BOARD OF CONTROL FOR CRICKET, INDIA AND ANR. v. NETAJI CRICKET CLUB AND ORS

Citation: [2005] 1 S.C.R. 173

Court: Supreme Court of India

Bench: N. SANTOSH HEGDE, S.B. SINHA

Case summary

BOARD OF CONTROL FOR CRICKET, INDIA AND ANR. v. NETAJI CRICKET CLUB AND ORS.pdf

Judgment text

BOARD OF CONTROL FOR CRICKET, INDIA AND ANR. v. NETAJI CRICKET CLUB AND ORS. JANUARY IO, 2005 [N. SANTOSH HEGDE AND S. B. SINHA, JJ. ] Societies-Tamil Nadu Societies Registration Act, 1975-Appel! ant- Board, a society registered under the Act controlling the sport of cricket in India-Enjoying monopoly status as regard regulation ofcricket in terms of its Memorandum ofAssociation and Articles ofAssociation-"Fairness" and "good faith" in its action-Requirement of-Held: Having regard to the enormity ofpower exercised by it, the Board is bound to follow the doctrine of'fairness' and 'goodfaith' in all its activities-It has a duty to act reasonably and cannot act arbitrarily, whimsically or capriciously-Both J. -Ub/ic good and welfare ofcricket must be kept in view-It is wholly undesirable that a body incharge ofcontrolling the sport ofcricket should involve in litigations completely losing sight of the objectives of the society. .

• Code ofCivil Procedure, 1908-Section 114 and Order XLV/f, Rule I- · Undertaking given by counsel on behalf ofparty-Conditional order passed by High Court on that basis-Review application filed alleging breach ofthe undertaking-Maintainability of-Held: Application for review would be maintainable not only upon discovery ofa new and important piece ofevidence or when there exists an error apparent on the face ofthe record but also if the same is necessitated on account ofsome mistake or for any other sufficient reason-A mistake on the part ofthe Court which would include a mistake in p nature of an undertaking may also call for review--/!

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-On/acts, where the High Court accepted its own mistake in understanding the nature and purport of the undertaking given by the counsel appearing on behalfof the Appellant-Board and its correlation with as to what transpired in the AGM of the Board, the subsequent event may be taken into consideration by the Court for purpose ofrectifYing its own mistake-Furthermore, the impugned order passed in review is only interlocutory in nature and not wholly without jurisdiction so as to warrant inte1ference-Discretionary jurisdiction under Article 136 ofthe Constitution not required to be exercised-However directions given in terms of Art. 142 of the Constitution-Constitution of India. 1950- Articles 136 and 142.

Doctrines-Doctrine "actus curiae neminem gravabit "-Applicability of Words and Phrases-Words 'sufficient reason' in Order 47, Rule /- Meaning of. Respondent No. 1 filed suit for declaration and injunction in the High Court, expressing apprehension that Appellant-Board in its ensuing election of office bearers would not permit some candidates to contest on ground of residence. Single Judge of the High Court appointed Mr. S. Mohan, a former Supreme Court Judge as a Commissioner to conduct the elections. In Letters Patent Appeal before the Division Bench, an undertaking was given by the counsel appearing on behalf of the Board that the Board would not disqualify any candidate for the post of President on the ground of residence, whereafter with consent of the parties, the suit itselfwas withdrawn and the appeal disposed of with conditional directions in accordance with which the Annual General meeting (election meeting) ~ was directed to be convened.

After the meeting was held, Respondent No. 1 filed review petition inter alia contending that the purported undertaking given by the counsel appearing on behalf of the Board was not adhered to and furthermore no appeal had been filed by the Appellants against the order of injunction passed by the Single Judge. The review petition was admitted by the Division Bench which observing that the undertaking given by the counsel of Appellant-Board across the Bar being not been given effect to in its letter and spirit, accordingly passed an interim order of injunction. Hence the present appeals, in which issues regarding validity of the election meeting (AGM) on ground of use of casting vote by the Chairman, Mr. Jagmohan Dalmiya and regarding exclusion of a member, i. e. the Maharashthra Cricket Association from voting through Mr. Agashe or any other person arose for consideration. Disposing of the appeals, the Court HELD: 1. 1.

