Sri. Karibasavaraj Badami vs The Deputy Registrar Of Societies

-1- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

HC-KAR ® IN THE HIGH COURT OF KARNATAKA,AT DHARWAD

DATED THIS THE 27TH DAY OF JANUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

WRIT PETITION NO. 103179 OF 2025 (CS-RES)

BETWEEN

1 . SRI. KARIBASAVARAJ BADAMI S/O. LATE SHIVAYOGAPPA BADAMI, AGED ABOUT 49 YEARS, OCC. AGRICULTURE AND BUSINESS, MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY, R/O. HAGARIBOMMANAHALLI, VIJAYANAGAR DISTRICT-583212

2 . SRI. DARUR SHANTANAGOUDA S/O. MALLIKARJUNGOUDA, AGED ABOUT 57 YEARS, OCC. AGRICULTURE, MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY, Digitally signed R/O. WARD 18, S. N. PETE, by SHWETHA NEAR MMTC KACHERI, RAGHAVENDRA BALLARI, BALLARI DISTRICT-583212 Location: HIGH COURT OF ...PETITIONERS KARNATAKA (BY PROF. RAVI VARMA KUMAR., SR. ADVOCATE FOR SRI. DESAI SUNIL SHANTAPPA., ADVOCATE)

AND

1. THE DEPUTY REGISTRAR OF SOCIETIES BALLARI DIVISION, BALLARI, JANATA BAZAR BUILDING, BALLARI, DIST. BALLARI-583103 2. THE VEERASHAIVA VIDYA VARDHAKA SANGHA, -2- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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GANDHINAGAR, BALLARI, DIST. BALLARI-583103 REP. BY ITS SECRETARY 3. SRI. KALGUDI MANJUNATH, AGE. MAJOR, OCC. MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY AND AGRICULTURE, R/O. KAMPLI, DIST. BALLARI-583132 4. SRI. GUDEKOTE NAGARAJ, AGE. MAJOR, OCC. MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY AND AGRICULTURE, R/O. SANDUR, DIST. BALLARI-583119 5. SRI. K. KOTRESH, AGE. MAJOR, OCC. MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY AND AGRICULTURE, R/O. HOSAPETE, DIST. VIJAYANAGARA-583201 6. SRI. S. SATISH BABU, AGE. MAJOR, OCC. MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY AND AGRICULTURE, R/O. BASAVESHWAR NAGAR, DIST. BALLARI-583101 7. SRI. MUNDASAD CHANNABASAVARAJ, AGE. MAJOR, OCC. MEMBER OF MANAGING COMMITTEE OF THE 2ND RESPONDENT SOCIETY AND AGRICULTURE, R/O. KAKKAL ROAD, GANDHI NAGAR, BALLARI, DIST. BALLARI-583101 .... RESPONDENTS

(BY SRI. JAYAKUMAR S. PATIL., ADVOCATE FOR SRI. SRINIVAS B. NAIK., ADVOCATE FOR C/R2; SRI. K.L. PATIL., ADVOCATE FOR R3, R5 TO R7; -3- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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SRI. A.S. PATIL., ADVOCATE FOR R4 )

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE ANY WRIT, ORDER, OR DIRECTIONS IN THE NATURE OF CERTIORARI TO SET ASIDE THE PROCEEDINGS OF THE MANAGING COMMITTEE NO.17 DATED 10.04.2025 (VIDE ANNEXURE-A) CONSEQUENTLY DECLARE ALL FURTHER PROCEEDINGS ARE ILLEGAL AND NOT BINDING ON THE PETITIONERS. AND ETC.

THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 25.10.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

CAV ORDER (PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. Petitioners are before this court seeking for the

following reliefs:

A. ISSUE any Writ, Order, or directions in the nature of Certiorari to set aside the proceedings of the Managing Committee No.17 dated 10.04.2025 (vide Annexure-A) consequently declare all further proceedings are illegal and not binding on the Petitioners;

AA. ISSUE any Writ, Order, or directions in the nature of Certiorari to set aside the proceedings of the Managing Committee No: 18 dated 14.04.2025, bearing No. WAS/Turtu.Ka.Ka.Sa: Sabhe/18/2024 (vide Annexure-H) consequential intimation letter dated 14.04.2025, VVAS/Aa.Mam.A./2025-26/49/1 bearing No. vide ANNEXURE-J intimation letter dated 14.04.2025, bearing No. WAS/Aa.Mam.A./2025-26/49/9 vide ANNEXURE-J1; Intimation letter dated 14 04.2025, bearing VVAS/Aa.Mam.A./2025- 26/49/3 No. vide ANNEXURE-J2; intimation letter dated -4- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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14.04.2025, bearing No. VVAS/Aa.Mam.A./2025-26/49/10 vide ANNEXURE-J3; and intimation letter dated 14.04.2025, bearing VVAS/Aa.Mam.A./2025-26/49/8 No. vide ANNEXURE- 14; declare all further proceedings are Illegal and not binding on the Petitioners;

B. Grant any other reliefs as deemed fit by this Hon'ble Court in the facts and circumstances of the case including awarding of the cost, in the interest of justice and equity.

2. Respondent No.2 is stated to be established in the

year 1918 and has been running educational

institutions to provide education in backward areas of

the earlier Bellary District and has established

different educational institutions. Nearly 50% of the

institutions are either affiliated with or come under the

grant provided by the Government of Karnataka, and

on that basis, it is contended that the Respondent

No.2-Society is a public institution and must be

construed as a State for all practical purposes.

3. The administration of Society being under the control

and supervision of the general body, all members of

Society being the members of the general body, there

are disputes which have arisen as regards the -5- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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elections to Respondent No.2-Society held on

17.03.2024 and the subsequent proceedings taken up

by the elected Managing Committee, the Managing

Committee held a meeting on 14.04.2024 and elected

the President of the Governing Bodies of Subordinate

Institutions, through the process of election.

4. The election to the Governing Bodies was held on

14.04.2024, where the petitioner No.1 was elected as

the president of the governing body of certain

subordinate institution of respondent No.2. Petitioner

No.1, upon assuming the office of the president,

alleges that he has made efforts for the improvement

of the Institution under his chairmanship. When the

said institutions were in the process of development,

certain vested interests in the institutions wield ill will

against the Petitioners since the petitioners did not

yield to the alleged illegal demands and anti-social

elements. -6- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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5. The president had submitted his resignation to the

post of the Respondent No. 2 institution, and one

other person had been elected on 1.03.2025.

6. The Petitioners alleged that they have a political

difference with the new president. The secretary of the

Respondent Society had called a meeting of the

Managing Committee on 5.04.2025. Notice of the

meeting having been issued on 29.03.2025, the

meeting was adjourned on 4.04.2025 and rescheduled

on 10.04.2025. In the adjourned meeting, though

there was no subject pertaining to no confidence

motion or removal of the petitioners from the post of

president, without there being any subject and without

there being any intimation to the Petitioners or the

members or requisition being there by the members,

the President had taken up the subject arbitrarily and

mentioned that 22 members had requested for no-

confidence motion against the petitioners and that the

petitioners were removed by way of a no-confidence -7- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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motion without holding any motion or conducting

election. Thereafter, Respondents No.3 to 7 were

appointed to the governing bodies of the institutions

on the basis of an alleged resolution dated

14.04.2025. It is in that background that the

petitioners are before this court seeking the aforesaid

reliefs.

7. A preliminary objection was raised as regards the

maintainability of the writ petition since reliefs have

been sought against Respondent No. 2, which is a

Society registered under the Societies Registration Act

and Respondent No.3 to 7 are private individuals.

Though the Deputy Registrar of Society has been

made as a party, there is no relief which has been

sought for against the first respondent. All the reliefs

have been sought for as regards the actions of the

managing committee of Respondent No.2 and or

Respondents No.3 to 7. There being no relief sought -8- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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against the official respondent, a writ petition is not

maintainable against a private party.

8. Prof.Ravi Verma Kumar, learned Senior Counsel,

appearing for the petitioners, submits that,

8.1. The petition is maintainable against the private

Society and its members since Respondent No.2

discharges public function of providing education

in the rural areas of the State of Karnataka.

8.2. His submission is that when any institution,

though private, is rendering public duties and

discharging public functions, it would be

amenable to writ jurisdiction. The respondent

No.2-Society being registered under the

Societies Registration Act, and the educational

institutions run by respondent No.2 being

registered under the Karnataka Education Act,

are governed by the Societies Registration Act

and the institutions are governed by the -9- NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Karnataka Education Act, since respondent No.2-

Society and the educational institution render

public duty and render public service.

8.3. His submission is that the management and

operations of the Society, being an integral part

of the running of the Society, any disputes as

regards the management of a Society which

renders public service could also be amenable to

Article 226 of the Constitution.

8.4. His submission is that even if there are any

alternative remedies which are available, the

petitioners can exercise their rights and seek for

reliefs under Article 226 of the Constitution and

the existence of any other remedy cannot be a

bar for consideration of the claim of petitioners.

8.5. In support of the above, he relies on the decision

in Shri Chandrakant vs. Karnataka State Bar

Council, more particularly paras 13 to 41 - 10 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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thereof, which are reproduced hereunder for

easy reference:

13. The point that falls for determination for the disposal of the appeal is:

"1. Whether a writ petition under Article 226 is maintainable against a private entity?

2. Whether the Bar Association is amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India?"

14. Both the points are taken up together for consideration and determination as common facts and points of law are involved.

15. The points for consideration formulated above are no more res integra as the Hon'ble Apex Court has in a catena of rulings consistently held that the central theme that requires to be looked into and ascertained is, as to whether the entity would answer the definition of "other authority" within the meaning of Article 12 and the term "any person or authority" under Article 226 of the Constitution of India and thereby render it amenable to writ jurisdiction i.e., whether the said authority performs a public duty or discharges an obligation of a public character or the impugned order/proceeding is an affront to the rule of law. In our considered opinion, the answer to the above points for consideration is not far to seek. The Hon'ble Apex Court in the case of Supreme Court Bar Association and others vs. B.D.Kaushik reported in (2011) 13 SCC 774 has succinctly enunciated the concept, character and the role of the Bar Association and its unique position vis a vis other entities registered under the Societies Registration Act. The discussion on the subject as contained in para 27 to 29 are as under:

"27. The Supreme Court Bar Association, as the name suggests, is a society primarily meant to promote the welfare of the advocates generally practicing in the Supreme Court. The name, i.e., the Supreme Court Bar Association was formally registered under the Societies Registration Act, 1860 only on 25.08.1999. One of the prime objectives of the SCBA is to establish and maintain adequate library for the use of the members and to provide other facilities and convenience of the members. - 11 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Thus, the formation of the SCBA is in the nature of aid to the Advocates Act, 1961 and other relevant statutes including Article 145 of the Constitution.

28. There is no manner of doubt that court annexed Bar Associations constitute a separate class different from other lawyers' associations such as Lawyers' Forum, All India Advocates' Association, etc. as they are always recognized by the court concerned. Court annexed Bar Associations function as part of the machinery for administration of justice. As is said often, the Bench and Bar are like two wheels of a chariot and one cannot function without the other. The court annexed Bar Associations start with the name of the court as part of the name of the Bar Association concerned. That is why we have the Supreme Court Bar Association, Tis Hazari District Court Bar Association, etc. The very nature of such a Bar Association necessarily means and implies that it is an association representing members regularly practicing in the court and responsible for proper conduct of its members in the court and for ensuring proper assistance to the court. In consideration thereof, the court provides space for office of the association, library and all necessary facilities like chambers at concessional rates for members regularly practicing in the court, parking place, canteen besides several other amenities. In the functions organized by the court annexed Bar Associations the Judges participate and exchange views and ascertain the problems, if any, to solve them and vice-versa. There is thus regular interaction between the members of the Bar Association and the Judges. The regular practitioners are treated as officers of the court and are shown due consideration.

