Jammu & Kashmir High Court - Srinagar Bench
Omkar Nath Pajnu And Others vs J&K; Cricket Association Andothers on 6 December, 2017
Bench: Mohammad Yaqoob Mir, Ali Mohammad Magrey
On Board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
1) LPA No. 196/2017
2) LPA No.212/2017
3) LPA No.213/2017
4) LPA No.239/2017
5) LPA No.240/2017
Date of Decision:06.12.2017
1) Omkar Nath Pajnu & others Vs. J&K Cricket Association & ors.
2) J&K Cricket Association Vs. Sajad Ahmad Sofi and others
3) J&K Cricket Association Vs. Gurmeet Singh and others
4) Omkar Nath Pajnu & others Vs. J&K Cricket Association & ors.
5) Omkar Nath Pajnu & others Vs. J&K Cricket Association & ors.
Coram:
Hon‟ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon‟ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For the Appellant(s) : Mr. G. A. Lone, Adv.
Mr. M. A. Makhdoomi, Adv. with Mr. Shahid
Mushtaq, Adv.
For the Respondent(s) : Mr. B. A. Bashir, Sr. Adv with Mr. Farzan Iqbal, Adv
Mr. Sunil Sethi, Sr. Adv. with Mr. Parimoksh Seth, Adv.
Mr. T. M. Shamsi, ASGI & Mr. M. Y. Bhat, Adv.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Optional
Per Yaqoob „J‟:
1. Five writ petitions, i.e.:
(1).OWP No.787/2017 (Gurmeet Singh & ors Vs. Sate of J&K & ors) (2).OWP No.464/2017 (Sajad Ahmad Sofi & anr Vs. State of J&K & ors) (3).OWP No.1970/2015 (Arvinder Singh & anr Vs. Union of India & anr) (4).OWP No.1510/2015 (J&K Cricket Association Vs. State of J&K & ors) (5).OWP No.576/2017 (Friends Cricket Club Nawakadal Vs. J&K Cricket Association and others.
LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 1 of 27 have been disposed of vide detailed impugned judgment dated 13.10.2017, aggrieved whereof, above titled and numbered five Letters Patent Appeals have been filed. Learned Single Judge while considering two writ petitions i.e. OWP No.464/2017 and OWP No.787/2017, has formulated following six issues for determination:
(i) Whether in view of the fact that issue with regard to management of the affairs of BCCI and the election of office bearers of BCCI is pending consideration before Supreme Court, this court can proceed to adjudicate the controversy involved in these petitions?
(ii) Whether the petitioners have locus standi to maintain the writ petitions?
(iii) Whether the writ petitions filed by the petitioners have been rendered infructuous?
(iv) Whether term of the Committee of the office bearers of the Association is one year or three years?
(v) Whether Committee has authority to appoint ombudsman?
(vi) Future course of action?
and on final analysis has issued the following directions:
I. That Mr. Justice C.K. Prasad retired Judge of the Supreme Court and Mr. Justice Syed Rafat Alam Chief Justice of M. P. and Allahabad High Courts shall act as administrators of the J&K Cricket Association to ensure free and fair elections. II. The administrators shall ensure that the rules of the J&K Cricket Association are amended inconformity with the recommendations made by the Lodha LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 2 of 27 Committee which has already been accepted by the Supreme Court.
III. The BCCI and the Association shall render all assistance to the Administrators, to effectively perform their duties.
IV. The expenditure to be incurred for travelling expenses and for stay of Administrators shall be borne by the Association. In addition the Administrators shall be entitled to remuneration of Rs.75000/ each per working day.
