Rajasthan High Court - Jodhpur
District Cricket Association vs Registrar on 19 September, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:37152]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9390/2024
1. District Cricket Association, Hanumangarh through its
Hony. Secretary Mr. Manish Kumar Dharnia S/o Shri Het
Ram Dharnia aged about 53 Years, having Address Near
Indra Chowk, Station Road, Hanumangarh Town, District
Hanumangarh (Rajasthan).
2. Manish Kumar Dharnia S/o Shri Het Ram Dharnia, aged
about 53 Years, Hony. Secretary of District Cricket
Association, Hanumangarh having Address Near Indra
Chowk, Station Road, Hanumangarh Town, District
Hanumangarh (Rajasthan).
----Petitioners
Versus
1. Registrar, Cooperative Societies cum Registrar Institution,
Nehru Sahakar Bhawan, 22 Godown Circle, Bhawani
Singh Road, Jaipur.
2. Deputy Registrar, Cooperative Societies Cum Registrar
Institution, Hanumangarh Junction (Raj.)
3. Smt. Manju Saharan Election Officer, DCA Hanumangarh
cum Inspector (Works), Office of Deputy Registrar
Cooperative Societies, Hanumangarh Junction, District
Hanumangarh (Raj.)
----Respondents
For Petitioner(s) : Mr. Vikas Balia, Sr. Counsel assisted
by Mr. Vishan Das Vaishnav
Mr. B.S. Sandhu
For Respondent(s) : Mr. Rajendra Prasad, Advocate
General (through VC)
Mr. Nathu Singh Rathore, Additional
Advocate General with
Mr. Ravindra Jala, AGC
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[2024:RJ-JD:37152] (2 of 46) [CW-9390/2024]
JUSTICE DINESH MEHTA
CAV JUDGMENT
Reserved On: 06/09/2024
REPORTABLE Pronounced on :19/09/2024
BY THE COURT:
1. The instant writ petition impugns the order dated 24.05.2024 passed by the Deputy Registrar, Co-operative Societies, Hanumangarh, whereby the respondent no.3 - Ms. Manju Saharan, officiating Inspector has been appointed as Election Officer and the Election Officer namely Surja Ram Bishnoi, who was appointed by the petitioner no.2 on 09.05.2024 has been removed.
2. Before making submissions about the correctness, legality and propriety of the order impugned, Mr. Vikas Balia, learned Senior Counsel appearing for the petitioners laid the factual canvass as infra:-
2.1 The petitioner no. 1 - District Cricket Association, Hanumangarh is duly registered under the provisions of the Rajasthan Sports (Registration, Recognition and Regulations of Association) Act, 2005 (hereinafter referred to as 'the Act of 2005') and Rajasthan Sports (Registration, Recognition and Regulations of Association) Rules, 2004 (hereinafter referred to as 'the Rules of 2004').
2.2 The elections of the petitioner - Association were held in the year 2020, in which the petitioner no.2 was elected as Secretary.
2.3 Since, the term of an elected body, as per Section 8 of the Act of 2005 is 4 years, the Executive Committee of the petitioner no.1 passed a resolution on 04.05.2024 and decided to hold (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (3 of 46) [CW-9390/2024] elections while appointing Surja Ram Bishnoi as an Election Officer.
2.4 An election notice dated 09.05.2024 was issued by the petitioner no.2 - Secretary of the Association and all concerned were informed that the elections will be held on Saturday, June 1 st 2024 from 9:30 a.m. onwards and Surja Ram Bishnoi shall be the Election Officer. Alongwith election notice aforesaid, a list of eligible office bearers of the clubs so also voters list were also published.
2.5 On 10.05.2024, the Election Officer issued an election programme giving the date-wise schedule of each stage of election. A separate notice of even date was also issued by the Election Officer in which address of his residence (House No. 7/40, RHB Colony, Hanumangarh Junction) was given for the purpose of correspondence and submission of objections/nomination papers.
2.6 Before the election could take place, the respondent no.2 initiated inquiry under Section 23 of the Act of 2005 by way of notice dated 16.05.2024.
2.7 Alleging the said inquiry to be arbitrary and vindictive, petitioners preferred a writ petition being S.B. Civil Writ Petition No. 8529/2024, in which a co-ordinate Bench of this Court was pleased to issue notices to the respondents and pass an interim order (dated 21.05.2024) to the effect that the elections of the petitioner-Association pursuant to election programme dated 10.05.2024 shall remain subject to outcome of the writ petition.
2.8 The respondent no.2 was informed about the issuance of notice and the interim order vide letter/e-mail dated 23.05.2024.(Downloaded on 19/09/2024 at 08:52:32 PM)
[2024:RJ-JD:37152] (4 of 46) [CW-9390/2024] 2.9 Immediately on the next date i.e. on 24.05.2024, the respondent no.2 proceeded to pass the impugned order in purported exercise of rule 11(3),11(6),11(7) and 11(8) of the Rules of 2004.
3. Mr. Balia, learned Senior Counsel at the outset branded the order impugned to be vindictive and arbitrary, alleging the same to have been passed in order to overreach the process and to render the petitioners' earlier writ petition redundant.
4. He contended that the order impugned deserves to be quashed on a number of grounds - being mala-fide; being void and without jurisdiction (as rule 11 of the Rules of 2004 is applicable only for the purpose of elections held under section 26 of the Act of 2005); being violative of principles of natural justice (as no notice was issued to the petitioners) and also being factually incorrect - as the requisite facts were absent.
5. In order to establish that the proceedings are mala-fide, learned Senior Counsel argued that the order makes reference of a letter purportedly written by three persons (Indrajeet, Gaurav Jain etc.) on 24.05.2024, who pointed out three irregularities viz.:
(i) The elections are to be held at 'Virasat Vidhyapeeth', RIICO, Hanumangarh Junction, which according to him was a private place and could not be treated to be a public place
- a place fit for holding the elections;
(ii) The Election Officer has given address of his own residence for the purpose of correspondence and for submitting objections; which was not in accordance with rule 11(6) of the Rules of 2004;
(iii) The Election Officer has not taken objections from the objectors and illegally published final electoral roll.(Downloaded on 19/09/2024 at 08:52:32 PM)
[2024:RJ-JD:37152] (5 of 46) [CW-9390/2024]
6. It was argued by Mr. Balia, learned Senior Counsel that the respondents have proceeded vindictively against the petitioners which is evident from the fact that firstly an inquiry under Section 23 of the Act of 2005 was initiated and when this Court has intervened, in a bid to influence the election process, the respondent no.2 proceeded to pass the order impugned, as a ploy to ensure that not only the elections even their results are secured as per whims and fancies of his political masters.
7. He submitted that on 23.05.2024 intimation about the issuance of notice by the High Court and interim order dated 21.05.2024 was given to the respondent no.2 and immediately on the very next day, a purported complaint was stage-managed and the order under challenge was passed on the very same day, that too without issuing any notice to the person(s) concerned.
8. Learned Senior Counsel further submitted that it is surprising to note that on receiving the complaint on 24.05.2024, the respondent no.2 called for affidavits of the complainants and immediately passed the order impugned. He expressed his concern by submitting that while giving undue accommodation to the complainants, the respondent no.2 did not even think it appropriate to elicit the response of the Election Officer, if not of the petitioners.
9. He added that the approach of the respondent no.2 and the manner in which the order has been passed clearly shows that the respondent no.2 was pre-determined and hell-bent to influence the election, with a view to beget results of his choice. (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (6 of 46) [CW-9390/2024]
10. Learned Senior Counsel then moved on to his second ground that the impugned order which has been passed in purported exercise of rule 11(3),11(6),11(7) and 11(8) of the Rules of 2004 is without jurisdiction, inasmuch as not only chapter heading of Chapter V, under which the Rules are couched, even the language used therein suggests that the provisions of rule 11 were transitory provisions only to be used at the time of introduction of the Ordinance of 2004 and were not applicable to the subsequent elections.
