Judgment and Order, (Oral)
A.K. Goswami, J.
1. Heard Mr. M A Sheikh, learned counsel appearing for the petitioner. Also heard Mr. C Baruah, learned CGC, appearing for Respondent No.1, Mr. J Abedin, learned Counsel appearing for Respondent Nos. 2, 3, 5 and 6 and Mr. S Borthakur, learned counsel for Respondent No.4.
2. This writ petition is directed against the letter of intent issued by the Reliance Industries Ltd., for short, RIL on 27.03.2006 appointing the Respondent No. 4 as a dealer for its retail outlet at Dhakuakhana, Assam. A further prayer is made for a direction to Respondent Nos. 1, 2, 3, 5 and 6, to issue advertisement for settlement of a retail outlet at Dhakuakhana, if they decided to open one.
3. It is pleaded in the writ petition that Dhakuakhana, which is a most backward region of the State of Assam, has a large unemployed population and in order to give employment opportunity to the local population, it was incumbent upon the respondents to have issued a notice inviting tender for appointment of a dealer for the retail outlet at Dhakukhana. Without such advertisement being issued, Respondent No.4 was appointed as retailer on the basis of her application dated 07.12.2005, and therefore, intervention of this Court is called for.
4. The Respondent No.1, in his affidavit, has stated that Ministry of Petroleum and Natural Gas, Government of India, has no control over the procedure of issuing dealership by RIL and it has full authority and power for consideration of allotment of dealership to any person at their discretion and policy and that the policy of Ministry of Petroleum and Natural Gas is not applicable in allotment of dealership by RIL. It is also pleaded that approval was granted by the Government to M/s Reliance Petro Market (P) Ltd, (RPM), which company was, subsequently amalgamated with RIL to market MS (Petrol) and HSD (Diesel).
5. The Respondent Nos. 2 and 3 had filed 2 (two) affidavits-one prior to amendment of the writ petition and the other subsequent to the amendment of the writ application. The second affidavit by Respondent Nos.2 and 3 was filed alongwith Respondent Nos.5 and 6. The sum and substance of both these affidavits filed, is, nonetheless, same. In the first affidavit, objection has been taken with regard to the maintainability of the writ petition on the grounds that:- (i) no right of the writ petitioner had been infringed and therefore, remedy under Article 226 of the Constitution of India is not available, (ii) The letter of intent (27.03.2006) was not put to challenge and; (iii) Respondent Nos. 2 and 3 do not fall within the purview of Article 12 of the Constitution of India.
6. It is stated that RIL is a Company under the Indian Private Sector and it has the right to exercise its marketing policy in its own name and logo and according to its own policies and procedures. It is further stated that as per the government policy, RIL had sought to set up the Reliance outlet in a remote area.
7. In view of the stand taken in the first affidavit that LOI was already issued, the writ petition came to be amended. In the subsequent affidavit, additionally, it had been pleaded that the Respondent Nos. 5 and 6 are not falling within the purview of Article 12 of the Constitution of India. Further plea taken is that amendments effected in Paragraphs 5 (a) and 5 (B) being not sworn statements as per the affidavit, cannot be treated as part of the pleadings.
8. Mr. Sheikh, learned counsel appearing for the petitioner submits that only issues that need to be decided in this case is as to whether RIL and RPL are State within the meaning of Article 12 of the Constitution of India and as to whether they are amenable to writ jurisdiction.
9. According to him, if it is decided that the writ petition is maintainable, the only logical view that would necessarily follow is quashing of the letter of intent issued to Respondent No.4 as the same was issued without following any transparent procedure, which is required to be followed by the State and its instrumentalities in the matter of distribution of its largesse.
10. In support of his submission that the Respondent Nos. 2, 3, 5 and 6 are instrumentalities of the state and are amendable to the writ jurisdiction, learned counsel submits that RIL is an Oil Company in terms of Section 2 (h) of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, for short, Order of 2005 and it could do business in oil only because the Central Government had duly authorised RIL. Accordingly, he submits that petroleum products cannot be dealt with in any manner as one likes but the same is subject to the aforesaid Order of 2005, which implies there is effective and pervasive Governmental control. He has also submitted that there is no limit to the power available under Article 226 of the Constitution of India and in a given case, writ can be issued against a private individual also.
11. In support of his submission, Mr. Sheikh has placed reliance on the decisions in the cases of: (i) AIR 1976 SC 425 (Rohtas Industries Ltd. and Anr.âVs-Rohtas Industries Staff Union and Ors.), (ii) AIR 1980 SC 1896 (Gujarat Steel Tubes Ltd.-Vs- Gujarat Steel Tubes Mazdoor Sabha and Ors.), (iii) (1989) 2 SCC 691 (Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. âVs- V R Rudani and Ors.) and (iv)2007 (2) GLT 312 (Raja Kakati âVs- Union of India and Ors.).
12. Mr. C Baruah, learned CGC in reassertion of the stand taken in the affidavits, submits that RIL was given authorisation in terms of Paragraph 5 of the Order of 2005 and in the matter of appointment of dealership, RIL is free to follow its own policy and the policy of the Government in relation to its undertakings does not apply to them.