V. The administrators may make appointment of such persons so as to assist them to hold free and fair elections of the office bearers of the Association. VI. The administrators shall ensure that elections of office bearers of Association are held after amendment of the rules for electing office bearers of the Association. The administrators shall also be at liberty to appoint an ombudsman who shall decide the disputes between the members affiliated to the Association. VII. The police authorities are directed to deposit the amount seized by it in favour of the Association. The treasurer shall not expend the amount so received in the account of the Association without approval of the Administrators. The Administrators may also appoint a financial advisor, who shall maintain proper accounts. The Administrators shall also be at liberty to appoint ombudsman if so advised. After elections are held, the newly elected body shall be entitled to expend the amount as per norms of BCCI. VIII. Let the aforesaid exercise be completed within a period of 2 months.
IX. Registrar Judicial shall transmit copy of this order to Mr. Justice C.K. Prasad and Mr. Justice Syed Rafat Alam.LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 3 of 27
2. Regarding OWP No.1510/2015, OWP No.1970/2017 and OWP No.576/2017, it has been observed that in view of findings returned in OWP No.464/2017 and OWP No.787/2017, nothing survives for adjudication in these three writ petitions.
3. Jammu and Kashmir Cricket Association (hereinafter for short referred to as JKCA) is entangled in multiple litigations, in the process, the object of promoting the cricketing activities is getting hampered. Now streamlining the functioning of the JKCA is in sight in the light of the judgment rendered by the Hon‟ble Apex Court in the case of "Board of Control for Cricket Vs. Cricket Association of Bihar and others"
reported in (2016) 8 SCC 535 dated 18.07.2016. The theme of the judgment is "change" in the context of para 6 of the judgment which is advantageous to be quoted here-under:
"6. We have heard at considerable length the learned counsel for the parties and those appearing for the interveners. As noticed earlier, the task assigned to the Committee was to recommend such changes in the rules and regulations of BCCI as would in the opinion of the Committee safeguard the interest of the public at large in the sport of cricket, improve the ethical standards and discipline in the game, LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 4 of 27 streamline and promote efficiency in the management of BCCI, provide accessibility and transparency, prevent conflict of interest situations and eradicate political and commercial interference and abuse and create mechanisms for resolution of disputes within BCCI. The direction issued by this Court for all- round reform in the working of BCCI and the conduct of its affairs proceeded fundamentally on the juristic foundation that BCCI was discharging public functions and is, therefore, subject to the rigours of "Public Law" making it mandatory for BCCI to adhere to the principles of reasonableness, fairness, accountability and transparency."
4. The Hon‟ble Supreme Court constituted a committee under the Chairmanship of former Chief Justice of India, Justice R. M. Lodha, to recommend reforms in cricket in India. The said Committee submitted its recommendations with regard to functioning of Board of Control for Cricket in India (for short BCCI). The recommendations so made were accepted by the Hon‟ble Supreme Court vide judgment dated 18.07.2016. The recommendations so accepted also provide for disqualification of the office bearers of BCCI and its affiliated associations who failed to meet the norms recommended by the Committee. One of the recommendations of the LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 5 of 27 Lodha Committee accepted by the Hon‟ble Supreme Court in its judgment dated 18.07.2016, disqualifies Ministers and public servants from holding the office in the State Associations or BCCI. Paras 80 and 81 of the judgment are advantageous to be quoted:
"80. The Committee has while making that recommendation observed:
"...Any elected Councillor shall stand automatically disqualified after nine years as an office bearer, and shall also be disqualified from contesting or holding the post if he has completed the age of 70 years, is charged under the penal law, is declared to be of unsound mind, is a Minister or government servant or holds any post of another sports body in the country."
(b) Posts & Tenures ...The lack of any qualifications or disqualifications also ensures that those with full time occupations superficially involve themselves, thereby compromising their commitment to the association and the game of cricket. Several public servants hold lead positions in State Associations which take a substantial toll on both sets of their respective obligations to the public."
81. In light of the above we see no compelling reason for us to reject the recommendation which disqualifies Ministers and Public Servants from holding offices in the State Associations or BCCI."
