Delhi High Court
Mahipal Singh & Ors vs Union Of India & Ors on 3 August, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 5th July, 2018
Pronounced on: 3rd August, 2018
+ W.P.(C) 4601/2013 & CM No.14524/2017
MAHIPAL SINGH & ORS ..... Petitioners
Through : Mr. B.S. Nagar, Adv. with
Mr.Abhinav Goyal, Ms. Mahamaya
Chatterjee and Ms. Shivani Vij, Advs.
Mr.Gautam Narayan, amicus curiae
versus
UNION OF INDIA & ORS ..... Respondents
Through : Mr. Dev P. Bhardwaj, CGSC for
R-1/UOI with Ms. Anubha Bhardwaj, Adv.
Mr. S.K. Dubey and Mr. Rajmangal Kumar,
Advs. for R-3 to 5
Mr. Ruchir Mishra and Mr. Mukesh Kumar
Tiwari, Advs. for IOA
CORAM:-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR JUSTICE C. HARI SHANKAR
% (JUDGMENT)
C. HARI SHANKAR, J.
1. Embittered at what they perceive to be the hegemonic control
exercised by Respondent No. 4, and his wife Respondent No. 5, over
the Amateur Kabaddi Federation of India (AKFI) and its affairs, the
petitioners, who claim to have earned gold medals for the nation in the
international Kabaddi arena, have invoked the extraordinary
jurisdiction of this court, under Article 226 of the Constitution of
India, by means of the present writ petition, filed in public interest.
The writ petition exhorts this court to (i) quash the amendments
effected, at the instance of Respondent No. 4 in the Memorandum of
Association and Constitution (hereinafter referred to as "MOA") of
the AKFI, whereby Respondent No. 5 has been enabled to the
nominated as the President of the AKFI, (ii) quash the elections, to the
various posts of Office Bearers of the AKFI, held on 19th May, 2013,
(iii) appoint a Returning Officer for conducting fresh elections of the
AKFI, in accordance with the pre-amended MOA, (iv) cancel the
affiliation of the AKFI, as granted by the Ministry of Youth Affairs
and Sports (hereinafter referred to as "the Ministry"), (v) direct
inquiries into the affairs of the AKFI through an independent
investigating agency, as well as conduct an audit into its accounts, and
(vi) appoint an ad hoc committee, comprising of eminent sports
persons, to oversee the day-to-day functioning of the AKFI.
The Facts
2. A brief factual background is necessary.
3. The AKFI was founded in 1973, and was registered, under the
Andhra Pradesh (Telangana Area) Public Societies Registration Act,
1350 Fasli, on 8th September, 1975.
4. The Constitution of the AKFI is contained in its Memorandum
of Association („MOA‟). Clauses 3 and 9 of Chapter II of the MOA
may, in the context of the present controversy, be reproduced as
under:
―3. Membership of the Society:
The membership is open to all State Kabaddi
Associations, having governing bodies for Kabaddi
game, Union Territories in India having specific
governing bodies for the Kabaddi game, All India
Institutions and Vocational Organisation of All
India nature including Indian P&T, Services
Sports Control Board, Indian Railways, Central
Secretariat and such other all India Organisations
that may be affiliated as Members subject to the
Rules and Regulations hereinafter contained on
payment of Annual Membership Fee and other fee
as may be determined by the General Council.‖
―9. General Body:-
General Body shall mean and include the office
bearers and members.
5. Chapter III of the MOA dealt with membership, admission and
registration. Clause 13 in Chapter III was a repetition of Clause 3 in
Chapter II. Clauses 14, 18, 19, 21 and 27, which are of relevance,
read thus:
―14. Authority:-
A Member Organisation shall be represented only
by its President, Secretary or representative(s)
who must be a Member of the Association and his
their letter of authority duly signed by the
Secretary of the Association/Institution they
represent must be submitted to the Honorary
General Secretary prior to the commencement of
the Meet.
18. General Council:-
The General Counsel of the Federation shall
consist of President, Chairman, Honorary General
Secretary, Treasurer, two representatives of each
Member unit. The President need not be a
representative of any Member Organisation. The
other office bearers and Members of Federation
continued to hold the officer and represent the
Member organisation they belong until such time
as the representation is not withdrawn.
19. Office bearers:-
1. The President
2. Vice Presidents (4)
3. Honorary General Secretary
4. Honorary Joint Secretaries (3)
5. Honorary Treasurer.
The office bearers shall be elected for a term of
three years at the Annual General Meeting to be
held at the time of National Championship of the
year following the date of expiry of the term. They
shall continue to hold office until the succeeding
members are elected.
Note:-
i) No person can be an office bearer of the
Federation if he has already served consecutively
two terms provided also that for the 2nd term he
shall have been elected with two thirds majority of
the total members of the General Council.
ii) No person who is already an office bearer of
other National sports Organisation holding office
of either President, Secretary (or corresponding
office), Honorary Treasurer shall be eligible at the
same time to hold any office of either President,
Honorary General Secretary or Treasurer of the
Federation.
21. Executive Committee:-
The Executive Committee of the Federation shall
consist of:
1) The President and other office bearers,
2) One representative from each other Member
unit.
The terms of office of the members of the Executive
Committee shall be co-extensive with the term of
office-bearers and they shall be elected every three
years at the Annual general Meeting of the
General Council held at the time of National
Championship following the date of expiry of the
term.‖
6. In 1984, Respondent No. 4 was elected as President of the
AKFI. Without a single election being held, thereafter, till 2013,
Respondent No. 4 continued, as President of the AKFI, till 19th May,
2013, on which date his Presidency came to an end, only to "devolve",
however, on his wife, Respondent No. 5, who was not only a complete
stranger to all the member Units of the AKFI, but was-and is- a
practising gynaecologist. On the date of pronouncement of this
judgement, Respondent No. 5 has already had two terms as President
of the AKFI; and, the petitioners assure us, she would have several
more, unless we choose to interfere in the matter.
The Ministry‟s Circular dated 20th September, 1975
7. In view of growing criticism, in Parliament, press and
elsewhere of the low standard of organized sports and games, which
adversely impacted the image of the country abroad, in international
meetings and tournaments, and in order to initiate expeditious
necessary remedial action, the matter was considered, by the
Government of India in consultation with the All India Council of
Sports, and certain norms/guidelines were issued, which were
circulated vide Circular dated 20th September, 1975 (hereinafter
referred to as "the 1975 Guidelines"), issued by the Ministry to the
IOA and all National Sports Federations. Paras 3 to 6 of the said
Circular merit reproduction, in extenso, thus:
―3. The Government of India have carefully considered
the matter, in consultation with the All India Council of
Sports and have decided, in the interest of promotion of
sports and games, that Government‟s financial and
other assistance shall be extended only to those national
organizations dealing with sports and games which
fulfill the following conditions:-
(i) An office bearer of a National Federation /
Association may hold office as such for one term
of 4 years, and may be eligible for re-election for
a like term or period.
(ii) No such office bearer shall hold office
consecutively for more than two terms or 8 years:
Provided that in the event of election for the
second term, an office bearer who has completed
one term shall only be deemed to have been elected
if he/she secures a majority of not less than two
third of the members of the national
Federation/Association concerned. In the event of
failure to obtain such majority, the concerned
office bearer shall be deemed to have lost the
election. The office would thereafter be filled by
election under the normal procedure from amongst
candidates other than the office bearer seeking re-
election.
Explanation 1: For the purpose of this clause, the
expression "office bearer" means:--
(a) the President,
(b) the Secretary/Secretary-General, or
any Corresponding office,
(c) the Treasurer.
Provided that the provisions of this clause shall not
apply to the post of Treasurer if, under the
constitution of National Federation/Association,
the Treasurer does not possess the right to vote in
any of its meetings, and his duties and
responsibilities shall be confined only to the
management of the finances of the
Federation/Association; however, he shall not be
eligible to seek election to the office of the
President or Secretary/Secretary-General or Vice
President after having held the office of the
Treasurer consecutively for eight years, till the
expiry of a period of at least four years from the
date on which he last vacated the office of the
Treasurer.
Explanation 2
(i) No person who has already held the office
of the President or Secretary/Secretary General or
both in a National Federation/Association
consecutively for two terms or eight years shall be
eligible to seek re-election to any of the said
offices or Vice President or Treasurer till the
expiry of a period of at least four years from the
date on which he last vacated his office.
(ii) The National Federation/Association may, if
they wish, apply the provisions of clause 1 to the
offices of Vice President, Treasurer (not being an
office bearer) and members of important
Organisations such as their executive committee,
selection committee, etc.
(iii) No office bearer of a National
Federation/Association shall be eligible to be the
office bearer, simultaneously, of any other
National Sports Federation/Association, excepting
the Indian Olympic Association.
(iv) That the annual accounts of the organisation
have been properly maintained and regularly
audited and that the various business meetings as
required under its constitution have been duly held.
(v) That each national Sports
Federation/Association, in its particular field of
specialisation, has been appointing or would
appoint a National Coach who possesses a valid
coaching diploma. Prior approval of the All India
Council of Sports would be necessary if the person
already appointed or proposed to be appointed as
National Coach does not possess requisite
coaching qualifications.
(vi) That the National Sports
Federations/Associations, in their respective fields
of specialisation, have been holding or would hold,
where feasible, not less than two competitions
annually for specified age groups at the Junior and
Sub-junior levels; these competitions should be
organized through Inter-Block and Inter-District
competitions in each State, leading to the
competition at the National level.
(vii) That the membership of the National Sports
Federations/Associations,within their particular
fields of specialisation, is confined to the
corresponding State and other special units
affiliated to the National Sports
Federations/Associations, and that where any of
the National Sports Federations/Associations
grants membership to individual clubs or
individual persons, such membership does not
confer on such members the right to vote in any of
the Federations/Associations meetings.
4. The guidelines, as enumerated above, have been
finalised after careful consideration of the points raised
by the Indian Olympic Association, National Sports
Federations/ Associations, consequent on issue of this
Ministry's earlier letter No. F.11-4/74-YS 1(2) dated 9th
April, 1974, and on the basis of the advice of the All India
Council of Sports. The views expressed by these
organisations have been accommodated to the fullest
extent possible, consistent with the purpose for which the
guidelines are prescribed.
5. However, at the request of the IOA, Government
have agreed, as a special case to give time to the IOA
and the concerned National Sports Federations to change
their respective constitutions, finalise fresh elections
where necessary and take all other consequential action
to fully and finally implement the guidelines before the
dates indicated below:
(i) National Sports Federations/Associations -
1.12.1975
(ii) Indian Olympic Association - 31.1.1976
6. The IOA/National Sports Federations/Associations
are now requested to confirm immediately, but not later
than 15.10.1975, that the guidelines as stipulated in this
letter, are acceptable to them, and that necessary action
to implement the "Guidelines" has been initiated. Details
of the arrangements made with regard to the amendment
of the constitutions and holding of fresh elections may
also please be intimated. ‖
Narinder Batra v. U.O.I.
