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HIGH COURT: BEING EMPLOYED IN PAKISTAN DOES NOT AUTOMATICALLY MAKE ONE A CITIZEN OF PAKISTAN.

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The Custodian of Enemy Property for India has listed up to sixty-eight immovable properties in Kerala as ‘enemy properties,’ and thus, the High Court’s order can alleviate other similar cases as well. undefined

Thiruvananthapuram: In a recent relief to the 74-year-old man from Malappuram in Kerala, the Kerala High Court has set aside the restrictions placed on the property owned by him by the Custodian of Enemy Property for India, claiming that the man had purchased the land from his father who used to work in the neighbouring country, Pakistan.

A single bench of Justice Viju Abraham stated in the order produced on Monday that if a person went to an enemy nation in order to find a job, then it could not be assumed that he was a person from enemy nation.

There are as many as 68 immovable properties in Kerala which have been classified by the Custodian of Enemy Property for India as ‘enemy properties,’ and thus the HC order may mean relief in other similar cases as well.

P Ummer Koya, a retired police official and a native of Chettippadi in Malappuram challenging the archaic practice when the Parappanangadi village officer in Malappuram rejected his request to pay the land tax of 20. 5 cents of land for which he had recorded from his father Kunji Koya who once worked in Pakistan for few years.

The respective revenue authorities stated that the property in question was taken over under the provisions of the Enemy Property Act, 1968 and was under investigation by the Custodian of Enemy Property for India as the petitioner’s father was suspected to be an ‘enemy’ (Pakistan national) as per the definition contained in the said Act and, therefore, the property in question was also considered to be an ‘enemy property’. Hence, on the land, the restriction was imposed by the Custodian of Enemy Property for India.

The petitioner Ummer, with advocate M A Asif, argued that his father was born in Malappuram in 1902 and was domiciled in India when the Constitution was enacted in 1950. He visited Pakistan in 1953 in order to search for a job he had been a helper in a hotel in Pakistan for a short period of time.

He also said his father felt threatened by the police when he was still a national of Pakistan and approached the centre to know his citizenship status and the centre advised him that Kunji did not take the Pakistani citizenship willingly, therefore he still remains an Indian citizen. For this reason, the said property could not be rightly regarded as ‘enemy property’ as contended by Ummer’s counsel. Kunji also passed away in India and was buried in Malappuram district.

The court directed that since the father of the petitioner can not be termed as an ‘Enemy’ and his properties can not be termed as ‘Enemy Property’, the restriction imposed on the land should be quashed.

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JUDGEMENT REVIEWED BY: ABHISHEK SINGH

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Bihar Deputy CM says will move Supreme Court against High Court stay on quota hike.

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The Bihar government will petition the Supreme Court to challenge the Patna High Court’s decision to set aside a 50% to 65% increase in reservation for deprived castes, Deputy Chief Minister Samrat Choudhary said on Thursday, even as opposition leader Tejashwi Yadav chastised the ruling National Democratic Alliance (NDA) for failing to include the quota law in the Constitution’s ninth schedule, which would have given it immunity from judicial review. In a setback for the Nitish Kumar government, the high court on Thursday struck down legislations passed by the state assembly in November last year to increase the reservation for scheduled castes, scheduled tribes, and backward classes in education and government jobs to 65%, exceeding the 50% ceiling set by the top court.

“After getting legal advice, the Bihar government plans to challenge the high court ruling before the Supreme Court. Backward communities, Dalits, and tribals must be given more reservation in Bihar,” Choudhary, who is also the state Bharatiya Janata Party (BJP) head, added. “We believe that the reservation laws in Bihar were amended in accordance with provisions of the Constitution states like Tamil Nadu, too, have 69% quotas.”

Madan Sahni, leader of the Janata Dal (United) and a state minister, has also stated that the administration will take appropriate measures. “Bihar was the first state to undertake a caste-based survey and boost quota based on its findings. We shall consider the top court’s verdict issued today.

