T.V.R. Tatachari, C.J.
(1) This Writ Petition has been filed by Ourbakhsh Singh under Article 226 of the Constitution of India praying
(1)for the issuance of an appropriate writ quashing the order, No. DSIDC/1-583/2203, dated 4th August, 1977, issued by the Delhi State Industrial Development Corporation (hereinafter referred to as the DSIDC) as being against the rules applicable to the petitioner.
(2)for directing his continuation in office as Section Officer in the Dsidc without any interference and (3) for a writ of mandamus or other appropriate order or direction requiring the Dstdc not to strike off the petitioner's name from its roll.
(2) The petitioner imp leaded as respondents to the writ petition
A)The Delhi State Industrial Development Corporation (DSIDC),
(2)The Delhi Administration.
(3)the Union of India through the Accountant General, Central Revenues and
(4)the Lieutenant Governor of Delhi.
(3) A preliminary objection has been raised in the counter-affidavit filed on behalf of the Dsidc that the Dsidc is a Company incorporated under the Companies Act. 1956. and, as such, no petition for a writ is maintainable against it under Article 226 of the Constitution. We. thereforee, heard the learned counsel for both the parties on the preliminary objection, and we proceed to give our judgment regarding the same.
(4) For the purpose of deciding the preliminary objection, it is sufficient to state only a few facts which led up to the filing of the Writ Petition.
(5) According to the petitioner, he was originally employed on 16th September, 1958, as an Auditor in the office of the Accountant General. Central Revenues, New Delhi, which is a department of the Government of India. He was later selected for the post of Section Officer in the Dsidc in the scale of Rs. 650-960. He was relieved by an office order No. 335, dated 4th August, 1975 (A.N.), and he joined the service of the Dsidc on 5th August, 1975. However, he, being a permanent Government servant, was allowed to retain a lien on his permanent post for a period of 2 years in accordance with the rules applicable to a permanent Government servant in the office of the Accountant General. Central Revenues.
(6) In June. 1977, it was given out that all the persons who were on deputation in the Dsidc will be reverted to their parent offices/ departments, and the services of all the persons who were re-employed after the age of superannuation will be terminated. According to the petitioner, he did not fall in any of the said categories, as he was not on deputation, but was a directly recruited employee after selection on the base of interview. The Dsidc, by a letter, dated 18th June 1977. made an enquiry regarding sending the petitioner back to the office of the Accountant General, Central Revenues. But. the Accountant General, by his letter. No. Admn. 1/11-3/77-78/940. dated 22nd July, 1977, intimated the Dsidc that the petitioner was sent on deputation to the Dsidc, that he was selected for post of Section Officer in response to his application to the DSIDC. and that he should be considered for permanent absorption in the DSIDC. However, on 4th August. 1977. when the petitioner was on earned leave Dsidc sent a communication to the petitioner as well as to the Accountant General that he should join his parent department after the expiry of the leave. The Accountant General sent a reply to the said communication, letter No. Admn. 1/11-3/77-78/1652, dated 2nd November, 1977, stating that the rules did not permit the reversion of the petitioner, as the period of two years for which lien could be kept had already expired on 4th August, 1977. The accountant General also forwarded the petitioner's representation seeking his permanent absorption in the DSIDC. The petitioner then filed the present writ petition seeking for the quashing of the order of the Dsidc, dated 4th August, 1977, and for certain consequential reliefs which we have mentioned earlier.
(7) As already stated, the preliminary objection is that the Dsidc, being a company incorporated under the Companies Act, no writ petition is maintainable against it under Article 226 of the Constitution. In reply to the objection, the petitioner stated that the Dsidc is totally a Government organisation as its shares are in the name of the President of India, and that the writ petition is. thereforee, maintainable against it under Article 226 of the Constitution of India.
(8) Thus, the point for determination is whether the DSIDC. being a Company incorporated under the Companies Act, is subject to the jurisdiction of the High Court under. Article 226 of the Constitution of India, and the Writ. Petition is maintainable.
(9) Article 226(1), before it was amended by the Constitution 42nd Amendment) Act, 1975, provided that :
'EVERYHigh Court shall have power, throughout the territories in relation to which it exercises jurisdiction, issue to any person or authority, including in appropriate cases any Governments within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part Iii and for any other purpose'.
