RAMAKRISHNA MISSION & ANR.versusKAGO KUNYA & ORS.

452            SUPREME COURT
                         [2019]REPORTS
                                5 S.C.R. 452              [2019] 5 S.C.R.


A                     RAMAKRISHNA MISSION & ANR.
                                       v.
                           KAGO KUNYA & ORS.
                        (Civil Appeal No. 2394 of 2019)
B                            FEBRUARY 28, 2019
              [DR DHANANJAYA Y CHANDRACHUD AND
                      HEMANT GUPTA, JJ.]
             Constitution of India: Arts.12 and 226 – Whether appellant-
      institution is an authority and hence amenable to writ jurisdiction –
C
      Respondent (employee of the hospital run by the appellant) filed
      petition u/Art. 226 challenging communication by the appellant
      regarding his superannuation – Preliminary objection as regards
      maintainability of the petition as the appellant or the hospital were
      not a State within meaning of Art. 12 – Single Judge of High Court
D     held that appellants were State within meaning of Art. 12 and decided
      the case on merit – Division Bench of High Court held that the
      appellants fell within category of ‘other authorities’ u/Arts. 12 and
      226 and hence amenable to writ jurisdiction – On appeal, held:
      The character of an organization as a ‘public authority’ is dependent
      on the circumstances of the case – Before an organization can be
E
      held to discharge a public function, the functions must be of a
      character that is closely related to functions which are performed
      by the State in its sovereign capacity – There is no governmental
      control in the functioning, administration and day to day
      management of the appellants – Therefore, the hospital does not
F     come within the ambit of a public authority – The conditions of
      service of the employees of the hospital are governed by service
      rules which are framed by the Mission without the intervention of
      any governmental body – Thus, contracts of purely private nature
      would not be subject to writ jurisdiction – Therefore, appellants
      are not amenable to writ jurisdiction as an ‘Authority’.
G
            Allowing the appeal, the Court
           HELD: 1. The hospital is a branch of the respondent
      (Ramakrishna Mission) and is subject to its control. The activities
      undertaken by the Mission are voluntary, charitable and non-
H
                                      452
         RAMAKRISHNA MISSION v. KAGO KUNYA                           453


profit making in nature. These activities are not closely related    A
to those performed by the State in its sovereign capacity nor do
they partake of the nature of a public duty. [Para 19] [461-C-F]
      2. The Governing Body of the Mission is constituted by
members of the Board of Trustees of Ramakrishna Math and is
vested with the power and authority to manage the organization.      B
The properties and funds of the Mission and its management
vest in the Governing Body. Any person can become a member
of the Mission if elected by the Governing Body. Members on
roll form the quorum of the annual general meetings. The
Managing Committee comprises of members appointed by the
Governing Body for managing the affairs of the Mission. Under        C
the Memorandum of Association and Rules and Regulations of
the Mission, there is no governmental control in the functioning,
administration and day to day management of the Mission. The
conditions of service of the employees of the hospital are
governed by service rules which are framed by the Mission            D
without the intervention of any governmental body. [Para 20]
[461-G-H; 462-A-B]
      3. Even if the body discharges a public function in a wider
sense, there is no public law element involved in the
enforcement of a private contract of service. In running the         E
hospital, Ramakrishna Mission does not discharge a public
function. Undoubtedly, the hospital is in receipt of some element
of grant. The grants which are received by the hospital cover
only a part of the expenditure. The terms of the grant do not
indicate any form of governmental control in the management or
day to day functioning of the hospital. The nature of the work       F
which is rendered by Ramakrishna Mission, in general,
including in relation to its activities concerning the hospital in
question is purely voluntary. [Para 30] [467-C-F]
      4. Before an organisation can be held to discharge a public
function, the function must be of a character that is closely        G
related to functions which are performed by the State in its
sovereign capacity. There is nothing on record to indicate that
the hospital performs functions which are akin to those solely
performed by State authorities. Medical services are provided
by private as well as State entities. The character of the           H
454            SUPREME COURT REPORTS                     [2019] 5 S.C.R.


