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TMI Blog2009 (3) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 2 for the first time and his term of four years was expiring on 28th January, 2006. The petitioner has claimed that he was vitally interested and concerned with the manner in which the affairs of the Indian Hockey Federation were conducted. 3. Sh. K.P.S. Gill - respondent No. 3 was elected President of the respondent No. 2 in 1994 and he has continued to hold the post of President in all elections ever since and as such he was a President of the respondent No. 2 - Indian Hockey Federation for a period of more than 11 years. Mr. K. Jothikumaran, Honorary Secretary General - respondent No. 4 is also stated to be holding the post for three consecutive terms since 1994. 4. The petitioner made allegations of mismanagement and violation of the terms of the Government guidelines and filed the writ petition for the reason that the respondent No. 1 had failed to take any action thereon. A further grievance was made that the respondents were not abiding by the terms of the constitution of the respondent No. 2 and were perpetuating to convene an Annual General Meeting for the year 2003-04 on 30th January, 2005 without circulating the relevant documents. A complaint dated 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been noticed here only for the purpose of elucidating the nature of violations which were being complained of and inquiry sought by the petitioner. 6. In addition to the above, the petitioner has asserted that Clause 3.5 in the Guidelines for Assistance to National Sports Federations prohibits the office bearer from participating in an election after more than two continuous terms and that the respondent Nos. 3 and 4 are blatantly violating the same. The writ petitioner has, therefore, prayed for the following reliefs: (a) Issue a writ of certiorari or any other writ of direction in nature thereof calling the records of the respondent No. 1 pertaining to the grant of financial assistance to respondent No. 2 for last ten years for ascertaining the manner in which the funds granted by the Union of India have been utilised by the respondent No. 2. (b) Issue a writ of mandamus or any other direction in the nature thereof against the Union of India directing that in the event of any unsatisfactory explanation by respondent Nos. 2-4 with regard to the utilisation of the funds provided by the Government of India, to take appropriate steps towards securing financial discipline and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents at this stage. The various legal objections to the maintainability of the writ petition by respondent Nos. 2 to 4 assailing the very existence of the clause in the guidelines; legislative competence of the Union Government to legislate with regard to the subject of sports and hence power to issue executive instructions; bindingness of the guidelines; competence of this Court to issue a writ of mandamus to enforce non-statutory guidelines and entitlement to any relief of the petitioner have been challenged. The respondent No. 1 has not joined issue with the objections raised by the respondents. 8. Alongwith the writ petition, the petitioner has filed CM No. 5616/2005 praying for an interim direction to the respondents to hold any future Annual General Meeting in accordance with the applicable rules and regulations. A further prohibition was sought restraining the respondent Nos. 3 and 4 from participating in the election process of the respondent No. 2 otherwise than in accordance with the guidelines dated 14th August, 2001 and inter alia, a prayer was made not to hold any election to the post of Senior Vice President till 28th January, 2006. As the hearing in the matter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India had considered the matter carefully in consultation with the All India Council of Sport and therefore decided that in the interest of promotion of sports and games, the government's financial and other assistance shall be extended only to those national organisations dealing with sports and games which fulfilled certain conditions laid down in its guidelines. 11. It is noteworthy that these guidelines were finalised on a careful and prolonged consideration in inter-ministerial consultation and with all those concerned and were titled as "Improvement of Standard of Sports and Games in the country - Conditions For Financial and Other Assistance to National Sports Federation/Associations etc.". 12. The Indian Olympic Association had participated in the consideration and even requested for time to bring the constitution of the Indian Olympic Association and concerned National Sports Federations in line with the guidelines framed by the Government. The same is apparent from a reading of Clause 4, 5 and 6 of the communication dated 20th September, 1975 of the Government of India which read thus: 4. The guidelines, as enumerated above, have been finalised after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms or 8 years shall be eligible to seek re-election to any of the said offices or Vice-President or Treasurer till the expiry of a period of at least four years from the date on which he last vacated his office. The clause with regard to the tenure restriction of the named office bearer was in operation right from 1975 when the Government made the guidelines applicable for the purposes of recognition and assistance from it were concerned. 14. With the passage of time, several national sports federations came into existence for the development of specific games/sports disciplines. In achieving their objectives, the Government of India actively supported these federations. The existing guidelines for assisting such national sports federations had been reviewed and revised based on the experience for preparation of the Asian Games, 1994; Olympic Games, 1996. Recommendations of the committees set up for promotion of sports were also taken into consideration. It appears that some revision of the guidelines was given effect to from 10th July, 1997. 15. These revised guidelines were circulated as an order of the Government of India with the letter dated 14th August, 2001 which records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Sports Federations, the department and the Sports Authority of India; defined criterion for priority categorisation for Government assistance; a discipline specific project approach for processing cases for financial assistance; development of systems to handle players' grievances inter alia were provided for. The amendments were necessary to streamline the procedure for effective coordination amongst various agencies involved in promotion of sports and to extend required infrastructure, training and other facilities to the sports persons for achieving excellence in the international events in the coming years. 19. It is noteworthy that these guidelines incorporated innovation also as 'the flow of funds to federations would also include a substantial portion of the events of other major schemes of the department apart from grants to National Federations'. The perspective of the guidelines was stated in Clause 1.4 which was to help federations achieve financial self sufficiency over a period of time thereby reducing their dependence on Government. 20. In view of the long submissions addressed by the respondents contending that these guidelines are beyond he legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment has included Guidelines for Recognition of National Sports Federations' and Annexure II to the Guidelines. Clause 2.2 thereto states that recognition shall mean recognition of the leadership of the federation in the development of a particular sport in the country. 23. The amended guidelines also contain a tenure clause for office bearers which reads as follows: 3.5. Tenure of the Office-bearers: The tenure of office-bearers shall be in accordance with the Government Orders issued under letter No. 11-4/74-SP.I dated 20th September, 1975 (copy placed at Annexure-XI). As per above Orders, Office-bearers of NSI's may hold office for one term of four years and may be eligible for re-election for a like term or period provided the office bearers have secured not less than 2/3 votes of the members. However, no such office-bearers shall hold office consecutively for more than two terms or eight years. Clause 3.10 states that 'at the national level, there will be only one recognised federation for each discipline of sport'. This clause creates a monopolistic status for the national sports federation which is recognised under the guidelines. Only the duly reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible for financial assistance and sponsorship, the organisation must maintain their recognised status with the department. Clause 6.2 stated that the National Sports Federation would be eligible for assistance under these guidelines immediately after recognition. The funds to the National Sports Federation would flow as grants or from other schemes of the department for the purposes of the training requirements; purchase of equipment; participation in tournaments abroad hosting and holding tournaments in India including international tournaments and for administrative support. Priority category sports were entitled to financial assistance for coaches as well as sports personnel; travelling expenses of players, residence, board, lodging, training etc; assistance for purchase of sports equipments; full assistance for participation in international events as the Olympic, World, Asian, Commonwealth, SAF and Afro Asian Championships/Games or mandatorily required international pre-qualifying tournaments for these championships. Allowances for board and lodging etc were also provided as additional assistance detailed in the guidelines for other events including national level champions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent No. 2/Indian Hockey Federation is not maintainable on the ground that it is a society registered under the Societies Registration Act. 32. The very issue urged in the present writ petition arose before the Division Bench of this Court in the pronouncement reported at 114(2004)DLT323 Rahul Mehra and Anr. v. UOI and Ors. An objection to the maintainability of the petition against the Board of Control for Cricket of India (a society registered under the Tamil Nadu Societies Registration Act) was taken. The court observed that the Government having entered into fields of commerce, industry and business and private bodies taking up public functions and duties, the distinction between public law and private law based on the public or private character of the institution as a result of the overlap, is no longer clear cut or water tight and law is necessarily required to remain alive to these dynamics and has to be moulded keeping in view the changes and developments in society. 