Telangana High Court
M/S. Amateur Wushu Association Of ... vs The State Of Telangana, on 29 October, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 13556 OF 2024
O R D E R:
Seeking to declare Notice No.TOA/AGM/2024, dated
18.05.2024 issued by the 3rd respondent regarding Annual General
Body Meeting and Elections of Telangana Olympic Association
scheduled for 09.06.2024 at 11.00 AM at LVR Olympic Bhavan, L.B.
Stadium, Hyderabad, as illegal, arbitrary, and a violation of the
Association's bye-laws and constitutional norms, petitioner M/s
Amateur Wushu Association of Telangana is before this Court. They
seek to set aside the said notice and Notification dated 19.05.2024
issued by the 4th respondent. A consequential direction is sought to the
2nd respondent to conduct elections of Executive Committee of the 3rd
respondent according to the bye-laws and guidelines of Indian Olympic
Association (IOA), by appointing a Returning Officer; to include the
name of petitioner Association in the Electoral Roll enabling them to
vote in the elections and file nominations for any desired posts.
2. The Writ Petition involves several Associations registered
under the Telangana Societies Registration Act, 2021 (for short, 'the
Act'). Petitioner No.1 - a non-profitable Association aims to support
Wushu athletes within Telangana and is affiliated to Wushu Association
of India, also being a member of the 3rd respondent Association.
Petitioner No.2 focuses on supporting Kayaking and Canoeing athletes,
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is affiliated to the Indian Kayaking and Canoeing Association, and has
been a member of the 3rd respondent since its incorporation in 2015.
Petitioner No.3 is dedicated to Taekwondo athletes and is affiliated to
the Indian Taekwondo Association, while also being a member of the 3rd
respondent. Finally, Petitioner No.4 supports the Olympic movement
and amateur sports within Hyderabad District and has been a member
of the 3rd respondent since its establishment in 2015.
The 3rd respondent is an Association registered under the
2001 Act and was established in 2015. Its main objectives include
promoting the spirit of Olympic Movement and amateur sports as well
as enforcing the rules of amateurism. It serves as the official
organization for Olympic matters in Telangana and receives funding
from the State Government for organizing various sports events. Given
its functions and affiliations, the 3rd Respondent is considered a 'State'
under Article 12 of the Constitution of India. All the recognized State
Sports Associations and District Olympic Associations within Telangana
are affiliated to TOA. According to the bye-laws of TOA, the management
of its affairs falls under the purview of an Executive Committee,
composition of which is detailed in Bye-law No. 13.
Sl.No. Post Number
1 President 1(One)
2 Vice Presidents 4(Four)
3 General Secretary 1(One)
4 Treasurer 1(One)
5 Joint Secretaries 4(Four)
6 Members 15(Fifteen)
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Ten from State Sports Associations and Five from District Olympic
Associations.
This Petition outlines serious concerns regarding
governance of the Association, particularly focusing on the actions of
the Ex-Officiating President and Ex-General Secretary, whose term for
the Executive Committee (2020-2024) expired on 08.02.2024. Despite
this, they did not initiate the election process for a new Executive
Committee for the period 2024-2028. Allegations include committing
illegalities and irregularities in managing the association's affairs,
making unilateral decisions without proper notice or consent from
Executive Committee members, and failing to adhere to the bye-laws. It
is claimed that the Ex-Officiating President and Ex-General Secretary
continued to hold their positions illegally after their term expired,
engaging in various misconducts, including misappropriating funds
collected for conference and room bookings. They allegedly favoured
certain affiliated associations and conducted meetings without proper
notice or quorum, passing resolutions that were kept secret from the
membership. Notices dated 20.02.2024 and 27.03.2024 were issued for
meetings aimed at amending the bye-laws, despite objections from
members who asserted that these officials were functus officio. A Special
General Body Meeting was held on 13.04.2024, which lacked proper
quorum and the resolutions passed during this meeting were deemed
null and void.
