Sports Law Material For Discussion - Mr. P.Bayola Kiran PDF

Damodaram Sanjivayya National Law University
Visakhaptnam
Cases for Discussion in the Classroom

Subject
Sports Law
Semester
X
Academic Year
2020-21
Name of the Faculty
Mr. POOSARLA BAYOLA KIRAN
Assistant Professor in Law
Sports Law DSNLU
SPORTS LAW
Tentative Course Outline
Name of the Faculty: Mr. P. Bayola Kiran
Semester: X Number of Hours: 60
Unit Topic No. of

Classes
1.  Concept of Sport 10
 Disputes, Conflicts in Sport
 Relationship of Law with Sport
o Law and Sport
o Lex Sportiva
o Sports Law?
 Sources of Sports Law
 International, Global, Regional, and Domestic
Sports Law
 E-Sports and Law
2. Sports Governance and Governing Bodies 13
 National Sports Development Code of India,
2011 (Code).
 Ministry of Youth Affairs and Sport
 National Sport Federations (NSFs)
 Right to Information
 Conflict of Interest
 Cases related to Commonwealth Games 2010
3. Participation in Sport and Issues of Law 12
 Selections – Challenges in Courts
 Olympic Quotas and Berths
 Gender determination
 Doping
o Substance
o Technology
 Match fixing, Spot fixing
 Dispute Resolution
4. Law and Policy relating to Sport Broadcasting 10
 Telecast, Broadcast, Live Stream
For Classroom Discussions |Strictly for Private Circulation

Sports Law DSNLU
 Copyright - Hot news doctrine

 Sharing with Prasar Bharthi –
5. Commercialisation of Sport – Issues and Challenges 15
of Law
 Interface with Competition Law
 Sport Leagues
 Sportsperson – Brand – Value – Endorsement –
Right of first Refusal in Contracts of
endorsement and representation
 Fantasy Sports
 Game of Skill vis-a-vis Game Skill – Legal in
Sikkim, Assam and recent orders by TG and AP
to ban online betting.
 Sports insurances - Career ending insurance -
Temporary disablement - Income protection
insurance - Sports federation liability insurance-
Event cancellation
 Public Private Partnership in Sports and Policy
related issues
LIST OF CASES:
 Percept D'Markr (India) Private Limited v Zaheer Khan and
Another, AIR 2006 SC 3426
 Essel Sports Private Limited (Indian Cricket League) and another v
Board of Control for Cricket in India and another, 2011 Indlaw DEL
723
 Akuate Internet Services Private Limited and othersv Star India
Private Limited and another, 2013 Indlaw DEL 3427
 World Sport Group (Mauritius) Limited v MSM Satellite (Singapore)
Private Limited, AIR 2014 SC 968
 Aparna Balan W/o Sandeep and another v Union of India and
others, 2018 Indlaw KER 4556

Sports Law DSNLU
 Omkar Nath Pajnu and others v J&k Cricket Association and others,
2017 Indlaw JK 809
 Sushil Kumar v Union of India and others, 2016 Indlaw DEL 3173
 All India Women's Hockey Federation v Indian Olympic Association
and Others,1994 Indlaw DEL 5
 All India Carrom Federation v Union of India and another, 2017
Indlaw DEL 1633
 Shubh Gulati and others v Union of India and others, 2014 Indlaw
DEL 2831
 Shyam Singh Yadav v National Rifle Association of India and others,
2012 Indlaw DEL 18
 Sportz and Live Entertainment Private Limited v Volleyball
Federation of India, 2018 Indlaw DEL 1685
 Rajasthan Wrestling Association v Registrar, Cooperative Society and
others, 2015 Indlaw RAJ 2262
 Rajiv Dutta v Union of India and others, 2016 Indlaw DEL 57
 Paralympic Committee of India v Naresh Kumar Sharma and
another, 2018 Indlaw DEL 1242
 Athletics Federation of India, through its Secretary, New Delhi v
Chitra P. U. D/o Unnikrishnan and others, 2017 Indlaw KER 1758
 Pondicherry State Badminton (Shuttle) Association, represented by
its President, Puducherry v Senior Superintendent of Police (L and
O), Puducherry and others, 2018 Indlaw MAD 2484
 Maharashtra Archery Association v Rahul Mehra and others, 2019
Indlaw SC 492
 Messrs Zee Telefilms Limited and Another v Union of India and
Others, AIR 2005 SC 2677
 Churchill Brothers Sports Club Private Limited v Union of India and

Sports Law DSNLU
 Cheteshwar Arvind Pujara v Union of India and others, 2018 Indlaw

MUM 1423
 Ajay Jadeja v Union of India and Others, 2001 Indlaw DEL 1777
 Department of Sports, Ministry of Youth Affairs and Sports, New
Delhi v Athletics Federation of India, New Delhi, 2018 Indlaw CCI
43
 Geeta Rani v PIO, Ministry of Youth Affairs and Sports, 2018
Indlaw CIC 193
 Ms J Varnish v British Cycling Federation v T/A British Cycling,
2020 WL 03980736
 Hemant Sharma and others v All India Chess Federation, through its
Secretary, Chennai, 2018 Indlaw CCI 45
 Indian Football Association, West Bengal and Another v Mohan
Bagan Athletic Club and Others, AIR 1988 CAL 217
 Joachim Carvalho v Union of India and others, 2012 Indlaw DEL
4256
 K. Bhaskaran and Others v Union of India and Others, AIR 1999
DEL 150
 K. Murugan v Fencing Association of India, Jabalpur and
Others,(1991) 2 SCC 412
 Master Sagar Prakash Chhabria v Board of Control For Cricket In
India, Through its Secretary, A Society Registered Under Societies,
Mumbai, 2015 Indlaw MUM 1606
 Rhiti Sports Management Private Limited v Power Play Sports and
Events Limited, 2018 Indlaw DEL 945
Articles and Book Chapters:

 Timothy Davis, What Is Sports Law?, 11 Marq. Sports L. Rev. 211
(2001) Available at:
http://scholarship.law.marquette.edu/sportslaw/vol11/iss2/7
Sports Law DSNLU
 “The Birth of EU Sports Law and Policy.” Sports Law and Policy
in the European Union, by Richard Parrish, Manchester University
Press, Manchester; New York, 2003, pp. 5–22. JSTOR,
www.jstor.org/stable/j.ctt155jc4s.5.
 Ryan Gauthier, Statehood and the Olympic Games, 114 AJIL
UNBOUND 380 (2020).
 Linda Sheryl Greene, Mirror, Mirror on the Wall - Gender,
Olympic Competition and Persistence of the Feminine Ideal, 31
Wis. J. L. GENDER, & Soc'y 57 (2016).
 Ian Blackshaw, Sport Today: Towards a Lex Sportiva, 1 J. fOR
Sports L. POL'y & GOVERNANCE 1 (2018).
 Kruthika N. S., ESports and Its Reinforcement of Gender Divides,
30 MARQ. Sports L. REV. 347 (2020).
 Saurabh Bhattacharjee, Private and Yet Public: The Schizophrenia
of Modern Sports and Judicial Review, 8 NUJS L. REV. 153
(2015).
 Michele Krech, To Be a Woman in the World of Sport: Global
Regulation of the Gender Binary in Elite Athletics, 35
BERKELEY J. INT'l L. 262 (2017).
 Seemantani Sharma, Online Piracy of Live Sports Telecasts in
India, 28 MARQ. Sports L. REV. 433 (2018).
 Aditya Sondhi, The Legal Status of BCCI: Unwarranted Ad-
Hocism, Constitutional Hudles and the Pressing Need for a
Cricket-Legislation, 22 NAT'l L. Sch. INDIA REV. 111 (2010).
 Luigi Santa Maria and Francesco Mazzocchi, 'Chapter 8:
Professional Sport and Competition', in Alberto Santa Maria (ed),
Competition and State Aid - An Analysis of the EU Practice
(Second Edition), International Competition Law Series, Volume

Sports Law DSNLU
63 (© Kluwer Law International; Kluwer Law International 2015)

pp. 297 – 314
 Oliver Budzinski and Stefan Szymanski, 'ARE RESTRICTIONS
OF COMPETITION BY SPORTS ASSOCIATIONS
HORIZONTAL OR VERTICAL IN NATURE?', in Damien
Geradin and Joseph Gregory Sidak (eds), Journal of Competition
Law & Economics, (© The Author(s); Oxford University Press
2015, Volume 11 Issue 2) pp. 409 – 429
 Erika Szyszczak, 'Competition and Sport: No Longer So Special?',
in Gianni de Stefano and Pablo Ibáñez Colomo (eds), Journal of
European Competition Law & Practice, (© The Author(s); Oxford
University Press 2018, Volume 9 Issue 3) pp. 188 – 196
 Mariusz Motyka-Mojkowski and Dennis Cukurov, 'Restrictions of
Sport Sponsorship from a Competition Law Perspective—Recent
Example from Germany', in Gianni de Stefano and Pablo Ibáñez
Colomo (eds), Journal of European Competition Law & Practice,
(© The Author(s); Oxford University Press 2019, Volume 10 Issue
10) pp. 631 – 637
 'Chapter 5. More Than a Game? The Specific Characteristics of
Sport and Its Societal Role', in Ben Van Rompuy , Economic
Efficiency: The Sole Concern of Modern Antitrust Policy? Non-
efficiency Considerations within Article 101 TFEU, International
Competition Law Series, Volume 51 (© Kluwer Law International;
Kluwer Law International 2012) pp. 283 – 360
 Ian Blackshaw, 'Chapter 8: Access to Justice in Sports Arbitration',
in Leonardo V. P. de Oliveira and Sara Hourani (eds), Access to
Justice in Arbitration: Concept, Context and Practice, (© Kluwer
Law International; Kluwer Law International 2020) pp. 147 – 166

Sports Law DSNLU
 'Chapter 10: Sports Arbitration', in Daniel Girsberger and Nathalie

Voser , International Arbitration: Comparative and Swiss
Perspectives (Third Edition), (© Kluwer Law International;
Schulthess Juristische Medien AG 2016) pp. 486 - 522
 PAPE, M., & PIELKE, R. (2019). SCIENCE, SPORT, SEX, and
the Case of Caster Semenya. Issues in Science and Technology,
36(1), 56-63. doi:10.2307/26949080
 James A. R. Nafziger. “International Sports Law as a Process for
Resolving Disputes.” The International and Comparative Law
Quarterly, vol. 45, no. 1, 1996, pp. 130–149. JSTOR,
www.jstor.org/stable/761071.
 GIBEAUT, JOHN. “A League of Their Own: The NFL Wants to
Run up the Score on Its Antitrust Exemption.” ABA Journal, vol.
96, no. 1, 2010, pp. 19–20. JSTOR,
 Ivy, V., & Conrad, A. (2018). Including Trans Women Athletes in
Competitive Sport: Analyzing the Science, Law, and Principles
and Policies of Fairness in Competition. Philosophical Topics,
46(2), 103-140. doi:10.2307/26927952
 Homer, Elizabeth Lohah. “THE DYNAMIC LEGAL
ENVIRONMENT OF DAILY FANTASY SPORTS.” American
Indian Law Review, vol. 41, no. 1, 2016, pp. 219–230. JSTOR,
 Hewitt, Melissa. “An Unbalanced Act: A Criticism of How the
Court of Arbitration for Sport Issues Unjustly Harsh Sanctions by
Attempting to Regulate Doping in Sport.” Indiana Journal of
Global Legal Studies, vol. 22, no. 2, 2015, pp. 769–787. JSTOR,
www.jstor.org/stable/10.2979/indjglolegstu.22.2.769.

DSNLU SPORTS LAW
 INDEX
S.No CASE NAME PAGE
NUMBER
1. Percept D'Markr (India) Private Limited v Zaheer Khan and Another, AIR 1
2006 SC 3426
2. Essel Sports Private Limited (Indian Cricket League) and another v Board 19
of Control for Cricket in India and another, 2011 Indlaw DEL 723
3. Akuate Internet Services Private Limited and others v Star India Private 46
Limited and another, 2013 Indlaw DEL 3427
4. World Sport Group (Mauritius) Limited v MSM Satellite (Singapore) 88
Private Limited, AIR 2014 SC 968
5. Aparna Balan W/o Sandeep and another v Union of India and others, 2018 104
Indlaw KER 4556
6. Omkar Nath Pajnu and others v J&k Cricket Association and others, 2017 109
Indlaw JK 809
7. Sushil Kumar v Union of India and others, 2016 Indlaw DEL 3173 121
8. All India Women's Hockey Federation v Indian Olympic Association and 134
Others,1994 Indlaw DEL 5
9. All India Carrom Federation v Union of India and another, 2017 Indlaw 139
DEL 1633
10. Shubh Gulati and others v Union of India and others, 2014 Indlaw DEL 141
2831
11. Shyam Singh Yadav v National Rifle Association of India and others, 2012 144
Indlaw DEL 18
12. Sportz and Live Entertainment Private Limited v Volleyball Federation of 151
India, 2018 Indlaw DEL 1685
13. Rajasthan Wrestling Association v Registrar, Cooperative Society and 159
others, 2015 Indlaw RAJ 2262
14. Rajiv Dutta v Union of India and others, 2016 Indlaw DEL 57 165
15. Paralympic Committee of India v Naresh Kumar Sharma and another, 168
2018 Indlaw DEL 1242
16. Athletics Federation of India, through its Secretary, New Delhi v Chitra P. 174
U. D/o Unnikrishnan and others, 2017 Indlaw KER 1758
17. Pondicherry State Badminton (Shuttle) Association, represented by its 180
President, Puducherry v Senior Superintendent of Police (L and O),
Puducherry and others, 2018 Indlaw MAD 2484
18. Maharashtra Archery Association v Rahul Mehra and others, 2019 Indlaw 187
SC 492
19. Messrs Zee Telefilms Limited and Another v Union of India and Others, 197
AIR 2005 SC 2677
For Classroom Discussion | Strictly for Private Circulation

DSNLU SPORTS LAW
20. Churchill Brothers Sports Club Private Limited v Union of India and 240
21. Cheteshwar Arvind Pujara v Union of India and others, 2018 Indlaw MUM 245
1423
22. Ajay Jadeja v Union of India and Others, 2001 Indlaw DEL 1777 248
23. Department of Sports, Ministry of Youth Affairs and Sports, New Delhi 271
v Athletics Federation of India, New Delhi, 2018 Indlaw CCI 43
24. Geeta Rani v PIO, Ministry of Youth Affairs and Sports, 2018 Indlaw CIC 281
193
25. Ms J Varnish v British Cycling Federation v T/A British Cycling, 2020 WL 282
03980736
26. Hemant Sharma and others v All India Chess Federation, through its 323
Secretary, Chennai, 2018 Indlaw CCI 45
27. Indian Football Association, West Bengal and Another v Mohan Bagan 350
Athletic Club and Others, AIR 1988 CAL 217
28. Joachim Carvalho v Union of India and others, 2012 Indlaw DEL 4256 357
29. K. Bhaskaran and Others v Union of India and Others, AIR 1999 DEL 364
150
30. K. Murugan v Fencing Association of India, Jabalpur and Others, (1991) 2 368
SCC 412
31. Master Sagar Prakash Chhabria v Board of Control For Cricket In India, 373
Through its Secretary, A Society Registered Under Societies, Mumbai, 2015
Indlaw MUM 1606
32. Rhiti Sports Management Private Limited v Power Play Sports and Events 384
Limited, 2018 Indlaw DEL 945
For Classroom Discussion | Strictly for Private Circulation

Sports Law - Material for Discussion in Class
Percept D'Markr (India) Private Limited 35 FACTS:
v 3. The appellant is a company incorporated

under the Companies Act, 1956 and carries on
Zaheer Khan and Another business, inter alia, of event management,
model and celebrity endorsement and
40 management, charity events/social marketing,
5 Case No :Appeal (civil) 5573-5574 of 2004 all entertainment related activities, sports
management and marketing, internet
Bench :AR. Lakshmanan, H.K. Sema
marketing, broadband publicity and radio
Citation :AIR 2006 SC 3426 marketing.
45 4. Respondent No.1 - Zaheer Khan is an

Indian citizen and a cricketer of international
The Judgment was delivered by: Dr. AR. repute. He had entered into an agreement
10 Lakshmanan, J. with the appellant. Respondent No.2 is a
company incorporated under the Companies
1. The above appeals were filed from the
50 Act, 1956. The appellant entered into the said
common final judgment and order dated
agreement with respondent No.1 on
19.12.2003 passed in Appeal No. 1109/2003
01.11.2000 for a period of 3 years
in Arbitration Petition No. 514/2003 and
commencing on 30.10.2000 and expiring on
15 Appeal No. 1110/2003 in Arbitration Petition
29.10.2003. By a letter of intent dated
No. 514/2003 by the Division Bench of the
55 29.07.2003, the appellant forwarded to
High Court of Judicature at Bombay whereby
respondent No.1 the draft terms for extension
the appeals filed by the appellant against the
of the said agreement for a further period of 5
order of the learned Single Judge were allowed
years. Respondent No.1 informed the
20 and the arbitration petition filed by the
representative of the appellant from time to
appellant herein before the Single Judge was
60 time that he does not intend to appoint any
dismissed.
agent for managing his different media affairs.
2. The central issue of importance in this Respondent No.1 informed the appellant on
appeal is whether the right of first refusal 10.09.2003 that he was not desirous of
25 u/cl. 31(b) of the permission agreement renewing and/or extending the terms of the
entered into between the appellant Percept D. 65 said agreement and the same would, therefore,
Markr (India) Pvt. Ltd. and the respondent terminate as of 20.10.2003. He further stated
No.1 Zaheer Khan is void u/s. 27 of the that the said letter provided for notice of non-
Indian Contract Act, 1872 has been in renewal. By the said letter, he informed the
30 restraint of trade. It was submitted by learned appellant of having received the letter of
senior counsel for the appellant - Mr. Ashok 70 intent and informed the appellant that he was
H. Desai that the provision such as the right not desirous of signing the same. By the said
of first refusal is merely regulatory and not in letter, he confirmed that the 3 agreements
restraint of trade. stated in the said letter were subsisting.
DSNLU | Strictly for private circulation 1

Respondent No.1 was further informed that 40 the appellant, respondent No.1 would be
as per the terms of the said agreement, prior required to re-offer the revised terms of the
to the execution of the first negotiation period third party offer. The appellant, by its letter
provided in Cl. 31(a), he could not accept any dated 27.10.2003, reiterated the same terms.
5 offer for endorsements, promotions, On 29.10.2003, the agreement expired by
advertising or other affiliation with regard to 45 efflux of time. The appellant, by its letter
any product or services and that prior to dated 10.11.2003 reiterated what was stated by
accepting any offer, he was under an it in its earlier letters with regard to the rights
obligation to provide the appellant in writing of the appellant and obligations of respondent
10 all the terms and conditions of such third No.1 in case respondent No.1 was desirous of
party and offer the appellant the right to 50 appointing any other person as his agent for
match such third party offer. Respondent, by rendering services similar to the services
his letter dated 23.09.2003, did not deny his rendered by the appellant under the said
representation to the fact and the effect that agreement.
15 he did not intend to appoint any agent for
managing his media affairs, however, clarified 6. Respondent No.1, by his letter dated
that he intended to perform the subsisting 55 18.11.2003, alleged that he had no obligation
agreement which had been entered into under the said agreement after 29.10.2003,
between the appellant and him and third save and except honouring the subsisting
20 parties which would continue beyond the agreement entered into by respondent No.1
terms of the said agreement. with third parties as specified in his letter
60 dated 10.09.2003 and the agreement entered
5. The appellant, by its letter, clarified its into with Adidas Limited which was
position as regards its contention in negotiated prior to the expiry of the said
paragraphs 3 and 4 of letter dated 15.09.2003 agreement. In the said letter for the first time,
25 and further reiterated that if respondent No.1 after the said agreement had expired by efflux
was at any time during or after the term of the 65 of time, respondent No.1 alleged that the said
said agreement desirous of appointing any agreement was allegedly one-sided and an
other person as his agent for rendering unfair arrangement. It is pertinent to note that
services similar to the services rendered by the during the entire period of the said agreement,
30 appellants under the said agreement, respondent No.1 had not alleged to the
respondent No.1 was first required to offer 70 appellant that the terms of the said agreement
the appellant the right to match the third party was either one- sided or unfair. The appellant
offer only in the event the appellant does not states that the same was clearly an after-
exercise its right to accept respondent No.1's thought.
35 offer on the same terms and conditions as the
third party offer. It was further stated that if 7. The appellant, for the first time, became
the terms offered by the third party materially 75 aware on 01.12.2003 from some sources and
changed in favour of such third party after the from the website of respondent No.2 that
same had been offered by respondent No.1 to respondent No.1 has entered into an
agreement with respondent No.2 for services

similar to the services rendered by the 40 before the High Court any other contract that
appellant under the said agreement. he may enter into with any third party within a
Respondent No.1 has not denied the fact that period of 4 weeks from 19.12.2003; and (iii) to
he negotiated with third parties, including place on record the account/s of four weeks
5 respondent No.2 prior to expiry of the under such contracts in a sealed cover.
agreement without discharging his obligation
45 10. Aggrieved by the above order, two special
to intimate the appellant of such offer.
leave petitions were filed by the appellant in
8. On 04.12.2003, the appellant filed an this Court. This Court stayed the impugned
Arbitration Petition No. 514/2003 in the order until further orders. On 27.08.2004,
10 High Court u/s. 9 of the Arbitration and leave was granted.
Conciliation Act, 1996 praying, inter alia, for
50 11. We heard Mr. Ashok H. Desai, learned
an interim order that pending the
commencement of and during the arbitration senior counsel, appearing for the appellant
proceedings and the making of the award and Mr. Chanderuday Singh, learned senior
15 therein and the implementation thereof, counsel, appearing for respondent No.1 and
respondent No.1 be restrained by an interim Mr. K.N. Bhat, learned senior counsel,
order and injunction from entering into any 55 appearing for respondent No.2.
agreement/arrangement or acting upon or 12. Mr. Ashok H. Desai, learned senior
continuing to act upon any counsel, appearing for the appellant submitted
20 agreement/contract with respondent No.2 or that the High Court has failed to appreciate
any third party without first performing and the true legal meaning and effect of S. 27 of
complying with respondent No.1's obligations 60 the Indian Contract Act, 1872. He submitted
under and in terms of Cl. 31(b) of the that an agreement of 'first option' or the 'right
agreement. Learned Single Judge of the High of first refusal' of the kind contained in the
25 Court granted ad-interim relief in terms of Promotion Agreement dated 01.11.2000
prayer Cl. (a) of the petition. Respondent entered between the appellant and respondent
Nos.1 and 2 preferred separate appeals against 65 No.1 can never be said to be an agreement in
the order of the learned Single Judge praying, restraint of trade. Explaining further, he said
inter alia, for a stay therein. that the contract of 'first refusal' on the
30 9. The Division Bench allowed the appeals ground of option in favour of the appellant is
and dismissed the arbitration petition filed by not an independent agreement to promote
the appellant on 19.12.2003. The High Court, 70 trade and not an agreement in restraint of
by the said order, directed respondent No.1 (i) trade. He would submit that the High Court
to place before the High Court in a sealed was not justified in rejecting the contention of
35 cover the copy of the agreement entered into the appellant that the obligation of respondent
by respondent No.1 with respondent No.2 No.1 in Cl. 31 (b) of the agreement survives
and/or any other third party immediately and 75 the term of the said agreement. It was also
was further directed to place up to date submitted that the High Court is not correct
accounts under the said contract/s (ii) to place and justified in coming to the conclusion that

the agreement is a contract of service. 40 Promotion Agreement entered into between

Likewise, the High Court was not justified in the parties and the benefit obtained by
coming to the conclusion that the covenant respondent No.1 as well as the appellant. The
contained in Cl. 31(b) of the said agreement Promotion Agreement dated 01.11.2000 is a
5 was applicable only during the period of class of contracts, common in the industry,
contract and not thereafter. 45 that may be termed as 'celebrity contracts'.
While arguing the case, Mr. Desai highlighted
13. The High Court was also not justified in certain provisions of the agreement which are
rejecting the appellant's contention that the as follows:
derogation contained in Cl. 31(b) of the
10 agreement is not in restraint of trade but 15. - Under the Agreement, the appellant was
effectively in furtherance of trade and, 50 appointed as the sole and exclusive agent to
therefore, not void u/s. 27 of the Contract manage and market the affairs of respondent.
Act. According to Mr. Desai, the covenant in
Cl. 31(b) of the agreement was an obligation 16. - In consideration for this appointment,
15 which was to operate after the close of respondent no. 1 was guaranteed a minimum
business hours on 29.10.2003. There is also amount of Rs. 55 lakhs per year. In reality, he
no contention on behalf of respondent No.1 55 was able to obtain Rs. 1 crore per year.
that the agreement was unconscionable or 17. - Such a celebrity contract involves
excessively harsh or unreasonable or one considerable risk to the agent (in this case, the
20 sided. It was submitted that the covenant appellant) who has to guarantee a large
contained in Cl. 31(b) did not restrict amount and to invest considerable amounts of
respondent No.1 from accepting any offer for 60 money at a substantial risk in creating and
his endorsements, promotions, advertisements promoting a particular person as a brand. The
or other services on his own and thus did not reciprocal promise obtained from the
25 restrict respondent No.1's liberty to carry on opposite party (in this case, respondent no.1)
his affairs in the manner he liked. The finding is in the form of a right of first refusal.
and the conclusion of the High Court that the
covenant contained in Cl. 31(b) of the 65 18. - The Agreement provided for an initial
agreement curtailed respondent No.1 to term of three years (from 30.10.2000 to
30 accept any offer for his endorsement, 29.10.2003) and extension thereof for such
promotion etc. by dealing with any person on further period as may be mutually agreed.
his own. Under the covenant contained in Cl.
19. - The extension was contemplated, inter
31(b), the appellant did not match the third
70 alia, pursuant to the terms of Cl. 31 of the
party offer within ten days of receiving such
Agreement pursuant to which Respondent no.
35 offer from such third party, respondent No.1
1 was to negotiate on an exclusive basis with
had the liberty to enter into an agreement with
the appellant for a prescribed period.
such third party.
20. - Thereafter, Cl. 31(b) contained a right of
14. According to Mr. Desai, the facts in this
75 first refusal clause pursuant to which the
case clearly disclose the nature of the

appellant was to be given an opportunity to 34. According to Mr. Desai, it is clear from
match any third party offer made to the above details that contrary to his
Respondent No. 1 before Respondent No. 1 40 commitment and without giving the appellant
was permitted to enter into the third party a right of first refusal as required by Cl. 31(b),
5 agreement. If the appellant failed to match the respondent No.1 appeared to have entered
third party offer, Respondent no. 1 was free into an agreement with respondent No.2 on
to enter into a contract with the third party. If 20.11.2003 for managing his media affairs. In
the appellant matched the offer, Respondent 45 such circumstances, on 01.12.2003, the
no.1 suffered no detriment. In either case, it appellant filed an application u/s. 9 of the
10 cannot be said that Respondent no.1 was Arbitration and Conciliation Act, 1996
restrained in any manner and more praying that respondent No.1 be injuncted
importantly, the right of first refusal clause from entering into any such agreement or
has no detrimental impact on respondent 50 from acting in furtherance of it. Thus, the
No.1 - Zaheer Khan whatsoever. It is relief claimed in S. 9 proceedings was only
15 submitted that such right of first refusal against respondent No.1.
provision is customary in agreements of this
nature. 35. The learned Single Judge of the Bombay
High Court granted the interim relief in terms
21. - The Agreement contains an arbitration 55 of prayer (a). The appeal filed by the
clause to refer disputes to arbitration. respondent was allowed and the learned
Division Bench found Cl. 31(b) to be void
20 22. - It is the undisputed position that both
u/s. 27 of the Indian Contract Act, 1872.
parties performed their respective obligations
under the Agreement and that Respondent 36. Mr. Desai then argued the scope and
no. 1 therefore benefited financially for the 3 60 effect of S. 27 of the Indian Contract Act,
years that the Agreement was in force. After 1872.
25 gaining such benefit over a three year period,
Respondent No. 1 now challenges the validity 37. According to him, S. 27 deals with
of cl. 31(b) which is an integral part of the restraint of trade and not with promotion or
bargain and mutual rights and obligations of regulation of trade. The language of the
the parties to the Promotion Agreement in the 65 section makes this abundantly clear and the
30 following circumstances.
development of the case law in India also
supports this. In support of this contention,
23. Mr. Desai also furnished a brief list of he relied on V.N. Deshpande vs. Arvind Mills,
dates which, according to him, will restrict the AIR 1964 Bombay 423 1945 Indlaw MUM 18.
contract of respondent No.1 in attempting
not to honour his obligation under the 70 38. In the said case, the High Court of
35 agreement to provide the appellant with a
Bombay was considering a clause relating to
right to match any third party offer confidentiality of information and stated as
follows:-
……

"Cl. 9 of the agreement prevents the appellant from 35 Brandeis, J in Board of Trade vs. United
divulging any secret information of the nature States (62 L Ed 231).
mentioned in that clause after the termination of his
service. As pointed out in (1916) 1 AC 688 the 41. In Gujarat Bottling Co. Ltd. Vs. Coca
5 defendant is not prevented from acquiring knowledge Cola Co. (1995) 5 SCC 545 1995 Indlaw SC
which makes him a better employee for the 1001, this Court cited with approval the
40 decision of the House of Lords in Esso
public for future employment. It only prevents him Petroleum Co. Ltd. Vs. Harper's Garage
from divulging information which he has received as (Stourport) Ltd. (1967) 1 All ER 699 as
respondents' employee to another party. It is, therefore, follows:
10 clear that the clause as
"29. These observations indicate that a stipulation in
worded is proper and an 45 a contract which is intended for advancement of trade
shall not be regarded as being in restraint of trade. In
injunction granted in terms thereof is not unreasonable Esso Petroleum Co. Ltd. the question whether the
or wider latitude agreement under consideration was a mere agreement
than justified in law." for the promotion of trade and not an agreement in
50 restraint of it, was answered thus by Lord Pearce :
15 (emphasis added)
Somewhere there must be a line between those contracts
39. The decision in Deshpande's case1945 which are in restraint of trade and whose
Indlaw MUM 18 (supra) was affirmed in reasonableness can, therefore, be considered by the
Niranjan Shankar Golikari vs. Century courts, and those contracts which merely regulate the
Spinning and Manufacturing Co. Ltd. (1967) 2 55 normal commercial relations between the parties and
20 SCR 378 1967 Indlaw SC 383. Arguing further are, therefore, free from doctrine."
learned senior counsel submitted that all
negative covenants are not in restraint of 42. In the same case, Lord Wilberforce has
trade. This is true even though the negative observed :
covenant may have an impact at a stage after "It is not to be supposed, or encouraged, that a bare
25 the term of the contract. 60 allegation that a contract limits a trader's freedom of
Thus, for example, a requirement of action exposes a party suing on it to the burden of
maintaining confidential information after the justification. There will always be certain general
period of employment is not void although it categories of contracts as to which it can be said, with
may be subject to the qualification that an some degree of certainty, that the 'doctrine' does or does
30 employee has a right to improve himself. 65 not apply to them. Positively, there are likely to be
certain sensitive areas as to which the law will require
40. The same principle was reiterated in in every case the test of reasonableness to be passed:
Mahindra & Mahindra Limited vs. Union of such an area has long been and still is that of contracts
India, (1979) 2 SCC 529 1979 Indlaw SC 155 between employer and employee as regards the period
which cited with approval the decision of 70 after the employment has ceased. Negatively, and it is
this that concerns us here, there will be types of contract

as to which the law should be prepared to say with 45. Alternatively, he submitted that in the
some confidence that they do not enter into the field of event that the provision is construed as
restraint of trade at all. 40 operating beyond the period of the contract,
the test of reasonableness applies. This is the
How, then, can such contracts be defined or at least position arising from Niranjan Golikari 1967
5 identified? No exhaustive test can be stated - probably Indlaw SC 383 (supra) as although that case
no precise, non-exhaustive test. The development of the may have dealt with a restraint during the
law does seem to show, however, that judges have been 45 period of the contract, it applied the test of
able to dispense from the necessity of justification under reasonableness in holding that the restraint
a public policy test of reasonableness such contracts or would be void only if it was unconscionable
10 provisions of contracts as, under contemporary
or excessively harsh or unreasonable or one-
conditions, may be found to have passed into the sided. (Emphasis added)
accepted and normal currency of commercial or
contractual or conveyancing relations." 50 46. The test of reasonableness is, therefore, a
part of the analysis of whether there is a
43. In the context of the franchise agreements restraint of trade. While referring to the
15 before this Court in Gujarat Bottling 1995
reliance placed on observations in the
Indlaw SC 1001, this Court concluded: judgment of Justice A.P.Sen in
"30. There is a growing trend to regulate distribution 55 Superintendence Company of India vs.
of goods and services through franchise agreements Krishan Murgai, 1981 (2) SCC 246 1980
providing for grant of franchise by the franchiser on Indlaw SC 302 by respondent No.1, Mr. Desai
20 certain terms and conditions to the franchisee. Such submitted that the observations of Justice
agreements of often incorporate a condition that the A.P. Sen are not a part of ratio decidendi of
franchisee shall not deal with competing goods. Such a 60 the decision but are a minority view (although
condition restricting the right of the franchisee to deal it was a concurring view). According to him,
with competing goods is for facilitating the distribution this is clear as the majority expressly stated
25 of the goods of the franchiser and it cannot be regarded that they were not expressing a view on that
as in restraint of trade." issue and decide the appeal on other grounds
65 and the judgment of Justice Sen also records
44. Mr. Desai further submitted that even this.
assuming for the sake of argument that the
proviso is regarded as in restraint of trade, it 47. It is further seen that the decision of
30 operates within the term of the contract. This A.P.Sen, J. was not affirmed in Gujarat
is because it is clear that the intention of the Bottling Co. Ltd. 1995 Indlaw SC 1001
parties was that there would be an initial term 70 (supra). In fact, the Court exactly stated to the
that would be extended on mutual agreement contrary
on the terms set forth in the Promotion "24. We do not propose to go into the question
35 Agreement. The words "initial term" means whether reasonableness of restraint is outside the
that the full term contemplated is beyond the purview of S. 27 of the Contract Act and for the
initial term. 75 purpose of the present case we will proceed on the basis

that an enquiry into reasonableness of the restraint is (i) for the appointment of a guardian for a minor or a
not envisaged by S. 27." person of unsound mind for the purposes of arbitral
proceedings; or
48. That in the facts and circumstances, Mr.
Desai submitted that Cl. 31(b) is reasonable as 40 (ii) for an interim measure of protection in respect of
5 it is on the basis of the right of first refusal any of the following matters, namely:-
clause that the appellant can take the risk on a
relatively less well-known player and (a) the preservation, interim custody or sale of any
compensate him so well. While in determining goods which are the subject-matter of the arbitration
reasonableness, Courts take a stricter view of agreement;
10 employer-employee relationship, but this, 45 (b) securing the amount in dispute in the arbitration;
according to him, is admittedly not that.
According to him, this is an agency and as (c) the detention, preservation or inspection of any
argued, it is not clear which side has the property or thing which is the subject-matter of the
stronger bargaining power. dispute in arbitration, or as to which any question
may arise therein and authorising for any of the
15 49. Learned counsel for respondent No.2 50 aforesaid purposes any person to enter upon any land
submitted that no relief can be claimed against or building in the possession of any party, or
it in application u/s. 9 of the Arbitration and authorising any samples to be taken or any
Conciliation Act, 1996. Such a submission, observation to be made, or experiment to be tried,
according to Mr. Desai, fails to appreciate the which may be necessary or expedient for the purpose of
20 prayer made by the appellant in S. 9 55 obtaining full information or evidence;
application wherein relief was claimed only
against respondent No.1 as could be seen (d) interim injunction or the appointment of a receiver;
from the prayers in S. 9 application. In fact, at
(e) such other interim measure of protection as may
the time the S. 9 was applied, the appellant
appear to the Court to be just and convenient, and the
25 had only reason to believe but could
Court shall have the same power for making orders as
definitively assert that respondent No.1 had
60 it has for the p purpose of, and in relation to, any
entered into a contract with respondent No.2.
proceedings before it."
50. According to Mr. Desai, a relief can be
51. Explaining further, Mr. Desai, submitted
granted even against a third party u/s. 9 of the
that the language of S. 9 states that the
30 Arbitration and Conciliation Act, 1996 which
application has to be made by a party to the
provides as follows:-
65 arbitration agreement but not that the relief
"9. Interim measures, etc. by Court.- A party may, would be confined only against a party. For
before or during arbitral proceedings or at any time instance, preservation or custody of goods or
after the making of the arbitral award but before it is appointment of a receiver may involve a third
35 enforced in accordance with Section 36, apply to a party as well, along with the party to the
Court- 70 arbitration agreement. In the present case, the
application is made by a party to the
arbitration agreement against another party to
the arbitration agreement, and a third party 40 54. Learned senior counsel for respondent
may be affected by the application. This is the No.1 submitted that the agreement may not
very principle underlying S. 9 otherwise, the be specifically enforced u/s. 14 of the Specific
purpose and intent of interim relief Relief Act, 1963 and accordingly, u/s. 41(e),
5 contemplated u/s. 9 cannot be frustrated. no injunction could be granted as prayed for
45 by the appellant. According to Mr. Desai, this
52. Learned counsel for respondent No.1 submission loses sight of S. 42 of the Act
submitted that the failure of the appellant to which provides that a Court may grant an
commence arbitral proceedings since the date injunction to perform a negative covenant
of the impugned order was fatal to its S. 9 even where specific performance of the
10 application. According to Mr. Desai, the
50 affirmative covenant may not be enforced. S.
appellant in fact, in this case, has acted with 42 provides as follows:-
utmost expedition. The appellant upon
becoming aware of the fact that respondent "42. Injunction to perform negative agreement.-
No.1 had acted in breach of its obligation Notwithstanding anything contained in cl. (e) of
15 under the Promotion Agreement filed S. 9 Section 41, where a contract comprises an affirmative
application on 04.12.2003 and the Single 55 agreement to do a certain act, coupled with a negative
Judge granted interim relief on 10.12.2003 agreement, express or implied, not to do a certain act,
which decision was reversed by the Division the circumstances that the court is unable to compel
Bench on 19.12.2003 and the appellants specific performance of the affirmative agreement shall
20 promptly approached this Court. not preclude it from granting an in junction to perform
60 the negative agreement:
53. The fact that the appellants have not yet
commenced arbitral proceedings is solely on Provided that the plaintiff has not failed to perform the
account of the fact that the Division Bench, in contract so far as it is binding on him."
the impugned order, has held Cl. 31(b) to be
25 void u/s. 27 of the Contract Act. Since the 55. Learned senior counsel for respondent
claim of the appellant is based on only Cl. No.1, Mr. Chanderuday Singh, per contra,
65 submitted that since the present appeal
31(b), it would be a futile exercise for the
appellant to commence arbitration. Learned challenges an interim order, and no interim
senior counsel for respondent No.1 submitted relief having been granted in favour of the
30 that the impugned judgment of the Division appellant during the past 2= years, during
Bench that Cl. 31(b) is void under the Indian which the contract between respondent No.1
Contract Act is only a prima facie finding at 70 and respondent No.2 has been in operation
an interim stage. Such a submission, according and indeed is soon to be completed, there is
to Mr. Desai, is only to be stated to be no cause for interference at this late stage by
35 rejected. The judgment of the Division Bench this Court. In the light of the intervening
is a determination on a point of law and is a events, sufficient protection for the appellant
final and binding decision, even if such 75 will be given if this Court were to clarify (i)
determination is in proceedings arising out of that all observations and findings of the High
S. 9 application. Court were for the limited purpose of

deciding an interlocutory application, and for being forced to enter into a contract with a party he
hence will not bind parties at trial; (ii) that all did not desire to deal with, if the trial results in
contentions raised by all parties are expressly 40 rejection of Percept's claim."
kept open; and (iii) that the interim protection
5 in paragraph 17 of the High Court's order will 57. It was further contended that the
continue till the conclusion of the contract appellant's failure to even invoke arbitration
dated 20.11.2003. between 04.12.2003 and 02.03.2006 is fatal to
their claim for an injunction u/s. 9 of the
56. He would further submit that the term of 45 Arbitration and Conciliation Act, 1996. In any
the contract was expressly limited to 3 years event, the entire petition u/s. 9 was not
10 from 30.10.2000 to 29.10.2003, unless maintainable, as the agreement dated
extended by mutual agreement and all 20.11.2003 was already entered into and in
obligations and services under the contract force from 01.12.2003 when the petition was
were to be performed during the term. It was 50 filed, and this agreement constituted the cause
further submitted that assuming without of action for the appellant. This agreement
15 admitting that the negative covenant in Cl. being with a third party who is outside the
31(b) is not void and is enforceable, it was scope of the arbitration agreement in Cl. 31(g)
nevertheless inappropriate, if not of the present contract, S. 9 could not be
impermissible, for the Single Judge to grant an 55 invoked.
injunction to enforce it at the interim stage,
20 for the following reasons:-
58. It was further contended that the learned
Single Judge's entire judgment was based on a
"(i) Firstly, grant of this injunction resulted in new case made out by the learned Judge
compelling specific performance of a contract of which was contrary to the pleadings or neither
personal, confidential and fiduciary service, which is 60 pleaded nor urged by the appellant before
barred by Cls. (b) and (d) of S. 14(1) of the Specific him. Learned Division Bench has noted this
25 Relief Act, 1963; by analysing the Single Judge's judgment in
detail, and has naturally found such exercise to
(ii) Secondly, it is not only barred by Cl. (a) of S. be impermissible, especially in the context of
14(1) of the Specific Relief Act, but this Court has 65 an interlocutory application u/s. 9 of the
consistently held that there shall be no specific Arbitration and Conciliation Act, 1996. The
performance of contracts for personal services; Division Bench has traced and analysed the
30 (iii) Thirdly, this amounted to granting the whole or settled law on post-contractual covenants, has
entire relief which may be claimed at the conclusion of examined in detail the scope and effect of Cl.
trial, which is impermissible; 70 31(b), and has found it to be a patent restraint
of trade, and, therefore, void under S. 27.
(iv) Fourthly, the Single Judge's order completely With respect, this detailed and well-reasoned
overlooked the principles of balance of convenience and judgment ought not to be interfered with by
35 irreparable injury. Whereas Percept could be fully this Court, especially since the entire matter is
compensated in monetary terms if they finally succeeded 75 at the interim stage, and there has been no
at trial, respondent No.1 could never be compensated stay of the new contract in the interregnum.