8. The above Circular dated 20th September, 1975 was revised vide
letter dated 16th July, 1977, and thereafter, further, vide letter dated
14th August, 2001 (hereinafter referred to as "the 2001 Guidelines"),
consequent to suggestions received from IOA and the various NSFs
with the approval of the Department of Expenditure, Ministry of
Finance. However, the prescriptions regarding the post of Office
Bearer in the NSFs, as contained in the aforementioned Circular dated
20th September, 1975, remained unchanged in the 2001 Guidelines.
9. Aggrieved at the non-enforcement of the aforementioned
Circular dated 20th September, 1975, WP(C) 7868/2005 (Narinder
Batra v. U.O.I.) was filed, in this Court, seeking issuance of a
mandamus to ensure compliance therewith. The said writ petition was
decided, on 2nd March, 2009, by one of us (Gita Mittal, J.), sitting
singly, the judgment being reported, subsequently, in ILR (2009) IV
Del 280. The sustainability, and enforceability, in law, of guidelines,
issued by the Central Government, to regulate the functioning of
National Sports Federations (of which the AKFI is one) was examined
in the said decision. The writ petition, in fact, sought enforcement of
the said guidelines, which already stood issued, and mandated
adherence, therewith, in order for the NSFs to be entitled to
recognition by the Central Government as well as to dispensation of
financial assistance from it. Mr. K.P.S. Gill, Respondent No. 3 in the
said writ petition, had been elected President of the Indian Hockey
Federation in 1994, and had continued to hold the said post in all
elections ever since, so that, by the time of pronouncement of
judgement by this Court, he had already held the post for more than 11
years. Mr. K. Jothikumaran, Respondent No. 4 in the said writ
petition, similarly, had been holding the post of Hony. Secretary
General for three consecutive terms, since his election thereto in 1994.
This, the petitioner in the said case had asserted, violated Clause 3.5 of
the 1975 Guidelines (supra).
10. Noticing the fact that the Indian Hockey Federation regulated
the sport of hockey for the entire country, this court, in paras 215 to
219 of the judgment, held thus:
―215. The guidelines framed by the Government enable
the National Sports Federations recognised thereunder
to derive substantial financial assistance and other
facilities from the Government. Apart from purchase of
valuable equipment, this assistance includes
training/coaching camps; assistance for organisation
and participation in national and international
competitions and training abroad; appointment,
availability and expenditure on foreign coaches for
training of sports person, assistance of the Sports
Authority of India as well as facilities at the state owned
sports set ups. To enable meaningful utilisation of its
assistance, the Government has framed guidelines for
recognition of national sports federations.
216. As part of its initiative, the Ministry of Youth
Affairs and Sports operates a number of independent
schemes alongwith the Sports Authority of India which
are apart from the financial grants to the national
federations. These schemes have a direct bearing on the
promotion and development of sports in the country and
include (i) Exchange of Physical Education Teachers
etc(CEPs); (ii) Rural Sports programme, (iii) National
Championships for Women, (iv) Grants for Creation of
Sports infrastructure, (v) Grants to Universities and
Colleges, (vi) Assistance for synthetic surfaces and (vii)
Scholarships for training abroad. The Government has
recognised that the National Sports Federations are
primarily responsible for judicious selection of sports
persons for participation in major international events
based on merit and with the objective of enhancing
national prestige and bringing glory to the world. Such
federation is also required to be concerned with the
development and encouragement of the sport in the
country.
217. The Apex Court has not prohibited the High Court
in exercise of its jurisdiction under Article 226 from
issuing a mandamus requiring the Government from
ensuring compliance with the guidelines or conditions
which it has fixed for grant of recognition and affiliation.
The absolute prohibition urged by the respondents
to the maintainability of the writ petition seeking
directions on a complaint of breach of statutory
guidelines certainly is not legally tenable is hereby
rejected.
218. The Government of India is dispensing not only
financial assistance but also providing other facilities in
terms of the guidelines; has recognised national level
federations; framed priorities in sports and has effected
dispensation of state largesse based thereon.
219. In view of the principles laid down by the Apex
Court in the aforenoted judicial pronouncements, there
can be no dispute that the Government is entitled to
frame the guidelines for dispensation of its largesse
which will take the nature of financial assistance;
assistance in the nature of expert coaches, national
level facilities etc. Certainly, the Government is entitled
to notify and evolve a procedure for dispensation of the
financing assistance which runs into crores of rupees
as well as guidelines for recognition of the national
sports federation and cannot permit the same to be
disbursed arbitrarily without any clear directives in this
behalf. The guidelines issued by the Government and
modified from time to time have been therefore validly
issued and are binding for the purpose for which they
have been issued."
(Emphasis supplied)
Circulars dated 15th May, 2010 and 17th May, 2010
11. Consequent upon the above judgement of this court in Narinder
Batra (supra), the Ministry proceeded to issue, in quick succession,
two circulars, circulated to the Indian Olympic Association and all
recognised NSFs (which would include the AKFI), the first dated 1st
May, 2010 and the second dated 17th May, 2010. In view of the
clarification, contained in the judgement of this Court in Narinder
Batra (supra), the Circular dated 1st May, 2010 postulated, in paras 9
to 11, as under:
―9. Accordingly, after taking into account the entire
facts and circumstances of the case, and the views
expressed by the Hon'ble Courts and Parliament, and the
prevailing public opinion on the matter, and with a view
to encouraging professional management, good
governance, transparency, accountability, democratic
elections, etc. in NSFs, including IOA, the competent
authority after satisfying himself has set aside the orders
keeping the tenure clause in abeyance with immediate
effect subject to the following modifications in the
existing tenure limit provisions referred to in letter dated
20th September, 1975 mentioned in Para 1 above:
i The President of any recognized National
Sports Federation, including the Indian Olympic
Association can hold the officer for a maximum
period of twelve years with or without break.
ii The Secretary (or by whatever other
designation such as Secretary General or General
Secretary by which he is referred to) and the
Treasure of any recognized National Sports
Federation, including the Indian Olympic
Association, may serve a maximum of two successive
terms of four years each after which a minimum
cooling off period of four years will apply to seek
fresh election to either post.
iii The President, the Secretary and the
Treasurer of any recognized National Sports
Federation, including the Indian Olympic
Association, shall cease to hold that post on
attaining the age of 70 years.
iv The other provisions in respect of the
tenure limit as contained in the letter of 1975
mentioned above shall remain as it is.
v The above dispensation will come into
operation with immediate effect.
vi The conditions (i) to (v) above will be
subject to the proviso that it shall not disturb the
current tenure of any member, provided, he/she
has been properly elected to the post. In other
words, the tenure condition will become operative
for all future elections as they may be conducted in
future in their normal course.
10. Compliance to the abovementioned directions
shall be mandatory to receive government recognition
and thereby to become eligible to receive financial as
well as other forms of assistance from Government of
India such as railway concession, income tax exemption,
custom duty exemption, etc. land to derive the authority
to perform the public functions of selecting and deputing
the national teams for participation in recognized
continental and world level international sports
competitions which involve representation of member
countries, and to represent the country in international
associations, events, meets, conferences, etc.
11. This letter shall now form an integral part of the
guidelines/regulations applicable to NSFs, including
IOA.‖
(Emphasis supplied)
12. The subsequent Circular, dated 17th May, 2010, relied on the
recommendations made at the Seminar of the International Olympics
Committee (IOC), held in February 2008, on „Basic Universal
Principles of Good Governance of the Olympics and Sport
Movement‟, which were further endorsed at the XIII Olympic
Congress, held in October, 2009. It was noticed that the consensus,
that emerged at both fora, was that good governance was essential, if
the sports movement in the country desired to justify, and claim,
autonomy. At the Congress, it was resolved that all members of the
Olympic Movement should adopt, as their minimum standards, the
„Basic Universal Principles of Good Governance of the Olympic and
Sports Movement‟, as proposed by the IOC. Para 5 of the letter noted
that the following were among the main principles, enunciated in the
said Movement:
―
Elections to sports bodies should be governed by
clear, transparent, and fair rules (which in our view,
should include, a clean electoral roll, known to the
public in advance; and independent returning officer;
and secret ballot)
Adequate procedural regulations must exist to
ensure that there is no conflict of interests
The terms of office, should be of limited duration,
in order to allow, renewal of office bearers on a regular
basis; and give access to new candidates
Cooperation, coordination and consultation with
government to preserve autonomy‖
(Emphasis supplied)
The Circular went on to note that the 1975 Guidelines, as modified on
1st May, 2010, were fully in accordance with the recommendations of
the IOC and the Olympic Congress, and that the maximum tenure limit
for President had been liberalised from 8 years to 12 years, to bring
the guidelines in alignment with the norms adopted by the IOC in
1999, which represented the best international practices.
13. Paras 8 and 9 of the Circular dated 17th May, 2010, read thus:
―It is noted that a large number of NOCs, IFs, and their
associated bodies have already adopted all or many of
the good governance principles stated above. It is,
therefore, the earnest expectation of the Government of
India, that the IOA and the NSFs, will follow the
recommendations of the IOC and the Olympic Congress
on good governance, and will comply with the guidelines
prescribed by the Government of India, which are in
alignment with the principles endorsed by the IOC and
the Olympic Congress.
9. The Government hopes, that the IOA and their
associates, will not disappoint the country, by falling
short of what is rightfully expected of them. They should
keep in mind, the observations made by the Hon'ble
Delhi High Court in CWP 7868 of 2005, that the
Government guidelines to national sporting bodies are
legal, valid and enforceable; and not in violation of the
Olympic Charter. They should also take note of the
sentiments expressed by Members of Parliament, from all
Parties, in the Rajya Sabha debate on 22.04.2010,
supporting the age and tenure limits. Above all, they
should take note, of the aspirations and expectations of
the people of India, who want their national sports
bodies to be at the forefront of good governance in the
Olympic and Sports Movement, in the 21st century.‖
The National Sports Development Code and the "Model Election
Guidelines"
14. On 31st January, 2011, the Ministry notified the National Sports
Development Code of India, 2011 (hereinafter referred to as "the
NSCI"). The preamble, to the NSCI, read thus:
―The adoption of good governance practices by
National Sports Federations (NSFs), including the
Indian Olympic Association (IOA), is essential for
healthy sports development of the country. Toward this
end, the Government had issued comprehensive
guidelines in 1975, 1988, 1997 and 2001. Post 2001 also
several major initiatives were taken by the Government
such as declaration of NSFs failing of government grant
as public authorities under the Right to Information Act,
2005, introduction of annual recognition for National
Sports Federations, implementation of age and tenure
limits in respect of office bearers of National Sports
Federations, notification of NADA Anti-Doping Rules,
introduction of guidelines for prevention of AIDS fraud
in sports, prevention of the sexual harassment in sports,
and the holding of fair and transparent elections in
National Sports Federations. With a view to bringing
together all orders/notifications/instructions/circulars
issued post 2001 guidelines and the 2001 guidelines,
these are now amalgamated with necessary
modifications, into one comprehensive Code entitled
―National Sports Development Code of India (NSCI),
2011‖, which is hereby notified in supersession of all
earlier instructions on the subject matter. The NSCI
2011 shall come into force with immediate effect.‖
(Emphasis supplied)
15. Para 1 of the NSCI set out its "Statement of Purpose", and sub-
paras 1.5 and 1.6, thereunder, may be reproduced thus:
―1.5 Accordingly, after the notification of the 2001
National Sports Policy the Government notified revised
Guidelines for Assistance to National Sports
Federations (NSFs) in August 2001 and issued
subsequent guidelines from time to time, which are
legally binding on the National Olympic Committee
(NOC), i.e., the Indian Olympic Association (IOA), and
the National Sports Federations (NSFs) if they are
desirous of regulating and controlling sports in India,
all using the name of India representing India within or
outside India, or availing themselves of various benefits
and concessions, including financial benefits such as
customs duty exemption or income tax exemption that
are available to NSFs, including the NOC. Although
these bodies may be registered in different states under
the Societies Registration Act or the Companies Act,
their authority to function as the NOC or NSF will be
dependent on compliance with the government
guidelines.
