Telangana High Court

Sreevasu Sudagani, vs Union Of India, on 29 October, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

               HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

                   WRIT PETITION No. 13557 OF 2024

O R D E R:

Heard Sri Prabhakar Chikkudu, learned counsel for

petitioner and Sri M.S. Prasad, learned Senior Counsel appearing on

behalf of Ms. A. Satya sri, learned counsel for TOA.

2. The present Writ Petition is filed questioning the action of

Respondents 5 and 6 in not allowing the two representatives of

Petitioner's Association in the forthcoming elections of the 5th

respondent's Association and deleting the representatives of Petitioner's

Association in the Electoral College proceedings issued on 25.05.2024

for the election of 2024-2028 and the 6th respondent issuing Schedule

of the Election Notification of the 5th respondent Association on

19.05.2024 for conducting elections on 09.06.2024 as being arbitrary

illegal unreasonable, violation of principles of natural justice and the 5th

respondent's Rules and Regulations and in violation of Article 14 and

21 of the Constitution of India. A consequential direction is sought in

that regard.

3. Petitioner's Association registered under the provisions of

the Telangana Societies Registration Act, 2001 (for short, 'the Act') aims

at promoting sports, ethics in Squash Rackets, combat doping, and

foster moral and cultural education among the youth of Telangana. The

Association also certifies player eligibility for national competitions and

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stimulates interest in Squash. Telangana Squash Rackets Association is

affiliated with the 5th respondent - Telangana Olympic Association (for

short, 'the Association'), which promotes players for national and

international competitions. As per Regulation 13 (b), (c), (d) of the

Telangana Squash Rackets Association's Rules and Regulations, powers

are delegated from the President to the Senior Vice-President, Vice

Presidents, or General Secretary if President is unavailable.

Association's elections are scheduled for 09.06.2024, covering the term

from 2024-2028. On 25.05.2024, Respondents 5 and 6 issued

proceedings of the Electoral College, allowing 34 Associations to

participate in the upcoming elections, with each having two

representatives. However, Racket Association was excluded from having

its representatives listed, prompting a representation on 26.05.2024 to

include names in the Electoral College for the elections, with the last

date for nominations set for 29.05.2024. The representatives' names are

Mr. B. Mahesh Kumar Goud, M.L.C. and Working President of

Telangana State Committee of Indian National Congress Party and Sri

Sreevasu Sudagani, the General Secretary of the Racket Association

who is petitioner herein.

Petitioner's claim is that exclusion from Electoral College

and lack of response from Respondents 5 and 6 is illegal, arbitrary,

discriminatory and violates Articles 14 and 21 of the Constitution.

Election notification was issued on 19.05.2024, but Electoral College

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proceedings failed to include petitioner's representatives. He asserts

that if the Court does not intervene under Article 226, they will face

irreparable loss, unrectifiable after elections to the 5th respondent

Association. Petitioner contends that participation of representatives of

Rackets Association in the upcoming elections for the Office Bearers

and Executive Committee of the 5th respondent Association is essential

for maintaining its affiliation. This affiliation is crucial for Racket

Association to conduct tournaments, select players, and promote

Squash Rackets at national and international levels. Petitioner argues

that exclusion of its representatives from electoral process infringes the

fundamental rights of numerous Squash Racket players from

Telangana, which should not be permitted by the Court. Petitioner

emphasizes that right to contest in elections is a fundamental right,

which has been unlawfully infringed by respondents.

4. While making the above submissions, petitioner relied upon

the following decisions :

Bachhittar Singh vs. State of Punjab 1, State of Assam vs. Kripanath Sarma 2, Greater Mohali Area Development Authority vs. Manju Jain 3 , Bipromasz Bipron Trading SA vs. Bharat Electronics Limited 4, Rajkot District Co-operative Bank vs. State of Gujarat 5, Vasavi Engineering College Parents

1962 SCC Online SC11

1966 SCC Online SC 71

2010 SCC Online SC 916

2012 SCC Online SC 421

AIR 2015 SC 489

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Association vs. State of Telangana 6,Union of India vs. International Trading Co. 7, ; Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai 8

5. The 5th Respondent TOA asserts that Writ Petition is not

maintainable for several reasons. The Association is registered under

the 2001 Act and operates according to its provisions. Specifically,

Section 23 of the Act mandates that any disputes between members

and the society be resolved in an appropriate District Court, in

conjunction with the Arbitration & Conciliation Act, 1996. Additionally,

Bye-law No. 33 of TOA stipulates arbitration as a method for dispute

resolution. These legal frameworks suggest that issues raised in Writ

Petition should be addressed through the specified legal channels rather

than through judicial intervention. Bye-law 33 reads as under:

" 33) In the he 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 arbitrator"

(2019) 7 SCC 172;

(2003) 5 SCC 437

(1998) 8 SCC 1

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The TOA contends that petitioner cannot invoke the

extraordinary jurisdiction of this Court under Article 226, as

established by the Supreme Court. Petitioner's requests include issuing

notices for conducting Executive Committee Meeting, appointing a

Returning Officer and Assistant Returning Officer, and declaring

elections illegal due to non-inclusion of names in the electoral college.

