TaxTMI 
TaxTMI 
2009 (3) TMI 1089
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....s the Senior Vice President of the respondent No. 2 for the first time and his term of four years was expiring on 28th January, 2006. The petitioner has claimed that he was vitally interested and concerned with the manner in which the affairs of the Indian Hockey Federation were conducted. 3. Sh. K.P.S. Gill - respondent No. 3 was elected President of the respondent No. 2 in 1994 and he has continued to hold the post of President in all elections ever since and as such he was a President of the respondent No. 2 - Indian Hockey Federation for a period of more than 11 years. Mr. K. Jothikumaran, Honorary Secretary General - respondent No. 4 is also stated to be holding the post for three consecutive terms since 1994. 4. The petitioner made allegations of mismanagement and violation of the terms of the Government guidelines and filed the writ petition for the reason that the respondent No. 1 had failed to take any action thereon. A further grievance was made that the respondents were not abiding by the terms of the constitution of the respondent No. 2 and were perpetuating to convene an Annual General Meeting for the year 2003-04 on 30th January, 2005 without circulating the ....
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....then the petitioner would like to have an age wise list of parties who have to take payment from IHF till 31.3.2004. These grievances have been noticed here only for the purpose of elucidating the nature of violations which were being complained of and inquiry sought by the petitioner. 6. In addition to the above, the petitioner has asserted that Clause 3.5 in the Guidelines for Assistance to National Sports Federations prohibits the office bearer from participating in an election after more than two continuous terms and that the respondent Nos. 3 and 4 are blatantly violating the same. The writ petitioner has, therefore, prayed for the following reliefs: (a) Issue a writ of certiorari or any other writ of direction in nature thereof calling the records of the respondent No. 1 pertaining to the grant of financial assistance to respondent No. 2 for last ten years for ascertaining the manner in which the funds granted by the Union of India have been utilised by the respondent No. 2. (b) Issue a writ of mandamus or any other direction in the nature thereof against the Union of India directing that in the event of any unsatisfactory explanation by re....
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....mplaints. There is vehement denial of all allegations of mismanagement and financial irregularities by the respondent Nos. 2 to 4. In view of the discussion in the later part of the judgment, I am not dwelling at the point wise response of the respondents at this stage. The various legal objections to the maintainability of the writ petition by respondent Nos. 2 to 4 assailing the very existence of the clause in the guidelines; legislative competence of the Union Government to legislate with regard to the subject of sports and hence power to issue executive instructions; bindingness of the guidelines; competence of this Court to issue a writ of mandamus to enforce non-statutory guidelines and entitlement to any relief of the petitioner have been challenged. The respondent No. 1 has not joined issue with the objections raised by the respondents. 8. Alongwith the writ petition, the petitioner has filed CM No. 5616/2005 praying for an interim direction to the respondents to hold any future Annual General Meeting in accordance with the applicable rules and regulations. A further prohibition was sought restraining the respondent Nos. 3 and 4 from participating in the election proc....
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....orms with reference to which the Government's assistance and its instrumentality should, on occasions, be made available to the Indian Olympic Association/the National Sports Federations/National Sports Associations. In this background, the Government of India had considered the matter carefully in consultation with the All India Council of Sport and therefore decided that in the interest of promotion of sports and games, the government's financial and other assistance shall be extended only to those national organisations dealing with sports and games which fulfilled certain conditions laid down in its guidelines. 11. It is noteworthy that these guidelines were finalised on a careful and prolonged consideration in inter-ministerial consultation and with all those concerned and were titled as "Improvement of Standard of Sports and Games in the country - Conditions For Financial and Other Assistance to National Sports Federation/Associations etc.". 12. The Indian Olympic Association had participated in the consideration and even requested for time to bring the constitution of the Indian Olympic Association and concerned National Sports Federations in line with the g....
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.... 8 years: The expression 'office bearer' was defined in explanation 1 as the President; Secretary; the Secretary General or any other corresponding office and the treasurer. Clause (i) of explanation 2 declared that no person who had already held these offices in the National Federation/Association consecutively for two terms or 8 years shall be eligible to seek re-election to any of the said offices or Vice-President or Treasurer till the expiry of a period of at least four years from the date on which he last vacated his office. The clause with regard to the tenure restriction of the named office bearer was in operation right from 1975 when the Government made the guidelines applicable for the purposes of recognition and assistance from it were concerned. 14. With the passage of time, several national sports federations came into existence for the development of specific games/sports disciplines. In achieving their objectives, the Government of India actively supported these federations. The existing guidelines for assisting such national sports federations had been reviewed and revised based on the experience for preparation of the Asian ....
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....ociation and National Sports Federations, which marked an important departure from the approach followed in the past. Amongst others, the revision provided for an emphasis on professionalising and upgrading administrative and financial management of federations; detailed guidelines for preparation of long term development plans; tripartite agreements between the National Sports Federations, the department and the Sports Authority of India; defined criterion for priority categorisation for Government assistance; a discipline specific project approach for processing cases for financial assistance; development of systems to handle players' grievances inter alia were provided for. The amendments were necessary to streamline the procedure for effective coordination amongst various agencies involved in promotion of sports and to extend required infrastructure, training and other facilities to the sports persons for achieving excellence in the international events in the coming years. 19. It is noteworthy that these guidelines incorporated innovation also as 'the flow of funds to federations would also include a substantial portion of the events of other major schemes of the....
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.... category included such sports which are included in the Olympic, Commonwealth and Asian Games or such other sports for which internationally recognised tournaments are held in which at least 20 countries participated subject to fulfilment of certain conditions. So far as hockey is concerned, both men and women hockey is included at serial No. 8 and 9 of the priority sports discipline. 22. With a view to codify the requirements for granting recognition at the discretion of the Government to the national level federations the Government has included Guidelines for Recognition of National Sports Federations' and Annexure II to the Guidelines. Clause 2.2 thereto states that recognition shall mean recognition of the leadership of the federation in the development of a particular sport in the country. 23. The amended guidelines also contain a tenure clause for office bearers which reads as follows: 3.5. Tenure of the Office-bearers: The tenure of office-bearers shall be in accordance with the Government Orders issued under letter No. 11-4/74-SP.I dated 20th September, 1975 (copy placed at Annexure-XI). As per above Orders, Office-bearers of NSI....
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....g detected in their internal functioning. The procedure and consequences of suspension and de-recognition were also indicated as an annexure 3 to the guidelines. 27. Clause 5.1 states that recognition of a federation shall not be a matter of right and shall be purely at the discretion of the Government of India which may grant recognition subject to such terms and conditions as it deems fit. The Government has retained the power to withdraw recognition which would disentitle the federation from consideration of any proposal till the cause of the suspension or withdrawal of the recognition is settled to the satisfaction of the Government of India. 28. Condition IV in Clause 6.1 prescribes that in order to be eligible for financial assistance and sponsorship, the organisation must maintain their recognised status with the department. Clause 6.2 stated that the National Sports Federation would be eligible for assistance under these guidelines immediately after recognition. The funds to the National Sports Federation would flow as grants or from other schemes of the department for the purposes of the training requirements; purchase of equipment; participation in tournaments abroa....
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.... India; executive director (Teams); one international (preferably an Arjun Awardee or an international medal winner) to be nominated by a Government nominee of the Indian Olympic Association as its members. The coach would be shortlisted from a panel prepared by the Sports Authority of India. The national coach would be appointed by the Sports Authority of India after a careful consideration of the name recommended by the Selection Committee. The Indian Hockey Federation/respondent No. 2 is stated to be a society registered under the Societies Registration enactment. 31. A preliminary an objection has been raised that the petition under Article 226 of the Constitution of India seeking issuance of a writ against the respondent No. 2/Indian Hockey Federation is not maintainable on the ground that it is a society registered under the Societies Registration Act. 32. The very issue urged in the present writ petition arose before the Division Bench of this Court in the pronouncement reported at 114(2004)DLT323 Rahul Mehra and Anr. v. UOI and Ors. An objection to the maintainability of the petition against the Board of Control for Cricket of India (a society registered under the ....