1.6 In the recent past Government has taken various
steps to further improve the management of NSFs and
sports in the country such as notification of the Anti-
Doping Code; introduction of annual recognition of
NSFs to ensure transparency and accountability of NSFs;
enforcement of age and tenure limit in respect of office
bearers of NSFs, including the Indian Olympic
Association; bringing NSFs under the purview of Right to
Information Act; measures to ensure free, fair and
transparent elections by the NSFs; and measures to
combat age fraud in sports; and guidelines for the
prevention of sexual harassment of women in sports.‖
(Emphasis supplied)
16. Para 3.5 of the NSCI set out the "gist of new initiatives taken
by Government in the recent past", of which the very first was
"restoring the limits on duration of tenure of office bearers of Indian
Olympic Association and all recognised National Sports
Federations". Reference was made, in this regard, to "Annexure
XIII" to the NSCI which, we may note, was the Circular dated 1 st
May, 2010, issued by the Ministry, to which reference has already
been made hereinbefore. Para 3.6 of the NSCI went on to enumerate
the sanctions that would visit any NSF which failed to comply with
the Guidelines issued by the Government from time to time (which,
needless to say, stood encapsulated in the NSCI). It read as under:
―3.6 The National Sports Federations who have the
recognition including the annual recognition of
Government of India in the Ministry of Youth Affairs and
Sports, enjoy various facilities/concessions provided by
the Government of India. However, failure to comply
with the Government Guidelines issued from time to
time could result in one or more of the following
consequences for the NSF concerned:-
1) Shall not be able to select the national
teams and represent India in any international
event or international forum. (Reference: entry 10
and 13 of Union List in the 7th Schedule of the
Constitution of India and observation of Hon'ble
High Court in the case referred to above)
2) Shall not be allowed to use the word
"India" in its name since inclusion of the word
"India" suggests the patronage of Government of
India. (Reference: The Emblems and Names
(Prevention of Improper Use) Act, 1950 which
prohibits the use of India in the name of any entity
without prior approval of the Government, as it
may suggest or be construed to suggest the
patronage of the Government)
3) Shall lose its all India character and may
not be able to regulate and control the concerned
sports discipline in the country. (Reference: Most
of the NSFs are registered under the Societies
Registration Act, 1860 or under the State Societies
Registration Act which are operated in a
particular State and as such without the
recognition of Central Government, the NSF
cannot operate beyond the boundaries of the State
concerned where it is registered).
4) Shall not be able to avail itself of Customs
Duty Exemption for import of sports goods, sports
equipment, sports requisites as an NSF/Apex Body.
(Reference: Department of Revenue's notification
No/2010-Customs dated 19.10.2010 read with
Notification No 146/94-Customs dated 13.07.1994
allows the custom duty exemption to NSF under a
certificate issued by SAI; further Notification No
21/2002-Customs provides custom duty exemption
for import of Requisites for games and sports for
Apex body in relation to the concerned game or
sport).
5) Shall not be able to avail itself of Income
Tax exemptions under relevant provisions of the
Act (e.g. as per the Section 80 (G) (2)(viii) (c) any
sum paid by the assessees, being a company, in the
previous year as donations to the Indian Olympic
Association or to any other association of
institutions established in India, as the Central
Government may, having regard to the prescribed
guidelines, by notification in the official Gazette
specifying the speed of 4 (i) the development of
infrastructure for sports and games; (ii) the
sponsorship of sports and games; is exempted from
tax).
6) Shall not be able to avail itself of the special
dispensation available to NSFs to remit funds
towards sponsorship, prize money for activities
abroad (Reference: FEMA (Current Transaction)
Rules 2000- Schedule II section 9)
7) Participation in national and international
events organised by NSFs that are not recognised
by Government of India in the Ministry of Youth
Affairs and Sports shall not be considered for
appointment to government jobs under sports
quota. (Ref: DOPT's orders)
8) The sports persons of the unrecognised
NSFs may not be able to get admissions under
sports quota in schools and colleges.
9) The sports persons participating in national
championships organised by NSFs not recognised
by Government of India in the Ministry of Youth
Affairs and Sports shall not be entitled for railway
concession or other concessions granted for this
purpose.‖
17. Clause (b) of para 6.1 of the NSCI delineates the duties and
responsibilities of NSFs, in these words:
―NSFs are fully responsible and accountable for the
overall management, direction, control, regulation,
promotion, development and sponsorship of the
discipline for which there recognised by the concerned
International Federation. They are expected to
discharge these responsibilities in consonance with the
principles laid down in the Olympic charter or in the
charter of the Indian Olympic Association or the relevant
International Federation, as the case may be while being
compliant with Government guidelines applicable to
NSFs.‖
(Emphasis supplied)
18. Para 8 of the NSCI dealt with recognition of NSFs, and set out
the purpose, thereof, in sub-para 8.1, as "to ensure that NSFs
maintain‖ certain basic standards, norms and procedures with regard
to their internal functioning, which conform to the high principles and
objectives laid down by the concerned International Federation, and
which are also in complete consonance with the principles laid down
in the Olympic Charter or in the Constitution of the Indian Olympic
Association while being compliant with Government guidelines
applicable to NSFs." Sub- para 8.2 noted that, from December, 2009,
a new system of annual recognition was notified for NSFs.
19. NSFs seeking recognition were required, by para 8.3, to apply
"as per Guidelines given in Annexure-II". These Guidelines, titled
"Guidelines For Recognition of National Sports Federations"
(hereinafter referred to as "the 2011 Guidelines") clearly stated, in
Clause 1.6, that they were being issued, "with a view to codify the
requirements for granting recognition at the discretion of the
Government to National level Federations". "Recognition" was
defined, in Clause 2.2 of the said Guidelines, as meaning "recognition
of the leadership of the Federation in the development of a particular
sport in the country". Clause 3.5 stipulated that the tenure of office-
bearers ―shall be in accordance with the Government Orders issued
under letter No 11-4/74-SP.I dated 20th September, 1975 read with
Annexure-XIII‖.
20. Para 8.3 of the NSCI went on to clarify that, while considering
the proposals for recognition, the Ministry would be guided by certain
specified criteria, of which criteria (ix) and (x) were "fair, transparent
and democratic elections" and "compliance with age and tenure limit
guidelines".
21. Para 9 of the NSCI dealt with the "conditions of eligibility", for
NSFs to be eligible for financial assistance and sponsorship, as well as
recognition by the Government, and sub- para 9.3, there under,
mandatorily required national sporting organisations to meet 13
specified criteria/provisions, "to be eligible for assistance and
continuing the recognition of Government". Criteria i to iv, and xiii,
which are relevant for the purposes of the present adjudication, read
thus:
―i. Follow proper, democratic and healthy
management practices which provide for greater
accountability and transparency at all levels.
ii. Maintain the recognition of the International
Federation, Asian Federation and IOA wherever
applicable.
iii. Adhere to Limits on duration of tenure of office
bearers of Indian Olympic Association and all
recognised National Sports Federations as notified vide
letter No F.8-17/2009-SP-III dated 01.05.2010.
(Annexure-XIII)
iv. Follow Guidelines on Good governance in the
context of „Basic Universal Principle of Good
Governance of Olympic and Sports Movement‟ as
issued vide Letter No 8-17/2009-SP-III dated
17.05.2010. (Annexure-XIV)
xiii. Hold the elections as per Model election
guidelines. (Annexure-XXXVII)
(Emphasis supplied)
22. We may now note certain salient features of the "Model
Election Guidelines", which, by virtue of their having been
incorporated, by reference, therein, are also part of the NSCI,
constituting Annexure-XXXVII thereto. Interestingly, Clause 1(1) of
the said Guidelines also accords, to them, the moniker „Election Bye-
laws‟. These Guidelines, we may note, are in the form of "model
Guidelines", to be adopted by each concerned NSF; for this purpose,
the name of the NSFs, at all places in the said Guidelines, is left
blank. As our discussion hereinafter would reveal, the AKFI, too,
adopted these Guidelines, but with certain significant alterations, the
effect of which we would examine later in this judgement. The
following clauses of the "model Guidelines" are significant:
(i) Clause 2 stipulates that the Managing Committee of the
NSF would consist of the following seven Office Bearers, in
addition to five executive members:
(a) President - 1
(b) Vice-Residence - 2
(c) General Secretary - 1
(d) Treasurer - 1 and
(e) Joint Secretaries - 2.
(ii) Clause 3 (2) requires elections, to the Managing
Committee of the NSF to be held at the Annual General
Council Meeting (AGM), ―in accordance with the procedure
prescribed hereinafter, from amongst the representatives of
the Permanent Member States/Union Territories/Boards/
Institutions."
(iii) The Nomination Paper for election to the various posts of
Office Bearer, as contained in Form 2 annexed to the Model
Election Guidelines, is in the following format:
―NOMINATION PAPER FOR
ELECTION
AS_______________________________(NAME OF
THE POST)
To
(Name and address of returning officer)
The Returning Officer for above Election
_________________________________
_________________________________
We nominate
Shri/Smt./Ms.___________________________________
______________________________________________
____________________________________ (name &
address), whose name is entered at Sl. No. ______ in the
Electoral College list for the above mentioned post.
2. Our particulars are given below:-
Name of Name of Sl. No. In Signature
Candidate Member the
State/Union electoral
Territory/ College list
Board/Insti-
tute
Proposer
Seconder
I, the candidate above named, do hereby give my assent to
my nomination for the above post.
Name of the Candidate________________________
Name of Member State/Union Territory/ Board/
Institution_________________
Sl. No. In the electoral College list_____________________
Signature____________________
Place:
Date:‖
It is apparent, from the above model Nomination Paper,
that the candidates for the posts of Office Bearers are required
to be from one or the other Member State, Union Territory,
Board or Institution, figuring in the Electoral College list.
