Rajasthan High Court - Jaipur
Govind Narayan Sharma S/O. Late Shri ... vs Rajasthan State Sports Council on 5 July, 2019
Author: Veerendra Singh Siradhana
Bench: Veerendra Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 11238/2019
Govind Narayan Sharma S/o. Late Shri Panna Lal Sharma,
Aged About 62 Years, R/o. 11/77, Dhuleswhar Garden, Near
Mahadev Temple, Ajmer Road, Jaipur.
----Petitioner
Versus
1. Rajasthan State Sports Council, Sawai Mansingh
Stadium, Jaipur Through Its Secretary.
2. Rajasthan State Kabbaddi Association, Registered
Office At 2 Akansha Ajmer Road, Jaipur, Through Its
President
3. Ameteur Kabaddi Federation Of India, (Akfi) Through
Its Administrator, E-386, Basement, Cabin-B, Greater
Kailash Part-1, New Delhi-110048.
4. Ameteur Kabaddi Federation Of India, (Akfi) Through
Its President, 7-1-414/17/b, Srinivasa Colony (East)
Ameerpet, Hyderabad-500038.
5. Jt. Secretary, Rajasthan State Kabbaddi Association,
Registered Office At 2 Akansha Ajmer Road, Jaipur,
Through Its President
6. Tejsvi Singh, President, Rajasthan State Kabbaddi
Association, Registered Office At 2 Akansha Ajmer
Road, Jaipur.
----Respondents
For Petitioner(s) : Mr. S.R. Surana, Sr. Counsel with
Mr. Rajeev Surana
For Respondent(s) : Mr. K.K. Sharma, Sr. Counsel with
Mr. Madhusudan Singh Rajpurohit,
Mr. Ravi Bhojak
HON'BLE MR. JUSTICE VEERENDRA SINGH SIRADHANA
Order
05/07/2019
When the matter came up on 4th July, 2019, Mr.
Madhusudan Singh Rajpurohit, Advocate, entered caveat on
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behalf of respondent No.1 and 6. Counsel for the petitioner
furnished a copy of the writ application, along with annexures thereto, to Mr. Madhusudan Singh Rajpurohit. Looking to the urgency expressed and prayer for interim relief insisted upon; the matter was posted for today i.e. 5 th July, 2019. Response to the writ application has been filed on behalf of respondent No.1 and 6, who are contesting parties Mr. Kamlakar Sharma, learned Senior Counsel with Mr. Madhusudan Singh Rajpurohit, appearing on behalf of respondent No.1 and 6, raised preliminary objections as to the very maintainability of the writ petition under Article 226 of the Constitution of India before this Court relying upon an opinion of a Coordinate Bench of this Court in the case of Dr. Shobha Singh VS. Rajasthan State Sports Council and ors.:SBCWP 12659/2016, decided on 4th December, 2017, Indira Kumari Vs. The State of Raj. And ors.:SBCWP No. 16703/2017, decided by a Coordinate Bench of this Court, at Principal Seat, Jodhpur, on 19th December, 2017. Reference has also been made to the opinion of a Division Bench of this Court in the case of Gopilal Vs. State of Rajasthan and Ors.: AIR 1979 Rajasthan 74 and Bhurekhan Vs. State of Rajasthan and 14 ors.: 1976 WLN 73.
Opinion of the Apex Court of the land in the case of Empire Jute Company Limited and ors. Vs. Jute Corporation of India Limited and anr.:(2007)14 SSC 680, has also been relied in support of the stand.
(D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (3 of 12) [CW-11238/2019] Per contra; Mr. S.R. Surana, learned Senior Counsel with Mr. Rajeev Surana, repelling the preliminary objections, contended that jurisdiction under Article 226 of the Constitution of India of judicial review is not barred in view of availability of alternative remedy, as has been held by the Apex Court of the land in the case of Bharti Reddy Vs. State of Karnataka and Ors.: (2018) 12 SCC 61, Satwati Deswal Vs. State of Haryana and ors.: (2010) 1 SCC 126 and L.K. Verma Vs. HMT Ltd. and Anr.: (2006) 2 SCC 269.
For appreciation of the controversy raised herein, the minimal facts of the case which needs to be taken note of are:
that the petitioner-General Secretary of Rajasthan State Kabaddi Association (for short, 'RSKA'), has called in question the 'No Confidence Motion' carried out against him on 23 rd June, 2019, for he was duly elected office bearer(s) of RSKA.
Learned Senior Counsel for the petitioner contended that the entire proceedings have been conducted illegally and contrary to the provisions of the RSKA Bye-laws. Under the bye-laws, of the association procedure for 'No Confidence Motion' has been specifically detailed out. Further, the petitioner being General Secretary, is the only authority to issue notice to call for a meeting of General Council and he did issue a notice for such a meeting that was to be held on 14 th July, 2019.
