A.C. Muthiah vs Bd. Of Control For Cricket In India& Anr

judgment dated March 24, 2010, rendered in OSA

2

Nos. 226 to 229 of 2009 by the Division Bench of

the High Court of Judicature at Madras, by which,

the order dated July 13, 2009 in OA No. 1042 of

2008, filed in Civil Suit No. 930 of 2008 with OA

Nos. 1299, 1300 and 5740 of 2008, filed in Civil

Suit No. 1167 of 2008, refusing to grant four reliefs

sought, namely, (1) to grant mandatory temporary

injunction directing the respondent No. 1 herein to

act under Clause 32(ii) of Memorandum and Rules

and Regulations ("Regulations" for short) of the

respondent No. 1 by appointing a Commissioner to

make preliminary inquiry against the respondent

No. 2 pending disposal of Civil Suit No. 930 of 2008,

(2) to suspend the amendment to Clause 6.2.4 in

the Regulations for players, team officials,

managers, umpires and administrators and Board

of Control for Cricket in India (for short "BCCI")

Code 2008, which permits an administrator to have

directly or indirectly commercial interest in the

matches or events like Indian Premier League ("IPL"

3 for short) or Champions League Twenty 20, (3) to

grant temporary injunction restraining the

respondent No. 2 from functioning as Secretary of

BCCI and (4) to grant mandatory temporary

injunction directing BCCI not to permit the

respondent No. 2 to contest any of the posts of office

bearers in future for a reasonable number of years

as the Court thinks fit, is upheld.

3. In order to understand the controversy raised in the

instant cases it will be relevant to notice the

essential facts emerging from record of the case.

The BCCI was formed in the year 1928. Initially it

was functioning as an unregistered association of

persons. However, subsequently it was registered in the

year 1940, under the Societies Registration Act, 1860.

After the enactment of the Tamil Nadu Societies

Registration Act, 1975, which came into effect from April

22, 1978, it is registered under the said Act. Under

Section 6 of the Act of 1975, any society seeking to

4

register itself has to submit its Memorandum of

Association and regulations/bye-laws/rules. In respect

of BCCI, the Memorandum of Associations and the

Regulations/Rules, as required by the said Act, have

been submitted. The record of the case shows that

registration of BCCI as a Society is governed by those two

documents.

The object of BCCI is to control the game of cricket

in India and give its decision on all matters which may be

referred to it. Another object is to encourage the

formation of State, regional or other cricket associations

in the country. The other objects have been enumerated

in detail in the Memorandum of Association, but the

Court is of the opinion that it is not necessary to make a

detailed reference to the same.

The respondent No. 1, i.e., the BCCI sent an

invitation to India Cements Limited based at Chennai

and represented by its Managing Director Mr. N.

Srinivasan, who is respondent No. 2 herein, on December

5

29, 2007, to participate in the auction conducted by IPL.

It may be mentioned that at that time the respondent No.

2 was also the Honorary Treasurer of BCCI and the

President of Tamil Nadu Cricket Association. The

respondent No. 2, on behalf of India Cements Limited,

participated in the auction and was awarded the

franchised IPL rights for ownership of Chennai Super

Kings team by the BCCI.

4. The appellant is the Ex-President of BCCI.

According to him, he is an administrator as defined

in Clause 1(n) of the Regulations framed by BCCI.

The appellant addressed a letter dated September 5,

2008 to the President of BCCI and made complaint

about the violation of Clause 6.2.4 of the

Regulations by the respondent No. 2. In the said

letter it was claimed by the appellant that the

respondent No. 2 was liable to be penalized since he

is the Managing Director of India Cements Limited,

which was one of the franchisee of IPL and IPL

6

being an event of BCCI, the respondent No. 2 had

thereby acquired commercial interest and violated

the terms of Clause 6.2.4 of the Regulations. The

appellant wrote another letter on September 19,

2008 to the President of BCCI reiterating his

grievance against the respondent No. 2 and urged

the then President of BCCI to take action against

the respondent No. 2. Since no action was taken by

the President of the BCCI on the complaints

submitted by the appellant, the appellant has filed

Civil Suit No. 930 of 2008 in the High Court of

Madras at Chennai seeking a permanent injunction

to restrain BCCI from permitting the respondent No.

2 to participate in the General Body Meeting

scheduled in Mumbai on September 27, 2008 or on

any other subsequent date, which would be

convened in relation to election of new office

bearers. The appellant has also sought permanent

mandatory injunction directing BCCI to initiate

inquiry under clause 32(ii) of the Regulations, by

7

appointing a Commissioner to make a preliminary

inquiry against the respondent No. 2. Another relief

claimed by the appellant in the said suit is for

mandatory injunction directing the respondent No.

1 to exercise his powers as per Clause 8(6) of the

Regulations by suspending the respondent No. 2 as

Treasurer of the respondent No. 1 pending inquiry.

The said suit is filed on the ground that the

respondent No. 2, who was then holding the post of

Honorary Treasurer of BCCI and was also the

Managing Director India Cement Limited, should

not have been awarded franchised IPL rights for

ownership of Chennai Super Kings Team by BCCI

and award of such rights amounted to an act of

indiscipline or misconduct within the scope of

Clause 32(ii) of the Regulations.

5. Along with the plaint of the suit, the appellant also

filed three applications, particulars of which are as

under: -

8 OA No. 1041 of 2008 in which it was prayed to issue

temporary injunction restraining the respondent No. 1,

i.e., BCCI, from permitting the respondent No. 2 to

participate in the General Body Meeting scheduled at

Mumbai on September 27, 2008 or any other subsequent

date for consideration of election of the new office bearers

of the respondent No. 1 and for restraining the

respondent No. 2 from contesting the election for the post

of Secretary pending disposal of the suit. The record

unerringly shows that the said OA was dismissed by the

High Court vide order dated September 26, 2008. OA No.

1042 of 2008 was filed praying to issue a mandatory

temporary injunction directing the respondent No. 1 to

act under Clause 32(ii) of the Regulations framed by the

respondent No. 1, by appointing a Commissioner to make

a preliminary inquiry against the respondent No. 2,

pending disposal of the suit. The third application, i.e.,

OA No. 1043 of 2008 was filed by the appellant seeking

temporary injunction directing the respondent No. 1 to

exercise his powers under Clause 8(6) of the Regulations.

9

6. As the Court did not grant ex-parte temporary

injunctions as prayed for by the appellant, the

respondent No. 2 participated in the Annual General

Meeting, which was scheduled in Mumbai on

September 27, 2008. Wherein the respondent No.2 was

elected as Secretary of the respondent No. 1. On the

same day an amendment in Clause 6.2.4 of the

Regulations for players, team officials, managers, etc.,

was made with effect from September 27, 2008 and the

amended Clause 6.2.4 provided as under: -

"No administrator shall have directly or

indirectly any commercial interest in the

matches or events conducted by BCCI

excluding events like IPL or Champions League

Twenty 20."

Aggrieved by the amendment carried out in the

Regulations of the respondent No. 1, the appellant has

filed another suit in the High Court, i.e., Civil Suit No.

1167 of 2008 alleging that the amendment in Clause

6.2.4 of the Regulations was made to protect the interest

of the respondent No. 2. The main prayer made in the

10

said suit is to: (1) declare that Clause 6.2.4 of the

Regulations insofar as it excludes the IPL and Champions

League Twenty 20 is illegal and opposed to public policy

(2) For permanent injunction restraining the respondent

No. 2 from functioning as Secretary of BCCI and (3) For

mandatory injunction directing BCCI not to permit the

respondent No. 2 from contesting any of the posts of the

office bearers.

7. The appellant also filed three other interim

applications for reliefs pending the above numbered

suits. The appellant filed OA No. 1299 of 2008 in Civil

Suit No. 1167 of 2008 with a prayer to suspend

operation of the amendment made in Clause 6.2.4 of

the Regulations. OA No. 1300 of 2008 was also filed in

the said suit claiming temporary injunction to restrain

the respondent No. 2 from functioning as Secretary of

BCCI. Further OA No. 5740 of 2008 was filed in the

later suit seeking mandatory temporary injunction

directing the BCCI not to permit the respondent No. 2

11

to contest any of the posts of the office bearers in

future for a reasonable number of years as the Court

thought fit.

8. The learned Single Judge of the High Court dismissed

OA No. 1042 of 2008, which was filed in Civil Suit No.

930 of 2008 as well as OA No. 1299 of 2008, 1300 of

2008 and 5740 of 2008 filed in Civil Suit No. 1167 of

2008 vide order dated July 13, 2009.

9. Feeling aggrieved by order dated July 13, 2009 of the

learned Single Judge of the High Court, the appellant

filed OSA Nos. 226 to 229 of 2009, particulars of

which are as under: -

OSA No. 226 of 2009 was filed against order in OA

No. 1042 of 2008, OSA No. 227 of 2009 was filed against

order in OA No. 1299 of 2008, OSA No. 228 of 2009 was

filed against order in OA No. 1300 of 2008 whereas OSA

No. 229 of 2009 was filed against order in OA No. 5740 of

2008. In each appeal, reply was filed by the respondents.

After considering the rival claims of the parties,

12

necessary issues for determination were framed.

Ultimately, by the impugned judgment dated March 24,

2010, the High Court has dismissed the appeals which

has given rise to the instant appeals.

10.It would be relevant to notice the findings of the High

Court, in short, which are as under:

Before the High Court the contention of the

appellant was that the suits were filed by him in the

capacity of past President of BCCI as he was an

administrator within the meaning of the said phrase, as

defined in Clause 1(n) of the Regulations. The

respondent No. 1 contended that the suits were

instituted by the appellant in his individual capacity and,

therefore, the decision would be binding only on him but

the nature of the reliefs claimed indicated that the suits

were filed in public interest and, therefore, the suits in

individual capacity were not maintainable. The High

Court noticed that the proper course for a person for

instituting a suit in representative capacity was to obtain

13

permission of the Court before instituting the suit. The

High Court found that in the present case no such

permission was taken even after filing of the suits.

Having so held, the High Court expressed opinion that

this question could be decided only after trial was held

but for the purpose of grant or refusal of the injunction

orders claimed only a prima facie consideration was

required. Thus, considering the matter prima facie, the

High Court found that neither in the two complaints

made by the appellant nor in the para relating to cause of

action in the plaint of Civil Suit No. 930 of 2008, the

appellant had stated that he was filing the suit in the

capacity of an administrator and, therefore, both the

suits were filed by the appellant in his individual capacity

and not in the capacity of an administrator. The High

Court noticed that the application by the appellant, i.e.,

O.A. No.1041 of 2008, praying for an injunction to

restrain BCCI from permitting the respondent No.2, to

participate in the General Body Meeting etc, was rejected

by the High Court vide order dated September 26, 2008,

14

the said order was not challenged by the appellant. The

High Court was also of the view that on mere allegations,

an injunction could not be ordered against the

respondent No.2 from participating in the General Body

Meeting convened, to elect the office bearers, as those

allegations were yet to be substantiated at the time of the

trial. The contention of the appellant that the provisions

of clause 6.2.4 should be read with MOA and Regulations

of BCCI was not accepted. The High Court was of the

opinion that the clause as it stood today, excludes certain

events wherein even the administrator can franchise a

team in Twenty-20 matches, which is an activity purely

commercial in nature. According to the High Court no

materials were placed before the Court to indicate

whether IPL matches were official matches conducted by

BCCI or they were conducted on commercial basis and in

the absence of the relevant materials as well as in view of

the fact that parties were also entitled to let in evidence

at the time of trial, the exclusion in the clause which was

incorporated in the Rules and Regulations cannot be

15

stayed unless a strong prima facie case was made out.

The Court was also of the opinion that by way of interim

order, the very clause, which is subject-matter of the

challenge in the suit, cannot be suspended and there was

no reason to hold that such clause is opposed to public

also. According to the High Court except the two

complaints dated 5.9.2008 and 19.9.2008 no other

subsequent complaints were filed by the appellant. The

Court noticed that clause 32(ii) of the Rules enjoined

BCCI which is the authority to receive the complaints

and to refer the same within 48 hours to the

Commissioner to be appointed by BCCI to make a

preliminary inquiry and in the event such Commissioner

was not appointed and inquiry was also not ordered,

clause 37 could be pressed into service for referring such

a dispute to arbitration but such a course was not

adopted by the appellant. While considering the question

as to how the power to grant an ad-interim injunction

should be exercised, the Court referred to the decisions

in Dalpat Kumar And Another Vs. Prahlad Singh And

16

Others (1992) 1 SCC 719 and S. Krishnaswamy Vs.

South India Film Chamber of Commerce AIR 1969

Madras 42) and ultimately dismissed the application for

injunctions vide order dated July 13, 2009.

11.Dr. Abhishek Manu Singhvi referred to clause 1(n) of

the BCCI Regulations of 1994 and argued that the said

clause imparts locus to all the administrators which

includes former President and, therefore, the finding

recorded by the Division Bench of the High Court in

the impugned judgment that the appellant has no

locus standi is not only recorded in ignorance of the

first complaint filed by the appellant on 5.9.2008 in

the capacity of the former administrator and second

complaint dated 12.92008 by which jurisdiction of

BCCI was invoked by the appellant in the capacity of

former President of BCCI but is contrary to what is

averred in para 4 of the plaint and the same deserves

to be set aside. According to the learned counsel for

the appellant, the power of a Civil Court under Section

17 9 of the CPC is plenary, unrestricted and extremely

wide, subject only to specific statutory curtailment

thereof and, therefore, implied circumscribing of the

power of Civil Courts should not have been readily

assumed or casually inferred as was done by the High

Court in the impugned judgment. The learned counsel

emphasized that in the present case there is no

statutory curtailment of the power of Civil Court to

grant interim or injunctive relief and those who feel

aggrieved are not intended to be rendered remedy less

by the Rules and Regulations of BCCI.

12. As against this Mr. G.E. Vahanvati, learned

Attorney General for the respondent No.1 and Mr. R.F.

