Page 118 - GSTL_3rd September 2020_Vol 40_Part 1

52 GST LAW TIMES [ Vol. 40
present ab extra to make a person “authority”. [Som Prakash Rekky v. Union
of India - (1981) 1 SCC 449]. When the person is an agent or instrument of
function of the State, the power is ‘public’. The true test is functional. Not
how the legal person is born, but why it is created. There are various factors
which will suggest a body could be “a public authority” these are (a) it is
linked to the Government or its function could be described as governmen-
tal, (b) it provides a public service, (c) the State regulates, supervises and
controls us performance, (d) it is subject to judicial review or is publicly ac-
countable for its action, (e) performs charitable objectives, (f) vested with
statutory powers, with powers to enforce its order by punitive consequenc-
es, (g) the legislature specifically intended by an Act to cover its functions
and responsibilities. In general, without any possible dispute, it can be stat-
ed that a public authority is one which has a legal mandate to govern, or
administer a part some aspect of public life.
12. The Hon’ble Supreme Court in Balmer Lawrie & Co. Ltd. v. ParthaSarathi
Sen Roy reported in (2013) 8 SCC 345 examined the scope of terms
“State”/“other authorities” under Article 12 of the Constitution. The obser-
vations of the Apex Court are :
“21. A public authority is a body which has public or statutory
duties to perform, and which performs such duties and carries out its
transactions for the benefit of the public, and not for private profit. Arti-
cle 298 of the Constitution provides that the executive power of the Un-
ion and the State extends to the carrying on of any business or trade. A
public authority is not restricted to the Government and the Legislature
alone, and it includes within its ambit, various other instrumentalities of
State action. The law may bestow upon such organisation the power of
eminent domain. The State in this context, may be granted tax exemp-
tion, or given monopolistic status for certain purposes. The “State” be-
ing an abstract entity, can only act through an instrumentality or an
agency of natural or juridical persons. The concept of an instrumentality
or agency of the Government is not limited to a corporation created by a
statute, but is equally applicable to a company, or to a society. In a given
case, the court must decide, whether such a company or society is an in-
strumentality or agency of the Government, so as to determine whether
the same falls within the meaning of the expression “authority”, as men-
tioned in Article 12 of the Constitution, upon consideration of all rele-
vant factors.
……….
24. When we discuss “pervasive control”, the term “control” is
taken to mean check, restraint or influence. Control is intended to regu-
late, and to hold in check, or to restrain from action. The word “regu-
late”, would mean to control or to adjust by rule, or to subject to govern-
ing principles.”
The appellant is concerned with ‘Public’ - namely the employers who are
governed by the EPMF & MP Act. The employers are governed by the said
Act for delivery of welfare benefits to the employees (members of the
Fund). The appellant is an “authority” having vested with statutory powers
to enforce the due contribution of fund, administration charges, penal
charges, etc. The appellant has power to impose penal consequence on em-
ployers for violation of any provisions of EPMF & MP Act, and also for co-
ercive recovery of dues.

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