TMI Blog2004 (10) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of alleged Government recognition and patronage, perform their duties and obligations which is to promote and develop cricket in the country and that they do not function as private empires of some businessmen and traders who have allegedly come to control it and abuse it for their own interests and profits. The petitioners contend that BCCI and DCCA function as Government recognised monopolies and, as such, perform State functions of promoting cricket in the country. They further contend that BCCI and DDCA cannot be permitted to function as purely private organisations without any accountability or obligation to the people of this country. The petitioners further seek direction to the Government of India to ensure that BCCI and DDCA function in an accountable manner and for the objects for which they have been created and recognised by the Government, failing which the Government must withdraw its recognition and patronage from these organizations. 2. Without going into the merits or demerits of the case, a serious objection has been taken by the BCCI to the maintainability of this petition. They contend that they are not amenable to the extraordinary writ jurisdiction. Argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on stands dismissed as withdrawn. All interim orders including the order dated 17th September, 2001 stand vacated.'' In other words, the writ petition filed by Ajay Jadeja was withdrawn by him as he agreed to have the matter settled by an Arbitrator. And, the Division Bench was careful enough to record that the order was not to be treated as a precedent. It is in view of these special circumstances and the withdrawal of the writ petition itself that the order dated 17.9.2001 passed by the Single Judge stood vacated. Thus, this order of the Division Bench cannot be regarded as having reversed the decision of the Single Judge on merits. In other words, it cannot be understood to mean that the Division Bench held that the writ petition against BCCI was not maintainable or that it took any view on the question of maintainability. Hence, the argument of Dr Singhvi appearing for the BCCI that this bench is bound by the decision of that Division Bench is misplaced and reliance on the Supreme Court decision in State of A.P. v. V.C. Subbarayudu and Ors. [1998]1SCR299 is not apposite. Here, the earlier Division Bench did not take any view on maintainability and itself recorded tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of this Court held that the BCCI did not ''qualify to be called a instrumentality of the State under Article 12 of the Constitution'' and declined to entertain the writ petition. In the Special Leave Petition [SLP(civil) No. 10142/89] preferred against this order of 23.8.1989, the Supreme Court passed an order on 26.9 1989 disposing of the same in the following manner:- ''Since the punishment imposed on the petitioner has been revoked, the petition is disposed of without expressing any opinion on the view taken by the High Court of Delhi.'' So, the Supreme Court neither endorsed the view taken by the Division Bench of this Court, nor rejected it. Anyhow, we are not required to examine these aspects because the issue as to whether the BCCI is, or is not, an instrumentality of the State with in the meaning of Article 12 of the Constitution is not before us. 7. The core question, Therefore, is -- whether BCCI is amenable to the writ jurisdiction under article 226 of the Constitution? Sub-article (1) thereof reads as under:- ''226. POWER OF HIGH COURTS TO ISSUE CERTAIN WRITS. (1) Notwithstanding anything in article 32, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te body. 8. Governments have ventured into the private arena and private bodies, likewise, have undertaken public duties or public functions. There is a degree of overlap and the distinction is no longer clear-cut or watertight. The law must be alive to these dynamics. Accordingly, the question of maintainability of a writ petition must not be addressed from the standpoint of amenability. Everybody is amenable to the jurisdiction of the High Courts under article 226. However, Courts have exercised restraint and they exercise these powers only in cases which involve public law. Therefore, the ''litmus'' test for invoking the writ jurisdiction is whether the act complained of is in the discharge of a public duty or a public function. It matters little as to who discharges the public duty or performs the public function. And so too, the source of the power to discharge or perform such duty or function. Whether the person is empowered by statute or some governmental order or whether such person arrogates to himself the power to perform a public function or discharge a public duty, is of no consequence. What is to be seen is whether there is an infraction in the disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges a public or statutory duty (Praga Tools Corpn. v. C.A. Imanual, Shri Anadi Mukta Sadguru Trust v. V.R. Rudani SCC at p. 6 and 8 and VST Industries Ltd. v. Workers' Union)...... Although, it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity.'' Ultimately, in Federal Bank Ltd. v. Sagar Thomas (2004)ILLJ161SC : ''From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.'' (underlining added) 10. To say that cricket is a great game would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est and Central, and each zone in turn has several member associations. In all there are 30 member associations such as the Andhra Cricket Association, Assam Cricket Association, Bombay Cricket Association, Delhi and District Cricket Association, Karnataka Cricket