Supreme Court of India
K. K. SAKSENAversusINTERNATIONAL COMMISSION ON IRRIGATION AND DRAINAGE & ORS.
- Citation
- 2014 INSC 892
- Decided
- 18 December 2014
- Disposal
- Dismissed
- Bench
- JASTI CHELAMESWAR
Holding
The writ petition is not maintainable because ICID is not a 'State' under Article 12 and does not discharge any public duty; its decisions are private law matters beyond the scope of Article 226.
Summary
K.K. Saksena, a former Secretary of the International Commission on Irrigation and Drainage (ICID), challenged his termination in a writ petition under Article 226, alleging arbitrariness and violation of Article 14. The Delhi High Court dismissed the petition, holding that ICID is not a "State" within Article 12 and does not perform any public duty, making it outside the ambit of writ jurisdiction. On appeal, the Supreme Court affirmed this view, emphasizing that the term "authority" in Article 226 has a broader meaning than in Article 12 but still requires the body to discharge a public function or be a State instrumentality. The Court found that ICID is a private, non‑government‑funded international NGO whose activities are voluntary and not statutorily mandated, and therefore its internal employment decisions are matters of private law not amenable to judicial review. Consequently, the writ petition was held non‑maintainable and the appeal dismissed.
Issues considered
- Whether the International Commission on Irrigation and Drainage (ICID) qualifies as a 'State' or 'other authority' under Article 12 of the Constitution for the purpose of Article 226 jurisdiction.
- Whether ICID performs a public function or discharges a public duty that would render it amenable to writ jurisdiction.
- Whether a termination of service of an employee of a private body can be challenged through a writ under Article 226.
- Whether the writ petition seeking enforcement of private law rights is maintainable.
Legislation cited
- Banking Regulation Act
- Constitution of Indias. Article 12, s. Article 14, s. Article 226, s. Article 31, s. Article 32
- Industrial Disputes Act, 1947s. Section 2(s)
Subjects
Writ jurisdictionArticle 226Article 12State definitionPublic dutyPrivate lawService terminationICIDJudicial reviewEmployment law
Judgment
[2014] 14 S.C.R. 892 .
A K. K. SAKSENA
v.
INTERNATIONAL COMMISSION ON IRRIGATIONAND
DRAINAGE & ORS.
B (Civil Appeal No. 11499 of 2014)
DECEMBER 18, 2014
[J. CHELAMESWAR AND A. K. SIKRI, JJ.]
Constitution of India :
c Aits. 12 and 2.26-Scope of- Writ petition u/Ait. 226-
Against respondent-Commission - Challenging the order
terminating the services of the appellant"employee -
Whether maintainable - High Couit held that it was not
maintainable because the respondent-Corporation was not
D a 'State' u/Ait. 12 and also because the actions of the
respondent were not amenable to judicial review- On appeal,
held: Even if a person or authority is a 'State'within meaning
of Ait. 12, a writ petition would not lie to enforce private law
rights- If a person or authority does not come within the sweep
E of Ait. 12, but is performing public duty, writ petition lies -
However, such private body should either run substantially
on State funding or discharge public duty/positive obligation
of public nature or is under liability to discharge any function
under any statute to compel it to perform such a statutory
F . function - Even if a body performing public duty is amenable .
· to writ jurisdiction, all its decisions are not subject to judicial
review, but only those which have public e1ement therein -
Contractual and commercial obligations are enforceable only
by ordinary action and not by judicial review - The
G respondent-Commission in the present case is not funded
by the Government- The functions and duties of respondent-
Commission also do not come within the meaning of 'public ·
functions' and 'public duties' to bring the Commission within
the ambit of expression 'other authority' in Ait. 226 - Even
H otherwise the impugned action of terminating the services of
892
K. K. SAKSENA v. INTERNATIONAL COMMISSION ON 893
IRRIGATION AND DRAINAGE
the appellant does not involve public Jaw element and no A
'public Jaw rights' have accrued in favour of the appellant- ·
Therefore, the writ petition was not maintainable - Service
Law- Termination of service.
Arts. 12 and 226 - Power under Art. 226 - Scope of-
He/d: The power of High Court u/Art. 226 is not limited to the B
authority which is qualified to be a 'State' u!Art. 12- The term
'authority' in Art. 226 has a wider meaning than the same vety
term used in Art. 12- The power is not limited to enforcement
of fundamental rights, but also 'for any other purpose'.
Words and Phrases - 'Authority' - Connotation of, in C
the context of Arts. 12 and 226 of the Constitution of India -
Discussed.
Dismissing the appeal, the Court
HELD: 1. As per the definition contained in Arti~le D
12 of the Constitution the 'State' includes the
Government and Parliament of India and the Government
and Legislature of each State as well as "all local or other
authorities within the territory of India or under the
control of the Government of India". If such an autht>,rity E
violates the furidamental right or other legal rights of any
perso_n or citizen (as the case may be), writ petition cary
be filed under Article 226 of the Constitution invoking
the extraordinary jurisdiction of the High Court and
seeking appropriate direction, order or writ. [Para 30] F
[916-B-C; 916-D-E]
2.1 However, under Article 226 of the Constitution, the
power of the High Court is not limited to the Government
or authority which qualifies to be a 'State' under Article
12. Power is extended to issue directions, orders or writs G
"to any person or authority". Again, this power of issuing
directions, orders or writs is not limited to enforcement
of fundamental rights conferred by Part Ill, but also 'for
any other purpose'. Thus, power of the High Court takes
H
894 SUPREME COURT REPORTS [2014] 14 S.C.R.
A within its sweep more "authorities" than stipulated in
· Article 12 and the subject matter which can be dealt with
under this Article is also wider in scope. [Para 30)
[916-E-G]
Shri Anadi Mukta Sadguru Shree Muktajee
B Vandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust &Ors. v. V.R. Rudani & Ors. (1989)
2 SCC 691 : 1989 (2) SCR 697 ·relied on.
2.2 If a person or authority is a 'State' within the
meaning of Article 12 of the Constitution, admittedly a
C writ petition under Article 226 would lie against such a
person or body. However, even in such cases writ would
not lie to enforce private law rights. Reason is that private
law is that part of a legal system which is a part of
Common La~ that involves relationships between
D individuals, such as law of contract or torts. Therefore,
even if. writ petition would be maintainable against an
authority, which is 'State' under Article 12 of the
Constitution, before issuing any writ, particularly writ of
mandamus, the Court has to satisfy that action of such
E an authority, which is challenged, is in the domain of
public law as distinguished from private law. [Para 38)
[922-F-H; 923-A-C]
K. Krishnamacharyulu & Ors. v. Sri Venkateswara
Hindu College of Engineering &Anr. (1997) 3 SCC
F 571 : 1997 (2) SCR 368 ; Binny Ltd. &Anr. v. V.
Sadasivan & Ors. (2005) 6 SCC 657 : 2005 (2)
Suppl. SCR 421 ; Election Commission of India
v. Saka Venkata Subba Rao AIR 1953 SC 210:
1953' SCR 1144- relied on.
G
G. Bassi Reddy v. International Crops Research
Institute & Anr. (2003) 4 SCC 225 : 2003 (1)
SCR 1174.; Federal Bank Ltd. v. Sagar Thomas
& Ors. (2003) 10 sec 733 : 2003 (4) Suppl.
H SCR 121 - referred to.
