational autonomy, is also empowered to amend its bye-laws. But,being a company registered under the provisions of the CompaniesAct, the amendment of Bye-laws are subject to issuance of a NoObjection Certificate by the Registrar of Companies, as providedfor under Rules 104 and 105 of the Bye-laws. It is being regulatedby the Companies Act, rather than by the Government. Therefore, itdoes not at all satisfy any of the tests, to qualify itself to be a'State' within the meaning of Article 12 of the Constitution. 20. But, an argument has been advanced on the part of thelearned counsel for the appellant in the writ appeal and thepetitioner in the writ petition that the second respondent is thethe only Institute of its kind in India which awardsDegrees/Diploma in Town Planning and hence a Writ Petition againstthe second respondent is certainly maintainable under Article 226of the Constitution of India. 21. In these circumstances, it is apt to refer to a judgmentof the Honourable Apex Court in GOVERNOR OF DELHI vs. V.K.SODHI[(2007) 15 SCC 136], wherein while considering the question'whether the State Council of Education, Research and Training( SCERT) was a State or other authority within the meaning ofArticle 12 of the Constitution and therefore subject to writjurisdiction, the Honourable Apex Court has held in the followingterms:"There is no simple litmus test, to determine whether anentity is "State" or "other authority" within themeaning of Article 12 of the Constitution of India.Various facets of the foundation and the working of theentity are relevant in determining the question in thecontext of the duties entrusted to it, or taken up by itfor performance. So the question to be determined iswhether in the context of the functions entrusted to it,the rules and bye-laws that govern SCERT, and thefinancial position enjoyed by it, SCERT can be said tobe financially, functionally and administrativelydominated by or under the control of the Government."22. The above judgment of the Honourable Apex Court squarelyapplies to the facts of the case on hand and serves as a straightanswer to the argument advanced on the part of the appellant that https://hcservices.ecourts.gov.in/hcservices/ it is the only Institute of its kind in India which awardsDegrees/Diploma in Town Planning, since, a similar argumentadvanced therein has been answered in negative by the HonourableApex Court in the above judgment. Further, as has already beenobserved supra, there is no public law element in the actions ofthe second respondent and it has not qualified to come within thepurview of Article 12 of the Constitution, so as to maintain thewrit petition against the second respondent.23. One more argument has been advanced on the part of theappellant that even the CMDA where both the appellant and thefourth respondent are working has been impleaded as a party andhence, the writ petition is very well maintainable. But, thoughthe CMDA has been impleaded as a party respondent to the writproceedings, the prime relief has been claimed only against thesecond respondent.24. In these circumstances, we have no hesitation to hold thatthe learned single Judge has correctly analysed all the facts andcircumstances of the case and has arrived at an irresistibleconclusion of dismissing the writ petition as not maintainable. Wefind no illegality or irregularity in the order passed by thelearned single Judge and accordingly, the writ appeal No.477 of2007 is liable to be dismissed. For the same reasons, the writpetition No.6530 of 2006 filed as a probono publico is also notmaintainable and the same is also liable to be dismissed. Sinceboth the matters are dismissed as not maintainable, we have notgone into merits and demerits of either of the parties and theparties have to work out their remedies before appropriate forumsof law and not under Article 226 of the Constitution.In the result, the writ appeal No.477 of 2007 and the WritPetition No.6530 of 2006 are dismissed. No costs. Consequently,WPMP.No.7039 of 2006 is also dismissed. RaoSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai2.The Secretary to Government, Government of India, Urban Development Department, New Delhi.3.The Chairman, All India Board of Technical Studies in Architecture and Religious Planning, New Delhi.4.The President, Institute of Town Planners of India, No.4-A, Ring Road, Indhraprastha Road, New Delhi-110 002.+ 2 ccs to Mr. S. J. Jagadev, Advocate SR No.82798, 82799+ 1 cc to Mr. V. Vijay Shankar, Advocate SR No.82677+ 1 cc to Mr. D. Veerasekaran, Advocate SR No.82314+ 1 cc to Mr. D.S.Rajasekaran, Advocate SR No.82184SJ(CO)SR/1.12.2010Common Judgment in W.A.477/2007& W.P.No.6530/2006