29. Enrolment of advocates not practicing regularly in the court is inconsistent with the main aim and object of the association. No court can provide chambers or other facilities for such outside advocates, who are not regular practitioners. Neither the Association nor the court can deal with them effectively if they commit any wrong. There are sufficient indications in the Memorandum of Association and the Rules and Regulations of SCBA, which indicate that the Association mainly tries to promote and protect the privileges, interest and prestige of the Association and to promote union and cooperation among the advocates practicing in the court and other associations of advocates. This is quite evident if one refers to sub- clause (iii) of clause (3) of the Aims and Objectives of the Association. It is significant to note that - 12 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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the signatories of the Memorandum of Association, namely, Members of the Executive Committee, whose names are mentioned, are all regular practitioners, who got the Association registered under the Societies Registration Act, 1860. Mr. P.P. Rao, learned Senior Counsel has given all credit for registration of Association to Shri K.K. Venugopal, one of the senior-most counsel of this Court."

(emphasis by this Court)

16. Notwithstanding the categorical and unimpeached finding rendered by the Hon'ble Apex Court, this Court endeavours to trace the observations of the Hon'ble Apex Court in cases involving private entities discharging duties with public character and where the Hon'ble Apex Court has been pleased to hold that writ petition would be maintainable against such a private entity.

17. One of the earliest in the line of such cases is the ruling rendered by the Hon'ble Apex Court in the case of Dwarka Nath, vs. Income Tax Officer, Special Circle, D Ward, Kanpur and another reported in AIR 1966 SC 81, while dealing with the objection regarding the maintainability of a writ petition against an administrative order of the Commissioner of Income Tax was pleased to hold in paragraph 4 as under:

"4. We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Article 226 of the Constitution reads :

"... every High Court shall have power, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the high court to reach injustice wherever it is found. The constitution designedly used a wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the - 13 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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expression "nature", for the said expression does not equate the writs that can be issued in India with the those in England, but only draws in analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T. C. Basappa v. Nagappa, 1955 -1 SCR 250: and Irani v. State of Madras (AIR 1961 SC 1731).

(emphasis by this Court)

18. The Hon'ble Apex Court in Andi Mukta Sadguru Shree Mukta Jeevandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others reported in (1989) 2 SCC 691, while dealing with the issue of writ against a private body was pleased to observe and hold in paragraphs 14, 15, 16, 17, 20 and 22 as under:

14. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued in service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus?

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. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-- - 14 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See--The Evolving Indian Administration Law by M.P. Jain [1983] p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has superadded protection by University decisions creating a legal right- duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.

16. The Law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and omission with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Commission Report No.73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of to Supreme Court Act, 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this "judicial review":

At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross- examination, no discovery, and so forth. But there were - 15 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge.

The Statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are--and who are not--public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See--The Closing Chapter--by Rt. Hon Lord Denning p.122).

17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The 'public authority' for them mean every body which is created by statute--and whose powers and duties are defined by statue. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".

20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is - 16 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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imposed. If a positive obligation exists mandamus cannot be denied.

22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute of this law, Professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative 'Act 4th Ed. p. 540). We share this view. The judicial control over the fast expanding maze of bodies effecting the rights of the people should not be put into water- tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."

(emphasis by this Court)

8.6. By relying on Chandrakant's case, he submits

that a Bar Association is held to be amenable to

writ jurisdiction under Article 226 of the

Constitution. This Court has categorically come

to the conclusion that a prerogative writ of

mandamus can be issued to any public authority,

which would mean any authority performing

public functions. Right to association being a

fundamental right, the same could be agitated - 17 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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before this Court. His submission is that the

term any person or authority used under Article

226 is not confined to statutory authorities and

instrumentalities of the State, but would cover

any other person or body performing public duty

and that the duty of such person or authority is

to be judged in the light of positive obligation

owed by the person or authority to the affected

party.

8.7. He relies on the decision in Mrs. Revathi vs.

Central Board of Secondary Education, more

particularly paras 17, 22 & 37 thereof, which are

reproduced hereunder for easy reference:

17. Per contra, Lieutenant Colonel Ganesh, learned counsel for the respondents 4 & 5 contended that Writ Petition is not maintainable as against the 5th respondent which is a private educational institution as no grant whatsoever provided by the Government and it is further contended by him that State Government has no role whatsoever in controlling the school run by the Army Welfare Education Society (AWES). The Teachers and Staff members have been appointed as per the bye-laws of the AWES. - 18 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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22. The point that primarily arises for consideration in the writ petitions is whether the writ is maintainable as against the respondents 4 & 5.

37. When the issue with regard to maintainability of writ petition against the Army Public School has reached its finality and the SLPs filed by the Army Public School came to be dismissed and the judgements of the High Court of Uttarakhand at Nainital and High Court of Delhi have been confirmed by the Supreme Court by dismissing the SLPs filed by the Army Public School, WEB the respondents 4 & 5 cannot say that the school run by them is a private unaided school and as such writ is not maintainable against them. In Dr.Janet Jevapaul v. SRM University and others also the Supreme Court has held that imparting education is a public duty and as such writ petition is very well maintainable. Therefore, the contention of the respondents 4 & 5 in this regard is non-suited.

8.8. By relying on Revathi's case, his submission is

that any school run by the Army Welfare

Education Society would be amenable to writ

jurisdiction since imparting education is a public

duty.

8.9. He relies on the decision in Orissa

Administrative Tribunal Bar Assn. v. Union of

India1, more particularly paras 36-39 thereof,

1 (2023) 18 SCC 1 - 19 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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which are reproduced hereunder for easy

reference:

36. The appellants are OAT Bar Association, Cuttack and the Odisha Retired Police Officers' Welfare Association. Both associations are registered under the Societies Registration Act, 1860. Section 6 of the Societies Registration Act, 1860 authorises registered societies to sue and be sued. Both the appellants are therefore organisations which are entitled to approach the High Court under Article 226 of the Constitution.

37. Both the appellants have also alleged that an existing legal right of theirs was violated. As held by this Court in Ghulam Qadir v. Special Tribunal [Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33] , the existence of a legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under Article 226 : (SCC p. 54, para 38)

"38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his not having the locus - 20 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."

(emphasis supplied)

38. In State of Orissa v. Ram Chandra Dev [State of Orissa v. Ram Chandra Dev, 1963 SCC OnLine SC 179 : AIR 1964 SC 685] , a Constitution Bench of this Court held that the existence of a right is the foundation of a petition under Article 226 : (SCC OnLine SC para 8)

"8. ... Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226."

(emphasis supplied)

39. In this case, the Odisha Retired Police Officers' Welfare Association alleged that its right to speedy redressal of grievances (a facet of the fundamental right of access to justice) was violated. OAT Bar Association joined the Odisha Retired Police Officers' Welfare Association in alleging that the State's action of abolishing OAT violated its right under Article 14 of the Constitution. Having alleged that these rights were violated by the abolition of OAT, they were entitled to invoke the High Court's jurisdiction under Article 226 of the Constitution. Whether there is substance in the grievance is a separate matter which has to be analysed. - 21 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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8.10. By relying on Orissa Administrative Tribunal

Bar Association's case, he submits that so long

as there is any legal right which has been

violated, this Court could exercise powers under

Article 226 of the Constitution.

8.11. He relies on the decision in Union of India v.

Tantia Construction (P) Ltd2., more

particularly paras 33 and 24 thereof, which are

reproduced hereunder for easy reference:

33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.

34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration

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clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits.

8.12. By relying on Tantia Construction's case, his

submission is that an alternative remedy is not

an absolute bar to the invocation of a writ

jurisdiction. This Court in appropriate cases,

exercises the writ jurisdiction to remedy any

injury caused to a litigant.

8.13. He relies on the decision in Ramesh Ahluwalia

v. State of Punjab3 , more particularly paras 11

to 14 thereof, which are reproduced hereunder

for easy reference:

11. On the other hand, Mr S.S. Ray, learned counsel appearing on behalf of Respondents 2 to 4 submitted that no writ petition would be maintainable against the respondent institution. In support of his submission, the learned counsel has placed reliance on Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(2002) 5 SCC 111 : 2002 SCC (L&S) 633] particularly making reference to para 40 of the aforesaid judgment. Para 40

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of the aforesaid judgment is extracted hereunder: (SCC p. 134)

"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be--whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."

12. We have considered the submissions made by the learned counsel for the parties. In our opinion, in view of the judgment rendered by this Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust [(1989) 2 SCC 691] there can be no doubt that even a purely private body, where the State has no control over its internal affairs, would be amenable to the jurisdiction of the High Court under Article 226 of the Constitution, for issuance of a writ of mandamus. Provided, of course, the private body is performing public functions which are normally expected to be performed by the State authorities.

13. In the aforesaid case, this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under: (V.R. Rudani case [(1989) 2 SCC 691] , SCC pp. 700-701, paras 20 & 22)

"20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. - 24 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

***

22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.' [ S.A. de Smith, Judicial Review of Administrative Action (4th Edn., Stevens & Sons Ltd., London 1980) at p. 540] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."

The aforesaid observations have been repeated and reiterated in numerous judgments of this Court including the judgments in Unni Krishnan [(1993) 1 SCC 645] and Zee Telefilms Ltd. [(2005) 4 SCC 649] brought to our notice by the learned counsel for the appellant, Mr Parikh. - 25 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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14. In view of the law laid down in the aforementioned judgments of this Court, the judgment of the learned Single Judge [Ramesh Ahluwalia v. State of Punjab, WP (C) No. 11691 of 2009, decided on 5-8-2009 (P&H)] as also the Division Bench [Ramesh Ahluwalia v. State of Punjab, LPA No. 368 of 2010, order dated 25-10-2010 (P&H)] of the High Court cannot be sustained on the proposition that the writ petition would not be maintainable merely because the respondent institution is a purely unaided private educational institution. The appellant had specifically taken the plea that the respondents perform public functions i.e. providing education to children in their institutions throughout India.

8.14. By relying on Ramesh Ahluwalia's case, his

submission is that even a private body where the

State has no control over its internal affairs

would be amenable to the jurisdiction of the High

Court. The form of the body concerned is not

relevant. What is relevant is the nature of the

duty imposed on the body. Even if the private

educational institution is an unaided body, it

would be amenable to writ jurisdiction. - 26 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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8.15. He relies on the decision in Janet Jeyapaul v.

SRM University4 , more particularly paras 16 to

31 thereof, which are reproduced hereunder for

easy reference:

16. Pointing out from various well-known English commentaries such as de Smith's Judicial Review, 7th Edn.; H.W.R. Wade and C.F. Forsyth's Administrative Law, 10th Edn.; Michael J. Beloff in his article "Pitch, Pool, Rink,......Court?: Judicial Review in the Sporting World", 1989 Public Law 95; English decisions in Breen v. Amalgamated Engg. Union [Breen v. Amalgamated Engg. Union, (1971) 2 QB 175 : (1971) 2 WLR 742 : (1971) 1 All ER 1148 (CA)] ; Reg. v. Panel on Take- overs and Mergers, ex p Datafin Plc. [Reg. v. Panel on Take-overs and Mergers, ex p Datafin Plc., 1987 QB 815 : (1987) 2 WLR 699 : (1987) 1 All ER 564 (CA)] ; Evans v. Newton [Evans v. Newton, 1966 SCC OnLine US SC 1 : 15 L Ed 2d 373 : 382 US 296 (1966)] ; and of this Court in 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] and Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] , Mr Harish Salve submitted that perusal of these authorities/decisions would go to show that there has been a consistent view of all the learned authors and the courts all over the world including in India that the approach of the Court while deciding such issue is always to test as to whether the body concerned is formed for discharging any "public function" or "public duty" and if so, whether it is actually engaged in any public function or/and performing any such duty.

