TMI Blog2009 (3) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 January, 2005 had been lodged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 for init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the Government 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utively for two terms 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreements between the National 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scretion of the Government to the national level federations the Government 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 spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfaction of the Government of India. 28. Condition IV in Clause 6.1 prescribes that in order to be eligible 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been raised that the petition under Article 226 of the Constitution of India seeking issuance of a writ against the respondent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity. Ultimately, in Federal Bank Ltd. v. Sagar Thomas (2004)ILLJ161SC : From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function. 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 lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public duty was accepted. It was, however, held that the BCCI was in the nature of a private body exercising public functions and performing public duties 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rights of citizens. In the judgment reported at Secretary, Ministry of Information Broadcasting, Government of India and Ors. v. Cricket Association of Bengal 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in India has attained this ''giant'' stature through its organisation, skill, the craze for the game in India and last but not the least by the tacit approval 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, an argument was raised before the court that it is a non-statutory body and no public duties were imposed upon it by statute but that it was a society in the nature of a 'private 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government has no financial stake in or control over BCCI is, therefore, not relevant. We are not examining the issue as to whether BCCI falls within the meaning of ''State'' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also no power to issue any executive instructions or guidelines which would regulate or control sports in view of Article 73 of the Constitution. The respondents rely on the pronouncement of the 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 distrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution is concerned, the parliament, and, subject to Clause (1), the legislature of any state has the power to make laws with respect to any of the matters enumerated in this List. The legislature of any 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under Section 104 of the Government of India Act had held that resort to that residuary power should be the very last refuge. It was further stated that it is only when all the categories in the three lists 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est possible construction according to their ordinary meaning must be put upon the words used therein. The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermining whether it is legislation with respect to matters in this list or in that. 36. Their Lordships agree that this passage correctly describes the grounds upon which the rule is founded, and that it applies to Indian as well as 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 exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an and Ors. v. Vatan Medical General Store and Ors. and Shri Krishsna Gyanoday Sugar Ltd. and Anr. v. State of Bihar [2003]2SCR75 . 64. In AIR1975AP50 Lachmandas Balachand, Paradise Lottery Centre, 124, Park Lane Secunderabad and Ors. v. The State 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 Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so read, it is clearly evident that the general and residuary powers in all matters relating to sports at the national level remain beyond the legislative competence of the State. Hence the same would be clearly beyond the executive competence of the State as well. 73. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;the Ministry of Youth Affairs and Sports' has been constituted. So far as in Rule 3 setting out the allocation of business and distribution of subjects is concerned, the same is specified in the 2nd Schedule to the rules and includes all attached and subordinate offices or other organisations 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 infrast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents when considered as part of entertainment. However when such an event is proposed, an issue as to whether visas or permission have to be given or denied to sports persons of a particular country would squarely fall for consideration before the Ministry of Foreign Affairs of the Central Government. On issues of security, the matter 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of a legislation and the entry with which it would fall. In case of conflict between entries in List I and List II, the same has to be decided by application of the principle of pith and substance . The doctrine of pith and substance means that if an enactment substantially falls within the powers expressly 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a provision for the enabling university to have an off-campus centres outside the State was clearly beyond the legislative competence of the Chhattisgarh legislature. 97. Sports with all its hues and colours is one such subject which, for different purposes would be covered under different entries in 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 facilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents also attempts to undermine the farsightedness of the Constitution makers who drafted the various entries in Schedule 7 with great care. They anticipated the developments in society, science and technology and also foresaw that it was humanly impossible to provide for every conceivable subject which could arise. 106. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g beyond the legislative competence of the Parliament, it is enough to enquire if it is a law with respect to matters or taxes enumerated in List II. If it is not, no further question arises. 