In response to the high court’s decision, opposition leader Tejashwi Yadav accused the BJP-led NDA government at the Centre of obstructing the conduct of a caste survey and an increase in quota. “We are saddened, and we suspected that the BJP would try to halt the reservation. We had stated during the elections that the BJP is opposed to reservation… “I don’t understand why the Chief Minister is silent on this,” the RJD leader stated.

Shri Yadav stated that his party, which was part of the administration that implemented the higher quota, pushed on the inclusion of the updated reservation legislation in the Constitution’s ninth schedule. “The state and federal governments, however, did nothing. We demand that an all-party team meet with Prime Minister Narendra Modi to discuss the quota increase in the ninth schedule,” he said, adding that if the state government does not challenge the high court judgement, his party will. Kunal, the state secretary of CPI-ML (liberation), expressed unhappiness with the high court judgement and suggested that the state government approach the Supreme Court to “protect the interests of the backward and oppressed classes.”

WRITTEN BY: ABHISHEK SINGH

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Rajasthan High Court Guidelines on Panchayat Official Transfers: Impact of Section 89(8A) of Panchayati Raj Act

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Case title: Kera Ram VS. The State Of Rajasthan ORS.  

Case no : S.B. Civil Writ Petition No. 2909/2024

Order on: 30/04/2024

Qoram: HON’BLE MR. JUSTICE ARUN MONGA

Fact of the case:

The petitioner, Kera Ram, is currently serving as a Gram Sewak cum Village Development Officer at Panchayat Samiti, Sarnau. He was transferred to Panchayat Samiti, Bagora via an order dated 19.02.2024 issued by the Chief Executive Officer (CEO) of Zila Parishad, Jalore. A large number of panchayat officials, including Village Development Officers/Assistant Administrative Officers/Gram Sewak/LDC/Junior Assistants/Junior Technical Assistants/Gram Vikas Adhikari, have been transferred through various orders issued by the State Government, CEOs of respective districts, and other officials like BDOs/VDOs. The petitioner challenges the legality of these transfer orders, alleging violations of the Rajasthan Panchayati Raj Act, 1994, and the Rules framed thereunder. Kera Ram claimed that the Chief Executive Officer of the Zila Parishad and other officials did not follow the proper procedures and guidelines for transferring employees within the Panchayat system.

Issues Framed by the Court

  • Does the omission to mention a specific location of Gram Panchayat for a Panchayat Samiti official’s new duty station invalidate a transfer order?
  • Is an appointment by transfer without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad legally valid?
  • Can the Chief Executive Officer of a Zila Parishad independently issue a transfer order within the Zila Parishad?
  • Are BDOs/VDOs authorized to independently transfer Panchayat officials within the Panchayat Samiti?
  • Is the recommendation of the District Administration and Establishment Committee necessary for the transfer of an employee within a Panchayat Samiti or Zila Parishad by the Chief Executive Officer of a Zila Parishad?
  • What is the legislative intent and scope of the State’s power under the non-obstante clause in Section 89(8A) of the Panchayat Raj Act, 1994, as amended by Act No. 23/1994 in Rajasthan?

Legal provisions:

Constitution of India:

Article 243A – Gram Sabha: Empowers the Gram Sabha to exercise powers and perform functions at the village level as determined by the State Legislature.

Article 243B – Constitution of Panchayats: Mandates the constitution of Panchayats at the village, intermediate, and district levels in every State, except those with populations below 20 lakhs, where intermediate level Panchayats may not be constituted.

Article 243C – Composition of Panchayats: The composition of Panchayats shall be determined by the Legislature of the State.

Article 243G – Powers, Authority, and Responsibilities of Panchayats: Empowers the Legislature of a State to endow Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government.

Article 243H – Powers to Impose Taxes by, and Funds of, the Panchayats: The State Legislature may authorize Panchayats to levy, collect, and appropriate taxes, duties, tolls, and fees.