Nariman, learned Senior counsel for the respondent No.2

argued that the contention of the appellant based on the

definition of "Administrator" is not consistent with the

plaint in the civil suit filed before the Madras High Court

in which the appellant has primarily described himself as

someone interested in the promotion of the game of

18

cricket in India and in maintaining the purity of the

administration of the BCCI. It was stressed that

reference to the appellant being a past president in the

plaint is only incidental and by way of narrative, but no

right as administrator is sought to be enforced by filing

the suit. According to the learned counsel for the

respondents, the reference to a past president or former

office bearer in the definition of administrator is to make

the administrator subject to the constraints of Rule 32 of

the Rules and Regulation so that if it is found that an

administrator including a former office bearer has

committed any misconduct, he can be debarred, on

conclusion of an inquiry, if found guilty, from holding

any position or office with the respondent No.1 in future

or to be admitted in any sub committee or as an

associate member of the respondent No.1 BCCI. The

learned counsel for the respondents explained that in the

entire Rules and Regulations the word "Administrator" is

found only in rule 32 and on proper construction as well

as reading of Rules 32(i), (iv) and (v) show that an

19

administrator can be appointed to a committee and,

therefore, merely because the appellant is an

administrator, i.e., past president of the respondent No.

1, that fact does not confer any right on him as a

member of the respondent No.1 BCCI. What was

maintained before the Court by the learned counsel for

the respondents was that a public interest suit is

unknown to law and as such a suit can be filed invoking

the provisions of Section 91 of CPC, but to maintain a

suit under Section 91 of CPC the plaintiff will have to get

the leave of the Court before institution of the suit and

two or more persons will have to join as plaintiff in the

suit and as admittedly the present suits were not filed

invoking the provisions of Section 91 of CPC, the suits in

the public interest would be maintainable. It was

submitted that the appellant could have maintained a

writ petition as public interest litigation but he did not

file a writ petition because he would have been required

to disclose that he had lost the election against the

respondent No. 2 by huge margin which would have

20

destroyed the public interest element and thus even if he

would not have disclosed as was not done in the present

proceedings also, the respondent would have pointed out

relevant facts to the Court. Another reason which had

weighed with the appellant in not filing the writ petition

as public interest litigation was that in all probability the

petition would have been summarily dismissed on the

ground that it involved determination of highly disputed

question of facts. The learned counsel asserted that good

grounds have been recorded by the High Court for

coming to the conclusion that civil suits of the nature

filed by the appellant were not maintainable and,

therefore, the judgment impugned should be upheld by

this Court.

13.This Court has heard the learned counsel for the

parties at length and in great detail. This Court has

also considered the documents forming part of the

appeals and the relevant Regulations framed by the

BCCI.

21 14. In view of the rival contentions raised by the learned

counsel for the parties, this Court will have to consider

the question whether the appellant can be regarded as

administrator within the meaning of the Rules and

Regulations of the BCCI. Admittedly, the appellant is not

a member, as defined in Clause 1(b) of the Regulations of

the respondent No. 1. It is not his case that either he is a

Full Member or an Association member or an Affiliate

Member of the respondent No. 1 within the meaning of

Clause 3 of the Regulations. Though the term

"Administrator" includes a past president, the same

would be applicable to a past president only in so far as

he is connected with the administration of BCCI in

representing as a nominated member of the sub-

committee of the BCCI. Clause 1(n) defining the term

"Administrator" reads as under: -

"Administrator : An Administrator shall mean

and include present and former Presidents,

Vice Presidents, Hony. Secretaries, Hony.

Treasurers, Hony. Jt. Secretaries of the Board

of Control for Cricket in India ("the Board"),

past and present Presidents and Secretaries of

members affiliated to BCCI, a representative of

22

member or an Associate member or affiliate

member of the Board and any person

connected with any of the sub-committee

appointed by the Board as defined in the

Memorandum and Rules and Regulations of

the Board."

Whereas Clause 32 of the Regulations, relied upon by the

learned counsel for the respondents, reads as under: -

"32. MISCONDUCT AND PROCEDURE TO

DEAL WITH :

(i) The Board shall have a power to frame

Bye-laws regarding the discipline and

conduct of the players, umpires, team

officials, administrators, referees and

selector and shall have a power to

amend the same from time to time.

(ii) In the event of any complaint being

received from any quarter or based on

any report published or circulated or on

its own motion, in the subject matter of

any act of indiscipline or misconduct or

violation of any of Rules and

Regulations by any Player, Umpire,

Team Official, Selector or any person

appointed or employed by BCCI, the

President shall refer the same within 48

hours to a Commissioner appointed by

the Board to make a preliminary

enquiry.

The commissioner shall forthwith make

preliminary inquiry and call for

explanations from the concerned

person(s) and submit his report to the

23

President not later than 15 days from the

date of reference being made by the

President. On receipt of the report, the

President shall forthwith forward the

same to the Disciplinary Committee.

(iii) (a)

Immediately on receipt of a Report

as contained in Clause 32 (ii) above,

the committee would call for all

particulars and unless it decides,

that there is no prima facie case and

be accordingly dropped, commence

hearing the subject case and

complete the same as expeditiously

as possible and decide the subject

issues by providing reasonable

opportunity to the parties of being

heard. None of the parties shall be

entitled to be represented by any

lawyer. If, despite due notice, any

party fails to submit any cause or

submits insufficient cause, the

Committee shall after providing

reasonable opportunity of hearing to

the parties concerned, take

appropriate action. In the event any

party refuses and or fails to appear

despite notice, the Committee shall

be at liberty to proceed ex-parte on

the basis of the available records

and evidence. The Place of hearing

shall be decided by the Committee

from time to time. The Committee

shall have the power to impose

penalties as provided in the

Regulations for players, Team

24

officials managers and Umpires of

the Board.

(b) The decision of the Committee shall be

final and binding and shall come into

force forthwith on being pronounced

and delivered.

(iv) If any Member or Associate Member or

any Administrator of the Board commits

any act of indiscipline or misconduct or

acts in any manner which may or likely

to be detrimental to the interest of the

Board or the game of cricket or endanger

the harmony or affect the reputation or

interest of the Board or refuses or

neglects to comply with any of the

provisions of the Memorandum and/or

the Rules and Regulations of the Board

and/or the Rules of conduct framed by

the Board, the Hony. Secretary of the

Board, on receipt of the complaint shall,

in consultation with the President,

forthwith issue Show Cause Notice calling

for explanation and on receipt of the

same and/or in case of no cause or

insufficient cause being shown, shall

refer the same to the Committee. The

Committee shall after providing

opportunity of hearing to the parties

concerned shall submit its findings to the

Board. The Board shall at the Special

General Meeting specially convened take

appropriate decision by majority of 3/4th

members present and voting at the said

meetings.

(v) Any Member, Associate Member,

Administrator, Player, Umpire, Team

Official, Referee or the Selector being

25

found guilty and expelled by the Board,

shall forfeit all their rights and privileges

as Member, Associate Member,

Administrator, Player, Umpire, Team

Official, referee, Selector as the case may

be. In the case of any Administrator,

Player, Umpire, Team Official, Referee or

the Selector, he shall not, in future, being

entitled to hold any position or office or

be admitted in any committee or any

member or associate member of the

Board.

(vi) A member or Associate Member or an

Administrator expelled may, on

application made after expiry of three

years since expulsion, be readmitted by

the Board, provided the same is accepted

at a General Body Meeting by 3/4th

members present and voting, for re-

admission.

(vii) Pending inquiry and proceeding into

complaints or charges or misconduct or

any act of indiscipline or violation of any

Rules and Regulations, the concerned

Member, Associate Member,

Administrator, Player, Umpire, Team

Official, Referee or the Selector (including

the privilege and benefits such as

subsidies to the Member or Associate

Member) may be suspended by the

President from participating in any of the

affairs of the Board until final

adjudication. However, the adjudication

should be completed within six months."

26

This becomes evident from the definition itself that it

speaks of any person being nominated to any of the sub-

committees of the BCCI. A past president may be

nominated on any of the sub-committees of BCCI and

only then he would be deemed to be an administrator

and not otherwise. Having regard to the well settled

principles of interpretation, this Court is of the opinion

that purposive interpretation of the term "Administrator"

will have to be adopted and only such an interpretation

would lead to a harmonious construction of various

clauses of the Regulations. In terms of Clause 32(v), any

administrator found guilty can be expelled by the Board

and in future such an administrator would not be

entitled to hold any position or office or be entitled to be

admitted in any committee or would be entitled to be a

member or an associate member or affiliate member of

the Board. A bare reading of Clause 32(v) of the

Regulations makes it more than clear that it includes

only those past office bearers who are included in any

committees or sub-committees of the Board. Regulation

27 6.2.1 provides for debarring a guilty administrator for a

period of one year but such debarment would be possible

only if the administrator is holding any office or is part of

any sub-committee in the present. It is worth noting that

in the entire Regulations, the word administrator is

found only in Clause 32. A conjoint and meaningful

reading of Clauses 32(i), (iv) and (v) makes it more than

clear that an administrator including a past president

can be appointed on a committee. Admittedly, the

appellant is not appointed as a member of any committee

formed by the BCCI. Therefore, merely because he was

associated in past, with the administration of the BCCI,

that fact by itself will not clothe him with any legal right

to maintain an action in law against the BCCI. Also, the

appellant does not claim to be a member of the registered

society, namely, the BCCI.

15.In the light of discussion made above the appellant

will have to be considered as an outsider and it will

have to be held that he is not entitled to maintain two

28

suits against the BCCI claiming that he is an

administrator. In fact, the appellant has no where

claimed in the plaints of the two suits that he seeks to

maintain the suits as an administrator. Thus the

finding recorded by the learned Single Judge of the

High Court which is confirmed by the Division Bench

of the High Court that the appellant does not claim or

seek to maintain the suits as an administrator, will

have to be upheld by this Court and is hereby

accordingly upheld.

16. Further, the appellant has sought declaratory

decrees in both the suits. However, the declarations

sought can be granted only in terms of Section 34 of the

Specific Relief Act, 1963. A bare reading of Section 34 of

the Specific Relief Act would indicate that the plaintiff in

order to be entitled to a legal character or to any right

will have to seek declaratory relief. The averments made

in the plaints of the two suits do not indicate that the

appellant is claiming that he is entitled to declaration

29

relating to a legal character or he is claiming any legal

character. The only exception to Section 34 of the

Specific Relief Act can be found in the Copyright Act and

the Patents Act, wherein suits can be filed

notwithstanding the provisions of Section 34 of the

Specific Relief Act to declare that any threat of

infringement of copyright or patent is groundless.

Further, Section 41(J) of the Specific Relief Act provides

that an injunction claimed should be refused when the

plaintiff has no personal interest in the matter.

Averments made in paragraph 18 of the rejoinder do not

make the provisions of the Specific Relief Act applicable

to the facts pleaded by appellant in the two suits.

17.An attempt was made to argue that the appellant is

entitled to maintain the two suits because what is

claimed by the appellant is that he is the past

president of BCCI and, therefore, both the suits

instituted to declare that the respondent No. 2, i.e.,

Mr. Srinivasan has no right to hold any position in

30

BCCI due to conflict of interest relates to right to

property. However, on going through the averments

made in the plaints, this Court finds that no right is

claimed under Section 34 of the Specific Relief Act.

The record does not indicate that any personal right of

the appellant is infringed. Prima facie the appellant,

who is claiming declaratory decrees against the

respondents, would not be entitled to the same

because no personal right of the appellant is

infringed.

18.The averments made in the two plaints would show

that the appellant is not claiming any legal character

in the BCCI nor is he claiming any right to any of the

properties of the BCCI. Therefore, it is clear that the

appellant has not instituted the two suits under

Section 34 of the Specific Relief Act.

19.Once it is held that the appellant is neither a member

or the administrator of BCCI, has filed the two suits

under Section 34 of the Specific Relief Act, the next

31

question which needs to be considered is in which

capacity the appellant has filed the two suits and

what is the nature of the suits filed. Therefore, it will

have to be determined whether the appellant has filed

suit in a representative character spoken of, and

referred to in Order I Rule 8, Code of Civil Procedure

or whether he has filed public interest suits as

mentioned in Section 91 of CPC.

20. Order I Rule 8 of CPC is an exception to the general

rule that all persons interested in a suit should be

impleaded as parties thereto. Where large body of

persons is interested in one issue, the said provisions

facilitate an individual to approach the court without

recourse to the ordinary procedure. It is also

intended to avoid multiplicity of suits being filed on

common issue. In Tamil Nadu Housing Board vs.

T.N. Ganapathy AIR 1990 SC 642, this Court had

occasion to examine the scope and object of Order I

Rule 8 of CPC. After examining the scheme envisaged

32

by the said provision, this Court has held that before

filing a suit under Order I Rule 8 CPC, permission of

the Court, as contemplated by Clause (b) of sub-Rule

I, has to be obtained to enable a person to file a suit

in a representative capacity for and on behalf of

numerous persons, where they have same and/or

common interest. As per provisions of sub-Rule (2) of

Rule 8 of Order I the Court has to give notice of the

institution of the suit to all persons so interested, at

the expense of the plaintiff. The notice to be given

may be either by personal service or where by reason

of number of persons or any other cause, such service

is not practicable, by public advertisement, as the

Court in each case may direct. Sub-Rule (3) of Rule 8

of Order I provides that any person on whose behalf or

for whose benefit a suit is instituted under sub-Rule

(1) may apply to the court to be made a party to such

suit. The proper procedure to be followed while

instituting a suit in a representative capacity has been

fully explained in the decision of this Court in State

33

of A.P. vs. G.V. Suryanarana AIR 1965 SC 11. The

record of the case doe not indicate that the appellant

had filed any application seeking permission of the

court under Order I Rule 8 sub-rule (1) CPC nor the

averments made in the plaints of two suits indicate

that the suits are purportedly filed in a representative

capacity. A careful scrutiny of the averments made in

the plaints of the two suits prima facie indicates that

the appellant has filed the suits in his individual

capacity. All that the appellant has stated in the

plaints is that he is the past President of BCCI and,

therefore, he is interested in the promotion of the

game of cricket in India and in maintaining the purity

of administration of BCCI. The paragraph which

deals with cause of action inter alia mentions that the

appellant has filed the suits in the capacity of an

Administrator. The averments made in the plaints

prima facie indicate that what is asserted by the

appellant is that that he had questioned the conduct

of Mr. N. Srinivasan by sending two complaints dated

34

September 5, 2008 and September 19, 2008 to BCCI

and that no action was taken by BCCI against Mr. N.

