of Control for Cricket, India & Anr Vs. Netaji Cricket Club & Ors  Insc 19
(10 January 2005)
Hegde & S.B. Sinha
out of SLP (C) Nos. 21820-21822 of 2004) With CIVIL APPEAL NO. OF 2005 (@ SLP
(C) No. 23351 of 2004) CIVIL APPEAL NOs. OF 2005 (@ SLP (C) Nos. 23837-23838 of
2004) CIVIL APPEAL NOs. OF 2005 (@ SLP (C) Nos. 22361-22363 of 2004) S.B.
granted in all SLPs.
appeals involving common questions of law and fact were taken up for hearing
together and are being disposed of by this common judgment.
basic fact of the matter is not in dispute.
Cricket Club (Netaji) is a member of Tamil Nadu Cricket Association. Tamil Nadu
Cricket Association is admittedly a member of the Board of Control for Cricket
in India (Board). Netaji filed a suit for
declaration and injunction in the Madras High Court which was marked as Civil
Suit No. 765 of 2004 inter alia for the following reliefs:
A declaration to declare that the eligible candidates who are entitled to
contest for the post of President in the BCCI proposed a member of the North
Zone should be permitted to contest in the election process and also be
entitled to be elected as the President and act as such for the term in the
election to be conducted in the Annual General Meeting on 29th and 30th of
September, 2004 at Hotel Taj Bengal, Kolkata.
a permanent injunction restraining the defendants, their agents, servants and
men from in any manner seeking to disqualify any eligible person or persons
proposed by any member of the North Zone, as representative from the said zone
representing a member in the North zone as their candidate for the Presidential
Post of BCCI by virtue of such candidate not being a resident member within the
zone not being a member of the said association giving him the
representation." In the said suit, an apprehension was expressed that the
Board in its ensuing election of office bearers would not permit some
candidates to contest on the ground of residence.
said suit, two interim applications bearing No. OA No. 803 of 2004 and OA No.
804 of 2004 were filed. Whereas in OA No. 803 of 2004 a prayer was made to the
effect that the Annual General Meeting (AGM) be conducted under the
Chairmanship of a retired Supreme Court Judge with absolute power to scrutinize
and approve the list of authorized representatives from member associations
eligible to vote in the AGM; in OA No. 804 of 2004 a prayer for injunction was
made for restraining the Appellants herein from interfering with the proposal
of any representative of any member of the North Zone for the post of President
on the basis of residential qualification.
interim order dated 28.9.2004, a learned Single Judge of the said High Court
appointed Shri S. Mohan, a former Judge of this Court as a Commissioner to
conduct elections and to take necessary decision with regard to qualification,
nomination and conduct of elections. The third respondent was further
prohibited from disqualifying any member of BCCI and prevent them from voting.
Board aggrieved by and dissatisfied with the said order dated 28.9.2004
preferred a Letters Patent Appeal before the Division Bench of the Madras High
Court. Before the said Division Bench, an undertaking was given by the learned
Senior Counsel on behalf of the Board that the Board would not disqualify any
candidate for the post of President on the ground of residence. Pursuant to or
in furtherance of the said undertaking a statement was made by the learned
counsel appearing on behalf of 'Netaji' that the apprehension of the plaintiff/
first respondent which formed the basis for moving the Court by filing a suit
for the relief as stated above is vanished in air. With the consent of the
parties, the suit itself was withdrawn and both the appeal and the suit were
disposed of in the following terms:
We are of the view that the impugned order need not be in existence and hence,
the same is set aside;
elections scheduled on 29.9.2004 at 10.30 a.m. shall be continued by the first defendant/ appellant Body strictly in
accordance with the provisions of their Constitution and the rules or bye-laws
counsel on record for the first defendant/ appellant herein made an endorsement
to the effect that "the appellant shall not disqualify any candidate for
the post of President on the ground of residence". The said undertaking
has been given by the learned Senior Counsel, Mr. T.R.
across the bar and the same is recorded and we direct that the undertaking
should be given effect to in letter and spirit without any deviation;
the first defendant/ appellant herein is hereby directed to receive Hon'ble Mr.
Justice M. (sic) Mohan, who was appointed as Commissioner under the order on
appeal and offer due respect and all comforts during his stay at Kolkata
without giving any room for the learned Judge to feel embarrassed and the
learned Judge should be treated with high dignity. The first defendant/
appellant herein shall pay a further sum of Rs. 1,00,000/- (Rupees one lakh
only) as final remuneration to Hon'ble Mr. Justice S. Mohan, apart from other
incidental expenses; and
default of conditions (ii) and (iii), referred to above, if any party who is a
member of the first defendant/ appellant Board is aggrieved, he is at liberty
to workout his relief in appropriate proceedings before the competent
court." It appears that another suit was filed in the Court of VII Assistant City Civil
Court, Chennai by Bharathi
Cricket Club against the Appellants herein as also the Tamil Nadu Cricket
Association praying for the following reliefs:
Declaration that the resolution in so far as it relates to Item 1 passed at the
Special General Meeting of the First Defendant held on 12.9.2004 at 11.30 a.m.
at the Taj Coromandel, Nungambakkam High Road, Chennai, electing the Third
Defendant as the Patron in Chief as null and void.
Order of Permanent Injunction restraining the First Defendant from passing the
resolution in relation to Item 1(b) and Item No. 13 of the Agenda of the Notice
dated 27.08.2004 issued by the First Defendant for convening the Annual General
Meeting on 29th & 30th September, 2004 at Hotel Taj Bengal or at any other
place, consequently restraining the First Defendant from passing any resolution
in any manner whatsoever having the effect of nominating the Third Defendant as
Patron-in-Chief thereby empowering the Third Defendant to attend the
International Cricket Council and Asian Cricket Council Meetings representing
the First Defendant." In the said suit, a prayer was made by the plaintiff
thereof for grant of an ex-parte ad-interim injunction, whereupon the Court by
an order dated 28.9.2004 granted an ex-parte ad-interim injunction restraining
the Appellants herein from passing resolutions confirming the nomination of Shri
Jagmohan Dalmia as Patron-in-chief for three years under Agenda No. 1(b).
Civil Review Application marked as CRP No. 1734/2004 thereagainst was filed
before the Madras High Court which is said to have been heard in part and is
Annual General Meeting was convened on 29.9.2004. In the said meeting although
no person was prevented from contesting the election for the post of President
of the Board on the ground of residence but it stands admitted that Maharashtra
Cricket Association was not permitted to take part in the election through Mr.
D.C. Agashe or any other person. We shall deal with the said matter separately
hereinafter. It further stands admitted that Shri Jagmohan Dalmia, who chaired
the meeting, had cast one vote as a result whereof equal number of votes i.e.
