Andhra Pradesh High Court - Amravati
The Andhra Cricket Association vs Rafi Ahmad Kidwai on 12 January, 2024
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
MAIN CASE NO.: W.P.No.33002 of 2023
PROCEEDING SHEET
Sl. Date ORDER OFFICE
No. NOTE
05. 12.01.2024 NV,J
Learned counsel for the petitioner submits
that the present impugned order passed by the
Hon'ble Ombudsman dated 27.06.2023 in Case
No.16 of 2023 is without any authority or
jurisdiction and liable to be suspended.
Learned counsel for the petitioner submits
that the impugned order passed by the Hon'ble
Ombudsman pursuant to a complaint filed under
Rule 45(i)(a) of the Andhra Cricket Association
byelaws(hereinafter referred as "the ACA
byelaws") by an applicant, who is a former
Andhra Ranji Trophy player which was numbered
as Case No.16 of 2023 in which he prayed to
grant membership to all the former Andhra Ranji
players with voting rights at petitioner's
Association and to end the disparity of only
executive body to vote in State Association /
petitioner's Association.
NV,J
W.P.No.33002 of 2023
2
Learned counsel for the petitioner further
submits that the order passed the Hon'ble
Ombudsman dated 27.06.2023 is without
jurisdiction and authority, moreover, contrary to
the byelaws of the Association and also to the
judgment rendered by the Hon'ble Supreme
Court in Board of Control for Cricket vs.
Cricket Association of Bihar and others1.
Learned counsel for the petitioner further
submits that after submission of
recommendations by Hon'ble Justice Lodha
Committee to make reforms in the administration
of the Board of Control for Cricket in India
(hereinafter referred as "the BCCI") and its
member State Associations, the Hon'ble Supreme
Court appointed a Committee of Administrators
to oversee the implementation of Justice Lodha
Committee reforms in BCCI as well its member
State units / petitioner's Association. The said
Committee of Administration never directed to
include all the former Ranji players in their
respective State Association. Finally, the
Committee of Administrators framed guidelines
1
(2016) 8 SCC 535
NV,J
W.P.No.33002 of 2023
3
for modifying of BCCI and State Associations
byelaws in accordance with the Lodha Committee
reforms. The said guidelines were accepted by
the Hon'ble Apex Court vide its judgment dated
09.08.2018. In view of the recommendations /
guidelines of the Committee of Administrators,
the claim of the petitioner as well as directions
issued by the Hon'ble Ombudsman is contrary to
the judgment of the Hon'ble Apex Court. He
further submits that the Hon'ble Ombudsman
passed an order directing the petitioner's
association for effecting necessary amendments
to the Rule 3 and 49 of the ACA byelaws and also
restrained the petitioner's association from
holding any general body meetings till completion
of whole process as necessary within period of six
months, is nothing but taking away the legislative
competency of the petitioner's association which
is without jurisdiction and authority on part of
the Hon'ble Ombudsman.
Learned counsel for the petitioner submits
that there is no representation by any one of the
former Ranji Trophy players for seeking
membership except Respondent No.1 herein who
NV,J W.P.No.33002 of 2023 4 sought for full membership / membership with voting Rights in the petitioner's Association on his behalf and all other players. As on today, Respondent No.2 who is a complainant in the Case No.16 of 2023 is not the member of the petitioner's association as defined under Rule 3 of the ACA byelaws. Therefore, any dispute / claim raised by him cannot be entertained by the Hon'ble Ombudsman under Rule 45 of the ACA byelaws. As such the Respondent No.2 /complainant has no locus to make such complaint before the Hon'ble Ombudsman and in turn it would have been rejected.
Admittedly, the byelaws of the petitioner's Association approved on 27.09.2019. The Hon'ble Supreme Court specifically held that the amendments to the byelaws cannot be carried out without its prior leave. As such, the question of amending Rule (3a)(ii)(E), thereby, granting membership to all the former Ranji players does not arise and same is not within the ambit of the Hon'ble Ombudsman.