11. Learned Senior Counsel contended that prior to promulgation of the Sports Ordinance in the year 2004, various Sports Associations were registered under the Societies Registration Act and there was a great deal of intervention/interference of the State authorities and it was only in a bid to keep the politics away from the sports; to ensure autonomy of the Sports Associations and to avert State intervention, the Ordinance was brought into force.
12. He submitted that keeping the scheme of the Ordinance, Rules of 2004 were framed and except for the first elections to be held for transitory period, the State's intervention was completely done away with. And it was only with that idea in the mind, rule 11 of the Rules of 2004 was enacted, which rule is confined to elections under section 26 of the Ordinance of 2004 / Act of 2005. He emphasized that no analogous provision exists in the Act of 2005, which applies to subsequent elections governed by Chapter III (section 13 of the Act of 2005).
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13. While pointing out that subject elections are regular elections governed by Chapter III of the Act of 2005, which are to be held in accordance with by-laws of the Association, learned Senior Counsel argued that in absence of express provision, the respondent no.2 could not have resorted to rule 11 of the Rules of 2004 and pass the order impugned.
14. He vehemently argued that there is no reference of section 13 of the Act of 2005 in rule 11 of the Rules of 2004 and hence, invocation of powers under rule 11 by the respondent no.2 and the consequential order dated 24.05.2024 are void-ab-initio.
15. In order to buttress his argument that the impugned order is violative of principles of natural justice, learned Senior Counsel had a host of submissions to make. He firstly invited Court's attention towards the date of the order under challenge and highlighted that the purported complaint was received by the respondent no.2 on 24.05.2024 and on that very day, the respondent no.2 hustled and passed the impugned order.
16. He argued that the respondent no.2 was required to issue a formal notice to the petitioners or to the Election Officer, at least to ascertain the veracity of the facts alleged. Mr. Balia looked a bit concerned, when he argued that how could respondent no.2 straight away believe the contentions of the complainants as a gospel truth and take extreme step of removing the Election Officer and replace his own subordinate, Ms. Manju Saharan on said chair!
17. Learned Senior Counsel argued that the manner in which the order has been passed clearly smacks of mala-fide. According to (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (8 of 46) [CW-9390/2024] him, passing the order by keeping the principles of natural justice aside was a mala-fide exercise of powers, as there was hardly any urgency because even nomination papers had not been submitted by that time and the date of election was also too far.
18. Without prejudice to above arguments, learned Senior Counsel argued that the grounds on which and the reasons for which the impugned order has been passed, could not have persuaded any judicious mind to pass the order like the one under challenge. Elaborating his argument further, Mr. Balia submitted that the first reason given in the complaint as noticed by the respondent no.2 was that "the elections were being held at a private school, which cannot be treated to be a public place", is unsustainable. He added that a school maybe a Government or a private school, but is a public place and hence, for this reason, impugned order could not have been passed. Learned Senior Counsel also submitted that 'Virasat Vidhyapeeth' is a school and it cannot be said that it is a private place at which holding of fair election was not possible.
19. Learned Senior Counsel then submitted that the second reason for which the respondent no.2 has changed the Election Officer (as recorded in the impugned order) is, that two addresses, one for inviting objections and other for holding elections create a doubt. He argued that the order of the respondent no.2 is equally flawed. He contended that the Election Officer had no other option, but to give address of his own residence for the purpose of inviting objections and submission of (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (9 of 46) [CW-9390/2024] nomination papers, because he had since retired and was a common man.
20. Learned Senior Counsel submitted that the facts noticed by the respondent no.2 in the order under consideration cannot be said to be in contravention of mandate of sub-rule (6) of rule 11 of the Rules of 2004. He submitted that sub-rule (6) requires that the election should be held in a public place and not at private residence or private campus. He argued that a school is a public place and not a private campus, hence, the order impugned is contrary to facts and law, while also asserting that the elections held by Manju Saharan were in a hotel.
21. Learned Senior Counsel submitted that it is not in dispute that the elections were to be held at Hanumangarh-District Headquarter and if the respondent no.2 had any concern or apprehension of the election being contrary to sub-rule (6) of rule 11 of the Rules of 2004, he could have issued a notice to the Election Officer or at the best could have changed the venue of the election, so as to keep the election in tandem with his view point that the election is to be held at some public place.
22. Having said so, learned Senior Counsel submitted that even if the facts, as found by the respondent no.2 are taken to be correct, then also, there was no occasion for the respondent no.2 to change the Election Officer, in absence of any allegation or evidence that the Election Officer was biased or the election process was tainted.
23. It was also argued that the Election Officer could be changed only in terms of sub-rule (7) of the rule 11 of the Rules of 2004, (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (10 of 46) [CW-9390/2024] which requires satisfaction of the Registrar that the appointment of the Election Officer is not in accordance with sub-rule (3) of rule 11 of the Rules of 2004. He contended that going by sub-rule (7) of rule 11 of the Rules of 2004, the Registrar could at the best change the venue, and not the Election Officer.
24. Learned Senior Counsel argued that neither there is an allegation nor a finding that appointment of Election Officer was contrary to sub-rule (3) of rule 11 of the Rules of 2004 and therefore, the impugned order of cancelling his appointment is void and nonest.
25. Mr. Nathu Singh Rathore, learned Additional Advocate General made submissions but was not able to satisfy the Court, as to how respondent no.2 could pass impugned order invoking rule 11(6) of the Rules of 2004, when rule 11 expressly applied to the elections held under section 26 of the Act of 2005.
26. Since, the issue in hand is not only a question of law but also of seminal importance, as it may have bearing on a number of similar orders, which have been passed by the Registrar/Deputy Registrar in exercise of powers under rule 11 of the Rules of 2004, the State has requested Mr. Rajendra Prasad, learned Advocate General to assist the Court. Learned Advocate General made detailed and erudite submissions on each aspect of the matter, but chose not to respond to petitioners' arguments about legality and propriety of the order dated 24.05.2024.
27. With regard to petitioners' challenge to the said order, learned Advocate General argued that the order impugned can be challenged by an appeal to be filed before the State Government (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (11 of 46) [CW-9390/2024] under section 35 of the Act of 2005 and such order of the State Government can be challenged before the High Court by way of a revision petition and since a complete machinery has been provided under the Act and further when the revision petition against the order of the State Government has been provided to this Court, a restraint should be observed by the High Court while entering into the merit of the order while exercising its jurisdiction under Article 226 of the Constitution of India.
28. He also submitted that the correctness and legality of the order under challenge can well be examined by the Secretary of the State Government (Department of Youth Affairs and Sports) pursuant to an appeal filed within 30 days of the order and therefore, this Court should not go into the correctness and legality of the order dated 24.05.2024, so far as facts noted and reasoning given thereunder are concerned.
29. While informing that pursuant to the order dated 24.05.2024, newly appointed Election Officer - Ms. Manju Saharan has conducted the election and new executive body of District Cricket Association, Hanumangarh has been elected, learned Advocate General submitted that even petitioners have continued with the election process that was set in by the election notice dated 10.05.2024 under the aegis of said Surja Ram Bishnoi. He contended that since the petitioners have ignored/defied the order of the respondent no.2 and have lodged their claim before the State Association to assert their voting rights, no indulgence be granted. In other words, he argued that the writ petition at the (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (12 of 46) [CW-9390/2024] instance of the petitioners, who have flouted the order of the Registrar, should not be entertained.
