Full Judgment Text
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CASE NO.:
Appeal (civil) 3499 of 2005
PETITIONER:
Gurcharan Singh
RESPONDENT:
Registrar, Co-operative Societies, Himachal Pradesh and Ors.
DATE OF JUDGMENT: 15/09/2005
BENCH:
Arijit Pasayat & C.K. Thakker
JUDGMENT:
JUDGMENT
ORDER
The present appeal is directed against the judgment of the High Court of
Himachal Pradesh at Shimla in Civil Review No. 9 of 1998. By the impugned
order, the earlier order passed in Civil Writ Petition No. 1844 of 1995 was
recalled and it was held that the High Court had no jurisdiction to
entertain the writ petition. This view was taken primarily on the ground
that the respondent was a Cooperative Society and was, therefore, not
covered within the meaning of Article 12 of the Constitution of India, 1950
(in short ‘the Constitution’). Reliance for this purpose was placed on two
Division Bench judgments of the High Court holding that the High Court had
no jurisdiction to entertain the writ petition. As noted above, the review
was allowed and the writ petition was dismissed as being not maintainable.
No view was expressed on the merits of the case.
Learned counsel for the appellant submitted with reference to a seven
Judges Bench judgment of this Court in Pradeep Kumar Biswas v. Indian
Institute of Chemical Biology and Ors., [2002] 5 SCC 111 that the writ
petition is maintainable. By the said judgment, the decision of the
Constitution Bench in the case of Sabhajit Tewary v. Union of India and
Ors., [1975] 1 SCC 485 was overruled. The Constitution Bench judgment in
the case of Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors., [1981]
1 SCC 722 was explained and multiple tests for determining whether a
particular Corporation or Body can be held to be included within the
definition of ‘‘State’’ under Article 12 of the Constitution, were laid
down. It was inter-alia held as follows:
‘‘The picture that ultimately emerges is that the tests formulated
in Ajay Hasia’s case (supra) 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.’’
It appears that the basic factual aspects were not placed before the High
Court to determine the question whether the respondent-Society was
‘‘State’’ within the meaning of Article 12 of the Constitution. In view of
the aforesaid, we feel it would be appropriate for the High Court to
examine the question regarding the maintainability in the background of
what has been stated in Pradeep Kumar’s case (supra). The parties shall be
permitted to place materials in support of their respective stands in this
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regard. As the matter is pending since 1995 and involves the question of
legality or otherwise of termination of services of the appellant, it would
be in the interest of the parties if the writ petition is disposed of as
early as practicable preferably within four months from the date of receipt
of our order.
In the ultimate result, Civil Writ Petition No. 1844 of 1995 is restored to
file.
We make it clear that we have not expressed any opinion on the merits of
the case. The High Court shall decide the question of maintainability of
the writ petition as well as the merits. In case, it holds that it has
jurisdiction, then it shall consider the merits by taking into account the
materials to be placed before it by the parties in respect of their
respective stand.
The appeal is disposed of accordingly without any order as to costs.