Rahul Mehra vs Union Of India And Ors.
2017 Latest Caselaw 4048 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Decided on 10.08.2017

+                              WP (C) No. 195/2010

RAHUL MEHRA                                              ..... Petitioner
                               Through:   Mr. Rahul Mehra, petitioner in
                                          person.

                               Versus

UNION OF INDIA AND ORS.                     .....Respondents

Through: Mr. Sushil Dutt Salwan with Mr. Aditya Garg and Ms. Himani Kaushik, Advs. for R-6.

Mr. Hemant Phalpher, Adv. for R-4.

Mr. Anil Soni, CGSC for UOI.

Mr. Premtosh Mishra with Ms. Yojna Goyal and Ms. Saloni Agarwal, Advs. for R-8.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J

CM No. 10461/2017

1. The applicant seeks inter alia appointment of an Administrator/ Returning officer for compliance of this Court's order dated 15.12.2016, as well as stay of the notice dated 02.03.2017 of the Archery Association of India (AAI) calling for an emergency meeting of the General Council on 15.03.2017 and in the alternative, to stay the outcome of such meeting if held, till the Court appoints an Administrator/Returning Officer to conduct

elections of the AAI in accordance with this Court's order dated 15.12.2016.

2. On 15.12.2016, this Court passed the following orders:

"CM No.5982/2012 in WP(C) 195/2010 ( Disposed off application)

Issue notice. Mr. Anil Soni accepts notice for respondent nos. 1 & 2. Issue notice to respondent nos. 3 to 13, returnable on 20.01.2017.

The petitioner urges that the elections to All India Football Federation are prima facie in conflict with the directions of this Court and relies upon the previous orders dated 11.04.2012, 25.04.2012, 13.09.2012, 17.09.2012 and 18.12.2012. The last order i.e. order dated 18.12.2012 was in respect of elections to the All India Football Federation. The Court had suspended the election proceedings and in the other order, the Court had directed that elections to the National Sports Federations/Indian Olympic Association (IOA), as the case may be, ought to be conducted not only as per the applicable rules of the institution concerned, but also in consonance with the National Sports Code of the Govt. of India and the elections guidelines contained therein - both with respect to conduct as well as eligibility conditions including age, tenure and restrictions. In the circumstances, prima facie we are of the opinion that the elections scheduled for 21.12.2016 to the All India Football Federation should be stayed. It is hereby so directed. The All India Football Federation - respondent No. 8, which is a party in these proceedings - is hereby restrained from completing its election scheduled for 21.12.2016.

Union of India is hereby directed to ensure that the elections to the Archery Association of India (AAI) are

conducted in consonance with the constitution of the said institution, the National Sports Code and also in conformity of the orders of this Court dated 17.09.2012 & 15.10.2012 in CM No. 5982/2012, especially paras 4 and 7 of the order dated 15.10.2012. It is also directed that complaints of the States/Union Territories/Institutions for inclusion of their names in the Electoral College should also be resolved before the date of the elections. The election process shall be completed not later than 31.03.2017....."

3. The applicant contends that although the Constitution of the AAI strictly stipulates under clause 1 sub-clause (iv) & (vi) of Chapter XI titled "Meetings" that a General Council meeting can be held only after giving clear 30 days notice to all its members; however, the AAI hurriedly called for an emergent meeting on 15.03.2017 by a notice dated 02.03.2017 and the mandated notice period was not complied with. The applicant refers to Chapter XIII of the said Constitution which reads as under:

"No amendments shall be made to the Rules and Regulations of AAI except at the Annual General Meeting of the General Council and by a two-third vote of all the members present. All proposed amendments must be presented to the Honorary Secretary General in writing at least 15 days before the date of the Annual General Meeting of the General Council and forwarded by him to all members of AAI in due course."