(iv) This is also apparent from Form 3 to the Model Election
Guidelines, which is a tabular list of nominated candidates,
which, too, requires the Serial Number of the candidate, in the
Electoral College list, to be entered.
(v) Form 4, which is the tabulated list of validly nominated
candidates, consists of four columns, of which Columns 3 and 4
are headed "Name of Member States/Union
Territory/Board/Institution‖ and ―Sl. No. in Electoral College
list". The same details are contained in Form 6, which is the
"List of Contesting Candidates".
It is clear, from a conjoint reading of the "Model Election
Guidelines", read with the Annexures/Appendices thereto, that the
Model Election Guidelines do not contemplate a person, who is not a
member of any of the State Federations, Union Territories, Boards or
Institutions and is not, therefore, in the Electoral College list, as being
eligible to contest elections, for any of the posts of Office Bearers in
an NSF.
Amendment of AKFI‟s MOA
23. On 29th December, 2011, notice was sent, by the General
Secretary of the AKFI to all its affiliated units, to the effect that a
Special General Body Meeting of the AKFI would be held on 7 th
January, 2012, to amend the constitution (i.e. the MOA) of the AKFI
as unanimously approved in the General Council Meeting of the 29 th
December, 2011. The proposed amended MOA, was attached to the
said notice.
24. In the Special General Body Meeting held on 7 th January, 2012
and chaired by Respondent No. 4, the revised MOA was approved and
adopted. Clause 7 of the amended MOA set out the names, offices and
occupations of the Members, constituting the Governing Body of the
MOA, which consisted of Respondent No. 4 as President, one
Chairman, five Vice Presidents, one General Secretary, one Treasurer
and five Joint Secretaries. While, for the purposes of the present
controversy, other clauses of the amended MOA were substantially
similar to those of the pre-amended MOA, the following four
significant changes were effected therein:
(i) Clause 8.9 of the amended MOA defined „Office Bearer‟
in the following terms:
― „Office Bearer‟ will mean and include the
following:
General Secretary 1
Joint Secretaries 5
Assistant Secretary 1‖
(ii) Clause 15.2 which, though titled "Tenure", also
prescribed the eligibility, of any person, to seek election to the
post of President/Secretary, stipulated thus:
―Tenure - For the post of President/Secretary any
person of the Assembly or any outsider is eligible
to seek election subject to getting his nomination
papers duly proposed and seconded by any of the
federations affiliated units.‖
(Emphasis supplied)
(iii) Clause 15.8 went on to stipulate, as under, with respect to
"Life Presidents":
"Life Presidents - At the General Assembly of the
AKFI, the House may nominate one person who
has rendered unique and distinguished services for
the cause of Kabaddi in the country as Life
President. Life President will hold the office
during the lifetime. The life President will be
invited to the General Assembly meeting of the
AKFI. The Life Presidents will, have no right to
cast his vote at the Annual General or Special
General Meetings of the AKFI but will have the
right to represent AKFI at all or any
International Forum like AKF, IKF, IOA, OCA,
IOC etc. Life President once nominated cannot
and will not be removed by any means except his
own resignation from the post.‖
(Emphasis supplied)
(iv) The role, and function, of the "Life President", in the
AKFI, was described, in Clause 17.2 of the amended MOA, in
the following words:
―Life President(s) - Will be the friend,
Philosopher and guide to the Federation. The Life
Residents will have no right to cast his vote at the
Annual General or Special General Meetings of
the AKFI but will have the right to represent
AKFI at all any International Forum like AKF,
IKF, IOA, OCA, IOC etc., subject to approval of
General Assembly.‖
(Emphasis supplied)
25. A conspicuous change, in the matter of eligibility of persons to
seek election as President/Secretary of AKFI, was, therefore, effected,
by adding the words "or any outsider". The petitioners would contend
that these words were added only so as to enable the election of
Respondent No. 5 as President of the AKFI as, owing to his having
crossed the age of 70 and having remained President of the AKFI for
more than three terms, things had got hot under the collar for
Respondent No. 4. Even so, according to the petitioners, Respondent
No. 4, while handing over the reins of the AKFI to his wife, ensured
that his pre-eminence remained undisturbed, by creating, for himself, a
post of "Life President", having himself appointed thereto, and
permitting himself, as Life President, to represent the AKFI at all
international sports fora.
ELECTIONS OF 2013
26. On 26th April, 2013, the General Secretary, AKFI, issued a
notice to the Office Bearers and affiliated units of the AKFI, to the
effect that the General Body Meeting of the AKFI would be held on
19th May, 2013. The said notice intimated, inter alia, as under:
"As per the provisions of Sports Code Electoral
College will be prepared before the elections hence each
member unit is requested to send the names of their
authorized representatives who will attend the meeting on
behalf of their unit. The authorization letter should jointly
be signed by President and Secretary of the unit. The
names should reach on or before 04.05.2013.
East State is entitled to nominate 2 persons, each
U.T is entitled to nominate one person and each board or
institution is also entitled to nominated one person.‖
(Emphasis supplied)
The notice, therefore, clearly stated that the elections would take
place in accordance with the NSCI and that the Electoral College
would be prepared as stipulated therein. Each member unit, i.e. each
State Federation, Union Territory, Board or Institution, was required
to send the names of its authorized representatives who would attend
the meeting. Each State was entitled to nominate two persons, each
Union Territory to nominate one person and each Board or Institution
to nominate one person.
27. On 28th April, 2013, the Returning Officer, appointed for
conducting the elections, issued the "Notification Of Elections", fixing
the schedule for the elections of Office Bearers of the AKFI, in a
tabular form. Note 2, below the said table, read thus:
―By way of clarifications the following important
provisions of Sports Code are reproduced:-a) The
nomination of a candidate for election as Officer Bearers
shall be made as per enclosed format. [Form-2]‖
It is essential, at this point, to reproduce Forms 2, 3, and 4,
appended to the aforementioned Notification of Elections dated 20th
April, 2013, thus:
[Form-2]
Nomination Paper for Election as ------------------------
---------
(Name of the post)
To: Justice K.S. Rathore
Returning Officer,
Amateur Kabaddi Federation of India,
338-339 Chandan Vill, Nemi Sagar Colony,
Queen's Road Vaishali Nagar,
Jaipur - 302 021
We nominate Mr. / Ms.----------------------------------
----------------------------------(name & Address)-------------
---------------------------------------------------------------------
---------------------------------------------------------------------
-------------------
Whose name is entered at S. No.---------------------.
(Mandatory for all posts except for President and
Secretary) in the Electoral College list for the above
mentioned post.
Our Particulars are given below:
Name Name of the Member S. No. In Singnature
State/U.T/Board of the
Institution electoral
College list
Proposer
Seconder
I, the candidate above named, do hereby give my
assent to my nomination for the above post.
Name of the Candidate:-------------------------------------
Name of the Member State/U.T/Board or Institution:------
(Mandatory for all posts except for President and
Secretary)
Signature -------------------------------------
Place:
Date:
Form-3
List of Nominated Candidates
Name of Name, Sl No. In Name, Sl. No. In Name, Sl, No. In
the post Electoral College list electoral College List Electoral College List
and address of of Proposer of Seconder
Candidate
President Dr. Mridul Mr. K. E. Prabhakar Mr. K. Jagadishwar
Bhadauria, (NA), 2, (01) yadav (20)
Aakansha Ajmer
Road, Jaipur, 302 021
Chairman Mr. K.E. Prabhakar, Mr. Jagadishwar Mr. Janardan Singh
(01), 43/118, N.R. yadav (20) Gehlot (41)
Peta, Kurnool-518004,
A.P.
Vice Mr. Bhubeneshwer Mr. M. Sudhir Kumar Mr. Gnaneshwar
President Kalita, (03), House (27) Mudiraj Kasani (19)
No.1 No.20 Mahatma
Gandhi Path Christian
Basti, Guwahati 781
Vice Mr. M. Hanumanthe Mr. Ram Bisal Sahoo Mr. Kuldeep Singh
President Gowda, (25), #140 (07) Dalal (16)
No.2 Nagashetty Halli main
Raod Bovi Colony
Anjaheya Temple
Banglore-94
Vice Mr. J. P. Agarwal, Mr. Niranjan Singh Mr. A. Saffiulla (44)
President (47), F-823 (10)
No.3 Rajajipuram Lucknow
- 226017
Vice Mr. Vijay Prakash. Mr. Ramesh Mr. Mohammad
President (15), H. No.2126 Diwadekar (32) Yousuf (48)
No.4 Sector13, Bhiwani,
Hariyana
Vice Mr. Kishor Patil, (31), Mr. Dinesh Patel (13) Mr. Solai M Raja (43)
President 8 Maya Nagar, N2
No.5 CIDCO Aurangabad,
Maharashtra
General Mr. Dinesh Patel, (13), Mr. S. S. Lakkad (30) Mr. Kumar Vijay (05)
Secretary Sai Sadan Near
Celfore Tower, Anand
Vatika, AT & PO
Kharel, NH-8, Taluka
Gandevi, District
Navsari-396430,
Gujarat
Treasurer Mr Gnaneshwar Mr. Niranjan Singh Mr. Vijay Kumar (28)
Mudiraj kasani, (19), (10)
7-1-414/17/B,
Shrinivasa Colony
East, Ameerpet,
Hyderabad - 500 038
Joint Mr. Niranjan Singh, Mr. Solai M Raja (43) Mr. J. P. Agarwal
Secretary (10), 22/1, Shanti (47)
No.1 Bhawan, Sarita Vihar,
Madanpur Mod, Delhi-
110076
Joint Mr. Kuldeep Guupta, Mr. Janardan Singh Mr. Govind Narayan
Secretary (22), 101 Mohalla Gehlot (41) Sharma (42)
No.2 Pratapgarh, Near City
Chowk, Jammu Tawi-
180001
Joint Mr. Kumar Vijay, (05), Mr. K. Vijay Kumar Mr. Niranjan Singh
Secretary Kasimpura House (28) (10)
No.3 Vivek Vihar, Hanuman
Nagar, Kankar Bagh
Patna 800 020
Joint Mr. S. S. Lakkad, (30), Mr. K. Jagadishwar Mr. K. E. Prabhakar
Secretary Q. No. E-17 Abhinav yadav (20) (01)
No.4 Bye Pass Road,
Bhopal-462 021
Joint Mr. A. Saffiulla, (44), Mr. J. P. Agarwal Mr. Niranjan Singh
Secretary 1-1257, Mummoorrhy (47) (10)
No.5 Nagar, K. City
Palayam, Tripur-
641608, Tamilnadu
Date: 09.05.2013
Place: Jaipur
Signature of Returning Officer
(Justice K. S. Rathore)
Form-4
List of Validly Nominated Candidates
Name of the Name of Candidate Name of Member Sl. No. In
post State/U.T./Board or Institution Electoral
College
list
President Dr. Mridul NA NA
Bhadauria
Chairman Mr. K.E. Prabhakar Andhra kabaddi Association 1
Vice President Mr. Bhubeneshwer All Assam Kabaddi Association 3
No.1 Kalita
Vice President Mr. M. Hanumanthe Karnataka Rajya Kabaddi 25
No.2 Gowda Association
Vice President Mr. J. P. Agarwal U.P. State Kabaddi Association 47
No.3
Vice President Mr. Vijay Prakash Haryana State Kabaddi 15
No.4 Association
Vice President Mr. Kishor Patil Maharashtra State kabaddi 31
No.5 Association
General Mr. Dinesh Patel Gujarat kabaddi Association 13
Secretary
Mudiraj kasani Association
Joint Secretary Mr. Niranjan Singh Delhi State Kabaddi 10
No.1 Association
Joint Secretary Mr. Kuldeep Guupta J&K Amateur kabaddi 22
No.2 Association
Joint Secretary Mr. Kumar Vijay Bihar State kabaddi 5
No.3 Association
Joint Secretary Mr. S. S. Lakkad M. P. Amateur kabaddi 30
No.4 Association
Joint Secretary Mr. A. Saffiulla Tamilnadu Amateur Kabaddi 44
No.5 Association
Date: 10.05.2013
Place: Jaipur
Signature of Returning Officer
(Justice K. S. Rathore)‖
28. It is startlingly apparent, from a comparison of Forms 2, 3 and
4, as notified for the elections to the posts of Office Bearers of the
AKFI in 2013, with the Forms appended to the Model Election
Guidelines forming part of the NSCI (supra) that the entries, as
contained in the forms appended to the Model Election Guidelines,
have been tweaked by Respondent Nos. 4 and 5. Though the heading
of the second column in Form 3 continues to remain "Name, Serial
Number in Electoral College List and Address of Candidate", against
the post of President, the letters "NA" (meaning „Not Applicable")
have been entered against the "Sl. No. in the Electoral College List",
obviously because Respondent No. 5 was not a Member of any
electoral college. Similarly, in Form 4, too, against the post of
President, the name of Respondent No. 5, Dr. Mridula Bhadauria has
been entered, and, below the heads, "Name of Member States /Union
Territory/ Board/ Institution" and "Sl. No. in Electoral College List"
the acronym "NA" has been entered.
