Allahabad High Court
Indian Olympic Association, New Delhi ... vs District Judge, Varanasi And Others on 14 September, 1999
Equivalent citations: 1999(4)AWC3330
JUDGMENT O.P. Garg, J.
1. The present application on behalf of the U. P. Olympic Association which is a registered society, has been filed through Sri Lokpati Tripathi for review/recall of the order dated 5.5.1999 whereby Civil Misc. Writ No. 17745 of 1999 was allowed by this Court. It is prayed that an opportunity may be afforded to the applicant to oppose and contest the writ petition aforesaid.
2. Shorn of all superfluities and technicalities, the present application for review/recall has been moved primarily on the following grounds :
(1) that the writ petition aforesaid was decided to the serious detriment and against the interest of the applicant, which was not represented at all though it was impteaded as petitioner No. 2 by an unauthorised person, and, therefore, the decision, howsoever lengthy and elaborate it may be, it is In effect ex parte, and, therefore, cannot be sustained against the applicant ;
(2) that the order passed by this Court which is In the form of mandamus could not be granted as it was cognizable only by a Division Bench and this Court sitting singly could not enlarge the scope of the suit by granting the relief which was not claimed ;
(3) that the writ petition was filed by misrepresenting and concealing the material facts and, therefore, the Court was misled In allowing the writ petition by order dated 5.5.1999;
(4) that the applicant--U. P. Olympic Association is an independent registered society and the Indian Olympic Association which Is a distinct legal entity, cannot control the affairs of the U. P. Olympic Association and that the parties could not enter into any agreement whereby the jurisdiction of the appropriate competent court could be ousted ; and the last but not the least ;
(5) that the order dated 5.5.1999 which is sought to be recalled suffers from glaring errors apparent on the face of record.
3. Heard Sri R. N. Singh, Senior Advocate, appearing on behalf of Razauddln respondent No. 3. S/Sri Ajit Kumar and Girdhar Gopal on behalf of the present applicant : U. P. Olympic Association through Sri Lokpati Tripathi as well as Sri Vijai Bahadur Singh for the original three petitioners, at considerable length and waded through the all pervasive factual and legal grounds, which have been taken in the review/recall application, loaded with plethora of decisions in support of each and every point whether material or Immaterial.
4. The core question, which surfaces for determination on the basis of which the parties would primarily swim or sink is whether, in fact, the present applicant--U. P. Olympic Association was properly represented by an authorised person or not.
5. Before taking up the various allegations made in the application for review/recall, it would be proper to analyse the powers and authority of the Indian Olympic Association (for short 'IOA') vis-a-vis U. P. Olympic Association (for short 'UPOA'). Admittedly, IOA is a society registered under the Societies Registration Act. It has Its own Constitution. One of the objects of the IOA is to admit the members of the State Olympic Associations and National Sports, Federations, which shall be required to submit their annual reports and audited statement of accounts to the IOA for Information (Clause III. 15). The Rules and Regulations of the IOA in Clause (iii) provide for the membership of the Association which is open to Olympic Associations of States, as well as Centrally Administered Union Territories. The various Associations. Federations and State Olympic Associations, which become the members of the IOA may be disaffiliated/de-recognized and suspended, as Is contemplated in Clause XXV and under Clause XXVI an individual or a group of Individuals from the National Sports Federation/ Association/State Olympic Associations may be expelled according to the procedures prescribed. In the list of the members appended with the Rules of IOA, the UPOA is found at SI. No. 20. Though the UPOA is an Independent registered body, it Is bound by the Rules and Regulations of the IOA since it has voluntarily adopted the membership of IOA. Rule XIX which has been subject-matter of interpretation by the Apex Court deals with settlement of disputes/ conflicts in the National Sports Federations/State Olympic Associations. For clarity and better understanding, it would be proper to quote, in extenso the relevant part of the aforesaid Rule :
"(i) All National Sports Federations/Associations/ State Olympic Associations affiliated to IOA shall include in their Constitution a provision that the Federations /Associations would have all unresolved disputes settled by the IOA and their Members shall voluntarily surrender their right of seeking redress in any Court of law.