59. Mr. K.N. Bhat, learned senior counsel for 40 expiry of the contract is further demonstrated
respondent No.2, submitted that u/s. 41(e) of by the submissions contained in paragraph 9
the Specific Relief Act, 1963 an injunction of the petition. In light of the above, the
cannot be granted to prevent a breach of a Courts were required to consider whether the
5 contract, the performance of which cannot be negative covenant contained in Cl. 31(b)
specifically enforced. According to him, the 45 which was admittedly to operate after the
said Section would apply to both temporary expiry of the contract, was in restraint of trade
injunction as well as permanent injunction. In and, therefore, violative of S. 27 of the Indian
any view of the matter, it is not possible, in Contract Act. Learned Single Judge for the
10 the present case, to sustain the injunction reasons recorded in his order granted an
granted by the learned Single Judge and the 50 injunction. The Division Bench held that the
Division Bench was clearly right in allowing doctrine of restraint of trade does not apply
the respondents appeal. By petition No. during the continuance of a contract of
514/2003, the appellant sought an interim employment and it applies only when the
15 order restraining the first respondent from contract comes to an end. Accordingly, a
entering into an agreement/arrangement or 55 restrictive covenant will apply during the
acting upon or continuing to act upon any period of the contract but will be hit by S. 27
agreement/contract with the second of the Indian Contract Act and be void, after
respondent or any third party without first the contract is ended. Concluding his
20 performing and complying with the first argument, learned counsel submitted that the
respondent's obligation under and in terms of 60 Division Bench correctly held that Cl. 31(b) of
Cl. 31(b) of the contract. In the the contract was not merely a clause of first
correspondence addressed by the appellant, in refusal but was in restraint of trade.
particular, the letters dated 15.09.2003,
25 06.10.2003, 27.10.2003 and 10.11.2003 were 61. The Division Bench also correctly held
annexed as Exhibits respectively to the that in view of the fact that the latter part of
65 the covenant under Cl. 31(b) was not
petition.
enforceable, it was not necessary for it to deal
60. The appellant repeatedly contended that with this respondent's further contention that
the first respondent was bound at any time the appellant's petition No. 514/2003 u/s. 9
30 during or after the term of the said contract to of the Act was not maintainable against
provide the appellant, in writing, of the terms 70 second respondent who was not a party of the
and conditions of any third party offer so that contract. We have carefully considered the
the appellant would have the right to match lengthy submissions made by all the counsel
the third party offer received by the first appearing for the respective parties. We have
35 respondent prior to the first respondent also gone through the pleadings, annexures
accepting any such offer. The appellant's 75 and the judgments rendered by the learned
interpretation/understanding of Cl. 31(b) of Single Judge and of the Division Bench and
the contract that the negative covenant other relevant connected records.
contained in Cl. 31(b) will operate after the

62. The present appeal challenges the 40 1967 Indlaw SC 383 (supra), Superintendence
interlocutory order of the High Court in Company of India 1980 Indlaw SC 302
which the Division Bench has itself made it (supra) and Gujarat Bottling 1995 Indlaw SC
clear that it is recording only a prima facie 1001 (supra). Even if there were a case for
5 finding that Cl. 31(b) of the agreement is void reconsideration of this 132-year old
u/s. 27 of the Indian Contract Act, 1872. 45 interpretation, though none is made out by
the appellant, such an exercise ought not to be
63. It is pertinent to notice that ever since the undertaken in the present interlocutory
rejection of the said interlocutory application proceedings.
on 19.12.2003, there has been no injunction in
10 operation and this Court while granting leave 65. We have perused the judgment of the
to appeal also declined to grant any stay of the 50 Division Bench which is a detailed and well-
Division Bench's order or restoration of the reasoned judgment which more than
Single Judge's order. Consequently, during the adequately deals with the issues for the limited
past 2= years, the contract dated 22.11.2003 purposes of interim reliefs u/s. 9 of the
15 between respondent No.1 and respondent Arbitration and Conciliation Act.
No.2 has been in operation and, indeed, is
soon to be completed. The appellant is now 55 66. According to learned senior counsel for
seeking a mandatory interim order 2= years the respondents, the appellant has no
down the line, praying in effect that this Court intention of invoking or pursuing arbitration
20 should set the clock back and grant an interim
proceedings. In this context, the judgment
injunction which was rejected by the High relied on by learned counsel for the first
Court on 19.12.2003 and which was declined 60 respondent in Firm Ashok Traders vs.
at the stage of granting leave to appeal by this Gurumukh Das Saluja, (2004) 3 SCC 155
Court. 2004 Indlaw SC 13 may be referred. The said
judgment says that commencement of
25 64. Most importantly, the appellants are arbitration proceedings is not dependent on
seeking at the interlocutory stage to question 65 the grant or refusal of interim reliefs, and that
the interpretation of restraint of trade during if arbitral proceedings are not commenced
the post-contractual period, which post haste after making an application under
interpretation has been uniform, consistent Section 9, such interlocutory proceedings
30 and unchanged for the past several years since would cease to be maintainable.
the judgment of Sir RichardCouch, C.J. in
Madhup Chunder vs. Rajcoomar Doss, (1874) 70 67. Respondent No.1, who was then the best
14 Beng. L.R. 76. The interpretation of S. 27 fast bowler in the Indian Cricket Team and a
of the Contract Act which found prima facie rising star in the international world of cricket,
35 favour with the Division Bench is one which entered into a Promotion Agreement dated
has been uniformly and consistently followed 1st November, 2000 ('the agreement') with the
from 1874 till 2006 by all High Courts in 75 appellant whereunder the appellant was to act
India, and which has expressly been approved as the sole and exclusive agent to manage,
by this Court in Niranjan Shankar Golikari market, render various consulting services,

negotiate for, execute contracts on behalf of, 71. The express case pleaded in the petition
render tax and other advice to, and generally 40 u/s. 9 was that (i) the agreement was for a
manage diverse media affairs, endorsements, term of 3 years from October 30, 2000 till
advertising and the like for respondent No.1, October 29, 2003; (ii) the agreement came to
5 during the term of the agreement. an end by efflux of time on October 29, 2003;
(iii) the petitioner (appellant herein) had learnt
68. The term of the said agreement was for a 45 and confirmed that respondent No.1 and
period of three years commencing on October respondent No.2 had entered into an
30, 2000 and ending on October 29, 2003, agreement ; Cl. 31 of the agreement survives
unless extended by mutual consent of the the expiry of the agreement; the agreement
10 appellant and respondent No.1. The term of
contained a negative covenant which was valid
the contract came to an end on October 29, 50 and binding after its expiry; and the
2003, as expressly stated by the appellant in subsequent agreement entered into between
the Arbitration Petition. respondent No.1 and respondent No.2 was
69. Respondent No.1, thereafter, entered into null and void.
15 an agreement dated November 22, 2003 with
72. According to the respondent, there is no
respondent No.2, whereby respondent No.2 55 pleading whatsoever to support the argument
became the agent for managing all media that respondent No.1 was a fledgeling or was
affairs of respondent No.1 with effect from yet to develop into a celebrity at the time the
December 1, 2003. agreement was entered into, or that the
20 70. The appellant filed a petition u/s. 9 of the appellant took any risk whatsoever in entering
Arbitration and Conciliation Act, 1996 for 60 into the agreement and agreeing to procure
enforcement of the agreement after its expiry, endorsements/advertising to ensure the
and contended that such enforcement of the minimum guaranteed amount. There is no
expired agreement should be granted pending pleading whatsoever that the actual
25 commencement and conclusion of arbitration endorsements/advertising fees secured were
proceedings by the appellant. The cause of 65 worth more than the minimum guaranteed
action for filing the petition was the amounts, or that they totalled Rs.1 crore per
concluded agreement between respondent year as is sought to be argued. There is no
Nos. 1 and 2. An injunction was sought pleading whatsoever to suggest that the
30 seeking to restrain respondent No.1 from appellant was responsible for building up the
entering into any agreement/arrangement or 70 reputation or saleability of respondent No.1,
acting upon or continuing to act upon any or that the success of respondent No.1 as a
agreement/contract with respondent No.2 or cricketer was in any manner contributed to or
any third party without first performing and enhanced by the appellant. There is no
35 complying with cl. 31(b) of the said pleading relating to "celebrity contracts", nor
agreement. 75 anything to suggest that the right of first
refusal is a normal or common form of
PLEADINGS IN THE ARBITRATION contract in agency contracts relating to
PETITION
personal services or promotional services, nor 76. The legal position with regard to post-
indeed even a whisper to the effect that such a contractual covenants or restrictions has been
clause is necessary for the regulation or 40 consistent, unchanging and completely settled
promotion of trace. There is no pleading in our country. The legal position clearly
5 whatsoever to the effect that Cl. 31(b) was a crystallised in our country is that while
reciprocal promise obtained by the appellant construing the provisions of S. 27 of the
to offset the alleged (but unpleaded) Contract Act, neither the test of
investments and risks undertaken by the 45 reasonableness nor the principle of restraint
appellant. There is no allegation of mala fide being partial is applicable, unless it falls within
10 conduct. The appellant, on the other hand, express exception engrafted in S. 27.
proceeds entirely on submissions relating to
the alleged enforceability of a negative 77. S. 27 of the Indian Contract Act, 1872
covenant after the expiry of the agreement. provides as follows:-
73. We have already perused the judgment of 50 "27. Agreement in restraint of trade, void.- Every
15 the learned Single Judge and of the learned
agreement by which any one is restrained from
Division Bench of the High Court. exercising a lawful profession, trade or business of any
kind is to that extent void.
74. On the pleadings contained in the
Arbitration Petition, there can be no escape Exception 1.- Saving of agreement is not to carry on
from the conclusion that what the appellant 55 business of which goodwill is sold.- One who sells the
20 sought to enforce was a negative covenant
goodwill of a business may agree with the buyer to
which, according to the appellant, survived refrain from carrying on a similar business, within
the expiry of the agreement. This, the High specified local limits, so long as the buyer, or any
Court has rightly held is impermissible as such person deriving title to the goodwill from him, carries
a clause which is sought to be enforced after 60 on a like business therein, provided that such limits
25 the term of the contract is prima facie void appear to the Court reasonable, regard being had to
u/s. 27 of the Contract Act. the nature of the business."
75. It was contended by learned senior 78. We have perused the relevant portions of
counsel for the appellant that Cl. 31(b) is not Niranjan Shankar Golikari 1967 Indlaw SC
prima facie void as (i) it allegedly does not 65 383 (supra), Superintendence Company of
30 travel beyond the term because it is an India 1980 Indlaw SC 302 (supra) and Gujarat
independent contract; (ii) the term of Bottling 1995 Indlaw SC 1001 (supra) which
agreement was itself extendable and never have been extracted by the learned Judges of
came to an end; (iii) the words "initial term" the Division Bench and quoted in extenso. In
denote that Cl. 31(b) itself resulted in an 70 the circumstances, there can be no manner of
35 automatic extension of the term; and (iv) the
doubt that the Division Bench was right in
"full term" contemplated was beyond the coming to the prima facie conclusion drawn
"initial term" of 3 years. by it, and in setting aside the Single Judge's
order. No case was made out by the appellant
75 for compelling respondent No.1 to appoint
the appellant as his agent in perpetuity. In 31(b) is read as being operative during the
view of the personal nature of the service and 40 term of the agreement, i.e. during the period
relationship between the contracting parties, a from 29.7.2003 till 29.10.2003, it may be valid
contract of agency/management such as the and enforceable. However, the moment it is
5 one entered into between the appellant and sought to be enforced beyond the term and
respondent No.1 is incapable of specific expiry of the agreement, it becomes prima
performance and to enforce the performance 45 facie void, as rightly held by the Division
thereof would be inequitable. Likewise, grant Bench.
of injunction restraining first respondent
10 would have the effect of compelling the first
82. If the negative covenant or obligation
respondent to be managed by the appellant, in under Cl. 31(b) is sought to be enforced
substance and effect a decree of specific beyond the term, i.e. if it is enforced as against
performance of an agreement of fiduciary or 50 a contract entered into on 20.11.2003 which
personal character or service, which is came into effect on 1.12.2003, then it
15 dependent on mutual trust, faith and constitutes an unlawful restriction on
confidence. respondent No.1's freedom to enter into
fiduciary relationships with persons of his
79. The appellant can be adequately 55 choice, and a compulsion on him to forcibly
compensated in terms of money if injunction enter into a fresh contract with the appellant
is refused. In our view, grant of injunction, in even though he has fully performed the
20 the present case, would result in irreparable previous contract, and is, therefore, a restraint
injury and great injustice to first respondent of trade which is void u/s. 27 of the Indian
which is incapable of being remedied in 60 Contract Act.
monetary terms, as he would be compelled to
enter into a relationship involving mutual, 83. Under S. 27 of the Contract Act (a) a
25 faith, confidence and continued trust against
restrictive covenant extending beyond the
his will. term of the contract is void and not
enforceable. (b) The doctrine of restraint of
80. We have perused the contract in detail. 65 trade does not apply during the continuance
The terms of the contract was expressly of the contract for employment and it applied
limited to 3 years from 30.10.2000 to only when the contract comes to an end. (c)
30 29.10.2003, unless extended by mutual As held by this Court in Gujarat Bottling vs.
agreement, and all obligations and services Coca Cola 1995 Indlaw SC 1001 (supra), this
under the contract were to be performed 70 doctrine is not confined only to contracts of
during the term. employment, but is also applicable to all other
contracts.
81. Cl. 31 (b) was also to operate only during
35 the term, i.e. from the conclusion of the first 84. Assuming without admitting that the
negotiation period u/cl. 31(a) on 29.7.2003 till negative covenant in Cl. 31(b) is not void and
29.10.2003. This respondent No.1 has 75 is enforceable, it was nevertheless
scrupulously complied with. So long as Cl. inappropriate, if not impermissible, for the

single Judge to grant an injunction to enforce W.L.R. 157. In this case it was held that,
it at the interim stage, for the following although the appellant had established a prima
reasons: 40 facie case of breach of contract entitling them
to damages, it did not follow that entire of
(i) Firstly, grant of this injunction resulted in them was entitled to the injunction sought;
5 compelling specific performance of a contract that the totality of the obligations between the
of personal, confidential and fiduciary service, parties gave rise to the fiduciary relationship
which is barred by Cls. (b) and (d) of S. 14(1) 45 and the injunction would not be granted, first,
of the Specific Relief Act, 1963; because the performance of the duties
(ii) Secondly, it is not only barred by Cl. (a) of imposed on the appellant could not be
10 S. 14(1) of the Specific Relief Act, but this enforced at the instance of the defendants
Court has consistently held that there shall be and, second, because enforcements of the
no specific performance of contracts for 50 negative covenants would be tantamount to
personal services; ordering specific performance of this contract
of personal services by the appellant on pain
(iii) Thirdly, this amounted to granting the of the group remaining idle and it would be
15 whole or entire relief which may be claimed at wrong to put pressure on the defendants to
the conclusion of trial, which is impermissible. 55 continue to employ in the fiduciary capacity of
(Bank of Maharashtra v. Race Shipping, a manager and agent someone in whom he
(1995) 3 SCC 257 1995 Indlaw SC 368. had lost confidence.
(iv) Fourthly, the single Judge's order Cl. 31 (a) and (b) is reproduced below:
20 completely overlooked the principles of
balance of convenience and irreparable injury. "31. NEGOTIATION AND RIGHTS OF
Whereas Percept (appellant) could be fully 60 FIRST REFUSAL:
compensated in monetary terms if they finally (a) NEGOTIATION: During the third
succeeded at trial, respondent No.1 could contract year, and in any event not later than
25 never be compensated for being forced to August 1st, 2003 the Parties shall meet to
enter into a contract with a party he did not commence discussions with a view to the
desire to deal with, if the trial results in 65 extension of their relationship beyond the
rejection of Percept's claim. (Hindustan Term. For sixty (60) days thereafter, Zaheer
Petroleum v. Sriman Narayan, (2002) 5 SCC Khan, agrees to negotiate in good faith only
30 760 2002 Indlaw SC 1311. with Percept, and not with any third party,
(v) The principles which govern injunctive concerning the right after the Term to the use
reliefs in such cases of contracts of a personal 70 of his endorsement or for the arrangement
or fiduciary nature, such as management and contemplated by this Agreement in
agency contracts for sportsmen or performing association with any goods or services. Only
35 artistes, are excellently summarised in a after such one hundred and eighty (180) day
Judgment of the Chancery Division reported period from the date of the last assignment,
in Page Once Records vs. Britton, (1968) 1 75 Zaheer Khan shall have the right to negotiate

with other persons, subject however to sub-cl. image of respondent No.1 which was
(b). 40 gradually built up by the appellant. This clause
does not restrict the right of respondent No.1
(b) FIRST REFUSAL: During the Term of to accept any offer for endorsement,
the Agreement, prior to completion of the promotion, advertising or other affiliation
5 first negotiation period provided for in sub-cl. either on his own or through any party in the
(a) above, Zaheer Khan agrees not to accept 45 event of failure of the appellant to match the
any offer for his endorsement, promotion, offer of the third party from whom
advertising, or other affiliation with regard to respondent No.1 would receive any offer,
any products or services. respondent No.1 would be free to contract
10 70. Thereafter, Zaheer Khan agrees not to with such third party. Further, the said clause
accept any offer for his endorsement, 50 does not restrict the right of respondent No.1
promotion, advertising, or other affiliation to appoint an agent of his choice or restrict
with regard to any goods or services or for his liberty to carry on his affairs in the manner
arrangement similar to the transaction he likes, with the persons he chooses, in the
15 hereunder without first providing Percept manner he thinks best.
with written notice of such offer and all the 55 The restriction, if any, is on account of
material terms and conditions thereof and voluntary obligations undertaken by
offering respondent No.1 and assurances made by him
71. Percept the right to match the third party to the appellant wherefor, respondent No.1
20 offer. Percept shall thereafter have right, cannot be permitted to renege his promises
exercisable by written notice to Zaheer Khan 60 under the garb of an alleged restriction
within ten(10) days of receipt, to accept violative of S. 27 of the Contract Act. Cl.
Zaheer Khan's offer on the same terms and 31(b) of the agreement is an independent
conditions offered by such third party. If clause which survives the expiry of the
25 Percept does not accept Zaheer Khan's offer, agreement and any dispute between the
Zaheer Khan shall thereafter have the right to 65 parties regarding the enforceability of the said
enter into an agreement with such third party. clause would come under the provision of Cl.
32(g) of the agreement which provides for
72. In our view, Cl. 31(b) of the agreement resolution of any claim or controversy
merely provides for an obligation of pertaining to the agreement through the
30 respondent No.1 to give an opportunity to the 70 process of arbitration. Cl. 32(g) of is
appellant to match the offer, if any, received reproduced below:
by respondent No.1 from the third party. This
clause does not per se restrict or prohibit "G) ARBITRATION: Any claims or controversies
respondent No.1 to enter into any contract relating to this Agreement shall be resolved by
35 with a third party but at best it provides the arbitration held under the auspices and rules of the
appellant with an opportunity to gain from 75 Indian Arbitration and Conciliation Act, 1996
the advertisements the appellant has made in by one arbitrator appointed in accordance with the
the process of marketing and creation of the arbitration rules. The place of arbitration shall be

Mumbai. Any award of such arbitration shall be 40 during the past 2= years during which the
final, conclusive and legally binding, without any right contract between respondent Nos.1 and 2 has
of appeal and may be entered into judgment in any been in operation and indeed is soon to be
court of competent jurisdiction. This Agreement and completed, there is no cause for interference
5 all matters related hereto shall be governed by the laws at this late stage by this Court. In the light of
of India." 45 the intervening events, it would be sufficient
protection for the appellant if this Court
73. In our view, no case is made out by the directs:-
appellant for compelling respondent No.1 to
appoint the appellant as his agent in (i) that all observations and findings of the
10 perpetuity when the first respondent has no High Court were for the limited purpose of
faith or trust in the appellant. The grant of 50 deciding an interlocutory application, and
injunction restraining respondent No.1 from hence will not bind parties at trial;
acting upon the agreement entered into with
the second respondent would have the effect (ii) that all contentions raised by all parties are
15 of compelling the first respondent to be expressly kept open;
managed by the appellant, in substance and (iii) that the interim protection in paragraph
effect a decree of specific performance of an 55 17 of the High Court's order will continue till
agreement of personal service, which is the conclusion of the contract dated
dependent on mutual trust, faith and 20.11.2003.
20 confidence which, in the present case, are
eroded and non-existent. In our view, the (iv) that this Court is not expressing any
appellant can be adequately compensated in opinion on merits of the rival claims and that
terms of money if injunction is refused. Cl. 60 the observation made in this judgment is only
31(b) contains a restrictive covenant in for the purpose of finding out the prima facie
25 restraint of trade as it clearly restricts case.
respondent No.1 from his future liberty to
(vi) that the appellant is at liberty to proceed
deal with the persons he choses for his
against the respondent for breach of the
endorsements, promotions, advertising or
65 contractual terms before the appropriate
other affiliation and such a type of restriction
forum in accordance with law; and
30 extending beyond the tenure of the contract is
clearly hit by S. 27 of the Contract Act and is (vii) that liberty is reserved to the appellant to
void. The said covenant, as noticed earlier, invoke Cl. 32(g) of the agreement.
curtails the liberty of respondent No.1 Zaheer
Khan even though the contract has been 75. In the result, the appeal stands dismissed
35 completed to accept any offer for his 70 on the above terms. No costs.
endorsement, promotion etc even by dealing
Appeal dismissed
with any person of his own.
74. As already noticed, no interim relief

having been granted in favour of the appellant

Essel Sports Private Limited (Indian 35 in this High Court. By the subject Order, the
Cricket League) and another learned Single Judge vacated the injunction
relating to the International Cricket Council
v (ICC) and the England & Wales Cricket
Board of Control for Cricket in India and Board (ECB).
5 another 40 2. The facts, in a nutshell, are that ESPL
started a cricket tournament in the name and
style of the Indian Cricket League (ICL)
Case No :FAO (OS) No. 107/2010 and CM wherein the competing teams constitute
Nos. 2517/10, 2520/10, 6557- 58/10 and players of both Indian and foreign nationality
6561-62/10, FAO (OS) No. 154/2010 & CM 45 at domestic and international level. It is
10 No. 4243/2010 alleged that the BCCI, by virtue of being the
concerned Home-Board regulating cricket in
Bench :Vikramajit Sen, Mukta Gupta
India, publically opposed the Indian Cricket
Citation :2011 Indlaw DEL 723 League tournament and also overtly and
50 covertly took all possible steps to stultify its
operations. The ESPL has alleged that the
BCCI used its influence on various state
The Judgment was delivered by : Hon'ble
agencies, ICC and the respective foreign
15 Justice Vikramajit Sen
Home- Boards to boycott the ESPL
1. This Judgment will dispose of connected 55 tournament, namely, the ICL. ESPL filed a
Appeals No. FAO(OS) 107/2010 and Suit, CS(OS) No.1566/2007 on 24.8.2007
FAO(OS) 154/2010 emanating from the against the BCCI, in which the Union of India
common Order of the learned Single Judge and Karnataka State Cricket Association were
20 dated 4.2.2010, by means of which an interim also made parties, seeking declaratory and
injunction on the Plaintiff's application under 60 mandatory injunctive reliefs against the
Order XXXIX Rule 1 and 2 Code of Civil Defendants. While the Suit is progressing in
Procedure, 1908 (CPC for short) restrained this High Court, BCCI filed the subject Suit
the Defendant, Essel Sports Pvt. Ltd. (ESPL) for issuance of an anti-suit injunction against
25 from proceeding against the Plaintiff, the ESPL alleging that BCCI had received a
Board of Control for Cricket in India (BCCI), 65 Notice dated 16.11.2009 sent by the Solicitors
in Courts in England. The Plaintiff submits of ESPL in England. This Notice states that
that there is complete identity between the ESPL intended to file a suit against BCCI in
cause of action of the notified lis proposed the Court of England & Wales in the United
30 and thereafter actually filed on 4.2.2010 in the Kingdom. Similar notices were sent to ECB
High Court of Justice, Chancery Division, 70 and ICC who were proposed to be made the
London and the dispute which is subject co-defendants in that Suit. In this Suit in
matter of Suit, CS(OS) No.1566/2007, filed hand, CS(OS) No.2312/2009, BCCI has
by ESPL against the BCCI presently pending prayed for a perpetual injunction against

ESPL from initiating any action against BCCI 40 substantially BCCI, ICC and ECB are
in any other judicial forum in respect of the claiming the same relief from the Court, viz.
allegations, subject matter and reliefs that the action in U.K be injuncted in toto.
contained and covered in the earlier Suit,
5 CS(OS) No.1566/2007 pending before Delhi 4. We shall first deal with the Appeal filed by
High Court. ESPL, that is, FAO(OS) No.107/2010. Mr.
45 Salve, the learned Senior Counsel for ESPL,
3. An interim injunction was granted on has contended that the learned Single Judge
25.1.2010 in favour of the Plaintiff/BCCI and has gravely erred in holding that the two Suits,
Defendants No.2 and 3, namely, ECB and that is, the one filed in India and the other
10 ICC, restraining ESPL from proceeding with filed in United Kingdom, are similar in
its proposed claim before the U.K. Courts, till 50 substance and that, therefore, the U.K. Suit is
the next date of hearing. Vide impugned oppressive and vexatious in nature. It is also
Order dated 4.2.2010, the learned Single Judge argued that such a temporary anti- suit
made the stay in favour of the BCCI injunction is unknown in law and tantamounts
15 permanent till the final disposal of the subject to this Court managing the Board of a foreign
anti-suit injunction action. However, the stay 55 Court, which is repugnant to the concept of
qua ICC and ECB was vacated. All the international comity amongst Courts. Mr.
adversaries, discontent with different parts of Salve has laid great store on the fact that the
the Order of the learned Single Judge, have action proposed in the notice of the Solicitors
20 filed their respective Appeals. In FAO(OS) of ESPL in England is substantially distinct
No.107/2010, ESPL has impugned that part 60 from the one already filed and under
of the Order wherein the learned Single Judge adjudication in this High Court. It is argued
has restrained it from proceeding against that in the pending Indian Suit, the actions of
BCCI in the U.K. Courts. In FAO(OS) BCCI have territorial bearing in India; for
25 No.154/2010, BCCI has impugned the instance, BCCI forbidding local bodies to
decision of the learned Single Judge 65 permit the use of their stadia; banning of
disallowing its prayer to extend the anti-suit Indian players from playing in ICL and
injunction against ICC and ECB. Moreover, withdrawal of pension of former Indian
ICC and ECB have also filed their Cross- players associated with ICL etc. Per contra,
30 objections in FAO(OS) No.107/2010 filed by the U.K. Suit only takes within its sweep
ESPL praying that ESPL should be injuncted 70 complaints which are contextual to actions
from proceeding against them in the U.K. Suit taken or intended to be taken in the U.K. It is
filed by ESPL. It transpires that the very emphasized that the reliefs sought in England
action which was initially proposed to be are substantially different to those in the
35 pursued against BCCI along with ICC and process of adjudication in India. Essentially,
ECB has now been filed by ESPL, the only 75 these claims are based on the U.K.
change being that BCCI has been dropped Competition Act and the curial advantage that
from the notified array of parties pursuant to the Plaintiff may have by prosecuting its case
the learned Single Judge's Order. Therefore, in the foreign court ought not be nullified by

an anti-suit injunction. It has also been 40 Industries Pvt. Ltd. -vs- AIA Engineering
submitted that the reliefs sought in the Limited, 155 (2008) DLT 73 2008 Indlaw
English action are not directed only to BCCI DEL 2092(DB). Section 10 of the CPC is
but are also against ICC and ECB which are reproduced below for facility of reference:-
5 foreign bodies amenable to the jurisdiction of
English Courts. Predicated on this argument, Section 10. Stay of suit.-No Court shall proceed with
it is urged that the English action is a single 45 the trial of any suit in which the matter in issue is also
forum case; and that Indian Courts should not directly and substantially in issue in a previously
grant an injunction against actions proposed instituted suit between the same parties, or between
10 to be filed or actually filed in Courts ordinarily parties under whom they or any of them claim
or naturally possessing jurisdiction over the litigating under the same title where such suit is
50 pending in the same or any other Court in India
dispute. With regard to this proposition, Mr.
Salve has relied on ONGC -vs- Western having jurisdiction to grant the relief claimed, or in any
Company of North America, (1987) 1 SCC Court beyond the limits of India established or
15 496 1987 Indlaw SC 28520, Modi continued by the Central Government and having like
Entertainment Network -vs- W.S.G. Cricket jurisdiction, or before the Supreme Court.
Pte. Ltd., (2003) 4 SCC 341 2003 Indlaw SC 55 Explanation.-The pendency of a suit in a foreign court
58, Moser Baer India Ltd. - vs- Koninklijke does not preclude the Courts in India from trying a
Phillips Electronics NV, 151 (2008) DLT 180 suit founded on the same cause of action.
20 2008 Indlaw DEL 1858, British Airways -vs-
Laker Airways Ltd., [1985] A.C. 58, Midland 6. It is also urged by Mr. Salve that the
Bank -vs- Laker Airways Ltd., [1986] Q.B. English action ought not to be injuncted as
689. 60 being unconscionable or vexatious and
oppressive only because BCCI, being an
5. Secondly, Mr. Salve submits that the finding Indian party, will be compelled to defend an
25 of the learned Single Judge that the proposed action in a foreign jurisdiction. Since the
action is oppressive and vexatious is also dispute is between commercial entities having
erroneous because, as per the Appellants, the 65 international presence, defending their
Courts in the U.K. are the natural forum. He positions in the U.K. for the actions in U.K.
has sought support from SNI Aerospatiale - jurisdiction, cannot be said to be vexatious. It
30 vs- Lee Kui Jak, [1987] A.C. 871 and is underscored that BCCI is the richest Board
MacShannon -vs- Rockware Glass Ltd., [1978] in the cricketing world and, therefore, the
A.C. 795. Mr. Salve has also relied on the 70 expenses likely to be incurred in defending the
Explanation to Section 10 of the CPC to lis in the U.K. Courts cannot be viewed as
buttress his contention that even if the second oppressive.
35 action is based on the same cause of action,
the rationale of Section 10 of the CPC will not 7. Magotteaux Industries, no doubt, observed
bar the filing of the subsequent suit in a that the Explanation to Section 10 of the CPC
foreign court. To support this proposition, the 75 provides that the pendency of a suit in foreign
Appellant has placed reliance on Magotteaux courts does not preclude Indian Courts from
trying an action founded on the same cause of
action. According to our learned Brothers, 40 the Scottish system of pleading was inferior to the
applying the said provision conversely, a English system and might prejudice the plaintiff,
foreign court should also not precluded from increase the costs and lengthen the duration of the
entertaining any suit based on some cause of litigation, (3) party and party costs were less generously
5 action for which a suit is pending in an Indian assessed in Scotland than in England.
Court. The dispute in that case concerned the
breach of a patent by a party in different 45 These allegations were all denied in an affidavit sworn
jurisdictions. An anti-suit injunction was by the defendants' Scottish solicitors. Neither Robert
prayed for in India against that Goff J. nor the Court of Appeal attempted what they
10 party/defendant restraining it from described as "the invidious and impossible task" of
prosecuting its rights in the U.S. Courts. The deciding which of the two sets of affidavits was to be
Court had observed that patent rights are 50 preferred.
sovereign rights granted by a sovereign state The majority of the Court of Appeal concluded
bestowing thereby limited monopoly rights to [1977] 1 W.L.R. 376, 385 that in each case the
15 the inventor to the exclusion of others for a plaintiff's justification for bringing an action in
set period. The ratio decidendi of Magotteaux England when its natural forum was Scotland, was-
Industries is that since the foreign suit dealt
with infringement of the patent granted by the 55 "the advice of responsible and experienced solicitors ...
U.S. laws, the U.S. action was based on a [the judge] was right to attribute weight to the
20 distinct territorial cause of action, the remedy plaintiffs' solicitors' unproven belief that it would be to
for which would lie only in that particular the plaintiff's advantage to litigate in England and
jurisdiction; and, therefore, Indian Courts right to balance it against the disadvantages to the
should not grant an anti-suit injunction 60 defendants deposed to in the affidavits of their
predicated on an alleged infraction in India of solicitors."
25 patent rights granted by Indian law. It is
In my opinion this conclusion was wrong in law and
contended that a similar situation arises in the
vitiates the exercise of the judge's discretion and the
present case as well, inasmuch as ESPL has
decision of the majority of the Court of Appeal.
threatened to invoke the jurisdiction of the
65 Unproven belief cannot in law constitute a reasonable
UK Courts invoking the UK laws.
justification for bringing an action in England or
30 8. In MacShannon, the House of Lords make it unjust to send the plaintiff back to his own
declined the grant of an anti-suit injunction, country where the action could be litigated more cheaply
inter alia, on the ground that the costs of than in England and just as satisfactorily from
prosecuting the suit in Scotland would be 70 everyone's point of view. Since the judge's discretion
oppressive. The Court on this account held as was based upon a wrong legal principle, that discretion
35 follows: and its approval by the majority of the Court of
Appeal is open to review by your Lordships.
In the MacShannon and the Fyfe cases, the plaintiff's
opposition to a stay rested on allegations in his When no justification has been shown for bringing an
solicitor's affidavit stating that (1) higher damages are 75 action in England it is, in my opinion, obviously
awarded in the English than in the Scottish courts, (2) unjust to make the defendant incur the substantial

extra expense and inconvenience which he would suffer 40 action can be proved, they disclose no cause of action on
were he obliged to defend the action in England. The the part of Laker against B.A. or B.C. that is
extra expense as shown in the defendants' affidavits justiciable in an English court. The Clayton Act
consists of a substantial extra outlay for witnesses' which creates the civil remedy with threefold damages
5 travelling and accommodation expenses whether the for criminal offences under the Sherman Act is,
trial takes place in Carlisle, Newcastle or London. 45 under English rules of conflict of laws, purely
The inconvenience consists of the harm which the territorial in its application, while because the
defendants' business would suffer through the predominant purpose of acts of B.A. and B.C. that
disruption caused by their employees being kept away are complained of was the defence of their own business
10 from their work substantially longer than necessary. interests as providers of scheduled airline services on
50 routes on which Laker was seeking to attract
9. In British Airways, an anti-suit injunction customers from them by operating its Skytrain policy,
was sought against Laker Airways from any English cause of action for conspiracy would be
prosecuting its claim in the United States ruled out under the now well- established principle of
under the Sherman Anti Trust Act and for English (as well as Scots) law laid down in a series of
15 'intentional tort'. The plea of the British 55 cases in this House spanning 50 years of which it
Airways was that the procedure in the US suffices to refer only to Mogul Steamship Co. Ltd. v.
Courts under the Anti Trust Act was highly McGregor, Cow & Co. [1892] A.C. 25 and
oppressive and distinct from that of British Crofter Hand Woven Harris Tweed Co. Ltd. v.
law and further that the action could as well Veitch [1942] A.C. 435.
20 be prosecuted in the British Courts. The
Court observed that the circumstances in that 60 In the result your Lordships are confronted in the civil
case were such that even if the allegations actions with a case in which there is a single forum
against British Airways in the American action only that is of competent jurisdiction to determine the
were to be proved, they would disclose no merits of the claim; and the single forum is a foreign
25 cause of action on the part of Laker Airways court. For an English court to enjoin the claimant
against British Airways which would be 65 from having access to that foreign court is, in effect, to
justiciable in an English Court; and that the take upon itself a one-sided jurisdiction to determine
Clayton Act which creates civil remedy with the claim upon the merits against the claimant but also
three-fold damages for criminal offences to prevent its being decided upon the merits in his
30 under the Sherman Act, is, under English favour. This poses a novel problem, different in kind
rules of conflict of laws, purely territorial in its 70 from that involved where there are alternative fora in
application. Therefore, in these circumstances, which a particular civil claim can be pursued: an
the Court found it to be the case of a 'single English court and a court of some foreign country both
forum' in respect of which injunctions could of which are recognised under English rules of conflict
35 not have been granted by the U.K. Courts. It of laws as having jurisdiction to entertain proceedings
would be relevant to reproduce the following 75 against a defendant for a remedy for acts or omissions
paragraphs from this Judgment:- which constitute an actionable wrong under the
substantive law of both England and that foreign
The proposition is that, even if the allegations against country.
B.A. and B.C. in the complaint in the American

Cases which have these characteristics can now 40 crucial in Laker's case against B.A. and B.C. in the
conveniently be labelled as forum conveniens cases. In American action of what since the merger of the courts
them the High Court has jurisdiction to control how of common law and Chancery has been a fundamental
the choice of forum shall be exercised. It does so by the principle of English legal procedure. That principle,
5 use, as circumstances may require, either of its originally laid down in North London Railway Co. v.
discretionary power to grant or refuse a stay of the 45 Great Northern Railway Co. (1882-83) L.R. 11
action in the English court by the party who is a Q.B.D. 30, was re-stated by me (albeit in terms that
plaintiff there, or of its discretionary power to enjoin a I recognise were in one respect too narrow) in Siskina
party who is, or is threatening to become, a plaintiff in (Owners of cargo lately laden on board) v. Distos
10 the foreign court from continuing or commencing Compania Naviera S.A. [1979] A.C. 210, 256:
proceedings in that court. Leaving aside claims that
50 "A right to obtain an ... injunction is not a cause of
can immediately be identified as frivolous and
vexatious, the High Court, at the stage at which it action ... It is dependent upon there being a pre-
exercises this jurisdiction, is making no determination existing cause of action against the defendant arising
15 on the merits of the claim; it is deciding by which court, out of an invasion, actual or threatened by him, of a
English or foreign, the merits of the claim ought to be legal or equitable right of the plaintiff for the
tried. The principles to be applied by the High Court 55 enforcement of which the defendant is amenable to the
in making this decision in forum conveniens cases have jurisdiction of the court."
been developed over the last 10 years in a number of 10. Thirdly, the impugned Judgment is
20 decisions of this House starting with The Atlantic challenged on the ground that it transgresses
Star [1974] A.C. 436, continuing with the norms of judicial comity and amounts to
MacShannon v. Rockware Glass Ltd. [1978] A.C. 60 regulating the 'court diary' of another Court. It
795 and Castanho v. Brown & Root (U.K.) Ltd. is contended that the question whether the
[1981] A.C. 557, and ending with The Abidin U.K. Court is the appropriate Court to be
25 Daver [1984] A.C. 398; but the principles seised of the proposed action should be left to
expounded in the speeches that were delivered in all that Court alone to decide; and the
these cases start from the premise that the claim by one 65 circumstances do not warrant the writ of this
party against an adverse party is a claim to a right Court to interfere with the jurisdiction of the
that is justiciable in England. Except for a short UK Court. It is contended that the question
30 passage in the opinion of my noble and learned friend, of forum non conveniens is a question to be
Lord Scarman, in Castanho's case [1981] A.C. 557 decided by that forum itself which is said to
(with which all four other members of the Appellate 70 be the forum non conveniens. It is not
Committee, including myself, agreed), I do not find the appropriate and, in turn, is violative of the
speeches in the forum conveniens cases of assistance in principles of comity that one Court should
35 solving the novel problem which your Lordships have injunct another foreign Court from hearing a
to face in the civil actions that are subjects of the matter on the ground that the other Court is
instant appeals. 75 forum non conveniens. Reliance is placed on
The answer to these appeals, in my opinion, clearly Mitchell -vs- Carter, [1997] B.C.C. 907
emerges from the application to the allegations that are wherein an injunction was supplicated for
against the liquidator of the defendants from

proceeding against the assets of the company 40 invoked is just the reverse of the principle on which the
in the United States under the US Bankruptcy doctrine of forum non conveniens is employed.
Code. The Court referred to the principle of
comity and held that "there must be a good 11. We are, however, completely confined and
5 reason why the decision to stop foreign bound by the opinion articulated by the
proceedings should be made here rather than Supreme Court in Modi Entertainment
there. The normal assumption is that the 45 Network. Parties to the dispute had consented
foreign judge is the person best qualified to that their "agreement shall be governed by
decide if the proceedings in his Court should and construed in accordance with English law
10 be allowed to continue. Comity demands a and the parties hereby submit to the non-
policy of non intervention". Reference has exclusive jurisdiction of the English courts
50 (without reference to English conflict of law
also been made to Barclays Bank plc -vs-
Homan, [1992] B.C.C. 757 where the Court Rules)". Their Lordships did not find any
observed that "today the normal assumption valid reason to grant an anti-suit injunction in
15 is that an English Court has no superiority disregard of this jurisdictional clause; it
over foreign court in deciding what justice declined to restrain the Respondent from
between the parties requires and in particular, 55 prosecuting the case in the chosen forum, that
that both comity and commonsense suggest is, the English Courts. The Judgment
that the foreign judge is usually the best perspicuously discusses several decisions
20 person to decide whether in his own court he spanning the globe, namely:-
should accept or decline jurisdiction, stay 1. Donohue -vs- Armco Inc, [2002] C.L.C.
proceedings or allow them to continue". A 60 440 (HL)
reference has also been made to the view of
the learned Single Judge of this Court in 2. SABAH Shipyard (Pakistan) Ltd. -vs-
25 Moser Baer India Ltd. wherein a distinction Islamic Republic of Pakistan and Karachi
was made between an anti-suit injunction and Electrics Supply Corpn. Ltd. [2004] 1 C.L.C.
the doctrine of forum non conveniens in 149 (CA)
these succinct words:-
65 3. Airbus Industrie GIE -vs- Patel, [1998]
7. The concepts of anti-suit injunction and forum non C.L.C. 702 (HL)
30 conveniens require some examination. An anti-suit
4. C.S.R. Ltd. -vs- Cigna Insurance Australia
injunction is granted by a Court preventing the parties
Ltd., [1996] 5 Re. L.R. 421 (Aust HC)
before it from instituting or continuing with proceedings
in another Court. On the other hand, the doctrine of 5. Amchem Products Inc -vs- Workers'
forum non conveniens is invoked by a Court to not 70 Compensation Board, [1993] I.L.Pr. 689 (Can
35 entertain a matter presented before it in view of the fact SC)
that there exists a more appropriate Court of
competent jurisdiction which would be in a better 6. British Aerospace Plc -vs- Dee Howard
position to decide the lis between the parties. So, in a Co., [1993] 1 Lloyd's Rep. 368
sense the principle on which an anti-suit injunction is

7. British India Steam Navigation Co. Ltd. - (1) In exercising discretion to grant an anti-suit
vs- Shanmughavilas Cashew Industries (1990) 35 injunction the court must be satisfied of the following
3 SCC 481 1990 Indlaw SC 991 aspects:
8. SNI Aerospatiale -vs- Lee Kui Jak, [1987] (a) the defendant, against whom injunction is sought,
5 A.C. 871 (PC) is amenable to the personal jurisdiction of the court;
9. Oil and Natural Gas Commission -vs- (b) if the injunction is declined, the ends of justice will
Western Co. of North America, (1987) 1 SCC 40 be defeated and injustice will be perpetuated; and
496 1987 Indlaw SC 28520
(c) the principle of comity - respect for the court in
10. Spiliada Maritime Corpn. -vs- Cansulex which the commencement or continuance of
10 Ltd., [1987] E.C.C. 168 (HL) action/proceeding is sought to be restrained - must be
borne in mind.
11. Castanho -vs- Brown & Root (U.K.) Ltd.,
[1981] A.C. 557 (HL) 45 (2) In a case where more forums than one are
available, the court in exercise of its discretion to grant
12. MacShannon -vs- Rockware Glass Ltd., anti-suit injunction will examine as to which is the
[1978] A.C. 795 (HL) appropriate forum (forum conveniens) having regard to
15 13. Carron Iron Co. -vs- Maclaren, 10 E.R. the convenience of the parties and may grant anti-suit
961 (HL). 50 injunction in regard to proceedings which are oppressive
or vexatious or in a forum non-conveniens.
We have mentioned these precedents for the
reason that we think it entirely futile to (3) Where jurisdiction of a court is invoked on the
analyse them as this exercise has already been basis of jurisdiction clause in a contract, the recitals
20 completed in Modi Entertainment Network. therein in regard to exclusive or non-exclusive
The Supreme Court had delineated the 55 jurisdiction of the court of choice of the parties are not
parameters within which the grant of an anti- determinative but are relevant factors and when a
suit injunction would be justified, and we fall question arises as to the nature of jurisdiction agreed to
entirely within these frontiers. Even with between the parties the court has to decide the same on
25 regard to the decisions that have been a true interpretation of the contract on the facts and in
delivered after Modi Entertainment Network, 60 the circumstances of each case.
it is not possible for us to charter a course (4) A court of natural jurisdiction will not normally
that is not in consonance with the principles grant anti-suit injunction against a defendant before it
culled out by their Lordships. For facility of where parties have agreed to submit to the exclusive
30 reference paragraph 24 of Modi jurisdiction of a court including a foreign court, a
Entertainment Network is reproduced:- 65 forum of their choice in regard to the commencement or
24. From the above discussion the following principles continuance of proceedings in the court of choice, save
emerge: in an exceptional case for good and sufficient reasons,
with a view to prevent injustice in circumstances such
as which permit a contracting party to be relieved of the

burden of the contract; or since the date of the contract Association and BCCI which is arrayed as
the circumstances or subsequent events have made it 40 Defendant No.5. The Suit alleges that BCCI,
impossible for the party seeking injunction to prosecute which is a private organization affiliated to
the case in the court of choice because the essence of the ICC, has not only publically opposed ICL but
5 jurisdiction of the court does not exist or because of a has overtly and covertly taken all possible
vis major or force majeure and the like. steps to stultify its operations. It is also alleged
45 that a de facto monopoly in the field of
(5) Where parties have agreed, under a non-exclusive cricket is sought to be created in India by
jurisdiction clause, to approach a neutral foreign forum BCCI which is now acting arbitrarily in its
and be governed by the law applicable to it for the own functioning as well as in the
10 resolution of their disputes arising under the contract,
administration of the game.
ordinarily no anti- suit injunction will be granted in
regard to proceedings in such a forum conveniens and 50 13. The portions of the Plaint containing the
favoured forum as it shall be presumed that the parties allegations against the State entities and the
have thought over their convenience and all other BCCI are reproduced below for facility of
15 relevant factors before submitting to the non-exclusive reference and comparison:-
jurisdiction of the court of their choice which cannot be
treated just as an alternative forum. 27. In response to the Plaintiff's communication dated
55 03.04.2007 sent to the defendant No.5-BCCI the
(6) A party to the contract containing jurisdiction BCCI responded by its communication dated
clause cannot normally be prevented from approaching 21.06.2007 addressed to all the Presidents and Hony
20 the court of choice of the parties as it would amount to Secretaries of all the affiliated units of defendant No.5
aiding breach of the contract; yet when one of the and was also sent to a number of players-intimidating
parties to the jurisdiction clause approaches the court of 60 and threatening them with serious consequences in the
choice in which exclusive or non-exclusive jurisdiction event any of their affiliated units permitting any of its
is created, the proceedings in that court cannot per se be stadiums and/or cricket players with them in
25 treated as vexatious or oppressive nor can the court be participating in the tournaments/matches to be
said to be forum non-conveniens. organized by the ICL. The Plaintiff states that the
65 reference to private tournaments in the communication
(7) The burden of establishing that the forum of choice is obviously a reference to the ICL as there is no other
is a forum non-conveniens or the proceedings therein known tournament being organized. This
are oppressive or vexatious would be on the party so communication is clearly an effort to intimidate, both,
30 contending to aver and prove the same. players wishing to play for ICL, as well as ICL itself,
12. We shall now anlayse the contentions of 70 as well as a conspiracy that the defendant no.5 is
the rival parties. The first question is whether formulating with its state affiliate units to cause
the cause of action in both the Suits is wrongful loss, harm and damage to the plaintiff, in the
common. The Indian Suit, CS(OS) light of the fact that the players have earlier been
35 No.1566/2007 filed on 24.8.2007, is a Suit for allowed to play in matches organized by event
Declaration, Permanent and Mandatory 75 management companies (such as matches played
Injunction. ESPL has filed this Suit against between movie stars and cricket players), as well as
the Union of India, Karnataka State Cricket matches organized by the ICC, which is also a private

organization. In any event, the Plaintiff states that Defendant no.5-BCCI also seeks to justify its conduct
even though Defendant no.5 is a private body, it 40 on the basis of the said Memorandum, Rules and
cannot discriminate against players on arbitrary Regulations, Players' Registration Form and the
grounds. The threat to disallow a player to participate Regulations annexed therewith.
5 in their tournament solely on the ground that he has
also played in a tournament organized by the Plaintiff 34-D The plaintiff states that during the proceedings
is clearly arbitrary. in the present suit before this Hon'ble Court on
45 27.8.2007, on behalf of defendant no.5 BCCI-had
29. Defendant no.5 has also threatened stalwarts such placed reliance upon its purported "Memorandum and
as Kapil Dev that in the event they provide their Rules & Regulations" seeking to contend that it has
10 expertise for the objectives to be achieved by ICL in the power/authority under its Memorandum to, inter
any manner, the welfare schemes launched by the alia, control the game of cricket in India, select the
defendant no.5 including pension scheme and benefit 50 Indian Team, makes rules for the game of cricket in
matches shall not be made available to them and all India etc.
those benefits shall stand withdrawn.
The relevant clauses of the Memorandum of the
15 31. The plaintiff states that the BCCI has directly defendant no.5- BCCI are as under:-
and through its affiliate units etc. has started
intimidating, threatening players that if they play in Memorandum
ICL, the players will not be able to be selected for 55 "...2(a) To control the game of cricket in India and
'Team India' irrespective of their performance. The give its decision on all matters including Womens
20 plaintiff respectfully submits that defendant no.5 is cricket which may be referred to it by any Member
systematically, with a malafide intention threatening Associations in India...
the players and state associations. Defendant no.5- has
threatened to disqualify players participating in ICL ...2(g) To frame the laws of cricket in India and to
tournaments from being eligible to be selected for 60 make alteration, amendment or addition to the laws of
25 "Team India". This threat is clearly designed to Cricket in India whenever desirable or necessary.
prevent young players from participating in ICL
...2(s) To select teams to represent India in test
tournaments, hence damaging their scope of growth as
matches. One day International and Twenty/20
players. This is also clearly a means of conspiring
matches played in India or abroad, and to select such
against and intimidating the plaintiff from succeeding
65 other teams as the Board may decide from time to
30 in the formation of ICL, hence causing loss to the
time.
plaintiff.
...2(u) To appoint the Manager and/or other official
34-C Defendant No.5-BCCI seeks to rely upon its
of Indian Teams.
purported Memorandum, Rules & Regulations,
Players' Registration Form and the regulations 2(v) To appoint India's representative or
35 annexed therewith by contending that it has the 70 representatives on the International Cricket Conference
power/authority to prevent cricketers, past and and other Conferences, Seminars connected with the
present, from playing any match other than those game of cricket.."
organized by or under the auspices of the BCCI.

