Rajasthan High Court - Jaipur
Rajasthan Cricket Association vs State Of Rajasthan Through The ... on 10 December, 2018
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 24659/2018
1. Rajasthan Cricket Association, Through Its President Dr.
C.P. Joshi, Rajasthan Cricket Association, North Block,
Sms Stadium, Jaipur.
2. Dr.C.P. Joshi, Elected President, Rajasthan Cricket
Association, A-621, Govind Marg, Malviya Nagar, Jaipur.
----Petitioners
Versus
1. State Of Rajasthan Through The Principal Secretary,
Department Of Sports And Youth Affairs, Secretariat,
Jaipur.
2. The Registrar, Co-Operative Societies, Rajasthan, Sahakar
Bhawan, 22 Godown Circle, Jaipur.
3. Board Of Control For Cricket India (Bcci), 4Th Floor,
Cricket Centre, Wankhede Stadium, D Road, Churchgate,
Mumbai 400020 Through Its Secretary.
4. Sh. Devendra Bhushan Gupta, Chief Secretary, State Of
Rajasthan, Secretariat, Jaipur.
5. Mr. Neeraj K. Pawan, Registrar, Cooperative Societies,
Rajasthan, Sahakar Bhawan, 22 Godwn Circle, Jaipur.
6. Rajasthan State Sports Council, Sms Stadium, Jaipur
Through Its Secretary.
7. District Cricket Association, Pali Through Its Secretary
Shri Dharamveer Singh.
8. District Cricket Association, Banswara Through Its
Secretary Shri Nripjit Singh.
9. District Cricket Association, Alwar Through Its Secretary
Shri Pawan Goyal.
10. District Cricket Association, Baran Through Its Secretary
Shri Ramesh Gupta.
11. District Cricket Association, Jalore Through Its Secretary
Shri Satish Vyas.
12. District Cricket Association, Nagaur Through Its Secretary
Shri Rajendra Singh Nandhu.
13. District Cricket Association, Pratapgarh, Through Its
Secretary Shri Pinkesh Kumar Jain.
(2 of 41) [CW-24659/2018]
14. District Cricket Association, Dholpur Through Its
Secretary Shri Sumendra Tiwari.
15. District Cricket Association, Bharatpur Through Its
Secretary Shri Shatrudhan Tiwari.
16. District Cricket Association, Jodhpur Through Its
Secretary Shri Ram Prakash Choudhary.
17. The Convener, Adhoc Committee, Rajasthan Cricket
Association, Jaipur.
----Respondents
For Petitioner(s) : Mr. R.P. Singh Sr. Adv. with Mr. Shashi
Kant Saini Adv. & Mr. Rajesh Maharshi
Adv.
For Respondent(s) : Mr. G.S. Gill AAG, Mr. Sudhir Gupta
Adv., Mr. Umang Gupta Adv., Mr.
Angad Mirdha Adv. Mr. S.S. Hora Adv.,
Mr. Sandeep Pathak Adv., Mr. Sandeep
Singh Shekhawat Adv. Ms. Vandana
Sharma Dy. G.C., Mr. Ajay Choudhary
Adv., Ms. Shweta Chauhan Adv., Mr.
Tanuj Gupta Adv., Ms. Anukriti Jain
Adv. & Ms. Aditi Khandelwal Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
10/12/2018
1. The instant writ petition was initially filed by the Rajasthan
Cricket Association through its President Dr. C.P. Joshi, Rajasthan
Cricket Association, North Block, S.M.S, Stadium, Jaipur. This
Court had issued notices on 3.11.2018 of the writ petition as well
as of the stay application, returnable within two weeks. The
application No. 85745/2018 was filed for impleadment of the
Rajasthan Cricket Association through the Convenor as party
respondent. The said application was not pressed by the counsel
on 03.11.2018. The application No.85744/2018 was filed for
seeking dismissal of the writ petition as the petitioner used the
(3 of 41) [CW-24659/2018]
name of Rajasthan Cricket Association and the said application
was to be decided later on, as per the order dated 03.11.2018.
The present application is decided by this court while passing the
present order.
2. On 3.11.2018 application No. 85743/2018 was filed for
impleadment of District Cricket Association, Nagaur as party
respondent and the same was allowed by this Court. Application
No. 85742/2018 was filed for impleadment of District Cricket
Association, Pali, Baswara, Alwar, Baran & Jalore as party
respondents and same was allowed by this Court. The Application
No.85744/2018 filed for dismissal of the writ petition using the
name of the Rajasthan Cricket Association was ordered to be
decided later on vide order dt. 3.11.2018.
3. The petitioner filed an application No. 86992/2018 to add Dr.
C.P. Joshi, elected President of Rajasthan Cricket Association as
petitioner No. 2 and it was submitted that Dr. C.P. Joshi was
inadvertently left out due to bonafide oversight and the said
application was allowed by this Court vide order dt. 26.11.2018.
4. The Application No. 88645/2018 was filed by other District
Cricket Associations like Pratapgarh, Dholpur, Bharatpur and
Jodhpur which was allowed and they were ordered to be
impleaded as party respondents by this Court. The Application
No. 88004/2018 was filed for impleadment of Convener of the ad-
hoc Committee, Rajasthan Cricket Association as party
respondents, was allowed by this Court, after taking note of the
objection of the counsel for the petitioner.
5. Counsel for the petitioner on 26.11.2018 had made a request
that since notices of the stay application have been issued and
there is a specific prayer to restrain the adhoc Committee to
(4 of 41) [CW-24659/2018]
conduct fresh elections of the Rajasthan Cricket Association, as
such urging the urgency, this Court was asked to hear on stay
application. On objection being raised by counsel for the
respondents that no such notice for election has been placed on
record and only on verbal request, the election could not be
stayed, confronted with this, counsel for the petitioners sought
time to file formal application/affidavit placing on record the notice
for election and this Court granted opportunity to file reply to the
writ petition and stay application.
6. On 3.12.2018, matter came up for considering the prayer
made in the second stay application and since counsel for the
respondents raised an objection of not receiving the copy of the
second stay application, this Court granted time to counsel for the
respondent to file reply to the second stay application. This Court
also allowed certain other District Cricket Associations like Sawai
Madhopur and Hanumangarh to become intervener in the writ
petition and to address this Court on legal and factual aspects.
7. This Court on 6.12.2018 heard all the learned counsel and
further directed counsel for the BCCI-Mr. Angad Mirdha to file an
affidavit of a responsible officer on BCCI about the stand of the
BCCI as whether the amendments made by adhoc Committee of
Rajasthan Cricket Association, which are carried out as per Lodha
Committee, if they need approval before conducting the election
by following election protocol or whether any permission/approval
is required from the Supreme Court before conducting the election
of the Rajasthan Cricket Association.
8. Counsel for the respondent-Sudhir Gupta learned counsel
appears on behalf of respondent No. 17-Convenor, adhoc
Committee, Rajasthan Cricket Association, Jaipur has filed reply to
(5 of 41) [CW-24659/2018]
the stay application. Counsel for the respondents Nos. 7-11 has
also filed reply to the stay application and raised preliminary
objection about maintainability of the writ petition. Mr. G.S. Gill,
AAG, has filed reply to the writ petition on behalf of respondent
Nos 1-5.