(ii) Every member shall be deemed to continue its membership of the IOA on the specific condition that it voluntarily surrenders its right of seeking redress in any Court of Law.
(iii) All unresolved disputes arising within the National Sports Federations/ Associations/State Olympic Associations affiliated to the IOA shall be referred by the Federations/ Associations to the IOA for settlement by the IOA, For this purpose, the IOA Executive Council on the recommendation of the President IOA, shall recommend 9 names to the disputing parties, to select one name, in consultation with the President IOA, which is acceptable to both the parties. The Arbitration proceedings shall be completed within the period specified by the IOA Executive Council. President IOA, based on the circumstances of the case has the authority to extend or vary, the period.
(iv) ....."
A plain reading of the aforesaid provision would Indicate that the UPOA being a member of the IOA has voluntarily surrendered Its right of seeking redress in any Court of law and it being the member of the IOA, shall be deemed to continue its membership of the IOA on the specific condition that it has voluntarily surrendered its right of seeking the redress in any Court of law. Clause (iii) above provides proceedings before the arbitrator, who is to be appointed out of the 9 names recommended by the President of the IOA to the disputing parties. The submission of the learned counsel for the applicant that no agreement can be arrived at to restrain legal proceedings or to oust the jurisdiction of the competent court, with reference to the decisions in Mahendra Pal v. State, 1965 ALJ 538 ; Nihal Chand Shastri u. Dilawar Khan and others, AIR 1933 All 417 (FB) and M/s. Pattnaik Industries Put. Ltd. v. Kalinga Iron Works and another, AIR 1984 Ori 182, is otiose. The decisions aforesaid are on an entirely different footing. In the instant case, the applicant has voluntarily acquired the membership of IOA on the clear understanding that it is bound by clause XIX above. It has surrendered its right to approach the Court. The reason for doing so is not too far to seek. In Madhya Pradesh Triathlon Association and another v. Indian Triathlon Federation and others. AIR 1997 SC 2398, the Apex Court lamented and noted with great concern that the Associations instead of promoting the sports in the track and field are engaged in wasting their time, money and energy in Court proceedings and protracted litigations, but felt happy by taking note of a heartening fact that the parties have agreed for the settlement of the disputes in the manner contemplated in Rule XIX, aforesaid. In this manner, Rule XIX has received recognition and approval of the Apex Court and the tone and tenor of the decision aforesaid as well as that of K. Murugan v. Fincing Association of India Jabalpur and others. (1991) 2 SCO 412, is that in the field of sports, it is of paramount Importance that where there are warring factions, healthy conditions must be restored into the working of the society by taking recourse to clause XIX above to get out of the malady as early as possible. It would be too genteel to discourse before this Court that the voluntary submission of UPOA to the arbitration proceedings under clause XIX is contrary to law. If the submission of the learned counsel for the applicant is accepted in that case, perhaps recourse to arbitral proceedings would become a myth. The arbitral proceedings cannot be stultified on the ground as canvassed by learned counsel for the applicant.
