Ameer Ali v. State of Kerala, Palakkad District Rifle Association, District Collector, Palakkad District Collectorate, Superintendent of Police, Devasia Kurien, Mangaly Industries (P) Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934** **WP(C).No. 18032 of 2012 (D) --------------------------** ## **PETITIONER(S):** **---------------------** **AMEER ALI, AGED 38 YEARS** , **S/O.ABDU RAHIMAN, HOUSE NO.257, CHANDRA NAGAR, PALAKKAD -678007** **BY ADVS.SRI.ASWIN GOPAKUMAR SRI.PRAVEEN.HARIHARAN SRI.ANWIN GOPAKUMAR SMT.KALA G.NAMBIAR SRI.K.AMAL NATH NAIK** **RESPONDENT(S): ------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF SPORTS AND YOUTH AFFAIRS, 2ND FLOOR, ANNEXE BUILDING, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE PALAKKAD DISTRICT RIFLE ASSOCIATION , REG.NO.133/30-5-90, CHANDRA NAGAR, PALAKKAD-678007, REPRESENTED BY ITS SECRETARY.** **3. DISTRICT COLLECTOR, PALAKKAD DISTRICT COLECTORATE, NEAR MUNICIPAL TOWN HALL, PALAKKAD-678001.** **4. THE SUPERINTENDENT OF POLICE, OFFICE OF THGE SUPERINTENDENT OF POLICE,** - **DISTRICT POLICE HEAD QUARTERS, PALAKKAD- 679014.** **5. DEVASIA KURIEN, MANGALY INDUSTRIES (P) LTD,. B.O.C ROAD, PALAKKAD-678014.** **R1,R3 & R4 BY GOVERNMENT PLEADER SRI. RINNY STEPHEN CHAMAPARAMBIL R2 AND 5 BY ADVS. SRI.R.HARIKRISHNAN** **SRI.R.UMASANKAR SRI.P.ARUN KUMAR (MONCOMPU) SMT.SINDHU SARAH THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 18032 of 2012 (D)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXT.P1 : COPIES OF THE CERTIFICATES WON BY THE PETITIONER IN RIFLE SHOOTING. EXT.P2 : COPY OF THE MEMORANDUM OF ASSOCIAITION AND RULES AND REGULATIONS OF THE 2ND RESPONDENT. EXT.P3 : COPY OF A NEWS PAPER REPORT DATED 11.12.2011 . EXT.P3(a) : COPY OF A NEWS PAPER REPORT DATED 21.12.2011 IN MALAYALA MANORAMA. EXT.P3(b) : COPY OF A NEWS PAPER REPORT DATED 22.12.2011 IN MATHRUBHOOMI DAILY. EXT.P3(c) : COPY OF A NEWS PAPER REPORT DATED 29.12.2011 IN MATHRUBHOOMI DAILY. EXT.P4 : COPY OF THE COMPLAINT DATED 31/08/2004 FILED TO THE 3RD RESPONDENT. EXT.P5 : COPY OF THE COMPLAINT IN CRL.M.P.NO.587/2012 ON THE FILE OF THE JFCM-I,PALAKKAD. EXT.P6 : COPY OF THE ORDER OF SUSPENSION DATED 23.01.2012. EXT.P7 : COPY OF THE SUSPENSION ORDER DATED 31.01.2011. EXT.P8 : COPY OF THE COMPLOAINT DATED 31.01.2011. EXT.P9 : COPY OF THE MEMO OF CHARGES DATED 04.03.2011. EXT.P10 : COPY OF THE REPLY DATED 19.03.2011 SUBMITTED BY THE PETITIONER. EXT.P1 : COPY OF THE REPRESENTATION DATED 20.06.2011 SUBMITTED BY THE PETITIONER. EXT.P12 : COPY OF THE REPRRESENTATION DATED 17.08.2011. EXT.P13 : COPY OF THE ENQUIRY REPORT DATED 17.12.2011. EXT.P14 : COPY OF THE MINUTES OF THE MEETING OF THE EXECUTIVE COMMITTEE OF THE 2ND RESPONDENT DATED 21.04.2012.** ## **RESPONDENTS' EXHIBITS :** **EXT.R2(A) : COPY OF THE COMPLAINT FILED AGAINST THE PETITIOENR ALLEGING VIOLATION OF RANGE DISCIPLINE. EXT.R2(B) : COPY OF THE REPORT OF THE DISCIPLINARY COMMITTEE DATED 17.12.2011.** **-2-** ## **WP(C).No. 18032 of 2012 (D)** **EXT.R2(C) : COPY OF THE RESOLUTION DATED 12.01.2012 OF THE EXECUTIVE COMMITTEE.** **EXT.R2(D) : COPY OF THE RESOLUTION DATED 18.05.2010.** **EXT.R2(E) : COPY OF THE JUDGMENT DATED 6.7.2011 IN W.P.C. NO.18253/2011.** **/ TRUE COPY /** ## **NS** **P.A. TO JUDGE** ## **ANTONY DOMINIC,J --------------------------------** ## **W.P.(C)No.18032 of 2012** ## **------------------------------------Dated this the 06[th ] day of December, 2012** ## **JUDGMENT** The petitioner is a member of the second respondent, the Palakkad District Rifle Association. He was suspended by Ext.P7 order and was later issued Ext.P9 memo of charges. He filed his reply by Ext.P10. An enquiry was conducted into the misconducts alleged against him and finally the Disciplinary Committee submitted Ext.P13 report. It is at that stage, this writ petition has been filed, with the prayer to declare that the proceedings initiated against him are without jurisdiction and to restrain the second respondent from proceeding against the petitioner. 2. The second respondent, the Palakkad District Rifle Association is a society registered under the TravancoreCochin Literary, Scientific and Charitable Societies Act, 1955. The Memorandum of Association and Rules and Regulations of the second respondent are Ext.P2. W.P.(C).No.18032/2012 : 2 : 3. To substantiate his contention that the second respondent is an other authority within the meaning of Article 12 of the Constitution and thus amenable to the writ jurisdiction of this Court, the learned counsel for the petitioner invited my attention to the provisions of Ext.P2. Section 5 of Ext.P2, provides for the election of Office Bearers. As per this provision, the District Collector shall be the ex-officio President and the District Superintendent of Police shall be the ex-officio Vice President. According to him, the very fact that the District Collector and the District Superintendent of Police permanently occupied the post of the President and Vice President evidences the pervasive State Control over the affairs of the Association. 