Legal Fiction: Conversation between Lord Mangolier, Lord Yayata and Sir Yumio on Jurisdiction under Article 226, Definition of State and Existence of Alternate Remedy

Introduction

 

Today, in continuation of the earlier story, apart from Lord Mangolier and Lord Yayata, let us know a bit more about another friend of theirs who is also a budding Jurist, Sir Yumio. He has been officially conferred the title of ‘Lord’ as well but some legal formalities remain that prevent us from addressing him as a Lord. For now, we will continue to address as ‘Sir Yumio.’

 

Sir Yumio comes from the Ancient Tribal Clan of the murky mountain rage of Golio. Golio Mountain Range is known for its breweries and rich scenic beauty and the people there have such high level of happiness that there is a rich tradition of year long festivities and celebrations. Sir Yumio’s family also belongs to the political class of Golio. They had been its scions since time immemorial. Sir Yumio had been a hyperactive person right since his childhood. He often found himself engrossed in creative works and being from a political family, he also developed a strong taste for politics. This interest in politics led him to study since it was his childhood dream to become a law-maker. Whenever Sir Yumio gets spare time, he indulges in creative works and has a habit of making paper boats of different sizes. His paper boats are so famous that once a famous trader came to their house and got so impressed with the paper boat that he bought it for a 100 thousand Kuns which is the official currency of Golio. These days Sir Yumio is involved in providing legal advice to big entities and states.

 

The Story

 

Lord Mangolier and Lord Yayata were presiding over a Bench that involved a dispute relating to criminal law. There were heated arguments on both the sides. But being astute jurists, Lord Mangolier and Lord Yayata got the gist of the matter and wrapped up the proceedings in a frenzy for it was their beloved friend Sir Yumio who was waiting since last one hour in the chamber of Lord Mangolier. They had not met him since last many years and were eager to meet him. Hurriedly, after concluding the proceedings, they rushed to their Chambers and meanwhile directed their assistants to prepare Samosas which was the favourite snack of Sir Yumio.

 

Lord Mangolier: Hello Yumio! My old friend. How have you been? It has been a long time since we last met. You are so busy these days.

 

Sir Yumio: Hello both of you. I am doing great. What about you two? I see that both of you have gained some weight. Looks like this place has been treating you well.

 

Lord Yayata: Yeah. Pretty well. So well that these days most of our time is spent in reading books. We have brought the case pendency rate to zero.

 

Sir Yumio: That is good to know. The world needs jurists like you. Before we go out and start our party, I have had a small doubt that has been troubling me since last two days. In India, I have heard and even read that a Writ Petition can be filed against a Private Party. However, I am not able to understand its length and breadth. There is a client of mine who is insisting on approaching the Hon’ble High Court under Article 226 rather than approaching the Civil Courts by filing a Civil Suit for Recovery of Money.

 

Lord Yayata: Yes, you may indeed file Writ Petitions either under Article 226 or Article 32 of the Constitution of India. Normally, it is the State or the State authorities against which a Writ Petition may lie. In most of the cases, they are filed for enforcement of the Fundamental Rights enshrined in Part III of the Constitution of India. But how do you seek enforcement of fundamental rights against private parties?

 

Sir Yumio: This is confusing. In my view, the language of Article 226 (1) of the Constitution of India is couched in such a manner that a Writ of Mandamus could be issued even against the private authorities. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function.

 

“Article 226 (1) – Notwithstanding anything in article 32 every High Court shall have power, 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, 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.”

 

Lord Yayata: So, your view is that discharge of public function is what will decide whether private party is amenable to Writ Jurisdiction or not.

 

Sir Yumio: Yeah. Pretty much.

 

Lord Yayata: I concur with you. If there is indeed discharge of public functions, then such party will fall within the ambit of Article 226 of the Constitution of India.

 

Sir Yumio: To be a bit more specific, my client is a money-lender of sorts and in light of the case-laws pronounced by the Hon’ble Supreme Court of India, it has been held that merely because financial institutions are regulated by certain laws and are engaging in commercial activities, this by itself cannot mean that such a financial institution is discharging a public function. Not all commercial or contractual activities can fall within the ambit of public duty or public function. This was held in Federal Bank Ltd vs Sagar Thomas & Ors.