5. After considering and accepting all the recommendations as were made by the Lodha Committee, regarding transition from old to new LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 6 of 27 system, what has been ruled, in this connection Para 102 of the judgment is advantageous to be quoted:
" 102. In the result, we accept the report submitted by the Committee and the recommendations made therein with such modifications and clarifications as have been set out by us in the body of this judgment. Having said that we must hasten to add that the implementation of the recommendations is equally important and ought to be achieved within a reasonable period. The transition from the old to the new system recommended by the Committee shall have to be under the watchful supervision of this Court. Constrains of time and the multiple dimensions of the recommendations made however make it difficult for us to take that supervisory role upon ourselves. The supervision of the transition can, in our opinion, be left to be undertaken by the Committee not only because it has a complete understanding of and insight into the nature of the problems sought to be remedied but also the ability to draw timelines for taking of steps necessary for the implementation of the proposed reforms. We are conscious of fact that the process may be time consuming but we hope that the same should be completed within a period of four months or at best six months from today. We, therefore, request the committee headed by Justice Lodha to draw appropriate timelines for implementation of the recommendations and supervise the implementation thereof."
6. As per guidelines provided by the Lodha panel, the recommendations of the Lodha Committee were to be incorporated in the rules governing the Association and then to conduct elections in accordance with the guidelines issued therewith.
LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 7 of 27
7. JKCA is governed by the Rules of the Jammu and Kashmir Cricket Association, Srinagar, formulated in the year 1957. In the said Rules, the "Committee" has been defined to mean "the Working Committee" of the Association. The "Club" has been defined to mean a Club, Gymkhana, Institution, University or Cricketing body including clubs of Commercial firms or companies or officers. As per Rule 6 of the said Rules, Association consist of the following classes of members:
(a) Representative Members,
(b) Life Members,
(c) Associate Members,
(d) Honorary Members.
8. „Representative Member‟ has to be specially referred to because out of 32 clubs affiliated with JKCA, 12 have internal disputes regarding their representatives etc. The „Representative Members‟ as appear in Rule 7 are as under:
"Representative Members: Such members shall consist of representatives of affiliated Clubs.
Each affiliated club shall have five representative members on the Association.
9. Rule 8 provides for management. The Association has to be administered and managed by a Working Committee. Rule 8 is relevant to be quoted:
LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 8 of 27
"8. Management:
(i) The Association shall be administered and managed by a Working Committee consisting of members of the following categories :
(a) One or two members, as the case may be, nominated out of the panel of five by each affiliated Club to the General Council with a minimum of 12 members of the Committee and a maximum of 25 members of the Committee.
(b) Three to five members out of the Life Members and the Associate Members.
(ii) The above mentioned Committee shall elect annually from amongst its members the following office bearers who shall function honororily:
(a) President.
(b) Chairman
(c) Two Vice-Chairman (One from Jammu Province and the other from Kashmir Province)
(d) General Secretary (One from Kashmir Province and
(e) Two Joint Secretaries one from Jammu Province)
(f) Treasurer.
(iii) Vacancies: Vacancies of the officer bearers shall be filled up by the Committee by election vacancies in the Committee shall be filled up by nomination by the affiliated Club concerned whose seat has fallen vacant and in case of Committee members elected out of the Life and Associate Members the vacancy shall be temporarily filled up by co-operation by the Committee till the annual election for the same is held.
(iv) Powers and duties of the Committee. The Committee shall have the power-LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 9 of 27
(a) necessary for management and conduct of the Association and for promotion of its objects including the power to take all actions as may be deemed proper against members and players of the affiliated Clubs;
(b) to inspect and pass accounts presented by the Treasurer at its meetings;
(c) of interpretation with regard to Rules and Regulations of the Association;
(d) to elect annually:
1. Captain:
2. Vice Captain:
3. Manager and the additional staff as and when required: and appoint the Auditor or Auditors and fix his or their remuneration.
