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Judgment
P. Jyothimani, J.—These writ petitions are filed challenging the certificate issued by the 2nd respondent the Institute of Town Planners of India, rep. by its President, New Delhi to the 4th respondent for Associate Membership and its examination of the Town Planning Examination Board of the Institute dated 07.06.2006 and also to forebear the 3rd respondent from conferring any benefits to the 4th respondent pursuant to the award of Associate Membership issued by the 2nd respondent. The petitioners are appointed as Planning Assistant Grade-II by the 3rd respondent on 27.06.1988 and 25.09.1987 respectively.
The Writ petitioner in W.P.No. 38853 of 2006 was enrolled as Member with the first and second respondents and awarded as Associate Membership on 23.02.2003 and he has also completed his Post Graduate court in Town Planning at New Delhi in the year 1994. According to the petitioner, the persons other than those who are qualified, namely, Civil Engineering and Post Graduate in Town Planning, are bound to enrol as Student Member under the first and second respondents, to qualify for Associate Membership as per its bye-law.
The petitioner in W.P.No. 41061 of 2006 has got further promotions as Planning Assistant Grade-I on 25.03.1991 and became Assistant Planner on 13.07.2000. The petitioner is a B.E. (Civil) Degree holder with first class from the Anna University in 1994 and completed Master of Town and Country Planning in January 1997. The petitioner was also admitted as Associate Member of the Institute of Town Planners of India, namely, the second respondent in the year 1999. The petitioner in the said Writ petition is due for promotion from the post of Assistant Planner to Deputy Planner under third respondent. The fourth respondent is also working as Assistant Planner in the C.M.D.A., however, he does not possess qualification prescribed for the said post. He was also not qualified to register himself as Associate Member directly for want of technical qualification. However, he got enrolled himself as Student Member with the first and second respondents in the year 1992.
According to the bye-laws of the first and second respondents, a Student Member has to complete in submission of a Thesis within 6 years from the date of enrolment or on an extension of a further period of 2 years on satisfying the counsel that he has taken steps for Associate Membership. According to the petitioner, the 4th respondent has not completed the course within the prescribed period as per bye-law and he used his influence by pressurising the first and second respondents to award the certificate of Associate Membership in the year 2006, after 14 years from the date of his enrolment, which according to the petitioner is illegal.
According to the petitioners, the first and second respondents by issuing such certificates to the 4th respondent in violation of the bye-law 22, which is a mandatory provision and is illegal. The petitioner in W.P.No. 38853 of 2006 has filed W.P.No. 23786 of 2005 for a direction to forebear the first and second respondent in awarding Fellowship and Associate Membership to anybody in violation of Rule 22 of bye-laws of the first and second respondents and the same was permitted to be withdrawn and dismissed since the matter involved public interest. Subsequently, public interest litigation was filed by one Citizens Care Foundation, represented by its Present Mr. K.M. Sadhanandh in W.P.No. 6530 of 2006 and the Hon''ble First Bench of this Court was pleased to order notice of motion of 13.03.2006 and the same is pending. The certificate issued by the first and second respondents to the 4th respondent is challenged mainly on the ground that it is in violation of Rule 22 of the bye-law of regulation governing the first and second respondent. According to them, by conferring the Associate Membership to the fourth respondent, the claim of genuine candidates are being prevented, apart from the fact that the claim of the petitioner for next promotion to the post of Deputy Planner, is also prevented.
The second respondent has filed a counter affidavit. The second respondent has raised the point that the Writ petitions are not maintainable. According to the second respondent, it is not a statutory body but incorporated u/s 25 of the Indian Companies Act, 1956 and therefore, a writ will not lie. That apart, even on merit the second respondent would submit that the qualification as per the first and second respondent, for enrolment as student for appearing in the Associate examination of the Institute of Town Planners of India, the qualification prescribed are -
1) A Bachelors Degree in Civil Engineering or Architecture from any University/Institution of India or Abroad or its equivalent recognized by Government of India.
