Hansaria, C.J:— Working women of India. What is the extent of right conferred on them by Article 21 of the Constitution is the main point for our consideration in this case? The expanded meaning being given to the word ‘life’ as embodied in this Article has required this consideration. Maneka Gndhi's case, AIR 1978 SC 597, paved the way for this journey which is still continuing. The other legal point we shall have to examine is whether they can enforce their right under the aforesaid Article against the opposite parties by approaching a writ Court.

2. Article 21 has been described by Bhagwati, J. (as he then was) in Francis Coralie v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746 as “most fundamental of Fundamental Rights”, (page 750). At page 752, it was stated that the “fundamental right to life ……….. is the most precious human right and ………… forms the are of all other rights”. In this connection, we may also note the following observations made by Pathak, C.J in para 7 of Kehar Singh v. Union of India, AIR 1989 SC 653:—

“To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the Courts to Art. 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.”

As fundamental rights guaranteed by other articles of the Constitution can be enjoyed by a person or a citizen only when he is alive, so, we say with respect, that what has been observed above is a truism.

3. The word ‘life’ in Article 21 has, however, not been understood only in the sense of protection of limbs. In the aforesaid case, Bhagwati, J. himself stated in paragraph 7 that right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life, such as, adequate nutrition, clothing and shelter over the head among some other named things. In paragraph 5 it had been earlier stated that right to life, being the are of all other rights, must be interpreted in a broad and expansive spirit so as to invest it with significance and vitality, which may endure for years and enhance the dignity of the individual and the worth of the human person. Article 21 protects not only every limb, but every faculty through which life is enjoyed. So, it is obvious that the right to life enshrined in Article 21 cannot be restricted to mere animal existence. This was so stated first by a Constitution Bench in Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295, after referring to Munn v. Illinois, (1876) 94 US 113. In Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, another Constitution Bench accepted this position, Reference may also be made in this connection to some observations of Desai, J. in Board of Trustees v. Dilip Kumar, AIR 1983 SC 109, in paragraph 13 of which it as stated that the expression ‘life’ used in Article 21 has a wider connotation than animal existence or a continued drudgery to life. In that case the right of an employee to be represented by a lawyer was being examined, and it was stated that where “the outcome of a departmental enquiry is likely to adversely affect the reputation or livelihood of a person, some of the finer graces of human civilisation, which make life worth living, would be jeopardised and the same could be put in jeopardy only by law which inheres fair procedures. Sabyasachi Mukharji, J. (as he then was) stated in Ramsharan v. Union of India, AIR 1989 SC 549, that “life in its expanded horizons today includes all that give meaning to a man's life including his tradition, culture and heritage, and protection of that heritage in its full measure could certainly come within the encompass of an expanded concept of Article 21 of the Constitution”. (See paragraph 13).

4. It would be apposite to say here that a debate is going on in America not only with regard to the right to “live with dignity” but the right to “die with dignity”. In India too, there are eminent persons who are preaching euthanasia, which idea is gaining ground. Thus, if citizens could claim their right to “die with dignity”, the right to “live with dignity” has to be conceded without any ado.

5. As in the present case we are concerned with the scope of the word ‘life’ in relation to women and that too working women, who are living in a hostel constructed partly with the aid given by the Central Government (was it during the International Year for Women?) we shall confine our attention to this restricted field. For this, we should first like to say something about the true character of Indian women viewed in the background of our culture and heritage.

6. Our heritage is about five thousand years old by now, if not more. In the ancient time, Indian women used to command great respect. Motherhood was adored. A wife was taken as an equal partner no Yagya would be performed without a ‘Sahadharmini’. In the field of education also women were in the forefront. Names of Gargi Litavati and Bidyavati come to mind in this connection. Other hallowed names are those of Sita, Savitri and Ahilya. Place of pride given to the married women is apparent from the fact that they were called ‘Ardhanginis’. So much of independence was given to the girls of marriageable age that they could select their spouses in a ‘Swayambar’. There was no taboo and no abortion was practised because of female foetus in the womb. Females were leading an absolutely uninhibitated life.

7. It is the above heritage which we have to re-establish. We have said about resuscitation because by the time of Middle Age the Indian women were started feeling themselves oppressed. As a class they became almost non-entity. In so far as the family life is concerned, they were either known as daughters, wives or mothers they had no independent existence of their own. In the childhood, they depended upon their parents, after marriage upon their husbands and in old days on their sons. A desire for emancipation, therefore, grew and Indian women broke the barriers of home and came out in open to earn their livelihood, thereby making their own contribution to the income of the family and also to the growth of the nation. The Indian independence movement saw in a big way the emergence of Indian women on the national scene leading ultimately to the occupation of exalted office of the Prima Minister of the country by an Indian woman. No only this, the first lady to become the President of the United Nations was an Indian, Indian women have not retraced their steps. More and more members of this section of the society are coming forward and contributing their mite not only to the sustenance of their family but to the growth of the nation also, ‘working women’ is thus a new phenomenon in the Indian history. As their awkening is in greater social good, every effort has to be made to see that they are properly protected by the laws of the land in their desire to prove themselves as an equal partner in the task of national reconstruction.

WHEHTER THE WORD ‘LIFE’ IN ARTICLE 21 INCLUDES ‘LIVELIHOOD’

8. As the concept of working women has intimate relationship with earning of livelihood, we have now to deal with the question whether Article 21 takes care of livelihood also. This aspect has its importance because it is for the enforcement of this right that the petitioners have directly approached this Court having felt aggrieved at the actions of the opposite parties which include removal of the first five petitioners from the Working Women's Hostel situate at Gamhadiha, Cuttack.

9. After the decision of a Constitution Bench of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, wherein the following observations were made by Chandrachud, C.J speaking for the Court in paragraph 32:—

“If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation……… Deprive a person of his right to livelihood and you shall have deprived him of his life………”.

We would have thought that this controversy does not exist. Shri Mohapatra, a bright and sharp lawyer as he is, however, first brings to our notice the decision rendered in re Sant Ram, AIR 1960 SC 932, in which a Constitution Bench observed as below in paragraph 11:—

“The argument that the word ‘life’ in Art. 21 of the Constitution includes ‘livelihood’ has only to be stated to be rejected.”

The above view was followed by a three-Judge-Bench in A.V Nachane v. Union of India, AIR 1982 SC 1126 (para 7). The last case to be referred in this connection is that of Begulla Bapi Raju v. State of A.P, AIR 1983 SC 1073, which is also a rendering by a three-Judge-Bench, in which the aforesaid observation made in Sant Ram's case was cited with approval.