29. The most conspicuous alteration in the Forms as issued for the
2013 Elections, as compared to the Forms appended to the Model
Election Guidelines is to be found in Form 2, which is the nomination
paper, nominating the candidate concerned. Though Form 2, as
appended to the Model Election Guidelines, requires the "name of the
member states/ Union Territories/ Boards or Institutions" to which the
candidate seeking nomination to be entered, Form 2, as notified in the
2013 Election for Office Bearers of the AKFI, contained a
parenthesized caveat, below the said entry, reading, "mandatory for all
posts except for President and Secretary."
30. The petitioners would contend that the Forms used in the
elections for the posts of Office Bearers in the AKFI in 2013 had
deliberately been tweaked so as to accommodate Respondent No. 5, as
she was not a member of any State Federation, Union territory, Board
or Institution and was, therefore, a rank outsider, who, in fact, has
nothing to do with the sport of Kabaddi, being a practicing
obstetrician /gynecologist. According to the petitioners, in order to
continue his dynastic rule, as it were, Respondent No. 4, when he
found it impossible to continue as President of the AKFI (having
crossed the age of 70 and having remained President for over 12 years
at a stretch), altered the MOA and manipulated the Forms appended to
the Model Election Guidelines, so that his wife, i.e. Respondent No. 5,
who was a total stranger to the sport of Kabaddi, became eligible to be
elected as President of the AKFI, thereby enabling him to continue to
exercise de facto control over the AKFI.
31. The elections for the post of Office Bearers in the AKFI, were,
as notified vide the Notification dated 20th April, 2013 supra,
conducted, and the results thereof declared on 19th May, 2013. The
said Declaration of Results read as under:
Name of the Post Name(s) of Elected
Candidate(s)
President Dr. Mridula Bhadauria
Chairman Mr. K.E. Prabhakar
Vice President Mr. Bhubeneshwer
No.1 Kalita
Vice President Mr. M. Hanumanthe
No.2 Gowda
Vice President Mr. J. P. Agarwal
No.3
Vice President Mr. Vijay Prakash
No.4
Vice President Mr. Kishor Patil
No.5
General Mr. Dinesh Patel
Secretary
Treasurer Mr Gnaneshwar
Mudiraj kasani
Joint Secretary Mr. Niranjan Singh
No.1
Joint Secretary Mr. Kuldeepm Guupta
No.2
Joint Secretary Mr. Kumar Vijay
No.3
Joint Secretary Mr. S. S. Lakkad
No.4
Joint Secretary Mr. A. Saffiulla
No.5
32. With the declaration of the above mentioned results, the tenure
of Respondent No. 4 as President of the AKFI, which had commenced
in 1984, came, at long, lingering last, to an end, and his wife,
Respondent No. 5, took over as the President of AKFI.
The Challenge
33. Incensed by the above developments, the petitioners, who claim
to be Kabaddi players of international renown, have, as also already
noted hereinabove, have moved this court by means of the present writ
petition, urging the prayers already set out in para 1 (supra). We may
note that, after filing of counter affidavit, in the present case, by Union
of India, the Ministry, on 4th February, 2015, wrote to the Sports
Authority of India (SAI), intimating that the recognition granted to the
AKFI stood renewed. On 1st April, 2014, notice was again issued, by
the General Secretary of the AKFI, to all member units, intimating
that the Annual General Body Meeting, for holding of elections to the
posts of Office Bearers in the AKFI, would be held on 23rd April,
2017. Prior thereto, on 14th April, 2017, the list of nominated
candidates was circulated, indicating only one candidate nominated
for each post of office bearer. This was followed by notice dated 23 rd
April, 2017, in which each of the said candidates was declared elected.
Respondent No. 5 Dr. Mridula Bhadauria was again elected as the
President of the AKFI, and, on comparison of the list of elected
candidates to the various posts of Office Bearers with the list of
elected candidates consequent to the earlier election of 2013, it would
be seen that all the candidates, except Mr. J.P. Agarwal, were elected
once again.
34. In view of the serious nature of the allegations involved in the
case, and their all-India ramifications, we thought it appropriate to
request Mr. Gautam Narayan, Additional Central Government
Standing Counsel of Govt. of NCT of Delhi, to assist us as amicus
curiae.
35. Apart from the submissions of Mr. Gautam Narayan, learned
amicus curiae, we heard detailed submissions of Mr. B.S. Nagar,
learned counsel for the Petitioner, Mr. S.K. Dubey, learned counsel for
Respondent Nos. 3 to 5, as well as Mr. Dev P. Bharadwaj, learned
Central Government Standing Counsel appearing for the Union of
India.
Rival Submissions
36. Mr. Gautam Narayan first sought to place reliance on the
provisions of the NSCI which, he submitted, were binding, as held by
this Court in Indian Olympic Association v. UOI, 2014 SCC Online
Del 2967. He also relied, in this context, on the judgement in
Narender Batra (supra) which, though it was rendered prior to the
introduction of the NSCI, upheld, nevertheless, the authority of the
Government to regulate NSFs and their activities, and held the
provisions of the Guidelines issued by the Government in this regard
to be enforceable. Mr. Narayan placed reliance on Clauses 3.5, 3.6
and 9.3 of the NSCI. He pointed out that, in Clause 3.5, restoration of
the limits on duration of the tenure of office bearers of all recognized
NSFs was cited as one of the new initiatives taken by the Government
in the recent past. He also highlighted the consequences, clearly set
out in Clause 3.6 of the NSCI, of non compliance, by any NSF with
the Guidelines issued by the Government. Even so, he submitted, the
Ministry had not withdrawn the recognition of AKFI; rather it was
renewed on 4th February, 2015. Clause 9.3 of the NSCI was also
pressed into service, by Mr. Narayan, to the extent the said Clause
clarified that, in order to be eligible for assistance and continuing
government recognition, national sporting organisations were required
to follow proper, democratic and healthy management practices,
providing for greater accountability and transparency, and to adhere to
the limits relating to duration of tenure of Office Bearers, as notified
vide the Ministry‟s Circular dated 1st May, 2010 (supra). Adverting to
the said Circular, Mr. Narayan pointed out that the President of any
recognized NSF was, entitled to hold office for a maximum period of
12 years, and had also to cease to hold office on attaining the age of
70. Compliance with the conditions in the NSCI, Mr. Narayan pointed
out, was mandatory in order for any NSF to receive government
recognition, or to be eligible to receive any financial or other
assistance from the Government, or to select and depute national
teams for participation in recognized continental and international
sports competitions.
37. Mr. Narayan pointed out that the vires of the NSCI stood upheld
in Indian Olympic Association (supra). He also relied on the
judgement of the Supreme Court in Board of Control for Cricketers
in India v. Cricket Association of Bihar, (2016) 8 SCC 535. He also
as well as on the judgements of this Court in Rahul Mehra v. UOI,
2017 SCC Online Del 9747 (hereinafter referred to as "Rahul Mehra-
I") and Rahul Mehra v. UOI, 2017 SCC Online Del 11391
(hereinafter referred to as "Rahul Mehra-II").
38. Mr. Narayan next relied on the Model Election Guidelines,
which, he pointed out, were incorporated, by reference, into the NSCI.
He pointed out that NSFs seeking recognition by the Government
were required to apply as per the said Guidelines, which were annexed
as Annexure-II to the NSCI. The NSCI itself contemplated that, while
considering such applications, considerations of fair, transparent and
democratic elections, as well as compliance with the stipulations
regarding age and tenure limit, as contained in the Guidelines, would
be specifically borne in mind.
39. Mr. Narayan drew our attention to the manner in which the
Model Election Guidelines had been illegally altered while adopting
them in the 2013 Elections of the AKFI. He referred, in this context,
to Clause 2 of the Model Election Guidelines, which contemplated
only seven Office Bearers in the Managing Committee of any NSF,
and did not include any post of "Life President". He took us through
the various Forms appended to the said Guidelines, as well as Clause
9.3 (xiii) of the NSCI which incorporated, by reference, the Model
Election Guidelines and made their compliance mandatory for any
NSF which sought governmental recognition or financial
accommodation and other facilities from the Government.