Srinivasan. The two complaints have been produced

on the record of the appeals. A glance at those two

complaints does not indicate that it is mentioned by

the appellant therein that he is making the complaint

in the capacity of past President.

21.With regard to public interest involved in the suit it is

relevant to notice that a public interest suit is not

unknown to law. As such a public interest suit can

be filed by invoking the provisions of Section 91 CPC

for removal of public nuisance or other wrongful act

affecting or likely to affect the public at large.

However, to maintain a suit under Section 91, the

plaintiff has to obtain the leave of the court before

institution of the suit and two or more persons must

join as plaintiffs in filing the suit. Admittedly, the

present suits have not been filed by the appellant

invoking the provisions of Section 91 of CPC. Except

35 Section 91, the CPC does not contemplate filing of suit

for removal of public nuisance and/or other wrongful

act affecting or likely to affect the public. Though on

running page 586 of the SLP, which is part of

rejoinder filed by the appellant, he has asserted that

he has not filed the suits in his personal capacity but

has filed the suits in public interest, it is not claimed

by him that he has followed the requirements of

Section 91 CPC. At this stage, it may be mentioned

that the appellant could have filed a Public Interest

Litigation in the form of writ petition. However, the

fact remains that the Public Interest Litigation / Writ

Petition was not filed by the appellant. The reason as

suggested by the respondents is that the appellant

would have been required to disclose the fact that he

had lost the election to the answering respondent No.

2 by huge margin and the disclosure of the said fact

would have robbed of the public interest element of

the writ petition. Another reason suggested by the

respondents, which induced the appellant not to file

36

writ petition of Public Interest Litigation nature, is

that the court would have been required to determine

numerous disputed questions of facts and the court,

having regard to the law declared by this Court

relating to a petition filed under Article 226 of the

Constitution involving determination of disputed

questions of facts, would have dismissed the writ

petition summarily. The reasons as to why the

appellant did not file writ petition of Public Interest

Litigation nature, can be stated only by him but it is

not in dispute that such a writ petition was not filed

by the appellant.

22.The result of above discussion may be summarized as

follows:

The appellant is not a member of the respondent

No.1 society. It is not his case that he is either full

member of associate member or an affiliate member of

the respondent No. 1 society. His claim that he is an

administrator of the BCCI and has filed two suits in that

37

capacity is rightly not accepted by the High Court. The

suits claiming declarations are neither filed under

Section 34 of the Specific Relief Act nor the suits are filed

in a representative capacity under Order I Rule 8 nor the

appellant has filed public interest suits as contemplated

by Section 91 of CPC.

23. In the light of above discussion, the question arises

as to whether the two suits filed by the appellant, who is

not a member of the respondent No. 1 Society, are

maintainable. There is no manner of doubt that BCCI is

a private autonomous Society registered under the Tamil

Nadu Societies Registration Act, 1975. Therefore, its

actions have to be judged only like any other similar

society or body and cannot be judged like an

instrumentality of State or other authority exercising

public functions. The BCCI like any other private body is

entitled to make its own memorandum, rules and bye-

laws to govern the activities of its members. The

memorandum, rules and bye-laws framed by the BCCI

38

were found to be in conformity with the object of the Act

and, therefore, it was registered as a Society under the

Tamil Nadu Societies Registration Act, 1975. It is an

admitted case between the parties that no amendment

has been made to the registered memorandum, rules and

regulations or bye-laws. Regulation 6.2.4 is only a

subsidiary regulation introduced by the working

committee of the BCCI. The amendments that are

challenged by the appellant in his second suit are those

made to the subsidiary regulation. The validity of said

amendment will have to be tested only in the light of the

interest of the society and its members and not vis-`-vis

the interest of non members/strangers. The rule that the

public policy of a society must be in consonance with the

statute under which it is registered or is being governed

and not public policy as indicated in the constitution has

been laid down by this Court in the Zoroastrian

Cooperative Housing Society Ltd. vs. District

Registrar, Cooperative Societies (Urban) (2005) 5 SCC

632. In the said case a person became member of a

39

cooperative society formed for the purpose of erecting

house for the residential use of its members. The

membership was confined to Parsi community. No

member was free to sell the property obtained by way of

membership to anyone outside the Parsi community. He

challenged this particular provision in the bye-laws

alleging inter alia that it is infringing his Fundamental

Right guaranteed by Article 19(1)(d) and 19(1)(g) of the

Constitution and thus is against the public policy.

24. This Court did not agree with the contention and

observed that the answer to the question "what is public

policy" has to be searched within the confines of the

statute because the Legislature imbibes it in the statute.

Hence the public policy in the context of cooperative

society has to be considered essentially in the context of

Cooperative Societies Act and the Rules made

thereunder. In that case this Court held that the

provisions contained in the bye-laws putting restriction

on the freedom of members to part with the property to

40

any one outside the Parsi community was not against the

public policy as it did not militate against the provisions

or the Act or rules made thereunder. What was held by

the Court in paragraph 22 of the reported decision while

judging validity of a bye-law, the interest of the society is

paramount and that interest would prevail so long as

there is nothing in the Act or the rules prohibiting the

promotion of such interest. This Court further observed

that going by Chheoki Employees' Cooperative Society

Ltd. case, neither the member, respondent No. 2, nor the

aspirant to membership, respondent No. 3, had the

competence to challenge the validity of the bye-laws of

the society or to claim a right to membership in the

society. The reference to the case of Chheoki

Employees' Cooperative Society Ltd. made by this

Court in the above mentioned paragraph refers to the

decision of this Court in State of U.P. and another vs.

Chheoki Employees' Cooperative Society Ltd. (1997)

3 SCC 681. In the said case what is laid down is that a

member of a society has no independent right qua the

41

society and he cannot assail constitutionality of the Act,

rules and bye-laws. This Court has further explained in

the said case that the person who is member of the

society is subject to the operation of the Act, rules and

bye-laws applicable from time to time and he has no

independent right qua the society and it is the society

that is entitled to represent as the corporate aggregate

and, therefore, the individual person do not have any

Fundamental Right to the management of the committee

except in accordance with the provisions of the Act, rules

and bye-laws. In the present case the appellant has

failed to establish that the amendment made in the

subsidiary regulation 6.2.4 is opposed to the policy laid

down in the Tamil Nadu Societies Registration Act, 1975

or the memorandum and rules and regulations and/or

bye-laws of the BCCI approved under the said Act.

Therefore, the second suit at the instance of the

appellant is not maintainable at all. In a private society

what is in the interest of society has to be primarily

decided by the society alone and such a question is not

42

left for determination of an outside agency. The interest

of the society is paramount and that interest would

prevail so long as there is nothing in the Act or the rules

governing the society prohibiting the promotion of such

interest. As per the decision in Zoroastrian Cooperative

Housing Society Ltd. case neither the member nor the

aspirant to membership has the competence to challenge

the validity of the bye-laws of the society. On the basis of

the principles laid down in the said case it will have to be

held that the appellant, who is not even a member of the

society, cannot challenge validity of the bye-laws of the

society, which have been validly passed by the General

Body of the society. As is evident from the record of the

case the amendments in the subsidiary regulation were

made by the General Body unanimously and, therefore,

the second suit will also have to be regarded as not

maintainable.

25. According to the learned counsel for the appellant,

the BCCI discharges important public functions such as

43

the selection of the Indian team and the control on the

players and as it has discharged its important public

functions arbitrarily, whimsically and capriciously, the

two suits are maintainable. What was maintained before

the Court was that the respondent No. 1 enjoys a

monopoly status as it controls the sport of cricket and

lays down the law thereof as well as enjoys benefits by

way of tax exemption etc, while exercising enormous

public functions and, therefore, it must be judged on a

higher pedestal like an instrumentality of State.

26. In support of above mentioned plea the appellant

has relied on the decision in the case of BCCI vs. Netaji

Cricket Club (2005) 4 SCC 741. Placing reliance on the

observations made in para 80 at page 762 of the reported

decision, it was argued that as BCCI's control over the

sport of cricket is deep, pervasive and complete, the suits

would be maintainable. According to the appellant, as a

member of ICC, the BCCI represents the country in the

international fora and it has the authority to select

44

players, umpires and officials to represent the country in

the international fora, it is an instrumentality of the State

and the suits are maintainable against it. Paras 80 and

81 of Netaji Cricket Club case (supra) are as under:-

"80. The Board is a society registered under

the Tamil Nadu Societies Registration Act. It

enjoys a monopoly status as regards regulation

of the sport of cricket in terms of its

Memorandum of Association and Articles of

Association. It controls the sport of cricket and

lays down the law therefor. It inter alia enjoys

benefits by way of tax exemption and right to

use stadia at nominal annual rent. It earns a

huge revenue not only by selling tickets to

viewers but also selling right to exhibit films

live on TV and broadcasting the same.

Ordinarily, its full members are the State

associations except Association of Indian

Universities, Railway Sports Control Board and

Services Sports Control Board. As a member of

ICC, it represents the country in the

international fora. It exercises enormous

public functions. It has the authority to select

players, umpires and officials to represent the

country in the international fora. It exercises

total control over the players, umpires and

other officers. The Rules of the Board clearly

demonstrate that without its recognition no

competitive cricket can be hosted either within

or outside the country. Its control over the

sport of competitive cricket is deeply pervasive

and complete.

45

81. In law, there cannot be any dispute that

having regard to the enormity of power

exercised by it, the Board is bound to follow

the doctrine of "fairness" and "good faith" in all

its activities. Having regard to the fact that it

has to fulfil the hopes and aspirations of

millions, it has a duty to act reasonably. It

cannot act arbitrarily, whimsically or

capriciously. As the Board controls the

profession of cricketers, its actions are

required to be judged and viewed by higher

standards."

27. As against this the respondents have relied upon

Constitution Bench decision of this Court in Zee

Telefilms Ltd. Vs. Union of India (2005) 4 SCC 649, to

contend that the respondent No. 1 BCCI cannot be

regarded as State within the meaning of Article 12 of the

Constitution. The majority judgment in Zee Telefilm

Ltd. Case (supra) holds that the assumption that the

respondent No. 1 BCCI is the recipient of largesse by the

State is incorrect and that the respondent No. 1 does not

enjoy a monopoly status conferred by or as a product of

the State. It is further held in the said decision that the

respondent No. 1 does not enjoy a deep or pervasive

control over the game of cricket and that the functions of

46

the respondent No. 1 are not public functions nor are

they closely related to governmental functions. A glance

at paragraphs 25 and 31 would indicate that the Court

assumed for the purpose of argument that some

functions might partake of the nature of public duties

but categorically held that the exercise of such functions

are in a very limited area of the activities of the

respondent No. 1 BCCI. In para 29 of the said judgment

this Court proceeded on an assumption that some

functions of the respondent No. 1 like the selection of a

team to represent India in international matches, may

amount to public duties but in the end held that this is

not sufficient to hold that the respondent No. 1 is a State

for the purposes of Article 12 of the Constitution. The

categorical findings in paragraphs 23, 24, 25, 28, 29, 31,

33 and 34 of the Zee Telefilm Lt d. C ase are as under: -

23. The facts established in this case show the

following:

1. The Board is not created by a statute.

47

2. No part of the share capital of the Board

is held by the Government.

3. Practically no financial assistance is

given by the Government to meet the

whole or entire expenditure of the Board.

4. The Board does enjoy a monopoly status

in the field of cricket but such status is

not State-conferred or State-protected.

5. There is no existence of a deep and

pervasive State control. The control if any

is only regulatory in nature as applicable

to other similar bodies. This control is not

specifically exercised under any special

statute applicable to the Board. All

functions of the Board are not public

functions nor are they closely related to

governmental functions.

6. The Board is not created by transfer of a

government-owned corporation. It is an

autonomous body.

24. To these facts if we apply the principles

laid down by the seven-Judge Bench in

Pradeep Kumar Biswas vs. Indian Institute of

Chemical Biology (2002) 5 SCC 111, it would

be clear that the facts established do not

cumulatively show that the Board is

financially, functionally or administratively

dominated by or is under the control of the

Government. Thus the little control that the

Government may be said to have on the Board

is not pervasive in nature. Such limited control

is purely regulatory control and nothing more.

25. Assuming for argument's sake that some

of the functions do partake the nature of

48

public duties or State actions, they being in a

very limited area of the activities of the Board,

would not fall within the parameters laid down

by this Court in Pradeep Kumar Biswas case.

Even otherwise assuming that there is some

element of public duty involved in the

discharge of the Board's functions, even then,

as per the judgment of this Court in Pradeep

Kumar Biswas, that by itself would not suffice

for bringing the Board within the net of "other

authorities" for the purpose of Article 12.

28. There is no doubt that Article 19(1)(g)

guarantees to all citizens the fundamental

right to practise any profession or to carry on

any trade occupation or business and that

such a right can only be regulated by the State

by virtue of Article 19(6). Hence, it follows as a

logical corollary that any violation of this right

will have to be claimed only against the State

and unlike the rights under Articles 17 or 21

which can be claimed against non state actors

including individuals the right under Article

19(1)(g) cannot be claimed against an

individual or a non State entity. Thus, to argue

that every entity, which validly or invalidly

arrogates to itself the right to regulate or for

that matter even starts regulating the

fundamental right of the citizen under Article

19(1)(g), is a State within the meaning of

Article 12 is to put the cart before the horse. If

such logic were to be applied every employer

who regulates the manner in which his

employee works would also have to be treated

as State. The pre-requisite for invoking the

enforcement of a fundamental right under

Article 32 is that the violator of that right

should be a State first. Therefore, if the

argument of the learned counsel for the

49

petitioner is to be accepted then the petitioner

will have to first establish that the Board is a

State under Article 12 and it is violating the

fundamental rights of the petitioner. Unless

this is done the petitioner cannot allege that

the Board violates fundamental rights and is

therefore State within Article 12. In this

petition under Article 32 we have already held

that the petitioner has failed to establish that

the Board is State within the meaning of

Article 12. Therefore assuming there is

violation of any fundamental right by the

Board that will not make the Board a "State"

for the purpose of Article 12.

