Calcutta High Court
Orient Longman Ltd. vs Jayati Laila Kabir And Ors. on 13 June, 1988
Equivalent citations: AIR1988CAL410, AIR 1988 CALCUTTA 410, (1988) 2 CAL HN 23 (1988) 2 CALLJ 1, (1988) 2 CALLJ 1
Author: Monoj Kumar Mukherjee
Bench: Monoj Kumar Mukherjee
JUDGMENT Monoj Kumar Mukherjee, J.
1. This appeal is directed against the judgment and order dated February 24, 1988 passed by a learned Judge of this Court disposing of a petition under Article 226 of the Constitution of India. Undisputed facts leading to the filing of the appeal are as under.
2. The Late Moulana Abdul Kalam Azad, the great freedom fighter and Statesman, had during his lifetime dictated notes of his varied experiences to Professor Humayun Kabir, the eminent educationist, as to show how India had attained freedom and the part played by him and other leaders in the struggle for freedom. On the basis of the above notes Prof. Kabir composed a book which was approved by Moulana Azad. He (Moulana Azad) however felt that some thirty pages of the book dealing with incidents and reflections of a personal character should not be published for the time being. He therefore directed that a copy each of the completed text should be deposited under sealed cover in the National Archives, New Delhi and the National Library, Calcutta and should be opened thirty years after his death. At the same time he gave approval to the publication of selected substantial- portions of the book and wished its publication in November, 1958 to synchronise with his seventieth birthday. Unfortunately however this wish could not be fulfilled as he died on February 22, 1958.
3. After his death Prof. Kabir wrote to the Director, National Archives of India, New Delhi and the Librarian, National Library, Calcutta on March 25, 1958 informing them of the wishes of the late Moulana Azad and enquiring as to whether they would be prepared to accept the complete text in sealed cover on the explicit understanding that the seal would be opened only on February 22, (988. On theit acceptance of the above. Prof. Kabir sent copies of the complete text under sealed cover to them reiterating that the seais were not to be broken till February 22, 1988. Thereafter Prof. Kabir, as composer of the hook, entered into an agreement with Orient Longmans Private Limited -- now Orient Longman Limited -- a publishing concern (hereinafter referred to as the 'Publishers') for immediate publication of the book (excluding the thirty pages) under the title "India Wins Freedom". One of the terms of the agreement reads that the Publishers shall have the first option to publish the complete book as originally composed and lying under sealed cover with the National Archives, New Delhi and the National Library, Calcutta when the seals are broken on February 22, 1988. In terms of the agreement "India Wins Freedom" was brought out by the Publishers first in January, 1959 and thereafter it was reprinted and reissued by them on a number of occasions.
4. When the date for opening the sealed covers was fast approaching Ms. Jayati Laila Kabir (hereinafter referred to as the 'petitioner'), daughter of Prof. Kabir (since dead) met the Director of National Archives. New Delhi and requested him to inform her as to what steps were being taken for opening of the sealed covers on February 22, 1988. She followed it up by a letter dated February 12, 1988 addressed to the said Director enquiring of him about the manner in which the function of opening the seal was being planned Immediately thereafter -- on February 15, 1988 to be precise - Sri R. C. Tripathi, Joint Secretary in the Ministry of Human Resource Development, Department of Culture, Government of India wrote to Professor Ashin Dasgupta, Director, National Library, Calcutta to say that a decision had been taken that both the self) should be opened simultaneously at New Delhi on February 22, 1988. Prof. Dasgupta was accordingly asked to take all necessary steps to bring the set lying in the custody of the National Library, Calcutta with proper care and security to New Delhi and safe deposit it with National Archives so that the two sets could be opened together on February 22. 1988. A request was also made to Prof. Dasgupta to be present on the occasion of the opening of the seals.