33. Placing reliance on important judicial precedents of the Apex Court wherein a similar question had been raised, the Division Bench has culled down the applicable principles with utmost clarity which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 34. On a consideration of these binding principles, the Division Bench laid down the applicable test thus: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and that by itself did not suffice to make such a body a state for the purposes of Article 12 of the Constitution of India and for this reason, a writ petition under Article 32 of the Constitution would not lie to the Supreme Court. However, if there was any violation of any constitutional or statutory obligation or rights of other citizen, an aggrieved party can seek remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution before the high courts. 37. The petitioners have urged at length that in any case no writ could be issued against the Indian Hockey Federation for the reason that it is not performing any statutory functions. 38. Both the majority and minority views in Zee Telefilms concluded that judicial review against action of the BCCI would lie. The divergence came in the remedy. There was no divergence on the view that judicial review over the action of the national level sports body could be exercised by the high courts under Article 226 of the Constitution of India. While the minority held that a writ petition under Article 32 before the Apex Court would also be maintainable, the majority judgment that an aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors., the Apex Court was concerned with an issue as to the rights under Article 19(1)(a) in the context of the right to telecast a sporting event and held that when a telecaster desires to telecast a sporting event, it was held that it would incorrect to say that the free speech element is absent from this right. Sports is a form of expressive conduct. The right to freedom of speech and expression under Article 19(1)(a) also includes the right to educate, to inform, to entertain and also the right to be educated, informed and entertained. 42. There are, however, limitations on the extent of judicial review and the parameters in respect thereof were also laid down by the Division Bench of this Court in Rahul Mehra and Anr. v. UOI and Ors. The delineation of the applicable principles of law laid down by the Bench applies on all fours to the issues raised before this Court which reads as follows: 15. The petitioner reiterated the following observations of the learned single Judge in Ajay Jadeja (supra), adopting the same as his submissions: When the Government stands by and lets a body like BCCI assume the prerogative of being a sole representative of India for cricket by per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val of the Government. Its objects are the functions and duties it has arrogated to itself. Many of these are in the nature of public duties and functions. Others may be in the field of private law such as private contracts, internal rules not affecting the public at large etc.,. therefore, BCCI cannot be said to be beyond the sweep of article 226 in all eventualities for all times to come. That is the certificate that BCCI wants from this Court. We are afraid, we cannot grant that. Consequently, this petition cannot be thrown out on the maintainability issue. This does not necessarily mean that the petitioners would be entitled to the orders, directions or writs that they seek. That will have to be examined on merits. 43. There is no dispute that the Indian Hockey Federation represents the nation at the international bodies in matters relating to hockey. In 483 US 522 : 1997 L.Ed. 2d 427 San Francisco Arts & Athletics, Inc. v. United States Olympic Committee and International Olympic Committee, it was stated by Brennan, J that the United States Olympic Committee performs a distinctive traditional government function representing the nation to the International Olympic Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... club'. In Rahul Mehra (supra) the Division Bench rejected this argument as untenable holding that attention to the source of power is misplaced and that "the error arose in viewing the classical prerogative writs of, inter alia, certiorari, mandamus and prohibition in the traditional sense as being used only against the government or public authorities." 46. The Division Bench compared the extensive powers conferred on the High Courts under Article 226 of the Constitution of India, vis a vis the traditional limited scope of judicial review under English Law and held thus: 13. The BCCI has a monopoly over organized cricket in India. Every youngster, maybe an aspiring Rahul Dravid or an Irfan Pathan, who dreams to play cricket for his State or zone or India cannot do so without the permission and approval of the BCCI. We must not forget that cricket, is no longer what it used to be. It is not just a sport which people dressed in white flannels and rolled up shirt-sleeves enjoyed on lazy summer's afternoons in England between sips of tea and munches of scones. It is no longer the reserve of the nawabs, the maharajas, the brown sahibs and the rich who had the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;' as defined in article 12. And, we need not, because the word ''State'' does not appear in article 226 at all! We are examining the question of issuance of orders, directions or writs to ''any person''. Assuming that the BCCI is merely a ''private club'', even then a writ could be issued to it provided, of course, it was for remedying an infraction of a public duty or Public function. 47. Just as the BCCI controlling the game of cricket in India, it is not disputed that the Indian Hockey Federation controls the game of hockey in the country at all levels whether it be the sub-junior, junior, senior level players or the state, zonal, national or international tournaments. Its members are the state hockey associations and boards of government departments as railways and services also controlling the game in their services all over the country etc. The Indian Hockey Federation has been recognised as a national sports federation. Akin to the control of the BCCI over cricket players, the Indian Hockey Federation exercises complete control over team selection and appointment of referees and umpires organisations of the several hocke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court reported at [1996]3SCR721 State of A.P. and Ors. v. Mcdowell & Co. and Ors. in support of this submission. It is contended that the doctrine of occupied fields/repugnancy has to be applied only to the entries in the list III of the Seventh Schedule. 51. It has been submitted at length by Mr. V.P. Singh, learned senior counsel for the Indian Olympic Association and by Dr. A.M. Singhvi, learned senior counsel representing respondent Nos. 2 to 4 that the respondent No. 2 as well as other national sports federations are registered under the Societies Registration Act or under various state legislations on the subject which alone would have the jurisdiction to regulate such sports activities which are regulated by these federations and associations. 52. The basic framework for distribution of legislative power between the Union and the States and the foundation for a federal set up for the nation was set out in the Government of India Act, 1915 and 1935. Even though this distribution has not been adopted verbatim in the Constitution but the basic scheme remains the same. 53. The rules of constitutional interpretation have been laid down thus by the learned H.M. Seervai i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y state has the exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list II of the 7th Schedule of the Constitution. By virtue of Clause 4 of Article 246, the parliament is further empowered to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter is a matter enumerated in the state list. 57. The power of the parliament under Article 246(1) is supreme whereas the power of the State legislature in respect of laws under list II is subject to power exercised by parliament in respect of laws under list I. However, it has been repeatedly held that while interpretating central laws and state laws, a harmonious construction is to be adopted and repugnancy should be avoided. 58. An issue as to the rule of construction in respect of items in the Federal and Provincial legislative lists had arisen before the Federal Court in the judgment reported at A.L.S.P.P.L. Subrahmanyan Chettiar v. Muttuswami Goundan and the Advocate General Madras (intervenor). The question which was raised was as to whether the Madras Agriculturists Relief Act (4 of 1938) was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists are absolutely exhausted that one can think of falling back upon a non-descript. 59. A similar issue relating to the legislative competence of the Federal legislature and Provincial legislature under the two lists in the Government of India Act, 1935 fell for consideration before the Federal Court in the judgment at titled "In the matter of the Central Provinces & Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938. On the aspect of principles guiding interpretation of legislative powers of the Federal & Provincial legislatures, Jayakar, J. referred to cases of conflict between the jurisdiction and legislative competence of the Parliament of the Dominion and the provinces jurisdiction. After a detailed consideration of the Privy Council on this issue, the learned Judge set out earlier valuable principles for interpretation. Those which guide the questions raised before this Court deserve to be considered in extenso and read thus: (1) That the provisions of an Act like [the Government of India Act, 1935, should not be cut down by a narrow and technical construction, but, considering the magnitude of the subjects with which it purports to deal in very few words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude. It needs no further elaboration that legislative heads of power should be read and understood in their widest amplitude and sense. The same appearing elsewhere in the constitution may be required to be construed as limited by the context and in the light of the words preceding and following that phrase. However so far as the expression appears as a legislative head of power in the lists, the same cannot be given a restricted meaning Ref : AIR 1965 Mad 11 In Re. N.V. Natarajan and Anr. 61. A question requiring determination as to whether a particular law is relating to a particular subject mentioned in one list or another, requires the court to take recourse to the doctrine of pith and substance which requires ascertaining the true character of the legislation. The enactment as a whole is required to be examined as well as its main objects and regard has to be added to the scope and effect of its provisions. The inquiry is to ascertain as to whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Dominion legislation. No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars and the existence of the concurrent list has made it easier to distinguish between those matters which are essential in determining to which list particular provisions should be attributed and those which are merely incidental. But the overlapping of subject-matter is not avoided by substituting three lists for two or even by arranging for a hierarchy of jurisdictions. 