K.K. SAKSENAv. INTERNATIONALCOMMISSION ON 895
IRRIGATIONAND DRAINAGE
2.3 On the other hand, even if a person or authority A
does not come within the sweep of Article 12 of the
Constitution, but is performing public duty, writ petition
can lie and writ of mandamus or appropriate writ can be
issued. However, such a private body st- -,uld either run
substantially on State funding or discharge public duty/ B
positive obligation of public nature or is under liability
to discharge any function under any statute, to compel
it to perform such a statutory function. [Para 40]
[923-F-H] '
2.4 Even if a body performing public duty is C
amenable to writ jurisdiction, all its decisions are not
subject to judicial review. Only those decisions which ·
have public element therein can be judicially reviewed
under writjurisdiction. [Para 43][926-E-F]
The Praga Tools Corporation v. Shri C.A. /manual D
& ors. (1969) 1 sec 585 : 1969 ( 3 ) SCR 773 -
relied on.
2.5 There are three things that had to be identified
while considering whether a public body with statutory E
powers was exercising a public function amenable to
judicial review or a private function. They are: (i) whether
the defendant was a public body exercising statutory
powers; (ii) whether the function being performed in the
exercise of those powers was a public or a private one; F
and (iii) whether the defendant was performing a public
duty owed to the claimant in the particular ch:cumstances
,,.
under consideration. [Para 44][927-B~C] ·,,
2.6 It is trite that contract of personafservice cannot
be enforced. However, there are three exceptions to this G
rule, namely: (i) when the employee is a public servant
working under the Union of India or State; (ii) when such
employee is employed by an authority/ body which is a
State within the meaning of Article 12 of the Constitution
of India; and (iii) when such an employee is 'workmen' H
896. SUPREME COURT REPORTS [2014] 14 S.C.R.
A · within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947 and raises a dispute regarding his
termination by invoking the machinery under the said
· Act. In the first two cases, the employment ceases to
have private law character·and 'status' to such an
B employment is attached. In the third category·of cases,
it is the Industrial Disputes Act which confers jurisdiction
on the labour court/industrial tribunal to grant
reinstatement in case termination is found to be illegal.
[Para 46][927-E-H]
C 2.7 The High Court rightly opined that the
respondent was not discharging any public function or
public duty, which would make it amenable to the writ
jurisdiction of the High Court under Article 226. In the .
present case, since the respondent is not funded by the
D Government nor it is discharging any function under any
statute. For determining the. character of the
respondents, the focus has to be on the function
discharged by it, namely, whether it is discharging any
public duties. The functions incorporated in the MOA of
E the respondent, namely, to encourage progress in
design, construction, maintenance and operation of
large and small irrigation works and canals etc., by itself
would not make it a public duty cast on the respondent.
The respondent is a private body ,~hich has no State
F funding. Further, no liability under any statute is cast
upon it to discharge the aforesaid fynction. The High
Court is right in its observation that even when object of
the respondent is to promote the development and
application of certain aspects;'the same are voluntarily
G undertaken and there is no obligation to discharge
certain activities which are statutory or of public
character. Eyen otherwise; it is clear that the impugned
action does not involve public law elementand no 'public
H
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 897
IRRIGATION AND DRAINAGE
law rights' have accrued in favour of the appellant which A
are infringed. [Paras 41, 42 and 47][924-B-C; 926-A-D;
928-A-B]
Ajay Hasia & Ors. v. Khalid Mujib Sehravardi &
Ors. (1981) 1 sec 122 : 1981 (2) scR 79 ;
Ramana Oayaram Sheffy v. International Airport B
Authority of India & Ors. (1979) 3 SCC 489 : 1979
(3) SCR 1014 ; Pradeep Kumar Biswas & Ors. v.
Indian Institute of Chemical Biology & Ors. (2002)
5 SCC 111 : 2002 (3) SCR 100 ; Mis. Zee
Telefi/ms Ltd. &Anr. v. Union of India &Ors. (2005) c
4 SCC 649 : 2005 (1) SCR 913-: referred to.
CASE LAW REFERENCE
1981 (2) SCR 79 referred to. Para 14
1979 (3) SCR 1014 referred to. Para 14 D
2002 (3) SCR 100 referred to. Para 15
2005 (1) SCR 913 referred to. Para 16
1989 (2) SCR 697 relied on. Para 31
1997 (2) SCR 368 relied on. Para 33
E
2003 (1) SCR 1174 referred to. Para 34
2003 (4) Suppl. SCR 121 referred to. Para 35
2005 (2) Suppl. SCR 421 relied on. Para 36
1953 SCR 1144 relied on. Para 39
1969 (3) SCR 773 relied on. Para 43' F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
11499of2014.
From the Judgment and Order dated 25:04.2011 of the ·
High Court of Delhi at New Delhi in L.P.A. No. 554 of 2006. G
Dinesh Agnani, Sr. Adv., Piyush Sharma, K. G Mishra,
Ad vs. for the Appellant.
K. Radhakrishna, Sr.Adv., Ms.Asha G Nair, S.S. Rawat,
Bharat Sangal, D. S. Mahra, I. Abenla Aier, Advs. for the
Respondents. H
898 SUPREME COURT REPORTS [2014] 14 S.C.R.
A The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. Leave granted.
2. By the impugned judgment dated April 25, 2011
passed by the High Court of Delhi in LPA No. 554 of 2006, the
High Court has held that the writ petition against respondent
8
No.1, namely, International Commission on Irrigation and
Drainage (for short, 'ICID'), under Article 226 of the Constitution
is not maintainable as it is not a 'State' under Article 12 of the
Constitution. It has also held that its actions or not amenable
C for judicial review under Article 226 of the Constitution, either..
It resulted in dismissal of the said intra-court appeal, which
was filed challenging the judgment of the learned Single Judge
rend.ered in the writ petition filed by the appellant taking the
same view. The appellant even filed review petition seeking
review of the judgment dated April 25, 2011, which met the
D same fate as the said review petition was dismissed by the
High Court by orders dated August 05, 2011.
3. From the aforesaid, it is apparent that the issue
' .
agitated before us pertains to the.maintainability of the writ
E petition under Article 226 of the Constitution of India against
the respondents herein. This has arisen in the following
circumstances:
4. The appellant herein was appointed to the post of
Secretary, ICID, vide letter of appointment dated January 03,
F 1997. Pursuant to that letter, he joined the services in ICID on
January 20, 1997. Thereafter, his services were terminated
vide letter dated August 15, 1999, with immediate effect from ·
August 16, 1999, on the ground thatthe same were no longer
required by the ICID. It was followed by a communication dated
G August 27, 1999 whereby the appellant was given two cheques
in the sum of 1 77,388/- and 1 98,141.50/- towards three months'
basic pay in lieu of notice and the dues towards contributory
provident fund respectively. It would be pertinent to note that
. these dues were given pursuant to the request of the appellant
H contained in his letter dated August 19, 1999 claiming three
K.K. SAKS ENA v. INTERNATIONAL COMMISSION ON 899
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
months' salary as per the rules as also payments for provident A
fund. After receiving these cheques, the appellant requested
for revocation of the order of termination, which was followed
by reminders dated September 02, 1999 and October 16,
1999. As he did not receive any response to the aforesaid
requests, he approached the High Court by filing writ petition B
· under Article 226 of the Constitution of India alleging that the
termination of his services by the ICID was an act of
arbitrariness and unreasonableness and, thus, violative of
Article 14 of the Constitution. Plea of the appellant in this
behalf was that the said order of termination was without C
holding the inquiry and no reason was given to dispense with
the said inquiry as well and, therefore, was in violation of ICID
Employees Conduct Rules, 1967, particularly Rule 33(b)
thereof, which mandates reason to be given for·· dispensing
with the inquiry. D
5. In the writ petition, the appellant also specifically took
the plea that ICID is a 'State' within the meaning of Article 12
of the Constitution of India and further it is involved in performing
public duty. It was averred that ICID is under the control of
Government and the criteria and test set out for determining E
whether a corporation or society is a 'State' or 'other authority'
under Article 12 of the Constitution of India is satisfied inasmuch
as ICID was established by the Central Government by giving
a grant of 1 15,000/- in 1950; that there are instances when the
Government officers had come on deputation to the society; F
that the Central Government has been paying the subscription
for administrative and other functions of ICID and, hence, the
financial control rests with the Government; that the staffing
pattern of the ICID is in accord with the line of the Government;