5. In the meantime, on February 19, 1988 the petitioner moved the writ petition in which Union of India, Prof. Ashin Dasgupta. Librarian of the National Library and the Publishers were arrayed as respondents 1 to 4 respectively, assailing the above decision and direction of the Government of India on the ground that they were contrary to the intention of both Moulana Azad and Prof. Kabir that the sealed covers should be opened at the respective places where they were kept. The petitioner apprehended that if the sealed cover kept at National Library was taken to Delhi and both were opened there, they might be tampered with or mutilated before it reached the people of India. By filing the writ petition she accordingly prayed for the following reliefs:
"(a) A writ in the nature of Mandamus commanding the Respondents Nos. 1 to 3 to withdraw, rescind and/or cancel the purported decision of the Union of India to remove the manuscript lying in the National Library, Calcutta to New Delhi or from arranging to break open the seals at New Delhi and further commanding the Respondents Nos. 1 to 3 and/or their subordinates, associates and agents from taking any steps for removal of the sealed cover containing a copy of the complete manuscript of Moulana Azad's autobiography, kept with the Respondents Nos. 2 and 3, at the National Library, Calcutta to New Delhi and further commanding that the seals thereof be broken by the respondents Nos. 2 and 3 at the National Library at Calcutta in presence of Shri Z. Kabir, son of late Jehangir Kabir, as the petitioner's nominee and to act in accordance with law :
(b) A direction upon the Respondents Nos. 1, 2 and 3 to produce the records connected with this case."
6. On that petition the learned Judge passed an ex parte interim order staying the impugned decision and direction until further orders. The writ petition was finally disposed of with the following observations and orders :
"(a) There will be no impediment on the part of the Director of the National Library, Calcutta, in breaking open the seals immediately to make the same available to the public through press and mass media. I am not adjudicating the rights of M/s. Orient Longman Private Ltd. regarding publication and/or the rights of the heirs of late Moulana Azad and Late Prof. Humayun Kabir in the matter and/or to lay down the terms and conditions of such publication and this would be governed by the terms and conditions of the agreement, if at all. The right of the people to know the contents and the right of publication are two different things and the right of publication and the right of goodwill is not the subject-matter of this writ petition.
I make it clear that I am not passing any order adjudicating any of such rights of the parties excepting that I direct that the seal should be broken immediately at Calcutta and should be made known to the public. However, the only requirements that (he Director of the National Library is to fulfil is that before the seal is broken he shall invite the heirs of late Moulana Azad andlate Prof. Kabir as also eminent historians available in the city, according to his own choice and also Mr. Kulwant Singh, who is stated to be the present Private Secretary to his Excellency, the Governor of West Bengal and who it is stated was the Private Secretary of the Late Prof. Kabir at the relevant time, and/or any other educationalist or persons of high status.
(b) After the seal is broken, as directed above, the Director shall make a xerox copy of the manuscripts and keep one such copy under the joint seals of the Director and the heirs of Late Moulana Azad and late Prof. Kabir and the same be kept in the custody of the authorities of the National Libraries and after the book is published by M/s. Orient Longman or any other publishers after resolving the dispute compare the publication along with the manuscript so that there may not be any apprehension in the mind of the public that anything has been done or any interpolation has been done and the people may think that the said publication was an untampered historical events on the basis of the said manuscripts.
Before I part with this matter, one thing must be made clear that the press have a right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India and the right of the press in such matter should not be taken away. As such, immediately after the seal is broken and xerox copies are made and kept in a sealed cover, the Director will hold a press conference and would disclose the contents of the documents in such a manner as the Director may think fit and proper so that the people may know the gist of the substance through the press without prejudice to the rights and contentions of the parties in any other proceedings."
7. Feeling aggrieved thereby the Publishers have filed the present appeal.
8. Mr. Reddy and Mr. Sarkar, the learned Advocates appearing for the Publishers raised the following three points in support of the appeal :
i) the writ petition was not maintainable as the reliefs sought for therein were based on and arose out of a contract;
ii) the learned Judge acted illegally and without jurisdiction in framing and deciding issues which were wholly irrelevant and uncalled for in the context of the case made out in the writ petition; and
iii) the learned Judge could not have passed orders and issued directions which were not even asked for nor were consequential to the reliefs claimed in the writ petition.
