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Clarifying its position on remedy available under Article 226, Allahabad high court on Monday held that the writ petition under this article would be maintainable only after determining the nature of the duty to be enforced by the body or authority as to whether it falls in domain of public law or private law rather than on the fact whether the body/authority itself falls within the definition of “State or its authority” under Article 12 of the Constitution of India. 

The Larger Bench was dealing with the questions referred to it by the Single Judge bench about maintainability of writ petition against authority or the person discharging public duty/public function which may not fall within the definition of “State or its authority” under Article 12.

In this particular case, the single judge was dealing with the question as to whether conditions of service of teachers, who perform public function/duty by teaching in an educational institution that inherently undertakes such public function, can be regarded as governed by the private law of contract and thereby denying the teacher right to raise their grievances against such conditions under Article 226. 

The Larger bench held, “The authority or the person should not only discharge public function or public duty but the action challenged therein should fall in the domain of public law. The writ petition would not be maintainable against an authority or person even if it is discharging public function/public duty, if the controversy pertains to the private law such as a dispute arising out of contract or under the common law.” 

A three-judge bench comprising Acting Chief Justice Munishwar Nath Bhandari and Justices Prakash Padia and Sanjay Kumar Singh further clarified that the writ petition would not be maintainable against an authority or a person merely for the reason that it has been created under the statute or is governed by regulatory provisions.

The controversy arose as the single-judge bench of the high court had found the judgment in the case of Rajesh Kumar Srivastava and others versus State of U.P. and others, 2020 to be in conflict with other judgments including Roychan Abraham versus State of U.P. and others, (2019).

In Rajesh Kumar, it was held that writ petition under Article 226 of the Constitution of India is maintainable against the authority or the person discharging public duty only when issue of public law is involved. The writ petition would not be maintainable if claim is arising out of a private contract between the two parties.

However, the aforesaid view was taken to be in conflict with the Roychan Abraham judgment which held that Private Institutions including higher education, perform public duty i.e. primarily a State function, therefore are amenable to judicial review of the High Court under Article 226.

Accordingly, seeing the conflict the matter was referred to the Larger Bench.

Highlighting the Apex Court ruling in the case of K.K. Saksena versus International Commission on Irrigation and Drainage and others, (2015), the Larger bench said that the issue canvassed by the Single Judge can be answered in view of this ruling only.

In K.K. Saksena, Apex court had held that private law remedies would not be enforceable through the extraordinary jurisdiction of the High Court.

Accordingly, the Larger Bench held that for entertaining a writ petition under Article 226 of the Constitution of India, the twin test is to be satisfied.

The first test is about the public function/public duty by an authority or a person and the second test is about the challenge to the action falls in the domain of public law.

Court therefore said,

“Accordingly, the writ petition would not be maintainable against the authority or the person referred under Article 226 of the Constitution of India merely for the reason of discharge of public function/public duty unless an issue of public law is involved.”

Also, stating that there is thin line between “public functions” and “private functions” discharged by a person or a private body/authority, Court said that if the writ petition refers to contractual obligation inter se between the parties, it would not be maintainable.

However, court added that even if a person or authority is discharging public function or public duty, the writ petition would be maintainable under Article 226 of the Constitution, if Court is satisfied that action under challenge falls in the domain of public law, as distinguished from private law.

But, “It would not (be so) even in a case where aid is received unless it is substantial in nature. The control of the State is another issue to hold a writ petition to be maintainable against an authority or a person,” court held.

Thus, clarifying that the Rajesh Kumar Srivastava judgment is not against the ration pronounced in Roychan Abraham, rather it has followed the judgment of the Apex Court in the case of K. K. Saksena, court directed the registry to place the present order before the single judge bench where the matter is pending for hearing.

Article 226 of the Indian Constitution

Using its power under this article, the High Court issues certain writs (order/directions) to any person or authority, including any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose. 

It is to be noted that rights conferred by Part III are fundamental rights that are enforceable against the State which is defined under Article 12 of the constitution and includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Case Title: Uttam Chand Rawat v. State Of U.P. And 7 Others