13. Mr. J Abedin, learned counsel appearing for Respondent Nos. 2, 3, 5 and 6, submits that appointment of a dealer is purely a private contract between the Respondent Nos. 2, 3, 5 and 6 and the Respondent No. 4 and there is no element of public function involved in it. It is founded on law of contract and the public law remedy is not available in the matter of such appointment of a dealer. He has also urged that the writ petitioner has not canvassed his own cause and with reference to Paragraphs 3 and 4 of the writ petition, it is contended by him that the statements made will go to show that the writ petitioner was trying to take up cudgels on behalf of the local population of the Dhakuakhana. He also urges that there is no whisper in the writ petition, suggesting that the writ petitioner was in any way interested, in the dealership. Therefore, according to him, the petitioner has no locus standi to maintain this writ application. He has further argued that the proposal of the Respondent No. 4 was found acceptable by RIL and following the parameters laid down by the government requiring settling of a retail outlet, allotted the dealership to the Respondent No. 4 at Dhakuakhana, which according to own admission of the writ petitioner, is a very backward region in the State of Assam.
14. Mr. S Borthakur, learned counsel appearing for Respondent No. 4, at the very outset, submits that while there is no interim order operating, in view of the pendency of the writ application, though the Respondent No.4 had set up the retail outlet by making substantial investment, the same is not being allowed to be run by the RIL authorities. With regard to maintainability of the writ petition, the learned counsel echoes the submission advanced by Mr. Abedin. In the factual exposition also, the stand taken by him is akin to the articulation made by Mr. Abedin. He has, however, placed reliance on the decision of the Apex Court in Zee Telefilms Ltd. and Anr. âVs- Union of India and Ors., reported in (2005) 4 SCC 649, with special emphasis on Paragraph 85 to contend that merely because there is general control of business in terms of a statute or Regulation and not in respect of the body of question, such control, per se, cannot bring the entity in the purview of âother authoritiesâ within the meaning of Article 12 of the Constitution of India. He also places reliance on the decision of the Apex Court in Federal Bank Ltd. âVs- Sagar Thomas and Ors, reported in (2003) 10 SCC 733.
15. Under Article 12 of the Constitution of India, unless the context requires, âthe stateâ includes the Government and Parliament of India and the Government and legislatures 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. Article 12 finds place in Part-III of the Constitution of India dealing with Fundamental Rights and significance of Article 12 lies in the fact that various Articles in Part-III of the Constitution of India have placed responsibilities, obligations and duties on the state vis-Ã -vis the individual to ensure constitutional protection and the individuals rights against the state and also to enforce the Fundamental Rights. Over the period of time, the range and scope of Fundamental Rights including Articles 14 and 16 have been expanded through the process of judicial determination, with the result, there has been a corresponding expansion in the judicial definition of the âStateâ in Article 12.
16. In Article 12, the term âother authoritiesâ was introduced at the time of framing of the Constitution with a limited objective of granting judicial review of actions of such authorities which are created under statute and which discharge State functions. Till about the year 1967, the Courts in India had taken a view that even statutory bodies like universities, Selection Committees for admission into Government colleges were not âother authoritiesâ for the purpose of Article 12. These was a paradigm shift in Rajasthan State Electricity Board-Vs-Mohan Lal and Ors, reported in 1967 SC 1857 wherein a Constitution Bench of Apex Court held that the expression âother authoritiesâ is wide enough to include within it every authority created by a statute on which powers are conferred to carry out Governmental or quasi-Governmental functions under the control of Government of India. Necessitated by the change in the socio-economic policies of the Government, to meet the challenges of the changing times, another Constitution Bench of the Apex Court expanded the concept of âother authoritiesâ in the case of Sukhdev Singh and Ors -Vs- Bhagatram Sardar Singh Raghuvanshi and Anr, reported in (1975) 1 SCC 421, to bring within the umbrella of Article 12 statutory bodies like ONGC, LIC etc., though, they are incorporated for commercial purposes. The legal conundrum as to the meaning to be ascribed to âStateâ within the meaning of Article 12 had been subject of many decisions, including perceived conflicting decisions as in Sabhajit Tewary -Vs- Union of India and Ors, reported in (1975) 1 SCC 485 and Ajay Hasia and Ors -Vs- Khalid Mujjib Sehravardi and Ors, reported in (1981) 1 SCC 722. While in Sabhajit Tewary (Supra), the Constitution Bench of the Apex Court held that a body which was registered under a statute and not performing important State functions and not functioning under the pervasive control of the Government would not be State for the purpose of Article 12, in Ajay Hasia (Supra), the Constitution Bench held that a society registered under the Societies Registration Act could also be an instrumentality of State for the purpose of other authorities.