that ICID has monopoly status since it is the only society G
established by the Government of India to bring together
information on irrigation from India and outside; that the
Government provides to it irrigation related information
generated in the country and uses public cost and also uses
information pulled by it for Government irrigation works; and H
900 SUPREME COURT REPORTS [2014) 14 S.C.R.
A that the President or Vice President in-charge of the central
office of the society is a Government officer and the officer of
the Central Government is ex-officio Secretary General, though
he does not draw salary from ICID. Additional plea was taken ·
that in any case writ petition under Article 226 of the Constitution
B of India was maintainable even if ICID does not qualify to be a
'State' within the purview of Article 12 of the Constitution·
inasmuch as the term 'other authority' appearing in Article 226
was of much wider connotation and it would embrace within
itself those authorities which discharge public functions or
C public duty of great magnitude .. The appellant pleaded that
going by the functions which.IC ID is discharging, it is apparent
that these are public functions and, therefore, writ petition under
·Article 226. of the Constitution of India could be filed against it.
6. ICID filed its counter affidavit controverting the
D aforesaid pleas taken by the appellant in his writ petition. The
stand taken by the appellant was refuted by contending that
ICID is neither a State under Article 12 of the Constitution of
India nor is it amenable to writ jurisdiction under Article 226 of
·the Constitution. It was put forth that the said society does not
E . fulfill the requisite tests which would bring it within the purview
of Article 12 of the Constitution inasmuch as the management
of the affairs of the society is vested in an International
Executive Council (IEC) consisting of office bearers and one
duly appointed representative from each National Committee;
F that the office bearers of ICID consist of one President, 9 Vice
Presidents and 1 Secretary General and all the office bearers,
except the Secretary General. who is the full-time office bearer
appointed by IEC, are elected by majority of votes of the
members of the said Council; that the representatives of the
G World Bank, FAO, United National Educational, Scientific and
. Cultural Organization (UNESCO) and International Irrigation
Management Institute amongst others, have a place in the
International Executive Council of ICID as permanent
observers·; that the representatives of the World Bank, FAQ,
H UNESCO and other related UN agencies also participate in
K.K. SAKS ENA v. INTERNATIONAL COMMISSION ON . 901
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
the work and various activities of !CID; that !CID comprises A
about 30 staff members in all and works under the general
supervision of the Council and under the immediate direction
of the President; that Clause 7.3 of the Constitution of ICID
empowers the Secretary General to frame such rules and
procedure as he considers necessary for governing the staff B
and for the proper functioning of the central office in consultation
with the staff committee; that the following of a staffing pattern
by !CID in the line of the Central Government does r:iot bring
th·e society under the control of the State; that !CID is an
independently funded organization whose functions are C
financed by subscriptions from several countries; and that
deputation of some officers from the Government at certain
times does not give it the character of a State.
7. Plea of the appellant regarding availability of remedy
under Article 226 of the Constitution was opposed on the · D
ground that !CID does not perform any public duty which would
make it amenable to writ jurisdiction since its objects stimulate
and promote the development and the application of the arts,
sciences and techniques of engineering, agriculture,
economics, ecology and social sciences in managing water E
and land resources for irrigation, drainage, flood control and
river training and for research in a more comprehensive
manner adopting upto date techniques and its activities cannot
be stated to be intrinsically.public in nature or closely related
to those performable by the State in its sovereign capacity. F
8. The order of termination was sought to be justified on
merits as well, taking up the contention that the appellant was
not performing the duties satisfactorily and, therefore, his
services were dispensed with, as per the Rules arid, hence,
no inquiry was necessary. Various other grounds were also G
pleaded to justify the order of termination.
9. After hearing the arguments on either side, the learned
Single Judge of the High Court dismissed the writ petition at •
the threshold, without going into the question about the validity H
902 SUPREME COURT REPORTS [2014] 14 S.C.R.
A of the termination of the appellant's services as he held that
ICID is neither a 'State' under Article 12 of the Constitution,
nor is it discharging functions which will bring it within the ambit
of public duty making it amenable to the jurisdiction of the High
Court under Article 226 of the Constitution of India. As a result, .
B writ petition was dismissed vide judgment dated January 17,
2006. As pointed out above, this view of the learned Single
Judge has been upheld by the Division Bench of the High Court
vide impugned judgment dated April 25, 2011. In the process,
the Division Bench has discussed the aspect of maintainability
c on the touchstone of Article 12 as well as Article 226 of the
Constitution of India, in great details.
10. Mr. DineshAgnani, learned senior counsel appearing
for the appellant, was candid in conceding that he was not
joining issues insofar as the judgment of the High Court hold
D ICID not to be 'State' under Article 12 of the Constitution. Thus,
this part of the judgment has been accepted by the appellant.
However, the quintessence of the argument advanced by him;
with great emphasis, was that ICID was performing public duty.
He referred to the functions which ICID is discharging and made
E a strenuous attempt to show that those functions would come
within the ambit of public functions and the duties of ICID as
public duty, which would bring it within the ambit of the
expression 'other authority' appearing in Article 226 of the
Constitution and making ICID amenable to the writ jurisdiction.
F 1f. Because of the concession of the learned senior
counsel, though we are absolved from undertaking any exercise
on the character of ICID on the issue as to whether it is a 'State'
under Article 12 of the Constitution or not, nevertheless, we
deem it appropriate to delve the manner in which this issue is
G dealt with by the High Court. Reason for doing the same is
that it will have some bearing on the other related issue which
is the main brunt of the appellant's submissions.
• 12. The High Court has referred to the provisions of the
Constitution of ICID while embarking on the aforesaid
H discussion and in this process it has noted as under:
v.
K.K. SAKS ENA INTERNATIONAL COMMISSION ON 903
IRRIGATION AND DRAINAGE [A. K SIKRI, J.]
"14 ... The preamble which occurs in Article 1 of the A
Constitution of ICID reads as follows:
"1.1 The International Commission on Irrigation and
Drainage is established as a Scientific, Technical,
Professional, and Voluntary Not-for-Profit Non-
Govemmental International Organization (NGO-ONG), B
dedicated, inter alia, to enhance the world-wide supply
of food and fibre for all people by improving water and
land management, and the productivity of irrigated and
drained lands through the appropriate management
of water, environment and the application of irrigation, C
drainage and flood control techniques.
1.2 In the text of this Constitution, the International
Commission on Irrigation and Drainage is referred to
as the Commission or as ICID (CllD in the French
version) and among international authorities, as CID D
(CllD)."
15. Article 3 deals with Membership. The basis of
membership is as follows:
"3.1 ICID consists of National Committees of E
Participating Countries, on the basis of one National
Committee for each such country. Where no National
Committee exists, officers of government or of an
institution or institutions effectively representing
interests within the scope of the objects of the F
Commission may participate in ICID activities. In such
cases one officer shall be designated as
Representative.
3.2 Any geographical area independently
administered bf a sovereign government and having G
interest in the activities of the Commission shall be
eligible to participate in the activities of the
Commission. Accordingly, in exceptional cases, the
Council may, having regard to the coexistence of
separate sovereign geographical areas or countries, · H
904 SUPREME COURT REPORTS (2014] 14 S.C.R.
·A accept the representation of the sovereign parts of a
country by separate National Committees. In the case
of a Federal System of government, or similar set-up,
only one National Committee shall be recognized for
membership in ICID."
B 16. Article 4 deals with the composition of the national
committees and its responsibility.