6. In the instant case, the UPOA there was cut-throat rivalry amongst its members and office-bearers. There was a keen desire of one group or the other to capture the UPOA. The dispute was sought to be resolved by 1OA and in terms of clause XIX (iii), one Lt. Col. N. Kumar was appointed as Arbitrator on 4.8.1997. Razauddin, who was Secretary at that time, made all out attempts to thwart the arbitration proceedings but was unsuccessful for the reasons stated in the body of the judgment at pages 3 and 4 by which Writ Petition No. 17745 of 1999 was decided. Ultimately, an award was delivered in the form of recommendations made by Lt. Col. N. Kumar on 10.12.1997 that fresh election of the office bearers of UPOA be conducted under the supervision of IOA. The President of the IOA accepted the recommendation made by Arbitrator and authorised him to hold the fresh elections which were held on 9.7.1988 at Meerut. In these elections, petitioner No. 3 Anandeshwar Pandey was elected as General Secretary of UPOA with Mohd. Aslam Khan as President. Mohd. Razauddin, deposed General Secretary approached Delhi High Court by filing Writ Petition No. 1051 of 1998 in which C.M.P. No. 1745 of 1998 was moved for Interim relief. Delhi High Court passed an order dated 4.3.1998 directing that the Arbitration Board shall not pronounce any award. When it was brought to the notice of the Delhi High Court in the aforesaid writ petition that the award had already been made , on 10.12.1997, by a subsequent order dated 16.4.1998, Delhi High Court took note of it and directed the parties to obtain instructions and to file reply and rejoinder-affidavits. The said writ petition before the Delhi High Court was an exercise in futility. The fact, therefore, remains that in terms of clause XIX, arbitral proceedings had taken place and In pursuance of the binding award which remained unassalled, the elections were held under the authority of IOA by the Arbitrator on 9.7.1998 in which Anandeshwar Pandey as said above, was elected as General Secretary. Under the Constitution of UPOA, it is General Secretary who represents the Association in the legal proceedings.
7. In the backdrop of the above facts, now I take up the other contention of Sri Ajit Kumar that UPOA applicant, though was made petitioner No. 2 In the writ petition, was not properly represented. According to the applicant, Lokpati Tripathi is the President of the UPOA while Mohd. Razauddin who was respondent No- 3 in the writ petition is its General Secretary. As a matter of fact, the present application could have been filed under the constitution of the UPOA, through its General Secretary, who according to the applicant is Mohd. Razauddin. Since Mohd. Razauddin was already a party to the writ petition, the present application could not have been moved through him and therefore, as a tactical device, the application has been filed through Lokpati Tripathi, claiming himself to be the President of the UPOA. The present application through the President of the Association is not maintainable in view of the specific provision made in the constitution of UPOA. Even otherwise, it cannot be said that the present applicant, which was arrayed as petitioner No. 2 was not properly represented and that the order passed in the writ petition is ex parte. This submission moves in a circle and Is neither here nor there. Since Anandeshwar Pandey petitioner No. 3 had been duly elected as General Secretary, he had the authority, competence and power to represent UPOA--petitioner No. 2. Since Mohd. Razauddin was the ex-General Secretary and was pursuing Suit No. 621 of 1997, he was arrayed as respondent No. 3. He was represented by his counsel at the time of hearing of the writ petition and a categorical statement, in unequivocal terms, was made before this Court, a mention of which fact has been made in the earlier order that no counter-affidavit is required to be filed on behalf of Mohd. Razauddin and the petition be decided on the material available on record. Even if it be taken that Mohd. Razauddin who, according to the applicant is the General Secretary he had been heard and given due opportunity to place his points of view. The various contentions which have been raised on his behalf were duly considered. In any view of the matter, applicant was not unrepresented and the decision made in the writ petition ; which is sought to be reviewed/recalled on merits after hearing the parties. Including the applicant, cannot be termed as ex parte. Since the writ petition was decided after hearing the affected parties, including the present applicant Mohd. Razauddin respondent No. 3, the present application for review/recall on the ground aforesaid is not maintainable and, therefore, the various decisions referred to by Sri Ajit Kumar in support of the contention that the impugned order was passed without impleading the proper party, such as, Mashkoor, Hasan Khan and others v. Zila Parishad Muzaffarnagar, 1977 AWC 640 ; Udit Narain Singh v. Additional Member, Board of Revenue, Bihar and another. AIR 1963 SC 786 ; Most Rev. P. M. A. Metropolitan and others v. Moran Mar Marthoma and another, 1995 Supp. (4) SCC 286 ; Bhagwati and others v. Subordinate Services Selection Board Haryana and another, 1995 Supp. (2) SCC 663 and Ishwar Singh Ajay Kumar and others v. Kuldip Singh and others, 1995 Supp (1) SCC 179, are of no assistance to decide the controversy in hand.