Learned counsel for the petitioner further submits that the status report of Committee of NV,J W.P.No.33002 of 2023 5 Administrators is only a recommendatory and not mandatory. He contends that in respect of the contention of the learned counsel for the Respondents that this Court has no jurisdiction under Article 226 of the Constitution of India to entertain the present writ petition in lieu of statutory alternative remedy is available under Section 23 of the Andhra Pradesh Societies Registration Act, 2001 is contrary to the ratio held by the Hon'ble Supreme Court in the Board of Control for Cricket in India vs. Cricket Association of Bihar and others2 wherein it is held as follows:
24. Paragraphs 45.2 and 45.3 of the earlier judgment of this Court dated 9 August 2018 reported in (2018) 9 SCC 624 contains the following directions:
"45.2. Upon the registration of the said Constitution of BCCI, each of the members shall undertake registration of their respective Constitutions on similar lines within a period of 30 days thereafter. A compliance certificate must be furnished to the CoA, which shall file a status report before this Court with reference to the compliance undertaken by the State 2 2022 (13) Scale 452 : 2022 INSC 963 NV,J W.P.No.33002 of 2023 6 Associations; and 45.3. In the event that any State Association does not undertake compliance with the above said directions, the directions contained in the orders of this Court dated 07.10.2016 (BCCI v. Cricket Assn. of Bihar, (2016) 10 SCC 23) and 21.10.2016 [BCCI v. Cricket Assn. of Bihar, (2016) 10 SCC 231] shall revive."
Learned counsel for the petitioner also relied upon the ratio laid down by the Division Bench of the High Court of Judicature, Telangana and Andhra Pradesh at Hyderabad in Mohammed Azharuddin vs. Dr. G.Vivekanand and others3 wherein it is held as follows:
81. It is submitted, on behalf of the appellants and others, that the Learned Single Judge had failed to consider whether the extra- ordinary jurisdiction of this Court, under Article 226 of the Constitution of India, could be invoked when the first respondent- writ petitioner had the remedy of questioning the order of the Learned Ombudsman before the competent Court under Section 23 of the Telangana Societies Act, 2001; and a writ of certiorari cannot be sought as the respondent-writ petitioner has an effective alternative remedy to question the order of the Learned Ombudsman-cum-Ethics Officer dated 3 2018 (5) ALD 51 (DB) NV,J W.P.No.33002 of 2023 7 08.03.2018.
82. With regards the contention, urged on behalf of the appellant that the respondent writ petitioner should have been relegated to his remedy of approaching the competent Civil Court under the Telangana Societies Act, it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another adequate remedy may be taken into consideration by the Superior Court in arriving at a conclusion as to whether it should, in the exercise of its discretion, issue a writ of certiorari to quash the proceedings, and ordinarily the Superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any.
But this rule, requiring exhaustion of statutory remedies before the writ is granted, is a rule of policy, convenience and discretion rather than a rule of law, and instances are numerous where a writ of certiorari has been issued inspite of the fact that the aggrieved party had other adequate legal remedies. (King v. Postmaster General Ex prate Carmichael ; Rex v. Wandsworth Justices Ex prate Read ; Halsburys Laws of England, 3rd Edn., Vol. 11, p.130; State of U.P. v. Mohd. Nooh ; Khurshed NV,J W.P.No.33002 of 2023 8 Modi v. Rent Controller, Bombay ; Assistant Collector of Customs v. Soorajmull Nagarmul, AIR 1952 Cal.656).
Learned counsel for the petitioner submits that the petitioner's Association pursuant to compliance of the orders of the Hon'ble Supreme Court, all the international players hails from the entire Andhra area of the petitioners association shall become full members of the association. Accordingly, two men and one woman became the full members of this association. Moreover, apart from international players, two members from Indian Cricket Association (ICA) hails from Andhra Pradesh, shall be the members of the petitioner's Association as per the judgment of Hon'ble Apex Court. He further claims that the Hon'ble Apex Court specifically excluded the Ranji players as full members of BCCI as well as State Associations, since there are thousands / hundreds in number within the respective jurisdiction of concerned State Association, if they were admitted as full members, the balance of administration of associations is at stake. As such, cautiously they were excluded from the full membership of the concerned state association.
NV,J W.P.No.33002 of 2023 9 Respondent No.1 filed counter Affidavit by which he denied the contentions of the petitioner herein.