However, in order to dislodge the petitioner from the elected post of General Secretary though his tenure commenced w.e.f. 2016 to 2020; the President, in a vindictive (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (4 of 12) [CW-11238/2019] manner, directed the Joint Secretary to call for the meeting and carried out the 'No Confidence Motion', against the petitioner It is further pointed out that in view of the ongoing election process, the petitioner would be deprived of his legitimate right, if interim order is not granted in his favour at this stage.
I have heard the learned counsel for the parties and with their assistance perused the materials available on record as to the preliminary objections as to the very maintainability of the writ application in view of efficacious alternative remedy available to the petitioner.
Indisputably, the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 (for short, 'Act of 2005'), under Section 16, contemplates Conciliation and Arbitration for settlement of disputes, which reads thus:
"16.Conciliation and Arbitration.- (1) If any dispute arises touching the constitution, management activity, election or claim to affiliation of any Sports Association, the same shall be resolved through conciliation and arbitration.
(2) The Arbitration and Conciliation Act, 1996 (Central Act No.26 of 1996), as amended from time to time, shall apply to the conciliation and arbitration proceedings, referred under sub-section (1)."
It is also not in dispute that the Bye-laws of RSKA provides under clause 10(t) for removal of office bearer(s) of any of the Association by a resolution passed by two-third majority of the total strength of the Association. It would be (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (5 of 12) [CW-11238/2019] relevant, at this juncture, to take note of the text of clause 10(t), which reads thus:
"(t) Any office bearer of the Association may be removed by the General Council by a resolution passed by a two-third majority of the total strength of the Association."
Further, Clause 14, the Bye-laws of the Association, contemplates, duties of the office bearers. The President is entitled to preside at all meetings of the General Council and of the Executive Committee. Being a Chief Officer, he is also entitled to call for the meeting of the Executive Committee and the General Council through the Hony. General Secretary as and when necessary and shall perform such other duties attached to his office. Under sub-clause 4 of Clause 14, the Hony. General Secretary, is required to carry out on all correspondence on behalf of the association and shall issue notices of meetings and record minutes of the same. Here, it will be relevant to take note of the text of contents of sub- clause 4 of Clause 14, which reads thus:
"14. DUTIES OF THE OFFICE BEARERS:
1. PRESEDENT: The President shall be the Chief Officer of the association. He shall preside at all meetings of the General Council and of the Executive Committee and the general council through the Hony. General Secretary as and when necessary and shall perform such other duties attached to the office, he holds, in case of a tie he shall have a casting vote.
2. CHAIRMAN: The Chairman shall be the Joint Chief Officer of the Association. He shall exercise all such powers in the absence of the President.
3. VICE PRESIDENT: One of the Vice President shall be elected over the meeting of the General Council in the absence of the President of Chairman, who shall also have a casting vote to resolve a tie while presiding over the meeting in the absence of the President or Chairman.
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4. HONY. GENERAL SECRETARY: He shall be the Chief Executive Officer of the Association. He shall exercise all executive functions subject to the control of the Executive Committee or General Council. He shall give affect to the resolutions of the council. He shall carry on all correspondence on behalf of the association and shall issue notices of meetings and record minutes of the same. He shall also maintain other records and registers. He will be the custodian of all the papers and properties of the Association. He shall carry out all such duties as may be entrusted to him by the council from time to time. An imprest of Rs.100/- shall be given to the Hony. Secretary to be recouped from time to time. He shall guide the Association on all matters of policy. He shall represent the association in the meetings of A.K.F.I. and R.O.A. and other meetings."
From the materials available on record, it is evident that the petitioner was called upon by the President (respondent no.
6), to issue a notice for meeting to be convened on 23 rd June, 2019, Sunday at 11:30am, at Hotel Shyam Paradise, DCM, Ajmer Road, Jaipur. However, the petitioner issued notice for 14th July, 2019 for such a meeting. It is in this factual matrix that the President, being Chief Officer of the Association, exercising powers under the bye-laws of the Association, ensured holding of the meeting on 23 rd June, 2019, wherein 'No Confidence Motion' has been successfully carried out against the petitioner as 26 out of 28 members present, voted against the petitioner. It was only District Dausa, which did not participate in the 'No Confidence Motion'.
