Harsha Hospital vs State Of Karnataka

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16TH DAY OF JULY, 2025

BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 21472 OF 2024 (EDN-RES) BETWEEN:

1. HARSHA HOSPITAL NO 193/4, BYRAVESHWARANAGR SONDEKOPPA CIRCLE NEALMANGALA TOWN BANGALURU RURAL DISTRICT 562 133 REPRESENTED BY ITS PARTNER G H PRAKASH.

2. G H PRAKASH S/O HANUMAIAH AGED ABOUT 59 EYARS R/AT NO 5971, SMT NILAYA GOVINDAPPALAYOUT SUBHASHNAGAR NELAMANGALA BANGALORE - 562 123.

3. MRS SUNANDA W/O LATE H SHVIAKUAMRA Digitally signed by PARTNER OF HARSHA HOSPITAL CHANDANA B M AGED ABOUT 59 YEARS Location: High NO 5743, BEHIND PWD QUARTERS Court of SUBHASH NAGAR Karnataka NELAMANGALA BANGALORE - 562 123.

4. S MANJUNATH S/O LATE H SHIVAKUMAR PARTNER OF HARSHA HOSPITAL AGED ABOUT 37 YEARS R/AT 5347, SUBASHNAGAR BACKSIDE PWD QUARTERS NELAMAGNALA TOWN BANGALORE RURAL DISTRICT 562 123. -2- NC: 2025:KHC:30787 WP No. 21472 of 2024

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5. S PAVITHA D/O LATE PIPELINEKUMAR PARTNER OF HARSHA HOSPITAL AGED ABOUT 35 YEARS R/AT NO 88, PIPPELINE ROAD MAGADI MAIN ROAD ANAJANAANGAR BENGALURU - 560 091. ...PETITIONERS

(BY SRI. D.R.RAVI SHANKAR, SENIOR COUNSEL FOR SRI.TEJASVI K V.,ADVOCATE)

AND:

1. STATE OF KARNATAKA REPRSENTED BY ITS CHEIF SECRETARY DEPARMENT OF MEDICAL EDUCATION MS BUILDING, AMBEDKAR VEEDI BENGALURU - 560 001.

2. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES KARNATAKA BENGALURU REPRSENTED BY ITS REGISTRAR/ VICE-CHANCELLOR 4TH BLOCK, JAYANAGARA BENGALURU - 560 041.

3. SRI SRINIVASA CHARITABLE TRUST, (REGISTERED PUBLIC TRUST) NO 5743, BACK SIDE OF PWD QUARTERS SUBHASHNAGAR NEALMANGALA BENGALURU RURAL - 562 132. REPRSENTED BY ITS TRUSTEE SRI S SHIVAKUMAR.

4. S SHIVAKUMAR S/O SRI SIDDALINGAPPA TRUSTEE SRI SRINIVASA CHARITABLE AND EDUCATION TRUST AGED ABOUT 53 R/AT NO 193/4, BYRASWESHWARNAGAR SONDEKOPPA CIRLCE NELAMAGNALA TOWN BANGALORE RURAL DISTRICT - 562 123. -3- NC: 2025:KHC:30787 WP No. 21472 of 2024

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5. GIRIJA W/O SHIVAKUMAR S TRUSTEE SRI SRINIVASA CHARITABLE AND EDUCATION TURST AGED ABOUT 45 R/AT NO 193/4, BYRAVESWARNAGAR SONDEKOPPA CIRCLE NELAMANGALA TOWN BANGALORE RURAL DISTRICT - 562 123. ...RESPONDENTS

(BY SMT. SUKANYA BALIGA, AGA FOR R-1 SRI. B.K. BOPPANNA, ADVOCATE FOR R-2 SRI. UDAYA HOLLA, SENIOR COUNSEL APPEARING FOR SRI. T. KRISHNA, ADVOCATE FOR R-3 TO R-5)

THIS W.P IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO DIRECTING R2 TO INVESTIGATE THE COMPLAINT GIVEN BY THE PETITIONERS IN ANNEXURE-J DTD 09.01.2024 AND TAKE APPROPRIATE ACTION AGAINST R3,R4 AND R5 AND ETC.

THIS PETITION IS BEING HEARD AND RESERVED ON 24.04.2025 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

CAV ORDER In this petition, petitioners have sought for the following

reliefs:-

"A. Issue a WRIT OF MANDAMUS or any other appropriate writ, order, or direction directing Respondent No. 2 to investigate the complaint given by the Petitioners in Annexure-J, dated 09/01/2024 and take appropriate action against Respondent Nos. 3, 4, and 5. -4- NC: 2025:KHC:30787 WP No. 21472 of 2024

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B. Issue a WRIT OF CERTIORARI or any other appropriate writ, order, or direction, calling upon the records leading to the issuance of the continuation of affiliation dated 20/02/2024, RGUHS/ACA/AFF/Continuation/BPT/MPT/2/2023-24 vide Annexure-K and quash the same.

C. Issue a WRIT OF MANDAMUS or any other appropriate writ, order, or direction, directing the Respondent No. 1 to initiate an independent inquiry into the allegations of fraud, misappropriation, and other illegal activities committed by Respondent Nos. 4 and 5, and to take appropriate legal action based on the findings of the inquiry.

D. Pass any other order or direction that this Hon'ble Court deems fit and proper in the facts and circumstances of the case, including the award of costs to the Petitioners."

2. Briefly stated, the petitioners have filed the present

petition interalia contending as under:-

The 1st petitioner claims to be a registered partnership firm,

which was constituted between petitioner No.2 - G.H.Prakash, late

H.Shivakumar, respondent No.4 - S.Shivakumar and his wife Girija

G., respondent No.5 herein. The petitioners 3, 4 and 5 are the wife

and children of late H.Shivakumar, the aforesaid partner of 1st

petitioner - Firm. -5- NC: 2025:KHC:30787 WP No. 21472 of 2024

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2.1 It is contended that the 1st petitioner - Firm was

registered under the name and style "Harsha Hospital" and in order

to fulfill the object of the firm, the partners purchased converted

land bearing Sy.No.193/4 measuring 39 guntas situated at

Nelamangala village, Kasaba Hobli, Nelamangala taluk, Bangalore

Rural District, Bangalore, vide registered sale deed dated

30.04.2004. The 3rd respondent - Sri.Srinivasa Charitable Trust

was constituted vide registered Trust Deed dated 16.06.2003

comprising of respondents 4 and 5 and Smt.S.Shantha and

Smt.S.Ganga as its trustees with the object of promoting

Education, Health care and social welfare. It is contended that

petitioners and respondents 4 and 5 being partners of Harsha

Hospital mutually agreed to start educational institutions on the

aforesaid land in the name of 3rd respondent - Trust. It is further

contended that the petitioners discovered recently that respondents

4 and 5 have engaged in illegal activities concerning the operations

of the partnership firm including criminal breach of trust, cheating,

fraud, siphoning of funds, misappropriation of assets, falsification of

accounts and collusion to defraud the petitioners and other stake

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2.2 Petitioners contend that they recently learnt that

respondents 4 and 5 are operating a physiotherapy course on the

Firm's premises without authorization as per Notifications issued by

2nd respondent - RGUHS from 2016 to 2022 in favour of Harsha

Institute of Physiotherapy. It is contended that they obtained

documents submitted by respondents 4 and 5 for the purpose of

continuation of affiliation for the academic year 2023-24 to RGUHS

and found that a forged lease agreement dated 21.11.2011 was

produced by them for the purpose of renewal and upon enquiries,

petitioners obtained a certified copy of a deed of lease agreement

from the office of Sub-Registrar which differed significantly in the

schedule, total extent of property and security deposit amount

which indicated that they had forged the document for the purpose

of securing continuation of affiliation. It is further contended that the

same document was furnished by respondents 4 and 5 to

fraudulently obtain affiliation for Harsha Public International School,

Nelamangala and a complaint filed by the petitioners has resulted

in an FIR which has been stayed by this Court.