(10) According to the above provisions, directions, orders or writs can be issued there under to (i) any person, (ii) any authority, and (iii) any Government in the territories in relation to which the High Court concerned exercises jurisdiction. By the Constitution (42nd Amendment) Act, the old Article 226 has been substituted by a new one. However, Article 226(1), even as amended, continues to provide that: very High Court shall have power throughout the territories in relation to which it exercises jurisdiction, issue to any person or authority, including in appropriate cases, any Goverament, within those territories directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them' for the purposes set out in the Article.
(11) We shall first consider the scope of the words 'any person'. 'Person' includes any company or association or body of ipdividuals, whether incorporated or not (vide Section 3(42) General Clauses Act, 1897). However, although the words 'any person or authority including any Government' are quite wide in their scope, it has been held that these words mean only 'to any person or authority to whom, according to well established principles writs like those mentioned in the Article would lie'. As regards the 'directions' and 'orders' mentioned in the Article, it has been pointed out by Mr. H. M. Seervai in his treatise 'Constitutional Law of India' (second edition) at page 815. while dealing with the unamended Article, as under:- 'Orders, directions or writs are to be issued 'to any person' and 'for any purpose'. Once the meaning of these words is ascertained with reference to writs, a different meaning cannot be given to them with reference to 'Orders' or 'directions'. In England, the writs of mandamus, certiorari and prohibition were replaced by 'Orders' of the same name in 1938 ; the writ of quo warranto was replaced first by information in the nature of quo warranto, and later by an injunction-that is an order of the Court. In India, the Writs of habeas corpus and mandamus were replaced by 'directions' in the nature of mandamus by Section 491, Cr. P.O., and Section 45 Specific Relief Act, 1877 respectively. The words 'Orders' and 'directions' were used to describe what at one time were called writs, and since the terminology had been in use in England and in India, all the three words have been used in Article 226 to describe well-recognised English writs'.
(12) However, it has been held by the Supreme Court that the powers of the High Court under Article 226. like those of the Supreme Court under Article 226, are not limited to the prerogative writs, that Article 226 speaks not of the English Writs hut of writs 'in the nature of those writs', that High Courts, in issuing directions, orders and writs under Article 226 can travel beyond the contents of the writs which are normally issued as writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, and that they can issue orders or directions or wnts in all appropriate cases and in appropriate manner, so long as they keep to the oroad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law.
(13) Thus, if the jurisdiction under Article 226 as unamended or amended, is sought to be invoked against one on the basis that he or it is a 'person' within the meaning of the article, it has to be seen whether he or it is a 'person' to whom or to which, directions or orders or writs are issued according to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law.
(14) In the present case, the petitioner has asked for directions or orders or writs in the nature of certiorari (prayer 1) and mandamus (prayers 2 and 3) against the DSIDC. We have, thereforee, to notice the broad and fundamental principles that regulate the issuance of the said writs and the person to whom or to which they are issued. We shall consider first the writ of certiorari. In Province of , the Supreme Court stated the nature of certiorari as under, quoting from the decision in :-
'WHENEVERany body of persons (a) having legal authority, (b) to determine' questions affecting rights of subjects and (c) having the duty to act judicially, (d) act in excess of their legal authority, certiorari may issue to remove the proceedings from such body to the High Court and quash a decision that goes beyond jurisdiction'.
In the Supreme Court pointed out the object of a writ of certiorari as under:-
'THEobject of this writ is to keep the exercise of powers by judicial and quasi-judicial tribunals within the limits of the jurisdiction assigned them by law and to restrain them from acting in excess of their authority'.
The scope of certiorari has since been widened, and it has been held that even an administrative order must be made in conformity with the rules of natural justice if it involves civil consequences
(15) In the present case, the Dsidc, a Company incorporated under the Companies Act, is not a judicial or quasi judicial body. It has no legal authority to determine questions affecting rights of subjects. There is no duty cast upon it to act judicially. So, a direction or order or wrii in the nature of certiorari cannot be issued against it quashing its order. Even as regards administrative orders of the Dsidc, it is true that as pointed out by Mr. Durga Das Basu in his book 'Constitutional Law of India' at pages 262, 263, 'the distinction between quasi-judicial and administrative orders, for the purpose of certiorari, has been largely obviated in India by the extension of quasi-judicial obligation, by the Supreme Court, to newer categories of administrative acts', but still, no certiorari can be issued against the administrative orders of Dsidc, because the extension of the quasi-judicial obligation of acting according to principles of natural justice in cases of orders involving civil consequences is only to the administrative orders of a body which has legal authority to determine questions affecting rights of subjects and also has the duty to act judicially, and the Dsidc is not such a body.
