Bombay High Court
Shri Shashank V. Manohar With Shri ... vs Cases 649 Overlooking The ... on 17 October, 2012
Bench: B.R. Gavai, S.P. Deshmukh
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FARAD CONTINUATION SHEET No.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
M.C.A. No. 853 of 2012
in
W.P. NO.4440/2011
(Anil Chintaman Khare VERSUS The President, Vidarbha Cricket Association, Civil
Lines, Nagpur and two others.)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Shashank V. Manohar with Shri A.A. Naik, Advocates for
Applicants/Original respondents.
Shri T.B. Golhar Advocate for Respondent/Original Petitioner.
.......
CORAM : B.R. GAVAI & SUNIL P. DESHMUKH, JJ.
DATE : OCTOBER 17, 2012
.
ORAL ORDER
1. The Miscellaneous Civil Application is to seek
recall/review of the order 09.08.2012 passed in Writ Petition No.
4440 of 2011. (Present respondent is hereinafter referred to as
'original petitioner' and present applicant as 'applicant' or 'VCA' or
'the Society' or 'original respondent').
2. The applicant contends, primarily, there are certain
errors which would be apparent, for the order has been influenced
and impressed and has been carried away by minority view of the
judgment of the Supreme Court in the case of Zee Telefilms
Ltd. .vs. Union of India reported in (2005) 4 Supreme Court
Cases 649 overlooking the majority view of three judges' which in
terms segregates and separates the activities of the bodies like the
applicant-original respondent holding not to be under any statutory
or constitutional obligation or right and bodies like BCCI being not
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a State or its instrumentality under Article 12 of the Constitution of
India. Since the majority view under its functional approach had
considered, keeping in view the requisite relevant tests, present
case being otherwise, writ petition No.4440/2011 deserves to be
rejected.
3. The original petitioner-respondent herein had played
Ranji Trophy cricket matches on behalf of the present applicant and
had been its member during 1983-84. The present applicant had
passed a resolution in August, 2010 about making payment of ex-
gratia amount (referred to as "pension") to its past Ranji Trophy
Players. The original petitioner had thereafter during the period
from August, 2010 to December, 2010 received such amounts.
However, since January, 2011 onwards, the amounts were not
being credited to his account in the bank. Petitioner thereafter
under correspondence queried as to why there has been cessation
of such payment to him. The present applicant had informed that
there was a decision to discontinue the pension being paid to the
original petitioner. The petitioner has under the W.P.No.4440 of
2012 sought direction to the present applicant to pay to him
pension regularly per month from January, 2011 onwards.
4. The present applicant has resisted the claim under the
writ petition on various grounds inter alia that the present
applicant is not the State under Article 12 of the Constitution of
India and is a society registered under the Societies Registration
Act, 1860. The decision to make ex-gratia payment to former Ranji
Trophy Players was a bounty and not under any statutory or
constitutional obligation or as a right of ex-player and as such, the
present writ petition is not maintainable.
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5. The resistance to maintain a writ petition before this
Court has been overruled under order dated 09.08.2012 passed by
this Court by relying on the judgment of the Apex Court in Zee
Telefilms Ltd. (supra). By referring to paragraph no.31 and
paragraphs no. 217 to 221, 225 to 227 and 229 to 235, it has been
considered that powers under Article 226 of the Constitution of
India of High Court and its jurisdiction are wide and there are no
fetters on exercise of the extra ordinary jurisdiction under Article
226 of the Constitution of India and as some of the activities of
BCCI have been considered to be akin to public duties, the VCA as
its affiliate would be amenable to writ jurisdiction under Article
226 of the Constitution of India.
6. According to the applicant, there is apparent
incompatibility in consideration of the matter as would be reflected
from contents of paragraph nos. 9 and 21 of the order dated
09/08/2012. While in the former it has been considered that
availability of alternate remedy is not an issue, in the latter one it
has been referred to that, it has been kept open and thus it had
been argued that the Court had misconstrued the facts constituting
error apparent on the face of record and this situation, calls for a
review of order dated dated 09/08/2012.
7. It is submitted that, it is an error apparent to hold that
the VCA performs public duty or public function in making
payment of pension, relying upon the minority view of the
judgment Zee-Telefilms (supra) and it has been equally error
apparent to rely upon that view of the judgment in the case of Zee-
Telefilms (supra) to hold the writ petition to be maintainable. It is
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submitted consideration that while the association makes payment
of pension to ex-members, it acts in furtherence of public duty to
regulate and control cricket players, are again by referring to the
minority view and could not be relied upon and as such the order
deserves to be reviewed.