2.3 Petitioners contend that they gave a complaint to 2nd

respondent - RGUHS requesting investigation and not to grant -7- NC: 2025:KHC:30787 WP No. 21472 of 2024

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affiliation in favour of Harsha Institute of Physiotherapy for the

academic year 2023-24, despite which the 2nd respondent issued

the impugned Notification at Annexure-K dated 20.02.2024

continuing the affiliation in favour of respondents 3 to 5 at Sl.No.13

and as such, petitioners are before this Court by way of the present

petition.

3. Respondents 3 to 5 have filed their statement of

objections interalia disputing and denying the various allegations

and claim made by the petitioners. It is contended that apart from

the fact that the petitioners do not have locus standi to prefer the

present petition, they are guilty of suppression of material facts and

have not come to Court with clean hands and are not entitled to

any relief in the present petition, which is filed with malafide

intentions and ulterior motives by suppressing various prior /

previous litigations and disputes between the petitioners and them.

It is contended that the petition is not maintainable in relation to the

unaided private educational institutions, Harsha Institute of

Physiotherapy being run by Sri.Srinivasa Charitable Trust and

academic matters of 2nd respondent - University by granting

continuation of affiliation in favour of 3rd respondent are not -8- NC: 2025:KHC:30787 WP No. 21472 of 2024

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amenable to the jurisdiction of this Court under Article 226 of the

Constitution of India. It is further contended that respondents 3 to 5

are running physiotherapy courses in property bearing No.7568

and No.7380, Byraveshwara Nagar, Dadapeer layout,

Nelamangala town, Bangalore Rural District, Bangalore, after

obtaining necessary affiliation from 2nd respondent - RGUHS from

2016 onwards which is being continued from that time including the

affiliation granted vide impugned Notification dated 20.02.2024 for

the academic year 2023-24. It is contended that the aforesaid

properties were purchased by respondents 3 to 5 vide registered

sale deeds dated 01.10.2008 and 23.09.2010 and after due

inspection, the RGUHS granted and continued affiliation in favour

of the said college. The respondents 3 to 5 specifically and

categorically denied that they had submitted a forged deed of lease

agreement dated 21.11.2011 for the purpose of obtaining and

seeking continuation of the affiliation to run the Harsha Institute of

Physiotherapy and the various allegations regarding fraud, forgery,

cheating, misappropriation, collusion etc., urged by the petitioners

have been specifically denied by the respondents 3 to 5. -9- NC: 2025:KHC:30787 WP No. 21472 of 2024

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3.1 At paragraph-17 of their statement of objections,

respondents 3 to 5 have detailed the various civil and criminal

litigations, disputes, proceedings, arbitrations etc., as per Table-1

and Table-2 from 2017 onwards between the petitioners and

respondents comprising of about 19 matters as indicated therein in

order to contend that the petitioners are repeatedly harassing and

intimidating these respondents. It is further contended that an

identical complaint given by the petitioners requesting 2nd

respondent - RGUHS to withdraw continuation of affiliation granted

to one more institute, i.e., Harsha College of Nursing culminated in

an Endorsement dated 31.08.2023 issued by RGUHS to the

petitioners. Under these circumstances, respondents 3 to 5 sought

for dismissal of the petition.

3.2 During the pendency of the present petition preferred on

20.08.2024, respondents 3 to 5 filed a memo dated 15.04.2025

enclosing a copy of the continuation of affiliation dated 24.09.2024

granted by 2nd respondent - RGUHS in their favour for the

academic year 2024 - 2025 and accordingly, contend that the

present petition seeking quashing of the continuation of affiliation - 10 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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for the previous academic year 2023-24 has been rendered

infructuous and the petition is liable to be dismissed.

4. The petitioners have filed their rejoinder to the objections

filed by the respondents 3 to 5 and disputed the various

contentions urged by them. The specific contention urged by the

respondents 3 to 5 that Harsha Institute of Physiotherapy is being

run at properties bearing No.7568 and No.7380 has been

specifically disputed and denied by the petitioners who contend

that while there is no structure / building on property No.7568, the

building / structure put up on property No.7380 was illegal and

unauthorised. It is contended that the petitioners being partners of

Harsha Hospital are entitled to seek the intervention of this Court to

address illegalities involving allegations of fraud, forgery and

misrepresentation based on fraudulent documents submitted by

respondents 3 to 5 which had not been verified by 2nd respondent -

RGUHS which did not exercise due diligence before granting and

continuing affiliation in favour of Harsha Institute to Physiotherapy.

It is contended that merely because there are civil and criminal

disputes pending between the parties, the serious allegations of

forgery put forth by the petitioners warrant independent - 11 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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adjudication and that the petitioners have legal right to seek

redressal of their specific illegalities. It is therefore contended that

the various contentions urged by the respondents liable to be

rejected.

5. Heard learned Senior counsel for the petitioners and

learned Senior counsel for respondents 3 to 5 and learned AGA for

1st respondent as well as learned counsel for 2nd respondent -

RGUHS and perused the material on record.

6. In addition to reiterating the various contentions urged in

the petition and referring to the material on record, learned Senior

counsel for the petitioners submits that petitioners 2 to 5 are

partners of petitioner No.1 - Harsha Hospital which is the rightful

owner of property bearing Sy.No.193/4 which is being

unauthorisedly used by respondents 3 to 5 to run its physiotherapy

Institute based on a forged lease document, thereby affecting the

rights of the petitioners who have a direct and substantial interest in

challenging the affiliation and as such, petitioners are entitled to

invoke the jurisdiction of this Court in the present petition. It is

contended that 2nd respondent has acted arbitrarily without

exercising due diligence and without considering or hearing the - 12 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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complaint of the petitioners and granted illegal continuation of

affiliation, despite non-compliance of RGUHS norms. It is submitted

that under identical circumstances in relation to Harsha Public

International School, the very same act of forgery was challenged

by the petitioners herein in W.P.No.20699/2023 which was

disposed of vide final order dated 15.04.2025 directing CBSE to

investigate into the matter and an appropriate enquiry in this regard

may be directed in the present petition also. In support of his

submissions, learned Senior counsel for the petitioners relied upon

the following judgments:-

(i) Gadde Venkateswara Rao vs. Government of Andhra Pradesh and Others - 1965 SCC OnLine SC 25; (ii) Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and Others - (1976) 1 SCC 671; (iii) Sir M. Visveshwaraya Education Trust vs. State of Karnataka 1991 SCC OnLine Kar 306; (iv) Sri. Arjunappa and Another vs. State of Karnataka and Others c/w Sri Narayanappa and Another vs. State of Karnataka and Others - W.P. No. 49958/2019 c/w. W.P. No. 49959/ 2019 dated 18.07.2022; (v) Sri Adichunchanagiri Maha Samstana Mutt vs. State of Karnataka and Others - W.A. No.769/2022 c/w. W.A. No.745/2022 dated 18.01.2024 - 13 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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7. Per contra, learned AGA for 1st respondent-State and

learned counsel for 2nd respondent - RGUHS jointly submit that the

impugned Notification directing continuation of affiliation was

issued after due verification and by exercising due diligence by

taking into account that affiliation had been granted from 2016

onwards and continued from year to year and since there was no

violation of the terms and conditions of the affiliation, the 2nd

respondent proceeded to issue the impugned Notification, which

does not warrant interference in the present petition, which is liable

to be dismissed.