40. Mr. Narayan thereafter highlighted how the stipulations in the
said Forms as appended to the Model Election Guidelines had been
tweaked, while adopting them in the 2013 Elections to the AKFI,
pointing out how, in Form 2, a caveat, to the effect that, for the posts
of President and Secretary, the candidate was not required to be the
member of any State Federation/Union Territory/Board/Institution,
had been inserted. He also brought, to our attention, the fact that, in
the tables contained in Form 3 and Form 4, against the heads "name of
member State/U.T./Board/or Institution" and "Sr. No. in Electoral
College list", the letters "NA" had been entered against the names of
Respondent No. 5, as the candidate for the post of President of the
AKFI. By resorting to such subterfuge, Mr. Narayan would contend,
Respondent No. 4, who had become ineligible to contest, or be
elected, any further, as President, having crossed the age of 70 and
having remained President for over 12 years, had, by amending the
MOA and tweaking the stipulations contained in the Forms appended
to the Model Election Guidelines, ensured that, if he could not, his
wife would be the President of AKFI, thereby enabling him to retain
de facto control over the organisation.
41. Mr. Narayan also attacked the introduction, in the amended
MOA, of the post of "Life President". He pointed out that the NSCI
did not contemplate any such post of "Life President", in any NSF.
Rather, he submitted, no post, with unlimited tenure, could exist in
any NSF, in view of the stipulated tenure limit prescribed in every
Guideline issued by the Government to regulate the NSFs, in the
NSCI. The whole exercise of creation of the post of "Life President",
Mr. Narayan, would submit that, was mala fide through and through,
and was yet another example of the manipulations practiced by
Respondent No. 4.
42. Mr. Narayan also attacked the insertion of the words, "or any
outsider" in Clause 15.2 of the MOA, while amending it, and
submitted that the insertion of these words was targeted at enabling
Respondent No. 5 to seek election as President. He compared the said
stipulation, as contained in Clause 15.2 of the amended MOA, with
Clause 19 of the pre-amended MOA, which did not contain the words
"or any outsider".
43. Mr. Narayan specifically drew our attention to the pleadings,
contained in the two counter-affidavits filed by the Union of India, in
which it had been acknowledged that the assumption of the post of
President of the AKFI, by Respondent No. 4, was not "as per the spirit
of the NSCI". He, however, seriously criticized the averment,
contained in the second counter-affidavit of the Union of India, to the
effect that there was no provision in the NSCI, barring outsiders, who
were not members of any Electoral College, to contest elections for
any post of office bearers in an NSF, even while reluctantly
acknowledging that "normally" such elections were to be contested by
candidates who were members of the voting units of the NSFs.
44. Mr. Narayan further pointed out that the proposer and seconder
of the name of Respondent No. 4 as "Life President" of the AKFI
were also themselves officers who had held office as President for
over twelve years.
45. Thus, Mr. Narayan contended, the petitioner was fully justified
in alleging that Respondent No. 4 was running the AKFI as his
personal fiefdom, and all actions taken by him were thoroughly
vitiated on facts as well as on law.
46. Responding to Mr. Narayan‟s submissions, Mr. S. C. Dubey,
even while acknowledging the binding nature of the NSCI, sought to
submit that the NSCI only prescribed tenure and age of office bearers
of the NSFs, and nothing else. Eligibility to be elected as an office
bearer, he submitted, had to be determined on the basis of the MOA,
and not on the basis of the NSCI. In any event, in Mr. Dubey‟s
submission, the NSCI and the MOA were required to be harmoniously
read. Mr. Dubey argued that there was no prohibition, in the pre-
amended MOA, to the creation of a post of "Life-President". The
creation of the said post, in Mr. Dubey‟s submission, did not infract
the NSCI in any manner, as the NSCI, too, did not proscribe creation
of such a post by any NSF. In any event, Mr. Dubey submits,
Respondent No. 4 has, since, relinquished the post of Life President,
so that the challenge to his holding the said post had been rendered
academic. Further, Mr. Dubey informs us, the post of "Life
President" was deleted, from Clause 8.9 of the amended MOA, by a
General Body Meeting of the AKFI, held on 2nd July, 2018.
47. Adverting to the Circular, dated 1st May, 2010, issued by the
Ministry, Mr. Dubey draws our attention to clause (vi) in Para 9
thereof (which already stands reproduced hereinabove), which
clarified that conditions (i) to (v) would be subject to the proviso that
it would not disturb the current tenure of any member, provided
he/she has been properly elected to the post. The said clause went on
to stipulate that ―the tenure condition will become operative for all
future elections as they may be conducted in future in the normal
course.‖ Premised on this clause, Mr. Dubey would seek to contend
that the reliance, on the circular dated 1st May, 2010 supra was
thoroughly misplaced.
48. Regarding the election of Respondent No. 5 as President of the
AKFI, Mr. Dubey emphasised the fact that Respondent No. 5 had not
been "nominated" to the said post, but had been elected by a duly
democratic process, in accordance with the applicable provisions, as
contained in the MOA of the AKFI, as well as in the NSCI. He
highlighted, in his arguments, the specific stipulation, contained in
Clause 18 of Chapter II of the pre-amended MOA, to the effect that
"the President need not be a representative of any Member
organisation". This stipulation, in Mr. Dubey‟s submission,
completely demolishes the challenge, by the petitioners, as also voiced
by Mr. Gautam Narayan as amicus curiae, to the election of
Respondent No. 5 as President of the AKFI, on the ground that she
was not a Member of any State Federation, Union Territory, Board or
Institution. He also submitted that Respondent No. 5 could not be
regarded as ineligible to contest for the post of President of the AKFI
merely because she was the wife of Respondent No. 4. Her status as
the wife of Respondent No. 4 did not, he submitted, disqualify her for
being considered for the post of President of the AKFI, under the
MOA. He relied, in this regard, on the averment, contained in the
written submissions filed on behalf of Respondent No. 1, to the effect
that the NSCI did not define the eligibility criteria, regarding past
experience, expertise, etc, for candidates contesting election for any
post, and that these would be determined as per the bye-laws or
Constitution of the concerned NSF.
49. Mr. Dubey disputed the contention, of Mr. Narayan, that the
words "or any outsider" had been inserted in Clause 15.2 of the
amended MOA, only to make Respondent No. 5 eligible to contest for
the post of President of the AKFI. In Mr. Dubey‟s submission, the
pre-amended MOA did not contain any prohibition against an outsider
being elected as President of the AKFI; rather, in his submission, the
stipulation, in Clause 18 thereof, to the effect that the President need
not be a representative of any Member organisation, expressly enabled
any outsider to be appointed as President. Mr. Dubey also contended
that the amendment of the MOA had been effected in accordance with
Clause 27 of the pre-amended MOA.
50. The various Clauses in the Model Election Guidelines, and the
forms appended thereto, in Mr. Dubey‟s submission, were not
mandatory, but merely directory.
51. Re-emphasising the fact that, even as per the written
submissions of Respondent No. 1, the NSCI did not prescribe the
eligibility criteria for candidates contesting for any of the posts of
office bearer in an NSF, Mr. Dubey drew our attention to the affidavit
of Respondent No. 5, in which she has deposed as under:
―I say that having acquired professional and
administrative experience in my different capacities as
mentioned above, I retired in the year 2010 from the
Government job. I have also attended Sports Medicine
Training in the year 1988 organised by the IOC Medicine
Commission and Olympic Solidarity.‖
It is not, therefore, as if Respondent No. 5 was a total stranger
to the field of sports, contends Mr. Dubey. There was no proscription
whatsoever, contends Mr. Dubey, to a gynaecologist being elected as
the President of the AKFI and would press, into service to support this
stand, our own judgement in Energy Watchdog v. U.O.I., 2017 SCC
OnlineDel 11422.
52. Mr. Dubey also questions the maintainability of the present writ
petition, submitting that the validity of an election, held according to
the applicable Rules, could not be questioned in a writ petition under
Article 226 of the Constitution of India, but would have to be tested in
an election petition formally instituted.
53. Mr. Dubey also places reliance on Ambica Quarry Works v.
State of Gujarat, (1987) 1 SCC 213 and Uttaranchal Road Transport
Corporation v. Mansaram Nainwal, (2006) 6 SCC 366, apart from
our decision in Energy Watchdog (supra).
Analysis
54. The challenge, in the writ petition, is essentially directed at
(i) the amendment of the MOA of the AKFI, as approved on
7th January, 2012, specifically
(a) clauses 8.9, 15.8 and 17.2 of the amended MOA,
insofar as they introduced, in the MOA, the post of "Life
President", and
(b) Clause 15.2, to the extent it enables "any outsider"
to seek election to the post of President/Secretary of the
AKFI,
(ii) the appointment, of Respondent No. 4, as "Life
President" of the AKFI, consequent to the result of the elections
on 19th May, 2013,
(iii) the election and consequent appointment of Respondent
No. 5 as President of the AKFI, on 19th May, 2013, and
(iv) the continuance and extension of the recognition, granted
by the Central Government to the AKFI, despite the alleged
violation, by the AKFI of the stipulations contained in the
NSCI.
55. According to the petitioners, the very continuance, of
Respondent No. 5 as President of the AKFI, from 1984 till 19th May,
2013, was ex facie illegal. They submit that Respondent No. 5 had
converted the AKFI into his personal fiefdom, as was manifest from
the fact that, on his finding it impossible to get re-elected as President
in 2013, he had the MOA of the AKFI amended to create a post of
„Life President", against which he could be appointed, and to enable
"any outsider" to be elected as President, thereby paving the way, to
the said post, for his wife, Respondent No. 5. Both these changes, as
brought out in the amended MOA of the AKFI were, in the
petitioners‟ submission, completely illegal and contrary to the explicit
mandate of the NSCI which, undisputedly, is binding on all NSFs.
Besides the election of Respondent No. 4 as Life President and of
Respondent No. 5 as President, of the AKFI, thereby standing vitiated,
the violation, by the MOA of the AKFI of the stipulations contained
in the NSCI, also imperiled the recognition, granted by the
Government, to the AKFI, as well as its rights to financial assistance
and other benefits provided by the Central Government. The
petitioners, therefore, pray that the extension of recognition, granted
by Respondent No. 1 to the AKFI, be withdrawn forthwith, and an
impartial authority be appointed to administer the affairs of the AKFI.
56. We entirely agree with the petitioners, and with the submissions
of Mr. Gautam Narayan.
57. The reasons are obvious.
58. A revisitation of the various guidelines, issued by the Central
Government (Respondent No. 1) in respect of NSFs, reveals the
following position:
(i) The Circular, dated 20th September, 1975 of the Ministry,
clearly stipulated in respect of all office bearers of an NSF, that
(a) an Office Bearer of an NSF would have a term of
four years, and would be eligible for re-election, for
another term of four years, and
(b) no such office bearer would continue for more than
two consecutive terms, or eight years, and
(c) a President of an NSF, who had held office for two
consecutive terms, or eight years, could not contest, for
re-election to the post, for another four years.
(ii) The "office bearers" of any NSF, according to the said
Circular, would mean
(a) the President,
(b) the Secretary/Secretary-General, and
(c) the Treasurer.