29. It was then argued that the Board

discharges public duties which are in the

nature of State functions. Elaborating on this

argument it was pointed out that the Board

selects a team to represent India in

international matches. The Board makes rules

that govern the activities of the cricket players,

umpires and other persons involved in the

activities of cricket. These, according to the

petitioner, are all in the nature of State

functions and an entity which discharges such

functions can only be an instrumentality of

State, therefore, the Board falls within the

definition of State for the purpose of Article 12.

Assuming that the abovementioned functions

of the Board do amount to public duties or

State functions, the question for our

consideration is: would this be sufficient to

hold the Board to be a State for the purpose of

Article 12. While considering this aspect of the

argument of the petitioner, it should be borne

in mind that the State/Union has not chosen

the Board to perform these duties nor has it

legally authorised the Board to carry out these

50

functions under any law or agreement. It has

chosen to leave the activities of cricket to be

controlled by private bodies out of such bodies'

own volition (self-arrogated). In such

circumstances when the actions of the Board

are not actions as an authorised representative

of the State, can it be said that the Board is

discharging State functions? The answer

should be no. In the absence of any

authorisation, if a private body chooses to

discharge any such function which is not

prohibited by law then it would be incorrect to

hold that such action of the body would make

it an instrumentality of the State. The Union of

India has tried to make out a case that the

Board discharges these functions because of

the de facto recognition granted by it to the

Board under the guidelines framed by it but

the Board has denied the same. In this regard

we must hold that the Union of India has failed

to prove that there is any recognition by the

Union of India under the guidelines framed by

it and that the Board is discharging these

functions on its own as an autonomous body.

31. Be that as it may, it cannot be denied

that the Board does discharge some duties like

the selection of an Indian cricket team,

controlling the activities of the players and

others involved in the game of cricket. These

activities can be said to be akin to public

duties or State functions and if there is any

violation of any constitutional or statutory

obligation or rights of other citizens, the

aggrieved party may not have a relief by way of

a petition under Article 32. But that does not

mean that the violator of such right would go

scot-free merely because it or he is not a State.

Under the Indian jurisprudence there is always

51

a just remedy for violation of a right of a

citizen. Though the remedy under Article 32 is

not available, an aggrieved party can always

seek a remedy under the ordinary course of

law or by way of a writ petition under Article

226 of the Constitution which is much wider

than Article 32.

33. Thus, it is clear that when a private body

exercises its public functions even if it is not a

State, the aggrieved person has a remedy not

only under the ordinary law but also under the

Constitution, by way of a writ petition under

Article 226. Therefore, merely because a non-

governmental body exercises some public duty

that by itself would not suffice to make such

body a State for the purpose of Article 12. In

the instant case the activities of the Board do

not come under the guidelines laid down by

this Court in Pradeep Kumar Biswas case

(supra), hence there is force in the contention

of Mr. Venugopal that this petition under

Article 32 of the Constitution is not

maintainable.

34. At this stage, it is relevant to note

another contention of Mr. Venugopal that the

effect of treating the Board as State will have

far reaching consequences in as much as

nearly 64 other national sports federations as

well as some other bodies which represent

India in the international forum in the field of

art, culture, beauty pageants, cultural

activities, music and dance, science and

technology or other such competitions will also

have to be treated as a "State" within the

meaning of Article 12, opening the flood gates

of litigation under Article 32. We do find

sufficient force in this argument. Many of the

52

above mentioned federations or bodies do

discharge functions and/ or exercise powers

which if not identical are at least similar to the

functions discharged by the Board. Many of

the sport persons and others who represent

their respective bodies make a livelihood out of

it (for e.g. football, tennis, golf, beauty

pageants etc.). Therefore, if the Board which

controls the game of Cricket is to be held to be

a State for the purpose of Article 12, there is

absolutely no reason why other similarly

placed bodies should not be treated as State.

The fact that game of Cricket is very popular in

India also cannot be a ground to differentiate

these bodies from the Board. Any such

differentiation dependent upon popularity,

finances and public opinion of the body

concerned would definitely violate Article 14 of

the Constitution, as any discrimination to be

valid must be based on hard facts and not

mere surmises (See State of Kerala v. T.P.

Roshana, (1979) 1 SCC 572) Therefore, the

Board in this case cannot be singly identified

as "other authority" for the purpose of Article

12. In our opinion, for the reasons stated

above none of the other federations or bodies

referred to hereinabove including the Board

can be considered as a "State" for the purpose

of Article 12."

In view of above noted categorical observations made by

the Constitution Bench, this Court is of the firm opinion

that the observations made in paras 80 and 81 of Netaji

Cricket Club case (supra) are no longer good law. The

53

contention that the judgment in Netaji Cricket Club

case still holds the field and is a good law cannot be

accepted. What is relevant to notice is that one of the

learned Judges of the two Judge Bench, which decided

Netaji Cricket Club case, was also one of the learned

Judges of the Constitution Bench, which decided the Zee

Telefilms case. In fact the decision in Zee Telefilms

case was delivered by the Constitution Bench of this

Court, about three weeks after the judgment was

delivered by two Judge Bench in Netaji Cricket Club

case. The judgment delivered by the Constitution Bench

makes it clear that the judgment of the two Judge Bench,

delivered in case of Netaji Cricket Club, was specifically

cited before the Constitution Bench and was considered

by the Constitution Bench. Further, the judgment in Zee

Telefilms case was first prepared by the learned Judges,

who had written the judgment in Netaji Cricket Club

case and this is evident from the fact that the learned

Judges, who had delivered majority judgment in Zee

Telefilms case, have recorded that they had read the

54

opinion of the learned Judge but did not agree with the

conclusions recorded therein. In view of the healthy

traditions established by the legendary Judges of this

Court, the learned Judges, who constituted majority in

Zee Telefilms case, have refrained from using the

expression that law laid down in Netaji Cricket Club

case is not a good law or that the decision in Netaji

Cricket Club case stands overruled because the learned

Judge, who had written judgment in Netaji Cricket Club

case, was also one of the learned members of the

Constitution Bench. However, there is no manner of

doubt that judgment in Netaji Cricket Club case cannot

be regarded as good law in view of firm pronouncement of

legal principles by the Constitution Bench of this Court

in the case of Zee Telefilms.

28. In view of the above mentioned principles emerging

from the judgment of this Court in Zee Telefilms case,

the BCCI cannot be regarded as an instrumentality of

55

State and it will have to be held that the two suits filed by

the appellant are not maintainable.

29. As this Court has held that two suits filed by the

appellant are not maintainable, the question of grant of

mandatory and/or temporary injunctions as prayed for

does not arise at all and the appeals must fail. However,

it was insisted by the learned counsel for both sides that

the other points having been argued threadbare, they

should also be considered and/or dealt with by the

Court. Under the circumstances, this Court has

considered the other contentions raised by the learned

counsel for the parties.

30. It was contended on behalf of the appellant that

unamended clause 6.2.4 of the Rules and Regulations

clearly stipulated that no administrator shall have

directly or indirectly any commercial interest in the

matches or events conducted by the Board and,

therefore, the respondent No. 2 being Treasurer of BCCI,

could not have participated in the bidding process for IPL

56

team. According to the learned counsel for the appellant

the respondent No. 2 had committed clear violation of

unamended clause 6.2.4 of the Rules and Regulations

and there being factual as well as palpable conflict of

interest, the prayers claimed in the applications should

have been granted.

31. As against this it was pointed out by the learned

counsel for the respondent No. 1 that the players

regulations promulgated on September 29, 2000 did not

cover T20 or IPL as the same were not born and

unknown to the world of cricket at that time and,

therefore, participation by the respondent No. 2 in the

bidding process for the IPL team did not violate

provisions of clause 6.2.4 of the Rules and Regulations.

It was argued that the appellant failed to point out

factual and palpable conflict of interest, more

particularly, when the purpose of IPL or Champions

League T20 events was to maximize outreach of the game

and exploit its commercial potential as well.

57 32. On behalf of the respondent No. 2 it was contended

that no specific allegations against Members of the BCCI

or directors of the India Cement Limited have been

leveled against the respondent No. 2 and, therefore, the

plea based on conflict of interest was rightly negatived by

the High Court. It was maintained before this Court that

India Cement Limited is a Company, which is managed

through a Board of Directors of which respondent No. 2

is the Vice Chairman and Managing Director, but his

holding of shares is only 0.05% and, therefore, it is wrong

to say that the respondent No. 2 takes decision without

approval of the Board of Directors of the Company. What

was pleaded was that India Cement Limited has

thousands of share holders and the Company has an

independent legal existence from its share holders

whereas all the decisions regarding management and

administration of BCCI are taken by its Managing

Committee consisting of nine members of whom the

respondent No. 2 is only one of the members and,

therefore, there is no conflict of interest as is claimed by

58

the appellant. It was further argued that all the

decisions of the Managing Committee of the BCCI have to

be approved by its General Body and as there are no

specific allegations against the Members of the General

Body to the effect that they were also actuated by mala

fide, in favouring the respondent No. 2, the plea based on

conflict of interest should not be entertained by this

Court.

33. Even if it is assumed for the sake of argument that

the two suits filed by the appellant are maintainable, on

examination of Rules and Regulations of BCCI this Court

finds that players regulations promulgated on September

29, 2000 had not contemplated nor covered the events

like IPL, Champions League T20, etc., because they were

unknown and never existed. This becomes clear if one

notices the definitions of (a) Test Match, (b) ODI Match,

(c) Twenty 20, (d) Tour, (e) Tour Match and (f) Domestic

Matches, as given in the Regulations for Players, Team

Officials, Managers, Umpires and Administrators.

59 34. The definitions of the above terms as given in the

above mentioned Regulations read as under: -

"Test Match : Any cricket match of not less

than five days scheduled duration played

between teams selected by Full Members as

representatives of their Member Countries and

accorded with the status of Test by the ICC.

ODI Match : A limited over international

match classified as a One Day International in

accordance with the ICC's regulations headed

"Classification of One Day International

Matches".

Twenty20 : A limited over international match

classified as Twenty20 in accordance with ICC

regulations.

Tour : A series of matches where at least one

of the competing teams is an international

team representing a Member country playing a

country other than its own and comprising of

atleast one Test Match or atleast one ODI

Match. For the purposes of this Regulations a

Tour shall start on (and include) the first day

when the touring squad of Players (or the first

of touring squad players) arrives in the country

of the tour until (and including) the day on

which the touring squad of Players (or the last

of touring squad of players) leave to return to

their Member country.

Tour Match : Any match other than a Test

Match or ODI Match, or T20 in which at least

one of the teams comprises Players selected

from the squad of players chosen to represent

a Member Association.

60 Domestic Matches : All tournaments any/or

matches conducted under the aegis of BCCI."

To argue that purposive interpretation of unamended

Players Regulations would include events like ODI Match,

Twenty20, etc. is to ignore the hard ground realities and

completely brush aside the definitions of those terms

mentioned earlier.

35. The expression matches or events in the

unamended clause 6.2.4 of the Rules and Regulations

cannot be construed to include the events like T20

cricket as those events were introduced after the year

2000. Therefore, the contention of the appellant that the

respondent No. 2 violated the unamended Players

Regulations and injunctions as prayed for should have

been granted, cannot be accepted and is hereby rejected.

36. The next question which falls for consideration is

whether the Players Regulations were properly amended

or the amendments made are illegal as pleaded by the

appellant.

61 37. The argument that Clause 6.2.4 of the Players'

Regulations was not properly amended and, therefore,

the same should be regarded as illegal is devoid of

substance. All the rules relating to agenda of notice were

properly followed. The amendment in Clause 6.2.4 can

be traced back to the working committee meeting, which

took place on June 22, 2008. The record would show

that in the said meeting it was observed by one of the

participants that the Players' Regulations needed to be

amended to address the changes in the ICC Code of

Conduct particularly those relating to the penalties for

Anti Racism, Anti Doping, Use of foul language, etc. The

use of the words "particularly" and "etc." indicate that the

Working Committee did not limit its suggestions only to

the issues of Anti Doping, Anti Racism or Use of foul

language. Pursuant to the suggestion made by the

Working Committee, the President of BCCI formed a two-

man committee to recommend suitable changes. The

two-men committee met on September 12, 2008, i.e., well

before the first suit, i.e. Civil Suit No. 930 of 2008 which

62

was instituted by the appellant in the Madras High Court

and recommended three amendments, two of which were

with reference to Twenty20 cricket and the third

amendment related to Clause 6.2.4 of the Regulations.

The members of the respondent No. 1 BCCI unanimously

approved the two-men committee's recommendations in

the 79th Annual General Meeting. The record would

indicate that what was placed for the consideration of the

members at the 79th Annual General Meeting was the

report of the Working Committee as well as the

recommendations of the two-man committee. The notice

of all the items of business conducted at the 79th Annual

General Meeting was validly given to the members.

Although Rule 16(M)(iv) of the Rules and Regulations

requires the Secretary to forward the agenda at least 21

days prior to holding of the Annual General Meeting, Rule

16(M)(i) also provides that the attending members may

consider "any other business which the President may

consider necessary to be included in the agenda". The

notice of 79th Annual General Meeting specifically stated

63

about consideration of the motion given by a member, 21

days before the Annual General Meeting, and

consideration of any other business which the President

might consider necessary in the agenda. The contention

of the appellant that 21 days' notice is needed even for

those items to be considered under any other business is

based on a misconception of the ordinary principles

governing the meetings. One of the essentials of a valid

notice is that the time between the service of notice and

the date of the meeting should be at least 21 days and

that it is absurd to suggest that this notice must also

contain the particulars of items which would be taken up

by the members under the heading "any other business".