 

Lord Mangolier: My own view is that private parties are generally not amenable to Writ Jurisdiction due to Article 12 of the Constitution of India. However, there are exceptions.

 

“12. Definition – In this part, unless the context otherwise requires, the State 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.”

 

Lord Yayata: I know but in my considered view, the courts over a period of time have convoluted this definition and even the mandate of the courts with respect to Writ Jurisdiction.

 

Lord Mangolier: Are you referring to the long series of case laws pronounced by the Indian Courts?

 

Lord Yayata: Yeah.

 

Lord Mangolier: Generally, we know that writ petitions cannot be preferred against the Courts since the Courts do not fall within the ambit of the term “State.” But I think it is important to understand that the litmus test also lies in understanding the kind of function that is being performed by the authorities. Thus, even when a court performs an administrative action, it can always be subjected to writ jurisdiction. My own view is that whether a writ is maintainable against a private party or not is a very wide question and no straightjacket answer exists. A nuanced approach based upon the evolving jurisprudence seems the best way to me. And also depending upon the facts and circumstances of each case.

 

Sir Yumio: So, it is this reasoning adopted in these judgments that come in the way of approaching the courts under Article 226 of the Constitution of India.

 

Lord Mangolier: I totally agree. In my humble opinion, Writ cannot be an appropriate remedy in such a case. Please let me know if you find some argument that may support you. But I highly doubt it. My own experience has been innovative or novel interpretation should be mostly done on the issues relating to the merits. Jurisdiction is something very dicey. Unless a party has no other remedy left, then novel or innovative approaches can reap results or even sound attractive. Suppose that even if by some logic, an interpretation is generated that a Writ is maintainable, then also, all the opposite party would have to say that there is an alternative remedy available. I think a bare perusal of the judgment pronounced in the case of K.K. Saxena v. International Commission on Irrigation and Drainage & Ors. would be apposite at this juncture.

 

"34. As has been held in the case of Federal Bank Ltd. (supra), solely because a private company carries on banking business, it cannot be said that it would be amenable to the writ jurisdiction. The Apex Court has opined that the provisions of Banking Regulation Act and other statutes have the regulatory measure to play. The activities undertaken by the respondent-society, a non-governmental organization, do not actually partake the nature of public duty or state actions. There is absence of public element as has been stated in V.R. Rudani and others (supra) and Sri Venkateswara Hindu College of Engineering and another (supra). It also does not discharge duties having a positive application of public nature. It carries on voluntary activities which many a non-governmental organizations perform. The said activities cannot be stated to be remotely connected with the activities of the State. On a scrutiny of the constitution and by-laws, it is difficult to hold that the respondent- society has obligation to discharge certain activities which are statutory or of public character. The concept of public duty cannot be construed in a vacuum. A private society, in certain cases, may be amenable to the writ jurisdiction if the writ court is satisfied that it is necessary to compel such society or association to enforce any statutory obligation or such obligations of public nature casting positive public obligation upon it."

 

Sir Yumio: So, here comes another bummer in the form of existence of alternate remedy that is a civil suit could also be filed in the present case for recovery.

 

Lord Mangolier: Sorry to disappoint you Yumio. But the Hon’ble Supreme Court in the case of United Bank of India Vs. Satyawati Tondon and others, (2010) 8 SCC 110, has held in following terms:

 

“43. Unfortunately, the High Court overlooked the settled law that the High Court will  ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute......"

 

Sir Yumio: Hmm. So, this issue seems to be settled now. What do we do for the rest of the day?

 

Lord Yayata: It has been a long time since we last played the game of Golf together. My Private Golf Course is also undergoing a re-design. If both of you could come with me, I might even get some valuable suggestions for redesigning and renovating it.

 

Lord Mangolier: Sounds good to me.

 

Sir Yumio: Then what are we waiting for. Let’s roll.