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....me to the conclusion that it is only in the circumstances when the authority or the person performs a public function or discharges a public duty that Article 226 of the Constitution can be invoked. And, then in G. Bassi Reddy v. International Crops Research Institute (2003)IILLJ1123SC the Supreme Court held: 28. A writ under Article 226 can lie against a ''person'' if it is a statutory body or performs a public function or discharges a public or statutory duty Praga Tools Corpn. v. C.A. Imanual; Shri Anadi Mukta Sadguru Trust v. V.R. Rudani SCC at p. 6 and 8 and VST Industries Ltd. v. Workers' Union.... Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. Ultimately, in Federal Bank Ltd. v. Sagar Thomas (2004)ILLJ161SC : From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statu....
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....rose before the Apex Court in the judgment reported at AIR2005SC2677 Zee Telefilms Ltd. and Anr. v. UOI and Ors. as to whether the Board of Control for cricket of India ('Board' hereafter) was not a 'state' within the meaning of Article 12 of the Constitution of India. In para 30 of the pronouncement, the majority view was expressed that it cannot be denied that the BCCI does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket which activities can be said to be akin to 'public duties' or 'state functions'. The position that the BCCI was exercising public functions and was performing a public duty was accepted. It was, however, held that the BCCI was in the nature of a private body exercising public functions and performing public duties and that by itself did not suffice to make such a body a state for the purposes of Article 12 of the Constitution of India and for this reason, a writ petition under Article 32 of the Constitution would not lie to the Supreme Court. However, if there was any violation of any constitutional or statutory obligation or....
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..... However, as a rule of prudence and convenience, the courts have avoided interference in matters involving disputed questions of law or where alternate remedies for dispute resolution are available. The courts have also restrained their hands where the dispute raised is of a purely private nature without any 'public law' element. However just as state activity has not remained confined to the narrow issues of governance; private enterprises are also not confined to areas of private activity and there is a tremendous interplay between private players and activity of public nature, with or without direct Government intervention or involvement. 41. Increasingly courts are giving an expanded definition to the rights of citizens. In the judgment reported at Secretary, Ministry of Information & Broadcasting, Government of India and Ors. v. Cricket Association of Bengal and Ors., the Apex Court was concerned with an issue as to the rights under Article 19(1)(a) in the context of the right to telecast a sporting event and held that when a telecaster desires to telecast a sporting event, it was held that it would incorrect to say that the free speech element is absent from this ....
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....ure private law having no traces of public law would not be the subject matter of writs, directions or order to be issued under article 226. 17. At the cost of repetition, we may state that the whole ''amenability'' issue is misplaced. A body, public or private, cannot be categorised as ''amenable'' or ''not amenable'' to writ jurisdiction. The ''function'' test is the correct one to test maintainability. If a public duty or public function is involved, any body, public or private, qua that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of article 226. The BCCI which is the smile repository of everything cricket in India has attained this ''giant'' stature through its organisation, skill, the craze for the game in India and last but not the least by the tacit approval of the Government. Its objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions. Others may be in the field of private law such as private contracts, internal rules not affecting the ....
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.... body or a unit of a National character affiliated as a member of the federation. Its membership under Clause 3 is confined to the controlling body for hockey in any state within the Indian union and anybody or a unit of a national character to which the federation in its discretion may grant affiliation'. As per the Memorandum placed on record by the petitioner, it had thirty three member associations which includes state associations, Railway & Services Sports Control Boards. 45. So far as the BCCI was concerned, it was found that it received no financial assistance from the State and that the Government does not exercise any control over BCCI and non-statutory body. It had also not received recognition under the guidelines from the Government. For this reason, an argument was raised before the court that it is a non-statutory body and no public duties were imposed upon it by statute but that it was a society in the nature of a 'private club'. In Rahul Mehra (supra) the Division Bench rejected this argument as untenable holding that attention to the source of power is misplaced and that "the error arose in viewing the classical prerogative writs of, inter ali....
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.... the government or public authorities. English law is struggling to break out of this tradition and the scope of judicial review, while it is expanding is doing so ever so slowly and lags behind even Scots law18. In India, we have no such difficulty as the framers of our Constitution have unshackled us from the traditional fetters and have given us Article 226 which is much wider because it contemplates the issuance of ''directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose'' to ''any person or authority, including in appropriate cases, any Government''. The fact that the Government has no financial stake in or control over BCCI is, therefore, not relevant. We are not examining the issue as to whether BCCI falls within the meaning of ''State'' as defined in article 12. And, we need not, because the word ''State'' does not appear in article 226 at all! We are examining the question of issuance of orders, directions or writs to ''any pe....
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.... framing laws for regulating sports at the Inter-state, National and International level. 50. Placing reliance on entry 33 of list II of the 7th Schedule of the Constitution of India, the respondents including the Union of India have submitted that the parliament has no power to make laws on the subject of sports. It has further been urged that in view of the mandate of Article 73, the executive power of the union extends to the subject matter on which the parliament alone is competent to make law. It is consequently urged that the parliament does not have the legislative competence to frame any law on the subject matter of sports as the same is covered as Entry 33 under the List II which is within the legislative competence of the state and further that the Union of India has also no power to issue any executive instructions or guidelines which would regulate or control sports in view of Article 73 of the Constitution. The respondents rely on the pronouncement of the Apex Court reported at [1996]3SCR721 State of A.P. and Ors. v. Mcdowell & Co. and Ors. in support of this submission. It is contended that the doctrine of occupied fields/repugnancy has to be applied only to the en....
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....owers and its distribution between the Union of India and the legislature of a state is provided under Article 245 of the Constitution of India which mandates that the parliament may make laws for the whole or any part of the territory of India and the legislature of a state may make laws for the whole or any part of the state. 56. The distribution of the subject matter of laws between those made by the parliament and those by the legislature of state is provided by Article 246 of the Constitution of India. The parliament has thereby the exclusive power to make laws with respect to any of the matters enumerated in list I in the 7th Schedule which is referred to as the Union List. So far as the matters enumerated in the list referred to as the Concurrent List III in the 7th Schedule of the Constitution is concerned, the parliament, and, subject to Clause (1), the legislature of any state has the power to make laws with respect to any of the matters enumerated in this List. The legislature of any state has the exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list II of the 7th Schedule of the Constitution. By virtu....
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....as possible, an undefined term should not be given such a wide scope as to include a particular provision." If a subject comes within a special and specific provision, and can only by defining and enlarging the meaning of the words be brought within the scope of the general, then the special provision should be considered to be exclusive of the other. But, of course, where such a restricted interpretation is not possible, overlapping may be inevitable. Furthermore, the learned Judge adverted to the principle of exception which have been relied upon by other judges in other pronouncements with which he did not agree in view of the provisions of the Government of India Act. Gwyer C.J. while considering the reliance of the Advocate General of India on the residual power of the Federal Government under Section 104 of the Government of India Act had held that resort to that residuary power should be the very last refuge. It was further stated that it is only when all the categories in the three lists are absolutely exhausted that one can think of falling back upon a non-descript. 59. A similar issue relating to the legislative competence of the Federal legislature and Provincial l....
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.... must be had to the context and scheme of the Act: Att.-Gen. for Ontario v. Att.-Gen. for Canada (1912) A.C. 571 at page 583. 60. The principles of interpretation of the items in the Lists laid down by the Federal Court were relied upon by the Apex Court in [2002]2SCR450 UOI v. Delhi High Court Bar Association and Ors. The court stated the law in the following terms: ...As pointed out by Gwyer C.J. in The United Provinces v. Atiqa Begum (1940) F.C.R. 110at page 134 none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. It is, therefore, clear-and it is acknowledged by Chief Justice Chagla-that in construing an entry in a List conferring legislative powers the widest possible construction according to their ordinary meaning must be put upon the words used therein. The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative pow....
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....a Act and the Australian Commonwealth Act and must have known that it is not in practice possible to ensure that the powers entrusted to the several legislatures will never overlap. As Sir Maurice Gwyer C.J. Said in 1940.FC.R.188'(supra) at P.201: It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment maybe so closely interwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its true nature and character for the purpose of determining whether it is legislation with respect to matters in this list or in that. 36. Their Lordships agree that this passage correctly describes the grounds upon which the rule is founded, and that it applies to Indian as well as to Dominion legislation. No doubt experi....
