# Dharmendra Kumar Yadav v. Manager, Commercial Auto Sales

- **Citation:** (2010) 3 ILRA 1375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-06
- **Case number:** Civil Misc. Writ Petition No. 66283 of 2010
- **Bench:** Ashok Bhushan, S.S. Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-yadav-v-manager-commercial-auto-sales-41808
- **Pages:** 5

## Headnote

Constitution
of
India,
Art
226Maintainability-Writ
Petition
against
Private body-not within meaning of
State-nor performing Statutory dutyheld-petition against Commercial Auto
Sales (Pvt.)-not maintainable.

Held: Para 8 and 12

It is not the case of the petitioner that
the Commercial Auto Sales Pvt Ltd. is an
authority within the meaning of Article
12 of the Constitution, nor it is alleged
that there is any violation of any
statutory provisions in the present case.
No statutory duty on the respondents
have been pointed out which have been
violated by it.

In view of the foregoing discussions, we
are of the view that no grounds have
been made out to issue any mandamus
to a purely private body namely; i.e.
Commercial Auto Sales Pvt Ltd. in the
facts of the present case. We, however,
observe that it is open for the petitioner
to take such civil or criminal action
against the private body which may be
permissible under law.
Case law discussed:
AIR 2007 SC 1349; AIR 1977 Alld, 539; AIR
1969, SC 1306; (2003) 10 SCC 733.

## Text

3 All] Dharmendra Kumar Yadav V. Manager, Commercial Auto Sales (Private) Limited 1375
contention of the petitioner, thus, that the
impugned order has been passed without
any material and is arbitrary, is rejected.

20. The writ petition lacks merit and
is, accordingly, dismissed. There shall be
no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE S.S. TIWARI, J.

Civil Misc. Writ Petition No. 66283 of 2010

Dharmendra Kumar Yadav
 ...Petitioner
Versus
Manager, Commercial Auto Sales
(Private) Limited
 ...Respondent

Counsel for the Petitioner:
Sri M.A. Siddiqui

Counsel for the Respondent:

........................

Constitution
of
India,
Art
226Maintainability-Writ
Petition
against
Private body-not within meaning of
State-nor performing Statutory dutyheld-petition against Commercial Auto
Sales (Pvt.)-not maintainable.

Held: Para 8 and 12

It is not the case of the petitioner that
the Commercial Auto Sales Pvt Ltd. is an
authority within the meaning of Article
12 of the Constitution, nor it is alleged
that there is any violation of any
statutory provisions in the present case.
No statutory duty on the respondents
have been pointed out which have been
violated by it.

In view of the foregoing discussions, we
are of the view that no grounds have
been made out to issue any mandamus
to a purely private body namely; i.e.
Commercial Auto Sales Pvt Ltd. in the
facts of the present case. We, however,
observe that it is open for the petitioner
to take such civil or criminal action
against the private body which may be
permissible under law.
Case law discussed:
AIR 2007 SC 1349; AIR 1977 Alld, 539; AIR
1969, SC 1306; (2003) 10 SCC 733.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard, learned counsel for the
petitioner.

By this petition, petitioner has prayed
for following reliefs:

"(i) issue a writ, order or direction in
the nature of mandamus commanding the
respondent not to take forcibly possession
of Truck no. UP-70-AT-7959 through their
re-possession agents.

(ii) issue any other suitable writ, order
or directionwhich this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.

(iii) To award the cost of the writ
petition in the favour of the petitioner."

2. The petitioner has taken a loan of
Rs. 10 lacs in the month of November,
2007 from the respondent Commercial
Auto Sales (Pvt) Ltd for purchase of a
Truck which was to be repaid in 44
instalments upto 2011. Petitioner's case is
that certain default was committed in
depositing the loan, hence the truck which
was financed by the respondent was
repossessed
by
the
agents
of
the
respondent. Petitioner's case is that a letter
1376 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
dated 21/9/2010, has been issued by the
respondent to all repossession agents that
an amount of Rs. 1 lac has been deposited
vide Cheque dated 20/10/2010, and the
next installment be paid by 02/10/2010.
The letter advised that the above vehicle be
not held up up to 03/10/2010. Petitioner
has
also
filed
an
application
for
impleadment of the State of U.P. through
the Collector Allahabad and the Deputy
Inspector General of Police as respondent
nos. 2 and 3. In the writ petition,
allegations have been made against the
respondent Commercial Auto Sales Pvt.
Ltd and its agent which is a private
concerned.

3. Learned counsel for the petitioner
on a querry made by the Court that how a
writ petition can be entertained against a
purely private body, has relied on the
judgement of the Apex Court in Manager,
ICICI Bank Ltd. Vs. Prakash Kaur &
Ors, AIR 2007 SC 1349, and Full Bench
judgment of this Court reported in Aley
Ahmad Abidi Vs. District Inspector of
Schools, Allahabad & Ors, AIR 1977
Alld, 539.

