Kerala High Court
P.P.Thobiyas vs State Of Kerala on 23 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 23RD DAY OF FEBRUARY 2022/4TH PHALGUNA,1943
WP(C) NO. 23374 OF 2021
PETITIONER/S:
1 P.P.THOBIYAS, AGED 57 YEARS
S/O. P. A. PETER, POTHADIYIL HOUSE, VELIKUNNU,
MUTTADA P.O., THIRUVANANTHAPURAM.
2 RUFUS D' SOUZA , AGED 88 YEARS
S/O. LATE LEWIS D' SOUZA, LUDES VILLA, FORT
COCHIN P. O., PIN - 682 001, ERNAKULAM DISTRICT,
SECRETARY SANTOS FOORTBALL CLUB KOCHI.
3 HENRY SHAJAN , S/O. P. A. PETER, POTHADI HOUSE,
BOLGATTY, MULAVUKADU P. O., PIN - 682504,
KANAYANOOR TALUK, ERNAKULAM DISTRICT.
4 BOLGATTY FOOTBALL CLUB
52/11, BOLGATTY, MULAVUKADU, REPRESENTED BY ITS
SECRETARY, BONY THOMAS, AGED 59 YEARS, S/O. A.
T. FRANCIS, SREE PANORAMA GARDENS, PANDARACHIRA
1ST CROSS ROAD, KADAVANTHRA SOUTH, ERNAKULAM,
PIN - 682 020.
BY ADVS.
JAMSHEED HAFIZ
K.K.NESNA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE SPORTS
DEPARTMENT, THIRUVANANTHAPURAM - 695 001.
2 THE SPORTS COUNCIL OF KERALA STATUE
THIRUVANANTHAPURAM - 695001, REPRESENTED BY ITS
SECRETARY.
-2-
W.P.(C). No. 23374 of 2021
3 THE ALL INDIA FOORTBALL FEDERATION
FOOTBALL HOUSE, SECTOR 19, PHASE 1, DWARAKA,
NEW DELHI, PIN - 110075, REPRESENTED BY ITS
SECRETARY.
4 KERALA FOOTBALL ASSOCIATION
VIP SECTOR - A, FIRST FLOOR, JAWAHARLAL NEHRU
INTERNATIONAL STADIUM, KALOOR, KOCHI, PIN -
682017, REPRESENTED BY ITS SECRETARY.
BY ADVS.
JIKKU SEBAN GEORGE
PRAVEEN K. JOY
DEEPTI SUSAN GEORGE
T.A.JOY
E.S.SANEEJ
M.P.UNNIKRISHNAN
M.K.SAMYUKTHA
N.ABHILASH
SANDRA S.KUMAR
DEEPU RAJAGOPAL
OTHER PRESENT:
SMT.LATHA ANAND, SC, SRI.JOBY JOSEPH, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C). No. 23374 of 2021
P.V.KUNHIKRISHNAN, J.
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W.P. (C) No. 23374 of 2021
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Dated this the 23rd day of February, 2022
JUDGMENT
The above writ petition is filed with following prayers:
"i. Issue a writ of certiorari or any appropriate writ or
direction, to call for records leading to Ext.P1 circular
and set aside the same.
ii. Issue a writ of mandamus or any other appropriate writ
or direction directing the respondents 1 to 3 to take over
the Kerala Premier League and conduct the same after
drawing proper rules and regulation and conduct the
State League Championship to select winners and
runner ups among the District League Champions to be
qualified for the 2nd division I-League Championship.
iii. Pass any other appropriate writ, order or direction
which this Hon'ble Court may deem fit to issue and the
petitioner may pray from time to time." (Sic)
2. Ext.P1 is a circular issued by the 4 th respondent. The
1st petitioner is the former Junior Indian Football team Captain
and former Indian Senior Football Team Player who also played
for Kerala Police Football Team and retired form Government
W.P.(C). No. 23374 of 2021
Service as the Commanding Chief Marshal in the Rank of
Superintendent of Police. According to the 2nd petitioner, he is a
reputed coach in India, who was honoured by the Prime
Minister for his achievements in sports and is the Secretary of
Santos Football Club registered with the 4th respondent. The 3rd
petitioner is also claims to be a former football player, who
claims that he played for Kerala Police and is presently a
recognised coach in India recognised by the National Institute
of Sports. The grievance of the petitioners is that as per Ext.P1
circular issued by the 4th respondent, an injustice is done to
football lovers. According to the petitioners, Ext.P1 circular is
issued by the 4th respondent in an unjust, illegal manner
violating the right to equality guaranteed by the Constitution in
total defiance to the rules and regulations to be followed. It is
contended that the 4th respondent is conducting the Kerala
Premier League (KPL for short) in total violation to equality
and natural justice. The 4th respondent, in order to induct teams
W.P.(C). No. 23374 of 2021
of their choice, without formulating any rules and regulations is
conducting the tournament in the name 'Kerala Premier
League' without any authority. It is the grievance of the
petitioners that huge amount is collected by the 4 th respondent
for entry to the tournament. According to the petitioners, unlike
in the previous years, from this year onwards the 4 th respondent
has insisted for deposit of Rs.25,000/- with tax as an eligibility
criteria for participating in the State Championship League.