8. Learned Senior counsel for respondents 3 to 5 would

reiterate the various contentions urged in the statement of

objections and submit that apart from the fact that the petitioners

do not have locus standi to prefer the present petition, they do not

have any legally enforceable right to approach this Court and in

addition to the fact that the writ petition is not maintainable against

respondents 3 to 5 who are running a private unaided educational

institutions and the writ petition is liable to be dismissed. It is

submitted that the various contentions urged by the petitioners give

rise to complex, complicated and disputed questions of fact which - 14 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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are incapable of adjudication in the present petition and the

petitioners having suppressed material facts including earlier civil

and criminal litigations, disputes etc., between the parties are not

entitled to any reliefs in the present petition, which is liable to be

dismissed. In support of his contentions, learned Senior counsel for

respondents 3 to 5 have placed reliance upon the following

judgments:-

(i) Vinoy Kumar vs. State of U.P and Ors. - (2001) 4 SCC 734; (ii) Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and Ors. - (2013) 4 SCC 465; (iii) Dr.Rai Shivendra Bahadur vs. Governing Body of the Nalanda College, Bihar Sharif & others - AIR 1962 SC 1210; (iv) St. Mary's Education Society and Another vs. Rajendra Parasad Bahrgava and Others - (2023) 4 SCC 498; (v) S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. And others - 1994 (1) SCC 1; (vi) K.D. Sharma vs. Steel Authority of India Limited and others - (2008) 12 SCC 481; (vii) Chanchalpati Das vs. State of West Bengal and Another - 2023 SCC Online SC 650.

9. I have given my anxious consideration to the rival

submissions and perused the material on record. - 15 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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10. At the outset, it is relevant to state that prayer No.(B) in

the present petition supra, relates to quashing of the impugned

Notification (Sl.No.13) vide Annexure-K dated 20.02.2024, whereby

the 2nd respondent - RGUHS granted continuation of affiliation in

favour of respondents 3 to 5 to run the Harsha Institute of

Physiotherapy for the academic year 2023-24. In this context,

during the pendency of the present petition preferred on

02.08.2024, the 2nd respondent issued a Notification dated

24.09.2024 granting continuation of affiliation in favour of

respondents 3 to 5 for the academic year 2024-25, since the

impugned Notification was for the previous academic year which

stood expired. In view of this subsequent event that has transpired

by issuance of the aforesaid Notification dated 24.09.2024 for the

academic year 2024-25, the present petition seeking to challenge

the impugned Notification dated 20.02.2024 for the previous

academic year 2023-24 does not survive any longer and the same

has been rendered infructuous.

11. A perusal of the complaint at Annexure-J dated

09.01.2024 submitted by the petitioner will indicate that it is

specifically contended that a forged lease agreement dated - 16 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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21.11.2011 had been submitted by respondents 3 to 5 to 2nd

respondent - RGUHS for the purpose of continuation of affiliation

in favour of Harsha Institute of Physiotherapy; in this regard, it is

significant to note that even according to the petitioners

themselves, the 2nd respondent had granted affiliation in favour of

the said Institute as long back as in the year 2016 and the said

affiliation which is valid for a period of one year was continued

periodically every year including the academic year 2023-24 by

issuing the impugned Notification dated 20.02.2024; the allegation

made by the petitioners that the lease agreement dated 21.11.2011

said to have been submitted by respondents 3 to 5 is a forged and

fabricated document is seriously disputed and denied by

respondents 3 to 5; further, the respondents 3 to 5 submitted a

detailed reply dated 11.01.2024, pursuant to which, the 2nd

respondent - RGUHS proceeded to continue the affiliation by

issuing the impugned Notification.

12. A perusal of the complaint given by the petitioners and

the reply given by respondents 3 to 5 culminating in the impugned

Notification continuing affiliation and the other material on record

will indicate that the serious allegations of fraud put forth by the - 17 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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petitioners having been disputed and denied by respondents 3 to 5,

the said issue is beyond the scope of examination by this Court

under Article 226 of the Constitution of India, especially when the

instant case requires an enquiry into facts arising out of a complex

cob-web of facts which are incapable of being adjudicated upon in

the present petition, since the same is impermissible in law.

13. In the case of Shubhas Jain vs. Rajeshwari Shivam &

others - (2021) 20 SCC 454, the Apex Court has reiterated the

well settled position that the High Court in its extraordinary

jurisdiction under Article 226 of the Constitution of India does not

adjudicate upon the hotly disputed questions of fact.

14. In the instant case, the specific plea put forth by the

petitioners relates to an alleged production of a allegedly forged

lease deed alleged to have been submitted by respondents 3 to 5

requiring detailed examination of oral and documentary evidence

within the domain / realm of civil courts involving factual

controversies not amenable to determination under Article 226 of

the Constitution of India. In other words, by way of the present

petition, the petitioners seek to assail the impugned Notification

continuing affiliation on the ground that the same was obtained by - 18 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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production of a forged lease deed by respondents 3 to 5, who have

disputed and denied the claim of the petitioners, thereby leading to

the sole conclusion that the said factual controversy / dispute

between the petitioners and respondents 3 to 5 cannot be gone

into in writ proceedings, more particularly when determination /

adjudication of the legality, authenticity, genuineness, validity of the

alleged lease deed would have to be adjudicated only by the

competent civil court and not by this Court under Article 226 of the

Constitution of India, especially when complex and substantial

disputed questions of fact require detailed evidence which is

impermissible by way of the present petition.

15. A perusal of the claim of the petitioners will indicate that

it is their specific contention that the petitioner No.1 - Firm is the

owner of land bearing Sy.No.193/4, in which, respondents 3 to 5

are running the aforesaid Harsha Institute of Physiotherapy having

obtained affiliation based on a forged / fabricated lease deed,

thereby affecting the rights of the petitioners over the said property.

In addition to disputing the various allegations and claim made by

the petitioners, respondents 3 to 5 specifically contend that the said

Harsha Institute of Physiotherapy is being run in property bearing - 19 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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No.7568 and No.7380, in respect of which, 2nd respondent -

RGUHS has granted affiliation and continued the same from 2016

onwards. In this context, it is pertinent to note that while the

allegedly forged lease agreement dated 21.11.2011 (Annexure-G)

pertains to Khaneshumari No.7568 carved out of Sy.No.191, the

lease agreement dated 21.01.2011 (Annexure-H) pertains to

property bearing site No.4, Khaneshumari No.4836 / 04, both of

which do not relate to Sy.No.193/4 claimed by the petitioners. It

follows therefrom that in the light of the specific plea put forth by

the petitioners over Sy.No.193/4, the petitioners cannot be said to

be aggrieved persons in relation to the aforesaid lease deeds /

agreements which do not relate to Sy.No.193 /4 claimed by them,

thereby indicating that the petitioners do not have locus standi to

maintain the present petition.

16. In Vinoy Kumar's case supra, the Apex Court held as

under:-

"2. Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights - 20 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief."

17. In Ayaaubkhan Noorkhan Pathan's case supra, the

Apex Court held as under:

"Person aggrieved 9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the authority/court, that he falls - 21 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can, of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. [Vide State of Orissa v. Madan Gopal Rungta [1951 SCC 1024 : AIR 1952 SC 12] , Saghir Ahmad v. State of U.P. [AIR 1954 SC 728] , Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. [AIR 1962 SC 1044] , Rajendra Singh v. State of M.P. [(1996) 5 - 22 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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SCC 460 : AIR 1996 SC 2736] and Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekar [(2009) 2 SCC 784] .] 10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York [(1974) 2 SCC 387 : AIR 1974 SC 1719] and State of Rajasthan v. Union of India [(1977) 3 SCC 592 : AIR 1977 SC 1361] .) 11. In Anand Sharadchandra Oka v. University of Mumbai [(2008) 5 SCC 217 : AIR 2008 SC 1289] , a similar view was taken by this Court, observing that, if a person claiming relief is not eligible as per requirement, then he cannot be said to be a person aggrieved regarding the election or the selection of other persons. 13. This Court, even as regards the filing of a habeas corpus petition, has explained that the expression "next friend" means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody. [Vide Charanjit Lal Chowdhury v. Union of India [1950 SCC 833 : AIR 1951 SC 41] , Sunil Batra (2) v. Delhi Admn. [(1980) 3 SCC - 23 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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488 : 1980 SCC (Cri) 777 : AIR 1980 SC 1579] , Nilima Priyadarshini v. State of Bihar [1987 Supp SCC 732 : 1988 SCC (Cri) 138 : AIR 1987 SC 2021] , Simranjit Singh Mann v. Union of India [(1992) 4 SCC 653 : 1993 SCC (Cri) 22 : AIR 1993 SC 280] , Karamjeet Singh v. Union of India [(1992) 4 SCC 666 : 1993 SCC (Cri) 17 : AIR 1993 SC 284] and Kishore Samrite v. State of U.P. [(2013) 2 SCC 398] ]"

18. As stated supra, the specific claim of the petitioners is in

relation to land bearing Sy.No.193/4 and since the lease deeds

referred to by the petitioners dated 21.11.2011 do not pertain to the

said property, the petitioners cannot be said to be aggrieved

persons nor can there be said to have any locus standi to prefer /

maintain the present petition which is liable to be dismissed.