15 each were polled on both sides whereupon he gave his casting vote. The AGM,
however, on 30.9.2004 was adjourned till 26.10.2004. The Board herein filed a
Special Leave Petition on limited grounds against the said order of the
Division Bench dated 29.9.2004. However, after the AGM was held, a review
petition was filed by 'Netaji' marked as Review Petition No. 166 of 2004 inter alia
contending that the purported undertaking given by the learned Senior Counsel
appearing on behalf of the Appellant herein was not adhered to and furthermore
no appeal had been filed by the Appellants herein against the order of
injunction passed by the learned Single Judge in OA No. 803 of 2004.
review petition was also filed by Mr. D.C. Agashe seeking review of the said
order dated 29.9.2004 contending that he had not been allowed to participate in
the said election having been disqualified therefor although no order of
disqualification was served.
said review application was admitted by the said Division Bench of the High
Court on 8.10.2004 observing that the undertaking across the bar given by the
learned senior counsel appearing on behalf of the Board had not been given
effect to in its letter and spirit. On an application made in this behalf by 'Netaji',
an interim order also came to be passed. The High Court opined:
We feel that we had been misled by the undertaking made on behalf of the first
respondent herein, namely the appellant in the O.S.A. No. 225 of 2004 (first
defendant in the suit O.S. No. 765 of 2004), which culminated into the passing
of the judgment dated 29.9.2004 made in O.S.A. No. 225 of 2004 and C.S. No.765
of 2004, which is sought to be reviewed in the review application No. 166 of
are of the considered opinion that the undertaking offered on behalf of the
first respondent/Board not to disqualify any member from any of the zone,
across the bar, has not been given effect to in letter and spirit as directed
in our judgment dated 29.9.2004 made in O.S.A. No. 225 of 2004 and C.S. No. 765
of 2004 and prima facie there are reasons to believe as to the alleged breach
of the said undertaking and hence, we are satisfied that a prima facie case has
been made out for granting injunction and, therefore, there shall be an order
of interim injunction as prayed for until further orders in C.M.P. No. 16419 of
Taking note of the facts and circumstances of the case, which led to the filing
of the O.S.A. No. 225 of 2004 and the admitted fact that the first respondent
in the review application had not preferred any appeal against the order made
in Application No. 803 of 2004 whereunder Hon'ble Mr. Justice S. Mohan, Judge,
Supreme Court (Retired) was appointed as a Commissioner, and that the meeting
held on 29-30.9.2004 stands adjourned as on date, we are inclined to appoint Hon'ble
MR. Justice S. Mohan, Judge, Supreme Court (Retired) as an interim
administrator until further orders, of course, subject to His Lordship's
consent for the same, which shall be obtained through the Registry. In such
event, the Hon'ble Mr. Justice S. Mohan, Judge, Supreme Court (Retired) shall
be paid a remuneration of Rs. 1,00,000/- per month apart from other
administrative, travelling and incidental expenses, by the first respondent/
Board. Notice." The SLP (C) Nos. 21820-22/2004 have been preferred by the
Appellants herein questioning the said order dated 8.10.2004. In the Special
Leave Petition filed by the Board, the Delhi & District Cricket Association
has joined wherefor an application for permission to file the same has been
prayed for. This Court passed the following order on 11.10.2004:
this matter for final hearing on 26th October, 2004. In the meantime the impugned order
to the extent of appointment of Administrator is stayed.
meantime Election/ appointment of Respondent No. 3 Patron-in-Chief is also
stayed until further orders.
and rectification if any be completed by them." Submissions have been
advanced by Dr. A.M. Singhvi, learned senior counsel, on behalf of Appellant
No. 1, Mr. C.S. Vaidyanathan, learned senior counsel on behalf of Appellant No.
2 and Mr. S.S. Ray, learned senior counsel, on behalf of Shri Jagmohan Dalmia,
whereas Mr. F.S. Nariman, learned senior counsel appeared on behalf of Maharashtra
Cricket Association and Mr. Agashe and Mr. Harish N. Salve, on behalf of 'Netaji'.
intervention application was filed by 'Club of Maharashtra', represented by Mr.
Shanti Bhushan, learned senior counsel. Intervention applications were also
filed by The Karnataka State Cricket Association, Rajasthan Cricket Association
and Saurashtra Cricket Association.
of Dr. Singhvi appearing on behalf of the Appellant was that the suit was filed
by 'Netaji' only on an apprehension that a representative or a member club
would be debarred from contesting the election to the post of President on the
ground of residence and, no contention had been raised as regard the right of
an association to vote in the said meeting.
would submit that there had been similar instances in the past where the
Chairman of the meeting had cast two votes one in terms of Rule 25 and another
in terms of Rule 26. The learned counsel would urge that as the rules of the
Board constitute contract between the members, only the 'doctrine of fairness'
shall apply in the conduct and affairs of the Club, and, thus, even minor
deviations are permissible in law. Reliance in this Belgaum [1963 SC 1144 : 1964 (1) SCR 1].
urged that the High Court wrongly exercised its jurisdiction in entertaining
the review application. Reliance in this regard has been placed SCC 224].
learned counsel would argue that the undertaking given by the learned counsel
appearing on behalf of the Appellant before the Division Bench of the Madras
High Court was in consonance of the contention raised in the Memo of Appeal
itself which had been duly recorded and the said undertaking having not been
violated, the application for review was not maintainable. Taking us through
the Memo of Appeal in OSA No. 225 of 2004, the learned counsel would contend
that on a perusal thereof it would be evident that an appeal was preferred
against the order dated 28.9.2004 passed by the learned Single Judge passed both
in OA No. 803 of 2004 and OA No. 804 of 2004. It was contended that Netaji had
no locus to file a suit or pray for an order of injunction as it was not a
member of the Board. In the Annual General Meeting, Dr. Singhvi would submit,
no person contesting for the post of President having been disqualified on the
ground of residence, the review petition was not maintainable wherein, a shift
was made to the right of voting vis-`-vis the right to contest for the post of
President which was not the basis for filing of the suit. Such a change in the
stand on the part of 'Netaji', Dr. Singhvi would urge, is impermissible in law.
In any event, the learned counsel would contend, that the same might give rise
to an independent cause of action and, thus, keeping in view the scope and
purport of the suit the review application should not have been entertained. It
was further pointed out that in the said suit Mr. Agashe being not a party, the
contention that he was not allowed to represent the Maharashtra Cricket Association
could not be taken to be a ground for entertaining a review application. A
breach of an undertaking in any view of the matter, according to Dr. Singhvi,
cannot give rise to a revival of suit particularly when, how and in what manner
the violation of such undertaking had taken place had not been specified. The
interim order, according to Dr. Singhvi, goes far beyond the scope of the suit.
regards the legality of the said meeting dated 29.9.2004, the learned counsel
had taken us through the orders passed in the litigations concerning the Maharashtra
Cricket Association and submitted that in view of the order of the Bombay High
Court dated 1.3.2004 and furthermore having regard the objections raised by Mr.