The learned counsel for the Respondents submits that this Court has no jurisdiction to entertain the present writ petition under Article 226 of constitution of India. The impugned order dated 27.06.2023 passed by the Hon'ble Ombudsman after considering all the aspects, including byelaws, judgments of Hon'ble Apex Court as well as this Court and also after considering the written statement submitted by the petitioner's association herein. He further submits that the petitioner's Association is available with alternative statutory remedy under Section 23 of the A.P. Societies Registration Act, 2001, if aggrieved by the orders of the Hon'ble Ombudsman by invoking original petition before jurisdictional Court of law but not by way of extraordinary jurisdiction under Article 226 of Constitution of India. He further submits that the Committee of Administrators in its status Report categorically states that all the international and national players should provide NV,J W.P.No.33002 of 2023 10 an opportunity to participate in management Committee of Associations. In similar circumstances this Court in V. Durga Prasad vs. Andhra Cricket Association and others4, observed as under:
10. Issue No.3:
As the impugned order is passed exercising the powers under Rule 43, 44 and 45 of Bye-laws of ACA following the procedure contemplated therein and Ombudsman is an independent internal dispute redressal mechanism created as per the directions of the Apex Court in the case of BCCI Vs Cricket Association of Bihar and he is like that of an arbitrator created under the contracts and any breach of Byelaws as held by this Court in the case of Mohammed Azharuddin Vs. K. John Manoj and others, the petitioner has to approach the Civil Court under the provisions of Section 23 of the Andhra Pradesh Societies Registration Act, as the 1st respondent was registered as a Society under Societies Registration Act. This Court found that after receiving the complaint, petitioner was given fair and full opportunity to file counter and lead evidence, show cause notice was also issued and considered explanation and Ombudsman elaborately dealt with all the series of orders passed by it and its compliance before 4 W.P.No.27180 of 2021, dated 16.03.2022 NV,J W.P.No.33002 of 2023 11 conducting elections and filing of counter and was given ample opportunity to defend his case and thereby not violated any principles of natural justice. Hence, contra contentions of the counsel for the petitioner that the 2nd respondent had illegally terminated the petitioner from the elected office of the Secretary of 1st respondent in blatant violation of Article 14 and 19 (1) (g) of the Constitution of India and also contrary to the Bye-laws, Rules and Regulations of the 1st respondent Association, violative of principles of natural justice and contrary to the provisions of the Contempt of Courts Act, 1971 are untenable, as the 2nd respondent has given full and fair opportunity to the petitioner and it has power to impose penalties for the violation of its orders as it is created as per the orders of the Apex Court. Accordingly, it is held that the writ petition is not maintainable before this Court against the impugned order. Accordingly, the Issue No.3 is answered.
The above said ratio is also upheld by the Division Bench of this Court in W.A.No.411 of 2022, dated 19.04.2023 wherein it is held as follows:
8. We gave our anxious consideration to the impugned orders of learned Ombudsman and also the learned single Judge. It must be said that as rightly observed by learned Ombudsman there is a formidable evidence to manifest that the appellant has actively NV,J W.P.No.33002 of 2023 12 participated throughout the election process and the election of the KDCA inspite of prohibitory orders issued by the learned Ombudsman were in force. Except stating that he has done in good faith and five members of the Apex Council have approved the proposal to conduct elections for KDCA, the appellant could not justify his acts before the learned Ombudsman. He being the Secretary of ACA cannot take excuse on the ruse that the majority members of the Apex Council approved the election process. It is his duty to see that the orders of the learned Ombudsman which were issued to follow the guidelines of the Lodha Committee reforms, were implemented in letter and spirit. However, he deliberately violated the order which is manifest from the record. Therefore, he was rightly punished. His argument that the learned Ombudsman has no jurisdiction or authority to take up and enquire the complaint allegations does not hold substance for, learned Ombudsman in Paras 30 & 31 of his order clarified that the enquiry can be initiated in terms of Rule 45(1)(c) though the complaint was not routed 10 through Apex Council since under Rule 45(1)(c), the role of Apex Council was just like a postman who has to receive and deliver the complaints and except that it had no discretion to refuse or to receive the complaints and to scrutinize and to close ultimately. Having regard to the observations NV,J W.P.No.33002 of 2023 13 of the Hon'ble Supreme Court and the guidelines of the Lodha Committee reforms which aimed at safeguarding the game of cricket and to refer the disputes to the learned Ombudsman as an internal mechanism to settle the disputes, the aforesaid observation of the learned Ombudsman can be found to be in correct lines. Thus, at the outset, we do not find any merits in the case of appellant and accordingly, the Writ Appeal is dismissed. No costs.