Panchayati Raj Act, 1994:

Section 9 – Constitution of Panchayats

Section 10 – Creation of Panchayat Samitis

Section 51 – Functions of Panchayat Samiti

Section 89(8A) – Transfer of Employees

Rule 289: Procedures for transfer within a district under Panchayat Samiti or Zila Parishad

Contentions of Appellant:

The petitioner argues that the CEO of Zila Parishad is not legally competent to pass a transfer order for a Village Development Officer as per the provisions of the Rajasthan Panchayati Raj Act, 1994, or the Rules framed thereunder. The transfer order lacks prior approval or consent from the Samiti through its Pradhan, which is mandatory under Section 89(8)(ii) of the Act of 1994. The District Establishment Committee (DEC) of Zila Parishad is the competent authority to pass transfer orders, which should be based on the request of the Panchayat Samiti through its Pradhan. Petitioner also argued that the transfer does not reflect any administrative exigency as no one has been posted in the petitioner’s place. The transfer order does not specify the particular Gram Panchayat to which the petitioner should report, leaving him in a state of suspense. The transfer orders passed by the State suffer from non-application of mind as many officials have been transferred without being assigned any specific place of posting. Transfer protocols must be followed to avoid misuse of power, including recommendations from the DEC and prior consultation with the Pradhan or Pramukh. Some transfer orders were passed during a period when there was an absolute ban on transfers, violating administrative instructions issued by the Chief Secretary.

Contentions of Respondents:

The Respondent here is State Government retains exclusive right to transfer Panchayati Raj officials anywhere in the State. The State instruct CEOs or BDOs to carry out such transfers as per Rules 89 and 290. The State’s transfer orders merely select the officials to be transferred, leaving the task of assigning specific transferred locations to the CEOs. Under sub-section 8A of Section 89, the State has the power to transfer any panchayat officials without requiring prior consultation with the Pradhan or Pramukh or a recommendation from the DEC. Consultation with the Pradhan or Pramukh is directory, not mandatory. The term “consultation” implies soliciting input rather than requiring consent. Section 89(8)(ii) differentiates between fresh appointments and routine postings. The sub-section concerns new appointments, not routine postings. Most transfer orders specify the place of posting, and only a few exceptions exist where this was not mentioned, thus not warranting interference by the court.

Court analysis& Judgement:

The court emphasized the constitutional direction for decentralized governance and the empowerment of Panchayati Raj institutions (PRIs) to manage local affairs autonomously. The 73rd Constitutional Amendment supports this decentralized system. The court pointed out that while the State Government has oversight powers, it should not interfere excessively in the routine administrative affairs of PRIs, thereby respecting their autonomy and the constitutional scheme of self-governance. The court stressed the importance of following procedural norms for transfers, including the necessity of consulting relevant Panchayat officials (Pradhans or Pramukhs) to maintain transparency and accountability. The court examined the powers under Section 89(8A) of the Panchayat Raj Act, which allows the State Government to transfer Panchayati Raj officials without following other procedural safeguards. However, the court maintained that this power should be exercised sparingly and only in cases of administrative exigency. The court repeated that adherence to established judicial precedents could avoid needless litigation.

The court framed specific guidelines for the transfer of Panchayati Raj officials to ensure clarity and prevent arbitrary decisions, this are; Panchayat officials recruited for district-cadre posts should not be transferred outside their respective districts routinely, except where permissible under the Act and Rules. Transfers must be made only after consulting the Pradhan of the Panchayat Samiti. Transfers within a Zilla Parishad require consultation with the Pramukh of the Zilla Parishad. The State can make transfers without consulting the Pradhan or the Pramukh. The State has the authority to transfer Panchayat officials within or between Panchayat Samitis within the same district. The State can transfer officials from one Zilla Parishad to another, from a Panchayat Samiti to a Zilla Parishad, or within the same Zilla Parishad or Panchayat Samiti, with or without consultation of Pradhan or Pramukh. Consultation is not required for transfers made under this section, which gives the State Government the power to stay or cancel transfer orders made under Section 89(8) or associated rules. The Chief Executive Officer/Vikas Adhikari must execute transfer orders passed by the State Government. They do not have any independent power to pass transfer orders. The Committee is empowered to exercise transfer powers in accordance with Government policies and directions, ensuring that the Panchayati Raj institutions’ constitutional status is upheld. Inter-district transfer orders by other Departments must obtain consent from the Panchayati Raj department. ‘Consent’ implies a voluntary, informed decision, and must be explicitly stated through a conscious decision-making process. The court allowed the writ petitions, set aside the impugned transfer orders, and directed the respondents to pass fresh orders if necessary, based on administrative exigencies and within the parameters of the guidelines issued by the court.