30. While informing that the petitioners have challenged the order dated 24.05.2024 by way of the present writ petition but since no interim order was passed, learned Advocate General submitted that the petitioners have gone ahead with the elections regardless of the fact that said Election Officer (Surja Ram Bishnoi) had ceased to continue as an Election Officer. It was argued that invocation of extra-ordinary jurisdiction of the Constitutional Court by the violators of law should be deprecated.
31. Learned Advocate General submitted that in any event, the facts of the case have given rise to an election dispute, which can be resolved only by way of arbitration and conciliation provided under section 16 of the Act of 2005. He submitted that one of the candidates (Rahul Jain) has already invoked arbitration as provided under section 16 of the Act of 2005 and therefore, this Court should not enter into the merit of the case, which in essence is an election dispute, as an efficacious remedy has been provided under section 16 of the Act of 2005.
32. In support of his contention, learned Advocate General relied upon the judgment of Hon'ble the Supreme Court rendered in the case of Election Commission of India vs. Bajrang Bahadur Singh & Ors., reported in (2015) 12 SCC 570.
33. Lastly, addressing the issue of applicability of rule 11 of the Rules of 2004 and Chapter V of the Rules, learned Advocate General with his usual fairness began with a prelude that a simple reading of rule 11 and corresponding provisions given in Chapter V (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (13 of 46) [CW-9390/2024] suggest that the same are applicable only for the elections that were held for the first time - during transition period and were governed by section 26 of the Ordinance of 2004 (pari-materia to section 26 of the Act of 2005).
34. While candidly accepting that there is no corresponding provision permitting the Registrar to intervene and pass the orders like the one that is the subject matter of challenge before this Court, learned Advocate General argued that while framing the Rules, which were introduced simultaneously with the promulgation of Ordinance of 2004 due to inadvertence, neither the provision like the one contained in rule 11 of the Rules of 2004 was inserted nor rule 11 of the Rules of 2004 and Chapter V was later on amended to cover the subsequent elections of the Associations, as envisaged under Chapter III of the Ordinance of 2004 and the Act of 2005.
35. Learned Advocate General submitted that once the transition period was over, and the elections which were firstly held were over, there remained no necessity of keeping Chapter V and rules contained thereunder in the form, they were framed and as a matter of fact, rule 11 of the Rules of 2004 ought to have been amended or substituted.
36. While accepting the legal position that the rules ought to have been amended, learned Advocate General submitted that he has already advised and impressed upon the State Government to bring-in requisite changes in the Rules of 2004, but until the Rules are amended, the powers exercised by the Registrar and his delegatee be saved.
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37. Learned Advocate General submitted that for the last twenty years, the Registrar and his delegatees have been resorting to rule 11 of the Rules of 2004 and not only the State even all Arbitrators and Courts alike have been treating the orders passed under rule 11 to be validly passed orders, therefore, the practice which is prevailing and being continued for the last twenty years be not disturbed.
38. He submitted that the legislative lacunae or the gap, which is left on account of inadvertence or what he termed as 'casus omissus', be filled by this Court, having due regard to the scheme of the Act and other relevant factors.
39. For the purpose of invoking the principles of 'casus omissus', learned Advocate General relied upon Hon'ble the Supreme Court's verdict in the case of Union of India & Ors. vs. Rajiv Kumar Bani Singh, reported in (2003) 6 SCC 516, more particularly Para Nos. 23 to 28, which reads as follows:
"23. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute/statutory provision as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. But, at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (15 of 46) [CW-9390/2024] particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. "An intention to produce an unreasonable result", said Danckwerts, L.J. in Artemiou v. Procopiou, "is not to be imputed to a statute if there is some other construction available".
Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC where AC at p.577 he also observed: "This is not a new problem, though our standard of drafting is such that it rarely emerges".
24. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but do to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt."
"But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v.
Hampton).
A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle of quod enim semel aut bis existit praetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute
- casus omissus et oblivioni datus dispositioni juris communis relinquitur; "a casus omissus", observed Buller, J. in Jones v. Smart, "can in no case be (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (16 of 46) [CW-9390/2024] supplied by a court of law, for that would be to make laws".
25. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated:
"The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further". (See Grey v. Pearson).
The latter part of this "golden rule" must, however, be applied with much caution. "If,"
remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though they do lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied, where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale).
26. The inevitable conclusion therefore is that the order in terms of Rule 10(2) is not restricted in its point of duration or efficacy to the period of actual detention only. It continues to be operative unless modified or revoked under sub-rule (5)(c), as provided under sub-rule (5)(a).
27. Rule 10(5)(b) deals with a situation where a government servant is suspended or is deemed to have suspended and any other disciplinary proceeding is commenced against him during (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (17 of 46) [CW-9390/2024] continuance of that suspension irrespective of the fact whether the earlier suspension was in connection with any disciplinary proceeding or otherwise. Rule 10(5)(b) can be pressed into service only when any other disciplinary proceeding is also commenced than the one for and during which suspension or deemed suspension was already in force, to meet the situation until the termination of all such proceedings. In contradiction, Rule 10(5)(a) has application in relation to an order of suspension already made or deemed to have been made. Rule 10(5)(b) has no application to the facts of the present case and no inspiration or support could be drawn for the stand taken for the respondents or the decision arrived at by the High Court. It is Rule 10(5)
(a) alone which has application and the deemed suspension would continue to be in force till anything has been done under Rule 10(5)(c). Similarly, Rules 10(3) and 10(4) operate in different fields and merely because a specific provision is made for its continuance, until further orders in them itself due to certain further developments taking place and interposition of orders made by court or appellate and reviewing authority to meet and get over such specific eventualities, in given circumstances and that does not in any way affect the order of suspension deemed to have been made under Rule 10(2).
28. Strong reliance was placed on Nelson Motis v. Union of India to contend that omission of the expression "until further orders" in Rule 10(2) was conscious and, therefore, the period covered for "deemed suspension" was restricted to period of detention. Such plea is without substance. In Nelson case the respective scope and ambit of Rule 10(2) and Rule 10(3) fell for consideration. As indicated above, the said provisions apply in conceptually and contextually different situations and have even no remote link with a situation envisaged under Rule (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (18 of 46) [CW-9390/2024] 10(2). In fact, this Court in the said case categorically observed as under:
"The comparison of the language with that of sub-rule (3) reinforces the conclusion that sub- rule (4) has to be understood in the natural sense."
40. Mr. Balia, learned Senior Counsel in rejoinder submitted that neither the existence of alternative remedy of appeal as provided under section 35 of the Act of 2005 nor the provision of arbitration contained in section 16 of the Act of 2005 should deter this Court from exercising its writ jurisdiction under Article 226 of the Constitution of India, particularly when the order under challenge is fundamentally without jurisdiction and has been passed simply with a view to circumvent the interim order passed by this Court on 21.05.2024 and oust the petitioner no.2 from the Executive body of the Association.
41. Learned Senior Counsel submitted that if the argument of alternative remedy put forth by learned Advocate General is considered in the light of factual backdrop, the aggrieved party will be firstly required to file an appeal against the order dated 24.05.2024 and then, (since the elections have taken place), take up the proceedings for arbitration, as envisaged under section 16 of the Act of 2005.
42. He submitted that an Arbitrator exercising powers under section 16 of the Act of 2005 can neither quash the order dated 24.05.2024, nor can he decide the validity of the appointment of new Election Officer. Hence, the petitioners have to take two remedies, one before the Secretary under section 35 and other before an Arbitrator under section 16 of the Act of 2005. (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (19 of 46) [CW-9390/2024]
43. He argued that the subject matter of challenge before this Court is neither the proceedings undertaken by the new Election Officer namely Ms. Manju Saharan nor any action taken thereafter hence, remedy of arbitration provided under section 16 of the Act of 2005 is not applicable in the present case. He argued that since the petitioners have not raised any ground in relation to the elections that have been held under the supervision of newly appointed Election Officer (Ms. Manju Saharan), the remedy of election petition under section 16 of the Act is also not available.