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Additionally, Writ Petition No. 12291 of 2024 was filed
against the Ex-Officiating President and Ex-General Secretary for failing
to conduct elections within their term and for holding illegal meetings
post-expiration. On 09.05.2024, they called for another Executive
Committee Meeting on 17.05.2024, which prompted another Writ
Petition No. 13382 of 2024. This resulted in an interim order from the
court on 16.05.2024, stating that decisions made by these officials
would be subject to the outcome of the ongoing litigation. Furthermore,
it is noted that Ex-Treasurer lodged a complaint against Ex-Officiating
President and Ex-General Secretary for misappropriating Association
funds, leading to registration of Crime No. 88 of 2024 by PS Saifabad for
the offenses under Sections 406 and 420 of the IPC. The investigation
into these allegations is in progress.
Petitioners assert that Ex-General Secretary, who holds no
authority in TOA after 08.02.2024, issued the notice dated 18.05.2024
calling for Annual General Body Meeting on 09.06.2024 at 11:00 AM at
LVR Olympic Bhavan, LB Stadium, Hyderabad. This notice, which
includes an agenda for the election of Office Bearers and Executive
Committee Members for the period 2024-2028, is challenged in the
present Writ Petition as being contrary to the bye-laws and principles of
natural justice. According to Bye-law No. 21, Executive Committee is
responsible for deciding the election schedule and appointing a
Returning Officer. Specifically, it stipulates that:
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• Bye-law No. 21 (i) mandates that the Executive Committee decides on the
election schedule and the appointment of the Returning Officer.
• Bye-law No. 21 (ii) requires the General Secretary to send notices to eligible
members, including a list of voters, election schedule, nomination forms, and
the address of the Returning Officer.
• Bye-law No. 21 (iii) states that notices must be dispatched at least 21 days
before the scheduled meeting, using Speed Post or Registered Post.
• Bye-law No. 21 (iv) establishes that the postal receipt or acknowledgment is
conclusive evidence of notice dispatch.
• Bye-law No. 21 (v) specifies that only the Returning Officer's acknowledgment
serves as evidence for receiving nomination forms.
Petitioners argue that since there is no valid Executive
Committee in place, there is no authority to decide the election
schedule, which necessitates a meeting of all members to determine
this. They also note that the notice dated 18.05.2024 was not served in
accordance with the bye-laws, constituting a violation. Additionally,
TOA issued the Election Notification dated 19.05.2024, detailing the
election process, however, appointment of Returning Officer is claimed
to be illegal and in violation of Bye-law No. 21 (i). As a result, election
notification is deemed illegal and arbitrary, lacking legal effect.
Petitioners further point out that Electoral Roll displayed at the 3rd
respondent's office excludes their names, despite their participation in
previous elections (2015-2019 and 2020-2024). They allege that Ex-
General Secretary removed their names from the electoral list, thereby
infringing upon their rights to participate in the elections. Lastly, it is
asserted that Ex-General Secretary included various agenda points in
the meeting scheduled for 09.06.2024 with the intention of depriving
the members of their legitimate rights within the 3rd respondent
Association. Petitioners assert that the 3rd respondent issued Notice
dated 18.05.2024 in an illegal and arbitrary manner, violating Bye-law
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No. 21. Following this, the 4th respondent issued Notification of
Elections on 19.05.2024, which petitioners contend is also unlawful.
They claim that Ex-General Secretary removed names of petitioners
from electoral roll to prevent their representatives from voting in the
election process. As a result, election process initiated by the 3rd
respondent through notice and notification from the 4th respondent is
deemed entirely illegal and arbitrary. Petitioners therefore, submitted
representations dated 26.05.2024 to the 4th respondent, requesting
inclusion of their names in the electoral roll, but no action has been
taken. Meanwhile, the 4th respondent is proceeding with election
schedule, notifying that nomination forms must be submitted between
27.05.2024 and 29.05.2024. Consequently, petitioners' representatives
are deprived of their rights to vote and contest in the elections for the
Executive Committee of the 3rd respondent. Petitioners further allege
that Ex-General Secretary arbitrarily included names of representatives
of some of the members who are not holding any authority in the
affiliated Associations.
3. To support their submissions, the petitioners rely on
several judicial decisions, including:
Bachhittar Singh vs. State of Punjab 1, State of Assam vs.
Kripanath Sarma 2, Greater Mohali Area Development Authority
1962 SCC Online SC11
1966 SCC Online SC 71
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vs. Manju Jain 3 , Bipromasz Bipron Trading SA vs. Bharat
Electronics Limited 4 .