A     organisation as a public authority is dependent on the
      circumstances of the case. In setting up the hospital, the
      Mission cannot be construed as having assumed a public
      function. The hospital has no monopoly status conferred or
      mandated by law. That it was the first in the State to provide
      service of a particular dispensation does not make it an
B
      ‘authority’ within the meaning of Article 226. State Governments
      provide concessional terms to a variety of organisations in order
      to attract them to set up establishments within the territorial
      jurisdiction of the State. The State may encourage them as an
      adjunct of its social policy or the imperatives of economic
C     development. The mere fact that land had been provided on a
      concessional basis to the hospital would not by itself result in the
      conclusion that the hospital performs a public function. In the
      present case, in absence of State control in the management of
      the hospital the hospital does not come within the ambit of a
      public authority. [Para 31] [467-F-H; 468-A-C]
D
            5. Regulation by a statute does not constitute the hospital
      as a body which is constituted under the statute. Individuals and
      organisations are subject to statutory requirements in a whole
      host of activities. That by itself cannot be conclusive of whether
      such an individual or organisation discharges a public function.
E     Thus, contracts of a purely private nature would not be subject
      to writ jurisdiction merely by reason of the fact that they are
      structured by statutory provisions. The only exception to this
      principle arises in a situation where the contract of service is
      governed or regulated by a statutory provision.
F     [Paras 32, 33] [468-E-F; 469-C-D]
            6. The Clinical Establishments (Registration and
      Regulation) Act 2010 was enacted to provide for the regulation
      and registration of clinical establishments with a view to prescribe
      minimum standards of facilities and services. The Act, inter alia,
G     stipulates conditions to be satisfied by clinical establishments
      for registration. However, the Act does not govern contracts of
      service entered into by the Hospital with respect to its
      employees. These fall within the ambit of purely private contracts,
      against which writ jurisdiction cannot lie. The sanctity of this
      distinction must be preserved. [Paras 32, 34] [468-B; 469-E-F]
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         RAMAKRISHNA MISSION v. KAGO KUNYA                          455


     7. The Division Bench of the High Court was not justified      A
in coming to the conclusion that the appellants are amenable to
the writ jurisdiction under Article 226 of the Constitution as an
authority within the meaning of the Article. Neither the
Ramakrishna Mission, nor the hospital would constitute an
authority within the meaning of Article 226 of the Constitution.
                                                                    B
[Paras 35, 36] [469-F-H]
     Satyabrata Chakraborty v. State of Arunachal Pradesh
     2005 (4) GLT 150; Andi Mukta Sadguru Shree
     Muktajee Vandas Swami Suvarna Jayanti Mahotsav
     Smarak Trust v. V R Rudani (1989) 2 SCC 691 :
     [1989] 2 SCR 697 ; VST Industries Ltd v. VST                   C
     Industries Workers’ Union (2001) 1 SCC 298 : [2000]
     5 Suppl. SCR 438 ; G Bassi Reddy v International
     Crops Research Institute (2003) 4 SCC 225 : [2003] 1
     SCR 1174 ; Ramesh Ahluwalia v. State of Punjab
     (2012) 12 SCC 331 : [2012] 12 SCR 315 ; Federal                D
     Bank Ltd. v Sagar Thomas (2013) 10 SCC 733 :
     [2003] 4 Suppl. SCR 121– relied on.
     Federal Bank Ltd. v Sagar Thomas (2013) 10 SCC 733:
     [2003] 4 Suppl. SCR 121 ; Binny Ltd. v V Sadasivan
     (2005) 6 SCC 657 : [2005] 2 Suppl. SCR 421 ;                   E
     K K Saksena v International Commission on Irrigation
     and Drainage (2015) 4 SCC 670 ; Ajay Hasia v Khalid
     Mujib Sehravardi (1981) 1 SCC 722 : [1981] 2 SCR
     79; Pradeep Kumar Biswas v. Indian Institute of
     Chemical Biology (2002) 5 SCC 111 : [2002] 3 SCR
     100; Jatya Pal Singh v. Union of India (2013) 6 SCC            F
     452 : [2013] 2 SCR 970 – referred to.
                       Case Law Reference
2005 (4) GLT 150                relied on           Para 13
[1989] 2 SCR 697                relied on           Para 13         G
[2000] 5 Suppl. SCR 438         relied on           Para 24
[2003] 1 SCR 1174               relied on           Para 25
[2012] 12 SCR 315               relied on           Para 26
                                                                    H
456             SUPREME COURT REPORTS                         [2019] 5 S.C.R.


A     [2003] 4 Suppl. SCR 121                 relied on           Para 27
      [2005] 2 Suppl. SCR 421                 referred to         Para 28
      (2015) 4 SCC 670                        referred to         Para 29
      [1981] 2 SCR 79                         referred to         Para 38
B     [2002] 3 SCR 100                        referred to         Para 38
      [2013] 2 SCR 970                        referred to         Para 38


              CIVIL APPELLATE JURISDICTION: Civil Appeal No.2394 of
C     2019.
           From the Impugned Interim Order dated 06.04.2018 of the Gauhati
      High Court, Itanagar Bench in W.A. No.25(AP)/2017
           Abhishek Manu Singhvi, K.V. Viswanathan, Sr. Advs., Arijit
      Mazumdar, Amit Bhandari, Arunabha Deb, Shambo Nandy, Abhinav
D     Mukerji, Deepan Kumar Sarkar, Advs. for the Appellants.
            A. Tewari, Ms. Eliza Bar, Shree Pal Singh, Ms. Priyanka Das,
      Vibhu Shankar Mishra, Ms. Ragni Pandey, Raj Bahadur, Mrs. Anil
      Katiyar, Advs. for the Respondents.