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....character? In their Lordships' opinion the latter is the true view. 63. Mr. P.P. Malhotra, learned ASG relied upon para 35 of the pronouncement reported at Hindustan Lever and Anr. v. State of Maharashtra and Anr. AIR2004SC326 wherein the court placing reliance on earlier pronouncements held thus: 35. If the matter is within the exclusive competence of State Legislature, i.e., List II then the Union Legislature is prohibited to make any law with regard to the same. Similarly, if any matter is within the exclusive competence of the Union, it becomes a prohibited field for the State Legislatures. The concept of occupied filed is relevant in the case of laws made with reference to entries in List III. The doctrine of covered field has to be applied only to the Entries in List III. This proposition of law is well settled in a number of decisions of this Court including State of A.P. and Ors. v. Mcdowell & Co. and Ors.; State of Rajasthan and Ors. v. Vatan Medical & General Store and Ors. and Shri Krishsna Gyanoday Sugar Ltd. and Anr. v. State of Bihar [2003]2SCR75 . 64. In AIR1975AP50 Lachmandas Balachand, Paradise Lottery Centre, 124, Park Lane Secunderabad an....
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....evel coaching or international events or inter-state, national and international sporting relations. The State Government also cannot issue guidelines on the manner in which the Central Government is to dispense its largesse including financial assistance. 70. It cannot also regulate the manner in which the Central Government shall grant recognition to a sports association or federation as a national level body. It cannot be anybody's case that without such recognition, the association can select a national team. 71. Sports at the state level is really a minuscule part of the enormous activities which it takes under its ambit. In its larger multi-faceted, inter state, national and international facets is undeniably beyond the legislative competence of the State Government. Sports at these levels has to be held to be an exception to the general power to legislate conferred on the state legislature by the Constitution. 72. When Entry 33 of List II is so read, it is clearly evident that the general and residuary powers in all matters relating to sports at the national level remain beyond the legislative competence of the State. Hence the same would be clearly beyond th....
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....uragement of sports and provision of all facilities at the national level. 80. It has been pointed out that sports has always been considered as an integral part of education and human resources development and for this reason it was a complete department under the Ministry of Human Resource Development. 81. Any educational programme would be incomplete without sports being an essential part of the same. Participation of the Indian team puts at stake the national reputation. At the same time, in order to be able to contribute to matters of rules, regulations and sporting policies, it is essential that national level bodies or their personnel are involved in international level decision making. 82. In exercise of executive functions under Article 77 of the Constitution of India, the President of India has notified the Government of India (Allocation of Business) Rules, 1961. Having regard to the importance given to the aspect of sports, a separate ministry known as 'the Ministry of Youth Affairs and Sports' has been constituted. So far as in Rule 3 setting out the allocation of business and distribution of subjects is concerned, the same is specified in the 2nd Sche....
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....derived from entry 10 and 13 of List I which read thus: 10. Foreign affairs, all matters which bring the Union into relation with any foreign country. 13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat. 86. There can be no argument that international sporting events have been considered an essential part of diplomatic relations of the nations. Nuances of hostility in political relations, issues of defence, security concerns of players, objections on account of policies of discrimination, apartheid and perceived human right violations have guided nations in decisions to or not to participate in sporting events in different countries. Political and diplomatic clearance is required by the Indian teams before participation in the international tournaments and forums. No State Government would have the competence or the jurisdiction to undertake such exercise. This is clearly the province of the Union Government. 87. It was pointed out on behalf of the petitioners that entertainment tax is a state subject which is leviable on sporting events when considered as part of entertainment.....
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.... in law. For instance, the same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects. 92. The most apt enunciation of the principles which would guide adjudication in the instant case is provided in the pronouncement of the Apex Court reported at [2002]SUPP3SCR220 UOI and Ors. v. Shah Goverdhan L. Kabra Teacher's College wherein the court held thus: It is further a well-settled principle that entries in the different lists should be read together without giving a narrow meaning to any of them. Power of the Parliament as well as the State legislature are expressed in precise and definite terms. While an entry is to be given its widest meaning but it cannot be so interpreted as to over-ride another entry or make another entry meaningless and in case of an apparent conflict between different entries, it is the duty of the court to reconcile them. When it appears to the Court that there is apparent overlapping between the two entries the doctrine of "pith and substance" has to be applied to find out the true nature of a legislation and the entry ....
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....sor Yashpal and Anr. v. State of Chattisgarh and Ors. In this case, the Apex Court was concerned with the validity of The Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 which provided for establishment of self financed private universities for higher education in the stage of Chattisgarh. The legislative provisions permitted such universities to affiliate any college or other institution or to set up more than one campus, with the prior approval of the State Government, 'off campus centres' which means a centre of the university established by it outside the main campus 'within or outside the state' as well as 'off shore campus' which meant a campus of the university established by it outside the main campus (within or outside the 'state') operated and maintained as its constituent unit. It was held by the Apex Court that in view of Article 245(1) of the Constitution, Parliament alone is competent to make laws for the whole or any part of the territory of India and the legislature of a state may make laws for the whole or any part of the state. The impugned Act which specifically made a provision for the enabling u....
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....101. The Union of India has also not enacted any legislation in exercise of any of the powers conferred on it. All the decision making responsibility for national level sports has been consolidated in the hands of the National Sports Federations. 102. There is yet another important aspect to this issue. 103. In view of the submissions being advanced, learned senior counsel appearing for the respondents were asked as to which authority, according to them would have the jurisdiction to govern national and international level sports and relations. The unanimous answer rings a death knell for Indian sports as the unanimous submission was that no one would have the jurisdiction and the only option available in the matter is for the Parliament to effect a constitutional amendment to make provision and to confer legislative and executive competence on the government to legislate or to pass executive orders in respect of this issue. 104. In the light of the above discussion, it is evident that well settled principles for constitutional interpretation have not been taken into consideration. 105. The submissions made by learned Counsel for the respondents also attempts to undermi....
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....to the provisions of the Income Tax Act Ref : [1966]59ITR243(SC) Hari Krishna Bhargava v. UOI; the Wealth Tax Act of 1952 Ref : UOI v. H.S. Dhillon [1972]83ITR582(SC) and AIR 1970 SC 999 Second Gift Tax Officer v. D.H. Nazarat; Commissions of Inquiry Act; Ref : [1959]1SCR445 C.F. Mithan Lal v. State of Delhi; Himachal Pradesh Assembly (Constitution & Proceedings) Validation Act, 1958. The pronouncement lays down the parameters within which reliance to Article 97 would be placed. 111. It has been held in UOI v. H.S. Dhillon S.P. Mittal v. UOI and Kartar Singh v. State of Punjab that while examining the legislative competence of the parliament to make a law, what is required to be seen is as to whether the subject matter falls in the State List which the Parliament cannot enter. If the law does not fall in the State list, Parliament would have the legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and it would not be necessary to go into the question as to whether it falls under any entry in the Union List or the Concurrent List. It was observed by the Chief Justice that "if a Central Act is challenged....
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....nation and regulate the sport in the country. It would have duties to perform towards players, coaches, umpires, administrators and team officials. Aspects of ensuring several rules for the sport to prevent physical injury to all concerned has to be continuously reviewed. Health, sociability and play are important values to be recognised in the human. International sporting events promote and aim at good relations in the comity of nations; promote peace and prosperity for the people even at the domestic level. Development of sport at the national level would include nomination of players for national awards as the Arjuna Award which are accepted by the Government. 117. This is the position not only with an item like sports. Wealth tax and other taxation issues; drugs and pharmaceuticals etc also raise similar issues. In the instant case, there is no conflict of jurisdiction created by different entries nor an overlap. One subject for different aspects and purposes falls under different entries which are not in the same list. I find neither a conflict of jurisdiction nor any overlap with regard to the jurisdictions of the Parliament and the State Government to legislate.....