34-F The defendant no.5-BCCI has also prescribed If any of the registered players participate in any of the
form for registration of the players for playing matches Tournaments or matches not permitted by the BCCI
for Ranji Trophy etc. thereby incorporating therein an or ICC and its affiliated members he will be liable for
undertaking on behalf of each of the player that he 40 deregistration and will be registered only after a gap of
5 shall not play, either in India or abroad in any other one year which period the Board may waive at its
match or tournament which is not registered with, not discretion."
approved by the affiliate Association or BCCI or ICC
without the prior written permission of the BCCI. The 34-H Without prejudice to the aforesaid contention of
relevant clause of the Players Registration Form of the the Plaintiff that the amendments carried out by the
10 BCCI is reproduced as under:-
45 defendant no.5-BCCI from time to time in its
Memorandum & Rules and Regulations have not
"..2 I shall not play or participate in any cricket been placed before the Registrar of Societies, Tamil
match or tournament Organized as Nadu, for approval and the same being non-est and
charity/festival/benefit match or tournament not void- the plaintiff submits the Memorandum, the
registered with or not approved by the Association or 50 Rules and Regulations, Players Registration Form
15 BCCI or ICC or any of its affiliated members without and the regulations annexed therewith of the BCCI-
the written permission of the BCCI either in India or seeking to prevent the cricketers from participating in
abroad." other tournaments without in any manner affecting the
tournaments of the matches organized by BCCI, are
34-G There are certain Regulations which are 55 clearly in unlawful restraint/restraint of trade.
annexed with Players' Registration Form of the Further, the Memorandum and the Rules and
20 defendant no.5- BCCI, which also include similar Regulations etc. in so far as they seek to authorize the
clauses seeking to prohibit players from playing any BCCI to represent its team as the Indian Team-are
other match organized by any other neither valid nor legal and are non-est and void. It is
organization/agency. The relevant clauses of the said 60 an admitted position that BCCI is a private
Regulations of the BCCI annexed with Players' organization as recognized by the Hon'ble Supreme
25 Registration Form are reproduced as under: Court in the case of Zee Telefilms Ltd v Union of
"..9. No registered player can play or participate in a India, (2005) 4 SCC 649 2005 Indlaw SC 80, it
Cricket match or Tournament not recognized by the is not having any jurisdiction or authority to take any
Association or Board or the ICC or any of its 65 action or decision with reference to Indian team and/or
affiliated members without the written permission of Cricket players for playing for the country.
30 the Board either in India or abroad. 34(I) The plaintiff further states that the defendant
10. No registered player can play or participate in a no.5-BCCI by virtue of its existing position, through
Cricket match or Tournament organized as Festival/ the Memorandum, Rules & Regulations, Players'
Charity/Benefit match or Tournament not registered 70 Registration Form and the regulations annexed
with or approved by the Association or Board or ICC therewith, purports to create a monopoly in favour of a
35 or any of its affiliated members without the written private body in the game of cricket. The avowed stand
permission of the Board either in India or abroad. of the defendant no.5 before the Hon'ble Supreme
Court was that there is no bar on any other person
75 from organizing matches or otherwise participating in

the game of cricket. The plaintiff states that 40 Also, by way of its communication dated 10.09.2007
nonetheless in an abuse of its monopolistic position by the Tamil Nadu Cricket Association cancelled the
having first mover advantage and having existing registrations of some players on the ground that they
affiliations, defendant no.5 seeks to, in an unlawful opted to play for the Plaintiff League.
5 and impermissible manner, restrict and control the
game of cricket in a way that it continues to exercise 38. The plaintiff states that by its threats and acts of
sole and exclusive monopoly. 45 intimidation the defendant no.5 has committed
malfeasance with defendants no.1 to 4, have committed
37-A The plaintiff submits that defendant no.5- non feasance by their lack of action against defendant
BCCI has affiliate members/associations. These no.5. It is the obligation of defendants no.1,2 and 3 to
10 member associations have set up stadia for playing the prevent the misrepresentation of defendant no.5 that it
game of cricket. The lands for these stadia have been 50 alone has the power to choose the Indian cricket team,
allotted to the said associations by the State while it is the obligation of defendants no.1,2 and 3 to
Governments/other authorities under State/Central ensure that the grounds given by them to the affiliate
Governments at concessional/token charges. It is units of defendant no.5 at token value for the
15 submitted that the said lands have been allotted for promotion of sports such as cricket, are used for this
promoting the game of cricket. In view thereof, the 55 purpose only and further are made available to anyone
plaintiff is also entitled to the use of the stadia promoting such purpose. These grounds have often been
alongwith defendant no.5 and its affiliated associations used for other purposes, such as for beauty pageants,
for organizing cricket matches. The refusal of the use political rallies etc. but when ICL was desirous of
20 of the stadia by the affiliate state associations is using the Chinnaswamy Stadium, being a stadium on
malafide and is at the behest and under intimidation 60 one such ground, to organize a cricket tournament, the
and threat of the defendant no.5. Hence, the plaintiff user of the ground was denied to it by defendant no.4
submits that such conduct on the part of the defendant and none of the defendants no.1,2 and 3 fulfilled their
no.5 is in restraint of trade/unlawful restraint and obligations in this regard of ensuring the user of the
25 against public policy. said ground for the promotion of cricket in these
65 circumstances the defendant no.5 is guilty of various
The fact that defendant no.5 is using duress and acts such as intimidation, malafide actions,
coercion on all its members is evident, inter alia, from malfeasance, conspiracy, public nuisance and all such
communication dated 29.8.2007 issued by the Cricket acts give rights to the plaintiff and constitute a valid
Club of India Ltd., Mumbai, which has become cause of action for filing the present suit against the
30 available to the plaintiff. The said communication 70 defendant's herein. The plaintiff submits that if the
quotes minutes of the meeting of the BCCI dated defendant no.5 is guilty of the aforesaid acts the
28.8.2007 wherein action is taken against Mr Raj defendants no.1 to 4 are also guilty and have
Singh Dungarpur, for issuing a press statement that committed an act of non-feasance and by allowing the
the Brabourne Stadium would be available for the defendant no.5 to continue with its public nuisance.
35 matches of the Plaintiff. This conduct of the BCCI 75 The plaintiff therefore submits that due to the said acts
clearly establishes it is threatening/intimidating all its committed by the defendants the plaintiff is entitled for
members and affiliate associations and office bearers relief as prayed.
and with action if they deal with the plaintiff-Indian
Cricket League.

39. It is submitted that an independent and individual entity acting in the name and / or on its
right of any one cannot be curtailed or restricted by any 40 behalf do not use the name and National Flag
private body. Even the State cannot impose any of India or represent to the public at large that
restrictions save and except under Article 19(2) of the the team of the defendant no.5 represents
5 Constitution of India. Defendant no.5-BCCI India;
never had nor has been provided with any power or
authority to impose any restriction on any one from (iii) Pass a Decree of Permanent Injunction
promoting the Sports and/or from participating 45 restraining/ prohibiting defendant no.5, its
therein. Rights are independent rights. No player can assigns, office bearers employees, agents,
10 be so restricted or be put under threat by BCCI. The
successors or any other entity acting in the
threatened acts and conduct on the part of defendant name and/or on its behalf from intimidating,
no.5-BCCI clearly amounts to putting undue and threatening in any manner whatsoever,
illegitimate "threat" and "pressure". The threat and 50 inducing or inciting or in any other manner
intimidation by the defendant no.5 through restrictions interfering with the attempts of the Plaintiff to
15 sought to be imposed upon the Players as well as sign up contracts with players-past and
Associations are unfair, unjust, unreasonable, present - for participating in its tournaments
impermissible and illegal. and from interfering in any manner with the
55 conduct of the activities of the plaintiff's
14. It is necessary underscore that neither the Indian Cricket League;
ICC nor the ECB are parties in the previously
20 instituted lis which is presently pending in the
(iv) Pass a Decree of Permanent Injunction
Original Side of this Court, a feature that has restraining/ prohibiting the defendant no. 5
been repeatedly emphasised by Mr. Salve. The its assigns, office bearers, employees, agents,
reliefs which are claimed in the said Suit, 60 successors or any other entity acting in the
CS(OS) No.1566/2007 by ESPL are as name and/or on its behalf from issuing any
25 follows:-
threat inducement or any other statement
whatsoever, publicly or privately, that
(i) Pass a Decree of Permanent injunction interferes with the free will of any of its
restraining/prohibiting Defendant no.5 its 65 affiliate state units or the players who are
assigns, office bearers, employees, agents, members or associates of those affiliate units
successors or any other entity acting in the from in any manner entering into contracts
30 name and/or on its behalf from using the with the Plaintiff;
name and National Flag of India or
representing to the public at large that the (v) Pass a Decree of Permanent Injunction
70 restraining/ prohibiting the defendant no.5 its
team of the defendant no. 5 represents India;
assigns, office bearers, employees, agents,
(ii) Pass a Decree of Mandatory Injunction successors or any other entity acting in the
35 against Defendants 1 to take all necessary name and / or on its behalf from, in any
steps in accordance with law in ensuring that manner, directly or indirectly, inducing or in
Defendant no.5 its assigns, office bearers, 75 any manner being instrumental in its affiliate
employees, agents, successors or any other state units declining the user of the cricket

grounds allotted to them by the defendant no. of the Form of Players' Registration - Ranji
2&3 or any other state authorities or other Trophy and also Regulations 9 and 10 of the
authorities for organizing the cricket matches 40 Regulations annexed therewith as illegal, non-
therein by the ICL; est and void;
5 (vi) Pass a Decree of Mandatory Injunction (xi) Any other further orders as this Hon'ble
against Defendants 1-3 directing them to Court deems fit and proper in the facts and
ensure that the State affiliates of Defendant circumstances of the present case;
no. 5 who are having Cricket stadiums on the
lands allotted by the Government - to make 45 (xii) Costs be awarded
10 available those Stadia to the plaintiff for ICL 15. We shall now compare the asseverations
matches on such terms and conditions which in the proposed action sent along with the
this Hon'ble Court may deem fit and Notice issued initially by the Solicitors of the
appropriate to be prescribed for that purpose; Appellant, and the U.K. action now pending
(vii) Pass a Decree of Permanent Injunction 50 in the High Court of Justice, Chancery
15 restraining/ prohibiting the defendant no. 5 Division after the grant of anti-suit injunction
its assigns, office bearers, employees, agents, by the learned Single Judge in favour of BCCI.
successors or any other entity acting in the The averments qua the BCCI in the draft
name and/or on its behalf from withdrawing accompanying Notice were as follows:-
the benefits in any manner whatsoever which 55 3. The Second to [ ] Claimants ("the Players") are
20 it has been extending or is proposing to professional cricketers who wish to negotiate contracts
extend to its past cricket players including the to play for teams participating in the ICL. The
pension and benefit match scheme on account Players are listed in Schedule A to these Particulars of
of the fact that they have participated in the Claim together with brief details of their playing
matches organized by the ICL; 60 careers to date.
25 (viii) Pass a Decree in favour of the Plaintiff 5. The Board of Control for Cricket in India ("the
and against the defendants declaring that BCCI") is a not for profit society registered in
clauses 2(a), 2(g), 2(s), 2(u), 2(v) of the accordance with the Tamil Nadu Societies
Memorandum of the BCCI and clauses 1(d), Registration Act under the laws of India. The
9(c), 9(d),9(g), 13(v)(b), 13(v)(c) and 13(v)(f) 65 membership of the BCCI comprises State cricket
30 of the Rules and Regulations are illegal, non- associations and various cricket clubs across India. It
est and void. organizes international matches for the Indian cricket
(ix) Pass a decree in favour of the Plaintiff and team and a number of domestic cricket competitions in
against the defendants declaring that Rules 33- India, for which it exploits the broadcasting rights.
d, 33-e and 34 of the Rules and Regulations of 70 6. In particular, the BCCI promotes a Twenty20
35 the BCCI are illegal, non-est and void; cricket competition known as the Indian Premier
(x) Pass a decree in favour of the Plaintiff and League ("the IPL"). The first season of the IPL was
against the defendants declaring that Clause 2 launched in April 2008, the second season took place

in South Africa in 2009 and the third is due to (3) Interfering with existing and prospective contracts
commence in India in March 2010. The worldwide between players and the ICL through threats and
broadcasting rights to the IPL were sold in February intimidation.
2008 for ten years for a reported US$ 1.026 billion
5 to a consortium of the Sony Television network and (4) Instructing all local affiliates not to allow cricket
the Singapore-based World Sports Group (which 40 grounds to be used for ICL games or otherwise to
outbid the ESPN-Star Sports network, jointly owned involve themselves or permit individuals to involve
by News Corporation and Disney). themselves with ICL, on penalty of exclusion from all
BCCI activities and pensions.
36. From its inception, ICL has received a hostile
10 reaction from the BCCI. Early approaches in
(5) Preventing the use of state-owned stadia for use as
correspondence in which ICL aimed to achieve co- 45 ICL match venues through BCCI's monopolistic
operation between ICL and BCCI were rebuffed by management of such venues (or through its control of
BCCI. the local BCCI affiliates which manage the use of
those stadia).
37. On 21 August 2007, a resolution was adopted
15 unanimously at a Special General Meeting of the (6) Amending the terms of the BCCI pension fund to
BCCI, resolving that: "Every individual has a right to 50 discriminate against players who involve themselves
choose whether he wishes to associate himself with any with ICL.
other organization. However, if he chooses to associate (7) Putting pressure on potential advertisers not to
himself with any other organization, he will not be advertise on ICL by threatening to withhold
20 entitled to derive any benefit from BCCI or be opportunities for sponsorship activity with the BCCI.
associated with any activities of the Board or its
affiliated units". 55 (8) Putting pressure on other country boards to ban
their players from playing in the ICL and to bar them
38. BCCI has since engaged in a range of activities from playing for their country where they played in
clearly calculated to deter and prevent prospective ICL (examples of such international bans include
25 players (and others) from involving themselves with Shane Bond of New Zealand and Justin Kemp of
ICL, and intended to obstruct the activities of the 60 South Africa).
ICL.
(9) In 2008, the BCCI announced the intention (in
PARTICULARS conjunction with Cricket South Africa and Cricket
(1) Barring players associated with ICL from Australia) to launch an international club Twenty20
30 eligibility for the Indian national team.
Champions League. Clause 2.4.6 of the invitation to
65 tender for commercial rights in respect of the
(2) BCCI sacked Kapil Dev as head of the Indian competition stated that involvement directly or
National Cricket Academy because of his involvement indirectly with ICL would result in automatic
with ICL. Other players have been barred from disqualification of any bidder.
involvement in BCCI events by reason of their
35 association with ICL.
(10) The BCCI imposed a similar clause to that
70 referred to in 38(9) above in the IPL broadcast rights
tender document (see §6 above), thereby excluding the
companies operating the Zee branded television 36. On 21 August 2007, a resolution was adopted
channels from bidding as they are associated with unanimously at a Special General Meeting of the
ESPL (see §15 above). BCCI, resolving that: "Every individual has a right to
choose whether he wishes to associate himself with any
50. The boycott of the ICL set out at §§ 36-49 has 40 other organization. However, if he chooses to associate
5 had a serious effect on the players . himself with any other organization, he will not be
16. The allegations against the BCCI which entitled to derive any benefit from BCCI or be
still remain in the action filed in the U.K. associated with any activities of the Board or its
Courts even after the grant of anti-suit affiliated units".
injunction are as follows:- 45 37. BCCI has since engaged in a range of activities
10 5. The Board of Control for Cricket in India ("the clearly calculated to deter and prevent prospective
BCCI") is a not for profit society registered in players (and others) from involving themselves with
accordance with the Tamil Nadu Societies ICL, and intended to obstruct the activities of the
Registration Act under the laws of India. The ICL.
membership of the BCCI comprises State cricket 50 PARTICULARS
15 associations and various cricket clubs across India. It
organizes international matches for the Indian cricket (1) Barring players associated with ICL from
team and a number of domestic cricket competitions in eligibility for the Indian national team.
India, for which it exploits the broadcasting rights.
(2) BCCI sacked Kapil Dev as head of the Indian
6. In particular, the BCCI promotes a Twenty-20 National Cricket Academy because of his involvement
20 cricket competition known as the Indian Premier 55 with ICL. Other players have been barred from
League ("the IPL"). The first season of the IPL was involvement in BCCI events by reason of their
launched in April 2008, the second season took place association with ICL.
in South Africa in 2009 and the third is due to
commence in India in March 2010. The worldwide (3) Interfering with existing and prospective contracts
25 broadcasting rights to the IPL were sold in February
between players and the ICL through threats and
2008 for ten years for a reported US$ 1.026 billion 60 intimidation.
to a consortium of the Sony Television network and (4) Instructing all local affiliates not to allow cricket
the Singapore-based World Sports Group (which grounds to be used for ICL games or otherwise to
outbid the ESPN-Star Sports network, jointly owned involve themselves or permit individuals to involve
30 by News Corporation and Disney). themselves with ICL, on penalty of exclusion from all
35. From its inception, ICL has received a hostile 65 BCCI activities and pensions.
reaction from the BCCI. Early approaches in (5) Preventing the use of state-owned stadia for use as
correspondence in which ICL aimed to achieve co- ICL match venues through BCCI's monopolistic
operation between ICL and BCCI were rebuffed by management of such venues (or through its control of
35 BCCI. the local BCCI affiliates which manage the use of
70 those stadia).

(6) Amending the terms of the BCCI pension fund to 18. Thus, it is clear that the ESPL in the
discriminate against players who involve themselves action filed by it in the U.K. after suffering an
with ICL. 40 anti-suit injunction from the Delhi High
Court has only made superficial and cosmetic
(7) Putting pressure on potential advertisers not to changes by dropping BCCI as one of the
5 advertise on ICL by threatening to withhold Defendants but has retained all the averments
opportunities for sponsorship activity with the BCCI. and allegations against the BCCI as it is.
(8) Putting pressure on other country boards to ban 45 Therefore, it cannot be said that the action
their players from playing in the ICL and to bar them with which the ESPL has now filed is
from playing for their country where they played in different to that which had been articulated in
10 ICL (examples of such international bans include the Notice.
Shane Bond of New Zealand and Justin Kemp of 19. The action initially intended to be initiated
South Africa). 50 in the U.K. Court was predicated on the
(9) In 2008, the BCCI announced the intention (in premise that "ESPL has plans to stage ICL
conjunction with Cricket South Africa and Cricket matches in the future outside India, including
15 Australia) to launch an international club Twenty20 in the U.K." The main allegation in the said
Champions League. Clause 2.4.6 of the invitation to action is also directed against the BCCI. The
tender for commercial rights in respect of the 55 hostile actions of the BCCI are described as
competition stated that involvement directly or "boycott of ICL" by the BCCI and/or
indirectly with ICL would result in automatic "orchestration by the BCCI". These
20 disqualification of any bidder. allegations are contained in the following
paragraphs of the proposed Plaint:-
(10) The BCCI imposed a similar clause to that
referred to in 37(9) above in the IPL broadcast rights 60 36. From its inception, ICL has received a hostile
tender document (see §6 above), thereby excluding the reaction from the BCCI. Early approaches in
companies operating the Zee branded television correspondence in which ICL aimed to achieve co-
25 channels from bidding as they are associated with operation between ICL and BCCI were rebuffed by
ESPL (see §14 above). BCCI.
17. Paragraphs 3 and 50 of the Draft Plaint, 65 37. On 21 August 2007, a resolution was adopted
which referred to the players as one of the unanimously at a Special General Meeting of the
Claimants have been deleted in the action BCCI, resolving that: "Every individual has a right to
30 presently pending before the Chancery choose whether he wishes to associate himself with any
Division, London. Plainly, the foreign other organization.. However, if he chooses to associate
(English) professional cricketers are no longer 70 himself with any other organization, he will not be
aggrieved by the alleged machinations of entitled to derive any benefit from BCCI or be
BCCI. Further, although there is no pointed associated with any activities of the Board or its
35 reference to BCCI as a Defendant, the action affiliated units".
filed in England contains the same allegations 38. BCCI has since engaged in a range of activities
against BCCI. 75 clearly calculated to deter and prevent prospective
players (and others) from involving themselves with Home-Board conveying its no-objection. The
ICL, and intended to obstruct the activities of the assertion of ESPL is that BCCI has, by this
ICL. stratagem, prevented the ICL from getting the
status of an ICC approved unofficial cricket
20. The reliefs sought to be claimed by ESPL 40 tournament. As a consequence, the foreign
5 in their foreign action are as follows:- players intending to be associated with
(1) A declaration against all Defendants to the effect different affiliate cricket Boards, including the
that by agreeing and/or deciding to carry out and/or ICB could not play in the ICL tournament
implement the boycott of the ICL each breached the scheduled to be held in India; since they
Chapter I prohibition and/or the Chapter II 45 would not receive permission from their
10 prohibition and/or was in restraint of trade; Home-Boards owing to the opposition of
BCCI in respect of matches to be held in
(2) An injunction against each of the Defendants India, which, in turn, would deleteriously
carrying out and/or implementing the boycott of the affect the viewership in the U.K. where the
ICL; 50 viewership is substantially of persons from the
Indian Subcontinent.
(3) An inquiry as to damages in respect of the
15 infringements of the Chapter I prohibition and/or the 23. Drawing our attention to the prayers in
Chapter II prohibition; the English action, Mr. Sundaram has
contended that the provisions mentioned in
(4) Further or other relief; and
55 the foregoing paragraph have not been
(5) Costs. challenged and no reliefs qua the Regulations
of the ICC and the ECB have been claimed.
21. From a reading of the two Claims/Plaints Therefore, the argument that the
20 as well as the Notice, it cannot be contended distinctiveness of cause of action in the UK
otherwise than that the main allegations are 60 action is because of the challenge to the
made against the BCCI for orchestrating the Regulations of ICC and ECB has no
alleged boycott against ICL. No doubt, the foundation. In Rejoinder, Mr. Salve argues
Indian Suit is pegged against the BCCI that since the relief of Declaration and
25 together with the concerned Indian parties, Injunction against the entire 'boycott' is
and the UK action is directed against ICC and 65 sought, if it is granted, the Regulations will
ECB, but the actions of the BCCI remain at automatically get struck down. Furthermore, it
the fulcrum of the contention in both the is contended that the lacuna in drafting, if any,
suits. should properly be addressed before the UK
Court and advantage of that cannot be
30 22. In the U.K. action, we may reiterate, the
70 obtained in this Court.
allegation is that BCCI has influenced ICC
and ECB to amend their regulatory 24. After perusing the two Claims and
framework to the end that approval can be cogitating on the contentions of the
granted for organizing an unofficial approved adversaries, we are of the opinion that the
35 cricket tournament, only upon the concerned cause of action in the two is substantially and

materially the same. The alleged machination 40 arises from breach of a specific duty cast or
of the boycott of ICL by BCCI is the pivotal right conferred by a statute on a person. The
grouse around which the two actions revolve. existence or provision of a remedy being
The event, viz. ICL, is an international cricket available under a statute would not, ipso facto
5 tournament planned to be held in India. The without more, create a cause of action of a
permission sought in UK for the release of 45 single forum character. This is especially so
players and the status of an approved when the same remedy can be invoked and
unofficial cricket tournament was also sought prayed for in another forum under the laws
in respect of the tournament which is to be and statutes of different countries. We shall
10 held in India only. Therefore, it presently merely make a mention of the Judgments
seems to us that it cannot be said that merely 50 cited by learned Senior Counsel for the
because a letter seeking the approval was Respondent, viz. Bell'Oggetti International
written to ICC in the U.K. the substantial Inc. -vs- Flooring and Lumber Company Ltd.,
cause of action occurred in U.K.; as we have [2001] O.T.C. 362 and Horn Linie Gmbh -vs-
15 already recorded, ICC is neither registered in Panamerica Formas E Impresas SA, [2006] 2
the U.K. nor is its Headquarters located there. 55 Lloyd's Rep. 44.
We are not persuaded that the action filed in
England is distinct from the cause of action 26. After comparing the reliefs sought in the
which is the subject matter of the Indian two Claims, we are of the opinion that these
20 litigation. There is a bald averment that the declaratory and injunctive reliefs for the very
ESPL wishes to hold the ICL event in the UK same cause of action can be availed of under
in future. However, in our view, this 60 the Indian Competition Act or under the
statement of its intent in future will not confer Indian Contract Act. We must immediately
jurisdiction upon the UK Court until such clarify that in the event of a challenge
25 event actually transpires. No material change simplicitor to the ICC Regulations without
would result, we think, even in this any reference to the alleged machination of
65 BCCI which are already sub judice the change
hypothetical situation. We say this because if it
is presumed that BCCI would record its would be drastic. Therefore, the argument
objection as a Home-Board, it would stultify that an anti- suit injunction takes away the
30 an ICL outside India by directly banning juridical advantage is not tenable in the facts
Indian cricketers from participating in such a of the present case.
foreign ICL tourney. 70 27. Having concurred with the learned Single
25. The second argument is that the UK Suit Judge that the UK action is a two or multiple
is being prosecuted under the UK forum lis, we shall venture forward to assess
35 Competition Act and, therefore, the action is whether the UK action is oppressive or
based on a distinct statutory cause of action, vexatious. Mr. Salve's contention in this
thereby making the UK action a single forum 75 regard has already been noted by us above.
case. However, we think the argument to be We agree that in a commercial dispute, the
misconceived. A statutory cause of action compulsion to defend an action in a foreign
jurisdiction may not invariably lead to the

conclusion that the foreign proceedings are 40 Explanation to Section 10 of the CPC would
oppressive; however, having to defend the also apply conversely is in the nature of obiter
same allegations by the same party in two dicta. Mr. Salve has strenuously canvassed that
different jurisdiction is unquestionably the Explanation to Section 10 of the CPC
5 oppressive. must enure to the benefit of the Appellants
45 since the legal regime obtaining in this country
28. We will now advert to Magotteaux in terms conceives of the jurisdictional
Industries, on which Mr. Salve has placed legitimacy of a lis in India which is identical to
reliance. The dispute pertained to a patent in that pending in a foreign jurisdiction. So far as
respect of which the Plaintiff had filed a case we see it, the Explanation was in existence at
10 for damages and for permanent injunction to 50 the time when India was a dominion of a
restrain the Defendant from infringing its foreign power. The rationale of providing an
patent granted in India. The Defendant had appeal via Letters Patent may well have
taken a plea that there was already a case motivated the Legislators in going against the
pending in the US Courts under US Tariff Act grain of the universal principle of law
15 of a similar nature. The Division Bench 55 articulated in Section 10 of the CPC viz. a
observed that since a patent is a right granted later action is required to be stayed. With due
by the sovereign State to the inventor, it is a respect, we cannot concur with the reasoning
creation of a statute. The privilege is a right, that Explanation to Section 10 of the CPC
advantage or immunity granted to a person to would operate conversely to enable a foreign
20 exclusion of all others. Therefore, since the 60 court to assume jurisdiction in respect of a
alleged infringement of the patent is a breach cause of action which is pending adjudication
of a statutory right granted by a sovereign, its in this country. Since it appears to us that the
breach in that territory would give rise to a view of our learned Brothers in Magotteaux
distinct and separate cause of action from the Industries was given en passant and is in the
25 infringement of a similar patent granted by a 65 nature of obiter dicta, we think it unnecessary
different sovereign state. Since in the present to refer this question to a Larger Bench.
case there is no such breach of statutory right,
this decision does not help the case of the 29. There cannot be any cavil to the
Appellant. Our learned Brothers had observed propositions laid down in Modi
30 that so far as the infringement of a patent in Entertainment Network, that a subsequent
the US was concerned, these rights had been 70 suit, if held to be vexatious and oppressive,
granted by a sovereign power and the cause of can be injuncted by the Indian Courts,
action pertaining to their violation had also provided other necessary ingredients are also
arisen in a foreign jurisdiction. That being so, satisfied. Contrary findings of different Courts
35 our learned Brothers had declined to grant an on same facts are an anathema to law, and if a
anti-suit injunction, even though there was 75 party endeavours to invoke the jurisdiction of
allegedly a similar infringement perpetrated in foreign Court to a cause of action already
India. With due respect to our learned and being prosecuted in the national forum, it
esteemed Brothers, the observation that the would amounts to vexatious litigation.

30. In Modi Entertainment Network, the 40 that none of the professional cricketers
Hon'ble Supreme Court has opined that having allegiance to the ECB have any
an anti-suit injunction can be granted grievance with regard to the present cause
where the foreign proceedings are of action.
5 vexatious, oppressive or forum non
conveniens. Courts have the bounden duty 32. Furthermore, the evidence sought to
to ensure that the ends of justice are not 45 be adduced in the UK Court are of the
thwarted. Ergo, an anti-suit injunction same witnesses who have deposed in the
should be passed. Legal proceedings by Suit which is proceeding in India. If the
10 an Indian party in a foreign Court, in
UK Suit is allowed to proceed, it will only
which the prayers predominantly concern lead to a duplication of evidence and even
50 more detrimentally to the possibility of
another Indian party, even whilst a suit on
similar allegations and reliefs is still conflicting or variant verdicts. Therefore,
pending in an Indian Court between the in light of all these facts, it appears to us
15 same parties, is, in our considered that the U.K. Courts cannot be held to be
opinion, vexatious and oppressive. forum conveniens. The learned Single
55 Judge was justified in holding UK Courts
31. The argument of Mr. Salve that the to be forum non conveniens.
proceedings in the UK Court cannot be
vexatious and oppressive for the reason that 33. In Modi Entertainment Network, the
20 the UK is the natural forum is also untenable. Apex Court observed that it is
Both the Plaintiff/ESPL and its main "commonplace that the Courts in India
antagonist, BCCI, are Indian parties. The 60 have power to issue anti-suit injunction to
Regulations which appears to be hurting a party over whom it has personal
ESPL are of ICC and the approval and the jurisdiction in an appropriate case. This is
25 declaration sought for in the U.K. Courts because Courts of equity exercise
is also directed against the ICC which is a jurisdiction in personam. However,
body registered in Virgin Islands with 65 having regard to the rule of comity, this
working Headquarters in Dubai. U.K. power will be exercised sparingly because
Courts thus have territoriality because of such an injunction though directed
30 the location of the ECB, but it cannot be against a person, in effect causes
ignored that the reliefs claimed against interference in exercise of jurisdiction by
ICB as on date are consequential upon the 70 another Court". Thus, the in personam
granting of reliefs qua BCCI. Besides, as jurisdiction may be exercised against the
already stated, the boycott, allegedly Defendant if the Plaintiff is able to make
35 orchestrated by BCCI, is of the cricketing out an appropriate case for its exercise.
event to be held in India; and loss of Indubitably, courts have to be
viewership in UK is not by itself sufficient 75 circumspect in exercising its power to
to make UK the natural forum of the issue an anti-suit injunction, but it must
dispute. Moreover, it must be presumed do so where the ends of justice would
otherwise be defeated.

34. We shall now analyse the argument of the 35. In Society of Lloyd's -vs- Peter Everett
Appellant that the temporary anti-suit White, [2000] C.L.C. 961, the Court had
injunction granted is against the principles of granted an ad interim anti-suit injunction
comity and amounts to Court Management of against the Defendant till the disposal of
5 the UK Court. Hilton -vs- Guyot, 159 US 113 45 action in its jurisdiction. The impugned Order
which was decided by the American Supreme is palpably not the first out of its kind, as has
Court in 1895 contains a definition of the been alleged on behalf of the ESPL.
term 'comity' which has also been accepted in
Circa 1990 by the Canadian Supreme Court in 36. The reasons for the grant of the anti-suit
10 Morguaral Investment -vs- De Savoge. It injunction by the learned Single Judge have
50 been crystallized in the following paragraph of
reads - "Comity in the legal sense is neither a
matter of absolute obligation, on the one the impugned Judgment:-
hand, nor of courtesy and goodwill, upon the To summarize, having regard to the factors to which I
other. But it is the recognition which one have made a reference hereinbelow, I am persuaded to
15 nation allows within its territory to the grant an anti-suit injunction only qua BCCI: (i) the
legislative, executive or judicial acts of another 55 plaintiff has chosen to file the Indian claim, the issues
nation, having regard both to international in which substantially overlap with the issues raised in
duty and convenience, and the rights of its the U.K. claim; (ii) the determination of the issues
own citizens or of other persons who are raised in the Indian claim would substantially do
20 under the protection of its laws." Comity does away with the grievance of ESPL which finds its
not demand of a Court possessing jurisdiction 60 reflection in the U.K. claim; (iii) the evidence in the
to abdicate its duty to decide a dispute in Indian claim is at an advance stage. Out of the six (6)
favour of a foreign Court possessing witnesses cited by the ESPL examination of four (4)
concurrent jurisdiction. It would be a witnesses is almost over. Moreover BCCI has already
25 dereliction of duty if the former declines to filed its affidavit by way of evidence (examination-in-
adjudicate so as to enable a 'forum non 65 chief) which is available with ESPL. To cite an
conveniens' Court to proceed with the hearing instance of interlinkage of evidence, the affidavit of Mr
of a lis filed or intended to be filed before it. Himanshu Mody is a case in point, in particular, his
In some vital respects, it is wholly dissimilar, deposition in paragraph 15. In the said paragraph in
30 or even the antithesis of the principle of "stay no uncertain terms the deponent has alluded to the fact
of the suit" as postulated in Section 10 of the 70 that BCCI is exerting pressure and intimidating not
CPC. We say this because the prior filing is only players (both Indian and foreign) but also
not determinate so far as issuance of an anti- "international bodies" and "cricketing bodies" of other
suit injunction is concerned; and the Court countries from the ICL. This conduct of BCCI is
35 passing this injunction does not halt its own termed by the deponent as "monopolistic" and
proceedings but brings proceedings in another 75 "unlawful" causing wrongful loss. The deponent in
Court to a standstill. It achieves this by paragraph 15(a) and (b) of his affidavit has given an
commanding any or all the parties before it, example of how influence has been exerted on the
over whom it holds sway, to take requisite foreign cricket board ECB as also ICC. The policy of
40 action. CSA and ECB, as contained in the e-mails of the

deponent to the ICL representative, has been appended 40 are allowed to be preceded with. The tests
as exhibits to the affidavit of the deponent. There is laid down in Modi Entertainment
every possibility of the said evidence being used by Network for the grant of an anti-suit
ESPL in its proceedings in U.K.; (iv) both the BCCI injunction have clearly been met since it
5 and the ESPL are Indian entities; a substantial part appears to us also that the foreign suit is
of the grievance raised with regard to the recognition of 45 oppressive, vexatious and in a forum non
tournaments held by ICL is in India. This is not to conveniens. So far as the grant of the relief
say that ICL is not aggrieved by the non- recognition as a temporary injunction is concerned,
of tournaments held outside India. However, both form the three factors that should co-exist, viz,
10 an inextricable part of ESPL's grievance in the U.K. prima facie case, balance of convenience,
claim; (v) on a comparative scale the disadvantage of 50 irretrievable loss and injury, have been
BCCI in form of cost and expenses (see ONGC case) shown so to exist by BCCI.
would be greater, while the ESPL may have the
advantage of a possibly higher monetary gain in the 38. We, being the Appellate Court, would
15 form of a damage, if it succeeds; (See SNI be justified in interfering with the
Aerospatiale case). In the Midland Bank case the impugned Order only if it is perverse. We
possibility of Midland Bank being mulct with a 55 do not detect any perversity. The view of
greater quantum of damages was considered as a the learned Single Judge is, at the lowest,
relevant factor in the grant of an anti-suit injunction. a plausible one. In Wander Ltd. -vs- Antox
20 (vi) BCCI has a legitimate right to contend that the India P. Ltd., 1990 (Supp) SCC 727 1990
Indian court being the court with which issues raised Indlaw SC 820, their Lordships had analysed
qua BCCI have a real and substantial connection - it 60 the powers of the Appellate Court to interfere
has a legitimate right to be sued in the Indian courts. with the discretionary orders passed by the
The fact that in the U.K. claim and in the documents lower courts in these terms -
25 filed there is a substantial reference to the events of "The appellate court will not interfere with the exercise
April/August, 2007 and that in respect of those of discretion of the court of first instance and substitute
issues the pendency of the Indian claim cannot be 65 its own discretion except where the discretion has been
denied; and (vii) lastly, even if it is assumed that U.K. shown to have been exercised arbitrarily, or
court is the only forum available to ESPL even then capriciously or perversely or where the court had
30 on a principle of unconscionablity (the reasons for ignored the settled principles of law regulating grant or
which I have given hereinabove) BCCI is entitled to refusal of interlocutory injunctions. An appeal against
injunction qua itself. 70 exercise of discretion is said to be an appeal on
37. The learned Single Judge, in our principle. Appellate court will not reassess the material
opinion, was correct in holding that the and seek to reach a conclusion different from the one
35 BCCI has established that there is reached by the court below if the one reached by that
substantial overlapping of the two actions court was reasonably possible on the material. The
and that there would be a risk of 75 appellate court would normally not be justified in
conflicting judgments/orders if two interfering with the exercise of discretion under appeal
parallel proceedings on the same issues solely on the ground that if it had considered the matter
at the trial stage it would have come to a contrary

conclusion. If the discretion has been exercised by the J., has perspicuously propounded the law in
trial court reasonably and in a judicial manner the fact 40 these words:
that the appellate court would have taken a different
view may not justify interference with the trial court's The grant of an interlocutory injunction is in exercise
5 exercise of discretion". This decision has been followed of discretionary power and hence, the appellate courts
subsequently in Seema Arshad Zaheer -vs- Municipal will usually not interfere with it. However, the
Corpn. of Greater Mumbai, (2006) 5 SCC 282 appellate courts will substitute their discretion if they
2006 Indlaw SC 537. The City Civil Court had 45 find that discretion has been exercised arbitrarily,
granted a temporary injunction against the capriciously, perversely, or where the court has ignored
10 Corporation which was challenged before the Bombay
the settled principles of law regulating the grant or
High Court. Speaking for the Bench His Lordship refusal of interlocutory injunctions. This principle has
R.V. Raveendran made the following pithy been stated by this Court time and time again. [See for
50 example Wander Ltd. v. Antox India P. Ltd., 1990
observations:-
(Supp) Supreme Court Cases 727 1990 Indlaw SC
32. Where the lower court acts arbitrarily, capriciously 820, Laxmikant V. Patel v. Chetanbhai Shah,
15 or perversely in the exercise of its discretion, the (2002) 3 SCC 65 2001 Indlaw SC 19796 and
appellate court will interfere. Exercise of discretion by Seema Arshad Zaheer -vs- Municipal Corpn. of
granting a temporary injunction when there is "no 55 Greater Mumbai, (2006) 5 SCC 282 2006 Indlaw
material", or refusing to grant a temporary injunction SC 537].
by ignoring the relevant documents produced, are
20 instances of action which are termed as arbitrary, The appellate court may not reassess the material and
capricious or perverse. When we refer to acting on "no seek to reach a conclusion different from the one
material" (similar to "no evidence"), we refer not only reached by the court below if the one reached by that
to cases where there is total dearth of material, but also 60 court was reasonably possible on the material. The
to cases where there is no relevant material or where appellate court would normally not be justified in
25 the material, taken as a whole, it is not reasonably interfering with the exercise of discretion under appeal
capable of supporting the exercise of discretion. In this solely on the ground that if it had considered the matter
case, there was "no material" to make out a prima at the trial stage it would have come to a contrary
facie case and therefore, the High Court in its 65 conclusion.
appellate jurisdiction, was justified in interfering in the 40. In view of the above, Appellant has
30 matter and vacating the temporary injunction granted failed to make out a case warranting
by the trial court. interference with the order of the learned
39. In Ramdev Food Products (P) Ltd. -vs- Single Judge. The Appeal filed by ESPL
Arvindbhai Rambhai Patel, (2006) 8 SCC 726 70 is, therefore, dismissed. Pending
2006 Indlaw SC 786, the Supreme Court has applications also stand dismissed.
35 taken into consideration both Wander Ltd. 41. We shall now deal with the Appeal filed by
and Seema Arshad Zaheer -vs- Municipal the BCCI which is FAO(OS) No.154/2010
Corpn. of Greater Mumbai, (2006) 5 SCC 282 and the Cross-Objections filed by ICC and
2006 Indlaw SC 537. His Lordship, S.B. Sinha, 75 ECB in the aforegoing ESPL Appeal. Both
the Appeal and the Cross-Objections are
directed against that part of the Order of Secondly, it has been stated that FAO(OS)
learned Single Judge wherein the interim 40 No.2/2010 was filed by ESPL against the
injunction qua ICC and ECB has been Order dated 7.12.2009 injuncting ESPL from
vacated. The reason for vacating the proceeding in the proposed action in UK. The
5 injunction sought in favour of ICC and ECB, Division Bench, after observing that since
as recorded by learned Single Judge, is that the Order XXXIX Rules 1 and 2 application was
injunction against ICC and ECB "cannot be 45 still not decided finally, it was not appropriate
entertained on the short ground that neither to hear the Appeal until the application is
the ICC nor ECB is before me. The plaintiff finally disposed of. In view of the urgency, the
10 in its suit cannot propound the case of a Division Bench preponed the date of hearing
litigant for relief who has not sought relief and passed a direction that the application be
from the Court". 50 disposed of by 30.1.2010 by the learned Single
Judge. Further, it was also directed in light of
42. In the Cross-Objections filed by ICC and the urgency that Memorandum of Appeal be
ECB, Mr. Ramji Srinivasan, learned Senior treated as Reply to the Order XXXIX Rules 1
15 Counsel for ICC and ECB sought to urge that and 2 application and in that light only, the
the learned Single Judge erred in vacating the 55 Court observed that presence of Defendant
stay qua ICC and ECB which was operating Nos. 2 and 3, that is, ICC and ECB, "shall not
since 25.01.2010. His argument is that ICC be necessary for the purpose of the said
and ECB are Defendants in BCCI Suit and hearing". This clarification, as per learned
20 thus were undeniably before the learned single Senior Counsel for ESPL, was made so as to
Judge. Further, it is stated that a confusion 60 enable the learned Single Judge to dispose of
was caused by the Order passed on 7.1.2010 Order XXXIX Rules 1 and 2 application
in FAO(OS) No.20/2010 where the Division expeditiously, even in the absence for any
Bench observed that presence of ICC and reason of ICC and ECB. We are in no manner
25 ECB was not necessary at the hearing of the of doubt that this did not mean that ICC and
injunction application. Mr. Srinivasan states 65 ECB were totally absolved from entering
that this was taken to understand that ICC appearance and making the equitable prayers
and EBC need not be present as necessary before the learned Single Judge. It is also
party and that the presence of BCCI would stated that in light of the fact that ICC and
30 suffice before the learned Single Judge. ECB had not appeared before the learned
Learned Senior Counsel for ESPL has 70 Single Judge at the time of disposal of the
vehemently refuted the stand of Mr. application, nor have they submitted to the
Srinivasan stating that ICC and ECB never jurisdiction of Delhi High Court, the Cross-
submitted to the jurisdiction of the Hon'ble Objections filed by them in the ESPL Appeal
35 Delhi High Court, thus they cannot seek any should not be entertained. On the issue of
protection from this Court and therefore the 75 maintainability of the Cross-Objections, Mr.
learned Single Judge was justified in not Srinivasan has argued that both ICC and ECB
extending the anti-suit Injunction qua them. have been made parties to the Suit filed by the
BCCI, that both ICC and ECB have

unconditionally subjected themselves to the 40 cause of action and issues in the two claims
jurisdiction of Delhi High Court, which fact are overlapping and that adjudication of the
has been duly recorded in our Order dated Indian Suit would substantially render the
19.07.2010, in FAO(OS) 107/2010. It is also cause in UK otiose. (These observations,
5 argued that ECB and ICC have filed their however, are made in the context of the BCCI
Written Statements in the Suit and that they 45 and not as regards ICC and ECB.)
have a substantial interest in the matter and
therefore vacation of stay qua them severely 44. Mr. Sundaram, in the Cross Appeal
works to their detriment. numbered FAO(OS) 154/2010 filed by the
BCCI against the impugned Judgment, has
10 43. Mr. Srinivasan further contends that the pointed out that the mischief that is caused by
springboard of the action before the UK 50 excluding ECB and ICC from the protection
Court is the alleged boycott of ICL by BCCI. of anti-suit injunction is that ESPL is
The cause of action that pertains to ICC and proceeding with its proposed suit by dropping
ECB ensued subsequent and consequent BCCI from the action initiated in the U.K.,
15 upon the said boycott. Since the admitted though it has retained all the allegations
position by ESPL is that the BCCI is at the 55 against BCCI. This, according to Mr.
centre of the entire conspiracy hatched against Sundaram, has caused a piquant situation
ICL and the same is already being adjudicated where despite the BCCI not being a party to
before the Delhi High Court, it would be the action as a Defendant, all the allegations
20 travesty of justice if ICC and ECB are sued in against the BCCI still survive and would
the U.K. Court for the said dispute which 60 require adjudication by the U.K. Court.
essentially is between ESPL and BCCI. ICC Therefore, the purpose of the anti-suit
and ECB have now filed their respective injunction qua the BCCI also stands defeated
Written Statements in which they have stated in effect. It is, therefore, urged that the entire
25 that the Indian Court may not have the action based on the alleged boycott by the
territorial jurisdiction to adjudicate the 65 BCCI of ICL and its consequential events be
allegations based on the events that occurred injuncted in toto as it contains the same
outside India, but since the entire grievance factual allegations which have been narrated
can be decided in the Indian Suit; therefore, in the Indian Suit.
30 ESPL may be injuncted from prosecuting its
action also against ICC and ECB. Once the 45. Mr. Vaidyanathan, learned Senior Counsel
same is decided, and the Indian Court 70 controverts these arguments on the basis that
pronounces on the allegations of anti- ICC and ECB have throughout shown
competitive practices levied against the BCCI, reluctance to appear before the Indian Court
35 ESPL can then based on that decision pursue and have not subjected themselves to the
its remedies, if any, against ICC and ECB in jurisdiction of this Court. It is further
the U.K. Court. Mr. Srinivasan has drawn our 75 contended that the events on which the U.K.
attention to various portions of the impugned action is predicated are beyond the
Order where it has been observed that the jurisdictional sway of this Court, and this fact
has also been admitted by ICC and ECB in

their Written Statements. Further, it is 40 overlaps with the Indian Suit, the lis ought not
submitted by him that the Delhi High Court is to be allowed to proceed. Therefore, in the
not the appropriate or natural forum to interest of justice, and to prevent the mischief
entertain the English action. Thus, in the that is caused by a partial stay it is expeditious
5 entire conspectus, an anti-suit injunction qua and necessary that the action which ESPL has
ICC and ECB cannot be granted. Learned 45 now initiated which relies essentially on the
Senior Counsel has placed reliance on allegations against the BCCI be also stayed.
Mitchell -vs- Carter, [1997] B.C.C. 907 and This position would obtain regardless of
Barclays Bank PLC -vs- Homan, [1992] whether or not BCCI is a party to the U.K.
10 B.C.C. 757. litigation. It seems to us that if the Indian Suit
50 is decided in favour of ESPL, the UK claim
46. We shall now compare the asseverations against ICC and ECB would become
in the proposed action sent along with the redundant in view of the nature of declaration
Notice issued initially by the Solicitors of the and injunction claimed in the Indian Suit. It is
Appellant, and the U.K. action now pending the case of ESPL that the amendments in the
15 in the High Court of Justice, Chancery 55 Rules of ICC and the refusal to grant the
Division after the grant of anti-suit injunction status of an approved unofficial tournament
by the learned Single Judge in favour of BCCI. was on the instance of the BCCI. The refusal
The averments qua the BCCI in the draft to release players by ECB was allegedly is
accompanying Notice as well as the action because of the pressure exerted by the BCCI
20 pending in the Chancery Division have 60 and the provisions of ICC. If ESPL is able to
already been reproduced above and it is noted prove anti- competitive practices on the part
that only cosmetic changes are made and of the BCCI and obtain a mandatory
there is no substantial difference in the two injunction against all such actions, all its
actions. grievances can be met by a decree in the
25 47. While upholding the injunction as regards 65 Indian Suit itself.
BCCI, we have expressed the opinion that the 48. In this analysis, BCCI has been able to
English action substantially encompasses establish the vexatious and oppressive nature
allegations that are also the subject matter of of the U.K. action which ESPL is currently
Indian Suit which must properly be tried by pursuing against ICC and ECB. We think it
30 Indian Court only. Having decided so, we 70 appropriate and in the interest of justice to
have to agree with Mr. Sundaram, learned pass an interim injunction against ESPL from
Senior Counsel for the BCCI that if the proceeding with the action against ICC and
allegations as regards the role of the BCCI are ECB pending in the Chancery Division,
allowed to be adjudicated in the U.K. action in London in so far as that action contains
35 the absence of BCCI, the temporary anti-suit 75 allegations against BCCI or in the event that
injunction granted in its favour would prove the adjudication of that action overlaps with
to be a pyrrhic victory. As we have injuncted the pending Indian Suit, viz. CS(OS)
ESPL from proceeding against the BCCI on No.1566/2007.
the ground that the proposed UK action

49. The Appeal of BCCI as well as the Cross- Akuate Internet Services Private Limited
Objections filed by ICC and ECB are allowed and others
in the above terms. CM No.4243/2010 stands
disposed off. There shall be no order as to v
5 costs. 30 Star India Private Limited and another
50. Trial Court record be sent back forthwith.
Case No : FAO(OS) 153/2013, CM APPL.