9. The petitioners in the instant petition have challenged the
order dt. 18.09.2018 passed by the Registrar, Co-operative
Societies, Rajasthan, Jaipur. The Registrar by the said order has
replaced the elected body of Rajasthan Cricket Association with an
adhoc Committee exercising the power under Section 24 of the
Rajasthan Sports (Registration, Recognition and Regulation of
Associations) Act, 2005 (hereinafter shall be referred as "the Act
of 2005"). The Registrar has constituted an adhoc Committee of 8
persons. The operative portion of the order passed by the
Registrar is reproduced as hereunder:-
"vr% jktLFkku fØdsV ,slksfl,'ku ds laca/k esa djokbZ xbZ tkap ds
Øe esa iwoZ esa of.kZr fcUnq la[;k 1 ,oa 2 esa mYysf[kr vkjksi izekf.kr
ik;s tkus ds vk/kkj ij jktLFkku ds fØdsV [ksy ds fgr dks /;kku esa
j[krs gq, jktLFkku ØhMk¼laxeksa dk jftLVªhdj.k] ekU;rk vkSj
fofu;eu½ vf/kfu;e] 2005 dh /kkjk 24¼1½¼d½ ds vUrxZr ,slksfl,'ku
esa ,rn~}kjk fuEukafdrkuqlkj ,d rnFkZ dk;Zdkjh lfefr dh fu;qfDr
dh tkrh gS%&
Ø-la- Ukke in
1 Jh fouksn lgkj.k] lfpo] ftyk fØdsV la;kstd
,lksfl,'ku] Jh xaxkuxj
2 Jh 'k=q?ku frokjh] lfpo] ftyk fØdsV lnL;
,lksfl,'ku] Hkjriqj
3 Jh fxfjjkt luk<~;] lfpo] ftyk lnL;
fØdsV ,lksfl,'ku] jktleUn
4 Jh jkts'k lkjLor] dks"kk/;{k] ftyk lnL;
fØdsV ,lksfl,'ku] djkSyh
5 Jh jru flag] lfpo] ftyk fØdsV lnL;
,lksfl,'ku] chdkusj
6 Jh u`ithr flag] lfpo] ftyk fØdsV lnL;
,lksfl,'ku] ckalokMk
(6 of 41) [CW-24659/2018]
7 Jh nhid jkt] lfpo] ftyk fØdsV lnL;
,lksfl,'ku] lokbZek/kksiqj
8 Jh /keZohj flag 'ks[kkor] lfpo] ftyk fØdsV lnL;
,lksfl,'ku] ikyh
mDrkuqlkj fu;qDr rnFkZ dk;Zdkjh lfefr dks funsZf'kr fd;k
tkrk gS fd og rhu ekg ds Hkhrj&Hkhrj mifu;ekuqlkj jktLFkku
fØdsV ,slksfl,'ku dh dk;Zdkjh lfefr ds u;s fuokZpu djokdj
v/kksgLrk{kjdrkZ dks lwfpr djsaxsA"
10. The petitioners in the instant petition have made following
prayers:-
"It is, therefore, prayed that your lordships may very
graciously be pleased to accept and allow this writ
petition and;
i) by way of writ, order or directions the order dated
18 th
September 2018 appointing adhoc committee
replacing the elected body may kindly be quashed and
set aside;
ii) by way of writ, order or directions the letter dated
20 th
September 2018 rejecting the constitution
submitted by the petitioner may kindly be quashed and
set aside;
iii) by way of writ, order or directions the Registrar,
Cooperative Societies may kindly be directed to accept
the constitution submitted by the petitioner on 20 th
September 2018;
iv) by way of writ, order of directions the Registrar
may kindly be directed to reject the constitution
submitted by the adhoc committee;
v) by way of writ, order or directions the Registrar
may kindly be directed to stop the functioning of the
adhoc committee;
vi) by way of writ, order or direction the respondent
No.6 may kindly be directed to hand over the SMS
stadium to the petitioner Association;
vii) by way of writ, order or directions the respondents
may kindly be directed not to create any
hurdle/obstacles in the functioning of the elected body;
viii) any other writ, order or directions to which the
petitioner may be entitled to in the circumstances of the
case may be issued in his favour;
ix) cost of the writ petition may be awarded in favour
of the petitioner."
11. The perusal of the writ petition shows that Registrar-
respondent No. 5 has been impleaded party by name and in the
(7 of 41) [CW-24659/2018]
memo of petition in para 67 it has been averred by the petitioner
that Registrar has overreached and passed the impugned order in
spite of direction of this Court dt. 24.08.2018 which directed that
if the Registrar Societies proceeds in the matter, it would remain
subject to outcome of the writ petition. It is stated in para 67 that
Registrar has passed the final order and adhoc Committee has
been given peremptory directions and further Registrar by defying
the directions of this Court, directed the adhoc Committee to hold
fresh election within three months. The petitioner has alleged
malafides against the Registrar and accordingly, the Registrar has
been made party by name.
12. The further perusal of the writ petition makes a reference
that adhoc Committee so constituted by the order of the Registrar
started functioning regularly and accordingly they issued a circular
dt. 22.09.2018.
13. The petitioners in para 70 of the writ petition have stated
that respondent No. 4-Chief Secretary has been deliberately
orchestrating the moves against the petitioner on askance of a
particular person. The petitioner No.2 has alleged that the entire
move against the petitioner is directed from high level and the
alternative remedy available under the Act of 2005 would not be
efficacious at all as filing of appeal would be virtually from Caesar
to Caesar's wife that is an empty formality and a futile attempt, as
has been laid down by the Apex Court in catena of cases. The
petitioners have pleaded that non entertainment of petition under
writ jurisdiction is a rule of self imposed limitations and it is
essentially a rule of policy, convenience and discretion rather than
a rule of law. The petitioners have further pleaded that once Mr.
Mohanty, IAS was holding additional charge as Secretary, Sports
(8 of 41) [CW-24659/2018]
since 13.06.2014 and he had retired on 30.09.2018 and there is
no order on the DOP website with regard to charge being handed
over to some other incumbent as appellate authority. The
petitioners have pleaded that the post of Secretary, Sports &
Youth Affairs, to whom an appeal lies, was lying vacant and
notwithstanding such fact, an appeal was filed and copy of the
same has been annexed with the writ petition. The petitioners
have pleaded that since appeal would not be heard at all due to
the post being lying vacant, the writ petition is preferred to
challenge the illegal orders dt. 18.09.2018 and dt. 20.08.2018.
14. The respondents in their preliminary objection have raised
the issue of maintainability of the writ petition before this Court in
the wake of an alternative remedy provided under Section 35 of
the Act of 2005. The relevant Section 35 of the Act of 2005 is
reproduced hereunder:-
"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."
15. Learned counsel for the respondent have further raised issue
of maintainability of the instant writ petition with regard to the
various prayers sought by the petitioners in the instant petition.
16. Learned counsel for the petitioners in response to the
maintainability of the writ petition has submitted that issues which
have been raised in the instant writ petition need adjudication
(9 of 41) [CW-24659/2018]
from this Court under Article 226 of the Constitution of India. The
petitioner submitted that the respondents have acted in malafide
and illegal manner in removing the petitioner No. 2 as President of
RCA in most unceremonious way. Counsel further submitted that
not only the Registrar violated the order passed by this Court in
S.B. Civil Writ Petition No. 12961/2017 (Jaipur District
Cricket Association and Anr. Vs. The Registrar, Co-operative
Societies and Ors.) and S.B. Civil Writ Petition No.
9560/2014 (Nikhil Doru and Ors. Vs. Board of Control for
Cricket & Anr.). Counsel submitted that this Court is seized with
the matter in respect of the affairs of Rajasthan Cricket
Association and from time to time different directions have been
given either to organize tournaments/hold annual general
meeting/submission of accounts/proceedings undertaken by the
Registrar to conduct enquiry against the petitioner.
17. Counsel for the petitioners submitted that this Court in S.B.
Civil Writ Petition Nos. 12961/2017 & 9560/2014 (supra)
was apprised in respect of the enquiry which was sought to be
conducted against the petitioner No. 2 and when this fact was
brought into notice of this Court in the writ petition, the prayer
was made that the proceedings which are initiated by the
Registrar need to be stayed.