4. The applicant also refers to the letter dated 10.03.2017 from the President of the Archery Association of Assam in which he objected to the holding of the so-called emergent General Council meeting. A letter dated

11.03.2017 from the General Secretary of the Pondicherry Association expressed its anguish and concern regarding the unexplained disaffiliation of the Pondicherry Archery Association, which had otherwise been its member for more than 17 years. The applicant contends that Clause IV of Chapter II titled "Qualification of Membership and Fee" has been violated because it provides for restoration of the privileges and membership of the defaulting member state upon the latter paying the late fee and arrears of other dues etc. along with 20% surcharge amount towards penalty. The applicant also refers to the representation dated 13th March, 2017 of Mr. B.V.P. Rao, Vice President of Archery Association of Assam whereby he opposed the proposed exercise to amend the Constitution of the AAI in its emergency General Council Meeting as the AAI stands derecognised by the Government of India and comprises of persons who have exhausted their elected mandate and tenure.

5. The applicant contends that the elections should be held as per the Constitution of the AAI and the stipulations of the National Sports Code, especially regarding age and tenure restrictions. Such a newly constituted body should immediately form a committee to ensure amendment of its Constitution within a stipulated time period in order to adopt principles of good governance and best international practices prescribed in the National Sports Code.

6. Opposing the application and refuting the applicant's contentions, the respondent/AAI (Association) contends that its exercise of amending its Constitution and bye-laws is only to bring it in conformity with the National Sports Development Code of India - 2011, in compliance of this

Court's order dated 15.12.2016. The amendment was proposed much earlier in time, so that the elections of its new executive body are concluded before 31.03.2017. The Association submits that its process of bringing its Constitution in conformity with the National Spots Development Code of India - 2011 began soon after the meeting of its Executive Committee in September, 2016. The amendment was considered all the more imperative in view of the conditions imposed by the Government that the Constitution must first be amended and only thereafter the elections should be held. Hence, on 22.12.2016, the Executive Committee of the Association resolved to adopt the National Sports Code and to amend its Constitution accordingly. It addressed a letter intimating the Government of India of its proposal to amend the Constitution; this was followed up with a meeting on 22.12.2016 with officials of the Ministry of Youth Affairs and Sports. By a letter dated 03.03.2017, the Ministry asked the AAI to bring its Constitution in conformity with the National Sports Code and suggested four more amendments. The General Secretary of the Association called an emergent meeting of the General Council with a notice period of 10 days to comply with this Court's orders/directions dated 15.12.2016. It is stated that the meeting was attended by representatives of 25 State/UT units and barring 5- 6 people, the amendments were supported by the other representatives. Hence, the assembly of these representatives adopted the modified Constitution which is supposedly in line with the National Sports Code. It is stated that the elections of the Association would then be carried out in terms of the amended Constitution.

7. In response to the application, the Government of India contends that the AAI was derecognised on 17.12.2012 and the present application relates to the internal affairs of the AAI with which the government is not concerned; however, since the International Archery Federation accepts participation of teams/sportspersons only through AAI, the Government is constrained to deal with the AAI to the extent of sending entries of teams/sportspersons for participation in international events. The Government denies that it has handed over charge of the AAI to Mr. Anil Kamneni. Furthermore, the Government states that it is not dealing with any office bearer of the de-recognized AAI; that the holding of elections within the stipulated period and in conformity with the National Sports Code is the responsibility of the concerned NSF i.e. AAI and that the Government has no role in appointment of Returning Officer for the same. It is, however, contended that unless the NSF complies with all the provisions of the National Sports Code including (i) tenure and age restrictions of their office bearers, (ii) electing minimum 25% sportspersons with voting rights in their Executive Council and (iii) holding of free and fair elections, the Government would not consider grant of its recognition to such Sports Federation i.e. AAI in this case. The Government refers to its communication dated 22.12.2016 reminding the AAI that elections of the office bearers must be completed by 31.03.2017.