(iii) Circular dated 20th September, 1975 was revised vide
letter dated 16th July, 1977, and thereafter, further, vide letter
dated 14th August, 2001 (hereinafter referred to as "the 2001
Guidelines"), consequent to suggestions received from IOA and
the various NSFs with the approval of the Department of
Expenditure, Ministry of Finance. However, the prescriptions
regarding the post of Office Bearer in the NSFs, as contained in
the aforementioned Circular dated 20th September, 1975,
remained unchanged in the 2001 Guidelines, which were held,
by this court, in Narinder Batra (supra), to be enforceable and
binding.
(iv) The tenure of eight years, prescribed for the post of
President in the NSF, in the Guidelines of 20th September, 1975,
was increased to twelve years in the Circular dated 1 st May,
2010. The outer age for a person to continue as President in an
NSF was retained as 70 years. However, a caveat was entered,
in the Circular dated 1st May, 2010, to the effect that the
conditions relating to upper age and tenure, as contained
therein, would "not disturb the current tenure of any members",
who had been properly selected to the post, so that the tenure
contained would become operative for future elections.
(v) Circular, dated 17th May, 2010, also issued by the
Ministry, reiterated the "Basic Universal Principles of Good
Governance of the Olympics and Sport Movement" which
postulated, inter alia, that
(a) elections to sports bodies should be governed by
clear, transparent and fair rules, including a clean
electoral roll,
(b) the terms of office of office bearers of the NSF
should be of limited duration, in order to
(i) allow renewal of office bearers on a regular
basis and
(ii) give access to new candidates.
It was also noted, in the Circular, that the liberalisation of the
tenure limit of President of the NSFs, from 8 years to 12 years,
was in alignment with the norms of the IOC, and represented
the best international practices. Para 9 of the Circular clarified,
yet again, that its provisions, and the Guidelines contained
therein, were "legal, valid and enforceable".
(vi) The NSCI, notified on 31st January, 2011, stipulated,
inter alia, that
(a) the Guidelines contained in the Circular dated 1st
May, 2010 supra were binding on NSFs, if they were
desirous of
(i) regulating and controlling sports in India,
(ii) using the name "India",
(iii) representing India within or outside India, or
(iv) availing various benefits and concessions,
including financial benefits, available to NSFs,
(b) failure to comply with the Guidelines could result
in the concerned NSF, inter alia,
(i) not being permitted to select national teams,
(ii) not being permitted to represent India in any
international event or international forum,
(iii) not being allowed to use the word "India" in
its name,
(iv) losing its all-India character and
(v) not being able to regulate and control the
concerned sport in India, and
(c) an NSF, in order to be eligible for recognition,, was
required to
(i) comply with the tenure limits prescribed in
the letter dated 1st May, 2010 supra, which, for
President, was a maximum of 12 years,
(ii) follow the guidelines contained in the „Basic
Universal Principle of Good Governance of
Olympic and Sports Movement‟, as issued vide
Circular dated 17th May, 2010 supra and
(iii) hold the elections, for the posts of the Office
Bearers, as per the Model Election Guidelines.
(vii) That the NSCI binds, and cannot tolerate deviation at the
hands of any NSF, stands conclusively held by the judgements
of this Court in Indian Olympic Association (supra), Rahul
Mehra-I (supra) and Rahul Mehra-II (supra), as well as, on
principle, Narinder Batra (supra). Non-compliance with the
stipulations in the NSCI would, ipso facto, disentitle to the
concerned NSF from any right to recognition, as well as from
the facilities made available, by the Government, to NSFs,
financial and otherwise.
(viii) The Model Election Guidelines, which formed part of
the NSCI required the candidates to be members of one of the
Member States/Union Territories/Boards/Institutions, which
was one of the constituent units of the AKFI as well as to figure
in the Electoral College list. The name of the member
state/Union Territory/Board/Institution, as well as the Serial No,
in the Electoral College list, of the concerned candidate, were
required to be declared, while filling in the nomination paper for
the election, and were also required to be specified in other
forms relating thereto.
59. In the backdrop of the above noted legal requirements, we are,
frankly, appalled at the manner in which every mandatory condition,
and stipulation, was ignored, with impunity, by Respondent No. 4 and,
vicariously, by Respondent No. 5 as well. Worse, we are informed that
Respondent No. 6, the son of Respondent Nos. 4 and 5, has been
"elected" as President of the Rajasthan State Kabaddi Federation
(„SKF‟). There is wealth of merit in the submission, of the petitioners,
that Respondent Nos. 4, 5 and 6 had, indeed, held the AKFI to
ransom, and were treating it as their family enterprise, as if there were
none else to further the sport of Kabaddi in the country.
60. Significantly despite our repeated queries, no information has
been forthcoming regarding participation of either Respondent No. 4
or Respondent No.5 in the sport of Kabaddi, or for that matter, any
game or sport.
61. Addressing, now, the 2013 amendment of the MOA of the
AKFI. Significantly, this amendment was effected by the General
Council, on 29th December, 2011, which meeting, in turn, was chaired
by Respondent No. 4 himself. The provisions, in the amended MOA,
with which the petitioners claim to be aggrieved, are Clauses 8.9, 15.2,
15.8 and 17.2 and, in our opinion, none of the said Clauses can sustain
the scrutiny of law.
62. The Model Election Guidelines annexed to the NSCI and
constituting a part thereof clearly set out the officers who would
constitute Office Bearers of the NSF, and the post of "Life President"
is not among them. Indeed, neither does the NSCI, nor do any of the
Circulars issued prior thereto, contemplate a post of "Life President"
in an NSF. While Clause 19 of its pre-amended MOA included, in the
Office Bearers of the AKFI, only the President, Vice Presidents,
Honorary General Secretary, Honorary Joint Secretaries and Honorary
Treasurer, Clause 8.9 of the amended MOA of the AKFI included,
among the Office Bearers, the "Life President". This was, on the face
of it, illegal, as the NSCI did not visualize any post of Life President
at all, in an NSF, either as an Office Bearer, or otherwise.
63. In our opinion, as a beneficiary of the recognition conferred by
the Government, the AKFI was bound by the stipulations contained in
the NSCI, and other Cognate Guidelines issued by the Government,
and had no authority to create posts de hors, and in excess of, those
contemplated by the NSCI.
64. Apart from the fact that the AKFI, in its capacity as a NSF
availing recognition from the Government, did not have any authority
to create a post of "Life President", where the NSCI did not
contemplate the existence of any such post, Clause 15.8 compounded
the illegality by providing that the Life President would hold office
during his life entire time. This stipulation, again, directly infracted
the tenure limits, specified in the NSCI which, as already noted
hereinabove, were binding on all recognised NSFs, including the
AKFI. The creation of such an immortal entity, blessed with the gift of
"ichhamrityu" (death at will) was, we are certain, not even remotely
within the imagination, not to say contemplation, of the framers of the
NSCI.
65. Equally, the post of Life President itself being an illegally
created post, there could be no question of the holder of the said post
having any right to represent the AKFI at any international forum.
The NSCI, as well as the Guidelines issued prior thereto, clearly
permitted representation, by any NSF, in continental or international
sports events in which India was a participant, only if the NSF
complied with the stipulations prescribed therein, which included
adherence to the age specifications and tenure limits specified, as well
as conducting of elections in accordance with the Model Election
Guidelines.
66. In any event, the very creation of the post of Life President
being vitiated by law, there could be no question of granting any
benefits to the holder of such an illegally created post. Though Mr.
Dubey asserted that no salary, or emoluments, were paid to
Respondent No. 4, in his capacity as Life President, expenses would,
no doubt, be incurred in allowing Respondent No. 4 to travel
nationally and internationally, purportedly representing the country in
sporting events. These expenses are defrayed out of public monies,
and amount to thievery of the ordinary citizen by executive
dispensation, which is completely unthinkable in law.
67. Clauses 8.9, 15.8 and 17.2 of the amended MOA of the AKFI
are, therefore, declared to be completely illegal, and liable to be struck
down.
68. Coming, now, to Clause 15.2, we are in agreement with the
contention of Mr. Narayan that the clandestine insertion of words "or
any outsider", in the said Clause, is completely malafide, with a view
to enable Respondent No. 5 to be elected as President of the AKFI.
Mr. Dubey‟s contention, in this regard, is that Clause 18 of the pre-
amended MOA also permitted an outsider to be elected as President of
the AKFI and that, therefore, the use of the words "or any outsider", in
the amended MOA, did not alter the legal position. We queried, of
Mr. Dubey, as to why, if the legal position was as he contended it to
be, the words "or any outsider" were added, at all, in Clause 18, while
amending the MOA. To this, Mr. Dubey had no answer whatsoever.
It is clear, on the face of it, that the addition of the words "or any
outsider", in Clause 15.2 of the amended MOA, was deliberate, and
with a predetermined object in view.
69. We, nevertheless, proceed to examine the submission, of
Mr. Dubey, to the effect that, even under the pre-amended MOA,
Clause 18 permitted an outsider, who was a complete stranger to the
game of Kabaddi and not a member of any of the State units, Union
Territory, Board or Institution, to be elected as President of the AKFI.
Mr. Dubey seeks to capitalise on the stipulation, in Clause 18 of the
pre-amended MOA, to the effect that "the President need not be a
representative of any Member Organisation". This stipulation,
Mr. Dubey would seek to contend, enabled any outsider to be
appointed as President of the AKFI. We are unable to agree. Clause
18 states that the President need not be a representative of any
Member Organisation, and not that the President need not be a
Member of, or belong to, any Member Organisation. The use of the
word "representative" cannot be ignored. Clause 14 of the pre-
amended MOA clearly stipulated that "a Member Organisation shall
be represented only by its President, Secretary or representative (s)
who must be a Member of the Association..." In other words, each
member unit of the AKFI, i.e. each State Federation, Union Territory,
Board and Institution would be entitled to have its own representative
in the AKFI. The situation may be analogised, somewhat, to the Bar
Council of India, which includes representatives of each State Bar
Council. The stipulation, in Clause 18 of the pre-amended MOA, on
which Mr. Dubey relies, to the effect that the President need not be a
representative of any Member Organisation, obviously intended to
mean that all members of the Member Organisations of the AKFI
were eligible to contest, and be elected as, President, and that this
option was not limited only to the "Representatives" of the member
Units, within the meaning of Clause 14 of the pre-amended MOA. It
cannot be extended to mean that a person who was a total stranger to
every member Unit of the AKFI could contest for, and be elected as,
President thereof. This entitlement was introduced, clearly, for the
first time, in Clause 15.2 of the amended MOA and, as we have
already opined hereinabove, introduced surreptitiously and
deliberately. It was, in our view, obviously done only so as to enable
Respondent No. 5 to be elected as President of the AKFI, thereby
merely changing the character of the control, exercised over the AKFI
by Respondent No. 4, from de jure to de facto.