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Judgement Reviewed By- Antara Ghosh

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Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act

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Karnataka High Court Upholds Government’s Right to Remove Commission Chairman at Pleasure Under Karnataka State Minorities Commission Act

Case title: MR. ABDUL AZEEM VS STATE OF KARNATAKA

Case no.: WRIT PETITION No.17396 OF 2023 (GM – RES)

Dated on: 28th May 2024

Quorum:  Hon’ble. MR JUSTICE M. NAGAPRASANNA.

FACTS OF THE CASE

The petitioner claims to be a highly qualified citizen having M.A., LL.B. degree and retired as Assistant Police Commissioner and is known for his scientific investigation of high-profile criminal cases. The petitioner was also a Member of the Legislative Council and later in the year 2019 was appointed as the Chairman of the Commission for a period of three years (hereafter referred as the ‘first tenure’). The appointment was in terms of Sections 3 and 4 of the Karnataka State Minorities Commission Act, 1994 (hereinafter referred to as ‘the Act’ for short). The petitioner completes his first tenure on 15-10-2022. On completion of first tenure, an order comes to be passed continuing the petitioner as Chairman of the Commission for another term of three years, for it come to an end on 15-10-2025. When the petitioner was functioning as Chairman of the Commission, the men who man the Government changed. On 22-05-2023 a tippani emerges from the office of the Chief Minister which is communicated by the Chief Secretary to all the Departments. The communication was that the nominations made by the earlier Government will have to be annulled. In furtherance of the aforesaid communication/tippani a Notification comes to be issued on 22-05-2023 by which the continued nomination of the petitioner/2nd tenure is cancelled. The petitioner represents to the respondent/State on 24-05-2023 seeking to withdraw the said Notification. Owing to the representation, a Notification comes to be issued on 24-05-2023 withdrawing the Notification dated 22-05 2023 whereby the notification which cancelled the nomination of the petitioner for the second tenure comes to be withdrawn. The petitioner continues as Chairman of the Commission. The petitioner between the dates 22-05-2023 and 24-05-2023 had submitted a representation 23-05-2023 seeking consideration of the said representation to complete the term as a chairman for another 2 years and 5 months. When there was delay in consideration of the said representation, he had knocked at the doors of this Court in the subject petition by filing it on 05-08-2023. This Court initially issued notice to the respondents. During the pendency of the petition, it appears, the Government issues a Notification on 15-12-2023 cancelling the nomination of the petitioner as Chairman of the Commission. Therefore, the petitioner continues to function as Chairman of the Commission. The State files an application seeking vacation of the interim order and the petitioner files rejoinder to the statement of objections and objections to the application seeking vacation of the interim order. The matter was heard. When it was pointed out that there is no challenge to the order dated 15.12.2023, an amendment comes to be filed by the petitioner which is directed to be taken along with the main matter. With the consent of parties, the matter was heard.

 

ISSUES

  1. whether the petitioner would have any right to continue in the nominated post, which was at all times subject to the pleasure of the State?

LEGAL PROVISIONS

Constitution of India

 ARTICLE 226: Article 226(1) it states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and other purpose.

Karnataka State Minorities Commission Act, 1994

Section 3: Constitution of the Commission

This section outlines the formation and composition of the Karnataka State Minorities Commission, including the appointment of the Chairman and other members.