9. Since the maintainability of the writ petition itself is under challenge let us consider this point first. In elaborating their contention in this regard it was submitted on behalf of the Publishers that the various averments made in the petition clearly indicated that the petitioner was seeking to exercise her alleged right arising out of and relating to the contract of bailment entered into by and between Prof. Kabir on the one hand and the Director of National Archives and the Librarian of National Library on the other; and such a right, according to the Publishers, could not be enforced through a petition under Article 226 of the Constitution. As a corollary thereto, it was submitted that while taking the decision that the manuscript lying in Calcutta was to be taken to Delhi for opening of the seals on February 22, 1988, the Government was exercising its powers as a bailee and not its Governmental powers and consequently a petition under Article 226 of the Constitution to stop the Government from exercising such power could not be maintained even if the action was illegal or arbitrary. Mr. Dipankar Ghose, the learned Advocte appearing for the Union of India, besides supporting the above contention of the Publishers, submitted that a Writ of Mandamus as sought for by the petitioner could be issued only in a case where the State failed to perform its statutory duties and since in the instant case the duties that were to be performed did not arise from any statute no such writ could be prayed for or issued.
10. In combating the above contentions, Mr Pradip Ghosc, appearing on behalf of the petitioner, submitted that as the decision to open both the sealed covers in New Delhi was taken by a public authority and as the decision was arbitrary, the question whether the State was acting in breach of contract or not was immaterial, for any arbitrary action of the State could be assailed in a writ petition. That apart, Mr. Pradip Ghose submitted that the impugned action of the Government was not referable and had no relevance to the correspondences that passed on between the Government and Mr. Kabir.
11. Before we proceed to consider the rival contentions of the parties in the light of the various decisions cited at the Bar it will be necessary at this stage to consider the materials on record. In his letter dated March 25, 1958 addressed to the Director of National Archives of India, New Delhi, Prof. Kabir wrote--
"Dear Sir, Maulana Azad had planned to write an autobiography in three volumes and was able to complete before his death the second volume comprising his reading of events from 1937 to 1948. When the text was ready he felt that there were judgments on recent events as well as men still living or recently dead which were not yet ripe for publicatioa At the same time he fell that he would like to leave for the future historian a record of events and his appreciation of developments in Indian Politics during this period. He therefore asked me to preserve the complete text in sealed cover and hand it over to the National Archives, New Delhi with instructions that the seal is not to be broken till 30 years after his death. I am accordingly writing to enquire if you would be prepared to accept this sealed cover on the explicit understanding that the seal will be opened only on 22nd February, 1988.
On hearing from you I shall arrange to send the cover to you along with its contents.
An identical letter is being addressed to the Librarian, National Library, Calcutta.
Yours faithfully, Sd/- Humayun Kabir The Director, National Archives of India, New Delhi.
The above letter was favourably responded to by the Director of National Archives as would be evident from the other letter dated April 3, 1958 written by Prof. Kabir which reads as follows :
"Dear Roy, Thank you for your letter No. F.3-4/58-R.1. dated the 27th March 1958. I am sending the sealed cover containing Moulana Sahib's manuscript As I have already informed you, the seals are not to be broken till the 22nd February 1988. When the seals are broken, Orient Longmans or their successors should have the first option in publishing a complete version of Mautana Sahib's autobiography, incorporating the passages which will then be released to the public. In case Orient Longmans do not publish such a version, the National Archives, in consultation with the National Library and the Indian Council for Cultural Relations, may arrange for the publication of such a complete text. Yours sincerely, Sd/- Humayun Kabir.
Shri S. Roy, National Archives of India, New Delhi.