8. It has been contended that merely for VCA does
selection of players recognising their talents and services it cannot
be said that activity of VCA involves public duty and would accord
it status of public duty. It has been submitted that in the absence
of any violation of any constitutional or statutory obligation or a
right of citizen, a writ even under Article 226 could not be
maintained pursuant to observations in paragraph 31 of the citation
referred to hereinabove and that there is no finding given in the
order about that there is any violation of any constitutional or
statutory rights.
9. Mr. Shashank Manohar, learned counsel appearing on
behalf of the applicant with vehemence submitted that unless there
is any violation of constitutional or statutory obligation or right of a
citizen, an aggrieved party would not have relief in a writ petition
under Article 226 as the Supreme Court (majority view) has
considered that if constitutional or statutory obligation or right of a
citizen is violated, then a writ petition under Article 226 may be a
recourse. He has submitted that there is no violation of any
constitutional or statutory obligation or a right of the original
petitioner in order to make the petition tenable under Article 226.
The attempt under the writ petition to have redressal of alleged
grievance against the applicant- society is not under assertion of
any right either under the Constitution or under any statutory
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measure. Neither there is ever pointed out breach or violation or
infringement of any constitutional or statutory obligation or rights
and for want of it, a writ petition cannot be maintained invoking
extra ordinary jurisdiction of this Court.
10. The order is silent about any such violation. According
to him it constitutes an error apparent on the face of record. The
order does not show the consideration of the contents of the
response to the writ petition on these aspects resisting the
tenability of the writ petition.
11. It is submitted that the order passed on 09/08/2012
has been influenced by the considerations referred to in paragraph
217 to 235 of minority view and in the process the considerations
which have weighed with the majority have paled into oblivion.
However, it will have to be considered that it is the majority view
which would prevail and have overriding effect being the law as
declared by the Supreme Court.
12. Mr. Manohar relies on paragraph no.31 of the
judgment cited supra to canvass that VCA while granting pension to
ex-Ranji Trophy Players is not doing it as a public duty at all. The
ex-gratia payment being tendered under a resolution is a private
decision/function and would not acquire the character of public
duty without there being any statutory or constitutional obligation
or right.
13. Whether the applicant society-VCA had taken upon
itself the ex-gratia payment being tendered to its ex- Ranji Trophy
Players, under any constitutional or statutory obligation and
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whether it is a public duty?
14. The situation appears that there are no rules statutory
or otherwise obligating such payment to ex-Ranji Trophy Players by
VCA. The decision to start paying ex-gratia amount to ex-Ranji
Trophy Players had been taken purely as an internal matter within
its own domain of authority and to pay ex-gratia amount to the
players like the original petitioner who ceased to be a Ranji Trophy
Player way back in 1971.
15. The aims and objects which have been referred to
would show that these are the voluntary promotional activities
aimed to be undertaken without it being to the exclusion of any
other person or organization to undertake such activities.
16. It is not controverted that the V.C.A. is financially,
functionally and administratively independent and its activities are
not under any statutory or constitutional obligation and/or are
controlled or dominated by the Government and whatever the
regulatory control the Government may have is not long enough to
reach/touch the actions sought to be impugned in the writ petition.
17. It ought to be considered that VCA has not been created
by any statute , no part of share is held by the State, no financial
assistance is given by or received by VCA, the monopolistic status
acquired by VCA has neither been conferred nor protected by the
State. There is no State control over it. The control, if any, is only
regulatory as in the case of other similar bodies but not under any
special statute applicable to it and that all its functions are not
public functions and further that it is an autonomous body.
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18. Here in the present case, the cessation of the ex-gratia
payment had been a decision of the society for some reasons. It has
been contended that making of ex-gratia payment was not in
discharge of public duty or public function and had been under a
voluntary decision without being controlled by the Constitution, or
any statutory law or rules.
19. Precisely on this aspect, discussing and dwelling on the
same at length, no definitive answer had come forward from the
original petitioner/present respondent, save and except that since it
(VCA) has undertaken the cricket development activities in the
territorial region of Vidarbha and being the only body representing
the region at State and National levels, its actions would acquire
the status of public function/public duty.
20. Reliance has been placed, by Shri T.B. Golhar, learned
counsel on behalf of original petitioner ,to buttress said
submissions on the citation Harbanslal Sahnia .vs. Indian Oil
Corporation Ltd. reported in (2003)2 Supreme Court Cases 107
to justify invocation of at the instance of the original petitioner
extra ordinary powers of this Court wherein the Court had dealt
with as to whether there would be an exclusion of jurisdiction in
the face of an alternate remedy and the Court ruling that it is rule
of discretion particularly under the circumstances where
enforcement of fundamental right has been sought, there has been
failure of principles of natural justice and orders or proceedings are
without jurisdiction or where vires of an Act has been challenged,
further finding that in said case enforcement of fundamental right
had been sought and that there had been failure of observance of
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principles of natural justice. Said matter involved a petroleum
dealership of the Government of India
undertaking/enterprise/organization which had been terminated.