19. In Dr.Rai Shivendra Bahadur's case supra, the Apex

Court held as under:-

"5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under Section 20 of the University of Bihar Act have or have not the force of law and whether a writ under Article 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do - 24 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to court and ask for a writ to issue. It is therefore not necessary to go into any other question."

20. In the instant case, so long as the aforesaid lease

agreements dated 21.11.2011 do not pertain to land bearing

Sy.No.193/4 claimed by them nor is there any other material to

establish that Harsha Institute of Physiotherapy, in whose favour

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bearing Sy.No.193/4, it cannot be said that the petitioners have any

locus standi or any claim to challenge the grant or continuation of

affiliation in favour of the said Institute and consequently, the

present petition is liable to be dismissed on this ground also.

21. As stated earlier, while petitioners specifically contend

that Harsha Institute of Physiotherapy is being run in land bearing

Sy.No.193/4 belonging to them, respondents 3 to 5 specifically

contend that the said Institute is being run in property bearing

No.7568 and No.7380 purchased by them vide registered sale

deeds dated 01.10.2008 and 23.09.2010; this factual dispute

regarding not only right, title, interest and possession over the land

in which the said Institute is being run but also its location, identity,

measurements etc., also gives rise to complex / complicated

factual controversy which necessarily has to be adjudicated before

the competent civil court and not by way of the present petition

under Article 226 of the Constitution of India and viewed from this

angle also, the petition is liable to be dismissed.

22. In St.Mary's Education Society's case supra, the

Apex Court held as under:- - 26 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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"Legal status of Appellant 1 Society

16. Appellant 1 is a Society registered under the Madhya Pradesh Society Registrikaran Adhiniyam, 1973. The Society runs an all-girls school in Mhow, Indore, Madhya Pradesh, by the name St. Mary's Higher Secondary School, which was founded by a group of French Catholic Nuns in 1893. The school is a private unaided minority educational institution, which enjoys the protection guaranteed under Article 30(1) of the Constitution. There is absolutely no governmental control over the functioning and administration of the school. Respondent 1 herein was employed in this school prior to his termination. The school is presently affiliated to the Central Board of Secondary Education (CBSE) and is thus governed by its Rules and Bye- laws. Further, the Society has its own Bye-laws, namely: (1) the Service Conditions for the Employees of St. Mary's School, and (2) Service Rules for Teaching and Non- Teaching Staff. Appellant 1 Society and the school are absolutely private institutions, without any aid or control of the Government or any instrumentality of the Government, and therefore, not a "State" within the meaning of Article 12 of the Constitution. xxxx - 27 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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30. We may at the outset state that CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The distinction between a body created by the statute and a body governed in accordance with a statute has been explained by this Court in Executive Committee of Vaish Degree College v. Lakshmi Narain [Executive Committee of Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58 : 1976 SCC (L&S) 176] , as follows : (SCC p. 65, para 10) "10. ... It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body."

31. As stated above, the school is affiliated to CBSE for the sake of convenience, namely, for the purpose of recognition and syllabus or the courses of study and the provisions of the 2009 Act and the Rules framed thereunder.

32. The contention canvassed by Respondent 1 is that a writ petition is maintainable against the Committee of Management controlling the affairs of an - 28 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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institution (minority) run by it, if it violates any rules and Bye-laws laid down by CBSE. First, as discussed above, CBSE itself is not a statutory body nor the regulations framed by it have any statutory force. Secondly, the mere fact that the Board grants recognition to the institutions on certain terms and conditions itself does not confer any enforceable right on any person as against the Committee of Management.

33. In Regina v. St. Aloysius Higher Secondary School [Regina v. St. Aloysius Higher Secondary School, (1972) 4 SCC 188 : AIR 1971 SC 1920] , this Court held that the mere fact that an institution is recognised by an authority, does not itself create an enforceable right to an aggrieved party against the Management by a teacher on the ground of breach or non-compliance of any of the Rules which was part of terms of the recognition. It was observed as under : (SCC p. 198, para 24) "24. ... The Rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce these rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as teacher aggrieved by some order of the management cannot derive from the rules any enforceable right against the management on the ground of breach or non- compliance of any of the rules." - 29 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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34. In Anita Verma v. D.A.V. College Management Committee [Anita Verma v. D.A.V. College Management Committee, (1992) 1 UPLBEC 30] : "... 30. Where the services of a teacher were terminated, the Court held that the writ petition under Article 226 is not maintainable as the institution cannot be treated as the instrumentality of the State. The matter was considered in detail in Harbans Kaur v. Guru Tegh Bahadur Public School [Harbans Kaur v. Guru Tegh Bahadur Public School, 1992 SCC OnLine All 444 : 1992 Lab IC 2070] , wherein the services of the petitioner were terminated by the Managing Committee of the institution recognised by CBSE. It was held that the Affiliation Bye-laws framed by CBSE have no statutory force. The Court under Article 226 of the Constitution of India can enforce compliance of statutory provision against a committee of management as held in a Full Bench decision of this Court in Aley Ahmad Abidi v. District Inspector of Schools [Aley Ahmad Abidi v. District Inspector of Schools, 1976 SCC OnLine All 325 : AIR 1977 All 539] . The Affiliation Bye-laws of CBSE having no statutory force, the only remedy against the aggrieved person is to approach CBSE putting his grievances in relation to the violation of the Affiliation Bye-laws by the institution."

35. Thus, where a teacher or non-teaching staff challenges the action of Committee of Management that it has violated the terms of contract or the rules of the Affiliation Bye-laws, the appropriate remedy of such teacher or employee is to approach CBSE or to take such other legal remedy available under law. It is open to CBSE to take appropriate action against the Committee of Management of the institution for withdrawal of recognition in case it finds that the - 30 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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Committee of Management has not performed its duties in accordance with the Affiliation Bye-laws.

36. It needs no elaboration to state that a school affiliated to CBSE which is unaided is not a State within Article 12 of the Constitution of India [see Satimbla Sharma v. St Paul's Senior Secondary School [Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13 SCC 760 : (2012) 2 SCC (L&S) 75] ]. Nevertheless the school discharges a public duty of imparting education which is a fundamental right of the citizen [see K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg. [K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841] ]. The school affiliated to CBSE is therefore an "authority" amenable to the jurisdiction under Article 226 of the Constitution of India[see Binny Ltd. v. V. Sadasivan [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ]. However, a judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service. A contract of personal service includes all matters relating to the service of the employee -- confirmation, suspension, transfer, termination, etc. [see Apollo Tyres Ltd. v. C.P. Sebastian [Apollo Tyres Ltd. v. C.P. Sebastian, (2009) 14 SCC 360 : (2009) 5 SCC (Civ) 358 : (2010) 1 SCC (L&S) 359] ]. - 31 - NC: 2025:KHC:30787 WP No. 21472 of 2024

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37. This Court in K.K. Saksena v. International Commission on Irrigation & Drainage [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] , after an exhaustive review of its earlier decisions on the subject, held as follows : (SCC pp. 692 & 696, paras 43 & 52) "43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law. ***

52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely:

(i) when the employee is a public servant working under the Union of India or State;

(ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and

(iii) when such an employee is "workmen"

within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding

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his termination by invoking the machinery under the said Act.

In the first two cases, the employment ceases to have private law character and "status" to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the Labour Court/Industrial Tribunal to grant reinstatement in case termination is found to be illegal."