10. Shri Mohapatra has very correctly drawn our attention to the aforesaid decisions which have taken a view diametrically opposite, if we may say so, to the one adopted in Olga Tellis (AIR 1986 SC 180). But then, Olga Tellis had duly taken note of Sant Ram's case (AIR 1960 SC 932) in which Article 21 was pressed into service by urging that the action of the Registrar of the Supreme Court by including the name of the petitioner in the list of touts had deprived him of his right to livelihood which included the right to live. As to this decision, it was stated in paragraph 34 of Olga Tellis that:—

“(t) his decision is distinguishable because under the Constitution, no person can claim the right to livelihood by the pursuit of an opprobrious occupation or a nefarious trade or business, like toutism, gambling or living on the grains of prostitution. The petitioners before us do not claim the right to dwell on pavements or in slums for the purpose of pursuing any activity which is illegal, immoral or contrary to public interest. Many of them pursue occupations which are humble but honourable.”

11. In view of the above, we have no hesitation in stating that what was held in Sant Ram's case and subsequently followed in the two aforesaid decisions cannot cut down or in any way impinge on the law laid down in Olga Tellis in so far as the present case is concerned inasmuch as the petitioners who are before us are pursuing occupations which cannot be said to be illegal, immoral or contrary to public interest. Indeed, some of them are even in the honourable profession of law.

11-A. By a memo filed on 23-6-1992, the learned counsel for opposite party No. 2 brought to our notice a recent Division Bench judgment in Delhi Development Horticulture Employees' Union v. Delhi Administration, AIR 1992 SC 789 to contend that what was stated in Olga Tellis (AIR 1986 SC 180) about the livelihood being a part of life, of which mention has been made in Article 21 of the Constitution, has been watered down by some observations made in paragraph 13 of the judgment. We have read this paragraph, and there is nothing in it to suggest even obliquely that what was stated in Olga Tellis about the availability of Article 21 in case of deprivation of livelihood has in any way been whittled down. This is clear from what has been stated in the first part of the paragraph wherein the view taken in Olga Tellis was said to have been taken in the context of Article 21. Thereafter, the following observation was made, which is pressed into service by the learned counsel:—

“This country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution.”

11-B. The aforesaid observation has to be understood in the context of the facts of the case and the reliefs sought, one of which was regularization of the persons who had been engaged under the Jawahar Rozgar Yojna. In support of this relief, it was pleaded that the petitioners' service must be regularised because under the Constitution they had a right to work. To support this plea, what was stated in Olga Tellis about right of livelihood being a part of right to life was pressed into service. The Bench observed that no doubt, broadly interpreted, right to life would include the right to livelihood and, therefore, right to work (See the first sentence of paragraph 13). But then, it was observed that though deprivation of the right to livelihood except according to the procedure established by law would attract Article 21 of the Constitution, what was stated in Olga Tellis cannot be interpreted to mean that right to, work (taking it as synonymous of right to livelihood) has been made a fundamental right.

11-C. The above does not, in any way, affect even tangentially what was said in Olga Tellis about the right of livelihood being taken care of by Article 21 of the Constitution. Indeed, a Division Bench of two learned Judges could not have in any way diluted the categorical and unambiguous law laid down by a Constitution Bench, which had decided Olga Tellis, that right to life which is protected as mentioned in Article 21 includes right to livelihood.

12. Before concluding this aspect of the matter, we have to deal with another related question. The same is whether the right to reside in the hostel in question can be said to be a part of the right to livelihood. This aspect of the matter has also been dealt in Olga Tellis (AIR 1986 SC 180). Therein, the petitioners were dwelling on pavements or in slums for the purpose of pursuing their lawful activities. Chandrachud, C.J observed in paragraph 37 that if the petitioners are evicted from their dwellings, they will be deprived of their own livelihood. So, occupation of the dwellings was regarded as a part of the right of livelihood. Shri Mohapatra, however, contends that the residence in the Women's Hostel has no direct nexus with the earning of livelihood by the petitioners and so on the strength of what was stated by S. Mukharji, J. (as he then was) in paragraph 13 of Ramsharan v. Union of India, AIR 1989 SC 549 that to amount to breach of Article 21, the act complained of must directly threaten the fullness of life, it is contended that Article 21 is not attracted in the present case. Some sustenance is also sought to be drawn from the decision in Ram Prasad v. Chairman, Bombay Port Trust, AIR 1989 SC 1306, in which the following observations find place in paragraph 8:—

“We realise that the problem of hutment dwellers is a human problem and the removal of hutments is bound to cause an untold hardship and misery to the occupants. However, on that consideration, we cannot prevent Bombay Port Trust from putting its land to its own use.”

13. As to the observations of Mukharji, J. in Ramsharan, we would state that in that case the petitioners wanted to bring to the notice of the Court the total disarray caused by the arbitrary and high-handed running of the premier institution of ancient art, culture and history in Rajsthan, and it is in this context that it was observed that though Article 21 takes within its fold the tradition, culture and heritages of a man's life, one who seeks relief for breach of this Article must confine oneself to some direct overt and tangible act which threatens the fullness of his life or lives of others in the community.

14. At this stage, we should like to say a few words as to why the Women's Hostel was built up. The same was an outcome of valiant efforts made by the Utkal Manila Samiti, which is a registered society, with the primary object of uniting and bringing awakening amongst women of the State by undertaking various acts and projects. The society was registered in 1971 and the present hostel was constructed in 1979. We understand from Shri Mohapatra that the idea behind taking up this project (whose total cost and contribution by the Central Government could not, however, be informed to us) was to cater to the pressing need of the working women of the State relating to accommodation in a city like Cuttack wherein obtaining of suitable accommodation by a lonely woman venturing to earn livelihood for herself was thought to be very difficult. The Mahila Samiti, therefore, constructed the hostel. But then, it was not meant to accommodate working women for their entire service career, but to do so for a limited period of years, so that during this period they could find out alternative accommodation and the hostel authorities could make the space available to other incumbents. Thus, the residence in the hostel had intimate relationship with the earning of livelihood by the inmates of the hostel. Indeed, this is writ large on the face of it. So, what was stated by Mukharji, J. in Ramsharan's case (AIR 1989 SC 549) has no application.

15. As to Ram Prasad's case (AIR 1989 SC 1306), we would state that from what is being stated later, it would be clear that we do not propose to put any fetter on the power of the hostel authorities in making the best use of their property and we do not propose to lay down that under no circumstances the inmates of the hostel can be removed.

16. Before we conclude this discussion, we have to say a few words about the submission of Shri Mohapatra that housing is not even a part of directive principles enshrined in Part IV of our Constitution, not to speak of the same being not a fundamental right. Shri Mohapatra contends that the founding fathers being men of tested ability and wide vision would not have missed to incorporate providing of housing to all as a desideratum of our polity, if that would have been so. As to this, we may first reiterate what was stated by Bhagwati, J. (as he then was) in para 7 of Francis Coralie, according to which right to life includes the right to live with human dignity. It was further observed that shelter over the head is one of the bare necessities of life. It is apparent that living with dignity is not possible without proper shelter over head, except for the monks or ascetics who prefer to live under the shade of a tree. Indeed, in para 36 of Prabhakaran v. State of Tamil Nadu, AIR 1987 SC 2117, Mukharji, J. (as he then was) went to the extent of saying: “after all, shelter is one of our fundamental rights”.