44. It was submitted that since the mala-fide exercise on the part of the State and its officers is writ large and the impugned actions are politically motivated, as is evident from the factual matrix, the remedy of appeal even if available, would be illusionary. Because, the Appellate Authority functioning under section 35 of the Act of 2005 is not an independent authority and he has no power to stay effect and operation of the order dated 24.05.2024.
45. Mr. Balia, lastly submitted that well within three days of passing the impugned order, the petitioners have approached this Court and it is the State, which has been taking time since the matter firstly came up for consideration of this Court on 28.05.2024. He submitted that as the pleadings are complete and detailed arguments have been advanced by the highest Law Officer of the State, the writ petition be not thrown on the ground of availability of alternative remedy, particularly when a pure question of law without any factual dispute has come up for consideration of this Court.
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46. Responding to submission of learned Advocate General about the doctrine of 'casus omissus', Mr. Balia submitted that the said doctrine neither has any role to play nor should the Court invoke the same, as it is the conscious decision of the State not to provide any pari-materia provision in the Rules of 2004, when it comes to subsequent elections governed by Chapter III (section 13 of the Act of 2005).
47. He submitted with vehemence that the scheme of the Act of 2005 clearly suggests that the Legislators and rule making authorities wanted least interference by the State and that is why autonomy has been provided to the Sport Associations at primary, district and even State level and the mechanism of arbitration has been provided, without providing any statutory appeal before the State Government so far as the elections are concerned. He added that appeal under section 35 of the Act of 2005 has been provided so as to keep the Registrar and his subordinates under the bounds of law.
48. Heard learned counsel for parties and perused the record.
49. Before adverting to the rival submissions, this Court deems it appropriate to take note of statement of objects and reasons which were placed for consideration when the Act of 2005 was promulgated. These statement of objects and reasons have been noted by the Division Bench of this Court, in its judgment dated 23.07.2012 passed in the case of Kishore Rungta vs. State of Rajasthan & Ors. (D.B. Civil Writ Petition No. 6090/2004), which read thus:
(Downloaded on 19/09/2024 at 08:52:32 PM)
[2024:RJ-JD:37152] (21 of 46) [CW-9390/2024] "(a) Aims and objects:
"Article 51A (j) of the Constitution of India casts duty on every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation rises to higher levels of endeavour and achievements. Sports and participation in sports activities help individual develop character, discipline, confidence, self esteem, positive self-image, sense of well-being and also offers important health benefits. Sports also teach how to work as a part of a team, how to manage success and disappointments, how to respect others and develop social skill and competence. Sports are also emerging as a profession and a sports event has its economics in sports tourism.
For the development of sports in the State of Rajasthan the existing Sports Associations and sports bodies play a significant role. However, the State's performance in the national and international events has not been upto the mark. The sports bodies are either not registered or are registered under the Rajasthan Societies Registration Act, 1958 ( Act No.28 of 1958) which does not provide for effective regulatory mechanism. Even though Rajasthan State Sports Council is the premier body of the State, its role is limited. In the absence of detailed date of activities of the associations or bodies, no accountability can be fixed for performance nor could they be effectively encouraged for the growth of sports and games in the State.
The Bill is aimed at advancing, encouraging and promoting sports and games activities in the State, at State, District and lower level. By regulating the State seeks to creating democratic structure, which would encourage development of sports persons, development of athletic fitness and help bring young talent in sports and create model (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (22 of 46) [CW-9390/2024] behaviour to meet National and International challenges and standards. It would also create a healthy environment of functioning for the Sports Associations by defining their roles, obligations and relationships with a degree of precision, thus helping the Sports Associations, nurture, develop and prepare young talent for National and International competitions in their quest for winning laurels and medals for Rajasthan.
Large number of Sports Associations are using the expression "Rajasthan" and are holding out to be representing Rajasthan, its Districts or a part of Rajasthan without factually acting in representative capacity which is in violation of the Olympic Charter and the National Sports Policy, 2001, which, inter alia, provides for making the functioning of the Federations and Associations transparent, professional and accountable. This has necessitated the regulation of such bodies to ensure that they are operating in a representative character and that sports units at all levels get equal opportunity of representation at District, State, National and International levels, so as to achieve excellence in the field of sports.
The Bill confers on Sports Associations legal right to represent Rajasthan and meet the aspirations of the public, discourage nepotism, create a deeper and wider network for selection process, develop a scientific procedure for identifying and promoting natural sports persons. The Bill also seeks to amicably resolve disputes arising within and between various Sports Associations relating to affiliation and elections which end up in litigation in courts and divert the attention of Sports persons from achieving excellence.
Since the Rajasthan Legislative Assembly was not in session and the circumstances existed which rendered it necessary for the Governor of Rajsthan to take immediate action, he, therefore, (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (23 of 46) [CW-9390/2024] promulgated the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Ordinance, 2004 (Ordinance No.6 of 2004) on 18th August, 2003 which was published in Rajasthan Gazette, Part IV (B) Extraordinary, dated 18th August, 2004.
Since then it was felt that certain provisions needed modifications. Accordingly certain minor modifications have been made in sections 2, 5, 6, 9, 12, 14, 15, 22, 26, 35 and Schedule A and C. The Bill seeks to replace the aforesaid Ordinance with above modifications.
Hence the Bill."
50. For the sake of ready reference, sections 13, 23, 26 and 35 of the Act of 2005 are being reproduced hereinfra:
"13. Elections.- (1) Election of the Executive Body of a State Level Sports Association shall be held in the presence of an Observer of the Rajasthan State Sports Council. Election of the Executive Body of a District Level Sports Association shall be held in the presence of Observer of its State Level Sports Association and Observer of the District Sports Council.
(2) On conclusion of the election of the Executive Body of a Sports Association, the election officer shall issue a certificate, duly countersigned by the Observer(s) giving the names and addresses of the elected members. On issuance of such certificate the elected Executive Body shall take charge of the Sports Association. The election officer shall send the copies of such certificate to the Registrar and the Rajasthan State Sports Council.
23. Inquiry.- (1) The Registrar may,-
(a) on the request of a State Level Sports Association, or
(b) on the request of not less than one tenth of the total members of a Sports Association, or
(c) on his own motion, hold an enquiry, either himself or by a person duly authorised by him.
(2) The Registrar or the person authorised by him shall, for the purpose of any inquiry, have all the powers to inspect records, direct production and take copy of any document (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (24 of 46) [CW-9390/2024] of the concerned Sports Association for the purpose of the enquiry.
26. Recognition.- (1) Notwithstanding anything contained in this Act, an Association undertaking games or sports activities at State or District level and is already registered under 9 The Rajasthan Societies Registration Act, 1958 (Act No. 28 of 1958) shall be entitled, to opt to be registered and recognised under this Act, and to receive a certificate thereof on application to the Registrar, and within thirty days from the date of commencement of this Act shall amend its bye-laws to bring it in conformity with the provisions of this Act to the satisfaction of the Registrar, and submit all the documents specified in Schedule "A‟ of this Act.