4665/2013, FAO(OS) 160/2013, C.A.V
265/2013, C.A.V 266/2013, CM APPL.
35 4880/2013, CM APPL. 4881/2013, CM
APPL. 4882/2013, FAO(OS) 161/2013,
10 C.A.V 267/2013, C.A.V 268/2013, CM
APPL. 4883/2013, CM APPL. 4884/2013
Bench :S. Ravindra Bhat, Najmi Waziri
40 Citation :2013 Indlaw DEL 3427
15 The Judgment was delivered by : S. Ravindra

Bhat, J.
1. These three interlocutory appeals seek

45 interference with the common order of the
learned Single Judge, dated 13.03.2013,
whereby he granted an ad-interim order, and
issued a "limited interim injunction restraining
the defendants from disseminating
20 50 contemporaneous match information in the
form of ball-by-ball or minute-by-minute
score updates/match alerts for a premium,
without obtaining a license from the plaintiff."
SINGLE JUDGE'S FINDINGS
55 2. The present case had a chequered history.

A learned single judge had by the earlier order
25 (dated 08-11-2012) rejected the three suits,
holding that they were barred. A Division
Bench set aside the learned single judge's

order, and directed that the application for ad- 40 Added Services (MVAS), by the appellants
interim injunction should be heard on its constituted 'unfair competition', commercial
merits. Thereafter, the learned single judge, by misappropriation or unjust commercial
the impugned order, granted the ad-interim enrichment. Star claimed to have spent Rs.
5 injunction in the manner described earlier. 3581 Crores to acquire these rights, through
The facts are that Star India Pvt. Ltd. (Star) 45 the Media Rights Agreement dated
filed three suits against Piyush Agarwal 10.08.2012. The appellants had no license for
(Cricbuzz), Idea Cellular ("Idea") and such rights from Star or BCCI to disseminate
OnMobile Global Ltd. ("ONMOBILE"). The match information.
10 Board of Cricket Control in India (BCCI) was
arrayed as the common defendant in all the 4. The Appellants had argued that Star's claim
three cases. BCCI, however, supported Star, 50 was barred by S. 16 of the Copyright Act,
claiming paramount rights over all 1957 which precluded it from claiming
information emanating from cricketing events copyright or other similar un-enumerated,
15 as the organizer and promoter of that sport in rights. The Appellants claimed to have
India. Star and BCCI contended in the suit published match information, after it entered
that the latter (BCCI) by agreement dated 55 the public domain; that it was purely factual
10.08.2012 had assigned a 'bouquet of rights' and amounted to news. They claimed that
exclusively to Star. These included 'Mobile their actions did not amount to free-riding on
20 Rights' and "Mobile Activation Rights', and the efforts of the plaintiff as they did not copy
Star alleged that the defendants had violated the content of the broadcast or provide access
those rights and consequently filed the suits 60 to audio or visual footage of the broadcast.
currently in question for permanent injunction The defendant/ appellants further argued that
and damages. Star also moved interim dissemination of information through SMS
25 injunction applications against the defendants was in exercise of their free speech right u/art.
alleging that they had violated those rights 19(1)(a) of the Constitution. Their right also
which were exclusively assigned to Star. The 65 extended to freedom to carry on business in
defendants resisted Star's claims and asserted dissemination of information to the public;
that such rights claimed by it did not exist, both these rights could be restricted through
30 and as there was no question of enforcement reasonable restrictions enacted through law,
of a non-existent right, no relief could be which fell u/art. 19(2) and not by common
granted. Before the learned Single Judge, the 70 law.
defendants' contentions were rejected and the 5. BCCI contended before the Single judge,
ad-interim injunction sought was granted. that as the organizer of cricketing events in
35 3. Before the learned Single Judge, Star and India, it owned exclusive rights in respect of
BCCI argued that unauthorized dissemination content generated during a cricketing event.
of match information through live score 75 These included the right to commercially
cards, match updates and score alerts through exploit all event content. BCCI claimed that it
Short Messaging Service (SMS)/Mobile Value is a not-for- profit organisation, registered
under the Tamil Nadu Societies Registration

Act, 1975, recognized as the de-facto apex 40 Ors vs. Transradio Press Service Inc. and
body which deals with promotion and Anr., 300 N.Y.S. 159 ("Twentieth Century
organisation of cricketing events in the Fox Case"). In all three cases, the Courts
country by the Government of India. It is not granted injunction following the ratio in the
5 funded by the Government. It funds all INS Case. The plaintiffs stated that these
cricket related activities, from setting up of the 45 precedents had great persuasive value due to
stadium to starting training academies for the similarity in the circumstances, especially
umpires, scorers etc. Its main source of with respect to play-by- play updates being
funding is by monetizing content arising from analogous to the ball-by-ball updates provided
10 cricket matches, such as sponsorships and by the defendants. The plaintiffs also relied on
commercial advertisements. The revenue 50 the decision of the Madras High Court in
received from sale of match tickets is Marksman Marketing Services Pvt. Ltd. vs.
negligible. Of the revenue generated, BCCI Bharti Tele-Ventures Ltd. & Ors., O.A. No.
claims to plough back 85% into promoting 78/2006 ("the Marksman Case"), which dealt
15 the game of cricket in India. The defendants with nearly identical facts as the present case.
on the other hand do not contribute their 55 In the Marksman Case, the Pakistan Cricket
revenue or a part thereof for the purpose of Board (PCB) had assigned its exclusive rights
promoting the game of cricket in India. The over a cricket series between India and
BCCI and the plaintiff claim that defendants Pakistan in the form of television rights, audio
20 are eating away into the mobile and internet rights, internet rights, SMS rights and other
rights, without sharing the profit gained by 60 rights to several persons on global basis for a
them; thereby indulging in unfair competition valuable consideration. M/s. VECTRACOM
and unjust commercial enrichment. Pvt. Ltd., a company incorporated under the
laws of Pakistan had entered into an
6. Star and BCCI based their arguments upon agreement with the PCB, dated 29.12.2005
25 the principle underlying the decision of the 65 with respect of SMS rights in India's Tour of
United States Supreme Court in International Pakistan. The Plaintiff prayed for an
News Service vs. Associated Press, 248 U.S. injunction u/ss. 55 and 61 of the Copyright
215, 39 S.Ct. 68 (1918) (hereafter "INS") to Act, 1957, restraining the defendants from
the effect that one who fairly pays the price disseminating information relating to scores,
30 should have beneficial use of the property. 70 alerts and updates through SMS technology
Reliance was also placed on the judgments in on wireless and mobile phones by means of
other cases regarding dissemination of content transmission to handheld mobile phones in
through updates/alerts arising from sporting respect of the matches. Relying on National
events, i.e. Pittsburgh Athletic Co. et. al v. Basketball Association and NBA Properties
35 KQV Broadcasting Co., 24 F. Supp. 490
75 Inc. v. Sports Team Analysis and Tracking
("Pittsburgh Case"), and National Exhibition Systems Inc. 939 F. Supp. 1071 ("the NBA-1
Company vs. Martin Fass, 143 N.Y.S. 2d 767, Case") the High Court held that:
("National Exhibition Case"); the decision in
Twentieth Century Sporting Club Inc. and

"The right of providing scores, alerts and updates is 40 Warner Entertainment Co., L.P. & Ors. v.
the result of expenditure of skill, labour and money of R.P.G. Netcom & etc. AIR 2007 Del 226
the organisers and so the same is saleable only by 2007 Indlaw DEL 455; and Super Cassettes
them. The sending of score updates and match alerts Industries Ltd. v. Mr. Chintamani Rao & Ors.
5 via SMS amounts to interference with the normal 2012 (49) PTC 1 (Del) where the court had
operation of the Organisers business. The defendant's 45 held that claim for enforcement of rights
act of appropriating facts and information from the beyond the Act can only be in terms of a law
match telecast and selling the same is nothing but which was in force at the time when the Act
endeavouring to reap where the defendants have not was enacted. Common law rights under
10 sown." copyright law were held to be abrogated by S.
50 31 of the previous Copyright Act, 1911. The
7. The plaintiff also relied on Secretary, appellants also contended that torts such as
Ministry of Information and Broadcasting, defamation and breach of confidentiality are
Govt. of India & Ors. v. Cricket Association the only ones recognized by the law in India
of Bengal & Ors., (1995) 2 SCC 161 1995 and that the 'unfair competition' is not a
15 Indlaw SC 2353 where the Supreme Court, 55 recognized tort. Strong reliance was placed on
held that BCCI was a non-profit making the United States Court of Appeals, Second
organization, which officially controls the Circuit ruling in National Basketball
organised game of cricket in India and had Association and NBA Properties Inc. v.
held that BCCI's duty was to explore the most Motorola Inc. 105 F. 3d. 841 (1997) ("the
20 profitable avenues of telecasting the event. 60 NBA-2 Case"). Reliance on Barclays Capital
Underlining the need to protect time sensitive Inc., Merrill Lynch, Pierce, Fenner & Smith
information emanating from cricketing events Inc. & Morgan Stanley & Co. Inc. v.
specifically score updates/match alerts the Theflyonthewall.com Inc. 650 F. 3d 876 ("The
plaintiffs position was that match information flyonthewall Case) was also placed.
25 did not enter public domain for a particular
span of time. A distinction was drawn 65 9. The appellants contended that the U.S.
between those having access to television or Courts decisions represented a departure from
radio and their ability to be informed about the 'Hot-News Doctrine' enunciated in the
match status in real-time and those who do INS Case. They argued that the NBA-2 Case
30 not have such access ( like those in office or was contexted on the pre-emption of state law
courtrooms etc) who cannot have instant 70 claims that enforced rights "equivalent" to
access to match status. exclusive copyright protection, when the work
to which the state claim fell within the area of
8. The appellant's argument, in defence, was copyright protection. This is similar to S. 16
that the 'proprietary rights' claimed in the suit of the Indian Copyright Act, 1957. The
35 were not recognized under any law or statute. 75 appellants also relied on decisions of Triangle
Reliance was placed upon S. 16 of the Publications Inc. v. New England News Paper
Copyright Act, 1957 to claim that any right Publishing Co., 46 F. Supp. 198 (1942) and
other than what was provided under the Act Compco Corp v. Day Brite Lightning Inc. 376
was barred. The appellants relied on Time

U.S. 234 (1964) , given by the US courts. They Indlaw SC 1341 which has approved the
also relied on Cadbury-Schweppes Pty. Ltd. & 'modicum of creativity' test). The latter
Ors. v. Pub Squash Co. Pty. Ltd., (1981) 1 judgment was also used to say that the cricket
W.L.R. 193 and Moorgate Tobacco Co. Ltd. scores and updates had entered the public
5 v. Philip Morris Ltd., 156 C.L.R. 414 by the 45 domain. To support the right to free speech
High Court of Australia. Further to these argument, the appellants relied upon Tata
contentions, the appellants argued that Star Press Limited vs. Mahanagar Telephone-
and BCCI could legitimately claim Nigam Limited & Ors. AIR 1995 SC 2438
broadcasting rights and copyright over the 1995 Indlaw SC 124 where the Court held
10 cinematograph film of the cricket match or 50 that "Art. 19(1)(a) not only guarantees
audio recording of the commentary to the freedom of speech and expression, it also
extent it is recognized under the Act. Their protects the rights of an individual to listen,
(the appellant's) activity was not the result of read and receive the said speech."
"free-riding" because they did not copy the
15 broadcast content or provide access to audio 10. The learned single judge formulated the
or visual footage of the broadcast. The 55 following issues for consideration:
appellants contended that they were legally a. Whether BCCI has the right to monetize
entitled to disseminate the score the information arising from a cricket match
updates/match alerts to the public and organised by it?
20 consequently generate income. Such
information, emanating from the cricket b. Whether the defendants are free-riding on
matches i.e. score updates/match alerts, were 60 the efforts of the plaintiff/BCCI?
'facts' over which there cannot be copyright
c. Whether the score alert/match updates are
monopoly. In support, reliance was placed on
already in public domain?
25 Victoria Park Racing and Recreation Grounds
Co. Ltd. vs. Taylor, 58 C.L.R. 479 ("the d. Whether the defendants have a freedom
Victoria Park Case") and Feist Publications, u/art. 19(1)(a) to disseminate
Inc. V Rural Telephone Service Co., 499 U.S. 65 contemporaneous match information?
340 (1991) ("Feist").The score update had
30 entered the public domain and therefore, e. Whether the public interest needs to be
could be freely used by anyone. Finally, the kept in mind before considering the rival
Constitutionu/art. 19(1)(a) confers upon them claims?
the freedom to disseminate information to the
f. Whether the plaintiff is entitled to an
public. It was submitted that for any kind of
70 interim injunction?
35 copyright protection, or protection akin to
those rights, the claimant should show 11. The learned single judge said that the
originality (Servewell Products Pvt. Ltd. & appellants' contention that the plaintiffs were
Anr. v. Dolphin, 2010 (43) PTC 507 2010 disentitled to copyright or other similar rights
Indlaw DEL 1082 (Del) and Eastern Book under the Act was "misplaced". The Court
40 Company v. DB Modak 2008 (1) SCC 1 2007 75 stated that the plaintiffs premised their claim

outside of provisions of the Copyright Act, 40 PTC 477 2008 Indlaw DEL 2045 (Del.) (DB)
1957; he therefore held that the decisions in (ESPN Case). In view of these, it was held
Feist, Victoria Park, Theflyonthewall and that "pre- emption under S. 16 of the Act,
Eastern Book Company to be irrelevant. He only applies to copyright or any similar right
5 declined to examine "if match information is a with respect to 'works' and cannot be
product of the 'originality or creativity' of the 45 extended to the other rights in any manner
plaintiff." He however said that "under whatsoever." The learned single judge said
Copyright Law, 'facts' cannot be copyrighted". that the plaintiffs "have merely approached
this Court to find a remedy in common law
12. The Court then proceeded to reject the against the tort of 'unjust commercial
10 appellants' contention that any rights 50 enrichment". Reliance was placed on the
analogous or similar to copyrights, were judgment of the Supreme Court in Mahabir
excluded by reason of S. 16. In doing so, it Kishore & Ors. v. State of Madhya Pradesh,
was held that S. 16 applies to 'work', which is 1989 (3) SCR 596 1989 Indlaw SC 759 to hold
defined u/s. 2(y) of the Act as (i) a literary, that "Courts in England have formulated the
15 dramatic, musical, or artistic work; (ii) a 55 doctrine of unjust enrichment in certain
cinematograph film; (iii) a sound recording. situations where it would be 'unjust' to allow
The learned single judge held that the the defendant to retain a benefit at the
definition is exhaustive and not inclusive, plaintiffs expense."
signifying the parameters of S. 16. S. 16
20 consequently was held inapplicable to It was observed that:
"anything which is not a work". The
impugned order also held that S. 16 stood 60 31. In the instant case, it is unnecessary to
further limited by Section 39A as the latter determine whether the plaintiff has absolute
provision belonged to the Chapter of the Act proprietary rights under common law over all
25 which deals with 'neighbouring' or 'related the information which arises from a cricket
rights'. It enumerates provisions of the statute match. The plaintiff is only seeking the
65 declaration of a right to generate revenue by
which apply to copyright would also apply,
mutatis mutandis to the neighbouring rights monetizing the information arising from an
(eg. Performer's rights, Broadcasting event, which has been conceptualized,
30 reproduction rights). S. 16 is not enumerated developed, created and organised by the sole
under Section 39A of the Act. Under the efforts and expenditure of the BCCI; as its
Copyright Act, rights besides copyright are 70 assignee. Admittedly, in order to monetize the
created; they include rights of broadcasting expense, effort and skill employed in
organisations under Section 37, rights of organising cricket matches in India, the BCCI
35 performers u/ss. 38 and 38A, and the moral conducted an auction in April 2012 to assign
rights of authors which are recognized u/s. exclusive rights such as television rights, audio
57. They are distinct from copyright. The 75 rights, internet rights and mobile rights, for all
single judge relied on ESPN Star Sports v. BCCI events. Besides, it has also been
Global Broadcast News Ltd. & Ors. 2008 (38) submitted that the 'Mobile Rights' and 'Mobile
Activation' rights were also available on an 'a

la carte' basis at a cost of Rs. 50 lacs per Broadcast Technology but excluding
match. Applying the test of unjust enrichment 40 Television Delivery and Internet Delivery.
as observed in the Mahabir Kishore case, it is
amply clear that the defendants are enriching 33. If the plaintiff did not intend on
5 themselves at the cost of the plaintiff.
generating revenue by exploiting these 'mobile
rights' and 'mobile activation rights', it could
32. With respect to the defendant's arguments have resorted to bidding only for selective
regarding lack of direct competition between 45 rights since they were also available on an 'a la
the parties, I find that the action of the catre' basis. It is amply clear that the plaintiffs
defendants directly competes with the grievance is not infringement of its exclusive
10 plaintiff. This is because both the plaintiff and rights over the footage of the cricket match,
defendant are seeking to generate revenue by but specifically regarding the right to raise
way of providing contemporaneous score 50 revenue by disseminating match information
updates/match alerts. The plaintiff in the contemporaneously via SMS/MVAS by
instant case has successfully bid for the entire exploiting the 'mobile rights' and 'mobile
15 'bouquet of rights' which also included activation rights' exclusively assigned to it in
'mobile rights' and 'mobile activation rights'. the 'Media Rights Agreement' dated
The Media Rights Agreement defines- 55 10.08.2012. Therefore, the element of direct
competition clearly exists specifically with
Mobile Activation Rights means the right to respect to contemporaneous score
make available any form of BCCI-branded updates/match alerts."
20 schedule; match and score alert and
application exploited via SMS, MMS or any It was further observed that:
other form of Mobile Communications
60 "36. Though the Court in the NBA-2 Case may
Technology or Mobile Wireless Technology;
It is clarified that no other form of have watered down the applicability of the 'hot news
25 exploitation would be permitted such as doctrine' from the INS Case due to the 1976
competition, game, fantasy event, predictor amendments to the Federal Copyright Law in the
game, application or other activation which U.S., it has retained the primacy of the fundamental
65 principles on unjust enrichment as evidenced in prongs
are expressly prohibited.
(i), (iii) and (iv) of the test mentioned above. Besides,
Mobile Rights means the Mobile Activation the exclusive right of an Organiser to monetize his own
30 Rights and the right to deliver or provide event need not find its source in any statutory
access to the Feed or Footage, the Audio enactment, because it is a fundamental principle of
Feed, any Unilateral Commentary and 70 equity as observed in the INS Case, The underlying
Unilateral Coverage in the Territory during principle is much the same as that which lies at the
the Rights Period, for reception and viewing base of the equitable theory of consideration in the law
35 in an intelligible form on a Mobile Device of trusts-that he, who has fairly paid the price, should
where the communication link(s) used in such have the beneficial use of the property.
delivery comprises, at least in part, Mobile
Communications Technology and/or Mobile 75 This reasoning has been followed in other cases
regarding dissemination of updates/alerts arising from
sporting events such as the Pittsburgh Case, National 40 domain qua the persons who do not have any
Exhibition Case and the Twentieth Century Fox access to a source of contemporaneous
Case. information i.e. TV or radio." The court went
on to hold that facts relating ball by ball
37. Moreover, it is clear, that match information is progress of the match were in great demand
5 generated because of the cost incurred by the BCCI in 45 and consequently it could not be said to be
organising the cricket as a sport in India. It is available immediately after the event.
undisputed, that BCCI plays the cardinal role in all
aspects of cricket in India. Right from remunerating 14. The court found merit in the Appellant's
the players, umpires and other match officials, to argument that they have a fundamental right
10 arranging sponsors for the cricket match itself. It is to disseminate such information as demanded
also undisputed that the only source of income for the 50 by the public; yet it felt that the Court had "to
BCCI is from monetizing the cricketing events balance the right of the organiser of an event
organised by it. In such a circumstance, the defendants to monetize his own event as against the right
would have had a legitimate right to disseminate of the public to receive information regarding
15 contemporaneous match information, had they such event." The impugned judgement also
obtained a license by either participating in the bid 55 sought to categorize and classify members of
conducted by the BCCI or by obtaining a sub-license the public into three categories, i.e. those who
from the plaintiff. The argument that expenditure is attended the event after purchasing tickets;
being incurred by the defendants to set-up those who watch the event being telecast live
20 infrastructure and employ personnel has no merit, and those who depend on reporting of the
because such expenditure is incurred upon the process 60 event. After analysing the decision in New
of dissemination and not towards the organization of Delhi Television Ltd. v. ICC Development
the sport or in the process of legitimately obtaining the (International) Ltd. & Anr., FAO (OS)
information from the plaintiff or BCCI. Therefore, I 460/2012, it was observed that the freedom
25 find that the action of the defendants cashing upon the of speech and expression was available to the
efforts of the plaintiff/BCCI constitutes free-riding." 65 press to disseminate information, but a line
had to be drawn in cases where the freedom is
13. The Appellants' argument that match misused. The Court quoted approvingly,
information was in the public domain was observations from the Division Bench ruling
brushed aside; the impugned order held that that reporting of such news with the motive
30 as the plaintiffs did not seek copyright of the 70 of profiting did not amount to exercise of
score updates, there was no question of freedom of speech. It was held that reporting
information entering the public domain. The of the cricketing event was quite different
term public domain, according to the learned from providing a ball- by-ball account of the
single judge, had different connotations, as match, for a consideration, through SMS
35 match facts did not enter the public domain 75 alerts. The court held that the protection of
simultaneously with the events, due to the right to freedom of speech did not extend to
time lag of few seconds as a result of time such activities:
taken for transmission. "As a corollary, the
information has still not entered the public

"49. Therefore, it is amply clear that the indefinite duration. Therefore, it cannot ask
dissemination of the ball-by-ball or minute-by-minute that "match information" of the kind which is
updates at a premium cannot be exonerated under the subject matter of the suit, should be
freedom of speech and expression as guaranteed u/art. 40 protectable as a property right. It is further
5 19(1)(a). Meanwhile, all noteworthy information submitted, in this context that there are
arising from a cricket match constitute 'news', and the several unresolved policy issues which
'reporting' of such noteworthy information would be constrain the court from holding that cricket
protected u/art. 19(1)(a)." scores or match information is property.
45 These concerns include - the scope of such
In light of the observations, and findings, the right, difference between protected facts and
10 learned Single Judge ordered: those which are not protected, the
"a. A limited interim injunction restraining the term/period of such hot news protection,
defendants from disseminating contemporaneous match question of who is the first owner of the
information in the form of ball-by-ball or minute-by- 50 property i.e. organizer or the players, manner
minute score updates/match alerts for a premium, of licensing of the rights, applicability of
15 without obtaining a license from the plaintiff. provisions relating to such incidents, how can
proprietors of such rights relinquish them to
b. There shall be no restriction upon the defendants to bring them into the public domain,
report 'noteworthy information' or 'news' from cricket 55 compulsory licensing of such rights, exercise
matches (as discussed in paragraph 49), as and when of jurisdiction by a regulatory body to grant
they arise, because 'stale news is no news'. such rights, collective licensing of events,
protection accorded to foreign events,
20 c. There shall be no requirement for the license if the
principles of fair dealings applicable to such
defendants do it gratuitously or after a time lag of 15
60 events.
minutes."
16. It is submitted that even the judgment in
APPELLANTS' CONTENTIONS
INS had voiced concerns; the opinion of
15. The appellants argue that concededly no Justice Brandeis, especially the following
25 statute creates a property right in "scores" and observations were relied on:
other happenings on the field; consequently
65 "Then the creation or recognition by courts of a new
the Court fell into error in creating new
private right may work serious injury to the general
property rights. It is argued that facts cannot
public, unless the boundaries of the right are definitely
be "owned" by anybody either under statute
established and wisely guarded. In order to reconcile
30 or common law. In this context, it is stated,
the new private right with the public interest, it may be
that the plaintiffs aver in the suit that they
70 necessary to prescribe limitations and rules for its
assert "exclusive rights over Match
enjoyment; and also to provide administrative
Information generated during a cricket match,
machinery for enforcing the rules. It is largely for this
which is purely factual information, incapable
reason that, in the effort to meet the many new
35 of copyright protection" which cannot
demands for justice incident to a rapidly changing
transform into wider, ill-defined rights of

civilization, resort to legislation has latterly been had situations substantially similar to those then at bar.
with increasing frequency. 40 The difficulties of understanding it otherwise are
insuperable. We are to suppose that the court meant to
xxxxxxxxxxxxxx xxxxxxxxxxxxx create a sort of common-law patent or copyright for
Courts are ill-equipped to make the investigations reasons of justice. Either would flagrantly conflict with
5 which should precede a determination of the limitations the scheme which Congress has for more than a century
which should be set upon any property right in news or 45 devised to cover the subject-matter... It appears to us
of the circumstances under which news gathered by a incredible that the Supreme Court should have had in
private agency should be deemed affected with a public mind any such consequences. To exclude others from
interest. Courts would be powerless to prescribe the the enjoyment of a chattel is one thing; to prevent any
10 detailed regulations essential to full enjoyment of the imitation of it, to set up a monopoly in the plan of its
rights conferred or to introduce the machinery required 50 structure, gives the author a power over his fellows
for enforcement of such regulations. Considerations vastly greater, a power which the Constitution allows
such as these should lead us to decline to establish a only Congress to create...
new rule of law in the effort to redress a newly disclosed xxxxxxxxxx xxxxxxxxxxxxxxx
15 wrong, although the propriety of some remedy appears
to be clear." Congress might see its way to create some sort of
55 temporary right, or it might not. Its decision would
Learned counsel further argued that INS was certainly be preceded by some examination of the result
acknowledged as not capable of generally creating a upon the other interests affected. Whether these would
property right, since that is a legislative prerogative. prove paramount we have no means of saying; it is not
20 For this, Justice Learned Hand's observations in for us to decide. Our vision is inevitably contracted,
Cheney Bros. v. Doris Silk Corp. [1929, Court of 60 and the whole horizon may contain much which will
Appeals] were relied upon: compose a very different picture."
"In the absence of some recognized right at common 17. Learned senior counsel stated that barring
law, or under the statutes and the plaintiff claims few instances where such so-called rights were
25 neither- a man's property is limited to the chattels recognized through judicial decisions, there is
which embody his invention. Others may imitate these 65 more or less unanimity of judicial opinion in
at their pleasure. Of the cases on which the plaintiff courts around the world, i.e. such claims
relies, the chief is International News Service v. cannot be allowed without a statutory
Associated Press 248 U.S. 215. Although that framework. Counsel stressed that especially in
30 concerned another subject-matter- printed news Courts of English Common Law jurisdictions
dispatches- we agree that, if it meant to lay down a 70 have emphatically rejected the existence of
general doctrine, it would cover this case; at least, the such "property rights" and stated that giving
language of the majority opinion goes so far. We do not relief based on such so called "created" rights
believe that it did. While it is of course true that law would be an instance of judicial legislation.
35 ordinarily speaks in general terms, there are cases Reliance was also placed on the judgment of
where the occasion is at once the justification for, and 75 this Court in Emergent Genetics India Pvt.
the limit of, what is decided. This appears to us such Ltd v. Shailendra Shivam [2011 (47) PTC 494
an instance; we think that no more was covered than
2011 Indlaw DEL 2532 (Del)], especially the ownership. The mere expending of money or
following observations were cited: 40 effort would not render the underlying facts
relating to sporting events property, capable
"in the absence of a statutory regime (as is urged by the of protection. What is conceivable, counsel
Plaintiff) is that the Courts of law would be at one fell submitted, is that the organizer of an event
5 stroke, not only make policy choices which would can have certain rights which flow from (a)his
impact livelihoods of millions, but would be ordaining, 45 ownership/control over the venue i.e. land;
unwittingly, legislation, which cannot be tested for its and/or (b)statute. In this context, the
reasonableness. An inventor or innovator undoubtedly following observations in Victoria Park
should be provided a fair regime which protects his (supra) were relied on:
10 creative efforts, and rewards him. But in the absence of
thought out policies, which weigh the advantages as "Further, he does no wrong to the plaintiff by
well as the drawbacks, that may manifest in the 50 describing to other persons, to as wide an audience as
unhindered enforcement of such impulses, there is a he can obtain, what takes place on the plaintiff's
danger of imperilling the right to occupation, ground. The court has not been referred to any
15 guaranteed by Art. 19 (1) (g) and the right to principle of law which prevents any man from
livelihood, so emphatically held to be an intrinsic part describing anything which he sees anywhere..."
of Art. 21 of the Constitution of India, by our
55 It was stated that not only the plaintiffs, but
Courts."
also others had the right to "monetize" the
The appellants' counsel also relied on the facts and information, over which there could
20 judgment of the High Court of Australia in be no monopoly. It is also argued that the
Victoria Park Racing and Recreation Grounds plaintiffs' contentions are inconsistent,
Co. Ltd v. Taylor [58 C.L.R. 479 (1937)] and 60 because their rights self professedly are not
Moorgate Tobacco Co. v. Philip Morris [156 asserted against the world at large, which is
CLR 414 (1984)] . Moorgate was particularly contrary to the principle underlying the
25 stressed upon to say that the broad tort of property rights, which exist in rem. The
unfair competition cannot be resorted to in appellants argue that the concept of "offtube
order to prevent legitimate business in an 65 reporting" is well recognized and is not
activity of the kind indulged in by the actionable unless it can be shown that the off
appellants. tube broadcaster is holding himself out to be
the official broadcaster (i.e. a case of passing
30 18. Counsel argues that it is hard to conceive
off). To quote from the decision of the High
that someone or some entity can "own" an 70 Court of Justice Chancery Division in British
event; one may be an organizer. Certain Broadcasting Corporation v Talksport Ltd
aspects or features of an event may be capable [(2001) F.S.R. 6]:
of ownership. In support of this contention,
35 i.e. inability to own facts, reliance is placed on "Talksport Ltd, the defendant before me, is a licensed
the judgment in Eastern Book Company v United Kingdom radio broadcaster. As its name
Modak 2008 (1) SCC 1 2007 Indlaw SC 1341. 75 implies, its broadcast output is very heavily focused on
The sporting event as a whole is incapable of sports coverage... [Talksport] has resorted to another

means of covering the event. It does so "offtube"; i.e. 40 Learned senior counsel also relied on Sports
from a television screen outside the stadium where the and General Press Agency Ltd v "Our Dogs"
match in question is being played Off-tube coverage is Publishing Co Ltd [1916] 2 K.B. 880
a well-known broadcasting technique. The Cadbury-schweppes Pty Ltd and Others v
5 commentator sits in front of an ordinary television set Pub Squash Co Pty Ltd. [1981] 1 W.L.R. 193
watching the event as transmitted by some other 45 and Hodgekinson Corby Ltd v Wards
organisation, and describes to the radio listener what Mobility Services Ltd [1994] Ch. 1564. Sports
he can see from the screen in front of him. The and General Press Agency Ltd. was relied on
commentator's awareness of what is going on at the to state that the organizer of an event cannot
10 match, being confined to what he sees on the television grant a license or an exclusive license to a
screen, is necessarily more limited than that of the 50 right (here the right to photograph) that does
commentator viewing the event with his own eyes from not exist. The organizer of an event, by virtue
within the stadium itself. Whereas the commentator in of being in control of premises, can impose
the stadium can pick up and comment on events away any restrictions he wishes by contract. But
15 from the scene of play which he happens to notice there is no such proprietary right in common
elsewhere in the stadium, the off-tube commentator can 55 law so as to proceed against third parties. It
only comment on what the producers of the television was held there that:
broadcast which he is watching choose to screen...
What prompted these proceedings was Talksport's ".....It is quite true that, as they were in possession of
20 advertising of its Euro 2000 coverage as being "live". the spot where it would probably be convenient to Place
The BBC objected to this. It considered that by the camera for the purpose of photographing, they had
representing that it was providing live radio coverage, 60 the advantage, so far as the land in their possession
Talksport was representing falsely that its coverage was concerned, of being the only persons who could
would be by commentators from within the stadium conveniently take photographs, but that is a very
25 describing what they see with their own eyes as distinct different thing from saying that they had the sole right
from what they see on the television monitor alone, to photograph anything inside the show. If any person
65 were to be in a position, for example from the top of a
together with ambient sound from the matches
themselves. Believing correctly that, as a broadcaster house, to photograph the show from outside it, the
without the right to provide live coverage from within association would have had no right to stop him. In
30 the match stadia, Talksport's coverage would be off- my judgment no one possesses a right of preventing
tube with ambient sound provided by pre-recorded another person photographing him any more than he
70 has a right of preventing another person giving a
sound effects, the BBC complained that Talksport was
incorrectly representing the nature of the coverage it was description of him, provided the description is not
providing, and incorrectly representing itself to be the libellous or otherwise wrongful. Those rights do not
35 holder of live broadcasting rights." exist."
19. It is submitted that the concept of unjust 20. Learned counsel for the appellants next
enrichment is embodied only in S. 72 of the 75 argued that property rights always exist in
Contract Act, which extends to pre-existing rem. In this context, what STAR and BCCI
contractual or quasi contractual relationships. assert is a property right which, does not exist
"against the world at large". It is admitted that

there is no exclusive property right against information does not pass into public domain
persons who carry on the same activities 40 upon broadcast / telecast of the match for
gratuitously. In this context, it is stated that third parties to freely and commercially
STAR admits that it cannot have any cause exploit. There is a clear distinction between
5 against one using a satellite positioned above a the information passing into public domain
stadium and broadcasts an on-going match and information being available to the public.
free of cost. It is also conceded that no cause 45 Exploitation of Match Information through
of action would lie against the present one mode of communication (such as
defendants if they were to continue operating television / radio broadcast) does not imply
10 without charging a premium. These, submit that BCCI has foreclosed / abandoned its
the appellant militate against the concept of right to exploit Match Information through all
property right and the entitlement to sue in 50 other modes of communication (such as
tort. mobile, internet). Modes of access to a match
have evolved from stadium to radio to TV to
RESPONDENTS' CONTENTIONS internet and mobile. The advent of mobile
15 21. The respondents submit that what is technology provides an additional
asserted is not an intellectual property right, or 55 independent market of cricket lovers who are
a copyright. It is a unique property right, not in a position to follow the progress of a
which stems out of a negative obligation of cricket match either through television,
the appellants, who secure match related internet or radio.
20 information contemporaneously, not to use it 23. The respondents cited the instance of
commercially for a short duration. Whereas 60 someone in a meeting or in a trek in the jungle
the right of the members of the public - who for whom match information would not be in
witness the event, having paid for the tickets public domain, despite telecast or broadcast of
or millions of television viewers who the match. Contemporaneous dissemination
25 subscribe and watch paid channels, which of match information is targeted at exploiting
cover the event, to share it on a non- 65 the high curiosity of a cricket lover to receive
commercial basis cannot be denied, yet the instantaneous information of an ongoing
obligation of a third party not to commercially match. Thus, Match Information is time-
exploit it is self evident. sensitive and has commercial value only so
30 22. The respondents insist that the narrow long as it is disseminated while it is fresh i.e.
scope of this case involves protection of 70 "Hot". Moreover, match information would
Property Rights in contemporaneous/ almost be commercially worthless if it is stale or
instantaneous dissemination of Match dated. As long as the mobile user remains
Information through Mobile SMS updates to unaware of the on- goings of the Match and is
35 those class / market of persons who have no willing to pay a premium fee to quench his
access to television, radio or internet and have 75 curiosity to know, Match Information has
access to Match Information only through commercial value, and has all the trappings of
mobile phones. It is asserted that match "hot news". Dissemination of match

information through SMS updates has high this would lead to denial of all property rights
commercial value. 40 / ownership claims in the cricket match itself;
furthermore, the entire structure of rights in
24. Dr. A.M. Singhvi, learned senior counsel, sports event, including broadcasting rights,
argues that in terms of first principles, it is the audio rights, internet rights, stadium rights etc.
5 person who has brought into existence a would be rendered nugatory. Counsel also
product which has a demand in the market, 45 stated that if ownership is partially or fully
who is entitled to the exclusion of all others to conceded even for one of the rights, then all
exploit the revenue streams arising out of incidents and insignia of ownership must
such product and realize the fruits of its follow in respect of the entire bundle of rights
10 product (in this case, a cricket match). A vesting in the BCCI.
usurper (like the appellant) cannot set up a
case that there exists other equally lucrative 50 27. It is asserted that a Division Bench of this
revenue opportunities (like broadcast rights) Court has recognized the distinction between
for the organizer of an event and general content on the one hand, and
15 consequently the mobile value added service newsworthy content generated from a special
market should be abandoned by the organizer. event on the other and observed that the
Counsel argued that Star does not assert a 55 organizer is entitled to appropriate the
Property Right against the members of the newsworthy information/value of such special
public at large, who are free to provide SMS events. Counsel submitted that the rights
20 updates of Matches gratuitously. It is however claimed and sought to be enforced are not
being asserted against competitors who are absolute, in that not all factual information is
commercially exploiting such Match 60 the subject matter of protection, but only a
Information by disseminating it limited property right - the right to generate
contemporaneously / almost instantaneously revenue by monetizing Match Information
25 through SMS alerts, for a premium fee. through the new platform / medium of
Mobile services.
25. BCCI claims, and its counsel Shri Abhinav
Vashisht argues, that it owns property rights 65 28. The respondents refute the argument that
in the match information, subject only to learned Single Judge failed to address the
public interest considerations like gratuitous primary question mentioned in the Division
30 dissemination by public, Mandatory Sharing Bench order dated 03.12.2012, i.e. whether a
of Feed, etc. which are not relevant to this fact is capable of being owned by the
case. 70 Respondents, is erroneous. The Division
Bench specifically stated that it had not dealt
26. Learned counsel submitted that denying a with the merits of the matter. The Bench also
basis in common law and equity for Star to categorically noted that the questions raised
35 assert its property rights / ownership in
by them were "just a food for thought for the
dissemination of Match Information through 75 learned Single Judge and not to be treated as
SMS updates, is contradictory and an expression of any opinion by the Division
paradoxical. In this context it is argued that Bench."