17. The issue came up for consideration before a larger Bench of 7 (seven) Judges in Pradeep Kumar Biswas âVs- Indian Institute of Chemical Biology and Ors, reported in (2002) 5 SCC 111. In paragraph 40, the Apex Court laid down as follows:
â40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex-hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be-whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.â
18. In Zee Telefilms (Supra), applying the tests laid down in Pradeep Kumar (Supra), the Apex Court held that Board of Control for Cricket in India, does not come under the purview of âother authoritiesâ for the purpose of Article 12. It is laid down that even if there is some element of public duty involved in the discharge of the Boards functions, even then, that by itself would not suffice for bringing the Board within the net of âother authoritiesâ.
19. On the own pleading of the petitioner, RIL is a private company. RPM is also a private limited company. Though private company may not be a very apt description of RIL, it is clear that both the aforesaid companies are not created by any statue. There is no material placed to show that any share is held by the Government in the said companies. The control, which is emphased by Mr. Sheikh, is not pervasive control but is only regulatory in nature as applicable to other similar bodies. Thus, RIL and RPM cannot be said to be âother authoritiesâ within the meaning of Article 12 of the Constitution of India.
20. It must be noted that Article 12 is relevant only for the purpose of enforcement of Fundamental Right under Article 32. The term âauthorityâ used in Article 226 has received a more liberal meaning than Article 12. Under Article 226 of the Constitution of India, High Courts can issue writs for enforcement of Fundamental Rights as well as Non-Fundamental Rights. The words âany person or authorityâ used in Article 226 are not confined only to statutory authorities and instrumentalities of the state. While form of the body is not very relevant, the nature of duties cast on the body is of utmost importance. Thus, the words âany person or authorityâ used in Article 226 can cover any other person or body performing public duty and wide power of the High Court can reach injustice wherever it is found.
21. In Andi Mukta (Supra), the Apex Court stated as follows:
â17. â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦.Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to âany person or authorityâ. It can be issued for the enforcement of any of the fundamental rights and for any other purpose.â
22. In Federal Bank Limited (Supra), the Apex Court laid down that a private company would normally be not amenable to the writ jurisdiction under Article 226 of the Constitution of India. It is laid down as follows:
â27. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to.â
23. It is also laid down in Federal Bank (Supra) that any public or commercial activities whether it may be banking, manufacturing or for that matter relating to any other kind of business generating resources, employment, production and resulting in circulation of money, no doubt have an impact on the economy of the country in general but it does not necessarily follow that such activities would fall in the category of activities of discharging duties and functions of public nature. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligation or such obligations of public nature casting positive obligation upon it.
24. In Zee Telefilms (Supra) also, the Apex Court has held thus:
â33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a non-governmental body exercises some public duty, that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case. Hence there is force in the contention of Mr Venugopal that this petition under Article 32 of the Constitution is not maintainable.â
25. In Binny Ltd. âVs- V. Sadasivah and Ors, reported in (2005) 6 SCC 657, the Apex Court stated as follows:
â29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England, 3rd Edn., Vol. 30, p. 682,
â1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit.â
There cannot be any general definition of public authority or public action. The facts of each case decide the point.â
26. In view of the law laid down by the Apex Court, while there can be no manner of doubt that jurisdiction conferred on the High Court under Article 226 of the Constitution is very wide, it is equally true that this is a public law remedy and it is available against a body, a person or a private authority performing a public law function or public function. A body can be said to be performing a public function when it seeks to achieve some collective benefit for the public or a section of the public.
27. Gujarat Steel (Supra), on which reliance was placed by Mr. Sheikh, is a case where, the Apex Court was considering whether an Arbitrator appointed under S 10 A of Industrial Disputes Act, 1947 was amenable to writ jurisdiction under Article 226 of the Constitution of India. As such an Arbitrator has the power to bind even those who are not parties to the reference or agreement and the whole exercise under Section 10 A as well as the source of the force of the award on publication derived from the statute, it was held that the Arbitrator so appointed as part of the infra-structure of the sovereigns dispensation of justice, thus falling within the ambit and sweep of statutory tribunals amenable to judicial review. Consequently, it was held that under Article 226, the High Court could interfere with an award of the Arbitrator if that is based on a complete misconception of law or based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived. This case has no application to the issues raised by Mr. Sheikh. In laying down the aforesaid principle, the Apex Court reiterated the ratio laid down in Rohtas Industries (Supra), another case relied on by the learned counsel for the petitioner. While recognising that expansive and extraordinary power of the High Court under Article 226 can affect any person or even a private individual and be available for any purpose, even though another remedy may exist, the Apex Court reminded the restraints on the use of the extraordinary power. In Raja Kakati (Supra), this Court was basically considering application of principles of natural justice in case of termination of dealership of retail petroleum product. These cases are not applicable to the issue raised by Mr. Sheikh.
28. It is noted that the Central Government in its affidavit has categorically laid down that regulation of the Central Government which are applicable for establishment of retail outlet by the public sector undertaking is not applicable to the private respondents. The appointment of a dealer, in the considered opinion of the Court, cannot be construed to be a public function of a private authority.
29. In the result, I find no merit in the writ petition and accordingly, the same is dismissed. No cost.