N. Balasubramanian vs The District Collector/President, The District Welfare Fund Committee and Others

R. Subbiah, J.—In view of the fact that the issue involved in both the writ petitions is one and the same, these writ petitions are taken up together and disposed of by a common order.

The Writ Petition in W.P.(MD) No. 14463 of 2015 has been filed seeking issuance of a Writ of Certiorari to call for the records pertaining to the impugned order in District Welfare Fund Committee in 76/2012 dated 29.07.2015 on the file of the Respondent No. 2 and quash the same and pass such further or other order as this Court.

The Writ Petition in W.P.(MD) No. 6949 of 2015 has been filed seeking issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned communication in MA.N.P. Ni.KULU 76/2012-2014 received on 24.04.2015 on the file of the respondent herein and quash the same as illegal and consequently to direct the respondent to reimburse the expenses incurred by the petitioner in doing repair works in the ''Kalaiarangam'' A/C Theatre No. 15D, MC Donalds Road, Cantonment, Trichy to a tune of Rs. 1,08,01,608/- (One Crore Eight Lakhs one Thousand Six Hundred and Eight Rupees only) and make inspection and issue the fitness certificate and renew the ''C'' form License.

It is the case of the petitioner that the petitioner had taken the Cinema Theatre named ''Kalaiyarangam'' belonging to the District Welfare Fund Committee in Trichy City, Trichy District, on a lease for a period of 5 years from 08.05.2012. The said lease period is going to expire only on 07.05.2017. The petitioner took the premises of the Theatre in to his possession on 18.05.2015 and on taking such possession of the theatre, he found that the Theatre was not in a fit condition to screen the movie and therefore, the petitioner made a representation to the first respondent seeking to make steps for the ''Renovation'' of the Theatre and make the Theatre fit for playing films. Pursuant to his representation, a committee was formed by the first respondent comprising 1) Revenue Divisional Officer, 2) Executive Engineer (PWD), 3) Executive Engineer (PWD Electricals), 4) Treasurer, District Welfare Committee, 5) Thiru P. Selvaraj, Chairman, Shivani Groups, 6) Auditor, District Welfare Committee, 7) Government Pleader. The committee supervised the Theatre and approval was given to the petitioner to start the renovation work. It is the further case of the petitioner that the committee had also promised the petitioner for reimbursement of the expenses on the filing of bills. It is the further case of the petitioner that the screen on which the movie is to be played was not available in the theatre and hence, a new screen was erected. The seats meant for the audience were in a bad condition. All 666 seats in I class were replaced and II and III class seats were repaired. The false ceiling sheets of the auditorium were repaired. Similarly several repair works have been done to the tune of Rs. 1,08,01,608.00/- After repair works the petitioner started to run the theatre and to play films. But the first respondent did not make any steps for the reimbursement of Rs. 1,08,01,608.00/-. In the meanwhile, after expiry of ''C'' Form License on 30.11.2013, the ''C'' Form License was renewed only on 27.06.2014 and during the interregnum the "Kalaiyarangam Theatre" was run by way of ''E'' Permit. The petitioner has also submitted representation for reimbursement of the amount incurred by him for the repair works in the theatre. Since the said representation was not considered, he filed a Writ petition in W.P (MD) No. 19143 of 2014 before this Court and this Court by order dated 26.11.2014 directed the first respondent to consider the representation of the petitioner within a period of 6 weeks. But the first respondent, without considering the representations made by the petitioner, passed orders dated 24.04.2015 and 29.07.2015 respectively directing the petitioner to pay a sum of Rs. 1,57,40,445/- towards rent for 16 months and service tax. Challenging the said orders, the present Writ Petitions have been filed.

The respondent has filed a detailed counter affidavit inter alia stating that the Tender Committee of the respondent society had handed over the possession of the Kalaiarangam to the writ petitioner on 08.05.2012. At the time of handing over the possession, the petitioner had taken over possession without any demur and as it was in good condition. Thereafter, on 18.05.2012, the petitioner made a representation to the President of the Society to carry out some repair works. But the said plea made by the petitioner in his representation is contrary to the general and special conditions stipulated in the tender schedule. Further, the petitioner issued a letter dated 27.06.2012 as if he had incurred expenses for the repair works. But the society has not even given any permission to carry out the alleged repair works and similarly the society has not accepted reimbursement of cost of the same. In fact, the petitioner has no power to carry out repair works. Further, after handing over the possession of the Kalaiarangam to the petitioner, the society has sent a letter dated 08.05.2012 to the petitioner to execute the lease agreement but the petitioner refused to execute the lease agreement. Therefore, as on date, there is no relationship of lessor and lessee between the petitioner and the respondents and the status of the petitioner is that of a trespasser and his possession is nothing but illegal. That apart, the petitioner has not paid either rent or damages for the use and occupation of the Kalaiarangam with effect from April, 2014. Even assuming but without admitting that the petitioner as lessee, as on date, he is liable to pay a sum of Rs. 1,67,84,085/- to the society as on 31.08.2015. The society made efforts to resolve the disputes between the parties by forming a Sub Committee but the petitioner refused to pay rent/damages for the use and occupation. On the other hand, in order to avoid the said payment, the petitioner claiming unimaginary amount as if the society is liable to pay the said amount to him. Apart from the factual aspects, it has been stated in the counter that the writ petition itself is not maintainable in view of the decision of the Larger Bench of this Court made in A. Joseph Louis Vs. The District Welfare Fund Committee and State of Tamil Nadu, . Thus, they sought dismissal of the writ petition.