17. We may also usefully refer to what was stated in this regard in para 9 of Shantistar Builders v. Narayan Khimalal, AIR 1990 SC 630, which is as below:—

“Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the right to ……… a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for the human being, it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual.”

In para 10 thereafter, it was noted that there has been increase in the homeless urban population and millions of people live today on the pavements of different cities of India and a greater number live animal-like existence in jhuggis.

18. It would be apposite to refer to Article 25(1) of the Universal Declaration of Human Rights in which housing has been specifically recognised as one of the rights relating to ‘living’. Article 11.1 of the International Covenant on Economic, Social and Cultural Rights, 1966 also recognises ‘housing’ as a part of right to adequate standard of living. May we say that reference to charters/documents like Universal Declaration of Human Rights and the aforesaid Covenant to understand our fundamental rights, is very often made by the Supreme Court as would be evident from Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 (paragraph 111); Bachan Singh v. State of Punjab, AIR 1982 SC 1225 (Paragraph 5); and C.B.S.C Ltd. v. Subhash Chandra, (1992) 1 SCC 441 : (AIR 1992 SC 573) (paragraph 30). In the last of these cases, after referring to the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights, it was stated that housing, inter alia, was recognised as an integral part of the right to life.

19. Because of all the above, we would hold that the petitioners' approach to this Court is sustainable inasmuch as breach of Article 21 is involved in this case. This, however, is not enough to decide the question of maintainability as it has to be seen whether Article 21 could be enforced against the Utkal Mahila Smiti. To decide this, we have first to advert to the question whether Article 21 can be enforced against a private person.

ENFORCEABILITY OF ARTICLE 21 AGAINST A PRIVATE PERSON

20. In some of the decisions of the apex Court, to wit, Md. Ikram Hussain v. State of U.P, AIR 1964 SC 1625 (a rendering by a two-Judge-Bench), Veena Kapoor Dr (Mrs) v. Varinder Kumar Kapoor Shri, AIR 1982 SC 792 (a judgment by a three-Judge-Bench), and Madhu Bala v. Narender Kumar, AIR 1982 SC 938 (an opinion of a two-Judge-Bench), writ petitions were entertained, whose subject-matters were either detention of a private individual, or custody of minor child. But then, in none of these decisions, the question of maintainability was gone into, Shri Mohaparta has, however, drawn our attention to a Constitution Bench decision in Vidya Verma v. Shiv Narain, AIR 1956 SC 108, in which a writ of habeas corpus was prayed on behalf of the petitioner to be issued against her father. The Bench, however, held, after referring to A.K Gopalan v. State Of Madras., AIR 1950 SC 27, and more particularly to P.D Shamdasani v. Central Bank of India, AIR 1952 SC 59, both of which are decisions by Constitution Benches, that the petition which was founded on Article 21 of the Constitution did not lie under Article 32. It may be stated that though in Gopalan's case (AIR 1950 SC 27) this question had not come up for direct decision, and it was only Patanjali Sastri, J. (as he then was) who said at page 74 that as a rule constitutional safeguards are directed against the State and its organs and that protection against violations of rights by individuals must be sought in the ordinary law, in Shamdasani's case (AIR 1952 SC 59), the question for determination was whether violation of rights of property by a private individual could come within the purview of Articles 19(1)(f) and 31(1) of the Constitution. Thus, though Article 21 was not directly involved in this case, the learned Judges, after referring to Article 31(1), said as below in paragraph 5:—

“(I) T is clear that it is a declaration of the fundamental right of private property in the same negative form in which Art. 21 declares the fundamental right to life and liberty. There is no Express reference to the State in Art. 21. But could it be suggested on that account that article was intended to afford protection to life and personal liberty against violation by private individuals? The words ‘except by procedure established by law’ plainly exclude such a suggestion.”

What was stated above regarding Article 21, even though the case before the Court was not under Article 21, was accepted as having laid down the correct law in Vidya Verma's case which dealt with Article 21 of the Constitution.

21. In view of the above, it has to be held that Article 21 cannot be enforced against a private person. The fact that qua some of the Articles like 17, 23 and 24 it has been held that they can be enforced against private individuals also see Sukhdev Singh v. Bhagatram, AIR 1975 SC 1331 (paragraph 95); People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473 (paragraph 10); and Sanjit Roy; v. State Of Rajasthan, AIR 1983 SC 328 (paragraphs 3 to 6), is not sufficient in view of the clear decision in Vidya Verma's case to hold that Article 21 can also be enforced against a private person.

MAINTAINABILITY

22. In the aforesaid premises, it has to be seen whether a writ can at all be issued against the Managing Committee of the hostel or, for that matter, the Utkal Mahila Samiti, even though we were to be satisfied about Article 21 of the Constitution being attracted in the present case.

23. Shri Mohapatra submits that none of the aforesaid bodies can be regarded to be an ‘authority’ within the meaning of Art. 12 of the Constitution, and so, against these bodies, no writ can be issued, even if the allegations of the petitioners be correct, which are not, according to the learned counsel.

24. For the case at hand, we do not propose to enter into the thicket as to whether the bodies at hand can be said to be ‘authorities’ within the meaning of Art. 12 of the Constitution, because even if a body may not be an ‘authority’ for the purpose of Art. 12 of the Constitution, a writ can still be issued against it if it could be said that it is an ‘authority’ as this word has been used in Art. 226 of the Constitution because of what has been stated in paragraph 19 of Shri Anadi Mukta Sadguru S.M.V.S.J.M.S Trust v. V.R Rudani, AIR 1989 SC 1607 (hereinafter referred to as ‘Rudani's case’). As per this judgment, the term ‘authority’ used in Art. 226 must receive a liberal meaning in the context, unlike this term in Art. 12. It was further stated that Art. 12 is of relevant only for the purpose of enforcement of fundamental rights under Art. 32, whereas Art. 226 confers power on the High Courts to issue writs, for enforcement of the fundamental rights as well as non-fundamental rights. It was, therefore, observed (at p. 1613 of AIR):—

“The words ‘Any person or authority’ used in Art. 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter, by what means the duty is imposed…….”

This Court had occasion to follow the aforesaid decision in Antaryami Rath v. State of Orissa, (1990) 70 Cut LT 642, which was cited with approval by another Bench of this Court in Manoj Kumar Panda v. Godavari Samal (O.J.C No. 3206 of 1990 which was decided along with O.J.C No. 3746 of 1990 on 26-9-1991).