The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regard regulation I. \ BOARD OF CONTROL FOR CRICKET,"· NETAJI CRICKET CLUB J75 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. It inter a/ia 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 fora. 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 demonst_rate 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 deeply pervasive and complete. (198-E-H; 199-A) 1. 2. 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. (199-B) 1. 3. 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 p 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. The conduct of the Board is not above board. The manner in which the Board had acted leaves much to desire. )199-C-D; 204-C) T. P. Daver v. Lodge Victoria No. 363, SC Belgaum, (1963) SC 1144: (1964) I SCR I; Parsion Devi and Ors. v. Sumitri Devi and Ors. , (1997) 8 / SCC 715; Hyderabad Karnataka Education Society v. Registrar ofSocieties and Ors.

, (2000( I SCC 566; K. Murugan v. Fencing Association ofIndia, ~ • Jabalpur and Ors. , (1991 ( 2 SCC 412 and St. Johnstone Football Club Limited v. Scottish Football Association, (1965) SLT 171, referred to. Nagle v. Feilden and Ors. , (1966) 2 QB 633, referred to. 2. 1. Indisputably, an undertaking had been given by the 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 the Division Bench of the High Court itself is competent therefor. (200-G-H) 2. 2. Furthermore, the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 CPC 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 CPC in terms whereof it is empowered to make such order as it thinks fit. (201-B) 2. 3. Order 47, Rule I of the CPC 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. Thus, 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 I of the CPC 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". (201-C-EJ 2. 4. 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 BOARD OF CONTROL FOR CRICKET, v. NETAll CRICKET CLUB J77 accepts its own mistake in understanding the nature and purport of the I.... , undertaking given by the 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 mistake. [202-GI 2. 5. Furthermore, the impugned order is interlocutory in nature.

This Court, it is trite, ordinarily would not interfere with an interlocutory order admitting a review petition. 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. [204-A-Bl lily Thomas and Ors. v. Union ofIndia and Ors. , [2000) 6 SCC 224 and Rajesh D. Darbar and Ors. v. Narasingrao Krishnaji Kulkarni and Ors. , [2003) 1 sec 219, relied on. Moran Mar Basselios Catholicos andAnr. v. The Most Rev. Mar Poulose Athanasius and Ors. , (19551 1 SCR 520, referred to. 3.

Earlier, this Court had after hearing 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, but, this was done under a mistaken belief that the Board would be represented by the new office bearers and, thus, all parties would be before it. However, it now stands admitted that the office bearers either in their personal capacity or official capacity are not before this Court. 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, this Court would not be in a position to entertain the dispute as regard validity of the meeting 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. [199-F-H; 200-A) 4. 1. The 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. A person may either be entitled to represent an association or he is not. A person's right to rt'present an association ordinarily would not vary with the nature of the meeting unless otherwise provided in the statute. 1204-D, GI 4. 2. 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. 1205-A-BI 4. 3. 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. 1205-DI 4. 4. The Maharashtra Cricket Association itself has filed a Special 1 Leave Petition questioning the order of the Division Bench of the High Court. 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 discretionary one. [205-E-Fl 4. 5.

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, in exercise ofjurisdiction under Article 142 of the Constitution it is directed 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. Respondent No. I also may, if it is otherwise permissible in law, subject to an appropriate order that may be passed by the High Court, may file an application for amendment of the plaint or take such other step or steps as it may be advised. Keeping in view the fact that 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 Respondent No.

I for grant of interim injunction restraining the newly BOARD OF CONTROL FOR CRICKET,"· NETAJI CRICKET CLUB J79 elected Board from functioning in the interim, the interim order earlier passed by this Court 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. 1207-F-H; 208-A] 4. 6. However, in view of the fact that interim order of injunction as regard Agenda Item Nos. l(b) and 13 had been passed by a District Court at Chennai, the suit filed by Bharathi Cricket Cl,,b, :tis 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. Also it would not be appropriate to restore the order of the Single Judge as the purpose for which Mr. Justice S. Mohan was appointed has lost its efficacy. 1208-B-C] 4. 7.

It is also not necessary to pass separate orders in the Special Leave Petition filed by the Maharashtra Cricket Association. Th~ Maharashtra Cricket Association shall, however, be at liberty to file an appropriate application for getting itself impleaded in the proceedings pending before the High Court, subject to any objection that may be taken by the Board. Furthermore, keeping in view the facts and circumstances of this case that part of the order of the Division Bench 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. 1208-D-E] 4. 8. Keeping in view the peculiar fact situation obtaining herein, the High Court is requested to consider the desirability of disposing of the matters pending before it as expeditiously as possible. 1208-FI Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and Ors. , 1198213 SCC 331; Taherakhatoon (D) by LRs. v.