2) Master Degree in Economics, Sociology, Geography, Political Science or LLB from any University/Institution in India or Abroad recognized by Government of India or
3) Other qualifications or experience which is Town Planning Examination Board may accept from time to time as equivalent to the above after considering the background, training and experience of a candidate individually.
According to the second respondent, it was in conformity with Clause (c), the Town Planning Examination Board in its meeting held on 27.06.1987 has decided that any persons holding the Post Diploma in Town and Country Planning are also made eligible for Student Membership Provided that they clear the additional papers, namely -
1) Introduction to Statistics
2) Economics and
3) Sociology
Therefore, according to the second respondent, the 4th respondent is fully in compliance with the said requirements. Therefore, it is denied that the 4th respondent is not having qualification for the student Membership. In respect of the claim made by the petitioner regarding bye-law 22, according to the second respondent the same has been amended by the counseling in the general meeting held on 15.01.2006 stating
a person may be a student for not more than 6 years but the counsel upon his application may permitting him to be a student for such additional period as the counsel may, in its decision decide so, however that the student satisfy the counsel that he is taking steps to qualify for Associate Membership.
and the said amendment has been effected by virtue of power vested under bye-law 104 and the amendment has also been informed to the Department of Company Affairs, Office of the Registrar of Companies.
It is also stated by the second respondent that the writ petition filed in W.P.No. 23786 of 2005 was withdrawn. It is also the case of the second respondent that being the Associate Membership of the second respondent, it is improper for the petitioner to quote the old bye-law 22, which was subsequently, amended. It is also the case of the second respondent that the intention of the said amendment is to give the second respondent to decide the issues on merits on individual basis.
The 4th respondent has also filed the counter affidavit, apart from the petition to vacate the order of injunction. The 4th respondent has also raised the point of maintainability of Writ petitions on the basis that the second respondent is a company registered under the Indian Companies Act, 1956, and therefore, it is not a state within the meaning of Article 12 of the Constitution of India. According to the fourth respondent, he has experienced as Assistant Planner for more than 11 years, while the petitioners in the Writ petitions have only 6 years experience as Assistant Planner. According to the fourth respondent the course, namely, the Associate Membership examination conducted by the second respondent is equivalent to the Master of Town Planning course, conducted by the Anna University, as recognized by Government of Tamil in G.O.Ms.No. 298 dated 20.02.1986. He would also submit that as per the amended bye-law 22, the petitioners were entitled for the Studentship. The fourth respondent would also submit that he is possessing necessary qualification for promotion to the post of Deputy Planner and the certificate issued by the second respondent is legally valid, apart from the fact that the Writ petitioners have no loco standi.
The writ petitioners have filed reply affidavit. While meeting he contention of maintainability raised by the respondents, the petitioners would state that the second respondent institute is performing public duties of great importance and it is a national recognized institute for award of Associate Membership examination and recognized by the Government as equivalent to the Master of Town Planning Degree awarded by Anna University. According to the petitioners, the All India Counsel for Technical Education as per the powers vested under AICT Act 1987, reconstituting the All India Board of Town and Country Planning and the second respondent comes directly under the control of the All India Board and according to the petitioners, the first and second respondents come under the supervision and control of All India Counsel for Technical Education.
Mr. K. Duraisamy, learned appearing for the petitioner in W.P.No. 38853 of 2006 placing reliance on the judgment of the Hon''ble Supreme Court reported in 2005 4 LW 745, contending that even if there is a private party, which may not come within the purview of state under Article 12 of the Constitution of India, it can be made amenable to the Writ jurisdiction, if there is a public law element, even though it cannot be exercised to enforce purely private contracts entered between the parties. He would also submit that the Associateship examination conducted by the second respondent, would be equivalent to a degree, especially in the circumstances that the second respondent is the only institute regarding Town and Country Planning studies and therefore, it is unique in its character and therefore, according to him the certificate to be awarded by the second respondent is the performance of public duty.
