WRIT JURISDICTION AND PRIVATE SECTOR

When question of Fundamental Right is involved, the jurisdiction of both Supreme Court
under Article 32 and High Courts under Article 226 is mandatory, but for other purposes the
power of High Court under Article 226 is discretionary. The constitution places no limitations
or fetters on the powers of the High Court except self-imposed limitations. But these
limitations are not a rule of law, but a matter of convenience for judges to dispose of the
cases and to indicate as to how discretion will be exercised. Some of such self imposed
limitations are:

(i) Alternative Remedies ; (ii) Laches or unreasonable delay (iii) Res judicata; (iv)
Authorities against whom writs may be issued (this is the topic to be covered
under writ jurisdiction and private sector); and (v) Who can apply for a writ:
Locus Standi( mentioned under writs)

i) Alternative Remedies -In Veerappa v, Raman 1952, it was held that the Motor Vehicles
Act, 1939 contains a complete and precise scheme for regulating the issue of permits and
provides remedies for redressal of grievances and correction of errors, therefore, a person
aggrieved by the refusal of a permit to him should first take recourse to the remedies provided
under the Act and not straight way invoke Article 226. Similar was the ruling with reference
to the Income Tax and Sales Tax. In a number of cases, the Supreme Court has held that
where an action lies to the authorities under the Income Tax Act and Sales Tax Act, High
Court may decline to interfere under Article 226 of the constitution,1954.

ii) Unreasonable delay or Laches-A person who intends to invoke the extra ordinary
jurisdiction under Article 32 or Article 226 of the constitution must approach the courts at the
earliest possible time. Relief can be refused on the ground of inordinate delay or laches. But
all depends on discretion of court like in Ramachandra Shankar Deodhar v. State of
Maharashtra, 1974, a writ petition under Article 32 filed after twelve years of the accrual of
the cause of complaint was still entertained by the Supreme Court. Article 32 or 226 does not
prescribe any period of limitation. What is the measure of delay? According to the Supreme
Court It was held in Durga Prasad v. Chief Controller of Imports, 1970: No hard and fast
rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in
favour of a party who moves it after considerable delay and is otherwise guilty of laches.
That is a matter which must be left to the discretion to the High Court and like all matter left
to the discretion, of the court, in this matter too discretion must be exercised judiciously and
reasonably.

iii) Doctrine of res judicata (Res judicata means a matter adjudicated upon) is based on
three maxims –

1. nemo debt bis vexari : No man should be vexed twice over for the same cause;

2. interest republical ut sit finis litium : It is in the interest of the state that there should be an
end to a litigation;

3. res judicata pro veritate occipitur : a judicial decision must be accepted as correct.

The doctrine of res judicata does not apply in the case of Habeas corpus petitions.

iv) Authorities against whom writs may be issued: All the cases covered under Article 12

In a modern society, State has to undertake a multitude of socio-economic activities.The

decision of the Supreme Court in M. C. Mehta v. Union of India,1987 is a striking
illustration, aftermath of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at
Delhi. This gas leak occurred soon after the infamous Bhopal gas leak and created a lot of
panic in Delhi. The case lays down the principle of absolute liability and the concept of deep
pockets. The question involved in this case was whether a writ could be maintainable
under Article 32 against Shriram Foods and Fertiliser Industries, a private corporation,
as 'other authorities' within the meaning of Article 12 so as to achieve the true spirit
envisaged under Article 21 of the Constitution? By virtue of the writ petition, the
petitioner sought the help of Supreme Court to direct Shriram to pay compensation to the
victims of oleum gas leak caused from one of its units, though another writ petition filed by
Legal Aid and Advice Board and Delhi Bar Association for closure of certain units of
Shriram and replace it in a thinly populated area, was pending before the same Court. The
Court examined the facts and issues involved in this case with the objectives of functional
test, control test and human rights jurisprudence. Relying on functional test the court held that
the activity of producing fertilisers and chemicals was deemed by the State as an industry of
vital public interest, whose public importance necessitated that the activity should be carried
out by the State itself, though in the interim period with State support and State control,
private corporations might have been permitted to supplement the State effort. Here, Shrirarn
was manufacturing chemicals and fertilisers which are so fundamental to the society and so it
could be considered as governmental function. An interesting remark of this case is that
even without deciding Shriram as 'State' under Article 12, the court maintained the
writ petition and laid down the rule of absolute liability of compensation to the victims
by modifying the principle of 'strict liability' in Rylands v. Fletcher. In short, the Court
held that since Shriram was engaged in a hazardous or inherently dangerous industry which
posed a potential threat to the health and safety of the persons working in that concern and
residing in the surrounding areas, the same should compensate for such harm and it was not
in a position to avert its liability by saying that it had taken all reasonable care and that the
harm occurred without any negligence on its part. The Court directed the Delhi Legal Aid
and Advice Board to file actions in the appropriate court, on behalf of the victims of
oleum gas leak, for claiming compensation against Shriram.