E             The Judgment of the Court was delivered by
              DR DHANANJAYA Y CHANDRACHUD, J.
              1. Leave granted.
             2 . This appeal has arisen from the judgment of a Division Bench
      of the Gauhati High Court in a Writ Appeal against a judgment of a
F
      learned Single Judge. The learned Single Judge, by a judgment dated 7
      September 2016, held that Ramakrishna Mission is ‘State’ within the
      meaning of Article 12 of the Constitution of India. In appeal, the Division
      Bench held that while Ramakrishna Mission may not be ‘State’ within
      the meaning of Article 12 in the strict sense of the term, nonetheless its
G     hospital at Itanagar performs a public duty and in consequence would be
      amenable to the writ jurisdiction under Article 226 of the Constitution on
      a liberal interpretation of the expression ‘authority’ in that Article.
             3. The first respondent joined the Ramakrishna Mission Hospital
      at Itanagar on 15 March 1980 as a General Duty Worker. He was
H
          RAMAKRISHNA MISSION v. KAGO KUNYA                                   457
          [DR DHANANJAYA Y CHANDRACHUD, J.]

regularised with effect from 1 August 1980 by a letter dated 23 July          A
1980. On 31 March 1982, the first respondent was promoted to the
substantive post of Nursing Aid. He was made permanent on 13 April
1984.Subsequently on 31 December 2005, he was promoted as an
Office Assistant with effect from 1 October 2005.
       4. The conditions of service of the employees of the hospital are      B
governed by the Service Rules. Among them is Rule 18 which provides
for superannuation in the following terms:
      “18. SUPERANNUATION (RETIREMENT):
      (i) A permanent employee/staff shall normally retire from the
      services of the Hospital after 35 years of service or an attaining      C
      the age of 60 (sixty) years. Provided further, the Management in
      the service of the Hospital may extend the service of an employee/
      staff even after 35 years of service or he attains the age of 60
      (sixty) years, whichever is earlier, subject to his medical fitness,
      in slots of 1 (one) years at a time.                                    D
      (ii) However, an employee/staff may be retired earlier if in the
      event of suffering from physical or mental incapacity in the
      discharge of his duties provided the physical or mental incapacity
      of the employee/staff is established by a Medical Board duly
      constituted by the Management.”                                         E
       On 31 January 2015, the hospital informed the first respondent
that he would be retiring from service on 24 March 2015 in accordance
with the Service Rules, consequent upon the completion of thirty-five
years of service.
       5. The first respondent instituted a writ petition under Article 226   F
of the Constitution before the Gauhati High Court to challenge the above
communication and sought a writ of mandamus to allow him to continue
in service until he completes thirty-five years of service, counting the
appointment from 31 March 1982 when he was substantively appointed
as a Nursing Aid.
                                                                              G
       6. The appellants raised a preliminary objection to the
maintainability of the petition on the ground that neither Ramakrishna
Mission nor its hospital is ‘State’ within the meaning of Article 12 and
they are not amenable, in any event, to the writ jurisdiction under Article
226 of the Constitution of India.
                                                                              H
458                SUPREME COURT REPORTS                           [2019] 5 S.C.R.


A             7. The learned Single Judge allowed the Writ Petition. While
      rejecting the objections of the appellants to the maintainability of the writ
      petition, the learned Single Judge held that the appellants fall within the
      description of ‘State’ within the meaning of Article 12. A direction was
      issued, on merits, to the hospital to treat the date of appointment of the
      first respondent as 31 March 1982 and not 15 March 1980.
B
             8. In consequence, the first respondent was effectively granted
      an extension of service for two years beyond the date of superannuation
      as computed on the basis of the initial date of joining service. The first
      respondent has been paid his terminal dues on the basis of the date of
      retirement as computed by the hospital.
C
             9. The Writ Appeal by the appellants failed before a Division Bench
      of the High Court. The Division Bench, while dismissing the appeal,
      principally relied upon two circumstances:
              (i) The hospital was availing of funds for a part of its expenditure
D                 and was running a sixty bedded hospital which constitutes a
                  public duty; and
              (ii) There was a decision of a Single Judge of the High Court in
                   Satyabrata Chakraborty v State of Arunachal Pradesh1,
                   holding that Ramakrishna Mission fell with the category of
E                  ‘other authorities’ under Articles 12 and 226 of the
                   Constitution. The High Court held that this decision of the learned
                   Single Judge which had held the field for thirteen years should
                   not be disturbed. It was further held that the appellant is
                   running a very large hospital in the State and utilised public
                   funds for a part of its operation and would be amenable to writ
F                  jurisdiction. While answering the preliminary issues against the
                   appellants, the High Court directed that the appeal be placed
                   for hearing subsequently.
             10. While entertaining the present proceedings, this Court by its
      order dated 19 November 2018 issued notice and granted a stay of the
G     judgment and order of the High Court dated 6 April 2018. In pursuance
      of the order issuing notice, a counter affidavit has been filed on behalf of
      the Union of India through the Ministry of Tribal Affairs as well as by
      the Government of Arunachal Pradesh.
      1
          2005 (4) GLT 150
H
              RAMAKRISHNA MISSION v. KAGO KUNYA                                  459
              [DR DHANANJAYA Y CHANDRACHUD, J.]