This, according to the petitioners is unjust, illegal and arbitrary,
because many clubs in the State are unable to join the
tournament because of the lack of money that too during this
tougher times of Covid-19. It is also stated that various
institutional teams like Central Excise, Port Trust and various
other institutional teams are also not participating because the
institution does not permit for participating in such kind of
tournaments. According to the petitioners, the above act of
fixing Rs.25,000/- with tax is done only by the Football
W.P.(C). No. 23374 of 2021
Association of the State of Kerala and no other part of the
country is receiving money from any of the football clubs for
participating in the State League Tournament for a qualification
to the 2nd division of the I-league. It is also alleged that Ext.P1
circular offers a corporate entry to the tournament. It is the case
of the petitioners that the 4th respondent, in order to bring teams
of their choice, has started a new entry called Corporate Entry,
which permits any team directly to play the league, if they are
ready to deposit 7.5 lakhs of rupees. According to the
petitioners, the Kerala Football Association, who is accepting
aid and grant from respondents 1 and 2 cannot be a money-
making institution without promoting football. The 4 th
respondent Association itself is formed for promoting football
and encourage the young general into football. Therefore, it is
contended that Ext.P1 circular is illegal and is to be interfered
with and to issue direction to respondent 1 to 3 to take over
Kerala Premier League.
W.P.(C). No. 23374 of 2021
3. The 3rd respondent in its counter affidavit stated that
State League/State Championship is exclusively under the
management and control of the various member states in
accordance with their rules and regulations. According to the
3rd respondent, a State Association may conduct selection for
the I-league 2nd division in a manner as they deem fit.
According to the 3rd resplendent, since the conduct of a state
league/state championship is exclusively within the prerogative
of each member states, dictated by their rules and regulations,
the 3rd respondent is estopped from interfering in the conduct of
the same and further frame rules for the same. According to the
3rd respondent, all member state football associations are
independent bodies governed by their own constitution and own
memorandum of association and articles of association, which
they are mandated to follow bylaws. It is the case of the 3 rd
respondent that the 3rd respondent does not have the authority to
interfere with the conduct of the state competitions.
W.P.(C). No. 23374 of 2021
4. The 4th respondent filed a counter affidavit on
10.01.2022 and an additional counter affidavit on 01.02.2022.
The 4th respondent took a specific contention in the counter
affidavit that the 4th respondent is a private organisation and did
not come within the purview of the definition of "State" under
Article 12 of the Constitution of India and hence, no writ
petition would lie against the 4th respondent, which is only a
private organisation. Kerala Premier League (KPL) is only a
private tournament organised by the Kerala Football
Association (KFA) as a qualifying tournament for getting
selected to participate in the national level league organised by
the All India Football Federation, who is the 3 rd respondent.
KPL is one of the tournament in which a huge number of
private clubs are participating. The Corporate Entry fee is
collected only to meet the expenses for conducting the KPL. It
is the case of the 4th respondent that the private tournaments
were conducted by the 4th respondent without obtaining any
W.P.(C). No. 23374 of 2021
fund from the 3rd respondent or from any other authority for the
last eight years. Expenses such as stadium rent, ambulance
services, medical services, food, ground, marketing,
maintenance, light arrangements, expenses for the engineering
team including expenses for generators, remuneration for
referees, travel allowance and the prize money of Rs.8 lakhs in
total were all met by the 4 th respondent. It is the case of the 4 th
respondent that the petitioner's clubs are registered clubs at
Ernakulam. According to the 4th respondent the petitioner's
clubs have not made any request or intimated their interest in
playing in the KPL for the last eight years. According to the 4 th
respondent, the petitioners' team Santos club is not even
registered either with the 3rd respondent or with the 4th
respondent. It is the case of the 4th respondent that the
petitioners are only trying to distract and disturb the proper
conduct of the KPL, which is conducted by KFA for the past
several years. It is also submitted that the game of KPL is
W.P.(C). No. 23374 of 2021
already started and the prayers in the writ petition are
infructuous. In the additional affidavit, Exts.R4(a) and R4(c)
are produced.