18. This Court finds that on 24.08.2018, the Co-ordinate Bench
in these two connected writ petitions permitted the Registrar to
proceed in the matter but the same was to remain subject to the
outcome of the writ petition. The operative portion of the order
passed by the Co-ordinate Bench on 24.08.2018 is reproduced
hereunder:-
(10 of 41) [CW-24659/2018]
"In the meanwhile, if the Registrar, Societies proceed in
the matter, it would remain subject to outcome of this
petition. The RCA would be at liberty to appear before
the Registrar and, based on the record seized by him,
to justify the expenses and, accordingly, the Registrar
would allow the RCA to present their case in reference
to the accounts of IPL and, for that, to have excess to
the accounts."
19. Learned senior counsel for the petitioners-Mr. R.P. Singh,
submitted that petitioners cannot be relegated to the alternative
remedy, as this Court is already seized with the matter and further
directions have been given from time to time against the Registrar
and the State Government. Counsel for the petitioner submitted
that looking to the prayers sought and the manner in which action
has been taken against elected body, this Court has ample
jurisdiction to entertain the writ petition and accordingly
submissions have been made on the merits of the matter
challenging the impugned order dt. 18.09.2018 and subsequent
actions taken by the respondents including the notice for election
which had been issued on 25.11.2018.
20. Senior counsel for the petitioners-Mr. R.P. Singh, has placed
reliance on judgment of this Court in Rajasthan Cricket
Association and Ors. Vs. State of Rajasthan & Ors. reported
in 2015 (2) WLC (Raj.) 757, where this Court considered the
question of maintainability of the writ petition in the wake of
provisions contained in the Act of 2005 for availing the alternative
remedy of referring the disputes to the arbitration. Counsel
submitted that this Court has taken a view that the Apex Court in
catena of decisions has laid down the law that a writ petition
involving serious disputed questions of fact should not normally be
entertained under Article 226 of the Constitution of India,
however, merely because a question of fact has been raised by the
(11 of 41) [CW-24659/2018]
respondents, the High Court would not be justified in requiring the
party to seek relief by somewhat lengthy, dilatory and expensive
process by a civil suit or other alternative remedy. This Court
further recorded that since the petitions were heard at length
finally at the admission stage, with the consent of the parties, who
addressed the Court on all issues involved, the existence of
alternative remedy of arbitration or Civil Suit loses its significance.
The paragraph relevant for the present purpose is reproduced
hereunder:-
"8(iii). Now, so far as the existence of alternative
remedy is concerned, though it is true that as per
Section 16 of the said Act, any dispute, touching the
Constitution and management activity of any Sports
Association, is required to be resolved through
conciliation and arbitration as per the Arbitration &
Conciliation Act, 1996, it is required to be noted that in
the instant case, the petitioners have also sought
reliefs against the State and its machineries alongwith
the reliefs against the respondent Nos. 4, 5 and 6 who
are the members of the RCA. Therefore as rightly
submitted by Mr. Hora for the petitioners, the disputes
involved in the petition could not be said to be the
dispute touching the Constitution and management
activity of the RCA alone. It is also true that there are
certain disputed questions of facts involved in the
petition, which this court exercising extraordinary
jurisdiction under Article 226 of the Constitution could
not decide, however as per the settled legal position,
mere existence of disputed questions of facts ipso facto
would not prevent the writ court from entertaining the
petition under Article 226 of the Constitution of India.
The Apex Court in catena of decisions has held that
though a writ petition involving serious disputed
questions of facts, should not normally be entertained
under Article 226 of the Constitution of India, however
merely because a question of fact is raised by the
respondents, the High Court would not be justified in
requiring the party to seek relief by somewhat lengthy,
dilatory and expensive process by a civil suit or other
alternative remedy. That apart, since the petitions have
been heard at length finally at the admission stage,
with the consent of the learned counsels for the
parties, who have addressed the court on all the issues
involved, the existence of alternative remedy of
arbitration or the civil suit loses its significance."
(12 of 41) [CW-24659/2018]
21. Learned counsel for the petitioners further submitted that
this Court is required to consider the matter on merits as on the
alleged two grounds on which the Registrar has passed the
impugned order, emanate from the proceedings, which are
continuing before this Court. Counsel submitted that the
allegations against the petitioner is in respect of accounts not
being submitted and further the Sports activities not being carried
out, counsel submitted that holding of tournaments at different
levels was monitored by this Court and this Court vide order
dt.1.10.2014 in S.B. Civil Writ Petition No. 9560/2014, had
constituted a Senior Selection Committee, Junior Selection
Committee and Women Selection Committee and as such the
Cricket Activities were regulated in respect of different
tournaments at different levels by this Court. Counsel submitted
that once all these cricket activities were to be governed as per
the mechanism provided by this Court, the petitioner No. 2 could
not have been fastened with the liability of not undertaking the
cricket activities as required under the Act of 2005.
22. Counsel further submitted that with respect to allegation of
not submitting the accounts, the petitioner No. 2 is said to have
taken over the charge on 02.06.2017 and as far as allegation of
not submitting the accounts for the year 2016-17 is concerned,
the same related to the previous regime and as such petitioner
could not have been held responsible for not submitting the
accounts.
23. Counsel for the petitioners further highlighted the fact of
other illegalities being committed by the adhoc Committee like
preparing the amended Constitution, etc.
(13 of 41) [CW-24659/2018]
24. Learned counsel for the respondents, on the other hand,
submitted that the writ petition which has been filed by the
petitioner is not required to be entertained. This Court would first
determine the issue with respect to the maintainability of the writ
petition.
25. The perusal of Section 35 of the Act of 2005 reveals that any
Sports Association or person aggrieved by an order made by the
Registrar under the Act of 2005, may appeal against the order to
the Secretary to the Government, Department of Sports and Youth
Affairs, within 30 days of such an order, being made. Sub-section
(2) of Section 30 provides that the decision of the Secretary to the
Government, Department of Sports and Youth Affairs made in
appeal shall be final and a revision against such order may lie
before the High Court within 30 days of passing of such order.
26. Learned counsel for the respondents have placed reliance on
the order passed by the Co-ordinate Bench in S.B. Civil Writ
Petition No. 3522/2015 (Dr. Y.K. Khanna Vs. Registrar
Sports Institution Ajmer & Anr.) decided by order dt.
23.03.2015. The petitioner in that case had challenged an order
dt. 04.03.2015 passed by the Registrar under the Act of 2005 and
since appeal under Section 35 of the Act of 2005 was provided,
this Court after considering the submission of counsel for the
petitioner in that case, found that writ petition cannot be
entertained as that petitioner had an alternative statutory remedy.
This Court further directed that if the petitioners were to file an
appeal before the Appellate Authority against the Registrar's order,
it was to be disposed of within a period of two months from the
date of its filing. The Single Bench further held that any election,
if held, to the Ajmer District Cricket Association, Ajmer, the same
(14 of 41) [CW-24659/2018]
would be subject to outcome of such appeal in the event its
content and adjudication relate thereto. The relevant order of the
Co-ordinate Bench is quoted hereunder:-
"In the overall facts of the case, I am of the view that
the writ petition cannot be entertained for the reason
that the petitioner has an alternative statutory remedy.
It is however directed that if the petitioner were to file
an appeal before the Appellate Authority, against the
Registrar's order dated 4-3-2015, it be disposed of
within a period of two months from the date of its
filing. Any election if held to the Ajmer District Cricket
Association Ajmer, would be subject to outcome of such
appeal in the event its content and adjudication relate
thereto.
The writ petition stands accordingly dismissed."
27. The said order of the Single Bench was assailed before the
Division Bench and the Division Bench in D.B. Special Appeal
(Writ) No. 436/2015 (Gunjan Sharma Vs. Registrar, Sports
Associations, Ajmer & Anr.) dismissed the Special Appeal and
declined to interfere in the order passed by the Single Bench. The
Division Bench further observed that rights and interest of the
parties were not to be affected and if any order was passed by the
Authority, the parties were at liberty to challenge the said order in
accordance with law.