Salambin Mohammad, 11999] 2 SCC 635; Chandra Singh and Ors. v. State ofRajasthan and Anr. , (2003) 6 SCC 545; Ram Chandra Singh v. Savitri Devi and Ors. , 12003] 8 SCC 319; Rajesh D. Darbar amd Ors. v. Narasingrao Krishnaji Kulkarni and Ors. , JT (2003) 7 SC 209 and MP. Special Police Establishment v. State of MP. and Ors. , 12004] 8 SCC 788, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 237-239 of 2005. From the Judgment and Order dated 8. 10. 2004 of the Madras High r Court in C. M. P. Nos. 16418 and 16419/2004, R. P. No. 166/2004 in O. S. A. No. 225/2004 and C. M. P. No. 16420/2004 in S. R. No. 103036 of2004. WITH C. A. Nos. 249, 232-33, 234-236 of 2005. Dr. A. M. Singhvi, C. S. Vaidyanathan, S. S. Ray, F. S. Nariman, Harish N. Salve, Shanti Bhushan and K. Ramamoorthy, Ms. Radha Rangaswamu, U. N. Banerjee, Jaideep Kar, Siddhartha Chowdhury, Ms. Bharthi Tyagi, Gopal Jain, Ankur Chawla, Ms. Ruby Singh Ahuja, R. N. Karanjawala, Ms.

Meenakshi Grover, Subhash Sharma, Ashish Jha, Gaurav Vatts, Bharat Sinuri, Mrs. Manik Karanjawala, E. C. Agrawala, Sushi! Kumar Jain, Naresh Kaushik, Ms. Shilpa Chohan, Mrs. Lalita Kaushik Ms. Sushmita Banerjee, Ms. Minakshi Sharma, Tarun Johri and Harishanker K. , for the appearing parties. The Judgment of the Court was delivered-by S. B. SINHA, J. Leave granted in all SLPs. These appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. The basic fact of the matter is not in dispute. r ... Netaji Cricket Club (Netaji) is a member of Tamil Nadu Cricket Association. Tamil Nadu Cricket Association is admittedly a member of the Board ofControl 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: "I.

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. 2. For 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 BOARD OF CONTROL FOR CRICKET, 1• NETAJI CRICKET CLUB [SINHA, J. ] 181 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 app1·ehension was expressed that the Board in its ensuing election of office bearers would not/permit some candidates to contest on the ground of residence. In the 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 Genera! 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 ofresidential qualification. By an 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 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. The 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 Comi. 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 furtt. erance of the said undertaking a statement p was made by the learned counsel appearing on behalf of 'Netaji' that the apprehension of the plaintiff/ first respondent which fonned 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: .. "(i) We are of the view that the impugned order need not be in existence and hence, the same is set aside; (ii) the elections scheduled on 29. 9. 2004 at I0. 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 .. framed thereunder; -~ (iii) the 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.

Rajagopal 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; (iv) 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 (v) in 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 Vil Assistant City Civil Court, Chennai by Bharathi Cricket Club against the Appellants herein as also the Tamil Nadu Cricket Association praying for the following relie"s: "(a) Declaration that the resolution in so far as it relates to Item I 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. (b) Order of Permanent Injunction restraining the First Defendant from passing the resolution in relation to Item l(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 and 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 BOARD OF CONTROL FOR CRICKET, v. NETAJI CRICKET CLUB [SINHA, l] J83 the Third Defendant as Patron-in-Chief thereby empowering the Third ,I-- 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. It was 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. On the aforementioned premise, it was submitted that there was 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 application.

As 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. As regards, invitation of Mr. Dalmia for holding the post of patron-inchief, 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 Board. Mr. C. S.

Vaidyanathan, learned senior counsel appearing on behalf of the DDCA would submit that as regards legality or otherwise ofits 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. Drawing 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. Mr. 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 behalf has been placed on Hyderabad Karna/aka Education Society v. Registrar of Societies and Ors. , [2000) I SCC 566. The 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 BOARD Of CONTROL FOR CRICKET, v. NETAJI CRICKET CLUB [SINHA, . I. ] 189 represent the Maharashtra Cricket Association.

I °"' The 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 l016-17. The 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, It was argued that the AGM had to be adjourned and did not terminate. Therefore, Rule 20(iii) became operative, As 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 Cricket Association, The 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. Mr. Shanti Bhushan, learned senior counsel appearing on behalf of Intervenor - Club of Maharashtra which is said to be a member of Maharashtra p Cricket Association would submit that the meeting held on 27. 9. 2004 authorising Mr.