4. The 3rd respondent TOA raised a preliminary objection
regarding maintainability of Writ Petition and sought permission to file
a preliminary counter affidavit with liberty to submit a detailed counter
affidavit addressing various allegations, which they assert are baseless
and lack factual and legal support. According to Section 23 of
Telangana Societies Registration Act, 2001, disputes between members
and Society should be resolved in an appropriate District Court or
through the Arbitration and Conciliation Act, 1996. Additionally, Bye-
law No. 33 of TOA provides for arbitration, which is referenced for
clarity as under:
" 33) In the event of any dispute arising between the Association
and/or its members and/or between sports persons, officials, units and/or its
members and/or between members who are within the purview of this
Association on any matter whatsoever, the same shall be settled by arbitration
only, under the provisions of the Arbitration and Conciliation Act, 1996 (Central
Act 26 of 1996). The decision of the Arbitration Committee shall be final and
binding on all the parties and no member or unit of any member or other persons
who are under the purview of the Association shall approach any Court of Law
without referring a dispute for arbitration"
TOA asserts that petitioners 1 to 3 are not affiliated bodies
of the Association and thus lack the status necessary to participate in
elections. Specifically, petitioner No. 2 is affiliated with a different
Association, led by Sri. Ch. Venugopala Chary. Consequently,
2010 SCC Online SC 916
2012 SCC Online SC 421
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petitioners are said to lack locus standi. Petitioner No. 4 was excluded
from Electoral College due to compliance with legal election
requirements. Petitioners previously made representations to Returning
Officer, recorded as Cases 05 of 2024, 06 of 2024, 04 of 2024, and 07 of
2024, all were disposed of on 28.05.2024 without challenge from the
petitioners. Furthermore, TOA highlights that, according to the Rules
established by NSDCI, petitioners are ineligible for re-election as
Secretary due to holding the position for two consecutive terms.
Implementation of National Sports Code of India, 2011 is mandatory
and petitioners are aware of this requirement. Therefore, the 3rd
Respondent seeks the dismissal of the writ petition.
5. While making the above submissions, learned Senior
Counsel relied upon the following decisions:
PHR Invent Educational Society v. UCO Bank 5
Jaipur Vidyut Vitran Nigam Ltd v. MB Power 6
Thansingh Nathmal v. Superintendent of Taxes, Dhubri 7.
All India SC and ST Railway Employees Association Zonal Office
at Secunderabad v. E. Venkateshwarlu 8
Gita Devi Aggarwal v. Commissioner of Income Tax 9.
Gundarpu Kiran Kumar v. State of Telangana 10 and Others.
6. Petitioners contend that preliminary counter filed by TOA is
invalid, as it is signed by Mr. K. Jagdishwar Yadav, who falsely claims
2024 SCC Online SC 528
2024 SCC Online SC 26
1964 SCC Online SC 13
2003 SCC Online AP 97
MANU/SC/0210/1969;
2023(5) ALD 221 (TS)
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to be the General Secretary. His tenure as such ended on 08.02.2024,
upon expiration of Executive Committee's term that began on
09.02.2020. Petitioners assert that there is no authorization for Mr.
Yadav to depose on behalf of the Association therefore, request that the
court disregard the preliminary counter. Petitioners challenge Mr.
Yadav's actions regarding the notice for Executive Committee meeting
scheduled on 09.06.2024 and the subsequent decisions, including
appointment of a Returning Officer, since the term for the previous
committee ended on 08.02.2024. They argue that no elections were
conducted prior to the term's expiry, meaning Mr. Yadav should not be
managing the Association's affairs. On 07.06.2024, Mr. Yadav issued a
letter referencing status quo order dated 30.05.2024, again
misrepresenting his authority.
Regarding Petitioner No. 1, it is asserted that this body is
an affiliated member of TOA. A letter from Wushu Association of India
dated 17.04.2024 confirmed its affiliation and requested its name to be
included in the members list. Despite paying the annual renewal fee on
29.01.2024, Petitioner No. 1 was excluded from electoral college list.