8. A short and swift reference may be made to the point canvassed by Sri Ajit Kumar that the writ of mandamus could not have been granted by this Court sitting singly as it could only be granted by a Division Bench of this Court and that the relief of injunction, which has been granted while allowing the writ petition tantamount to widening the scope of suit, inasmuch as, a relief, which was not claimed, has been granted. Sri R. N. Singh learned counsel for Mohd. Razauddin has taken exception to the last part of the operative portion, namely, ".....and the office bearers of UPOA elected on 9.7.1998 shall continue to function" on the ground that it was uncalled for and as a matter of fact, was not in keeping with the prayer made by the petitioners in the writ petition. I have given thoughtful consideration to this point as the learned counsel for the parties have deliberated upon it at some length. The offending part of the order, in my view, is the natural corollary and consequence of the quashing of the orders dated 27.1.1999 and 24.3.1999. The moment the writ petition was allowed by quashing the orders dated 27.1.1999. Annexure-14 to the writ petition, passed by the trial court and the order dated 24.3.1999. Annexure-15 passed by the revisional court, naturally the right of the body elected on 9.7.1998 to function and to manage the affairs of the UPOA was accepted and acknowledged. The Irksome part of the order is the necessary concomitant and manifestation of the consequence of the quashing of the orders aforesaid. Lest, there be any ambiguity leading to further unwanted litigation between the two factions of the Association which was brought into existence with an avowed object of development of sports and games within the State under the aegis of IOA. a complete and explicit order was passed as a matter of abundant precaution. This fact cannot be lost sight of that the Court has the power to modulate and carve out the relief, as may be necessary, on the facts and in the circumstances of the case and such relief may be culled out from the general prayer made in the writ petition that the "Court may issue any other suitable writ, order, or direction, as it may deem fit and proper in the facts and circumstances of the case".
9. The other limb of the submission of Sri Ajit Kumar that this Court, sitting singly, had no jurisdiction to pass an order of injunction or to issue a writ of mandamus, is being stated simply to be rejected as this submission is based on murky and unstable foundation. Once a writ petition is entertained and made over for hearing under the Rules of the Court by a single Judge, any form of writ whether it be in the nature of writ of certtorari or writ of mandamus, can be issued. It sounds ridiculous that a single Judge can quash the orders by Issuing writ of certiorari but cannot issue a direction commanding the concerned authority to do a particular thing or not to do, which is the content of the writ of mandamus.
10. A global submission was made that the order dated 5.5.1999 was obtained by the petitioners by misrepresenting and concealing the facts. On the strength of the decision of the Division Bench of this Court in M/s. Goverdhan Kagaj Udyog Rankuta, Agra v. U. P. Financial Corporation and others. 1991 AWC 278. It was urged by Sri Ajit Kumar that since the petitioners have been guilty of suppression and misrepresentation of material facts, they had forfeited the claim for any discretionary relief in the writ Jurisdiction under Article 226 of the Constitution of India. This submission was contested tooth and nail by Sri Vijay Bahadur Singh. It was urged that an insinuating sweeping allegation has been made with a view to prejudice the mind of the Court while there was no concrete and tangible fact, which may have been concealed by the petitioners. It was vehemently contended that the petitioners have placed the case, as it is without concealing or suppressing any fact and that there was no misrepresentation of any sort. After having heard the elaborate submissions of the learned counsel for the parties, I feel that the uncharitable plea taken by Sri Ajit Kumar is ornamental in nature and it does not, in any manner, dig at the root of the case. As a matter of fact, Mohd. Razauddin who had contested the petition on behalf of the applicant did not raise any such plea of concealment or suppression and misrepresentation of the facts though he was well versed with all the necessary facts.