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....re. However, a very important larger question as to the bindingness of the minority view in a pronouncement of the Apex Court has been argued at great length. A writ petition titled Zee Telefilms v. UOI and Ors. was filed in the Supreme Court of India which was decided by a pronouncement reported at AIR2005SC2677 Zee Telefilms Ltd. v. UOI and Ors. An objection that the Board of Cricket Control of India (impleaded as a respondent) was not covered within the definition of 'State' under Article 12 of the Constitution of India and hence a writ petition under Article 32 of the Constitution of India against it was not maintainable was taken. By a three Judge majority the objection was sustained while the two judge minority ruled against the petitioners. The minority judgment commented on several aspects which are not mentioned in the majority judgment. 125. So far as maintainability of writ proceedings against the cricket board was concerned, the minority view observed that sports has travelled way beyond a pursuit of a mere hobby or interest. With sponsorships of players and sporting events and the absorption with sports, today it is pursued as a vocation and a profession. In....
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....g). Sport has been included in the Human Resource Development as a larger part of education. The Ministry of Youth Affairs and Sports was earlier a department of the Ministry of Human Resource Development. Now a separate Ministry of Youth Affairs and Sports has come into being, in terms of the Allocation of Business Rules. Xxx 63. We may notice at this juncture that the Union of India in exercise of its executive functions in terms of the Allocation of Business Rules framed under Article 77 of the Constitution of India created a separate Ministry of Youth Affairs and Sports for the said purpose. One of the objects of the Ministry is to work in close coordination with national federations that regulate sports. Keeping in view the fact that the Union of India is required to promote sports throughout India, it, as of necessity is required to coordinate between the activities of different States and furthermore having regard to the International arena, it is only the Union of India which can exercise such a power in terms of Entry 10, List I of the Seventh Schedule of the Constitution of India and it may also be held to have requisite legislative competenc....
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....tment because they held that Sub-section (4) of Section 34, would save the notice in that case. On these facts, therefore, Mr. Natu urged that so far as the question of the applicability of Article 14 is concerned, of the three Judges who agreed that the appeal should be allowed, only one was of the view that the proviso was unconstitutional, whereas two were of the view that the proviso was not un- constitutional. Therefore, in that decision so far as the question of the applicability of Article 14 was concerned, the majority who allowed the appeal did not hold the proviso unconstitutional. 23. We do not think that we can accede to the contention of Mr. Natu having regard to the provisions of Article 145(5) read with Article 141 of the Constitution. Article 141 says that "The law declared by the Supreme Court shall be bind- ing on all courts within the territory of India." It is the law declared by the Supreme Court that binds this Court and not the judgments. This is made clearer when we consider Article 145(5). In Article 145(5) the words used are, No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a....
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....r Chittur and Ors. The court held as follows: 168. I may also state that there was a contention raised on behalf of the petitioners that the Act, though it purports to levy a tax on land, is really a law relating to forests in the possession of the petitioners and would not come within the purview of Entry 18 read by itself or in conjunction with Entry 45 of list II; and that it is really 3 law relating to Forests under Entry 19. 169. No doubt, this contention has been noted by his Lordship the Chief justice of the Supreme Court in the earlier decision, but the majority have not expressed any view on this aspect and they have assumed that the State Legislature had the necessary competence to enact the Land Tax Act, 1955. 170. But Mr. Justice Sarkar, in his dissenting judgment, has referred to this aspect and has ultimately held that under Entry 49 taxation of land on which a forest stands is permissible and legal. Inasmuch as there has been no adjudication by the majority on this aspect, I am bound by the decision of Mr. Justice Sarkar on this aspect and I have to hold that the contention Of the petitioners regarding the competency of th....
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....nd that the learned Judges have not considered the principles laid down in the judicial precedents noticed herein above which contain a detailed consideration as to what would constitute law laid down by the Apex Court. In Manubhai D. Shah (supra), the court merely observed that it is risky and imprudent for the High Court to rely upon observations made in a dissenting and minority judgment and consequently they refrained from making any reference to them less the court was unwittingly influenced by them. In the light of the legal principles laid down in the aforenoted judgments. I find myself unable to take this view. 135. Dr. A.M. Singhvi, learned senior counsel appearing for the respondent Nos. 2 to 4 has urged at length and reliance is placed on para 25.99 of the Constitutional law of India by the noted jurist Mr. H.M. Seervai on pages 2669-2675 where the learned author has quoted Lord Denning thus: We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on wh....
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....under Article 12 has to take the expanded definition or the narrower view requires to be adopted. 140. The majority view has laid down that the BCCI being a private body exercising public functions, it would not be covered under the definition of state under Article 12 and hence a writ petition under Article 32 of the Constitution against it would not lie. It was however held by the majority that the remedy to an aggrieved person would lie under the ordinary law as well as by way of a writ petition under Article 226 of the Constitution of India. 141. In view of the principles laid down by the Bombay High Court in the abovenoticed three judicial pronouncement at Mahendra Bhawanji Thakar v. S.P. Pande and Anr., Kerala High Court in Padmanabha Ravi Varma Raju and Ors. v. The Dy. Tehsildar Chittur and Ors., Punjab & Haryana High Court in UOI v. Landra Engineering & Foundry Works; Ram Sundri v. Collector, Ludhiana and Allahabad High Court in Prem Prakash Gupta v. UOI and Anr. under Article 141, the law laid down by the Supreme Court is any judgment in a case decided by the Supreme Court whether it is the judgment of a judge forming the majority or of a judge in minority and dissen....
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.... or legal basis whereby this Court would stand precluded from taking the same view as that in the minority judgment in Zee Telefilms (supra). Whether guidelines dated 14th August, 2001 were merely draft guidelines or had been kept in abeyance 147. Before this Court, efforts have been made by the respondents to urge that these guidelines have not been accepted by the Government and cannot be enforced. The respondent No. 1 on the one side and the respondent Nos. 2 to 4 supported by the Indian Olympic Association on the other have placed a conflicting factual matrix and diametrically opposite grounds which are mutually destructive on this submission. 148. The respondents are however unanimous in their submission that there was resentment to the guidelines. The respondent Nos. 2 to 4 have stated that the Government of India had set up a committee under the chairmanship of Sh. A.K. Pandya, DG, Sports Authority of India to review the position. The Pandya Committee submitted a report in 1992 unanimously recommending the scrapping altogether of the provisions limiting the tenure of the office bearers. However, after hearing the views of the Government, Indian Olympic Associatio....
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....eged meeting on 31st August, 2001 are also not supported in any affidavit of the Government of India on record. 153. The communication dated 14th August, 2001 issued under the authority of the Government of India reflects consideration and concurrence of the other ministry i.e. the Ministry of Finance which was involved in the dispensation stood taken. 154. There is no answer to the query that if these guidelines were merely in the nature of a draft which was pending consideration, what guided the government's decisions for recognition of national sports federations or financial assistance between 2001 till the date of filing of the writ petition. 155. It is evident that if the guidelines on 14th August, 2001 were a draft, then the guidelines dated 14th September, 1975 as revised in 1997 would bind the respondents for grant of recognition and dispensation of financial assistance. There is no dispute that these guidelines contained the very tenure clause complained against before me and therefore, in order to be entitled to recognition and assistance from the Government, the National Sports Federation/Association had to fulfil these requirements. 156. The Government ....
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.... these defaulting National Sports Federations (NSFs) under the prevailing circumstances is to stop giving financial assistance being provided to them as per the guidelines. But the Government, in general, refrains from taking such a harsh action, as it would adversely affect the interest of Indian sports persons having a lot of potential to excel in their respective sport. 157. In the course of hearing on 17th May, 2005, Mr. P.P. Malhotra, learned Additional Solicitor General orally submitted that on perusal of the Government files relating to the matter in issue, it had been brought to his notice that the clause relating to the tenure of the office bearers of two terms of four years each, as mentioned in the 1975 guidelines were ordered to be kept in abeyance by an order dated 24th August, 2002 passed by Km. Uma Bharti, the then Minister of Youth Affairs and Sports and practically it is in abeyance right from the inception and has never been implemented for any sports association/federation. 158. As such stand had not been taken in the counter affidavit dated 12th May, 2005 filed by the Government, a direction was issued to the Government to file an additional affidavit in t....