Learned counsel for the Respondents also relied upon ratio laid down by the High Court for the State of Telangana in Mohd. Azharuddin Vs. K. John Manoj and others5 wherein it is held as follows:
42. So when the circumstances for entertaining a Writ Petition against the Board of Control for Cricket for India are very limited since it is not a 'State' under Art.12 of the Constitution, it is a moot question whether a Writ Petition can be maintained against the 2nd respondent, a Society which is a private body, or against the decision (final or interim) of an Ombudsman of the said Society appointed under Rules/Bye-laws which have no statutory force.5
MANU/TL/0703/2021 NV,J W.P.No.33002 of 2023 14 In view of the ratio laid down by this Court the present writ petition is not maintainable and hence the writ petition is liable to be dismissed in limine.
Heard the learned counsel for the petitioner and learned counsel for the Respondents and perused the material placed before this Court, the preliminary issue fell for consideration before this Court is:
i) Whether this Court is having jurisdiction to entertain the present writ petition or not ?
ii) If so, the petitioner is entitled any interim relief as prayed for.
For perusal of the impugned directions / orders passed by the Hon'ble Ombudsman are extracted as under:
27. In the result accordingly the case is disposed of with the following directions:
1. The Respondent to give membership to the former Ranji players who played at least 5 Ranji Trophy matches representing the Respondent and for the Andhra area previously, and presently, Andhra Pradesh Area, which together with the membership of the former international players shall be equal to or not exceeding 50% of the present General Body Members, formulated by the Apex Council members of the Respondent and the NV,J W.P.No.33002 of 2023 15 District Cricket Associations and others, who are actually the full members of the Respondent and the former International players in future any changes take place in the strength of those General Body Members (apart from the Cricket players who become the General Body Members) from time to time 50% of such strength so changed be taken respectively working out a formula because they (other than players) should have adequate representation in the General Body to safeguard their interest.
6. The Respondent should approach the High Court concerned at the earliest possible time for effecting necessary amendments after complying with the initial formalities noted above under the Rule 49 of the Bye Laws.
7. The whole process should be completed as observed within a period of six months which shall be a Condition President for holding further General Body meeting of the Respondent beyond the said period.
On perusal of the direction No.6 as mentioned above, the Hon'ble Ombudsman himself directed the petitioner's association should approach the High Court at the earliest possible time for effecting necessary amendments to the byelaws of the Association. Apart from this direction, as per Rule 49 of the ACA byelaws specifically prohibits any amendments to the NV,J W.P.No.33002 of 2023 16 byelaws without the leave of the Hon'ble Supreme Court / High Court of Andhra Pradesh. For better understanding Rule 49 of the ACA byelaws is extracted as under:
49. Amendment and Repeal:
These Rules and Regulations of ACA shall not be repealed, added to, amended or altered except when passed and adopted by a 3/4th majority of the Members present and entitled to vote at a Special General Meeting of the General Body conveyed for the purpose or at the Annual General Meeting. Any such amendment will not be given effect to without the leave of the Hon'ble Supreme Court / High Court of Andhra Pradesh.
The contention of the Respondents that there was no representation of the players in the management Committee and that players should be given importance and should be included in the management of the Association is well considered by the Hon'ble Apex Court in Board of Control for Cricket vs. Cricket Association of Bihar and others, wherein it is held as follows:
89. That brings us to the recommendation made by the Committee regarding the formation of a Players' Association. To the extent the recommendation provides for NV,J W.P.No.33002 of 2023 17 establishment of a Players' Association neither the BCCI nor any other association who has intervened has found fault with the view taken by the Committee. What has come under criticism by the BCCI and its supporting associations is the financial assistance which the BCCI is required to give to such an association. On behalf of the BCCI it was contended that cricket players can indeed form an association which they are in any case entitled to form, but that exercise need not be at the expense of the BCCI. The recommendation for financial support to the association is thus all that has been faulted by the BCCI. It was also contended that there was no need for providing any representation for the Association in the Apex Council of the BCCI having regard to the fact that some of the cricketers had in the past held offices in the State Associations and in the BCCI by recourse to the democratic process, without any such reservation.