(e) Whenever necessary, to appoint Sub-Committees consisting of three to five members for the purchase of equipments and selection of players for matches and for other purposes. The Selection Sub-
Committee will necessarily be comprised of Cricketers of repute and the Captain shall be one of the members of this Sub Committee. The decision of such Sub Committee shall be final."
10. From the records it is clear that the Lodha Committee recommendations were accepted by the Hon‟ble Apex Court vide judgment dated 18.07.2016. Elections for the office bearers of JKCA were held on 19th July, 2016, which in turn would mean that the elections should not have been held on 19th of July, 2016. More so when there was also a restraint order, for not holding election, issued by the Court of Munsiff (Sub LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 10 of 27 Registrar) (Civil Judge Junior Division), Srinagar, dated 18.07.2016. Furthermore, in the meeting of the Working Committee of the Association held on 19.07.2016;
Sh/Shri:
(1)Imran Raza Ansari, (2) Mehboob Iqbal, (3) Iqbal Ahmad Shah, (4)Ab. Rouf, (5)Javid Ahmad Kitab, (6)Chander Mohan Sharma, (7)Shiban Lal Trakroo, (8)Desh Rattan Dubey were elected as President, Chairman, General Secretary, Treasurer, Vice Chairman respectively of the Kashmir Wing and Jammu Wing and Joint Secretaries of Kashmir Wing and Jammu Wing separately. Said office bearers were elected unopposed. Thereafter a decision was taken to convene an extraordinary meeting of the General Body to ensure updation of rules of the Association.
11. As per recommendations of Lodha Committee accepted by Hon‟ble Apex Court, as referred to in para 80 of the judgment of the Hon‟ble Apex Court, Minister, Public servant, any elected Councilor after nine years or who has been holding office has completed age of 70 years, is charged under the penal law, were disqualified. Now the question is as to how four LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 11 of 27 persons i.e. President, Chairman, General Secretary and Treasurers were elected on 19.07.2016 when on 18.07.2016 Lodha Committee recommendations were accepted. We hasten to add that since election of the elected body is not challenged in any of the writ petitions, therefore, we leave this issue as it is but the reference as made has a relevance in the context of determining the issue as to whether the Association with said office bearers in office could take a decision to appoint ombudsman and as to whether ombudsman could be appointed by them to resolve the dispute of affiliated 12 clubs out of 32 clubs and other disputes.
12. Learned Single Judge while dealing with the issue of appointment of ombudsman by the Association has opined that no sanctity can be attached to the appointment of ombudsman. In this connection, while examining issue No.5 as formulated by the learned Single Judge to the following effect:
"(v). Whether Committee has authority to appoint ombudsman?"
It has been observed that in view of Rule 8 and Rule 14 of the JKCA Rules, the term of the elected body expired on 19.07.2017. Same view is taken in view of Rule 8(ii) which provides that the Committee shall elect annually the office bearers from amongst its members. The elections were LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 12 of 27 held on 19th July, 2016, so the term expired on 19th July, 2017. It is also observed that on 18.07.2016, the recommendations of the Lodha Committee were accepted by the Supreme Court, thus neither a politician nor a person whose age is more than 70 years could have been elected as officer bearer. Similarly a person who was convicted in connection with criminal offence could not have been elected as officer bearer. The office bearers i.e. President, General Secretary, Chairman and Treasurer had incurred disqualification but despite that they participated in the meeting in which decision to appoint ombudsman was taken. It has also been mentioned that notice dated 08.09.2016 was issued for the General Council meeting to be held on 29th September, 2016. On 09.09.2016, a corrigendum was also issued but the issue with regard to appointment of ombudsman was also not on the agenda.