The TOA asserts that petitioner is not an affiliated body to them and

therefore, lacks locus standi to file the Petition. Petitioner, aggrieved by

the non-inclusion of his name, had made a representation registered as

Case No. 3 of 2024. By order dated 28.05.2024, the Returning Officer

noted that petitioner had completed two terms as General Secretary,

disqualifying him under Bye-law 15.1.6. Consequently, he has no

standing to allege misconduct regarding the General Body meetings or

elections of the Respondent Association.

6. While making the above submissions, the learned Senior

Counsel for TOA relied upon the following decisions:

PHR Invent Educational Society v. UCO Bank 9 Jaipur Vidyut Vitran Nigam Ltd v. MB Power 10 Thansingh Nathmal v. Superintendent of Taxes, Dhubri 11. All India SC and ST Railway Employees Association Zonal Office at Secunderabad v. E. Venkateshwarlu 12

2024 SCC Online SC 528

2024 SCC Online SC 26

1964 SCC Online SC 13

2003 SCC Online AP 97

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Gita Devi Aggarwal v. Commissioner of Income Tax 13. Gundarpu Kiran Kumar v. State of Telangana 14 and Others.

7. Petitioner filed reply asserting that Writ Petition is

maintainable under Article 226, despite TOA being registered under the

2001 Act. The basis for maintainability is the TOA's receipt of

government funds. This position is supported by the Supreme Court's

judgment in Ajay Hasia v. Khalid Muzif Saheravardhi 15, which

classified government-funded organizations as state entities. This

principle is echoed in Konaseema Co-operative Bank Ltd. v. N.

Seetharama Raju 16. It is stated, the TOA failed to issue Election

Notification dated 19.05.2024 in accordance with the National Sports

Development Code of India, 2011, or under its own bye-laws. The

electoral process was flawed as it issued a voter list on 25.05.2024 that

unilaterally excluded two representatives from Racket Association

without notice, violating their civil, legal, constitutional and

fundamental rights under Articles 14 and 21.

Even assuming the TOA issued Election Notification

correctly, it had no jurisdiction after 08.02.2024 as its term expired,

rendering any subsequent actions invalid. The organization failed to

conduct elections as mandated by its bye-laws prior to the term's

expiration. It is stated, in Vasavi Engineering College Parents

MANU/SC/0210/1969;

2023(5) ALD 221 (TS)

(1981) 1 SCC 722

(1990 AIR (AP) 171)

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Association's case, it is held one can conveniently classify under three

heads the grounds on which administrative action is subject to control

by judicial review. The first ground is illegality, the second irrationality

and the third procedural impropriety. TOA claims that Racket

Association is not an affiliated body; however, petitioner asserts that it

is indeed affiliated, having paid the required fee on 25.08.2023,

supported by a receipt. The TOA is accused of misleading the court and

violating natural justice by excluding representatives from the electoral

process. It is also stated, the 6th respondent, as Returning Officer,

issued order dated 28.05.2024 stating that petitioner was disqualified

due to completing two terms as General Secretary under Bye-Law

15.1.6. Petitioner disputes this claim, asserting that he never served as

General Secretary and that relevant orders have not been disclosed to

him. This misrepresentation is viewed as an attempt to mislead the

Court.

8. It is to be noted that connected writ petitions, namely, WP

Nos.12291, 13382, 13549, 13556, 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

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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.

9. 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

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

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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.

10. 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.

11. Learned Senior Counsel relied on Lakshmi Charan Sen v. AKM

Hassan Uzzaman 17, Union of India v. International Trading

Company 18, GhulamQadir v. Special Tribunal 19, PHR Invent

Educational Society v. UCO Bank 20, State of Orissa v. ram Chandra

Dev 21, Jaipur Vidyut Vitran Nigam Limited v. MB Power 22, All India

SC and ST Railway Employees Association v. E. Venkateshwarlu 23,

Gita Devi Aggarwal v. Commissioner of Income Tax 24.

12. 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-

(1985) 4 SCC 689

(2003) 5 SCC 437

(2002) 1 SCC 33

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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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.

13. 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.

14. 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.

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15. To elucidate on that aspect, it would be relevant to note that in

Ramana Dayaram Shetty v. The International Airport Authority of

India 25, 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 26, 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.

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.

1979 (3) SCC 489

AIR 1967 SC 1857

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16. 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

factors, in arriving at its decision on the basis of facts and

circumstances of each case.

17. 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

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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 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 27 as also on the broader view of Mathew, J., adopted by us."

18. 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

1975 (1) SCC 421

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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.

19. Further, the Hon' ble Supreme Court in Heavy Engineering

Mazdoor Union v. State of Bihar 28, held as follows:

"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."

AIR 1970 SC 82

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20. 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.

21. 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

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.

22. 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:

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"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."

23. 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. 29,

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 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."

24. The Hon' ble Division Bench of this Court in Mrs. Nirmala Kale

v. The Society of Trustees of Indigenous Churches 30, 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.

Writ Petition No.8696 of 2022 (High Court of A.P.)

Writ Appeal No.1551 of 2013 (Telangana High Court)

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25. 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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