28. Learned counsel for the respondents has further placed
reliance on an order passed in S.B. Civil Writ Petition No.
2696/2018 (Jaipur District Cricket Association and Ors. Vs.
The Registrar, Co-operative Societies and Ors.) decided on
14.03.2018. The Co-ordinate Bench upheld the objection of the
respondents in that case that if an appeal is provided under
Section 35 of the Act of 2005, any order passed by the Registrar
was liable to be challenged before the Appellate Authority and on
(15 of 41) [CW-24659/2018]
account of having an alternative statutory remedy, no interference
was made by this Court.
29. In the above noted case, the second issue was with regard to
not entertaining the writ petition on account of election process
already started for conducting the elections of Executive
Committee, Jaipur District Cricket Association and polling was
slated on 18.03.2018. The Co-ordinate Bench observed that once
the election process was started, the same was not required to be
interfered by this Court, as has been held by the Supreme Court in
Shaji K. Joseph Vs. V. Viswanath and Ors. reported in (2016)
4 SCC 429. The operative portion of the order passed by the Co-
ordinate Bench is reproduced hereunder:-
"14. I have heard learned counsel for the parties and
perused the record.
15. The writ petition filed by the petitioners deserves to
be dismissed for the reason firstly, an alternative
statutory remedy of appeal is provided under Section
35 of the Act of 2005 and, therefore, I am not inclined
to exercise the extraordinary discretionary jurisdiction
of this Court under Article 226 of the Constitution of
India. Secondly, the election process has already been
started for conducting the elections of Executive
Committee, Jaipur District Cricket Association and
polling is going to be held on 18.03.2018. Therefore,
once the election process has started, the same is not
required to be interfered with by this Court, as has
been held by the Hon'ble Supreme Court in Shaji K.
Joseph Vs. V. Viswanath And Ors.(supra).
16. In that view of the matter, the writ petition filed by
the petitioners is hereby dismissed."
30. Learned counsel for the respondents-Mr. S.S. Hora, has
placed reliance on a judgment passed by the Apex Court in
Tapash Majumder and Anr. Vs. Pranab Dasgupta and Ors.
reported in (2004) 13 SCC 574. Learned counsel submitted that
once the election process starts, the High Court should not pass
(16 of 41) [CW-24659/2018]
any order or interim order staying the election process. The order
of the Apex Court is quoted hereunder:-
"1. Heard on the question of admission.
2. The learned counsel for Respondent No.6 has
made appearance, submitting that he is instructed by
the office-bearers of the Club. We find that
Respondents 1 to 30 are all office-bearers of the Club
and, therefore, for the purpose of hearing on this
special leave petition, we assume that the respondents
are represented.
3. The dispute relates to general elections of the
East Bengal Club. The petitioners have filed a suit
seeking corrections in the voters' list and appointment
of a special officer for holding and conducting the
elections. By order dated 05.07.2004, the learned
Single Judge has refused to stay the holding of the
elections and instead directed that the elections may be
held and the result of the elections shall abide by the
result of the application pending before him. The
petitioners went in appeal which has been dismissed by
a Division Bench of the High Court. Feeling aggrieved,
the petitioners have filed this special leave petition.
4. It is conceded at the Bar that the elections are
fixed for Sunday, 08-08-2004. We are not inclined to
stay the elections. However, we allow the petitioners
the liberty of filing their objections before the learned
Single Judge. Such objections filed before the learned
Single Judge shall be heard and decided summarily
without regard to the nature and scope of the suit
before the learned Single Judge. If the learned Singe
Judge feels that proper elections have not been held
and a case for holding elections afresh is made out,
then the learned Single Judge would be at liberty to
direct elections being held afresh and pass appropriate
incidental and consequential orders.
5. Subject to the above observations, the special
leave petition be treated as disposed of."
31. Counsel for the respondents-Mr. S.S. Hora, has further
placed reliance on a judgment passed by the Apex Court in Avtar
Singh Hit Vs. Delhi Sikh Gurudwara Management
Committee and Ors. reported in (2006) 8 SCC 487. Counsel
submitted that the dispute with regard to election is required to be
(17 of 41) [CW-24659/2018]
adjudicated by the Election Disputes redressal and mechanism and
if a forum is provided, the High Court should not make
interference in such election matters. The relevant para 19 of the
aforesaid judgment is quoted hereunder:-
"19. It is well-settled principle that where elections are
conducted in accordance with the provisions of a
statute and the statute also provides a remedy of
settlement of election disputes by filing an election
petition before a tribunal, it is that remedy alone which
should be availed of and recourse cannot be taken to
proceedings under Article 226 of the Constitution. This
view has been taken in series of decisions rendered by
this Court. The earliest decision was rendered in N.P.
Ponnuswami vs. The Returning Officer by a Bench of six
learned Judges. In this case the nomination paper of
the appellant for election to Madras Legislative
Assembly was rejected by the Returning Officer. The
appellant challenged the rejection of the nomination
paper by filing a writ petition in the High Court which
was dismissed on the ground that it had no jurisdiction
to interfere with the order of the Returning Officer on
account of Article 329(b) of the Constitution, which
says that no election to either House of Parliament or
to the House or either House of the Legislature of a
State shall be called in question except by an election
petition presented to such authority and in such
manner as may be provided for by or under any law
made by the appropriate Legislature. In appeal this
Court examined the question whether the writ petition
would be maintainable at the initial state against an
order rejecting the nomination paper. Certain
observations made in para 9 of the reports are relevant
and they are being reproduced below: (SCR p.228)
"The law of elections in India does not
contemplate that there should be two attacks on
matters connected with election proceedings, one
while they are going on by invoking the
extraordinary jurisdiction of the High Court under
Article 226 of the Constitution (the ordinary
jurisdiction of the Courts having been expressly
excluded), and another after they have been
completed by means of an election petition. Any
matter which has the effect of vitiating an election
should be brought up only at the appropriate
stage in an appropriate manner before a special
tribunal and should not be brought up at an
intermediate stage before any Court."
20. In AIR para 12 it was observed:
(18 of 41) [CW-24659/2018]
"Where a right or liability is created by a
statute which gives a special remedy for enforcing
it, the remedy provided by that statute only must
be availed of.
It will be a fair inference from the provisions
of the Representation of the People Act to draw
that the Act provides for only one remedy, that
remedy being by an election petition to be
presented after the election is over, and there is
no remedy provided at any intermediate stage."
32. Counsel for the respondents has further placed reliance on a
judgment passed by the Apex Court in Shaji K. Joseph Vs. V.
Viswanath and Ors. (supra). The Apex Court in the said case
has held that the High Court should not have interfered with the
election after the process of election had commenced and it is
settled position of law that whenever the process of election
starts, normally Courts should not interfere with the process of
election for the simple reasons that if the process of election is
interfered with by the Courts, possibly no election would be
completed without Court's order. The relevant para 15 of the
judgment is reproduced hereunder:-
"15. It has been consistently held by this Court that a
regular suit is the appropriate remedy for settlement of
the disputes relating to property rights between the
private persons. The remedy under Article 226 of the
Constitution shall not be available except where
violation of some statutory duty on the part of
statutory authority is alleged. In such cases, the Court
has jurisdiction to issue appropriate directions to the
authority concerned. It is held that the High Court
cannot allow its constitutional jurisdiction to be used for
deciding disputes, for which remedies under the
general law, civil or criminal are available. This Court
has held that it is not intended to replace the ordinary
remedies by way of a civil suit or application available
to an aggrieved person. The jurisdiction under Article
226 of the Constitution being special and extraordinary,
it should not be exercised casually or lightly on mere
asking by the litigant. (See Mohan Pande vs. Usha
Rani, 1992 (4) SCC 61 and Dwarka Prasad Agrawal vs
BD Agrawal, (2003) 6 SCC 230)."