17. Article 5 deals with the International Executive Council.
Clause 5.1 of Article 5 reads as follows:
' Council, hereinafter
c "5.1 The International Executive
called the Council, the Executive Council or the IEC is
vested with the manag'ement of the affairs of the
International Commission on Irrigation and Drainage.·
5.2 The Council shall consider all matters of policy
D which may be initiated or sponsored by any member
National Committee or Office-Bearer or by the
Management Board and may itself initiate and
determine or otherwise advise and lay .down any
matter of policy. The Central Office of ICID shall act
E as an instrument for carrying into effect all decisions
taken by the Council. The Council shall also consider
what action, if any, need be taken on the
· recommendations or conclusions of the studies,
experiments or discussions organized by the
F Commission. All matters affecting the executive or
administrative functions and financial liabilities of ICID
must come up before the Council and its decisions
shall be conclusive."
18. Article 6 provides for the office-bearers. Clause 6.2
G deals with the election of President and Vice-Presidents.
Clause 6. 3.1 provides for the appointment of Secretary
General. It is profitable to reproduce clause 6.3.1:
"6.3.1 Nomination: The Secretary-General shall be
nominated by the President, acting as Chairperson
H of the Management Board, and appointed by Council.
K.K. SAKS ENA v. INTERNATIONAL COMMISSION ON 905
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
19. Article 7 deals with Management. Clause 7 .1 deals A
with Management Board: It is as follows: ·
"7 .1 The Council shall be assisted in the management
of the affairs of the Commission by a Management
Board composed of the President of ICID, who shall
be the Chairperson, immediate past President of ICID B.
(one year only), Chairpersons of the Permanent
Technical Activities Committee, Permanent Finance
Committee and Permanent Committee on Strategy
Planning and Organizational Affairs and the Secretary-
General." C
Clause 7.2 of Article 7 provides that the Central Officer
shall be located in New Delhi, India and shall be
maintained under the general provision of the Council
and under the immediate direction of the President.
Clause 7 .3.1 deals with financial manageme~t. D.
20. Article 10 provides for dues, subscriptions and funds.
It is apposite to reproduce clauses 10.1, 10.2 and 10.3,
which read as follows: ·
"Annual Subscriptions E
10.1 In order to defray the cost of the activities of the
Commission or for special purposes, the National
Committees or representative organizations of
participating countries shall regularly pay to the order
of the Secretary-General annual subscriptions (in as F
near the beginning of each calendar year as may be
possible) on the basis pre-determined by the Council
and taking into consideration, inter alia, the interest
and the capacity to pay of the participating country.
National Committees or representative organizations G
of participating countries shall also pay such other
special subscriptions as may be determined by the
Council.
906 SUPREME COURT REPORTS [2014] 14 S.C.R.
A 10.2 For each Congress, regional conference,
technical session, international workshop or such other
international activity, the Council may, in consultation
• with the National Committee of the host country, fix
individual registration fees, or fees for participating
B organizations. In addition, the portion of the proceeds
that should accrue to the budget of the Central Office
of the Commission from such events shall also be
determined by the Council.
Funds
c 10.3 The Central Office shall be authorized to receive
and to handle as funds of the Commission, any
subscription, subvention or gift that may be made in
the general interests of the objects of the Commission,
or for specific research, special investigation or
D experimental work; and it may arrange, under general
authority given by the Council, cooperative research,
investigations or experimental work with other
international organizations, properly qualified
institutions, governmental or private, or with technical
E societies or associations."
21. Article 12 deals with dissolution and liquid~tion.
Clause 12.1 deals with dissolution which reads as
follows:
F "12.1 ICID may be declared dissolved only by a
decision to be reached at a regular or a special
meeting of the Councii and provided that at least two-
thirds of the total number of participating countries,
whether represented at such a meeting of the Council
G or not, vote for dissolution."
Clause 12.2 deals with liquidation and its procedure."
13. ICID has also framed its bye-laws which provide for
election of office bearers, working bodies of ICID, permanent
committees, role and membership, temporary working bodies,
H International Executive Council and various other aspects. After
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 907
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
taking note of the aforesaid provisions, the High Court while A
coming to the conclusion that respondent No.1 is not a 'State'
under Article 12 of the Constitution, summed up the position in
the following manner:
"23. On a comprehensive survey of the Constitution of
ICID and the bye-laws, we do not perceive that there is B
either any control of the government either financially,
functionally or administratively or it is dominated by any
action of the government. We do not even remotely see
that there is any kind of pervasive control. Some officers
may be coming on deputation regard being had to the C
character of the ICID or there may be initially a grant of
Rs.15, 000/- in 1950 or some aid at times but that does
not clothe it with the character and status of 'other authority'
as understood under Article 12 of the Constitution of India.
Hence, we conclude and hold that ICID is not an D
instrumentality of state or other authority under Article 12
of the Constitution of India."
14. We may also like to point out that the aforesaid
examination of the issue undertaken by the High Court is
keeping in view the principles laid down by this Court in catena E
of judgments and the tests which are to be applied to arrive at
the decision as to whether a particular authority can be termed
as 'State' or 'other authority' within the meaning of Article 12. It
took note of the Constitution Bench decision in Ajay Hasia &
Ors. v. Khalid Mujib Sehravardi & Ors. 1, wherein the following F
six tests were culled out from its e·arlier judgment in the case
of Ramana Dayaram Shetty v. International Airport
Authority of India & Ors 2:
"(1) One thing is clear that if the entire share capital of G
the corporation is held by Government it would go a long
way towards indicating that the corporation is an
instrumentality or agency of Government. (SCC p.507,
para 14)
1(1981) 1 sec 122
'(1979) 3 sec 489
H
908 SUPREME COURT REPORTS [2014] 14 S.C.R.
A (2) Where the financial assistance of the State is so much
as to meet almost entire expenditure of the corporation,
it would afford some indication of the corporation being
impregnated with governmental character. (SCC p.508,
para 15)
B (3) It may also be a relevant factor... whether the
corporation enjoys monopoly status which is State
conferred or State protected. (SCC p.508, para 15)
(4) Existence of deep and pervasive State control may
afford an indication that the corporation is a State agency
c or instrumentality. (SCC p.508, para 15)
(5) If the functions of the corporation· of public importance
and closely related to governmental Junctions, it would
be a relevant factor in.classifying the corporation as an
D instrumentality or agency of Government. (SCC p.509,
' .
para 16)
(6) "Specifically, if a department of Government is
transferred to a corporation,
. ~
it' would be a strong factor
.
supportive of this inference'
,' If
of the corporation
' . -
being an
E instrumentality or agency of Government. (SCC p.510,
pa_ra 18)." ·
15. The Court also took into consideration and referred_
. to the following passage from the judgment in Pradeep Kumar
Biswas & Ors. v. Indian Institute of Chemical Biology &
F Ors. 3 :
"40. The picture that·~ltimately emerges is that the tests
formulated in Ajay Hasia are not a rigid set of principles
so that if a body falls within any one of them it must, ex
hypothesi, be considered to be a .State within the
G meaning of Article 12 .. The question in each case would
be - whether in the light of the cum~lative facts as
established, the body is finane<ially, functionally and
administratively dominated by or under the control of the
H '(2002) 5 sec 111
K.K. SAKS ENA v. INTERNATIONAL COMMISSION ON 909
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.)