37. Subjects must still overlap and where they do the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be shifted at birth, and many of the subjects entrusted to provincial legislation could never effectively be dealt with. 38. (3) Thirdly, the extent of the invasion by the provinces into subjects enumerated in the Federal list has to be considered. No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Andhra Pradesh and Ors., it was held that since the power of the state legislature to legislate with respect to matters in list II is made subject to the power of the parliament to legislate with respect to matters in list I, it follows that if entries in list I and list II appear to overlap, i.e., if they appear partly to cover the same field, the field of legislation covered by the entry in list I must be considered to be taken out of the scope of the entry in list II and deserves to be especially dealt with by parliament. In other words, to that extent, the power of the state legislature must be considered to be curtailed. 65. The supremacy of the parliament has been provided for by the non-obstante clause under Article 246(1) and the words 'subject to' in Article 246 (2) and (3). Under Article 246(1), if any of the entries in the three lists overlap, the entry in list I will prevail. (Ref : AIR2007SC1584 Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex. Pvt. Ltd. and Ors.; 2007 AIR SCW 2325 Greater Bombay Coop. Bank Ltd. v. United Yarn Tex. Pvt. Ltd.) 66. In view of the above discussion, it needs no elaboration that the state legislatures have no legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The important question which is required to be answered is as to the manner in which a subject which for some purposes falls under the competence of one legislature, and for others beyond it, is to be treated for legislative purposes. 74. Sports is not exclusively and explicitly mentioned as a subject in List I or III. 75. Mr. P.P. Malhotra, learned ASG has submitted at length that there is no constitutional provision which enables any authority to legislate or exercise executive control over national level and international level sports. 76. The submission on behalf of the respondents fails to consider the admitted position that the state government does not have the legislative competence to legislate nor the executive power to issue executive instructions or guidelines with regard to the regulation and control sports at the national level. Admittedly other than three states there is no legislation by either the Parliament or the State Government to control or regulate sports. There is no legislation at all on any respect of sports at the national level. Furthermore no state government has issued any executive instructions or passed any administrative orders on this aspect, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sations including public sector undertakings concerned with the subjects. I find that in the 2nd Schedule so far as the Ministry of Youth Affairs & Sports is concerned, the following subjects are allocated to it: 1.Sports Policy 2. Sports and Games 3. National Welfare Fund for Sportsmen 4. Netaji Subhas National Institute of Sports 5. Sports Authority of India 6. Matters relating to the indian Olympic Association and National Sports Federations. 7. participation of Indian Sports teams in tournaments abroad and participation of foreign sports teams in international tournaments in India. 8. National Sports Awards, including Arjuna Awards. 9. Sports Scholarships 10. Exchange of Sports persons, youth delegation, experts and teams with foreign countries. 11. Sports infrastructure, including financial assistance for creation and development of such infrastructure. 12. Financial assistance for coaching, tournaments, equipment etc. 13. Sports matters relating to Union Territories. 83. From the above, there can be no manner of doubt that sports has been considered an integral part of the earlier the Ministry of Human Resource Development and now Ministry of Youth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er may require clearance of the Ministry of the Finance or Ministry of Home Affairs as well. Issues of foreign exchange to meet expenses of teams and personnel travelling abroad may involve interaction with the Ministry of Finance as well. 88. The Union Government is involved with dispensation of financial assistance. If applied in reverse, certainly no state would have the legal competence to manage, control or regulate the national level body or the game or discipline. 89. From the above discussion, it is apparent that sports, when construed from the aspect of Entry 33 in List II has to be confined to sports at the state level alone. 90. In [1982]1SCR519 Southern Pharmaceuticals & Chemicals Trichur and Ors. v. State of Kerala and Ors., in determining whether the enactment is a legislation 'with respect to' a given power, "what is relevant is not the consequences of the enactment on the subject matter or whether it affects it, but whether, in its pith and substance, it is a law upon the subject matter in question. The Central and the State Legislations operate on two different and distinct fields. The Central Rules, to some extent, trench upon the field reserved t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressly conferred by the Constitution upon the legislature which enacted it, it cannot be held to be invalid, merely because it incidentally encroaches on matters assigned to another legislature. When a law is impugned as being ultra-vires of the legislative competence, what is required to be ascertained is the true character of the legislation. If on such an examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object and scope and effect is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of "pith and substance" has to be applied not only in cases of conflict between the powers of two legislatures but in any case where the question arises whether a legislation is covered by particular legislative power in exercise of which it is purported to be made. 93. The Ministry of Youth Affairs & Sports is assigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different Lists in the 7th Schedule to the Constitution of India. 98. It is undisputed that the resources which are put in the hands Ministry of Youth Affairs & Sports form a considerable part of the budgetary allocation. There is extensive real estate in the form of stadias, sports fields and facilities etc which is also under its jurisdiction which is put to the utilisation of the encouragement and development of sports. More material is the fact that sports persons from the country in any state are involved in participating in national level events as well as international events for which no state government would have territorial jurisdiction. 99. In the instant case there is substantial funding for the functioning of the respondent No. 2 by the government apart from other assistance rendered which includes the selection of the national coach; availability of facilities developed by the Sports Authority of India and the Ministry of Youth Affairs and Sports; financial assistance for acquisition of sports goods and materials; organisation of programmes etc. There is no dispute before this Court that the State Government does not have the legislative competence to legislate wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06. While conferring primacy on the Union, the Constitutional provisions have clearly deleniated the legislative jurisdiction of the State. The residuary power to legislate, however, with regard to subjects which are not enumerated in the concurrent list or the state list has been conferred on the Parliament by virtue of Article 248. Entry 97 of List I gives effect to the power conferred on the Union under Article 248 which reads as follows: 248. Residuary powers of legislation. (1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists. Entry 97. Any other matter not enumerated in List II or list III including any tax not mentioned in either of those lists. Recourse to this power, however, is restricted. 107. The Constitution of India has been referred to as an organic and a living document. It was to avoid any kind of vacuum of legislation and executive powers that the Constitution makers have vested the residuary powers in the Parliament. 108. It has been emphasised by constitutional int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute with the well settled principles that the concept of occupied field is relevant in the case of laws made with reference to entries in the Concurrent List and that, whenever a piece of legislation is said to be beyond the legislative competence of a state legislature, what must be done is to find out, by applying the rule of pith and substance, what would be the true nature of the legislation and whether it falls within any of the entries in list II. 113. There can also be no dispute with the principles laid down by the Apex court in [1994]2SCR644 S.R. Bommai and Ors. v. UOI and Ors. and [1982]2SCR365 S.P. Gupta v. President of India and Ors. relied upon by the respondents. It was held that it is not permissible for application of the doctrine of cassus, omissus where the language of a statute is clear and unambiguous as the words used by the Constitution or the statutes speak for themselves and it is not the function of the court to add words or expression merely to suit what the court thinks of the intent of the legislature. However, in the light of the discussion in the foregoing paragraphs, it is evident that the instant case is not one of cassus omissus by the draf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer under Entry 97 in List I of the Seventh Schedule. 