Shri Anadi Mukta Sadguru S.M.V.S.J.M.S. Trust v. V.R. Rudani, 1989, the question in this
case was whether the performance of a 'public duty' will make a private person or body
amenable to writ jurisdiction even if they are not an authority within the meaning of Article
12 of the Constitution of India. The facts of the case disclose that the appellant decided to
close down a college run by it as a measure to protest against a decision by the University of
Gujarat to implement and award the revised pay scale of the teachers with retrospective
effect. The appellant refused to pay the teachers the terminal benefits under an Ordinance of
the University and the amount of arrears of salary under the award even after repeated
requests. The teachers finally approached the Gujarat High Court under Article 226 and the
petition was granted. In appeal before the Supreme Court also the main contentions raised on
behalf of the appellants were: the Trust, being a private body was not amenable to writ
jurisdiction of High Court under Article 226 and the awarding arrears of salary under the
Chancellor's award was under the liability of the Government and not of the management of
the college.

The court found that the college was receiving monetary grants from the Government,
discharging a public function by imparting education and activities of the institution
were closely subject to the Rules and Regulations of the affiliated University. By giving
due respect to these conclusions, Justice Jaganatha Shetty categorically held that if the rights
are purely of a private character no mandamus can be issued. If the management of the
college is purely a private body with no public duty, mandamus will not lie. These are two
exceptions to mandamus. But once these are absent and when the party has no other equally
convenient remedy, mandamus cannot be denied

Asulal Loya Vs. Union of India (UOI),2008: The petitioner, Mr. Asulal Loya had filed the
present writ petition on 28th September, 1991 challenging his order of termination of service
by the respondent company(Bharat Aluminium Company Limited) . A preliminary issue has
been raised by the respondent company that the present writ petition is no longer
maintainable and no relief can be granted against the respondent company as it is not a 'State'
or 'other authority' under Article 12 of the Constitution of India. The petitioner, on the other
hand, contends that the writ petition when it was originally filed against the respondent
company was maintainable.

The question which requires consideration is whether in the present writ petition any
relief can be granted to the petitioner if at the time when judgment is pronounced, the
respondent in the litigation is not a State within the meaning of Article 12 of the
Constitution of India. It is fairly well settled that a writ petition is not maintainable against a
private limited company or a public limited company in which the State does not exercise all
pervasive control. In Binny Limited and Anr. v. V. Sadasivan,2005, the Supreme Court has
held that a writ petition under Article 226 of the Constitution is normally issued against
public authorities and can also be issued against private authorities when they are discharging
public functions and the decision which is sought to be corrected or enforced must be in
discharge of a public function. In the present case, the issues and questions involved do not
relate to public functions. The Supreme Court in State of U.P. v. Mohd. Nooh, 1958 in which
it was observed that Article 226 of the Constitution of India does not have retrospective
effect.

It was finally held that it is inherent right of every person to bring a suit of civil nature unless
it is expressly or impliedly barred. Similarly, where pre-requisites of Industrial Disputes Act,
1947 are satisfied, proceedings can also be initiated under this Act. The petitioner is,
therefore, not left remediless. In these circumstances, the present writ petition is
dismissed without going into the merits of the matter upholding the preliminary
objection raised by the respondent company that it is not a State and, therefore, not
amenable to writ jurisdiction. It is, however, observed that the petitioner is at liberty to
approach any forum for redressal of his grievance, if so advised and the time spent by him in
these proceedings shall be taken into consideration for the purpose of limitation. In the facts
and circumstances of the case, there will be no order as to costs.

References:

http://www.bsepsu.com/BALCO.asp?compflag=BHARAT%20ALUMINIUM%20CO.LTD.

http://dspace.cusat.ac.in/jspui/bitstream/123456789/10869/1/Private%20concerns%20with
%20public%20duties_%20amenability%20to%20writ%20jurisdiction.PDF

https://shodhganga.inflibnet.ac.in/bitstream/10603/132460/11/11_chapter%204.pdf