29. Learned senior counsel submitted that the 40 regime, i.e. the promotion or license of the
observations and findings of the learned single content or things owner would have to obtain.
judge are unimpeachable, because the nature In these circumstances, the valuable rights,
of the rights, are not proximate to copyright; such as mobile rights cannot be seen in
5 they really emanate out of broadcasting, which isolation. Star and BCCI would have exclusive
is covered by a separate Chapter of the 45 rights of such information which can be
Copyright Act. Even the rights claimed in this disseminated commercially only with their
case are not covered as broadcasting rights. It consent upon satisfaction of the terms which
was argued that the best argument could have may be imposed in that regard. Learned
10 been that S. 16 precluded any rights akin to counsel further emphasized that the existence
copyright. However, the rights flowed out of 50 of mobile rights of the kind which are subject
broadcasting rights, and not copyrights; matter of present case have been clearly
further, counsel contended, a crucial element established by custom and usage across the
was that S. 16 stood excluded in respect of world and are capable of enforcement.
15 broadcasting rights. Relying on the ESPN
case, it was submitted that if Parliament had 31. It was argued by learned senior counsel
intended S. 16 to apply in respect of 55 for the respondent that property rights evolve
broadcasting rights, it would have said so. The and are to be viewed contextually. The
omission was conscious and deliberate, which ownership of some rights need not be based
20 meant that only those provisions of the on the ability of the proprietors to exclude the
Copyright Act mentioned in Section 39A entire world but from its enjoyment for all
would apply, nothing else. The findings of the 60 times or absolutely; it can be a limited one as
Single judge were therefore, justified. in the circumstances of the present case. Just
as property need not be tangible, the
30. It was submitted that a sporting event exclusivity need not be absolute at any point
25 itself is the end result or product of exercise of time or against absolute in other time or as
of considerable managerial effort and use of 65 regards the object, i.e. the entire world. So
finance. The performance itself is the subject long as the one who asserts the right can
matter of recordings which constitute "work"; establish exclusivity that he, as creator or one
they are also simultaneously broadcast. These having exclusive rights to the underlying
30 activities are also protected as "broadcasting events that constitute the fact can successfully
rights". Under the circumstances, the right to 70 prevent commercial dissemination, the Courts
use any other activity or aspect, capable of would enforce the monopoly - a limited one,
monetization inheres only with the sports having regard to the context of the case, i.e.
organizer or owner of the content, such as the the typical nature of the cricket scores - as a
35 BCCI and Star. Learned senior counsel negative restraint upon those who seek to
submitted that even reportage of match 75 appropriate and commercially gain from it. In
content through telecasts, in the same form, support of this submission that the Courts
i.e. rebroadcast of the event of howsoever have recognized technological developments
short a duration, would be subject to the legal and the given fact to appropriate rights

contextually, learned counsel relied upon the of India Limited v. Manubhai, AIR 1993 SC
judgment of the Supreme Court reported as 40 172 1992 Indlaw SC 1106. Learned counsel
Jay Laxmi Salt Works (P) Limited v. State of further submitted that the "hot news"
Gujarat 1994 (4) SCC 1 1994 Indlaw SC 325. doctrine and the Court's authority to injunct
its misappropriation has been recognized as
5 32. Learned counsel further relied upon evident from the ruling of the Madras High
Jilubhai Nanbhai Khachar, Etc. v. State Of 45 Court in Marksman Marketing Services
Gujarat and Another AIR 1995 SC 142 1994 Private Limited v. Bharti Televentures Limited
Indlaw SC 883 and Vikas Sales Corporation v. [OA No. 78/2006]. In that case too, inter alia,
Commissioner of Commercial Taxes AIR SMS rights were assigned by the content
10 1996 SC 2082 1996 Indlaw SC 2581 to say
owner. The Court held that sending score
that the expression "property" has been 50 updates through SMS would amount to
construed broadly rather than in a narrow interference with the normal functioning of
fashion. Reference was also made to the the "organizer's business" and the resultant
proposed changes to S. 52 of the Transfer of misappropriation should be injuncted. Lastly,
15 Property Act, 1882 in the report of the 157th it was argued that the appellant's submissions
Law Commission of 1998. 55 are unfounded because the BCCI is under a
33. It was argued that existence of statute law mandate to ensure that dissemination of
in regard to activity related to or arising from match information is optimized commercially
the subject matter in question would not, by for the greater public good. Concomitantly,
20 itself, bar common law remedy. It was thus the mobile rights too have to be monetized to
submitted that the tort of passing-of exists 60 promote the sport of cricket in India. In
and damages can be legitimately recovered support of this submission, learned counsel
upon proof of the necessary requisites, relied upon the judgment reported as
irrespective of the law relating to registered Secretary, Ministry of Information and
25 trademarks and their infringement. Learned Broadcasting v. Cricket Council of Bengal
counsel relied upon the judgment reported as 65 1995 (2) SCC 161 1995 Indlaw SC 2353.
Ellora Industries v. Banarsi Dass Goela 1979 Learned counsel lastly relied upon the ruling
Indlaw DEL 99 (Del). of the Division Bench in New Delhi
Television Limited v. ICC Development
34. It was argued that the appellants cannot (International) Limited and Another
30 claim an unrestricted right to free speech, to 70 [FAO(OS) 460/2012] and submitted that the
clothe their otherwise illegal activities. The limited protection by way of injunction of a
right to free of speech and Expression, finite duration granted to preserve the sanctity
submitted learned counsel, is not unrestrained, of "hot news" on the basis of the "unfair
but subject to reasonable restriction u/art. competition" and "unjust enrichment"
35 19(2) itself. Learned counsel relied upon the 75 doctrine was warranted by the facts and
judgments reported as Railway Board v. circumstances of the case.
Niranjan Singhi, 1969 (1) SCC 502 1969
Indlaw SC 44 and Life Insurance Corporation

35. Before discussing the merits of the rival S. 2(y) "Work" means (i) literary, dramatic, musical
contentions, it would be necessary to extracts or artistic work (ii) sound recording (iii)
certain provisions of the Copyright Act, 1957. cinematograph film;
Though Star and BCCI assert that the rights
5 on which the suit is premised are not based on xxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx
copyright, the appellants claim that even such 40 13. Works in which copyright subsists-
rights are precluded (a) by S. 16 of the Act
and (b) independent of Section 16, the nature (1) Subject to the provisions of this section and the
of rights under that Act. The relevant other provisions of this Act, copyright shall subsist
10 provisions are extracted below: Provisions of throughout India in the following classes of works, that
the Copyright Act is to say -
"2(dd) "broadcast" means communication to the 45 (a) Original, literary, dramatic, musical and artistic
public- works,
(i) by any means of wireless diffusion, whether in any (b) cinematograph films, and
15 one or more of the forms of signs, sounds or visual
(c) sound recordings
images; or
(2) Copyright shall not subsist in any work specified
(ii) by wire, and includes a re-broadcast;
50 in sub section (1), other than a work to which the
(j)"exclusive licence" means a licence which confers on provisions of S. 40 or S. 41 apply, unless-
the licensee or on the licensee and persons authorised by
(i) In the case of published work, the work is first
20 him, to the exclusion of all other persons (including the
published in India, or where the work is first
owner of the copyright) any right comprised in the
published outside India, the author is at the date of
copyright in a work, and "exclusive licensee" shall be
55 such publication, or in a case where the author was
construed accordingly;..."
dead at that date, was at the time of his death, a
xxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx citizen of India,
25 (q) "performance" includes any mode of visual or (ii) In the case of an unpublished work other than
acoustic presentation including by any such [work of architecture], the author is at the date of the
presentation by the exhibition of a cinematograph film, 60 making of the work a citizen of India or domiciled in
or by means of radiodiffusion, or by the use of a record, India; and
or by any other means and, in relation to a lecture,
(iii) In the case of work of architecture, the work is
30 includes the delivery of such lecture.
located in India
S. 2 (gg) - "performer" includes an acrobat musician,
Explanation- In the case of a work of joint
singer, actor, juggler, snake charmer, a person
65 authorship, the conditions conferring copyright specified
delivering lecture, or any other person who makes a
in this sub section shall be satisfied by all the authors
performance.
of the work.
35 xxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx

(3) Copyright shall not subsist- (v) to make any translation of the work;
(a) In any cinematograph film if a substantial part of 35 (vi) to make any adaptation of the work;
the film is an infringement of the copyright in any other
work; (vii) to do, in relation to a translation or an
adaptation of the work, any of the acts specified in
5 (b) In any sound recording made in respect of a relation to the work in sub cls. (I) to (vi)
literary, dramatic or musical work, it in making the
sound recording, copyright in such work has been (b) In the case of a computer programme,-
infringed. 40 (i) to do any of the acts specified in clause (a)
(4) The copyright in a cinematograph film or a sound (ii) to sell or give on commercial rental or offer for sale
10 recording shall not affect the separate copyright in any or for commercial rental any copy of the computer
work in respect of which a substantial part of which, programme:
the film, or as the case may be, the sound recording is
made. Provided that such commercial rental does not apply in
45 respect of computer programmes where the programme
(5) In the case of a work or architecture, copyright itself is not the essential object of the rental.
15 shall subsist only in the artistic character and design
and shall not extend to processes or methods or (c) In the case of an artistic work,-
construction.
(i) to reproduce the work in any material form
14. Meaning of copyright- For the purposes of this including depiction in three dimensions of a two
Act, "copyright" means the exclusive right subject to 50 dimensional work or in two dimensions of a three
20 the provisions of this Act, to do or authorise the doing dimensional work;
of any of the following acts in respect of a work or any
(ii) to communicate the work to the public;
substantial part thereof, namely :-
(iii) to issue copies of the work to the public not being
(a) In the case of a literary, dramatic or musical work
copies already in circulation;
not being a computer programme,-
55 (iv) to include the work in any cinematograph film;
25 (i) to reproduce the work in any material form
including the storing of it in any medium by electronic (v) to make any adaptation of the work;
means;
(vi) to do in relation to an adaptation of the work any
(ii) to issue copies of the work to the public not being of the acts specified in relation to the work in sub cls.
copies already in circulation; (i) to (iv);
30 (iii) to perform the work in public, or communicate it 60 (d) In the case of a cinematograph film-
to the public;
(i) to make a copy of the film, including a photograph
(iv) to make any cinematograph film or sound of any image forming part thereof;
recording in respect of the work;

(ii) to sell or give on hire, or offer for sale or hire, any year next following the year in which the broadcast is
copy of the film, regardless of whether such copy has made.
been sold or given on hire on earlier occasions;
35 (3) During the continuance of a broadcast
(iii) to communicate the film to the public reproduction right in relation to any broadcast, any
person who, without the licence of the owner of the right
5 (e) In the case of a sound recording- does any of the following acts of the broadcast or any
(i) to make any other sound recording embodying it; substantial part thereof,-
(ii) to sell or give on hire, or offer for sale or hire, any 40 (a) re-broadcasts the broadcast; or
copy of the sound recording regardless of whether such (b) causes the broadcast to be heard or seen by the
copy has been sold or given on hire on earlier occasions; public on payment of any charges; or
10 (iii) To communicate the sound recording to the public (c) makes any sound recording or visual recording of
Explanation - For the purposes of this section, a copy the broadcast; or
which has been sold once shall be deemed to be a copy 45 (d) makes any reproduction of such sound recording or
already in circulation. visual recording where such initial recording was done
xxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx without licence or, where it was licensed, for any
purpose not envisaged by such licence; or
15 16. NO COPYRIGHT EXCEPT AS
PROVIDED IN THIS ACT. No person shall be (e) sells or hires to the public, or offers for such sale or
entitled to copyright or any similar right in any work, 50 hire, any such sound recording or visual recording
whether published or unpublished, otherwise than referred to in cl. (c) or clause (d), shall, subject to the
under and in accordance with the provisions of this provisions of section 39, be deemed to have infringed
20 Act or of any other law for the time being in force, but the broadcast reproduction right."
nothing in this section shall be construed as abrogating xxxxxxxxxxxxxx xxxxxxxxxxxxxx
any right or jurisdiction to restrain a breach of trust or 55 xxxxxxxxxxxxxx
confidence. "
"39. ACTS NOT INFRINGING
xxxxxxxxxxx xxxxxxxxxxxxxx BROADCAST REPRODUCTION RIGHT
25 xxxxxxxxxxxxxx OR PERFORMER'S RIGHT.
"37. BROADCAST REPRODUCTION No broadcast reproduction right or performer's right
RIGHT. 60 shall be deemed to be infringed by-
(1) Every broadcasting organisation shall have a (a) the making of any sound recording or visual
special right to be known as ''broadcast reproduction recording for the private use of the person making such
30 right'' in respect of its broadcasts. recording, or solely for purposes of bona fide teaching or
(2) The broadcast reproduction right shall subsist until research; or
twenty- five years from the beginning of the calendar

(b) the use, consistent with fair dealing, of excerpts of a others to disseminate time sensitive match
performance or of a broadcast in the reporting of information, i.e. almost contemporaneous
current events or for bona fide review, teaching or 40 news such as the result of a ball bowled,
research; or milestones achieved by the player, the score,
fall of a wicket, etc. through SMS alerts. The
5 (c) such other acts, with any necessary adaptations and appellants (defendants) assert that once the
modifications, which do not constitute infringement of event occurs, it is a "fact" over which no one
copyright u/s. 52. 45 can claim monopoly. The reporting of such
39A. OTHER PROVISIONS APPLYING facts cannot be restrained and doing so,
TO BROADCAST REPRODUCTION through courts would abridge free speech.
10 RIGHT AND PERFORMER'S RIGHT. The defendant argue that there is no such
"hot-news" principle which can be enforced
Sections 18, 19, 30, 53, 55, 58, 64, 65 and 66 50 by courts in India; that such non-statutory
shall, with any necessary adaptations and common law rights, founded on so- called
modifications, apply in relation to the broadcast notions of unfair competition or unjust
reproduction right in any broadcast and the performer's enrichment, are unenforceable. They also rely
15 right in any performance as they apply in relation to on S. 16 of the Copyright Act.
copyright in a work:
55 Is the plaintiffs' claim precluded by S. 16 of
Provided that where copyright or performer's right the Copyright Act
subsists in respect of any work or performance that has
been broadcast, no licence to reproduce such broadcast 37. The first principle of copyright law (for
20 shall take effect without the consent of the owner of any copyright inhering in works, i.e. literary,
rights or performer, as the case may be, or both of dramatic, musical or artistic work, sound
them." 60 recordings or cinematographic films) is that it
is in respect of expression of ideas, not the
36. As is evident from the above discussion, underlying facts or the ideas themselves. This
the facts are not in dispute; the cricketing was put neatly in Feist (supra)by the US
25 events (i.e. the matches) are organized by the Supreme Court as follows:
BCCI on each occasion. It has granted
exclusive broadcasting rights to Star to 65 "This case concerns the interaction of two well-
disseminate the information/content established propositions. The first is that facts are not
emanating from the event; other copyrights copyrightable; the other, that compilations of facts
30 emanating from recording of the live event generally are. Each of these propositions possesses an
too have been assigned to Star. These include impeccable pedigree. That there can be no valid
the right to record, reproduce, broadcast etc. 70 copyright in facts is universally understood. The most
the actual event with other related rights. fundamental axiom of copyright law is that "no
Among these are "mobile distribution" rights, author may copyright his ideas or the facts he
35 which is the bone of contention in these narrates." Harper & Row, Publishers, Inc. v.
proceedings. The plaintiffs assert that these Nation Enterprises, 471 U.S. 539, 556 (1985)."
rights enable only Star, to the exclusion of all

The idea was expressed succinctly by Justice judgment required to produce the work is
Holmes, when he described copyrights, in 40 trivial and is on account of the labour and the
While-Smith Music Pub. Co. v. Apollo Co. capital invested and could be characterized as
209 U.S. 1 (1908) as restraining "the purely a work which has been brought about
5 spontaneity of men where but for it there by putting some amount of labour." This
would be nothing of any kind to hinder their ruling, in the Court's opinion, is an important
doing as they saw fit." He went on to describe 45 mile stone in the development of law in India,
the right as follows: because the Court veered away from the
previous copyright protection standard
"It is a prohibition of conduct remote from the persons indicated in University of London Press, Ltd.
10 or tangibles of the party having the right. It may be
v. University Tutorial Press, Ltd., [1916] 2 Ch.
infringed a thousand miles from the owner and without 50 601, i.e. the claimed work being "the product
his ever becoming aware of the wrong. It is a right of the labour, skill and capital of one man
which could not be recognized or endured for more than which must not be appropriated by another,
a limited time, and therefore, I may remark in not the elements, the raw material, upon
15 passing, it is one which hardly can be conceived except which the labour and skill and capital of the
as a product of statute, as the authorities now agree. 55 first have been expended. To secure copyright
The ground of this extraordinary right is that the for this product, it is necessary that the labour,
person to whom it is given has invented some new skill and capital expended should be sufficient
collocation of visible or audible points, - of lines, colors, to impart to the product some quality or
20 sounds, or words. The restraint is directed against character which the raw material did not
reproducing this collocation, although but for the 60 possess and which differentiates the product
invention and the statute any one would be free to from the raw material."
combine the contents of the dictionary, the elements of (Extract from Eastern Book Co, supra).
the spectrum, or the notes of the gamut in any way that
25 he had the wit to devise. The restriction is confined to 39. Copyright protection is thus not afforded
the specific form, to the collocation devised." to a work, merely because it is the "product of
65 the labour, skill and capital". Here, the
38. The Feist requirement of some creativity plaintiff/respondents say that they are not
has been accepted as the standard governing claiming copyright protection (which is an
copyrightability of works in India, in Eastern extremely wide right, but finite in time) but a
30 Book Co (supra) by the Supreme Court.
narrower right. Copyrights for a long time did
There, the court there held that mere copy- 70 not extend to rights of performers like
edited portions of judgments (which musicians, singers, actors, acrobats, etc. It is in
contained the basic facts) did not entitle the the wake of 'livelihood threatening
publisher copyright protection as they did not technological changes' that the law intervened.
35 amount to "minimum requirement of
The Copyright Act was amended in 1994; the
creativity". That the appellant expended some 75 amendment introduced the recognition of the
skill, labour and money did not entitle them rights of the performer through Performers
the protection: "The exercise of the skill and rights. S. 38 of the Copyright Act confers

rights to performers like actors, dancers, 40 agency, not the broadcaster. The broadcaster does
jugglers, acrobats etc. acquire a copyright in his broadcast, but this is a
narrow one. Thus, it would be an infringement of it if
Likewise, broadcasting rights were not given another broadcaster captured the signals and re-
statutory protection. It was only through the transmitted them. But it would not be an infringement
5 same 1994 amendment that broadcast rights 45 (of the broadcasting copyright) if someone copied down
were afforded protection. The traditional the results from his television screen and published
understanding of copyrights therefore, was them in a newspaper. He is copying the underlying
altered in 1994, with the introduction of text but not the signals."
broadcast reproduction rights in Chapter VIII.
10 This type of work, according to Laddie, (Emphasis in original).
Prescott and Vitoria, Modern Law of
50 40. Accordingly, what determines that the
Copyright and Designs Paragraph 7.32 (2nd
edn., Butterworths, 1995) (hereinafter appellants' acts are wrongful or not is whether
"Laddie, Prescott and Vitoria"): "may be the underlying match information is protected
15 copyright even though it is wholly devoid of in law. Given this, match information - which
originality. The statutory monopoly arises are essentially facts occurring as against the
even though the author expended no mental 55 public at large - do not per se have any claim
skill, labour or ingenuity in its preparation" to protection under the Copyright Act, as the
Crucially, however, this copyright in the plaintiffs admit. Further, taking an
20 broadcast - which is protected purely by the argumentuma contrario approach in
fact of being a broadcast, absent specifically excluding facts and information
determinations of originality or expense - is 60 from the scope of protection under the
distinct from the underlying creative content, Copyright Act, the Parliament has specifically
"which may well be protected aliunde." denied protection to such claims.
25 (Laddie, Prescott and Vitoria, supra. The 41. The plaintiffs/respondents today contend
plaintiffs' contention in these cases is not that that such a right exists in common law.
their broadcast rights under the Copyright Act 65 Accepting this argument would be an act of
have been violated, but that the defendants judicial law making in a domain occupied by a
are engaging in wrongful conduct in statutory prescription, i.e. the Copyright Act.
30 disseminating the underlying facts. To offer Unlike the Designs Act and the Trademarks
an example (again Laddie, Prescott and Act which draw from pre- existing common
Vitoria, supra: 70 law rights, in the case of the Copyright Act,
"A television broadcaster acquires the results of the "except under the provisions of the Act, there
day's football matches from a press agency and keys cannot be a copyright under the common
35 them into a computer. This is then used to generate a law." (ref. Eastern Book Company and Others
teletext signal: viewers with the right equipment see the v. Navin J. Desai and Another, AIR 2001
football results displaced on their screens. It is clear 75 Delhi 185 2001 Indlaw DEL 124). Indeed, "S.
that the text regarded as a literary work may be 16 ... makes it clear that there shall be no
copyright but that copyright will belong to the news copyright except as provided in the Act.

Copyright, therefore, is a creation of the 40 66) have been extended to broadcasting rights.
statute." (Manjeh Cine Productions v. A. That cannot exclude applicability of other
Sundaresan and Another, AIR 1975 Mad 22 provisions, (that do not find express mention
1975 Indlaw MAD 258). Similar observations under Section 39A). The wording of S. 16 -
5 have been made in Time Warner and very importantly, S. 63 (which create
Entertainment Co., L.P. & Ors. v. R.P.G. 45 offences) refer to "other rights". By Section
Netcom & etc. (AIR 2007 Del 226 2007 16, "copyright or any similar right" (in a work)
Indlaw DEL 455); and Super Cassettes apart from what is created by the Act is
Industries Ltd. v. Mr. Chintamani Rao & Ors. precluded. No doubt, the expression "work"
10 2012 (49) PTC 1 (Del). To this, Star argues limits the exclusion.
that the pre-emption under S. 16 does not
50 However, equally, while the text of the
apply to broadcast and neighbouring rights
under Section 39A, which in question in the Copyright Act does not prescribe what the
present case. rights referred to in the words "other similar
rights" - other than copyright - are, this must
15 42. Apart from the reasons discussed above, necessarily allude to, inter alia, broadcasting
i.e. that to claim an established statutory right, 55 rights. This is clear from the following
some enacted standards are to be fulfilled, in reasons: S. 63 - which creates offences (and
the form of the work having to consist of yet is not included in Section 39A as
limited or minimum creativity, to qualify for applicable to broadcasting rights) states that
20 copyright protection, the fact remains that the infringement of (a) copyright in a work, or (b)
plaintiffs' stated premise for protection here is 60 "any other right created by this Act" would be
the mere expending of resources and skill - a punishable with imprisonment. Similarly,
preconditions which existed to fulfil the expressions which are not defined by Chapter
copyright protection standard prior to Eastern VIII are used; their meaning (i.e. words such
25 Book Co. That standard no longer holds as sound recording, visual recording, fair
good. The plaintiffs' argument about the 65 dealing, etc.) can be only construed with
inapplicability of Section 16, by reason of the reference to other provisions of the Copyright
language of Section 39A has facial appeal. A Act. In other words, though there is no
deeper analysis, however, would reveal that by express reference to S. 16 in Section 39A, its
30 Section 39A those provisions of the underlying premise, i.e. preclusion of rights
Copyright Act which effectuate the rights 70 other than those spelt out in Chapter VIII, by
created by Parliament for copyright common law, would apply. In ESPN, the
protection, i.e. enabling, assignment and mode Division Bench even while holding that the
of assignment of rights (Ss. 18 and 19); express omission of S. 61 in Section 39A did
35 licensing and mode of licensing (Section 30); not render that suit fatal, held that
customs authorities' right to seize imported 75 broadcasting rights are "akin" to copyrights.
copies (Section 53); remedies for infringement The decision consequently cannot be said to
(S. 55) and coercive powers of law conclude the issue as to whether such non-
enforcement authorities (Section 64, 65 and statutory and common law rights related, or

arising from subject matter of broadcasting noticing that broadcasting of the event, for
rights (which are statutory) exist, and are 40 which broadcasting rights have been created
enforceable. have a restricted term of 25 years, i.e. half of
the term of copyrights. What the plaintiffs
43. A settled canon of statutory construction seek is the protection of the widest amplitude
5 is that Parliament or the concerned legislature (in respect of not preventing reproduction of
is deemed to be aware of existing laws when it 45 content of the broadcast), but the facts
enacts a new legislative measures (Syndicate underlying the broadcast, is facially untenable.
Bank v. Prabha D. Naik, (2001) 4 SCC 713 Such rights have long been held to be barred
2001 Indlaw SC 19820). Chapter VIII was as they are "similar" to copyright protection
10 introduced due to a felt need to give limited
(Ref Donaldson v Beckett 1 ER 837 (1774); S.
protections to broadcast rights akin to 50 31 of the Copyright and Designs Act, as well
copyright (since its absence meant that those as S. 46 (5) of the UK Copyright Act, 1956
rights were precluded by S. 16). The nature of (repealed) and S. 171 (2) of the UK Copyright
copyright protection available to performers Designs and Patents Act, 1988).
15 in addition to performers' rights was
consciously preserved by Proviso to Section 44. As a result of the above discussion, it is
39A: 55 held that the rights claimed by the plaintiffs,
over and above the broadcasting rights, i.e. to
"Provided that where copyright or performer's right prevent others from publishing or sharing
subsists in respect of any work or performance that has match information or facts, for irrespective of
20 been broadcast, no licence to reproduce such broadcast commercial or non-commercial use, is
shall take effect without the consent of the owner of 60 precluded by S. 16 of the Copyrights Act; it is
rights or performer, as the case may be, or both of also precluded because of the provisions of
them." Chapter VIII of the said Act. If Parliament
Thus, all those limitations that apply to had intended such rights to exist, they would
25 copyrights (such as no protection to ideas or have been enacted, with suitable mechanisms
facts or underlying information, the idea 65 for their enforcement and effectuation.
expression merger doctrine, etc.) would apply The "Hot News" doctrine and its
in the case of copyrighted works which are application in India
also the subject of broadcast rights. If
30 Parliament had intended to give protection to 45. The so-called "hot news" doctrine, in
facts, "time sensitive information" or events support of the content misappropriation
(such as match information), there would 70 claim, which is the leitmotif of the
have been conscious protection of those plaintiff's case, was premised on unfair
rights by express provision. Therefore, the appropriation of a quasi-property right;
35 exhaustive nature of the regime in Chapter which was propounded in INS (supra).
VIII precludes, by its very nature, any claim The US Supreme Court in that instance,
for protection over and above what is 75 by its majority opinion, evolved the hot
expressly granted by its provisions. It is worth news doctrine. It would be essential to

recount, howsoever briefly, the facts 40 "This defendant . . . admits that it is

presented before the Court. For taking material that has been acquired by
comprehensive news coverage and complainant as the result of organization
minimizing costs, consenting news and the expenditure of labor, skill, and
5 organizations formed editorial money, and which is saleable by
consortiums, excluding those who did not 45 complainant for money, and that
contribute. Associated Press (AP) and defendant in appropriating it and selling it
International News Service (INS) were as its own is endeavoring to reap where it
parties to one such arrangement; they has not sown, and by disposing of it to
10 were in competition between themselves newspapers that are competitors of
in the distribution of news. The value of 50 complainant's members is appropriating
their news distribution businesses to itself the harvest of those who have
depended heavily on the timeliness of the sown. Stripped of all disguises, the
news reaching their paying audiences. AP process amounts to an unauthorized
15 alleged that INS copied news from interference with the normal operation of
bulletin boards and from early editions of 55 complainant's legitimate business
AP members' newspapers and passed the precisely at the point where the profit is to
news off as its own to INS customers. The be reaped, in order to divert a material
time period of the alleged portion of the profit from those who have
20 misappropriation - World War I - made earned it to those who have not; with
this difficult to AP since, like other news 60 special advantage to defendant in the
agencies, it spent large amounts reporting competition because of the fact that it is
world affairs across the Atlantic Ocean. not burdened with any part of the expense
The questions posed before the Court of gathering the news. The transaction
25 were whether a property right in news speaks for itself, and a court of equity
existed to prohibit such misappropriation, 65 ought not to hesitate long in
and, if so, whether such a property right characterizing it as unfair competition in
should be limited in time to balance the business."
competing interests. Chief Justice Pitney's
30 opinion held that the information found in 46. The US Supreme Court was not
the AP news was not copyrightable as unanimous; there were three dissenters;
70 two renowned jurists, i.e. Holmes, J and
"the information respecting current events
contained in the literary production is not Brandeis, J dissented. Specifically, Justice
the creation of a writer but is a report of Brandeis remarked, in his opinion that:
35 matters that ordinarily are publici juris; it "Then the creation or recognition by
is the history of the day." Nevertheless, courts of a new private right may work
the same opinion went on to propound the 75 serious injury to the general public, unless
"hot news" doctrine. The bedrock of the the boundaries of the right are definitely
opinion was that: established and wisely guarded. In order
to reconcile the new private right with the
public interest, it may be necessary to 40 flagrantly conflict with the scheme which
prescribe limitations and rules for its Congress has for more than a century
enjoyment; and also to provide devised to cover the subject-matter.
administrative machinery for enforcing
5 the rules. It is largely for this reason that, Qua patent, we should at least have to
in the effort to meet the many new decide, as tabula rasa, whether the design
demands for justice incident to a rapidly 45 or machine was new and required
changing civilization, resort to legislation invention; further, we must ignore the
has latterly been had with increasing Patent Office whose action has always
10 frequency..."
been a condition upon the creation of this
kind of property. Qua copyright, although
47. The next decision, this one relied on 50 it would be simpler to decide upon the
by the Appellant, is Cheney Brothers v merits, we should equally be obliged to
Doris Silk Corporation 35 F.2d 279. Here, dispense with the conditions imposed
the Second (Appellate) Circuit Court, upon the creation of the right. Nor, if we
15 speaking through Chief Judge Learned went so far, should we know whether the
Hand narrowed the application of the INS 55 property so recognized should be limited
ruling, holding that: to the periods prescribed in the statutes,
or should extend as long as the author's
"Of the cases on which the plaintiff relies, grievance. It appears to us incredible that
the chief is International News Service v. the Supreme Court should have had in
20 Associated Press, 248 U.S. 215, 39 S.Ct. 68, 60 mind any such consequences. To exclude
63 L.Ed. 211, 2 A.L.R. 293. Although that others from the enjoyment of a chattel is
concerned another subject-matter-- one thing; to prevent any imitation of it, to
printed news dispatches-- we agree that, if set up a monopoly in the plan of its
it meant to lay down a general doctrine, it structure, gives the author a power over
25 would cover this case; at least, the 65 his fellows vastly greater, a power which
language of the majority opinion goes so the Constitution allows only Congress to
far. We do not believe that it did. While it create."
is of course true that law ordinarily speaks
in general terms, there are cases where the 48. Indeed, the most damaging decision
30 occasion is at once the justification for, undermining the INS doctrine was by the
and the limit of, what is decided. This 70 Supreme Court itself in Errie Railroad v
appears to us such an instance; we think Tompkins 304 US 68.
that no more was covered than situations
substantially similar to those then at bar. The INS court's jurisdiction (to declare
35 The difficulties of understanding it the "hot news" doctrine) was
otherwise are insuperable. We are to underpinned on a federally existing
suppose that the court meant to create a 75 "common law" in an area concededly
sort of common-law patent or copyright which fell in the states' legislative domain.
for reasons of justice. Either would No state (or federal) statute existed. That

doctrine was discredited and the previous correct.' In disapproving that doctrine we
rulings upholding the federal common law 40 do not holdunconstitutional s. 34 of the
principle overruled. Here, Brandeis, J Federal Judiciary Act of 1789 or any other
spoke for the court which overruled the act of Congress. We merely declare that in
5 federal common law doctrine: applying the doctrine this Court and the
lower courts have invaded rights which in
"The fallacy underlying the rule declared 45 our opinion are reserved by the
in Swift v. Tyson is made clear by Mr. Constitution to the several states."
Justice Holmes. The doctrine rests upon
the assumption that there is 'a Justice Brandeis thus was prescient, when
10 transcendental body of law outside of any in his (now famous) dissent he foresaw
particular State but obligatory within it the Court's overreach in "creating" law.
unless and until changed by statute,' that
federal courts have the power to use their 50 49. Subsequently, NBA (1998) was a case
judgment as to what the rules of common where Motorola manufactured and sold
15 law are; and that in the federal courts 'the
the SportsTrax paging device; STATS
parties are entitled to an independent supplied game information transmitted to
judgment on matters of general law': the pagers. SportsTrax's pager operated in
55 four basic modes including the "current,"
'But law in the sense in which courts one. In the current mode,
speak of it today does not exist without SportsTraxdisplayed information on NBA
20 some definite authority behind it. The games in progress: (i) the teams playing;
common law so far as it is enforced in a (ii) score changes; (iii) the team in
State, whether called common law or not, 60 possession of the ball; (iv) whether the
is not the common law generally but the team is in the free-throw bonus; (v) the
law of that State existing by the authority quarter of the game; and (vi) time
25 of that State without regard to what it may remaining in the quarter. The information
have been in England or anywhere else. * was updated every two to three minutes,
** 65 with more frequent updates near the end
of the first half and the end of the game.
'The authority and only authority is the There was a time lag of about two or three
State, and if that be so, the voice adopted minutes between events in the game itself
30 by the State as its own (whether it be of its
and when information appeared on the
Legislature or of its Supreme Court) 70 pager screen. The SportsTrax's operation
should utter the last word.' relied on a "data feed" supplied by
Thus the doctrine of Swift v. Tyson is, as STATS reporters who watched games on
Mr. Justice Holmes said, 'an television or listen to them on the radio.
35 unconstitutional assumption of powers by The reporters keyed into a personal
the Courts of the United States which no 75 computer changes in the score and other
lapse of time or respectable array of match information such as successful and
opinion should make us hesitate to missed shots, fouls, etc. The information

was relayed by modem to STATS's host 40 expression of hope or faith as a

computer, which compiled, analysed, and determination of what will actually
formatted data for retransmission. The happen. Unlike movies, plays, television
information was uploaded via satellite to programs, or operas, athletic events are
5 various FM radio networks which in turn competitive and have no underlying
emitted signals to individual SportsTrax 45 script. Preparation may even cause
pagers. mistakes to succeed, like the broken play
in football that gains yardage because the
50. NBA's complaint concerned the opposition could not expect it. Athletic
SportsTrax device; it also offered evidence events may also result in wholly
10 at trial concerning STATS's America On- 50 unanticipated occurrences, the most
Line ("AOL") site. Users, who accessed notable recent event being in a
STATS's AOL site, were provided with championship baseball game in which
more comprehensive and detailed real- interference with a fly ball caused an
time game information than was displayed umpire to signal erroneously a home run.
15 on a SportsTrax pager. NBA asserted six
claims for relief: (i) state law unfair 55 What "authorship" there is in a sports
competition by misappropriation; (ii) false event, moreover, must be open to copying
advertising u/s. 43(a) of the Lanham Act, by competitors if fans are to be attracted.
15 U.S.C. S. 1125(a); (iii) false If the inventor of the T- formation in
20 representation of origin u/s. 43(a) of the football had been able to copyright it, the
Lanham Act; (iv) state and common law 60 sport might have come to an end instead
unfair competition by false advertising of prospering."
and false designation of origin; (v) federal
copyright infringement; and (vi) unlawful 51. The NBA court refused to hold as
25 interception of communications under the unlawful the defendant's activity of
Communications Act of 1934, 47 U.S.C. collecting, collating and disseminating
65 match information through pagers, almost
Statute 605. Motorola counterclaimed,
alleging that the NBA unlawfully contemporaneously with the event. Along
interfered with Motorola's contractual the way, its judgment dealt with S. 301 of
30 relations with four individual NBA teams the Copyright Act, 1976 which had
that had agreed to sponsor and advertise brought about a paradigm shift in the law
SportsTrax. The NBA court rejected that 70 after INS defining what was pre-empted
there could be any copyright in sporting by federal law and what was not. The
events: Circuit court refused to upset the findings
of the trial court, after evolving and
35 "Sports events are not "authored" in any applying the narrow confines of the "Hot
common sense of the word. There is, of 75 News" doctrine. It was held that:
course, at least at the professional level,
considerable preparation for a game. "We therefore find the extra elements--
However, the preparation is as much an those in addition to the elements of

copyright infringement--that allow a "hot second product is transmitting live, full

news" claim to survive preemption are: (i) 40 descriptions of those games; and the third
the time-sensitive value of factual product is collecting and retransmitting
information, (ii) the free-riding by a strictly factual information about the
5 defendant, and (iii) the threat to the very games. The first and second products are
existence of the product or service the NBA's primary business: producing
provided by the plaintiff. 45 basketball games for live attendance and
licensing copyrighted broadcasts of those
2. The Legality of SportsTrax games. The collection and retransmission
[10] We conclude that Motorola and of strictly factual material about the games
10 STATS have not engaged in unlawful is a different product: e.g., box- scores in
misappropriation under the "hot-news" 50 newspapers, summaries of statistics on
test set out above. To be sure, some of the television sports news, and real-time facts
elements of a "hot-news" INS claim are to be transmitted to pagers. In our view,
met. The information transmitted to the NBA has failed to show any
15 SportsTrax is not precisely competitive effect whatsoever from
contemporaneous, but it is nevertheless 55 SportsTrax on the first and second
time- sensitive. Also, the NBA does products and a lack of any free-riding by
provide, or will shortly do so, information SportsTrax on the third.
like that available through SportsTrax. It With regard to the NBA's primary
20 now offers a service called "Gamestats" products--producing basketball games
that provides official play- by-play game 60 with live attendance and licensing
sheets and half-time and final box scores copyrighted broadcasts of those games--
within each arena. It also provides such there is no evidencethat anyone regards
information to the media in each arena. In SportsTrax or the AOL site as a substitute
25 the future, the NBA plans to enhance for attending NBA games or watching
Gamestats so that it will be networked 65 them on television. In fact, Motorola
between the various arenas and will markets SportsTrax as being designed
support a pager product analogous to "for those times when you cannot be at
SportsTrax. SportsTrax will of course the arena, watch the game on TV, or listen
30 directly compete with an enhanced to the radio ..."
Gamestats.
70 The NBA argues that the pager market is
However, there are critical elements also relevant to a "hot-news" INS-type
missing in the NBA's attempt to assert a claim and that SportsTrax's future
"hot-news" INS-type claim. As framed by competition with Gamestats satisfies any
35 the NBA, their claim compresses and
missing element. We agree that there is a
confuses three different informational 75 separate market for the real-time
products. The first product is generating transmission of factual information to
the information by playing the games; the pagers or similar devices, such as
STATS's AOL site. However, we disagree products based on free-riding by Motorola

that SportsTrax is in any sense free-riding 40 and STATS, and the NBA's
off Gamestats. misappropriation claim based on New
York law is pre-empted."
An indispensable element of an INS "hot-
5 news" claim is free riding by a defendant The Federal Pre-emption clause (S. 301)
on a plaintiff's product, enabling the reads as follows:
defendant to produce a directly
45 "301. Preemption with respect to other
competitive product for less money
because it has lower costs. SportsTrax is laws (a) On and after January 1, 1978, all
10 not such a product. The use of pagers to legal or equitable rights that are
transmit real-time information about NBA equivalent to any of the exclusive rights
games requires: (i) the collecting of facts within the general scope of copyright as
about the games; (ii) the transmission of 50 specified by s. 106 in works of authorship
these facts on a network; (iii) the that are fixed in a tangible medium of
15 assembling of them by the particular expression and come within the subject
service; and (iv) the transmission of them matter of copyright as specified by ss. 102
to pagers or an on-line computer site. and 103, whether created before or after
Appellants are in no way free- riding on 55 that date and whether published or
Gamestats. Motorola and STATS expend unpublished, are governed exclusively by
20 their own resources to collect purely this title. Thereafter, no person is entitled
factual information generated in NBA to any such right or equivalent right in any
games to transmit to SportsTrax pagers. such work under the common law or
They have their own network and 60 statutes of any State. (b) Nothing in this
assemble and transmit data themselves. title annuls or limits any rights or
remedies under the common law or
25 xxxxxxxxx xxxxxxxxx xxxxxxxxx statutes of any State with respect to-- (1)
subject matter that does not come within
SportsTrax and Gamestats are each 65 the subject matter of copyright as
bearing their own costs of collecting specified by ss. 102 and 103, including
factual information on NBA games, and, works of authorship not fixed in any
if one produces a product that is cheaper tangible medium of expression; or ... (3)
30 or otherwise superior to the other, that
activities violating legal or equitable rights
producer will prevail in the marketplace. 70 that are not equivalent to any of the
This is obviously not the situation against exclusive rights within the general scope
which INS was intended to prevent: the of copyright as specified by s. 106."
potential lack of any such product or
35 service because of the anticipation of free- 52. The ruling in NBA has received recent
riding. approval and its ratio wasapplied in The
75 Flyonthewall.com Inc v Barclays Capital
For the foregoing reasons, the NBA has Inc 2011 WL 2437554 (2d Cir. June 20,
not shown any damage to any of its
2011)by the Second Federal (Appellate) trial court ruling. The INS decision was
Circuit Court. The Plaintiffs were three 40 described, in The Flyonthewall as :
financial services firms which regularly
prepared research reports on publicly "Some seventy-five years after its death
5 traded companies. The reports sometimes under Erie, INS thus maintains a ghostly
made stock recommendations. Every presence as a description of a tort theory,
trading day, before the stock market not as precedential establishment of a tort
opened, the firms used to disseminate the 45 cause of action ..."
research reports and recommendations to The court put to rest the "unfair" result
10 their clients and potential clients, but not theory rather forcefully, in the following
to the general public. The firms' stock terms:
recommendations usually result in
increased trading activity in that stock. "No matter how "unfair" Motorola's use
The firms benefited from this increased 50 of NBA facts and statistics may have been
15 trading activity because they received to the NBA -- or Fly's use of the fact of the
commissions when clients placed trade Firms' Recommendations may be to the
through them. The firms contended that Firms -- then, such unfairness alone is
clients were far more likely to place their immaterial to a determination whether a
trades through one of them if they learned 55 cause of action for misappropriation has
20 about a recommendation directly from been preempted by the Copyright Act.
that firm. The defendant, The adoption of new technology that
Flyonthewall.com ("Fly"), obtained the injures or destroys present business
recommendations before they were models is commonplace. Whether fair or
available to the general public and before 60 not, that cannot, without more, be
25 the market opened. Fly would provide the prevented by application of the
recommendations to its own subscribers. misappropriation tort. Indeed, because
the Copyright Act itself provides a remedy
As a result, the firms' clients and others for wrongful copying, such unfairness may
would learn about the recommendations 65 be seen as supporting a finding that the
from Fly and, according to the firms, were Act pre-empts the tort."
30 less likely to place their trades through the
firms, which in turn sued the Fly, 53. It would thus be seen that the INS
contending that the latter was guilty of decision, propounding "time sensitive"
content misappropriation, relying on the hot-news-misappropriation doctrine,
Hot-news doctrine evolved in INS. The 70 based on unfair dealing and unfair
35 trial court applied the hot-news doctrine, competition, had its sceptics from
and held that the Fly had misappropriated inception. The majority judgment in INS
content; it granted relief to the firms. On acknowledged that even such time
appeal, the Second Circuit reversed the sensitive information was not
75 copyrightable (as it was publici juris).
Cheney saw its foundations being
questioned by the Appellate Circuit Court. 40 news where both parties are "direct
Errie Railroad, a later decision of the competitors" and not merely where the
Supreme Court, undercut the plaintiff's primary service or product is not
constitutional legitimacy of the Court's hot news dissemination, but match
5 assumption to weave doctrines, i.e. the organisation or broadcasting of those
jurisdiction to discover and enforce federal 45 events. This critical aspect is absent in the
"common" law. In NBA, the Second present case, as neither Star, nor BCCI
Circuit, post the 1976 Copyright Act, engage themselves primarily in match
interpreting a federal pre-emption news dissemination through SMS.
10 provision (Section 301, which enjoined
States from enacting or giving effect to 55. The tenuous basis of the "hot-news"
50 doctrine in the country of its origin apart,
copyright-like acts or rights) held that the
hot news doctrine survived in a severely the Australian High Court has rejected its
curtailed manner. Importantly, the "free- applicability to common law countries
15 riding" or misappropriation claim, it was repeatedly. In Victoria Park (supra) it was
held, survived only if the plaintiff was able held that:
to show that the defendant was in direct 55 "If English law had followed the course of
competition with it in the same activity. development that has recently taken place
The Court observed that the event in the United States, the "broadcasting
20 organiser owned "primary products-- rights" in respect of the races might have
producing basketball games with live been protected as part of the quasi-
attendance and licensing copyrighted 60 property created by the enterprise,
broadcasts of those games" and there was organization and labour of the plaintiff in
"no evidencethat anyone regards establishing and equipping a racecourse
25 SportsTrax (defendant's pager) or the and doing all that is necessary to conduct
AOL site as a substitute for attending race meetings. But courts of equity have
NBA games or watching them on 65 not in British jurisdictions thrown the
television. In fact, Motorola markets protection of an injunction around all the
SportsTrax as being designed "for those intangible elements of value, that is, value
30 times when you cannot be at the arena, in exchange, which may flow from the
watch the game on TV, or listen to the exercise by an individual of his powers or
radio ..." 70 resources whether in the organization of a
54. The preceding discussion underscores business or undertaking or the use of
the meandering course, the rise and ingenuity, knowledge, skill or labour. This
35 diminution of the hot-news doctrine, and is sufficiently evidenced by the history of
the narrow confines of its present the law of copyright and by the fact that
existence. The present avatar ("ghostly 75 the exclusive right to invention,
presence" a.k.a The Flyonthewall.com) is trademarks, designs, trade name and
narrowed to injuncting time sensitive reputation are dealt with in English law as
special heads of protected interests and
not under a wide generalization. In Pub Squash Co Pty Ltd. [1981] 1 W.L.R.
dissenting from a judgment of the 40 193
Supreme Court of the United States by
which the organized collection of news by 56. Creating property (or quasi-property)
5 a news service was held to give it in equity rights in information - which is what the
a quasi-property protected against plaintiffs (Star and BCCI) request the
appropriation by rival news agencies, Court to do in this case - stands to upset
Brandeis J. gave reasons which 45 the statutory balance carefully created by
substantially represent the English view the legislature through the Copyright Act.
10 and he supported his opinion by a citation
In a domain where Parliament has
of much English authority (International stepped in to create a statutory regime, an
News Service v. Associated Press(1)). His exercise of creating 'supplementary' rights
judgment appears to me to contain an 50 in common law would well result in
adequate answer both upon principle and obstructing the legislative scheme, as
15 authority..."
would be the case here. The argument of
BCCI that it is under a duty (by relying on
Similarly, later in Moorgate Tobacco Co. the Supreme Court judgment in Secretary,
v. Philip Morris [156 CLR 414 (1984)], the 55 Ministry of Information and
High Court of Australia upheld the Broadcasting)to monetize broadcasting
Victoria Park Judgment and held: and other rights, and is doing exactly that,
by permitting Star to monetize hot-news
20 "the decision in International News by licensing mobile rights is
Service, which was hailed in the United 60 misconceived, to put it mildly. One can
States as a "landmark" in the law of unfair "monetize" or license only that over
competition, has been seen even in that which one has property rights. Neither
country to be more properly described as Star nor BCCI can be permitted to say that
25 an island. Indeed, in a recent United mentioning "mobile" rights and
States case...the "legal concept" of unfair 65 auctioning them, would ipso facto
competition was described as a "child of legitimize the parcelling away of right to
confusion" which has "spawned a body of disseminate information, without first
law that lacks in judicial definition and establishing that the right or exclusive
30 scope... The notion of a general action for domain over such rights existed in the
"unfair trading" or "unfair competition" 70 first instance. Similarly, the plaintiff's
has received little encouragement in either reliance on New Delhi Television (supra)
the House of Lords or this Court..." is of no avail. The Division Bench, in that
In the United Kingdom, similar case, had to deal with broadcast of
35 contentions were rejected (ref. Sports and sporting events by a news channel. The
General Press Agency Ltd v "Our Dogs" 75 Court had to deal with whether the
Publishing Co Ltd 1916 (2) K.B. 880; and defendant's conduct amounted to fair use.
Cadbury-Schweppes Pty Ltd and Others v

57. In this context, the Court recollects 40 third party is to publish such information
that the Supreme Court has held, when for commercial gain or without any such
"[i]n our constitutional scheme ... statute motive.
monopoly is not encouraged (and)
5 [k]nowledge must be allowed to be Plaintiff/Respondents' claim for
disseminated", (Entertainment Network injunction based on unfair competition
India Ltd. v. Super Cassettes Industries 45 58. Star and BCCI assert that the
Ltd., 2008 (13) SCC 30 2008 Indlaw SC Appellants' actions amount to unfair
890) it is inapt that the courts create a competition which entitles them to bring
10 monopoly over facts which the Parliament the present suit. They cite the common
has deemed fit to exclude from protection law as the source of the court's power to
under the Copyright Act. The plaintiff has 50 grant relief, including the equitable relief
not been able to show, in the opinion of of injunction. The court has difficulty in
the court, how it has proprietary rights accepting this submission. In doing so
15 over the facts and information it seeks to (i.e. accepting that there exists a doctrine
protect - even for a limited duration. A of unfair competition or 'hot news'), the
telling aspect of the present case is that 55 Courts would be granting protection to
the plaintiff is willing to state that the certain intangibles (in this case, match
moment the event occurs, i.e. any ball is information) not covered under the
20 bowled or a wicket falls, the fact or specific statutory regimes. The opinion in
information passes into the public L'Oreal SA and Others v. Bellure NV and
domain, as far as viewers and subscribers 60 Others, [2007] EWCA Civ. 968 rightly
(i.e. both the spectators at the venue, as explains that:
well as the tens of millions of television
25 viewers) are concerned. "... the basic economic rule is that
competition is not only lawful but a
However, it does not somehow become mainspring of the economy. The legislator
part of the public domain, if any one or 65 has recognized that there should be
some of them chose to relay the exceptions. It has laid down the rules for
underlying facts, in the course of these: the laws of patents, trademarks,
30 commerce. This aspect completely copyrights and designs have all been
undermines the plaintiff's case about it fashion for the purpose. Each of them
possessing proprietary rights for very 70 have rules for their existence ... each has
limited duration, in respect of such facts. their own justification. It is not for the
For the reasons discussed above, it is held judges to step in and legislate into
35 that the plaintiff cannot claim any existence new categories of intellectual
exclusive property or other such rights to property ..."
injunct the publication of match
information, or hot-news, as claimed by it, 75 In fact, on being asked whether it was
irrespective of whether the object of such open for the Courts to create such judicial
remedies to remedy what the Courts
consider 'unfair' (the semantic vagueness accept the doctrine of 'unfair

of that term often escaping all attempts at 40 competition', especially in the European
careful and precise formulation), Lord Union, is pursuant to legislative action by
Justice Jacob noted, and rightly so, that "I the European Council, and not as a
5 do not think it open to the Court to judicial extension. To the contrary, similar
legislate in this way.". Similarly, in proposals for extending the scope of
Moorgate Tobacco Co. Ltd. v. Philip 45 protection judicially was rejected in a line
Morris Ltd. and Another (No. 2), [1984] of cases, most notably, Cadbury-
156 C.L.R. 414, the Australian Federal Schweppes Pvt. Ltd. v. Pub Squash, [1981]
10 Court noted that 1 W.L.R. 193.
"[t]he rejection of a general action for 60. Denying the claim about the tort of
"unfair competition" involves no more 50 unfair competition does not betray the
than recognition of the fact that the Court's reticence to protect rights in
existence of such an action is inconsistent intangibles or to ensure 'fairness' in
15 with the established limits of the commercial dealings, but rather, reflects
traditional and statutory causes of action sound judicial restraint, to defer to the
which are available to a trader in respect 55 Parliament's policy decisions represented
of damage caused or threatened by a in the various intellectual property rights
competitor. Those limits, which define the statutes. Equally, once we recognize that
20 boundary between the area of legal or mere information cannot be the subject
equitable restrain and protection and the matter of protection under common law, it
area of untrammelled competition, 60 becomes apparent that other means
increasingly reflect what the Respondent continue to remain available to protect
Parliament or Parliaments have such information: by way of an action for
25 determined to be the appropriate balance breach of the common law duty of
between competing claims and policies. confidence, which is a right in personam
Neither legal principle nor social utility 65 against an individual who has come across
requires or warrants the obliteration of such information under confidence, and
that boundary by the importation of cause crucially, is distinct from a propriety right
30 of action whose main characteristic is the in such information itself opposable in
scope it allows, under high-sounding rem. In the circumstances of the present
generalizations, for judicial indulgence of 70 case, that eventuality does not arise.
idiosyncratic notions of what is fair in the
market place." 61. Moreover, there exists another cogent
reason for denying the existence of any
35 (Emphasis supplied) general misappropriation or 'unfair
competition' theory - i.e. that it would
59. In fact, the recent trend internationally 75 create a non-existent distinction between
to accord protection to rights in 'copying' (or reproduction) (which is the
information - in varying degrees - or to wrongful act/actionable trigger under the