Thorve, Mr. Agashe could not have been permitted to take part in the said
meeting as a representative of Maharashtra Cricket Association.
regards the contention that Mr. Agashe was permitted to represent the said
Association on 12.9.2004 despite the protest by Mr. Thorve in terms of his
letter dated 10.4.2004, the learned counsel would submit, it was so done in
terms of the legal opinion obtained in that behalf and in any event the same
was an EGM and not AGM. It was contended that the said EGM was convened having
regard to the requisitions made by 27 out of 30 members to invite Mr. Dalmia to
become the patron-in-chief of the Board and, thus, the result thereof was a
foregone conclusion. Furthermore, from the minutes of the meeting held on
12.9.2004, it would appear that the same was a requisitioned meeting and not an
AGM. On the other hand, in terms of order dated 21.9.2004 passed by the Bombay
High Court both the observers appointed by it were entitled to attend the
meeting and further a direction was issued to the effect that the Managing Committee
of the Association shall not take any major policy decision, save and except
with the consent of the two observers.
our attention to the notice dated 25.9.2004 issued by the Maharashtra Cricket
Association as regard the proposed meeting to appoint the representatives of
the Maharashtra Cricket Association in the forthcoming Annual General Meeting
of the Board, scheduled on 29th & 30th September, 2004 at Kolkata; it was
urged that the same was illegal.
learned counsel would contend that representation of the Maharashtra Cricket
Association in the Annual General Meeting which is an annual affair was a
matter involving major policy decision which could be taken only in a duly
constituted meeting. The said notice dated 25.9.2004 was illegal as it was not
issued in terms of Rule 32 of the Rules of the Maharashtra Cricket Association
which postulates four clear days' notice before convening an ordinary meting
and in relation to urgent matters, the Rule postulates one clear day's notice
which had not been done in the instant case as had also been pointed by Mr. Deshmukh
in his letter dated 27.9.2004.
contended that Mr. Agashe and Mr. Thorve filed suits in the Pune Civil Court.
Mr. Agashe furthermore filed an application for grant of ad-interim injunction
directing the Maharashtra Cricket Association to allow it to be represented
through him which was not granted. In the aforementioned premise, upon
obtaining legal opinion and upon hearing the contending and contesting parties,
a decision was taken by the Board that neither Mr. Agashe nor Mr. Thorve can
represent the Maharashtra Cricket Association.
aforementioned premise, it was submitted that there was a fundamental
difference between the meeting held on 12.9.2004 and 29.9.2004 particularly in
view of the fact that the Board had before it the letter of Mr. Deshmukh, suits
were filed and furthermore there was a possibility of the members of the Board
facing a proceeding under the Contempt of Courts Act for violating orders of
the Bombay High Court. It was argued that in any event, the decision being not
an arbitrary one, the same could not have been questioned in the review
regards, the representation of DDCA, it was contended that no question was
raised by any person whatsoever in the meeting to represent it before the Board
and in fact in the Annual General Meeting the said representative of DDCA
indeed was elected as an election officer. It was pointed out that even in the
review application, the said question was not raised.
regards, invitation of Mr. Dalmia for holding the post of patron-in- chief, our
attention was drawn to Rule 8 of the Articles of Association and it was
submitted that by reason thereof merely his contribution to the field of
cricket was recognized. The said post, according to Dr. Singhvi, is an
ornamental post who has no power or official authority in the management of the
C.S. Vaidyanathan, learned senior counsel appearing on behalf of the DDCA would
submit that as regards legality or otherwise of its participation neither any
objection was taken in the plaint nor in the review petition nor any document
was filed and in that view of the matter the Respondents cannot be permitted to
raise a contention for the first time in this Court.
our attention to the order dated 18.9.2004 passed by the Company Law Board, the
learned counsel would contend that by reason of the said order, DDCA was merely
directed to maintain the status quo, i.e., restrained to holding the AGM.
S.S. Ray, learned senior counsel appearing on behalf of Mr. Jagmohan Dalmia
would adopt the submissions made by Dr. Singhvi and would submit that as the
Articles of Association of the Board constitute a contract amongst the members,
they are bound thereby unless the same are found to be illegal, malafide and
contrary to the statute. Reliance in this Registrar of Societies and Others
[(2000) 1 SCC 566].
learned counsel would contend that having regard to the sequence of events
borne out from records and having regard to the various litigations pending
before different courts and in particular the directions issued by the Bombay
High Court in Writ Petition No. 1465 of 2004 and writ petition No. 1559 of 2004
nobody chairing a meeting as important as Annual General Meeting of the Board
could have allowed Mr. Agashe or Mr. Thorve to represent the Maharashtra
learned counsel would contend that having regard to Rule 20(iii) the old
Managing Committee continues to function till the next meeting and in this
connection our attention has been drawn to Ramaiya's Company Law, Table A,
Chapters 7 to 8 at pages 4119 and Buckley's Companies Law, Vol. I, 19th
edition, pages 1016-17.
learned counsel would, by way of example, draw our attention also to Regulation
54 of Table A of the Companies Act as regard the right of the Chairman to
exercise his option for casting vote in terms of the statute.
argued that the AGM had to be adjourned and did not terminate. Therefore, Rule
20(iii) became operative.
regard maintainability of the review application filed by the Respondents
herein, Mr. Ray would submit that the subsequent events could not have been
taken into consideration for the aforementioned purpose. It was urged that the
order admitting the review application and the interim order passed by the
Madras High Court is contrary to the relevant provisions of the Code of Civil
Procedure (Code) and on a wrong understanding of the dispute relating to Maharashtra
learned counsel has taken us through various purported achievements of Shri Jagmohan
Dalmia and submitted that in the interest of the sport of cricket Shri Jagmohan
Dalmia had been invited to become patron-in-chief of the Board so that he can
represent India in the ICC meetings.
Bhushan, learned senior counsel appearing on behalf of Intervenor Club of Maharashtra
which is said to be a member of Maharashtra Cricket Association would submit
that the meeting held on 27.9.2004 authorising Mr. Agashe as a representative
of the Association was not a valid one as mandatory notice therefor had not
valid resolution, according to Mr. Shanti Bhushan, would mean one passed in a
properly constituted meeting of the Maharashtra Cricket Association as its
participation in the AGM of the Board was a matter of importance and not a day
to day affair.
learned counsel would contend that the suit filed by 'Netaji' before the Madras
High Court being based only on apprehension, the same was not maintainable. In
any event, it was submitted that the Netaji having conceded that its grievance
had been satisfied a review application could not have been entertained.
Bhushan would argue that as the elected persons have not been impleaded as
parties herein, this Court cannot go into the question of validity or otherwise
of the said election.