17. According to the learned counsel, if the aforesaid twin test is found present in any case then such

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person/body/organisation/authority, as the case may be, would be subjected to writ jurisdiction of the High Court under Article 226 of the Constitution.

18. The learned Senior Counsel elaborated his submission by pointing out that the expression "any person or authority" used in Article 226 is not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing "public function/duty". The learned counsel urged that emphasis is, therefore, always on activity undertaken and the nature of the duty imposed on such authority to perform and not the form of such authority. According to Mr Harish Salve, once it is proved that the activity undertaken by the authority has a public element then regardless of the form of such authority it would be subjected to the rigor of writ jurisdiction of Article 226 of the Constitution.

19. The learned counsel then urged that in the light of several decisions of this Court, one cannot now perhaps dispute that "imparting education to students at large" is a "public function" and, therefore, if any body or authority, as the case may be, is found to have been engaged in the activity of imparting education to the students at large then irrespective of the status of any such authority, it should be made amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

20. The learned counsel further pointed out that the case in hand clearly shows that Respondent 1, a juristic body, is engaged in imparting education in higher studies and what is more significant is that Respondent 1 is conferred with a status of a "Deemed University" by the Central Government under Section 3 of the UGC Act. These two factors, according to Mr Harish Salve, would make Respondent 1 amenable to writ jurisdiction of the High Court under Article 226 because it satisfies the twin test laid down for attracting the rigor of writ jurisdiction of the High Court.

21. In reply, Mr Sanjay R. Hegde, learned Senior Counsel for Respondent 1 while supporting the - 28 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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impugned order [S.R.M. University v. Janet Jeyapaul, 2013 SCC OnLine Mad 3887] contended that if this Court holds that Respondent 1 is amenable to writ jurisdiction then apart from employees even those who are otherwise dealing with Respondent 1 would start invoking writ jurisdiction which, according to the learned counsel, would open the floodgate of litigation in courts.

22. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by Mr Harish Salve.

23. To examine the question urged, it is apposite to take note of what De Smith, a well-known treatise, on the subject "Judicial Review" has said on this question [See de Smith's Judicial Review, 7th Edn., p. 127 (3- 027) and p. 135 (3-038)].

"amenability test based on the source of power

The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision-maker. In identifying the 'classes of case in which judicial review is available', the courts place considerable importance on the source of legal authority exercised by the defendant public authority. Secondly and additionally, where the 'source of power' approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non- statutory bodies (such as self-regulatory organisations). We begin by looking at the first approach, based on the source of power."

"judicial review of public functions

The previous section considered susceptibility to judicial review based on the source of the power: statute or prerogative. The courts came to recognise that an approach based solely on the source of the public authority's power was too restrictive. Since 1987 - 29 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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they have developed an additional approach to determining susceptibility based on by the type of function performed by the decision-maker. The 'public function' approach is, since 2000, reflected in the Civil Procedure Rules: Rule 54.1(2)(a)(ii), defines a claim for judicial review as a claim to the lawfulness of 'a decision, action or failure to act in relation to the exercise of a public function'. (Similar terminology is used in the Human Rights Act, 1998 Section 6(3)(b) to define a public authority as 'any person certain of whose functions are functions of a public nature', but detailed consideration of that provision is postponed until later). As we noted at the outset, the term 'public' is usually a synonym for 'governmental'."

(emphasis supplied)

24. The English Courts applied the aforesaid test in Reg. v. Panel on Take-overs and Mergers, ex p Datafin Plc. [Reg. v. Panel on Take-overs and Mergers, ex p Datafin Plc., 1987 QB 815 : (1987) 2 WLR 699 : (1987) 1 All ER 564 (CA)] , wherein Sir John Donaldson, MR speaking for three-Judge Bench of Court of Appeal (Civil Division), after examining the various case laws on the subject, held as under: (All ER p. 564g-h)

"In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decisions."

25. In Andi Mukta case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , the question before this Court arose as to whether mandamus can be issued at the instance of an employee (teacher) against a Trust registered under the Bombay Public Trusts Act, 1950 which was running an educational institution (college). The main legal objection of the Trust while opposing the writ petition - 30 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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of their employee was that since the Trust is not a statutory body and hence it cannot be subjected to the writ jurisdiction of the High Court. The High Court accepted the writ petition and issued mandamus directing the Trust to make payments towards the employee's claims of salary, provident fund and other dues. The Trust (Management) appealed to this Court.

26. This Court examined the legal issue in detail. K. Jagannatha Shetty, J. speaking for the Bench agreed with the view taken by the High Court and held as under: (Andi Mukta case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , SCC pp. 696-98 & 700, paras 11-12, 15 & 20)

"11. Two questions, however, remain for consideration: (i) the liability of the appellants to pay compensation under Ordinance 120-E and (ii) the maintainability of the writ petition for mandamus as against the management of the college. ...

12. The essence of the attack on the maintainability of the writ petition under Article 226 may now be examined. It is argued that the management of the college being a trust registered under the Bombay Public Trusts Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Vaish Degree College v. Lakshmi Narain [Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58 : 1976 SCC (L&S) 176] and (b) Dipak Kumar Biswas v. Director of Public Instruction [Dipak Kumar Biswas v. Director of Public Instruction, (1987) 2 SCC 252 : (1987) 3 ATC 505] . In the first of the two cases, the respondent institution was a Degree College managed by a registered cooperative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Cooperative Societies Act and affiliated to Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies - 31 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non-statutory body.

***

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. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. [ See M.P. Jain, The Evolving Indian Administrative Law (1983) 226] So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right- duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.

*** - 32 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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20. The term 'authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists, mandamus cannot be denied."

27. This issue was again examined in great detail by the Constitution Bench in Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] wherein the question which fell for consideration was whether the Board of Control for Cricket in India (in short "BCCI") falls within the definition of "State" under Article 12 of the Constitution. This Court approved the ratio laid down in Andi Mukta case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] but on facts of the case held, by majority, that BCCI does not fall within the purview of the term "State". This Court, however, laid down the principle of law in paras 31 and 33 as under: (Zee Telefilms Ltd. case [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] , SCC p. 682)

"31. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not - 33 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32.

***

33. Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226."

28. It is clear from a reading of the ratio decidendi of the judgment in Zee Telefilms Ltd. [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] that firstly, it is held therein that BCCI discharges public duties and secondly, an aggrieved party can, for this reason, seek a public law remedy against BCCI under Article 226 of the Constitution of India.

29. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High Court erred in holding that Respondent 1 is not subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other words, it should have been held that Respondent 1 is subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution.

30. This we say for the reasons that firstly, Respondent 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to Respondent 1, which inter alia provides for effective discharge of the public function, namely, education for the benefit of the public. Fifthly, once Respondent 1 is declared as "Deemed University" whose all functions and activities - 34 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

31. In the light of the foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding we hold that the appellant's writ petition under Article 226 of the Constitution against Respondent 1 is maintainable.

8.16. By relying on Janet Jeyapaul's case, his

submission is that the approach of the Court

while deciding whether it should exercise

jurisdiction or not is to test as to whether the

body concerned is formed for discharging any

public function or public duty and if it is actually

engaged in such public function and or

performing any such public duty, then this Court

would have to exercise under Article 226 of the

Constitution.

8.17. He relies on the decision in Unitech Ltd. v.

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Corpn., more particularly paras 38, 39 thereof,

which are reproduced hereunder for easy

reference:

38. Much of the ground which was sought to be canvassed in the course of the pleadings is now subsumed in the submissions which have been urged before this Court on behalf of the State of Telangana and Tsiic. As we have noted earlier, during the course of the hearing, the learned Senior Counsel appearing on behalf of the State of Telangana and Tsiic informed the Court that the entitlement of Unitech to seek a refund is not questioned nor is the availability of the land for carrying out the project being placed in issue. The learned Senior Counsel also did not agitate the ground that a remedy for the recovery of moneys arising out a contractual matter cannot be availed of under Article 226 of the Constitution. However, to clear the ground, it is necessary to postulate that recourse to the jurisdiction under Article 226 of the Constitution is not excluded altogether in a contractual matter. A public law remedy is available for enforcing legal rights subject to well-settled parameters.

39. A two-Judge Bench of this Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] [ABL International] analysed a long line of precedent of this Court [K.N. Guruswamy v. State of Mysore, (1954) 2 SCC 125 : AIR 1954 SC 592; Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd., (1983) 3 SCC 379; Gunwant Kaur v. Municipal Committee, Bhatinda, (1969) 3 SCC 769] to conclude that writs under Article 226 are maintainable for asserting contractual rights against the State, or its instrumentalities, as defined under Article 12 of the Indian Constitution.

39.1. Speaking through N. Santosh Hegde, J. the Court held : (ABL International case [ABL International Ltd. v. - 36 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] , SCC p. 572, para 27) "27. ... the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable." This exposition has been followed by this Court, and has been adopted by the three-Judge Bench decisions of this Court in State of U.P. v. Sudhir Kumar Singh [State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 : 2020 SCC OnLine SC 847] and Popatrao Vyankatrao Patil v. State of Maharashtra [Popatrao Vyankatrao Patil v. State of Maharashtra, (2020) 19 SCC 241] .

39.2. The decision in ABL International, cautions that the plenary power under Article 226 must be used with circumspection when other remedies have been provided by the contract. But as a statement of principle, the jurisdiction under Article 226 is not excluded in contractual matters.

39.3. Article 23.1 of the development agreement in the present case mandates the parties to resolve their disputes through an arbitration. However, the presence of an arbitration clause within a contract between a State instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226 [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; Ram Barai Singh & Co. v. State of Bihar, (2015) 13 SCC 592 : (2016) 1 SCC (Civ) 770] . 39.4. If the State instrumentality violates its constitutional mandate under Article 14 to act fairly and reasonably, relief under the plenary powers of Article 226 of the Constitution would lie. This principle was recognised in ABL International [ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] : (ABL International case [ABL International - 37 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] , SCC p. 572, para 28) "28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] .) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction." (emphasis supplied)

39.5. Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of State power or a misuse of authority.

39.6. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does (sic not) oust the - 38 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked.

39.7. The jurisdiction under Article 226 was rightly invoked by the Single Judge and the Division Bench of the Andhra Pradesh High Court in this case, when the foundational representation of the contract has failed. Tsiic, a State instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the refund of its principal.

8.18. By relying on Unitech Ltd.,'s case, his

submission is that even when there are disputed

questions of fact, this Court could exercise

jurisdiction when the rights of a citizen are

infringed upon.

8.19. He relies on the decision in Umri Pooph

Pratappur Tollways Pvt. Ltd., vs. M.P. Road

Development Corporation and Another5,

more particularly paras 4, 4.1, 8, 8.1 to 8.4

thereof, which are reproduced hereunder for

easy reference:

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4. The learned Senior Counsel for the appellant submitted that the writ petition filed by Respondent No. 1 before the High Court was not maintainable as the appellant is a private company and does not function as an instrumentality of the State. Reliance was placed on the judgment of this Court in S.Shobha v. Muthoot Finance Ltd4, wherein it was held that a writ petition is maintainable only against a body that qualifies as 'State' under Article 12 of the Constitution. Therefore, the High Court erred in entertaining the writ petition and passing the impugned order against the appellant.

4.1. Reference was also made to the decisions of this Court in Jagmittar Sain Bhagat v. Director, Health Services, Haryana and others5 and Kanwar Singh Saini v. High Court of Delhi6, to submit that the issue of maintainability of a writ petition can be raised at any stage of the proceedings, and must be determined at the threshold.