Copyright Act) and 'appropriation' (or 40 appears to be a claim for unauthorized

misappropriation) (which is the wrongful 'copying' of facts, which are not
act/actionable trigger under the doctrine copyrightable.
of unfair competition) . Under the
5 Copyright Act, the copying or Thus, for example, claims that assert
reproduction of match information - the passing off, or a fraudulent element, or
information we are concerned with in the 45 indeed, a question of information
present case - is permitted. To say, now, disclosed in confidence (as specifically
that the doctrine of unfair competition mentioned in Section 16), each having a
10 prohibits the misappropriation of match distinct qualitative element from a mere
information would either mean that copyright may survive S. 16 pre-emption,
misappropriation under common law can 50 but not otherwise. A contrary reading
supplant the Copyright Act (which cannot would allow for claims based on alternate
be the case, as discussed above), or that common law remedies that S. 16 considers
15 copying and misappropriation refer to two to be the sole domain of the statute. At the
distinct acts, which would be a distinction same time, the Court ought to be cautious
without a difference. As Nimmer explains, 55 of the scope of pre-emption under S. 16 to
"it is difficult to see any substance in not restrict independent claims "merely
(this) asserted distinction ..." Thus, it because ... (it) relates to intellectual
20 must be: property (or specifically, copyright) ..."
(Aronson v. Quick Point Pencil Co., 440
"concluded, then, that in this context, 60 US 257) Rather, if the "nature and
misappropriation is but another label for degree" of the right asserted by Star is
reproduction, and as such, is a pre- such that it conflicts with the scheme of
empted right within the general scope of the Copyright Act (Kewanee Oil Co. v.
25 copyright ..." (Nimmer & Nimmer, Bicron Corp., 416 US 470 (1974), thus
Nimmer on Copyright (Indian Reprint) p. 65 offering "the equivalent of a (copyright)
1-47, Vol. I (Lexis Nexis, 2010) monopoly" (Sears, Roebuck and Co. v.
(hereinafter "Nimmer"). Stiffel Co., 376 US 225) that the Act itself
does not recognize, its claim must be pre-
Accordingly, unless a qualitatively empted by S. 16. Quite clearly, in this case,
30 different element is purported to be 70 according protection to match information
included in the doctrine of 'unfair would provide Star - in substance - a
competition' as compared to a copyright copyright in information/facts, a
claim, the pre-emption under S. 16 would conclusion that Indian jurisprudence
apply to such claims, as is the case here. under the Copyright Act strongly militates
35 Star claims that the unauthorized 75 against and equally, one that upsets - to
dissemination of match information (i.e. say the least - the carefully crafted scheme
'misappropriation' of its quasi-property) is of copyrightability under the Act. In fact,
unlawful, though in reality, once scaled in Bonito Boats v. Thunder Craft Boats,
down to the essence of the claim, it
489 US 141, the United States Supreme 51), i.e. whether, in terms of Section 16, the
Court considered a similar question of 40 right sought to be asserted is a "copyright or
pre-emption under patent law. In holding any similar right in any work". (emphasis
that the protection sought to be granted supplied). Indeed, such preclusion, and the
5 by the State law was pre-empted by test of equivalence, must necessarily be the
federal law, the Court held as follows: import of S. 16 to give effect to the words
45 "any similar right". This demonstrates clear
"A state law that substantially interferes textual support for a reading that any right
with the enjoyment of an unpatented claimed which either a copyright itself, or a
utilitarian or design conception which has right "similar" to a copyright (the question of
10 been freely disclosed by its author to the
what is similar or not forming an independent
public at large impermissibly contravenes 50 inquiry that the Court must undertake) is
the ultimate goal of public disclosure and precluded by the Copyright Act.
use which is the centerpiece of federal
patent policy. Moreover, through the 64. In this case, and generally, as far as
15 creation of patent-like rights, the States copyright subject matter is concerned, the
could essentially redirect inventive efforts claim for unjust enrichment is whether the
away from the careful criteria of 55 defendants were 'unjustly enriched' by the
patentability developed by Congress over dissemination of match information, which is
the last 200 years." identical to a claim for the defendant's
infringement of the match information over
20 62. In the present case, the creation of which Star asserts rights. Thus, for example,
copyright-like rights that protect match- 60 claims of unjust enrichment against a tabloid
information, which is otherwise available for publishing Elvis Presley's photographs
freely, transgresses the limits of the inspired by the plaintiff's collection (Curtin v.
Copyright Act. Thus, the tort of unfair Star Editorial Inc., 2 F. Supp. 2d 670 (E.D.
25 competition cannot aid the plaintiff in its Pa. 1998), and a similar claim against a studio
effort to seek equitable relief by way of 65 for building a replica of the plaintiff's home in
injunction. a movie sequel (Tavormina v. Evening Star
The plaintiff's claim based on unjust Productions Inc., 10 F. Supp. 2 d 729 (S.D.
enrichment Tex, 1998)), were considered to be pre-
empted, amounting to (in essence) copyright
30 63. Coming to the question of unjust 70 claims though dressed up under alternate
enrichment, the plaintiff's claim for an interim heads of common law. In Tavormina, the
injunction on that basis cannot survive for Court specifically noted that it:
three distinct reasons. First, the claim of
unjust enrichment here is similarly pre-empted "agrees with the Defendants that the Plaintiff's claim
35 as the doctrine of 'unfair competition' is. The for unjust enrichment is pre-empted because it involves
question, in cases of whether a statute pre- 75 the same conduct that would fall under the scope of the
empts a claim, is whether the two can be Copyright Act. In this claim, Plaintiffs allege that
regarded as "equivalent rights" (Nimmer, p. 1- Defendants should not benefit from reproducing and

displaying their house in the film without compensating 40 copyright infringement claims that fail for
Plaintiffs or obtaining Plaintiffs' permission. This want of copyrightability, the plaintiff would
claim thus invokes the same rights that Plaintiffs also have - as a means to bypass the
would invoke under a cause of action for copyright exhaustive statutory scheme - a claim for
5 infringement." unjust enrichment. If allowed, this would run
45 counter to the S. 16 pre-emption, which
In other words, the Court must see whether would exclude the claim of unjust enrichment
the plaintiff alleges any misconduct as well to ensure no protection is granted for
incorporating elements other than those facts, ideas and expressions de hors the
subsumed within the claim of copyright Copyright Act.
10 infringement. The answer to that question is a
clear and unambiguous 'no'. 50 66. The second reason why the plaintiff's
argument on unjust enrichment cannot prevail
65. Equally, the rationale behind federal law here is because even if the claim of unjust
pre-emption in the United States that claims enrichment is to be seen on merits, (assuming
falling (in substance, though parties may that it is not pre-empted by Section 16), such
15 choose to address them under various heads) 55 a claim cannot - by definition (with limited
under federal copyright law pre-empt similar exceptions as noted below) - injunct or
claims arising under state law is akin to the prohibit the defendants from disseminating
pre-emption under S. 16 of the Copyright Act. match information, but rather, only be the
This is that the purely statutory monopolies basis for a restitutionary award. Importantly,
20 created by the Copyright Act exclude all other 60 the property interest claimed by the plaintiff
claims that "invoke the same rights ... (as) under the hot news doctrine/doctrine of
under a cause of action for copyright unfair competition is conceptually distinct
infringement" (Tavormina, supra). from the claim of unjust enrichment. Whereas
Particularly, this conclusion is supported by a the former (if considered to be a valid claim)
25 clear rationale: that the doctrine of free 65 provides an interest that injuncts the
acceptance under the law of unjust defendants from disseminating match
enrichment - that an individual who freely information (thereby classifying the defendant
accepts the benefits of the services of another actions as wrongful), the latter does not
must - on account of such unjust enrichment - contain any finding of wrongdoing, but rather,
30 restitute the other - runs into difficulty in 70 is a purely restitutionary remedy that requires
copyright claims. This is because a copyright the defendant to return the profit (the
infringer "always "accepts" the benefit of a principle being to "disgorge" the defendant of
copyrighted work" (Nimmer, p. 1-52, its profits, rather than compensate the
emphasis supplied), and thus, a claim for plaintiff for any right violated). That
35 copyright infringement would in no way differ 75 restitution for unjust enrichment (relied on by
qualitatively from an unjust infringement Star) is distinct from restitution for
claim over copyright subject matter that is not wrongdoing is a well-settled proposition
covered under the Copyright Act. Indeed, a affirmed recently by the Canadian Supreme
contrary conclusion would mean that for all

Court in Kingstreet Investments Ltd. v. New unjust enrichment by subtraction [i.e. enrichment "at
Brunswick, [2007] 1 SCR 3: the expense of the claimant"] reflects different moral
40 ideas."
"There are at least two distinct categories of restitution:
(1) restitution for wrongdoing; and (2) restitution for This is not to say that unjust enrichment
5 unjust enrichment" serves only to reverse an accrual and never
prevent it (see, Burrows, A Restatement of the
The (then) UK House of Lords in Sempra English Law on Unjust Enrichment 40
Metal Ltd. v. HMRC, [2007] UKHL 34 (Lord 45 (Oxford University Press, 2012). However,
Nicholls, Lord Scott; Lord Mance) approved those limited circumstances - as exceptions to
the same view: the rule - do not arise in this case.
10 "In the modern terminology these are instances of 67. Finally, even if we were to consider the
restitution for wrongdoing as distinct from restitution unjust enrichment claim on the facts before
for unjust enrichment." 50 the Court, Star's claim is prima facie
"If the distinction between claims for compensation for untenable. A claim for unjust enrichment rests
loss on the one hand and claims for restitution on - as is beyond question - on three prongs: (a)
15 unjust enrichment grounds on the other hand is not enrichment of the defendant, (b) "at the
recognised, incoherence of legal principle will, in my expense" of the claimant, (c) an "unjust
opinion, be the result." 55 factor" in allowing the retention of such
benefit. (see, Burrows et. al., A Restatement of
"... a claim for "relief from the consequences of a the English Law of Unjust Enrichment 44
mistake" - and is not a claim for "restitutionary" (Oxford, Oxford University Press, 2012));
20 damages or restitutionary relief consequent on a wrong. Birks, An Introduction to the Law of
The distinction is important. It was a corner stone of 60 Restitution 16-8 (Clarendon Press, Oxford
the late Professor Birks QC's last work, Unjust 1989)).
Enrichment (2nd ed.) (2005). He observed at p. 11,
"The most important feature of mistaken payments is 68. Accepting this formulation, in Sahakari
25 the absence of contract and wrong", and it is necessary Khand Udyog Mandal Ltd. v. CCE &
to "isolate" and draw "a careful line" around cases of Customs, (2005) 3 SCC 738 2005 Indlaw SC
unjust enrichment which are "not manifestations of 65 1242, the Supreme Court elaborated upon the
consent and are not wrongs". Professor Burrows in aspect of unjust enrichment stating:
The Law of Restitution (2nd Ed.) (2002) draws the "31. Stated simply, "unjust enrichment" means
30 same distinction. He deals in chapter 1 with the retention of a benefit by a person that is unjust or
"unjust enrichment principle and its four essential inequitable. "Unjust enrichment" occurs when a
elements" and, quite separately, in chapter 14 with 70 person retains money or benefits which in justice,
"restitution for wrongs" where he discusses all of the equity and good conscience, belong to someone else.
cases identified in the previous paragraph of this
35 opinion which had been decided by 2002. His 32. The doctrine of "unjust enrichment", therefore, is
introduction to chapter 14, at p 455, points out that that no person can be allowed to enrich inequitably at
"the distinction between restitution for wrongs and the expense of another. A right of recovery under the

doctrine of "unjust enrichment" arises where retention expense of the plaintiff" and thirdly, that the retention
of a benefit is considered contrary to justice or against 40 of the enrichment be unjust. This justified restitution.
equity ..." Enrichment may take the form of direct advantage to
the recipient wealth such as by the receipt of money or
This position was also approved in Godfrey indirect one for instance where inevitable expense has
5 Phillips India Ltd. & Anr. v. State of U.P &
been saved..."
Ors. (2005) 2 SCC 515 2005 Indlaw SC 66,
where the Court held that: 45 In all these cases, however, the Court did not
have the opportunity to delve into the
"It was, therefore, submitted that if the appellants are question of the precise boundaries of what
allowed to retain the amounts collected by them such 'unjust factors' could be. Here, the
10 towards luxury tax from consumers, it would amount observations of Lord Goff in Lipkin Gorman
to 'unjust enrichment' by them. In our opinion, the 50 v. Karpnale Limited, [1991] 2 AC 548 are
submission is well founded and deserves to be upheld. crucial:
If the appellants have collected any amount towards
luxury tax from consumers/customers after obtaining "But it does not, in my opinion, follow that the court
15 interim orders from this Court, they will pay the said has carte blanche to reject the solicitors' claim simply
amounts to the respective State Governments." because it thinks it unfair or unjust in the
55 circumstances to grant recovery. The recovery of money
Most recently, this was accepted the Supreme in restitution is not, as a general rule, a matter of
Court in Indian Council for Enviro-Legal discretion for the court. A claim to recover money at
Action v. Union of India, 2011 (7) SCALE common law is made as a matter of right; and even
20 768 2011 Indlaw SC 508 (as the Supreme though the underlying principle of recovery is the
Court notes, "a person is enriched if he has 60 principle of unjust enrichment, nevertheless, where
received a benefit, and he is unjustly enriched recovery is denied, it is denied on the basis of legal
if retention of the benefit would be unjust"). principle. It is therefore necessary to consider whether
Equally, the decision relied on by the Mr. Lightman's submission can be upheld on the
25 plaintiff/respondents, i.e. Mahabir Kishore, is basis of legal principle ..."
one example of the restitutionary nature of
the unjust enrichment principle recognised in 65 In failing to provide any clear unjust factor, as
India, where it is invariably used to recover also in not addressing whether the benefit
money. The appellant had paid over Rs. gained by the defendants was 'at the plaintiff's
30 54,000/- as "mahua" over and above the expense', (both crucial legal requirements for a
auction money to the State government. This claim of unjust enrichment, as opposed to a
was despite such extraction or recovery 70 broad reference to the fairness and justness of
having been declared illegal; the appellant filed the plaintiff's claim), the approach of the
a writ petition for its recovery. The Supreme Learned Single errs in its findings on this
35 Court upheld the claim, stating that: issue.
"The principle of unjust enrichment requires; first, that 69. If one were to deal with this issue afresh -
the defendant has been 'enriched' by the receipt of a 75 two questions arise: first, have the defendants,
"benefit"; secondly, that this enrichment is "at the though undeniably benefiting from the
dissemination of match information, been so 40 merit in such plea, the court notices that no
benefited "at the expense of" Star; and authority relied upon by the plaintiffs
secondly, if so, does the retention of such supports the view they propound approving
benefit present any unjust factor? On the first the grant of such injunction. Even the
5 question, Star must demonstrate that the Marksman case does not support the view
defendants' enrichment is at its expense. This 45 that in such cases, the publication of such
remains a well-established and indeed, information, amounts to the third party
unchallenged, proposition of law (see, unjustly enriching itself at the broadcaster (or
Burrows et. al., A Restatement of the English broadcasters' licensee's) expense.
10 Law of Unjust Enrichment 44 (Oxford,
Oxford University Press, 2012). In this case, 71. Grant of injunctions can be to secure an
the defendants' dissemination results purely 50 object protected by law. It can also be to
from resources invested by them in this restrain the defendant from engaging in
business, and in no way results from Star's conduct injurious to the plaintiffs' property.
15 conduct or any expense incurred by it. Star's In some circumstances, the relationship or
acquisition of broadcast and related rights past relationship of parties (status, such as
from the BCCI, nor Star's conduct in any 55 matrimony, or contractual such as agent,
manner, assists, let alone results, in the employee, partner, etc.) may entail that either
defendant's gain. Indeed, even applying the of them refrain from disclosing facts or
20 "but-for test", though considered unduly information - which can in turn be based
harsh in such cases (Burrows, supra, p. 46), upon the terms, express or implied governing
does not lead to a positive conclusion that 60 such relationship (a claim in contract, or as in
'but for' Star's acquisition of broadcasting and this case, tort (of unfair competition), and
related rights, the defendants would have been finally, unjust enrichment). Ss. 38 and 39 of
25 able to operate the services they currently do. the Specific Relief Act empower the civil
Thus, as the benefit gained by the defendants court, in exercise of its jurisdiction, to issue
cannot be said to be 'at the expense' of Star, 65 injunctions. Although, textually, S. 39 talks of
the claim for unjust enrichment is not tenable. mandatory injunction and does not advert to
Given this, the Court need not consider the statute based rights, it speaks of such remedy
30 question of whether there exists an 'unjust' being available to "prevent the breach of an
factor in the retention of such benefit by the obligation" existing in favour of the claimant.
defendants. 70 While the last two illustrations to the S. 38
suggests that obligations not spelt out in
70. Here, in the present case, the principle of express terms and not found in either contract
unjust enrichment is sought to be relied upon or statute, but arising out of the relationship
35 as a claim entitling the plaintiffs to the or the peculiar conditions are enforceable
equitable remedy of injunction. Apart from 75 through injunction, as is clear from the above
the reasons discussed above, i.e., preclusion of discussion, none of those conditions exist to
such claims on account of a specific statutory entitle the plaintiff to the injunction.
copyright regime, and the absence of any

72. Accordingly, for the above reasons, this 40 defendant's freedom of speech cannot be
court is of opinion that the plaintiffs cannot curtailed by the doctrine under any
claim an injunction based on either the circumstance, but only to make the limited,
doctrine of unfair competition or unjust but crucial, point that Courts must be cautious
5 enrichment. in creating doctrines and rights that have such
45 clear implications for constitutional rights,
73. The above discussion would have been better leaving such matters to the law- making
dispositive of the issues which arose for domain of the legislative branch, that may
consideration in this case. However, it would result in a coherent legislation that creates a
be appropriate that this court deals with one framework within which any curtailment of
10 aspect which was brushed aside by the learned 50 Constitutional rights is to take place. Indeed,
single judge. The Appellants had argued that in such cases, it is open for any aggrieved
their right to freedom of speech and party to question that legislative action as
expression and their right to freedom of trade against Part III of the Constitution, and
under Art. 19 (1) (a) and (g) could not be against the entire range of constitutional
15 interfered with in the absence of any law. This 55 rights, by approaching the courts. But it is that
submission was rejected by the learned single path - of a legislative action open to review by
judge, saying that reasonable restrictions can the Courts as against specific and limited
be imposed upon such rights. However, as a negative covenants imbibed in the
concluding note, it is important to remember Constitution - which best represents the
20 the broader context in which Courts decide 60 mechanism for creation of rights that have
such disputes. The creation of any right or constitutional implications, rather than judicial
indeed defining the contours of a right indulgence in entering that exercise itself.
through judicial intervention is an exercise
with implications that travel beyond the Indeed, restraint as a judicial policy neither
25 peculiar facts of the case before the Court. does nor should translate into a symbol of
While pronouncing upon a principle of law 65 reticence, but rather one of wisdom in
(especially one as potent as the doctrine of recognizing the important role that courts
'unfair competition'), the Court must keep in must play within the sphere allotted to them.
mind the constitutional implications of the In other words, the Constitution visualizes
30 right sought to be created, in this case, upon that restrictions, saved by virtue of Arts. 19
the right to freedom of speech. Recognizing 70 (2) and 19 (6) are in terms of enacted law, and
the doctrine of unfair competition would not judge-declared fiats Doing what the
inevitably restrict the defendants' (as also plaintiff invites this court to do would be to
others rights in future cases) ability to enclose from the public match facts and
35 disseminate information, undoubtedly a information which are not protectable in any
crucial component of Art. 19(1)(a). This is not 75 manner known to law. Such an injunction
to say that the doctrine of 'unfair competition' would tend to insidiously, and in a creeping
is to be rejected in Indian law on account of manner, denude the fundamental right to free
an Art. 19(1)(a) violation, nor to say that the

speech and dissemination of topical World Sport Group (Mauritius) Limited

information to members of the public.
v
74. In view of the above discussion, it is held
that the plaintiffs claim for ad interim MSM Satellite (Singapore) Private Limited
5 injunction on all counts, i.e. ownership of 35
facts based on the "hot news" principle and
the claims for unfair competition and unjust Case No :C.A. No. 895 of 2014 (Arising out
enrichment cannot be granted. Prima facie, it of S.L.P. (C) No. 34978 of 2010)
is also held that claims so made are statutorily
Bench :A.K. Patnaik , Fakkir Mohamed
10 precluded. Consequently, the impugned
Ibrahim Kalifulla
judgment and order of the learned Single
Judge has to be and is set aside. The three 40 Citation :AIR 2014 SC 968
appeals i.e. FAO (OS) No.153/2013, FAO
(OS) No.160/2013, and FAO (OS) The Judgment was delivered by : A. K.
15 No.161/2013 are therefore allowed. All Patnaik, J.
pending applications stand disposed off. In
1. Leave granted.
the circumstances, there shall be no order as
to costs. 2. This is an appeal against the order dated
45 17.09.2010 of the Division Bench of the
Appeals allowed
Bombay High Court in Appeal (Lodging)
20 No.534 of 2010.
Facts:
3. The facts very briefly are that on 30.11.2007

50 the Board of Control for Cricket in India (for
short 'BCCI') invited tenders for IPL (Indian
Premier League) Media Rights for a period of
ten years from 2008 to 2017 on a worldwide
25 basis. Amongst the tenders submitted, the bid
55 of World Sports Group India (for short 'WSG
India') was accepted by BCCI. By a pre-bid
arrangement, however, the respondent was to
get the media rights for the sub-continent for
the period from 2008 to 2010. Accordingly,
60 on 21.01.2008 BCCI and the respondent
entered into a Media Rights License
30 Agreement for the period from 2008 to 2012
for a sum of US$274.50 million. After the first
IPL season, the BCCI terminated the

agreement dated 21.01.2008 between BCCI 40 respondent was titled 'Governing Law' and
and the respondent for the Indian sub- read as follows:
continent and commenced negotiations with
WSG India. On 14.03.2009, the respondent "9. GOVERNING LAW
5 filed a petition u/s. 9 of the Arbitration and This Deed shall be governed by and construed in
Conciliation Act, 1996 (for short ' the Act ') accordance with the laws of England and Wales,
against the BCCI before the Bombay High 45 without regard to choice of law principles. All actions
Court praying for injunction against the BCCI or proceedings arising in connection with, touching
from acting on the termination letter dated upon or relating to this Deed, the breach thereof
10 14.03.2009 and for preventing BCCI from and/or the scope of the provisions of this Section shall
granting the rights under the agreement dated be submitted to the International Chamber of
21.01.2008 to any third party. Pursuant to the 50 Commerce (the "Chamber") for final and binding
negotiations between BCCI and WSG India, arbitration under its Rules of Arbitration, to be held
BCCI entered into an agreement with the in Singapore, in the English language before a single
15 appellant whereunder the media rights for the arbitrator who shall be a retired judge with at least ten
Indian sub-continent for the period 2009 to years of commercial experience. The arbitrator shall be
2017 was awarded to the appellant for a value 55 selected by mutual agreement of the Parties, or, if the
of Rs.4,791.08 crores. To operate the media Parties cannot agree, then by striking from a list of
rights in India, the appellant was required to arbitrators supplied by the Chamber. If the Parties are
20 seek a sub-licensee within seventy two hours. unable to agree on the arbitrator, the Chamber shall
Though, this time period was extended twice, choose one for them. The arbitration shall be a
the appellant was not able to get a sub- 60 confidential proceeding, closed to the general public.
licensee. Thereafter, the appellant claimed to The arbitrator shall assess the cost of the arbitration
have allowed media rights in India to have against the losing party.
25 lapsed and then facilitated on 25.03.2009, a In addition, the prevailing party in any arbitration or
new Media Rights License Agreement legal proceeding relating to this Deed shall be entitled
between the BCCI and the respondent for the 65 to all reasonable expenses (including, without
Indian subcontinent for the same contract limitation, reasonable attorney's fees).
value of Rs.4,791.08 crores. BCCI and WSG Notwithstanding the foregoing, the arbitrator may
30 India, however, were to continue with the require that such fees be borne in such other manner as
Rest of the World media rights. the arbitrator determines is required in order for this
4. On 25.03.2009, the appellant and the 70 arbitration provision to be enforceable under applicable
respondent also executed the Deed for law. The arbitrator shall issue a written opinion
Provision of Facilitation Services (hereinafter stating the essential findings and conclusions upon
35 referred to as 'the Facilitation Deed') which the arbitrator's award is based. The arbitrator
whereunder the respondent was to pay a sum shall have the power to enter temporary restraining
of Rs.425 crores to the appellant as facilitation 75 orders and preliminary and permanent injunctions.
fees. Cl. 9 of the Facilitation Deed dated No party shall be entitled or permitted to commence or
25.03.2009 between the appellant and the maintain any action in a court of law with respect to
any matter in dispute until such matter shall have been 40 meanwhile, on 30.06.2010, the respondent
submitted to arbitration as herein provided and then filed a second suit, Suit No.1828 of 2010,
only for the enforcement of the arbitrator's award; before the Bombay High Court against the
provided, however, that prior to the appointment of the appellant for inter alia a declaration that as the
5 arbitrator or for remedies beyond the jurisdiction of an Facilitation Deed stood rescinded, the
arbitrator, at any time, any party may seek equitable 45 appellant was not entitled to invoke the
relief in a court of competent jurisdiction in Singapore, arbitration clause in the Facilitation Deed. The
or such other court that may have jurisdiction over the respondent also filed an application for
Parties, without thereby waiving its right to arbitration temporary injunction against the appellant
10 of the dispute or controversy under this section. THE from continuing with the arbitration
PARTIES HEREBY WAIVE THEIR 50 proceedings commenced by the appellant
RIGHT TO JURY TRIAL WITH RESPECT under the aegis of ICC.
TO ALL CLAIMS AND ISSUES ARISING
UNDER, IN CONNECTION WITH, 6. On 09.08.2010, the learned Single Judge of
15 TOUCHING UPON OR RELATING TO the Bombay High Court dismissed the
THIS DEED, THE BREACH THEREOF application for temporary injunction of the
AND/OR THE SCOPE OF THE 55 respondent saying that it would be for the
PROVISIONS OF THIS SECTION, arbitrator to consider whether the Facilitation
WHETHER SOUNDING IN CONTRACT Deed was void on account of fraud and
20 OR TORT, AND INCLUDING ANY misrepresentation and that the arbitration
CLAIM FOR FRAUDULENT must, therefore, proceed and the Court could
INDUCEMENT THEREOF." 60 not intervene in matters governed by the
arbitration clause. The respondent challenged
5. The respondent made three payments the order of the learned Single Judge before
totaling Rs.125 crores to the appellant under the Division Bench of the Bombay High
25 the Facilitation Deed during 2009 and did not Court and by the impugned order, the
make the balance payment. Instead, on 65 Division Bench of the Bombay High Court
25.06.2010, the respondent wrote to the allowed the appeal, set aside the order of the
appellant rescinding the Facilitation Deed on learned Single Judge and passed an order of
the ground that it was voidable on account of temporary injunction restraining the
30 misrepresentation and fraud. On 25.06.2010, arbitration by ICC. Aggrieved, the appellant
the respondent also filed Suit No.1869 of 70 has filed this appeal.
2010 for inter alia a declaration that the
Facilitation Deed was void and for recovery Contentions on behalf of the appellant:
of Rs.125 crores already paid to the appellant. 7. Mr. K.K. Venugopal, learned senior counsel
35 On 28.06.2010, the appellant acting under Cl. for the appellant, submitted that the Division
9 of the Facilitation Deed sent a request for Bench of the High Court failed to appreciate
arbitration to ICC Singapore and the ICC 75 that the Bombay High Court had no
issued a notice to the respondent to file its jurisdiction to pass an order of injunction
answer to the request for arbitration. In the restraining a foreign seated international

arbitration at Singapore between the parties, 40 for arbitration was null and void, inoperative
who were not residents of India. In this or incapable of being performed, has held that
context, he referred to Cl. 9 of the Facilitation the entire Facilitation Deed was vitiated by
Deed which stipulated that any party may seek fraud and misrepresentation and was,
5 equitable relief in a court of competent therefore, void. He vehemently submitted that
jurisdiction in Singapore, or such other court 45 it was for the arbitrator to decide whether the
that may have jurisdiction over the parties. He Facilitation Deed was void on account of
submitted that on the principle of Comity of fraud and misrepresentation as has been
Courts, the Bombay High Court should have rightly held by the learned Single Judge and it
10 refused to interfere in the matter and should was not for the Court to pronounce on
have allowed the parties to resolve their 50 whether the Facilitation Deed was void on
dispute through ICC arbitration, subject to account of fraud and misrepresentation. He
the jurisdiction of the Singapore courts in referred to Art. 6(4) of the ICC Rules of
accordance with Cl. 9 of the Facilitation Deed. Arbitration which permits the Arbitral
Tribunal to continue to exercise jurisdiction
15 8. Mr. Venugopal next submitted that the 55 and adjudicate the claims even if the main
Division Bench of the High Court failed to contract is alleged to be null and void or non-
appreciate that u/s. 45 of the Act , the Court existent because the arbitration clause is an
seized of an action in a matter in respect of independent and distinct agreement. He
which the parties have made an agreement submitted that this principle of Kompetenz
20 referred to in S. 44 has to refer the parties to 60 Kompetenz has been recognized in S. 16 of
arbitration, unless it finds that the agreement the Act under which the Arbitral Tribunal has
referred to in S. 44 is null and void, the competence to rule on its own jurisdiction
inoperative or incapable of being performed. and on this point relied on National Insurance
He submitted that the agreement referred to Co. Ltd. v. Boghara Polyfab Pvt. Ltd. [(2009)
25 in S. 44 of the Act is 'an agreement in writing 65 1 SCC 267 2008 Indlaw SC 1506 ] and Reva
for arbitration' and, therefore, unless the Electric Car Company Private Ltd. v. Green
Court finds that the agreement in writing for Mobil [(2012) 2 SCC 93 2011 Indlaw SC 813 ].
arbitration is null and void, inoperative or He submitted that as a corollary to this
incapable of being performed, the Court will principle, Courts have also held that unless
30 not entertain a dispute covered by the 70 the arbitration clause itself, apart from the
arbitration agreement and refer the parties to underlying contract, is assailed as vitiated by
the arbitration. In support of this submission, fraud or misrepresentation, the Arbitral
he relied on the decision of this Court in Tribunal will have jurisdiction to decide all
Chloro Controls India Private Limited v. issues including the validity and scope of the
35 Seven Trent Water Purification Inc. & Ors. 75 arbitration agreement.
[(2013) 1 SCC 641 2012 Indlaw SC 328 ].
He submitted that in the present case, the
9. Mr. Venugopal submitted that the Division arbitration clause itself was not assailed as
Bench of the High Court, instead of vitiated by fraud or misrepresentation. In
examining whether the agreement in writing

support of this argument, he relied on the 40 domestic arbitration in reference to the

decision of the House of Lords in Premium provisions of S. 8 of the Act . He submitted
Nafta Products Ltd. v. Fili Shipping Company that the language of S. 45 of the Act , which
Ltd. & Ors. [2007] UKHL 40 : [2007] 2 C.L.C. applies to an international arbitration, is
5 553], the decision of the Supreme Court of substantially different from the language of S.
United States in Buckeye Check Cashing, Inc. 45 8 of the Act and it will be clear from the
v. John Cardegna et al [546 US 440 (2006)] language of S. 45 of the Act that unless the
and the decision of this Court in Branch arbitration agreement is null and void,
Manager, Magma Leasing and Finance Ltd. & inoperative or incapable of being performed,
10 Anr. v. Potluri Madhavilata & Anr. [(2009) 10 the parties will have to be referred to
SCC 103 2009 Indlaw SC 1152 ]. 50 arbitration by the Court. In the present case,
the respondent has not made out that the
10. Mr. Venugopal submitted that the arbitration agreement is null and void,
Division Bench of the High Court relied on inoperative or incapable of being performed.
the decision in N. Radhakrishnan v. Maestro
15 Engineers & Ors. [(2010) 1 SCC 72 2009 11. Mr. Venugopal submitted that the High
Indlaw SC 1452 ] to hold that serious 55 Court has taken a view that Cl. 9 forecloses an
allegations of fraud can only be enquired by a open trial in a court of law except to the
Court and not by an arbitrator, but the extent permitted therein and the parties have
Division Bench failed to appreciate that in N. to necessarily submit themselves to a
20 Radhakrishnan v. Maestro Engineers & Ors. confidential proceeding which is closed to the
2009 Indlaw SC 1452 (supra) this Court relied 60 general public. He submitted that the Bombay
on Abdul Kadir Shamsuddin Bubere v. High Court thus appears to have held that Cl.
Madhav Prabhakar Oak [AIR 1962 SC 406 9 is opposed to public policy and, in
1961 Indlaw SC 338 ] in which it was particular, Ss. 23 and 28 of the Indian
25 observed that it is only a party against whom a Contract Act, 1872 . He submitted that in any
fraud is alleged who can request the Court to 65 case the arbitration agreement contained in Cl.
inquire into the allegations of fraud instead of 9 of the Facilitation Deed cannot be held to
allowing the arbitrator to decide on the be opposed to public policy and void under
allegations of fraud. Ss. 23 and 28 of the Indian Contract Act,
1872 . This will be clear from Exception 1 of
30 In the present case, the respondent has alleged 70 S. 28 of the Indian Contract Act, 1872 , which
fraud against the appellant and thus it was for says that the section shall not render illegal a
the appellant to make a request to the Court contract, by which two or more persons agree
to decide on the allegations of fraud instead of that any dispute which may arise between
referring the same to the arbitrator, and no them in respect of any subject or class of
35 such request has been made by the appellant. 75 subjects shall be referred to arbitration and
He further submitted that in any case the that only the amount awarded in such
judgment of this Court in N. Radhakrishnan arbitration shall be recoverable in respect of
v. Maestro Engineers & Ors. 2009 Indlaw SC the dispute so referred. He explained that
1452 (supra) was rendered in the context of

under the American Law, in a suit for 40 respondent, it was signed by Michael
common law where the value of claim is more Grindon, President, International, Sony
than US$20, the right to jury trial is preserved Picture Television, and the appellant and the
and this applies even in relation to claims for respondent had entered into the Facilitation
5 breach of contract and for this reason, the Deed after consulting their sports media
parties made a provision in Cl. 9 of the 45 experts and after a lot of negotiations. He
Facilitation Deed waiving their right to jury submitted that in fact a Press Release was
trial with respect to all claims and issues issued by the respondent on 23.04.2010,
arising under, in connection with, touching which will go to show that there was no
10 upon or relating to the Facilitation Deed. He misrepresentation and fraud by the appellant
submitted that this provision in Cl. 9 of the 50 before the Facilitation Deed was signed by the
Facilitation Deed cannot, therefore, be held to parties, and thus the entire case of the
be opposed to public policy. respondent that the Facilitation Deed was
vitiated by misrepresentation and fraud is
12. Mr. Venugopal next submitted that the false.
15 crux of the case of the respondent is set out in
its letter dated 25.06.2010 to the appellant in 55 13. Mr. Venugopal finally submitted that it
which it was alleged that 'in view of the false will be clear from the language of the letter
misrepresentations and fraud played by dated 25.06.2010 of the respondent to the
WSGM the deed is voidable at the option of appellant that according to the respondent the
20 our client and thus our client rescinds the Facilitation Deed was voidable at the option
deed with immediate effect'. In other words, 60 of the respondent. He submitted that u/s. 45
the respondent's case is that it was induced to of the Act , the Court will have to refer the
enter into the Facilitation Deed on account of parties to the arbitration unless it finds that
the misrepresentation by the appellant and the arbitration agreement is 'null and void'. He
25 was led to believe that it was paying the argued that an agreement which is voidable at
facilitation fees to the appellant to allow the 65 the option of one of the parties is not the
rights of the appellant under an alleged same as the agreement which is void and,
agreement dated 23.03.2009 to lapse, but the therefore, the Division Bench of the High
respondent subsequently discovered that there Court should have referred the parties to
30 was no agreement dated 23.03.2009 and the arbitration instead of restraining the
rights of the appellant had come to an end on 70 arbitration. According to Mr. Venugopal, this
24.03.2009. He submitted that the appellant is a fit case in which this Court should set
has denied these allegations of the respondent aside the impugned order of the Division
in its affidavit-in-reply filed before the bench of the High Court and restore the order
35 Bombay High Court and that there was no of the learned Single Judge of the High Court.
false representation and fraud as alleged by
the respondent. He submitted that the 75 Contentions on behalf of the respondent:
Facilitation Deed was executed by the senior 14. In reply, Mr. Gopal Subramanium, learned
executives of the parties and in the case of senior counsel appearing for the respondent,

submitted that the Division Bench of the 40 Actrestraining the Bombay High Court to try
Bombay High Court has rightly restrained the the first suit and the second suit. He
arbitration proceedings under the aegis of ICC submitted that in India as well as in England,
as the Facilitation Deed, which also contains Courts have power to issue injunctions to
5 the arbitration agreement in Clause 9, is void restrain parties from proceeding with
because of fraud and misrepresentation by the 45 arbitration proceedings in foreign countries.
appellant. He submitted that S. 45 of the Act In support of this submission, he relied on
makes it clear that the Court will not refer the V.O. Tractoroexport, Moscow v. Tarapore &
parties to arbitration if the arbitration Company and Anr. [(1969) 3 SCC 562 1969
10 agreement is null and void, inoperative or Indlaw SC 362 ] and Oil and Natural Gas
incapable of being performed and as the 50 Commission v. Western Company of North
respondent has taken the plea that the America [(1987) 1 SCC 496 1987 Indlaw SC
Facilitation Deed, which contained the 28520 ]. He also relied on Russel on
arbitration agreement, is null and void on Arbitration and Claxton Engineering v. Txm
15 account of misrepresentation and fraud, the olaj - es gaz Kutao Ktf [2012] 1 C.L.C. 326 :
Court will have to decide whether the 55 [2011] EWHC 345 (Comm) .
Facilitation Deed including the arbitration
agreement in Cl. 9 was void on account of 16. Mr. Subramanium relying on the decision
fraud and misrepresentation by the appellant. of this Court in Chloro Controls India Private
20 He submitted that the respondent filed the Limited v. Seven Trent Water Purification Inc.
first suit in the Bombay High Court (Suit & Ors. 2012 Indlaw SC 328 (supra) submitted
No.1869 of 2010) for declaring the 60 that S. 45 of the Act casts an obligation on the
Facilitation Deed as null and void but in the court to determine the validity of the
said suit, the appellant did not file a written agreement at the threshold itself because this
25 statement and instead issued the notice for is an issue which goes to the root of the
arbitration only to frustrate the first suit and matter and a decision on this issue will
in the circumstances the respondent was 65 prevent a futile exercise of proceedings before
compelled to file the second suit (Suit the arbitrator. He submitted that u/s. 45 of
No.1828 of 2010) for an injunction restraining the Act the Court is required to consider not
30 the arbitration. only a challenge to the arbitration agreement
but also a serious challenge to the substantive
15. Mr. Subramanium submitted that S. 9 of 70 contract containing the arbitration agreement.
the Code of Civil Procedure, 1908 (for short He cited the decision of this Court in SMS
'the CPC ') confers upon the court jurisdiction Tea Estates (P) Ltd. v. Chandmari Tea Co. (
to try all civil suits except suits which are P) Ltd. [(2011) 14 SCC 66 2011 Indlaw SC
35 either expressly or impliedly barred. He 458 ] in support of this argument. He
submitted that the Bombay High Court, 75 submitted that the contention on behalf of the
therefore, had the jurisdiction to try both the appellant that the Court has to determine only
first suit and the second suit and there was no whether the arbitration agreement contained
express or implied bar in S. 45 of the

in the main agreement is void is, therefore, 40 go on without BCCI, the interest of BCCI will
not correct. be adversely affected. He submitted that
having regard to the magnitude of fraud
17. Mr. Subramanium next submitted that in alleged in the present case, the disputes were
cases where allegations of fraud are prima incapable of being arbitrated. Relying on Booz
5 facie made out, the judicial trend in India has 45 Allen & Hamilton v. SBI Home Finance
been to have them adjudicated by the Court. [(2011) 5 SCC 532 2011 Indlaw SC 283 ],
In this context, he referred to the decisions of Haryana Telecom Ltd. v. Sterlite Industries
this Court in Abdul Kadir Shamsuddin (India) Ltd. 1999 Indlaw SC 1986 (Supra),
Bubere v. Madhav Prabhakar Oak 1961 India Household and Healthcare Ltd. v. LG
10 Indlaw SC 338 (supra), Haryana Telecom Ltd. 50 Household and Healthcare Ltd. [(2007) 5 SCC
v. Sterlite Industries (India) Ltd. [(1999) 5 510 2007 Indlaw SC 327 ] and N.
SCC 688 1999 Indlaw SC 1986 ] and N. Radhakrishnan v. Maestro Engineers & Ors.
Radhakrishnan v. Maestro Engineers & Ors. 2009 Indlaw SC 1452 (supra), he submitted
2009 Indlaw SC 1452 (supra). In reply to the that such allegations of fraud can only be
15 submission of Mr. Venugopal that it was only 55 inquired into by the court and not by the
the parties against whom the allegations are arbitrator.
made who can insist on the allegations being
decided by the Court, Mr. Subramanium Findings of the Court:
submitted that in the decision of the Madras
20 High Court in H.G. Oomor Sait v. O Aslam 19. The question that we have to decide is
Sait [(2001) 3 CTC 269 (Mad)] referred to in whether the Division Bench of the Bombay
N. Radhakrishnan v. Maestro Engineers & 60 High Court could have passed the order of
Ors. 2009 Indlaw SC 1452 (supra) the injunction restraining the arbitration at
situation was reverse. Singapore between the parties. As various
contentions have been raised by Mr.
25 18. Mr. Subramanium next submitted that the Venugopal, learned counsel for the appellant,
facts in this case prima facie establish that a 65 in support of the case of the appellant that the
grave fraud was played by the appellant not Division Bench of the Bombay High Court
only upon the respondent but also on the could not have passed the order of injunction
BCCI. He argued that the Facilitation Deed restraining the arbitration at Singapore, we
30 ultimately deals with media rights belonging to may deal with each of these contentions
the BCCI and it has been held by this Court in 70 separately and record our findings. While
M/s Zee Tele Films Ltd. & Anr. v. Union of recording our findings, we will also deal with
India & Ors. [ AIR 2005 SC 2677 2005 Indlaw the submissions made by Mr. Gopal
SC 80 ] that BCCI is a public body. He Subramanium on behalf of respondent in
35 submitted that the Division Bench of the reply to the contentions of Mr. Venugopal.
Bombay High Court has, therefore, rightly 75 We will also consider the correctness of the
taken the view that the disputes in this case findings of the Division Bench of the Bombay
cannot be kept outside the purview of the High Court separately.
Indian Courts and if arbitration is allowed to