8. On 17.09.2012, this Court had passed the following order:

CM No.5982/2012

Mr. Rahul Mehra submits that a General Council meeting of the Archery Association of India is scheduled to

be held on 29.9.2012, when elections will also be held. Attention of this Court is drawn to the order dated 11.4.2012 passed by this Court in similar cases in respect of other Associations wherein direction is given for holding the elections as per the provisions of the Bye-laws / Memorandum / Rules of those Associations as well as the Sports Code of the Government of India. Following that order, we direct that only if the elections of Archery Association of India are held in accordance with the aforesaid provisions, the Government of India shall accord recognition thereto and not otherwise.

List on 15th October, 2012.

A copy of the order dated 13.9.2012 passed in this matter be given dasti to all the parties."

9. On 15.10.2012, the following order was passed:-

"CM No.5982/2012 (of the petitioner for directions)

1. This application pertains to the Archery Association of India (AAI). On 17.09.2012, it was informed that a General Council Meeting of the AAI was scheduled to be held on 29.09.2012, when the elections of the AAI were also to be held. Vide order of the said date, it was directed that only if elections of AAI are held in accordance with its Bye-laws / Memorandum / Rules as well as the Sports Code of the Government of India, will the Government of India accord recognition to the AAI and not otherwise.

2. The petitioner today informs that the elections were not so held on 29.09.2012. He has handed over in the Court a copy of the letter dated 08.10.2012 of the AAI to the Presidents / Secretaries of affiliated Regular State Associations / Units and to the Executive Members of the AAI laying down the

schedule of the elections now proposed to be held on 28.10.2012. He further states that though Justice J.D. Kapoor (Retd.) has been appointed by the AAI as the Returning Officer for the elections but the elections as proposed to be held are in contravention of the National Sports Development Code of India, 2011.

The following contraventions have been pointed out:

(a) that as per the letter dated 08.10.2012 supra, the nominations are to be submitted either in person or through registered post in a sealed envelope though addressed to the Returning Officer but at the address of Sh. Vijay Kumar Malhotra, the present President of the AAI. It is argued that since Sh. Vijay Kumar Malhotra is also one of the contestants in the proposed elections, the submission of nominations at his address is improper;

(b) that there is no certainty of the Electoral College and the same is being tampered with. Attention in this regard is invited to the list of affiliated Units of the AAI as on 01.04.2008 and as earlier appeared on the website of the AAI and which included Himachal Pradesh Archery Association (HPAA) and Uttarakhand Archery Association (UAA). Attention is next invited to the list of affiliated Units as on 01.04.2008 as now appearing on the website of the AAI and from which list, the aforesaid HPAA and UAA are missing. It is contended that the persons who have been in the management and control of the AAI for decades, have attempted to remove the said two Associations from the Electoral College apprehending that they will not vote in favour of the said persons. Similarly, it is contended that the Associations of the State of Mizoram, Tripura and Arunachal Pradesh have been removed from the Electoral College. Correspondence in this regard with the Arunachal

Pradesh Archery Association is also handed over. Copy of the letters written by the Archery Association of Assam expressing doubts as to the fairness of the elections proposed to be held are also handed over;

(c) that the letter dated 08.10.2012 does not prescribe that the elections will be held by secret ballot;

(d) that the Forms of nomination and withdrawal of nomination prescribed are different from the Model Forms prescribed in the Code aforesaid; and

(e) that no time for campaigning has been given, again with a view to not allow any other person to contest the elections.

3. We find that Clause 4(4) of the Model Election Guidelines to be followed by all National Sports Federations (as AAI is) contained in the Code, require each Member State / Union Territory to intimate the names of their representatives by a specified date and Clause 4(5) requires the National Sports Federation to prepare a list of such Authorized Representatives and circulate a copy of the said list to all member States / Union Territories / Boards / Institutions by display on the website. Clause 4(6) requires the President / Secretary General of the Federation to furnish the said list immediately to the Returning Officer also. A perusal of the letter dated 08.10.2012 shows that the date of 15.10.2012 has been prescribed for receipt of names of representatives from member Associations / Units and of 16.10.2012 has been prescribed for finalization and delivery of authorized list of Representatives to the Returning Officer. No date for circulating the list of Authorized Representatives of the member States / Union Territories / Board / Institutions to all member States / Union Territories / Board / Institutions or for publication on the website has been prescribed.

