Allahabad High Court’s judgement on article 226 available only when action challenged falls in public domain. Ejaz Khan LANDMARK JUDGMENT Fri, Oct 08, 2021, at ,10:12 PM What does article 226 of Indian Constitution says? 226. Power of High Courts to issue certain writs High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories’ directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, 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. What was the Case? The Court was hearing a reference made by a single-judge who had formulated the following two questions for determination by a larger bench: Q.1 Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution? Q.2 Whether the decision in Rajesh Kumar Srivastava and others vs State of UP and others is in contradiction to the holding of the Full Bench in Roychan Abraham versus State of UP and others (2019)? What Caused the controversy? 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, in Roychan Abraham judgment which held that Private Institutions including higher education, perform public duty i.e., primarily a state function, therefore are open to judicial review of the High Court under Article 226. It was then referred to the three-judge bench comprising 1. Acting Chief Justice Munishwar Nath Bhandari 2. Justice Prakash Padia 3. Justice Sanjay Kumar Singh What Court Said? · While answering the former question, the Court said that the remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin test is satisfied. 1. The person or authority is discharging public duty/public functions. 2. There action under challenge falls in domain of public law and not under common law. · It held that it is not enough that the authority or the person is discharging public function or public duty but the action challenged should also fall in the domain of public law. · There is a thin line between “public functions” and “private functions” discharged by a person or a private body/authority. · 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.” · 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. · The control of the State is another issue to hold a writ petition to be maintainable against an authority or a person. · On the second question, court said that the judgment of Allahabad High Court in case of Rajesh Kumar Srivastava and others v. State of UP is not against the ratio pronounced by the larger Bench in the case of Roychan Abraham v. State of UP and others. · Rather, it has followed the judgment of the Supreme Court in the case of KK Saksena v. International Commission on Irrigation and Drainage. · After placing reliance on various judgments of the Supreme Court and High Court, the Court came to conclusion that a writ petition under Article 226 of the Constitution would be maintainable against: (i) the Government. (ii) an 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. (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.