For Petitioner No. 2, it is claimed that elections were held on
29.02.2024, overseen by Shri P. Vijender, a Retired District & Sessions
Judge, resulting in electing Mr. Santosh Sagar as President and P.
Pradeep Kumar as Secretary. However, the electoral college improperly
listed another individual as President. Petitioner No. 3 is said to have
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been a recognized member of TOA, participating in 2020 elections,
however, its name was removed from the current electoral list without
due process, while a rival association ie. Telangana Taekwondo
Association was included instead. For Petitioner No. 4, petitioners
contend that elections took place on 07.01.2024, yet the name of
Petitioner No. 4 was also removed from electoral college list without
following the prescribed procedure.
Petitioners submitted representations on 26.05.2024 to the
Returning Officer (Respondent No. 4) requesting inclusion of their
names in the electoral list, but these were not addressed before the
orders were issued on 28.05.2024. They argue that Returning Officer's
decisions are not judicial or quasi-judicial and assert that the role of
Returning Officer, as defined in bye-laws, does not grant the authority
to determine member eligibility. Bye-law No. 21(ii) states that General
Secretary must notify all eligible members based on Executive
Committee resolutions, which were not followed in the current election
process. Thus, petitioners seek to challenge the validity of electoral
proceedings and the actions of Mr. K. Jagdishwar Yadav. They contend
that according to Bye-law No. 21(i), Executive Committee is responsible
for deciding the election schedule and appointing Returning Officer.
Since Executive Committee ceased to exist on 08.02.2024, there was no
authority to set the election schedule or appoint a Returning Officer.
Members of TOA were required to convene a meeting to address these
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matters. Petitioners express surprise that TOA issued Notification of
Elections on 19.05.2024, detailing the election schedule and process, as
this action contravenes Bye-law No. 21(i). They argue that appointment
of the 4th respondent as Returning Officer is illegal, rendering the
election notification arbitrary and without legal effect.
Petitioners' names were included in electoral college list for
the term 2020-2024 after meeting all bye-law requirements and they
assert that non-inclusion in 2024-28 list is illegal and unjust. They
emphasize that there are no allegations of disqualification against them
according to bye-laws, and they maintain that they have complied fully
with all requirements. Petitioners argue that their right to participate in
election process is fundamental and they invoke Article 226 of to
challenge the actions of TOA as illegal, arbitrary, and violate natural
justice principles. They reference the Supreme Court decision in Radha
Krishan Industries v. State of Himachal Pradesh 11 to support their
position.
7. The 3rd respondent contends that writ petition's
maintainability is questionable due to the availability of alternative
remedies under Section 23 of the Societies Registration Act, 2001 and
the possibility of arbitration as per the society's bye-laws. The
Respondent asserts that Petitioner No. 1, Wushu Association,
Telangana, is not an affiliated association, as it is not recognized by
2021 SCC OnLine SC 334
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Wushu Association of India, the national governing body for the sport.
The respondent claims that elections for Wushu Association were not
properly conducted, leading to rejection of Association's representation
by the Returning Officer. The representative of Petitioner No. 1 is alleged
to have affiliations with other sports Associations, including
Sepaktakraw Federation of India, and is attempting to gain entry into
the Respondent Association through various means. The Respondent
communicated with Wushu Association of India regarding Petitioner No.
1's affiliation, receiving only vague responses. Petitioner No. 2 is
excluded from electoral college due to failure to submit its
representatives list on time. Elections for Petitioner No. 2 were held in
2022 for the term 2022-26, with Dr. Ch. Venugopal Chary as President
and Sri Pradeep Kumar as Secretary, whose names are included in the
electoral college. Dr. Ch. Venugopal Chary is recognized as officiating
president per court orders in Writ Petition No. 2548 of 2020. This
respondent disputes the legitimacy of Petitioner No. 3, asserting it is
not affiliated with Taekwondo Federation of India. The representative's
inclusion in electoral college in 2020 resulted from undue influence
amid disputes between federations. A letter from INDIA Taekwondo
regarding annual affiliation contradicts a Delhi High Court ruling in
W.P. (C) No. 11674/2019 and W.P. (C) No. 18879/2022, which
recognizes Taekwondo Federation of India as the official body for the
sport. Consequently, Petitioner No. 3 has allegedly lost its right to
participate due to lack of affiliation. For Petitioner No. 4, the
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Respondent states that no elections have been held for over eight years,
leaving it without a valid executive committee and ineligible to vote. The
purported elections were marred by internal conflicts, leading the
Returning Officer to declare them invalid. Overall, TOA emphasizes that
claims of Petitioners are unfounded and aims to uphold the integrity of
the electoral process within TOA.