In the case of Dr. Shobha Singh (supra), a Coordinate Bench of this Court while dealing with somewhat identical controversy between the office bearers of Hockey Rajasthan, a registered society, observed thus:
"Aside of aforesaid, Mr. Ravi Bhojak and Mr. Angad Mirdha counsel for respondents submitted that Section 16 of the Rajasthan Sports (Registration, Recognition and Regulation (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (7 of 12) [CW-11238/2019] of Associations) Act, 2005 (hereafter `the Act of 2005') provides that any dispute inter alia touching the constitution, management activity, election or claim to affiliation of any Sports Association, same shall be resolved through conciliation and arbitration. And the Arbitration and Conciliation Act, 1996 (hereafter `the Act of 1996') is to apply to such conciliation and arbitration proceedings. It was submitted that a bare look at the prayer clause of the writ petition indicates that it relates to the AGM of Hockey Rajasthan and passing of resolutions. These acts comes within the words of "management activity". The disputes are therefore amenable to arbitration under the Act of 1996. Therefore the petitioner has an alternative remedy under the Act of 1996. Besides of prohibition from interference in arbitrable matters by the courts under Section 5 thereof is also operative, they submitted. Reference has been made to the judgment in the case of Empire Jute Company Limited Vs. Jute Corporation of India Limited [(2007)14 SCC 680].
Mr. Jai Raj Tantia submitted that the present petition is a mere camouflage to lay a petition under Article 226 of the Constitution of India for challenging the resolution of AGM of respondent Hockey Rajasthan, for which the Rajasthan State Sports Council has been impleaded without any cause of action arising against it or relief against it being sought.
Heard. Considered.
For reason of the multiple objections raised i.e. as to availability of the alternative remedy of arbitration and conciliation under the Act of 1996 to the petition, the respondent Hockey Rajasthan not falling within Article 12 of the Constitution of India, and its actions not being open to challenge in a petition under Article 226 of the Constitution of India, and no relief being claimed against the Rajasthan State Sports Council, impleaded only with the intent of camouflaging the petition as maintainable which otherwise is not, I am not inclined to entertain the petition.
The petition accordingly stands dismissed."
Relying upon the opinion of the Apex Court of the land in the case of Empire Jute Company Limited and ors., a (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (8 of 12) [CW-11238/2019] Division Bench of this Court in the case of Bhurekhan (supra), observed thus:
"5. In Radbey Shyam's case: 1972 WLN 772 the notice for convening a meeting issued by the Collector was defective as much as that it did not comply with the mandatory requirement of Section 72(3) of the Act but that defect in the notice did not in any manner effect the opinion of the members and, therefore, this Court observed that, "it is true that when the mandatory provisions of law have been violated while despatching the notice to bold the meeting on September 18, 1971 it would go to vitiate the result of the meeting, but I cannot forget that I am entertaining the petition of the petitioner in the exercise of a jurisdiction which is entirely discretionary. The traditions of democracy require that a person who wants to hold the elected office of a local body must give due respect to the wishes of the majority of the members of that body and if he has lost the confidence of that majority then he should not try to stay in that office even for a moment and should not come forward to seek the protection of this Court under the extraordinary jurisdiction conferred by Article 226 of the Constitution. This jurisdiction is of a equitable nature and in equity if a petitioner does not come with clean bands the is not entitled to seek any remedy from the Court.
6. It was further observed in that case, "In order to create healthy conventions for the functioning of democracy in the country, it is necessary that this Court should be slow to, hold the person in his attempt to stick to his elected office eyen after the unequivocal declaration of the majority that be has lost their confidence, the court should show its reluctance to allow such persons to invoke this extraordinary jurisdiction.
7. In the instant case out of 12 members 9 persons voted for the motion of no confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the Presiding Officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating Tehsildar and not by the Tehsildar himself cannot invoke any sympathy in favour of Bhure Khan. The discussion, in the above cited case clearly (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (9 of 12) [CW-11238/2019] indicates that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant bas lost his right because of his act that the members have lost faith in him and, therefore, in such circumstances this Court should no allow itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are, therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail.
The appeal is, therefore, dismissed with costs." A Coordinate Bench of this Court at Principal Seat at Jodhpur in the case of Indira Kumari (supra), observed thus:
"Learned counsel for the petitioner has argued that the no- confidence motion moved by the twenty members of the Municipal Board, Sanchore is illegal as no proposed resolution expressing no-confidence in the petitioner was submitted along with the notice of no-confidence motion.
Apart from that, way back in 1972, the Division Bench of this Court in Bhurekhan vs. State of Rajasthan & 14 Ors. reported in 1976 WLN 73, dealing with the case regarding no-confidence motion against a Sarpanch has held as under:
"3. Learned Government Advocate and the counsel appearing on behalf of the respondents raised a preliminary issue before this Court that even if this Court comes to the conclusion that the officiating Tehsildar had no authority to preside over the meeting, the court should not interfere with the judgment of the learned single Judge who has dismissed the appellant's writ petition on a consideration well founded in the democratic world and, therefore, the appeal should be dismissed without going into the merits of the matter raised by the appellant. In support of this preliminary objection reliance has been placed on an authority of this Court in Radhey Shyam v. Vijai Singh, District Magistrate, Ganganagar and Ors., 1972 WLN 772.