It is implicit in the concept of special business to be

taken up for discussion at the behest of the Chairman

that no particular mention is required of other business

which is to be conducted at the meeting. When a

member gets his notice, he is deemed to have knowledge

of the Regulations of the body concerned and, therefore,

of the agenda items. In any event only members could

64

have objected to the process for amending the Players'

Regulations. The record shows that not a single member

objected to the proposed amendment. On the contrary

the record unerringly shows that the resolution relating

to the impugned amendment was passed unanimously by

the members. The Rules and Regulations, which are the

organic and constitutional documents of the association,

are framed under the Tamil Nadu Societies Registration

Act, 1975. A plain reading of Section 12 of the said Act

makes it very clear that it is only if a bye-law or the

objects of association mentioned in the Memorandum is

intended to be amended that such amendment is

required to be registered. This provision has no

application to amendments of the Players' Regulations,

which have been framed by the respondent No. 1's

working committee. Even if a member has limited rights

against the body/institution of which he is a member, a

member must show that the impugned act is ultra vires

the constitution or the Memorandum of Association or

the bye-laws of the society and that the act complained of

65

constitutes a fraud on the member or that the impugned

action is illegal. The appellant is admittedly not even a

member of the respondent No. 1 BCCI and is, therefore,

not entitled prima facie to challenge the process of

amendment. The amendments carried out in Clause

6.2.4 are perfectly legal and valid.

38. The contention relating to conflict of interest is

thoroughly misconceived and proceeds on certain

presumptions which have no factual basis. As far as

BCCI is concerned, all decisions relating to management

and administration are taken by its Managing

Committee. It has come on the record of the case that

the Managing Committee consists of nine members of

whom respondent No. 2 is one of the members. The bye-

laws of BCCI unerringly indicate that all the decisions,

which may be taken by the Managing Committee of the

BCCI, have got to be approved by General Body. Though

the appellant has claimed that there is factual and

palpable conflict of interest, the appellant could not

66

explain to the Court as to what was the factual conflict of

interest and how BCCI was put to financial loss because

of participation by the respondent No. 2 in bidding

process for the IPL team. The appellant having claimed

that there was factual and palpable conflict of interest

between BCCI and India Cement Limited, should have

attempted to make the same good by necessary and

specific averments.

39. Further, the argument of the appellant with regard

to the alleged conflict of interest and duty proceeds on a

complete misconception of what T20 matches are all

about. A brief history of T20 cricket is important to

understand the context in which this new form of the

game was introduced. Cricket as a game was fast losing

spectator support. Attendance at the test matches was

found thin and decreasing day by day. Even ODI

matches were not attracting huge crowds. As against

this, football was found to be a fast paced, action packed

game and it did not last for more than two hours.

67 Therefore, it was considered necessary to have a new

format, which was not conducted on lines of

international cricket, but was conducted purely on

commercial lines. If maximum boost was to be given to

the cricket, it was through organizing T20 matches on a

commercial basis. Thus it stands to reason that any

person who is interested in the game should be able to

participate in the commercial aspect of T20. For this

purpose, a tender process had to be used. The attempt

was to maximize interest and participation in T20 by way

of acquisition and funding of teams. This could be done

if there was a widest possible participation both by

franchisees and stakeholders including the spectators.

The process of bidding by the franchisees for the various

participating teams establishes the commercial nature of

IPL and Champions League T20 cricket. Therefore, it is

difficult to uphold the contention of the appellant

regarding conflict of interest in an IPL since the purpose

of this new model of cricket was to maximize outreach of

the game and exploit its commercial potential as well.

68 The record does not indicate that any franchisee or any

other member of the respondent No. 1 BCCI has

complained of any alleged conflict of interest. It is

nobody's case that the team was purchased by the

respondent for a smug and that he had prevented others

who wanted to offer more price for purchase of the team

and thereby caused financial loss to the BCCI. Thus, the

plea of conflict of interest is substanceless and is hereby

rejected.

40. The plea that the amendment made in Clause 6.2.4

of the Regulations is mala fide and, therefore, reliefs

prayed for by the appellant cannot be accepted. As is

rightly pointed out by the learned counsel for the

respondent No. 2 that India Cement Limited is a

Company incorporated under the provisions of the

Companies Act, 1956. It is a Public Limited Company

and is being managed by Board of Directors. Naturally it

being a Public Limited company, it has several share

holders. The assertion made by the respondent No. 2

69

that he holds only 0.05% of shares in India Cement

Limited, cannot be demonstrated to be untrue.

Therefore, it would be wrong to contend that the

respondent No. 2 personally takes decisions without

approval of the Board of Directors of the Company.

41. As observed earlier the second respondent

personally cannot take any decision relating to the India

Cement Limited without the approval of the Board of

Directors of the Company. So far as his role as Office

Bearer of the BCCI is concerned, it is to be noted that all

decisions regarding management and administration of

the BCCI are taken by its Managing Committee subject to

the approval by General Body consisting of all the

members, associate members and affiliated members. In

the present case the necessity to amend the Players'

Regulations was recommended by all members of the

Working Committee. The two-man Committee made

recommendation to amend Clause 6.2.4. That

recommendation was approved by the Managing

70

Committee and unanimously adopted by the General

Body of the BCCI. If the appellant was to allege bias on

the part of the respondent No. 2 in amending Clause

6.2.4 of the Players' Regulations, the same will have to be

against all other members who were part of the sub-

committee, the Managing Committee and also members

of the General Body. However, there is absolutely no

allegation against any of the persons who are part of the

various committees of BCCI. There is no specific

allegation against any of the members of the General

Body being actuated by mala fides in favour of the

respondent No. 2. Prima facie it appears that in the

absence of any specific allegation of mala fides in the

plaints of both the suits, the appellant, who is plaintiff in

the suits, would not be entitled to any of the main reliefs

claimed in the two suits and reliefs claimed in

interlocutory applications. The assertion made by the

appellant that the amendment in Clause 6.2.4 of the

Rules and Regulations was carried out at the behest of

the respondent No. 2 would in turn suggest that the

71

respondent No. 2 exercised undue influence over the

other members of the Managing Committee and General

Body of BCCI and the various other persons constituting

various committees. When such allegations of undue

influence are pleaded by any party to a suit, it is the

requirement under Order VI Rule 4 CPC that particulars

must be given in detail. However, the pleadings do not

even remotely satisfy the requirements of Order VI Rule 4

CPC. There are no specific allegations in the plaints of

both the suits. A reading of the plaint in CS No. 1167 of

2008 discloses that there are no particulars or specific

allegations of mala fides against the sub-committee,

Managing Committee or General Body of BCCI. The

amendment in Clause 6.2.4 was introduced after it had

passed scrutiny of the three different committees. In the

absence of necessary pleadings it would be difficult for

the appellant to get any relief in the two suits. Therefore,

the plea based on malafides in amending Clause 6.2.4

cannot be accepted.

72 42. What is important to notice is that the present

appeals are directed against the orders of the learned

Single Judge and the Division Bench, refusing to grant

mandatory temporary injunction/temporary injunctions

as claimed by the appellant.

43. The appellant has failed to establish strong prima

facie case in his favour for the grant of mandatory

temporary injunctions. On analysis of the averments

made in the plaints of the two suits, this Court has come

to the conclusion that the suits are not maintainable.

Therefore, the appellant is not entitled to any interim

relief. The amendment impugned is not found to be

contrary to the provisions of the Tamil Nadu Societies

Registration Act, 1975. Similarly, the appellant has

failed to establish that because of so called conflict of

interest, the respondent No. 2 has caused financial loss

to the BCCI. Further irreparable injury is likely to be

suffered by the respondent No.2, if the interim reliefs as

claimed by the appellant are granted. The respondent

73

No. 2 has explained in his pleadings that, in terms of the

Memorandum and Regulations of BCCI, he will not be

able to contest election for the post of President for the

next twelve years if he is restrained from contesting for

the post of President this year.

44. The Memorandum and Regulations indicate that the

office of President is by Zonal rotation. For the purpose

of election of the President, the BCCI is divided into five

zones, i.e., South, Central, North, West and East and,

therefore, the turn of the President from South zone

would come once in 12 years only. This position is not

disputed by the appellant. Therefore, there is no manner

of doubt that prejudice would be caused to the

respondent No.2 if the injunctions as prayed for by the

appellant are granted. Further, the balance of

convenience is also in favour of the respondent No.2

because even if the suits are decreed, no personal relief

would accrue for the benefit of the appellant. As noticed

earlier, the appellant had lost to the respondent No.2 in

74

the elections of the Tamil Nadu Cricket Association.

Moreover, the two suits were filed in the year 2008 and

no interim relief/reliefs has/have been granted by the

learned Single Judge of the High Court as well as by the

Division Bench of the High Court. This Court is of the

opinion that after passage of over two years, it would not

be in the fitness of things to grant mandatory temporary

injunction as prayed for. What is relevant to notice is

that if the injunctions as prayed for are granted the suits

would stand decreed without adjudicating the claims

raised by the respondents, on merits. Such a relief is not

called for in the facts of the case. Therefore, the

appellant is not entitled to the injunctions claimed by

him in different interlocutory applications which were

filed before the High Court.

45. The appellant has filed an application seeking

permission of the Court to permit him to produce

additional documents in the present appeals. It is an

admitted position that the additional documents sought

to be produced before this Court were not part of the

75

records before the learned Single Judge or the Division

Bench of the High Court. As such no reasons are stated

as to why these two documents, though in existence,

were not placed before the High Court. Therefore, no

case is made out by the appellant to permit him to

produce certain additional documents in the present

appeals.

46. Even if those two documents are taken into

consideration this Court finds that the two documents do

not indicate in any manner, any conflict of interest as is

sought to be made out on behalf of the appellant. The

first document is an extract from the accounts of the

BCCI. This document is relied on to show that payments

were made to Rajasthan Royals and Chennai Super Kings

to compensate for the losses caused to those teams due

to cancellation of the Champions League Twenty-20

tournament in December 2008. The record shows that

the Champions League Twenty-20 tournament is played

between the champion teams from various countries who

76

had won their local T-20 tournaments. In the year 2008

Rajasthan Royals and the team owned by The India

Cements Limited i.e. Chennai Super Kings were the

winners and runners-up respectively. Therefore, only

these two teams were eligible to play the Champions

League Twenty-20 which was to be played in Mumbai in

December, 2008. Unfortunately, due to the infamous

Mumbai Terror Attacks in November, 2008 the

tournament had to be cancelled in the last hours due to

security reasons as players were to come from around

the world. The teams eligible to participate had made all

the arrangements by making payments for the players

and officials to participate in the Champions League

Twenty-20. Because of the sudden cancellation of the

tournament, the expenses incurred by the teams and the

loss of potential earnings were decided to be

compensated by the Governing Council of Champions

League Twenty-20. And, therefore, the payments were

made not only to the two Indian teams eligible to

participate but also to the Cricket Boards of South Africa

77

and Australia, who had jointly organized the Champions

League Twenty-20. The respondents have asserted that

these payments were reflected in the Balance Sheet of

BCCI for the financial year ending March 2009. The

payments were first sanctioned by the then Chairman of

the Governing Council of IPL and later on ratified by all

the Governing Council Members and the same was

approved by General Body of BCCI. Thus, the first

document does not indicate any conflict of interest so far

as Respondent No.2 is concerned.

47. The next document sought to be relied upon is

Minutes of Meeting of the Governing Council of the IPL

dated August 11, 2009. This document reflects the

deliberations between the various members of the

Governing Council on the issue of transfer of players

from one IPL franchise to the other at the end of three

years. Nine members including eminent cricketers who

are members of the Governing Council participated in the

meeting and the Respondent No.2 had also expressed his

78

views on the issue of transfer of players. The record

shows that ultimately, the views expressed by the

Respondent No.2 were not accepted. This document

proves that the Governing Council is not influenced by

the views of one person and the Respondent No.2 is not

in a position to exercise undue influence over the other

members of the Governing Council, as alleged.

48. As noticed earlier the learned Single Judge of the

High Court before whom the suits were instituted as well

as the Division Bench of the High Court have refused to

grant equitable relief of injunction claimed by the

appellant. This Court is of the opinion that grant of

interim relief as prayed for can amount to decreeing the

suit without adjudicating the claims raised in the

pleadings of the parties. Such a course is not

permissible at all. This Court has deprecated the

practice of grant of interim relief, which amounts to

decreeing the suit in several reported decisions. The

averments made in the plaints would show that the final

79

reliefs claimed are almost the same as claimed by way of

interim reliefs. Whether the appellant is entitled to

equitable relief of injunction or not, will have to be

decided after several questions raised in the plaints are

decided on the basis of evidence, which may be adduced

by the parties. The questions of law sought to be raised

by the appellant are at the best mixed questions of law

and facts. As observed earlier the appellant has failed to

disclose certain material facts nor the appellant has been

able to prima facie establish that his legal rights have

been violated as required under Sections 34 and 41(j) of

the Specific Relief Act, 1963. The appellant is not

justified in seeking a permanent injunction restraining

the respondent No. 1 from permitting the respondent No.

2 to contest election for an Office Bearer's post. I.A. No.

1041 of 2008 in CS No. 930 of 2008 was dismissed by

the High Court. The said order was never challenged

before higher forum by the appellant and has thus

attained finality. No material is placed by the appellant

on the record of the case on the basis of which a

80

reasonable finding can be recorded that if interim relief

as sought for by the appellant is not granted, the

appellant would suffer irreparable loss or that great

prejudice would be caused to his case as pleaded in the

plaints of the suits. Though this Court has prima facie

come to the conclusion that the suits are not

maintainable on the basis of the plaint allegations

themselves, several allegations made would require

evidence to be let in by the appellant so as to entitle him

to any interim relief. On this ground also the interim

reliefs claimed cannot be granted.

49. The appellant has filed application seeking

permission of this Court for filing additional documents.

Normally, additional documents would be permitted to be

produced before this Court when they are brought on the

record of the case. Here, in this case, the documents

sought to be brought on record by the Interlocutory

Application are not on the record of the trial court. The

Interlocutory Application filed by the appellant is

81

absolutely vague and not in terms of Order XVI Rule

4(1)(d)(ii) of the Supreme Court Rules because it does not

give particulars of (a) how the appellant came to be in

possession of those documents, (b) at what point of time

he acquired possession of documents, (c) the source from

which the documents were secured and (d) what

prevented the appellant from placing the documents on

record of the trial court. Though the appellant has filed

quite lengthy rejoinder, these questions have not been

addressed by him in the rejoinder. The contention that

the respondents have failed to respond to the merits of

the Interlocutory Application and, therefore, those

documents should be considered, cannot be accepted,

more particularly, when no ground is made out for

granting permission to the appellant to produce the

documents sought to be produced along with the said

Interlocutory Application.