25. We would, therefore, not discuss the broader question of the aforesaid entities being ‘authorities’ within the meaning of Article 12 of the Constitution, because of the complexity of this matter (this would be apparent from the fact that only recently a Full Bench of this Court in Tribal Development Co-operative Corporation Limited's case (O.J.C No. 1738 of 1984, judgment in which was delivered on 4-3-1992)*, had to cover about 40 pages to decide the question), and would instead confine our attention to see whether the type of duty being discharged by the aforesaid bodies can be said to be public duty, and if this question would be answered in the affirmative, the writ petition shall have to be held to be maintainable.

PUBLIC DUTY

26. The expression ‘public duty’ cannot be put in a strait jacket formula. Its content has to vary from time to time and place to place. In this context, the connotation of the expression ‘public interest’ comes to our mind. What was in public interest or was not regarded as related to public interest earlier, say 50 years back, may be so regarded now and vice versa. In early times, lending of money by Mahajans was not viewed with disfavour; indeed, in some cases, such an activity was thought beneficial for the persons living in the interior where banking facility was not available. Readiness of a person to help the poor in times of distress by advancing some money was a welcome feature of rural economics, but then, the time changed and the exploitation by moneylender made their activities anti-people and against general public interest.

27. When laissez faire was holding the field, nobody was concerned or activated to provide help to persons coming forward to earn their livelihood. The workers were uncared for. Conception of a welfare State, however, changed the scene. Not only the Government, but many public institutions grew up to extend their helping hands to the weaker sections of the society. Efforts were made to provide help to the persons struggling for existence. The Government itself took up the task of building cheap residential houses for persons belonging to the lower strata of the society. A National Housing Policy is almost on cards.

28. The Utkal Mahila Samiti must have taken up the task of building the hostel in question as a part of its duty to help the working women — this facility cannot be said to be meant for any specific individual but is related to the working women in general. It has thus a distinct element of general good; of course, confining the same to the working women. It is thus a public cause which has been taken up by the Utkal Mahila Samiti — the cause of helping the working women of the State irrespective of caste and colour. It is miles apart from the facility which a landlord makes available to a tenant to earn income. The Utkal Mahila Samiti has not set up the hostel to earn income as such, but to help the working women. A clear imprint of public duty is thus discernible in this activity of the Samiti.

29. Shri Mohapatra takes pains to submit that as construction of houses has not been enumerated even in the Directive Principle, the same cannot be regarded as a part of Government duty. In this connection, the learned counsel refers us to certain observations made by this Court in Manoj Kumar Panda (supra), judgment in which was rendered by one of us (Jagadeb Roy, J.). A perusal of that judgment, more particularly, what has been mentioned in paragraphs 15 and 22, would show that the expression ‘public service’ cannot be equated with Government duty or sovereign function of the State. The observations made in those paragraphs have to be read in the context the same were made — the same being examination of the question whether, even if an activity be in the nature of public service, the same would amount to Governmental activity for the purpose of determining whether a particular entity is an ‘authority’ within the meaning of Art. 12 of the Constitution. This Court answered the question in the negative. But then, while discussing the question whether the entity could be an ‘authority’ within the meaning of Article 226 of the Constitution, the Bench accepted in paragraph 25 that imparting of education in the field of water and land management would undoubtedly be a public service; and so, the institute which was imparting such an education was regarded as an ‘authority’ within the meaning of Art. 226 of the Constitution.

30. From the above, it can be stated that as per the decision of this Court in Manoj Kumar Panda, though a particular public duty may not be regarded as a part of Government duty, a body undertaking the former may yet be an authority within the meaning of Article 226 of the Constitution.

31. Shri Mohapatra does not leave the matter at this. He emphasises that public duty to be discharged by a body to make it amenable to writ jurisdiction must be one which has been fastened on it by statute. Strenuous effort has been made in this regard by the learned counsel. He states that the view taken in Rudani (AIR 1989 SC 1607) as expressed in paragraph 21 that for a public duty to be enforceable by mandamus, the same does not necessarily has to be one imposed by the statute, but it would be sufficient if the duty has been imposed by “charter, common law, custom or even contract”, which is the view expressed by Prof. De Smith in Judicial Review of Administrative Act, 4th Edn., page 540 (which is shared by the Court) is not a correct enunciation of law. Shri Mohapatra submits that in doing so, the Rudani Bench, consisting of two Judges, followed a “lonely furrow”. It is contended that this view is against a number of decisions rendered by the apex Court itself. In his written submission, Shri Mohapatra has mentioned in this regard about Praga Tolls Corporation v. C.A Imanual, AIR 1969 SC 1306, which was referred approvingly in Rudani's case. A number of decisions have also been mentioned in his written submission where it has been held that the public duty imposed to make it enforceable by mandamus must be one created by statute. These decisions are: (1) Bihar E.G.O Co-operative Society v. Sipahi Singh, AIR 1977 SC 2149 (in which reliance was placed on earlier decisions of the Court rendered in Lekhraj v. Deputy Custodian, AIR 1966 SC 334; Sivendra Bahadur v. Nalanda College, AIR 1962 SC 1210; and Umakanta Saran v. State of Bihar, AIR 1973 SC 964; (2) Commr. Lucknow-Division v. Premlata, AIR 1977 SC 334; and (3) State of Mysore v. K.M Chandrasekhar, AIR 1965 SC 532. Reference has also been made in the written submission about enunciation of law in this regard in Halsbury's Laws of England, 4th Edn., Vol. I, paragraphs 99, 120 and 121, apart from what has been stated in Seervai in his Constitutional Law of India, 3rd Edn., Vol. 2, page 1229. In this connection, it has also been urged that in fairly a good number of decisions, the Supreme Court has held that a right conferred by contract cannot be enforced through a writ Court. This was the view expressed in Harsankar v. Deputy Excise and Taxation Commissioner, AIR 1975 SC 1121; and Banchhnidhi Rath v. State of Orissa, AIR 1972 SC 843.

32. In so far as non-enforceability of contractual right through a writ Court is concerned, we would refer to a recent decision of a Division Bench of this Court in Prince International v. State of Orissa, (1992) 73 Cut LT 652, in which, after taking note of various decisions of the apex Court, it was held that in view of the expansion of the law finding place, inter alia, in Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031, it could not be said that no contractual right can be enforced through a writ Court.

33. As to the decisions mentioning about the statutory backing of a public duty to make it enforceable through mandamus, we would observe that in view of the clear stand taken in Rudani's case (AIR 1989 SC 1607) expression of earlier views must be held to have been watered down by Rudani, as it has been clearly observed in paragraph 21 of this judgment that a public duty imposed even by charter or contract can be enforced by mandamus. In this context, it may be stated that though in Antaryami's case (1990 (70) Cut LT 642) this Court had regarded the function of imparting education as “most useful social function”, and so, in the nature of public duty, Shri Mohapatra submits that the aforesaid view was taken because the eduction was to be imparted in accordance with the curriculum prescribed by statutory bodies, as stated in paragraph 7 and, as such, the public duty had some relation with statute. Even if some concession is made in this regard, the view taken in Manoj Kumar's case was entirely on the basis of the nature of the duty/service performed; nothing was said about the service having any statutory backing.