119. The department of sports was earlier forming a part of the Ministry of Human Resource Development till its segregation in terms of item 6 of the second schedule of the Rules for Allocation of Business framed in exercise of powers under article 77. The national sports federations is a specific item at item 6 of the 2nd Schedule of the Rules for Allocation of Business which falls within the jurisdiction of the Ministry of Youth Affairs & Sports. It is vested with the power to recognise a federation or association as a national federation and also to regulate interaction at the international level. It performs the essential task of coordinating between the activities of different states. 120. The submission on behalf of the respondent, therefore, that sports necessarily is to be confined to a consideration by the State Government alone under Entry 33 of list II is devoid of legal merit. 121. In view of the above discussion, the objection raised by the respondent with regard to the legislative competence of the Parliament to make laws on the subject of sports is hereby is rejected. 122. As noticed hereinabove, the executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a right to work and a right to pursue one's occupation. 126. So far as the nature of functions performed by the Board was concerned, the minority view in para 144 observed that the action of the sports board may disable a person from pursuing his vocation and in that process subject a citizen to hostile discrimination or impose an embargo which would make or mar a player's carreer. On the issue of availability of judicial review against a Board's action, it was held that 'If the action of the body/authority impinges upon the fundamental or other constitutional rights of a citizen or if the same is ultra vires or by reasons thereof, an injury or material prejudice is caused to its member or a person connected with cricket, judicial review would lie. Such functions on the part of the board being public function, any violation or departure or deviation from abiding by the rules and regulations framed by it would be subject to judicial review'. This would be so even though the body may be self regulating. 127. So far as legislative powers are concerned it would be appropriate and useful to consider the observations on this specific issue in paras 60, 61 and 63 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute that the majority view did not rule on the issue with regard to the legislative competence of the parliament with regard to legislation relating to the subject of sports and only the minority wrote its opinion thereon. 130. An issue as to the bindingness of the minority judgment had arisen for consideration before the Bombay High Court in AIR1964Bom170 Mahendra Bhawanji Thakar v. S.P. Pande and Anr. The relevant portion of this judgment in paras 21, 22 and 23 on this issue reads as follows: 21. No doubt, two of the Judges, of the Full Bench namely, Mr. Justice Hidayatullah and Mr. Justice Raghubar Dayal specifically found that the provisions of the second proviso to Section 34(3) did not infringe Article 14, but in view of the majority decision, they concurred in the final order passed in the appeal and allowed the appeal. This decision of the Supreme Court of India, therefore, clearly rules out any possibility of the second proviso to Section 34(3) being invoked in the present case because that decision is absolutely binding upon this Court. 22. Nevertheless Mr. Natu, appearing on behalf of the Department, has contested that position. He has referred to the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;judgment' both with regard to the final pronouncement of the Court itself as well as for the dissenting pronouncement of an individual Judge who does not concur. There does not appear to be any warrant for reading the provision of Article 145(5) into the provisions of Article 141, and we do not think that the "law declared" can be approximated to the judgment delivered by the Supreme Court. On the other hand, having regard to the provisions of Article 145(5) that a Judge who does not concur may also deliver a judgment, it is clear that the law declared may as well be in a dissenting judgment as in a majority judgment. The argument, therefore, that the three Judges whose decision resulted in the allowing of the appeal in Purshottam's case did not form a majority of those holding that Article 14 applied to the second proviso to Section 34(3) does not make that the law declared. On the other hand, as we have already shown three Judges out of the five who decided Civil Appeal No. 705 of 57: had clearly agreed that Article 14 applied and the proviso was ultra vires and we think that for the purposes of this Court that was "the law declared by the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and was amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution of India. The Apex Court in paras 4, 5 and 6 referred to the judgment of the Apex Court reported at [2002]3SCR100 Pradeep Kumar Biswas v. Indian Institute of Chemical Institute and the views taken by both the majority and the minority judgments wherein tests were laid for answering such a question. In para 27, the court observed that the 'multiple tests indicated to be applied both by the majority and minority view in Pradeep Kumar Biswas are fully satisfied in the present case for recording a conclusion that the said corporation is covered as an agency and instrumentality of the state in the definition of state under Article 12 of the Constitution. 133. A similar situation where the majority view of the Supreme Court holding that the suit in question was not maintainable but the minority holding that the suit was maintainable and also answering other issues arose in the judgment reported at [1951]2SCR474 State of Seraikella v. UOI. The minority view held that the suit was not maintainable in view of the absence of the requisite notice to the defendant under Section 80 of the Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; without at all referring to the issue of legislative competence of the Union of India on the subject of sports and hence amenable to the writ jurisdiction of the Supreme Court under Article 32 of the Constitution. The views expressed in the minority judgment on this aspect are not the reasoning on which it has arrived on the conclusion contrary to the majority view and held that the writ petition was maintainable. 137. Mr. Arun Jaitley, learned senior counsel for the petitioners has urged that a comment by a jurist on a proposition in law cannot supersede the Constitutional scheme, statutory provisions or judicial precedents. 138. The general observations in the above quoted extract of H.M. Seervai's Constitutional Law of India did not deal with the specific question as has arisen before this Court. The general observations do not advance the case of the petitioner inasmuch as the learned author did not have a situation where it was an admitted position that the State Government did not have the legislative competence to deal with the subject at the national level. Furthermore, the majority opinion in Zee Telefilms does not consider the issue of legislative competence or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. In this background, it cannot be held the minority view on this issue stands overruled. 143. The contention raised by learned senior counsel for the respondents can be examined from yet another angle. The majority ruled that a writ petition before the Supreme Court under Article 32 would not be competent. Therefore the court would not have jurisdiction to decide the questions which arose in the case. 144. So far as suits are concerned, it has been held that if the court has no jurisdiction to try the lis, its orders and judgment would be a nullity and cannot operate as res-judicata in subsequent proceedings. Such question arose before the Apex Court in [1980]1SCR122 Avtar Singh and Ors. v. Jagjit Singh and Anr. wherein the Apex Court has held that if a defendant appears in a case and an issue as to jurisdiction is raised and the court decides to return the plaint on grounds of lack of jurisdiction, such decision on the question of jurisdiction will operate as res judicata in a subsequent suit although the reasons for its decision may not be so. 145. In Upendra Nath Bose v. Lall and Ors. it was held by the court that a court which declines jurisdiction cannot bind the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elines should be removed. The recommendations by this committee have also not found favour with the Government of India which has issued the revised guidelines dated 14th August, 2001 continuing the restriction. 150. The respondent No. 4 has filed a counter affidavit stating that the Indian Olympic Association called for a meeting of its executive committee on 31st August, 2001 to which it invited Ms. Uma Bharti, the then Minister of Youth Affairs & Sports. It is stated that in her address the Minister took note of the opposition by the Indian Olympic Association and stated that the views of the Federations must be duly considered and that she had advised the secretary in the ministry to inform the Indian Olympic Association and the sports federations that the guidelines issued were only 'draft guidelines' and the minister would later correspond with the Indian Olympic Association and the Sports Federations. 