(19 of 41) [CW-24659/2018]
33. Mr. Sudhir Gupta learned senior counsel for the respondents
has placed reliance on a recent judgment of the Supreme Court in Roshina T Vs. Abdul Azeez K.T. & Ors. In Civil Appeal No. 11759/2018 decided on 3rd December, 2018. Learned counsel has submitted that remedy under Article 226 of the Constitution of India will not be available except where violation of some statutory duty on the part of statutory authority is alleged and High Court only in such cases have jurisdiction to issue appropriate directions to the authority concerned. Counsel further submitted that the Apex Court has clearly laid down that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. Counsel submitted that the relief sought in the writ petition virtually converts the present writ petition like a civil suit and in such view of the matter, this Court is not required to adjudicate the issue which has been raised by the petitioners.
34. Learned senior counsel for the petitioner-Mr. R.P. Singh has submitted that the statutory remedy which is available is not efficacious remedy and this Court after considering the impact of the order passed in the earlier writ petitions and the manner in which the officials are working, the writ is the only remedy which is required to be exercised in the instant case. Counsel for the petitioner further submitted that though there is a provision of appeal provided and appeal was filed too, considering the facts that decision on the appeal will be an eye wash, this Court has to exercise its jurisdiction.
35. Counsel further submitted that the Tribunals which are providing alternative remedy under the law are discharging quasi-
(20 of 41) [CW-24659/2018] judicial functions and they may have the trapping of Courts but the same cannot mean in absence of the provisions, to the contrary, such Authority/Tribunal would have the power to grant at the interim stage the final relief, which it could grant. Counsel further submitted that in the Tribunals at the most the incidental powers could at best be said to exist in order to preserve the status quo, but not to alter the same.
36. Counsel in support of his submissions places reliance on judgment in Super Cassettes Industries Limited Vs. Music Broadcast Private Limited reported in (2012) 5 SCC 488. Para 69 of the said judgment is quoted hereunder:-
"69. It is no doubt true, that Tribunals discharging quasi-judicial functions and having the trappings of a Court, are generally considered to be vested with incidental and ancillary powers to discharge their functions, but that cannot surely mean that in the absence of any provision to the contrary, such Tribunal would have the power to grant at the interim stage the final relief which it could grant. As also indicated hereinbefore, such incidental powers could at best be said to exist in order to preserve the status-quo, but not to alter the same, as will no doubt happen, if an interim compulsory licence is granted. If the legislature had intended that the Copyright Board should have powers to grant mandatory injunction at the interim stage, it would have vested the Board with such authority. The submission made that there is no bar to grant such interim relief in Section 31 has to be rejected since the presence of a power cannot be inferred from the absence thereof in the Statute itself."
37. This Court on last date of hearing had specifically asked the learned Additional Advocate General Mr. G.S. Gill about the powers available to the Appellate Authority with respect to pass the interim order. Learned Additional Advocate General after seeking instructions, informed this Court that if Appellate Authority decides the appeal, the power to grant interim relief is incidental or ancillary to the Appellate jurisdiction. Learned Additional Advocate (21 of 41) [CW-24659/2018] General clearly stated that if appeal is filed against any order of Registrar under Section 35 of the Act of 2005, the Appellate Authority has got full jurisdiction to pass interim order in appropriate case.
38. Counsel further submitted that if the petitioner has already approached the Appellate Authority before filing the writ petition, the apprehension of the petitioner is wholly misplaced that no interim order can be passed by the Appellate Authority. Counsel further submitted that petitioners themselves thought that there is a power of granting interim order and accordingly an application for grant of interim relief was also filed. Counsel, on instructions, submitted that if the appeal of the petitioner is taken up and interim application is also taken up for considering the relief which the petitioner intends to seek against the impugned order of Registrar or any consequential order, the power of Appellate Authority is not denuded to pass appropriate orders.
39. Learned Additional Advocate General further submitted that the Appellate Authority acts as an independent Authority and if the order of the Registrar is laconic or not legal, the power of Appellate Authority is always thereto set aside such illegal order and appropriate relief can be granted. Counsel further submitted that the person who feels still aggrieved against order of the Appellate Authority, he has a remedy to approach the High Court by way of filing revision as provided under Section 35 of the Act of 2005. The stand of the State Government has been very specific to the effect that in appropriate cases after considering the relevant factors for grant of interim injunction/stay of proceedings, the Appellate Authority is fully competent to pass such an order.
(22 of 41) [CW-24659/2018]
40. Learned counsel for the respondents-Mr. Sudhir Gupta & Mr. S.S. Hora also convassed the same proposition before this Court and submitted that if appeal is provided under the provisions of the Act of 2005, there is no reason that petitioner should not approach the Appellate Authority and submissions can be made on the interim relief. Counsel further submitted that grant of interim relief depends on various factors and in a given case if interim relief is to be granted, the power to grant such relief is incidental and ancillary to the Appellate jurisdiction. Counsel for the respondents-Mr. S.S.Hora has also placed reliance on a judgment passed by the Apex Court in Income tax Officer, Cannanore Vs. M.K.Mohammed Kunhi reported in AIR 1969 SC 430 Income Tax Officer Vs. M.K. Mohammad and the relevant para 8 is quoted hereunder:-
"8. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision. In our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when s. 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner, but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceedings as will prevent the appeal if successful from being rendered nugatory."
41. Learned counsel for the petitioners-Mr. R.P. Singh Sr. Adv. confronted with this situation submits that if at all this Court is not inclined to entertain the writ petition on the ground of statutory alternative remedy available, this Court is required to protect right (23 of 41) [CW-24659/2018] of the petitioners and further the election process which has been set in motion by notice for election dt.25.11.2018, needs to be stayed as the respondents are going ahead with the election of the Rajasthan Cricket Association.
42. It will be appropriate to narrate the relevant facts which ultimately led to passing of the impugned order, challenged in the instant petition. This court finds that under Section 23 of the Act of 2005, the Registrar passed an order of holding an enquiry by appointing the Enquiry Officer to submit the report within one month as there was a requisition of more than one tenth of total members of a Sports Association, as per Section 23(b) of the Act of 2005.
43. The three issues were referred to the Enquiry Officer and these issues were as follows:-
(a) Whether the Rajasthan Cricket Association had prepared the account under Section 22(1)(a) read with Section 19 of the Act of 2005 and whether the audited copy had been sent in time, if not who was responsible for the violation.
(b) Whether the Rajasthan Cricket Association had been successful in performing its obligation specified under Chapter-VIII under Section 29 of the Act of 2005.
(c) Whether the Rajasthan Cricket Association had spent funds from BCCI in accordance with the directions of the BCCI and whether the expenditure was made according to the Regulations.
44. A perusal of Section 22 of the Act of 2005 reveals various grounds for disqualification of the Sports Association and as per Section 22(1)(a) of the Act of 2005, if the Sports Association fails to maintain accounts and submit the same under Section 19 or (24 of 41) [CW-24659/2018] fails to produce the same when called for inspection, the same is ground for disqualification of a Sports Association. Section 22(1)
(c) of the Act of 2005 also prescribes disqualification of a Sports Association, if the Sports Association fails to carry out its obligation under Chapter-VIII. In Chapter-VIII as per the Section 29 of the Act of 2005 - (i) every State Level Sports Association is required to conduct at least one Inter-District Level Championshipo, for the Seniors and Juniors every year; (ii) send its players and teams to participate at the National Level; (iii) arrange to provide round the year training and coaching facilities for the players either by itself or in association with the Rajasthan State Sports Council; and (iv) arrange to give such prizes, scholarships, medals and other such facilities as would encourage the sports person.