Government. $uch control must be particular to the body A
in question and must be pervasive. If this is found then
the body is a State within Article 12. On the other hand,
when the control is merely regulatory whether under
statute or otherwise, it would not serve to make the body
a State." B
16. The aforesaid judgment was relied upon by another
Constitution Bench in Mis. Zee Te/efilms Ltd. &Anr. v. Union
of India & Ors. 4 In that case, the Court was concerned with
the issue as to whether Board of Control for Cricket in India
(BCCI) is a 'State' within the meaning of Article 12 of the C
Constitution. After detailed discussion on the functioning of
the BCCI, the Constitution Bench concluded that it was not a
'State' under Article 12 and made the following observations
in this behalf:
"30. However, it is true that the Union of India has been D
exercising certain control over the activities of the Board
in regard to organising cricket matches and travel of the
Indian team abroad as also granting of permission to
allow the foreign teams to come to India. But this control
over the activities of the Board cannot be construed as E
an administrative control. At best this is purely regulatory
in nature and the same according to this Court in
Pradeep Kumar Biswas case is not a factor indicating a
pervasive State control of the Board."
F
17. Before arriving at the aforesaid conclusion, the Court
had summarized the legal position, on the basis of earlier
judgments, in para 22, which reads as under: ·
"22. Above is the ratio decidendi laid down by a seven-
Judge Bench of this Court which is binding on this Bench. G
The facts of the case in hand will have to be tested on
the touchstone of the parameters laid down in Pradeep
Kumar Biswas case. Before doing so it would be
'(2005) 4 sec 649 H
-I
910 SUPREME COURT REPORTS [2014] 14 S.C.R.
A worthwhile once again to recapitulate what are the
guidelines laid do'-rn in Pradeep Kumar Biswas case
for a body to be a State under Article 12. They are:-
"(1) Principles laid down in Ajay Hasia are not a rigid
set of principles so that if a body falls within any one of
B them it must ex hypothesi, be considered to be a State
within the meaning of Article 12.
(2) The question in each case will have to be
considered on the basis of facts available as to
whether in the light of the cumulative facts as
c established, the body is financially, functionally,
administratively dominated, by or under the control of
the Government.
(3) Such control must be particular to the body in
D question and must be pervasive.
(4) Mere regulatory control whether under statute or
otherwise would not serve to make a body i:i State."
18. It is in the context of the aforesaid legal position and
the Constitution of ICID, its bye-!aWs were examined by the
E High Court and conclusion arrived at (as already extracted
above) that ICID does not qualify to be a 'State' under Article
12 of the Constitution. ·
19. It would be necessary to keep in mind the aforesaid
legal position qua Article 12, which has been accepted by the
F learned senior counsel forthe appellant, while dealing with the
issue as to whether ICID performs public functions or
discharges public duty which makes if amenable to writ
jurisdiction under Articl~ 226 of the Constitution of India. Thus,
we have to proceed on the premise .that there is no pervasive
G governmental control over the functioning of ICID and merely
because some government officers come on deputation, it has
no conseql:Jence. ,
20. Keeping in view the aforesaid matrix, we proceed to
H the issue which was canvassed before us.
I
•
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 911
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
21. Before we take note of the submissions of Mr. Agnani, A
it would be apt to scan through the judgment of the High Court
to find as to how this issue is dealt with by it.
22. After taking note of certain judgments of this .Court
wherein the principles are laid down as to how the term
'authority' used in Article 226 is to be read in contradistinction B
to the same term used in Article 12 of the Constitution and
what would constitute public function/public duties, the Court
took note of Clause 2.1 and 2.2, which read as follows:
"Mission
c
2.1 The Mission of the International Commission on
Irrigation and Drainage is to stimulate and promote the
development of the arts, sciences and techniques of
engineering, agriculture, economics,,cology and social
science in managing water and land resources for D
irrigation, drainage, flood control and river training
applications, including research and development and
capacity building, adopting comprehensive approaches
and up-to-date techniques for sustainable agriculture in
the world.
E
Scope
2.2 The Commission in achieving its mission may
consider the following objectives:
"(a) Planning, financing, socio-economic and
environmental aspects of irrigation, drainage, flood F
control and undertakings for the reclamation and
improvement of lands as well as the design,
construction and operation of appurtenant engineering
works including dams, reservoirs, canals, drains and
other related infrastructure for storage, conveyance, G
distribution, collection and disposal of water.
(b) Planning, financing, socio-economic and
environmental aspects of schemes for river training
and behaviour, flood control and protection against sea H
912 SUPREME COURT REPORTS [2014] 14 S.C.R.
A water intrusion of agricultural lands as well as the
design, construction and operation of appurtenant
works, except such matters as relate to the design
and construction of large dams, navigation works and
basic hydrology. '
B (c) Research and development, training and capacity
building in areas related to basic and applied science,
technology, management, design, operation and
main~enance of irrigation, drainage, flood control, river
training improvement and land reclamation ..
c (d) Facilitation of international inputs required by the
developing countries, particularly the low income
countries lagging in the development of irrigation and
drainage~
D (e) Promotion of the development and systematic
manage'ii1ent of sustained irrigation and drainage
systems.
(f) Pooling of international knowledge on the topics
related to irrigation, drainage and flood control and
E making it available worldwide.
(g) Addressing of international problems and
' challenges posed by irrigation, drainage and flood
control works and promoting evolution of suitable
remedial measures. •
F (h) Promoting savings in use of water for agriculture.
(i) Promoting equity including gender equity between
users and beneficiaries of irrigation, drainage and
flood control systems. '
G (j) Promotion of preservation and improvement of soil
and water quality of irrigated lands."
23. From the aforesaid it transpires that !CID has been
established as a scientific, technical, professional and voluntary
non-governmental international organization dedicated to
H enhance the worldwide supply of food and fibre for all people
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 913
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
. by improving water and land management of the productivity A
of irrigated and drained lands so that the appropriate
management of water, environment and th!:! application of
irrigation, drainage and flood control techniques. In the opinion
of the High Court, these functions are not similar to or closely
related to those performed by the State in its sovereign B
capacity. The activities undertaken by ICID, a non-
governmental organization, do not actually partake the nature
of public duty or State action and there was absence of public
element. The High Court also held that duties disc~arged do
not have a positive application of public nature as ICID carries c
on voluntary activities, which many a non-governmental
organizations perform.
24. It was argued by Mr. Agnani, learned senior counsel
appearing for the appellant, that the High Court grossly erred
in holding a society registered in India as international body D
when the settled law was that once incorporated in an Act of
country, the body was amenable to law of the said country even
if its (i) activities were spread abroad (or beyond territorial
boundary of the country) or subscribers of Memorandum of
Association (MOA) and office bearers, etc. including the E
foreigners; (ii) ICID was not granted any international status
by Government of India under UN Privileges and Immunities
Act; and (iii) ICID was not listed as an international body in the
Government of India, Ministry of External Affairs list of
international organizations in India. F
25. Referring to the judgment" in Mis. Zee Telefilms Ltd.
(supra), Mr. Agnani's submission was that in that case the
Constitution Bench had held that if the function of the body
were akin to State functions, the aggrieved party could always
seek remedy by way of writ petition under Article 226 of the G
Constitution even if the body was not the State. According to
him, the High Court omitted to refer to its following functions
laid down by the Government of India in 1948 and incorporated
in the MOA of ICID as the objects and the means of
H
914 SUPREME COURT REPORTS [2014] 14 S.C.R.
A accomplishing these objects:
"To encourage progress in· design, construction,
maintenance and operation cif large and small irrigation
works and canals (including navigation canals); to bring
together information thereon;' and to study all questions
B relating thereto." · · •
t
He argued that the design, construction, maintenance
and operation of irrigation works are functions of State Irrigation
Departments, duly supported by.the Ministry of Irrigation. The
Ministry does not directly execute these works but only
C facilitates their execution and its facilitating activities do not
take it away from the ambit of State functions. ICID also works
as Secretariat and its above functions were akin to State
functions. Para 31 of the Constitution Bench decision in Mis.