12. From the above letters it is evidently clear that the sealed texts were handed over by Prof. Kabir to the Director of National Archives, New Delhi and the Librarian of the National Library for safe custody on the express understanding that the same would not be opened till 30 years after the death of Maulana, Azad, that is, till February 22, 1988 and they agreed to keep the same in their custody on such specific understanding. The letter dated February 15, 1988 issued by the Joint Secretary of the concerned Ministry clearly indicates that in terms of the above agreement the Government decided to open both the sealed covers on February 22, 1988 at New Delhi.
13. The sum and substance of the grievance of the petitioner in the writ petition is that the above decision of the Central Government to open both the sealed covers in Delhi was violative of the intention of Moulana Azad and Prof. Kabir and the instructions of the latter, as would be evident from the following averments made in paragraphs 9 and 10 of the writ petition :
"9. That the obvious intention in keeping the two copies of the manuscript of the complete book under sealed cover, at two different places, was that the same should not be tampered with. In order to ensure that such an eventuality did not take place, instructions were given to keep the two manuscript in two separate places, which were far apart upon the explicit understanding that the seals of the two sealed covers would be opened on 22nd February, 1988.
10. From the above it would be abundantly clear that it was the intention of Moulana Azad and your petitioner's late father that the sealed cover kept at the National Archives at Delhi was to be opened in Delhi and the sealed cover kept with the National Library at Calcutta, should be opened in Calcutta"
14. From the averments made in the writ petition and the reliefs sought for it would thus be seen that the case made out by the petitioner, at its highest, is that the Government acted beyond its power and in breach of its duty under the agreement in deciding to open both the seals in New Delhi and issuing necessary directions for that purpose to the Director of the National Library, Calcutta. The agreement in question arrived at through correspondences is clearly one of bailment within the meaning of Section 148 of the Contract Act inasmuch as the texts in question were delivered by Prof. Kabir (bailor) to the Director of National Archives and the Librarian, National Library (bailee) to keep the same in safe custody for 30 years and on completion of the said period to dispose of the same in accordance with the directions of Prof. Kabir as contained in the letters dated March 25 and April 3, 1958. According to the petitioner the bailee was not acting in accordance with the contract of bailment whereby it was obligated to open one of the texts in Calcutta. To put it differently the action of the bailee violated Section 160 of the Contract Act.
15. Having carefully perused the writ petition including the grounds taken and reliefs sought for therein in the light of the correspondences that passed on between Prof. Kabir and the Director of National Archives and the agreement entered into by and between the Publishers and Prof. Kabir and accepting the case of the petitioner in its entirety we are of the opinion that the only conclusion that can be drawn therefrom is that the Government failed to perform its duty as a bailee under a contract of bailment.
16. The next question is whether such contractual obligation can be enforced by the High Court in its writ jurisdiction and we proceed to find an answer to the question keeping in view the various decisions cited at the Bar. To support their contention that the answer must be in the negaitve, reliance was first placed on behalf of the Publishers on the following lines from the judgment of the Supreme Court in the case of Kulchhinder Singh v. Hardayal Singh, :-
".......The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all embracing promise to give a quota to the existing employees. At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of Article 226 is unavailable to enforced contract qua contract. We fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under Article 226 in the event of a breach of a contract, by-passing the normal channels of civil litigation. We are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty. What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction."