Association, Punjab Cricket Association, Tamilnadu Cricket Association, Railway Sports Control Board, Services Sports Control Board. Rule 32 prescribes the Standing Committees and their powers. The Standing Committees include the ''All India Selection Committee'', ''All India Junior Selection Committee'', ''Umpires Committee'', ''Tour, Programme and Fixtures Committee'', ''Technical Committee'' and the ''Junior Cricket Committee''. To demonstrate the all-pervasive nature of the BCCI over cricket in India, it would be sufficient to refer to functions and duties of the Junior Cricket Committee which is required to: ''(a) draw programme of coaching at zonal and national levels; (b) appoint coaches as required from time to time; (c) establish Coaching Centres at zonal and national levels; (d) organise and conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the Rules framed by the Board.'' In short, organized cricket in India at all levels -- junior, senior, state, zonal, national or international, is fully and solely controlled and administered by the BCCI. Some of its members such as the Railway Sports Control Board and Services Sports Control Board appear to be governmental/semi-governmental bodies. No player dreaming of playing for his State or Zone or India can be outside the sweep and control of the BCCI. It, by itself or through its arms, selects teams, appoints umpires and referees, organises matches, tournaments, imparts coaching, provides funds to needy players through benefit matches etc. The Team that it selects to represent India, is known as the Indian team and wears the India logo. Likewise, teams selected by the member associations for say the Ranji Trophy are known as the State teams (except for the Railways and the Services). A Ranji match between Delhi and Karnataka is known as such. Not as DDCA XI v KSCA XI. The two teams represent Delhi and Karnataka respectively. When a foreign team visits India, apart from playing test matches or one day internationals it also usually plays matches wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to a better livelihood. Cases abound in India, where cricket has brought financial succour to persons and their families who were otherwise doomed to lead lives enslaved in poverty. Cricket is regarded as a profession, an avocation. Many in India, play cricket not just for the love of the game but for to heir own survival. The BCCI performs the vital public duty and function of providing this opportunity. It has an elaborate network and is a massive organisation controlling every aspect of cricket in India. Dr Singhvi, the learned senior counsel who appealed on behalf of BCCI, submitted that no part of the capital of BCCI is held by the Government; no financial assistance of the State is enjoyed by it; the Government does not exercise any control over it; BCCI is a non-statutory body; no public duty is imposed upon it by statute; it is a society, nothing but a ''private club'' and as such issuance of a writ against it would be completely beyond the scope of article 226 of the Constitution of India. This argument is untenable in the light of the discussion above. Attention to the source of the power is misplaced. Perhaps, the error arises in viewing the classic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that players from a particular region, or a state or belonging to a particular community were not to be selected for the Indian team. Would it be so preposterous if the High Court stepped in under article 226 and quashed such a prescription? Let us take another example. Suppose the Selection Committee of the BCCI were to alter its rules and select a team to represent India not on merit but on the basis of bids. Meaning, the highest bidders got to play for India. Would the High Court then be justified in throwing out a petition of aspiring, meritorious but poor players on the ground that a writ cannot be issued to the BCCI because, as they contend, it has a carte blanche to do as it pleases? We think not. Thirdly, even in cases of judicial review, the High Court exercises self-imposed restraints. It does not substitute its views in place of those under review. Although it has become a hackneyed cliche, it bears repetition that in exercise of powers under article 226, the High Court is not so much concerned with the decision itself in the sense as to whether an action is ''right or wrong'', but with the decision making process signifying as to whether the action is & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately spell its doom. Without making any value judgment on quality of Governmental intervention, we may straight away say that amenability to judicial review is in no way connected with Governmental interference in the affairs of the BCCI which is a self-regulated body and will continue to be one. The only difference being, that its discharge of public duties and public functions (as distinct from private duties and functions) would be open to judicial review under article 226 of the Constitution. This does not, ipso facto, translate into governmental intervention in the internal affairs of BCCI which would remain a private body. 17. At the cost of repetition, we may state that the whole ''amenability'' issue is misplaced. A body, public or private, cannot be categorised as ''amenable'' or ''not amenable'' to writ jurisdiction. The ''function'' test is the correct one to test maintainability. If a public duty or public function is involved, any body, public or private, qua that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of article 226. The B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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