(16) As regards mandamus, it is well settled that the applicant must show that he has a' legal right to the performance of a legal duty, as distinguished from a discretion, by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution.
(17) The question as to whether a mandamus can be granted against a Company has been considered in some decisions.
(18) The Hindustan Steel Limited, a Company incorporated under the Companies Act, was held by the Supreme Court to be an independent company and thus a distinct entity. But, the question whether it was subject to the jurisdiction of the High Court under Articles 226 and 227 was left open.
(19) In mandamus was sought restraining the Corporation, a Company incorporated under the Indian Companies Act, 1913, from implementing or enforcing an agreement. The Supreme Court held at pages 1307, 1309 and 1310 as follows I-
(ATpage 1307) '....at the material time, however, the Union Government and the Government of Andhra Pradesh between them held 56 per cent and 32 per cent of its shares respectively and the balance of 12 per cent shares .were held by private individuals. Being the largest shareholder, the Union Government had the power to nominate the company's directors. Even so, being registered under the Companies Act and governed by the provisions of that Act, the company is a separate legal entity and cannot be set to be either a Government Corporation or under the authority of the Union Government......................'
(ATpage 1309) 'But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, 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 bemaintained to secure performance of obligations owned by a company towards its workmen or to resolve any private dispute....................'.
'THEREFORE,the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it Is sought. An order of mandamus is, in form, a command directed to a person, corporation, or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the auhtority on whom the statutory duty is imposed need be a public official or an official body. (at page 1310) A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfillling 715 public responsibilities (Of. Halsbury's Laws of England (3rd Ed.) , Ii, page 52 onwards) .The Company (i.e., the Corporation in that case) being a non-statutory body and one incorporated under the Companies Act, there was neither a statutory nor a public duty imposed on it by a statute, in respect of which enforcement could besought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty'.
(20) In the services of Dr. S. 1.. Aggarwal were terminated by the General Manager of the Hindustan Steel Ltd. which is a company incorporated under the Companies Act. In his writ petition filed under Article 226. Dr. Aggarwal sought the protection given under Article 311 of the Constitution, on the ground that the company was entirely financed by the Government and its management was directly the responsibility of the President, and hence the post held by Dr. Aggarwal was virtually under the Government of India. The Supreme Court, however, held, following the principles laid down in the case of Praga Tools Corporation, that the Hindustan Steel Ltd., was not a department of the Government nor were the servants of it holding posts under the State, that it had its independent existence and by law relating to corporations, it was distinct even from its members, and that in the circumstances. Dr. Aggarwal, who was an employee of Hindustan Steel Ltd., did not answer the description of a holder of 'a civil post under the Union' as stated in Article 311, and was not, thereforee, entitled to the protection of that Article.
(21) In the employees sought a mandamus directing the corporation to restore the enhanced house allowance which the employees were getting under a resolution passed by the Board of Directors of the Corporation and which has been revoked by a subsequent office order/without complying. with the provisions of Section 9A of the Industrial Disputes Act. A 'Division Bench of this Court, Hardayal Hardy, CJ., and Prakash Narain, J.held that since the corporation was acompany not either created by a statute nor any statutory obligation had been cast upon it by its Constitution, it could not be said that the alleged non-compliance with Section 9A of the' Industrial Disputes Act by the Corporation entitled the petitioners to claim that a mandamus be issued to the respondent-company to comply with the said provisions, as the statute merely laid down the law and the procedure to be followed before effecting any change in the conditions of service of workmen, and there has been no statutory obligation on a private employer, like a company incorporated under the Companies Act, to follow Section' 9A in the manner in which there would be a statutory obligation on a company to comply with the provisions of the statute which brings it into existence, although the alleged violation of section 9A might entitle the petitioners to raise an industrial dispute, with which, however, the Division Beach was not concerned with.
(22) It is clear from the above decisions that in the case of the Dsidc, though it is a 'person', a mandamus cannot be issued as it is only a company incorporated under the Companies Act and a on-statutory body.
