Judgment:
ORDER
T.S. Doabia, J.
1. This is a petition under Articles 226 and 227 of the Constitution of India. In this petition, a prayer has been made for issuing a direction for expunging certain observations made in letter marked as P5 to P10.
2. A preliminary objection has been taken by the respondents that the respondent M.P. Pradeshik Scouts and Guides does not fall within the definition of the term 'State' as contemplated by Article 12 of the Constitution of India. It has been contended that the respondent-organisation is a society registered under the Societies Registration Act, 1860 (hereinafter referred to as the 'Act') and as such, it would not be amenable to writ jurisdiction.
3. As noticed above, the respondent No. 2 against whom a direction is being sought is a society registered under the Act. It has several office bearers and some functionaries of the State are also associated with this society. The president of the society is supposed to be a citizen of this country and he holds the Office after he is duly elected by the National Council. There is a National Association, State Association, Divisional Organisation, District Association, and Local Assocaition. All these associations have their managing bodies constituted in terms of the Articles under which these bodies are brought into existence.
4. The question as to whether the respondent No. 2 is a State or an authority for the purposes of Article 12 of the Constitution of India may be examined.
5. The Supreme Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628 laid down some of the tests with a view to decide whether a particular authority is an instrumental of the State or not. In paragraph 19 some of the factors were highlighted as under:--
'Whether there is any financial assistance given by the State, and if so, what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or it is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency.'
It was further observed (at p. 1642 of AIR)
Moreover even amongst these factors which we have described, no one single factor will yield a satisfaction answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case. 'The dispositive question in any State action case' as pointed out by Dougles J., in Jackson v. Metropolitan Edison Co. (1974) 419 US 345 is not whether any single factor or relationship presents a sufficient degree of State involvement, but rather whether the aggregate of all relevant factors compels a finding of State responsibility.' It is not enough to examine seriatim each of the factors upon which a corporation is claimed to be an instrumentality or agency of Government and to dismiss each individually as being insufficient to support a finding to that effect. It is the aggregate or cumulative effect of ail the relevant factors that is controlling.'
6. Again a Constitution Bench of the Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 formulated certain tests which may enable one to find out whether a particular body is an instrumental of the State or not. The relevant tests were summarised as under (at p. 490 of AIR) :
'(1) 'One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.'
(2) 'Whether the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.'
(3) 'It may also be a relevant factor ....... whether the corporation enjoys monopoly status which is the State conferred or State protected.'
(4) 'Existence of 'deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.'
(5) 'If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government.'
(6) 'Specifically, if a department of Govt. is transferred to a corporation it would be a strong factors supportive of this inference' of the corporation being an instrumentality or agency of Government.'
It may be seen that none of the tests as indicated in the above two cases are present in the present case and therefore, the respondent-society cannot be held to be an authority for the purposes of Article 12 of the Constitution of India.
(6A) The Delhi High Court in the case of Sarmukh Singh v. Indian Red Cross Society, 1985 Lab IC 1072 held that Red Cross Society is not an authority for the purposes of Article 12 of the Constitution of India.
7. In view of the above discussion and in view of the decisions of the Supreme Court in the aforementioned cases, it becomes apparent that the respondent society is not performing any governmental functions and as such it cannot be said to fall under the term 'State' or 'authority' as contemplated by Article 12 of the Constitution of India. The preliminary objection raised on behalf of the respondents is upheld and the present petition is held to be not maintainable and the same is dismissed. The petitioner would be at liberty to pursue such other remedies as may be available to her under the ordinary law.