8. At the outset, the learned Senior Counsel for the appellant submitted that the writ petition filed by Respondent No.1 was not maintainable against the appellant as it was directed against a private party. It is well settled that the remedy under Article 226 of the Constitution is not confined to individuals seeking enforcement of fundamental rights. Even juristic persons, including State Corporations, are entitled to invoke the writ jurisdiction for enforcement of legal rights.

However, when a State Corporation seeks relief against a private party, the maintainability of the writ petition must satisfy certain threshold requirements, namely, that the dispute involves a public law element rather than being confined to the realm of private contractual obligations, and that the private party is performing a public duty or is subject to a statutory obligation in relation to the State entity.

8.1. In the present case, Respondent No.1 is a State - owned entity and the project in question pertains to the development of Umri - Pooph - Pratappur Road under a Concession Agreement on a BOT (Toll + Annuity) basis. Although the dispute emanates from a works contract - 40 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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governed by the said agreement, the writ petition was not filed for enforcement of any contractual obligation.

Rather, it was filed to challenge the invocation of arbitration by the appellant under the Arbitration and Conciliation Act, 1996, despite the existence of a statutory remedy before the Madhya Pradesh Arbitration Tribunal constituted under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983. The issue, therefore, pertained to the availability and exclusivity of a statutory dispute resolution mechanism, and not merely to the adjudication of a claim on merits arising out of a private contractual dispute.

8.2. In this context, reference was made to the decision in Federal Bank Ltd. v. Sagar Thomas16, wherein, this Court provided a classification of entities against whom a writ petition may be maintainable. The following paragraph is pertinent:

"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."

8.3. This Court in Binny Ltd v. Sadasivan17, noted the distinction between public and private functions; and clarified the scope of writ jurisdiction under Article 226 in the context of private contractual disputes involving entities that may be performing public functions. The relevant paragraphs are extracted below for ready reference:

"11. It is difficult to draw a line between public functions and private functions when they are 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 - 41 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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."

"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, especially 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 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. According to Halsbury's Laws of England, 3rd Edn., Vol. 30, p.682,

"1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit."

There cannot be any general definition of public authority or public action. The facts of each case decide the point."

Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body - 42 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 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."

8.4. Respondent No. 1 was incorporated on 14.07.2004 to develop, build, maintain, and operate the State Highways, District or other local body roads, expressways, and government buildings in Madhya Pradesh. Respondent No. 1 also, on contract, develops and maintains National Highways in or passing through Madhya Pradesh. The Madhya Pradesh Highways Act, 2004, repealing the 1936 Act, also reiterates the State's role in the development, construction, and maintenance of roads in the State.

Since the right to access any part of the country, with certain exceptions and restrictions under certain circumstances, is a fundamental right guaranteed under Article 19(1)(g) of the Constitution, and the right to safe, well-maintained, and motorable roads is recognised as a part of the right to life under Article 21 of the Constitution of India, it is the responsibility of the State to develop and maintain the roads directly under its control. The contract for laying of a State Highway/District Road, when assigned by the Corporation owned and run by the government, assumes the character of a public function - even if performed by a private party - and would satisfy the functionality test to sustain the writ petition.

Accordingly, in view of the statutory framework and the nature of relief sought, the writ petition involves a public law element and was thus maintainable before the High Court. The decisions relied upon by the appellant are factually distinguishable and pertain to materially different contexts. As such, they do not advance the appellant's case and have no application to the facts and legal issues involved in the present case. - 43 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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8.20. By relying on Umri Pooph Pratappur Tollways

Pvt. Ltd., case, his submission is that even if the

entity is a private company and is not an

instrumentality of the State, High Court could

exercise its jurisdiction under Article 226 of the

Constitution against such a private company

which performs public functions.

8.21. In support of the above, he relies on the decision

in Kaushal Kishor vs. State of Uttar Pradesh

and others6, more particularly paras 51, 52, 76,

77, 78, 79, 81.13, 81.14, 81.15, 81.16, 82 & 83

thereof, which are reproduced hereunder for

easy reference:

51. The second question referred to us is as to whether a fundamental right under Articles 19 or 21 can be claimed against anyone other than the State or its instrumentalities. Actually, the question is not about "claim" but about "enforceability".

52. To use the phraseology adopted by the philosophers of Law, the question on hand is as to whether Part III of the Constitution has a "vertical" or "horizontal" effect. Wherever constitutional rights regulate and impact only the conduct of the Government and Governmental

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actors, in their dealings with private individuals, they are said to have "a vertical effect". But wherever constitutional rights impact even the relations between private individuals, they are said to have "a horizontal effect".

76. Having taken an overview of the theoretical aspect of "verticality v. horizontality" and the approach of constitutional courts in other jurisdictions, let us now come back to the Indian context.

77. Part III of the Indian Constitution begins with Article 12 which defines the expression "the State" to include the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

78. After defining the expression "the State" in Article 12 and after declaring all laws inconsistent with or in derogation of the fundamental rights to be void under Article 13, Part III of the Constitution proceeds to deal with rights. There are some articles in Part III where the mandate is directly to the State and there are other articles where without injuncting the State, certain rights are recognised to be inherent, either in the citizens of the country or in persons. In fact, there are two sets of dichotomies that are apparent in the articles contained in Part III. One set of dichotomy is between : (i) what is directed against the State; and (ii) what is spelt out as inhering in every individual without reference to the State. The other dichotomy is between : (i) citizens; and (ii) persons. This can be illustrated easily in the form of a table as follows:

Sl. Provisions containing a Provisions On whom Nos. mandate to the State declaring the the right is rights of the conferred individuals without reference to "the State" 1. Article 14 mandates the - Any person State not to deny to any person equality before law or the equal protection of - 45 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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the laws within the territory of India. 2. Article 15(1) mandates - Any citizen the State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 3 Article 15(2) mandates that no Citizen citizen shall be subject to any disability, liability, restriction or condition, with regard to-- (i) access to shops, public restaurants, hotels and places of public entertainment; or (ii) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public, only on grounds of religion, race, caste, sex, place of birth or any of them. 4. Article 16(1) declares that - Only citizens there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 5. Article 16(2) states that no - Citizen citizen shall on grounds of only religion, race, caste, sex, descent, place of birth, resident or any of them be ineligible for or discriminated against in respect of any employment or office under the State. 6. Article 17 abolishes Neither the untouchability and word "citizen" - 46 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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forbids the practice nor the word of the same in any "person" is form and declares it mentioned in to be a punishable Article 17. It offence. means that what is abolished is the practice and any violation of this injunction is punishable. 7. - Six types of rights Citizens are listed in Article 19(1), as available to all citizens. 8. Article 20 confers three - Persons different rights, namely, (i) not to be convicted except by the application of a law in force at the time of the commission of offence; (ii) not to be prosecuted and punished for the same offence more than once; and (iii) right against self- incrimination. 9. - Article 21 protects Persons life and liberty of all persons. 10. Article 21-A mandates the - Children State to provide free and compulsory education to all children of the age of six to fourteen years. 11. Article 22 provides - All persons protection against arrest except an and detention generally and enemy alien saves preventive detention [Article with certain limitations. 22(3)(a) makes the provision inapplicable to an enemy alien]. 12. - Article 23(1) Any person prohibits traffic in human beings and begar and other similar forms of forced labour. Any contravention is made a punishable offence. - 47 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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13. - Article 24 prohibits Children the employment of children below the age of fourteen years in any factory or mine. 14. - Article 25(1) Persons declares the right of all persons to freedom of conscience and the right freely to profess, practice and propagate religion. 15. - Article 26 confers Religious four different types denomination of rights upon every religious denomination or any section thereof. 16. Article 27 confers right not - Person to be compelled to pay any taxes, for the promotion of any particular religion. 17. - Article 28(1) forbids Person religious instructions being provided in any educational institution wholly maintained out of State funds, with the exception of those established under any endowment or trust. 18. - A right not to take Person part in any religious instruction imparted in an educational institution recognised by the State or receiving aid out of State funds, is conferred by Article 28(3). 19. - A right to conserve Citizens the language, script or culture distinct to any part of the territory of India is conferred by Article - 48 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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29(1). 20. A right not to be denied This applies to Citizen admission into any institutions educational institution maintained by the maintained by the State or State or even to receiving aid out of State institutions funds, on grounds only of receiving aid out of religion, race, caste, State funds. language or any of them is conferred by Article 29(2). 21. (i) A right to establish and -- Religious and administer educational linguistic institutions of their choice is minorities conferred by Article 30(1) upon the religious as well as linguistic minorities.

(ii) The State is mandated under Article 30(2) not to discriminate against any educational institution while granting aid. 22. The right to move The words the Supreme Court "State", for the enforcement "citizen" or of the rights "person" are conferred by Part not mentioned III is guaranteed in Article 32, under Article 32. indicating thereby that the right is available to one and all, depending upon which right is sought to be enforced.

79. The above Table would show that some of the articles of Part III are in the form of a directive to the State, while others are not. This is an indication that some of the rights conferred by Part III are to be honoured by and also enforceable against, non-State actors.

81.13. In Indian Medical Assn. v. Union of India [Indian Medical Assn. v. Union of India, (2011) 7 SCC 179] , the policy of an Army College of Medical - 49 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Sciences to admit only those who are wards of army personnel, based on scores obtained in an entrance test, was under challenge. The question that came up for consideration was whether this discriminatory practice by a private entity would be in violation of Article 15 of the Constitution. This Court in para 187 stated : (SCC pp. 259-60)

"187. Inasmuch as education, pursuant to T.M.A. Pai [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , is an occupation under sub- clause (g) of clause (1) of Article 19, and it is a service that is offered for a fee that takes care of all the expenses of the educational institution in rendering that service, plus a reasonable surplus, and is offered to all those amongst the general public, who are otherwise qualified, then such educational institutions would also be subject to the discipline of clause (2) of Article 15. In this regard, the purport of the above exposition of clause (2) of Article 15, when read in the context of egalitarian jurisprudence inherent in Articles 14, 15, 16 and Article 38, and read with our national aspirations of establishing a society in which equality of status and opportunity, and justice, social, economic and political, would imply that the private sector which offers such facilities ought not to be conducting their affairs in a manner which promote existing discriminations and disadvantages."

(emphasis supplied)

81.14. In Society for Unaided Private Schools of Rajasthan [Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 : 4 SCEC 453] , the constitutionality of Section 12 of the Right of Children to Free and Compulsory Education Act, 2009 was challenged on the ground that it violated Articles 19(1)(g) and 30 of those who had established schools in the private sector. While upholding the constitutionality of the provision, which required all schools, private and State-funded, to reserve 25% of its intake for students from disadvantaged background, this Court held : (SCC p. 81, para 222) - 50 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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"222. The provisions referred to above and other provisions of international conventions indicate that the rights have been guaranteed to the children and those rights carry corresponding State obligations to respect, protect and fulfil the realisation of children's rights. The obligation to protect implies the horizontal right which casts an obligation on the State to see that it is not violated by non-State actors. For non-State actors to respect children's rights casts a negative duty of non- violation to protect children's rights and a positive duty on them to prevent the violation of children's rights by others, and also to fulfil children's rights and take measures for progressive improvement. In other words, in the spheres of non-State activity there shall be no violation of children's rights."

(emphasis in original and supplied)

81.15. In Jeeja Ghosh v. Union of India [Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 : (2016) 3 SCC (Civ) 551] , the petitioner, a disabled person suffering from cerebral palsy, was unceremoniously ordered off a SpiceJet aircraft by the flight crew on account of the disability. The petition was filed for putting in place a system to ensure such a violation of human dignity and inequality is not meted out to similarly placed persons. This Court observed as follows : (SCC p. 771, para 10)

"10. It is submitted by the petitioner that the Union of India (Respondent 1) has an obligation to ensure that its citizens are not subject to such arbitrary and humiliating discrimination. It is a violation of their fundamental rights, including the right to life, right to equality, right to move freely throughout the territory of India, and right to practise their profession. The State has an obligation to ensure that these rights are protected -- particularly for those who are disabled."