50. The upshot of the above discussion is that the

learned Single Judge and Division Bench of the High

82

Court were justified in not granting the temporary

injunction claimed by the appellant. It is difficult to hold

that either the learned Single Judge or the learned

Judges of the Division Bench of the High Court had failed

to exercise jurisdiction vested in them or had exercised

jurisdiction not vested in them or had exceeded the

jurisdiction vested in them by law. A reasonable reading

of the judgment impugned in the instant case would

indicate that a just approach has been adopted by the

learned Single Judge and Division Bench of the High

Court in not granting interim prayers claimed by the

appellant. No ground is made out by the appellant either

to interfere with the decision of the learned Single Judge

or with that of the Division Bench of the High Court.

Therefore, the appeals, which lack merits, deserve

dismissal.

For the foregoing reasons the appeals fail and are

dismissed. In the peculiar facts of the case it is directed

that there shall be no order as to costs.

83 ............................J.

[J.M. Panchal]

New Delhi;

April 28, 2011.

84 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL JURISDICTION

CIVIL APPEAL NO. 3753_ OF 2011

(Arising out of SLP (C) 12181 of 2010)

A.C. Muthiah ... Appellant

Versus

Board of Control for Cricket in India

& Anr.

...Respondents

WITH

CIVIL APPEAL NOs. 3754-3756 OF 2011

(Arising out of SLP (C ) Nos. 12232-12234/2010)

J U D G M E N T

GYAN SUDHA MISRA, J.

Leave granted.

When the world at large is endeavouring to eradicate conflict of interest in

public life as also in private venture and the respondent - Board of Control

for Cricket in India (shortly referred to as the `BCCI'), which enjoys

monopoly status as regards regulation of the sport of Cricket in India, and

is perceived to follow the doctrine of "fairness" and "good faith" in all its

85

activities, has itself recognized its value and importance by incorporating in

its Regulation that

"No administrator shall have directly or indirectly any commercial interest

in any events of the BCCI,"

then whether any exception diluting its effect could be carved out of that

without any just cause by introducing an amendment into the same, is the

question which essentially falls for consideration in these appeals.

Consequently, the question also arises whether the amendment was fit to

be kept under suspension by grant of an order of injunction against the

same as a result of which the respondent No. 2 would be restrained from

functioning as an office bearer of the BCCI in any capacity as his

commercial interest comes in conflict with the activities of the BCCI. In

this context the question of locus standi and legal competence of an

`Administrator' of the BCCI to file a suit for assailing the amendment

introduced in the BCCI Regulation, also arose for determination in the

event of which only, the challenge could be sustained at his instance.

While the suits are still pending in the High Court of Madras, the

applications for injunction have been rejected against which these appeals

86

arise wherein extensive arguments have been advanced by learned

counsel for the contesting parties in support of their respective pleas.

2. Having deliberated and meticulously considered the same in

the light of the background, facts and circumstances giving rise to these

appeals as also having the benefit of the views expressed in the judgment

and order of my learned Brother Panchal, J., I find it hard to subscribe to

the view expressed therein and hence record reasons respectfully

dissenting from the view on the issues raised in these appeals. For this

purpose as also to test the relative strength and weaknesses of the

arguments advanced and to have an overall view of the controversy

involved, I deem it essential to relate the genesis and background of the

matter under which these appeals arise.

3. The 1st respondent in these appeals which is the Board of

Control for Cricket in India (for short `BCCI') is a society registered under

the Societies Registration Act which has its own Memorandum of

Association, Rules and Regulations. Apart from these, BCCI also has

regulations for Players, Team Officials, Managers, Umpires and

Administrators which controls the game of Cricket in India and discharges

public functions which enjoys monopoly status as regards regulation of the

sport of Cricket. It thus earns huge revenues and is perceived to follow the

87

doctrine of "fairness" and "good faith" in all its activities. Fortunately, the

Regulations of the BCCI which incorporates rules for Players, Team

Officials, Managers, Umpires and Administrators itself has incorporated a

clause which is Clause 6.2.4 stating that

"No Administrator shall have directly or indirectly any commercial interest

in any events of the BCCI",

thus prohibiting conflict of interest of an Administrator with that of the BCCI.

The Regulation further incorporates the definition which states that an office

bearer of BCCI is an administrator and Regulation of the BCCI also

elaborately defines as to who is an `Administrator'.

4. However, putting laws and regulations on paper, does not mark

the end of fight against `conflict of interest' in public service and more so in

private venture. More appropriately, this step has to be viewed as a

beginning. Effective implementation and execution is absolutely crucial if

these laws and regulations are to be meaningful. Managing `conflict of

interest' is a relatively young system, but these young systems require

maturing in the form of sincerity, will and dedication and they must be

effective in all spheres if they are to survive and become engrained in the

institutional structures of governance by public as well as private bodies. In

88

absence of this, even better established programmes for conflict of interest

management could wither quickly, if ignored.

5. Bearing the aforesaid principle in mind, it may be relevant to

record the essential details and background of the matter which indicate

that the appellant herein - Sri Muthiah who is the past president of the BCCI

initially filed two complaints on 5.9.2008 and 19.9.2008 before the

President of the BCCI in his capacity as past President and hence an

Administrator alleging disqualification suffered by the second respondent

Sri N. Srinivasan who being the Chairman and M.D. of India Cements

Limited should not have been allowed to participate in the auction held for

owning Indian Premier League (`IPL' for short - a separate sub-committee

unit of BCCI) in which he was declared a successful bidder and thus

owned Chennai Super King. The Complainant/Appellant therefore sought

action against him as he brought to the notice of the BCCI-President that

the second respondent - Sri N. Srinivasan being an office bearer of the

BCCI who is also heading a company named `India Cements' had

commercial interest giving rise to a "conflict of interest" with the Indian

Premier League (for short `IPL') Tournament for which an auction was

conducted by the BCCI, in so far as he was in substantial control of the

India Cements Ltd. which became the successful franchisee of the

89

Chennai Super King and at the same time is also in the governing council

of the IPL Tournament which disqualified him to participate in the bid for

owning Chennai Super King.

6. The appellant's complaint did not meet with any response

whatsoever from the BCCI which prompted him to file a suit in the Madras

High Court on 24.9.2008 bearing C.S.No.No.930/2008 wherein the plaintiff-

appellant herein sought to enforce Clause 6.2.4 against the second

respondent - Sri N. Srinivasan as in the year 2008, respondent No.2 - Sri N.

Srinivasan who is the Managing Director of India Cements Ltd. became the

successful bidder for the Chennai Super King in the IPL auction held by

the BCCI and also held the office of the Vice Chairman and Managing

Director of India Cements Ltd. which derived commercial interest in the

events of the BCCI. Hence, the Plaintiff/Appellant herein raised an issue in

the suit that the respondent No.2 - Sri. N. Srinivasan being the Vice-

Chairman and Managing Director of India Cements Ltd. and also being

Office Bearer in BCCI, violated the Regulation 6.2.4 which specifically lays

down that no `Administrator' shall have direct or indirect commercial

interest in any of the events of the BCCI.

7. Just after a few days of filing of the suit by the Plaintiff/Appellant

herein - Sri Muthiah, wherein he sought to enforce the policy in Clause

90

6.2.4 against the second respondent - Sri N. Srinivasan, the BCCI met on

27.9.2008 and introduced an amendment to Clause 6.2.4 carving out an

exception therein which reads as follows:

"No Administrator shall have directly or indirectly any commercial

interest in any of the events of the BCCI excluding IPL, Champions League

and Twenty 20."

Thus, by one stroke of an amendment, which was introduced with racing

speed, without any deliberation by the BCCI, and without notice of 21 days

to the members on this agenda which was required under the Regulation,

the most commercial event of BCCI namely IPL, Champions League and

Twenty 20 matches were excluded from Clause 6.2.4 diluting the entire

effect of Clause 6.2.4, reducing this salutary clause into a dead letter.

8. The amendment introduced by the BCCI to Clause 6.2.4 was,

therefore, challenged by the appellant by filing a second suit bearing

C.S.No. 1167/2008 wherein the appellant also filed an interim application

seeking an order of injunction in both the suits for restraining the BCCI from

giving effect to the new amendment by keeping the same under suspension

which according to the appellant, had been introduced surreptitiously

merely to benefit respondent No.2 - Sri N. Srinivasan who had participated

91

in the auction in pursuance to the tender issued by the BCCI for persons

and corporates to own and operate a team for IPL matches wherein

respondent No.2 - Sri N. Srinivasan who is the Vice-Chairman and

Managing Director of a company known as India Cements Ltd., became

the successful bidder for the Chennai Super King in the IPL auction which

according to the case of appellant, could not have been permitted in view

of Clause 6.2.4 as it stood prior to the amendment. But in order to obviate

the bar imposed by Clause 6.2.4 which came in the way of Respondent No.

2 from participating in the auction for IPL, an amendment was hurriedly and

most expeditiously introduced in Clause 6.2.4 in order to permit second

respondent-Sri N. Srinivasan to participate in the bid in which he was a

successful bidder and consequently owned Chennai Super King in spite of

the bar of clause 6.2.4 which was operating against him prior to its

amendment and was introduced subsequent to the auction which was held

for owning Chennai Super King, in absence of which he would have been

ineligible to participate in the bid and hence disqualified. The appellant,

therefore, filed two applications for injunction and in the first application

bearing No. 1041/2008 he had sought a temporary injunction restraining

the BCCI from permitting Respondent No.2 - Sri N. Srinivasan to participate

in the General Body Meeting but in the second application he sought

92

injunction against the amendment introduced by pleading to put it under

suspension.

9. However, the main thrust of the argument of learned counsel

for the plaintiff/appellant all through in the suit and in the appeal before the

High Court as also in the injunction application was to the effect that the

amendment introduced by the BCCI in Clause 6.2.4 was an abuse of the

amending power exercised by the BCCI, in so far as the power of

amendment had been used not to promote Cricket, but to promote the

interest of the second respondent. But the learned single Judge before

whom the applications for injunction were filed in the suit was pleased to

dismiss the interim applications for injunction as the single Judge compared

the BCCI to private clubs and held that no outsider can question the

regulations of the society and the courts also cannot interfere in the internal

management of the society. The learned single Judge, however, did not

consider the main issue in the two suits in the context of the amended

Clause 6.2.4 and the amendment introduced in Clause 6.2.4 due to which

the plaintiff-petitioner filed an appeal before the Division Bench against the

rejection of the applications seeking injunction. But even on appeal, the

Division Bench dismissed the appeals against which these appeals by

special leave have been filed and were heard at length.

93 10. The first and foremost question that requires consideration in

this appeal by special leave is whether the plaintiff/appellant herein can be

held to be having any locus standi to file a civil suit challenging the

amendment introduced by the BCCI in Clause 6.2.4 of the Regulations as

he is merely the past president of the BCCI and whether the same can

confer any right on him as an Administrator so as to challenge the

amendment introduced by the BCCI diluting the bar of commercial interest

of the Administrator in the activities of the BCCI thus generating `conflict

of interest', and in case the answers were to be held in the affirmative, then

whether the amendment introduced by the BCCI in Clause 6.2.4 was fit to

be injuncted by keeping the same in abeyance/suspension as it clearly

gave rise to conflict of interest between the BCCI and respondent No.2

since he indulged in promoting his commercial interest while functioning

as an office bearer/Administrator of the BCCI who participated and

succeeded in the auction for owning IPL Chennai Super King. To clarify it

further, it may be reiterated that if the petitioner/appellant can be held to be

having the competence or locus to file a suit against the BCCI, then

whether the suit can be held to be maintainable at his instance so as to

enter into further question whether the alleged amendment introduced in

Clause 6.2.4 can be held to be having any conflict of interest with the

94

interest of BCCI as in that event it would permit respondent No. 2 to hold

the field by functioning as office bearer of the BCCI and thus participate in

all its policy decisions as well as deliberations, while continuing also as

Vice Chairman/ Managing Director of his firm India Cements Ltd. and

simultaneously also own Chennai Super King as successful bidder in the

IPL auction.

11. The preliminary question on which the entire edifice of the case

rests which will have the effect of making the entire case stand or crumble

down, is the question as to whether the plaintiff/appellant has the locus

standi to file a civil suit in the High Court of Madras so as to challenge the

amendment introduced by the BCCI under Clause 6.2.4. In this context, it

is extremely relevant to record the definition of the term `Administrator' in

the BCCI Regulations. Clause 1(n) defines the term `Administrator' as

under:-

"Administrator: An Administrator shall mean and include present and

former Presidents, Vice Presidents, Hony. Secretaries, Hony. Treasurers,

Hony. Jt. Secretaries of the Board of Control for Cricket in India ("the

Board"), past and present Presidents and Secretaries of Members affiliated

to BCCI and any person nominated in any of the sub committee appointed

by the Board as defined in the Memorandum and Rules and Regulations of

the Board."

95

12. The plaintiff/appellant is admittedly a past President of the BCCI

and hence in view of the unambiguous definition of the `Administrator'

which include past and present Presidents and Secretaries and Members

affiliated to BCCI, it is difficult to accept the position that the

petitioner/appellant had no locus standi to file a civil suit challenging the

amendment introduced by the BCCI. I find it hard to approve of the view

taken by learned Brother Panchal, J. that only if a past President is

nominated on any of the sub-committees of the BCCI, he would be deemed

to be an `Administrator' and not otherwise as it is clearly contrary to the

express definition of an `Administrator' given out in the Regulations of the

BCCI 2008. Clause 32 of the Regulation no doubt deals with misconduct

and procedure required to deal with complaint received from any quarter or

based on any report published or circulated or on its own motion in the

subject matter of indiscipline or misconduct. Clause 32 (v) of the

Regulation also deals with a provision regarding expulsion of any Member,

Associate Member, Administrator, Player, Umpire, Team Official, Referee

or the Selector, as the case may be, and in case any of them is found

guilty and expelled by the Board, he shall not in future be entitled to hold

any position or office or be admitted in any Committee or any Member or

Associate Member of the Board. Clause 32 thus clearly deals with the

96

misconduct and procedure to deal with office bearers including all its

constituents referred to hereinbefore of the BCCI and for this purpose it

also lays down as to who will be the competent persons as member of the

sub committee to deal with misconduct. But to hold that in spite of the

definition of an `Administrator' given out in Clause 1 (n) of the Regulation

which specifically includes President and past President of the BCCI, the

same would not include an Administrator unless he is a member of the sub

committee of the disciplinary committee which is constituted for dealing

with the misconduct of any office bearer including all its constituents as

envisaged under Clause 32, would be a far fetched interpretation so as to

hold that unless an Administrator is appointed on a sub committee for the

purpose of constituting a disciplinary committee under Clause 32 of the

Regulation, he cannot be treated as an `Administrator' within the meaning

of Clause 1(n) of the Regulation and that it would not clothe him with any

legal right to maintain an action in law against the BCCI even for

challenging the arbitrary amendment, is difficult to agree and accept.