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....le 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As along as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones. 162. In 1987CriLJ1860 State of Bihar etc. v. Kripalu Shankar etc., the court observed that a Government functions by taking decision on the strength of views and suggestions expressed by various officers at different levels, ultimately getting finality at the hands of the minister concerned, the court had observed that Article 166(1) required that all executive action of the State Government shall be expressed to be taken in the name of the Governor. Undoubtedly, this clause relates to cases where executive action has to be expressed in the shape of a formal order or notification and it prescribes the mode in which an executive action has to be expressed. It was held that notings by an official in the department file would not come within the ambit of the Article nor even no....
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....in be 'kept in abeyance' or 'be scrapped'. There is neither occasion nor requirement for so ordering on draft Guidelines. 166. So far as tenure was concerned, Clause 3.5 has been in existence since 1975. An issue was raised at the instance of the sports federations that the same was unreasonable. 167. I find that the Government has placed before this Court a meeting notice and the agenda note for the same. The details of the proposed amendment which were to be considered by the meeting have been set out as agenda item No. 1. It is noteworthy that the agenda items do not include any discussion relating to the tenure clause in the guidelines. This was evidently for the reason that no amendment was being proposed to the said clause. 168. In fact, in the meeting held on 11th October, 2001, it was directed that the revised guidelines would be implemented with immediate effect. According to the Government, the Minister had concluded that 'issue of tenure' would be kept in abeyance and would be considered with the report of the working group. This by itself shows that a report of the working group was being awaited before taking any kind of decision, inter....
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....ispute the existence but explain inability to produce this file for the reason that it is not traceable and that the answering respondent is making sincere efforts to locate the said note. 173. It is noteworthy that the respondent No. 1 relies on the notings produced by the petitioner with C.M. No. 6578/2005 and have reproduced a part thereof in the body of the affidavit on its behalf to show that the note dated 30th October, 2001 was actually prepared only to provide assistance in the revised/annexed scales to all NSFs as well as federations who had become eligible for assistance after the issue of the revised guidelines on 14th August, 2001. The affidavit further states that the purpose of this note was for seeking orders to process cases for grant of assistance to N.S.Fs on revised scale and freshly eligible federations as the office had withheld processing of files in view of order dated 31.8.2001, 21.9.2001 and 11.10.2001 and that the decision of the then Hon'ble Minister that the issue of tenure will be kept in abeyance and will be considered alongwith the report of the working group (as indicated in the minutes of the meeting held on 11.10.2001 filed before the Hon....
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.... produced before the court was not traceable was deprecated by the court and it was observed that the allegation of the petitioner, if true, reflected very poorly on the integrity of the organisation. 177. It has not been contended before this Court that the note sheets relied upon by the petitioner do not have a bearing or are not relevant for the purposes of consideration of the pleas raised by the parties before this Court. It needs no elaboration that a party in possession of the best evidence and material is bound to place the same before the court irrespective of the onus or burden of proof. In the instant case, the respondent No. 1 cannot adopt a partisan stand inasmuch as the petitioner is seeking enforcement of guidelines framed by it and what is at stake is recognition of a national level sports body and dispensation of enormous sums of public funds in the form of financial assistance and utilisation of public resources. The duty cast on the respondent No. 1 is even more onerous and it was bound to have placed the complete facts and official records before this Court, leaving it to the court to draw its own conclusions therefrom. Instead, two contradictory stands have ....
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.... by such recognition granted by the Union of India the team selected by the Board is the Indian cricket team which it could not do in absence thereof. 181. It was never stated that these were draft guidelines or that any portion thereof was in abeyance. The Union of India had pleaded that the BCCI and its officials are the recipients of State largesse and recognition under the Government guidelines. 182. The submissions made on behalf of the respondents can be tested from yet another aspect. If it were to be held that the guidelines dated 14th August, 2001 are not binding, it may result in a chaotic state of affairs. More than one state level federation/association may claim that it is the national level federation/association. These guidelines have been in force since the year 1975. 183. The stand in the later affidavit is clearly an after thought and contradicted by the copy of the notings produced by the petitioner and the affidavits of respondent Nos. 2 to 4. 184. It is noteworthy that the note sheet produced by the petitioner also shows that the revision in the guidelines has the approval of not only the Ministry of Youth Affairs & Sports but also has the concurren....
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....n issue to enforce non-statutory guidelines 188. It has been urged on behalf of the respondents that the guidelines being administrative in nature would not be enforceable by issuance of a writ in the nature of a mandamus. The submission is that administrative rules, regulations, instructions, which do not flow from statutes have been held to have no force of law. Guidelines issued by way of executive instructions also cannot override statutory provisions. Any order passed in violation of such guidelines cannot be held to be illegal, void or inoperative. 189. It has been urged by Dr. A.M. Singhvi, Senior Advocate as well as Mr. V.P. Singh, learned Senior Advocate representing the respondent Nos. 2 to 4 on the one hand and the Indian Olympic Association that no writ in the nature of a mandamus can be issued to enforce purely administrative instructions and a member of a private association cannot approach the court for enforcement of such administrative instructions which do not have the force of law and cannot bind the associations. In this behalf, reliance has been placed by learned senior counsels on the pronouncements of the Apex Court reported at (1966)ILLJ451SC State of ....
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....a proposition and that the general rule that an administrative order confers no justiciable right was subject to exceptions. There are administrative order which confer rights and impose duties which would be enforceable. The principles laid down by the Apex Court in this behalf in this pronouncement read as follows: 10. xxx To say that an administrative order can never confer any right would be too wide a proposition. There are- administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area. A very perceptive writer has written: Let us take one of Mr. Harrison's instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit....
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....ment scheme. It is equally true that when an executive authority commits breach of these instructions, it could not be said that a statutory obligation had been violated. It is also undisputed that ordinarily a claim for mandamus must be based on a legal right and such a writ is granted to compel the performance of a statutory duty. There are, however, well recognised exceptions to this general rule. It has been recognised that there are administrative orders which confer right and impose duties and that Courts have a power in appropriate cases to compel performance of the obligation imposed by the non-statutory scheme or administrative instructions upon the executive authorities U.O.I. v. K.P. Joseph [1973]2SCR752 ; U.O.I. v. Indo Afghan Co. Air 1963. S.C. 718. At one time it was no doubt that the executive instructions did not bind the authorities, could not confer any right or obligation and could not, therefore, be enforced, in a Court of law. Recent legal thinking has, however, recognised that where there is no statutory provision, executive instructions fill in the gap Sant Ram v. State of Rajasthan (1968)IILLJ830SC and are not only capable of conferring rights on the citizen....
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.... the guidelines on which the petitioners have relied are not statutory in character. These guidelines are not judicially enforceable. The competent authority might depart from these guidelines where the proper exercise of his discretion so warrants. In the present case, the statute provided that rules can be made by the Central Government only. Furthermore, according to Section 6(2) of the Act, the competent authority has the power and jurisdiction to condone any deviation from even the statutory requirements prescribed under Sections 3 and 4 of the Act. In Regina v. Preston Supplementary 197 1 WLR . 624 , it had been held that the Act should be administered with as little technicality as possible. Judicial review of these matters, though can always be made where there was arbitrariness and malafide and where the purpose of an authority in exercising its statutory power and that of legislature in conferring the powers are demonstrably at variance, should be exercised cautiously and soberly. 107. We would also like refer to one more aspect of the enforceability of the guidelines by persons in the position of the petitioners in these cases. Guidelines are issued by Gov....
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....de no security at all or if the debt-equity ratio is 6000 : 1 (as alleged) as against the permissible 2:1 (or thereabouts) a Court may be persuaded to interfere. 196. In a judgment reported at Mrs. Vineeta Prasad and Ors. v. The Vice-Chancellor, Patna University and Ors., the court placed reliance on several judicial precedents prior thereto and succinctly summed up the principles holding that: It is now well established that where there is a defined procedure, even without statutory force, it must be scrupulously observed' and non-observance . results in rendering the act void 'being violative of Article-14 of the constitution. In the case of (sic) v. Seaton (1959) 359 US 535, Justice Frankfurter in his classic statement has said that, "he that takes the procedural sword, shall perish with that award." This doctrine is, of late, known as doctrine, of "Procedural sword" and has been accepted as one of the principle of natural justice. The Supreme Court has referred the aforesaid case with approval in the case Sukhdev Singh v. Bhagat Ram. In the case of B.S. Mishra v. Indian Statistical Institute and Ors., it has been said that: If the bye-la....
