Calcutta High Court (Appellete Side)
For The vs The Cricket Association Of Bengal & on 15 January, 2020
Author: Debangsu Basak
Bench: Debangsu Basak
1
22
15.01.2020 W.P. 11913(W) of 2016
KC with
C.A.N. 11372 of 2019
with
C.A.N. 3205 of 2019
with
C.A.N. 8512 of 2019
with
W.P. 137 of 2014
Mr. Sandip Kumar Bhattacharya
Mr. Suman Basu.
... for the petitioner.
Mr. Kumar Jyoti Tewari.
... for the respondent nos. 1 & 2/UOI.
Mr. Debdatta Sen.
... for the respondent no. 3/RBI.
Mr. Amitesh Banerjee Mr. Kaushik Mondal.
... for the respondent no. 9/CAB.
Mr. Sandip Dey Mr. Malay Singh Mr. S. Roy.
... for the respondent nos. 12 & 13.
Two writ petitions are taken up for analogous hearing alongwith all connected applications therein.
The writ petition and the applications were assigned to this Court by the Hon'ble The Chief Justice on September 26, 2019.
W.P. 11913(W) of 2016 is a writ petition filed by two writ petitioners. The first writ petitioner is a registered society while the 2 second writ petitioner claims to be a member of such society. The prayers in such writ petition are as follows:
"a) A Writ of and/or in the nature of a continuing Mandamus do issue Commanding the Respondent No. 2 herein to submit periodical reports to this Hon'ble Court for monitoring the investigation in respect of the Account details in the name of the Petitioner No. 1 being operated through the Respondents Nos. 4 to 7 herein so as to enable prosecution of all miscreants associated with the impersonation of the Petitioner No. 1 in the maintenance of Accounts by the public sector banks without the consent and/or knowledge of the Petitioner No. 1;
b) A direction be also passed upon the Respondent no. 3 to invoke its jurisdiction under Section 36 AA and/or Section 46 in consideration of the provisions of the Section 47 of the Banking Regulation Act, 1949, for making a complaint in writing before the competent court against all concerned officers of the public sector banks acting contrary to the statutory provisions of Section 12 (1)(c) of the Prevention of Money Laundering Act, 2002 as amended;
c) A further direction be passed on the Respondent No. 14 herein to submit a report as to the steps being undertaken under Section 23 of the West Bengal Societies Registration Act, 1961, within the time frame as directed by this Hon'ble Court on the 20th day of September 2013 in W.P. 930 of 2013 since disposed of as extended on the 9th day of October 2013 by the Hon'ble Division Bench in A.P.O. 320 of 2013 since disposed of;
d) Rule NISI in terms of prayers (a) to (c);
e) An interim order in the nature of directing the Respondent No. 1 to ensure the prevention to the theft of the identity of the Petitioner No. 1 herein through impersonation through the operation of any Bank Account purportedly in the name of the Petitioner No. 1 herein being maintained with the public sector Banks herein pending adjudication of the instant matter;
f) And/or a further interim order upon the 3 Respondent No. 14 to ensure that the Respondent No. 9, a body registered thereunder to ensure the compliance of "BCCI Rules on Conflict of Interest" as per the directives of the Hon'ble Apex Court;
g) An ad-interim orders in terms of prayers (e) and (f);
h) Costs pertaining thereto;
i) Any such further order or orders so as to Your Lordships may deem fit and proper."
The averments in the writ petition as also the prayers of such writ petition establishes that, the writ petition is in relation to the affairs of a society under the name and style of Satya Sandhi. Parties filed affidavits in such writ petition. The respondent nos. 12 and 13 in their affidavit-in-opposition claimed that there is a prior suit pending before the appropriate Civil Court in relation to the affairs of such society.
