Full Text
W.P.(C) Nos. 3934/1998, W.P.(C) 4832/1997, W.P.(C) 3463/2000, W.P.(C) 722/2001, W.P.(C) 4411/1999
18th September, 2013
JUDGMENT
1. W.P.(C) 3934/1998 H.S. RAWAT..... Petitioner Through: Mr. Tarkeshwar Nath, Advocate with Mr. Saurabh Kumar Tuteja, Advocate.
VERSUS
CENTRAL BOARD OF IRRIGATION AND POWER & ORS..... Respondents Through: Mr. Rajeshwar Kumar Gupta, Ms. Abha Kulshresta, Advocate
2. W.P.(C) 4832/1997 & Review Petition 119/2013 JAG SINGH..... Petitioner Through Mr. Tarkeshwar Nath, Advocate with versus Through: MR. Ajit Puddusery, Mr. M. Shekhar, Advocate for respondent No. 1. Mr. Rajeshwar Kumar Gupta, Ms. Abha Kulshresta, Advocates for respondents 2 & 3.
3. W.P.(C) 3463/2000 SHRI NAND LAL..... Petitioner 2013:DHC:4761 Through Mr. Tarkeshwar Nath, Advocate with versus
4. W.P.(C) 722/2001 DAL CHAND..... Petitioner versus
5. W.P.(C) 4411/1999 CHARAN SINGH..... Petitioner versus CORAM: HON’BLE MR.
JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? Yes VALMIKI J. MEHTA, J (ORAL) WP(C) 3934/1998
1. There is a preliminary issue as to maintainability of the writ petition. The employer-organization in the present case is the Central Board of Irrigation & Power-respondent No. 1.
2. On 17.07.2013, the following order was passed: “1. The preliminary issue which is called for decision in the present writ petitions is as to whether respondent No.1/Central Board of Irrigation and Power is or is not the Union or the State Government or instrumentality of the State as per Article 12 of the Constitution of India. In order to determine this aspect, two crucial steps have to be addressed. First is the source of financing of the respondent No.1. If the major percentage of the financing of the respondent No.1 is not of the Union of India or any of the State Governments or of instrumentalities of the State, this would be a relevant factor. It is also required to be known as to what is the constitution of the governing body of the respondent No.1 i.e whether the same is controlled by the nominees of the Union or the State Governments or instrumentality of the State or by private persons.
2. Accordingly, for the present the issue with respect to financing of the respondent No.1and control of the respondent No.1 needs to be seen for 10 years prior to today i.e 10 years for which the audited accounts of the respondent No.1 are available.
3. Learned counsel for the respondent No.1 states that she will file a detailed affidavit on behalf of respondent No.1 giving the audited accounts of the last available 10 years and in such affidavit will make detailed averments with respect to the sources of finance/income of the respondent No.1, the total membership with particulars of the respondent No.1-society and lastly existing memorandum and rules of the respondent No.1 which will include the aspects with respect to control and Management of the respondent No.1. The additional affidavit be filed within four weeks from today. Reply thereto, if any, be filed within two weeks thereafter.
4. List on 9th September, 2013.”
3. Additional affidavit dated 5.9.2013 pursuant to the order dated 17.7.2013 has been filed by the respondent No. 1 on 6.9.2013.
4. The law with respect to an entity or an autonomous organization being or not being an instrumentality of State under Article 12 of the Constitution of India is now well settled. Two most important aspects are; first, whether the majority funding of the entity is by the Government and which shows consequent control of the entity by the Government; and the second is that even if the funding is not substantial yet, it is the Government which controls the entity by means of its nominees in the Government Body of the entity.
5. A reading of the affidavit dated 5.9.2013 filed by the respondent No. 1 shows the following:
(i) The Government of India has stopped providing funds from 1975 and before which a sum of ` 20,000/- per annum used to be provided to the Board for its up-keep. The balance sheets and profit loss accounts which have been filed with this affidavit dated 5.9.2013 also shows that there is no overwhelming contribution of the Government, much less towards the control to be exercised by the Government.
(ii) Though the members of the respondent No. 1 include Government organizations, State Boards, however, private membership is permitted and in fact exists. List of members, which are filed along with this affidavit dated 5.9.2013, shows membership both of Government organizations/State Boards as also private membership. There are 98 Government organizations and 63 private organizations who are members. All these members contribute subscriptions and other fees which is the basis of funding of the respondent No. 1.
