Remedy under Article 226 available only when action challenged falls in public law domain: Allahabad High Court

The Allahabad High Court has recently held that remedy under Article 226 of Indian Constitution would be available against an authority/person discharging public duty or function, only if the action under challenge falls in the domain of public law (Uttam Chand Rawat v. State of Uttar Pradesh)..A three-judge bench comprising acting Chief Justice Munishwar Nath Bhandari and Justices Prakash Padia and Sanjay Kumar Singh held that writ petition under Article 226 would be maintainable even against an authority or the person which may be a private body, if it discharges public function/ public duty and the issue under public law is involved.In this regard, the judgment reaffirmed the twin test for maintainability of writ under Article 226: "1. The person or authority is discharging public duty/public functions. 2. There action under challenge falls in domain of public law and not under common law." Thus, the Court ruled that a petition under Article 226 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.."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 Apex Court in the case of Ramakrishnan Mission (supra) and the issue under public law is involved," the judgment said..The Court was hearing a reference made by a single-judge who had formulated the following two questions for determination by a larger bench:.“(i) Whether the element of public function and public duty inherent in the enterprise that an educational institution undertakes, conditions of service of teachers, whose functions are a sine qua non to the discharge of that public function or duty, can be regarded as governed by the private law of contract and with no remedy available under Article 226 of the Constitution? (ii) Whether the decision in Rajesh Kumar Srivastava and others versus State of UP and others is in teeth of the holding of the Full Bench in Roychan Abraham versus State of UP and others [(2019) SCC OnLine All 3935]?”.While answering the former question, the Court said that the remedy under Article 226 of the Constitution of India would be available against an authority or a person only when twin test is satisfied. It held that it is not enough that the authority or the person is discharging public function or public duty but the action challenged should also fall in the domain of public law. "The writ petition would not be maintainable against an authority or person even if it is discharging public function/public duty, if the controversy pertains to the private law such as a dispute arising out of contract or under the common law," the Court held.On the second question, it said that the judgment of Allahabad High Court in case of Rajesh Kumar Srivastava and others v. State of UP is not against the ratio pronounced by the larger Bench in the case of Roychan Abraham v. State of UP and others .Rather it has followed the judgment of the Supreme Court in the case of KK Saksena v. International Commission on Irrigation and Drainage, the Court held..The court said that there is a thin line between “public functions” and “private functions” discharged by a person or a private body/authority. "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 Court said..After placing reliance on various judgments of the Supreme Court and High Court, the Court came to conclusion that 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; (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function..[Read Order]