2013 Supreme(Bom) 1419

High Court of Judicature at Bombay
S.J. VAZIFDAR & M.S. SONAK, JJ.
Cricket Association of Bihar
Versus
Board of Control For Cricket in India & Others
Public Interest Litigation No.55 of 2013
Decided On : 30-07-2013

Headnote:Constitution of India, 1950 - Articles 12 and 226 - Maintainability of writ petition.

       Writ petition, challenging appointment of Enquiry Commission by BCCI, i.e. State action, is maintainable. - The question then is whether the impugned action in the present case constituted performance by respondent No. 1 of a public duty or a State function or can be said to be akin to a public duty or State function. This question was answered in the affirmative by the Division Bench of the Court in Lalit Kumar Modi v. BCCI and others, 2011 (2) All MR 714. The Division Bench expressly held that "constitution of the Disciplinary Committee..........are matters which could be subject-matter of Judicial scrutiny in Writ Jurisdiction." In Zee Teleflims Ltd., such an issue did not arise. The Supreme Court did not consider whether constitution of a Disciplinary Committee by respondent No. 1 could be subject-matter of judicial scrutiny in writ jurisdiction. It cannot therefore, be said that the judgment of the Division Bench is per incuriam on account of the Division Bench not having considered the judgment of the Supreme Court in Zee Teleflims Ltd v. Union of India .

       Court is bound by the judgment of the Supreme Court in BCCI v. Netaji Cricket Club and by the judgment of the Division Bench of the Court in Lalit Modi v. BCCI and others, 2011 (2) All MR 714. Accordingly it is neither necessary for nor open to us to consider the preliminary objection on principle. It must be answered in favour of the petitioner on the authority of the judgment of the Division Bench in Lalit Kumar Modi v. BCCI and others, 2011 (2) All MR 714.

       Constitution of India, 1950 - Article 226 - Public Interest LItigation.

       Though matter involves disputed questions of facts yet it cannot be relegated for trial, in view of finding that appointment was made de-hors Rules and Regulations of BCCI. - It is not without significance that the affiant has been barred for five years’ by his parent cricket association-Mumbai Cricket Association from taking part in any activity of the association including contesting’ the elections on account of the alleged misuse of the association’s money. On the other hand, the members of respondent No. 1 such as the Secretary of respondent No. 1 and one a Treasurer of respondent No. 1, did not even know anything about the process of appointment of the probe panel. They were both also members of the Governing Council of the IPL by virtue of the Memorandum and Rules and Regulations of respondent No. 1 (Rule 27-M read with Rule 1(k) set out later in this judgment). The said Treasurer by a letter, in response to the petitioner’s letter, stated that he was not aware of any meeting of the IPL Governing Council nor as to who suggested the names of the members of the probe panel.

       The said Secretary have not filed affidavits themselves. However, their letters have been annexed to the affidavit in rejoinder. The respondents have not denied the contents thereof. It was therefore, not necessary for them to file an affidavit. The said Secretary and Treasurer resigned immediately after the formation of the probe panel.

       In the affidavit in rejoinder, the petitioner has expressly stated that there are not details as to which of the members of the affiant called.

       Court would normally, therefore, have relegated the petitioner to filing a suit or any other proceedings in which it can be ascertained with a greater degree of certainty whether or not President played a role in the formation of the commission. However, in view of finding that the constitution of the commission is not in accordance with the Rules and Regulations of Secretary, this may not be necessary.

       Constitution of India, 1950 - Article 226 - Bombay High Court Public Interest Litigation Rules, 2010, Rules 3, 4 and 5 - Bona fide of Public Interest Litigation.

       Since serious issues of general importance is raised in PIL hence PIL cannot be dismissed for want of bona fide. - It is true that the petitioner has several disputes with respondent Nos. 1 and 2. That by itself however, ought not to disentitle it to maintain this PIL.

       The failure to disclose the proceedings adopted by the Secretary of the petitioner claiming to be the Secretary of Saran District Cricket Association does not constitute an infringement of the Bombay High Court Public Interest Litigation Rules. Rule 5(e) requires the petitioner to furnish the details regarding the proceedings involving the petitioner which has or could have a legal nexus with the issues involved in the PIL The issues raised therein do not have any nexus with the issues involved in this PIL.

       This is not a bona-fide public interest litigation, but a proxy fight between respondent No. 2 and the said A.C. Muthiah. In prayer (c), the petitioner has sought an order directing respondent No. 1 to institute disciplinary proceedings against respondent No. 2 and an order that pending the same, respondent No. 2 ought to be directed to vacate the office of the President of respondent No. 1 and the President of the Tamil Nadu Cricket Association. Indeed, respondent No. 2 being the President of the Tamil Nadu Cricket Association, has nothing to do with the issues raised in the present petition. However, the mere fact that this relief has been claimed would not be a ground for rejecting this petition, which otherwise raises serious issues of general importance. Prayer (d), whic h seeks an order preventing respondent No. 2 from contesting for the post of President of respondent No. 1 in future and representing respondent No. 1 in the International Cricket Council, may or may not be granted, may or may not be sustainable. That however, is not a ground for rejecting all the reliefs in the PIL. Nor does the mere claim for such reliefs render the PIL not maintainable. The mere fact that there is animosity between the petitioner and the respondents, does not ipso-facto result in the dismissal of the PIL. The grant of the reliefs sought or pressed would not further the cause of the petitioner in its other disputes with respondent Nos. 1 and 2.

       Constitution of India, 1950 - Article 226 - Operational Rules for 2013 PIL (dated 15.3.2013), Section 6, Rules 2.2 and 3 - PIL challenging constitution of Enquiry Commission by BCCI.

       Though Constitution of Enquiry Commission is in violation of Rules 2.2 and 3 of Section 6 of Rules 2013 yet Writ Court cannot constitute fresh Commission. - The commission initially comprised of the said Sanjay Jagdale, the then Hon’ble Secretary of respondent No. 1 and two retired Judges. The said Sanjay Jagdale declined to be a part of the commission. Respondent No. 1 ultimately constituted the commission comprising only of the two remaining members of the commission. The question is whether the commission comprising of the two retired Judges is valid as per Rule 2.2 or the Operational Rules.

       Rule 2.2 mandates that : "The commission will comprise upto three members of the IPL Code of Behaviour Committee as selected by BCCI. Rule 2.2 expressly permits a commission to be comprised of three members of the IPL Code of Behaviour Committee as selected by BCCI. Rule 2.2 therefore mandatorily requires a member of the IPL Code of Behaviour Committee to be on the commission. In other words a commission cannot be constituted without at least one member of the IPL Code of Behaviour Committee.

       It is the first respondent that seeks to deviate from this rule and take be advantage of an exception based on the doctrine of necessity. It is for the party relying upon an exemption or an exception to aver and prove that the facts justifying or entitling it to do so exist. The burden was therefore, on respondent No. 1 to aver and prove that no member from the IPL Code of Behaviour Committee was available to be appointed on the said commission. Respondent No. 1 has not even averred anything to this effect. It has not even sought to establish the same except orally across the bar during the hearing.

       The constitution of a probe commission under Section 6 of the Operational Rules is the prerogative of respondent No. 1. Court sees no reason to deprive it of the same at this stage and in this writ petition. Respondent No. 1 is at liberty to take such steps as it deems in this regard.