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....imposed in order to be entitled to the exemption. In this background, the court reiterated the well settled principles that executive instructions can supplement a statute or cover areas to which the statute does not extend but they cannot run contrary to statutory provisions or whittle down their effect. For this reason, instructions which denied exemption to a person who qualified under the statutory notification were liable to be struck down on the ground of impermissible delegation of legislative power to the executive. There can be no dispute with this well settled legal principle. However as noticed above, there is no statutory provision which governs the subject matter of financial assistance or grant of recognition to a sports association as a national body representative of the sport and for this reason the principles laid down by the judgment do not come into play. 199. The nature of an eligibility condition and the very authority of the respondents to impose the same was assailed before the apex court in (1979)IILLJ217SC Ramana Dayaram Shetty v. International Airport Authority of India and Ors. The court considered the expanding activities of the Government in a we....
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....should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes not difference whether the exercise of the power involves affection of some right or denial of some privilege. 11. To-day the Government, is a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licences means power to withhold the....
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....Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual. 12. We agree with the observations of Mathew, J., in V. Punnan Thomas v. State of Kerala AIR1969Ker81 that : The Government is not and should not be as free as an individual in selecting the recipients for its largess. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal". The same point was made by this Court in Erusian Equipment and Chemicals Ltd. v. State of West Bengali [1975]2SCR674 where the question was whether black-listing of a person without giving him an opportunity to be heard was bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that black-listing of a person not only affects his reputation which is in Poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract....
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....o lay down conditions and enforce the guidelines for grant of financial assistance and recognition is concerned, an issue with regard to permissibility of University/State providing for a condition for granting recognition/affiliation was raised before the Apex Court in the judgment reported at AIR2003SC3724 Islamic Academy of Education v. State of Karnataka. The Apex Court in para 17 of the judgment held that such provisions/conditions prescribing merit base selection can be made at the time of granting recognition or affiliation as well as subsequently after the grant of such recognition or affiliation. 201. It is, therefore, trite that though it may not be possible to assert a right based on administrative/executive instructions and non-statutory guidelines, however, a challenge may be available to a person to assail an action by the authority concerned on grounds of arbitrariness, malafide for breach thereof. The prayers made by the petitioner have to be tested in this background. 202. The respondent No. 1 has stated that the Indian Hockey Federation is the national level federation recognised by the Government for the game of hockey. It is further stated by the Governmen....
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....hich they have been enforced certainly cannot be ignored and even though the guidelines be non-statutory or issued in exercise of executive powers by the Government. 206. In the case reported at State of Assam v. Ajit Kumar Sharma (supra), Mr. Ajit Kumar Sharma was a teacher in the Hindu Girls College at Gauhati which received a grant from the State of Assam. Certain conditions had been imposed by the State Government of Assam while giving such a grant to private colleges to enable them to give higher scales of pay etc. to their teachers in accordance with the recommendations of the University Grants Commission. The petitioner was seeking enforcement of these rules as binding on the college and seeking a mandamus based thereon as an entitlement to the benefits under the rules. In the judgment reported at (1966)ILLJ451SC State of Assam v. Ajit Kumar Sharma, the Apex Court clearly held that there was no law to prevent the state from prescribing the conditions of the grants made by it by mere executive instructions which do not have the force of statutory rules. Such conditions of grant in aid laid down by executive instructions were open to the private college to accept or not ....
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....quashed the impugned notification in a particular case and direct the Government to reconsider the question. It was further observed by the court that there was nothing on record to show that the decision of the State Government in any of the cases was arbitrary or capricious or was one not urged in good faith or actuated with improper consideration or influenced by extraneous considerations. The issues raised before the Supreme Court in this case do not arise for consideration in the present case. 208. Again in Kumari Regina v. Saint Aloysius Higher Elementary School and Anr. reported at AIR1971SC1920 the Supreme Court held that if the terms of the appointment letter issued by the school were different from the conditions of the affiliation to be fulfilled by a school as imposed by the State Government, a teacher aggrieved thereby may not be entitled to seek a relief in his favour on the basis of the conditions of affiliation. At the same time, the Apex Court held that, the state administration was fully empowered to enforce the fulfilment of the conditions towards affiliation against the school. It is noteworthy that in para 24 of the pronouncement, the Apex Court has clearly ....
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....o state clearly the conditions for eligibility which the Government would insist upon for recognition of the sports federations/associations as well as those which it would insist upon for releasing grants to sports federations/associations. The sports authorities and bodies which are involved include the Sports Authority of India; Indian Olympic Association etc. 211. It is well settled that a judgment or a judicial precedent is law for the facts in which it was rendered. In the instant case, the petitioner is not asserting entitlement to any individual rights in his favour. Detailed submissions have been made on acts and omissions of the respondent No. 2 and complaints have been made by the petitioner that there is violation of the guidelines dated 14th August, 2001. The petitioner has made a prayer for initiation of necessary action in accordance with the guidelines for withdrawal of the recognition conferred on the respondent No. 2 as a national level sports federation as well as a prayer for withdrawal of the financial assistance rendered by the Central Government. 212. Malfunctioning on the part of a recognised national level sports federation or association causes irrep....
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....functioning of its members. 215. The guidelines framed by the Government enable the National Sports Federations recognised thereunder to derive substantial financial assistance and other facilities from the Government. Apart from purchase of valuable equipment, this assistance includes training/coaching camps; assistance for organisation and participation in national and international competitions and training abroad; appointment, availability and expenditure on foreign coaches for training of sports person, assistance of the Sports Authority of India as well as facilities at the state owned sports set ups. To enable meaningful utilisation of its assistance, the Government has framed guidelines for recognition of national sports federations. 216. As part of its initiative, the Ministry of Youth Affairs and Sports operates a number of independent schemes alongwith the Sports Authority of India which are apart from the financial grants to the national federations. These schemes have a direct bearing on the promotion and development of sports in the country and include (i) Exchange of Physical Education Teachers etc(CEPs); (ii) Rural Sports programme, (iii) National Championship....
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....and functions to abide by the rule of law as well as executive guidelines framed for such recognition and dispensation. No writ of mandamus can be issued to the Government to legislate 220. Placing reliance on the pronouncement reported at AIR2003SC4493 Common Cause v. UOI and Ors.; (2004) 11 SCC 360 In Re. Networking of Rivers and AIR1992SC1546 State of J and K v. A.R. Zakki and Ors. it is also urged by learned senior counsels for the respondents that no mandamus can be issued to the Government to legislate. 221. In Common Cause v. UOI (supra) the Apex Court was concerned with an amendment to the Delhi Rent Control Act. The petitioner's contention was that the amendment bill having received the Presidential assent under Article 111, stood lawfully enacted and stood converted into an Act. It was further urged that the same having been placed on the statute book by a public notification in terms of Section 366(19), the Act was out of the legislative area. It was argued that since the Parliament had not permitted appointment of different dates for different provisions of the Act, Section 5 of the General Clauses Act was attracted and the Act came into force as soon as th....
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....ffice bearer to a maximum of two years of four years each is invalid, illegal, unconstitutional and unenforceable. 226. The respondents have urged that even if it were to be held that the guidelines are valid, enforceable, legal and binding, the stipulation in Clause 3.5 restricting the tenure of the office bearers to two terms of four years each impacts the constitutional rights of the citizens guaranteed under Article 19 of the Constitution of India and is therefore unconstitutional and unenforceable. 227. In support of the objection, the respondents have relied on the pronouncement of the Apex Court reported in 1986CriLJ1736 Bijoe Emmanuel v. State of Kerala and Amreli Distt. Coop. Sale & Purchase Union Ltd., Amreli and Ors. v. State of Gujarat reported at 20 C LJ 1984 195. 228. I find that in K. Suryanaryana v. Distt. Election Officer AIR1976AP340 (para 26 & 34) a similar prohibition statutorily contained in Section 21C in the Andhra Pradesh (Andhra Area) Cooperative Societies Act (7 of 1961) which stipulated that a person who holds or has held office as a member of the committee of the society for two consecutive terms shall not be eligible for being chosen as a membe....