8. Petitioners in their reply to additional counter affidavit assert
their entitlement to invoke the extraordinary jurisdiction under Article
226 to challenge the alleged mala fide actions of Mr. K. Jagadishwar
Yadav, Ex-General Secretary of the TOA. They contest the notice of
Executive Committee Meeting scheduled on 09.06.2024, along with the
appointment of the Returning Officer and their exclusion from Electoral
College List, arguing that the term of the Executive Committee for 2020-
2024 expired on 08.02.2024, with no elections for 2024-28 conducted
beforehand. On 07.06.2024, Mr. K. Jagadishwar Yadav issued a letter
indicating that Annual General Body Meetings and Elections set for
09.06.2024 were postponed due to the status quo order from the Court
dated 30.05.2024, extended until 11.06.2024. The Respondent claims
that Writ Petitioner No. 1, the Amateur Wushu Association of
Telangana, is not an affiliated association, despite previously being a
member of Respondent No. 3 and participating in the 2020 elections.
They note that the death of the Secretary and the unavailability of the
President have hindered Wushu Association's operations. However,
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Petitioner No. 1 received affiliation from Wushu Association of India on
06.01.2024 and was enrolled in TOA on 29.01.2024 after paying
affiliation fee. Despite this, Respondent failed to include Petitioner No. 1
in electoral college list. For Petitioner No. 2 - Telangana Karate
Association, it is falsely claimed that their representative list was not
submitted on time. Petitioner's new President, Mr. Santosh Sagar, was
wrongly replaced with Dr. S. Venugopal Chary in the electoral college
list, despite valid elections held on 29.02.2024. Dr. Chary was
previously the President from 2020-24, but the new executive
committee was not recognized in the list. Petitioner No. 3 - Telangana
Taekwondo Association argues that it is still affiliated with the
Respondent and had its name previously included in electoral college
for 2020. The name was allegedly removed without proper procedure,
while a new entity, Telangana Taekwondo Association, was included
unlawfully. Petitioner No. 4 disputes claims of inactivity, arguing that
they are still affiliated with TOA and had their name listed in electoral
college for 2020. They assert that elections held on 07.01.2024 were
valid, despite the Respondent's claims to the contrary.
9. Heard Sri V. Hari Haran, learned Senior Counsel appearing on
behalf of Sri Rohit Pogula, learned counsel for petitioners and Sri M.S.
Prasad, learned Senior Counsel appearing on behalf of Ms. A. Satya sri,
learned counsel for respondent - TOA.
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10. It is to be noted that connected writ petitions, namely, WP
Nos.12291, 13382, 13549, 13557 and 13559 of 2024 have also been
filed either in individual capacity or in the capacity of affiliated
Association of the Telangana Olympic Association. The common
grievance in all these writ petitions is that the present incumbent
Executive Committee's term is from 2020-2024 and its term expired on
08.02.2024, and the Committee is illegally continuing in office and
conducting Executive Committee Meetings and Special General Body
Meetings, without the necessary strength of Members. It is also alleged
that the Committee is removing Members without following due
procedure contemplated in the By-Laws, and further the Committee has
misappropriated the funds of the Association and no Statements of
Accounts were audited, no expenditure details were placed in the
meetings for ratification. It is to be noted that cases were registered
against certain Office Bearers of the Telangana Olympic Association
under various offences, as brought out in the preceding paragraphs.
Further, the Election Notification issued by the Returning Officer, Hon'
ble Mr. Justice C. Praveen Kumar (retd) has also been challenged
raising the ground that the certain individuals were unduly removed
from the list of voters.