38. The following decisions have been adverted to in K.K. Saksena [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] :

1. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] ,

2. G. Bassi Reddy v. International Crops Research Institute [G. Bassi Reddy v. International Crops Research Institute, (2003) 4 SCC 225] ,

3. Praga Tools Corpn. v. C.A. Imanual [Praga Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585] ,

4. Federal Bank Ltd. v. Sagar Thomas [Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] .

39. This Court in Janet Jeyapaul v. SRM University [Janet Jeyapaul v. SRM University, (2015) 16 SCC 530 : (2015) 13 Scale 622 : 8 SCEC 68] , held that when a private body exercises its public functions even

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if it is not a State, the aggrieved person has a remedy, not only under the ordinary law, but also by way of a writ petition under Article 226 of the Constitution. In Binny case [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] , this Court held that Article 226 of the Constitution is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in the discharge of public function.

40. Para 11 of the judgment in Binny [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] is reproduced below : (SCC pp. 665-66) "11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between

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public functions and private functions when it is being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest."

(emphasis supplied)

41. This Court considered various of its other decisions to examine the question of public law remedy under Article 226 of the Constitution. This Court observed in Binny case [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] as under :

(SCC p. 673, para 29) "29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.

This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is

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immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies."

(emphasis supplied)

42. In the penultimate paragraph, this Court [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] ruled as under : (Binny case [Binny Ltd. v. V. Sadasivan, (2005) 6 SCC 657 : 2005 SCC (L&S) 881] , SCC p. 674, para 32) "32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not "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."

(emphasis supplied)

43. In the background of the above legal position, it can be safely concluded that power of judicial review under Article 226 of the Constitution of India can be exercised by the High Court even if the body against which an action is sought is not State or an authority or an instrumentality of the State but there must be a public element in the action complained of.

44. A reading of the above extract shows that the decision sought to be corrected or enforced must be in the discharge of a public function. No doubt, the aims and objective of Appellant 1 herein are to impart education, which is a public function. However, the

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issue herein is with regard to the termination of service of Respondent 1, which is basically a service contract. A body is said to be performing a public function when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so.

45. In Delhi Public School v. M.K. Gandhi [Delhi Public School v. M.K. Gandhi, (2015) 17 SCC 353 :

(2017) 5 SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] , this Court held that no writ is maintainable against a private school as it is not a "State" within the meaning of Article 12 of the Constitution of India.

46. In Trigun Chand Thakur v. State of Bihar [Trigun Chand Thakur v. State of Bihar, (2019) 7 SCC 513 :

(2019) 2 SCC (L&S) 378] , this Court upheld the view [Trigun Chand Thakur v. State of Bihar, 2008 SCC OnLine Pat 994] of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management.

47. In Satimbla Sharma [Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13 SCC 760 :

(2012) 2 SCC (L&S) 75] , this Court held that the unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution

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are not "State" within the meaning of Article 12 of the Constitution. As the right to equality under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority private schools.

48. The Full Bench of the Allahabad High Court in Roychan Abraham v. State of U.P. [Roychan Abraham v. State of U.P., 2019 SCC OnLine All 3935 :

AIR 2019 All 96] , after taking into consideration various decisions of this Court, held as under : (SCC OnLine All para 38) "38. Even if it be assumed that an educational institution is imparting public duty, the act complained of must have direct nexus with the discharge of public duty. It is undisputedly a public law action which confers a right upon the aggrieved to invoke extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through petition under Article 226. Wherever Courts have intervened in exercise of jurisdiction under Article 226, either the service conditions were regulated by statutory provisions or the employer had the status of "State" within the expansive definition under Article 12 or it was found that the action complained of has public law element."

(emphasis supplied)

49. We may refer to and rely upon one order passed by this Court in S.K. Varshney v. Our Lady of Fatima Higher Secondary School [S.K. Varshney v. Our Lady of Fatima Higher Secondary School, (2023) 4 SCC 539] , in which the dispute was one relating to the retirement age of a teacher working in an unaided institution. This

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Court, while dismissing the appeal preferred by the employee, held as under : (SCC p. 523, paras 4-8) "4. Both the petitions were dismissed by the learned Single Judge on the ground that no writ would lie against unaided private institutions and the writ petitions were not maintainable.

5. Aggrieved thereby, writ appeals have been filed before the Division Bench without any result. The Division Bench held [S.K. Varshney v. Our Lady of Fatima Higher Secondary School, 1999 SCC OnLine All 908] that the writ petitions are not maintainable against a private institute. Aggrieved thereby, these appeals have been filed.

6. The counsel for the appellant relied on a decision rendered by this Court in K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg. [K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841] He particularly relied on the observation made by this Court in para 4 of the order that when an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226.

7. This Court in Sushmita Basu v. Ballygunge Siksha Samity [Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680 : 2006 SCC (L&S) 1741] in which one of us (Sema, J.) is a party, after considering the aforesaid judgment has distinguished the ratio by holding that the writ under Article 226 of the Constitution against a private educational institute would be justified only if a public law element is involved and if it is only a private law remedy no writ petition would lie. In the present cases, there is no question of public law element involved inasmuch as the grievances of the appellants are of personal nature.

8. We, accordingly, hold that writ petitions are not maintainable against the private institute. There is no infirmity in the order passed by the learned Single Judge and affirmed by the Division Bench. These appeals

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are devoid of merit and are, accordingly, dismissed. No costs."

(emphasis supplied)

50. We may also refer to and rely upon the decision of this Court in Vidya Ram Misra v. Shri Jai Narain College [Vidya Ram Misra v. Shri Jai Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450] . The appellant therein filed a writ petition before the Lucknow Bench of the High Court of Allahabad challenging the validity of a resolution passed by the Managing Committee of Shri Jai Narain College, Lucknow, an associated college of Lucknow University, terminating his services and praying for issue of an appropriate writ or order quashing the resolution. A learned Single Judge of the High Court finding that in terminating the services, the Managing Committee acted in violation of the principles of natural justice, quashed the resolution and allowed the writ petition. The Managing Committee appealed against the order. A Division Bench of the High Court found that the relationship between the college and the appellant therein was that of master and servant and that even if the service of the appellant had been terminated in breach of the audi alteram partem rule of natural justice, the remedy of the appellant was to file a suit for damages and not to apply under Article 226 of the Constitution for a writ or order in the nature of certiorari and that, in fact, no principle of natural justice was violated by terminating the services of the appellant. The writ petition was dismissed. In appeal, this Court upheld the decision of the High Court holding

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that the lecturer cannot have any cause of action on breach of the law but only on breach of the contract, hence he has a remedy only by way of suit for damages and not by way of writ under Article 226 of the Constitution.

51. In Vidya Ram Misra [Vidya Ram Misra v. Shri Jai Narain College, (1972) 1 SCC 623 : AIR 1972 SC 1450] , this Court observed thus : (SCC p. 629, paras 12-13) "12. Whereas in P.R.K. Jodh v. A.L. Pande [P.R.K. Jodh v. A.L. Pande, (1965) 2 SCR 713] , the terms and conditions of service embodies in Clause 8(vi)(a) of the "College Code" had the force of law apart from the contract and conferred rights on the appellant there, here the terms and conditions mentioned in Statute 151 have no efficacy, unless they are incorporated in a contract. Therefore, appellant cannot found a cause of action on any breach of the law but only on the breach of the contract. As already indicated, Statute 151 does not lay down any procedure for removal of a teacher to be incorporated in the contract. So, Clause 5 of the contract can, in no event, have even a statutory flavour and for its breach, the appellant's remedy lay elsewhere.

13. Besides, in order that the third exception to the general rule that no writ will lie to quash an order terminating a contract of service, albeit illegally, as stated in S.R. Tewari v. District Board, Agra [S.R. Tewari v. District Board, Agra, (1964) 3 SCR 55 : AIR 1964 SC 1680] , might apply, it is necessary that the order must be the order of a statutory body acting in breach of a mandatory obligation imposed by a statute. The college, or the Managing Committee in question, is not a statutory body and so the argument of Mr Setalvad that the case in hand will fall under the third exception cannot be accepted. The contention of counsel that this Court has sub silentio sanctioned the issue of a writ under Article 226 to quash an order terminating services of a teacher passed by a

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college similarly situate in P.R.K. Jodh [P.R.K. Jodh v. A.L. Pande, (1965) 2 SCR 713] , and, therefore, the fact that the college or the Managing Committee was not a statutory body was no hindrance to the High Court issuing the writ prayed for by the appellant has no merit as this Court expressly stated in the judgment that no such contention was raised in the High Court and so it cannot be allowed to be raised in this Court."