11. Now it is the time to consider whether the present review/recall application is maintainable in law or not. The finding on this point would turn on the question whether the order sought to be reviewed/recalled is afflicted by the vice of any 'error apparent on the face of the record'. Unless the applicant is able to point out any error apparent on the face of record in the order, it cannot maintain the review/recall application. Sri R. N. Singh, learned counsel for Mohd. Razauddln respondent No. 3, whom Sri Ajit Kumar and Girdhar Gopal learned counsel for the applicant also supported, urged that this Court would not hesitate to step in to rectify the mistake, if any which has crept in the earlier decision whether it was a mistake on the part of any one of the parties, their lawyers or the Court. There can be no quarrel about the proposition of law that if an error apparent on the face of record has crept in, for whatever reasons it may be it has to be corrected on a review or recall application. But, certainly it has to be established that the earlier order Is the outcome of an error apparent on the face of record.
12. It is well-settled that review proceedings have to be strictly confined to the ambit and scope of Order XLVII, Rule 1, Code of Civil Procedure. In M/s. Thungabhadra Industries Ltd. v. Government of Andhra Pradesh, AIR 1964 SC 1372, it was observed that a review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but is only for patent error. Again in Meera Bhanja (Smt) v. Nirmala Kumari Chaudhary (Smt), (1995) 1 SCC 170, while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389. Apex Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1. C.P.C. Under Order XLVII, Rule 1, C.P.C., a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1, C.P.C. In exercise of the jurisdiction under Order XLVII. Rule 1, C.P.C., it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered, has a limited purpose and cannot be allowed to be 'an appeal in disguise'. A party is not entitled to seek a review of a judgment delivered by the Court merely for the purpose of rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so ; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its Judgment: G.L. Gupta v. D. N. Mehta, (1971) 3 SCC 189. The Court may also reopen its Judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice : O.N. Mohindroo v. District Judge, Delhi. (1971) 3 SCC 5. But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept fn earlier order by judicial fallibility" : Sow Chandra Kante v. Sheikh Habib. (1975) 3 SCR 933 ; also see Northern India Caterers (India) Ltd. v. Lt. Governor Delhi, (1980) 2 SCC 167. In Parison Devi v. Savitri Devt, 1998 ACJ 399 (SC), the law laid down in the aforesaid decisions was reiterated by observing that a mistake or error apparent on the face of record is one which is self evident and does not require a process of reasoning. It is distinct from erroneous decisions and, therefore, rehearing the matter for detecting an error in the earlier decision and then correcting the same do not fall within the ambit of review jurisdiction. In some cases, power of review may be exercised on the discovery of new and important matter which after due diligence was not in the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. It s not the position in the present case. The words 'or other sufficient reason' must mean a reason, sufficient on grounds, at least analogous to those specified in the rule : M.M.B. Catholicos v. M.P. Athanasins, AIR 1954 SC 526. The review must be such as would be apparent on mere looking of the record without requiring any long drawn process of reasoning. Reappraisal of the entire evidence on record for finding the error would result in exercising appellate jurisdiction which Is not permissible.
13. The review petition has to be entertained only on the ground of error apparent on the face of record and not on any other ground. An error apparent on the face of record must be such error, which must strike one on mere looking at the record and would not require any long drawn looking on the point.
14. In my quest to reach an appropriate conclusion with regard to the maintainability of the present application for review and recall, I have virtually applied the microscopic standard to find but an error in the earlier decision but to my chagrin, 'no error, much less, error apparent on the face of record' is discernible. As a matter of fact, by moving the present application for review/recall. Sri Lokpati Tripathi, President of UPOA is cashing an opportunity to play a second Inning. Mohd. Razauddin is an alter ego of his alleged President and since he was a party to the earlier petition and was duly represented for contesting the same, the matter cannot be reopened all over again by camouflaging the application for review/recall through its President.
15. For the reasons stated above, the review petition lacks substance and merits and is accordingly dismissed.