Rather, the dates of 18.10.2012 to 22.10.2012 immediately thereafter have been prescribed for submission of nomination forms. Upon the same being brought to the attention of the senior counsel for the AAI, he states that even though no date for such circulation in compliance with Clause 4(4) to 4(6) has been prescribed but in compliance therewith, upon finalization of the list on 16.10.2012, it shall be put up on the website. We are however of the opinion that the very purpose of so displaying the list on the website and / or circulating it, is to enable the persons if any aggrieved from the said list to make representations. The schedule of the proposed elections as fixed in the letter dated 08.10.2012 does not leave scope for any objections to be preferred to the list to be so circulated.

4. Mr. Mehra has in this regard also drawn our attention to the letter dated 01.11.2011 of the Government of India to the Gymnastic Federation of India regarding its elections and which letter is to be read as part of the Code, prescribing the stages of:

 issuance of notice for election and inviting the names of representatives from state Units to form Electoral College;  publication of Electoral College;

 appointment of Returning Officer;

 Returning Officer to call nominations;

 Screening of nominations by Returning Officer;  Publication of valid nominations also indicating the details of invalid nominations by the Returning Officer;  Time for withdrawal of nominations;

 Publication of final list of candidates by Returning Officer;  Adequate time for canvassing;

 Holding of elections by secret ballot by the Returning Officer; and

 Announcement of election results by the Returning Officer with reasonable time gaps, in the election process.

He has contended that the election process, as prescribed in the Code, is to be in the aforesaid manner; the process prescribed in the letter dated 08.10.2012 is thus not as per the Code and leaves scope for mischief.

5. Attention is also invited to the letter dated 24.12.2009 of the Government Observer for elections to Hockey India, 2010, also requiring publication of the list of contestants drawn after scrutiny, for information of all contestants and Electoral College members and further prescribing election by secret ballot.

6. Reference in this regard is also made to the judgment dated 04.01.2012 in W.P.(C) No.4860/2011 titled Haryana Wrestling Association Vs. Wrestling Federation of India of a Single Judge of this Court, also holding the elections to have been not held fairly on account of tight time schedule fixed for conduct of the elections.

7. The Model Guidelines supra in the Sports Code, vide Clause 6(4) require the nominations to be personally delivered to the Returning Officer in person by the candidate himself / herself. The procedure prescribed in the letter dated 08.10.2012 of the AAI, of filing of nominations in person or through registered post at the address of the President of the AAI is thus not in accordance with the Sports Code.

8. Faced with the same, the senior counsel for the AAI states that the necessary modifications shall be issued.

9. The nomination forms as prescribed in the letter dated 08.10.2012 are indeed not as per the Model Forms

prescribed in the Guidelines aforesaid. The same require the nomination paper to prescribe the 'serial number in the Electoral College' and which column is missing from the nomination form prescribed by the AAI. Mr. Mehra contends that it has been so deleted since the Electoral College is being manipulated. The same is the position vis- a-vis the withdrawal form.

10. This Court has already on 17.09.2012 directed the Elections to be held as per the Sports Code. Variations in the election process initiated by the AAI from the Sports Code having been noticed, it is deemed expedient to direct fresh steps for holding of the elections to be taken and strictly in accordance with the Sports Code and rectifying the defects hereinabove noted.

11. Since Justice J.D. Kapoor (Retd.) is informed to be appointed as Returning Officer, we request the Returning Officer to look into all the aforesaid aspects and the other requirements as per the Code and to lay down the fresh schedule for conduct of the elections, rectifying the aforesaid defects and strictly in accordance with the Code. The complaints of the States / Union Territories / Institutions for inclusion in the Electoral College be also resolved before the same. However the election process be completed as soon as possible.

12. AAI to immediately furnish copy of this order to the Returning Officer for compliance.

13. With the aforesaid directions, the application is disposed of.

10. In view of the pendency of this application, the Court had on 27.03.2017 suspended the direction to AAI to complete the elections by 31.03.2017.