11. It is to be noted that challenge in all these writ petitions is with
regard to the very continuation and functioning of the present
incumbent Executive Committee beyond its term (which ended on
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08.02.2024), and the alleged illegalities, including termination of
Members and misappropriation of funds, committed by the Executive
Committee. The predominant ground taken in these writ petitions is
with regard to the maintainability of the writ petition. In view of the
overarching nature of grievance in all the writ petitions, attention of the
Court was drawn to various judgments/case-law on various facets of
the grievance right from maintainability of the writ petitions to the
Election Notification, and arguments were advanced both in common
and also touching the specifics of the allegations in individual writ
petitions as they occurred, this Court is inclined to discuss the
grievance in totality in all the writ petitions in view of inter-
connectedness of the grievance in the writ petitions.
12. As stated in preceding paragraphs, keeping in view the challenge
laid to the very continuation of the Executive Committee, which forms
the basis for all the actions taken by it, this Court deems it expedient to
discuss the case law in all these writ petitions as they are relied on by
the learned counsel, and as they are commonly applicable.
13. Learned Senior Counsel relied on Lakshmi Charan Sen v. AKM
Hassan Uzzaman 12, Union of India v. International Trading
Company 13, GhulamQadir v. Special Tribunal 14, PHR Invent
(1985) 4 SCC 689
(2003) 5 SCC 437
(2002) 1 SCC 33
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Educational Society v. UCO Bank 15, State of Orissa v. ram Chandra
Dev 16, Jaipur Vidyut Vitran Nigam Limited v. MB Power 17, All India
SC and ST Railway Employees Association v. E. Venkateshwarlu 18,
Gita Devi Aggarwal v. Commissioner of Income Tax 19.
14. Having considered the respective submissions, and perusing the
material on record, including the judgments relied on by the learned
counsel for the parties, it is to be noted that the 2nd respondent-
Association is an entity registered under the Societies Registration Act,
2001. Admittedly, the present incumbent Executive Committee was
elected for the term 2020-2024 and its term expired on 08.02.2024. It is
vehemently contended that the present Executive Committee members
of 2nd respondent-Association have resorted to serious financial
irregularities, non-conforming to the procedures stipulated in the by-
laws for conducting annual general meetings, auditing of financial
statements, etc. At this juncture, it is relevant to note that the 2nd
respondent-Association is a Society under the Societies Registration
Act, 2001, and it is not a body corporate, or an entity, established
under the Central or State Act. It is therefore relevant to examine if a
writ is maintainable in the given facts of the case.
2024 SCcOnLine SC 528
AIR 1964 SC 685
2024 SCC OnLine 26
2003 SCC OnLine AP 97
MANU/SC/0210/1969
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15. I have perused the judgments relied on by the learned counsel for
both the parties, both for and against, on the aspect of maintainability
of the writ petition.
16. It is now settled that for a writ petition to be maintainable under
Article 226 of the Constitution of India, the entity against which the
grievance is made out should either be State/Government or an
Instrumentality of the State under Article 12 of the Constitution of
India. In this context, it would be pertinent to deal with what
constitutes an Instrumentality of State under Article 12 of the
Constitution of India.
17. To elucidate on that aspect, it would be relevant to note that in
Ramana Dayaram Shetty v. The International Airport Authority of
India 20, the Hon' ble Supreme Court had the occasion to deal with the
issue as to "what constitutes an Instrumentality of the State under Article
12 of the Constitution of India". Ramana Dayaram Shetty (supra) was a
case where the petitioner therein had challenged a tender notification
issued by the Airport Authority as arbitrary and illegal by reason of not
conforming to the tender standards. The Hon' ble Supreme Court, while
referring to various precedent judgments, like, Rajasthan State
Electricity Board v. Mohan Lal 21, broadly laid out a certain non-
exclusive set of parameters which an entity has to satisfy so as to
qualify being called an Instrumentality of the State under Article 12.
1979 (3) SCC 489
AIR 1967 SC 1857
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The Hon' ble Supreme Court, while observing that Corporations
established by statute or incorporated under law are an
instrumentality or agency of the Government, if they satisfied
certain tests, like (i) the source of the share capital, (ii) The extent
of State control over the Corporation, and whether it is "deep and
pervasive", (iii) whether the Corporation has a monopoly status, (iv)
whether the functions of the Corporation are of public importance
and closely related to governmental functions; and(v) Whether,
what belonged to a Government Department formerly was
transferred to the Corporation.