4.

We
have
considered
the
submission of the learned counsel for the
petitioner and perused the record.

5. As observed above, the only
allegations made in the writ petition are
against the Commercial Auto Sales Pvt
Ltd, which is a private body and its agent
who had once repossessed the vehicle.
Although, an application for impleadment
has been moved for impleading the State
of U.P. and D.I.G. of Police, but there are
no allegations of any kind made against
any State Authorities or Police authorities
so as to implead them in this writ petition.
No case has been made out for impleading
the State of U.P. and D.I.G. of Police,
hence the Impleadment application is
rejected.

6. The jurisdiction of High Court to
issue writ under Article 226 of the
Constitution of India has come up for
consideration on several occasions before
the Apex Court and this Court in Praga
Tools Corporation Vs. C.V. Imanual &
Ors, AIR 1969, SC 1306.The Apex Court
considered the issue of issuing writ petition
under Article 226 of the Constitution
against a registered Company incorporated
under the Indian Companies Act, 1913.
Following was laid down in paragraphs 6
and 7.

"6. In our view the High Court was
correct in holding that the writ petition
filed under Art. 226 claiming against the
company mandamus or an order in the
nature of mandamus was misconceived
and not maintainable. The writ obviously
was claimed against the company and not
against the conciliation officer in respect of
any public or statutory duty imposed on
him by the Act as it was not he but the
company who sought to implement the
impugned agreement. No doubt, Art. 226
provides that every High Court shall have
power to, issue to any person or authority
orders and writs including writs in the
nature of habeas corpus, mandamus etc., or
any of them for the enforcement of any of
the rights conferred by Part III of the
Constitution and for any other purpose.
But it is well understood that a mandamus
lies to secure the performance of a public
or statutory duty in the performance of
which the one who applies for it has a
sufficient
legal
interest.
Thus,
an
application for mandamus will not lie for
an order of restatement to an office which
is essentially of a private character nor can
3 All] Dharmendra Kumar Yadav V. Manager, Commercial Auto Sales (Private) Limited 1377
such an application be maintained to
secure performance of obligations owed by
a company towards its workmen or to
resolve any private dispute. [See Sohan Lal
v. Union of India,1957 SCR 738=(AIR
1957 SC 529)]. In Regina v. Industrial
Court,1965-1 QB377, mandamus was
refused against the Industrial court though
set up under the Industrial Courts Act,
1919 on the ground that the reference for
arbitration made to it by a minister was not
one under the Act but a private reference.
"This Court has never exercised a general
power" said Bruce, J., in R. v. Lewisham
Union,1897-1 QB 498,501 "to enforce the
performance of their statutory duties by
public bodies on the application of
anybody who chooses to apply for a
mandamus. It has always required that the
applicant for a mandamus should have a
legal and a specific right to enforce the
performance of those duties". Therefore,
the condition precedent for the issue of
mandamus is that there is in one claiming
it a legal right to the performance of a legal
duty by one against whom it is sought. An
order of mandamus is, in form, a command
directed to a person, corporation or an
inferior tribunal requiring him or them to
do a particular thing therein specified
which appertains to his or their office and
is in the nature of a public duty. It is,
however, not necessary that the person or
the authority on whom the statutory duty is
imposed need be a public official or an
official body. A mandamus can issue, for
instance, to an official of a society to
compel him to carry out the terms of the
statute under or by which the society is
constituted or governed and also to
companies or corporations to carry out
duties placed on them by the statutes
authorising
their
undertakings.
A
mandamus would also lie against a
company constituted by a statute for the
purposes
of
fulfilling
public
responsibilities. [CF. Halsbury's Laws of
England, (3rd ed.) Vol. 11, p. 52 and
onwards].

7. The company being a non-statutory
body and one incorporated under the
Companies Act there was neither a
statutory nor a public duty imposed on it
by a statute in respect of which
enforcement could be sought by means of
a mandamus, nor was there in its workmen
any
corresponding
legal
right
for
enforcement of any such statutory or
public duty. The High Court, therefore,
was right in holding that no writ petition
for a mandamus or an order in the nature
of mandamus could lie against the
company."

7. The Apex Court in Federal Bank
Ltd. Vs. Sagar Thomas & Ors, (2003) 10
SCC 733, again considered the scope of
issuance of writ under Article 226 of the
Constitution against a private Bank.
Following was laid down in paras 27 and
33.