151. Based on such a statement attributed to the minister during the course of an address in a closed door meeting of the executive committee of the Indian Olympic Association, the respondents have advanced prolonged submissions that the guidelines dated 14th August, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sorts is providing financial assistance to IHF for its various activities to supplement its effort for the promotion of the game under its scheme/guidelines namely 'Assistance to National Sports Federations'(NSFs.) (3) that the 'Sports' figures out in the 'State List' of the Constitution of India as item No. 33, the Union Government has no jurisdiction to frame any law or legislative provision on any matter relating to sports. These guidelines are only the administrative guidelines issued by the Ministry lacking legislative backing, required for the strict enforcement of these guidelines. (4) That there are number of National Sports Federations (NSFs) existing at present which are not strictly adhering to the instructions given in the guidelines concerning tenure of office bearers of the NSFs. In para 11 of this affidavit, it has been deposed as under: The Government supplements the efforts of the NSFs including IHF by providing financial assistance for their various activities. For this purpose there exist "Guidelines for Assistance to national Sports Federations" containing the provisions for recognition of the NSFs, suspension/withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'issue of tenure will be kept in abeyance and will be considered alongwith the report of the working group.' 160. The respondent No. 1 has further stated that the working group constituted under the chairmanship of Sh. Suresh Kalmadi, President of the Indian Olympic Association submitted its report on 14th June, 2002 recommending scrapping of the guidelines pertaining to the tenure of office bearers. It is submitted that on this report, the Minister of Youth Affairs & Sports had recorded as follows: (i) From our experience, the clause limiting the tenure of office bearers two terms for four years each as mentioned in the 1975 guidelines appears to be impractical and it should be scrapped. (ii) Conformity to the code of conduct should be made a condition for giving financial assistance to the N.S.Fs and IOA. Based on these submissions, it has been urged that the clause was first kept in abeyance and then it was directed to be scrapped. 161. It is equally well settled that every noting contained in a Government file is not a binding and enforceable order of the competent authority. In the judgment reported at AIR1963SC395 Bachhittar Singh v. The State of Punjab, the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o placed reliance on the pronouncement of the Apex Court reported at 1988(36)ELT201(SC) Doypack Systems Pvt. Ltd. v. UOI and Ors. which is also to the same effect. It was held that notings made in various departments at various levels by the officers is not the view of the cabinet. The ultimate decision is taken by the cabinet so far the notings are not the guides as to what decision the cabinet took. 164. Learned standing counsel for the respondent No. 1 has placed reliance on the pronouncement of the Apex Court reported at AIR 2004 SC 949 Tafcon projects India Ltd. v. UOI and Ors. In this case, an issue has been raised as to whether the minister's signatures without anything more amounted to approval of the previous notings. It was on a consideration of the conspectus of facts including the several steps in the matter and earlier notings thereon that the court held that the necessary approval or the decision stood taken in the matter. The position in the instant case is different as discussed hereinabove. 165. I have noticed in some detail the affidavit filed by the Indian Olympic Association wherein it has been urged at length that on 31st August, 2001, the Minister had st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which the noting dated 24th August, 2002 is recorded. 170. This position is also manifested from the further consideration on the file. This noting is stated to have been placed before the new minister on 31st October, 2002 who had clearly noted that he had scrutinized the previous noting and that piecemeal decisions were not required to be taken. On 31st October, 2002, the minister had directed the Secretary of the Ministry to examine all the issues in totality and put up the matter on relevant files in a period of one month. 171. At this stage, it becomes necessary to notice some curious facts. During the pendency of the case, the petitioner has filed CM No. 6578/2005 enclosing three pages appearing to be an extract from a Government file stating that on 19th May, 2001, these pages were left at 5 p.m. in the office of the counsel for the petitioner and contending that if the same were part of the government record, they authoritatively establish that there was no order altering or modifying the guidelines dated 14th August, 2001 or keeping the same in abeyance and that they remained applicable in every manner. 172. The respondent No. 1 has responded to this application, ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in extenso and reads thus: 8. It may kindly be observed from above deliberations that the guidelines were issued to all the National Sports Federations and all other concerned and made effective from 14.8.2001 and it was only an internal view that the guidelines may be discussed with federations, for which Hon. Minister was apprised on file that these guidelines have been prepared after due consultation with IOA and Federations. No formal order for keeping the operation of the revised guidelines in abeyance was issued as such the guidelines may considered to be effective and operative in all manners w.e.f. 14.8.2001 - the date of issue of guidelines. 175. It is noteworthy that the noting records that the earlier revision in the guidelines had been approved by the concerned minister as well as the finance minister. The Deputy Secretary (R) endorsed the noting and wrote on the file that approval of the minister for application of the provisions of the scheme with effect from the date of approval of the Ministry of Finance be sought. This noting was endorsed by all seniors and bears the signatures of the Minister as well. It certainly negates the respondents' case. 176. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CI under the very guidelines which are placed before this Court. In paras 203 to 208 at pages 73 and 74 of the report, the court has dealt at length with these guidelines and the provisions thereunder. 180. So far as the Government stand was concerned, the same is found to be referred to in paras 211 and 212 of the report which makes a reference to an affidavit filed by the Government of India where placing reliance on its power under the very guidelines, the court has held thus: 211. In the affidavit dated 8th October, 2004 affirmed by a Deputy Secretary to the Government of India, Ministry of Youth Affairs and Sports, it is stated: 1. I am informed that this Hon'ble Court required to be apprised as to whether it was mandatory for all sporting bodies including private entities or clubs to seek permission and to obtain the same for playing in tournaments abroad. 2. In response to the issue raised before this Hon'ble Court, it is respectfully submitted that only the recognized. National Sports Federations are required to apply in the prescribed format for seeking permission to go abroad to play as a Team representing India. There have been instances where club teams; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 1. There is also nothing to indicate that the same were kept in abeyance by any competent authority or binding order. 186. The fact that the Guidelines were admittedly issued in the form of a formal order on behalf of the Government of India on the 11th of August, 1981 and duly circulated does not support the stand of the Government of India. The guidelines were evidently not considered in the nature of 'a draft' by the Government and were actually binding. The respondents do not rely on any other guidelines which lay down the eligibility or procedure for dispensation of the largesse or recognition as a national sports federation. The respondent No. 2 has applied under these guidelines, has been recognised as a National Sports Federation and has received grants and other assistance from the Government under the guidelines. So have the other NSFs. This manifests both that the guidelines were not merely a draft and that they were implemented. The stand taken before this Court by the respondent No. 1 in the additional affidavit is an after thought and not supported by any decision or material. 187. The Government files have not been produced for perusal. The contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive instructions and orders to guide the same. It is trite that such administrative instructions issued in exercise of executive power, can be changed or amended by the executive. 191. An identical issue had arisen for consideration before the Apex Court in the pronouncement reported at [1973]2SCR752 entitled UOI v. K.P. Joseph and Ors. The Apex Court placed reliance on an earlier pronouncement reported at (1968)IILLJ830SC Sant Ram Sharma v. State of Rajasthan and Anr. wherein it had been held that the Government cannot supersede statutory rules by administrative instructions. Yet if the rules framed under Article 309 of the Constitution of India are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and that these instructions would govern the condition of service. 192. The Apex court also reiterated the principles laid down by it in the earlier decision reported at [1968]2SCR366 UOI and Ors. v. Indo Afghan Agencies Ltd. wherein the question which was raised before the Apex Court was as to whether the import trade policy was legislative in character. It was held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn with great clarity in the judgment pronounced by H.L. Anand, J. The contention raised and the principle laid down by the court were stated so: (8) Shri Dhebar. however, contends that assuming that the policy confers a right and that the right was denied to the petitioners in contravention of the policy, the petition for a writ of mandamus would, nevertheless be not maintainable and the petitioners would not be entitled to any relief because the policy was not statutory in nature and a mere breach of non-statutory policy or instructions would not afford a cause of action for such a relief. Shri Dhebar further contends that a claim for a writ of mandamus must be founded on a legal right and that breach of a mere non-statutory instructions neither confers a right nor gives rise to any statutory obligation which alone could be enforced by a writ of mandamus. It is further contended that an administrative direction like the present policy could not confer any justiciable right upon a citizen which could be enforced in a Court by a writ or order in the nature of mandamus and that the foundation for the issue of a writ or order in the nature of mandamus being the existence of a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may, however, be stated that being non statutory in character, these guidelines are not enforceable. See the observations of this. Court