      11. The State government, in support of the view which has been            A
taken by the High Court, has submitted that:
        (i) The land over which Ramakrishna Mission Hospital was
            constructed was allotted to the appellants on 12 July 1984 on a
            concessional rate;
        (ii) Subsequently on 4 May 2005, additional land admeasuring 4.66        B
             acres was also allotted on a concessional rate; and
        (iii) The hospital receives grants from the State government.
      12. The counter affidavit filed by the Union of India does not
require to be dealt with, since the Ministry of Tribal Affairs is not            C
concerned with the subject matter of the present appeal.
       13. On behalf of the appellants, it has been submitted by
Dr Abhishek Manu Singhvi, and Mr K V Viswanathan, learned senior
counsel that the High Court in the present case has placed reliance on
the decision of this Court in Andi Mukta Sadguru Shree Muktajee                  D
Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v V R
Rudani2, without noticing the clear distinction in that case both on facts
and law. It was urged that the aforesaid judgment dealt with a case of a
public trust which was managing a college affiliated to a University. The
dispute in regard to the closure of the college and the consequent
non-payment of salaries squarely fell within the purview of the                  E
regulatory provisions contained in the Ordinances of the University. That
apart, it has been submitted that:
        (i) No public duty is performed by the first respondent;
        (ii) Ramakrishna Mission has established and manages the
                                                                                 F
            hospital purely as a voluntary service to society;
        (iii) The conditions of service of the employees of the hospital are
             not governed either by statute or by subordinate legislation and
             hence, there is no public law element involved in enforcing a
             purely private contract of service; and
                                                                                 G
        (iv) As a result of the impugned judgment of the High Court, the
            entire range of activities of Ramakrishna Mission will fall within
            the description of an ‘authority’ within the meaning of Article
            226.
2
    (1989) 2 SCC 691                                                             H
460            SUPREME COURT REPORTS                            [2019] 5 S.C.R.


A            On these grounds, it was sought to be urged that the judgment of
      the High Court is contrary to a line of precedent of this Court, to which
      we will advert a little later. That apart, learned senior counsel submitted
      that each of the circumstances which weighed with the High Court in
      coming to the conclusion that the appellants are amenable to the exer-
      cise of the writ jurisdiction under Article 226 is contrary to the settled
B
      position in law.
              14. On the other hand, Mr A Tewari, learned counsel appearing
      on behalf of the State of Arunachal Pradesh has placed reliance on the
      statement of facts contained in the counter affidavit, as noticed earlier.
      Learned counsel submitted that the Ramakrishna Mission Hospital is
C     the only hospital in the State of Arunachal Pradesh and hence, by virtue
      of its monopoly status, must be held to be amenable to the writ
      jurisdiction under Article 226. That apart, it was urged that the hospital
      receives grants in aid from the State government. The function of
      conducting a hospital in the State of Arunachal Pradesh, it was urged,
D     must be held to be a public function rendering the appellants amenable
      to the jurisdiction of the High Court under Article 226.
            15. The rival submissions fall for consideration.
             16. Ramakrishna Mission runs a 263 bedded hospital at Itanagar.
      The grant in aid which is provided by the State government covers the
E     cost of running 60 beds out of 263 bedded hospital. Relevant factual
      data in regard to the nature and extent of the grants has been placed on
      record. About 32.26 per cent of the total income of the hospital for
      2014-2015, 23.33 for 2015-16 and 22.53 per cent for 2016-17 was from
      the grants provided by the State government. The revenue expenditure,
F     the audited balance sheets and accounts of the hospital indicate that
      35.23 per cent of the expenditure for 2014-2015, 23.83 per cent for
      2015-2016 and 20.57 per cent for 2016-2017 was borne from the fi-
      nances provided by the State government.
             17. In assessing whether the appellants are amenable to the writ
G     jurisdiction under Article 226, we proceed on the basis of the following
      circumstances which have been pressed in aid both on behalf of the
      original petitioner before the High Court and, in response to the present
      appeal, by the State government:
           (i) A portion of the income of the hospital is generated out of the
               grants which are received from the State; and
H
          RAMAKRISHNA MISSION v. KAGO KUNYA                                   461
          [DR DHANANJAYA Y CHANDRACHUD, J.]