5. Heard the learned counsel for the petitioner and the
respective Standing Counsel appearing for respondents 2 and 3.
I also heard the learned Government Pleader for the official
respondent and also the counsel appearing for the 4 th
respondent.
6. The 4th respondent took a contention in the counter
affidavit that the 4th respondent is not amenable to writ
jurisdiction and it will not come within the definition of 'State'
as defined in Article 12 of the Constitution of India and hence,
no writ petition would lie against the 4th respondent, who is only
a private organisation. Since such a contention is raised, this
Court requested the counsel for the petitioner to argue on the
maintainability issue first. The counsel for the petitioners
W.P.(C). No. 23374 of 2021
argued the question of maintainability in detail. The counsel
relied on the judgments of the Apex Court in Zee Telefilms
Ltd. and another v. Union of India and others [(2005) 4 SCC
649], Board of Control for Cricket In India v. Cricket
Association of Bihar and others [(2015) 3 SCC 251] and the
decision of this Court in Firosh C. and others v. Palakkad
District Cricket Association and others [2019 KHC 4925].
7. According to the 4th respondent, it is a private
organisation established for the purpose of promoting and
developing football in the State. Kerala Football Association is
registered state level association of the 3 rd respondent. But the
4th respondent submitted that it is a private organisation, which
is neither controlled, financed or backed by either by the State
or Central Government. The counsel for the 4 th respondent also
relied on the judgment of the Apex Court in Federal Bank v.
Sagar Thomas [(2003) 10 SCC 733].
W.P.(C). No. 23374 of 2021
8. I considered the judgments relied on by the counsel
for the petitioner. The first decision relied by the counsel is Zee
Telefilms Ltd (Supra). It will be better to extract the relevant
portion of the above judgment here:
"29. It was then argued that the Board discharges
public duties which are in the nature of State
functions. Elaborating on this argument it was
pointed out that the Board selects a team to represent
India in international matches. The Board makes
rules that govern the activities of the cricket players,
umpires and other persons involved in the activities
of cricket. These, according to the petitioner, are all
in the nature of State functions and an entity which
discharges such functions can only be an
instrumentality of State, therefore, the Board falls
within the definition of State for the purpose of Article
12. Assuming that the above mentioned functions of
the Board do amount to public duties or State
functions, the question for our consideration is:
would this be sufficient to hold the Board to be a
State for the purpose of Article 12? While considering
W.P.(C). No. 23374 of 2021
this aspect of the argument of the petitioner, it should
be borne in mind that the State/Union has not chosen
the Board to perform these duties nor has it legally
authorised the Board to carry out these functions
under any law or agreement. It has chosen to leave
the activities of cricket to be controlled by private
bodies out of such bodies' own volition (self-
arrogated). In such circumstances when the actions of
the Board are not actions as an authorised
representative of the State, can it be said that the
Board is discharging State functions? The answer
should be no. In the absence of any authorisation, if a
private body chooses to discharge any such function
which is not prohibited by law then it would be
incorrect to hold that such action of the body would
make it an instrumentality of the State. The Union of
India has tried to make out a case that the Board
discharges these functions because of the de facto
recognition granted by it to the Board under the
guidelines framed by it but the Board has denied the
same. In this regard we must hold that the Union of
India has failed to prove that there is any recognition
W.P.(C). No. 23374 of 2021
by the Union of India under the guidelines framed by
it and that the Board is discharging these functions on
its own as an autonomous body.
30. However, it is true that the Union of India has
been exercising certain control over the activities of
the Board in regard to organising cricket matches and
travel of the Indian team abroad as also granting of
permission to allow the foreign teams to come to
India. But this control over the activities of the Board
cannot be construed as an administrative control. At
best this is purely regulatory in nature and the same
according to this Court in Pradeep Kumar Biswas's
case (supra) is not a factor indicating a pervasive State
control of the Board.
31. Be that as it may, it cannot be denied that the
Board does discharge some duties like the selection of
an Indian cricket team, controlling the activities of the
players and others involved in the game of cricket.
These activities can be said to be akin to public duties
or State functions and if there is any violation of any
constitutional or statutory obligation or rights of other
citizens, the aggrieved party may not have a relief by
W.P.(C). No. 23374 of 2021
way of a petition under Article 32. But that does not
mean that the violator of such right would go scot-free
merely because it or he is not a State. Under the
Indian jurisprudence there is always a just remedy for
violation of a right of a citizen. Though the remedy
under Article 32 is not available, an aggrieved party
can always seek a remedy under the ordinary course
of law or by way of a writ petition under Article 226 of
the Constitution which is much wider than Article 32."