21. The other authority which has been relied on is Binny
Ltd. .vs. Sadasivan reported in 2005 (106) FLR 1038 where
under the Court had considered a mandamus can be issued even
against a private authority, however, the private authority must be
discharging public function and the decisions sought to be
corrected or enforced must be in discharge of public function. In
said case the Supreme Court had also considered that a decision of
an employer to terminate services of employees cannot be said to
have any element of public policy and their cases would be purely
covered by contract of employment and it would not be appropriate
to construe those contracts as opposed to the principles of public
policy and further that in contractual matters even in respect of the
public bodies, the principles of judicial review have got limited
application. The Supreme Court ,thus, in fact, had allowed the
appeal before it at the instance of the employer.
22. Yet another authority relied on by the original
petitioner/present respondent is AIR 1989 SC 1607 - Shri Anadi
Mukta Saddguru S.M.V.S.J.M.S. Trust .vs. V.R. Rudani which is a
decision rendered by the Division Bench of Supreme Court, had
been dealing with payment of salary and other benefits by
Management to its employees, wherein the Court had observed that
the words "any person or authority" used in Article 226 are,
therefore, not to be confined only to statutory authorities and
instrumentalities of the State, they may cover any other person or
body performing public duty. The form of the body concerned is
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not much relevant. What is relevant is the nature of the duty
imposed on the body. The duty must be judged in the light of
positive obligation owed by the person or authority to the affected
party and if a positive obligation exists, mandamus cannot be
denied. This was the observation in the context of that the
University had taken a decision to grant revised pay-scales to
teachers in affiliated Colleges and the same was binding on the
Management as the service conditions of the academic staff were
not purely of a private character and also had superadded
protection by University decision creating a legal right-duty,
relationship between the staff and the management and in the face
of such relationship, mandamus could not be refused. This was a
case wherein the affiliated College run by the trust had been
receiving public money as Government aid and the Court having
considered that public money paid as Government aid, played a
major role on control and working of the educational institution
and the institution like the Government institution had been
discharging public function of imparting education and the
institution had been subject to the rules and regulations of
affiliating University. Their activities had been closely supervised
by the University authorities and thus it would be inferred that the
employment in the institution was not devoid of any public
character. In such a scenario, it had been considered that the
mandamus can issue even in the cases of private bodies. It is,
easily discernible, well nigh obvious that, the Court had
considered the issue of writ of mandamus to a private body having
regard to the public character of the duty and function of the
private institution and that the function did not have purely
private character.
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23. Though the applicant has contended on some of its
submissions, construction has been misplaced in the order that, to a
limited extent, the activity of the association is in the nature of
public duty and despite VCA being a society, is a trust as has been
assumed. However, we do not deem it proper to deal with the
same, as that would be of little significance as relief claimed in the
writ petition is in different context and set of facts.
24. In Zee Telefilms case (supra), the Supreme Court,
majority view, had considered that monopolistic control enjoyed
over the game of cricket in India by BCCI had not been sufficient
to hold even the Board to be a State for the purpose of Article 12.
The Supreme Court had declined to buy the line of argument that
though the Board controls rights of the citizen by rules and
regulations, which are in the nature of State regulations and the
cricket has now become a professional game and the Board under
it's monopolistic control has all pervasive powers to control a
person's cricketing career brings about acquisition of status of a
State, for the Supreme Court had considered, if such a logic was to
be applied, every employer who regulates the manner in which the
employee works would also have to be treated as the State.
25. The Supreme Court under said citation had considered
the arguments that the Board selects a team to represent India in
international matches. It makes rules that governs the activities of
cricket players, umpires and other persons which according to the
petitioner had the nature of State functions and had assumed that
some functions of the Board may amount to public duty or State
function. However, the Supreme Court had further considered that
the State had not chosen the Board to perform these duties nor had
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authorised it to carry out those functions under any law or
agreement and that it had left the activities of cricket to be
controlled by private bodies on their own volition and thus had
considered that the actions of the Board were not that of the State
nor is it representative and had, therefore, held that the Board does
not discharge such functions under any public duty.