Section 4: Term of Office and Conditions of Service of Chairman and Members

Sub-section (1): Specifies that the Chairman and other members shall hold office for a term of three years and that their tenure is subject to the pleasure of the Government. This implies that their term can be curtailed by the Government at any time.

Sub-section (2): Details other conditions of service for the Chairman and members, which may be prescribed by rules.

Section 5: Disqualifications for Office of Membership

This section lists specific grounds on which a member can be disqualified from holding office.

CONTENTIONS OF THE APPELLANT

The learned senior counsel appearing for the petitioner submits that the appointment of the petitioner was for a fixed tenure of three years on certain terms and conditions. It was continued for another period of three years on the same terms and conditions. Therefore, it becomes an appointment with fixed tenure and the order which withdraws or cancels the nomination or appointment as the case would be, is arbitrary and misuse of power of pleasure that is available to the State to remove any person who is nominated. The learned senior would seek to place reliance upon several judgments of the Apex Court and that of this Court, all of which would bear consideration qua their relevance. n the rejoinder to the submission of the learned Advocate General, the learned senior counsel would submit that the State in its application seeking vacation of the interim order has indicated that there were several misconducts or illegalities on the part of the petitioner while discharging his duties as Chairman. Therefore, the removal of the petitioner would come within Section 5 of the Act and if it is under Section 5, it could not have been passed without following the principles of natural justice. It is her submission that no notice even issued and the petitioner is removed casting a stigma. She would seek quashment of the order.

CONTENTIONS OF THE RESPONDENTS

The learned Advocate General would take this Court through the Act with particular reference to Section 4. The nomination of the petitioner even if it is for a term, the nomination is in terms of Section 4 of the Act. Section 4 of the Act itself indicates that the chairperson of the Commission will be functioning subject to the pleasure of the Government. Pleasure of the Government shall be that it would only be until further orders. He has been nominated and de-nominated now and no fault can be found with the order impugned cancelling the second tenure of the petitioner. He would also seek to place reliance upon several judgments, which would all bear consideration in the course of the order qua their relevance.

 