11. This Court's direction of 15.12.2016 required the AAI to conduct its election by 31.03.2017. The imperatives of the order were that (i) the elections be held in consonance with the Constitution of the said Association; (ii) in conformity with the National Sport Code as well as orders of this court dated 17th September and 15th October, 2012; and (iii) resolution of the complaints/redressal of grievances of member units/representatives regarding inclusion of their names in the electoral college before such elections.

12. The Archery Association of India, as the National Sports Federation for archery in the country represents the entire territory of India. Its activities should extend to and it should be represented from all parts of the country. However, as noted above, Assam and Pondicherry units had an objection to the manner of amendment to its Constitution. The Pondicherry unit had not even been intimated of this important exercise. Indeed, the latter has been kept out of the administrative ambit for years and its participation, both in the affairs of the Association and its elections, is not representative of the entire country as per the AAI Constitution. Active participation of the Pondicherry unit, along with other units whose memberships have been under suspension would have to be first resolved in terms of the Constitution, prior to any proposed amendment and definitely prior to the proposed elections. These units would be required to be part of the Electoral College so that they are all adequately and appropriately

represented. A perusal of the Roll Call of the Emergent Meeting held on 15.03.2015, would reveal that a number of states in the east of India, especially those which have a rich tradition of the sport of archery, were not represented. These include Meghalaya, Mizoram, Nagaland, Orissa, Sikkim, West Bengal and Tripura. These states which have gone unrepresented in the meeting comprise almost 180 million1 citizens (17,96,72,392) which is a sizable population by any standard. Furthermore, the Petroleum Sports Promotion Board (PSPB), which was granted the status of a NSPO (National Sports Promotional Organisation) by the Ministry of Youth Affairs and Sports was also left unrepresented. Evidently, the aforesaid meeting was not truly representative of the entire country as per the Constitution of the AAI.

13. The applicant also submits that the Pondicherry Archery Association which has been a member state association of Archery Association of India for more than 17 years has been disaffiliated and its grievances have still not been readdressed. Similarly, the grievances on behalf of the Archery Association of Assam from its President Jayant Bharot as well as the other representation from Vice President B.V.P. Rao have not been addressed. They had raised the issue of a number of procedural irregularities in the calling of the Emergent General Council Meeting and the proposed large scale amendments which according to them are akin to rewriting the Constitution. They had contended that for any General Council Meeting, section 14 of Chapter-VII of the AAI Constitution requires a notice of 30

1Census data of 2011 conducted by the Office of the Registrar General & Census Commissoner, India, available at: http://www.censusindia.gov.in/2011census/population_enumeration.html

days. Objections were also raised about the draft amendments to Chapter- VI. They had also questioned the proposed Domicile Rule and wondered whether the said provisions would not be violative of the fundamental right of freedom of association and of domicile in any part of the country.

14. In its representation to the Archery Association of India, the Pondicherry Archery Association contended that there is no provision in the Constitution to derecognize any member for paying late fee, especially in view of the clear provision as per section 4, Chapter-II of the AAI Constitution which provides for restoration of one's privileges once the late fee is paid. It further alleged that the de-recognition was on flimsy grounds and it was not even intimated about the Emergent Council Meeting on 15th March, 2017. It had sought (i) invitation to the said meeting, (ii) its participation in the next and all other elections, and (iii) no such amendment to the Constitution should be made before the elections.

15. Since notices were not sent to all members units/ representatives as per the extant rules on 15.12.2016, including the Pondicherry Archery Association and such other states/units, the General Council Meeting was improper. Furthermore, the objections of the Archery Association of Assam and another disaffiliated unit are yet to be resolved. The meeting called by the present dispensation purporting to represent the AAI, the General Council Meeting called by it and the so called resolutions adopted on the said date were improper and irregular. This is even more so since large parts of India covering six Eastern states and Orissa and Pondicherry, as aforementioned, were also not represented. All these vitiate the General Council Meeting. Hence, it cannot be said that the aforesaid meeting of

15.03.2017 was in conformity with the Court's order and in terms of the Constitution of the Association.

