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CASE NO.:

Appeal (civil) 237-239 of 2005

PETITIONER:

Board of Control for Cricket, India & Anr.

RESPONDENT:

Netaji Cricket Club & Ors.

DATE OF JUDGMENT: 10/01/2005

BENCH:

N. Santosh Hegde & S.B. Sinha

JUDGMENT:

J U D G M E N T

(Arising 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. 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.

Netaji 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:

"1. 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 such candidate not being a resident

member within the zone not being a member of the

said association giving him the representation."

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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.

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 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.

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 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.

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 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:

"(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 10.30

a.m. shall be continued by the first defendant/

appellant \026 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,

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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 \026 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:

"a) 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.

b) 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).

A 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 still pending.

The 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.

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A 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.

The 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:

"3. 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 2004.

4. We 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 2004.

Notice.

5. 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:

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"List this matter for final hearing on 26th October,

2004. In the meantime the impugned order to the

extent of appointment of Administrator is stayed.

In the meantime Election/ appointment of

Respondent No. 3 Patron-in-Chief is also stayed

until further orders.

Correction 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'.

An 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.

Contention 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.

Dr. Singhvi 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

behalf has been placed on T.P. Daver Vs. Lodge Victoria No. 363, S.C.

Belgaum [1963 SC 1144 : 1964 (1) SCR 1].

It was urged that the High Court wrongly exercised its jurisdiction in

entertaining the review application. Reliance in this regard has been placed

on Parsion Devi and Others Vs. Sumitri Devi and Others [(1997) 8 SCC

715] and Lily Thomas and Others Vs. Union of India and Others [(2000) 6

SCC 224].

The 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

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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.

As 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.

As 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.

Drawing 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.

The 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.

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 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

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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-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 Board.

Mr. 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.

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 Karnataka Education Society Vs.

Registrar of Societies and Others [(2000) 1 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

represent the Maharashtra Cricket Association.

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 1016-17.

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.

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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 \026 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 been given.

A 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.

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 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.

The 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 still continuing.

Drawing 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.

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, 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.

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 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.

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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 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.

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.

Agashe and Mr. Thorve it was contended that the same was wholly

unnatural and, thus, gives rise to another controversy.

The 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:

"Your letter dated 10 April 2004 addressed to our

Board was forwarded for legal opinion.

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

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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

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

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.

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 of this nature the Chairman ought not to have

exercised his discretionary power to cast vote twice.

Mr. Nariman would draw our attention to the Judges Summons in

O.A. No. 803 of 2004 wherein the following prayers were made:

"1) 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

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."

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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:

"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:

"\005It 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.

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 his 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 behalf of

'Netaji' would submit that the Board is a federal head of cricket

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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.

Relying on a decision of this Court in K. Murugan Vs. Fencing

Association 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.

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 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.

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 Vs. Feilden

and Others [1966 (2) QB 633 at 643 and 644] and St. Johnstone Football

Club Limited Vs. Scottish Football Association [1965 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 to 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

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

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said body.

The 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.

As 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.

The 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.

According 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 alternative remedy.

Dr. Singhvi 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.

Mr. 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.

The 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.

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

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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.

The 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.

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 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 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.

We 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.

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

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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.

The events leading to these appeals, as narrated hereinbefore, raise a

abysmal picture and a sordid state of affairs.

In the 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.

Although 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 \026 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.

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. 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.

We 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.

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.

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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".

It is true that in Moran Mar Basselios Catholicos and Another Vs. The

Most 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 :

"Before 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 (i)

discovery 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, (ii) mistake or error apparent on the face of

the record and (iii) for any other sufficient reason.

It has 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.

Yet again in Lily Thomas (supra), this Court has laid down the law in

the following terms:

"52. 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.

This 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

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rectifying the error\005"

(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 mistake.

In Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni &

Ors. [(2003) 7 SCC 219], this Court noticed:

"4. 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

[1934] 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

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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 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.

The conduct of the Board furthermore is not above board. The

manner in which the Board had acted leaves much to desire.

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.

The 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:

"the 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.

One of 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 Cricket

Association.

Mr. Deshmukh 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

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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.

The Maharashtra 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 discretionary one.

In Municipal Board, Pratabgarh and Another Vs. Mahendra Singh

Chawla and Others [(1982) 3 SCC 331], it was held:

"6. 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.

By 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\005"

In Taherakhatoon (D) by LRS. Vs. Salambin Mohammad [(1999) 2

SCC 635], this Court held:

"20. 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

in Chandra Singh and Others Vs. State of Rajasthan and Another [(2003) 6

SCC 545].

Yet again in Ram Chandra Singh Vs. Savitri Devi and Others [(2003)

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8 SCC 319], this Court observed::

"In such an event also, the Court may have

to find out a remedy which would be just and

equitable.

The High Court furthermore failed to notice

the principle 'actus curiae neminem gravabit'.

In Rajesh D. Darbar & Others Vs.

Narasingrao Krishnaji Kulkarni & Ors. [JT 2003

(7) SC 209], this Court noticed:

"The courts can take notice of the subsequent

events and can mould the relief accordingly. But

there is a rider to these well established principles.

This 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.

There 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.

There is a well recognised maxim of equity,

namely, actus curiae neminem gravabit which

means an act of the Court shall prejudice no man.

This 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\005"

Recently, in M.P. Special Police Establishment Vs. State of M.P. and

Others [(2004) 8 SCC 788], this Court held:

"31. 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.

The 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.

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 of the part of the order whereby Mr. Justice S. Mohan was

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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. 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.

We 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 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 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.

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.

These appeals are disposed of with the aforementioned directions. No

costs.