He would also submit that as per the merit, the contention of the second respondent as if bye-law 22 was amended as per bye-law 104, is not tenable. According to him, the amendment has to be done following the procedure contemplated under bye-law 104 and such procedure has not been followed in calling the general meeting of the council and even such amendment when it was passed, the same can be enforced only after it is submitted to the Registrar of Companies, who has expressed no objection for such amendment. The learned Senior counsel would submit that extraordinary general body meeting called on 15.01.2006, was only for the purpose of extension of time limit for completion of Associationship examination for which, the board has given power. There was no resolution carried out for amendment as per bye-law 104.
He would also submit even assuming that amendment is passed, the word "not more than 6 years", has not been taken away under bye-law 22. According to the learned Senior counsel, the extension power given cannot be more than the original period given by referring to the dictionary meaning of the term "extension". Therefore, according to him unless and until the Registrar of Company issues no objection certificate as per bye-law 195, such amendments cannot come into effect. The learned Senior counsel would also refer to the terms in the counter affidavit filed by the second respondent, wherein, it is stated that the amended bye-law has been informed to all members through its institute''s news letter, which according to him means that such amendment has not been effected in the general council. He would also submit that the petitioner being a member of the institute has raised his objection on 01.12.2006 stating that the amendment has never been effected to Rule 22 in accordance with 104 and 105 of the bye-laws.
Mr. Vijayshankar, learned Counsel appearing for the petitioner in W.P.No. 47396 of 2006 would submit that earlier when the writ petitioners have approached this Court by filing W.P.No. 47396 of 2006 objecting to the manner in which the bye-law was sought to be amended, this Court by order dated 07.12.2006, has directed the Registrar of Companies to consider the representation of the petitioner dated 01.12.2006 before the passing any order, regarding the no objection certificate for amended bye-law and the Registrar of Companies has not passed any orders and therefore, it cannot be said that the amendment has come into effect even assuming that such amendment has been placed before the general counsel.
On the other hand, Mr. A.L. Somayaji, learned Senior Counsel appearing for the 4th respondent would submit that the very basis of the filing of the writ petitions by the petitioners is the manner of amendment effected to Rule No. 22 of the bye-laws of the first and second respondents. According to the learned Senior counsel, the fourth respondent has joined as Planning Assistant Grade II under the third respondent on 28.10.1976 and he was promoted as Grade I Planning Assistant on 31.05.1984, whereas the writ petitioners are junior, having joined in 1988 as Planning Assistant Grade II. He would also bring to the notice of this Court by virtue of the order of interim injunction granted by this Court in W.P.No. 38853 of 2006 the petitioner was promoted as Deputy Planner on 16.10.2006, even though he is a junior. According to the learned Senior counsel, the amendment effected to the bye-law under Rule 22 and the second respondent is governed by the Companies Act, since the second respondent is registered u/s 25 of the Indian Companies Act. The remedy available to the petitioners, if they opposed the manner by which the amendment was effected is under the Indian Companies Act and not by invoking powers of this Court under Article 226 of the Constitution of India. According to the learned Senior counsel, inasmuch as the second respondent is a company under the Indian Companies Act, the contents of the articles of the association and the bye-laws are contractual in nature and the same cannot be enforced in a writ petition under Article 226 of the constitution of India.
Mr. Jagadev, learned Counsel appearing for the second respondent would also submit in the same manner adopting the argument of the learned Senior counsel appearing for the fourth respondent.
I have heard the learned Senior counsel and the counsel for the petitioners and also the learned Counsels appearing for the respondents 1 and 2, apart from the learned Senior appearing for the fourth respondent and perused the entire records.