13. The findings recorded by the learned Single Judge are quite apposite.
14. Learned counsel for the appellants would submit that the resolution of the Association dated 18.09.2016 to appoint ombudsman was not on the agenda of the meeting as was notified on 08.09.2016, when the rules of the association envisage how the meetings are to be held. Rule 14 provides procedure for holding meetings. That apart, an interesting position which LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 13 of 27 has emerged is that in terms of resolution dated 18.09.2016, it was resolved to appoint ombudsman and finally Hon‟ble Mr. Justice Iqbal Ahmad Ansari of Patna High Court has been appointed as ombudsman on 2nd January, 2017 by General Secretary, Mr. Iqbal Shah, who in fact had incurred disqualification because he has been convicted under Gambling Act. On the other hand, it is the Association who could appoint ombudsman not the General Secretary. To cover up the said position, during the course of arguments, Mr. G. A. Lone, Advocate, filed an application seeking permission to place on record minutes of the meeting of the Working Committee of JKCA held on 07.11.2016 at Hotel Fortune, Jammu.
15. It appears that the said minutes of the meeting have been manufactured which is an afterthought. Had it been in existence, then during the course of hearing of the writ petitions, same would have been brought to the notice of learned Single Judge. Even otherwise said minutes of the meeting dated 07.11.2016 are shown to have been prepared by General Secretary, Iqbal Ahmad Shah (a disqualified person) and approved by the President (a disqualified person) in presence of other office bearers but it does not inspire confidence for believing the same to be true except to hold that it is a manufacturing and a product of afterthought so as to give cover and to justify appointment of ombudsman who otherwise also, as LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 14 of 27 concluded by learned Single Judge, has been appointed by the office bearers which include disqualified office bearers. Learned Single Judge has rightly concluded that there is no legal sanctity attached to the appointment of ombudsman.
16. It has been contended by the learned counsel for the appellants that the appointed ombudsman has resolved all the disputes of the clubs but same is seriously opposed by learned counsel for the respondents by stating that all the parties did not participate in the proceedings, therefore, resolution of the disputes by the ombudsman, whose appointment has no sanctity, is irrelevant.
17. True it is that once it is held that there is no legal sanctity attached to the appointment of ombudsman, then any decision taken by the ombudsman pales into insignificance, no requirement of challenging the same separately, therefore, to be ignored.
18. Next contention of learned counsel for the appellants was that the resolution for appointment of ombudsman was not challenged, in fact a notice was challenged. This argument is totally misplaced because in the resolution dated 18th July, 2016, it was resolved by the Working Committee and its office bearers with four disqualified members participating to LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 15 of 27 appoint an ombudsman. The decision was not taken to appoint Hon‟ble Mr. Justice Ansari. It is then General Secretary who has appointed Hon‟ble Mr. Justice Ansari as ombudsman. When basic resolution regarding appointment of ombudsman with four disqualified members as office bearers is without sanctity, there could be no sanctity to the consequent steps which include appointment of Hon‟ble Mr. Justice Ansari as ombudsman by General Secretary. When base is shaken, then whole edifice crumbles down.
19. Another contention of Mr. Lone is that the elected body excluding four who incurred disqualification had a right to continue for a period of one year from the date they were elected. Buttressing this submission would submit that the Hon‟ble Apex Court in its judgment has provided for a cooling-off period because for transition from old to new system recommended by the Lodha Committee was time consuming, that is why for its completion four months time or at best six months time from the date of judgment was provided.
20. Reliance placed on words "cooling-off" by the learned counsel is misplaced. The Hon‟ble Supreme court in the judgment dated 18.07.2016 in para 35 has summed up the reforms recommended by the Lodha Committee LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 16 of 27 under the heading "END OF THE INNIGS". In the said para, sub-para (4) deals with office bearers, same is quoted here-under:
"4.Office-bearer Limited tenures & cooling-off"
While all the existing office-bearers (President, Vice- president, Secretary, Treasurer and Joint Secretary) are retained in honorary positions, the number of Vice-President is pruned from five to one. Their duties have been realigned. The President is shorn of his say in selections. The additional vote for the president at meetings is deleted. The terms of these office-bearers continue to be of 3 years, but with a maximum of 3 such terms regardless of the post held, with a cooling off period each such term."