     (ii) Land has been made available for the construction of the hospi-     A
          tal by the State government on a concessional rate.
      The grant by the State government covers only a portion, namely,
60 beds out of the 263-beds of the hospital at Itanagar. Significantly, the
State government does not control the day to day functioning of the
hospital. The management of the hospital is exclusively with the              B
Ramakrishna Mission. Since the State government finances through its
grants a portion of the income of the hospital, it requires the audited
accounts to be submitted to the State government for scrutiny.
       18. The basic issue before this Court is whether the functions
performed by the hospital are public functions, on the basis of which a       C
writ of mandamus can lie under Article 226 of the Constitution.
       19. The hospital is a branch of the Ramakrishna Mission and is
subject to its control. The Mission was established by Swami Vivekanand,
the foremost disciple of Sri Ramakrishna Paramhansa. Service to
humanity is for the organisation co-equal with service to God as is           D
reflected in the motto “Atmano Mokshartham Jagad Hitaya Cha”.
The main object of the Ramakrishna Mission is to impart knowledge in
and promote the study of Vedanta and its principles propounded by Sri
Ramakrishna Paramahansa and practically illustrated by his own life
and of comparative theology in its widest form. Its objects include, inter
alia to establish, maintain, carry on and assist schools, colleges,           E
universities, research institutions, libraries, hospitals and take up
development and general welfare activities for the benefit of the
underprivileged/ backward/ tribal people of society without any
discrimination. These activities are voluntary, charitable and non-profit
making in nature. The activities undertaken by the Mission, a non-profit      F
entity are not closely related to those performed by the state in its
sovereign capacity nor do they partake of the nature of a public duty.
       20. The Governing Body of the Mission is constituted by
members of the Board of Trustees of Ramakrishna Math and is vested
with the power and authority to manage the organization. The properties       G
and funds of the Mission and its management vest in the Governing
Body. Any person can become a member of the Mission if elected by
the Governing Body. Members on roll form the quorum of the annual
general meetings. The Managing Committee comprises of members
appointed by the Governing Body for managing the affairs of the
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462            SUPREME COURT REPORTS                           [2019] 5 S.C.R.


A     Mission. Under the Memorandum of Association and Rules and
      Regulations of the Mission, there is no governmental control in the
      functioning, administration and day to day management of the Mission.
      The conditions of service of the employees of the hospital are governed
      by service rules which are framed by the Mission without the
      intervention of any governmental body.
B
             21. In coming to the conclusion that the appellants fell within the
      description of an authority under Article 226, the High Court placed a
      considerable degree of reliance on the judgment of a two judge Bench
      of this Court in Andi Mukta (supra). Andi Mukta (supra) was a case
      where a public trust was running a college which was affiliated to Gujarat
C     University, a body governed by State legislation. The teachers of the
      University and all its affiliated colleges were governed, insofar as their
      pay scales were concerned, by the recommendations of the University
      Grants Commission. A dispute over pay scales raised by the association
      representing the teachers of the University had been the subject matter
D     of an award of the Chancellor, which was accepted by the government
      as well as by the University. The management of the college, in
      question, decided to close it down without prior approval. A writ petition
      was instituted before the High Court for the enforcement of the right of
      the teachers to receive their salaries and terminal benefits in
      accordance with the governing provisions. In that context, this Court
E     dealt with the issue as to whether the management of the college was
      amenable to the writ jurisdiction. A number of circumstances weighed in
      the ultimate decision of this Court, including the following:
           (i) The trust was managing an affiliated college;

F          (ii) The college was in receipt of government aid;
           (iii) The aid of the government played a major role in the control,
                management and work of the educational institution;
           (iv) Aided institutions, in a similar manner as government
               institutions, discharge a public function of imparting education
G              to students;
           (v) All aided institutions are governed by the rules and regulations
               of the affiliating University;
           (vi) Their activities are closely supervised by the University; and
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             RAMAKRISHNA MISSION v. KAGO KUNYA                                        463
             [DR DHANANJAYA Y CHANDRACHUD, J.]