18. The Hon' ble Supreme Court further observed that the list is
not exhaustive and by its very nature, it cannot be, because, with
increasing assumption of new tasks, growing complexities of
management and administration and the necessity of continuing
adjustment in relations between the Corporation and Government,
calling for flexibility, adaptability and innovative skills, it is not
possible to make an exhaustive enumeration of the tests which
would invariably and in all cases provide an unfailing answer to the
question whether a Corporation is a governmental instrumentality
or agency. The Hon' ble Supreme Court further observed that no
one single factor will yield a satisfactory answer to the question
and the Court will have to consider the cumulative effect of these
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factors, in arriving at its decision on the basis of facts and
circumstances of each case.
19. The Hon' ble Supreme Court further held in Ramana Dayaram
Shetty (supra) while discussing the status of Airports Authority (1st
respondent therein) as follows:
"It will be seen from these provisions that there are certain
features of the 1st respondent which are eloquent and throw
considerable light on the true nature of the 1st respondent. In the
first place, the chairman and members of the 1st respondent are
all persons nominated by the Central Government and the Central
Government has also the power to terminate their appointment as
also to remove them in certain specified circumstances. The
Central Government is also vested with the power to take away
the management of any airport from the 1st respondent and to
entrust it to any other person or authority and for certain special
reasons, the Central Government can also supersede the 1st
respondent. The Central Government has also power to give
directions in writing, from time to time on questions of policy and
these directions are declared binding on the 1st respondent. The
1st respondent has no share capital but the capital needed by it
for carrying out its functions is provided wholly by the Central
Government. The balance of the not profit made by the 1st
respondent after making provision for various charges, such as
reserve funds, had and doubtful debts depreciation in assets etc.
does not remain with the 1st respondent and is required to be paid
over lo the Central Government. The 1st respondent is also
required to submit to the Central Government for its approval a
statement of the programme of its activities as also the financial
estimate and it must follow as a necessary corollary that the 1st
respondent can carry out only such activities and incur only such
expenditure as is approved by the Central Government. The
audited accounts of the 1st respondent together with the audit
report have to be forwarded to the Central Government and they
are required to be laid before both Houses of Parliament. So far
as the functions of the 1st respondent are concerned, the entire
department of the Central Government relating to the
administration of airports and air navigation services together
with its properties and assets, debts, obligations and liabilities,
contracts, causes of action and pending litigation is transferred to
the 1st respondent and the 1st respondent is charged with carrying
out the same functions which were, until the appointed date,
being carried out by the Central Government. The employees and
officers on the 1st respondent are also deemed to be public
servants and the 1st respondent as well as its members, officers
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and employees are given immunity for anything which is in good
faith done or intended to be done in pursuance of the Act or any
rule or regulation made under it. The 1st respondent is also given
power to frame Regulations and to provide that contravention of
certain specified Regulations shall entail penal consequence.
These provisions clearly show that every test discussed above is
satisfied in the case of the 1st respondent and they leave no doubt
that the 1st respondent is an instrumentality or agency of the
Central Government and falls within the definition of 'State' both
on the 'narrow view taken by the majority in Sukhdev v. Bhagat
Ram 22 as also on the broader view of Mathew, J., adopted by us."
20. In the light of the law laid down by the Hon' ble Supreme Court in
Ramana Dayaram Shetty (supra), it is to be noted in the instant case
that the President and Members of the 2nd respondent-Association are
neither nominated or appointed by the State Government, nor the 2nd
respondent-Association is required under any Act passed by the
Parliament or State Legislature to submit its programme of activities
and financial estimates, nor that the 2ndrespondent can carry out only
such activities and incur only such expenditure as is approved by the
State Government. Further, the 2nd respondent's audited accounts
together with the audit report is not required to be laid before the
Houses of State Legislature. Therefore, the 2nd respondent does not
qualify to be an Instrumentality of the State under Article 12 of the
Constitution of India.