21. The phrase "cooling-off period" has been used in the context as referred. Learned counsel for the appellants tried to stretch it with the period given by the Hon‟ble Apex Court, as referred to in para 102 of the judgment, which provides four months or at the best six months time for transition from old to new system as recommended by the Committee. That may be applicable to the office bearers who have not incurred disqualification but not to the office bearers who have incurred disqualification or have otherwise to be ignored because in para 80 of the judgment the word used is "disqualification is automatic" vis-à-vis persons which include Ministers, government servant, office bearers holding the office for nine years or who has completed the age of 70 years, is charged LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 17 of 27 with penal law. This position has been further reiterated by the Hon‟ble Apex Court in the order dated 2nd January, 2017. Para 25 is relevant to be quoted:
"25. For the above reasons, we order and direct as follows:
(i) All the office bearers of BCCI and of its affiliated State Associations who fail to meet the norms recommended by the committee and accepted by this Court, shall forthwith demit and cease to hold office namely:
"A person shall be disqualified from being an Office bearer if he or she:
(a) Is not a citizen of India;
(b)Has attained the age of 70 years;
(c) Is declared to be insolvent, or of unsound mind;
(d) Is a Minister or government servant;
(e) Holds any office or post in a sports or athletic association or federation apart from cricket;
(f) Has been an office Bearer of the BCCI for a cumulative period of 9 years;
(g)Has been charged by a court of law for having committed any criminal offence."
(ii) Shri Anurag Thakur, President of BCCI and Shri Ajay Shirke, Secretary BCI shall forthwith cease and desist from being associated with the working of BCCI;
(iii) A notice to show cause shall issue to Mr Anurag Thakur to explain why he should not be proceeded against under the provisions of Section 195 read LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 18 of 27 with section 340 of the Code of Criminal Procedure, 1973;
(iv) A notice to show cause shall issue to Mr Anurag Thakur to explain why he should not be proceeded with under the Contempt of Courts Act,1971;
(v) A committee of administrators shall supervise the administration of BCCI through its Chief Executive Officer;
(vi) This court shall by a separate order nominate the persons who shall form part of the Committee of administrators. In order to enable the Court to have the benefit of objective assistance in making the nominations, we request Mr Fali S. Nariman, learned Senior Counsel and Mr. Gopal Subramanian, the learned Amicus Curiae to assist the Court by suggesting names of persons with integrity and experience in managing a similar enterprise. We request the learned counsel appearing on behalf of the parties to also place their suggestions before the Court so as to facilitate a considered decision;
(vii) In addition to the function assigned in (v) above, the Committee of administrators shall also ensure that the directions contained in the judgment of this Court dated 18 July 2016 (which accepted the report of the Committee with modifications) are fulfilled and to adopt all necessary and consequential steps for that purpose;
(viii) In view of the directions contained in (ii) above, the senior most Vice-President of BCCI shall perform the duties of the President, BCCI and the Joint Secretary shall perform the duties of Secretary. Those of the office bearers of BCCI who are not disqualified in terms of clause (i) above (other than the President and Secretary) may continue subject to their filing an unconditional undertaking before LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 19 of 27 this Court within four weeks of the date of this order to abide by and implement the directions contained in the judgment dated 18 July 2016. Upon the Committee of administrators as nominated by this Court assuming the charge, the existing office bearers shall function subject to the supervision and control of the Committee of administrators. The committee of administrators would have the power to issue all appropriate directions to facilitate due supervision and control; and
(ix) The remuneration payable to the members of the Committee of Administrators shall be fixed in consultation with the Committee consisting of Mr Justice R M Lodha, Mr Justice Ashok Bhan and Mr Justice R V Raveendran. The role of the Justice R M Lodha Committee shall hereafter be confined to overall policy and direction on such matters as may be referred by this Court.