. Zee Telefilms Ltd. (supra), while referring to the decision in
0 Shri Anadi Mukta Sadguru Shree Muktajee
Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust
& Ors. v. V.R. Rudani & Ors.s, has further said that form of
. . '
body concerned is not very much relevant and what is relevant
I " , l '· •
is the nature of duty imposed on the body. Thus, according to
E him, the writ against ICID was admissible 'on account of its
ab~ve defined nature of duty. '. , .
He further argued that, in fact, the learned Single Judge
had admitted that functions of IClD were of relevance and value
F to public and Government which itself shows public nature of
its functions, but writ was denied saying they .were not
intrinsically public in nature when ho verdict of this Court ever
classified a public function into intrinsic and non-intrinsic.
26. His next submission was that the High Court also did
G not discuss the MOA of ICID, though it was ni;icessary to deal
with the same while deciding an issue of this nature. His other
related argument was predicated on the judgment Of this Court
iri Anadi Mukta Sadguru (supra). He particularly referred to
para 14 of the said judgment wherein this Court ruled that
H '(1989) 2 sec 691
K.K. SAKS ENA v. INTERNATIONAL COMMISSION ON 915
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
mandamus cannot be refused to aggrieved party if service A
conditions were not purely of private nature.· His submission
was that the High Court, in analyzing admissibility of writ under
Article 226 of the Constitution, has neglected the service
conditions of ICID, which from outset include the pay as paid
in Government of India, fundamental and supplementary rules B
of Government of India, permanency, lien, deputation of
Government servants etc. as in Government sponsored
societies.
He concluded his submissions by insisting that this Court
should accept that ICID, being a body incorporated in India, C
discharged public function and was amenable to writ
jurisdiction under Article 226 of the Constitution of India. When ·
the Government had laid down its functions, ICID could not be
a private body and the appellant, according to the note on his
selection as new Secretary of ICID, was appointed to a public D
office and ICID, by its own admission, was a Government
.sponsored society.
27. Learned counsel for respondent No.1, on the other
hand, placed heavy reliance upon the reasons given by the
High Court in its judgment and submitted that every aspect of E
the matter has been lucidly and convincingly dealt with in the
impugned judgment, which was rendered keeping in view the
principles laid down by this Court and, therefore, it would not
warrant any interference.
F
28. We have given our thoughtful consideration to the
arguments of learned counsel forthe parties.
29. If the authority/body can be treated as a 'State' within
the meaning of Article 12 of the Constitution of India, indubitably
writ petition under Article 226 would be maintainable against G
such an authority/body for enforcement of fundamental and
other rights. Article 12 appears in Part Ill of the Constitution,
which pertains to 'Fundamental Rights'. Therefore, the
definition contained in Article 12 is for the purpose of
application of the provisions contained in Part Ill. Article 226 H
916 SUPREME COURT REPORTS (2014] 14 S.C.R.
A of the Constitution, which deals with powers of High Courts to
issue certain writs, inter a/ia, stipulates that every High Court
has the power to issue directions, orders or writs to any person
or authority, including, in appropriate cases, any Government,
for the enforcement of any of the rights conferred by Part Ill
B and for any other purpose.
30. In this context, when we scan through the provisions
of Article 12 of the Constitution, as per the definition contained
therein, the 'State' includes the Government and Par1iament of
India and the Government and Legislature of each State as
C well as "all local or other authorities within the territory of India
or under the control of the Government of India". It is in this
context the question as to which body would qualify as 'other
authority' has come up for consideration before this Court ever
since, and the tesUprinciples which are to be applied for
D ascertaining as to whether a particular body can be treated as
'other authority' or not have already been noted above. If such
an authority violates the fundamental right or other legal rights
of any person or citizen (as the case may be), writ petition can
be filed under Article 226 of the Constitution invoking the
E extraordinary jurisdiction of the High Court and seeking
appropriate direction, order or writ. However, under Article
226 of the Constitution, the power of the High Court is not
limited to the Government or authority which qualifies to be a
'State' under Article 12. Power is extended to issue directions,
F orders or writs "to any person or authority". Again, this power
of issuing directions, orders or writs is not limited to
enforcement of fundamental rights Conferred by Part Ill, but also
'for any,other purpose'. Thus, power of the High Court takes
within its sweep more "authorities" than stipulated in Article 12
G and the subject matter which can be dealt with under this Article
is also wider in scope.
31. In this context, the first question which arises is as to
what meaning is to be assigned to the expression 'any person
or authority'. By catena of judgments rendered by this Court, it
H
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 917
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
now stands well grounded that the term 'authority' used in Article A
226 has to receive wider meaning than the same very term
used in Article 12 of the Constitution. This was so held in Shri
Anadi Mukta Sadguru (supra). In that case, dispute arose
between the Trust which was managing and running science
college and teachers of the said college. It pertained to B
payment of certain employment related benefits like basic pay
etc. Matter was referred to the Chancellor of the Gujarat
University for his decision. The Chancellor passed an award,
which was accepted by the University as well as the State
Go'ilernment and a direction was issued to all affiliated colleges c
to pay their teachers in terms of the said award. However, the
aforesaid Trust running the science college did not implement
the award. Teachers filed the writ petition seeking mandamus
and direction to the trust to pay them their dues of salary,
allowances, provident fund and gratuity in accordanc~ D
therewith. It is in this context an issue arose as to whether writ
petition under Article 226 of the Constitution was maintainable
against the said Trust which was admittedly not a statutory body
or ai:ithority under Article 12 of the Constitution as it was a
private trust running an educational institution. The High Court E
held that the writ petition was maintainable and said view was
upheld by this Court in the aforesaid judgment. The discussion
which is relevant for our purposes is contained in paras 14 to
19 However, we would like to reproduce paras '14, 16 and
19, w,hich read as under: F
"14. If the rights are purely of a private character no
,mandamus can issue. If the management of the college
•is purely a private body with no public duty mandamus
will not lie. These are two exceptions to Mandamus. But
once these are absent and when the party has no other G
equally convenient remedy, mandamus cannot be
denied. It has to be appreciated that the appellants-trust
was managing the affiliated college to which public
money is paid as Government aid. Public money paid
as_ Government aid plays a major role in the control, H
918 SUPREME COURT REPORTS [2014] 14 S.C.R.
A maintenance and working of educational institutions. The
aided institutions like Government institutions discharge
.1• public function by way of imparting education to students.
They are subject to the rules and ,regulations of the
affiliating University. Their activities are closely
B supervised by the University authorities. Employment in
such institutions, therefore, is not devoid of any public
character. (See- The Evolving Indian Administrative Law
by M.P:Jain (1983) p.266). So are the service conditions
of the academic,staff. When the University takes a
c decision regarding their pay scales, it will be binding on
' the management. The service conditions of the
academic staff are, therefore, 1not purely of a private
character. It has super-added protection by University
decisions creating a legal right-duty relationship between
D . the staff and the management. When there is existence
of this relationship, mandamus cannot be refused to the
aggrieved party.
xx xx xx
16. There, however, the prerogative writ of mandamusmus
E · (sic) confined only to public authorities to compel
performance of public duty. The 'public authority' for them
mean\:, every body which is ·created by statute - and
whose powers and duties are defined by statute. So
Government departments, local authorities, police
F authorities, and statutory undertakings and corporations,
are all 'public authorities;. But there is no such limitation
for our High Courts to issue the writ 'in the nature of
mandamus'. Article·226 c6nfers wide powers on the High
Court to issue writs in the nature of prerogative writs.
G This is a striking departure from the English law. Under
Article 226, writs can be issued to 'any person or
,, authority'. It can be issued "for the enforcement of any of
the fundamental rights and for any other purpose".
xx xx xx
H
K.K. SAKSENAv. INTERNATIONALCOMMISSION ON 919
IRRIGATION AND DRAINAGE (A. K. SIKRI, J.]