(2) If no such application is made within thirty days of the commencement of this Act or if the bye-laws of the Sports Association covered under sub-section (1) are not brought in conformity with the provisions of this Act at the expiry of thirty days from the commencement of this Act, the Executive Body of the Sports Association shall be superseded by the Registrar and an Adhoc Executive Committee shall be appointed to manage the affairs of the Sports Association. Such an Adhoc Executive Committee shall call an Extraordinary General Meeting and get amended bye-laws approved within thirty days of taking charge, apply for registration under the provisions of this Act and then proceed to conduct fresh elections. (3) After the amendment in bye-laws, fresh elections shall be held within thirty days of such amendment in the cases where-
(a) such an amendment has been made after superseding the earlier elected Executive Body;
(b) earlier elected Executive Body has been elected by a voting collegiums which comprised members other than those provided under this Act: Provided that the voting collegiums and eligibility of elected persons for contesting elections of their affiliating Associations shall be determined on the basis of sub-section (4). (4) Notwithstanding anything contained in this Act, at the commencement of this Act, the elected Office Bearers of the Executive Bodies of various State Level Sports Associations and District Level Sports Associations shall be (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (25 of 46) [CW-9390/2024] determined in the following manner for the purpose of conducting any fresh elections under sub-section(3):-
(a) for the State Level Sports Associations listed in Schedule 'B' of the Act, on the basis of the returns filed by the affiliated State Level Sports Associations with the Rajasthan State Sports Council and the record available with the Rajasthan State Sports Council either based on such returns or on the basis of records of the relevant District Sports Council on the date of commencement of this Act;
(b) for the District Level Sports Associations, primarily on the basis of returns filed by the affiliated State Level Sports Associations with the Rajasthan State Sports Council and, if such returns are not available, on the basis of record of Affiliation available with the District Sports Council on the date of commencement of the Act.
(5) Notwithstanding anything contained in this Act, the transition of the District Level Sports Associations affiliated to a State Level Sports Association covered under this chapter and themselves not covered under this chapter may be allowed to be completed upto nine months of the registration certificate being granted to the concerned State Level Sports Association.
35. Appeal. - (1) Any Sports Association or person aggrieved by an order made by the Registrar under the provisions of this Act may appeal against the order to the Secretary to the Government, Department of Youth Affairs and Sports within thirty days of such an order being made. (2) The decision of the Secretary to the Government, Department of Youth Affairs and Sports made in such an appeal shall be final and a revision against his order may lie with the High Court within thirty days of such an order. "
51. Reproduction of sub-rule (1) to (8) of rule 11 of the Rules of 2004 would also be not out of context, hence the same are being reproduced hereunder:
"11. Election procedure for Elections under section 26(3).- Every Sports Association covered under Chapter VII of the Ordinance, while complying with the provisions of Section 26 of the Ordinance shall (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (26 of 46) [CW-9390/2024] follow the following procedure for its elections under Section 26(3) of the Ordinance-
(1) Elections of a Sports Association shall be conducted by an Independent Election Officer in presence of the Election Observer(s).
(2) An Election Officer would be appointed by the Executive Body of a Sports Association or by an Office-
bearer authorized to appoint him under its bye-laws after getting it approved by the Registrar. Name, address, and contact numbers of such Election Officer shall be communicated in the Notice issued for election.
(3) Such an Election Officer shall be transparently independent, shall not have ever accepted any fee, remuneration or assignment from the Association and shall not be a voting or non-voting member of the Association or any of its affiliated units and must possess experience of conducting elections of either a Co-operative body, a Municipal or Panchayat Institution or any other Constitutional Body.
(4) Nominations shall be received by the Election Officer at a notified time and place. He shall provide a duly numbered receipt thereof. He may take the assistance of the Sports Association whose elections he is conducting.
(5) The venue of the elections shall be decided by the Executive Body of the concerned Association or by a person authorized in the bye-laws to that Association. (6) Venue for the Elections of a State Level Sports Association shall not be below a District Headquarter and for a District Level Sports Association, not below a Municipal or Panchayat HQ and shall be in a public place. A private residence or a private campus shall not be used for the purpose of conducting the elections. However, a venue other than A District or Municipality/Panchayat HQ, as the case may be, can be fixed with the prior permission of the Registrar. (7) On a representation being made to him, if the Registrar is satisfied at any stage after the issue of (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (27 of 46) [CW-9390/2024] notice of elections that the appointment of the Election Officer is not in accordance with sub-rule(3), the Registrar may cancel the appointment and appoint an officer subordinate to him to act as the Election Officer. Similarly, if the venue of an election is in contravention of sub-rule (6), the Registrar, on being satisfied on the basis of a representation made to him, may change the venue.
(8) If an action is taken by The Registrar under sub- rule (7), he may postpone the date of election by a minimum of 15 days and give a notice thereof to all the voting and non-voting members and endorse it to the Secretary of the Sports Body concerned who shall endorse it to all the members. The endorsement issued by the Secretary shall be treated as the amended notice of elections. Any failure to issue the endorsement would be a ground for appointing an Ad- hoc Executive Committee for free and fair conduct of elections."
52. It would be apposite to first dilate upon the preliminary objection, which has been raised by learned Advocate General regarding maintainability of the present writ petition.
53. The instant writ petition oppugns the order dated 24.05.2024, the consequence whereof is that the elections on the different posts of the Association have been held by the newly appointed Election Officer - Manju Saharan, whereas, the petitioners also went ahead with the election programme that was published and elections have been held under the aegis of the said Suraja Ram Bishnoi by-passing or ignoring the contentious order dated 24.05.2024.
54. Resultantly, there exists two sets of elected representatives. Going by section 35 of the Act of 2005, an appeal has been provided against any order made by the Registrar and such appeal (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (28 of 46) [CW-9390/2024] lies before the Secretary to the Government. In normal circumstances, this Court would have refrained from exercising its power under Article 226 of the Constitution of India, but as stated in preceding para and Para No. 29 that elections have been held by both Election Officers and two executive bodies have come into being, who are claiming themselves to be the validly elected members of the executive body, the legality and validity of the elections and the Members elected have given rise to election dispute, for which remedy lies under section 16 of the Act in the form of conciliation and arbitration.
55. If the petitioners were to be relegated to avail statutory remedies, they are supposed to first challenge the order dated 24.05.2024 before the State Government in terms of section 35 of the Act of 2005 and in case, their challenge succeeds, then they have to challenge the election of newly elected members of the executive body, who have been elected through the elections held by newly appointed election officer - Manju Saharan.
56. According to this Court, if the basic order dated 24.05.2024 is set aside, then it will definitely have bearing on the consequential elections. As a matter of fact, the elections of the elected body, which has won in the elections held by newly appointed Election Officer (Manju Saharan) is a consequence of the order impugned. And that is perhaps why, the petitioners have not made any prayer for setting aside the elections or declaring the elections of the elected candidates to be illegal. It cannot, therefore, be said that the petitioners have challenged the result of the elections or the dispute in hands is an election dispute, so (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (29 of 46) [CW-9390/2024] as to require the petitioners to invoke arbitration, as provided under section 16 of the Act of 2005.
57. If the petitioners were to avail remedy of arbitration in terms of section 16 of the Act of 2005, they could challenge the same on any or all the grounds, which touch upon the elections, but the Arbitrator appointed under section 16 of the Act of 2005 would not be competent or authorized to pronounce upon the correctness, legality or otherwise of the order of the Sate Government or order of respondent No.2 dated 24.05.2024.
58. True it is, that the impugned order dated 24.05.2024 can be subjected to appeal in terms of section 35 of the Act of 2005, but if the entire factual matrix is taken into account, the remedy of appeal, as suggested by the learned Advocate General is inefficacious on the one hand and lead to multiplicity of litigation on the other.
59. This Court is firmly of the view that relegating the petitioners to avail remedy under section 35 of the Act of 2005 and then invoke arbitration as given under section 16 of the Act to challenge the elections (if required) would be like shunning away from its constitutional obligations.