(23) The next question for consideration is as to whether it is an 'authority' within the meaning of Article 226. Before referring to a decision which dealt with this aspect, it has to be noted that the word 'authority' occurs also in Article 12.of the Constitution which defines 'State'. But, as pointed out by a Full Bench of this Court, of which one of us was a inember, in Industrial Finance Corporation of India vs . Delhi Administration & others , the question of baing a 'State' within the meaning of Article 12 is material for the purposes of application of the provisions in Part Iii of the Constitution, and is not matrial in the matter of exercise of jurisdiction by a High Court under Article 226 of the Constitution. In that case, the quesdon under consideration was whether the Industrial Finance Corporation of India was a 'State' within the meaning of Article 12. Indealing with that question, the Full Bench pointed out at page 39 as follows:-
'INdealing with the above question, it has to be borne in mind that the question of being a 'State' within the meaning of Article 12 is material only for the purpose of application of the provisions contained in the Article in Part Iii in which the words 'the State' occur. The said question is not material in the matter of exercise of jurisdiction by a High Court under Article 226 of the Constitution. The issuance of a writ or order or direction under Article 226 depends upon the existence of the well established conditions for such issuance and not upon the question whether the definition of 'State' in Article 12 is satisfied in the case. Thus, as held by the High Court of Calcutta in Kartick Chandra vs . W.B.S.L Corporation, : AIR1967Cal231 , 'even though a body of person? may not constitute a 'State'' within the definition of Artical-12, a writ under Article 226 may sometimes lie against it on non-constitutional grounds or on ground of contravention of provisions of the Constitution outside Part III'. We have referreed to this aspect only. to emphasise that the question of being a 'State' withim meaning of Article 12 iP oot to be mixed up with the.question of issuance of a writ, order or direction under Article 226'.
(24) It has further to be noted that on a consideration of the decisions of the Supreme Court, the Full Bench held at page 49, that 'a body or authority cannot, by the mere fact that it has been constituted or set up by a statute, be regarded as an 'authority' and hence a 'State' withim the meaning of Article 12', that 'to be under an authority, it should have ftinctions and powers such as are mentioned or indicated in the aforesaid observations of the Supreme Court' and that 'broadly stated, the said observations indicate that a body or authority constituted or set up by or under the Constitution or a Statute within the territory of India or under the control of the Government of India would be an 'authority' and hence 'State' within the meaning of Article 12 if
(1)it is an agent or instrirtiwnt of the Government; or
(2)it has been set up turn the purpose of administering laws enacted by the Parliament or by the State or has been vested with the duty to make decisions in order to implement those laws; or
(3)it has been vested with powers to carry out governmental or quasi-governmental functions, or powers to give directions which are to be obeyed and command obedience of the same; or
(4)it is invested with power to make rules or regulations and to administer or enforce them to the detriment of citizens and others',
(25) In the present case, the Dsidc does pot satisfy the requirements (2) to (4). It does not satisfy the first .requirement also, as the mere fact that the President holds all the shares of the Company as alleged by the petitioner does not make the company an agent or instrument or a department of the Government as held by the Supreme Court in the case of Praga Tools Corporation (Supra) Heavy Engineering Mazdoor Union vs . State of Bihar, : (1969)IILLJ549SC and Dr. S. L. Aggarwal (Supra). We shall refer to the said decisions again in dealing with the word 'Government' in Article 226. Thus, 'the Dsidc is not a 'State' within the meaning of Article 12. But, as stated earlier, its not being a 'State' is not material in the matter of exercise of jurisdiction under Article 226.
(26) Coming now to the decision which dealt with the meaning of the word 'authority' in Article 226, it is the decision of a Full Bench of this Court. In that case, the Full Bench considered in paragraph 34 whether the Icar (Indian Council of Agricultural Research) was an 'authority' within the meaning of Article 226 and Article 12. The Full Bench held that the Icar was not an 'authority' for the purposes of Article 226, as it was only a voluntary association (see para 29) registered under the Registration of Societies Act, 1860 (see para Ii & 13), and it was not a statutory body created by a Statute, nor was it discharging public functions, nor was it shown in that case to have acted contrary to some statute or statutory rule (see para 29). In that context, it was . explained in paragraph 34 as follows:-
'What is an 'authority' either for the purposes of Article 226 or of Article 127 A three-fold classification may be made of bodies or persons contending to be eligible to be regarded is 'authorities'. On the one hand are statutory authorities. They are created by a statute and derive their power from the statute. ' They satisfy the usual condition precedent to be considered as 'authorities' within the meaning of Articles 226 and 12. On the other hand, are registered societies and companies. These are voluntary creations of associations of private persons. Their power is derived from themselves. The statutes under which they are registered or incorporated only help them to attain a legal personality. An association before it becomes a legal person is only a metaphor. For instance, we speak of a jury, a bench of judges, a public meeting or even of the community itself as being a person instead of being merely a group of persons. We personify a group of individuals thereby. But legal personality is not reached until the law recognises over and above the associated individuals a legal person which represents them but is not identical with them. The object of the Societies Registration Act and the Companies Act is not to create societies and companies but only to confer legal personality on existing societies and existing companies. As the companies and the societies are not created by statutes, the powers exercised by them are not the result of a statutory creation but only a result of voluntary association and functioning under statutory regulation. The societies and companies are not, thereforee 'authorities'.