4. The facts mentioned above have not been disputed by the parties. It is also admitted by Mr. Agrawal appearing on behalf of the appellant that the objection raised by him is undoubtedly of a highly technical nature but his contention is that in democracy when the meeting is to be conducted in a prescribed manner, it should be done strictly in accordance with the (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (10 of 12) [CW-11238/2019] procedure laid down by the law otherwise in the eye of law the meeting conducted in contravention of the prescribed procedure shall be deemed as if no meeting had ever taken place and, therefore, if the meeting was presided over by an officer who was not competent under the law, it cannot be said that the intention of the members was correctly found out,
5. In Radhey Shyam's case 1972 WLN 772 the notice for convening a meeting issued by the Collector was defective inasmuch as it did not comply with the mandatory requirement of Section 72(3) of the Act but that defect in the notice did not in any manner affect the opinion of the members and, therefore, this Court observed that "it is true that when the mandatory provisions of law have been violated while despatching the notice to hold the meeting on 18th September, 1971 it would go to vitiate the result of the meeting but I cannot forget that I am entertaining the petition of the petitioner in the exercise of a jurisdiction which is entirely discretionary. The traditions of democracy require that a person who wants to hold the elected office of a local body must give due respect to the wishes of the majority of the members of that body and if he has lost the confidence of that majority then he should not try to stay in that office even for a moment and should not come forward to seek the protection of this Court under the extraordinary jurisdiction conferred by Article 226 of the Constitution. This jurisdiction is of a equitable nature and in equity if a petitioner does not come with clean hands he is not entitled to seek any remedy from the Court."
6. It was further observed in that case "In order to create healthy conventions for the functioning of democracy in the country, it is necessary that this Court should be slow to help the person in his attempts to stick to his elected office even after the unequivocal declaration of the majority that he has lost their confidence, the court should show its reluctance to allow such persons to invoke this extraordinary jurisdiction."
7. In the instant case out of 12 members 9 persons voted for the motion of no-confidence against Bhure Khan appellant. It is clear from this voting that Bhure Khan had lost confidence of 3/4th of the members of the Panchayat. Bhure Khan was present in the Panchayat when the motion was moved. He does not say that the Presiding Officer in any manner showed any bias against him therefore this technicality that the meeting was presided over by an officiating Tehsildar and not by the Tehsildar himself cannot invoke any sympathy in favour of Bhure Khan. The discussions in the above cited case clearly (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (11 of 12) [CW-11238/2019] indicate that the agency of the court cannot be employed as an instrument to stick to a job where the petitioner or the appellant has lost his right because of the fact that the members have lost faith in him and, therefore, in such circumstances this Court should not allow itself to act as a medium for permitting unhealthy convention for the working of democratic institution. We are therefore, inclined to hold that the preliminary objection raised by the opposite party must prevail."
The ratio laid down by the Division Bench of this Court in the above referred case applies to the present case also. Twenty members of the Municipal Board have filed no-confidence motion against the petitioner. It is not the case of the petitioner that those twenty Members do not constitute three- forth of elected Members of the Municipal Board, Sanchore. This Court while exercising discretionary powers is not inclined to interfere in the matter purely on technical grounds." Applying the principles deducible from the opinions aforesaid and law declared by the Apex Court of the land, it is evident that while exercise of jurisdiction under Article 226 of the Constitution of India, of Judicial Review is not ousted only on account of availability of alternative remedy, yet, the discretion is to be exercised keeping in view the factual matrix of each case.
In the instant case at hand, the petitioner-Hony. General Secretary, was called upon to call for meeting of Council that was to be convened on 23rd June, 2019, which he did not comply with despite of a specific direction to that effect by the President of the Association (respondent No. 6).
In the singular factual matrix aforesaid without going into merits of the case, I am not inclined to entertain the writ application in exercise of writ jurisdiction under Article 226 of the Constitution of India.
Accordingly, writ petition is dismissed in view of alternative remedy available. However, the petitioner would be at liberty to avail of alternative remedy under the provisions of (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) (12 of 12) [CW-11238/2019] Constitution/Memorandum of Association of Rajasthan State Kabbaddi Association in accordance with law.
(VEERENDRA SINGH SIRADHANA),J Pcg/ (D.B. SAW/1104/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 30/08/2019 at 09:41:13 PM) Powered by TCPDF (www.tcpdf.org)