60. Apart from what has been observed in preceding paras, this Court is of the view that the issue, as to whether the Registrar can invoke powers conferred upon him by rule 11(4),11(6),11(7) and 11(8) of the Rules of 2004 in relation to elections other than the first election envisaged under section 26 of the Act of 2005 goes to the root of the matter. Since, the impugned order has been alleged to be an order without authority of law and void for want (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (30 of 46) [CW-9390/2024] of jurisdiction, this Court is persuaded to exercise its jurisdiction under Article 226 of the Constitution of India.
61. Furthermore, the issue in hands is purely a question of law, which has not been decided so far. The question is likely to affect many similar orders passed by the authorities throughout the State, hence, this Court deems it expedient to decide the same so as to give quietus to an otherwise pulsating and intriguing question, which on the face of it does not have a ready and easy answer.
62. The preliminary objection, raised by the learned Advocate General is, therefore, repelled.
63. Moving on to legality and correctness of the order dated 24.05.2024, it is to be recapitulated that Mr. Balia has firstly argued that the proceedings are mala-fide. This Court would revert back to the factual narration of the case, which shows that the respondents had initiated an enquiry under section 23 of the Act of 2005, against which the petitioners have preferred the writ petition (S.B. Civil Writ Petition No. 8529/2024) wherein a co- ordinate Bench of this Court has been pleased to issue notices to the respondents on 21.05.2024 and grant interim relief. According to the petitioners, no sooner did the petitioners serve a copy of the interim order than the respondent no.2 passed the impugned order (on 24.05.2024) in order to frustrate the writ petition and avert any adverse order.
64. In the opinion of this Court, such claim of the petitioners is nothing more than an apprehension. Firstly, because the interim order passed by this Court on 21.05.2024 was innocuous - the (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (31 of 46) [CW-9390/2024] High Court has not per-se stayed the proceedings under section 23 of the Act of 2005, it has simply observed that the elections would remain subject to outcome of the writ petition.
65. It is easier alleged than believed, that the respondent no.2 would resort to powers under rule 11 of the Rules of 2004 simply in a bid to render the earlier writ petition infructuous. It is to be noted that the elections programme had been notified and the elections were in offing. Hence, the allegation of mala-fide on the ground that the order was passed to render the writ petition infructuous is misconceived.
66. This Court, therefore is of the considered opinion that the order dated 24.05.2024 cannot be branded to be a result of mala- fide exercise of powers, simply having regard to the time-line. The order may or may not be legal and the powers might not have been exercised properly, but merely because of an incorrect decision, the very exercise of powers cannot be said to be mala- fide as alleged.
67. Another facet of the argument to claim the proceedings to be mala-fide was the manner in which the order has been passed. There can be no two opinions that the order has been passed in a hot haste. But then the haste per-se cannot be a sole determinative or decisive factor to hold an order to have been passed mala-fidely.
68. True it is, that the respondent no.2 has passed the order on 24.05.2024 in pursuance of a complaint written by three persons on 24.05.2024, which was received on 24.05.2024 itself. It is noteworthy that on the very same day, the respondent no.2 had (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (32 of 46) [CW-9390/2024] not only obtained complainants' affidavits, but has proceeded to pass the contentious order. As per this Court, such order can be alleged to be arbitrary exercise of powers, but not mala-fide exercise of powers.
69. Be that as it may. Rule 11(6) and 11(7) of the Rules of 2004 if read by its letter, does not provide for issuance of notice or granting an opportunity of hearing to the elected members or Election Officer and therefore, if the respondent no.2 has not issued any notice before passing the order impugned dated 24.05.2024, it can be said that it is against the principles of natural justice and violative of Article 14 of the Constitution of India and arbitrary in that sense of matter.
70. This Court feels that ideally, the respondent no.2 ought to have issued a notice to the Election Officer and call for his response about the veracity of the allegations of the complainant, in spite of the fact that sub-rule (7) of the rule 11 of the Rules of 2004 does not contemplate issuance of notice. He should not have passed the order, in the manner done. There was no pressing urgency to pass the order on very same date, particularly when the elections were to be held on 01.06.2024.
71. Another question which has been canvassed by Mr. Balia, learned Senior Counsel appearing for the petitioners was that the respondent no.2 and the Registrar has no jurisdiction or authority to pass the order for invoking rules 11(3),11(6),11(7) and 11(8) of the Rules of 2004, as these provisions given under Chapter-V were transitory provisions and applicable to elections held for the (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (33 of 46) [CW-9390/2024] first time, namely elections governed by section 26 of the Ordinance of 2004/Act of 2005.
72. The respondents in their reply have asserted that the Registrar has requisite powers to pass such order on the strength of rule 11 of the Rules of 2004. Learned Advocate General, however, while accepting the fact that there is no corresponding provision dealing with elections under section 13 of the Act of 2005, put forth a protective umbrella, firmly placed on the plank of doctrine of 'casus omissus'.
73. There can be no two opinions about the applicability of rule 11 of the Rules of 2004 - the same are definitely transitory provisions, meant to apply for the first elections, which were held in terms of section 26 of the Act of 2005. There can also be no quarrel on the issue that there is no corresponding provision in the Rules of 2004, which provides for State's intervention and that there is no other provision like rule 11 of the Rules of 2004, which is meant for elections covered by section 13 of the Act of 2005. There is, a yawning gap between the State's power to intervene in the elections governed by section 26 of the Act of 2005 vis-à-vis the elections governed by section 13 of the Act.
74. But the question, which crops up for this Court's consideration is, whether the Court should fill in the gap and ratify the actions so taken by the State and/or uphold the orders, which have been passed by the Registrar in exercise of such powers?
75. There is no easy answer to this question. A decision needs to be taken on the basis of the surrounding circumstances, striking a (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (34 of 46) [CW-9390/2024] balance between the allegations vis-à-vis practice being prevalent in the State for the last 20 years.
76. It is to be noted that the Ordinance of 2004 was promulgated and brought into effect by invoking Article 123 of the Constitution and the Rules too were framed simultaneously with the Ordinance. Since, the life of Ordinance was six months, while framing the Rules, the rule making authority had framed rule 11 of the Rules of 2004 in the manner as framed, in order to cover the first election, which were governed by section 26 of the Act of 2005. The rule making authority failed even to conceive that these rules will continue and after the first term of four years is over, elections would again be held in terms of section 13 of the Act of 2005.
77. On surfing through the Rules of 2004, this Court hardly finds any provision, which even makes a reference of the subsequent elections or elections under section 13 of the Ordinance/Act. It is, therefore, a classic case of legislative lacunae or lapse on the part of legislators.
78. Then the question, which emerges is, whether the absence of any provision like rule 11 for the purpose of and dealing with subsequent elections to be held in terms of section 13 of the Act of 2005 is an informed and conscious decision of the State/rule making authority or is an inadvertent error?
79. Mr. Balia, learned Senior Counsel zealously argued that it was the conscious decision of the State Government not to make rule 11 of the Rules of 2004 applicable to the elections governed by section 13 of the Act of 2005 or to provide for any such rule, (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (35 of 46) [CW-9390/2024] which would govern the subsequent elections held under section 13 of the Act of 2005. His stance was that the Act of 2005 was aimed to provide complete autonomy to the sports associations. The arguments so advanced by Mr. Balia essentially rests upon the legislative intent. And there can be no better piece than the statement of objects and reasons, for which a particular enactment was brought in.
80. This Court could lay hands on the statement of objects and reasons, which have been reproduced by the Division Bench of this Court while deciding the case of Kishore Rungta (supra), which statement of objects and reasons have been reproduced in Para No. 49 of the instant order. On sifting through the same and upon perusing opening part of the Act of 2005, this Court finds that the Act of 2005 was enacted in order to provide for registration, recommendation and regulations of Sports Associations.