COURT’S ANALYSIS AND JUDGEMENT

Though the Apex Court has close to five decades ago considered the effect of doctrine of pleasure and has rendered judgments from time to time, it would suffice if reference is made to the Constitution Bench judgment rendered in 2010, in the case of B.P. SINGHAL v. UNION OF INDIA. It is not in dispute that the petitioner was appointed in terms of Section 4 of the Act supra. Sub-section (1) of Section 4 clearly indicates that the Chairman or other members shall hold office for a term of three years subject to pleasure of the Government. Therefore, the statute itself recognizes the right of the Government to tinker with the nomination prior to its expiry as it is subject to pleasure of the Government. There need not be any inference drawn whether it is a pleasure term or otherwise as the statute itself indicates that it is at the pleasure of the Government. The issue is, whether pleasure could be exercised at any time by the State in terms of Section 4(1) of the Act. Before embarking upon its consideration, I deem it appropriate to notice the line of law, both upholding the annulment of appointment / nominations and annulling such annulment of appointment / nominations by the Apex Court and this Court. The Apex Court holds that doctrine of pleasure however is not a licence to act with unfettered discretion to act arbitrarily, whimsically or capriciously. The said judgment has been followed by a Division Bench of this Court in B.K. UDAY KUMAR v. STATE OF KARNATAKA. The Apex Court holds that nomination by itself from its nature is that the nominees do not have any vested right to continue as it is not akin to a fixed tenure as found in statutory appointments. A Division Bench of this Court in the case of THE STATE OF KARNATAKA v. DR. DEEPTHI BHAVA. The Division Bench upturns the order of the learned single Judge holding that the nominees would hold office with the pleasure of the State and cannot be seen to project any right that is taken away when those nominations are cancelled. The Division Bench holds that principles of natural justice also do not apply to cancellation of nominations, unless it is shown that it is exercised in an arbitrary manner. The afore-quoted judgment in the case of KHUSRO QURAISHI was also concerning the nomination of Chairman of the Commission under the Act. The Division Bench holds that Section 4 itself uses the expression subject to pleasure of the Government. Therefore, it cannot be said that it is arbitrary on the part of the State to invoke the mandate of the statute. If the case of the petitioner is considered on the touch stone of the law laid down by the Apex Court and on the coalesce of the reasoning rendered therein what would unmistakably emerge is, that no right of the petitioner is taken away. The petitioner is a nominee who is nominated under Section 4 of the Act. Section 4 itself indicates that it is at the pleasure of the State. It is exercised and he is de nominated. Such de-nomination of a nominee cannot be questioned on the ground that it is arbitrary. Much reliance is placed by the learned senior counsel for the petitioner in the case of B.P. SINGHAL. The same would not merit any acceptance, as the said judgment is considered by three Division Benches of this Court subsequent to the judgment of the Apex Court and have all held that if the statute indicates that it is subject to the pleasure, a person who is nominated subject to such pleasure cannot make a hue and cry about cancellation of such nomination. The averment is that there are several misconducts and illegalities on the part of the petitioner. A statement in the application seeking vacation of interim order cannot generate a right in the petitioner, which the petitioner in law does not have. Even then, any such averment can never supersede the rigour or mandate of the statute. Taking cue from the aforesaid paragraph the learned senior counsel elaborates her submission by strenuously trying to bring in the case of the petitioner under Section 5 of the Act, to contend that if it is removal under Section 5, notice ought to have been issued. Section 5 deals with disqualification for office of membership. The reason for such disqualification is found in clauses (a) to (g) of sub-section (1) of Section 5 and if those clauses are to be invoked and the incumbent is to be removed, it is then a reasonable opportunity of being heard should be granted. The petitioner is not disqualified on any ground whatsoever. He has been de-nominated, and it is a de-nomination simpliciter exercising State’s right under Section 4 of the Act. This submission of the learned senior counsel for the petitioner, on this score also does not merit any acceptance. In the light of none of the submissions of the learned senior counsel for the petitioner being acceptable, the petition deserves to be rejected. The writ petition is dismissed. Interim order if any subsisting, shall stand dissolved. Consequently, pending applications, if any, also stand disposed.

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Judgement Reviewed by – HARIRAGHAVA JP

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Supreme Court upholds Bombay HC verdict denying appeal for Grants to former Air India Employees.

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CASE TITLE – Mr. R.S. Madireddy & ANR. Etc v. Union of India and ORS. Etc

DATED ON – 16.05.2024

QUORUM – Justice B.R. Gavai & Justice Sandeep Mehta

 

FACTS OF THE CASE

The said appeals were filed challenging the common impugned judgment and order dated 20th September, 2022 passed by the Division Bench of the High Court of Bombay thereby dismissing four writ petitions instituted by the appellants being the former employees of respondent No.3 i.e. Air India Limited (hereinafter referred to as ‘AIL’) as members of its cabin crew force. Appellants came to be employed in AIL in the late 1980s and all of them retired between 2016 and 2018. on 08th October, 2021, the Government of India announced that it had accepted the bid of Talace India Pvt Ltd. to purchase its 100% shares in respondent No. 3 (AIL). Subsequently, on 27th January, 2022 pursuant to the share purchase agreement signed with Talace India Pvt. Ltd., 100% equity shares of the Government of India in respondent No. 3(AIL) were purchased by the said private company and respondent No. 3(AIL) was privatised and disinvested. Therefore, the writ petitions were maintainable on the date of institution but the question that arose before the High Court was whether they continued to be maintainable as on the date the same were finally heard. The Division Bench of Bombay High Court concluded that with the privatisation of respondent No. 3(AIL), jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ to respondent No. 3(AIL), particularly in its role as an employer, did not subsist and disposed of the writ petitions vide common impugned judgment dated 20th September 2022, which is assailed in the present appeals by special leave.