17. The next case cited on behalf of the Publishers was that of Radhakrishna Agarwal v. State of Bihar, . In that case the State of Bihar leased out some forest lands to the appellants therein to collect and exploit sal seeds for 15 years on payment of royalty at a certain rate. A few years later when the State revised the rate of royalty and thereafter cancelled the lease for breach of certain conditions thereof the appellants challenged the orders of revision of rate and cancellation of lease through writ petitions. The Patna High Court dismissed the writ petitions as not maintainable and aggrieved thereby the appellants moved the Supreme Court. It was urged on their behalf that the Stale, acting in its executive capacity through its Government or its officers, even in the contractual field, could not escape the obligations imposed upon it by Part II of the Constitution, particularly Article 14 thereof. In repelling the above contention the Supreme Court relied upon its earlier judgment in the case of Erusian Equipment and Chemicals Limited v. State of West Bengal, and reiterated that at the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all the question of complying with Article 14 of the Constitution came in, for at that stage the State acted purely in its executive capacity and was bound by the obligations which dealings of the State with the individual citizens import into very transaction entered into in exercise of its constitutional powers. But after the State or its agents had entered into the field of ordinary contract, the relations were no longer governed by the constitutional provisions but by the legally valid contract which determined rights and obligations of the parties. According to the Supreme Court, no question arose of violation of Article 14 or of any other constitutional provision when the State or its agents purporting to Act within that field performed any act. The Supreme Court observed that in that sphere they could only claim rights conferred upon them by contract and were bound by the terms of the contract only, unless some Statute stepped in and conferred some special statutory power or obligtion on the State in the contractual field, which was apart from contract. The Supreme Court next considered the various casesrelied upon by the appellants including D.'F. O. South Kheri v. Ram Sanehi Singh, , and distinguished them with the observation that none of them laid down that when the State or its officers purported to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties was broken by the action complained of, the appropriate remedy was by way of a petition under Article 226 of the Constitution and not a ordinary suit. On the other hand, the Supreme Court pointed out, there was formidable array of authority against any such proposition and discussed some of them.
18. On behalf of the Union of India reliance was also placed upon the case of Bihar E. G. F. Co-op. Society v. Siphahi Singh wherein it has been laid down that a writ of mandamus can be granted only in a case where there was a statutory duty imposed upon the officer concerned and there was a failure on the part of that officer to discharge the statutory obligation. It has been observed therein that the chief function of a writ is to compel performance of public duties prescribed by Statute and to keep subordinate tribunals and officers exercising public functions within the limits of their jurisdiction and it follows therefore that in order that mandamus may be issued to compel the authorities to do something it must be shown that there is a Statute which imposes a legal duty and the aggrieved party has a legal right under the Statute to enforce its performance.
19. The only other decision on the point now under consideration which was cited on behalf of the Publishers is that of a Division Bench of this Court in the case of Hindusthan Petroleum Corporation v. S. S. Ganeriwala. reported in (1987) 91 Cal WN 217. In that case the writ petitioner entered into an agreement with the Corporation in 1978 and in terms thereof obtained a licence to operate a petrol and diesel pumping station belonging to the Corporation. The agreement prescribed various mutual rights and obligations including a right to terminate the agreement without any notice in the event of any act or default on the part of the licensee in respect of maintaining the products free from contamination or where such act or default was considered to be prejudicial to the interest and good name of the Corporation. In 1984, an officer of the Corporation conducted a surprise check at the pumping station and found certain discrepancies. Relying upon the inspection report of the Officer the Corporation suspended the supply of petrol and high-speed diesel oil to the licensee and asked him to show cause why the licence should not be terminated pursuant to the terms of the agreement because of the lapses and defaults found on inspection. The show cause notice and the order of suspension was challenged by the licensee in a writ petition. A learned Judge of this Court partly allowed the writ petition and set aside the order of suspension on the ground that it was not only arbitrary but affected the licensee's right to carry on trade and business guaranteed under Article 19(1)(g) of the Constitution. Aggrieved thereby the Corporation preferred an appeal before the Division Bench and contended, inter alia, that where parties to the agreement were acting within the realm thereof, the High Court should not in exercise of its power under Article 226 of the Constitution entertain any application for enforcement of any alleged right arising out of and based on such an agreement. In controverting the above contention it was submitted on behalf of the licensee that when one of the parties to the agreement was the State or its instrumentality they were required to act reasonably arid within their powers so that any arbitrary act, though committed in the realm of contract, was liable to be challenged under Article 226 of the Constitution. After considering various cases of the Supreme Court, including Radhakrishna Agarwal (supra) the Bench held :