When the matter is taken up for consideration, the learned counsel appearing for the respondents made submission only with regard to the maintainability of the writ petition. In this regard, he submitted that in the year 2002 the petitioner was declared as successful bidder and the Kalaiarangam was leased out to him for a period of five years from 2002 to 2007. Aggrieved over the same, one Joseph Louis filed a Writ Petition in W.P. No. 18366 of 2003 before this Court to accept the highest tender made by him by the District Welfare Fund Committee. The said Writ Petition was heard by the Division Bench of this Court and the Division Bench was prima facie of the opinion that the said District Welfare Fund Committee is not performing any public function and therefore, it is not a public authority and hence, the writ petition is not maintainable and however, the issue was referred to the Larger Bench. The Larger Bench held that the writ petition itself is not maintainable. In the said Writ Petition, the petitioner was arrayed as second respondent and he himself filed a counter stating that the writ petition is not maintainable as against the District Welfare Fund Committee. Though the petitioner is well aware that the writ petition is not maintainable, now suppressing the order passed by the Larger Bench of this Court, he has come forward with this Writ Petition. The learned counsel for the respondents also invited the attention of this Court to the decision made by the Larger Bench of this Court in A. Joseph Louis Vs. The District Welfare Fund Committee and State of Tamil Nadu, wherein at paragraphs 27 and 28 it has been held as follows:

"27. In the case of first respondent- District Welfare Fund Committee, there is no functional, financial, or administrative control by the Government. The Government servants who are associated with the Committee are doing so purely in private capacity. The first respondent is a Society and "Mandram" building is the private property of the Society. The Society is not getting any financial aid from the State and there is no pervasive control by the State over the Society. It is not discharging any public duty. Though the successive District Collectors by involving themselves collected necessary funds by conducting Dramas and Cultural Programmes, originally either for formation of a medical college or an agricultural college, the fact remains that the funds were diverted to the corps of the Society, which paved way for the formation of "Kalaiarangam". Admittedly, money has not been contributed by the Government. Likewise, the Government officials are part of the Society as ex-officio and not under orders and permission of the Government. As ruled in G. Basi Reddy Vs. International Crops Research Instt. and Another, , 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. We are satisfied that the Committee is not discharging or conducting State functions and the Government has no pervasive control much less regulatory control over the Society. As said earlier, the funds were accumulated through various cultural programmes and financed from the public. The land was assigned to the Society by the Government for a consideration of Rs. 4,84,203/-. The property possessed is the ''Kalaiarangam'' and office complex. The rent derived from the above properties is the main source of income to the Society and there is no financial assistance from the Government. The accounts are being audited by a qualified Chartered Accountant. No power was given to the Government to issue directions. The Membership of the Society is restricted to 33 of whom 22 are Government officers who are ex-officio members, and 11 are drawn from among reputed social workers, educationalists, professionals etc. Upon dissolution, the assets of the Society are transferable to other associations with identical objects. The first respondent-Society thus cannot be construed as an instrumentality of the State or other authority as defined in Article 12 of the Constitution. When the body is a private body but performs statutory functions or discharges public duties, a writ would lie. No writ would lie when the rights purportedly infringed are merely private rights. The action complained of in the writ petition relates to grant of lease of the "Kalaiarangam" by way of Tender. There is no statutory or public duty or function involved and the right of the first respondent to grant a lease is purely private. As the first respondent Society is not an authority as defined in Article 12 and as the action complained of is that of a private body exercising private functions, we hold that the writ petition will not be maintainable.

In the light of our discussion, we hold that the first respondent Society is not an ''Authority'' or ''State'' as defined in Article 12 of the Constitution of India. It is also not a "Body or instrumentality" as could be made amenable to writ jurisdiction under Article 226 of Constitution of India; hence the Writ Petition filed against it is not maintainable and the same is dismissed. No costs. We approve the Division Bench decision rendered in W.P. Nos. 1043 and 1896 of 2002 and 23534 and 26501 of 2001 dated 26-02-2002 (A.V. Sundaram and three others v. The District Collector, Trichy and another). The Reference is answered accordingly. The connected W.P.M.P., is closed."

He also relied upon a decision of the Hon''ble Supreme Court in Kishore Samrite Vs. State of U.P. and Others, . Thus, by relying upon the above decisions, the learned counsel for the respondents sought dismissal of the Writ Petition.

The learned counsel for the petitioner accepted the contention made by the learned counsel for the respondents. However, he submitted that since there is an order of interim stay, an order of status quo may be granted for a period of four weeks to enable him to initiate appropriate legal proceedings within the period of four weeks.

The learned counsel for the respondents vehemently opposed to grant an order of status quo since the petitioner has not approached this Court with clean hands.

Heard the submissions made by the learned counsels appearing on either side and perused the entire materials available on record.

Keeping in mind the submissions made by the learned counsels appearing on either side and on perusal of the entire materials available on record, I am of the opinion that in view of the dictum laid down in the Larger Bench of this Court in A. Joseph Louis Vs. The District Welfare Fund Committee and State of Tamil Nadu, the present Writ Petition is not maintainable. In fact, the petitioner himself was a party to the very writ petition itself and he himself filed a counter stating that the writ petition is not maintainable as against the District Welfare Fund Committee. But, suppressing the above fact, he has come forward with the present writ petition, and hence, the petitioner is not entitle for any relief. Hence, the writ petitions are liable to be dismissed and accordingly the present Writ Petitions are dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.