81. That apart, this Court finds that the legislators in their wisdom thought it expedient to regulate sports associations, so as to create a democratic structure, which would create development of sports persons and would create healthy environment for functioning of sports associations which in turn would nurture, develop and prepare talent for national/international competitions.
82. The statement in unequivocal terms lays down the need and necessity to regulate sports bodies to ensure that they operate in a representative character at all levels and get equal opportunities of representation at District, State, National and International levels so as to achieve excellence in the field of sports. (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (36 of 46) [CW-9390/2024]
83. On wading through the statement of objects, this Court is of the view that petitioners' contention that the Ordinance of 2004/Act of 2005 was enacted in order to ward off State's intervention is unfounded. As a matter of fact, the scheme of the Act of 2005 clearly suggests that the same was introduced to regulate not only the sports activities, but also the persons of the associations dealing with such sports and the Associations.
84. Section 35 of the Act of 2005 provides that any sports association or person aggrieved by an order made by the Registrar under the provisions of this Act may appeal before the Secretary to the Government. Section 35 of the Act of 2005 and various other provisions, clearly speak of the powers of Registrar to pass appropriate orders under the Act of 2005.
85. When the Act of 2005 admits of State's intervention or role of the Registrar, this Court fails to comprehend as to how the election process under section 13 of the Act of 2005 can be said to be immune from State's intervention.
86. When elections under section 26 of the Act of 2005 have, by express provision, been kept open for Registrar's intervention, this Court finds no reason to accept that it was conscious decision of the rule making authority to keep the Registrar out of the scene during subsequent elections governed by section 13 of the Act of 2005.
87. Rule 11 of the Rules of 2004 apparently was a transitory provision and was meant for the first election to be held in terms of section 26 of the Act of 2005, and the rule making authority intended the Registrar to intervene in appropriate cases, hence, (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (37 of 46) [CW-9390/2024] there is no reason to infer that the State did not intend Registrar's role in the subsequent elections.
88. That apart, considering the specific stand, which the learned Advocate General has taken before this Court, that he has already advised the State to suitably modify/amend the rules, this Court is of the view that there is a clear, apparent and inadvertent error on the part of the rule making authority that no provision akin to the provisions contained in rule 11 of the Rules of 2004 was made and no amendment has been introduced, which could govern the subsequent elections under section 13 of the Act of 2005.
89. It is, therefore, a clear case of 'casus omissus'.
90. Then comes the question, whether this Court should fill in the gap and save the impugned action(s) and order(s), which have been passed by the respondent no.2.
91. As has been submitted by the learned Advocate General and is evident from perusal of the order dated 06.03.2020 passed by Jaipur Bench of this Court in S.B. Civil Writ Petition No. 3985/2020 (District Cricket Association, Bharatpur & Anr. vs. Deputy Registrar & Ors.), similar question is pending consideration of this Court. It is, thus, apparent that the Registrar has been resorting to rule 11 of the Rules of 2004 for elections under section 13 of the Act of 2005.
92. Had this issue been decided by this Court and had it been held that rule 11 of the Rules of 2004 is only transitory provision and the same cannot be used for the elections governed by section 13 of the Act of 2005, the State would have perhaps (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (38 of 46) [CW-9390/2024] suitably amended the rules, as has been suggested now by the learned Advocate General.
93. There can be no denial of the fact that the rules being subordinate legislator, cannot be amended retrospectively and the amendment, even if brought-in now, would apply prospectively.
94. This Court is of the considered opinion that if the decisions so far taken are held illegal or void, as claimed by the petitioners, not only the orders passed so far, which are subject matter of pending litigation even other orders, which may be subject to various election disputes or other disputes would be rendered illegal. Such an extreme view by this Court would have repercussions even over the election related disputes.
95. Elections are, in any case, statutory rights and not fundamental rights. This Court, therefore, feels that regardless of the substance and merit in petitioners' contention, the actions so far taken under rule 11 of the Rules of 2004 deserves to be saved/ protected on the principles of governing legislative lapses.
96. It is noteworthy that no separate rule has been framed which would apply to elections covered by section 13 of the Act. Notwithstanding the absence of specific provision, the petitioner Association has initiated the process and appointed Election Officer and published election programme in the spirit of rule 11 of the Rules of 2004. This Court is of the view that when the petitioners themselves were elected and have taken part in the elections, which were held as per rule 11 of the Rules of 2004 or in the spirit of rule 11, they cannot take a U turn and contend that rule 11 is (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (39 of 46) [CW-9390/2024] not applicable simply because the intervention by the Registrar does not suit them.
97. The petitioners' argument is a two edged sword, if it seeks to clip the wings of the Registrar, it also cuts the very genesis of their existence - in absence of rule or procedure prescribed or but for applicability of rule 11, all elections held so far including the petitioners' own election would be a nullity.
98. Hence, if the petitioners' argument is accepted, it would lead to absurdity and chaos. No law can be given such interpretation.
99. According to this Court, such omission or lapse on the part of the State or rule making authority is required to be covered up by the High Court by invoking its plenary powers conferred by Article 226 of the Constitution. A provision, which is being used and a power which is being exercised by the Registrar for last 20 years, deserves to be protected, lest it would beget absurd results.
100. Having gone through the judgments of Hon'ble the Supreme Court, this Court is of the view that the State's plea of 'casus omissus' merits acceptance - the actions so far taken by the Registrar or the State Government while invoking rule 11 of the Rules of 2004 deserves to be insulated.
101. This Court thus, holds that rule 11 of the Rules of 2004 needs to be so read that it is (made) applicable to elections under section 13 of the Act of 2005 as well. Accordingly, in order to avert inequitous results, this Court would fill the hiatus by holding that 'section 13' shall be deemed inserted and read along with section 26 of the Act of 2005, wherever it occurs in rule 11 of the Rules of (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (40 of 46) [CW-9390/2024] 2004. Accordingly, opening para of rule 11 of the Rules of 2004 shall be read as follows:-
"11. Election procedure for Elections under sections 13 & 26(3).- Every Sports Association covered under Chapter VII of the Ordinance, while complying with the provisions of Sections 13 & 26 of the Ordinance shall follow the following procedure for its elections under Sections 13 & 26(3) of the Ordinance-
(1) ... ... ...
(2) ... ... ...
(3) ... ... ...
102. Having held that rule 11 of the Rules of 2004 are applicable to the present elections notified in terms of section 13 of the Act of 2005, the order impugned dated 24.05.2024 is required to be tested on the anvil of the statutory provisions, as they exist, more particularly sub-rules (6) and (7) of rule 11 of the Rules of 2004.
103. Though learned Advocate General's stand was that this issue should be left to be decided by the Appellate Authority under section 35 of the Act of 2005 but since, the preliminary objection raised by him in this regard has already been rejected, and the adjudication of such issue does not require any complex factual determination, this Court feels that all the questions canvassed at the Bar should be answered. The parties cannot be left halfway to go to Appellate Authority.
104. A look at the order dated 24.05.2024, reveals that the complainants had levelled three allegations. The respondent no.2 did not conduct any enquiry and had simply relied upon the complaint/affidavits filed by the complainants and held that 'Virasat Vidhyapeeth' - a private school, is not a public place and (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (41 of 46) [CW-9390/2024] concluded that it cannot be taken as a venue for holding elections. While doing so, the respondent no.2 has also observed that the Election Officer (Surja Ram Bishnoi) has given his residential address for the purpose of correspondence and inviting objections, which is not in accordance with sub-rule (6) of rule 11 of the Rules of 2004.