52. In the case on hand, the facts are similar. Rule 26(1) of the Affiliation Bye-laws, framed by CBSE, provides that each school affiliated with the Board shall frame Service Rules. Sub-rule (2) of it provides that a service contract will be entered with each employee as per the provision in the Education Act of the State/Union Territory, or as given in Appendix III, if not obligatory as per the State Education Act. These rules also provide procedures for appointments, probation, confirmation, recruitment, attendance representations, grant of leave, code of conduct, disciplinary procedure, penalties, etc. The model form of contract of service, to be executed by an employee, given in Appendix III, lays down that the service, under this agreement, will be liable to disciplinary action in accordance with the Rules and Regulations framed by the school from time to time. Only in case where the post is abolished or an employee intends to resign, Rule 31 of the Affiliation Bye-laws of the Board will apply. It may be noted that the above Bye-laws do not provide for any particular procedure for dismissal or removal of a teacher for being incorporated in the contract. Nor does the model

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form of contract given in Appendix III lay down any particular procedure for that purpose. On the contrary, the disciplinary action is to be taken in accordance with the Rules and Regulations framed by the school from time to time.

53. On a plain reading of these provisions, it becomes clear that the terms and conditions mentioned in the Affiliation Bye-laws may be incorporated in the contract to be entered into between the school and the employee concerned. It does not say that the terms and conditions have any legal force, until and unless they are embodied in an agreement. To put it in other words, the terms and conditions of service mentioned in Chapter VII of the Affiliation Bye-laws have no force of law. They become terms and conditions of service only by virtue of their being incorporated in the contract. Without the contract they have no vitality and can confer no legal rights. The terms and conditions mentioned in the Affiliation Bye-laws have no efficacy, unless they are incorporated in a contract. In the absence of any statutory provisions governing the services of the employees of the school, the service of Respondent 1 was purely contractual. A contract of personal service cannot be enforced specifically. Therefore, Respondent 1 cannot find a cause of action on any breach of the law, but only on the breach of the contract. That being so, the appellant's remedy lies elsewhere and in no case the writ is maintainable.

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54. Thus, the aforesaid order passed by this Court makes it very clear that in a case of retirement and in case of termination, no public law element is involved. This Court has held that a writ under Article 226 of the Constitution against a private educational institution shall be maintainable only if a public law element is involved and if there is no public law element is involved, no writ lies.

55. In T.M.A. Pai Foundation v. State of Karnataka [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , an eleven- Judge Bench of this Court formulated certain points in fact to reconsider its earlier decision in Ahmedabad St. Xavier's College Society v. State of Gujarat [Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125] , and also Unni Krishnan, J.P. v. State of A.P. [Unni Krishnan, J.P. v. State of A.P., (1993) 4 SCC 111 : 1 SCEC 645] , regarding the "right of the minority institution including administration of the student and imparting education vis-à-vis the right of administration of the non-minority student".

56. In the said case, very important points arose as follows : (T.M.A. Pai Foundation case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , SCC pp. 709-10, para 450) "450. ... Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including

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recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees who are subjected to punishment or termination from service, a mechanism will have to be evolved and in our opinion, appropriate tribunals could be constituted, and till then, such tribunal could be presided over by a judicial officer of the rank of District Judge. The State or other controlling authorities, however, can always prescribe the minimum qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State without interfering with overall administrative control of management over the staff, government/university representative can be associated with the Selection Committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed."

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57. We now proceed to look into the two decisions of this Court in Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :

(2013) 3 SCC (L&S) 456 : 4 SCEC 715] and Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] respectively.

58. In Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :

(2013) 3 SCC (L&S) 456 : 4 SCEC 715] , the appellant therein was working as an administrative officer in a privately run educational institution and by way of disciplinary proceedings, was removed from service by the Managing Committee of the said educational institution. A writ petition was filed before the learned Single Judge of the High Court challenging the order of the disciplinary authority wherein he was removed from service. The writ petition was ordered [Ramesh Ahluwalia v. State of Punjab, 2009 SCC OnLine P&H 11755] to be dismissed in limine holding that the said educational institution being an unaided and a private school managed by the society cannot be said to be an instrument of the State. The appeal before the Division Bench also came to be dismissed [Ramesh Ahluwalia v. State of Punjab, 2010 SCC OnLine P&H 13111] . The matter travelled to this Court.

59. The principal argument before this Court in Ramesh Ahluwalia case [Ramesh Ahluwalia v. State

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of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] was in regard to the maintainability of the writ petition against a private educational institution. It was argued on the behalf of the appellant therein that although a private educational institution may not fall within the definition of "State" or "other authorities/instrumentalities" of the State under Article 12 of the Constitution, yet a writ petition would be maintainable as the said educational institution could be said to be discharging public functions by imparting education. However, the learned counsel for the educational institution therein took a plea before this Court that while considering whether a body falling within the definition of "State", it is necessary to consider whether such body is financially, functionally and administratively dominated by or under the control of the Government. It was further argued that if the control is merely regulatory either under a statute or otherwise, it would not ipso facto make the body "State" within Article 12 of the Constitution. On the conspectus of the peculiar facts of the case and the submissions advanced, this Court held that a writ petition would be maintainable if a private educational institution discharges public functions, more particularly imparting education. Even by holding so, this Court declined to extend any benefits to the teacher as the case involved disputed questions of fact.

60. We take notice of the fact that in Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012)

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12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] the attention of the Hon'ble Judges was not drawn to the earlier decisions of this Court in K. Krishnamacharyulu [K. Krishnamacharyulu v. Sri Venkateswara Hindu College of Engg., (1997) 3 SCC 571 : 1997 SCC (L&S) 841] , Federal Bank [Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] , Sushmita Basu v. Ballygunge Siksha Samity [Sushmita Basu v. Ballygunge Siksha Samity, (2006) 7 SCC 680 : 2006 SCC (L&S) 1741] , and Delhi Public School v. M.K. Gandhi [Delhi Public School v. M.K. Gandhi, (2015) 17 SCC 353 : (2017) 5 SCC (Civ) 461 : (2015) 3 SCC (L&S) 745] .

61. In Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :

(2021) 1 SCC (L&S) 854] , this Court followed Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] referred to above.

62. We may say without any hesitation that Respondent 1 herein cannot press into service the dictum as laid down by this Court in Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] as the said case is distinguishable. The most important distinguishing feature of Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S)

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854] is that in the said case the removal of the teacher from service was subject to the approval of the State Government. The State Government took a specific stance before this Court that its approval was required both for the appointment as well as removal of the teacher. In the case on hand, indisputably the Government or any other agency of the Government has no role to play in the termination of Respondent 1 herein.

63. In context with Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] , we remind ourselves of Bye-law 49(2) which provides that no order with regard to the imposition of major penalty shall be made by the disciplinary authority except after the receipt of the approval of the Disciplinary Committee. Thus unlike Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 : (2021) 1 SCC (L&S) 854] where approval was required of the State Government, in the case on hand the approval is to be obtained from the Disciplinary Committee of the institution. This distinguishing feature seems to have been overlooked by the High Court while passing the impugned order.

64. In Marwari Balika Vidyalaya [Marwari Balika Vidyalaya v. Asha Srivastava, (2020) 14 SCC 449 :

(2021) 1 SCC (L&S) 854] , the school was receiving

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grant-in-aid to the extent of dearness allowance. The appointment and the removal, as noted above, is required to be approved by the District Inspector of School (Primary Education) and, if any action is taken dehors such mandatory provisions, the same would not come within the realm of private element.