26. While the Supreme Court in para 31 [(2005) 4
Supreme Court Cases 649- Zee Telefilms Ltd. .vs. Union of
India] has observed that some of the activities of the Board may be
akin to public duties or State functions and if there is 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 and
remedy may lie under the ordinary course of law or by way of a
writ petition under Article 226 of the Constitution of India which is
wider than Article 32. Having said so, it is incumbent upon the
original petitioner/present respondent to show any constitutional
or statutory obligation which has been infringed in order to enable
him to invoke extra ordinary powers of this Court under Article
226. In the absence of the same, it is difficult to maintain a
petition as being tenable to seek redressal of the grievance against
VCA to invoke extra ordinary powers and jurisdiction of the Court
under Article 226 of the Constitution of India.
27. The Supreme Court had considered about the
monopolistic status of BCCI over Cricket, yet the majority view has
clearly held that it would not confer status of a State on BCCI or all
its activities to be State function and thus the observations in
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order dated 9.8.2012 to hold that VCA as an affiliate of BCCI,
discharges public function or performs public duty would not gel
well with the majority view expressed in paragraphs 24 to 30 of
Zee Telefilms case. For paragraph no.31 had been with reference
to violation of constitutional or statutory/obligation or rights of
citizen holding the petition under Article 32 to be not maintainable
and petition under Article 226 may be possible necessarily shows
that the intention had been to express that for violations of
constitutional or statutory obligations or rights of a citizen, the
petition under Article 226 may lay. However, the situation in the
present case does not involve violation of any statutory or
constitutional obligations or right. The majority view has
considered that:
"the State/Union has not chosen the Board to
perform duties like the selection of an Indian
cricket team, controlling the activities of the
players and others involved in the game of
cricket nor has it legally authorised the Board to
carry out these 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
representation of the State it cannot be said that
the Board is discharging State functions. In the
absence of any authorisation of a private body
chooses to discharge any functions or duties
which amount to public duties or State functions
which is not prohibited by law when 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."
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The Supreme Court has also considered that:
"assuming for the argument's sake some of the
functions do partake the nature of the 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 the
Supreme Court in Pradeep Kumar Biswas case,
(2002) 5 SCC 111. 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 the
Supreme Court in Pradeep Kumsar Biswas, that
by itself would not suffice for bringing the Board
within the net of "other authorities" for the
purpose of Article 12."
28. The Supreme Court had also considered that if the
principles laid down by the seven-Judge Bench in Pradeep Kumar
Biswas's case are applied, 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 and would be purely regulatory and nothing more. The
Supreme Court has further considered that:
"There is no doubt that Article 19(1)(g)
guarantees to all citizens the fundamental
right to practice 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.
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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 prerequisite 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
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
that 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. While the paragraph no.31 has been referred to, in the
preceding paragraphs, the Supreme Court had considered that in
some respects the activities of BCCI may be akin to public duties,
yet it had considered that BCCI would not be a State and that the
State/Union has not chosen BCCI to perform such duties nor it had
legally authorised Board to carry out these functions under any law
and accordingly it had chosen to leave the activities of cricket to be
controlled by private bodies on their own volition and if a private
body choses to discharge any function, not prohibited by law, it
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would not make the body an instrumentality of the State. The
Supreme Court on this background in the preceding paragraphs
had observed in para no.31 that some of the activities of the Board
with reference to selection of players etc. may be akin to public
duties or State functions and if there is 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 and as such had referred to, inter alia, recourse to Article
226 for violation of constitutional or statutory obligation or right.
30. It would be pertinent to note that the Apex Court
appears to have cautiously expressed that, some of the activities
like selection of cricket team, controlling the activities of players
and others involved in the game, to be akin to public duties or State
functions, indicating that the Apex Court did not intend to hold all
the activities to be public duties.
31. As such, it has to be appreciated that, while the
majority view had said that some of the activities may be akin to
public duties and yet, it had refrained from referring to all the
activities of the Board to be public activities and/or duties
sufficiently indicating that not all the activities of the Board are
public duties.
32. Having regard to aforesaid, the decision to make ex-
gratia payment to ex-Ranji Trophy Players had been voluntary and
not under discharge of any public function or duty or not under any
statutory or constitutional obligation nor the same could be claimed
by the original petitioner as a matter of right, the alleged
monopolistic role in the field of cricket game by VCA within its
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territorial region does not accord such activities public duty status.
33. The fact that the activities being carried on by VCA
being voluntary in nature and not controlled by any statutory
obligatory measures by the State, the action of VCA in causing
interruption in ex-gratia payment to the original petitioner being
not in breach of any statutory measure nor that it is an obligation
under any statutory or constitutional provision, the action of the
society being within its domain, cannot be said to be in discharge of
any public function or duty.
34.