34. In this connection, we have also to bear in mind that in constructing the hostel, even Government of India had provided a part of the cost as aid, as admitted in sub-para (P) of para 2 of the counter-affidavit of opposite party No. 1. Though the amount of the aid so received could not be informed to us despite our desire (which was because of the fact that the records were not available), the contention of the petitioners is that the aid had been provided following some policy decision of the Government of India. To satisfy our mind in this regard, a report of the Core Group set up by the Department of Woman and Child Development, Ministry of Human Resources Development, Government of India, 1988 is placed before us for our perusal which is titled as “National Perspective Plan for Women”. In this report, reference has been made in para 38, which deals with housing, by stating that a Central Scheme of assistance for construction of hostel buildings for working women was initiated in 1972, whose scope was widened in 1980. As the contruction in the present case was around 1979, Shri Misra urges that the aid given by the Central Government must have been under some scheme formulated by that Government. We have felt inclined to accept this submission because it is well known that aid or assistance for a project like the one at hand is normally not given on the basis of some ad hoc decision applicable to a particular case, but is so done as part of a scheme. The assistance provided by the Central Government further shows that the cause to be served by the Utkal Mahila Samiti for constructing the hostel in question was taken to be a public cause, as distinguished from private entrepreneurial activity meant for earning profit. So, the view taken by us that the duty in question should be regarded as public duty is reinforced by this fact.

35. We would also say that construction of a hostel like the one at hand has some relationship even with social justice. The hostel being meant for accommodation of working women, who have to be regarded to belong to the weaker section of the society, Article 46 of the Constitution comes into play which requires protection of weaker section of the people from social injuistice and all forms of exploitations. It would be apposite to mention here that the right to social justice has even been regarded as a part of fundamental right. This is what has been stated by K. Ramaswamy, J. in para 30 of C.E.S.C Ltd. v. Subhas Chandra Bose, (1992) 1 SCC 441 : (AIR 1992 SC 573). Though Shri Mohapatra has described this as soaring of the learned Judge “on the Wings of the eagle”, may we say that high ideals and higher imaginative ideas are necessary to pull high a concept which lies in dorment.

36. As providing of accommodation to working women subserves social justice, we have to take a liberal view of the matter and see that narrow pedantic approach does not stiffle the onward march. It may be said to the credit of Shri Mohapatra that he himself relies and fairly admits that law cannot be a closed book and legal conceptions have to advance to take care of the felt necessities of time. The necessaity of time is that women who are coming forward to contribute their mite in production of national wealth should be encouraged and nothing should deter them from being an equal partner with the males in moving the wheel of progress of the nation. We would, therefore, give a broader meaning to the expression ‘public duty’ and should like to see that everybody associated with it does not do anything which would harm this cause.

37. Reference may usefully be made at this stage to certain observations made by Pathak, C.J in Vikram Deo Singh Tomar v. State Of Bihar., AIR 1988 SC 1782, in which, while dealing with the pathetic condition of the inmates of the Care Home, Patna, it was observed as below in paragraph 2:

“It (meaning the Constitution) lays special emphasis on the protection and well-being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions. It shows a particular regard for women and children, and notwithstanding the pervasive eithos of the doctrine of equality it contemplates special provision being made for them by law. This is only to be expected when an enlightened constitutional system takes charge of the political and socioeconomic governance of a society, which has for centuries witnessed the relegation of women to a place far below their due. We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen. And so……..the State recognises the need for maintaining establishments for the care of those unfortunates, both women and children, who are the castaways of an imperfect social order and for whom, therefore, of necessity provision must be made for their protection and welfare.”

38. In view of all the above and because of there being no dispute that the Utkal Mahila Samiti had constructed the hostel pursuant to the objects of the Samiti as mentioned in its charter (the Memorandum — Annexure-A/1, by which it had got itself registered under the Societies Registration Act), we hold that the duty related to the running of the hostel is public in nature and any allegation about violation of the rules governing the admission, and any grievance about disciplinary action against the inmates of the hostel, would be entertainable by this Court, as it would be permissible for it to issue appropriate writ, direction or order against the Samiti, in case any necessity for the same would be felt by the Court. The question of maintainability is, therefore, answered in favour of the petitioners.

MERITS OF THE CASE

39. This takes us to be merits of the case. As regards this, the petitioners' averment is that the first five of them had been wrongly removed from the hostel premises and their belongings were thrown outside even by breaking open the locks of the rooms. This had ben done on 17-2-1992 in the absence of the inmates. The action is mala fide, according to the petitioners, because the inmates had formed a union in the first week of February, 1992 led by petitioner No. 1 — Bijayalaxmi to ventilate the grievances of the petitioners before the Managing Committee and other appropriate authorities. Various grievances have been enumerated in the writ petition. The formation of the union is said to have made the members of the Managing Committee furious and vindictive towards the inmates and the impugned actions were the outcome of the same.

40. The case of the opposite parties, however, is that a meeting of the Managing Committee was held on 7th February, 1992 wherein the conduct of the first five petitioners was discussed and it was noticed that in gross violation of the Rules of the hostel, these five inmates have been returning to the hostel beyond the scheduled hour and sometimes at very late hours and not even signing the “late comer's register” maintained for this purpose. This apart, they were also cooking inside their living rooms contrary to the rules which had been so framed as the rooms had wooden partition and inside cooking may prove dangerous. A notice was, therefore, issued to the first five petitioners to show cause within 48 hours as to why disciplinary action shall; not be taken against them and they shall not be removed from the hostel for the deliberate violation of the rules. A copy of this notice has been enclosed to the counter-affidavit as Annexure-B/1, the petitioners in question, however, refused to accept the notice and so a copy of the same was affixed on the hostel notice board.

41. In the next meeting of the Managing Committee held on 10-2-1992, no decision was taken with regard to the conduct of petitioner No. 1 to 5 since they had not submitted their explanation and it was resolved to give another chance to them. It was also decided that they would be intimated to appear before the Managing Committee whose next meeting was fixed on 15-2-1992. A copy of this notice has been enclosed as Annexure-C/1. This notice was also not accepted by the petitioners whereupon a copy of the same was affixed on the notice board of the hostel and also on the front door of the rooms occupied by these petitioners.

42. In the meeting of 15th February, the petitioners did not appear nor did they file any reply before the Managing Committee; and so, after considering the gravity of the charges and keeping in view the dignity and reputation of the hostel, it was resolved that since these petitioners had violated the Rules they should be asked to vacate the rooms within 24 hours. Such a notice was also served on the petitioners a copy of which has been enclosed as Annexure-1 to the writ petition. As the petitioners did not vacate despite this notice, police help was sought to evict them from the rooms but as the police did not turn up, the five petitioners were evicted from the rooms at 3 p.m of 17th and their rooms were locked.