105. This Court does not find anything objectionable in the decision of the Election Officer, who gave his own address for the purpose of correspondence and receiving objections. There is nothing on record to show that the District Cricket Association, Hanumangarh had its own office or building, where the Election Officer could have sitting after being appointed as an Election Officer, until the elections were over.
106. That apart, sub-rule (6) of the rule 11 of the Rules of 2004 simply provides for 'venue for the elections' and not 'venue for correspondence and receiving objections'. Sub-rule (6) of rule 11 in no ambiguous terms provides that a private residence or a private campus shall not be used for the purpose of conducting elections. The expression "conducting the elections" cannot be construed to mean that the Election Officer cannot even receive objections and correspondence at his residence.
107. According to this Court, receiving nomination papers etc., is a time sensitive exercise, while receiving objections and correspondence is not. Expecting the Election Officer to receive correspondence and the objections at the place where elections were to be held is impractical. Unless an association has its own office or building, and a dedicated place is provided to the Election (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (42 of 46) [CW-9390/2024] Officer, it cannot be said that the Election Officer cannot receive correspondence and objections at his residence.
108. If an Election Officer has given address of his residence for the purpose of correspondence and receiving objections, it cannot be said that the same is contrary to sub-rule (6) of the rule 11 of the Rules of 2004. Such fact cannot per-se be held as a breach of statutory mandate. The fact that correspondence and objections have been asked to be given at the residential address of the election officer by itself, without other material cannot be taken as compromise with the transparency and fairness of the election process.
109. Other reason, for which the Election Officer has been removed is that he has fixed 'Virasat Vidhyapeeth' to be a place for holding elections.
110. This Court does not find any irregularity in fixing 'Virasat Vidhyapeeth' - a private school as venue for the election. Elections can well be held in a school, maybe a private school, unless there is an apprehension rather reasons to believe that the very factum of holding elections at a particular place or a private school would dent the transparency and fairness of the election. If that be so, the Registrar could at the best change the venue of election.
111. The expression 'public place' has not been defined in the Act of 2005 and the Rules of 2004 and hence, the expression is required to be construed in the context of the scheme of the Act. There are catena of decisions of Hon'ble the Apex Court defining 'Public Place' having regard to the concerned enactments. Though, under the provisions of Narcotic Drugs and Psychotropic (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (43 of 46) [CW-9390/2024] Substances Act, 1985, the judgment of Hon'ble the Supreme Court in the case of Directorate of Revenue v. Mohammed Nisar Holia, reported in (2008) 2 SCC 370, can be referred to in which Hon'ble the Supreme Court has held that 'Public place' includes any public conveyance, hotel, shop or other place intended for use by or accessible to the public.
112. A careful reading of sub-rule (7) of rule 11 of the Rules of 2004 shows that it deals with two situations. If the Registrar is satisfied that the appointment of Election Officer is not in accordance with sub-rule (3) of rule 11 of the Rules of 2004, he can cancel the appointment and appoint another officer subordinate to him and in case, he feels that the venue of election is in contravention to sub-rule (6) of rule 11, the Registrar may 'change the venue'.
113. To elaborate it a bit further, it can be said that while exercising powers under rule 11 of the Rules of 2004, the Registrar can 'cancel the appointment' of Election Officer, if the appointment of Election Officer is contrary to sub-rule (3) of rule 11 of the Rules of 2004 and in case, the venue is not in terms of sub-rule (6) of rule 11 of the Rules of 2004, he can 'change the venue'.
114. But, in the instant case, the respondent no.2 has outrightly cancelled the appointment on finding that the venue of election is not in accordance with sub-rule (3) of rule 11 of the Rules of 2004.
115. According to this Court, firstly the conclusion that 'Virasat Vidhyapeeth' is not a public place, was misconceived. If the (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (44 of 46) [CW-9390/2024] respondent No.2 were of such view then, he could not have countenanced the elections being held in a private hotel as was fixed by the election officer he had appointed. Even otherwise, if he were of the view that 'Virasat Vidhyapeeth' is not a public place, he could at the best change the venue, but in no case he could cancel the appointment of Election Officer, as there was nothing on record to show that the appointment of Election Officer (Surja Ram Bishnoi) was contrary to sub-rule (3) of rule 11 of the Rules of 2004.
116. A perusal of the order impugned makes it abundantly clear that the reasons for change of Election Officer were only that the venue of elections is not in accordance with law and that the address given for correspondence for inviting objections is other than the venue of the elections.
117. This Court is of the considered view that the order impugned is clearly illegal and contrary to rule 11(3) and 11(6), more particularly, rule 11(7) of the Rules of 2004.
118. It is an admitted fact that Manju Saharan after being appointed as an Election Officer has conducted proceedings de- novo and elections have been held in a private hotel (Hotel Grand Inn, Town Road), as is evident from election notice dated 25.05.2024 issued by her.
119. Be that as it may. Whether the newly appointed Election Officer was justified in commencing election process afresh or not, is essentially an election dispute and in absence of any pleadings and material, this Court would refrain from dilating upon such issue.
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120. As a consequence of the discussion, impugned order dated 24.05.2024 is quashed and set aside.
121. It is to be noted that by way of order dated 24.05.2024, earlier Election Officer (Surja Ram Bishnoi) was removed from the office. For the reasons best known, regardless of impugned order dated 24.05.2024, the elections have been held by Surja Ram Bishnoi, which cannot be countenanced.
122. True it is, that the petitioners have immediately preferred the present writ petition (on 27.05.2024), and it was the State, which has been taking time. But in the period interregnum the elections ought not to have been conducted by Surja Ram Bishnoi. This Court is of the considered view that in absence of any interim order, the petitioners and said Surja Ram Bishnoi could not have taken unto themselves the charge and ignore the order passed by the respondent no.2. Holding of the elections under the aegis of Surja Ram Bishnoi is like throwing an order of the State authority to winds, which cannot be tolerated in a society governed by rule of law.
123. As a consequence of quashment of the order dated 24.05.2024, the appointment of Manju Saharan, as Election Officer and consequential elections too have been rendered illegal.
124. This Court would also like to observe that since the appointment of Surja Ram Bishnoi, as Election Officer had been cancelled by the respondent no.2, he could not continue to hold the chair of the Election Officer and conduct elections, as has been done by him. The nomination papers so accepted by Surja Ram Bishnoi, after passing of the order dated 24.05.2024 and all (Downloaded on 19/09/2024 at 08:52:32 PM) [2024:RJ-JD:37152] (46 of 46) [CW-9390/2024] consequential actions including declaration of result when taken were clearly illegal and without authority of law.
125. As per the election programme dated 10.05.2024, the date for filing nomination papers was 25.05.2024 and 26.05.2024 from 12:00 p.m. to 5:00 p.m., and on 24.05.2024 before the nominations could be filed, the appointment of said Surja Ram Bishnoi as Election Officer had been cancelled.
126. This Court is, therefore, of the view that the election programme dated 10.05.2024 by legal fiction has remained in hibernation and the same needs to be restarted/commenced from the stage where it was thwarted - stage of filing nomination.
127. The Election Officer, namely Surja Ram Bishnoi is directed to notify fresh election programme on or before 23.09.2024, from the stage of filing nominations.
128. Each eligible candidate will be permitted to file his nomination in accordance with law and the elections shall be held on the basis of valid nominations so filed.
129. It will be required of the respondent no.1, Registrar of the Cooperative Societies to nominate one Observer (other than respondent no.2 and said Manju Saharan) to oversee the elections as per the election programme to be notified pursuant to the order instant.
130. The present writ petition is allowed, accordingly.
131. Stay application also stands disposed of.
(DINESH MEHTA),J C-1, Mak (Downloaded on 19/09/2024 at 08:52:32 PM) Powered by TCPDF (www.tcpdf.org)