Some of activities' resemblance or being akin to or
similarity to public duty of other organisation, would not make, the
action sought to be called in question in writ petition, a public duty,
obligatory on the organization like the applicant/original
respondent. Assumption of some activity to be akin to or to have
trappings of something would not make or give to VCA the status of
the State or its instrumentality.
35. For the reason the activity undertaken by the applicant,
VCA has resemblance to the pensionary benefits to retired
employees of the State/Central Government being given as a
sovereign function, such an along side resemblance would not be
able to infuse character of public duty or public function to the
activity of the applicant/original respondent.
36. The payment made to such ex-Ranji Trophy Players, is
being made pursuant to a decision by the VCA and not as in the
case of payment of pension to ex-employees of the Government/
State instrumentalities etc. which is pursuant to statutory rules and
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as a sovereign duty of the State. The situation in the present case is
distinct and a stark distinction at that, the VCA had never been
making the payment as a matter under any legal or constitutional
obligation.
37. The question as has been raised in the present
proceedings was not called in question in Harbanslal Sahnia
(supra). In the present case none of the aforesaid principles would
be applicable for the original petitioner has not shown any
enforceable constitutional or statutory right involved concerning
said principles nor the action taken by the VCA can be said to be
outside authority. Thus, the reliance on said authority would be
of little assistance to the petitioner.
38. In the present case, it cannot be gainsaid that all the
factors, ingredients and aspects as have been considered in the case
relied on by original petitioner AIR 1989 SC 1607 - Shri Anadi
Mukta Saddguru S.M.V.S.J.M.S. Trust .vs. V.R. Rudani would not
be available for the reason that neither there is any Government
aid, nor it is governed by the public authority like the one-
University involved in the citation or is regulated by any rules or
regulations in its control, function and administration. In view of
this, said citation instead of carrying forward the case for the
original petitioner would rather run counter to the purpose for
which it had been cited.
39. In respect of citation 2005 (106) FLR 1038, it would
also be pertinent to note that action of making ex-gratia payment to
ex-Ranji Trophy Players does not at all have genesis under any
statutory power or obligation. It is a case of pure and simple
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voluntary act of a private organisation without being guided by any
law or the Constitution.
40. It ought to be considered that even if activities, referred
to in paragraph no.18 of the order, are similar to the activities
being carried on by BCCI and yet the Supreme Court had
considered it not be the State. Applying that analogy that it cannot
be lost sight of that VCA, which may be microcosm of such
activities in some respects, as an affiliate for all the more reason
would fall short of being the State. The observations in paragraph
18 being incompatible with the majority view, mere resemblance
of some activities which have been assumed to be akin to public
duty , would not be able to assign character of public duty to the
ex-gratia payments being made to ex-Ranji Trophy Players.
41. In the present case, in some respects the activities being
akin to public duties like selection of players , cannot be stretched
to take within its fold the activity of making payment of pension,
as and by way of public duty.
42. Under the minority view in Zee Telefilms Case, it has
been considered that the BCCI enjoys enormous power and
influence over the game of cricket and having been stated to be the
State under Article 12 of Constitution of India on affidavit by the
Government, and its activities impinge on rights of players and
other persons and as such the Board was considered to be the
State, amenable to a writ petition under Article 32 of Constitution
of India. However, majority view appears to hold otherwise under
paragraph nos. 25 to 29 and 36 of the judgment. Moreover it is
imperative to follow the majority view in Zee Telefilms case that
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being the declaration of law in the country.
43. Taking stock of over all situation as stated hereinabove,
the action of the VCA which is sought to be impugned in Writ
Petition No.4440/2011 being not a "State" action or an action of
an instrumentality of the State, and there being no violation of any
constitutional, statutory obligation or right, or it being not in
discharge of public duty, which would justify a writ petition for
redressal of grievance, we deem it appropriate to review the order
passed on 09.08.2012 giving access to the original petitioner to
request exercise of extra ordinary powers and jurisdiction under
Article 226 of the Constitution of India.
44. Having regard to this, review application is allowed.
The order dated 09.08.2012 passed in Writ Petition No. 4440 of
2011 is recalled.
45. It is declared that the petition seeking the reliefs prayed
for is not tenable against respondents No. 1,2 and 3 in the extra-
ordinary jurisdiction of this Court under Article 226 of Constitution
of India. However, it is made clear that the observations made by
us hereinabove are only with regard to the tenability in respect of
the reliefs claimed in this writ petition. These observations shall
not in any way affect the rights of the petitioner, if the petitioner
takes recourse to other alternate remedies available to him in law.
JUDGE JUDGE
HALWAI