F.S. Nariman, learned senior counsel appearing on behalf of the Maharashtra
Cricket Association and Mr. Agashe would, on the other hand, submit that in the
facts and circumstances of the case and having regard to the materials brought
on records the appointment of interim Administrator by the Madras High Court
was justified, particularly, when it was not certain as to whether the old body
or the new body had been functioning.
our attention to the order of injunction passed by the District Court, Madras
in the suit filed by Bharathi Cricket Club, the learned counsel would contend
that they could have excluded both Item Nos. 1(b) and 13 of the Agenda which pertained
to Mr. Jagmohan Dalmia or proceeded to hold the meeting but it could not have
been done partially.
learned counsel would contend that in terms of the Rules only elected
representatives represent the Board but in the instant case, elected representatives
allegedly in terms of Rule 20(iii) had not taken charge and the old body is
our attention to the affidavit filed by Shri Jagmohan Dalmia in S.L.P. (C) No.
22361-22363 of 2004, the learned counsel would contend that he claimed to be
continuing as Chairman both de facto and de jure.
to learned counsel, 'good faith' is at the core of the function of a body like
the Board. The election was to be held at the end of the meeting and having
regard to the fact that the meeting had been adjourned, an odd situation has
come into being, viz., that the elected Board cannot function and Mr. Dalmiya
continues to be the President of the Board so long he is not elected as
patron-in-chief. According to the learned counsel, malafide on the part of the
President of the Board is apparent inasmuch as he wanted confirmation of his
own invitation as patron-in-chief before the process of election was completed.
pointed out that in the Special Leave Petition, no statement as to what had
happened on 29th September, 2004 regarding election of the office bearers of
the Board had been made but the same had been disclosed only in an additional
affidavit filed in the S.L.P. of MCA.
our attention to the fact that Mr. Agashe after having been debarred from
attending the Annual General Meeting made a representation on 29th September,
2004 itself to the President of the Board asking for reasons as regard his
disqualification to participate in the meeting on behalf of Maharashtra Cricket
Association but he refused to accept the representation and in that situation
it had to be ultimately served on the Secretary of the Board but no reply
thereto has yet been received either by Mr. Agashe or by Maharashtra Cricket
learned counsel would contend that although a resolution was passed in the
meeting of the Maharashtra Cricket Association in favour of Mr. Agashe but he
was not allowed to participate and if the AGM of the Board was to be adjourned
this item could also have been adjourned.
our attention to the additional affidavit filed on 20th October, 2004 wherein a
special pleading has been made that at the Annual General Meeting an
opportunity of hearing had been given allegedly to both Mr. Agashe and Mr. Thorve
it was contended that the same was wholly unnatural and, thus, gives rise to
learned counsel would contend that Mr. Thorve in his letter dated 10th April,
2004 took a positive stand that Mr. Agashe should not be permitted to represent
the Maharashtra Cricket Association but he was permitted to do so by Mr. Dalmia
as would appear from his letter dated dated 3rd May,2004 purported to be upon
obtaining legal opinion stated:
letter dated 10 April 2004 addressed to our Board was forwarded for legal
to the legal opinion received, the orders of the High Court as well as the Apex
Court were restricted to the "affairs of MCA" only and not BCCI.
Under the order of the Apex Court, the MCA shall not undertake any
"policy" decision until disposal of the Appeal by the District Court.
legal opinion further states that the restriction on taking any
"policy" decision by the Maharashtra Cricket Association has nothing
to do with representing the Association in the meetings of the Board. Even if
any policy decision is taken by the Board through its Working Committee, it
shall be the policy of BCCI and not MCA." Mr. Nariman would contend that
the legal opinion received by the Board, which, having regard to the tenor of
the said letter dated 3rd May, 2004, evidently was a written one, has
designedly been withheld from this Court. It is, thus, evident that there exists
two contrary opinions whereupon the Board had relied upon in two different
situations. It was contended that there was no reason as to why Mr. Jagmohan Dalmia
himself did not affirm any affidavit in this regard clarifying his position.
would submit that the fact that in a similar situation Rajasthan Cricket
Association was permitted to be represented in AGM proves malafide on the part
of the Board.
learned counsel had also drawn our attention to the letter of Mr. B.G. Deshmukh,
one of the observers appointed by the Bombay High Court and submitted that
neither he could raise any objection as regard requisitioning of the meeting
nor could he have forwarded his letter to Mr. Ajay B. Shirke and Mr. S.G. Thorve
on the ground that they had asked for the copy of his letter for being placed
before the MCA. Such an act on the part of Mr.Deshmukh, Mr. Nariman would
contend, was improper particularly when the said addressees had no concern with
the said notice and, more so, when the same was received by them even before
the service thereof on the Maharashtra Cricket Association. Our attention was
also drawn to the counteraffidavit filed by the Respondent No. 1 wherein it has
is pertinent to state that the said observer resides in Pune and the meeting
was also to be held in Pune itself and inspite of notice being served on him,
he does not attend the meeting. It is also submitted that no objection as to
the appointment of Mr. D.C. Agashe to represent Maharashtra Cricket Association
has been raised by the said observer. It is also peculiar that Mr.S.G. Thorve
and Mr. Ajay B. Shirke who had no concern with the said notice was also given a
copy even before the same could be received by Maharashtra Cricket Association.
The deponent also wishes to point out that Mr. R.G. Deshmukh, the learned
observer is the Chairman of one of the companies owned by Mr. Ajay B. Shirke."
It was submitted that if the representation of Maharashtra Cricket Association
through Mr. Agashe in the earlier meetings of the Board had not been a policy
decision of Maharashtra Cricket Association, then why all of a sudden it became
so for the AGM. Only.
our attention to the affidavit of Mr. Agashe filed in S.L.P. No. 21820-21822 of
2004, the learned counsel would submit that the Chairman of the Board in the
meeting firstly created an artificial right for casting one vote as chairman
and then exercised his right of casting vote again, i.e., voting twice which
was in contravention of the Rules.
terms of Rule 3, there are 30 full members and in terms of Rule 5 only full
members have right to vote. The Chairman of the Board is not a member as he
does not represent an Association. It was pointed out that it is not necessary
that the President of the Board would be the Chairman of the meeting and in
that view of the matter Rules 25, 26 and 27 must be construed in such a manner
so as to hold that the Chairman of a meeting cannot vote twice but only once.
