2005 Supreme(SC) 47

2005(1) Supreme 507
Supreme Court of India
(From Madras High Court)
N. Santosh Hegde & S.B. Sinha, JJ.
Board of Control for Cricket, India & Anr. —Appellants
versus
Netaji Cricket Club & Ors. —Respondents
Civil Appeal Nos. 237-239 of 2005
(Arising out of SLP (C) Nos. 21820-21822 of 2004)
With
Civil Appeal No. 249 of 2005
(@ SLP (C) No. 23351 of 2004)
Civil Appeal Nos. 232-233 of 2005
(@ SLP (C) Nos. 23837-23838 of 2004)
Civil Appeal Nos. 234-236 of 2005
(@ SLP (C) Nos. 22361-22363 of 2004)
Decided on 10-1-2005
Counsel for the Parties :
For the Appearing Parties : Dr. A.M. Singhvi, C.S. Vaidyanathan, S.S. Ray, F.S. Nariman, Harish N. Salve, Shanti Bhushan and K. Ramamoorthy, Sr. Advocates, Ms. Radha Rangawamy, U.N. Banerjee, Jaideep Kar, Siddhartha Chowdhury, Ms. Bharthi Tyagi, Gopal Jain, Ankur Chawla, Ms. Ruby Singh Ahuja, R.N. Karanjawala, Ms. Meenakshi Grover, Subash Sharma, Ashish Jha, Gaurav Vatts, Bharat Sinuri, Mrs. Manik Karanjawala, E.C. Agrawala, Sushil Kumar Jain, Naresh Kaushik, Ms. Shilpa Chohan, Mrs. Lalita Kaushik Ms. Sushmita Banerjee, Ms. Minakshi Sharma, Tarun Johri and Harishanker K., Advocates.

Important pointA 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.

Headnote:Constitution of India—Articles 136 and 142—Civil Procedure Code, 1908—Section 114; Order 47, Rule 1—Elections for the post of President in BCCI—Netaji Cricket Club, a member of the Board filed a suit for declaration and injunction—A declaration was sought that eligible candidates who are entitled to contest for the post of President should be permitted to contest in the election process—Interim application was filed with a prayer to the effect that Annual General Meeting be conducted under the Chairmanship of a retired Supreme Court Judge with absolute power to scrutinize and approve the list of authorized representatives—By an interim order, a Single Judge of the High Court appointed a former Judge of the Supreme Court as a Commissioner to conduct elections—Third respondent was prohibited from disqualifying any member of BCCI and prevent them from voting—Board filed Letters Patent Appeal—Before the Division Bench an undertaking was given by the Senior Counsel on behalf of the Board that the Board would not disqualify any candidate on ground of residence—Suit was withdrawn with consent of parties—In another suit, Court granted an ex-parte ad interim injunction—Appellants were restrained from passing resolutions confirming the nomination of Shri Jagmohan Dalmia as Patron in-Chief for three years—Civil Review Application—Maharashtra Cricket Association was not permitted to take part in the election—Whether subsequent events could have been taken into consideration.

       Held : When 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 Court. (Para 78)

       The Board is a society registered under the Tamil Nadu Societies Registration Act. In 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. It 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 he 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 and complete. 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. 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 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. (Paras 79 to 81)

       On 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. (Para 83)

       Indisputably, 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. (Para 86)

       Order 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. 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 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”. (Paras 88 and 89)

       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 mistake. (Para 92)

       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 before it. Furthermore, 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. (Para 94)

       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. (Para 107)

       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. (Para 112)