(emphasis supplied)

This Court awarded compensation to the petitioner against the private Airline on the ground that the airline, though a private enterprise, ought not to have violated her fundamental right. - 51 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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81.16. In Zee Telefilms Ltd. v. Union of India [Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649] , this Court held that though BCCI does not fall within the purview of the term "State", it discharges public duties and that therefore even if a remedy under Article 32 is not available, the aggrieved party can always seek a remedy before the ordinary courts of law or by way of a writ petition under Article 226. This Court pointed out that the violator of a constitutional right could not go scot-free merely because it is not a State. The said logic was extended by this Court to a "Deemed to be University" in Janet Jeyapaul v. SRM University [Janet Jeyapaul v. SRM University, (2015) 16 SCC 530 : 8 SCEC 68] , on the ground that though it is a private university, it was discharging "public functions", by imparting education.

82. All the above decisions show that on a case-to-case basis, this Court applied horizontal effect, considering the nature of the right violated and the extent of obligation on the part of the violator. But to enable the courts to have certain basic guidelines in place, for dealing with such cases, this Court developed a tool in K.S. Puttaswamy (Privacy-9 J.) [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] . While affirming the right to privacy as a fundamental right, this Court laid down the landscape as follows : (SCC p. 539, paras 397-98)

"397. Once we have arrived at this understanding of the nature of fundamental rights, we can dismantle a core assumption of the Union's argument : that a right must either be a common law right or a fundamental right. The only material distinctions between the two classes of right--of which the nature and content may be the same--lie in the incidence of the duty to respect the right and in the forum in which a failure to do so can be redressed. Common law rights are horizontal in their operation when they are violated by one's fellow man, he can be named and proceeded against in an ordinary court of law. Constitutional and fundamental rights, on the other hand, provide remedy against the violation of a valued interest by the "State", as an abstract entity, whether through legislation or otherwise, as well as by identifiable public officials, - 52 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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being individuals clothed with the powers of the State. It is perfectly possible for an interest to simultaneously be recognised as a common law right and a fundamental right. Where the interference with a recognised interest is by the State or any other like entity recognised by Article 12, a claim for the violation of a fundamental right would lie. Where the author of an identical interference is a non-State actor, an action at common law would lie in an ordinary court.

398. Privacy has the nature of being [Ed. : The word between two asterisks has been emphasised in original.] both [Ed. : The word between two asterisks has been emphasised in original.] a common law right as well as a fundamental right. Its content, in both forms, is identical. All that differs is the incidence of burden and the forum for enforcement for each form."

(emphasis supplied)

83. Thus, the answer to Question 2 is partly found in the nine-Judge Bench decision in K.S. Puttaswamy (Privacy-9 J.) [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] itself. We have seen from the line of judicial pronouncements listed above that after A.K. Gopalan v. State of Madras [A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27] lost its hold, this Court has expanded the width of Article 21 in several areas such as health, environment, transportation, education and prisoner's life, etc. As Vivian Bose, J., put it in a poetic language in S. Krishnan v. State of Madras [S. Krishnan v. State of Madras, 1951 SCC 499 : AIR 1951 SC 301] : (S. Krishnan case [S. Krishnan v. State of Madras, 1951 SCC 499 : AIR 1951 SC 301] , SCC p. 524, para 63)

"63. Brush aside for a moment the pettifogging of the law and forget for the nonce all the learned disputations about this and that, and "and" or "or";, or "may" and "must". Look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution."

(emphasis supplied) - 53 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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The original thinking of this Court that these rights can be enforced only against the State, changed over a period of time. The transformation was from "State" to "Authorities" to "instrumentalities of State" to "agency of the Government" to "impregnation with Governmental character" to "enjoyment of monopoly status conferred by State" to "deep and pervasive control" [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] to the "nature of the duties/functions performed" [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] . Therefore, we would answer Question 2 as follows:

"A fundamental right under Articles 19/21 can be enforced even against persons other than the State or its instrumentalities."

8.22. By relying on Kaushal Kishor's case, his

submission is that some of the rights which are

recognised under Part III of the Constitution can

be enforced against any person or entity. Some

of the rights, though are restricted to be

enforced by citizens or children or persons

belonging to a particular denomination, those are

religious or linguistic denominations. Apart from

those rights, the other rights could be exercised

by any citizen. His submission is that such

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only against a public authority coming within the

meaning of Article 12, but against any person or

entity discharging public functions. His

submission is that the society which is running

several educational institutions, providing

education to thousands of students and having

on his roll hundreds of teaching and non-

teaching staff, the functioning of the society

would have an impact on the student, their

families, as well as the staff and their families.

Therefore, if there is any allegation made against

the Managing Committee of the society and any

redress is sought for by any member of the

society, the same could be done by way of a writ

petition under Article 226 of the Constitution.

9. Sri.Jaya Kumar S. Patil, learned Senior Counsel

appearing for Respondent No. 2 submits that, - 55 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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9.1. The petitioners have an alternative remedy

under Section 15 of the Karnataka Societies

Registration Act. The dispute is between the

Managing Committee and members as regards

the appointment of a chairman to the

subordinate institutions and the internal affairs

or decisions/ resolution of the Managing

Committee, which is a private affair of the

Society, a constitutional court cannot exercise

writ jurisdiction in respect thereto. On that

basis, it submits that the remedy available to the

petitioners is to file a suit before a competent

civil court by invoking Section 15 of the Societies

Registration Act and not by way of a writ

petition.

9.2. His submission is that there is no public interest

or duty discharged by Respondent No.2 within

the meaning of Articles 12, 19 and 21 of the

Constitution of India. Education, which is - 56 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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provided by Respondent No. 2 is on receipt of

fees, and as such, it can be said to be a

commercial venture of Respondent No.2. Merely

because education is provided by Respondent

No.2 and its subordinate institutions on payment

of fees would not make the said service public

service with public interest.

9.3. The dispute essentially in the present matter

being between two factions of the members of

the Society, it has nothing to do with the affairs

of the Society. The dispute is purely personal in

nature and writ jurisdiction cannot be invoked to

resolve personal conflicts as regards which the

parties would have to avail of regular civil

remedies.

9.4. The fundamental rights under Article 19 or 21

cannot be claimed against anyone other than the

State or its instrumentalities; in fact, there is no - 57 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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fundamental right that is sought to be agitated.

The subject matter of the writ petition is a

private dispute between the parties. neither

Respondent No.2 nor the subordinate institutions

fall within the definition of State or

instrumentality of the State under Article 12 of

the Constitution. There is no public law element

in the operations of Respondent No.2 and its

subordinate institutions, and most definitely no

public law element is involved in the dispute

between the Petitioners and Respondents.

9.5. In support of his contentions, he relies on the

decision in St. Mary's Education Society v.

Rajendra Prasad Bhargava7, more particularly

paras 30 to 76 thereof, which are reproduced

hereunder for easy reference:

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

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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 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) - 59 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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."

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." - 60 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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] ].

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) - 61 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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"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 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." - 62 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 63 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 64 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 65 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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and objective of Appellant 1 herein are to impart education, which is a public function. However, the 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 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 - 66 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 67 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 68 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 69 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Article 226 to quash an order terminating services of a teacher passed by a 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 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 - 70 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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.

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) - 71 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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"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 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." - 72 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 73 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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) 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) 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 - 74 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 75 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 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 - 76 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 77 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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. - 78 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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. 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.

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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 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 - 80 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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: - 81 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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) - 82 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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) - 83 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 must have a direct nexus with the discharge of public duty. It is indisputably a public law action which confers - 84 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 - 85 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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

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.

9.6. By relying on Rajendra Prasad Bhargava's

case, it is submitted that there is a distinction

between a body created by a statute and a body

governed in accordance with a statute. A society

registered under the Societies Registration Act is

governed in accordance with a statute but is not

created under a statute. Therefore, it would not

be amenable to writ jurisdiction. His submission

is also that merely because the schools run by - 86 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Respondent No.2 society are affiliated to the

state board and/or are regulated in terms of the

Karnataka Education Act, the same would not

make the society one created under the

Karnataka Education Act and as such, it is a pure

and simple private society would not be

amenable to writ jurisdiction more so as regards

internal dispute relating to management

amongst the member of the Society.

9.7. Insofar as the management of the society, he

submitted that the same is purely contractual in

terms of the bylaws of the society. There is no

public element related to it and as such, Article

226 would not be applicable to any private

dispute between members of the management

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9.8. He relies on the decision in Dileep Kumar

Pandey vs. Union of India and Others8, more

particularly paras 1, 13 to 23 thereof, which are

reproduced hereunder for easy reference:

1. The issue involved in these two appeals is whether the Air Force School, Bamrauli, in District Allahabad, is a 'state or authority' within the meaning of Article 12 of the Constitution of India.

13. By the impugned judgments, the Division Bench of the Allahabad High Court held that the Society is not a 'state' within the meaning of Article 12 of the Constitution. We must refer to the assertions made by the appellant in the writ petition filed before the Single Judge of the High Court on this aspect. In the writ petition that is the subject matter of Civil Appeal No. 10899 of 2013, in paragraphs 5 to 7, the appellant has stated thus:

"5. That for the effective management and administration of the Air Force School at various units, the Society has framed an Education Code Air Force Schools 2005. The Code aforesaid is identical to Education Code framed for the managing to Kendriya Vidyalay.

6. That the Air Force Schools are financed by the Central Government, through Indian Air Force School, controlled by the officers of the Indian Air Force and the purposes is to impart education to the children of officers and employees of the Indian Air Force. The Air Force Schools come within the meaning of the word "State" under Article 12 of the Constitution of India.

7. That the Air Force School, Bamrauli, Allahabad, is a school established by the aforesaid Society and the said

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school comes under the definition of "State" under Article 12 of the Constitution of India."

14. In the counter filed before the High Court, the respondents contended that the Society is a non-profit making welfare association and the said school is a non- public fund school. The finance is arranged from the fees collected from students under various heads, and the air force personnel make a contribution through their welfare fund. It is specifically pleaded that neither in the welfare fund nor in the school finances is any money of the Central Government involved. Moreover, there is no control by the Central Government or the Ministry of Defence over the running or management of the school. While addressing the contents of paragraph 5 of the petition, it is specifically pleaded that the Education Code issued by the Society is not identical to the Education Code issued by the CBSE or Kendriya Vidyalaya. It is reiterated, while dealing with paragraph 6 of the writ petition, that the said school does not receive any grant from any agency having a link to any of the governments.

15. Now, we will refer to the law laid down on this aspect. Paragraphs 15 and 20 of the decision of this Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust1 read thus:

"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. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants trust was managing the affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. - 89 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Employment in such institutions, therefore, is not devoid of any public character. [See The Evolving Indian Administrative Law by M.P. Jain (1983), p. 226] So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right- duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.

.. .. .. .. .. .

20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.

(emphasis added)

16. In the case of Pradeep Kumar Biswas2, this Court dealt with the aspect of control over the institution. This Court relied upon the decision in the case of Ajay Hasia5. In paragraph 40, this Court held thus:

"40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] are not a rigid set of principles so that if a body - 90 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be -- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State."

(emphasis added)

17. In the case of All India Sainik Schools Employees Association4, as a matter of fact, it was found that the entire funding for running the school was provided by the State and Central Governments. Even the overall control was found vested in governmental authority.

