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2024 (2) TMI 67 - HC - Indian LawsMaintainability of petition - 1st respondent company is a State under Article 12 of the Constitution of India or not - HELD THAT:- An anxious consideration given to the judgments of the Apex Court and the various High Courts on the question of how the issue whether an authority is an instrumentality of the State under Article 12 of the Constitution of India is to be determined. It is noticed that in the case of entities in different states which are similar in nature to the 1st respondent herein, cases have arisen before the respective High Courts on the question whether such bodies are instrumentality of the State within the meaning of Article 12. In the case of Asok Kumar Singh and others v. Bihar Industrial and Technical Consultancy Organisation Limited and others, the Patna High Court held that the BITCO is an instrumentality of the State, while the Bombay High Court in R.V Dnyansagar v. Maharashtra Industrial and Technical Consultancy Organisation Limited [2003 (2) TMI 353 - HIGH COURT OF BOMBAY] has held that the Maharashtra equivalent of the 1st respondent is not an instrumentality of the State. Though the State Government has only 3% share in the 1st respondent, it has a decisive representation in the Board by sending two directors out of twelve. Further, the policy decisions of the 1st respondent are controlled by the SIDBI which nominates 1/3rd of the Directors including the Chairman and the Managing Director. It is clear from a reading of the Articles of Association and the documents produced in the writ petition and in this writ appeal that the State and Central Governments themselves specifically consider the 1st respondent as a Central Government company. It is also discernible that the accounts of the 1st respondent are audited by the Comptroller and Auditor General of India treating it as a deemed Government company. It is recognised as an accredited Government agency for the purpose of public works in the State. The finding that the respondent company is not a State under Article 12 of the Constitution of India and that the writ petition is not maintainable is not correct position in law - the respondent company is an instrumentality of the Union of India under Article 12 of the Constitution of India and is, therefore, amenable to writ jurisdiction. The writ petition shall be placed before the learned single Judge for consideration on merits.
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