90. There are three distinct aspects of the recommendation in question. One relates to formation of the Association itself; the second touches the financial support which the BCCI must provide to the Association and; the third deals with the representation given to the Association in the Apex Council. Formation of the Association, as noticed earlier, is not under challenge and rightly so for cricket players have a fundamental right to form an NV,J W.P.No.33002 of 2023 18 association even independent of the recommendation. The question is whether the association needs to be financially supported by the BCCI. The Committee has recommended such financial support but has stopped short of specifying the extent of such support. It would, therefore, be reasonable to presume that the extent of financial support which the association may be given is left to the discretion of the BCCI. If that be so, we do not see any merit in the objection raised by the BCCI that such support need not be given or would unduly burden the BCCI. An association of cricket players would doubtless give to the cricketing community not only an opportunity to contribute to the promotion of the game but a sense of participation also so very important for the promotion of a game that brings so much joy and feelings of nationalism among our countrymen. Financial support, to the extent possible, having regard to the resources available with the BCCI and its financial commitments in other areas relevant to the game is not therefore an unacceptable idea. The recommendation requiring financial support to the players association cannot therefore be rejected especially when the extent of such support is left to the BCCI to be decided on a fair and objective view of its financial resources and commitments.
NV,J W.P.No.33002 of 2023 19 As contended by the learned counsel for the petitioner and as per the judgment rendered by the Hon'ble Supreme Court in Board of Control for Cricket in India and others vs. Cricket Association of Bihar and others6, held as under:
"44. We approve the above clauses. We are emphatically of the view that once the draft Constitution has been approved by this Court, any amendment should not be given effect to without the leave of this Court."
Therefore, any amendments to the byelaws cannot be made without the leave of the Hon'ble Supreme Court / High Court of Andhra Pradesh. In the present case in hand the directions of the Hon'ble Ombudsman should be complied with by way of carrying amendments to the existing byelaws of the association.
Further it is observed that Rule 49 of the byelaws of the petitioner's Association mandates that any such amendment will not be given effect to without the leave of the Hon'ble Supreme Court / High Court of Andhra Pradesh. 6 (2018) 9 SCC 624 : 2018 SCC Online SC 875 NV,J W.P.No.33002 of 2023 20 In view of the above analysis any such amendment will not be given effect to without the leave of the Hon'ble Supreme Court or High Court of Andhra Pradesh. Therefore, the impugned order of the Hon'ble Ombudsman is certainly amenable to the jurisdiction of this Court.
In view of the above analysis and on perusal of the ratio laid down by the Hon'ble Supreme Court in Board of Control for Cricket vs. Cricket Association of Bihar and others, the issue is answered in favor of the petitioner.
On perusal of direction No.7 of Hon'ble Ombudsman as mentioned supra the power / authority and legislative competency of the petitioner's Association was taken away by restraining the Association not to conduct any general body meetings till the completion of whole process as directed is contrary to the byelaws of the Society and out of the jurisdiction and authority.
Therefore, the order of the Hon'ble Ombudsman restraining the petitioner's Society not to conduct any general body meetings till completion of entire process as directed is liable NV,J W.P.No.33002 of 2023 21 to be suspended.
Accordingly, there is a prima facie case and balance of convenience in favour of the petitioner. Hence, this Court is of the considered opinion that the order passed by the Hon'ble Ombudsman is liable to be suspended for a short period for further adjudication of the matter.
Accordingly, there shall be an interim suspension in operation of directions 6 and 7 of the order dated 27.06.2023 passed in Case No.16 of 2023 on the file of the Hon'ble Ombudsman of petitioner's Association, for a period of four weeks.
Post the matter after three weeks.
________ NV, J knr