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....ch amounts to taking away the freedom to form an Association. In the present case the restriction is only to become a member of the Committee for a consecutive third term. That means one cannot become a member of the Committee for more than two terms continuously. There is no restriction on becoming member of the Committee once again there after for two more terms. With an interval of one term in between one can become a member of the Committee consecutively for two terms any number of times. This restriction the Legislature in their wisdom thought to be necessary in order to prevent vested rights being established in the Societies which is not very healthy for proper working of the Societies. Therefore, this is not a matter which touches the very right to form a society. We are unable to agree with the argument of Sri P.A. Chowdary that if such restriction is imposed that would be abridging or taking away the right to form a society or an Association. In this connection Sri Chowdary placed strong reliance on two decisions of the Supreme Court. Smt. Damyanti Naranga v. Union of India [1971]3SCR840 and O.K.Ghosh v. E.X. Joseph (1962)IILLJ615SC . In the first decision referred to abo....
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....diment to form an Association or to become a member or having become a member to continue or not as a member of Association, no provision of law can be said to infringe the fundamental rights guaranteed under Article 19(1)(c) of the Constitution merely because such a provision seeks to regulate the functioning and administration of the Association in the day to day working and in the process imposes some restrictions, more so when they are conceived in the best interests of the Association. It is only in cases where a provision of law actually amounts to curtailing the right to form an association in the sense mentioned above, that can be said to be violative of the fundamental rights guaranteed under Article 19(1)(c) of the Constitution. As we have already discussed above, the restriction imposed under Section 21-C on any person from becoming a member of the Committee of the Society for more than two consecutive terms cannot be said to amount to curtailing the right or freedom of a person to form an Association. As mentioned above, the Legislature in their wisdom thought that such a restriction is necessary in order to prevent any person from acquiring any vested interest in the S....
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....ained in the byelaws or the rules or the provisions of the Act comes into operation by reason of the registration of the society under the Act which is the result of a purely voluntary act of its members and as such it is difficult to see how the petitioner can complain of any infringement of Article 19(1)(c) merely because the period of office of the designated officer is restricted by the impugned provision. xxx xxx 17. As far as the impugned provision of Sub-section (5) of Section 73A of the Act is concerned, it is not a provision which restricts the right to continue the association or composition that is voluntarily agreed upon by the persons forming an Association. All that it restricts is the continuance in office of the designated officer if he has been continuously in the office for a period of six years and the bar continues to apply only for a period of three years and thereafter he is free to be elected as one of the designated officers as per the bye laws of the society. In our opinion, Damayanti's case [1971]3SCR840 is clearly distinguishable in that the incorporation of the Sammelan under the Central Act was the result of legislative....
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....above discussion, we are of the view that the contention that Sub-section (5) of Section 73A encroaches upon the rights guaranteed under Article 19(1)(c) is without any merit and in this view of the matter, it would not be necessary to justify the provision in Clause (4) of Article 19 of the Constitution. 22. Even assuming that the impugned provisions can be said to encroach upon Article 19(1)(c), we are also of the opinion that the provision can be justified under Clause (4) of Article 19 as it imposes reasonable restriction in the interest of morality. While, dealing with this aspect, it would be useful to refer to passages from different books relating to principles of co-operation extracted in Brinjgoapal Denga v. State of M. P. AIR1979MP173 where the provisions of Section 19-c(2) of the Madhya Pradesh Co-operative Societies Act conferring power on the Registrar " to expel a member when it is necessary or desirable in the interests of the society" were challenged as being violative of Article 19(1) . It was held by the court having regard to the scheme of the Act and the fact that there is no compulsion to apply for registration of the society under the Act, ther....
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....ave often to be re-accepeted in the hope that they may lead to better things. We wish clearly to express our opinion that it is to true cooperation alone, that is, to a co-operation which recognises the moral aspect of the question that Government must look for the amelioration of the masses and not to a psudo-cooperative edifice, however, imposing, which is built in ignorance of cooperative principles. The movement is essentially a moral one and it is individualistic rather that socialistic. It provides as a substitute for material assets" honesty and a sense of moral obligation and keeps in view the moral than the material sanction " (pp . 5 and 6 of the Theory and practice of Cooperation in India and Abroad by Kulkarni, vol. 1) Cooperation as a mode of doing business. Is at present applied as the solution of many economic problems. Cooperation is harnessed to almost all forms of economic activity. Though cooperation was introduced in this country as as remedy for rural indebtedness, it has been applied successfully in wide range of activities such as production, distribution, banking , supply marketing, housing and insurance: (See Theory and Practice of Cooperation in India and ....
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.... willing to abide by the bye-laws of the society which are required to be approved by the designated authority under the concerned statute in accordance with the prescriptions therein and the rules framed thereunder. 233. The submission made by learned senior counsels for the respondents requires to be examined from yet another angle. It is noteworthy that in para 18 of the pronouncement in Manohar v. State of Maharashtra (supra), the court noticed that it was a uniform pattern in cooperative law all over the country to restrict tenure of certain officers and provision similar to those contained in Section 73A were made in all relevant state enactments pertaining to cooperative societies in other parts of the country. 234. So far as the Delhi Cooperative Societies Act, 1970 was concerned, a similar disqualification clause based on tenures was provided by way of Section 31(5). The tenure restriction in the Punjab Cooperative Societies Act was found to be quite analogous to the one contained in Section 73A of the Bombay statute. The court observed that the decision of the Division Bench of the Bombay High Court at Nagpur in W.P.(C) No. 1418/1981 (reported at 1983 Maharashtra L.....
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....at, in order to carry out its object and activities a society has to be compulsorily registered even under this enactment. 238. For this reason, the submission on behalf of the respondent that the guidelines have the impact of supplanting or that they provide a new condition concerning the working of the societies under the Societies Registration Act is also wholly misconceived. There is no requirement of complying with the guidelines for registration of the sports federation or association or a society under the Societies Registration Act and it is open to get a society registered without complying with the conditions of the guidelines and it would be open to such a society to formulate its own bye-laws and rules without the guidelines interdicting the same in any manner. 239. By the guidelines, the Government has not prohibited formation of an association, society or federation with regard to any sport. It has only mandated that in order to be entitled to financial assistance or recognition as a national level body by the union government, it would require to be a society or an association or federation which enforces democracy by fixing the tenure of the office bearers. Th....
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....l and national teams. 243. Certainly the prescription by the Government of the office bearers to two tenures which brings a length of the total office held by them to 8 years as a condition for eligibility for recognition as a national sports federation or for entitlement of financial assistance from the Government, cannot by any measure be considered insufficient for any office bearer to impart his best to the organisation or the development of the sport or to make a difference. Such a restriction would ensure new office bearers with fresh ideas, enthusiasm and the wealth of their experience making a valuable addition to the organisation. It would also ensure circulation and removal of such who are corrupt or undesirable in the organisation who perhaps by virtue of exercise of political might or other resources, are able to get repeatedly re-elected which would really sounds a death knell for the sport and talented players. This is not to say that regional representation alone is the benchmark for selection of a national team. Merit alone can guide selection. However inability of a state to ever produce player(s) who reach national trials or the national team would certainly....
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.... every reason why the office bearers of an organisation would oppose a tenure clause. Having been elected to an office position, none likes to relinquish charge or demit a position. This is manifested by the amendment to the constitution of respondent No. 2 in 2004 whereby the tenure restriction was removed. 249. In the case in hand, Clause 3.5 in the guidelines does not impact any right or prohibit any person from becoming a member of the society. On the contrary it has the impact of ensuring diversity in the managerial affairs of the association. This is also in keeping with the spirit, intendment and purpose of the statute under which the respondent No. 2 is registered. 250. The Full Bench of the Andhra Pradesh High Court and the Bombay High Court have squarely rejected similar contentions and challenges to statutory provision. The reasoning in these judicial pronouncements throws valuable light on the challenge to the executive guideline before this Court on identical grounds. 251. Before this Court, a submission was also made that the international Olympic Charter prohibited any intervention by the Government in the affairs of a society. Firstly, I see no interference....