18. In the case of Raj Soni3, this Court, as can be seen from paragraph 10, found that it was not necessary to decide whether or not the school is a 'state' or 'authority' under Article 12 of the Constitution of India.

19. Now, we turn to the decision of this Court in the case of St. Mary's Education Society9. It is true that this Court did not consider the decision of this Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust1 of this Court. However, this Court has discussed all relevant principles. The principles laid down in the said decision in the case of St. Mary's Education Society are in paragraphs 75.1 to 75.5, which read thus:

"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 - 91 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 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 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 - 92 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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

(emphasis added)

20. The law laid down in this decision was followed by this Court in the case of Army Welfare Education Society8. In that case, this Court dealt with a school taken over by the Army Welfare Education Society, which required existing teachers to requalify under new conditions. The High Court held that the school could not impose service conditions to the teachers' disadvantage. In the said decision, this Court was concerned with a case where a school was taken over by the petitioner - the Army Welfare Education Society. A letter was sent to the teachers in the school run by St. Gabriel's Academy indicating that those among the teachers who are eligible in terms of CBSE guidelines would be considered for appointment on ad hoc basis for one year and thereafter, they will have to appear and qualify written test conducted by the Army Welfare Education Society. The teachers approached the High Court. Learned Single Judge held that the school cannot impose the service conditions on the teaching staff to their disadvantage. The issue before this Court in the - 93 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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said case was whether the Army Welfare Education Society was a "state" or "authority" within the meaning of Article 12 of the Constitution. This Court found that the Society was a purely unaided private Society established for the purpose of imparting education to the children of the army personnel. This Court applied the law laid down in the case of St. Mary's Education Society9 and held that though the Society was imparting education, which involves public duty, the relationship between the respondents and the Army 'Welfare Education Society was that of an employee and private employer arising out of a private contract. Therefore, a breach of contract does not touch any public law element, and the school cannot be said to be discharging any public duty in connection with the employment of the teachers.

21. We have perused the application made to CBSE for affiliation. The application was made on 22nd August 1985. It was in the name of the Air Force Primary School. Although it is stated that the school was fully financed by the IAF, there is no evidence to show that the school was actually financed by the IAF. The Education Code, which applies to Air Force Schools, is not a statutory code that has the force of law. It is issued under the authority of the Chairman of the Board of Governors of the IAF Educational and Cultural Society. It provides that all Air Force Schools are administered under the Society. As per the Memorandum of Association of the Society, the members of the Society are IAF officers who hold their posts ex-officio. The Command Schools Managing Committees do not have control over the dayto-day running of Air Force Schools. The day-to-day control is with the School Managing Committee. Even if the school building is constructed out of Public funds, there is no record to show that it receives a grant from Public Funds. There is nothing in the Education Code to show that the IAF has control over the said school. The audited accounts of the school for the period from 2019- 2020 to 2023-2024 indicate that no public funds or grants were received by the school. Even if pay scales applicable to all IAF schools are determined by the IAF, that by itself will not amount to pervasive control by the IAF over the functioning of the schools. - 94 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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22. It is not shown how the IAF headquarters has any control over the management of the said school. Although some funds may have originated from the Army Welfare Society, it cannot be said that the State or the IAF has any control, let alone all-pervasive control, over the school. Moreover, the said Society is not governed by any statutory rules.

23. In the impugned judgment, the Division Bench recorded the undisputed position that the appellants are employees of the said school, which is not governed by any statutory regulations. The Education Code, which applies to the said school, does not have any statutory sanction or force. A finding of fact was recorded that there is no material to show that the Government or the IAF has any control over the management of the school. It is not possible for us to take a contrary view.

9.9. By relying on Dileep Kumar Pandey's case, his

submission is that even if an educational

institution is imparting a public duty, the act

complained upon must have a direct nexus with

the discharge of the public duty. It is only a

discharge of a public duty which would confer a

public law remedy by invoking the extraordinary

writ jurisdiction under Article 226 seeking for a

prerogative writ. His submission is that

individual wrongs or breach of contracts without - 95 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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any public element cannot be agitated by way of

a writ petition.

9.10. Sri.Jayakumar Patil, learned senior counsel

submits that he does not dispute the principle

that even a private entity would be amenable to

writ jurisdiction, but his submission is that the

amenability of a private entity or a private party

to a writ jurisdiction would have to be

ascertained with respect to the nexus of the

public functionality vis-a-vis the public. The

claim which has been made and or the right

alleged to have been infringed on. On that basis,

he submits that the society in the present

matter, even if it were to be held to discharge

public function, the dispute between the parties

relating to the management committee would

have to be agitated only by the process and

procedure prescribed under the Societies

Registration Act and not by way of a writ - 96 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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petition. His further submission is that if there is

any violation of the Karnataka Education Act, a

complaint could be filed before the appropriate

authorities seeking redressal thereof. The

petitioners cannot oppose this Court seeking for

exercise of power under Article 226 of the

Constitution.

9.11. He relies on the decision in K.K. Saksena v.

International Commission on Irrigation &

Drainage9, more particularly paras 7, 23, 31 to

33, 43 and 52 thereof, which are reproduced

hereunder for easy reference:

7. The plea of the appellant regarding availability of remedy under Article 226 of the Constitution was opposed on the ground that ICID does not perform any public duty which would make it amenable to writ jurisdiction since its objects stimulate and promote the development and the application of the arts, sciences and techniques of engineering, agriculture, economics, ecology and social sciences in managing water and land resources for irrigation, drainage, flood control and river training and for research in a more comprehensive manner adopting up to date techniques and its activities cannot be stated to be intrinsically

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public in nature or closely related to those performable by the State in its sovereign capacity.

23. From the aforesaid it transpires that ICID has been established as a scientific, technical, professional and voluntary non-governmental international organisation dedicated to enhance the worldwide supply of food and fibre for all people by improving water and land management for the productivity of irrigated and drained lands so that there is appropriate management of water, environment and the application of irrigation, drainage and flood control techniques. In the opinion of the High Court, these functions are not similar to or closely related to those performed by the State in its sovereign capacity. The activities undertaken by ICID, a non-governmental organisation, do not actually partake the nature of public duty or State action and there was absence of public element. The High Court also held that duties discharged do not have a positive application of public nature as ICID carries on voluntary activities, which many a non-governmental organisations perform.

31. We have given our thoughtful consideration to the arguments of the learned counsel for the parties.

32. If the authority/body can be treated as "State" within the meaning of Article 12 of the Constitution of India, indubitably a writ petition under Article 226 would be maintainable against such an authority/body for enforcement of fundamental and other rights. Article 12 appears in Part III of the Constitution, which pertains to "fundamental rights". Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of the High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose. - 98 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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33. In this context, when we scan through the provisions of Article 12 of the Constitution, as per the definition contained therein, the "State" includes the Government and Parliament of India and the Government and legislature of each State as well as "all local or other authorities within the territory of India or under the control of the Government of India". It is in this context the question as to which body would qualify as "other authority" has come up for consideration before this Court ever since, and the test/principles which are to be applied for ascertaining as to whether a particular body can be treated as "other authority" or not have already been noted above. If such an authority violates the fundamental right or other legal rights of any person or citizen (as the case may be), a writ petition can be filed under Article 226 of the Constitution invoking the extraordinary jurisdiction of the High Court and seeking appropriate direction, order or writ. However, under Article 226 of the Constitution, the power of the High Court is not limited to the Government or authority which qualifies to be "State" under Article 12. Power is extended to issue directions, orders or writs "to any person or authority". Again, this power of issuing directions, orders or writs is not limited to enforcement of fundamental rights conferred by Part III, but also "for any other purpose". Thus, power of the High Court takes within its sweep more "authorities" than stipulated in Article 12 and the subject-matter which can be dealt with under this article is also wider in scope.

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 - 99 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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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 (ii) when such an employee is "workmen" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding 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.

9.12. By relying on K K Saksena's case, his

submission is that a particular body can be

treated as other authority within the meaning of

Article 226. If such body violates the

fundamental rights or other legal rights of any

person or citizen, unless this test is satisfied, the - 100 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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extraordinary jurisdiction in Article 226 cannot be

exercised.

9.13. He relies on the decision in S.K. Varshney v. Our

Lady of Fatima Higher Secondary School10,

more particularly paras 6 & 7 thereof, which are

reproduced hereunder for easy reference:

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.

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9.14. By relying on S.K.Varshney's case, he submits

that a writ petition under Article 226 of the

Constitution against a private educational

institution would be justified only if a public law

element is involved.

9.15. He relies on the decision in Janet Jeyapaul v.

SRM University11, more particularly paras 22,

23, 29 to 33 thereof, which are reproduced

hereunder for easy reference:

22. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submissions urged by Mr Harish Salve.

23. To examine the question urged, it is apposite to take note of what De Smith, a well-known treatise, on the subject "Judicial Review" has said on this question [See de Smith's Judicial Review, 7th Edn., p. 127 (3-027) and p. 135 (3-038)].

"amenability test based on the source of power

The courts have adopted two complementary approaches to determining whether a function falls within the ambit of the supervisory jurisdiction. First, the court considers the legal source of power exercised by the impugned decision-maker. In identifying the 'classes of case in which judicial

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review is available', the courts place considerable importance on the source of legal authority exercised by the defendant public authority. Secondly and additionally, where the 'source of power' approach does not yield a clear or satisfactory outcome, the court may consider the characteristics of the function being performed. This has enabled the courts to extend the reach of the supervisory jurisdiction to some activities of non-statutory bodies (such as self-regulatory organisations). We begin by looking at the first approach, based on the source of power."

"judicial review of public functions

The previous section considered susceptibility to judicial review based on the source of the power: statute or prerogative. The courts came to recognise that an approach based solely on the source of the public authority's power was too restrictive. Since 1987 they have developed an additional approach to determining susceptibility based on by the type of function performed by the decision-maker. The 'public function' approach is, since 2000, reflected in the Civil Procedure Rules: Rule 54.1(2)(a)(ii), defines a claim for judicial review as a claim to the lawfulness of 'a decision, action or failure to act in relation to the exercise of a public function'. (Similar terminology is used in the Human Rights Act, 1998 Section 6(3)(b) to define a public authority as 'any person certain of whose functions are functions of a public nature', but detailed consideration of that provision is postponed until later). As we noted at the outset, the term 'public' is usually a synonym for 'governmental'."

(emphasis supplied)

29. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered view that the Division Bench of the High Court - 103 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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erred in holding that Respondent 1 is not subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other words, it should have been held that Respondent 1 is subjected to the writ jurisdiction of the High Court under Article 226 of the Constitution.

30. This we say for the reasons that firstly, Respondent 1 is engaged in imparting education in higher studies to students at large. Secondly, it is discharging "public function" by way of imparting education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section 3 of the UGC Act. Fourthly, being a "Deemed University", all the provisions of the UGC Act are made applicable to Respondent 1, which inter alia provides for effective discharge of the public function, namely, education for the benefit of the public. Fifthly, once Respondent 1 is declared as "Deemed University" whose all functions and activities are governed by the UGC Act, alike other universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.

31. In the light of the foregoing discussion, we cannot concur with the finding rendered by the Division Bench and accordingly while reversing the finding we hold that the appellant's writ petition under Article 226 of the Constitution against Respondent 1 is maintainable.

32. This takes us to the next argument urged by the learned counsel for the respondents. Placing reliance on para 231 of the decision of this Court 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] the learned counsel - 104 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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contended that even assuming that the appellant's writ petition is maintainable, yet it should not be entertained for hearing on merits and instead the appellant be granted liberty to approach the District Judge/Additional District Judge of the District concerned which is designated as Tribunal till formation of regular Tribunal for redressal of her grievances as directed by the Constitution Bench in para 231 of T.M.A. Pai case [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] .