21. Further, the Hon' ble Supreme Court in Heavy Engineering
Mazdoor Union v. State of Bihar 23, held as follows:
1975 (1) SCC 421
AIR 1970 SC 82
wp_13556_2024
NBK, J
"The question which arose in this case was whether a reference
of an industrial dispute between the Heavy Engineering
Corporation Limited (hereinafter referred to as the 'Corporation')
and the Union made by the State of Bihar under section 10 of the
Industrial Disputes Act, 1947 was valid. The argument of the
Union was that the industry in question was "carried on under the
authority of the Central Government" and the reference could,
therefore, be made only by the Central Government. The Court
held that the words "under the authority" mean "pursuant to the
authority, such as where an agent or a servant acts under of
pursuant to the authority of his principal or master" and on this
view, the Court addressed itself to the question whether the
Corporation could be said to be carrying on business pursuant to
the authority of the Central Government. The answer to this
question was obviously 'no' because the Corporation was
carrying on business in virtue of the authority derived from its
memorandum and articles of association and not by reason of
any authority granted by the Central Government. The
Corporation, in carrying on business, was acting on its own
behalf and not on behalf of the Central Government and it was
therefore not a servant or agent of the Central Government in the
sense that its actions would bind the Central Government."
22. Though it is contended that the 2nd respondent-Association
receives funds from Indian Olympic Association and State Government
and others, it is to be noted that neither the powers to conduct the day
to day business and affairs of the 2nd respondent-Association flow from
any "authority" bestowed by the Government so as to imply that the
Government is executing its works through 2nd respondent as an
instrumentality of the State, nor the 2nd respondent is carrying out the
affairs/activities in the capacity of an Agent to the Government, which
ultimately bind and make the Government answerable to the actions of
the 2nd respondent-Association.
23. In view of the foregoing, it cannot be said the 2nd respondent-
Association is an Instrumentality of the State so as to maintain a writ
wp_13556_2024
NBK, J
petition under Article 226 of the Constitution of India. The 2nd
respondent-Association is an entity registered under the Societies
Registration Act, 2001. In case of dispute amongst the Members of the
Association or on any matter relating to the affairs of the Association,
the dispute resolution mechanism provided under Section 23 of the Act,
2001 is appropriate recourse to the petitioners.
24. The dispute in the present case is essentially between members
with regard to the election process, and therefore the dispute squarely
falls within the ambit of Section 23 of the Societies Registration Act,
2001. For the sake of reference, Section 23 of the Societies Registration
Act, 2001 is extracted hereunder:
"23. Dispute regarding management - In the event of any dispute
arising among the Committee or the members of the society, in
respect of any matter relating to the affairs of the society, any
member of the society may proceed with the dispute under the
provisions of the Arbitration and Conciliation Act, 1996 (Central
Act 26 of 1996), or may file an application in the District Court
concerned and the said Court shall after necessary inquiry pass
such order as it may deem fit."
25. To elucidate further as to whether the election dispute comes
under the phrase "any matter relating to the affairs of the society", it
would be relevant to refer to C. Vasudeva Rao v. State of A.P. 24,
wherein the Hon' ble High Court of A.P. held as follows:
"The expression "any dispute" is wide enough to cover even the
disputes relating to election of the members of the committee. So,
any dispute arising among the committee, albeit, it be a dispute
Writ Petition No.8696 of 2022 (High Court of A.P.)
wp_13556_2024
NBK, J
pertaining to the election of office bearers of the Executive
Committee, squarely falls within the expression "any matter
relating to the affairs of the society" as has been used in Section
23 of the 2001 Act. The expressions "any dispute" and "any
matter relating to the affairs of the society" are too wide enough
even to cover the election dispute relating to the election of the
office bearers of the Executive Committee or any matter relating
to the affairs of the society. Even an election of office bearers of
the Executive Committee relates to the affairs of the Society."
26. The Hon' ble Division Bench of this Court in Mrs. Nirmala Kale
v. The Society of Trustees of Indigenous Churches 25, upheld that a
writ petition against the Society is not maintainable as it does not fall
under Article 12 of the Constitution of India and does not perform
public duty.
27. Accordingly, the writ petition is disposed of leaving open to the
petitioners to avail the remedies available to them under law. No costs.
Miscellaneous petitions, if any pending, shall stand closed.
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NAGESH BHEEMAPAKA, J
29th October 2024
ksld
Writ Appeal No.1551 of 2013 (Telangana High Court)