13. On the contrary, I find sufficient force and substance in the

contention of the counsel for the appellant that the suits were filed by the

appellant in the capacity of past president of the BCCI since he was an

Administrator within the meaning of the said definition enumerated in

97

Clause 1(n) of the Regulation. As such, he was competent to institute a

suit in his individual capacity since Clause 1(n) of the Regulation cannot

be allowed to result into a provision rendering it nugatory by overlooking the

express provision of the definition of Administrator which unambiguously

includes past President, by extracting or attributing interpretation to it with

the aid of Clause 32 of the Regulation, which is not even remotely

connected with the definition and meaning of the expression `past

President' but is a separate and specific provision to deal with merely the

consequence of misconduct and its procedure to deal with the cases of

alleged misconduct which does not envisage dealing with cases wherein

the legality and efficacy of any amendment to the Regulation of the BCCI is

under challenge.

14. In the instant matter while dealing with the question of `locus

standi' as to whether the petitioner/appellant was legally entitled to institute

a suit for challenging the amendment or not, Clause 1(n) of the Regulation

which includes `past President' within the definition of `Administrator' is the

only relevant provision in my view and to dilute its effect, reliance cannot be

placed on Clause 32 of the Regulation as it deals exclusively with the

procedure for dealing with the cases of misconduct of the office bearers of

the BCCI and its other constituents like Player, Umpire etc. In my view,

98

this interpretation on the ground that the same would lead to a purposive

interpretation of the expression `Administrator' is neither literal nor

purposive. When Clause 1(n) clearly and explicitly defines the term

`Administrator' and declares expressly that an `Administrator' shall mean

and include present and former Presidents, Vice Presidents, Hony.

Secretaries, Hony. Treasurers, Hony. Jt. Secretaries of the Board, and

includes even past and present Presidents and Secretaries of Members

affiliated to BCCI so much so that even a representative of Member or an

Associate Member of Affiliated Member of the Board and any person

connected with any of the sub committee appointed by the Board as

defined in the Regulation of the BCCI has been included within the

definition of Administrator, it would be difficult to hold that such

Administrator also has to be a member of a sub committee which is

constituted for dealing with misconduct in order to challenge the

amendment introduced in the Regulation completely missing that the power

to challenge amendment of BCCI is altogether different from dealing with

cases of misconduct against players, umpires or administrator.

15. A plain and literal interpretation of the Rule clearly indicates that

the past presidents also have been unequivocally included within the

meaning of `Administrator' and while an Administrator can also be

99

included as a Member of the Sub-Committee for the Disciplinary

Committee, it cannot be interpreted so as to infer that former president

stands excluded from the definition of Administrator until and unless he is

a member of the Sub-Committee for disciplinary proceedings. It is difficult

to accept that this would be so in order to give it a purposive interpretation

as no purpose in my opinion can possibly be inferred from this, on the

contrary, the purpose is writ large that it amounts to grant exemption to

Respondent No.2 from getting trapped into the bar imposed by Clause

6.2.4 of the Regulation of the BCCI which laid down that "Administrator

shall have no direct or indirect commercial interest in any event of the

BCCI." With utmost respect, to hold it to be a purposive interpretation

would amount to overlooking the express provision of the definition of

Administrator given out in Clause 1(n) of the Regulation which lays down

that the Administrator will include not only existing presidents of the BCCI

but also past president, so much so that even a representative of member

or an associate member have been included within the definition of

Administrator.

16. It is explicitly clear and not even remotely ambiguous that the

object and purpose of Clause 32 is merely to lay down the procedure for

dealing with misconduct of any player, umpire, administrator etc. and it is

10

not even vaguely connected with the procedure, object or efficacy of the

amendment in the Regulation nor the mode and manner of introducing

amendment in the Regulation so as to infer that unless an Administrator

whether past or present is member of the disciplinary committee or sub-

committee, he cannot be held competent to initiate action against any

illegality of the BCCI introduced by way of amendment into the Regulation

or otherwise, is clearly an argument which is out of context and has

absolutely no relevance to the question of locus standi of an administrator

to challenge an amendment introduced in the Regulation.

17. To say that past president would mean to infer only those past

president who are members of the sub committee of a disciplinary

proceeding, in my view, amounts to deviating from the express meaning

and intention of the Rule so as to oust the past president from the affairs of

the BCCI, contrary to the express provision of the Regulation which

cannot be held to be a correct or purposive interpretation of the Rule as

this does not give effect to any purpose or laudable object which can be

held to be serving the cause of justice, fair play and interest of the BCCI.

On the contrary, it results into a restraint or hindrance to guarding the

interest of the BCCI from indulging in any malpractice obstructing the

course of justice and fair play.

10 18. We have also to bear in mind at this stage that the instant

matter is not even remotely connected with any disciplinary action to be

taken against any member, as the specific issue in the suit is whether the

amendment could have been introduced by the BCCI in Clause 6.2.4

ignoring and overlooking the fact that the existing office bearer of the

BCCI cannot be allowed to participate in the auction for owning IPL or

Twenty 20 matches as it would clash and conflict with the interest of the

BCCI.

19. We have to remind ourselves the well-settled principle of

interpretation that when the language in a statute is plain and admits of

one meaning, the task of interpretation can hardly be said to arise, as in

the instant matter, where the definition of `Administrator' has been clearly

given out in the Regulation of the BCCI. But in order to oust the past

President and his competence to challenge the action of BCCI from

questioning the speedy and hurried amendment introduced by the BCCI in

order to assist respondent No.2 from participating in the bidding process

for owning Chennai Super King and then to interpret the definition of

`Administrator' so as to hold that he was not competent to file a suit, can

hardly be held to be giving effect to a purposive and meaningful

10

interpretation to the expression `Administrator' as the purpose or object to

serve some just cause is totally missing.

20. If we were to dig at the labyrinth of the archives of judicial

precedents, we may take note of the case of The Attorney General vs. The

Mutual Tontine West Minster Chambers Association, Limited (1876) 1

Ex.D. 469 as also Charles Bradlaugh vs. Henry Lewis Clarke, (1883) VIII

A.C. 354, wherein it was held that "if there is nothing to modify, alter or

clarify the language which the statute contains, it must be construed in the

ordinary, natural meaning of the words and sentences". The safer and

more correct course of dealing with a question of construction is to take

the words themselves and again if possible at their meaning without any

first instance reference to cases. Literal construction of a provision cannot

be allowed to assume a restrictive construction without considering its

effect or consequence which would result from it for they often point out

the real meaning of the words. It is no doubt true that if the application of

the words literally would defeat the obvious intention of the legislation and

produced a wholly unreasonable result, we must "do some violence" and

so achieve that obvious intention and produce a rational construction. But

the question of inconvenience and unreasonableness must be looked at in

the light of specific events as was held in the case of Attorney General

10

vs. Prince Ernest Augustus of Hanover, (1957) A.C. 436, wherein the

question was whether the words used in the statute were capable of a

more limited construction. If not, the well settled rules of interpretation lays

down that we must apply them as they stand, however unreasonable or

unjust the consequence and however strongly we may suspect that this

was not the real intention of the law maker.

21. It would also be difficult to overlook the well settled position

that if a particular construction does not give rise to anomalies and the

words used are plain, arguments regarding inconvenience is of little

weight. It is also equally well settled rule of construction of statutes that in

the first instance the grammatical sense of the words is to be adhered to

and the words of statute must prima facie be given their ordinary meaning.

Where the grammatical construction of a statute is clear and manifest, that

construction ought to prevail unless there be strong and obvious reason to

the contrary but when there is no ambiguity in the words, there is no room

for construction. If the language of a statute is clear and unambiguous,

the court must give effect to it and it has no right to extend its operation in

order to carry out the real or supposed intention of the Legislature/Law

maker. When the language is not only plain but admits of just one

meaning, the task of interpretation can hardly be said to arise. What is not

10

included by the Legislature (law maker), the same cannot be undone by

the court by principle of purposive interpretation. This was the view

expressed by this Court also in the matter of Dental Council of India and

Anr. Vs. Hari Parkash and Ors., (2001) 8 SCC 61 wherein it was held that

it cannot ignore the obvious (provision) and object and the intention of the

Legislature apparent from the context and so interpret and construe it, so

as to enlarge the scope of its application by imparting into it, meaning

by implication, which do not necessarily arise.

22. Taking into consideration the aforesaid salutary principles of

interpretation, I am clearly of the view that the definition of the term

`Administrator' does not exclude the past president from the meaning of

Administrator so as to hold that the action taken by the Administrator by

filing a civil suit and questioning the amendment introduced by the BCCI

in Clause 6.2.4 was not fit to be entertained on the ground that the

appellant had no locus standi to challenge the amendment on the ground

of his competence or locus standi. I, therefore, find it hard to subscribe

and agree with the view that only if a past President is nominated on any of

the sub-committees of disciplinary committee of the BCCI, he would be

deemed to be an Administrator and not otherwise, is a difficult proposition

to accept.

10 23. I also find sufficient force and substance in the contention of

learned counsel for the appellant that as the BCCI discharges important

public functions such as the selection of Indian Team and the control on

the players and has to discharge important public function, it cannot be

expected to act arbitrarily whimsically and capriciously so as to hold that

the two suits are not maintainable at the instance of the appellant who

although admittedly is the past president of the BCCI and hence an

Administrator, had no locus standi to file even a civil suit and seek order of

injunction for suspending the effect of amendment on the plea that as he

was not a member of the sub-committee, he was not competent to

challenge the amendment introduced in the BCCI Regulation.

24. However, extensive arguments have been advanced by learned

counsel for the respondents that assuming there is violation of any

fundamental right by the Board, that will not make the Board a `State' for

the purpose of Article 12 of the Constitution. This submission although may

be correct in view of the ratio of the judgment delivered in the matter of

M/s. Zee Tele Films Ltd. And Anr. Vs. Union of India And Ors. (2005) 1

SCR 913, what is missed by the counsel for the respondents is that the

appellant herein has not moved the High Court under its writ jurisdiction

under Article 226 or Article 32 of the Constitution before this Court so as to

10

offer a plank to the respondents to contend that as the Board is not a

`State' within the meaning of Article 12, an Administrator under the

Regulation cannot file even a civil suit in the capacity as former past

President and hence an `Administrator' so as to challenge an

unconstitutional amendment in the Regulation of the BCCI. The counsel for

the respondents has ignored while dealing with this question that the

appellant had not moved the High Court for enforcement of his

fundamental right under Articles 226 and 227 of the Constitution nor a writ

petition in this Court under Article 32 of the Constitution has been filed

alleging infringement of his fundamental right, but has moved the High

Court by taking recourse to the civil remedy of filing civil suits in the

capacity as former president of the BCCI merely to ensure suspension of

the amendment by way of seeking injunction which was introduced as the

same was not in the interest of the BCCI, since it gave rise to direct or

indirect commercial interest of respondent No.2 with the events of BCCI

and is barred under Regulation 6.2.4 which is sought to be diluted by

introducing the amendment in the same.

25. It may be reiterated that this appeal by special leave is not a

petition under Article 32 of the Constitution but is an appeal under Article

136 of the Constitution arising out of an order passed in a civil suit refusing

10

to grant injunction which was filed in two regular civil suits. I, therefore, find

it difficult to accept the contention of the counsel for the respondents and

accepted by brother Panchal, J. that merely because the BCCI cannot be

regarded as an instrumentality of the State, it will have to be held that the

two suits filed by the appellant are not maintainable. In order to decide

whether the plaintiff has a right to file a civil suit or not, locus standi or

competence of the plaintiff alone is to be established and not the question

whether the Board is a State within the meaning of Article 12 of the

Constitution which is a condition to be fulfilled for invoking the jurisdiction

under Article 226 and/or 227 of the Constitution as also Article 32 of the

Constitution but surely not for filing a civil suit or injunction application. It is

perhaps in view of the Constitution Bench judgment delivered in the matter

of Zee Tele Films (supra) due to which the appellant herein had to file a

civil suit in the capacity as an Administrator that he has neither filed a

writ petition under Article 226 and 227 of the Constitution before the High

Court nor any writ petition under Article 32 of the Constitution before this

Court so as to hold that he had no locus standi to file even a civil suit

although he comes clearly within the meaning of definition of an

`Administrator'. Hence, the ratio of the decision in Zee Tele Films (supra) is

wholly inapplicable and irrelevant to the issue involved in this appeal which

10

arises out of civil suits and injunctions and the question of locus standi as to

who can file a suit or whether the suit filed by the appellant could be held

maintainable is the only relevant issue for the purpose of maintainability of

the suit and the injunction applications. When a civil suit is filed, the

question as to whether a party comes under the purview of

instrumentality of a State does not arise at all and the whole and sole

consideration would be as to whether the plaintiff had a cause of action to

file a civil suit, whether he is competent to file a suit and whether the suit is

maintainable at his instance. If the civil suit is maintainable on the basis of

existence of a cause of action, there is no room for assailing it by raising a

constitutional issue that the suit is not maintainable since the BCCI is not

an instrumentality of the State, as the said question is not relevant for

adjudication of a civil suit under the provisions of the Code of Civil

Procedure nor the civil courts are the Constitutional Courts to enter into that

question.