In any event, the learned counsel would contend that in a case of this nature
the Chairman ought not to have exercised his discretionary power to cast vote
would draw our attention to the Judges Summons in O.A. No. 803 of 2004 wherein
the following prayers were made:
This Hon'ble Court should not be pleased to treat the application as ugent?
this Hon'ble Court should not be pleased to pass an order of AD-INTERIM
INJUNCTION to restrain the Chairman oblique President of BCCI from conducting
the Annual General Meeting on the 29th and 30th of September, 2004 at Kolkata
and direct that the said meeting be conducted under the Chairmanship of any person
or persons of the stature of a retired Supreme Court Judge or High Court Judge
or any other person or persons as to be named by this Hon'ble Court with
absolute powers to scrutinize and approve the list of authorized
representatives from member associations eligible to vote in the said Annual
General Meeting of the 1st Respondent." Our attention has further been
drawn to the order dated 28.9.2004 passed by the learned Single Judge of the
Madras High Court in OA No. 803 of 2004 and OA No. 804 of 2004, para 14 whereof
is as under:
The third respondent is further prohibited from disqualifying any member of
BCCI and prevent them from voting." The learned counsel would point out
that the Division Bench in its order had referred to paragraphs 11 to 13 of the
order dated 28.9.2004 passed by the learned Single Judge but omitted to notice
paragraph 14 thereof. Even otherwise in the Memo of Appeal, no ground was taken
questioning the said order of injunction as contained in paragraph 14 of the
order passed by the learned Single Judge.
would further submit that the undertaking given by a senior counsel must be
construed in the light of the understanding of the learned Judges before whom
the same had been given across the bar and in this connection our attention has
been drawn to paragraphs 3 and 4 of the impugned order, as noticed supra.
this regard, our attention has also been drawn to the 4th question raised in
the S.L.P. filed by the Board which is in the following terms:
Whether the Hon'ble High Court was right in concluding that the Learned Senior
Counsel appearing for the Petitioners herein gave an undertaking to the effect
that no one would be disqualified from voting despite the fact that the actual
undertaking given by the Learned Counsel to the effect that no one would be
disqualified on the ground of zonal representation to contest the
election?" Our attention has also been drawn to the Ground (b) of the
Special Leave Petition which is to the following extent:
is submitted that the Learned High Court had erred in coming to the conclusion
that the undertaking given by the Learned Senior Counsel had been violated,
when in fact no such undertaking was given by the Learned Senior Counsel. It is
submitted that the undertaking given by the Learned Senior Counsel was duly
recorded in the Order dated 29.09.2004 passed by the self same Learned Division
Bench. It is submitted that the Learned Senior Counsel who earlier appeared on
29.09.2004 also appeared on 08.10.2004 before the Learned Bench and expressly
recorded the submissions that were made by him on 29.09.2004." and
contended that there was no reason as to why such a question had not been
raised before the Division Bench itself.
to Mr. Nariman, the learned Senior Counsel appearing on behalf of the Board
before the Madras High Court has not filed any affidavit as regard tenor of his
undertaking and in this view of the matter the statement of the Judge in the
impugned order should be accepted.
Salve, learned senior counsel appearing on behalf of 'Netaji' would submit that
the Board is a federal head of cricket associations. Having regard to the
evolution of sports of cricket in this country and in particular the fact that
the Board controls the sport in India, a higher standard of rectitude in the affairs of the Board is
expected. Mr. Salve would submit that in an Annual General Meeting of the
Board, the aspirations of an individual member could not have been given
priority having regard to the fact that the Board does not have private member.
It was argued that even the Rajasthan Cricket Association was not registered
and time had been taken to get it registered, but despite the same it was
allowed to vote but Maharashtra Cricket Association was not permitted although
the Board knew that litigations have been going on not only in relation to the Maharashtra
Cricket Association but also in relation to the Rajasthan Cricket Association
and Delhi & District Cricket Association and, thus, in a situation of this
nature, the Chairman ought to have acted judiciously.
of India, Jabalpur and Others [(1991) 2 SCC 412], Mr. Salve would argue that
even therein a retired Judge of this Court was nominated so long a valid
election was not made only with a view to see that the body like the Olympic
Association or the Board must act in the interest of the sports of the country.
regard exercise of right of 'casting vote' by Mr. Dalmia, the learned counsel
would contend that the same could be exercised when there was a genuine tie and
not an artificial or a created one. Election of the office bearers of the
Board, according to Mr. Salve, should not only be a fair one but must be appear
to be such. It was argued that the adjournment of the AGM was illegal and what
happened on 29th
September, 2004 was
far below the standard of conduct/ expected from a body like the Board and
furthermore the manner in which the meeting was conducted clearly creates an
air of suspicion.
regard functioning of the Board, it was urged that the same being based on
trust, the "power and abuse" would bring into focus administrative
and Others [1966 (2) QB 633 at 643 and 644] and St. Johnstone Football Mr.
Salve would argue that the Chairman of the meeting should have acted as an
umpire having regard to the role of the Board as a federal association and
keeping in view the mandate of Rule 5 in terms whereof only 30 full members
could exercise their right of franchise. According to Mr. Salve, keeping in
view the larger public interest, the technicality of absence of the elected
members in these proceedings should not stand in the way of this Court
declaring the election void particularly in view of the fact that all the
elected members have knowledge of the proceedings but are sitting on the fence.
in reply, would draw our attention to the prayer for an interim order by 'Netaji'
in the review application, i.e., for restraining the newly elected body which,
according to the learned counsel, would mean that the old body had ceased to continue
and pursuant to or in furtherance of the said prayer only, the impugned order
of injunction was passed by the Division Bench.
regard the AGM held on 29.9.2004, it was contended that some of the items of
Agenda, particularly, item Nos. 1(c) and 2 to 6 were taken up and they were
considered and resolutions thereupon were passed. Further on 30.9.2004, some
other items of Agenda were taken up but item Nos. 1(b) and 13 could not have
been taken up in view of the order of injunction passed by the District Court
of Madras. According to the learned counsel, by reason of such adjournment of
the meeting, Mr. Dalmia did not derive any benefit inasmuch as his nomination
as representative of the Board to ICC could have been passed in that AGM and in
any event, even without such resolution he would have continued to act as a
representative before the said body.
learned counsel would contend that the meeting was adjourned with concurrence
of all the participants present in the meeting and with no opposition.
According to Dr. Singhvi, the only persons who have been taking objections were
'Netaji' or 'Bharathi' who are not even the members of the Board and could not
have participated in the election process.
regard the power of the Chairman to cast two votes, the learned counsel would
submit that the rules envisage casting of votes by President only and not by
any other member, as would appear from the Rules 5 and 25 of the Rules. Rule 26
provides that the decision taken by the majority shall prevail except in case
of equality of votes when casting of vote may be necessary by the Chairman. By
reason of first part of Rule 27, Dr. Singhvi would contend, no diminution of
power is contemplated inasmuch as by reason thereof the right of the Chairman
to exercise his right as regards 'casting vote' is preserved and the expression
'subject to rules' must be held to mean subject to Rule 26. Dr. Singhvi would
contend that having regard to the precedent as two votes had been cast by the
Chairman even earlier, the rule should be interpreted in the same way as was
understood by all concerned. He would argue that the subject matter of voting
contained in Rules 25 and 27 contemplate two different situations, as the
context in which Rule 25 is attracted is radically different from Rule 27.
rule of harmonious construction, according to Dr. Singhvi, should be applied in
a situation of this nature inasmuch as, if Rule 27 is held to be subject to
Rule 5, the first part thereof shall become nugatory. Pointing out the difference
between Rule 26 and Rule 27, it was argued that whereas Rule 26 applies for all
meetings, Rule 27 applies only to Annual General and Special General Meeting.
to Dr. Singhvi, having regard to Rule 43(1)(c) of the Rules, an election
dispute should be raised in terms thereof and in a case of this nature the
court should not entertain any election dispute when there exists an
would argue that when there exists substantive laws governing resolution of
dispute in relation to election of office bearers of the Board, this Court
should not exercise its jurisdiction under Article 142 of the Constitution.