in Fernandez v. State of Mysore [1967]3SCR636 (Also see R. Abdullah Rowther v. State of Transport etc. [1999]1SCR213 ; by. Asst. Iron & Steel Controller v. Manekchand Proprietor [1972]3SCR1 ; Andhra Industrial Work v. CCV&E 1971 SCR 321; K.M. Shanmugham v. S.R.V.S. Pvt. Ltd. [1964]1SCR809 . A policy is not law. A statement of policy is not a prescription of binding criterion. In this connection, reference may be made to the observations of Sagnata Investments Ltd. v. Norwich Corporation 1971 2 QB 614 and p. 626 Also the observations in British Oxygen Co. v. Board of Trade 1971 AC 610. See also Foulkes' Administrative Law, 6th Ed. at page 181-184. In Ex P. Khan (1981 1 All. E.R. page ), the Court held that a circular or self made rule can become enforceable of the application of persons if it was shown that it had created legitimate expectation in their minds that the authority would abide by such a policy/guideline. However, the doctrine of legitimate expectation applies only when a person had been given reason to believe that the State wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but indirectly, in the sense that though they did not seek the benefit or privilege as they were not eligible for it on the basis of the announced norms, they might also have entered, the fray had the relaxed guidelines been made known. In other word they would have been potential competitors in case any relaxations or departure were to be made. In a case of the present type, however, the guidelines operate in a totally different field. The guidelines do not affect or regulate the right of any person other than the company applying for consent. The manner of application of these guidelines, whether strict or lax, does not either directly or indirectly, affect the rights or potential rights of any others or deprive them, directly or indirectly, of any advantages or benefits to which they were or would have been entitled In this context, there is only a very limited scope for judicial review on the ground that the guidelines have not been followed or have been deviated from. Any member of the public can perhaps claim that such of the guidelines as impose controls intended to safeguard the interests of members of the public investing in such public issues should be strictly enforced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der these corporations is public employment and; therefore, an employee would get a status which would enable him to obtain a declaration for continuance in service, if he was dismissed or discharged contrary to the regulation. 197. It is trite that the administrative orders or executive instructions may be changed, rescinded or altered by administrative orders or executive instructions issued at any time. In [1975]1SCR321 Andhra Industrial Works v. Chief controller of Imports and Ors., the Import Control Policy Statement was held to be only a policy statement and not a statutory document. For this reason, it was held that no person can, merely on the basis of such a statement, claim a right to the grant of an import license, enforceable at law. 198. Administrative or executive instructions can supplement statutory rules. There is a material and obvious distinction between the impact of an executive instruction which runs contrary to statutory provision and whittles down their effect which was the subject matter of consideration before the Apex Court in [1991]187ITR478(SC) State of M.P. v. G.S. Dall & Flour Mills, which has been relied upon by the respondent. In this case, by vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the executive Government so as to prevent its arbitrary application or exercise. Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State", there is, as pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom," "substantial agreement is in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure? Is the position of the Government in this respect the same as that of a private giver? We do not think so. The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection. Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largess. The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largess in its arbitrary discretion or at its sweet will. It is insisted, as pointed out by Prof. Reich in an especially stimulating article on "The New Property" in 73 Yale Law Journal 733, "that Government action be based on standards that are not arbitrary or unauthori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also stated that apart from the grants made by the Government of India, the respondent federation is receiving funds through sponsorship and royalties from sale of broadcasting rights of matches. 204. From a perusal of the various documents placed before the court, it would appear that holding of an office in the National Sports Federation enables the membership in international sports bodies. Office bearers of the national sports federation are also entitled to be office bearers in international sports bodies and forums. It enables absolute control over the national and international level activities of the sports federation and grants an absolute control to the person concerned over the sport in question. It enables the official to manage, control, organise sporting conferences, events competition, nationally as well as internationally. Undoubtedly, the person concerned gets enormous power over the amounts of finances which are available to the national sports federations both from Government and from the private persons; absolute control over the game of hockey in India and the fate of hockey players in India. 205. The submission and objection on behalf of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relating to location of mandal headquarters in the state of Andhra Pradesh under Section 3(5) of the Andhra Pradesh Districts (Formation) Act, 1974. The issue raised before the court was whether location of the Mandal Headquarters was a purely governmental function and therefore not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. The High Court quashed the Government notification issued after consideration of objections and a detailed consideration by the authorities on the ground that the government acted in breach of guidelines. In this case the court was of the view that mandamus could not be issued to enforce the guidelines which were in the nature of administrative instructions not having a statutory force and not giving any legal right in favour of the writ petitioners. In this case, the Apex Court set aside the interference by the High Court in cases where it had directed relocation of the Mandal Headquarters inter alia for the reason that the location of the Mandal Headquarters by the Government was on a consideration by the Cabinet Sub-committee of proposals submitted by collectors concerned and objections and suggestions recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management. 209. It is noteworthy that the conclusions of the Apex Court in the case were based on the well settled principles that non-statutory administrative/executive conditions and instructions would confer no right on the teachers of private college and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced to assert a right in his favour based thereon. However, the Apex Court reiterated its earlier view that the Government is entitled to insist on compliance with such conditions for affiliation, recognition and aid; that breach or non-compliance would vest the consequence of denial or withdrawal thereof. 210. A closer look at the guidelines dated 14th August, 2001 would show that they have been framed with the objective of defining the areas of responsibility of the various agencies involved in promotion and development of sports in India; to identify national sports federations/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leading to certain recoveries. The respondent was placing reliance on certain guidelines issued by the Government of India on 30th March, 1985 regarding the policy, procedure and orders in respect of the grant of rewards to informers and government servants in case of seizure made and evasion of tax duty detected under the provisions of the Customs Act; Central Excise and Salt Act, 1962; Gold Control Act and Foreign Exchange Regulation Act. It is noteworthy that the guidelines clearly stated that the reward was purely an ex gratia payment. This being so, it was held by the court that no right accrued to the same till it is determined and awarded. In writ jurisdiction the high court cannot examine or weigh the various factors which are required to be taken into consideration while deciding a claim regarding grant of the reward which are matters exclusively within the domain of the authorities of the department which alone can weigh and examine the usefulness or otherwise of the information given by the informer. In this background, reward cannot be claimed as a matter of right. No such issue arises in the instant case. 214. Before this Court, it is an admitted position that the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition seeking directions on a complaint of breach of statutory guidelines certainly is not legally tenable is hereby rejected. 218. The Government of India is dispensing not only financial assistance but also providing other facilities in terms of the guidelines; has recognised national level federations; framed priorities in sports and has effected dispensation of state largesse based thereon. 219. In view of the principles laid down by the Apex Court in the aforenoted judicial pronouncements, there can be no dispute that the Government is entitled to frame the guidelines for dispensation of its largesse which will take the nature of financial assistance; assistance in the nature of expert coaches, national level facilities etc. Certainly, the Government is entitled to notify and evolve a procedure for dispensation of the financing assistance which runs into crores of rupees as well as guidelines for recognition of the national sports federation and cannot permit the same to be disbursed arbitrarily without any clear directives in this behalf. The guidelines issued by the Government and modified from time to time have been therefore validly issued and are binding for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterlinking. In this context, the court had observed that it was not open to it to issue any direction to the Parliament to legislate. 223. Similarly, in the pronouncement reported at AIR1992SC1546 State of J and K v. A.R. Zakki and Ors., the court had observed that a writ of mandamus could not be issued to the legislature to enact a particular legislation. 