"A right derived from an agreement or a contract may be infringed by breach thereof. In all such cases the remedy available is the usual remedy under the laws, namely specific performance or damages. Irrespective of whether the party committing the breach is a private individual or the State and/or its instrumentalities, in all such cases the parties to the agreement or contract having entered into a contractual relationship they would be governed exclusively by the laws relating to contract. But at the same time a right derived from an agreement with the State may as well be infringed by the State by way of breach thereof but by some administrative action taken in exercise of any statutory power or in exercise of its soveriegn power. Simple illustration in our opinion would explain the position. A lease or interest derived under the lease obtained from the State may itself be the subject-matter of acquisition or requisition by the State and such acquisition or requisition would certainly infringe the lease-holder's right under the lease. Similarly with ever increasing statutory control over the economic processes it is often to be found that statutory prescriptions are often so far imposed on the terms of an agreement or a contract between the parties, particularly wherein the State or its instrumentality is a party thereto and in such cases the right derived from an agreement may be infringed in exercise of powers under the agreement but subject to the statutory limitations. The best illustrations in this regard are various control legislations like mines and minerals regulations. In this latter group of cases where the right of a citizen is infringed a writ proceeding would be available if it can be established that such infringement is in breach of the law notwithstanding the fact that the right emanates from the agreement. The fundamental distinction in all these cases is that the right to the relief arises not for any breach of the agreement pure and simple but for breach of law."
and upheld the contention raised on behalf of the appellant that on the case made out in the writ application such an application was not maintainable.
20. To support his contention that when one of the parties to the agreement was the State it was required to act fairly and reasonably and in case it failed to do so, its arbitrary act, even if committed in the realm of contract, could be challenged under Article 226 of the Constitution, Mr.Pradip Ghose also relied upon some decisions of the Supreme Court and a decision of this Court. He first drew our attention to the case of D.F.O. South Kheri v. Ram Sanehi, (supra). In that case it was held that even if the right to relief arose out of an alleged breach of contract a petition under Article 226 of the Constitution was maintainable where the action challenged was of a public authority invested with statutory power. The case therefore is not an authority for the proposition that where there is a breach of agreement pure and simple, remedy by way of an application under Article 226 of the Constitution is available. Mr. Ghose next referred "to the case of Ramana v. I. A. Authority of India, . The case is clearly distinguishable for there the Supreme Court was not called upon to decide upon the question whether for breach of terms of a concluded contract a writ petition was maintainable or not. All that was decided therein was that the State was obligated to act reasonably and fairly while entering into a contract. In other words the observations made in that case related to the obligations of the State relating to their conduct at the threshold. In fact Ramana's case (supraj reiterated the principles earlier laid down in the case of Radhakrishna (supra) which we have already discussed at length.
21. Mr. Ghose then drew our attention to the judgment of a single Judge of this Court in the case of Central Group v. CM. D. Authority, reported in (1982) 2 Cal HN 90. Undoubtedly the above case supports the contention of Mr. Ghose, for it was laid down therein that any arbitrary action of the State, even if it stemmed from a concluded contract was assailable in the writ jurisdiction but then the principle so laid down is not good law, as it was expressly overruled by the Division Bench of our Court in the case of Hindusthan Petroleum Corporation (1987-91 Cal WN 217) (supra). It is pertinent to observe here that a contention identical to the one raised by Mr. Ghose before us was negatived in the case of Hindusthan Petroleum Corporation (supra) with these words :
"Here in the present case even assuming that the appellant Corporation is an instrumentality of the State, the case at its highest made out by the writ petitioner is that the Corporation acted beyond its powers under the agreement in directing suspension of supply of its product for sale through the writ petitioner. It is not the case of the writ petitioner that such an instrumentality of the State issued that direction in exercise of any statutory power or in exercise of any sovereign power of the State delegated to it. It is an act qua licensor and, as such in purported exercise of powers under the agreement or at least in exercise of powers reserved unto itself as a party to the agreement. It is wholly irrelevant as to whether the impugned act is an arbitrary act or an act in exercise of the powers under the agreement so long it remains an act in the realm of the contract between the parties. Since the relief claimed emanates from the realm of contract, a proceeding under Article 226 of the Constitution is hardly an appropriate remedy."