(Underline supplied)
9. A reading of the above paragraphs it is clear that the
Apex Court was considering the maintainability of a writ
petition against Board of Cricket Control in India (BCCI). In
the above judgment it is clearly stated that as far as the BCCI is
concerned, Union of India has failed to prove that there is any
recognition by it under the guidelines framed by it and that the
Board is discharging these functions on its own as an
autonomous body. But the counsel for the petitioners relied on
the finding in paragraph 31 of the judgment Zee Telefilms Ltd.
W.P.(C). No. 23374 of 2021
(supra), in which it is stated that though the remedy under
Article 32 is not available, an aggrieved party can always seek
remedy under the ordinary course of law or by way of a writ
under Article 226 of the Constitution, which is much wider than
Article 32. The Apex Court concluded like this because BCCI
is discharging duties like the selection of an Indian Cricket
Team, controlling the activities of the players and others
involved in the game of Cricket. The Apex Court observed that
these activities can be said to be akin to public duties or state
functions and if there is any violation of any constitutional or
statutory obligation or rights of other citizens, the aggrieved
party can approach the High Court under Article 226 of the
Constitution of India. That is not the case here. The 4 th
respondent is in effect a private club. They are conducting
private tournaments. In such circumstances, based on the
dictum laid down by the Apex Court in Zee Telefilms Ltd.
(supra), this Court cannot held that a writ petition is
W.P.(C). No. 23374 of 2021
maintainable against the 4th respondent.
10. The next decision relied by the counsel for the
petitioner is the decision of this Court in Firosh C. and others
(Supra). That was a case, in which this Court relied on the
judgment of the Apex Court in Zee Telefilms Ltd.. In that case,
the challenge was against the notice issued by the District
Cricket Association. This Court observed that, no public duty of
any nature is involved in the disciplinary action initiated by a
private body like the association involved in that case against its
members. The counsel relied on the judgment of this Court in
WP(C) No.19455 of 2008, which was relied in Firosh C. and
others. But I think, those decision is also not applicable to the
facts of the present case. The next decision relied on by the
petitioner is S.Sreeshanth's case (supra), which is admittedly
reversed by the Division Bench of this Court subsequently. The
other decision relied of the Apex Court in BCCI (Supra) is also
not applicable to the facts and circumstances of this case.
W.P.(C). No. 23374 of 2021
11. In the light of the above judgments itself, according to
me, this writ petition is not maintainable against the 4th
respondent. The main relief in this writ petition is against the
4th respondent and a circular issued by the fourth respondent. As
far as the second prayer in the writ petition is concerned, this
court need not entertain the same in the light of the counter filed
by the 3rd respondent. According to the 3rd respondent, a State
Association may conduct selection for the I-league 2 nd division
in a manner as they deem fit. According to the 3 rd resplendent,
since the conduct of a state league/state championship is
exclusively within the prerogative of each member states,
dictated by their rules and regulations, the 3 rd respondent is
estopped from interfering in the conduct of the same and further
frame rules for the same. According to the 3 rd respondent, all
member state football associations are independent bodies
governed by their own constitution and own memorandum of
association and articles of association, which they are mandated
W.P.(C). No. 23374 of 2021
to follow bylaws. It is the case of the 3 rd respondent that the 3rd
respondent does not have the authority to interfere with the
conduct of the state competitions. In such situation this court is
not in a position to pass any orders based on the second prayer
in the writ petition. Therefore, without expressing any opinion
about the merit of the case, this writ petition can be dismissed.
All the contentions raised by the petitioners in this writ petition
are left open and the petitioners are free to agitate the same
before the appropriate forum, in accordance to law.
Therefore, this writ petition is dismissed, leaving open all
the contentions raised in this writ petition.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
W.P.(C). No. 23374 of 2021
APPENDIX OF WP(C) 23374/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE CIRCULAR DATED
06.09.2021 AS K.F.A./KERALA PREMIER
LEAGUE/2021-22/302.
RESPONDENT'S EXHIBITS
EXHIBIT R4(A) TRUE COPY OF THE CLUB LICENSING
REGULATIONS FOR LEAGUE QUALIFIERS 2021
EXHIBIT R4(B) TRUE COPY OF THE DRAFT CLUB LICENSING
AGREEMENT
EXHIBIT R4© TRUE COPY OF THE LETTER ISSUED BY THE
3RD RESPONDENT TO THE
DIRECTOR/PRESIDENT OF KERALA UNITED FC
DATED 04.08.2021.