Agashe as a representative ofthe Association was not a valid one as mandatory notice therefor had not been given. A valid resolution, according to Mr. Shanti Bhushan, would mean one passed in a properly constituted meeting ofthe Maharashtra Cricket Association as its participation in the AGM of the Board was a matter of importance and not a day to day affair. The 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. Mr. Shanti 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. Mr. 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. Drawing our attention to the order of injunction passed by the District Court, Madras in the suit tiled by Bharathi Cricket Club, the learned counsel would contend that they could have excluded both Item Nos. l(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. The learned counsel would contend that in terms of the Rules only , ' elected representatives represent the Board but in the instant case, elected y representatives allegedly in terms of Rule 20(iii) had not taken charge and the old body is . still continuing.

Drawing our attention to the affidavit tiled 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. According 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, malatide 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. " Mr.

Nariman pointed out that in the Special Leave Petition, no statement as to what had happened on 29th September, 2004 regarding election of the BOARD OF CONTROL FOR CRICKET, v. NETAJI CRICKET CLUB [SINHA, . I. ] 191 office bearers of the Board had been made but the. same had been disclosed I .... _ only in an additional affidavit filed in the S. L. P. of MCA. Drawing 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 Association.

The learned counsel would contend that although a resolution was passed in the meeting ofthe 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. Drawing 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. c> Agashe and Mr. Thorve it was contended that the same was wholly unnatural and, thus, gives rise to another controversy. ' The learned counsel woulcj contend that Mr. Thorve in his letter dated I0th 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: "Your letter dated I0 April 2004 addressed to our Board was forwarded for legal opinion. 'y According 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. The 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. Mr. Nariman 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. The 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. I wherein it has been alleged: "It 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 ofMr. 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 ifthe representation ofMaharashtra Cricket Associ- BOARD OF CONTROL FOR CRICKET, v. NETAll CRICKET CLUB [SINHA, J ] 193 ation through Mr, Agashe in the earlier meetings of the Board had not been "'-. a policy decision of Maharashtra Cricket Association, then why all of sudden it became so for the AGM. Only. Drawing 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.

In 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 ofthis nature the Chairman ought not to have exercised his discretionary power to cast vote twice. r• Mr. Nariman would draw our attention to the Judges Summons in O. A. No. 803 of 2004 wherein the following prayers were made: "' "(I} This Hon'ble Court should not be pleased to treat the application as ugent?

(2) Why this Hon'ble Court should not be pleased to pass an order of AD-INTERIM INJUNCTION to restrain the Chairman oblique President of BCCJ 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 Ist 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 QA No. 803 of 2004 and OA No. 804 of 2004, para 14 whereof is as under: "14. 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. Mr. Nariman 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. In 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: "(iv) 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: "It 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. \ BOARD OF CONTROL FOR CRICKET, v. NETAJI CRICKET CLUB [SINHA, J. ] J95 According 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 hi> undertaking and in this view of the matter the statement of the Judge in the impugned order should be accepted. Mr. Harish Salve, learned senior counsel appearing on behalfof '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. r• Relying on a decision of this Court in K. Murugan v. Fencing Association ofIndia, Jabalpur and Ors. , [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. As regard exercise of right of 'casting vote' by Mr. Dalmia, the learned counsel would contend that the same could be exercised when there was 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.

As regard functioning of the Board, it was urged that the same being based on trust, the "power and abuse" would bring into focus administrative law situation. Reliance in this behalf has been placed on Nagle v. Feilden and Ors. , (1966] 2 QB 633 at 643 and 644 and St. Johnstone Football Club Limited v. Scottish Football Association. , (I 965) SLT 171. 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. Dr.

Singhvi, 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 tci or in furtherance of the said prayer only, the impugned order of injunction was passed by the Division Bench. .. As regard the AGM held on 29. 9. 2004, it was contended that some of , 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. Keeping 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 ofthe 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. However, keeping in view of the fact that interim order of injunction as regard Agenda Item Nos.

I(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. We are, however, of the opinion that it would not be appropriate to restore the order ofthe 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 efficacy. In 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 m any objection that may be • · taken by the Board.

We, however, furthermore are ofthe 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. I lakh to Mr. Justice S. Mohan as additional remuneration cannot be sustained. It is set aside accordingly. Keeping 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. 'i' These appeals are disposed of with the aforementioned directions. No costs. B. B. B. Appeals disposed of.