S.S. Ray, learned senior counsel appearing on behalf of Mr. Jagmohan Dalmia
would submit that right of casting vote is not a common law right but one
granted by the statute. The provision for exercise of right of casting vote is
essentially for maintaining a status quo which in the cases of clubs and
associations should be construed to be the second vote.
learned counsel would contend that in the meeting dated 29.9.2004 no member had
been disqualified but in absence of any authorized member to represent it,
nobody could cast vote on its behalf. Keeping in view the fact that the Board
has nothing to do with the internal dispute of the Maharashtra Cricket
Association, this Court should not interfere in the matter, particularly, when
even in the next meeting a similar problem may arise. Distinguishing the
decision of this Court in K. Murugan (supra), the learned counsel would contend
that the factual matrix obtaining therein was different and in the present
case, there is no allegation of mis-management, malfunctioning or
mal-administration nor any allegation has been made against Mr. Dalmia.
the matter was listed before this Court on 11.10.2004, this Court was given an
impression that having regard to the fact that the election of the office
bearers of the Board had already taken place on 29.9.2004, the new Board had
taken over. An impression was also created that if the Board was not allowed to
function a stalemate would ensue, particularly, having regard to the proposed
test series and one dayers' which were to be played between South Africa and
India and one day cricket between India and Pakistan. The impugned order
appointing the Administrator by the Division Bench of the Madras High Court, it
was submitted, if allowed to continue, would, thus, be detrimental to the
interest of the sport of cricket. It was in this situation, this Court stayed
the operation of the impugned order to the extent of appointment of
Administrator. However, a different picture was presented before us at the
hearing stating that the new Board had not taken over at all and the old Board
had been functioning purported in terms of Rule 20(iii) of the Rules. Thus, in
law the old board could continue, the Appellants were not seriously prejudiced
and in any event no emergent situation arose as had been projected before this
Board is a society registered under the Tamil Nadu Societies Registration Act.
It enjoys a monopoly status as regard regulation of the sport of cricket in
terms of its Memorandum of Association and Articles of Association. It controls
the sport of cricket and lays down the law therefor.
inter alia enjoys benefits by way of tax exemption and right to use stadia at
nominal annual rent. It earns a huge revenue not only by selling tickets to the
viewers but also selling right to exhibit films live on TV and broadcasting the
same. Ordinarily, its full members are the State Associations except,
Association of Indian Universities, Railway Sports Control Board and Services
Sports Control Board. As a member of ICC, it represents the country in the
international foras. It exercises enormous public functions. It has the authority
to select players, umpires and officials to represent the country in the
international fora. It exercises total control over the players, umpires and
other officers. The Rules of the Board clearly demonstrate that without its
recognition no competitive cricket can be hosted either within or outside the
country. Its control over the sport of competitive cricket is deep pervasive
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
association or a club which has framed its rules are bound thereby.
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 fourcorners 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 in litigations completely
losing sight of the objectives of the society. It is furthermore unfortunate
that a room for suspicion has been created that all its dealings are not fair.
The Board has been accused of shady dealings and double standards.
have noticed the contentions raised by the parties herein at some length not
because they were absolutely necessary for the purpose of arriving at a
decision but with a view to show that the rival contentions necessitate a
deeper probe and scrutiny. Unfortunately, for the reasons stated hereinafter,
we are at this stage not in a position to do so and leave the contentions wide
open to be agitated by the parties before the appropriate forums.
11th October, 2004, we had, after hearing the counsel for the parties observed
that if a situation arises this Court would go into the validity of the
election of the office bearers of the Board held in the meeting dated 29th
September, 2004, but, as indicated hereinbefore, we did so under a mistaken
belief that the Board would be represented by the new office bearers and, thus,
all parties would be before us. However, it now stands admitted that the office
bearers either in their personal capacity or official capacity are not before
us. They may have notice of the pendency of this proceeding. They may be
sitting on the fence and watching the proceedings of this Court. But, unless
they are made parties in these proceedings, we would not be in a position to
entertain the dispute as regard validity of the meeting of 29th September, 2004
resulting in the election of the office bearers. Giving an opportunity of
hearing to the elected members in a dispute of this nature is imperative and
not a matter of mere procedure, formality or technicality. The election
dispute, therefore, must be adjudicated upon by a proper forum.
events leading to these appeals, as narrated hereinbefore, raise a abysmal
picture and a sordid state of affairs.
suit filed by Netaji, two interim applications were filed being OA No. 803 and
OA No. 804 of 2004. Indisputably, in OA No. 803 of 2004, the Court granted an
order of injunction restraining the Board from disqualifying any members of the
Board and preventing them from voting.
in the Memo of Appeal filed by the Board before the Division Bench of the
Madras High Court against the said order, the orders passed both in OA Nos. 803
and 804 of 2004 were sought to be questioned, no ground in relation thereto
appears to have been raised in the Memo of Appeal in relation to the said order
of injunction and no argument appears to have been advanced before the Division
Bench in that behalf. The Division Bench of the High Court while passing the
order on 29th September, 2004 noticed paragraphs 11 to 13 of the order of the
learned Single Judge dated 28th September, 2004 but its attention probably was
not drawn to paragraph 14 thereof. Even the attention of the Division Bench to
the said effect does not appear to have been drawn by the learned counsel
appearing on behalf of the Plaintiff Respondent No. 1 herein. Had the
intention of the Division Bench specifically been drawn to the said order of
injunction, we are sure that the learned Judges would have dealt with it
specifically. However, in law the said order of injunction did not subsist as
the suit itself was withdrawn with the consent of the parties and both the
appeal and the suit were disposed of by the order dated 29.9.2004. However,
whether the suit itself could have been withdrawn and disposed of by the
Division Bench in purported exercise of its power under Sub-section (2) of
Section 107 of the Code as well as on the basis of the determination of the
learned judges is open to question. We are also not aware as to whether the
original side Rules of the Madras High Court contemplate such a situation.
an undertaking had been given by a learned Senior Counsel appearing on behalf
of the Board. In the impugned order, the Division Bench before whom such
undertaking had been given was of the opinion that it was misled. This Court
having regard to the understanding of such undertaking by the Division Bench
does not intend to deal with the effect and purport thereof and as we are of
the opinion that the Division Bench of the Madras High Court itself is
competent therefor. If paragraph 14 of the order of the learned Single Judge is
to be taken into consideration, it is possible to contend that the learned Judges
of the High Court were correct.
are, furthermore, of the opinion that the jurisdiction of the High Court in
entertaining a review application cannot be said to be ex facie bad in law.
Section 114 of the Code empowers a court to review its order if the conditions
precedents laid down therein are satisfied. The substantive provision of law
does not prescribe any limitation on the power of the court except those which
are expressly provided in Section 114 of the Code in terms whereof it is
empowered to make such order as it thinks fit.