4. He also contended that the Association is getting grant in Aid from the State. Further, it was also submitted that members of the second respondent are eligible for the relaxation as provided in Section 3(3) of the Arms Act. Counsel also contended that in terms of the provisions of W.P.(C).No.18032/2012 : 3 : the Kerala Sports Act, the second respondent is entitled to have its elected representative as a member of the District Sports Council. These facts, according to the learned counsel for the petitioner, satisfy the tests laid down by the Apex Court to render the second respondent an other authority amenable to the writ jurisdiction of this Court. 5. In the judgment in **K.S. Sofhi v. Fertilisers & Chemicals Travancore Ltd. and others (1984 KLT 32),** this Court examined the requirements for an organization to be an other authority as contemplated in Article 12 of the Constitution of India and finally the tests were enumerated thus in the judgment. - _(a). The entirety or a massive majority of the share capital in the hands of the Government is a penetrating index that it is an instrument or agent of the Government._ - _(b) “Deep and pervasive” state control is an affirmative assurance that it is Government agency or instrumentality. This can be gathered from the following surrounding_ W.P.(C).No.18032/2012 : 4 : _circumstances as well:_ - _(i) Domination in the composition of the Society or company by the representatives of the Government._ - _(ii) Subjection of the directions of the Government for the performance of its functions._ - _(iii) The concurrence or approval of the Government for making rules and regulations._ - _(iv) The accounts requiring scrutiny and satisfaction of the Government._ - _(v) The effective control of the affairs of the Society/Corporation by the Government._ - _(c) Substantial financial assistance by the Government meeting practically the entire expenditure of the Company gives an added colour and flavour of Governmental agency._ - _(d) The public importance of the functions, in its nature allied to Governmental activity, is also yet another vital indication._ - _(e) Monopoly status of the Corporation either conferred or protected by the State._ - _(f) Statutory origin of the Corporation/Company may be the hall mark of “State”, but the_ W.P.(C).No.18032/2012 : 5 : _absence of this birth mark need not exclude it from the expansive area of 'State' within Article 12._ 6. Clause(b) shows that what is required is deep and pervasive State control over the organisation in question. In my view, if the bye laws of an organisation nominates a State Government Official as its office bearer, that by itself does not reflect any deep pervasive State control over the organisation. Therefore, fact that the District Collector or the District Superintendent of Police are the President and Vice President of the second respondent does not by itself indicate any deep and pervasive State control. 7. Insofar as the grant in aid allegedly received by the second respondent is concerned, reading of the above paragraphs show that there should be substantial financial assistance by the Government. In this writ petition, apart from a passing statement, there is no materials regarding the grant in the aid allegedly received by the second W.P.(C).No.18032/2012 : 6 : respondent. Therefore, with the materials available, this Court is unable to conclude that there is any substantial financial assistance from the Government to satisfy one of the tests laid down by the Apex Court. Insofar as the Arms Act are concerned, the provisions of the Act only provided for certain concessions to the members of the second respondent. Similarly, the Kerala Sports Act provides for an elected representative of the second respondent to be a member of the District Sports Council. These do not in any manner reflect satisfaction of any of the tests enumerated by this Court in the judgment referred to above. 8. Apart from all these, this very question was considered by the Apex Court in the case of the Institute for Constitutional and Parliamentary Studies in its judgment in **Tekraj Vasandi alias, K.L.Basandhi v. Union of India and others(AIR 1988 SC 469)** where after going through all the relevant precedents on the subject, the Apex Court held that the institute does not answer the tests to be a the W.P.(C).No.18032/2012 : 7 : State or an other authority. The principles laid down in the said judgment, in my view is a complete answer to the contentions raised by the petitioner. Therefore, I am of the view that the second respondent cannot be a State or other authority to maintain a writ petition. Further, in the judgment in W.P.(c) No.18253 of 2011, this has also held that the Kerala State Rifle Association is not a State or an other authority. 9. In such circumstances, the writ petition is not maintainable and it is dismissed. However, this judgment shall be without prejudice to the contentions raised and the remedies that are available to the petitioner. Sd/- **ANTONY DOMINIC, JUDGE** ln