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....purpose of the Societies Registration Act; the interests of national sports and hence, national as well as public interest. 255. To dispel any impression of mal-functioning on the part of the respondent No. 2, written submissions have been placed on record stating that the respondent No. 2 has made tremendous efforts to revive Indian hockey. It is stated in these submissions that the efforts made by it under the current office bearers have borne fruit which according to the respondent No. 2 are manifested from the following Achievements of Indian Hockey Federation since 1994 : Medals/Position Place Year 1. ASIAN GAMES: a) 12th Asian Games Hiroshima 1994 Silver Medal b) 13th Asian Games Bangkok 1998 Gold Medal c) 14th Asian Games Busan 2002 Silver Medal 2. ASIA CUP: a) 4th Asia Cup Hiroshima 1994 Silver Medal b) 5th Asia Cup Kulalampur 1999 Bronze Medal c) 6th Asia Cup Kulalampur 2003 Gold Medal d) 7th Asia Cup Chennai 2007 Gold Medal 3) JR. ASIA CUP: a) 3rd Jr. Asia Cup Singapore 1996 Silver Medal ....
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....ich remain totally unexamined. As per the medal tally displayed by the respondent No. 2, the Indian team is now restricted to struggling for medals at the regional level. Lesser teams have grown in stature while India languishes at the bottom. 259. A very telling statement of Abhinav Bindra, the only Indian to ever win an individual gold medal in 2009 Olympics, merits a mention. A question was put to him as to whether India could hope to win medals not because of the systems but in spite of it. His answer to this question was reported by the Indian Express on the 4th January, 2009. This so very talented Indian sport person commenting on the Indian performance in the 2009 Olympics is reported to have answered that "Some really talented athletes will succeed but it will dry up if there is no vision. For a country of 1.25 billion people, three medals in an Olympics is pretty poor. I was happy to win the gold but I was also embarrassed that it took our country so long to win one." 260. In this background, the allegations made by the petitioner in the representations dated 10th January, 2005; 21st January, 2005 and 29th January, 2005 making allegations of grave mismanagement, f....
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.... which is contrary to the mandate and stipulation contained in the guidelines dated 20th September, 1975. 264. It is an admitted position that the guidelines were framed and circulated in 1975, amended in 1997 and in 2001 with the approval of the Ministry of Finance, Department of Expenditure. State revenue was involved. It was incumbent on all those working the guidelines to ensure that the guidelines were strictly complied with. Certainly, there cannot be dispensation of state largesse which include large amounts of funding and other technical assistance, without compliance of the guidelines laid down for such dispensation. 265. The consequence of such failure to abide by the guidelines is that dispensation of state largesse admittedly running into several crores of rupees has been effected in violation of the guidelines framed by the Government of India for the same. 266. This matter assumes significance and importance in the light of nature and extent of assistance rendered by the Central Government in matters of sports relating to the various disciplines. 267. A submission was made by learned standing counsel for the Union of India that the approval of the Finance ....
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....fit and able coaches and players and, of course, the increase in popularity of the game amongst the masses. 271. Alongwith the counter affidavit of respondent No. 4 in support of the credentials of the respondent No. 3, his CV has been placed on record. The respondent No. 3 has declared his field of specialisation as the maintenance of law and order and is a renowned officer of the Indian police service. Undoubtedly, there can be no doubt with regard to his ability as an expert on law and order issues specially relating to terrorism. He has several publications in these areas to his credit for his services so rendered. The respondent No. 3 has been repeatedly decorated with police medals in 1989 and stands awarded the Padamshri in 1989. The respondent No. 3 has stated that he has received a large number honours from public and voluntary organisations for restoring normalcy in Punjab after over a decade of terrorism. His areas of interest include English and Urdu poetry and sports. It is stated that he holds the elected post of the president of the Indian Hockey Federation, is the vice-president of the Asian Hockey Federation; is the Chairman, Task Force, Indian Olympic Associati....
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.... expertise, sports management experts are as important to a good sports programme just as experienced competent players or ex-players in decision and policy making areas who would ensure that the sports persons got the same, if not better residential/hotel and other facilities as the office bearers at national and international competition venues; who understood how important good treatment is for the self esteem and confidence of the teams and sports persons, especially when their opponents get the best; where real expenditure is incurred on and energy is devoted to sports persons rather than on maintenance of the office bearers or squabbles over elections. Only then could it be said that the sporting credentials or the tenure of the controlling board is immaterial for the interest of the sport. 275. In this background, the representations of the petitioner deserved a serious examination by the respondent No. 1 and it is imperative that the respondent No. 1 be directed to examine the complaints made by the petitioner in accordance with the guidelines governing recognition and dispensation of the largesse by the respondent No. 1 out of the public exchequer and facilities deve....
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....hackneyed clich, it bears repetition that in exercise of powers under article 226, the High Court is not so much concerned with the decision itself in the sense as to whether an action is ''right or wrong'', but with the decision making process signifying as to whether the action is ''lawful or unlawful''. So, if the selection of the team is lawfully made, the Court would not be concerned with the composition of the team. 16. Another fear of the BCCI must be allayed. It was submitted and, with some anxiety, that if the court were to hold that BCCI was within the scope of Article 226 then the splendid institution that has been so assiduously built-up would lose its independence and would fall prey to Governmental intervention and ultimately spell its doom. Without making any value judgment on quality of Governmental intervention, we may straight away say that amenability to judicial review is in no way connected with Governmental interference in the affairs of the BCCI which is a self-regulated body and will continue to be one. The only difference being, that its discharge of public duties and public functions (as distinct from private ....
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.... extent of judicial intervention in the functioning of the BCCI is concerned, the following parameters were laid down by the Supreme Court: 81. In law, there cannot be any dispute that having regard to the enormity of power exercised by it, the Board is bound to follow the doctrine of 'fairness' and 'good faith' in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricketers, its actions are required to be judged and viewed by higher standards. 82. An association or a club which has framed its rules are bound thereby. The strict implementation of such rules is imperative. Necessarily, the office bearers in terms of the Memorandum and Articles of Association must not only act within the four corners thereof but exercise their respective powers in an honest and fair manner, keeping in view the public good as also the welfare of the sport of cricket. It is, therefore, wholly undesirable that a body incharge of controlling the sport of cricket should involve....
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.... Club and Ors. (supra) that the events leading to these appeals raises a abysmal picture and a sordid state of affairs. 285. It has been held hereinabove that these guidelines are valid and binding. The judicial precedents noticed hereinabove have stated that breach of even non-statutory guidelines which have been framed for the purposes of regulation of dispensation of largesse results in the action being voided. Ref (1979)IILLJ217SC Ramana Dayaram Shetty v. International Airport Authority of India and Ors.; AIR1971SC1920 Kumari Regina v. St. Aloysius Higher Elementary School and Anr.; 1988(38)ELT225(SC) J.R. Raghupati v. State of Andhra Pradesh and Ors.; AIR1984Bom47 Manohar v. State of Maharashtra 286. The Government stand before this Court in the affidavit dated 16th May, 2005 itself states what the Government is required to do if its guidelines have breached. The deposition on behalf of the Government on this aspect reads thus: (9) That the only action that the Government of India can take against these defaulting National Sports Federations (NSFs) under the prevailing circumstances is to stop giving financial assistance it is providing to them as per the ....
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....e copy of the order(s) which may be passed thereon be made available to the petitioner and the respondent No. 2 who shall be at liberty if aggrieved thereby to assail the same in accordance with law. In view of the above, so far as the merits of the allegations of financial impropriety and indiscipline relating to the assistance dispensed by the respondent No. 1 to the respondent No. 2 as well as allegations of mismanagement of the affairs of respondent No. 2 against the other respondents and breach of the guidelines dated 14th August, 2001 are concerned, it is made clear that nothing herein contained is an adjudication on the merits of the allegations levelled against the respondents by the petitioner. (iii) So far as the prayer (c) is concerned, the respondents have pointed out that the Constitution and bye-laws of the respondent No. 2 were amended in 2004 and they contained no prescription/prohibition of a tenure clause. The consequence of the breach of the conditions in the guidelines dated 14th August, 2001 is provided therein and would follow on a consideration of the complaints made by the petitioner in terms of the directions contained in para ....