112. So far as the pronouncement of the Apex Court reported at [1996]3SCR721 State of A.P. v. Mcdowell and Ors. is concerned, there can certainly be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this background, so far as the Constitutional vacuum, urged by the respondents is concerned, the submission is misplaced also having regard to the vision and farsightedness of the Constitution makers who empowered the Parliament to legislate in respect of any subject or matter not enumerated in any of the lists when they vested and included the residuary power 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 necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext of the factual matrix that the several players pursue the game as their profession, it was argued before the Apex Court in JT 2005 (2) SC 8 Zee Telefilms Ltd. and Anr. v. UOI and Ors. and also observed in para 143 that the right of the Indian players is comparable to their constitutional rights contained in Article 19(1) (g) of the Constitution of India which would include 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India. 128. The respondents would contend that in view of the majority judgment, the minority view stands overruled and cannot be relied upon for any purpose. On the other hand it has been pointed out on behalf of the petitioner that the law laid down by the Apex Court would be the enunciation of the law by the minority judgment as well which binds this Court. 129. There is 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event a Judge who does not concur from delivering a dissenting judgment or opinion. It is clear from Article 145(5) that a judgment delivered by the Supreme Court is the one delivered by a majority of the Judges where there is a difference of opinion, but in that case the Judge who does not concur also delivers a judgment albeit a dissenting judgment. Article 145(5) therefore uses the word '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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioners has also drawn my attention to the pronouncement of the Apex Court reported at (2005)ILLJ544SC Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kalyan Nigam and Anr. wherein a question had arisen before the Apex Court as to whether the U.P. Rajya Karamchari Kalyan Nigam was covered by the definition of 'state' under Article 12 of the Constitution 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minority bases their decision, we should reject it. It must be wrong because it led them to the wrong result.... 136. A valuable principle has been enunciated above by the learned jurist. However the issue before this Court is substantially different. The majority view has confined itself to a consideration as to whether the BCCI would be covered under the definition of 'state' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to take any different view. 142. In any case, even if the respondents contention was to be accepted that the minority pronouncement would not form a binding precedent, the majority view has not addressed the issue relating to the legislative competence of the parliament to legislate on the subject of sports and has confined itself, to holding that the petition under Article 32 was not maintainable. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision to scrap any part of the guidelines was taken. It is evident thereby that the tenure prescription as was contained in the original guidelines continued to bind recognition and grant of financial assistance. 149. The respondents have submitted that a four member committee of the Indian Olympic Association also gave formal comments on 16th July, 1997 expressing the view that the tenure stipulation in the guidelines 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 guid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingness of the guidelines in the affidavit dated 16th May, 2005 filed by it to the following effect: (1) That Indian Hockey Federation (IHF) is an autonomous society registered under the Societies Registration Act, 1860 and has got recognition of Ministry of Youth Affairs Sports as apex national level sports federation engaged in promotion of the game of Men's Hockey in the country. (2) That the Ministry of Youth Affairs 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 instruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Olympic Association and various national sports federations was taken by the concerned minister on 11th October, 2001. Suggestion 25 of the various bodies was that the issue of tenure of the office bearer may be kept in abeyance, till the working group submitted its report to the Ministry of Youth Affairs Sports. The Government has stated that on this suggestion, on the 24th of August, 2002, the Minister had directed that the '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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd executed under Article 166(1) shall be authenticated in the prescribed manner. The Apex Court observed that a study of the article, therefore, makes it clear that the notings in a file culminated into an order effecting rights of parties only when it reaches the head of the department and is expressed in the name of the governor, authenticated in the manner provided in Article 166(2). 163. Learned senior counsel for the petitioner has also 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o scrap the tenure clause, it would have been recorded that the same 'shall stand scrapped' or other words to this effect. It would not have been noted that it 'should be scrapped' or other words to this effect. On the 11th of October, 2001, therefore, it was the issue as to whether the tenure restriction is required to be removed or not which was kept in abeyance and not the applicability of Clause 3.5. The same is supported by the manner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.12.2001 to suggest amendments to the said guidelines. 