19. The term "authority" used in Article 226, in the context, A
must receive a liberal meaning like the term in Article
12. Article· 12 is relevant only for the purpose of
enforcement offundamental rights under Art.32. Article
226 confers power on the High Courts to issue writs for
enforcement of the fundamental rights as well as non- B
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 C
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. o
cannot be denied."
32. In para 14, the Court spelled out two exceptions to
the writ of mandamus, viz. (i) if the rights are purely of a private
character, no mandamus can issue; and (ii) ifthe management
of the college is purely a private body "with no public duty", E
mandamus will not lie. The Court clarified that since the Trust
in the said case was an aiding institution, because of this
reason, it discharges public function, like Government
institution, by way of imparting education to students, more
particularly when rules and regulations of the affiliating F
University are applicable to such an institution, being an aided
instiiution. In such a situation, held the Court, the service
conditions of academic staff were not purely of a private
character as the staff had super-aided protection by
University's decision creating a legal right and duty G
relationship between the staff and the management.
Further, the Court explained in para 19 that the term 'authority'
used in Article 226, in the context, would receive a liberal
meaning unlike the term in Article 12, inasmuch asArticle 12
was relevant only for the purpose of enforcement of fundamental H
920 SUPREME COURT REPORTS [2014] 14 S.C.R.
A rights under Article 31 , whereas Article 226 confers power on
the High Courts to issue writs not only for enforcement of
fundamental rights but also non-fundamental rights. What is
relevant is the dicta of the Court that the term 'authority'
appearing in Article 226 of the Constitution would cover any
B other person or body performing public duty. The guiding factor,
therefore, is the nature of duty imposed on such a body, namely,
public duty to make it exigible to Article 226.
33. In K. Krishnamacharyu/u & Ors: v. ·Sri
Venkateswara Hindu College of Engineering & Anr. 6 , th is
C Court again emphasized that where there is an interest created
by the Government in an institution to impart education, which
is a fundamental right of the citizens, the teachers who impart
education get an element of public interest in performance of
their duties. In such a situation, remedy provided under Article
D 226 would be available to the teachers. The aforesaid two
cases pertain to educational institutions and the function of
imparting education was treated as the performance of public
duty, that too by those bodies where the aided institutions were
discharging the said functions like Government institutions and
E the interest was created by the Government in such institutions
to impart education.
34. In G Bassi Reddyv. lntemational Crops Research
Institute &Anr. 7 , the Court was concerned with the nature of
function performed by a research institute. The Court was to
F examine if the function performed by such research institute
would be public function or public duty. Answering the question
in the negative in the said case, the Court made the following
pertinent observations:
"28 ... Although, it is not easy to define what a public
G
function or public duty is, it can reasonably be said that
or
such functions are similar. to closely related to those
performable by the State in its sovereign capacity. The
. primary activity of ICRISAT is to conduct research and
H '(1997) 3 sec 571
'(2003) 4 sec 225
K.K. SAKSENAv. INTERNATIONALCOMMISSION ON 921
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
training programmes in the sphere of agriculture purely A
on a voluntary basis. A service voluntarily undertaken
cannot be said to be a public duty. Besides ICRISAT
has a role which extends beyond the territorial boundaries
of India and its activities are designed to benefit people
from all over the world. While the Indian public may be B
the beneficiary of the activities of the institute, it certainly
cannot be said that the ICRISAT owes a duty to the Indian
public to provide research and training facilities."
Merely because the activity of the said research institute
enures to the benefit of the Indian public, it cannot be a guiding C
factor to determine the character of the Institute and bring the
same within the sweep of 'public function or public duty'. The
Court pointed out:
"28 ... ln Praga Tools Corporation v. C.V. lmanual, AIR 1960
(sic -1969) SC 1306, the Court construed Art. 226 to 0
hold that the High Court could issue a writ of mandamus"
to secure the performance of the duty or statutory duty"
in the performanee of which the one who applies for it
has a sufficient legal interest". The Court also held that:
E
"... an application for mandamus will not lie for an order
of reinstatement to an office which is essentially of a
private character nor can such an application be
maintained to secure perfonnance of obligations owed
by a company towards its workmen or to resolve any F
private dispute. (See Schan Lal v. Union of India, 1957
SCR 738),"
35. Somewhat more pointed and lucid discussion can
be found in the case of Federal Bank Ltd. v. Sagar Thomas
& Ors. 8 , inasmuch as in that case the Court culled out the G
categories of body/ persons who woul~ be amenable to writ
jurisdiction of the High Court. This can be found in para 18 of
the said judgment, specifying eight categories, as follows:
'(2003) 1o sec 733 H
922 SUPREME COURT REP,ORTS [2014] 14 S.C.R.
A "18. From the decisions r~ferred to above, the position
that emerges is that a writ petition under Article 226 of
the Constitution of India may be maintainable against (i)
the State (Government); (ii) an authority; (iii) a statutory
body; (iv) an instrumentality or agency of the State; (v) a
B company which is financed and owned by the State; (vi)
a private body run substartially on State funding; (vii) a
private body discharging public duty or positive obligation
of public nature; and (viii) a person or a body under
liability to discharge any function under any statute, to
C compel it to perform such a statutory function."
v.
36. In Binny Ltd. & Anr. II. Sadasivan & Ors; 9 the
Court clarified that though writ can be issued against" any
private body or person, the scope of mandamus is limited to
enforcement of public duty. It is the nature of duty performed
D by such person/body which is the determinative factor as the
Court is to enforce the said duty and the identity of authority
against whom the right is sought is not relevant. Such duty, the
Court clarified, can either be statutory
. ;J
or even otherwise, but,
there has to be public law element in the action of that body.
E 37. Reading of the categorization given in Federall!.Jank
Ltd. (supra), one can find that three types of private bodies
can still be amenable to writ jurisdiction under Article 226 of
the Constitution, which are mentioned at serial numben;i{-vi) to
(viii) in para 18 of the judgment'extracted above.
F
38. What follows from a minute and careful reading of
the aforesaid judgments of this Court is that if a person or
authority is a 'State' within the meaning ofArticle 12 of the
Constitution,
.
admittedly a writ , under- Article
. petition -
226
- would
.G lie against such a person or body. However, we may add that
even in such cases writ would not lie to enforce private law
rights. There are catena of judgments on this aspect and it is
not necessary to refer to those judgments as that is the basic
principle of judicial review of an action under the administrative
H '(2005) 6 sec 657
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 923
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
law. Reason is obvious. Private law is that part of a legal A
system which is a part of Common Law that involves
relationships between individuals, such as law of contract or·
·torts. Therefore, even if writ petition would be maintainable
against an authority, which is 'State' under Article 12 of the
Constitution, before issuing any writ, particularly writ of B
mandamus, the Court has to satisfy that action of such an
authority, which is challenged, is in the domain of public law as
distinguished from private law.
39. Within a couple of years of the framing of the
Constitution, this Court remarked in Election Commission C
of India v. Saka Venkata Subba Rao 10 that administrative
law in India has been shaped in the English mould. Power to
issue writ or any order of direction for 'any other purpose' has
been held to be included in Article 226 of the Constitution 'with
a view apparently to place all the High Courts in this country in D
somewhat the same position as the Court of the King's Bench
in England. It is for this reason ordinary 'private law remedies'
are not enforceable through extraordinary writ jurisdiction, even
though brought against public authorities (See -Administrative
Law; 8'" Edition; H.W.R. Wade&. C.F. Forsyth, page 656). In a E
number of decisions, this Court ha held that contractual and
commercial obligations are enforceable only by ordinary action
and not by judicial review.