        (vii) Employment in such institutions is hence, not devoid of a               A
            public character and is governed by the decisions taken by the
            University which are binding on the management.
       22. It was in the above circumstances that this Court came to the
conclusion that the service conditions of the academic staff do not
partake of a private character, but are governed by a right-duty relation-            B
ship between the staff and the management. A breach of the duty, it was
held, would be amenable to the remedy of a writ of mandamus. While
the Court recognized that “the fast expanding maze of bodies affecting
rights of people cannot be put into watertight compartments”, it laid
down two exceptions where the remedy of mandamus would not be
available:                                                                            C

         “15. 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…”
                                                                                      D
       23. Following the decision in Andi Mukta(supra),this Court has
had the occasion to re-visit the underlying principles in successive deci-
sions. This has led to the evolution of principles to determine what con-
stitutes a ‘public duty’ and ‘public function’ and whether the writ of
mandamus would be available to an individual who seeks to enforce her
right.                                                                                E

       24. In VST Industries Ltd v VST Industries Workers’ Union3,
a two judge Bench of this Court held that a mere violation of the condi-
tions of service will not provide a valid basis for the exercise of the writ
jurisdiction under Article 226, in a situation where the activity does not
have the features of a public duty. This Court noted:                                 F
         “7. In de Smith, Woolf and Jowell’s Judicial Review of
         Administrative Action, 5th Edn., it is noticed that not all the activities
         of the private bodies are subject to private law e.g. the activities
         by private bodies may be governed by the standards of public law
         when its decisions are subject to duties conferred by statute or             G
         when, by virtue of the function it is performing or possibly its
         dominant position in the market, it is under an implied duty to act
         in the public interest… After detailed discussion, the learned authors
         have summarised the position with the following propositions:
3
    (2001) 1 SCC 298                                                                  H
464                SUPREME COURT REPORTS                            [2019] 5 S.C.R.


A            (1) The test of whether a body is performing a public function,
      and is hence amenable to judicial review, may not depend upon the source
      of its power or whether the body is ostensibly a ‘public’ or a ‘private’
      body.
                (2) The principles of judicial review prima facie govern the activities
B               of bodies performing public functions.”
                “(3) …In the following two situations judicial review will
                not normally be appropriate even though the body may be
                performing a public function:
                (a) Where some other branch of the law more appropriately
C               governs the dispute between the parties. In such a case,
                that branch of the law and its remedies should and normally
                will be applied; and
                (b) where there is a contract between the litigants. In such
                a case the express or implied terms of the agreement should
D               normally govern the matter. This reflects the normal
                approach of English law, namely, that the terms of a contract
                will normally govern the transaction, or other relationship
                between the parties, rather than the general law. Thus,
                where a special method of resolving disputes (such as
E               arbitration or resolution by private or domestic tribunals)
                has been agreed upon by the parties (expressly or by
                necessary implication), that regime, and not judicial review,
                will normally govern the dispute.”(Emphasis supplied)
             25. In G Bassi Reddy v International Crops Research
F     Institute4, a two judge Bench of this Court dealt with whether the
      International Crop Research Institute for the Semi-Arid Tropics
      (“ICRISAT”) which is a non-profit research and training centre, is
      amenable to the writ jurisdiction under Article 226. The dispute
      concerned the termination of employees of ICRISAT. The Court held
      that only functions which are similar or closely related to those that are
G     performed by the State in its sovereign capacity qualify as ‘public
      functions’ or a ‘public duty’:
                “28. A writ under Article 226 can lie against a “person” if it is a
                statutory body or performs a public function or discharges a public
      4
H         (2003) 4 SCC 225
             RAMAKRISHNA MISSION v. KAGO KUNYA                                     465
             [DR DHANANJAYA Y CHANDRACHUD, J.]

         or statutory duty…ICRISAT has not been set up by a statute nor            A
         are its activities statutorily controlled. Although, it is not easy to
         define what a public function or public duty is, it can reasonably
         be said that such functions are similar to or closely related to
         those performable by the State in its sovereign capacity. The
         primary activity of ICRISAT is to conduct research and training
                                                                                   B
         programmes in the sphere of agriculture purely 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 the beneficiary of the activities of the Institute, it certainly   C
         cannot be said that ICRISAT owes a duty to the Indian public to
         provide research and training facilities.”
      Applying the above test, this Court upheld the decision of the
High Court that the writ petition against ICRISAT was not maintainable.
      26. A similar view was taken in Ramesh Ahluwalia v State of                  D
Punjab5, where a two judge Bench of this Court held that a private body
can be held to be amenable to the jurisdiction of the High Court under
Article 226 when it performs public functions which are normally ex-
pected to be performed by the State or its authorities.
        27. In Federal Bank Ltd. v Sagar Thomas,6 this Court analysed              E
the earlier judgements of this Court and provided a classification of en-
tities against whom a writ petition may be maintainable:
         “18. From the decisions referred 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           F
         authority; (iii) a statutory body; (iv) an instrumentality or agency
         of the State; (v) a company which is financed and owned by
         the State; (vi) a private body run substantially on State
         funding; (vii) a private body discharging public duty or
         positive obligation of public nature; and (viii) a person or a            G
         body under liability to discharge any function under any
         statute, to compel it to perform such a statutory function.”
                                                         (emphasis supplied)
5
    (2012) 12 SCC 331
6
    (2013) 10 SCC 733                                                              H
466                SUPREME COURT REPORTS                          [2019] 5 S.C.R.