(x) We would request the learned Senior Counsel and the learned Amicus Curiae to endeavour to submit their suggestions to this Court within two weeks. The proceedings shall be listed before this Court on 19 January 2017 for pronouncement of directions in regard to the names of the administrators. "
22. Another contention of learned counsel for the appellants is that in terms of order dated 2nd January, 2017 of the Hon‟ble Supreme Court and in view of direction No.(viii) contained in para 25, as quoted above, it has been made clear that upon the Committee of Administrators as nominated by the Court assuming charge, the existing office bearers shall function subject to the supervision and control of the Committee of Administrators.LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 20 of 27
In this context, learned counsel would submit that all the office bearers of JKCA as elected on 19.07.2016, being the existing office bearers, shall have to function and to run JKCA under the supervision and control of Committee of Administrators. This contention of learned counsel is answered in sub para (viii) of Para 25 itself wherein it has been recorded as under:
"Those of the office bearers of BCCI who are not disqualified in terms of clause (i) above (other than the President and Secretary) may continue subject to their filing an unconditional undertaking before this Court within four weeks of the date of this order to abide by and implement the directions contained in the judgment dated 18 July, 2016"
23. The Association after 18.07.2016 i.e. the date of judgment of the Hon‟ble Supreme Court accepting recommendations of the Lodha Committee could not have held the election on 19.07.2016. More so when there was also a restrain order issued by the Court of Munsiff (Sub Registrar) (Civil Judge Junior Division), Srinagar, in the suit titled "United Cricket Club Vs. J&K Cricket Association and others" not to hold the election. The basic structure of the elected office bearers has been under cloud. Under such circumstances, term of the office bearers apart from disqualified office bearers cannot be said to be existing. LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 21 of 27
24. Learned counsel for the appellants also contended that the election was held on 19.07.2016 under the observation of Mr. Prem Thakur, representative of BCCI and then regarding appointment of ombudsman, BCCI was informed from time to time. Learned counsel tried to project that the election was held in accordance with rules and the appointment of ombudsman was also in accordance with proper decision of JKCA.
25. True it may be but how can he justify the election when four office bearers had incurred disqualification in view of judgment of the Hon‟ble Supreme Court dated 18.07.2016 and then to justify the election when there was also a restraint order issued by learned Munsiff (Sub Registrar), Srinagar, not to hold the election, therefore, election of the office bearers is under eclipse, as such, appointment of ombudsman looses sanctity. Be that as it may, now the term of office bearers has expired on 19th July, 2017.
26. As per Rule 8 of the Rules of JKCA, the Working Committee has to elect office bearers from amongst its members annually. The Working Committee though has elected officer bearers wrongly on 19.07.2016, still they could hold the office till replaced by duly elected office bearers. Same is clear from Rule 8(ii). However, the Rule nowhere provides that the term of elected office bearers will automatically come to an end on completion of LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 22 of 27 one year. No doubt, requirement is to hold the election annually. If it is not held for any reason, then elected office bearers have to run the business of the Association until they are replaced by the new elected office bearers. In the case in hand, the office bearers have been elected wrongly on 19.07.2016. Even now annual election could not be held on 18.07.2017 for the later developments i.e. judgment of the Hon‟ble Supreme Court, therefore, elected office bearers could exist except four, namely, President, Chairman, General Secretary and Treasurer, who have incurred disqualification and cased to be the office bearers right from the very inception because in terms of judgment dated 18.07.2016 and then order dated 2nd January, 2017, their disqualification is automatic, as is also clear from direction No.(viii) as referred to in para 25 quoted hereinabove. The other existing office bearers could exist but as referred to above, their election was under cloud, therefore, their existence beyond 18.07.2017 shall be unjustified.