20. We are unable to accept the first Thus, the appropriate civil court in India has
contention of Mr. Venugopal that as Cl. 9 of jurisdiction to entertain the suit and pass
the Facilitation Deed provides that any party 40 appropriate orders in the suit by virtue of S. 9
may seek equitable relief in a court of of the CPC and Cl. 9 of the Facilitation Deed
5 competent jurisdiction in Singapore, or such providing that courts in Singapore or any
other court that may have jurisdiction over other court having jurisdiction over the parties
the parties, the Bombay High Court had no can be approached for equitable relief could
jurisdiction to entertain the suit and restrain 45 not oust the jurisdiction of the appropriate
the arbitration proceedings at Singapore civil court conferred by S. 9 of the CPC . We
10 because of the principle of Comity of Courts. find that in para 64 of the plaint in Suit
In Black's Law Dictionary, 5th Edition, No.1828 of 2010 filed before the Bombay
Judicial Comity, has been explained in the High Court by the respondent, it is stated that
following words: 50 the Facilitation Deed in which the arbitration
clause is incorporated came to be executed by
"Judicial comity. The principle in accordance with the defendant at Mumbai and the fraudulent
15 which the courts of one state or jurisdiction will give inducement on the part of the defendant
effect to the laws and judicial decisions of another, not resulting in the plaintiff entering into the
as a matter of obligation, but out of deference and 55 Facilitation Deed took place in Mumbai and
respect." the rescission of the Facilitation Deed on the
Thus, what is meant by the principle of ground that it was induced by fraud of
20 "comity" is that courts of one state or defendant has also been issued from Mumbai.
jurisdiction will give effect to the laws and Thus, the cause of action for filing the suit
judicial decisions of another state or 60 arose within the jurisdiction of the Bombay
jurisdiction, not as a matter of obligation but High Court and the Bombay High Court had
out of deference and mutual respect. In the territorial jurisdiction to entertain the suit u/s.
25 present case no decision of a court of foreign 20 of the CPC .
country or no law of a foreign country has 21. Any civil court in India which entertains a
been cited on behalf of the appellant to 65 suit, however, has to follow the mandate of
contend that the courts in India out of the legislature in Ss. 44 and 45 in Chapter I of
deference to such decision of the foreign Part II of the Act , which are quoted
30 court or foreign law must not assume hereinbelow:
jurisdiction to restrain arbitration proceedings
at Singapore. On the other hand, as has been "CHAPTER I
rightly submitted by Mr. Subramanium, u/s. 9
of the CPC , the courts in India have 70 NEW YORK CONVENTION AWARDS
35 jurisdiction to try all suits of a civil nature 44. Definition. In this Chapter, unless the context
excepting suits of which cognizance is either otherwise requires, "foreign award" means an arbitral
expressly or impliedly barred. award on differences between persons arising out of
legal relationships, whether contractual or not,
75 considered as commercial under the law in force in
India, made on or after the 11th day of October, obliged to refer the parties to arbitration
1960 - 40 unless it found that the agreement referred to
in S. 44 of the Act was null and void,
(a) in pursuance of an agreement in writing for inoperative or incapable of being performed.
arbitration to which the Convention set forth in the
5 First Schedule applies, and In the present case, the appellant may not
have made an application to refer the parties
(b) in one of such territories as the Central 45 to arbitration, but S. 45 of the Act does not
Government, being satisfied that reciprocal provisions refer to any application as such. Instead, it
have been made may, by notification in the Official refers to the request of one of the parties or
Gazette, declare to be territories to which the said any person claiming through or under him to
10 Convention applies. refer the parties to arbitration. In this case, the
45. Power of judicial authority to refer parties to 50 appellant may not have made an application
arbitration.- Notwithstanding anything contained in to refer the parties to arbitration at Singapore
Part I or in the Code of Civil Procedure, a but has filed an affidavit in reply to the notice
judicial authority, when seized of an action in a matter of motion and has stated in paragraphs 3, 4
15 in respect of which the parties have made an agreement and 5 of this affidavit that the defendant had
referred to in section 44, shall, at the request of one of 55 already invoked the arbitration agreement in
the parties or any person claiming through or under the Facilitation Deed and the arbitration
him, refer the parties to arbitration, unless it finds that proceedings have commenced and that the
the said agreement is null and void, inoperative or suit was an abuse of the process of court. The
20 incapable of being performed." appellant had thus made a request to refer the
60 parties to arbitration at Singapore which had
The language of S. 45 of the Act quoted already commenced.
above makes it clear that notwithstanding
anything contained in Part I or in the Code of 22. S. 45 of the Act quoted above also makes
Civil Procedure , a judicial authority, when it clear that even where such request is made
25 seized of an action in a matter in respect of by a party, it will not refer the parties to
which the parties have made an agreement 65 arbitration, if it finds that the agreement is
referred to in Section 44, shall, at the request null and void, inoperative or incapable of
of one of the parties or any person claiming being performed. As the very language of S.
through or under him, refer the parties to 45 of the Act clarifies the word "agreement"
30 arbitration, unless it finds that the said would mean the agreement referred to in S. 44
agreement is null and void, inoperative or 70 of the Act . Cl. (a) of S. 44 of the Act refers to
incapable of being performed. Thus, even if, "an agreement in writing for arbitration to
u/s. 9 read with S. 20 of the CPC , the which the Convention set forth in the First
Bombay High Court had the jurisdiction to Schedule applies." The First Schedule of the
35 entertain the suit, once a request is made by Act sets out the different Articles of the New
one of the parties or any person claiming 75 York Convention on the Recognition and
through or under him to refer the parties to Enforcement of Foreign Arbitral Awards,
arbitration, the Bombay High Court was
1958 . Art. II of the New York Convention is submission, he cited the decision of this Court
extracted hereinbelow: in SMS Tea Estates (P) Ltd. v. Chandmari Tea
40 Co. ( P) Ltd. 2011 Indlaw SC 458 (supra).
"1. Each Contracting State shall recognize an Paragraphs 12 and 13 of the judgment of this
agreement in writing under which the parties Court in SMS Tea Estates (P) Ltd. v.
5 undertake to submit to arbitration all or any Chandmari Tea Co. ( P) Ltd. 2011 Indlaw SC
differences which have arisen or which may arise 458 (supra) are quoted hereinbelow:
between them in respect of defined legal relationship,
whether contractual or not, concerning a subject-matter 45 "12. When a contract contains an arbitration
capable of settlement by arbitration. agreement, it is a collateral term relating to the
resolution of disputes, unrelated to the performance of
10 2. The term "agreement in writing" shall include an the contract. It is as if two contracts-one in regard to
arbitral clause in a contract or an arbitration the substantive terms of the main contract and the
agreement, signed by the parties or contained in an 50 other relating to resolution of disputes-had been rolled
exchange of letters or telegrams. into one, for purposes of convenience. An arbitration
3. The court of a Contracting State, when seized of an clause is therefore an agreement independent of the
15 action in a matter in respect of which the parties have other terms of the contract or the instrument.
made an agreement within the meaning of this article, Resultantly, even if the contract or its performance is
shall, at the request of one of the parties, refer the 55 terminated or comes to an end on account of
parties to arbitration, unless it finds that the said repudiation, frustration or breach of contract, the
agreement is null and void, inoperative or incapable of arbitration agreement would survive for the purpose of
20 being performed." resolution of disputes arising under or in connection
with the contract.
It will be clear from clauses 1, 2 and 3 of the
New York Convention as set out in the First 60 13. Similarly, when an instrument or deed of transfer
Schedule of the Act that the agreement (or a document affecting immovable property) contains
referred to in S. 44 of the Act is an agreement an arbitration agreement, it is a collateral term
25 in writing under which the parties undertake relating to resolution of disputes, unrelated to the
to submit to arbitration all or any differences transfer or transaction affecting the immovable
which have arisen or which may arise between 65 property. It is as if two documents-one affecting the
them. Thus, the court will decline to refer the immovable property requiring registration and the
parties to arbitration only if it finds that the other relating to resolution of disputes which is not
30 arbitration agreement is null and void, compulsorily registerable-are rolled into a single
inoperative or incapable of being performed. instrument. Therefore, even if a deed of transfer of
70 immovable property is challenged as not valid or
23. According to Mr. Subramanium, however, enforceable, the arbitration agreement would remain
as the main agreement is voidable on account unaffected for the purpose of resolution of disputes
of fraud and misrepresentation by the arising with reference to the deed of transfer."
35 appellant, cl. 9 of the main agreement which
contains the arbitration agreement in writing In the aforesaid case, this Court has held that
is also null and void. In support of his 75 if the document containing the main

agreement is not found to be duly stamped, 40 agreement. But the ground of attack is not that the
even if it contains arbitration clause, it cannot main agreement was invalid. It is that the signature to
be acted upon because S. 35 of the Stamp Act the arbitration agreement, as a "distinct agreement",
bars the said document from being acted was forged. Similarly, if a party alleges that someone
5 upon, but if the document is found to be duly who purported to sign as agent on his behalf had no
stamped but not registered though required to 45 authority whatever to conclude any agreement on his
be compulsorily registered, the court can act behalf, that is an attack on both the main agreement
upon the arbitration agreement which is a and the arbitration agreement.
collateral term of the main agreement and is
10 saved by the proviso to S. 49 of the 18. On the other hand, if (as in this case) the
Registration Act . Thus, as per the aforesaid allegation is that the agent exceeded his authority by
50 entering into a main agreement in terms which were
decision of this Court in SMS Tea Estates (P)
Ltd. v. Chandmari Tea Co. ( P) Ltd. 2011 not authorized or for improper reasons, that is not
Indlaw SC 458 (supra), the court will have to necessarily an attack on the arbitration agreement. It
15 see in each case whether the arbitration would have to be shown that whatever the terms of the
agreement is also void, unenforceable or main agreement or the reasons for which the agent
inoperative along with the main agreement or 55 concluded it, he would have had no authority to enter
whether the arbitration agreement stands into an arbitration agreement. Even if the allegation is
apart from the main agreement and is not null that there was no concluded agreement (for example,
20 and void. that terms of the main agreement remained to be
agreed) that is not necessarily an attack on the
24. The House of Lords has explained this 60 arbitration agreement. If the arbitration clause has
principle of separability in Premium Nafta been agreed, the patties will be presumed to have
Products Ltd. v. Fili Shipping Company Ltd. intended the question of whether there was a concluded
& Ors. (supra) thus: main agreement to be decided by arbitration."
25 "17. The principle of separability enacted in s. 7 25. Applying the principle of separability to
means that the invalidity or rescission of the main 65 the facts of this case, the respondent
contract does not necessarily entail the invalidity or rescinded the Facilitation Deed by notice
rescission of the arbitration agreement. The arbitration dated 25.06.2010 to the appellant on the
agreement must be treated as a "distinct agreement" following grounds stated in the said notice by
30 and can be void or voidable only on grounds which its lawyers:
relate directly to the arbitration agreement. Of course
there may be cases in which the ground upon which the 70 "1. Reference is made to the Deed for the Provison of
main agreement is invalid is identical with the ground Facilitation Services dated March 25, 2009 (the
upon which the arbitration agreement is invalid. For "Deed") between World Sport Group (Mauritius)
35 example, if the main agreement and the arbitration Limited ("WSGM") and our client. Under the Deed,
agreement are contained in the same document and one which is styled as a facilitation agreement, our client
of the parties claims that he never agreed to anything 75 agreed to pay WSGM "facilitation" fees for the
in the document and that his signature was forged, "facilitation" services stated thereunder to have been
that will be an attack on the validity of the arbitration provided by WSGM. The underlying consideration for

the payments by our client to WSGM, in fact were the favour of our client to pay the "facilitation" fees under
representation made by WSGM that : the Deed.
(a) WSGM, had executed in India ("BCCI") 4. Taking cognizance of the same, BCCI's Governing
whereunder WSGM had been unfettered Global council at its meeting held at Mumbai, India on June
5 Media Rights ("the said rights"), including the Indian 40 25, 2010 appropriately executed an amendment to
Subcontinent (implying thereby as natural corollary Media Rights License Agreement dated March 25,
that the earlier Media Rights agreement dated March 2009 between BCCI and our client by deleting, inter
15, 2009 between WSGM and BCCI along with its alia, cl. 10.4 thereof.
restrictive conditions had been mutually terminated);
5. On its part, and in view of the false representations
10 (b) WSGM could thereafter relinquish the Media 45 and fraud played by WSGM, the Deed is voidable at
Rights for the Indian Subcontinent in favour of our the option of our client and thus our client rescinds the
client for said valuable consideration to enable our Deed with immediate effect."
client to enter into a direct agreement with BCCI;
The ground taken by respondent to rescind
(c) the said rights were subsisting with WSGM at the the Facilitation Deed thus is that the appellant
15 time of execution of the Deed, i.e, March 25, 2009; 50 did not have any right to relinquish and/or to
and facilitate the procurement of Indian
subcontinent media rights for the IPL from
(d) WSGM had relinquished those rights in favour of BCCI and no facilitation services could have
BCCI to enable BCCI and our client to execute a been provided by the appellant and therefore
direct Media Rights License Agreement for the Indian 55 the representation by the appellant that the
20 Subcontinent. appellant relinquished its Indian subcontinent
2. BCCI has recently brought to the attention of our media rights for the IPL in favour of the
client that the Global Media Rights agreement between respondent for which the appellant had to be
WSGM and BCCI dated March 23, 2009 does not paid the facilitation fee under the deed was
exist and in terms of Cl. 13.5 of the agreement dated 60 false and accordingly the Facilitation Deed
25 March 15, 2009, after expiry of the 2nd extension was voidable at the option of the respondent
the media rights had automatically reverted to BCCI on account of false representation and fraud.
at 3 a.m. on March 24, 2009 and thus at the time of This ground of challenge to the Facilitation
execution of the Deed, WSGM did not have any Deed does not in any manner affect the
rights to relinquish and/or to facilitate the 65 arbitration agreement contained in Cl. 9 of the
30 procurement of India Subcontinent media rights for the Facilitation Deed, which is independent of
IPL from BCCI and thus no facilitation services could and separate from the main Facilitation Deed
have been provided by WSGM. and does not get rescinded as void by the
letter dated 25.06.2010 of the respondent. The
3. In view of the above, it is evident that the 70 Division Bench of the Bombay High Court,
representation by WSGM that WSGM relinquished therefore, could not have refused to refer the
35 its Indian Subcontinent media rights for the IPL in parties to arbitration on the ground that the

arbitration agreement was also void along with k_convention_of- 1958_overview.pdf],

the main agreement. 40 referring to Art. II(3) of the New York
Convention, states:
26. Mr. Gopal Subramanium's contention,
however, is also that the arbitration agreement "The words "null and void" may be interpreted as
5 was inoperative or incapable of being referring to those cases where the arbitration agreement
performed as allegations of fraud could be is affected by some invalidity right from the beginning,
enquired into by the court and not by the 45 such as lack of consent due to misrepresentation,
arbitrator. The authorities on the meaning of duress, fraud or undue influence.
the words "inoperative or incapable of being
10 performed" do not support this contention of The word "inoperative" can be said to cover those cases
Mr. Subramanium. The words "inoperative or where the arbitration agreement has ceased to have
incapable of being performed" in S. 45 of the effect, such as revocation by the parties.
Act have been taken from Art. II (3) of the 50 The words "incapable of being performed" would seem
New York Convention as set out in para 22 of to apply to those cases where the arbitration cannot be
15 this judgment. Redfern and Hunter on effectively set into motion. This may happen where the
International Arbitration (Fifth Edition) arbitration clause is too vaguely worded, or other terms
published by the Oxford University Press has of the contract contradict the parties' intention to
explained the meaning of these words 55 arbitrate, as in the case of the so-called co-equal forum
"inoperative or incapable of being performed" selection clauses. Even in these cases, the courts
20 used in the New York Convention at page interpret the contract provisions in favour of
148, thus: arbitration."
"At first sight it is difficult to see a distinction between 28. The book 'Recognition and Conferment
the terms 'inoperative' and 'incapable of being 60 of Foreign Arbitral Awards: A Global
performed'. However, an arbitration clause is Commentary on the New York Convention'
25 inoperative where it has ceased to have effect as a by Kronke, Nacimiento, et al.( ed.) (2010) at
result, for example, of a failure by the parties to page 82 says:
comply with a time limit, or where the parties have by
their conduct impliedly revoked the arbitration "Most authorities hold that the same schools of
agreement. By contrast, the expression 'incapable of 65 thought and approaches regarding the term null and
30 being performed' appears to refer to more practical void also apply to the terms inoperative and incapable
aspects of the prospective arbitration proceedings. It of being performed. Consequently, the majority of
applies, for example, if for some reason it is impossible authorities do not interpret these terms uniformly,
to establish the arbitral tribunal." resulting in an unfortunate lack of uniformity. With
70 that caveat, we shall give an overview of typical
27. Albert Jan Van Den Berg in an article examples where arbitration agreements were held to be
35 titled "The New York Convention, 1958 - An (or not to be) inoperative or incapable of being
Overview" published in the website of ICCA performed.
[www.arbitration-
icca.org/media/0/12125884227980/new_yor

The terms inoperative refers to cases where the 40 to which S. 45 of the Act applies. In the case
arbitration agreement has ceased to have effect by the of such arbitrations covered by the New York
time the court is asked to refer the parties to Convention, the Court can decline to make a
arbitration. For example, the arbitration agreement reference of a dispute covered by the
5 ceases to have effect if there has already been an arbitration agreement only if it comes to the
arbitral award or a court decision with res judicata 45 conclusion that the arbitration agreement is
effect concerning the same subject matter and parties. null and void, inoperative or incapable of
However, the mere existence of multiple proceedings is being performed, and not on the ground that
not sufficient to render the arbitration agreement allegations of fraud or misrepresentation have
10 inoperative. Additionally, the arbitration agreement to be inquired into while deciding the disputes
can cease to have effect if the time limit for initiating 50 between the parties.
the arbitration or rendering the award has expired,
provided that it was the parties' intent no longer to be 30. We may now consider the correctness of
bound by the arbitration agreement due to the the findings of the Division Bench of the
15 expiration of this time limit.
High Court in the impugned judgment. The
Division Bench of the High Court has held
Finally, several authorities have held that the 55 that the Facilitation Deed was part of several
arbitration agreement ceases to have effect if the parties agreements entered into amongst different
waive arbitration. There are many possible ways of parties commencing from 25.03.2009 and,
waiving a right to arbitrate. Most commonly, a party therefore, cannot be considered as stand apart
20 will waive the right to arbitrate if, in a court agreement between the appellant and the
proceeding, it fails to properly invoke the arbitration 60 respondent and so considered the Facilitation
agreement or if it actively pursues claims covered by the Deed as contrary to public policy of India
arbitration agreement." because it is linked with the finances, funds
and rights of the BCCI, which is a public
29. Thus, the arbitration agreement does not body. This approach of the Division Bench of
25 become "inoperative or incapable of being 65 the High Court is not in consonance with the
performed" where allegations of fraud have to provisions of S. 45 of the Act , which
be inquired into and the court cannot refuse mandates that in the case of arbitration
to refer the parties to arbitration as provided agreements covered by the New York
in S. 45 of the Act on the ground that Convention, the Court which is seized of the
30 allegations of fraud have been made by the 70 matter will refer the parties to arbitration
party which can only be inquired into by the unless the arbitration agreement is null and
court and not by the arbitrator. N. void, inoperative or incapable of being
Radhakrishnan v. Maestro Engineers & Ors. performed. In view of the provisions of S. 45
2009 Indlaw SC 1452 (supra) and Abdul Kadir of the Act , the Division Bench of the High
35 Shamsuddin Bubere v. Madhav Prabhakar 75 Court was required to only consider in this
Oak 1961 Indlaw SC 338 (supra) were case whether Cl. 9 of the Facilitation Deed
decisions rendered in the context of domestic which contained the arbitration agreement
arbitration and not in the context of
arbitrations under the New York Convention

was null and void, inoperative or incapable of 40 appellant are in issue, it is only the court
being performed. which can decide these issues through
furtherance of judicial evidence by either party
31. The Division Bench of the High Court has and these issues cannot be properly gone into
further held that Cl. 9 of the Facilitation Deed by the arbitrator. As we have already held, S.
5 insofar as it restricted the right of the parties 45 45 of the Act does not provide that the court
to move the courts for appropriate relief and will not refer the parties to arbitration if the
also barred the right to trial by a jury was void allegations of fraud have to be inquired into.
for being opposed to public policy as S. 45 provides that only if the court finds that
provided in S. 23 of the Indian Contract Act, the arbitration agreement is null and void,
10 1872 and was also void for being an 50 inoperative or incapable of being performed,
agreement in restraint of the legal proceedings it will decline to refer the parties to
in view of S. 28 of the said Act. Parliament arbitration.
has made the Arbitration and Conciliation
Act, 1996 providing domestic arbitration and 33. The Division Bench of the High court has
15 international arbitration as a mode of further held that since the earlier suit (Suit
resolution of disputes between the parties and 55 No.1869 of 2010) was pending in court since
Exception 1 to S. 28 of the Indian Contract 25.06.2010 and that suit was inter-connected
Act, 1872 clearly states that S. 28 shall not and inter-related with the second suit (Suit
render illegal a contract, by which two or No.1828 of 2010), the court could not allow
20 more persons agree that any dispute which splitting of the matters and disputes to be
may arise between them in respect of any 60 decided by the court in India in the first suit
subject or class of subjects shall be referred to and by arbitration abroad in regard to the
arbitration and that only the amount awarded second suit and invite conflicting verdicts on
in such arbitration shall be recoverable in the issues which are inter-related. This
25 respect of the dispute so referred. Cl. 9 of the reasoning adopted by the Division Bench of
Facilitation Deed is consistent with this policy 65 the Bombay High Court in the impugned
of the legislature as reflected in the judgment is alien to the provisions of S. 45 of
Arbitration and Conciliation Act, 1996 and is the Act which does not empower the court to
saved by Exception 1 to S. 28 of the Indian decline a reference to arbitration on the
30 Contract Act, 1872 . The right to jury trial is ground that another suit on the same issue is
not available under Indian laws. The finding 70 pending in the Indian court.
of the Division Bench of the High Court,
therefore, that Cl. 9 of the Facilitation Deed is 34. We make it clear that we have not
opposed to public policy and is void under Ss. expressed any opinion on the dispute between
35 23 and 28 of the Indian Contract Act, 1872 is the appellant and the respondent as to
clearly erroneous. whether the Facilitation Deed was voidable or
75 not on account of fraud and
32. The Division Bench of the High Court has misrepresentation. Cl. 9 of the Facilitation
also held that as allegations of fraud and Deed states inter alia that all actions or
serious malpractices on the part of the proceedings arising in connection with,

touching upon or relating to the Facilitation Aparna Balan W/o Sandeep and another
Deed, the breach thereof and/or the scope of
the provisions of the Section shall be v
submitted to the ICC for final and binding 35 Union of India and others
5 arbitration under its Rules of Arbitration. This
arbitration agreement in Cl. 9 is wide enough
to bring this dispute within the scope of
Case No :WA. No. 1410 of 2018 in WPC.
arbitration. To quote Redfern And Hunter On
21900/2018
International Arbitration (Fifth Edition page
10 134 para 2.141) Bench :A.K. Jayasankaran Nambiar,
40 Hrishikesh Roy
"Where allegations of fraud in the procurement or
performance of a contract are alleged, there appears to Citation :2018 Indlaw KER 4556
be no reason for the arbitral tribunal to decline
jurisdiction." The Judgment was delivered by : A.K.
Jayasankaran Nambiar, J.
15 Hence, it has been rightly held by the learned
Single Judge of the Bombay High Court that it 1. Two accomplished shuttle badminton
is for the arbitrator to decide this dispute in 45 players of the State of Kerala are before us in
accordance with the arbitration agreement. these proceedings challenging their exclusion
from the Women's team that was selected to
35. For the aforesaid reasons, we allow the represent India at the 2018 Asian Games. The
20 appeal, set aside the impugned judgment of event is scheduled to be held at Jakarta,
the Division Bench of the High Court and 50 Indonesia, between 18th and 29th of August
restore the order of the learned Single Judge. 2018.
The parties shall bear their own costs.
2. Aggrieved by their exclusion from the team,
Appeal allowed as well as the inclusion of two other players
therein, the writ petitioners preferred
25
55 W.P.(C).No.21900 of 2018 before a Single
Judge of this Court. By way of interim reliefs,
directions were sought to the Badminton
Association of India to refrain from sending
the select list of players to the Indian Olympic
60 Association, as also to restrain the said
respondents from permitting the two included
players-arrayed as the 6th and 7th respondents
30 in the writ petition-to participate in the Asian
Games. The said interim reliefs were refused
65 by the learned Single Judge, by an order dated
10.07.2018, on the finding that the last date

for sending the names of players for the Asian 40 doubles pair as reserve for the doubles event.
Games was 30.06.2018, and the writ petition Had that course been adopted, the petitioners
itself was filed only on 02.07.2018. The would have made the cut as the reserve
belated approach before this court was seen as doubles pair. Contrary to that, however, the
5 reason enough to deny the interim relief. The selection committee opted for four reserve
writ petitioners therefore filed W.A.Nos.1410 45 singles players and no reserve doubles pair,
and 1411 of 2018 before this Court, aggrieved leading to the exclusion of the petitioners, and
by the denial of interim reliefs. When the the inclusion of respondents 6 and 7, who
appeals came for admission, noticing the were taken in based on their performance in
10 urgency projected on behalf of the appellants, the singles event at the selection tournaments.
we deemed it appropriate to call for the writ 50 The decision of the selection committee, to
petition itself before this court so as to finally prefer two additional singles players to a
decide the main issue agitated therein. It is doubles pair, is stated to be on account of the
thus that the present writ appeals and writ fact that the 6th respondent is the daughter of
15 petition are before us. the 5th respondent who, in his capacity as the
55 Chief National Coach, is also a member of the
3. Appearing on behalf of the writ selection committee. The decision in
petitioners/appellants, the learned senior A.K.Kraipak and Ors. v. Union of India and
counsel Sri. Bechu Kurien Thomas would Ors.-[AIR 1970 SC 150 1969 Indlaw SC 271]
submit that the selection for the national team is relied upon to contend that the presence of
20 is based on the performance of the players in 60 the 5th respondent, in the selection
two selection tournaments-one at Bangalore committee that selected the 6th respondent, is
and the other at Hyderabad-and in the said vitiated on account of bias.
tournaments, the petitioners had obtained a
total of 850 points for their participation in ……
25 the women's doubles events. It is pointed out
that the points earned were consequent to 7. Sri. Kohli would also submit that the writ
65 petition was filed beyond the last date notified
their reaching the finals, and being declared
winners, in one tournament and reaching the for sending the names of players to the host
semi-finals in the other and, although committee in charge of holding the Asian
30 respondents 6 and 7 had also participated in Games in Jakarta. Reference is made to
the women's singles events in both the said Ext.R2(h) Badminton Sport Technical
tournaments, their achievements were not as 70 Handbook, published by the Indonesia Asian
commendable as that of the petitioners. It is Games Organizing Committee, to indicate
his further submission that the national that the deadline for submitting entries by
35 women's team is to comprise of ten players, name is June 30, 2018. He vehemently denies
and after selection of two singles players and a the suggestion that there could be changes
doubles pair, the selectors had the option of 75 effected in exceptional circumstances. It is
selecting two additional singles players as pointed out that the handbook referred above
reserve players for the singles events and a indicates that a withdrawal of names after the
deadline visits the defaulting team with

disciplinary action. Instances have been cited Women, in the Singles, Doubles and Mixed
where changes were not permitted at previous 40 Doubles events. Based on their international
international events and it is submitted that, at ranking, four players viz. P.V.Sindhu, Saina
any rate, there are no exceptional Nehwal, Ashwini Ponnappa and N. Sikki
5 circumstances, such as injury or medical Reddy were exempted from participating in
exigencies, in the instant case justifying an the tournaments, thereby indicating that four
attempt at recasting the list already finalised 45 slots, out of ten in the women's team, had
and dispatched to Jakarta. already been filled. The competition at the
two selection tournaments, to be held at
8. An additional point raised by Sri. Kohli, as Bangalore and Hyderabad, was essentially for
10 an alternate contention, is with regard to the
determining the remaining six players who
maintainability of the writ petition before this 50 would constitute the Indian Women's team
court. It is submitted that the cause of action for the Asian Games at Jakarta. The selection
in the instant case arose in Bangalore, where committee was to meet at Hyderabad on
the selection committee met to select the 24.05.2018 for identifying the said six players.
15 team. As a consequence, only the High Court
of Karnataka would have the territorial 11. At the selection tournaments, the writ
jurisdiction to adjudicate this matter. Learned 55 petitioners emerged the winners in the
Senior Counsel for the writ doubles event at Bangalore and semi-finalists
petitioners/appellants would counter the said in the doubles event at Hyderabad.
20 submission by pointing out that inasmuch as Respondents 6 and 7, who are both singles
the application for participation in the players, also fared reasonably well in the
selection tournaments had to be routed 60 singles event, with the 6th respondent
through the regional badminton association, reaching the quarter-final at Bangalore and the
the 3rd respondent in the writ petition, a part semi-final at Hyderabad. For the six slots
25 of the cause of action arose within the remaining to be filled for the Indian team, two
jurisdictional limits of this court and singles players viz. Sai Uttejita Rao and
consequently, this court would be justified in 65 Ashmita Chaliha and one doubles pai viz.
adjudicating the matter. Rutaparna Panda and Aarthi Sunil were
identified for four slots. That the said persons
….. had higher points warranting their selection to
30 10. The Badminton Association of India had, the available slots is not disputed by the writ
through the notification dated 08.05.2018, 70 petitioners. As for the remaining two slots, the
produced as Ext.R2(a) along with the counter option for the selection committee was, either
affidavit filed on its behalf, informed the to pick two singles players or a doubles pair.
players of the sport, through the respective Had the committee opted for the doubles
35 State Associations and Public Sector pair, the petitioners would have been in the
Undertakings, of the conduct of two national 75 team. The committee, however, opted for the
ranking tournaments purely for the purposes two singles players.
of selection of the Indian Team, for Men and

12. The selection committee, in the instant 35 6th respondent, who was chosen for inclusion
case, comprised of the following persons, as in the women's team, happens to be the
seen from the counter affidavit of the 2nd daughter of the Chief National Coach. The
respondent; issue we have been called to answer is
whether, on account of his presence in the
5 I. Chairman-Dr. Himanta Biswa Sarma, 40 selection committee, the selection of the 6th
President Badminton Association of India. respondent can be seen as vitiated.
II. Convenor-Mr. Ajay Singhania, General 14. While the decision in Kraipak's case
Secretary, Badminton Association of India. (Supra) no doubt mandates that fairness in
III. Pullela Gopichand, Chief National Coach any selection process would require that
45 persons, who are likely to influence the
10 IV. SM Arif, Ex-Chief National Coach decision of the other members of the
committee, should not be constituents in a
V. U.Vimal Kumar, Ex-Chief National Coach
committee before which their close relatives
VI. Partho Ganguly, Ex-International Player may appear as candidates, we are of the view
50 that, in a case such as the present, where the
VII. Mallika Baruah, Ex-International Player selection is to the national team, the Chief
National Coach has to be seen as a necessary
VIII. Manjusha Kanwar, Ex-International
and indispensable constituent of the
15 Player
committee. This is because his knowledge and
IX. Aparna Popat, Ex-International Player 55 assessment of the skill of a player, as a Chief
and National Observer National Coach, based on his close
supervision of their performance at national
13. It can be seen from the composition of ranking tournaments, is unique, and the inputs
the committee that the Chief National Coach that he provides cannot be expected from any
20 is an important constituent thereof, for he is 60 other member of the selection committee. He
the person most suited to speak on the inter- is also the one who will closely associate with
se merit among players who equally merit the players, and assess the competition that
inclusion in the national team. Equally can be expected at the international events.
important is his choice of the event for which His opinion, as to whether the need of the
25 players must be included. As a national coach, 65 hour is for additional singles players or
his assessment of the ground realities that are doubles players is, therefore, crucial and
likely to be faced in the upcoming cannot be ignored. In the absence of any
international event has to be given due material to doubt the integrity of the 5th
weightage. He is, in other words, an respondent, we are of the view that it would
30 indispensable constituent of the selection 70 be unfair, if not unreasonable, to assume that
committee. We make this observation because the Chief National Coach of our country
we are faced with a challenge to the would sacrifice national interest, in order to
composition of the selection committee in the further his personal interest or that of his
instant case, on account of the fact that the
daughter. The fact that the 6th respondent 40 Second) Amendment, Act, 1976, and
also has the necessary credentials for inclusion contends that the High Court can issue writs,
in the national team, through the points even when the person or authority to whom
earned by her at the selection tournaments, the writ is issued is located outside its
5 leads us to uphold the decision of the territorial jurisdiction, only if the cause of
selection committee as one that is not vitiated 45 action arises, wholly or in part, within the
on account of any bias, or even a real High Courts territorial jurisdiction. In the
likelihood of it. instant case, it is pointed out, the exclusion of
the petitioners from the Indian team
15. The question then arises as to whether, in happened at the meeting of the selection
10 the absence of bias, the decision of the
50 committee in Bangalore and hence, only the
selection committee can be said to be vitiated High Court of Karnataka would have the
on any other ground. In this connection it jurisdiction to adjudicate this case. Per Contra,
must be noted that the selection procedure Sri. Bechu Kurien Thomas would contend
that was followed was a fair and transparent that the applications for participation at the
15 one. The players aspiring for inclusion in the 55 selection tournaments, which was the criteria
national team were informed of the basis on for seeking selection to the Indian team, had
which they would be awarded points, and the to be routed through the respective State
tournaments in which they had to participate Badminton Associations and hence, insofar as
in order to earn those points. That having the applications of the petitioners' were
20 been done, the decision as to whether the last 60 routed through the 3rd respondent, located in
two slots in the team had to be filled by two Kozhikode, a part of the cause of action arose
singles players or a doubles pair has to be seen within the jurisdiction of this Court.
as one that was within the discretion of the
selection committee. We are of the view that, ….
25 in the absence of any material to suggest
malafides or patent illegality, we must defer to 18. In the result, we find no reason to
65 interfere with the decision of the selection
the wisdom of the selection committee, the
expert body in these matters, for they are committee, impugned in these proceedings.
better suited to take decisions on the relative Consequently, we dismiss the Writ Petition
30 merit of players, more so in national interest. and the Writ Appeals.
16. We may now refer to the objection raised Before parting with this case, we might
by Sri. Kohli, as regards the territorial 70 observe that our sympathies are with the writ
jurisdiction of this court to entertain the petitioners who, despite their superlative
present action. Sri Kohli relies upon the performance at the selection tournaments,
35 decision in Alchemist Limited & Anr. v. State could not make the final cut to the Indian
Bank of Sikkim and Ors.-[(2007) 11 SCC 335 Women's team. Defeat is inevitable in any
2007 Indlaw SC 212] to trace the development 75 competitive sport and the petitioners herein,
of law, pursuant to the amendment of Art.226 being experienced sports persons, must know
of the Constitution by the Constitution (Forty that only too well. The agony that inevitably

follows a defeat, however, must be endured

only for a fleeting moment, for after that, they
30 Omkar Nath Pajnu and others
must gather the courage and resolve to lift up
their spirits and move on. It is at times like v
5 these that the petitioners should take
advantage of the years of training put in by J&k Cricket Association and others
them to come to terms with the situation, and
take defeat in their stride. We truly hope that
our verdict today will not dampen the spirit of Case No :LPA No. 196/2017, LPA No.
10 these talented youngsters. 35 212/2017, LPA No. 213/2017, LPA No.
239/2017, LPA No. 240/2017
Appeals dismissed
Bench :Mohammad Yaqoob Mir, Ali
Mohammad Magrey
Citation :2017 Indlaw JK 809
40 The Judgment was delivered by : Mohammad

15 Yaqoob Mir, J.
1. Five writ petitions, i.e.:
(1).OWP No.787/2017 (Gurmeet Singh & ors

Vs. Sate of J&K & ors) (2).OWP
45 No.464/2017 (Sajad Ahmad Sofi & anr Vs.
State of J&K & ors) (3).OWP No.1970/2015
(Arvinder Singh & anr Vs. Union of India &
20 anr) (4).OWP No.1510/2015 (J&K Cricket
Association Vs. State of J&K & ors) (5).OWP
50 No.576/2017 (Friends Cricket Club
Nawakadal Vs. J&K Cricket Association and
others have been disposed of vide detailed
impugned judgment dated 13.10.2017,
aggrieved whereof, above titled and numbered
55 five Letters Patent Appeals have been filed.
25 Learned Single Judge while considering two
writ petitions i.e. OWP No.464/2017 and
OWP No.787/2017, has formulated following
six issues for determination:
60 (i) Whether in view of the fact that issue with

regard to management of the affairs of BCCI

and the election of office bearers of BCCI is 35 Association. In addition the Administrators
pending consideration before Supreme Court, shall be entitled to remuneration of Rs.75000/
this court can proceed to adjudicate the each per working day.
controversy involved in these petitions?
V. The administrators may make appointment
5 (ii) Whether the petitioners have locus standi of such persons so as to assist them to hold
to maintain the writ petitions? 40 free and fair elections of the office bearers of
the Association.
(iii) Whether the writ petitions filed by the
petitioners have been rendered infructuous? VI. The administrators shall ensure that
elections of office bearers of Association are
(iv) Whether term of the Committee of the held after amendment of the rules for electing
10 office bearers of the Association is one year or 45 office bearers of the Association. The
three years? administrators shall also be at liberty to
(v) Whether Committee has authority to appoint an ombudsman who shall decide the
appoint ombudsman? disputes between the members affiliated to
the Association.
(vi) Future course of action?
50 VII. The police authorities are directed to
15 and on final analysis has issued the following deposit the amount seized by it in favour of
directions: the Association. The treasurer shall not
expend the amount so received in the account
I. That Mr. Justice C.K. Prasad retired Judge
of the Association without approval of the
of the Supreme Court and Mr. Justice Syed
55 Administrators. The Administrators may also
Rafat Alam Chief Justice of M. P. and
appoint a financial advisor, who shall maintain
20 Allahabad High Courts shall act as
proper accounts. The Administrators shall
administrators of the J&K Cricket Association
also be at liberty to appoint ombudsman if so
to ensure free and fair elections.
advised. After elections are held, the newly
II. The administrators shall ensure that the 60 elected body shall be entitled to expend the
rules of the J&K Cricket Association are amount as per norms of BCCI.
25 amended inconformity with the
VIII. Let the aforesaid exercise be completed
recommendations made by the Lodha
within a period of 2 months.
Committee which has already been accepted
by the Supreme Court. IX. Registrar Judicial shall transmit copy of
65 this order to Mr. Justice C.K. Prasad and Mr.
III. The BCCI and the Association shall
Justice Syed Rafat Alam.
30 render all assistance to the Administrators, to
effectively perform their duties. 2. Regarding OWP No.1510/2015, OWP
No.1970/2017 and OWP No.576/2017, it has
IV. The expenditure to be incurred for
been observed that in view of findings
travelling expenses and for stay of
70 returned in OWP No.464/2017 and OWP
Administrators shall be borne by the
No.787/2017, nothing survives for 5. The Hon'ble Supreme Court constituted a

adjudication in these three writ petitions. committee under the Chairmanship of former
40 Chief Justice of India, Justice R. M. Lodha, to
3. Jammu and Kashmir Cricket Association recommend reforms in cricket in India. The
(hereinafter for short referred to as JKCA) is said Committee submitted its
5 entangled in multiple litigations, in the recommendations with regard to functioning
process, the object of promoting the of Board of Control for Cricket in India (for
cricketing activities is getting hampered. Now 45 short BCCI). The recommendations so made
streamlining the functioning of the JKCA is in were accepted by the Hon'ble Supreme Court
sight in the light of the judgment rendered by vide judgment dated 18.07.2016. The
10 the Hon'ble Apex Court in the case of "Board
recommendations so accepted also provide
of Control for Cricket Vs. Cricket Association for disqualification of the office bearers of
of Bihar and others" reported in (2016) 8 SCC 50 BCCI and its affiliated associations who failed
535 2016 Indlaw SC 553 dated 18.07.2016. to meet the norms recommended by the
The theme of the judgment is "change" in the Committee. One of the recommendations of
15 context of para 6 of the judgment which is the Lodha Committee accepted by the
advantageous to be quoted here-under: Hon'ble Supreme Court in its judgment dated
"6. We have heard at considerable length the learned 55 18.07.2016, disqualifies Ministers and public
counsel for the parties and those appearing for the servants from holding the office in the State
interveners. As noticed earlier, the task assigned to the Associations or BCCI. Paras 80 and 81 of the
20 Committee was to recommend such changes in the rules judgment are advantageous to be quoted:
and regulations of BCCI as would in the opinion of "80. The Committee has while making that
the Committee safeguard the interest of the public at 60 recommendation observed:
large in the sport of cricket, improve the ethical
standards and discipline in the game, streamline and "...Any elected Councillor shall stand automatically
25 promote efficiency in the management of BCCI, disqualified after nine years as an office bearer, and
provide accessibility and transparency, prevent conflict shall also be disqualified from contesting or holding the
of interest situations and eradicate political and post if he has completed the age of 70 years, is charged
commercial interference and abuse and create 65 under the penal law, is declared to be of unsound
mechanisms for resolution of disputes within BCCI. mind, is a Minister or government servant or holds
30 The direction issued by this Court for all- round any post of another sports body in the country."
reform in the working of BCCI and the conduct of its
affairs proceeded fundamentally on the juristic (b) Posts & Tenures
foundation that BCCI was discharging public ...The lack of any qualifications or
functions and is, therefore, subject to the rigours of 70 disqualifications also ensures that those with
35 "Public Law" making it mandatory for BCCI to full time occupations superficially involve
adhere to the principles of reasonableness, fairness, themselves, thereby compromising their
accountability and transparency." commitment to the association and the game
of cricket. Several public servants hold lead
75 positions in State Associations which take a
substantial toll on both sets of their respective recommendations and supervise the implementation
obligations to the public." 40 thereof."
81. In light of the above we see no compelling 6. As per guidelines provided by the Lodha
reason for us to reject the recommendation panel, the recommendations of the Lodha
5 which disqualifies Ministers and Public Committee were to be incorporated in the
Servants from holding offices in the State rules governing the Association and then to
Associations or BCCI." 45 conduct elections in accordance with the
guidelines issued therewith.
5. After considering and accepting all the
recommendations as were made by the Lodha 7. JKCA is governed by the Rules of the
10 Committee, regarding transition from old to Jammu and Kashmir Cricket Association,
new system, what has been ruled, in this Srinagar, formulated in the year 1957. In the
connection Para 102 of the judgment is 50 said Rules, the "Committee" has been defined
advantageous to be quoted: to mean "the Working Committee" of the
Association. The "Club" has been defined to
" 102. In the result, we accept the report submitted by mean a Club, Gymkhana, Institution,
15 the Committee and the recommendations made therein University or Cricketing body including clubs
with such modifications and clarifications as have been 55 of Commercial firms or companies or
set out by us in the body of this judgment. Having said officers. As per Rule 6 of the said Rules,
that we must hasten to add that the implementation of Association consist of the following classes of
the recommendations is equally important and ought to members:
20 be achieved within a reasonable period. The transition
from the old to the new system recommended by the (a) Representative Members,
Committee shall have to be under the watchful
supervision of this Court. Constrains of time and the 60 (b) Life Members,
multiple dimensions of the recommendations made (c) Associate Members,
25 however make it difficult for us to take that
supervisory role upon ourselves. The supervision of the (d) Honorary Members.
transition can, in our opinion, be left to be undertaken
8. 'Representative Member' has to be specially
by the Committee not only because it has a complete
referred to because out of 32 clubs affiliated
understanding of and insight into the nature of the
65 with JKCA, 12 have internal disputes
30 problems sought to be remedied but also the ability to
regarding their representatives etc. The
draw timelines for taking of steps necessary for the
'Representative Members' as appear in Rule 7
implementation of the proposed reforms. We are
are as under:
conscious of fact that the process may be time
consuming but we hope that the same should be "Representative Members: Such members
35 completed within a period of four months or at best six 70 shall consist of representatives of affiliated
months from today. We, therefore, request the Clubs. Each affiliated club shall have five
committee headed by Justice Lodha to draw representative members on the Association.
appropriate timelines for implementation of the

9. Rule 8 provides for management. The filled up by nomination by the affiliated Club
Association has to be administered and concerned whose seat has fallen vacant and in
managed by a Working Committee. Rule 8 is 35 case of Committee members elected out of
relevant to be quoted: the Life and Associate Members the vacancy
shall be temporarily filled up by co-operation
5 "8. Management: by the Committee till the annual election for
(i) The Association shall be administered and the same is held.
managed by a Working Committee consisting 40 (iv) Powers and duties of the Committee. The
of members of the following categories : Committee shall have the power-
(a) One or two members, as the case may be, (a) necessary for management and conduct of
10 nominated out of the panel of five by each the Association and for promotion of its
affiliated Club to the General Council with a objects including the power to take all actions
minimum of 12 members of the Committee 45 as may be deemed proper against members
and a maximum of 25 members of the and players of the affiliated Clubs;
Committee.
(b) to inspect and pass accounts presented by
15 (b) Three to five members out of the Life
the Treasurer at its meetings;
Members and the Associate Members.
(c) of interpretation with regard to Rules and
(ii) The above mentioned Committee shall 50 Regulations of the Association;
elect annually from amongst its members the
following office bearers who shall function (d) to elect annually:
20 honororily:
1. Captain:
(a) President.
2. Vice Captain:
(b) Chairman
3. Manager and the additional staff as and
(c) Two Vice-Chairman (One from Jammu 55 when required: and appoint the Auditor or
Province and the other from Kashmir Auditors and fix his or their remuneration.
25 Province)
(e) Whenever necessary, to appoint Sub-
(d) General Secretary (One from Kashmir Committees consisting of three to five
Province and one from Jammu Province) members for the purchase of equipments and
60 selection of players for matches and for other
(e) Two Joint Secretaries purposes. The Selection Sub- Committee will
(f) Treasurer. necessarily be comprised of Cricketers of
repute and the Captain shall be one of the
30 (iii) Vacancies: Vacancies of the officer members of this Sub Committee. The
bearers shall be filled up by the Committee by 65 decision of such Sub Committee shall be
election vacancies in the Committee shall be final."