A           28. In Binny Ltd. v V Sadasivan7, a two judge Bench of this
      Court noted the distinction between public and private functions. It held
      thus:
                “11…It is difficult to draw a line between public functions and
                private functions when they are being discharged by a purely
B               private authority. A body is performing a “public function” when it
                seeks to achieve some collective benefit for the public or a section
                of the public and is accepted by the public or that section of the
                public as having authority to do so. Bodies therefore exercise
                public functions when they intervene or participate in social or
                economic affairs in the public interest.”
C
                The Bench elucidated on the scope of mandamus:
                “29. However, the scope of mandamus is limited to enforcement
                of public duty. The scope of mandamus is determined by the
                nature of the duty to be enforced, rather than the identity
D               of the authority against whom it is sought. If the private
                body is discharging a public function and the denial of any
                right is in connection with the public duty imposed on such
                body, the public law remedy can be enforced. The duty cast
                on the public body may be either statutory or otherwise and the
                source of such power is immaterial, but, nevertheless, there must
E               be the public law element in such action…There cannot be any
                general definition of public authority or public action. The
                facts of each case decide the point.”
                                                              (emphasis supplied)

F            29. More recently in K K Saksena v International Commission
      on Irrigation and Drainage8, another two judge Bench of this Court
      held that a writ would not lie to enforce purely private law rights.
      Consequently, even if a body is performing a public duty and is amenable
      to the exercise of writ jurisdiction, all its decisions would not be subject
      to judicial review. The Court held thus:
G
                “43. What follows from a minute and careful reading of the
                aforesaid judgments of this Court is that if a person or authority is
                “State” within the meaning of Article 12 of the Constitution,
                admittedly a writ petition under Article 226 would lie against such
      7
          (2005) 6 SCC 657
H     8
           (2015) 4 SCC 670
          RAMAKRISHNA MISSION v. KAGO KUNYA                                   467
          [DR DHANANJAYA Y CHANDRACHUD, J.]

      a person or body. However, we may add that even in such cases           A
      writ would not lie to enforce private law rights. There are a 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 law. The reason is obvious. A
      private law is that part of a legal system which is a part of common
                                                                              B
      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
      mandamus, the Court has to satisfy that action of such an authority,
      which is challenged, is in the domain of public law as distinguished    C
      from private law.”
      Thus, even if the body discharges a public function in a wider
sense, there is no public law element involved in the enforcement of a
private contract of service.
      30. Having analysed the circumstances which were relied upon            D
by the State of Arunachal Pradesh, we are of the view that in running
the hospital, Ramakrishna Mission does not discharge a public function.
Undoubtedly, the hospital is in receipt of some element of grant. The
grants which are received by the hospital cover only a part of the
expenditure. The terms of the grant do not indicate any form of               E
governmental control in the management or day to day functioning of
the hospital. The nature of the work which is rendered by Ramakrishna
Mission, in general, including in relation to its activities concerning the
hospital in question is purely voluntary.
      31. Before an organisation can be held to discharge a public            F
function, the function must be of a character that is closely related to
functions which are performed by the State in its sovereign capacity.
There is nothing on record to indicate that the hospital performs
functions which are akin to those solely performed by State authorities.
Medical services are provided by private as well as State entities. The
character of the organisation as a public authority is dependent on the       G
circumstances of the case. In setting up the hospital, the Mission cannot
be construed as having assumed a public function. The hospital has no
monopoly status conferred or mandated by law. That it was the first in

                                                                              H
468             SUPREME COURT REPORTS                          [2019] 5 S.C.R.