The above observations, with which we respectfully agree, are sufficient to negative the contention of Mr. Ghose regarding maintainability of the writ petition. But then Mr. Ghose submitted that the above view expressed by this Court, relying upon the earlier view of the Supreme Court stands modified by subsequent decisions of the Supreme Court; and to substantiate his submission Mr. Ghose first relied upon the following passages from the decision of the Supreme Court in the case of LIC of India v. Escorts Ltd, :
"It was however, urged by the learned Counsel for the company that the Life Insurance Corporation was an instrumentality of the State and was, therefore, debarred by Article 14 from acting arbitrarily. It was, therefore, under an obligation to state to the Court its reasons for the resolution once a rule nisi was issued to it. If it failed to disclose' its reasons to the Court, the Court would presume that it had no valid reasons to give and its action was, therefore, arbitrary. The learned counsel relied on the decisions of this Court in Sukhdev Singh , Maneka Gandhi , International Airport Authority and Ajay Hasia . The learned Attorney General on the other hand, contended that actions of the Slate or an instrumentality of the State which do not property belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. He relied on O'Reilly v. Mackman (1982) 3 All ER 1124, Davy v. Spelthorne, (1983) 3 All ER 278, I Congress del Partido. (1981) 2 All ER 1064, R. v. East Berkshire Health Authority, (1984) 3 All ER 425 and Radha Krishna Aggarwal v. State of Bihar, . While we do find considerable force in the contention of the learned Attorney General it may not be necessary for us to enter into any lengthy discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional law, Administrative Law and Public Law as the law in India in these branches has forged ahead of the law in England, guidedas we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English law. While we do not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution, we do not construe Article 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions.
For example, if the action of the State is political or sovereign in character, the Court will keep away from it. The Court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the Court, the Court may not ordinarily examine it unless the action has some public law character attached to it Broadly speaking. The Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the Company, like any other shareholder."
22. In our considered view the above quoted passages do not come in aid of Mr. Ghose in this, case; on the contrary, they support the contention of the Publishers and the Union of India. The nature and activity of the State in the iastant case cannot, by any stretch of imagination, be considered to come within the domain of public law nor was the State performing any governmental action while taking the impugned decision and issuing the impugned direction so as to make them amanable to the writ jurisdiction.
[Consequently, in view of the principle laid down by the Supreme Court in the above (quoted passages such action cannot be assailed in the writ jurisdiction. Reliance was also placed by Mr. Ghose on the judgment of the Supreme Court in the case of Central Inland Water Transport Corporation Ltd. v. Brojo Nath, . Having carefully gone through the above decision we do not find any observation made therein, which supports Mr. Ghose. In that case a clause in a contract of employment affecting a large section of employees was assailed in a writ petition on the ground that it was void under Section 23 of the Contract Act as being opposed to public policy. On behalf of the employer Corporation, which answered the description of 'State', it was submitted that the clause in question was part of a contract entered into by it in the course of trading activities and the Court therefore, ought not to interfere with it. It was further submitted that if the em ployees felt aggrieved they could at best file a civil suit for redressal of their grievances but no petition under Article 226 of the Constitution lay. In support of this contention reliance was placed on the case of Radha Krishna Agarwal (supra). The Supreme Court distinguished the case of Radha Krishna Agarwal with the following words :
"We fail to see what relevance that decision has to the case before us. Employees of a large organization form a separate and distinct class and we are unable to equate a contract of employment in a stereotype form entered into by "The State" with each of such employees with the "lease" executed in Radhakrishna Agarwal's case . Further, the contract or the lease between the parties in that case was a legally valid contract. In that case what the appellants were doing was to complain of a breach of contract committed by the State of Bihar acting through its officers. The contesting Respondents are not complaining of any breach of contract but their contention is that Rule 9(i) which is a term of their contract of employment is void. They are not complaining that the action of termination of their service is in breach of Rule 9(i). Their complaint is not merely with respect to the State action taken under Rule 9(i) but also with respect to the action of the State in entering into a contract of employment with them which contains such a clause or rather forcing upon them a contract of employment containing such a clause. As we have held earlier, Rule 9(i) is void even under the ordinary law of contracts."