224. There certainly cannot be any dispute with this well settled principle of law. However, in the instant case, no prayer is made for issuance of a mandamus to the government to legislate. No question is raised or prayer made by the petitioner that the legislature be called upon to make a law on any subject. A simple case for enforcement of and a grievance with regard to violation of non-statutory guidelines, which regulate dispensation of state largesse, is urged. This objection in the present case is wholly misplaced. 225. It has been argued by Mr. V.P. Singh, learned senior counsel that the role of the Government is confined to grant of recognition which is in the nature of a contract. This submission fails to take into consideration the impact of the recognition and the tremendous power which is created in an organisati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r there is fundamental right to form an association/society'; 'whether there is a fundamental right to get the society registered and 'whether there is a fundamental right to be a member of the Executive Committee/Governing Body.' Challenge was laid to a statutory restriction on the tenure in the executive body. Just as the present case, there was no prohibition on the membership of the association. The grounds of challenge were the same as those laid before this Court. It would be useful to consider the observations and findings of the court in extenso which reads thus: 26. Apart from the Committee being a committee of the co-operative society registered under the Act, we do not think the restriction in question imposed on becoming a member of the Committee for more than two consecutive terms violates the fundamental right to form Association guaranteed under Article 19(1)(c) of the Constitution. It is not the case of the petitioners that they are restricted from forming a co-operative society under the Act, or there was any compulsion on them to form a society under the Act or to become members of a society registered under the Act. Simply for the reason that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily formed by the original founders. The right to form an Association implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an Association. Therefore, the Supreme Court said on the fact of that case, that the provision of law by which committee members have been added to the Society without any opinion being available to the existing members of the Society to elect or refuse to elect them as members is violative of Article 19(1)(c) of the Constitution. Thus, the facts of that case are clearly distinguishable from the facts before us. In the present case, the only restriction imposed under Section 21C of the Act is to be a member of the Committee continuously for a third term. This is not a provision which restricts the right to continue the Association with its composition as voluntarily agreed upon by the persons formi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 73A of the Maharashtra Cooperative Societies Act (24 of 1961) and a challenge to its vires was laid on the ground inter alia that it violated Article 19(1)(c) of the Constitution of India. This challenge was also rejected by the Division Bench of the High Court of Bombay in the judgment reported at AIR1984Bom47 Manohar v. State of Maharashtra holding that the registration of a society was not compulsory, but, a voluntary act. So far as the tenure restriction statutorily contained in Section 73A of the Act was concerned, the Bombay High Court held as follows: 14. Now coming to the impugned provision of Section 73A(5) of the Act, all that it does is to restrict the enjoyment of office by the designated officer, if he has held the office for a continuous period of six years and such officer is not eligible to be re-elected or re-appointed for a period of three years after the expiry of the period of six years. Such a provision could have been made in the byelaws of the society at the time of registration. Such provision could have been made in the byelaws of the society at the time of registration. Such a provision could also be made in the byelaws at the instance of the Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, they also voluntarily agree to the Provisions of the Act including the provisions such as the framing of bye laws consistent with the object of the provisions such as the framing of bye laws consistent with the object of the provisions of the Act and even agreeing to bye laws that may be directed to be made by the Registrar. It is under the bye laws that the designated officer continues to remain in the office for a particular period. The period could be restricted even at the instance of the Registrar by amending the bye laws as a result of the statutory provision like Sub-section (5) of Section 73A . we do not see how the provisions of this nature, in any manner, impinge upon the right of the members to form an association guaranteed under Article 19(1)(c) of the constitution. In our opinion, it is equally difficult to appreciate the argument that a provision of this nature takes away the rights of the members to continue the association with its composition as voluntarily agreed upon by them when there is no obligation or compulsion to get the society registered. Provision can be said to be one regulating the affairs of the society without in any manner encroaching upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terprise depends upon the reality with which each one of the members works for the achievement of the object of the organisation; (See law and principles of cooperation by H. Calvart, pp. 18, 19, 22, and 45). The committee on cooperation in India emphasised the moral aspect of cooperation. To quote their words; "the theory of cooperative is very briefly that an isolated and power less individual can by association with others and by moral development and mutual support, obtain in his own degree the material advantages available to wealthy or powerful persons and thereby develop himself to the fullest extent of his natural abilities. By the union of forces, material advancement is secured and by united action self-reliance is fostered and it is from the inter-action of these influences that it is a hoped to attain the effective realisation of the higher and more prosperous standard of life which has been characterised as better business, better farming and better living; we have found that there is a tendency not only among the out side public but also among supporters of the movement to be little its moral aspect and to regard this as superfluous idealism. Cooperation in actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the circumstances provided in the constitutional provision. There can be no dispute with the legal principles laid down. 231. So far as the pronouncement reported at Amreli Distt. Coop. Sale & Purchase Union Ltd., Amreli (supra) also placed by the respondents is concerned, the same also deals with a statutory prohibition in the tenure of an office bearer. With due respect to the principles laid down in this judgment, I find that the submission that registration of an association as a society is not mandatory but purely a voluntary act was not placed before the court and therefore not considered in the pronouncements. Furthermore, the court was not concerned with a guideline framed by the Government for regulating dispensation of its state largesse and recognition. This judgment would therefore have no application to the instant case. 232. Yet another aspect to this issue requires to be considered. There is no statutory compulsion for registration of a society to carry on the activities for which it is constituted. This would be evident from the enabling provision which is to be found in the Societies' Registration enactment of 1960 as well as the state enactments which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, this Court is concerned with the incorporation of a tenure clause as an eligibility condition for a body seeking recognition and/or financial assistance from the Government of India. The principles underlying restriction of the tenures of office bearers in societies concerned with sports are similar to those on which other cooperative societies are registered. The pronouncements afore considered would apply on all fours to the instant case. 236. I find that there is no prohibition to an unregistered association or society of persons, either under the Constitution of India or under any statute, to carry on its activities freely without any restriction. There is no such restriction even under the Societies Registration Act, 1860. The guidelines framed by the respondent No. 1 which are the subject matter of the present consideration also do not restrict formation of an association or society. 237. Though not placed before this Court, but in view of the submission that the respondent No. 2 is registered under the Tamilnadu Societies Registration Act, 1975, I find that Section 5 of that statute, specifically mentions that any society which has for its object, promotion of reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onopoly over the sport. Tremendous damage could result to the sport itself inasmuch as vesting of the control in authorities from a particular region may result in diversion of funds, selection of players from and development of a sport from only a particular region. The national sports federation would then not remain representative of the hope and aspirations of the sports persons of the entire nation. 242. A limited office tenure, certainly would have the impact of minimising, if not eliminating, allegations, criticism and elements of nepotism, favourtism and bias of any kind. In a country having the federal structure of the nature that India possesses, the office bearers being in circulation and there being change in the representation on the executive of a national level body would go a long way in promoting the diversity and expertise in the sport. There must be states who have never been represented on the national teams. It would contribute to mainstreaming sport persons who are marginalised on account of lack of regional representation at the higher managerial echelons of the sports bodies or are otherwise not visible. Hundreds of sports persons without means, resources o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity votes of the members present and voting in the election. 