Considering the facts and circumstances of the case, which I have narrated above and inasmuch as the question of maintainability of the writ petition is raised as a main point, it is incumbent on the part of this Court to decide about the maintainability of the writ petition at the first instance. A reference to the memorandum and articles of Association and bye-laws relating to the second respondent shows that the second respondent was registered as a company u/s 25 of the Indian Companies Act, 1956, with various objects including the advancement of study of Town Planning, Civic Design, etc., to promote planned Economics, Scientific and Artistic Development of Towns and Cities and Rural Areas, to promote the general interest of those engaged in practice of Town and Country Planning, to Master the teaching subjects relating to Town and Country Planning, etc., to device and impose means for testing the qualification of the candidates for admission to membership of the institute by examination in theory and practice, to consider all questions affecting the practice of Town and Country Planning, etc., to hold conference of meeting for discussion and also subject to the provision of the Indian Companies Act, to purchase, lease, rent and dispose of any property, etc. The signatories to the memorandum and article of association also would show that it contains various experts in the Town Planning including Town Planners, Liaison Officer, Chief of Architect, Senior Architect, etc., who are either in Government service or private parties. The articles of association regarding the second respondent also contains various clauses including the constitution of councils, prescription of members, etc. That apart the second respondent is also having bye-laws and regulations, which also contains the membership of the second respondent which consist of corporate membership -
(1) Fellows and Associates
(2) Honorary fellow
(3) Retired Associates - fellow
A reference to bye-law 22 as on date has stated by the second respondent in the typed set of papers shows as follows:
A person may be a student for not more than six years but the council, upon his application, may permit him to be a student for such additional period as the Council may, in its wisdom decide, so however that the student satisfies the Council that he is taking steps to qualify for Associate Membership.
Therefore, as per the said bye-laws a person may be student for not more than 6 years but the council can in its wisdom decide to extend the period additionally, if it is satisfied that the member is taking steps to qualify for Associate Membership. Therefore, it is clear that the extension of period is subject to satisfaction of the council. No doubt it is true that bye-law 104 contemplates a provision for amendment, apart from bye-law 105, which states any amendment will have to be sent to the Registrar of Companies whose expression on no objection is important for the purpose of enforcement of such amendment. The said clauses are as follows:
When, in the opinion of the Council, it is necessary to amend the bye-law, the Council shall approve a draft of the proposed amendment and the Secretary General shall send to each person qualified to vote the text of the proposed amendment and explanation together with the notice of the general meeting at which the proposed amendment is to be considered. Alternatively, the amendment may be voted upon by postal vote as provided in these bye-laws.
If the amendment is passed it shall not be enforced or acted upon until it has been submitted to the Registrar of Companies and he has expressed no objection.
Inasmuch as it is admitted that the second respondent is a company registered under the Companies Act, there is no difficulty to come to the conclusion that the terms and contents of the articles of association and bye-laws and regulations are contractual in nature between the members and the second respondent company especially in the circumstance that it is admitted that these writ petitioners are the members of the second respondent company.
A contention is raised on behalf of the writ petitioners that the said bye-law 22 before the amendment stated to have taken place in 2006 stood as follows:
Writ petitioner affidavit type set Page No. 4
A person may be a student for not more than 6 years but the council, upon his application, may permit him to be a student for not more than two additional years if he satisfies the Council that he is taking steps to qualify for Associate Membership.
Therefore, according to the learned Senior counsel when that was the earlier position of the bye-law, by virtue of the amendment stated to have taken place on 15.01.2006 the power of extension of period has been given to the council unendingly and such amendment should have been effected as per the bye-laws, namely, by following the procedure under bye-law 104 and 105 of the second respondent company. If it is the case of the petitioners that being the members of the second respondent company the effecting of such amendment on 15.01.2006 without following the bye-laws affect the interest of the petitioners, it is not as if the petitioners have no right available under Indian Companies Act.
That apart, it is the specific case of the second respondent that the byelaw was amended in the extraordinary general body meeting which was held on 15.01.2006 in the following words:
extension of time limit for completion of associationship examination, extension of time limit shall vest with the town planning examination board and council ITPI on merit of each case.
This has been notified in the journal of the second respondent institute also, which was in March 2006. Further, a reference to the constitution of the council and terms of the articles of the association of the second respondent company would show that the second respondent institute is an independent body, of course consisting of experts in the town planning with a noble idea of developing the merit and ability among the town planners in the larger interest of Town and country planning. It is not even the case of the petitioners that the second respondent is financially funded by the Government or the second respondent is controlled by Government in its administration. When the question arose to decide about the test to be followed for the purpose of deciding as to whether a body is a "State", the Hon''ble Supreme Court in the judgment rendered in Pradeep Kumar Biswas and Ors. v. Indian Institute of Chemical Biology and Ors. reported in 2002(2) CTC 474. has laid down the dictum stating that the question to be considered is as to whether such body is financially, functionally and administratively dominated by or under the control of the Government. The wordings of the Hon''ble Supreme Court in this regard is relevant and hence, it is reproduced.