70. This aspect stands underscored by the specific stipulations, in
the Model Election Guidelines, forming part of the NSCI, which
clearly contemplate that a candidate contesting for any of the posts in
any NSF, is required to be a member of one of the State Units, Union
Territories, Boards or Institutions and, consequently, a member of the
Electoral College as well. Revealingly, as Respondent No. 5 was not
a member of any of the State Kabaddi Federations, or of any Union
Territory, Board or Institution, the appellation "NA" was entered, in
the corresponding columns, in Forms 3 and 4, against the name of
Respondent No. 5. In a move which smacks of brazen impertinence,
Form-2, as stipulated in the Model Election Guidelines, was also
manipulated and altered, while submitting the Form for the 2013
Elections of the AKFI, by excepting the posts of President and
Secretary from the requirement of stipulating the name of the Member
State/UT/Board/Institution, to which the candidate belonged. We
confess that we are appalled at the temerity, of Respondent No. 4 - at
whose instance this manipulation was effected - to tamper with the
mandatory Forms contained in the Model Election Guidelines
appended to the NSCI in the face of the NSCI, and the mandatory
requirements contained therein. To say the least, this completely
vitiates the entire electoral exercise, conducted in 2013 for the post of
President of the AKFI, as well as the election of Respondent No. 5 to
the said post, therein.
71. Equally, and for the same reasons, stands vitiated the electoral
exercise, conducted in 2015, as also the election of Respondent No. 5
is President of the AKFI, for a second term, therein.
72. Ironically, all Guidelines, including the NSCI, have exhorted
the need to ensure "free, fair and transparent" elections in all NSFs.
Freedom, fairness and transparency, we are constrained to observe,
have been the first casualities in the present case - courtesy
Respondent Nos. 4 and 5.
73. The judgments of this Court in Rahul Mehra-I and Rahul
Mehra-II are also relevant in the above context. Rahul Mehra-I dealt
with elections to the posts of Office Bearers of the Archery
Association of India (AAI), which was de-recognised on 17th
November, 2010. The Government of India contended, before this
Court, that, unless and until the NSF, i.e. AAI in that case, complied
with the provisions of the NSCI, including tenure and age restrictions
of Office Bearers and holding of free and fair elections, the
Government would not consider the grant of recognition to such a
Sports Federation. In the circumstances, on 17th September, 2012, this
Court directed that recognition would be accorded by the Government,
to the AAI, only if the elections of the AAI were held in accordance
with the NSCI. As, despite this direction, the elections were not held
as per the stipulations in the NSCI, this Court, vide subsequent order
dated 15th October, 2012, directed fresh elections to be held, in
accordance with the NSCI, and appointed a retired Judge of this Court
as Returning Officer to oversee the conduct of the elections. This
second directive, to conduct elections in accordance with the NSCI,
was also disregarded by the AAI. In the circumstances, this Court
disposed of the writ petition with the following directions:
"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 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 ‗unamended' 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 four
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 expense 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."
74. Rahul Mehra-II was concerned with the All India Football
Federation (AIFF). Similar interlocutory directions, similar to those
issued in Rahul Mehra-I had been issued by this court in the said case
as well. As in the present case, this Court found, in Rahul Mehra-II,
that the Electoral College of the AIFF was not in accordance with the
Model Election Guidelines, or with the NSCI. The writ petition was
ultimately disposed of in the following terms:
"22. The Court is of the view that insofar as the Rules of
the AIFF are in breach of the National Sports Code and
the Model Guidelines for the conduct of elections, the
results of the elections of the AIFF declared on
21.12.2016 would have to be set aside. It is so ordered.
Fresh elections shall be conducted in accordance with
the Model Guidelines. Additionally, nominations would
be required to be proposed and seconded by one member
association each and with clear notice, as required by the
Model Election Guidelines read with rules of AIFF.
Furthermore, the Electoral College shall be first
prepared after addressing the complaints of various
members who may have grievances in this regard. This
exercise should be carried out by a person who has
experience in sports affairs, public administration and
conduct of elections. Accordingly, this Court directs 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 to be
appointed as the Administrator-cum-Returning Officer
for the conduct of the elections of the AIFF in the
following manner:
(i) To resolve the issue of disaffiliation of
members/units of AIFF as on 30th November, 2016 and
to prepare the Electoral List, within a month by giving
the concerned parties two weeks' notice;
(ii) Elections shall be held in six weeks after the
preparation of the Electoral college. This elected body
shall carry out the requisite amendments to the AIFF
Constitution to bring it in conformity with the National
Sports Code.
(iii) Once the AIFF Constitution has been amended, a
fresh round of elections shall be carried out in terms of
the National Sports Code, to ensure that age and
tenure restrictions along with the provision for due
representation of the sports-persons are strictly
complied with.
(iv) The AIFF 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 AIFF.
(v) Till the elections are conducted and results
declared in consonance of the National Sports Code
and in compliance with the preceding directions, the
AIFF shall not make any new financial commitments
except with the prior approval of the Administrator.
Routine expenses of AIFF too shall be defrayed, only
with the prior approval of the Administrator. The
entire exercise will be completed within five months
from the date the Administrator assumes charge;
(vi) However, to obviate any impediment in the
conduct of any competitive tournament that may have
been scheduled by the applicant, this order shall come
into effect after two weeks from today."
75. Mr. Dubey sought to impress, on us, the fact that Respondent
No. 5 had been elected by a democratic election process, and that,
therefore, any judicial interdiction, therewith, would clearly be
unwarranted. As we have found Respondent No. 5 to have been
ineligible, in the first place, to contest for the post of President of the
AKFI, her eligibility being dependent on the use of the words "or any
outsider", as contained in Clause 15.2 of the amended MOA, which,
too, we have found to be completely illegal, no further examination, of
this contention of Mr. Dubey, would be necessary. We may,
nevertheless, note the somewhat disturbing circumstance, revealed
from a perusal of the list of nominated candidates, for various posts of
Office Bearers in the AKFI, in the elections held in 2013 and 2015,
that, apparently, only single candidates had been nominated, against
each of the said posts, and all nominated candidates inevitably were
elected against the posts. That apart, we find that the names of the
successful candidates, elected as Office Bearers consequent on the
2013 and 2015 elections in the AKFI, were practically the same,
except for the name of one JP Agarwal, who figures in the list of
candidates elected in 2015, but is absent in the list of 2013. These
facts, too, seriously undermine the legality, and legitimacy, of the
elections held, for the posts of Office Bearers in the AKFI, both in
2013 as well as 2015.
76. In view of our reasoning hereinabove, the reliance, by Mr.
Dubey, on our judgement in Energy Watchdog (supra), is of no
substantial significance. Though, in preference to the multitude of
members of various State Federations, Boards and Institutions, who
would be members of the AKFI by virtue of such membership, the
choice of Respondent No. 5, who was neither a Kabaddi player, nor a
member of any such unit, but was a practising
gynaecologist/obstetrician, having nothing to do with the sport of
Kabaddi - except, as the counter-affidavit filed by her would seek to
aver, a "keen interest" in the sport - is difficult to digest, we have not
chosen to declare her election as President of the AKFI as illegal on
that ground, as our findings hereinabove disclose. We have not,
therefore, proceeded to examine whether an obstetrician/gynaecologist
would, or would not, be fit, or even eligible, to be elected and
appointed as President of the AKFI; ergo, our earlier judgement in
Energy Watchdog (supra) does not impact our decision, this way or
that.
Conclusion
77. In view of the above discussion, we allow the present writ
petition. Resultantly, Clauses 8.9, 15.22, 15.8 and 17.2 of the
amended MOA of the AKFI, are struck down as illegal. The
appointment of Respondent No. 4 as Life President of the AKFI, is
also, consequently, declared illegal. Equally, the election and
consequent appointment of Respondent No. 5, as President of the
AKFI, on 19th May, 2013 and 23rd April, 2017, are also declared
illegal, and are accordingly quashed and set aside.
78. Given the totally clandestine and surreptitious manner in which
the provisions of the MOA were illegally amended, in order to enable
Respondent No. 5 to contest for the post of President, we further direct
that Respondent No. 5 render accounts of all financial benefits, which
have enured to Respondent No. 5, as and in her capacity as President
of the AKFI since the time of her appointment to the said post on 19 th
May, 2013 until date, and the same be recovered from her, forthwith.
79. Additionally, in view of the apparent anarchy, prevailing in the
affairs of the AKFI, owing to the machinations of Respondents No. 4
and 5, we are of the opinion that it would be necessary, to preserve the
very existence of the AKFI, to entrust its control and affairs to an
impartial Administrator. We, therefore, issue additionally, the
following directions:
(i) We appoint Shri Sanat Kaul, IAS (Retd.) as
Administrator, who would, till further orders, take over control
of the AKFI, and administer all its affairs. He shall stand
substituted in place of the President of the AKFI, and shall be
entitled to exercise all powers which existed, heretofore, in the
President of the AKFI.
(ii) The Administrator shall ensure that the Electoral College
of the AKFI is prepared, and elections held, in accordance with
the Model Election Guidelines, within three months thereof.
(iii) The body so elected shall carry out the amendments to
the MOA, to bring it in conformity with the NSCI.
(iv) Once this is done, a fresh round of elections shall be
carried out, as per the amended MOA and in terms of the NSCI,
ensuring that all stipulations in the NSCI, including age and
tenure restrictions, are strictly complied with.
(v) The entire exercise shall be carried out within a period of
six months from today.
(vi) The AKFI 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 expense towards the same shall be
borne by the AKFI.
(vii) Till the elections are conducted and results declared in
consonance of the NSCI and in compliance with the preceding
directions, the AKFI shall not make any new financial
commitments except with the prior approval of the
Administrator. Routine expenses of AKFI too shall be defrayed,
with the due prior approval of the Administrator.
(viii) The Administrator would submit a three-monthly report,
to this Court, so as to enable this Court to be satisfied that the
affairs of the AKFI are in order. The monthly remuneration of
the Administrator is fixed at ₹ 1,00,000/- per month apart from
miscellaneous expenses, tour and travel, secretarial assistance,
etc., on actuals which would be disbursed, by the 5th of every
month, by Respondent No. 1.
(ix) The Bank accounts and other assets of AKFI shall be
handed, and dealt with, only by the Administrator, or such other
person (s), whom he may choose to depute/appoint in this
regard.
80. In fixing the remuneration of the Administrator, we have been
guided by the remuneration fixed by the Supreme Court, in respect of
payment to R.M. Lodha, J. and Mukul Mudgal, J., as Chairman of the
Committee to oversee the affairs of the Board of Control for Cricket in
India, which was ₹ 1 lakh per day.
81. We express our gratitude to Mr. Gautam Narayan, learned
amicus curiae, who justified, fully, the confidence reposed by us, in
him, and argued the matter with clinical precision and poise.
82. The writ petition is, allowed in the above terms. As we have
directed recoveries to be effected from Respondent No. 5, we are not
burdening the respondents with additional costs, though the facts of
the present case would amply justify such imposition.
C. HARI SHANKAR
(JUDGE)
ACTING CHIEF JUSTICE
AUGUST 03, 2018
rk/dsn