47, Rule 1 of the Code provides for filing an application for review. Such an
application for review would be maintainable not only upon discovery of a new
and important piece of evidence or when there exists an error apparent on the
face of the record but also if the same is necessitated on account of some
mistake or for any other sufficient reason.
a mistake on the part of the court which would include a mistake in the nature
of the undertaking may also call for a review of the order. An application for
review would also be maintainable if there exists sufficient reason therefor.
What would constitute sufficient reason would depend on the facts and
circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of
the Code is wide enough to include a misconception of fact or law by a court or
even an Advocate. An application for review may be necessitated by way of
invoking the doctrine "actus curiae neminem gravabit".
Rev. Mar Poulose Athanasius and Others [(1955) 1 SCR 520], this Court made
observations as regard limitations in the application of review of its order stating
going into the merits of the case it is as well to bear in mind the scope of
the application for review which has given rise to the present appeal. It is
needless to emphasise that the scope of an application for review is much more
restricted than that of an appeal. Under the provisions in the Travancore Code
of Civil Procedure which is similar in terms to Order XLVII, rule 1 of our Code
of Civil Procedure, 1908, the Court of review has only a limited jurisdiction
circumscribed by the definitive limits fixed by the language used therein. It
may allow a review on three specified grounds, namely
of new and important matter or evidence which, after the exercise of due
diligence, was not within the applicant's knowledge or could not be produced by
him at the time when the decree was passed,
or error apparent on the face of the record and
any other sufficient reason.
been held by the Judicial Committee that the words "any other sufficient
reason" must mean "a reason sufficient on grounds, at least analogous
to those specified in the rule.", but the said rule is not universal.
again in Lily Thomas (supra), this Court has laid down the law in the following
The dictionary meaning of the word "review" is "the act of
looking, offer something again with a view to correction or improvement".
It cannot be denied that the review is the creation of a statute.
Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC
1273 held that the power of review is not an inherent power. It must be
conferred by law either specifically or by necessary implication. The review is
also not an appeal in disguise. It cannot be denied that justice is a virtue
which transcends all barriers and the rules or procedures or technicalities of
law cannot stand in the way of administration of justice. Law has to bend
before justice. If the Court finds that the error pointed out in the review
petition was under a mistake and the earlier judgment would not have been
passed but for erroneous assumption which in fact did not exist and its
perpetration shall result in miscarriage of justice nothing would preclude the
Court from rectifying the error" (Emphasis supplied) It is also not
correct to contend that the court while exercising its review jurisdiction in
any situation whatsoever cannot take into consideration a subsequent event. In
a case of this nature when the court accepts its own mistake in understanding
the nature and purport of the undertaking given by the learned senior counsel
appearing on behalf of the Board and its correlation with as to what transpired
in the AGM of the Board held on 29th September, 2004, the subsequent event may
be taken into consideration by the court for the purpose of rectifying its own
[(2003) 7 SCC 219], this Court noticed:
The impact of subsequent happenings may now be spelt out. First, its bearing on
the right of action, second, on the nature of the relief and third, on its
importance to create or destroy substantive rights. Where the nature of the
relief, as originally sought, has become obsolete or unserviceable or a new
form of relief will be more efficacious on account of developments subsequent
to the suit or even during the appellate stage, it is but fair that the relief
is moulded, varied or reshaped in the light of updated facts. Patterson v.
State of Alabama  294 U.S. 600, illustrates this position. It is
important that the party claiming the relief or change of relief must have the
same right from which either the first or the modified remedy may flow.
Subsequent events in the course of the case cannot be constitutive of
substantive rights enforceable in that very litigation except in a narrow
category (later spelt out) but may influence the equitable jurisdiction to
mould reliefs. Conversely, where rights have already vested in a party, they
cannot be nullified or negated by subsequent events save where there is a
change in the law and it is made applicable at any stage. Lachmeshwar Prasad v.
Keshwar Lal AIR 1941 FC 5 falls in this category. Courts of justice may, when
the compelling equities of a case oblige them, shape reliefs - cannot deny
rights - to make them justly relevant in the updated circumstances. Where the
relief is discretionary, Courts may exercise this jurisdiction to avoid
injustice. Likewise, where the right to the remedy depends, under the statute
itself, on the presence or absence of certain basic facts at the time the
relief is to be ultimately granted, the Court, even in appeal, can take note of
such supervening facts with fundamental impact. This Court's judgment in Pasupuleti
Venkateswarlu v. Motor & General Traders AIR 1975 SC 1409 read in its
statutory setting, falls in this category. Where a cause of action is deficient
but later events have made up the deficiency, the Court may, in order to avoid
multiplicity of litigation, permit amendment and continue the proceeding,
provided no prejudice is caused to the other side. All these are done only in
exceptional situations and just cannot be done if the statute, on which the
legal proceeding is based, inhibits, by its scheme or otherwise, such change in
cause of action or relief. The primary concern of the court is to implement the
justice of the legislation. Rights vested by virtue of a statute cannot be
divested by this equitable doctrine - See V.P.R.V. Chockalingam Chetty v. Seethai
Ache AIR 1927 PC 252." Furthermore, the impugned order is interlocutory in
nature. The order is not wholly without jurisdiction so as to warrant
interference of this Court at this stage. The Division Bench of the High Court
had jurisdiction to admit the review application and examine the contention as
to whether it can have a re-look over the matter. This Court, it is trite,
ordinarily would not interfere with an interlocutory order admitting a review
petition. The contentions raised before us as regard the justification or
otherwise of the Division Bench exercising its power of review can be raised
the court having regard to clause (ii) of its order dated 29.9.2004 may have to
consider as to whether the election was held in accordance with the
constitution of the Board and the rules and bye-laws framed by it.
conduct of the Board furthermore is not above board. The manner in which the
Board had acted leaves much to desire.
question as to whether the Maharashtra Cricket Association has unjustly been
deprived of its right to participate in the AGM through Mr. Agashe whereas DDCA
and the Rajasthan Cricket Association had been allowed to participate therein
is a question which would require deeper probe and a detailed scrutiny.
Board had not filed even legal opinion which it obtained before replying to Mr.
