When A Private Entity Is Amenable To Writ Jurisdiction, Judicial Review Restricted To Public Functions: J&K&L High Court

The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner was praying for directions upon respondent Jammu & Kashmir Cricket Association (constituent of Board of Cricket Control in India) to release his withheld admitted liability to the tune of Rs.6.00 crores.

Contesting the plea the respondents raised a preliminary objection with regard to the maintainability by submitting that respondent BCCI is not a “State” within the meaning of Article 12 of the Constitution and hence the writ petition was not maintainable. Even if a writ petition would lie against respondents, but no mandamus could be issued against it for enforcement of private law rights, the respondents contended.

Adjudicating upon the matter the bench took support from the Supreme Court judgement in BCCI vs. Cricket Association of Bihar and others, (2015) and found merit in the argument of the petitioner that the Board of Control for Cricket in India is not a state in terms of Article 12 but is amenable to writ jurisdiction Article 226 of the Constitution and accordingly observed that JKCA being a constituent of BCCI also becomes amenable to the writ jurisdiction of the High Court because of wide scope of Article 226 of the Constitution.

Explaining the law on the subject Justice Dhar observed,

"The words “any person or authority” used in Article 226 of the Constitution not only includes the statutory authorities and instrumentalities of the State but it also includes “any person or authority” performing public duties. Since the JKCA, by the logic adopted by the Supreme Court in Board of Control for Cricket in India’s case (supra), also performs the public functions like selection of team for UT of J&K, maintenance of infrastructure, running of cricket academies etc is amenable to writ jurisdiction of the High Court."

Dealing with the second contention of the respondents that a mandamus cannot be issued against the respondent for upholding its contractual obligations, the bench observed that while State or an instrumentality of a State is amenable to writ jurisdiction even in cases arising of a contractual obligation but the same may not be the position in a case where the contractual obligation is sought to be enforced against a person or authority which is not a state or an instrumentality of a state.

The bench took recourse to Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust vs. V. R. Rudani, (1989) wherein SC maintained that if the nature of duty imposed on a body is public in nature, it is amenable to writ jurisdiction under Article 226 but if the rights sought to be enforced are purely of a private character, mandamus cannot be issued against such a body.

Applying the law in vogue to the matter at hand the bench observed that while a private body like respondent BCCI, would be amenable to writ jurisdiction but the judicial review of its actions by the High Court would be confined to only those actions which have the element of public duty and its actions which have the character of private law rights are not amenable to the writ jurisdiction of the High Court.

Dealing with another argument of the petitioner that once it is shown that the action of a private body is arbitrary and violative of Article 14 of the Constitution, a writ petition would certainly lie even to enforce contractual obligations, the bench underscored that since the right to equality under Article 14 of the Constitution is available only against a State, the same cannot be claimed against a private body like respondent.

In view of the foregoing discussion the court upheld the objection with regard to the maintainability of the writ petition and accordingly dismissed the petition.

Case Title: M/S Aisha Construction Vs JKCA

Citation: 2023 LiveLaw (JKL ) 2

Coram : Justice Sanjay Dhar

Counsel For Petitioner : Mr RA Jan with Aswad Attar Adv.

Counsel For Respondent: Mr. Rahul Pant, Sr. Adv. With Mr. Achyut Dubey, Advocate & Mr. Arif Sikander Mir, Advocate.