174. The note sheets contain approval of a noting dated 30th October, 2001 by the concerned Minister as well as the Secretary of the Ministry. The noting dated 30th October, 2001 records the sequence of events including the circumstances in which the meeting dated 11th October, 2001 had been called. Para 8 of this noting summing up the position and setting out the proposal deserves to be considered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts placing reliance on the same in support of submissions relating to recognition and grant of financial assistance. It has been stated by the petitioner that the respondent No. 1 has never stated that the guidelines so far as the tenure clause was concerned were not applicable or not implemented. 179. Before the Constitution Bench hearing Zee Telefilms and Anr. v. UOI, an issue was raised as to whether the Union of India had granted de facto recognition to the BCCI 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal level sports federation as well as dispensation of the state largesse was being effected on compliance of the conditions laid down in these guidelines. The said guidelines were definitely not draft guidelines. They are also the only regulatory guidelines which guide and govern recognition of national sports bodies. The said guidelines also provide the procedure including the manner in which applications for aid and assistance and the dispensation thereof is to be made by the respondent 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 guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s co-extensive with the legislative power of the parliament. Article 73 does not define what would constitute an executive function nor does it mention the subject matters over which the executive power is exercised. The executive power of the Union is also not circumscribed by any existing legislation on the relevant subject. In the absence of any legislative provision, regulating or controlling sports activity at the national level, it has been held that it is open to the Government of India to issue executive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. We should not be understood as laying down any general proposition on this question. But we think that the Order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the Order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right. 194. This very issue arose before this Court in the pronouncement reported at AIR1976Delhi310 Jiwat Bai Sons v. G.C. Batra and the applicable principles were put down 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendra Kumar Maheshwari v. UOI and Ors. The court was of the view that though the guidelines were not judicially enforceable, however judicial review of the matter could be made where there was arbitrariness and malafide or where the deviations from the guidelines involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve. In para 106 and 107 of the judgment, the court held thus: 106. 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 observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roach the court for relief. Sometimes guidelines control the choice of persons competing with one another for the grant of benefits largesses or favours and, if the guidelines are departed from without rhyme or reason, an arbitrary discrimination may result which may call for judicial review. In some other instances (as in the Ramanna Shetty case), the guidelines may prescribe certain standards or norms for the grant of certain benefits and a relaxation of, or departure from, the norms may affect persons, not directly 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 righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for processing the cases of lifers for premature release but once issued, these must be uniformity and invariably applied to' all cases of lifers so as to avoid the charge of discrimination under Article 14. Again in the case of A.I. Kalra v. The Project and Equipment Corporation of India Ltd. (1984)IILLJ186SC , it has been held that: An administrative authority who purports to act by its regulation must be held bound by the regulation. Even if these regulations have no force of law the employment under 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be useful to set down these principles which reads thus: 10. xxx It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe these standards on pain of invalidation of an act in violation of them.... Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial 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 Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will deal, but the Government is still a Government when it enters into contract or when it is administering largesse and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the Government is trading with the public, the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2005 shows that in the year 1995 an amount of ₹ 80,54,831/- was released which in the year 1999, went up to ₹ 1,09,12,796/- and in 2004-2005 has further increased to ₹ 1,94,21,032/-. 203. The respondent No. 2 though has not given the details of the amounts advanced by the respondent No. 1, however it accepts that respondent No. 1 is giving financial assistance have identified activities of the players. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court for a mandamus seeking the enforcement or non-enforcement of the rules, even if indirectly there may be some effect on them because of the grant and aid being withheld in whole or in part. 207. The pronouncement of the Apex Court reported at 1988(38)ELT225(SC) J.R. Raghupati v. State of Andhra Pradesh and Ors. was concerned with a challenge to a pronouncement of the Andhra Pradesh High Court involving a question of principle 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 stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be a condition precedent to obtaining recognition and aid and that a breach or non-compliance of such conditions would entail either denial or withdrawal of recognition and aid. The management of a school, therefore, would commit a breach or non-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 insis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire nation in the arena of sports. 213. Mr. Pradeep Dewan, learned Counsel appearing for the Indian Olympic Association has placed reliance on the pronouncement of the Apex Court reported at UOI and Ors. v. C. Krishna Reddy wherein the respondent had sought issuance of a writ of mandamus to the petitioners to release an amount by way of a reward for having given information to concerned officers of the Department of Customs and Central Excise 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... federation is also required to be concerned with the development and encouragement of the sport in the country. 