A     the State to provide service of a particular dispensation does not make it
      an ‘authority’ within the meaning of Article 226. State governments
      provide concessional terms to a variety of organisations in order to
      attract them to set up establishments within the territorial jurisdiction of
      the State. The State may encourage them as an adjunct of its social
      policy or the imperatives of economic development. The mere fact that
B
      land had been provided on a concessional basis to the hospital would not
      by itself result in the conclusion that the hospital performs a public
      function. In the present case, the absence of state control in the
      management of the hospital has a significant bearing on our coming to
      the conclusion that the hospital does not come within the ambit of a
C     public authority.
            32. It has been submitted before us that the hospital is subject to
      regulation by the Clinical Establishments (Registration and Regulation)
      Act 2010. Does the regulation of hospitals and nursing homes by law
      render the hospital a statutory body? Private individuals and organizations
D     are subject to diverse obligations under the law. The law is a ubiquitous
      phenomenon. From the registration of birth to the reporting of death, law
      imposes obligations on diverse aspects of individual lives. From
      incorporation to dissolution, business has to act in compliance with law.
      But that does not make every entity or activity an authority under Article
      226. Regulation by a statute does not constitute the hospital as a body
E     which is constituted under the statute. Individuals and organisations are
      subject to statutory requirements in a whole host of activities today.
      That by itself cannot be conclusive of whether such an individual or
      organisation discharges a public function. In Federal Bank (supra),
      while deciding whether a private bank that is regulated by the Banking
F     Regulation Act, 1949 discharges any public function, the court held thus:
            “33. …in our view, a private company carrying on banking business
            as a scheduled bank, cannot be termed as an institution or a
            company carrying on any statutory or public duty. A private body
            or a person may be amenable to writ jurisdiction only where it
G           may become necessary to compel such body or association to
            enforce any statutory obligations or such obligations of public nature
            casting positive obligation upon it. We don’t find such conditions
            are fulfilled in respect of a private company carrying on a
            commercial activity of banking. Merely regulatory provisions

H
          RAMAKRISHNA MISSION v. KAGO KUNYA                                   469
          [DR DHANANJAYA Y CHANDRACHUD, J.]

      to ensure such activity carried on by private bodies work               A
      within a discipline, do not confer any such status upon the
      company nor put any such obligation upon it which may be
      enforced through issue of a writ under Article 226 of the
      Constitution. Present is a case of disciplinary action being
      taken against its employee by the appellant Bank. The
                                                                              B
      respondent’s service with the Bank stands terminated. The
      action of the Bank was challenged by the respondent by
      filing a writ petition under Article 226 of the Constitution
      of India. The respondent is not trying to enforce any statutory
      duty on the part of the Bank…”
                                                     (emphasis supplied)      C

        33. Thus, contracts of a purely private nature would not be sub-
ject to writ jurisdiction merely by reason of the fact that they are struc-
tured by statutory provisions. The only exception to this principle arises
in a situation where the contract of service is governed or regulated by
a statutory provision. Hence, for instance, in K K Saksena (supra) this       D
Court held that when an employee is a workman governed by the Indus-
trial Disputes Act, 1947, it constitutes an exception to the general prin-
ciple that a contract of personal service is not capable of being specifi-
cally enforced or performed.
        34. It is of relevance to note that the Act was enacted to provide    E
for the regulation and registration of clinical establishments with a view
to prescribe minimum standards of facilities and services. The Act, inter
alia, stipulates conditions to be satisfied by clinical establishments for
registration. However, the Act does not govern contracts of service
entered into by the Hospital with respect to its employees. These fall        F
within the ambit of purely private contracts, against which writ jurisdic-
tion cannot lie. The sanctity of this distinction must be preserved.
       35. For the above reasons, we are of the view that the Division
Bench of the High Court was not justified in coming to the conclusion
that the appellants are amenable to the writ jurisdiction under Article       G
226 of the Constitution as an authority within the meaning of the Article.
      36. For the reasons that we have adduced above, we hold that
neither the Ramakrishna Mission, nor the hospital would constitute an
authority within the meaning of Article 226 of the Constitution.
                                                                              H
470             SUPREME COURT REPORTS                          [2019] 5 S.C.R.


A            37. Before concluding, it would be necessary to also advert to the
      fact that while the learned Single Judge had come to the conclusion that
      the appellants are ‘State’ within the meaning of Article 12, the Division
      Bench has not accepted that finding. The Division Bench ruled, as we
      have noticed earlier, that the appellants do not fall within the description
      of ‘State’ under Article 12. This finding has not been challenged before
B
      this Court by the State of Arunachal Pradesh.
             38. Even otherwise, we are clearly of the view that the tests
      which have been propounded in the line of authority of this Court in Ajay
      Hasia v Khalid Mujib Sehravardi 9, Pradeep Kumar Biswas v
      Indian Institute of Chemical Biology10 and Jatya Pal Singh v Union
C     of India11 support the conclusion of the High Court that the appellants
      are not ‘State’ within the meaning of Article 12 of the Constitution of
      India.
            39. For the above reasons, we allow the appeal and set aside the
      judgment and order of the High Court dated 6 April 2018 in Writ Appeal
D     No 25 (AP/2017). In consequence, the writ petition filed before the
      High Court namely W.P. (Civil) No 520 (AP/2015) shall stand dismissed.
      There shall be no order as to costs.
             40. Pending application(s), if any, shall stand disposed of.

E
      Kalpana K. Tripathy                                           Appeal allowed.




F




G

      9
       (1981) 1 SCC 722
      10
         (2002) 5 SCC 111
      11
         (2013) 6 SCC 452

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