16. The orders of this Court in September and October 2012 had clearly directed that the affairs of the elections be held in accordance with the National Sports Code. This has been disregarded. The Archery Association of India itself was de-recognized by the Government of India on 07.12.2012. The tenure of the Executive Committee/group of people purporting to represent the AAI has expired. The Association is being run by the people who evidently do not have any authority since the elections were not held on time.

17. The Government of India, emphasised before the International Olympic Committee on 18.06.2010 (page 982 of the paper book) that (a) National Sports Federation should have good standard by complying with the applicable laws and guidelines on the same lines, as the International Federation must have a good standing with the National Organizing Committee (NOC) of major international sporting events; (b) the athletes should be in a good standing with the National Sports Federation as well;

(c) that good governance practices are essential for sports bodies to secure and maintain authority and that there is an urgent need of prescription to the basic standards by NOC. Given the fact that Government of India de- recognized the concerned NSF way back in 2012 and its Executive Committee did not deem it fit for over four years to amend its Constitution to bring it in conformity with the National Sports Code in terms of this Court's Order by a regular meeting, instead the same was attempted

through the Annual General Meeting of its Emergent General Council Meeting, which does not inspire confidence.

18. Non intimation of the said meeting to the de-affiliated members, in particular to the Pondicherry Archery Association and other disaffiliated members/units, is questionable and cannot be considered as good governance practices, which is essential for sports bodies.

19. Furthermore, it would have been in the fitness of things and a step towards good governance practices, if an Observer had been invited from the Government of India which provides wide financial assistance to the AAI at national and international sports events, lending some credibility to the meeting of 15.03.2017.

20. In the circumstances, the Court deems it appropriate that the affairs of the Archery Association of India (AAI) be brought under the supervision of an Administrator till its Constitution is amended and elections are held in terms of this Court's order dated 15.12.2016. The Court also deems it appropriate that for the present, the affairs and elections of AAI be conducted by a person of public eminence with significant experience in sports affairs and administration and elections. We are of the opinion that Mr. S.Y. Quraishi, Former Chief Election Commissioner of India, who has also served as Secretary in the Ministry of Youth Affairs and Sports, Government of India would be a suitable person to be appointed as the Administrator-cum-Returning Officer for discharge of the following functions:

(i) To resolve the issue of disaffiliation of such members/units of AAI as on 15.12.2016, within a month from today by giving them two weeks'

notice and if their membership can be regularized in terms of the 'un- amended' Constitution, it shall be so regularized;

(ii) the Electoral College of the AAI shall be prepared and elections shall be held in six weeks thereafter. This elected body shall carry out the amendments to the Constitution to bring it in conformity with the National Sports Code.

(iii) Thereafter, a fresh round of elections, shall be carried out as per the amended Constitution and in terms of the National Sports Code, to ensure that age and tenure restrictions and due representation of the sports persons are strictly complied with. The entire exercise shall be carried out within a period of 4 months from today.

(iv) The AAI shall make available to the Administrator an appropriate office space and facilities for the discharge of the aforesaid directions and make available such staff and personnel as the Administrator may express the need for. Alternatively, the Administrator may appoint such personnel to assist him in the aforesaid matter and expenses towards the same shall be borne by the AAI.

(v) Till the elections are conducted and results declared in consonance of the National Sports Code and in compliance with the preceding directions, the AAI shall not make any new financial commitments except with the prior approval of the Administrator. Routine expenses of AAI too shall be defrayed, with the due prior approval of the Administrator.

21. The applicant and the AAI shall seek consent of Mr. S.Y. Quraishi, of his acceptance of the aforementioned responsibility.

22. The Court would consider fixing an honorarium for the Administrator's assignment at a later date.

23. The application is disposed off in the above terms.

NAJMI WAZIRI, J.

S. RAVINDRA BHAT

AUGUST 10, 2017/acm