43. Shri Misra appearing for the petitioners has contended that as of the first five petitioners two are advocates and the remaining three are nurses, it is not possible for them to return back to the hostel by 7 p.m as is required by Rale 9(a) of the Utkal Mahila Samiti Karmajibi Mahila Niketan (Management) Rules, 1990 (for short ‘the Rules’). He contends that the very nature of the work of these petitioners does not permit them to return back to the hostel prior to 7 p.m As to this, Shri Mohapatra contends that Rule 9(b) takes adequate care of this contingency inasmuch as it provides that an inmate returning to the hostel after 7 p.m shall have to sign the ‘late comer's requister’ indicating the time of her return. According to the opposite parties, even this was not being done.

44. In so far as the cooking inside the living room is concerned, the same is an admitted position, as would appear from the averment made in para 12 of the writ petition. But then, Shri Misra states that the petitioners were left with no alternative than to do so because the hostel authorities do not provide any breakfast and as such the immates have to prepare it themselves, as they cannot afford to purchase snacks on all days from outside. Another submission made in this regard is that apart from the five petitioners, others also were doing the same, but these petitioners were singled out because they had formed union in the first week of February, 1992, which action was not liked by the members of the Managing Committee.

45. As to the second submission made by Shri Misra, the opposite parties' case is that no intimation had been given to the management regarding the formation of any union. This apart, from the averments made in the petition we find that petitioner No. 1 alone has been specifically mentioned as the member of the union and so we are not in a position to hold that the four other concerned petitioners were also members of the union. As presently advised, we would, therefore, not hold the present to be a case of victimisation or one actuated by malice, though it appears to us that formation of union might have impelled the authorities to hold its first related meeting on 7th February, as the union had been formed in the first week of February; the placid water of Mahanadi/Kathajodi might have been distributed by it.

45A. As to the first submission, it may be stated that though other inmates of the hostel might have also been cooking their meals inside the room through the aid of stove, but as nothing is known from the record if other inmates were also returning late in the night and were not putting their signatures in the register in question, we would not hold the present to be a case of discrimination inasmuch as the five petitioners have been proceeded with not only because of their cooking inside the living rooms but also because of their late coming to the hostel and without putting their signatures in the ‘late comer's register’.

46. We would, therefore, not find fault (on the basis of materials on record) with the action as initiated against the five petitioners. As regards the procedure which was adopted, we may say that Rule 11 of the Rules dealing with disciplinary action permits eviction from the hostel after giving the concerned inmates a notice to show cause as to why such action shall not be taken. Sub-rule (b) thereof permits the management to break open the lock of the rooms, if necessary, and to remove the articles from the rooms and keep the same under lock if despite order of the Managing Committee to vacate the hostel the inmates refuses to do so within 24 hours of the date of the order.

47. Requirement of natural justice has, therefore, been taken care of. In Annexure-B/1 we do not find mention of the time limit during which explanation was required to be submitted. It is, however, stated in para 3(b) of the counter-affidavit that 48 hours was given for this purpose. Of course, in Annexure-C/1, which is dated 10-2-1992, it was stated that the petitioners in question should appear before the committee which would assemble on 15th February and submit their explanation on that day. Thus, five days' time was given on this occasion and we think in the facts and circumstances of the case the time given cannot be regarded to be so short as to deny reasonable to opportunity to the petitioners to have their say in the matter. As there is some dispute about the petitioners having known about the meeting to be held on 15th February, Shri Mohapatra draws our attention to Annexure-5 which is a communication addressed, inter alia, by the petitioners to the Collector wherein it has been stated that a meeting had been called by the Managing Committee on 15-2-1992 giving advance information about the same to all the inmates. Of course, as per this annexure the meeting had not been called to hear the five petitioners on what they have to say about the charges levelled against them.

48. At this stage, we may deal with one submission of Shri Misra and the same relates to the approval of the aforesaid Rules of 1990 in the meeting of the Utkal Mahila Samiti held on 25-5-1990. According to Shri Misra, the Rules had not been approved on that day, but had been so done on 25-5-1992. This submission has been advanced because in the xerox copy of the Rules made available to the learned counsel the date below the signature of the President of the Mahila Samiti appeared as “25-5-92”. We have perused this xerox copy and the year clearly appears therein as ‘92’ and not ‘90’. Shri Mohapatra, however, submits that the Rules were approved on 25-5-1990. To dispel our doubt in this regard, we required production of the original and perusal of the same shows that in the last figure of ‘O’, as it appears in the note incorporated by the President, there is some over-writing. Under the signature of the President, the last figure in the original does not look like either ‘C’ or ‘2’. This being the position, we called upon the opposite parties to produce the original proceeding book of the Managing Committee and a perusal of the same removed all doubts from our mind as it clearly showed that the Rules had been approved in the meeting of the Managing Committee held on 25-5-1990 before which the question of revisions of the Rules had been taken up in the meeting held on 10-1-1990 in which the President was authorised to undertake the revision in consultation with Shri Chandramani Nayak, retired A.D.M, and to place the revised Rules in the next meeting. The next meeting was held on 21-3-1990 and it was resolved that the revised Rules prepared by the two aforesaid persons be circulated among the members and to take up the same in the next meeting for consideration. The next meeting was held on 25-5-1990 and the revised Rules were unanimously approved. We, therefore, do not entertain any doubt the concerned Rules having come into existence on 25-5-1990. In any case, this aspect has no significance as the Rules of 1986 or, for that matter, the Orissa Working Women's Hostel (Management) Rules, 1987, framed by the Government (Annexure-6) contain provisions similar to those with which we are concerned.

49. We have only another observation to make in so far as the merit is concerned. The same is about giving of 24 hours time by Annexure-1 to vacate the premises. It is urged by Shri Misra that it is impossible in a town like Cuttack to find an alternative accommodation within a notice of 24 hours. As to this, Shri Mohapatra contends that Annexure-1 had come to be issued after the concerned petitioners had not even participated in the meeting held on 13-2-1992 and had not submitted any explanation to the charges framed against them. Even so, it has to be remembered that the disciplinary proceeding was first initiated on 7-2-1992 and the petitioners were ultimately forcibly removed by 17-2-1992. As such, they got ten days' time which has to be regarded as too short to find an alternative accommodation in a town like Cuttack. We are conscious of the fact that the Rules (whose validity has not been assailed) permit passing of such an order and so no illegality was committed by the Managing Committee in having resolved to ask the petitioners to leave the hostel within 24 hours; but then, it is a matter for consideration as to whether reasonable time should not be granted in this regard. As, however, the five petitioners have been staying outside the hostel premises since 17-2-1992, we have not felt persuaded to order the hostel authorities to take them back on this ground. According to us, however, it is a fit case where the five petitioners should be allowed a further opportunity to have their say in the matter. This they would do within a period of 10 days from today and the management would thereafter take appropriate decision within ten days by incorporating its reasons thereof, a copy of which shall be communicated to each of the concerned petitioners. In taking the decision, the fact that some of the affected petitioners had been in the hostel for more than three years, which is the upper time limit for occupation of the hostel as stated in Rule 8(d), would not, however, be used against them mainly because stay far beyond three years is not one of the two grounds on which the disciplinary action was proposed against the five petitioners as would appear from Annexure-B/1 (the show cause notice), and partly because we find from the affidavit filed by petitioner No. 1 on 29-4-1992 that many inmates have been staying in the hostel for more than five years, one such inmate being Miss Minati Das. As such, it would be an act of discrimination to turn out the petitioners on the ground of stay beyond three years while at the same time allowing other inmates to do so even beyond five years.