27. The game of cricket till date has not flourished in the State of J&K to the extent it should have for allied reasons which include alleged embezzlement of funds, disputes inter se members of 12 clubs, rivalry between the groups, in the process multiple litigation made the game of cricket to suffer. Now with LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 23 of 27 the implementation of the judgment of the Hon‟ble Apex Court, the game of cricket in its all respects, will flourish.
28. In the stated facts and reasons, learned Writ Court has rightly appointed two Administrators which cannot be found fault with except for certain additions so as to see that the committee of Administrators is assisted in implementing the recommendations of the Lodha Committee as accepted by the Hon‟ble Supreme Court.
29. In addition to the directions issued by learned Single Judge, referred to in para 1 of the judgment, with modifications as indicated above, the following issues/situations also arose for smoothening functioning of JKCA consistent with the directions of the Hon‟ble Supreme Court wherefrom no departure can be imagined nor can be permitted:
Issue No.1: Settling of disputes primarily of the members of 12 clubs, i.e. (1) Rehari Cricket Club, Jammu;
(2) Jammu Cricket Club, Jammu;
(3) International Cricket Club, Jammu;
(4) Modern Cricket Club, Jammu;
(5) Friends Cricket Club, Jammu;
(6) Shastri Cricket Club, Jammu;
(7) United Cricket club, Srinagar;
(8) Friends Cricket Club, Srinagar;
(9) Kashmir Gymkhana Cricket Club;
(10) Whites Cricket Club;
LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 24 of 27
(11) Baramulla Cricket club;
(12) Muslim Cricket Club, Sopore;
and other disputes so as to pave way for elections.
Issue No.2: For settlement of disputes among 12 clubs and other disputes of the Association, there is a requirement of appointing ombudsman. Learned Single Judge has given the power to the two appointed Administrators to appoint an ombudsman which, in our view, is not apposite. The Administrators cannot appoint ombudsman. Ombudsman was required to be appointed by the Association but in the stated background, we deem it proper to appoint ombudsman for resolving all the disputes after giving hearing to all concerned, therefore, we appoint Mr. Justice Syed Bashir-ud-din (retired) as ombudsman who shall undertake the task of settling the disputes of 12 clubs and also other disputes of the Association so as to pave a way for implementing directions of the Hon‟ble Supreme court in line with recommendations of the Lodha Committee. The expenditure shall be at par with Administrators. The monthly remuneration, allowances and other conditions LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 25 of 27 during such term in office as an ombudsman shall be the same as that of a Judge of the High Court, reduced by the amount of the pension received by him and by the portion of the commuted value of the portion of such pension, if received by him.
Issue No.3: In our opinion, a suitable person has to be appointed as
Chief Executive Officer who may have also
administrative skills, therefore, we deem it appropriate to appoint Mr. Ashiq Hussain Bukhari, IPS, retired DIG, as Chief Executive Officer, who after approval of the Committee of Administrators, shall associate some reliable undisputed members of the Working Committee who have not incurred disqualification, for running the affairs of JKCA under the supervision and control of Committee of Administrators till rules are amended and elections are held.
Issue No.4: Regarding direction No.(VII), issued by learned Single Judge, it is made clear that the direction will operate provided the amount seized by police has not been LPA Nos.196/2017, 212/2017, 213/2017, 239/2017 & 240/2017 Page 26 of 27 already released in favour of JKCA. In case released, whatever amount available with the Association shall be dealt with by Chief Executive Officer under the instructions and directions of the Committee of Administrators.
Issue No5: The monthly remuneration, allowances and other conditions during such term in office as Chief Executive Officer shall be the same as that of DIG reduced by the amount of pension received by him and by the protion of the commuted value of the portion of such pension, if received by him.
30. For the stated reasons and the position of law, with the modification as indicated hereinabove, the judgment of the learned Single Judge is upheld. The directions issued by the learned Single Judge, with modifications as indicated above, be implemented forthwith.
31. All the appeals are, accordingly, disposed of.
(Ali Mohammad Magrey) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
06.12.017
"Bhat Altaf PS"
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