246. It is important to note that none of the respondents have till date assailed any of the guidelines by way of an appropriate legal proceedings or writ petition or otherwise. On the contrary they have accepted their validity and acted thereupon. Both recognition, aid and financial facilities have been sought thereunder, granted by the Government and enjoyed by respondent Nos. 2 to 4. The current stand that the same are beyond the executive power as the Parliament does not have the legislative competence has been raised only when a grievance is made by the petitioner that the respondent No. 1 is not adhering to the rules. In these circumstances, the petitioner relies on the pronouncement of this Court reported at 1996 (28) DRJ 358 Veterinary Council of India v. India Council of Agricultural Research to urge that, as a result, the respondent stands estopped from raising such a challenge. 247. The petitioner has placed reliance on the pronouncements reported at [1988]172ITR395(SC) Asstt. Commissioner Commercial Taxes v. Dharmendra Trading Co. in support of the submission that the Union of India is estopped from contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Vice-Presidents and of the ten other members of the IOC Executive Board is four years. A member may serve for a maximum of two successive terms on the IOC Executive Board, regardless of the capacity in which he has been elected. In case of a member having completed two successive terms of office pursuant to Rule 19.2.2 above, he may be elected again as a member of the International Olympic Committee executive board after a minimum period of two years. 253. This stipulation in the international Charter shows the enforcement of democratic values and the reaffirmation of the principle that the governing sports body has to be representative and cannot be controlled by any particular person or set of persons and is very similar to the stipulation contained in the tenure Clause 3.5. 254. Therefore it has to be held that there is no legal prohibition to the restriction of the tenure of an office bearer as a condition for grant of recognition or financial assistance by the authority or person awarding or dispensing the same. Such condition does not adversely impact any fundamental right guaranteed under the Constitution of India. The objection to this effect raised by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1975 World Cup. These facts are general knowledge and known to every sports enthusiast. 257. Absorption of the country with this game prior to its status till the beginning of the 1980s, was perhaps as much, if not more, than even cricket. The talent and skill of Indian hockey players of yore as late Shri Dhyanchand are till date labelled as legendary and internationally unmatched. No country in the world can boast of eight Olympic gold medals in a row. The prestige and standing of Indian hockey in the past remains unparalleled. 258. Hockey is the National Game of India. For the first time in more than eighty years at the Beijing Olympics, the Indian Hockey team could not even qualify to play the Olympics. Experience shows that there is no dearth of sports talent in this great country. In view of the protracted hiatus certainly blame cannot be apportioned upon the players. There are most serious causes which remain totally unexamined. As per the medal tally displayed by the respondent No. 2, the Indian team is now restricted to struggling for medals at the regional level. Lesser teams have grown in stature while India languishes at the bottom. 259. A very telling statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management in this country deserves to be noticed at this stage. 263. Despite the clear guidelines notified and circulated as back as on 20th September, 1975, revised on two occasions first in 1997 and then as circulated on 14th August, 2001, each of which contains the office bearer tenure stipulation, the Government of India has filed an affidavit before this Court stating that while releasing assistance to National Sports Federations, the stipulation contained in the Government order dated 20th September, 1975 limiting the tenure of office bearers to two terms of four years each is not being insisted upon by the Government. This affidavit states that the same has not been done 'in the interest of sports person'. What is the interest of the sports person is neither detailed nor spelt out, either in the affidavit or in any document which has been placed on record. There is not a single decision which is contrary to the mandate and stipulation contained in the guidelines dated 20th September, 1975. 264. It is an admitted position that the guidelines were framed and circulated in 1975, amended in 1997 and in 2001 with the approval of the Ministry of Finance, Department of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why some days are good, others not at all; the positive support needed when "off form" and how insensitive criticism can demolish the confidence of an able player. The essentiality of a good diet and rest regime, a clean environment and adequate facilities can be also best ensured by those who have been involved. Sports persons also, understand the importance of 'rest' and 'retirements'. 270. The success of a sports board needs no further evidence than the performance story of the team it endorses. It is also not the credentials or laurels of those who constitute the Board on which its capability is to be evaluated but again the success of the game, nationally and internationally. Such success may not be evaluated by medals won but can equally be measured by the spread of the game in the country, availability of modern facilities in its remote corners, creation of a body of fit and able coaches and players and, of course, the increase in popularity of the game amongst the masses. 271. Alongwith the counter affidavit of respondent No. 4 in support of the credentials of the respondent No. 3, his CV has been placed on record. The respondent No. 3 has declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rner and concerns of the sport permitted to come to the fore. 274. The parties have placed the details of the boards of International Olympic Committee, International Rugby Board, Federation International de Football Association, Association of Tennis Professionals, International Cricket Council, Hockey, Major League Baseball, USA Basketball and list of sources before this Court. Each one of them has celebrated sports personalities in important positions. Today sports is no more something that can be dealt with in a meeting over a five star meal. It requires technical knowledge of both the game, the equipment and the training. Every aspect from the aerodynamics in equipment, even of the clothes worn by an athlete to shoes of a hockey/football/basket player; hair cut of the swimmer to 'weight and material of the equipment used is governed by scientific details and principles. In times of expertise, sports management experts are as important to a good sports programme just as experienced competent players or ex-players in decision and policy making areas who would ensure that the sports persons got the same, if not better residential/hotel and other facilities as the office bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clich, 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 ''lawfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the Supreme Court in AIR2005SC592 Board of Control for Cricket, India and Anr. v. Netaji Cricket Club and Ors. wherein also an identical issue has been raised in respect of the BCCI. It was held by the court that in view of the fact that the BCCI as a member of the ICC, it also represents the country in international foras. It exercises enormous authority and is responsible for selecting 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. 280. So far as the nature of powers of the sports Board is concerned and the extent of judicial intervention in the functioning of the BCCI is concerned, the following parameters were laid down by the Supreme Court: 81. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and aid or affiliation would entail withdrawal of recognition, aid or affiliation. In J.R. Raghupati v. State of Andhra Pradesh and Ors. (supra), it was held that breach of guidelines laid down by the Government was justiciable and it is further trite that the Government is bound by guidelines where framed and cannot act arbitrarily or capriciously. 283. In para 10 of R.D. Shetty v. IAAI (supra), the Apex Court has reiterated the settled rule of administrative law that an executive authority must be rigorously held to the standards by whichit professes its actions to be judged and it must scrupulously observe these standards on pain of invalidation of an act in violation of them. 284. With regard to a popular sport like cricket, the Apex Court has needed to say in para 85 of BCCI and Anr. v. Netaji Cricket Club and Ors. (supra) that the events leading to these appeals raises a abysmal picture and a sordid state of affairs. 285. It has been held hereinabove that these guidelines are valid and binding. The judicial precedents noticed hereinabove have stated that breach of even non-statutory guidelines which have been framed for the purposes of regulation of dispensation of larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 2. In the light of the above discussion, it is not necessary for this Court to call for such a record. (ii) So far as prayer (b) is concerned, the respondent No. 1 is directed to examine all complaints made by the petitioner with regad to breach of the subject guidelines as well as the terms for grant of financial and other assistance to the respondent No. 2 as well as utilisation of the funds provided by the Government. It shall be open for the respondent No. 1 to make such investigation and enquiry in this behalf as is deemed necessary; to call for a response of the respondent No. 2 and any clarifications from the petitioner in this behalf. The complaints shall be disposed of by speaking orders within a period of eight weeks from today. The copy of the order(s) which may be passed thereon be made available to the petitioner and the respondent No. 2 who shall be at liberty if aggrieved thereby to assail the same in accordance with law. In view of the above, so far as the merits of the allegations of financial impropriety and indiscipline relating to the assistance dispensed by the respondent No. 1 to the respondent No. 2 as well as allegations of mismanagement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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