50. The petition is disposed of accordingly. The little delay in pronouncing the judgment owes to the fact that after hearing was over on 29-4-1992, summer vacation of the Court started on 16th May, which ended on 14th June.

51. Before parting, we put on record our appreciation for the hard labour undertaken by the learned counsel of both the sides in preparing the case and in presenting their view points persuasively and with dexterity.

K.C Jagadeb Roy, J.:— 52. With respect I am to say that I do not agree with the views expressed by my Lord, the Chief Justice in para-12. In my consideration, the right to reside in the hostel in question cannot be said to be apart of right to livelihood. The removal of slum dwellers as well as people living on pavements in particular facts of the slum dweller's case All 1989 SC 1306, affected their livelihood as they could not have made any alternative accommodation for a living if they were displaced from where they were living which would have certainly affected their livelihood. In the present case it is not so. The inmates of the hostel are well provided with jobs and in a place like Cuttack, with their earnings they can find alternative accommodation to pursue their livelihood. All working women are not provided with hostel accommodation. Nevertheless they manage to sustain themselves at Cuttack to carry on with their jobs. Unless removal from hostel affects their livelihood to the point of abrogation, it cannot be a case conceivable under Art. 21 of the Constitution. It has been rightly said in Ram Prasad v. Chairman, Bombay Port Trust, AIR 1989 SC 1306 that the right to continue in hutments cannot be at the cost of the owner of the Port Trust who is entitled to put its own land to its own use. As to AIR 1982 SC 1325 (Bachan Singh v. State of Punjab), I say that in that case the writ petitioner had challenged the constitutional validity of S. 302 of the Penal Code read with Section 354, sub-section (3) of the Criminal Procedure Code challenging death sentence as alternative punishment for the offence of murder. Hon'ble Bhagwati, J. has stated thus:

“I am conscious that my learned brethren on the Bench who constitute the minority have taken a different view and upheld the constitutional validity of the death penalty but, with the greater respect to them and in all humility, I cannot persuade myself to concur with the view taken by them. Mine is unfortunately a solitary dissent and it is therefore with a certain amount of hestitation that I speak but my initial diffidence is overcome by my deep and abiding faith in the dignity of man and worth of the human person and passionate conviction about the true spiritual nature and dimension of man.”

In that process, he also referred to Art. 6 of the Covenant as was finally adopted by the General Assembly in its resolution dated 16-12-1966 providings, inter alia, the following:

“Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to the present Covenant.”

He also made a reference to Art. 7 of the Covenant corresponding to Art. 5 of the Universal Declaration of Human Rights which re-affirmed that no one shall be subjected to torture, cruelty, inhuman or de-grading treatment or punishment. Those facts have nothing to do with the present case. In the present case rightly the petitioners have not alleged any cruel, inhuman and degrading treatment by the hostel authorities.

53. In the facts and circumstances of this case, I do not consider this to be a fit case where Art. 21 can come into defence just because the petitioners have been asked to vacate the premises of the hostel for breach of discipline of the institution. Art. 21 only envisages such conditions where under the persons are completely deprived of any accommodation that one barely requires for his existence but this is not a case which can come within the purview or scope of that so as to invoke that article in a writ application. I, therefore, beg to differ with my Lord, the Chief Justice on the question of maintainability of this application. In my opinion, the petition is not maintainable.

54. With respect, I also say that I do not find anything in the case of Vidya Verma v. Shiv Narain, AIR 1956 SC 108 suggesting that Art. 21 affords protection to life and personal liberty against violation by private individuals. On the other hand as is in para 5 of the said judgment, the learned Judges of the apex Court had indicated that such a suggestion has been excluded because of the words “except by procedure established by law”, occurring in Art. 31 of the Constitution. According to me, therefore, Art. 21 cannot be enforced against a private individual. Besides a Bench of this Court where I was a party (In OJC No. 3206 and 3746 of 1990 decided on 26-9-1991) had decided at paragraph 12 that writ of mandamus can now be issued against a body or persons to carry out the duties placed on them by statute even though they are not public officials or statutory bodies which finds support from a decision of the Supreme Court reported in AIR 1969 SC 1306 (Praga Tools Corporation v. C.C.V Immanual). Right under Art. 21 is a constitutional right and is included in Chapt. III of the Constitution. In Anadi Mukta Sadaguru v. V.R Rudani's case reported in AIR 1989 SC 1607, the Supreme Court has noticed about the use of the word ‘authority’ under Arts. 12 and 226 of the Constitution, and held that the term ‘authority’ used in Art. 226 in the context must have a liberal meaning unlike under Art. 12. Article 12 is only relevant for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words ‘any person or authority’ used in Art. 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may confer any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on, the body. Therefore as far as the fundamental rights are concerned, it cannot be enforced, against a person who is not an authority within the meaning of Art. 12 and that should also stand good so far as the writ jurisdiction under Art. 226 is concerned but for enforcement of rights other than fundamental rights, the word ‘authority’ may be liberally construed to include a body or persons who are required to carry out their duties under, any statute. Therefore, if the relief sought in this case is confined to Art. 21 and the person against whom this is being sought is not an authority under Art. 12 of the Constitution, in my opinion, we cannot entertain such application for issue of a writ and would hold that this petition is not maintainable.