"27. Such private companies would
normally not be amenable to the writ
jurisdiction under Article 226 of the
Constitution. But in certain circumstances
a writ may issue to such private bodies or
persons as there may be statutes which
need to be complied with by all concerned
including the private companies. For
example, there are certain legislations like
the Industrial Disputes Act, the Minimum
Wages Act, the Factories Act or for
maintaining proper environment say Air
(Prevention and Control of Pollution) Act,
1981 or Water (Prevention and Control of
Pollution) Act, 1974 etc. or statutes of the
like nature which fasten certain duties and
responsibilities
statutorily
upon
such
1378 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
private bodies which they are bound to
comply with. If they violate such a
statutory provision a writ would certainly
be issued for compliance of those
provisions. For instance, if a private
employer dispense with the service of its
employee in violation of the provisions
contained under the Industrial Disputes
Act, in innumerable cases the High Court
interfered and have issued the writ to the
private bodies and the companies in that
regard. But the difficulty in issuing a writ
may arise where there may not be any noncompliance or violation of any statutory
provision by the private body. In that event
a writ may not be issued at all. Other
remedies, as may be available, may have to
be resorted to.

33. For the discussion held above, in
our view, a private company carrying on
banking business as a scheduled bank,
cannot be termed as an institution or
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 don't 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 puts 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. 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. That
being the position, the appeal deserves to
be allowed."

8. It is not the case of the petitioner
that the Commercial Auto Sales Pvt Ltd. is
an authority within the meaning of Article
12 of the Constitution, nor it is alleged that
there is any violation of any statutory
provisions in the present case. No statutory
duty on the respondents have been pointed
out which have been violated by it. The
Full Bench judgment of Aley Ahmad
Abidi (supra) relied on by the learned
counsel for the petitioner lays down that a
writ can also be issued to a person or body
which is non-statutory, where such body is
entrusted with performance of statutory
duties or conferred with statutory powers.
Following was laid down in para 28.

"28.Sri Hyder also fairly conceded
that in the light of the pronouncement of
the Supreme Court in Praga Tools
Corporation's case (AIR 1969 SC 1306)
(supra)
even
if
the
Committee
of
Management of a recognised Intermediate
college is held to be a non-statutory body,
such committee will still be amenable to
the Writ jurisdiction of the High Court,
where such Committee is entrusted with
performance
of
statutory
duties
or
conferred with statutory powers."

9. Judgement on which much
reliance has been placed by the learned
counsel for the petitioner is Manager ICICI
Bank Ltd (supra). The said case arose out
of Criminal Misc. Writ Petition No.
11210/2006 filed in the High Court. The
allegation of writ petitioner in the aforesaid
case was that the Bank and it officials had
3 All] Smt. Krishna Devi V. Additional District Judge, Kanpur Nagar and others
1379
systematically conspired to cheat the
petitioner by advancing the loan for
purchase of the truck. Petitioner claims to
have sent an application to the police
authorities to register an F.I.R. and when
no steps had been taken, criminal writ
petition was filed in the High Court for
issuing
direction
to
register
first
information report and with certain other
reliefs. The High Court directed the Senior
Superintendent
of
Police
to
ensure
registration of the case by a competent
Police Officer. The said order was
challenged by the Bank. The Apex Court
allowed the appeal by directing that on
deposit of Rs. 50,000/- the Bank shall
forthwith release the truck of the petitioner
which was seized. The apex Court in the
said
context
has
made
following
observation in paragraph 18.

"18. Before we part with this matter,
we wish to make it clear that we do not
appreciate the procedure adopted by the
Bank in removing the vehicle from the
possession of the writ petitioner. The
practice of hiring recovery agents, who are
musclemen, is deprecated and needs to be
discouraged. The Bank should resort to
procedure recognized by law to take
possession of vehicles in cases where the
borrower may have committed default in
payment of the instalments instead of
taking resort to strong arm tactics.

There shall be no order as to costs.

Appeal allowed."

10. There cannot be any dispute to
the proposition as laid down by the Apex
Court in the above case. The Bank has to
resort to the procedure recognised by law
to take possession of the vehicle. However,
in case the Bank commits any violation or
commits an offence, it is always open for
an aggrieved person to take such criminal
or civil action as permissible under law.

11. In view of the aforesaid, the
above case which arose out of criminal
writ petition does not help the petitioner in
the present case.

12. In view of the foregoing
discussions, we are of the view that no
grounds have been made out to issue any
mandamus to a purely private body
namely; i.e. Commercial Auto Sales Pvt
Ltd. in the facts of the present case. We,
however, observe that it is open for the
petitioner to take such civil or criminal
action against the private body which may
be permissible under law.

13. With the aforesaid observations,
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2010

BEFORE
THE HON'BLE SHASHI KANT GUPTA, J.

Civil Misc. Writ Petition No. 70333 of 2010

Smt. Krishna Devi

 ...Petitioner
Versus
Additional District Judge, Kanpur Nagar
and others

 ...Respondents

Counsel for the Petitioner:
Sri K.P. Shukla
Sri Arvind Kumar Tewari

Counsel for the Respondents:
Sri Atul Dayal

U.P. Urban Building (Letting and Rent)
Act No. 13 of 1972-Section-12, 13Declaration
of
Vacancy
resisted
by
petitioner
on
ground
of
limitation-