(iii) Respondent No. 1 in a Public Interest Litigation being 13170-71/2005 titled as Staff Welfare Association of CBIP against the respondent No. 1- Board, on the directions of a Division Bench of this Court, Ministry of Water Resources filed an affidavit that respondent No. 1 is no more under the control of the Ministry which has no connection with the respondent No.1-Board.
(iv) Accounts of the respondent No. 1-Board are audited by private
(v) The functions of the Board are not Government functions which can be said to be public functions. Respondent No. 1 performs functions of holding various conferences in the field of water resources, power and renewal energy and research besides engaging itself in publication of manuals, guidelines, special reports etc in related fields.
6. In my opinion, therefore, it is quite clear that the Government does not control the functioning and working of the respondent No. 1-Board. Government is not in overall charge and control of the respondent No. 1- Board either through its nominees or otherwise. The rules and regulations of the respondent No. 1-Board also does not entitle Government predominance in running of the functions of the board. Merely because majority of organizations who are members of the respondent No. 1-Board are Government organizations/Electricity Board will not make the respondent an instrumentality of the State because merely on account of membership of Government organization in a private body such a body cannot become an instrumentality of the State, once, it is found that Governmental control is not existing and there is no parent Ministry of the Union of India under which the respondent No. 1 works. I may note that simply because the Government organizations would contribute to the subscription and fees payable to the respondent No. 1 cannot mean that Government would be funding the respondent No. 1 because if Government organizations are members of a private body, surely Government funds are to come in, but the same is not with the ultimate object of control over of the respondent No. 1. It is not unknown that Government organizations are members of various private Clubs, but surely it cannot be argued on that count that the private body or private Club will become State or instrumentality of State under Article 12 of the Constitution of India. It is also extremely relevant that in a Public Interest Litigation the respondent No. 1 has given a specific affidavit that there is no control of any Ministry of the Government of India so far as the respondent No. 1 is concerned.
7. Counsel for the petitioner sought to place reliance upon a letter dated 28.4.1989 in which there are observations of the respondent No. 1 being in control of the Ministry of Water Resources, but I note that letter is dated 28.4.1989, and is now about 24 years old. In this regard it has to be noted that respondent No. 1 has filed a Notification issued by the President dated 30.9.1994 whereby in exercise of powers under Article 77 (3) of the Constitution of India with respect to Allocations of Business Rules, the respondent No. 1-Board has been deleted from being under the control of the Government of India. Therefore, this Notification of 1994 will surely prevail over the earlier letter dated 28.4.1989 relied upon by the petitioner.
8. I may state that counsel for the petitioner did seek to argue on the basis of unamended earlier Rules and Regulations as if only Government organizations and State Electricity Boards or Water Boards can be members of the respondent No. 1-Board, however, I note that along with the affidavit dated 5.9.2013, the respondent No. 1 had filed its present Rules and Regulations ( as amended) and as per which now besides the Government organizations and State Boards who can be members, private persons or entities can also be members. As already stated, it is pursuant to this provision in the Rules that around 63 private members have membership in the respondent No. 1.
9. In view of the above, I do not find that respondent No. 1-Board is an instrumentality of State under Article 12 of the Constitution of India. The respondent No. 1 is also performing those functions which cannot be said that they are public functions/public duties. Therefore, the writ petition under Article 226 of the Constitution of India would not lie.
10. The writ petition is therefore dismissed as not maintainable, reserving the rights of the petitioners to approach any other competent court for redressal of their grievances. Review Petition 119/2013 in W.P.(C) 4832/1997 I have held by an order in W.P.(C) No.4832/1997 dated 5.2.2013 that the respondent No. 1-Board is not an instrumentality of State. I have given additional reasons with regard to respondent no.1 not being an instrumentality of State in W.P.(C) 3934/1998 above. This Review Petition is also therefore dismissed. W.P.(C) 4832/1997, W.P.(C) 3463/2000, W.P.(C) 722/2001, W.P.(C) 4411/1999 In view of the judgment passed in W.P.(C) 3934/1998, these writ petitions are also dismissed, reserving the rights of the petitioners to approach any other competent court for redressal of their grievances.
SEPTEMBER 18, 2013 VALMIKI J. MEHTA, J godara