217. The Apex Court has not prohibited the High Court in exercise of its jurisdiction under Article 226 from issuing a mandamus requiring the Government from ensuring compliance with the guidelines or conditions which it has fixed for grant of recognition and affiliation. The absolute prohibition urged by the respondents to the maintainability of the 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, natio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in view these facts, it was held that no mandamus could be issued to the Central Government to issue the notification contemplated under Section 1(3) of the Act to bring the Act into force. 222. In (2004) 11 SCC 360 Re Networking of Rivers, the court was concerned with the project for linking of rivers. Certain aspects of the matter required consideration by the Government and an examination as to whether any further pieces of legislation were necessary to bring about the interlinking. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or reason for an Act. The state had been utilising the device and framework of cooperative societies for ushering in some of the welfare functions. Even without the assistance of 'objects and reasons', it could be said that the function of the legislature in this mandatory legislative underlying Section 21(c) of the Act is only to curb the growth of vested interest in cooperative societies. The Andhra Pradesh High Court has with utmost clarity placed the distinction between, 'whether 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety; what it does is to alter the composition of the Society itself. The result of this change in the composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alternation in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the restriction like the one imposed under Section 21-C prohibiting a person from becoming a member of a Managing Committee of a Society consecutively for more than two terms cannot be said to be the one which either in reality or in substance amounts to restricting the right to form an Association guaranteed under it. 229. A condition similar to that incorporated in Clause 3.5 of the guidelines under consideration with regard to tenure of the office bearers was contained in Sub-section 5 of Section 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 enjoyme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of a society registered under the Act on an application for that purpose made voluntarily by its members. As we have noticed from the provisions of the Act above, the members of the society are under no compulsion to make an application for registration on the society under the Act, but by making an application for registration under the Act, they voluntarily submit to the acceptance of the provisions of the Act, as binding on them. In other words, by voluntarily agreeing to be a society registered under the 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, impi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thical base. Each for all, and all for each is the motto of cooperation. Cooperation not only develops the latent business capacity of its members; it produces leaders; it encourages the growth of social virtues; honesty and loyalty become imperative; the prospect of a better life obtainable by concerted effort is opened up; the individual realises that there is something more to be sought than mere material gain for himself. Cooperation being a business - cum-moral movement , the success of the enterprise 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 secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree of their contribution. It provides as a substitute for material assets. Honestly and a sense of moral obligation and keeps in view the moral rather than the material sanction. The movement is thus a great movement. 230. In Bijoe Emmanuel v. State of Kerala (supra) relied upon by the respondents, the court had held that in order to regulate or curtail fundamental rights guaranteed by the sub-clauses of Article 19(1), the state has to make a law imposing reasonable restrictions 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 Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r uplifting of weaker and poorer sections of the society and with a view to make the cooperative societies broad based democratic institutions rather than allow them to be monopolised by few persons and for the purposes of orderly development of the cooperative movement and further in accordance with the relevant directive principles of state policy enumerated in the Constitution of India, the tenure restriction provision in Section 73A was inserted by statutory amendment. 235. In the instant 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion making especially in selection of teams. Thus office bearers from a particular region, religion, political affiliation or having other clout may be able to control selection and other matters relating to the national sports federations influencing the development of the sport in the country. 241. If such a tenure clause was not enforced, the office bearers could be repeatedly elected from a particular region and continue to dominate the affairs of the association/federation after having created a monopoly 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to standing for election again after the break of one term. 245. The respondent No. 2 places reliance on amendments to the Constitution carried out in the annual general meeting held on 8th February, 2004 and have placed the amended Constitution on record which is stated to be governing the functioning of the federation. This constitution has amended the tenure clause to read that all the office bearers shall be eligible for re-election for second and subsequent terms of four years each on obtaining a simple majority 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 adh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executive board was founded in 1921 and consists of the president, four vice presidents and ten other members. All the members of the executive board are elected for a four year term by the session in a secret ballot by a majority of votes cast. 