45. The Registrar, in the instant case, appointed the Enquiry Officer and the Enquiry Officer after conducting enquiry submitted his report vide forwarding letter dated 23.08.2018 and he found that there were two violations by the petitioners in respect of the requirement of maintaining and submitting the accounts, as required under Section 19 of the Act of 2005 and further the violation of obligations under Chapter-VIII of not conducting tournaments, etc.
46. The Registrar, after receipt of enquiry report, is said to have given a show cause notice to the petitioner-Association and finally after taking into account the report of the Enquiry officer and reply filed by the petitioner, passed the impugned order dated 18.09.2018.
47. The sequence of events clearly reveals that the Registrar exercised his power under Section 24 of the Act of 2005 where (25 of 41) [CW-24659/2018] after holding enquiry and giving opportunity, he appointed an adhoc Executive Committee and further directed to hold elections of the Executive Committee within three months.
48. The order passed under Section 24 of the Act of 2005 is an order which is required to be challenge by way of appeal, as provided under Section 35 of the Act of 2005. The petitioners after fully realizing the availability of right of appeal under Section 35 of the Act of 2005, approached the appellate authority. The petitioners have pleaded that there was an extraordinary situation as the appellate authority was not holding the office and the Registrar was biased and was working at the dictates of some highly influential person and as such the petitioners have to approach this court.
49. This court finds that once right of appeal is provided to any Sports Association or person aggrieved by the order made by the Registrar, the normal procedure of filing the appeal is required to be availed by such Association or person, as the case may be.
50. This court finds substance in the submission of learned counsel for the respondents that the Coordinate Bench of this court in the case of Dr.Y.K.Khanna (supra) has taken a view that if there is an alternative statutory remedy available, the writ petition cannot be entertained. The said order of the Coordinate Bench of this Court has been approved by the Division Bench while passing the order dated 29.03.2016 in the case of Gunjan Sharma (supra).
51. This court further finds that the Coordinate Bench of this Court in S.B.Civil Writ Petition No.2696/2018 [Jaipur District Cricket Association & Others Vs. The Registrar, Cooperative Societies and Others] has also taken the similar view that (26 of 41) [CW-24659/2018] whenever an order of Registrar is put to challenge by a person who feels aggrieved, he has to approach the appellate authority, as provided under Section 35 of the Act of 2005.
52. This court further finds that the Apex Court in the case of Avtar Singh Hit (supra) has taken a view that where elections are conducted in accordance with the provisions of a statute and the statute also provides a remedy of settlement of election disputes by filing election petition before a Tribunal, it is the remedy alone which should be available of and recourse cannot be taken to proceedings under Article 226 of the Constitution of India.
53. This court finds substance in the submission of learned counsel for the respondents that the present petition may not be entertained and the petitioners have an alternative remedy and the same should be allowed to be availed by them.
54. This court holds that in view of the alternative remedy available, the writ jurisdiction is not to be exercised in the instant case.
55. Learned senior counsel Mr.R.P.Singh submitted that filing of the present writ petition necessitated due to peculiar facts as the appellate authority was not occupying and working on the post and further the Registrar was acting in a biased manner and has given three months time to hold election. This court finds that the respondents have annexed copy of the order dated 11.11.2018 where the new incumbent was posted and holding the post of Secretary, Sports and Youth Affairs and he is fully competent to deal with the appeal filed by the petitioners.
56. This court thinks it appropriate to observe that filing of the present writ petition by the petitioners at that point of time may not be wholly unjustified, however, after the appellate authority (27 of 41) [CW-24659/2018] being posted and working, the petitioners would not suffer any loss if grievances are taken up by the appellate authority and the issues which are raised in the instant petition, are decided by the appellate authority.
57. Learned senior counsel for the petitioner Mr.R.P.Singh submitted that in case this court is not entertaining the writ petition and sending the petitioners back to the appellate authority, at least interim protection is required to be granted.
58. Learned senior counsel for the petitioners has submitted that when the petitioner had filed the writ petition, the notice for election was not to be issued by the Convenor and the writ petition was filed by the petitioner on 30.10.2018 and notice for election has been issued on 25.11.2018. Counsel submitted that the broad principle that the election process once starts should not be stayed by the courts, will not be applicable in the instant case. Counsel submitted that in the normal course when the elections are held under the Representation of Peoples Act and the election process starts, this court as well as the Apex Court have taken a view that courts should not interfere in the election process and the same should be taken to the logical conclusion. Senior counsel for the petitioner Mr.R.P.Singh submits that this court under Article 226 of the Constitution of India is not precluded to pass appropriate order by directing the appellate authority to decide the appeal and further process of election which has been initiated by the respondents may be stayed till the appeal is decided.
59. Counsel further submitted that there are several facts and factors which require interference by this court and he has enumerated those facts as under:-
(28 of 41) [CW-24659/2018]
(a) Counsel submitted that two writ petitions are pending before this court i.e. S.B.Civil Writ Petition No.12961/2017 (Jaipur District Cricket Association and Anr. Vs. The Registrar, Co-operative Societies and Ors.) and S.B. Civil Writ Petition No. 9560/2014 (Nikhil Doru and Ors. Vs. Board of Control for Cricket & Anr.) where this court when was apprised about enquiry being conducted by the Enquiry Officer and the Registrar had not passed the final order, this court had specifically observed that the Registrar was free to proceed in the matter but it would remain subject to outcome of the writ petition. Counsel submitted that if at all the Registrar had to act on the enquiry report, it was incumbent upon him to first seek permission of this court to make the order effective. Counsel submitted that the interim order passed by this court on 24.08.2018 in fact has been violated by the Registrar by passing the impugned order. Counsel submitted that in the impugned order itself, the Registrar has quoted the order of this Court and has further mentioned that order passed by him will be subject to outcome of the writ petitions i.e. S.B.Civil Writ Petition Nos.12961/2017 and 9560/2014. Counsel submitted that even if the Registrar was bold enough to give effect to the enquiry report and the order accordingly, at least it would have been in the fitness of things to seek prior order/approval to give effect to the said order.
(b) Counsel for the petitioner submitted that continuation with the election process and election thereof would result in a situation where the impugned order is to be decided by the appellate authority and on the other hand the new incumbents who participate in the election process also occupy the post after being declared elected. Counsel submitted that there may be (29 of 41) [CW-24659/2018] possibility that there are duly elected person like petitioner on the one hand and on the other hand by virtue of election by adhoc Committee, new incumbents are elected and join the respective Associations. Counsel submitted that in order to avoid such situation, this court needs to pass appropriate interim order.
(c) Counsel submitted that this court was seized with the matter as the writ petition was filed on 30.10.2018, the respondents by taking undue benefit of the pendency of the writ petition, have taken an extreme step of going ahead with the election programme and in fact they are trying to nullify all the actions and the appropriate measures taken by the petitioners.
60. Per contra, counsel for the respondents have submitted that the Apex Court time and again has laid down the law that once election process starts, the High Court or for that matter, any court should not interfere.
61. Learned counsel for the respondents Mr.Hora has placed reliance on the judgment of the Apex Court in the case of Tapash Majumder (supra). A close reading of the said judgment reveals that there was a dispute with regard to General Elections of the East Bengal Club. The Single Judge in that case refused to stay holding of elections and instead directed that elections may be held and the result of the election shall be abide by the result of the main application pending before him. The appeal filed against the said order was also dismissed by the Division Bench. The Apex Court, after considering the date of election scheduled on 08.08.2004 and case being decided on 06.08.2004, was not inclined to stay the elections. However, the Apex Court granted liberty to the petitioners of filing objections before the learned Single Judge and the learned Single Judge was to decide (30 of 41) [CW-24659/2018] summarily the prayer of interim relief. The Apex Court further observed that if the learned Single Judge feels that proper elections have not been held and a case for holding elections afresh is made out, the learned Single Judge was given liberty to direct fresh elections and pass appropriate incidental and consequential orders.