65. In Trigun Chand Thakur [Trigun Chand Thakur v. State of Bihar, (2019) 7 SCC 513 : (2019) 2 SCC (L&S) 378] , the appellant therein was appointed as a Sanskrit teacher and a show-cause notice was issued upon him on the ground that he was absent on the eve of Independence day and Teachers Day which resulted into a dismissal order passed by the Managing Committee of the private school. The challenge was made by filing a writ petition before the High Court which was dismissed on the ground that the writ petition is not maintainable against an order terminating the service by the Managing Committee of the private school. This Court held that even if the private school was receiving a financial aid from the Government, it does not make the said Managing Committee of the school a "State" within the meaning of Article 12 of the Constitution of India.

66. Merely because a writ petition can be maintained against the private individuals discharging the public duties and/or public functions, the same should not be entertained if the enforcement is sought to be secured under the realm of a private law. It would not be safe to

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say that the moment the private institution is amenable to writ jurisdiction then every dispute concerning the said private institution is amenable to writ jurisdiction. It largely depends upon the nature of the dispute and the enforcement of the right by an individual against such institution. The right which purely originates from a private law cannot be enforced taking aid of the writ jurisdiction irrespective of the fact that such institution is discharging the public duties and/or public functions. The scope of the mandamus is basically limited to an enforcement of the public duty and, therefore, it is an ardent duty of the court to find out whether the nature of the duty comes within the peripheral of the public duty. There must be a public law element in any action.

67. Our present judgment would remain incomplete if we fail to refer to the decision of this Court in Ramakrishna Mission v. Kago Kunya [Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303] . In the said case this Court considered all its earlier judgments on the issue. The writ petition was not found maintainable against the Mission merely for the reason that it was found running a hospital, thus discharging public functions/public duty. This Court considered the issue in reference to the element of public function which should be akin to the work performed by the State in its sovereign capacity. This Court took the view that every public function/public duty would not make a writ petition to be maintainable against an "authority" or a "person" referred under Article 226 of the Constitution

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of India unless the functions are such which are akin to the functions of the State or are sovereign in nature.

68. Few relevant paragraphs of the said judgment are quoted as under for ready reference : (Ramakrishna Mission case [Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303] , SCC pp. 309-11 & 313, paras 17- 22 & 25-26) "17. The basic issue before this Court is whether the functions performed by the hospital are public functions, on the basis of which a writ of mandamus can lie under Article 226 of the Constitution.

18. The hospital is a branch of the Ramakrishna Mission and is subject to its control. The Mission was established by Swami Vivekanand, the foremost disciple of Shri Ramakrishna Paramhansa. Service to humanity is for the organisation co-equal with service to God as is reflected in the motto "Atmano Mokshartham Jagad Hitaya Cha". The main object of the Ramakrishna Mission is to impart knowledge in and promote the study of Vedanta and its principles propounded by Shri Ramakrishna Paramahansa and practically illustrated by his own life and of comparative theology in its widest form. Its objects include, inter alia to establish, maintain, carry on and assist schools, colleges, universities, research institutions, libraries, hospitals and take up development and general welfare activities for the benefit of the underprivileged/backward/tribal people of society without any discrimination. These activities are voluntary, charitable and non-profit making in nature. The activities undertaken by the Mission, a non-profit entity are not closely related to those performed by the State in its sovereign capacity nor do they partake of the nature of a public duty.

19. The Governing Body of the Mission is constituted by members of the Board of Trustees of Ramakrishna Math and is vested with the power and authority to manage the organisation. The properties and funds of the Mission and its

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management vest in the Governing Body. Any person can become a member of the Mission if elected by the Governing Body. Members on roll form the quorum of the annual general meetings. The Managing Committee comprises of members appointed by the Governing Body for managing the affairs of the Mission. Under the Memorandum of Association and Rules and Regulations of the Mission, there is no governmental control in the functioning, administration and day-to-day management of the Mission. The conditions of service of the employees of the hospital are governed by service rules which are framed by the Mission without the intervention of any governmental body.

20. In coming to the conclusion that the appellants fell within the description of an authority under Article 226, the High Court placed a considerable degree of reliance on the judgment of a two-Judge Bench of this Court in Andi Mukta [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] . Andi Mukta [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] was a case where a public trust was running a college which was affiliated to Gujarat University, a body governed by the State legislation. The teachers of the University and all its affiliated colleges were governed, insofar as their pay scales were concerned, by the recommendations of the University Grants Commission. A dispute over pay scales raised by the association representing the teachers of the University had been the subject-matter of an award of the Chancellor, which was accepted by the Government as well as by the University. The management of the college, in question, decided to close it down without prior approval. A writ petition was instituted before the High Court for the enforcement of the right of the teachers to receive their salaries and terminal benefits in accordance with the governing provisions. In that context, this Court dealt with the issue as to

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whether the management of the college was amenable to the writ jurisdiction. A number of circumstances weighed in the ultimate decision of this Court, including the following:

20.1. The trust was managing an affiliated college.

20.2. The college was in receipt of government aid.

20.3. The aid of the Government played a major role in the control, management and work of the educational institution.

20.4. Aided institutions, in a similar manner as government institutions, discharge a public function of imparting education to students. 20.5. All aided institutions are governed by the rules and regulations of the affiliating University. 20.6. Their activities are closely supervised by the University.

20.7. Employment in such institutions is hence, not devoid of a public character and is governed by the decisions taken by the University which are binding on the management.

21. It was in the above circumstances that this Court came to the conclusion that the service conditions of the academic staff do not partake of a private character, but are governed by a right-

duty relationship between the staff and the management. A breach of the duty, it was held, would be amenable to the remedy of a writ of mandamus. While the Court recognised that "the fast expanding maze of bodies affecting rights of people cannot be put into watertight compartments", it laid down two exceptions where the remedy of mandamus would not be available :

(SCC p. 698, para 15) '15. If the rights are purely of a private character no mandamus can issue. 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.'

22. Following the decision in Andi Mukta [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691 : AIR 1989 SC 1607] , this Court has had the occasion to re-visit the underlying principles in successive decisions.

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This has led to the evolution of principles to determine what constitutes a "public duty" and "public function" and whether the writ of mandamus would be available to an individual who seeks to enforce her right.

***

25. A similar view was taken in Ramesh Ahluwalia v. State of Punjab [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 :

(2013) 3 SCC (L&S) 456 : 4 SCEC 715] , where a two-Judge Bench of this Court held that a private body can be held to be amenable to the jurisdiction of the High Court under Article 226 when it performs public functions which are normally expected to be performed by the State or its authorities.

26. In Federal Bank Ltd. v. Sagar Thomas [Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] , this Court analysed the earlier judgments of this Court and provided a classification of entities against whom a writ petition may be maintainable : (SCC p. 748, para

18) '18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.' "

(emphasis in original)

69. The aforesaid decision of this Court in Ramakrishna Mission [Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303] came to be considered exhaustively by a Full Bench of the High Court of Allahabad in Uttam Chand Rawat v. State of U.P. [Uttam Chand Rawat v. State of U.P., 2021 SCC

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OnLine All 724 : (2021) 6 All LJ 393] , wherein the Full Bench was called upon to answer the following question : (Uttam Chand Rawat case [Uttam Chand Rawat v. State of U.P., 2021 SCC OnLine All 724 :

(2021) 6 All LJ 393] , SCC OnLine All para 1) "1. ...'(i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution?"

70. The Full Bench proceeded to answer the aforesaid question as under : (Uttam Chand Rawat case [Uttam Chand Rawat v. State of U.P., 2021 SCC OnLine All 724 : (2021) 6 All LJ 393] , SCC OnLine All paras 16-20) "16. The substance of the discussion made above is that a writ petition would be maintainable against the authority or the person which may be a private body, if it discharges public function/public duty, which is otherwise primary function of the State referred in the judgment of the Supreme Court in Ramakrishna Mission [Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303] and the issue under public law is involved. The aforesaid twin test has to be satisfied for entertaining writ petition under Article 226 of the Constitution of India.

17. From the discussion aforesaid and in the light of the judgments referred above, a writ petition under Article 226 of the Constitution would be maintainable against (i) the Government; (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of

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public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.