33. In normal course, we would have been inclined to accept this submission made by the learned counsel for the respondents and would have also granted liberty to the appellant to approach the Tribunal in terms of the directions given by the Constitution Bench of this Court. But since in this case, the Single Judge not only entertained the appellant's writ petition but he allowed the writ petition on merits whereas the Division Bench held [S.R.M. University v. Janet Jeyapaul, 2013 SCC OnLine Mad 3887] the writ petition as not maintainable and thus declined to examine the merits of the controversy involved in the writ petition.

9.16. He also relies on Janet Jeyapaul's case which

has been relied upon by the petitioner, though

albeit different paragraphs in relation to the said

judgment, and submits that even in Janet

Jeyapaul's case, the Hon'ble Apex Court, left

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jurisdiction under Article 226 inasmuch as certain

tests have been laid down. It is only if those

tests are satisfied that this Court could exercise

jurisdiction under Article 226 and not otherwise

and in that regard, he submits that the injury

which is complained of by the petitioner is not a

fundamental right or a legal right but is a

contractual right under the bylaws of the society

which cannot be enforced by way of a writ

petition under Article 226 of the Constitution.

9.17. He relies on the decision in Rohtas Industries

Ltd. v. Rohtas Industries Staff Union12, more

particularly paras 8 to 16 thereof, which are

reproduced hereunder for easy reference:

8. The short but important issue, which has projected some serious questions of law, is as to whether the impugned part of the award has been rightly voided by the High Court. We may as well formulate them but highlight the only major submission that merits close examination, dealing with the rest with terse sufficiency. In logical order, counsel for the appellant urged that : (1)(a) an award under Section 10-A of the

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Act savours of a private arbitration and is not amenable to correction under Article 226 of the Constitution. (b) Even if there be jurisdiction, a discretionary desistence from its exercise is wise, proper and in consonance with the canons of restraint this Court has set down. (2) The award of compensation by the arbitrators suffers from no vice which can be regarded as a recognised ground for the High Court's interference. (3) The view of law taken by the High Court on (i) the supposed flaw in the award based on 'mixed motives' for the offending strike; (ii) the exclusion of remedies other than under Section 26 of the Act; and (iii) the implied immunity from all legal proceedings against strikers allegedly arising from Section 18 of the Trade Unions Act, 1926 is wrong. A few other incidental arguments have cropped up but the core contentions are what we have itemised above.

(1) (a) and (b)

9. The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person -- even a private individual -- and be available for any (other) purpose -- even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 (1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash. - 107 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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10. Many rulings of the High Courts, pro and con, were cited before us to show that an award under Section 10-A of the Act is insulated from interference under Article 226 but we respectfully agree with the observations of Gajendragadkar, J., (as he then was) in Engineering Mazdoor Sabha [Engineering Mazdoor Sabha v. Hind Cycles Ltd., 1963 Supp (1) SCR 625, 640 : AIR 1963 SC 874 : (1962) 2 LLJ 760] which nail the argument against the existence of jurisdiction. The learned Judge clarified at p. 640:

"Article 226 under which a writ of certiorari can be issued in an appropriate case, is, in a sense, wider than Article 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the orders of courts or tribunals. Under Article 226(1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore even if the arbitrator appointed under Section 10-A is not a tribunal under Article 136 in a proper cases, a writ may lie against his award under Article 226." (p. 640)

11. We agree that the position of an arbitrator under Section 10-A of the Act (as it then stood) vis-a-vis Article 227 might have been different. Today, however, such an arbitrator has power to bind even those who are not parties to the reference or agreement and the whole exercise under Section 10-A as well as the source of the force of the award on publication derive from the statute. It is legitimate to regard such an arbitrator now as part of the methodology of the sovereign's dispensation of justice, thus falling within the rainbow of statutory tribunals amenable to judicial review. This observation made en passant by us is induced by the discussion at the Bar and turns on the amendments to Section 10-A and cognate provisions like Section 23, by Act 36 of 1964.

12. Should the Court invoke this high prerogative under Article 226 in the present case? That depends. We will examine the grounds on which the High Court has, in the present case, excised a portion of the award - 108 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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as illegal, keeping in mind the settled rules governing judicial review of private arbitrator's awards. Suffice it to say, an award under Section 10-A is not only not invulnerable but more sensitively susceptible to the writ lancet being a quasi-statutory body's decision. Admittedly, such an award can be upset if an apparent error of law stains its face. The distinction, in this area, between a private award and one under Section 10-A is fine, but real. However it makes slight practical difference in the present case; in other cases it may. The further grounds for invalidating an award need not be considered as enough unto the day is the evil thereof.

13. Thus, we arrive at a consideration of the appellant's second submission, perhaps the most significant in the case, that the High Court had no legitimate justification to jettison the compensation portion of the award. Even here, we may state that counsel for the appellants, right at the outset, mollified possible judicial apprehensions springing from striking workers being held liable for loss of management's profits during the strike period by the assurance that his clients were inclined to abandon realisation of the entire compensation, even if this Court upheld that part of the award in reversal of the judgment of the High Court -- a generous realism. He fought a battle for principle, not pecunia. We record this welcome fact and proceed on that footing.

14. The relevant law which is beyond controversy now has been clearly stated in Halsbury's Laws of England thus:

"Error of law on the face of award : An arbitrator's award may be set aside for error of law appearing on the face of it, though the jurisdiction is not lightly to be exercised .... The jurisdiction is one that exists at common law independently of statute. In order to be a ground for setting aside the award, an error in law on the face of the award must be such that there can be found in the award, or in a document actually incorporated with it, some legal proposition which is the basis of the award and which is erroneous. - 109 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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... where the question referred for arbitration is a question of construction, which is, generally speaking, a question of law, the arbitrator's decision cannot be set aside only because the court would itself have come to a different conclusion; but if it appears on the face of the award that the arbitrator has proceeded illegally, as for instance, by deciding on evidence which was not admissible, or on principles of construction which the law does not countenance, there is error in law which may be ground for setting aside the award,"

(Para 623, p. 334, Vol. 2, Fourth Edn.)

We adopt this as sound statement of the law. Not that English law binds us but that the jurisprudence of judicial review in this branch is substantially common for Indian and Anglo-American systems and so Halsbury has considerable persuasive value. The wider emergence of common canons of judicial review is a welcome trend towards a one-world public law. Indeed, this Court has relied on the leading English decisions in several cases. We may content ourselves with adverting to Bungo Steel Furniture [Bungo Steel Furniture (P) Ltd v. Union of India, AIR 1967 SC 378 : (1967) 1 SCR 633] and to the unreported decision Babu Ram [L. Babu Ram v. Kanhaiyalal, CA No. 107 of 1966 decided on December 5, 1968 (SC)] . In simple terms, the Court has to ask itself whether the arbitrator has not tied himself down to an obviously unsound legal proposition in reaching his verdict as appears from the face of the award. Bhargava, J., speaking for the majority, in Bungo Steel stated the law:

"It is now a well-settled principle that if an arbitrator, in deciding a dispute before him, does not record his reasons and does not indicate the principles of law on which he has proceeded, the award is not on that account vitiated. It is only when the arbitrator proceeds to give his reasons or to lay down principles on which he has arrived at his decisions that the Court is competent to examine whether he has proceeded contrary to law and is entitled to interfere if such error in law is apparent on the face of the award itself." (p. 640-641) - 110 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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Bharat Barrel & Drum Manufacturing Co. [Bharat Barrel & Drum Mfg. Co v. L.K Bose, AIR 1967 SC 361: (1967) 1 SCR 739] , dealing with a private award and the conditions necessary for exercise of writ jurisdiction to correct an error of law apparent on the record, did not lay down the law differently from what we have delineated.

15. In one of the leading English cases Champsey Bhara & Co. [Champsey Bhara & Co. v. Jivaraj Balloo Spg. & Wvg. Co. Ltd., AIR 1923 PC 66 : 50 IA 324] followed in India, Lord Dunedin defined "error of law on the face of the award" as "where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award" and said that then only the error of law therein would warrant judicial correction. The Law Lord expressed himself luscently when he stated:

"An error in law on the face of the award means, in Their Lordships' view, that you can find in the award . . . some legal proposition which is the basis of the award and which you can then say is erroneous."

Williams, J., in the case of Hodkinsons v. Fernie [(1857) 3 CBNS 189] hit the nail on the head by using the telling test as firmly established viz. "where the question of law necessarily arises on the face of the award". In this view of the enquiry by the Court before venturing to interfere is to ascertain whether an erroneous legal proposition is the basis of the award. Nay, still less. Does a question of law (not even a proposition of law) necessarily arise on the award followed by a flawsome finding explicit or visibly implicit? Then the Court can correct.

16. Tucker, J., in James Clark [1944 KB 566] formulates the law to mean that if the award were founded on a finding which admits of only one proposition of law as its foundation and that law is erroneous on its face, the Court has the power and, therefore, the duty to set right. While the Judge cannot explore, by chasing subterranean routes or ferret out by delving deep what lies buried in the unspoken cerebration of the arbitrator and interfere with the - 111 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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award on the discovery of an error of law by such adventure, it is within his purview to look closely at the face of the award to discern the law on which the arbitrator has acted if it is transparent, even, transluscent but lingering between the lines or merely wearing a verbal veil. If by such an intelligent inspection of the mien of the award -- which is an index of the mind of the author -- an error of law forming the basis of the verdict is directly disclosed, the decision is liable to judicial demolition. In James Clark, the issue was posed with considerable clarity and nicety. If, at its face value, the award appears to be based on an erroneous finding of law alone, it must fail. The clincher is that the factual conclusion involving a legal question must necessarily be wrong in point of law. Even though the award contains no statement of the legal proposition, if the facts found raise "a clear point of law which is erroneous on the face of it", the Court may rightly hold that an error of law on the face of the award exists and invalidates.

9.18. By relying on Rohtas Industries Ltd.,'s case,

his submission is that the High Court could

exercise jurisdiction only when a clear point of

law which is erroneous and has been applied is

made out.

9.19. On the above basis he submits that the present

writ petition is not maintainable and is liable to

be dismissed as such. - 112 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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10. Heard Prof.Ravi Varma Kumar, learned Senior counsel

for Sri.Desai Sunil Shantappa, learned counsel for the

petitioner, Sri.Jayakumar S.Patil, learned Senior

Counsel for Sri.Srinivas.B.Naik, learned counsel for r

No.2, Sri.K.L.Patil, learned counsel for respondents

No.3, 5 to 7 and Sri.A.S.Patil, learned counsel for

respondent No.4. Perused papers.

11. The points that would arise for determination are:

i. Whether the writ petition under Articles 226 and 227 of the Constitution of India is maintainable against Respondent No.2, a society registered under the Societies Registration Act, and its managing committee members, who are private individuals, in the absence of any substantive relief sought against the statutory authority (Respondent No.1 - Deputy Registrar of Societies)? ii. Whether Respondent No.2-Society, in view of its long-standing role in imparting education, receipt of governmental grants, and regulation under the Karnataka Education Act, discharges public functions or public duties so as to be amenable to writ jurisdiction under Article 226 of the Constitution? - 113 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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iii. Whether disputes pertaining to the internal management, governance, and office- bearer arrangements of a registered society, even if engaged in public functions, fall within the realm of public law remedies or are essentially private law disputes requiring recourse to statutory or civil remedies? iv. Whether the existence of alternative remedies under the Societies Registration Act or other applicable statutes constitutes a bar, either absolute or discretionary, to the exercise of writ jurisdiction in the facts of the present case? v. What order? 12. I answer the above points as under:-

13. Answer to Point No.1: Whether the writ petition under Articles 226 and 227 of the Constitution of India is maintainable against Respondent No.2, a society registered under the Societies Registration Act, and its managing committee members, who are private individuals, in the absence of any substantive relief sought against the statutory authority (Respondent No.1 - Deputy Registrar of Societies)? 13.1. Article 226 of the Constitution of India

undoubtedly confers upon the High Courts a wide

and plenary power to issue writs, orders, or

directions to "any person or authority". The - 114 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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amplitude of this expression has been repeatedly

emphasised by the Hon'ble Supreme Court to

clarify that the writ jurisdiction of the High

Courts is not confined to the State or its

instrumentalities within the meaning of Article 12

of the Constitution. However, it is equally well

settled that the width of the power does not

render it amorphous or unprincipled. The

jurisdiction under Article 226 is not a general

dispute-resolution mechanism. It is a

constitutional public law remedy, intended to

ensure that public power--whether exercised by

the State, a statutory authority, or a non-

statutory body entrusted with public functions--is

exercised lawfully, fairly, and within the bounds

of authority.