252. Perusal of the document placed before this Court shows that a tenure prohibition is to be found even in the rules governing the duration of some of the office members of the International Olympic Committee. It is prescribed in Rule 19.2.2 that the duration of the terms of office of 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt unfortunately conceals the real position which is the abysmal fall from the glory that Indian hockey has displayed. It fails to even state that the Indian hockey team won a record six gold medals in a row at six Olympics in the year 1928, 1932, 1936, 1948, 1952 and 1956 which example has not been replicated by any other country. It won a silver medal in 1960 and a gold again in 1964 as well as 1980. The Indian hockey team won the bronze medal at the 1968 and 1972 Olympics. So far as the World Cup was concerned, the Indian hockey team won a bronze in 1971, a silver in 1973 and the gold at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor as per the fabricated minutes dated 30th January, 2005. Apart from the irregularities pointed out by the petitioner, it has also been urged that the auditor's report for the year 2003-04 had also pointed out glaring financial irregularities and mismanagement in the affairs of the respondent federation. 261. The petitioner's requests to the respondent No. 1 for investigation into the complaints of breach of the guidelines dated 14th August, 2001 have fallen on deaf ears. 262. A very important aspect which may be the root cause for the malaise which seems to have infested sports 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being permitted by the Government. Players and coaches remain almost unrepresented on the sports body or in forums where their voice and representation may ensure not only the interest of the sports persons but also that the national interest and glory of the sport is restored. 269. It takes a sportsman to understand the finest nuances of the game; the psychology involved in mentally blocking out rowdy spectators supporting a home team; the herculean effort entailed in focussing on the game against extreme provocations of the opponents. Only someone who has played or been involved in the game can understand 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormance or failure of a board. The angst of those who labour and toil on the sports fields, no acknowledgment of the talent of players, the complete lack of visibility of the spread or encouragement of the sport in the country and its fall in spectator popularity underline the malaise and no management or board can refuse responsibility. The very fact that this situation is persisting for not merely the last couple of years, but after the 1980s, as manifested from the Olympic results, only underlines the crying need for critical measures. But that can come only if managerial bickering's were put on the back burner 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 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a cricket team is discriminatory for arbitrary. There are several answers, none startling and all legally tenable. Firstly, not every action of the BCCI would fall under the scope of judicial review under article 226. It must not be forgotten that ''the High Court does not act like a proverbial ''bull in a china shop'' in the exercise of its jurisdiction under Article 226''. It will not interfere in matters which do not have any element of public law. Secondly, ''catching the bull by its horns'', as it were, suppose the selection procedure of the BCCI prescribed that players from a particular region, or a state or belonging to a particular community were not to be selected for the Indian team. Would it be so preposterous if the High Court stepped in under article 226 and quashed such a prescription? Let us take another example. Suppose the Selection Committee of the BCCI were to alter its rules and select a team to represent India not on merit but on the basis of bids. Meaning, the highest bidders got to play for India. Would the High Court then be justified in throwing out a petition of aspiring, meritorious but poor players on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Indian Olympic Committee nor any of the Sports Federations including the Indian Hockey Federations/respondent No. 2 herein have ever assailed the action of the Government or any stipulation in the guidelines. It would therefore be apparent that the respondents have accepted the authority and competence of the government to lay down conditions and guidelines for eligibility and the manner in which recognition of a federation or an association as a national level body as well as the manner in which dispensation of the funds and state largesse would be effected. 279. In this regard, it would be useful to also refer to the pronouncement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral of respondent No. 2 or from contesting the elections to these posts for the fourth consecutive term. Information sought from the respondents by various representations including those lastly dated 21st January, 2005 and 17th February, 2005 has not been made available. 282. In view of the principles noticed hereinabove, it has been held that non-statutory guidelines and executive instructions would not create enforceable right in favour of an individual. In State of Assam v. Ajit Kumar Sharma and Kumari Regina v. St. Aloysius Higher Elementary School and Anr.(supra), it was held that breach or non-compliance of conditions of recognition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, it is the respondent No. 1 which is legally competent and best placed to examine the same and pass appropriate orders thereon. It is trite the scope of judicial review by this Court is restricted. Needless to say the appropriate orders in this behalf would required to be made strictly in terms of the guidelines dated 14th August, 2001. It is not open to any official to waive compliance with any provision contained in the guidelines. (i) It is now necessary to examine the prayers made by the petitioner. Prayer (a) in the writ petition seeks a direction to the respondent No. 1 to produce the record relating to grant of financial assistance to the respondent 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 thi ..... 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