62. Learned counsel Mr.Hora has placed reliance on the judgment of the Apex Court in the case of Avtar Singh Hit (supra). The Apex Court in the said case was considering the issue with regard to announcement of two different dates by two groups and finally one group filed writ petition in the High Court and there was a confusion about date of election and the candidates were deprived to participate and contest the election which led to filing of certain writ petitions. The learned Single Judge of Delhi High Court allowed the writ petitions but the Division Bench set aside the decision on merits, however, held that the writ petitions were maintainable.
63. The Apex Court after considering the provisions of the Delhi Municipal Corporation Acty, 1957 and the Delhi Sikh Gurdwaras Act, 1971 came to the conclusion that there was a mechanism of challenging the election by way of election petition and the High Court should not have entertained the writ petition.
64. There is no quarrel on the proposition that if election is put to challenge and if election petition is required to be filed, the remedy of election petition is the only remedy and the High Court cannot interfere in the writ jurisdiction.
65. Learned counsel for the respondents Mr.Hora has further placed reliance on the judgment of the Apex Court in the case of Shaji K.Joseph (supra). The close scrutiny of the facts of that case (31 of 41) [CW-24659/2018] reveal that the petitioner in that case wanted to contest the election but his name was not included in the electoral roll and his application was not accepted by the Returning Officer and in these circumstances, he preferred writ petition before the High Court of Kerala challenging the validity of rejection his nomination paper. The learned Single Judge of the High Court of Kerala allowed the writ petition by setting aside the order passed by the Returning Officer, rejecting nomination and directed the Returning Officer to conduct the election afresh after including the name of that person and to declare the result on the basis of such election to be conducted afresh from the stage after submission of the nominations. Order of the learned Single Judge was challenged before the Division Bench and the Division Bench dismissed the writ petition and the matter travelled to the Apex Court. The Apex Court considered the fact that once process of election starts, no court should interfere with the election process. The Apex Court further observed that the High Court should not have interfered with the election after the process of election had commenced. It also reiterated the position that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without the court's order and very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case, the basic purpose of having election and getting an elected body to run the administration would be frustrated. The Apex Court further reiterated that it has taken a (32 of 41) [CW-24659/2018] view that all disputes with regard to election should be dealt with only after completion of election.
66. This court finds that in the said judgment of the Apex Court, the candidate had approached the writ court after his nomination was rejected and further the election process had started.
67. The judgment cited by the learned counsel for the respondent in respect of order passed in the case of Jaipur District Cricket Association & Others Vs. The Registrar, Cooperative Societies & Others [S.B.Civil Writ Petition No.2696/2018], the Coordinate Bench of this Court on the issue of availability of alternative remedy under Section 35 of the Act of 2005 did not entertain the petition. The second reasoning of the Coordinate Bench was with respect to not interfering as the election process had already started for conducting the election of Executive Committee of the Jaipur District Cricket Association and polling was slated on 18.03.2018 and the Coordinate Bench passed the order on 14.03.2018. The Coordinate Bench has relied upon the judgment passed by the Apex Court in the case of Shaji K. Joseph (supra).
68. Learned senior counsel for the petitioner Mr.R.P.Singh has placed reliance on the judgment passed by the Apex Court in the case of Election Commission of India Vs. Bajrang Bahadur Singh & Ors. reported in (2015) 12 SCC 570 . Learned senior counsel for the petitioner has submitted that the Apex Court in the said judgment has laid down that jurisdiction of the High Court can be invoked to intercept the election which is already set in motion. Counsel submitted that the Apex Court was considering the legality and proprietary of an interim order passed by the High Court by which the High Court stayed the election process of bye-
(33 of 41) [CW-24659/2018] elections of Pharenda Assembly Constituency. The relevant portion of the judgment is reproduced hereunder:-
"56.Though, in view of our above conclusion, it may be really not necessary for the purpose of this case to go into the other question regarding the legality and propriety of the High Court's Order dated 20.3.2015 by which the High Court stayed the election process of the bye-election to Pheranda Assembly Constituency. We deem it appropriate to examine the matter as such questions are likely to arise if not regularly at least occasionally.
57. The authority and jurisdiction of the High Courts under Article 226 to adjudicate the disputes which are brought before them is a grant of the Constitution, though such authority and jurisdiction have well known limitations. Such limitations are self-imposed based on the structure of the Constitution the distribution of the functions of the various organs of the Constitution and other well established legal principles. One of such limitations emanates from the mandate under Article 329(b) which reads as follows:-
"329. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution-
(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."
58. The sweep of the Article fell for the consideration before this Court on more than one occasion. Two of the most prominent decisions of this subject are N.P. Ponnuswami v. Returning Officer and Mohinder Singh Gill v. Chief Election Commr. Both the cases were decided by Constitution benches of this Court. The question which arose in those two cases was whether the jurisdiction of the High Court's could be invoked to intercept the election process which is already set in motion.
59. This Court on a construction of Article 329(b) held in N.P. Ponnuswami that: (AIR p.72, para 25) "25... Article 329(b) ... was primarily intended to exclude or oust the jurisdiction of all Courts in regard to electoral matters and to lay down the (34 of 41) [CW-24659/2018] only mode in which the election could be challenged."
60. In Mohinder Singh Gill, this Court held: (SCC p.452, para 92) "(1)(a) Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result."
This Court further held as follows: Mohinder Singh Gill case, SCC p.428) "...The plenary bar of Article 329(b) rests on two principles: (i) the peremptory urgency and prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion; and (ii) the provision of the special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes the other forms, the right and remedy being creatures of the statute and controlled by the Constitution. The conclusion is, therefore, irresistible that jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction...."
61. However, in the case on hand, the primary challenge of the petitioner is not to the electoral process but the decision of the Governor which resulted in the unseating of the petitioner as a consequence of which a bye-election ensued. In other words, the very existence of a vacancy in the legislature is in question.
62. The interference of the High Court in exercise of the jurisdiction under Article 226 with the issuance of notification for filling up of casual vacancy in the Legislative Assembly of Uttar Pradesh (Pharenda constituency) in our opinion arises out of an absolute necessity. The election in question is inextricably interlinked with the legality of the decision of the Governor which resulted in the declaration of the vacancy in the Legislative Assembly representing the Pharenda constituency.
63. The decision of the Governor dated 29th January, 2015 declaring that the petitioner incurred a disqualification under Section 9A of the R.P. Act is under challenge before the High Court. That being the case, there is always a possibility in a given case that the decision of the Governor could be held to be (35 of 41) [CW-24659/2018] unsustainable.9 In the eventuality of such a conclusion by the High Court, the Legislator who is unseated consequent upon decision of the Governor under Article 192 is entitled to continue as a Member of the Legislature if the tenure to which he is elected still survives. But in the meanwhile if a bye-election were to be held to fill up the vacancy arising as a consequence of the decision of the Governor and in such an election if a person other than unseated legislator gets elected, there would be a very anomalous situation of two persons validly elected to the same seat in the Legislature. Therefore, in our opinion, the case on hand does not fall within the "blanket ban on the litigative challenges to the electoral steps". The interim order granted by the High Court is perfectly justified.
64. However, we notice that the Commission is under a statutory obligation to hold a bye-election within a period of six months from the date of the occurrence of the vacancy. Such obligation emanates from Section 150 and Section 151A. They read as follows:-
"150. Casual vacancies in the State Legislative Assemblies.--(1) When the seat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy.
(2) If the vacancy so caused be a vacancy in a seat reserved in any such constituency for the Scheduled Castes or for any Scheduled Tribes, the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes or to such Scheduled Tribes, as the case may be.