The case is therefore an authority for the proposition that the State cannot incorporate a term in a contract of employment which was void under the ordinary law of contract and not for the proposition that an arbitrary action in breach of any concluded contract was assailable in the writ jurisdiction. From the various decisions cited before us, it thus appears that the principle laid down in the case of Radha Krishna Agarwal (supra) still holds the field.
23. Mr. Ghose also relied upon the cases of Kasturilal v. State of J. & K., , Union of India v. Godfrey Philips (I) Ltd., and Delhi Cloth and General Mills Limited v. Union of India, all of which relate to enforcement of a right based on promissory estoppel through writ petitions. The doctrine of promissory estoppel has no manner of application as the case presented before us is one relating to a contract pure and simple. That apart there are no facts pleaded in the writ application to invoke the doctrine of promissory estoppel.
24. For the foregoing discussions we are in complete agreement with the learned Advocates appearing for the Publishers and the Union of India that the petition under Article 226226 of the Constitution was not at all maintainable as the entire endeavour of the writ petitioner therein was to assail an alleged arbitrary action of the Union of India relating to a contract of bailment. This apart, as the alleged arbitrary action was not in its capacity qua Government far less in breach of any statutory duty, a writ of mandamus would not lie. The first contention raised in support of the appeal must therefore succeed.
25. In detailing their submissions on the other points it was urged on behalf of the Publishers that the learned Judge having observed "the scope of the writ application is whether the Central Government had any power to issue any such direction" could have, at best, quashed the same if it was found unsustainable; but the learned Judge went beyond his jurisdiction in going into and answering the question as to whether the Press had a right to know the contents of the sealed cover and then issuing directions for publication of its contents, which vitally affected their right to publish the entire text under the agreement with Prof. Kabir and the Copyright Act. It was further submitted that the view expressed by the learned Judge that the Press and the citizens had a fundamental right to know the contents of the sealed text as they were matters of public importance was not correct.
26. In view of our earlier finding that the writ petition is not maintainable, we need not dilate on or delve into the above questions. We may however point out that even if the finding of the learned Judge that the Press and the citizens of India had a right to know the contents of the sealed text is accepted as correct, still then the direction contained in the last paragraph of the order cannot be supported for, the writ petition was not filed by the Press or by any other person by way of a public interest litigation complaining that their fundamental right to know about the contents of the sealed manuscript had been curtailed by any arbitrary Governmental action. The Courts function to redress grievances of the people and to do justice in accordance with law. It necessarily follows that if and when a grievance is raised before it that somebody's legal right, be it constitutional, statutory or contractual, has been infringed the Court has not only the right but also a duty to remedy the wrong. In the instant case, as we have earlier pointed out, no grievance was raised from any quarters that the Government was not allowing them to know the contents of the sealed text. On the contrary, steps were being taken by the Government towards that end. Whether the steps so taken were strictly in accordance with the terms of the agreement with Prof. Kabir is another matter, and for reasons earlier mentioned this question cannot be decided in this jurisdiction.
27. On conclusion as above, we allow this appeal", set aside the impugned orders and directions and reject the writ petition.
28. There will be no order as to costs.
Sudhanshu Sekhar Ganguly, J.
29.1 agree.