18. There is thin line between "public functions" and "private functions" discharged by a person or a private body/authority. The writ petition would be maintainable only after determining the nature of the duty to be enforced by the body or authority rather than identifying the authority against whom it is sought.

19. It is also that even if a person or authority is discharging public function or public duty, the writ petition would be maintainable under Article 226 of the Constitution, if Court is satisfied that action under challenge falls in the domain of public law, as distinguished from private law. The twin tests for maintainability of writ are as follows:

1. The person or authority is discharging public duty/public functions.

2. Their action under challenge falls in domain of public law and not under common law.

20. The writ petition would not be maintainable against an authority or a person merely for the reason that it has been created under the statute or is to be governed by regulatory provisions. It would not even in a case where aid is received unless it is substantial in nature. The control of the State is another issue to hold a writ petition to be maintainable against an authority or a person."

(emphasis supplied)

71. We owe a duty to consider one relevant aspect of the matter. Although this aspect which we want to take notice of has not been highlighted by Respondent 1, yet we must look into the same. We have referred to the CBSE Affiliation Bye-laws in the earlier part of our judgment. Appendix IV of the Affiliation Bye-laws is with respect to the minority institutions. Clause 6 of Appendix IV is with respect to the disciplinary control

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over the staff in a minority educational institution. We take notice of the fact that in Clause 6, the State has the regulatory power to safeguard the interests of their employees and their service conditions including the procedure for punishment to be imposed.

72. For the sake of convenience and at the cost of repetition, we quote Clause 6 once again as under:

"6. Disciplinary control over staff in Minority EducationalInstitutions.--While the managements should exercise the disciplinary control over staff, it must be ensured that they hold an inquiry and follow a fair procedure before punishment is given. With a view to preventing the possible misuse of power by the management of the Minority Educational Institutions, the State has the regulatory power to safeguard the interests of their employees and their service conditions including procedure for punishment to be imposed."

(emphasis supplied)

73. It could be argued that as the State has regulatory power to safeguard the interests of the employees serving with the minority institutions, any action or decision taken by such institution is amenable to writ jurisdiction under Article 226 of the Constitution.

74. In the aforesaid context, we may only say that merely because the State Government has the regulatory power, the same, by itself, would not confer any such status upon the institution (school) nor put any such obligations upon it which may be enforced through issue of a writ under Article 226 of the Constitution. In this regard, we may refer to and rely upon the decision of this Court in Federal Bank [Federal Bank

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Ltd. v. Sagar Thomas, (2003) 10 SCC 733] . While deciding whether a private bank that is regulated by the Banking Regulation Act, 1949 discharges any public function, this Court held thus : (Ramakrishna Mission case [Ramakrishna Mission v. Kago Kunya, (2019) 16 SCC 303] , SCC pp. 315-16, paras 33-35) "33. ...'33. ...'in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We do not find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. The respondent's service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank.' (Federal Bank case [Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733] , SCC pp. 758-59, para 33)

34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K.K. Saksena [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4

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SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.

35. It is of relevance to note that the Act was enacted to provide for the regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved."

(emphasis in original and supplied)

75. We may sum up our final conclusions as under:

75.1. An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.

75.2. Even if it be assumed that an educational institution is imparting public duty, the act complained of

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must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers a right upon the aggrieved to invoke the extraordinary writ jurisdiction under Article 226 for a prerogative writ. Individual wrongs or breach of mutual contracts without having any public element as its integral part cannot be rectified through a writ petition under Article 226. Wherever Courts have intervened in their exercise of jurisdiction under Article 226, either the service conditions were regulated by the statutory provisions or the employer had the status of "State" within the expansive definition under Article 12 or it was found that the action complained of has public law element.

75.3. It must be consequently held that while a body may be discharging a public function or performing a public duty and thus its actions becoming amenable to judicial review by a constitutional court, its employees would not have the right to invoke the powers of the High Court conferred by Article 226 in respect of matter relating to service where they are not governed or controlled by the statutory provisions. An educational institution may perform myriad functions touching various facets of public life and in the societal sphere. While such of those functions as would fall within the domain of a "public function" or "public duty" be undisputedly open to challenge and scrutiny under Article 226 of the Constitution, the actions or decisions taken solely within the confines of an ordinary contract of service, having no statutory force or backing, cannot

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be recognised as being amenable to challenge under Article 226 of the Constitution. In the absence of the service conditions being controlled or governed by statutory provisions, the matter would remain in the realm of an ordinary contract of service.

75.4. Even if it be perceived that imparting education by private unaided school is a public duty within the expanded expression of the term, an employee of a non-teaching staff engaged by the school for the purpose of its administration or internal management is only an agency created by it. It is immaterial whether "A" or "B" is employed by school to discharge that duty. In any case, the terms of employment of contract between a school and non-teaching staff cannot and should not be construed to be an inseparable part of the obligation to impart education. This is particularly in respect to the disciplinary proceedings that may be initiated against a particular employee. It is only where the removal of an employee of non-teaching staff is regulated by some statutory provisions, its violation by the employer in contravention of law may be interfered with by the Court. But such interference will be on the ground of breach of law and not on the basis of interference in discharge of public duty.

75.5. From the pleadings in the original writ petition, it is apparent that no element of any public law is agitated or otherwise made out. In other words, the action challenged has no public element and writ of

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mandamus cannot be issued as the action was essentially of a private character.

(Emphasis Supplied)

76. In view of the aforesaid discussion, we hold that the learned Single Judge [Rajendra Prasad Bhargava v. Union of India, 2017 SCC OnLine MP 2337] of the High Court was justified in taking the view that the original writ application filed by Respondent 1 herein under Article 226 of the Constitution is not maintainable. The appeal court could be said to have committed an error in taking a contrary view."

23. If the facts of the case on hand are examined, bearing in

mind the aforesaid principles, it is clear that the claim of the

petitioners as regards their alleged rights over land bearing

Sy.No.193/4 and alleged forgery of lease agreement dated

21.11.2011 by respondents 3 to 5 cannot be said to contain any

element of any public law, which is neither agitated or otherwise

made out especially when the said allegation of forgery, fraud,

collusion etc., cannot be used to invoking the jurisdiction of this

Court against a private unaided educational institutions and on this

ground also, the present petition is liable to be dismissed.

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24. As rightly contended by the learned Senior counsel for

respondents 3 to 5, even according to the petitioners themselves,

the lease agreement dated 21.11.2011 was produced for the

purpose of obtaining affiliation in the year 2016 which has

continued from that time onwards and renewed continuously from

year to year; no explanation whatsoever is offered by the

petitioners as regards belated filing of complaint dated 09.01.2024

in relation to an alleged forged lease agreement dated 21.11.2011

and at any rate from 2016 onwards when affiliation was granted

and consequently, the unexplained delay and latches on the part of

the petitioners to put forth a claim against an alleged forged lease

agreement is yet another circumstance to decline to grant any

indulgence in favour of the petitioners in the present petition.

25. The undisputed material on record will clearly indicate

that the present petition is preceded by several civil and criminal

litigations, disputes, arbitration proceedings etc., between the

petitioners and the respondents; the present petition is clearly yet

another attempt by the petitioners to put forth a claim against the

respondents 3 to 5 in relation to Harsha Institute of Physiotherapy

over which, undisputedly the petitioners do not have any claim or

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right whatsoever and the same is being run by 3rd respondent -

Trust. Under these circumstances also, there is no merit in the

various allegations put forth by the petitioners in the present

petition which is liable to be dismissed.

26. Insofar as the various judgments relied upon by the

petitioners are concerned, in view of the findings recorded by me

hereinbefore, the said judgments rendered in the facts and

circumstances of the said cases would not be applicable to the

case on hand and as such, the same are not elaborately dealt with

for the purpose of the present order.

27. In view of the foregoing discussion, I do not find any

merit in the petition and the same is hereby dismissed.

Sd/-

(S.R.KRISHNA KUMAR) JUDGE

Srl.