(27) In the present case, the Dsjdc was not created by a statute, but was only incorporated under the Companies Act. As per the observations of the Full Bench in para 29, the Dsidc can still be regarded as an 'authority' for the purpose of exercise of jurisdiction under Article 226, if it is discharging public functions and acts contrary to a statute rule. There is no such plea in the present case. The act complained of was that the Dsidc treated the petitioner as being on deputation with it and, on that basis, sent him back to his parent department. Such an action affects, if at all, a contractual right and not a legal right of the petitioner. Nor does it involve any duty on the part of the Dsidc to act judicially. In the circumstances, it has to be held that the Dsidc cannot be regarded as an, 'authority' for the purposes of the exercise of jurisdicion under Article 226.
(28) We next come to the word 'Government' in Article 226. The question is whether a Company like the Dsidc which was incorporated under the Companies Act is 'Government' within the meaning of Article 226. This has been considered by the Supreme Court in three cases. In the cases of Praga Tools Corporation (Supra), Heavy Engineering Mazdoor Union vs. State of Bihar (Supra), and Dr. S. L. Aggarwal (Supra), the Supreme Court held that a company incorporated under the Companies Act, even if all the shares or a majority of the shares in it are held by the Government, has an existence independent of the Government and is an entity distinct from the Government, and that it would not be an agent, or a department of the Government by the law relating to it. Thus, the Dsidc is not 'Government' within the meaning of Article 226.
(29) Our attention has been drawn to the decision in Shakuntala Sahawala vs . The Director of Public Instruction, : (1978)ILLJ160AP . In that case, a Full Bench of the High Court of Andhra Pradesh, dealing with a society registered under the Hyderabad Non-Trading Societies Registration Act, and following the Decisions of the Supreme Court in Executive Committee of Vaish Degree College, held at page 385 that :-
'... . ..even if the educational institution is considered to be a public body, no writ or direction can be issued so long as the private institution is not governed by statutory rules ami there is no question of any enforcement of statutory rules. However, as against a Government servant, who is functioning under administrative orders or administrative instructions, awrit can issue if there is violation of principles of natural Justice or if the administrative instructions) which are binding oft him have not been followed by him. The High Court, in exercise of its jurisdiction under Article 226 of the Constitution, can always direct a public servant to abide by the rule of law and the administrative instructions binding on him are part of the rule of law. It is only to the limited extent that the High Court can exercise its writ jurisdiction under Article 226 of the Constitution in matters of this kind. We are constrained to hold, in view of the decisions of the Supreme Court referred to above that evan on the bash of the distinction between a statutory body and a public body that a private institution, like the 2nd respondent registered under the Co-operative Societies Act or the Companies Act or Non-Trading Societies Registration Act, Is A public body, it is not open to the High Court to issue a writ or direction against such a body for breach of any administrative or executive.'
The above' decision and the decisions of the Supreme Court mentioned therein dealt with a society registered under the Registration of Societies Act, and held that such societies are in the same position as companies incorporated under the Companies Act.
(30) Another decision cited by Mr. Sistani was In that case, a Division Bench of the High Court of Karnataka dealt With the question of admission of a student to a private medical college. The Division Bench held at page 178 that though the College (respondent No. 2) 'is a private institution which does not come within the definition of 'State' in Article 12 of the Constituiton and is also not a public authority, since it (respondent No. 2) feels obliged to obey the direction of the Government to admit certain number of 'Karnataka' students to its college, the petitioner can ask for a writ restraining respondent No. 1, the State of Karnataka, from enforcing any direction given by it (respondent No. 1). Hence, it would, in our opinion, be too technical to dismiss this petition solely on the ground that respondent No. 2 is a private institution. Though the petitioner has asked for a writ, direction or order as against respondent No. 2 what he has, in substance, Sought for is a writ to respondent No. 1, the State of Karnataka, not to enforce its direction to admit certain number of 'Karnataka' student to respondent No. 2 College'.
THEdecision does not spedfically deal with the point under our consideration and is not thereforee of much assistance to the counsel.
(31) For the foregoing reasons, we uphold the preliminary objection and accordingly dismiss the Writ Petition, but in the circumstances without costs.