40. On the other hand, even if a person or authority does
. not come within the sweep of Article 12 of the Constitution, but F
is performing public duty, writ petition can lie and writ of
mandamus or appropriate writ can be issued. However, as
noted in Federal Bank Ltd. (supra), such a private body should
either run substantially on State funding or discharge public
duty/positive obligation of public nature or is under liability to G
discharge any function under any statute, to compel it to
perform such a statutory function.
"AIR 1953 SC 210 H
924 SUPREME COURT REPORTS [2014] 14 S.C.R.
A 41. In the present case, since ICID is not funded by the
Government nor it is discharging any function under any statute,
the only question is as to whether it is discharging public duty
or positive obligation of public nature. It is clear from the
reading of the impugned judgment, the High Court was fully
B conscious of the principles laid down in the aforesaid
judgments, cognizance whereof is duly taken by the High Court.
Applying the test in the case at hand, namely that of ICID, the
High Court opined that it was not discharging any public
function or public duty, which would make it amenable to the
C writ jurisdiction of the High Court under Article 226. The
discussion of the High Court is contained in paras 33 to 35
and we reproduce the same for the purpose of our appreciation:
"33. On a perusal of the preamble and the objects, it is
clear as crystal that the respondent has been established
D as a Scientific, Technical, Professional and Voluntary
Non-Governmental International Organization, dedicated
to enhance the world-wide supply of food and fibre for all
people by improving water and land management and
the productivity of irrigated and drained lands so that the
E appropriate management of water, environment and the
application of irrigation, drainage and flood control
techniques. It is required to consider certain kind of
objects which are basically a facilitation process. It
cannot be said that the functions that are carried out by
F ICID are anyway similar to or closely related to those
performable by the State in its sovereign capacity. It is
fundamentally in the realm of collection of data, research,
holding of seminars and organizing studies, promotion
of the development and systematic management of
G sustained irrigation and drainage systems, publication
of newsletter, pamphlets and bulletins and its role extends
beyond the territorial boundaries of India. The
memberships extend to participating countries and
sometimes, as by-law would reveal, ICID encourages the
H participation of interested national and nonOmember
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 925
IRRIGATION AND DRAINAGE [AK. SIKRI, J.]
countries on certain conditions. A
34. As has been held in the case of Federal Bank Ltd.
(supra), solely because a private company carries on
banking business, it cannot be said that it would be
amenable to the writ jurisdiction. The Apex Court has
opined that the provisions of Banking Regulation Act and B
other statutes have the regulatory measure to play. The
activities undertaken by the respondent-society, a non-
governmental organization, do not actually partake the .
nature of public duty or state actions. There is absence
of public element as has been stated in V.R. Rudani C
and others (supra) and Sri Venkateswara Hindu
College of Engineering and another (supra). It also
does not discharge duties having a positive application
of public nature. It carries on voluntary activities which
many a non-governmental organizations perform. The D
said activities cannot be stated to be remotely connected
with the activities of the State. On a scrutiny of the
constitution and by-laws, it is difficult to hold that the
respondent-society has obligation to discharge certain
activities which are statutory or of public character. The E
concept of public duty cannot be construed in a vacuum.
A private society, in certain cases, may be amenable to
the writ jurisdiction if the writ court is satisfied that it is
necessary to compel such society or association to
enforce any statutory obligation or such obligations of F
public nature casting positive public obligation upon it.
35. As we perceive, the only object of the ICID is for
promoting the development and application of certain
aspects, which have been voluntarily undertaken but the
said activities cannot be said that ICID carries on public G
duties to make itself amenable to the writ jurisdiction
under Article 226 of the Constitution."
42. We are in agreement with the aforesaid analysis by
the High Court and it answers all the arguments raised by the H
926 SUPREME COURT REPORTS (2014] 14 S.C.R.
A learned senior counsel appearing for the appellant. The
learned counsel argued that once the society is registered in
India it cannot be treated as international body. This argument
is hardly of any relevance in determining the character of ICID.
The foyus has to be on the function discharged by ICID, namely,
B whether it is discharging any public duties. Though much
mileage was sought to be drawn from the function incorporated
in the MOAof ICID, namely, to encourage progress in design,
construction, maintenance and operation of large and small
irrigation works and canals etc., that by itself would not make
c it a public duty cast on ICID. We.cannot lose sight of the fact
that ICID is a private body which has no State funding. Further,
no liability under any statute is cast upon ICID to dischar.ge the
aforesaid function. The High Court is right in its observation
that even when object of ICID is to promote the development
o and application of certain aspects, the same are voluntarily
undertaken and there is no obligation to discharge certain
activities which are statutory or of public character.
43. There is yet another very significant aspect which
needs to be highlighted at this juncture. Even if a body
E performing public duty is amenable to writ jurisdiction, all its
decisions are not subject to judicial review, as already pointed
out above. Only those decisions which have public element
therein can be judicially reviewed under writ jurisdiction. Jn
The Praga Toots Corporation v. Shri C.A. /manual & Ors. 11 ,
F as already discussed above, this Court held that the action
challenged did not have public element and writ of mandamus
could not be issued as the action was essentially of a private
character. That was a case where the concerned employee ·
was seeking reinstatement to an office ..
G 44. We have also pointed out above that in Sata Venkata
Subba Ra.o (supra) this Court had observed that
administrative law in India has been shaped on the lines of
English law. There are catena of judgments in English courts
H "(1969) 1_ sec 585 •
K.K. SAKSENA v. INTERNATIONAL COMMISSION ON 927
IRRIGATION AND DRAINAGE [A. K. SIKRI, J.]
taking same view, namely, contractual and commercial A
obligations are enforceable only by ordinary action and not by
judicial review. In Queen (on the application of Hopley) v,
Liverpool Health Authority & Ors. (unreported) (30 July
2002), Justice Pithford helpfully set outthree things that had to
be identified when considering whether a public. body with B
statutory powers was exercising a public function amenable
to judicial review or a private function.· They are: (i) whether
the defendant was a public body exercising statutory powers;
(ii) whether the function being performed in the exercise of
those powers was a public or a private one; and (iii) whether C
the defendant was performing a public duty owed to the
claimant in the particular circumstances under consideration.
45. Even in Anadi Mukta Sadguru (supra), which took
a revolutionary turn and departure from the earlier views, this
Court held that 'any other authority' mentioned in Article 226 is D
riot confined to statutory authorities or instrumentalities of the
State defined under Article 12 of the Constitution, it also
emphasized that if the rights are purely of a private character,
no mandamus could issue.
46. It is trite that contract of personal service cannot be E
enforced. There are three exceptions to this rule, namely: (i)
when the employee is a public servant working under the Union
of India or State; (ii) when such an employee is employed by
an authority/ body which is a State within the meaning of Article
12 of the Constitution of India; and (ii) when such an employee F
is 'workmen' within the meaning of Section 2(s) of the Industrial
Disputes Act, 1947 and raises a dispute regarding his
termination by invoking the machinery under the said Act. In
the first two cases, the employment ceases to have private
law character and 'status' to such an employment is attached. G
In the third category of cases, it is the Industrial Disputes Act
which confers jurisdiction on the labour court/industrial tribunal
to grant-reinstatement in case termination is found fo be illegal.
H
928 SUPREME COURT REPORTS [2014] 14 S.C.R.
A 47. In the present case, though we have held that ICID is
not discharging any public duty, even otherwise, it is clear that
the impugned action does not involve public law element and
no 'public law rights' have accrued in favour of the appellant
which are infringed. The service conditions of the appellant
B are not governed in the same manner as was the position in
Anadi Mu/eta Sadguru (supra).'
48. We, thus, do not find any infirmity in a well considered
judgment of the High Court. The'appeal, being devoid of any
merits, is, accordingly, dismissed leaving the parties to bear
C their own costs. ·
Kalpana K. Tripathy Appeal dismissed.
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