Thorve's letter dated 10th April, 2004. The tenor of the Board's letter dated
3rd May, 2004 clearly demonstrates that a written opinion was obtained as
therein the following expressions have been used:
legal opinion further states" In the said legal opinion a distinction
appears to have been made between a policy decision to be taken by Maharashtra
Cricket Association vis-`-vis representation of the Association in the meetings
of the Board. No distinction might have been drawn therein as regard different
types of meetings of the Board, viz., Extraordinary General Meeting and Annual
General Meeting or any other meeting, nor do we find any. A person may either
be entitled to represent an association or he is not. A person's right to
represent an association ordinarily would not vary with the nature of the
meeting unless otherwise provided in the statute. So far no satisfactory
explanation has been furnished as to why another legal opinion was sought for
and acted upon in preference to the first one.
the question is whether Mr. Agashe could have represented the Maharashtra
Cricket Association in terms of resolution dated 27.09.2004. Different
standards cannot be adopted by the Board, viz., one for the purpose of
requisitioned meeting for inviting Mr. Dalmia to become the patron-in-chief of
the Board and other for the purpose of attending an AGM. In other meetings, Maharashtra
Cricket Association had admittedly been represented by Mr. Agashe. It is also
doubtful as to whether the Board could have gone into, if at all, the validity
or otherwise of the meeting of the Maharashtra Cricket Association held on 27th September, 2004. It is also a matter of contention
as to whether Mr. Deshmukh had exceeded his jurisdiction not only in taking his
stand as contained in his letter dated 27th September, 2004 but also sending copies thereof to
Mr. Thorve and Mr. Ajay B. Shirke before it was received by the Maharashtra
in terms of the order of the Bombay High Court prima facie was merely to attend
the meeting and give his approval or withhold it as regard any policy decision
which may be taken. Whether sending a representative of the Maharashtra Cricket
Association is a matter of policy warranting interference by the observers
appointed by the Bombay High Court is again a contentious issue. The members of
the Association could not have undermined the importance of electing its
representative for the ensuing Annual General Meeting of the Board.
Cricket Association itself has filed a Special Leave Petition questioning the
order of the Division Bench of the Madras High Court dated 29th September, 2004. In a situation of this nature,
this Court may not exercise its jurisdiction under Article 136 of the
Constitution of India because the order impugned before it is not correct. The
jurisdiction of this Court under Article 136 of the Constitution is a
and Others [(1982) 3 SCC 331], it was held:
What are the options before us. Obviously, as a logical corollary to our
finding we have to interfere with the judgment of the High Court, because the
view taken by it is not in conformity with the law. It is at this stage that
Mr. Sanghi, learned counsel for the respondent invited us to consider the
humanitarian aspect of the matter. The submission is that the jurisdiction of
this Court under Article 136 of the Constitution is discretionary and,
therefore, this Court is not bound to tilt at every approach found not in
consonance or conformity with law but the interference may have a deleterious
effect on the parties involved in the dispute. Laws cannot be interpreted and
enforced divorced from their effect on human beings for whom the laws are
meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law
must run akin to rule of life. And life of law is not logic but experience.
pointing out the error which according to us crept into the High Court's
judgment the legal position is restored and the rule of law has been ensured
its prestine glory. Having. performed that duty under Art. 136, is it
obligatory on this Court to take the matter to its logical end so that while
the law will affirm its element of certainty, the equity may stand massacred.
There comes in the element of discretion which this Court enjoys in exercise of
its extraordinary jurisdiction under Art. 136" SCC 635], this Court held:
In view of the above decisions, even though we are now dealing with the appeal
after grant of special leave, we are not bound to go into merits and even if we
do so and declare the law or point out the error - still we may not interfere
if the justice of the case on facts does not require interference or if we feel
that the relief could be moulded in a different fashion..." The said
decision has been followed by a 3-Judge Bench of this Court SCC 545].
319], this Court observed::
such an event also, the Court may have to find out a remedy which would be just
High Court furthermore failed to notice the principle 'actus curiae neminem gravabit'.
Krishnaji Kulkarni & Ors. [JT 2003 (7) SC 209], this Court noticed:
courts can take notice of the subsequent events and can mould the relief
accordingly. But there is a rider to these well established principles.
can be done only in exceptional circumstances, some of which have been
highlighted above. This equitable principle cannot, however, stand in the way
of the court adjudicating the rights already vested by a statute. This well
settled position need not detain us, when the second point urged by the
appellants is focused.
can be no quarrel with the proposition as noted by the High Court that a party
cannot be made to suffer on account of an act of the Court.
is a well recognised maxim of equity, namely, actus curiae neminem gravabit
which means an act of the Court shall prejudice no man.
maxim is founded upon justice and good sense which serves a safe and certain
guide for the administration of law. The other maxim is, lex non cogit ad impossibilia,
i.e. the law does not compel a man to do that what he cannot possibly perform"
Others [(2004) 8 SCC 788], this Court held:
We have, on the premises aforementioned, no hesitation to hold that the
decision of the Council of Ministers was ex facie irrational whereas the
decision of the Governor was not. In a situation of this nature, the writ court
while exercising its jurisdiction under Article 226 of the Constitution as also
this Court under Articles 136 and 142 of the Constitution can pass an
appropriate order which would do complete justice to the parties.
High Court unfortunately failed to consider this aspect of the matter."
However, keeping in view of the fact that the elected office bearers are yet to
take over charge, with a view to do complete justice to the parties, we would
in exercise of our jurisdiction under Article 142 of the Constitution direct
that the adjourned meeting should immediately be convened. As regard the
election of the office bearers of the Board, it would further be open to an
aggrieved party to question the legality or validity of the said meeting dated 29th September, 2004. Netaji also may, if it is otherwise
permissible in law, subject to an appropriate order that may be passed by the
Madras High Court, may file an application for amendment of the plaint or take
such other step or steps as it may be advised.
in view of the fact that on 8th October, 2004 when the impugned order was
passed the new Board had not taken over as also having regard to the prayer
made in the interim application filed by Netaji for grant of interim injunction
restraining the newly elected Board from functioning in the interim, we make
our interim order dated 11th October, 2004 staying the operation of the part of
the order whereby Mr. Justice S. Mohan was appointed as an interim
Administrator absolute leaving the parties to file such interim applications as
may be necessary in the changed situation.
keeping in view of the fact that interim order of injunction as regard Agenda
Item Nos. 1(b) and 13 been passed by a District Court at Chennai, the suit
filed by Bharathi Cricket Club, we are of the opinion that it is not necessary
to pass any other order at this stage as regard invitation to Mr. Jagmohan Dalmia
to become the patron-in-chief of the Board.
are, however, of the opinion that it would not be appropriate to restore the
order of the learned Single Judge dated 28.9.2004 as was submitted by Mr. Nariman
as the purpose for which Mr. Justice S. Mohan was appointed has lost its
view of the orders passed by us, we do not think it necessary to pass separate
orders in the Special Leave Petition filed by the Maharashtra Cricket
Association. The Maharashtra Cricket Association shall, however, be at liberty
to file an appropriate application for getting itself impleaded in the
proceedings pending before the Madras High Court, subject to any objection that
may be taken by the Board. We, however, furthermore are of the opinion that
keeping in view the facts and circumstances of this case that part of the order
of the Division Bench dated 29th September, 2004 whereby and whereunder the
Board was directed to pay a further sum of Rs. 1 lakh to Mr. Justice S. Mohan
as additional remuneration cannot be sustained. It is set aside accordingly.
in view the peculiar fact situation obtaining herein, we would request the High
Court to consider the desirability of disposing of the matters pending before
it as expeditiously as possible.
appeals are disposed of with the aforementioned directions. No costs.