The other writ petition is W.P. 137 of 2014. It was filed again by the same petitioners as that of W.P. 11913(W) of 2016. The prayers in the 2014 writ petition are as follows:
"a) A Writ of and/or in the nature of Mandamus do issue Commanding the Respondents to act and proceed in accordance with law;
b) A Writ of and/or in the nature of Mandamus do issue Commanding the Respondent No. 1 to conduct an Enquiry and take steps to curb the impersonation of the Petitioner No. 1 through maintenance of Accounts under Banking Laws without the consent of the Petitioner No. 1;
c) Rule NISI in terms of prayers (a) to (b);
d) An interim order in the nature of directing the Respondent no. 1 to ensure prevention to the theft of the identity of the Petitioner No. 1 herein through impersonation through the operation of any Bank Account purportedly in the name of the Petitioner No. 1 herein maintained with the Indian Bank the Respondent No. 2 herein, pending adjudication of the 4 instant matter;
e) An ad-interim orders in terms of prayer (d);
f) Costs pertaining thereto;
g) Any such further order or orders so as to Your Lordships may deem fit and proper."
Again, the averments made in the writ petition as also the prayers therein establishes that the writ petition relates to the affairs of the same registered society.
Apparently, there are claims and counter-claims with regard to the management of a society. The second petitioner in both the two writ petitions claim to be the person-in-charge of the management of the first petitioner while the private respondents have a different view. There is a suit pending before the Alipore Court with regard to the affairs of the society concerned.
At the time of final hearing of the two writ petitions and the connected applications, learned advocate appearing for the petitioners contended that, in view of the order dated March 14, 2019 passed by the Hon'ble Supreme Court in several civil appeals relating to the Board of Control for Cricket in India (hereinafter referred to as the BCCI) and others, and in view of the fact that, the final report is yet to be submitted before the Hon'ble Supreme Court, the writ petitions cannot be finally decided. He contends that the order dated March 14, 2019 stays the two writ petitions. Moreover, the writ petitioners applied before the Supreme Court for intervention such civil appeals. He submits that, till such intervention application is decided, the writ petitioners are not in a position to proceed with the merits of the two writ petitions. The writ 5 petitioners also applied before the Supreme Court seeking for transfer of the writ petitions on the ground inter alia that, the writ petitioners are unlikely to receive justice from this Hon'ble Court.
Learned advocate for the defendant nos. 12 and 13 submits that, there is no impediment in the Court deciding the two writ petitions. He relies upon a judgment and order dated December 16, 2019 passed in C.O. No. 3776 of 2019 (Vijay Sports Club, a Society registered under the Societies Registration Act, 1961 Vs. The Cricket Association of Bengal & Ors.) and submits that, the order of the Hon'ble Supreme Court dated March 14, 2019 passed in the BCCI matter was considered and that, the Coordinate Bench found that there is no impediment in a suit in respect of a club affiliated with the Cricket Association of Bengal (hereinafter referred to as the CAB) being proceeded with before a Civil Court. In view of such decision, he submits that the writ petitions may be finally disposed of.
Learned senior advocate for the CAB submits that, the order dated March 14, 2019 was of limited effect. In any event, subsequently, a report as called for by the Supreme Court was submitted before the Supreme Court on May 10, 2019. He draws the attention of the Court to a subsequent order of the Hon'ble Supreme Court dated October 22, 2019 where in the BCCI matter, the Supreme Court clarified that the order dated March 14, 2019 was not intended to affect the pending arbitration and proceeding arising therefrom. Therefore, he submits that, the order dated March 14, 2019 should be appropriately construed to mean that, there is no impediment in the two writ petitions being disposed of. 6
The two writ petitions are pending for a considerable period of time. From time to time various orders were passed in the writ petitions. As noted above, the scope and ambit of the two writ petitions relate to a society which is affiliated with the CAB. There are issues with regard to the management and control of such society. There is a suit pending regarding the affairs of the society. There are disputed questions of facts involved. Unless, such disputed questions of facts are resolved by permitting the parties to lead evidence thereon, it would be inappropriate for the Writ Court to pronounce on the either side of the divide thereon. Affidavit evidence would not be a sufficient substitute of the parties leading oral evidence and being subjected to cross examination, in accordance with law. Although, a Writ Court can take evidence, in the facts of the present case, it is not necessary to do so. There are alternative remedies available to the parties which are effective and efficacious. There is no special circumstance existing warranting the writ Court to take evidence and decide on the facts between the parties. The parties are at liberty to have their grievances adjudicated before the appropriate forum in accordance with law.