55. I fully agree with my Lord the Chief Justice that the duty that is to be discharged by the opposite parties are of a nature of public duties, a writ can be issued against a person or body of persons even though they are not authorities within the meaning of Art. 12 and as such can be issued against the opposite parties. But the pertinent question now arises is whether providing hostel accommodation to working women is a public duty. I must humbly express my opinion with due regards for his Lordship's view that it is not a public duty. In discharge of public duty, service to the public is catered. What is the meaning of public service in the context of exercise of power under Art. 226 of the Constitution? I have the occasion to deal with it though briefly in para 15 of the judgment dated 26-9-1991 passed in O.J.C No. 3206 and 3746 of 1990 in Division Bench sitting with Hon'ble Smt. Justice A.K Padhi. The view expressed by the Division Bench was that the public service does not mean the same thing as the regal or sovereign activities of the State. The plain meaning of this public service is service to which any member of public has every access on payment of usual charges. In other words the services must belong to people pertaining to a fact or information in general and commonly shared by or opened to public and not to a private individual. In essence it is devoted and directed to general public. In order that this duty pertains to the residuary of the public service, be enforced against an individual or a body of private persons, the duty must have been controlled by statutory provisions and there would be allegation that the statutory provisions have been violated. At this stage, let me give some example. Let us take a person running a private hotel wherein members of the public can check in as guests on payment of usual charges. Is he to be amenable to writ jurisdiction? In case of a private transporter running passenger buses on payment of charges, is he amenable to writ jurisdiction? If we say that these are public services because a man is entitled to receive public service on payment of requisite fees and therefore the private bodies are amenable to writ jurisdiction, there will be nothing left for any other court to decide and it will be a too wide and liberal an interpretation of the expression ‘public service’. I do not find any case deciding that such persons are amenable to writ jurisdiction, unless of course there are statutory conditions to be complied with by such persons in running their business of this kind indicated and there is violation of such mandatory statutory provisions to the detriment of the persons for whom the service is intended, the writ cannot be issued. In the present case, the hostel run by Mahila Samittee does not stand in any different footing. There is no allegation that they have violated any statutory provisions in running the hostel and since providing accommodation of this nature is no public service and over and above there is no such violation of any statutory rule, a writ cannot be conceived against the opposite parties in the present case.

56. In the case reported in (1990) 70 Cut LT 642 (Antaryami v. State of Orissa) there was a question as to whether private educational institutions are performing public duty and this court while followed the view of the apex court in Anadi Mukta Sadaguru and Praga Tools Corporation held that there can be no denial that those private educational institutions are discharging most important public function and even though they are private educational institutions, they are amenable to the writ jurisdiction of this court on the ground that they are discharging public duty. This court has referred to S. 4(4) of the Orissa Education Act, 1969 and stated that all existing educational institutions shall be deemed to have been established in accordance with the provisions of the Act and also took notice of the facts and decision in Kalavati Punjabi v. Inspector of Schools, Koraput Circle, ILR (1973) Cut 1004 and the case of Governing Body, DAV College v. Padmanabha Padhy, AIR 1988 SC 612 holding that S. 7 of the Orissa Education Act, 1969 refers to Managing Committee or the Governing Body for every private educational institutions. I mention this because before the court in those cases decided to issue writ against a private person, it was satisfied on facts about the statutory obligations imposed on that private body and since those educational institutions were vested with statutory duties and their existence were not independent of any statute and that in addition they were discharging the duty of imparting education which is no doubt a public duty, this court considered it desirable and fit to issue a writ.

57. In the present case, the Mahila Sarnittee is not a statutory body but a Society. Its existence is independent of any statute and there is no statutory obligation cast on it whose violation has been challenged in the writ application and even if a liberal view is taken and it is held that even in absence of any statutory duty if the opposite parties were required to render public service and that they have defaulted in such duty entitling the petitioners for issue of any writ, we have to consider if providing hostel accommodation is apart of public duty. As I have already said, I am of the view that providing hostel accommodation for the working women is not a public duty. The reason is: The Government in any democracy has the duty to educate its citizens at any cost even though it may entail expenditure on the exchequer and no profit is contemplated because imparting of education is a public duty to the people at large and any body in that field catering education must be treated to be in the field of catering public service. But the Government has no obligatory duty whatsoever in providing accommodation to working people or poorly paid employees. If they do so, it is their benevolence and is always welcome. No body can make any grievance in law against the State if at places where there are number of working women, hostels are not constructed. In a welfare society the Government takes many measures for providing better facilities and this is one of such endeavour in that direction but it cannot be an obligatory public duty. I, therefore, hold that Mahila Samittee indeed owed no public duty in providing accommodation to the working women.

58. Nothing came out from the side of the petitions as to whether financial assistance of the State was made available to the Mahila Samitee to meet almost the entire expenditure in running the hostel. In a Welfare State, State gives varieties of aids of different magnitude to different institutions. That itself does not bring the institution under the writ jurisdiction of this Court. I also very respectfully differ with my Lord the Hon'ble Chief Justice regarding the application of Care Home case AIR 1988 SC 1782 to the facts of the present case. In the Care Home case the State had the exclusive duty of maintaining the care home providing accommodation to castaways of an imperfect social order which included the women and children who were remanded to custody by any judicial order or by any executive order. The facts of the case was very different. The report of the District Judge in that case which was placed before the Hon'ble Supreme Court showed that the entire building of the Care Home consisted of few dilapidated rooms whose roofs were leaking almost in every place and number of inmates were allowed to sleep in a single room on the floor at times without any covering during the severe winter of Northern India, there was no lavatory nearby to be used by such inmates and Rs. 5/- was only allowed as the daily allowance for each of them. Many tried to escape from such Care Home and desired to go back and live elsewhere instead of receiving this kind of aid from the Government in the name of Care Home. The apex court found that this was not human living and could be said to be worse than animal living. If anybody raised any voice against the authority of Care Home, he was beaten. Such a case has no application to the facts of this case. In this case the State bears no obligation in running and maintaining the hostel. The Mahila Samittee applying its own fund, raising funds from the public have raised this hostel though some financial assistance was received from the Central Government. The Care Home case of Bihar has absolutely no application to the facts of the present case though it accepted (as appears from the portion of the judgment quoted by my Lord) that women and children had been relegated to a place far below their due in certain cases because of which it may be that there is necessity of making provision for their protection and welfare.

59. It has been rightly indicated by my Lord the Chief Justice that there was neither any question of victimisation nor violating of natural justice in taking a decision in removing the petitioners from the hostel and even though any opportunity has been afforded to them they did not show any cause. In a hostel like this where many young women reside, strict discipline is necessary and in that direction if it is required that they must come to the hostel in time or to sign the late coming register in the event they come late at night, there was nothing wrong and the in mates of the hostel who desired to come to stay in the hostel by accepting the condition of the hostel cannot make a grievance against these conditions subsequently which would cause, complete indiscipline in the hostel administration. If the discipline of the hostel is lost, the reputation of the hostel may be in jeopardy. When we hold that there was no violation of principles of natural justice in taking this decision of removal of the inmates of the hostel nor there was any case of victimisation, the impugned order is bound to be maintained. Therefore, I do not find any reason for calling upon the authorities again to give further opportunity to the petitioners to have their say in the matter. That will be contrary to our findings and decision. The petitioners are educated ladies. If by now they have realised the justification in the action of the hostel authorities and make fresh prayer to them to consider their case and take them back into the hostel, the hostel authorities may consider their cases keeping in view the rules and discipline of the institution for which no judicial direction is warranted.

60. I am, therefore, of the view and hold that the present writ application is not maintainable and in the facts of the case also there is no merit for interference. I fully associate with my Lord the Hon'ble Chief Justice in expressing our feelings about the efforts of the learned Advocates of both parties as contained in para 51 of my Lord's judgment.

Order accordingly.