13.2. Thus, the true basis for exercise of power under

Article 226 is not merely the identity of the

respondent, but the nature of the power - 115 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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exercised and the character of the duty alleged

to have been breached.

13.3. In the present case, Respondent No.1 - the

Deputy Registrar of Societies - is undoubtedly a

statutory authority under the Karnataka Societies

Registration Act. However, a careful scrutiny of

the pleadings and the reliefs sought reveals that

no writ, direction, or declaratory relief is sought

against Respondent No.1. No order passed by

the Deputy Registrar is under challenge. No

inaction, omission, or failure attributable to him

is pleaded. No statutory power exercised by him

is alleged to be illegal, arbitrary, or ultra vires.

13.4. The entire lis, in substance and effect, is directed

against: - 116 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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13.4.1. the resolutions passed by the Managing

Committee of Respondent No.2-Society;

and

13.4.2. the consequential actions taken by

Respondents No.3 to 7, who are

admittedly private individuals.

13.5. The mere arraying of Respondent No.1 as a

party, therefore, does not infuse the dispute with

a public law character, nor does it convert what

is essentially an intra-society dispute into one

involving statutory adjudication.

13.6. It is a settled and salutary principle of

constitutional law that a writ petition cannot be

rendered maintainable merely by impleading a

statutory authority as a pro forma respondent,

particularly where:

13.6.1. no relief is claimed against such authority;

and - 117 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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13.6.2. no statutory function exercised by it is

subjected to judicial scrutiny.

13.7. To hold otherwise would enable litigants to

circumvent ordinary civil or statutory remedies

by approaching this court simply impleading a

public authority, thereby converting Article 226

into a general forum for resolution of private

disputes, which has been consistently deprecated

by constitutional courts.

13.8. The Hon'ble Supreme Court in Binny Ltd. v.

Sadasivan has unequivocally held that the writ

of mandamus is pre-eminently a public law

remedy and cannot be invoked for enforcement

of purely private rights. The Hon'ble Apex Court

made it clear that even where a private body is

involved, the determinative consideration is

whether the duty sought to be enforced is public

in nature. - 118 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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13.9. Similarly, in Federal Bank Ltd. v. Sagar

Thomas, the Supreme Court underscored that

the existence of regulatory control, or the fact

that an entity performs activities of public

importance, does not ipso facto render every

action of such entity amenable to writ

jurisdiction.

13.10. This principle has been reaffirmed in Umri

Pooph Pratappur Tollways Pvt. Ltd. v. M.P.

Road Development Corporation, wherein the

Hon'ble Supreme Court has reiterated that the

nature of the dispute, and not merely the

presence of a public or statutory party, is

decisive of maintainability.

13.11. Applying these well-settled principles, I'am of the

considered view that, in the absence of any

challenge to a statutory act or omission

attributable to Respondent No.1, the - 119 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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maintainability of the present writ petition must

necessarily be examined solely with reference to

Respondent No.2 and the private individuals

arrayed as Respondents No.3 to 7.

13.12. I answer Point No.1 by holding that a writ

petition under Articles 226 and 227 of the

Constitution of India is not maintainable

against Respondent No.2, a society

registered under the Societies Registration

Act, and its managing committee members,

who are private individuals, in the absence

of any substantive relief being sought

against a statutory authority in this case

Respondent No.1 - Deputy Registrar of

Societies?

14. Answer to Point No.2: Whether Respondent No.2-Society, in view of its long-standing role in imparting education, receipt of governmental grants, and regulation under the Karnataka Education Act, discharges public functions or - 120 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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public duties so as to be amenable to writ jurisdiction under Article 226 of the Constitution. 14.1. Learned Senior Counsel for the petitioners has

placed extensive reliance on decisions such as

Andi Mukta Sadguru, Ramesh Ahluwalia,

Janet Jeyapaul, Revathi, Zee Telefilms, and

Chandrakant, to contend that Respondent

No.2-Society, by reason of imparting education

and receiving governmental grants, performs a

public function and is therefore amenable to writ

jurisdiction.

14.2. There can be no quarrel with the broad legal

proposition that imparting education is a public

function. This principle is now firmly entrenched

in constitutional jurisprudence. The Hon'ble

Supreme Court has consistently recognised that

education is not a purely private or commercial

activity, but one imbued with public interest and

societal significance. - 121 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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14.3. Consequently, it is well established that private

educational institutions, whether aided or

unaided, may, in appropriate cases, be subjected

to writ jurisdiction, particularly where the

grievance pertains to admissions, fixation of

fees, service conditions governed by statute, or

compliance with regulatory frameworks under

education laws.

14.4. However, constitutional jurisprudence in this

area draws a critical and carefully calibrated

distinction between:

14.4.1. the amenability of an institution to writ

jurisdiction; and

14.4.2. the amenability of every action of such

institution to judicial review under Article

226.

14.5. The Hon'ble Supreme Court has repeatedly

cautioned that amenability does not operate in - 122 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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rem. It does not follow that merely because an

institution performs a public function, every

dispute involving that institution automatically

acquires a public law character.

14.6. In Binny Ltd., the Supreme Court succinctly

held that:

"The scope of mandamus is limited to enforcement of public duty. It cannot be issued to enforce purely private rights."

14.7. Likewise, in Federal Bank Ltd., it was clarified

that even where an entity performs some public

functions, writ jurisdiction will lie only when the

impugned action bears a clear public law

element.

14.8. In the present case, the challenge is not directed

against the functioning of any educational

institution, the imparting of education,

compliance with the Karnataka Education Act or

allied rules, or any regulatory action affecting - 123 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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students, teachers, or the public at large.

Instead, the challenge is confined exclusively to

internal resolutions of the Managing Committee

relating to the removal and appointment of office

bearers.

14.9. Such actions, though undertaken by a society

that runs educational institutions, do not

constitute the discharge of a public function.

They relate solely to the internal governance and

administration of the Society.

14.10. Accordingly, while Respondent No.2 may, in

appropriate circumstances, be amenable to writ

jurisdiction, the present dispute neither arises

from nor implicates the public duties discharged

by the Society.

14.11. Hence I Answer Point No.2 by holding that

though Respondent No.2-Society, in view of

its long-standing role in imparting - 124 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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education, receipt of governmental grants,

and regulation under the Karnataka

Education Act, discharges public functions

or public duties and can be amenable to

writ jurisdiction under Article 226 of the

Constitution where public duties are

concerned, the present dispute/lis is not

one which would make it amenable to Writ

Jurisdication.

15. Answer to Point No.3: Whether disputes pertaining to the internal management, governance, and office-bearer arrangements of a registered society, even if engaged in public functions, fall within the realm of public law remedies or are essentially private law disputes requiring recourse to statutory or civil remedies. 15.1. This issue goes to the very heart of the present

controversy.

15.2. The Hon'ble Supreme Court in Zee Telefilms

and Binny Ltd. has drawn a clear and principled

distinction between actions involving the

discharge of public law functions and disputes - 125 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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relating to internal management or private

rights.

15.3. Disputes concerning election of office bearers,

passing of no-confidence motions, interpretation

of bye-laws, and the composition and functioning

of managing committees have consistently been

held to be private law disputes, notwithstanding

the public importance of the activities

undertaken by the institution concerned.

15.4. In Umri Pooph Pratappur Tollways, the

Hon'ble Supreme Court reiterated that the

functionality test must be applied to the

impugned action itself, and not to the general

nature or objectives of the institution.

15.5. Applying that test to the present case, it is

evident that the impugned actions arise out of

alleged procedural irregularities in internal

meetings, involve rival claims to office and - 126 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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authority, necessitate interpretation of bye-laws,

and would require adjudication of disputed

questions of fact.

15.6. Such matters are wholly alien to the exercise of

writ jurisdiction and fall squarely within the

domain of civil or statutory adjudication, where

evidence can be led and factual controversies

resolved.

15.7. This Court cannot, under Article 226, assume the

role of an appellate or supervisory authority over

the internal governance of a registered society.

15.8. Thus, I answer Point No.3 by holding that

disputes pertaining to the internal

management, governance, and office-

bearer arrangements of a registered

society, even if engaged in public functions,

would not fall within the realm of public law

remedies since they are essentially private - 127 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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law disputes requiring recourse to statutory

or civil remedies.

16. Answer to Point No.4: Whether the existence of alternative remedies under the Societies Registration Act or other applicable statutes constitutes a bar, either absolute or discretionary, to the exercise of writ jurisdiction in the facts of the present case.

16.1. As held in Whirlpool, Tantia Construction,

and ABL International, the existence of an

alternative remedy is not an absolute bar to the

exercise of writ jurisdiction.

16.2. However, the same line of authority equally

emphasises that the High Court must exercise

self-imposed restraint, particularly where the

dispute is essentially private in nature and

efficacious statutory or civil remedies are

available.

16.3. Under the Karnataka Societies Registration Act,

disputes relating to management, governance, - 128 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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elections, and internal resolutions can be

agitated before the competent statutory

authorities or civil courts.

16.4. The petitioners have failed to demonstrate the

existence of any exceptional circumstance, such

as violation of fundamental rights, lack of

jurisdiction, or manifest arbitrariness by a public

authority, which would justify bypassing those

remedies.

16.5. I answer Point No.4 by holding that the

existence of alternative remedies under the

Societies Registration Act or other

applicable statutes constitutes a

discretionary bar to the exercise of writ

jurisdiction in the facts of the present case.

The extraordinary jurisdiction under Article

226 of the Constitution of India is not

intended to supplant statutory or civil - 129 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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remedies, and would ordinarily not be

exercised where such efficacious remedies

are available. It is only in exceptional and

compelling circumstances, to be established

on a case-to-case basis, that this Court may

depart from the rule of self-imposed restraint

and exercise its discretionary jurisdiction.

17. Answer to Point No.5: What order?

17.1. For the reasons discussed above, it is clear that:

17.1.1. The writ petition is not maintainable against

Respondent No.2 and Respondents No.3 to

7 in the absence of any substantive relief

against Respondent No.1.

17.1.2. Though Respondent No.2 may discharge

public functions in the field of education,

the impugned actions do not arise from

such public functions. - 130 - NC: 2026:KHC-D:1044 WP No. 103179 of 2025

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17.1.3. The dispute pertains to internal

management and governance of a society

and is essentially a private law dispute.

17.1.4. Availability of alternative statutory

remedies, coupled with the private nature

of the dispute, warrants refusal to exercise

writ jurisdiction.

17.1.5. Hence, I pass the following

ORDER

i. The writ petition is dismissed as not maintainable.

ii. Liberty is reserved to the petitioners to avail such remedies as are available to them in accordance with law before the appropriate forum. All contentions are left open.

SD/-

(SURAJ GOVINDARAJ) JUDGE

List No.: 19 Sl No.: 1