So far as the contention that, the writ petitions cannot be finally disposed of in view of the order dated March 14, 2019 of the Hon'ble Supreme Court is concerned, in Vijay Sports Club (supra), such order was construed to mean that, a pending suit was not affected. The order dated March 14, 2019 of the Hon'ble Supreme Court is as follows:
"When the matter was taken up today, Mr. P.S. Narasimha, learned Amicus Curiae, has pointed out 7 two issues before this Court viz., (a) On is regarding application for rectification of the Registered BCCI Constitution and (b) another is regarding applications for release of funds.
As far as issue (a) is concerned, we consider it appropriate to request Mr. Narasimha, learned Amicus Curiae to look into this matter and make appropriate recommendations to the Committee of Administrators (CoA). In case the parties are not satisfied with those recommendations, they may approach this Court for passing appropriate orders.
As far as issue (b) is concerned, it is pointed out that certain applications for release of funds have been filed by the Cricket Association of Maharashtra, Madhya Pradesh, Saurashtra, Himachal Pradesh and Keral and some others. We request Mr. Narasimha, learned Amicus Curiae to look into the matter and make appropriate recommendations to the Committee of Administrators (CoA) before the next date of hearing.
Mr. Parag P. Tripathi, learned Senior Counsel appearing for the Committee of Administrators, states that it will take adequate/appropriate steps to protect the Pune Stadium of Maharashtra Cricket Association and discharge and discharge the liability in respect thereof.
By consent of all the parties, Mr. P.S. Narasimha, learned Amicus Curiae, is appointed by this Court to act as a Mediator in relation to any dispute that might arise in the instant interlocutory applications pending 8 before us. Fee of the learned Mediator shall be paid by the Board of Control for Cricket in India (BCCI). Till Mr. Narasimha, learned Amicus Curiae, submits a report, we consider it desirable that no Court/Tribunal in India shall entertain or proceed with any matter pertaining to BCCI or any State Cricket Association (s) involved."
The order dated March 14, 2019 required the Amicus Curiae appointed by the Supreme Court to act as a mediator. It directed that till the Amicus Curiae submitted a report, no Court/Tribunal in India shall entertain or proceed with any manner pertaining to BCCI or any State Cricket Association involved.
The Supreme Court by a subsequent order dated May 10, 2019 records the submission of the report by the learned Amicus Curiae. The Supreme Court in its subsequent order dated October 22, 2019 passed in the BCCI and Ors, (supra) clarified that, the order dated March 14, 2019 did not affect pending arbitration and proceeding arisen therefrom.
On a true and meaningful reading of the order dated March 14, 2019 of the Hon'ble Supreme Court it appears that stay grant was for a limited period till filing of the report. The report was filed subsequently. It was later clarified that the initial stay did not affect the arbitration proceeding. In the present case, the writ petition relates to the affairs of a society which claims to be affiliated with the CAB. The order dated March 14, 2019 of the Hon'ble Supreme Court cannot be read to mean that 9 the two writ petitions cannot be decided upon.
So far as the prayer for adjournment of the writ petitions pending a decision on the application for transfer of the proceedings before the Hon'ble Supreme Court of India is concerned, I find no reason to keep the writ petitions pending. As noted above, the writ petitions were assigned to this Court by the Hon'ble the Chief Justice on September 26, 2019. That was possibly one or two days before the 'Puja Vacation'. Immediately after the reopening of the Court of the 'Puja Vacation', the writ petitions were placed in the list. From time to time, the parties prayed for adjournment and were granted. Prayers for adjournment made on behalf of the writ petitioners were also allowed. There is a limit to the number of adjournments to be granted. On various occasions when adjournments were granted, it was made known to the parties that, no further accommodation would be granted to the parties and that the parties should prepare themselves to address the Court on merits, if they so desired.
In such circumstances, W.P. 137 of 2014 and W.P. 11913(W) of 2016 are dismissed. CAN 3205 of 2019 and CAN 8512 of 2019 are also dismissed. With the dismissal of the two writ petitions, all interim orders passed therein stand vacated.
It is clarified that, this order will not prevent the parties to avail of their remedies before the appropriate forum, in accordance with law.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite 10 formalities.
(Debangsu Basak, J.)