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 if found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under state or otherwise, it would not serve to make the body a State.
Therefore, the ultimate test for deciding as to whether a body is a state within the meaning of Article 12 of the Constitution of India is three folded in the financial, functional and administrative domination by the Government. On the facts and circumstances of the case by applying the said dictum laid down by the Hon''ble Supreme Court, there is absolutely no difficulty to come to the conclusion that the second respondent is neither financially nor functionally or administratively dominated by the Government. Merely because the second respondent is performing a function of recognition of merits in a specialized field as a sophisticated independent agency, even consisting of experts in the field, who may be associate with the Government, that cannot make the second respondent as a "State".
Coming to the judgment relied upon by the learned Senior counsel for the petitioners rendered in Binny Ltd. and Anr. v. V. Sadasivan and Ors. reported in 2005 4 LW 745. That was the case relating to the private employer terminating the services of the employees. However, the Hon''ble Supreme Court relying upon the earlier judgment reported in State of U.P. and others Vs. Bridge and Roof Co. (India) Ltd., , wherein if a contractual clause envisages payment and the same is violated ordinarily the writ petition will not lie under Article 226 of the Constitution of India, however, stating that a writ of mandamus can be issued against the private body provided that there is a public law element involved in the conduct of such private body. The relevant portion is as follows:
Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.
Applying the said judgment of the Hon''ble Supreme Court on the factual situation in these cases, there is absolutely nothing to presume that the second respondent is performing any public function simply because the certificate or Associationship issued by the second respondent is recognized by the statutory authority like All India Counsel for Technical Education. That itself cannot mean that the second respondent is performing duties which are having public element.
It is also relevant to point out that it is not as if the second respondent is imparting instruction to the students for the purpose of qualifying themselves for a degree or diploma. It is purely a private apex body consisting of experts, which conducts private examinations awarding certificates so as to enable the employers to decide about the suitability of such candidates. It can never be said to be a duty of any public element.
While deciding about the concept of public element or public duty, the Hon''ble Supreme Court in the judgment rendered in G. Basi Reddy Vs. International Crops Research Instt. and Another, has held that even though it is not easy to define the public function, it must be related to the functions performable by the state in its sovereign capacity. As it is pointed out in paragraph No. 28
A writ under Article 226 can lie against a "person" if it is a statutory body or performs a public function or discharges a public or statutory duty (Praga Tools Corporation v. C.A. Imanual, Shri Anadi Mukta Sadguru Trust v. V.R. Rudam SCC at P.698 and VST Industries Ltd., v. Workers'' Union). ICRISAT has not been set up by a statute nor are its activities statutorily controlled. Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.
In fact the Hon''ble Supreme Court has also with approval quoted the earlier judgment of the constitution bench rendered in Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others,
In these circumstances, I do not find any reason to hold that the writ petitions are maintainable. Even on the merits of the case, as I have stated earlier, it is not as if the petitioners as members of the second respondent company are left in lurch without any remedy, even assuming that an amendment has been made to bye-law 22 in violation of bye-law 104 and 105, since the remedies are available under the Indian Companies Act. It is brought to the notice of this Court that by virtue of interim order passed by this Court in W.P.No. 38853 of 2006 restraining the third respondent from affording any service benefits including promotion to the fourth respondent on basis of the certificate issued by the second respondent dated 07.06.2006, the petitioner who is junior to the fourth respondent has been promoted as Deputy Planner which is unusual. It is made clear that on the said date when the petitioner was promoted as Deputy Planner, if the fourth respondent was also eligible for being considered, he is certainly entitle for the same. In view of the same the writ petitions fail and the same are dismissed. No Costs. Consequently, the connected M.Ps. are closed.