* * * 151-A. Time limit for filling vacancies referred to in Sections 147, 149, 150 and
151.-- Notwithstanding anything contained in section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:
(36 of 41) [CW-24659/2018] Provided that nothing contained in this section shall apply if--
(a) the remainder of the term of a member in relation to a vacancy is less than one year; or
(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye election within the said period."
The purpose behind the command is obvious.
"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted."
65. The question, therefore, is as to how to reconcile the two apparently conflicting constitutional obligations,
(i) of the High Court to adjudicate the dispute regarding the legality of the Governor's decision under Article 192 and (ii) the Commission's obligation to hold the election within a period of six months from the date of occurrence of the vacancy.
66. Unfortunately, there is no period of limitation prescribed by law within which a person aggrieved by the decision of the Governor under Article 192 can approach the High Court. Until such law is made, we deem it appropriate to hold that any person aggrieved by a decision of the Governor under Article 192 must approach the High Court by initiating appropriate proceedings, (if he is so desirous) within a period of eight weeks from the date of the decision of the Governor.
67. Such proceedings must be heard by a Bench of at least two Judges and be disposed of within a period of eight weeks from the date of initiation without fail. The Chief Justice of the concerned High Court will make an appropriate arrangement in this regard. If the above- mentioned time frame is strictly followed, the Commission would still be left with another eight weeks of time to comply with the obligations emanating from Section 151-A of the R.P. Act."
(37 of 41) [CW-24659/2018]
69. Counsel on the strength of the law laid down by the Apex Court has submitted that in a given case if the High Court finds that even if the election process is set in motion and there are serious questions about legality of the decision of the competent authority which can ultimately also result in third party rights being created, the High Court is not precluded from passing the interim order.
70. Learned senior counsel for the petitioner Mr.R.P.Singh has further placed reliance on the judgment of the Apex Court in the case of Star Paper Mills Ltd. Vs. State of UP & Ors. reported in (2006) 10 SCC 201. Learned counsel submitted that the Apex Court has laid down the principle that if the writ petition is not found to be maintainable on account of availability of alternative remedy, the court is not precluded from passing appropriate interim orders till final adjudication from the authority concerned.
71. This court further takes into account the stand taken by the BCCI in respect of the election process which has been initiated by the adhoc Committee after issuing notice for election. Mr.Angad Mirdha, learned counsel for the BCCI has filed an additional affidavit in compliance of order passed by this court dated 06.12.2018 and referred to the stand of the BCCI. Learned counsel submitted that after judgment of the Apex Court, different States are required to amend their constitution and Committee of Administrators (COA) from time to time submitted the report before the Apex Court. Counsel submitted that 10 th Status Report of Rajasthan Cricket Association was classified as a substantially compliant State Association and certain corrective amendments were suggested by the COA to the new Rajasthan Cricket (38 of 41) [CW-24659/2018] Association constitution and later on the COA has acknowledged that the Rajasthan Cricket Association has now become fully complaint with the August Judgment of the Hon'ble Supreme Court. Learned counsel, on the basis of the specific averment made in the affidavit, submitted that approval by the Apex Court to the amendments made by the adhoc Committee to the Rajasthan Cricket Association constitution/new Rajasthan Cricket Association constitution before conducting the election, is not required under the August Judgment. Counsel further referred to para (f) of the affidavit and submitted that in the peculiarity of this case, the BCCI has taken a stand that full compliance with the August Judgment of the Apex Court and written undertakings, have been given by the adhoc Committee of the Rajasthan Cricket Association to the COA and statutory/legal requirement for holding elections within a specified time frame, the COA has communicated vide its email dated 01.12.2018, addressed to the adhoc Committee, that it has "no objection" to the adhoc Committee for holding Rajasthan Cricket Association elections. The BCCI has further reiterated that adhoc Committee is not required to follow the proposed electoral protocol as per the 10 th Status Report but is obligated to follow the provisions of the amended new Rajasthan Cricket Association constitution and undertaking given to the COA.
72. This court upholds the objection of the respondents of writ petition being not maintainable and as such the petitioners are required to raise the grievance before the appellate authority. The only issue before this court is whether interim protection is required in the instant case till the appeal is decided by the appellate authority.
(39 of 41) [CW-24659/2018]
73. This court finds that the impugned order which has been passed by the Registrar dated 18.09.2018 itself makes a reference of the order passed by this court in S.B.Civil Writ Petition Nos.12961/2017 and 9560/2014. Learned senior counsel for the respondents Mr.Sudhir Gupta has submitted that as far as reference to these two orders is concerned, the same is of no consequence as the prayer sought for staying the proceedings before the Enquiry Officer or passing of any order by the Registrar, was not entertained by this court while passing the order. Counsel has further submitted that once the final order has been passed by the Registrar, the earlier order loses its significance and the petitioners are required to challenge the same order in independent proceedings and that has been done by them. Counsel submitted that the interim order or observation made by this court will not be a relevant factor for giving direction to the appellate authority to pass interim order and this court may not pass any interim order till disposal of the appeal.
74. This court without expressing any opinion on merits of the case, deems it proper to hold that once the order was passed by this court where decision of the Registrar was made subject to outcome of the writ petition, it was required on the part of the Registrar to at least inform this court and then to take further action. The action taken by the Registrar is not in the fitness of the things which was required as the litigation was pending before this court. This court is fully conscious of the fact that the petitioners had brought into notice the order which was passed by the Registrar of holding enquiry, etc, however, once this court has been giving direction from time to time in respect of holding tournaments, holding Annual General Meeting and other (40 of 41) [CW-24659/2018] directions, it was expected of a Government Official who was working as Registrar, to at least inform this court as what action he is intending to take.
75. The submission of the learned counsel for the respondents that this court should not pass any interim order as the election process has already started, this court finds that the writ petition was filed before this court on 30.10.2018 and at that point of time, neither the notice for election was issued nor the appellate authority was available to take up the appeal filed by the petitioners. There is no quarrel on the proposition that this court should not interfere when the election process starts, however, if a person has approached this court before the election process is set in motion, this court taking into consideration the entire facts of the case, may not be denuded from its power to pass appropriate order to protect rights of all the parties.
76. Learned counsel for the respondents submit that there was no interim order passed by any authority or this court and the adhoc Committee was within its domain to conduct elections, this court finds that notice for election has been issued as the Registrar has directed to conduct the election within three months, as per the requirement of the Act, however, nobody/no authority had prevented the Convenor of the adhoc Committee to take into account the various orders which have been passed from time to time and further matter was subjudice before this court.
77. The submission of learned counsel that if at all the petitioners are entitled for any interim relief, they are free to move application before the competent authority, this court finds that in the normal course when the appellate authority is conferred with the power of passing interim order, as has also been admitted by (41 of 41) [CW-24659/2018] all the counsel for the respondents, it may take up the issue of deciding the application itself for interim order. This court finds that there is an urgency in the matter as the election notice has already been issued, however, the rights of the petitioners cannot be jeopardized on account of sending back to get the appeal decided and no interim order be passed for the interregnum period.
78. This court accordingly decides the present writ petition by holding that the present writ petition is not maintainable on account of alternative statutory remedy being available to the petitioners, however, the petitioners are granted liberty to file any additional application or document which they intend to file before the appellate authority. The appellate authority is directed to call all the parties and decide the appeal itself on 13.12.2018. It is made clear that no further steps will be taken in pursuance of the election notice dated 25.11.2018 till the appeal is decided on 13.12.2018. It is further made clear that parties to the petition and those who have been allowed to intervene in the matter, are free to appear before the appellate authority and no unnecessary adjournments will be sought and granted.
79. Consequently, the present writ petition stands disposed of in terms of above directions.
(ASHOK KUMAR GAUR),J Solanki DS, PS Powered by TCPDF (www.tcpdf.org)