26. In fact, it may be relevant by way of assistance to mention

regarding one latest order dated 31.1.2011 of the Supreme Court passed in

Special Leave Petition (Crl.) No. 10107 of 2010 wherein a coordinate

Bench of this Court upheld the judgment and order of the Kerala High Court

whereby it was held that the elected honorary office bearers of the Kerala

10

Cricket Association and others like players, coaches, managers, members

of various committees etc. are public servants within the meaning of

Section 2 (C) of the Prevention of Corruption Act 1988 and the High Court

of Kerala had reversed the judgment of the Special Court at Kerala which

had held that they are not public servants. To elaborate it slightly, it may be

stated that Special Leave Petition (Crl.) No. 10107/2010 titled T.C. Mathew

vs. K.Balaji Iyengar and Ors. was filed challenging the judgment of the

Kerala High Court wherein the substantial question of law which was raised

before the Supreme Court in the aforesaid special leave petition was

whether the elected office bearers of Kerala Cricket Association could be

prosecuted under the Prevention of Corruption Act alleging offences under

Section 13(1) (c) and (d) read with Section 13(2) of the Prevention of

Corruption Act and whether Section 409, 420, 468, 471, 427 (a) and 201 of

the Indian Penal Code was rightly initiated against elected honorary office

bearers of the Kerala Cricket Association viz. honorary members of various

committees, players, coaches, manager, boys team members etc. A

Bench of this Court was pleased to dismiss the special leave petition in

limine by order dated 31.01.2011 and thus upheld the judgment and order

of the Kerala High Court which had held that the aforesaid elected officer

bearers of the Kerala Cricket Association could be prosecuted under the

11 Prevention of Corruption Act and hence the prosecution had rightly been

launched. This judgment although is not on the point as to whether the

past President is an Administrator or he has locus standi to challenge any

illegal action of the Kerala Cricket Association, it surely has a pursuasive

impact on the larger issue that the action of the BCCI and its state units

are open to challenge even under the Prevention of Corruption Act at the

instance of anyone who is concerned with its activities, more so an office-

bearer/Administrator who is a past President in view of the definition of

Administrator incorporated in the BCCI Regulation.

27. Thus once, it is held that the Plaintiff/Appellant is also an

Administrator of the BCCI in view of the definition of Administrator, his

competence to challenge the amendment introduced in the regulation of

BCCI cannot be held as not maintainable on the ground that BCCI is not a

`State' within the meaning of Article 12 of the Constitution as civil suits can

surely be filed and can be held maintainable if the plaintiff is able to make

out a case that cause of action has arisen for filing a suit and if he is able to

sustain the cause of action and he also is able to establish that he is the

proper party to the suit, the same will have to be tried by the Court and

cannot be dismissed on the ground of its maintainability. In fact, when a

civil suit is filed for seeking civil remedy, the question whether the

11

contesting party satisfies the condition that it is an instrumentality of the

State is of no relevance as the civil courts do not have to discharge

constitutional function so as to enter into this question. If it does, it would

be traversing beyond the boundaries of its jurisdiction. Hence, in my

opinion, this question is clearly irrelevant for the purpose of the controversy

raised in this petition.

28. The next question that needs to be addressed in this appeal is

whether the High Court was justified in rejecting the application for

injunction at least to the extent of keeping the amendment introduced in

Clause 6.2.4 of the Regulation of the BCCI in abeyance specially when

the appellant succeeded in making out a prima facie case to the effect

that participation of respondent No.2 in the bid held for IPL matches and

thus own Chennai Super King directly or indirectly came in conflict with

the interest of BCCI as respondent No.2 during and after bidding process

for the IPL Team admittedly held positions in four capacities which are as

follows:-

(c) Treasurer of BCCI;

(d)Vice-Chairman and Managing Director of India

Cements Ltd.

(e)Chairman, Managing Committee, Chennai Super

King; and

11

(f) Ex-officio Member of the Governing Council of

IPL.

Additionally, with effect from September 2008, respondent No.2 became

the Secretary of BCCI and, therefore, the Ex-officio Chief Executive of

BCCI and also Convener of the Meetings of the Committees of BCCI

including IPL and Champions League.

In this context, I find substance in the plea of learned counsel appearing for

the appellant that conflict of interest does not require actual proof of any

actual pecuniary gain or pecuniary loss as the principle of `conflict of

interest' is a much wider, equitable, legal and moral principle which seeks

to prevent even the coming into existence of a future and/or potential

situation which would inhibit benefit or promise through any commercial

interest in which the principal actors are involved. I also equally find

substance in the contention that the entire purpose of `conflict of interest'

rule is to prevent and not merely to cure situations where the fair and valid

discharge of one's duty can be affected by commercial interests which do

not allow the fair and fearless discharge of such duties. On this aspect, it

has been substantiated that respondent No.2 necessarily was privy to

highly sensitive information about the bidding process, the design of the

tender, the rules of the game, the future plans of BCCI in respect of IPL and

11

so on and so forth. It is contended that it is inconceivable that such insider

information to which any major office bearer of BCCI would necessarily be

privy, would not have used and misused both potential and actual materials

by respondent No.2 in the capacity of a bidder through his company India

Cements Ltd. Thus, I find it is correct to submit that no artificial Chinese

walls can be assumed to exist between the multiple personalities and

activities of respondent No.2 both as tender issuer and as a bidder. It is

for this reason that courts have levied and lined the principle of `conflict of

interest' both with the fiduciary character of a person who should not put

himself in a conflict situation and with the principles of a trustee dealing

with a cestui que trust. In support of this submission, learned counsel has

relied on Pierce Leslie Peter & Co. Ltd. vs. Violet Ouchterlony Wapshare &

Ors. (1969) 3 SCR 203 paras 3 and 4. In this context, the reasoning to

the effect that there was no clear case of `conflict of interest' which could

be cited by the appellant with adequate proof has no force in view of

Clause 6.2.4 as it clearly incorporates that no Administrator shall have any

direct or indirect commercial interest in the events of the BCCI and

amendment was introduced in this clause making IPL Champions League

and Twenty -20 the international matches an exception to the same. Thus

although anyone might not have indulged in creating actual loss to the

11

BCCI by any of his actions, the fact remains that by virtue of his position as

a Chairman of a company which participated in the bid to own IPL

tournament and at the same time holding the position of an office bearer of

the BCCI, is clearly bound to result into conflict of interest of the BCCI. It

is altogether a different matter that the appellant has also tried to cite

example that the respondent No.2 as franchise holder for Chennai Super

King was compensated approximately for Rs.47 crores by respondent No.2

on account of cancellation of a match. However, this is not the stage to rely

on this part of the allegation even if it is by way of an example as the suit is

still pending before the High Court, but the fact remains that the

respondent No.2 by virtue of his position as Vice-Chairman and

Managing Director of India Cements Ltd. and ex-officio Member of the

Governing Council of IPL clearly came in his way to participate in the

auction held by the BCCI for IPL matches and it is for this very purpose that

the amendment was hurriedly introduced so that the respondent No.2 may

not be held disqualified from owning IPL Chennai Super King.

28. In fact, the concept of `conflict of interest management' has

increasingly drawn the attention of governments and citizens alike in all

advanced countries including United States of America over the last

several years as has been the case in much of the rest of the world. Even

11

a century ago in the case of Bray vs. Bradford (1896) A.C. 44, it was held

that the directors as fiduciaries must not place themselves in a position in

which there is conflict of interest between the duties to the company and

their personal interests or duties to others. The courts have adopted a

severe method of ensuring that the trust and confidence reposed in a

fiduciary such as a director are not abused and the fundamental principle

was stated by Lord Herschell in the aforesaid case (supra) when it was held

as follows:-

"it is an inflexible rule of a court of equity that a person in a fiduciary

position...is not, unless otherwise expressly provided, entitled to make a

profit; he is not allowed to put himself in a position where his interest and

duty conflict. It does not appear to me that this rule is, as has been said,

founded upon principle of morality. I regard it rather as based on the

consideration that, human nature being what it is, there is danger, in such

circumstances, of the person holding a fiduciary position being swayed by

interest rather than by duty, and thus, prejudicing those whom he was

bound to protect. It was therefore deemed expedient to lay down this

positive rule".

In fact, the BCCI itself took care to ensure this principle by incorporating

clause 6.2.4 wherein it laid down that "no administrator shall have directly

or indirectly any commercial interest in any of the events of the BCCI". But

thereafter, the BCCI without any deliberation and discussion introduced an

amendment into this clause by making Twenty -20 IPL or Champions

League Matches an exception to this rule for which the respondent could

not come out with any plausible explanation.

11 29. Thus in my view, the appellant clearly came out with a

strong prima facie case that the amendment was introduced with an

oblique motive to benefit respondent No.2 so that he could not be held

disqualified from participating in the auction and own Chennai Super

King while continuing as Treasurer and thereafter as Secretary of

the BCCI and hence an Administrator and thus the appellant in my

considered opinion, succeeded in establishing his plea that the amendment

introduced by the BCCI in Clause 6.2.4 was an abuse of the amending

power exercised by the BCCI in so far as the power of amendment was

introduced not to promote the game of cricket but to promote the interest of

the 2nd respondent as it is more than clear that without the amendment,

Respondent No. 2 would not have been entitled to participate in the bid as

he was a Treasurer of the BCCI and hence without the amendment he was

not eligible even to participate in the bid and enjoy dual status of that of an

office bearer of the BCCI as Treasurer and also own Chennai Super King.

30. The plaintiff/appellant in my view and perception based on

consideration of the concept of conflict of interest and its implication surely

succeeded in making out a prima facie case that this resulted in serving

commercial interest of respondent No. 2 which gave rise to conflict of

interest with the activities of the BCCI since Respondent No.2 as

11

Administrator/office bearer was able to influence the decision of the BCCI

by being a treasurer and simultaneously also participated in the IPL

auction, clearly giving rise to commercial interest which is barred if the

amendment had not been introduced. Even at the risk of repetition, it is

essential to highlight that the BCCI regulation itself acknowledges this

position when it lays down in clause 6.2.4 that "no Administrator shall have

direct or indirect commercial interest in any events of the BCCI", but dilutes

its effect by amending it and making IPL, Champions League and Twenty-

20 matches as an exception which is the most lucrative and revenue

generating event. If the Administrator is clearly barred as per Regulation

from having any commercial interest in the events of BCCI, it is beyond my

comprehension as to how only one class of matches which was IPL,

Twenty-20 and Champions League could be treated an exception by

allowing an office bearer to participate in the bid but preventing him from

other matches including Test Matches. The plaintiff/appellant, in my

opinion thus, fully succeeded in making out a prima facie case that this

amendment smacks of arbitrariness and bias in favour of the Respondent

No.2 and hence it was a fit case for grant of injunction keeping the

impugned amendment introduced in Clause 6.2.4 of the BCCI Regulation

under suspension or abeyance.

11 31. However, since the Respondent No.2 has already participated

and succeeded in the bid and is also owning the Chennai Super King, it

may be appropriate to leave it open to him to exercise his option whether

he wishes to continue as an office bearer of the BCCI or own IPL Chennai

Super King since in view of Regulation 6.2.4, bereft of amendment, he was

not eligible even to participate in the IPL auction as it clearly generated

commercial interest of an office bearer/Administrator in the events of BCCI,

directly or indirectly. In my considered view, the plaintiff/appellant succeed

in making out his case to the extent that the amendment was fit to be kept

under suspension by granting an injunction against the amendment at least

until the suit was finally decided. The Courts below while considering the

application for injunction was fully competent to mould the relief in a given

circumstance or situation which it has miserably failed to do. But as the

event of bidding has already taken place even before the amendment was

introduced in the BCCI Regulation and the amendment was fit to be

suspended, the respondent No. 2, in my opinion, will have to exercise his

option whether he wishes to continue owning IPL and operate Chennai

Super King or is more interested in managing the affairs of BCCI as an

Administrator with fairness, probity and rectitude by divesting himself from

commercial interest which directly or indirectly results in conflict of interest

11

with the activities of the BCCI which was clearly barred under Regulation

6.2.4 but has been diluted by introducing an amendment after the IPL

auction had already been held when Respondent No.2 was ineligible even

to participate in the auction. Hence, the impugned amendment dated

27.9.2008 was fit to be suspended by granting injunction against the same.

This is clearly so as it would be difficult to overlook that multiple loyalties

can create commercial interest with the activities of BCCI thus resulting

in conflict of interest since the financial or personal interest of the Board

would clearly be inconsistent with the commercial and personal interest of

the Administrator of the Board. In addition, the rule of equity and fairness

provides that no one who stands in a position of trust towards another

can in matters affected by that position, advance his own interests for

example, by trading and making a profit at that other's expense as the

rule of legal prudence mandates that once a fiduciary is shown to be in

breach of his duty of loyalty, he must disgorge any benefit gained even

though he might have acted honestly and in his principal's best interest.

In the instant matter, when the BCCI held auction for owning IPL Team

and an Administrator - the respondent No.2 participated in the bid, variety

of real and/or perceived conflict of interest cannot be ruled out. These

12

included access to insider information, possible undue influence on the

decision makers who held the auction and the like.

32. Hence, I deem it appropriate to allow these appeals and grant

injunction by directing suspension of operation of the impugned

amendment dated 27.9.2008 introduced in Regulation 6.2.4 of the BCCI. In

case, the Respondent No. 2 - Sri. N. Srinivasan opts to continue owning

and operating IPL Chennai Super King, he shall be at liberty to do so but in

that event he shall be restrained from holding any office in the BCCI in any

capacity whatsoever in view of the reasons assigned hereinabove.

.............................J.

(Gyan Sudha Misra)

New Delhi

April 28, 2011

12

IN THE SUPR E M E COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPE AL NO. 3753 OF 2011

(Arising out of SLP (C) No. 12181 of 2010)

A.C. Muthiah ... Appellant

Versus

Board of Control for Cricket in India

and another ...Respondents

WITH

CIVIL APPEA L NOs. 3754-3756 OF 2011

(Arising out of SLP (C) Nos. 12232-12234 of 2010)

ORDE R

Since there is difference of opinion, let the papers of these

matters be placed before the Hon'ble the Chief Justice of India for

being assigned to appropriate Bench.

..................................J.

[J.M. PANCHAL]

..................................J.

[GYAN SUDHA MIS R A]

New Delhi;

April 28, 2011