 

ISSUES

Whether respondent No.3(AIL) after having been taken over by a private corporate entity could have been subjected to writ jurisdiction of the High Court?

Whether the delay in disposal of the writ petition could be treated a valid ground to sustain the claim of the appellants even against the private entity?

 

CONTENTIONS BY THE APPELLANT

The Learned Senior counsel appearing on behalf of the appellants submitted that the right to seek remedy stands crystallized on the date of institution of proceedings and though subsequent events can be considered, it is a well-settled tenet of law that such subsequent events can be looked at only to advance equity rather than to defeat it. He urged that different view is permissible only in exceptional circumstances and in no event can a party be divested of its substantive rights on account of such subsequent event. The Learned senior counsel further contended that the scope of issuing a writ, order, or direction under Article 226 of the Constitution of India is much broader than the high prerogative writs issued by the British Courts and this position has been recognized by this Court. He further submitted that equity should prevail over injustice and since the appellants have diligently pursued their case in the High Court for more than a decade, subsequent events can be accounted for only to support and not undermine equity. It was further contended that a private body that promises the sovereign to fulfill its obligations and liabilities as a public employer towards its employees under Articles 14 & 16, then performs a public duty to the extent of discharging such liabilities. It is not the form, but the nature of the duty imposed that is relevant for adjudging whether a writ petition would lie against a private body. The writ petitions were filed with genuine and bona fide service-related issues of the appellant employees based on substantive allegations of infringement of fundamental rights guaranteed under Article 14 and Article 16 of the Constitution of India. However, the writ petitions could not be taken up and decided for over a period of almost 10 years and thus, the appellants cannot be non-suited for the non-disposal of their bona fide lis in a timely manner. He thus urged that appellants herein are entitled to the relief, as claimed for in the writ petitions.

 

CONTENTIONS BY THE RESPONDENT

The Learned senior counsel appearing on behalf of respondent No. 3(AIL) contended that a bare reading of Article 226 of the Constitution of India, would clearly show that the ‘test of jurisdiction’ is to be invoked/applied at the time of issuance of the writ by the High Court. It is at the stage of issuance of a writ that the High Court actually exercises its writ jurisdiction, and therefore, it is at that point of time, the High Court ought to be satisfied that the person to whom it is issuing a writ is amenable to the extraordinary writ jurisdiction. Learned senior counsel further submitted that this Court in the case of Kaushal Kishor has held that a writ cannot be issued against non-state entities that are not performing any ‘Public Function’. He further pointed out that it is the conceded case of the appellants that post privatisation, respondent No. 3(AIL) does not perform any ‘Public Function’ and in any case running a private airline with purely a commercial motive can never be equated to performing a ‘Public Duty’.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court stated that in order to be declared as “State” or “other authority” within the meaning of Article 12 of the Constitution of India, it would have to fall within the well-recognised parameters laid down in a number of judgments of this Court. Since 100% of the shares held by the Govt. of India has been transferred to Talace India Pvt Ltd. Thus, unquestionably, the respondent No.3(AIL) after its disinvestment ceased to be a State or its instrumentality within the meaning of Article 12 of the Constitution of India. The respondent No.3(AIL), the erstwhile Government run airline having been taken over by the private company Talace India Pvt. Ltd., unquestionably, is not performing any public duty inasmuch as it has taken over the Government company Air India Limited for the purpose of commercial operations, plain and simple, and thus no writ petition is maintainable against respondent No.3(AIL). They observed that the Division Bench of Bombay High Court, only denied equitable relief under Article 226 of the Constitution of India to the appellants but at the same time, rights of the appellants to claim relief in law before the appropriate forum have been protected. The Hon’ble Supreme Court further stated that they could not find any reason to take a different view from the one taken by the Division Bench of the Bombay High Court in sustaining the preliminary objection qua maintainability of the writ petitions preferred by the appellants and rejecting the same as being not maintainable. And held that the Appeals are hereby dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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