10. From the records it is clear that the Lodha the Association has opined that no sanctity
Committee recommendations were accepted 40 can be attached to the appointment of
by the Hon'ble Apex Court vide judgment ombudsman. In this connection, while
dated 18.07.2016. Elections for the office examining issue No.5 as formulated by the
5 bearers of JKCA were held on 19th July, learned Single Judge to the following effect:
2016, which in turn would mean that the
elections should not have been held on 19th "(v). Whether Committee has authority to appoint
of July, 2016. More so when there was also a 45 ombudsman?"
restraint order, for not holding election, It has been observed that in view of Rule 8
10 issued by the Court of Munsiff (Sub Registrar) and Rule 14 of the JKCA Rules, the term of
(Civil Judge Junior Division), Srinagar, dated the elected body expired on 19.07.2017. Same
18.07.2016. view is taken in view of Rule 8(ii) which
…. 50 provides that the Committee shall elect
annually the office bearers from amongst its
11. As per recommendations of Lodha members. The elections were held on 19th
15 Committee accepted by Hon'ble Apex Court, July, 2016, so the term expired on 19th July,
as referred to in para 80 of the judgment of 2017. It is also observed that on 18.07.2016,
the Hon'ble Apex Court, Minister, Public 55 the recommendations of the Lodha
servant, any elected Councilor after nine years Committee were accepted by the Supreme
or who has been holding office has completed Court, thus neither a politician nor a person
20 age of 70 years, is charged under the penal whose age is more than 70 years could have
law, were disqualified. Now the question is as been elected as officer bearer. Similarly a
to how four persons i.e. President, Chairman, 60 person who was convicted in connection with
General Secretary and Treasurers were elected criminal offence could not have been elected
on 19.07.2016 when on 18.07.2016 Lodha as officer bearer. The office bearers i.e.
25 Committee recommendations were accepted. President, General Secretary, Chairman and
We hasten to add that since election of the Treasurer had incurred disqualification but
elected body is not challenged in any of the 65 despite that they participated in the meeting in
writ petitions, therefore, we leave this issue as which decision to appoint ombudsman was
it is but the reference as made has a relevance taken. It has also been mentioned that notice
30 in the context of determining the issue as to dated 08.09.2016 was issued for the General
whether the Association with said office Council meeting to be held on 29th
bearers in office could take a decision to 70 September, 2016. On 09.09.2016, a
appoint ombudsman and as to whether corrigendum was also issued but the issue
ombudsman could be appointed by them to with regard to appointment of ombudsman
35 resolve the dispute of affiliated 12 clubs out of was also not on the agenda.
32 clubs and other disputes.
13. The findings recorded by the learned
12. Learned Single Judge while dealing with 75 Single Judge are quite apposite.
the issue of appointment of ombudsman by

14. Learned counsel for the appellants would 40 product of afterthought so as to give cover
submit that the resolution of the Association and to justify appointment of ombudsman
dated 18.09.2016 to appoint ombudsman was who otherwise also, as concluded by learned
not on the agenda of the meeting as was Single Judge, has been appointed by the office
5 notified on 08.09.2016, when the rules of the bearers which include disqualified office
association envisage how the meetings are to 45 bearers. Learned Single Judge has rightly
be held. Rule 14 provides procedure for concluded that there is no legal sanctity
holding meetings. That apart, an interesting attached to the appointment of ombudsman.
position which has emerged is that in terms of
10 resolution dated 18.09.2016, it was resolved to 16. It has been contended by the learned
appoint ombudsman and finally Hon'ble Mr. counsel for the appellants that the appointed
50 ombudsman has resolved all the disputes of
Justice Iqbal Ahmad Ansari of Patna High
Court has been appointed as ombudsman on the clubs but same is seriously opposed by
2nd January, 2017 by General Secretary, Mr. learned counsel for the respondents by stating
15 Iqbal Shah, who in fact had incurred that all the parties did not participate in the
disqualification because he has been convicted proceedings, therefore, resolution of the
under Gambling Act. On the other hand, it is 55 disputes by the ombudsman, whose
the Association who could appoint appointment has no sanctity, is irrelevant.
ombudsman not the General Secretary. To 17. True it is that once it is held that there is
20 cover up the said position, during the course no legal sanctity attached to the appointment
of arguments, Mr. G. A. Lone, Advocate, filed of ombudsman, then any decision taken by
an application seeking permission to place on 60 the ombudsman pales into insignificance, no
record minutes of the meeting of the Working requirement of challenging the same
Committee of JKCA held on 07.11.2016 at separately, therefore, to be ignored.
25 Hotel Fortune, Jammu.
18. Next contention of learned counsel for the
15. It appears that the said minutes of the appellants was that the resolution for
meeting have been manufactured which is an 65 appointment of ombudsman was not
afterthought. Had it been in existence, then challenged, in fact a notice was challenged.
during the course of hearing of the writ This argument is totally misplaced because in
30 petitions, same would have been brought to the resolution dated 18th July, 2016, it was
the notice of learned Single Judge. Even resolved by the Working Committee and its
otherwise said minutes of the meeting dated 70 office bearers with four disqualified members
07.11.2016 are shown to have been prepared participating to appoint an ombudsman. The
by General Secretary, Iqbal Ahmad Shah (a decision was not taken to appoint Hon'ble
35 disqualified person) and approved by the Mr. Justice Ansari. It is then General Secretary
President (a disqualified person) in presence who has appointed Hon'ble Mr. Justice Ansari
of other office bearers but it does not inspire 75 as ombudsman. When basic resolution
confidence for believing the same to be true regarding appointment of ombudsman with
except to hold that it is a manufacturing and a four disqualified members as office bearers is

without sanctity, there could be no sanctity to bearers continue to be of 3 years, but with a
the consequent steps which include maximum of 3 such terms regardless of the
appointment of Hon'ble Mr. Justice Ansari as 40 post held, with a cooling off period each such
ombudsman by General Secretary. When base term."
5 is shaken, then whole edifice crumbles down.
21. The phrase "cooling-off period" has been
19. Another contention of Mr. Lone is that used in the context as referred. Learned
the elected body excluding four who incurred counsel for the appellants tried to stretch it
disqualification had a right to continue for a 45 with the period given by the Hon'ble Apex
period of one year from the date they were Court, as referred to in para 102 of the
10 elected. Buttressing this submission would judgment, which provides four months or at
submit that the Hon'ble Apex Court in its the best six months time for transition from
judgment has provided for a cooling-off old to new system as recommended by the
period because for transition from old to new 50 Committee. That may be applicable to the
system recommended by the Lodha office bearers who have not incurred
15 Committee was time consuming, that is why disqualification but not to the office bearers
for its completion four months time or at best who have incurred disqualification or have
six months time from the date of judgment otherwise to be ignored because in para 80 of
was provided. 55 the judgment the word used is
"disqualification is automatic" vis-a-vis
20. Reliance placed on words "cooling-off" by persons which include Ministers, government
20 the learned counsel is misplaced. The Hon'ble servant, office bearers holding the office for
Supreme court in the judgment dated nine years or who has completed the age of 70
18.07.2016 in para 35 has summed up the 60 years, is charged with penal law. This position
reforms recommended by the Lodha has been further reiterated by the Hon'ble
Committee under the heading "END OF Apex Court in the order dated 2nd January,
25 THE INNIGS". In the said para, sub-para (4)
2017. Para 25 is relevant to be quoted:
deals with office bearers, same is quoted here-
under: "25. For the above reasons, we order and
65 direct as follows:
"4. Office-bearer
(i) All the office bearers of BCCI and of its
Limited tenures & cooling-off" affiliated State Associations who fail to meet
30 While all the existing office-bearers (President, the norms recommended by the committee
Vice- president, Secretary, Treasurer and Joint and accepted by this Court, shall forthwith
Secretary) are retained in honorary positions, 70 demit and cease to hold office namely:
the number of Vice-President is pruned from "A person shall be disqualified from being an
five to one. Their duties have been realigned. Office bearer if he or she:
35 The President is shorn of his say in selections.
The additional vote for the president at (a) Is not a citizen of India;
meetings is deleted. The terms of these office-

(b) Has attained the age of 70 years; 35 Subramanian, the learned Amicus Curiae to
assist the Court by suggesting names of
(c) Is declared to be insolvent, or of unsound persons with integrity and experience in
mind; managing a similar enterprise. We request the
(d) Is a Minister or government servant; learned counsel appearing on behalf of the
40 parties to also place their suggestions before
5 (e) Holds any office or post in a sports or the Court so as to facilitate a considered
athletic association or federation apart from decision;
cricket;
(vii) In addition to the function assigned in (v)
(f) Has been an office Bearer of the BCCI for above, the Committee of administrators shall
a cumulative period of 9 years; 45 also ensure that the directions contained in
the judgment of this Court dated 18 July 2016
10 (g) Has been charged by a court of law for
(which accepted the report of the Committee
having committed any criminal offence."
with modifications) are fulfilled and to adopt
(ii) Shri Anurag Thakur, President of BCCI all necessary and consequential steps for that
and Shri Ajay Shirke, Secretary BCI shall 50 purpose;
forthwith cease and desist from being
(viii) In view of the directions contained in (ii)
15 associated with the working of BCCI;
above, the senior most Vice-President of
(iii) A notice to show cause shall issue to Mr BCCI shall perform the duties of the
Anurag Thakur to explain why he should not President, BCCI and the Joint Secretary shall
be proceeded against under the provisions of 55 perform the duties of Secretary. Those of the
Section 195 read with section 340 of the Code office bearers of BCCI who are not
20 of Criminal Procedure, 1973; disqualified in terms of clause (i) above (other
than the President and Secretary) may
(iv) A notice to show cause shall issue to Mr continue subject to their filing an
Anurag Thakur to explain why he should not 60 unconditional undertaking before this Court
be proceeded with under the Contempt of within four weeks of the date of this order to
Courts Act,1971; abide by and implement the directions
contained in the judgment dated 18 July 2016.
25 (v) A committee of administrators shall
Upon the Committee of administrators as
supervise the administration of BCCI through
65 nominated by this Court assuming the charge,
its Chief Executive Officer;
the existing office bearers shall function
(vi) This court shall by a separate order subject to the supervision and control of the
nominate the persons who shall form part of Committee of administrators. The committee
30 the Committee of administrators. In order to of administrators would have the power to
enable the Court to have the benefit of 70 issue all appropriate directions to facilitate due
objective assistance in making the supervision and control; and
nominations, we request Mr Fali S. Nariman,
learned Senior Counsel and Mr. Gopal
(ix) The remuneration payable to the filing an unconditional undertaking before this Court
members of the Committee of Administrators 40 within four weeks of the date of this order to abide by
shall be fixed in consultation with the and implement the directions contained in the judgment
Committee consisting of Mr Justice R M dated 18 July, 2016"
5 Lodha, Mr Justice Ashok Bhan and Mr Justice
R V Raveendran. The role of the Justice R M 23. The Association after 18.07.2016 i.e. the
Lodha Committee shall hereafter be confined date of judgment of the Hon'ble Supreme
to overall policy and direction on such matters 45 Court accepting recommendations of the
as may be referred by this Court. Lodha Committee could not have held the
election on 19.07.2016. More so when there
10 (x) We would request the learned Senior was also a restrain order issued by the Court
Counsel and the learned Amicus Curiae to of Munsiff (Sub Registrar) (Civil Judge Junior
endeavour to submit their suggestions to this 50 Division), Srinagar, in the suit titled "United
Court within two weeks. The proceedings Cricket Club Vs. J&K Cricket Association and
shall be listed before this Court on 19 January others" not to hold the election. The basic
15 2017 for pronouncement of directions in structure of the elected office bearers has
regard to the names of the administrators. " been under cloud. Under such circumstances,
55 term of the office bearers apart from
22. Another contention of learned counsel for disqualified office bearers cannot be said to be
the appellants is that in terms of order dated existing.
2nd January, 2017 of the Hon'ble Supreme
20 Court and in view of direction No.(viii) 24. Learned counsel for the appellants also
contained in para 25, as quoted above, it has contended that the election was held on
been made clear that upon the Committee of 60 19.07.2016 under the observation of Mr. Prem
Administrators as nominated by the Court Thakur, representative of BCCI and then
assuming charge, the existing office bearers regarding appointment of ombudsman, BCCI
25 shall function subject to the supervision and was informed from time to time. Learned
control of the Committee of Administrators. counsel tried to project that the election was
In this context, learned counsel would submit 65 held in accordance with rules and the
that all the office bearers of JKCA as elected appointment of ombudsman was also in
on 19.07.2016, being the existing office accordance with proper decision of JKCA.
30 bearers, shall have to function and to run
JKCA under the supervision and control of 25. True it may be but how can he justify the
Committee of Administrators. This election when four office bearers had incurred
contention of learned counsel is answered in 70 disqualification in view of judgment of the
sub para (viii) of Para 25 itself wherein it has Hon'ble Supreme Court dated 18.07.2016 and
35 been recorded as under: then to justify the election when there was
also a restraint order issued by learned
"Those of the office bearers of BCCI who are not Munsiff (Sub Registrar), Srinagar, not to hold
disqualified in terms of clause (i) above (other than the 75 the election, therefore, election of the
President and Secretary) may continue subject to their office bearers is under eclipse, as such,

appointment of ombudsman looses sanctity. 40 should have for allied reasons which include
Be that as it may, now the term of office alleged embezzlement of funds, disputes inter
bearers has expired on 19th July, 2017. se members of 12 clubs, rivalry between the
groups, in the process multiple litigation made
26. As per Rule 8 of the Rules of JKCA, the the game of cricket to suffer. Now with the
5 Working Committee has to elect office 45 implementation of the judgment of the
bearers from amongst its members annually. Hon'ble Apex Court, the game of cricket in its
The Working Committee though has elected all respects, will flourish.
officer bearers wrongly on 19.07.2016, still
they could hold the office till replaced by duly 28. In the stated facts and reasons, learned
10 elected office bearers. Same is clear from Rule Writ Court has rightly appointed two
8(ii). However, the Rule nowhere provides 50 Administrators which cannot be found fault
that the term of elected office bearers will with except for certain additions so as to see
automatically come to an end on completion that the committee of Administrators is
of one year. No doubt, requirement is to hold assisted in implementing the
15 the election annually. If it is not held for any recommendations of the Lodha Committee as
reason, then elected office bearers have to run 55 accepted by the Hon'ble Supreme Court.
the business of the Association until they are
replaced by the new elected office bearers. In 29. In addition to the directions issued by
the case in hand, the office bearers have been learned Single Judge, referred to in para 1 of
20 elected wrongly on 19.07.2016. Even now the judgment, with modifications as indicated
annual election could not be held on above, the following issues/situations also
18.07.2017 for the later developments i.e. 60 arose for smoothening functioning of JKCA
judgment of the Hon'ble Supreme Court, consistent with the directions of the Hon'ble
therefore, elected office bearers could exist Supreme Court wherefrom no departure can
25 except four, namely, President, Chairman, be imagined nor can be permitted:
General Secretary and Treasurer, who have Issue No.1: Settling of disputes primarily of
incurred disqualification and cased to be the 65 the members of 12 clubs, i.e.
office bearers right from the very inception
because in terms of judgment dated ……
30 18.07.2016 and then order dated 2nd January,
and other disputes so as to pave way for
2017, their disqualification is automatic, as is
elections.
also clear from direction No.(viii) as referred
to in para 25 quoted hereinabove. The other Issue No.2: For settlement of disputes among
existing office bearers could exist but as 70 12 clubs and other disputes of the
35 referred to above, their election was under Association, there is a requirement of
cloud, therefore, their existence beyond appointing ombudsman. Learned Single Judge
18.07.2017 shall be unjustified. has given the power to the two appointed
Administrators to appoint an ombudsman
27. The game of cricket till date has not
75 which, in our view, is not apposite. The
flourished in the State of J&K to the extent it

Administrators cannot appoint ombudsman. 40 amount seized by police has not been already
Ombudsman was required to be appointed by released in favour of JKCA. In case released,
the Association but in the stated background, whatever amount available with the
we deem it proper to appoint ombudsman for Association shall be dealt with by Chief
5 resolving all the disputes after giving hearing Executive Officer under the instructions and
to all concerned, therefore, we appoint Mr. 45 directions of the Committee of
Justice Syed Bashir-ud-din (retired) as Administrators.
ombudsman who shall undertake the task of
settling the disputes of 12 clubs and also other Issue No5: The monthly remuneration,
10 disputes of the Association so as to pave a allowances and other conditions during such
way for implementing directions of the term in office as Chief Executive Officer shall
50 be the same as that of DIG reduced by the
Hon'ble Supreme court in line with
recommendations of the Lodha Committee. amount of pension received by him and by
The expenditure shall be at par with the protion of the commuted value of the
15 Administrators. The monthly remuneration, portion of such pension, if received by him.
allowances and other conditions during such 30. For the stated reasons and the position of
term in office as an ombudsman shall be the 55 law, with the modification as indicated
same as that of a Judge of the High Court, hereinabove, the judgment of the learned
reduced by the amount of the pension Single Judge is upheld. The directions issued
20 received by him and by the portion of the by the learned Single Judge, with
commuted value of the portion of such modifications as indicated above, be
pension, if received by him. 60 implemented forthwith.
Issue No.3: In our opinion, a suitable person 31. All the appeals are, accordingly, disposed
has to be appointed as Chief Executive of.
25 Officer who may have also administrative
skills, therefore, we deem it appropriate to Appeals disposed of
appoint Mr. Ashiq Hussain Bukhari, IPS,
retired DIG, as Chief Executive Officer, who
after approval of the Committee of 65
30 Administrators, shall associate some reliable
undisputed members of the Working
Committee who have not incurred
disqualification, for running the affairs of
JKCA under the supervision and control of
35 Committee of Administrators till rules are
amended and elections are held.
Issue No.4: Regarding direction No.(VII), 70

issued by learned Single Judge, it is made clear
that the direction will operate provided the

Sushil Kumar participate. While the petitioner states that he

35 did not participate in the trial because he was
v nursing an injury, respondent no. 4- WFI and
Union of India and others respondent no. 5 dispute the said fact.
ARGUMENTS ON BEHALF OF
PETITIONER
5 Case No :W. P. (C). 4514/2016, CM Appeals.
18841/2016, 22426/2016 40 3. Mr. Amit Sibal, learned senior counsel for
petitioner stated that as a wrestler represents
Bench :Manmohan the country in international events, once the
wrestler attains the qualifying position in the
Citation :2016 Indlaw DEL 3173
tournament, the wrestler merely secures a
The Judgment was delivered by : Manmohan, 45 berth for the country and not for himself. He
10 J. contended that the National Sports
Development Code, 2011 [for short "Code,
THE ISSUE 2011"] stipulates that trials have to be
conducted for selecting athletes to represent
1. Petitioner's argument "All I am asking is a
50 India in major international sporting events.
trial for Rio Games" makes interesting sound-
Consequently, according to him, even after
bite, but the issue is whether this argument is
the berth had been secured, a trial has to be
15 legally tenable and in consonance with the
held. In support of his contention, he relied
facts of the case.
upon the following portion of the Code, 2011
ESSENTIAL FACTS 55 as well as guidelines dated 18th September,
2008 issued by Ministry of Youth Affairs and
2. By way of the present writ petition, Sports, Department of Sports, Government
petitioner has challenged selection of of India:-
20 respondent no.5 by respondent no.4-
Wrestling Federation of India (hereinafter (A). National Sports Development Code,
referred to as "respondent no. 4-WFI"). for 60 2011.
the 74 kg Men's Freestyle Wrestling event at
"13. Selection Procedure.
the Rio Olympics Games 2016 commencing
25 5th August, 2016. It is pertinent to mention 13.1. NSFs are primarily responsible for judicious
that respondent no.5 had secured a berth for selection of national teams for participation in major
India in the 74 kg men's free-style category for international events bases on merit and with the
the Olympics by winning a bronze medal in 65 objective of enhancing national prestige and bringing
the World Championship 2015 held in Las glory to the country. As such the best
30 Vegas in September, 2015. The trials to select sportspersons/team has to be chosen for representing
a wrestler to represent India in the said event the country.
at the World Championship were held in July,
2015, in which the petitioner did not

13.2. The Selection Committee will be constituted by Vs. Union of India, (2014). 212 DLT 389
the Federation comprising of the President, the (DB). 2014 Indlaw DEL 1648 has upheld the
National Coach and eminent ex-sportspersons. The legality and validity of the Code, 2011.
Government will appoint an Observer for priority and
5 general category disciplines receiving financial grant, 40 5. Mr. Sibal emphasised that selection of
who will be associated with all the activities of the wrestlers for all other weight categories had
National Federation. It will be mandatory for the been conducted in March 2016 excluding the
Federation to inform him or her about Selection category of 74 kg Men's Freestyle event for
Committee Meetings, important national and which trials had been held thirteen months
45 before the Rio Olympic Games 2016. He
10 international competitions. The Government Observer
will have to oversee the selection process in order to stated that no subsequent trials in the 74 kg
ensure that it is fair and transparent." category had been held to determine the
current form of the athletes so as to assess
(B). Guidelines issued for more efficient management who would be most likely to secure a medal at
of coaching camps, selection of coaches & selection of 50 the Rio Olympic Games 2016.
15 athletes issued by Ministry of Youth Affairs and
Sports, Department of Sports, Government of India: 6. According to him, the reason for non-
holding of trials is that respondent no. 4-WFI
"3. SELECTION OF ATHLETES is offended due to petitioner's non-
participation in the Pro Wrestling League,
(i). The selection of sportspersons for participation in 55 2015.
major international events shall be the responsibility of
20 National Sports Federations (NSF). concerned, and 7. Mr. Sibal contended that the selection
Government and the Sports Authority of India, will criteria adopted by respondent no.4-WFI
not have direct involvement in the selection process, according to its own admission was 'discreet',
except to ensure that it is fair and transparent. i.e., contrary to fair and transparent manner as
60 required by Code, 2011. He submitted that a
(ii). The selection criteria/norms shall be clearly Coordinate Bench of this Court in Amit
25 communicated by the NSFs to all concerned viz., Kumar Dhankar Vs. Union of India, W.P.(C).
players, coaches, Government Observers etc. well in 3914/2014 decided on 3rd July, 2014 has held
advance and be put up on the website of the NSF that the Code, 2011 is enforceable against
concerned and also be forwarded to SAI and the 65 respondent no.4-WFI and that selection
Ministry to be put up on their respective websites. through trial is mandatory.
30 xxxx xxxx xxxx xxxx ….
(v). In team events the Selection Trials should be held 8. Mr. Sibal stated that if selection of
two months in advance and in the case of contact respondent no. 5 had been made in July 2015
games, the selection trials should be held at least one 70 then why was the petitioner sent for training
month in advance of the competition event." at State expense to Georgia in October-
35 4. Mr. Sibal pointed out that a Division Bench November, 2015 as well as in March-April,
of this Court in Indian Olympic Association 2016 and to the National Coaching Camp for

Olympics 2016 at Sonepat from January to Olympic Games. She also relied upon the
March, 2016 under Target Olympic Podium Ministry of Youth Affairs and Sports' letter
Scheme. He also relied upon the 40 dated 18th September, 2008 which also forms
performance/evaluation report dated 17th a part of Code, 2011 and which was referred
5 November, 2015 issued by the Foreign to by Mr. Amit Sibal. The relevant portion of
Freestyle Wrestling expert to contend that the the said letter is reproduced hereinbelow:-
petitioner had trained well in Georgia.
" xxxx xxxx xxxx xxxx
….
45 (vi). The selection shall be done by a Selection
9. Mr. Sibal emphasised that the petitioner Committee, consisting of the President of the NSF as
10 through the present writ petition is only the chairman, the National coach and eminent ex-
seeking a fair chance to compete in a sportspersons, preferably Arjuna awardees. There shall
transparent selection procedure. be no Government Observer/SAL nominee, as
50 member, in the Selection Committee."
ARGUMENTS ON BEHALF OF UNION
OF INDIA ARGUMENTS ON BEHALF OF
RESPONDENT NO. 4-WFI
15 10. On the other hand, Ms. Monika Arora,
learned counsel for Union of India stated that 12. Mr. Pradeep Dewan, learned senior
the responsibility for selecting the counsel for respondent no.4-WFI contended
sportspersons for participation in 55 that all the National Sports Federations have a
international sports competitions including policy that whoever earns the berth/quota for
20 Olympic Games is of the concerned National the Olympic Games has the first right to use it
Sports Federation. According to her, the and the quota winner is replaced only if
Code, 2011 gives full autonomy to the he/she is injured or unfit or out of form. He
National Sports Federations in their internal 60 stated that there had been not even a single
functioning. She emphasized that the Union instance in India, where a wrestler or athlete
25 of India has no role in the matter of selection other than the one who had secured the
of sportspersons for participation in quota, had represented India.
international sports events including Olympic
Games. …
65 13. Mr. Dewan contended that the argument

11. Ms. Arora stated that the Code, 2011 does
30 not make it mandatory for National Sports that in the other events, trials were held in
Federations, like respondent no. 4-WFI, to 2016 is misleading inasmuch as in the said
hold selection trials for participation in events none of the athletes had succeeded in
Olympic Games after certain sportspersons qualifying and/or winning a quota for the
have earned a quota berth for the country. She 70 country.
35 stated that it is solely for the National Sports 14. Mr. Dewan also stated that the petitioner
Federation to hold trials or not for during the last two years had been consistently
nominating sportspersons for participation in avoiding facing the respondent no. 5 in 74 kg
weight selection trials. He pointed out that till assistance of the Chief Coach and trainers in
January, 2014, the petitioner had been playing 40 the training camps after evaluating the
in 66 kg weight category and only when the performance of wrestlers in this category on
said category was abolished, the petitioner the basis of their achievements and current
5 started playing in the 74 kg weight category. performance.
15. Mr. Dewan emphasised that respondent …

no.5 had been playing in 74 kg weight
45 18. Mr. Dewan emphasised that the petitioner
category all throughout and had been
dominating this category since 2006. He stated in his own wisdom had been training
10 that when the petitioner was asked as to why
separately and had not sparred with any other
he did not participate in the selection trials in 74 kg weight category wrestler in the training
July 2015, he stated that he was nursing an camps. He stated that even when the
injury. Mr. Dewan stated that no medical 50 petitioner went to Georgia in October, 2015
certificates to that effect had been submitted and March, 2016 the petitioner trained
15 by the petitioner till date
separately, sparred with some wrestlers of his
own choice 'far away from Indian wrestlers'
… just to avoid sparring against strong wrestlers
55 in 74 kg category, particularly, respondent no.
16. Mr. Dewan stated that neither the 5. He stated that the country's Chief Coach in
respondent no.4 nor any of its officials are his report to respondent no. 4-WFI had
offended due to petitioner's non-participation remarked that he was unable to comment on
20 in Pro-Wrestling League 2015. He emphasised the prospect of petitioner to win a medal as
that during meetings between the petitioner 60 he did not train under him or with the team
and respondent no.4-WFI's officials, the and did not spar with other wrestlers in 74 kg
petitioner was asked a query with regard to his category.
non-participation in Pro-Wrestling League
25 2015 only because there was bound to be a 19. Mr. Dewan contended that the petitioner's
clash in that tournament between the conduct was not above board. He stated that
petitioner and respondent no.5 and the 65 the petitioner had relied on a false affidavit of
officials of respondent no.4-WFI were of the Mr. Raj Singh, Vice President, WFI wherein it
view that the petitioner had deliberately opted had been stated that trials had been held and
30 out of the tournament so as to avoid a contest conducted by him as head coach in 1996 to
with respondent no.5. select a candidate to represent India in the 48
70 Kgs Greco-Roman Class of wrestling for the
17. Mr. Dewan stated that in the opinion of Olympic games held in Atlanta. Mr. Raj Singh
respondent no.4-WFI, respondent no. 5 had a in his affidavit stated that the candidate who
better prospect than the petitioner to win a had secured a berth for India in the Olympic
35 medal for India in the 74 kg Freestyle category Games 1996 had competed in a trial against
at the Rio Olympic Games 2016. He 75 his challenger and only the winner of the trial
contended that the decision to send was sent to the Olympics as India's
respondent no. 5 to Rio was taken with the
representative. Mr. Dewan pointed out that May, 2016 that India's nominee in the 74 Kg .
neither Mr. Raj Singh was the Head Coach of 40 Freestyle would be respondent no.5.
the Indian team in 1996 nor any trials were
held by him for selecting a candidate to ARGUMENTS ON BEHALF OF
5 represent India in the 1996 Atlanta Olympics. RESPONDENT NO. 5-NARSINGH
He emphasised that in the history of WFI, no YADAV
wrestler who had won a quota in Olympic 23. Mr. Nidhesh Gupta, learned senior
Games had ever faced a trial. 45 counsel for respondent no. 5 stated that the
..… qualification system prescribed for Rio
Olympic Games 2016 stipulates that each
10 20. Mr. Dewan stated that if a trial is directed category can have one athlete in each event.
to be held at this stage, it would upset the He stated that the qualification pathway of
'entire apple cart' and would cause immense 50 United World Wrestling lists in hierarchical
mental stress and trauma to respondent no.5 order the four phases which are termed
who had been concentrating on his training. "Qualification Events". He stated that if a
15 He stated that wrestlers like respondent no.5 quota is secured in the first phase, i.e., in the
adopt a scientific and forensic strategy for a World Championship 2015, then no further
prestigious event like Olympic Games under 55 participation in the subsequent phases is
the guidance of their coach and doctors. He permissible or required.
stated that invariably a wrestler in order to
20 gain strength increases his weight before the
24. Mr. Gupta emphasised that it was for the
event and reduces it just before the event to first time in the history of the country that a
be eligible for the slot in his weight category. quota/berth had been secured by a wrestler in
60 a world championship by winning a medal.
He stated that a trial at this stage would 'kill
the strategy' and severely reduce the chance of According to him, since the quota had been
25 winning any medal in the Olympic as secured in the first phase itself, there was no
respondent no.5 would have to lose weight question of any subsequent trial or
midway during his training and much prior to participation in the subsequent phase of the
65 qualification event in 74 kg category. He
the Olympic Games.
emphasised that respondent no. 5 has
21. Mr. Dewan stated that wrestling is a defeated 6 out of 18 athletes who have
30 combative power game and there is a great qualified in the 74 kg category for Rio
chance of a wrestler suffering serious injury in Olympics Games 2016 and has lost only to
a trial. He referred to newspaper reports to 70 gold medallist in the World Championship.
contend that there exists an element of
rancour between the petitioner and 25. Mr. Gupta stated that petitioner had not
35 respondent no. 5.22. Mr. Dewan lastly stated
produced any medical certificate or
that the present writ petition was infructuous documents in support of his alibi that he
as respondent no.4-WFI had already officially could not participate in selection trials in July
informed United World Wrestling on 03rd 75 2015 due to an injury.

26. Mr. Gupta stated that while respondent whereas Archery Association of India follows
no. 5 was vigorously training under the Indian exclusive selection trials for this purpose.
Coach, petitioner was engaged in preparation
of commercials like Mountain Dew and 40 30. Mr. Grover stated that the Sports
5 Patanjali ghee.
Authority of India was of the opinion that the
selection process followed by respondent
27. Mr. Gupta pointed out that respondent no.4-WFI in the present instance was
no. 5 is now heading for training abroad with reasonable and had been applied by it 'across
the Indian Olympic contingent and trial at this 45 the board'.
belated stage should not be ordered. He stated
10 that according to the Qualification Timeline
REJOINDER ARGUMENTS ON BEHALF
of United World Wrestling, the deadline for OF PETITIONER
NOCs to confirm use of quota places 31. In rejoinder Mr. Amit Sibal stated that
obtained at the 1st International Qualification there is no written policy of respondent no.4-
Tournament was 09th May, 2016-which 50 WFI that the athlete who secures the berth for
15 deadline had expired even prior to the filing the Olympics shall represent India at the
of the writ petition. Olympics. According to him, in fact, there is
28. Mr. Gupta submitted that the judgment of no written policy of the respondent no. 4-
Amit Kumar Dhankar (supra). was not good WFI for either selection of athletes to
law in view of the Division Bench's 55 represent India at Olympics or with regard to
20 observation in LPA No. 548/2014 that it
the procedure to be followed in case of injury.
should not be treated as a precedent. In any He pointed out that other National Sports
event, Mr. Gupta pointed out that even the Federations of India like National Rifle
learned Single Judge in Amit Kumar Dhankar Association of India and Archery Association
(supra). had not granted any relief due to 60 of India have published rules regarding the
25 uncertainty that would prevail keeping in view selection for Olympics 2016 to ensure fairness
the short time gap between the event and the and transparency in the selection procedure as
filing of the writ petition. per the Code, 2011 and there was no
legitimate reason for respondent no.4-WFI to
ARGUMENTS ON BEHALF OF SPORTS 65 be an exception. He contended that the
AUTHORITY OF INDIA selection to determine the best athlete to fill
the berth at the Olympics should be done by
30 29. Mr. Anil Grover, learned counsel for the the National Sports Federations pursuant to a
Sports Authority of India stated that the written transparent policy of trials, as is the
National Sports Federations, based upon the 70 practice followed internationally; e.g. USA,
nature of sports, devise and follow a selection Canada, Russia, Australia and Iran. According
criteria which is most suitable for their to him, in all these countries there are written
35 respective sports. He pointed out that for selection guidelines and separate trials to
example, National Rifle Association of India determine who shall participate in the
has an elaborate weighted average system, 75 Olympics, irrespective of who has secured the

berth. The athlete securing the berth gets no 35. Mr. Sibal contended that there is still
right to represent the country at the Olympics enough time to conduct trials for the
unless he secures the right to do so at the 40 Olympics 2016 as the wrestling event is on
domestic trials. For instance, he stated that the 18th August, 2016 and the last date for
5 USA Olympic Team Trials were held from sending names for the same is 18th July, 2016.
08th - 10th April, 2016 where Jordan Holm
who had secured the berth lost to Ben COURT'S REASONING
Provisor and Anthony Ramos who had A WRIT COURT WILL NOT INTERFERE
secured the berth lost to Daniel Dennis. 45 IN THE EXERCISE OF DISCRETION OF
10 Consequently, according to him, the stand THE NATIONAL SPORTS FEDERATION
taken by respondent no. 4-WFI that world EXCEPT WHERE THE DISCRETION IS
over all national federations have a policy that SHOWN TO HAVE BEEN EXERCISED
whoever earns the quota has the first right to IN AN ARBITRARY OR CAPRICIOUS OR
use it and he is replaced only if he/she is 50 PERVERSE MANNER OR CONTRARY
15 injured/unfit or if he/she is out of form, is TO SETTLED PRINCIPLES OR
erroneous. PRACTICES. AFTER ALL POWER AND
32. Mr. Sibal further stated that as 2015 was RESPONSIBILITY GO HAND IN HAND
the first time when an athlete had secured a 36. Having heard the learned counsel for
berth in the World Championship, how can 55 parties, this Court is of the view that the
20 respondent no.4- WFI claim that in selecting decision who should represent India in a
respondent no. 5, it was following a settled sporting event is best left to the experts i.e.
practice. the concerned National Sports Federation.
33. Mr. Sibal stated that the Chief Coach had 37. Power and responsibility go hand in hand.
admittedly been unable to comment on the 60 The National Sports Federation cannot be
25 progress and performance of the petitioner held responsible for the performance of its
and had not indicated that the petitioner is in athletes, if it does not have power to select
such form that renders him unfit to be them according to a flexible procedure as long
considered for participation in the Rio as the same is fair, transparent, reasonable and
Olympics Games 2016 and, therefore, the 65 consistent.
30 Chief Coach's report cannot be a ground not
to hold a trial. 38. A Coordinate Bench of this Court in
Shumel vs. Union of India & Ors., W.P.(C).
34. Mr. Sibal pointed out that the petitioner 5034/2010 has held as under:-
had won the Silver medal at the International
tournament at Sassari, Italy in May, 2014 and " 4. Having heard learned counsel for the parties, this
35 the Gold at the Commonwealth Games in 70 Court is of the view that in matters of selecting the best
August, 2014. Thus according to him, possible candidate to represent India in an
petitioner is in good form. international competitive event, there cannot be any

interference by this Court in the selection criteria set The Union of India in its counter-affidavit has
down by the concerned national sports federation......... 40 correctly highlighted the distinction between
selection for Commonwealth Games and
xxx xxx xxx Olympic Games in the following words, "it is
13. Considering that the best possible candidate has to also submitted that the procedure for
5 be selected to represent India in the CWG 2010 in participation in Olympic Games is different
the 72 kg category, the methodology adopted by the 45 from participation in other international
Respondents by holding a coaching camp, followed by a sports events. For participation in Olympic
national championship and conducting selection trials Games, sportspersons to represent a
for the top women wrestlers in such championship, to particular country are required to participate
10 ultimately choose one, cannot be held to be arbitrary or in Olympic qualifying events to earn Olympic
unreasonable. Consistent with the high standards of 50 berths for their country."
the CWG 2010, it is but essential that the candidate 40. Even the stand of the Ministry of Youth
who qualifies by consistent performance through a Affairs and Sports and Sports Authority of
rigorous procedure of selection, is picked up to represent India is that they do not interfere with the
15 India in the various sports events. How the relative
selection process as the National Sports
merits of the different candidates should be evaluated is 55 Federations are autonomous organisations.
not a matter for this Court to decide. That is best left
to the experts in a particular field of sport." 41. Keeping in view the aforesaid, this Court
is of the view that a writ Court will not
(emphasis supplied). interfere in the exercise of discretion of the
20 39. The judgment of Amit Kumar Dhankar National Sports Federation and substitute its
(supra). relied upon by learned senior counsel 60 own judgment except where the discretion is
for petitioner offers no assistance to the shown to have been exercised in an arbitrary
petitioner as it has been clarified by the or capricious or perverse manner or contrary
Division Bench in the matter being carried to settled principles or practices.
25 forward in appeal in LPA 551/2014 that "the NO ALLEGATION OF BIAS IN WRIT
impugned judgment shall also not constitute a 65 PETITION. THE ALLEGATION IN
precedent in the similar issues, if arising in REJOINDER IS UNSUPPORTED BY ANY
future, in any matter". The observation in CONTEMPORANEOUS DOCUMENT
Amit Kumar Dhankar (supra). that Neha
30 Rathi Vs. Union of India, W.P.(C). 7170/2010 42. No allegation of bias or prejudice has been
decided on 10th November, 2010 is per made in the writ petition against respondent
incuriam is vitiated by a mistake as on the date 70 no.4-WFI. Though, the petitioner in his
of the judgment in Neha Rathi (supra). the rejoinder has alleged that respondent no.4-
Code, 2011 had not come into effect. In any WFI has targeted him for not participating in
35 event, the case of Amit Kumar Dhankar Pro Wrestling League organized by
(supra). dealt with a selection of wrestlers for respondent no. 4-WFI in December,
Commonwealth Games, 2014 for which there 75 2015/January, 2016, yet the said allegation in
is no 'Qualification Event' to secure a berth.
the absence of any contemporaneous qualification event and the country has the
document inspires no confidence. best chance to secure a berth in the Olympics.
THE CODE, 2011 GIVES FULL 40 45. The contention of respondent no. 4-WFI
FLEXIBILITY AND AUTONOMY TO that the World Wrestling Championship is a
5 RESPONDENT NO. 4-WFI TO DECIDE tougher competition than even the Olympics
THE PROCESS OF SELECTION AND is significant. In the World Wrestling
WHEN TO HOLD A TRIAL. Championship 117 countries participate with
45 40-50 wrestlers in the 74 kg. category, whereas
43. This Court is also of the view that the in the Olympics only 30-35 countries
Code, 2011 does not restrict or impinge upon participate and there are 19 wrestlers in the 74
10 the autonomy or discretion of the National kg. category.
Sports Federations to select athletes/wrestlers
to represent India in international sporting 46. The system suggested by the petitioner of
events. The Code, 2011 does not make it 50 having trials after the qualification event
mandatory for respondent no. 4-WFI to hold cannot be accepted as the sole method for
15 trials for selection of wrestlers for Olympics selection as it implies that the country would
just two to three months prior to the event. not send its best athlete to secure a place for
The Code, 2011 only obligates the National itself in Olympics. Consequently, in the
Sports Federations to judiciously select players 55 opinion of this Court, respondent no.4-WFI
to represent India on merit for major in the present case has adopted a reasonable,
20 international events with the objective of transparent and fair procedure in selecting
enhancing national prestige and bringing glory respondent no.5 as India's representative to
to the country. The Code, 2011 gives full Rio Olympics in the 74 kg category.
flexibility and autonomy to respondent no. 4-
WFI to decide the process of selection and 60 WITHOUT A BERTH THERE WOULD
25 when to hold a trial. It only stipulates that if HAVE BEEN NO INDIAN
selection trials are required, they should be REPRESENTATION IN OLYMPICS IN
held two months in advance. THIS CATEGORY
RESPONDENT NO.4-WFI CONDUCTED 47. The fact that India would not have had a
A FAIR AND TRANSPARENT 65 berth in the 74 kg Free Style Wrestling, had
30 SELECTION TRIAL PRIOR TO THE the respondent no.5 not won a Bronze in the
QUALIFICATION EVENT. World Championship September 2015 is
crucial.
44. This Court finds that it is not disputed
that the respondent no.4-WFI conducted a 48. In the present instance, the respondent
fair and transparent selection trial prior to the 70 no.5 after winning a Bronze medal in the
35 qualification event i.e. World Championship
World Championship September 2015 is
September 2015 in a bid to ensure that the being given meticulous training by the
best Athlete represents the country in the concerned authority so that he is best

prepared to represent the country in the PETITIONER HIMSELF BY WINNING A

Olympics. QUOTA HAD PARTICIPATED IN
40 PREVIOUS OLYMPICS WITHOUT
PRACTICE THAT A WRESTLER WHO UNDERGOING ANY FURTHER TRIAL.
HAS EARNED THE BERTH FOR THE
5 COUNTRY WILL REPRESENT IT, IS 52. In fact, this Court on perusal of the record
NEITHER PERVERSE NOR CONTRARY finds that without exception, only the quota
TO CODE, 2011. winner has represented India in wrestling in
45 Olympics without undergoing any trial. From
49. The selection procedure followed by the the list of Indian wrestlers who represented
respondent no.4-WFI i.e. the wrestler who has India in 2004, 2008 and 2012 Olympics, it is
10 earned the berth for the country will represent apparent that the petitioner by virtue of
the country, does not show any element of winning a quota had participated in the said
perversity or anomaly in the instant case as 50 Olympics without undergoing any further
the said practice has been followed by trial.
respondent no.4-WFI uniformly and
15 consistently. ARGUMENT THAT A TRIAL HELD
THIRTEEN MONTHS AGO MAY NOT
50. The said practice cannot also said to be RESULT IN THE BEST ATHLETE
contrary or in violation of Code, 2011. Even 55 PARTICIPATING IN OLYMPICS, IS
the Union of India in its counter-affidavit has INCORRECT.
recommended this interpretation of the Code,
20 2011. The relevant portion of the affidavit of 53. The petitioner's argument that a trial held
Union of India is reproduced hereinbelow:- thirteen months ago may not result in the best
Athlete participating in Olympics, is incorrect.
"5. .......After Olympics berths have been earned, it is 60 This Court is of the view that whether trials
for the concerned NSF to decide whether it deems fit to should be held thirteen months in advance or
hold a selection trial or to nominate the individual thirteen days in advance is a decision which
25 sportsperson who has earned quota place in Olympics
the experts should take and not the Courts.
for the country."
54. In fact, a similar argument on similar facts
51. The fact that some countries in the world 65 was rejected by this Court in the case of Kirpa
follow the practice of holding trials four to Shankar Patel vs. UOI & Anr., W.P.(C).
three months prior to the Olympics does not 10343/2004. The relevant portion of the said
30 mean that the same policy must be followed
judgment is reproduced hereinbelow:-
by all the National Sports Federations. There
is always more than one good method of "The petitioner has filed the present writ petition
selection. Since the process of selection 70 aggrieved by the non-selection to represent India in the
adopted by respondent no. 4-WFI is not Athens Olympics under the category of 55 kg. free-
35 arbitrary or perverse, this Court cannot style wrestling............
substitute its own judgment for that of the
experts.

Learned counsel for respondent No.4 submits that the TRIALS WERE HELD IN 2016 IS
basis for selection for Athens Olympics Games has MISLEADING. IN FACT, TRIALS WERE
been the result of this Pre-Qualifying Wrestling 40 HELD PRIOR TO THE SUBSEQUENT
Tournaments and since Mr. Yogeshwar Dutt had won QUALIFYING EVENTS.
5 the bout from the petitioner qualified for participation
and thereafter participated in the said Tournament 56. The argument that for the other wrestling
and won the first position, he has been selected to go to events, the trials were held in 2016 is
the Athens Olympics Games. misleading inasmuch as in the said events the
45 concerned athletes did not succeed in the
Learned counsel for the petitioner, however, submits September 2015 qualifying event.
10 that there is a long lapse of time between the said Consequently, for the subsequent qualifying
Tournament and as on date and, thus, a bout should events that took place in 2016, the trials had
be held between the petitioner and Mr. Yogeshwar to be held prior to the said qualifying events.
Dutt to decide who should be sent to the Athens
Olympics Games. This submission is further 50 JUST BECAUSE PETITIONER SENT TO
15 supported by the fact that the petitioner was called to
GEORGIA AND SONEPAT FOR
the Camp....... TRAINING IN 2016, DOES NOT MEAN
THAT IT IS MANDATORY TO HOLD A
The basis followed of selecting Mr. Yogeshwar Dutt on TRIAL
his performance in the Pre-Qualifying Wrestling
Tournaments for the Olympics Games cannot be said 55 57. The fact that the petitioner had been sent
20 to be a selection process, which is so arbitrary or illegal
to Georgia and Sonepat for training in 2016,
as would call for interference by this Court in exercise does not mean that it is mandatory to hold a
of the jurisdiction under Article 226 of the trial today. Even after, selection of respondent
Constitution of India. In fact, the placement of no. 5 one cannot be sure that he will be able
Mr. Yogeshwar Dutt at position No.1 in the 60 to participate in the said tournament. In the
25 international event itself is a fact which would weigh event of happening of an unforeseen event,
heavily in his favour. However, this is no reflection on the respondents did not want to be caught
the capability of the petitioner.......... Dismissed." unawares and consequently, the petitioner-
keeping in view his background and
(emphasis supplied). 65 credentials which made him a likely
replacement/back-up - was wisely sent for
55. Moreover, a candidate after selection has training.
30 to undergo meticulous training under the
guidance and supervision of a coach and a THOUGH THE PETITIONER IS A
doctor. One cannot lose sight of the criticism LEGENDARY WRESTLER WHO HAS
in the past by the experts that athletes for 70 WON A NUMBER OF INTERNATIONAL
international events are neither selected nor EVENTS INCLUDING OLYMPICS IN
35 trained well in advance. THE PAST IN 66 KG WEIGHT
CATEGORY, YET THE OPINION OF
THE ARGUMENT THAT FOR THE THE WFI THAT ON CURRENT
OTHER WRESTLING EVENTS, THE 75 CONSISTENT FORM, RESPONDENT
NO. 5 IS BETTER IN 74 KG WEIGHT lose his weight earlier than scheduled. The
CATEGORY CANNOT BE TERMED AS 40 high probability of an injury in a trial cannot
UNREASONABLE OR PERVERSE. be 'lost sight of'.
58. The petitioner is a legendary wrestler who 61. This Court is also of the view that the
5 has won a number of laurels for this country petitioner having failed to take part in
in the 66 kg weight category. It is unfortunate selection trials in the years 2014 and 2015 as
that the said category was abolished in January 45 well as in the National Championship in 31st
2014 and the petitioner has been forced to December, 2015 and 1st January, 2016 and
play in 74 kg weight category. the Asian Championship held in February
2016 cannot now seek a trial at this belated
10 59. On consistent current form, the opinion
stage.
of respondent no. 4-WFI that respondent no.
5 is better is not unreasonable or perverse. It 50 62. The Indian Coach's opinion (as mentioned
is pertinent to mention that the petitioner has in the counter-affidavit)., the track record of
not won any major national or international respondent no. 5 in the last few years and the
15 tournament between September, 2014 and chance of an injury if a trial is directed to be
today, whereas the respondent no. 5 as held with less than two months to go to the
recently as in December, 2015, in the Pro 55 Olympics, leaves this Court in no doubt that
Wrestling League defeated even the silver no relief can be granted to the petitioner in
medallist in the World Championship the present proceedings.
20 September 2015 Purevjav Unurbat of
Mongolia. AS ALL THE COUNSEL ARE IN
AGREEMENT THAT A FALSE
ALSO DUE TO SHORT-TIME GAP 60 AFFIDAVIT HAS BEEN FILED BY MR.
BETWEEN THE EVENT AND THE RAJ SINGH, VICE PRESIDENT OF
FILING OF THE WRIT AS WELL AS RESPONDENT NO.4-WFI, ISSUE
25 HIGH PROBABILITY OF AN INJURY IN NOTICE TO HIM AS TO WHY PERJURY
A TRIAL, PETITONER'S PRAYER PROCEEDINGS BE NOT INITIATED
CANNOT BE ALLOWED. 65 AGAINST HIM.
60. In any event, it is not understood as to 63. Since all the counsel were in agreement
why the petitioner has challenged the that a false affidavit has been filed in the
30 respondent no.5 to a 'duel' only in the month present proceedings by Mr. Raj Singh, S/o
of May, 2016 i.e. with only two and a half Shri Bhim Sen Sharma, Vice President of
months left for the Olympics. The petitioner 70 Wrestling Federation of India, R/o. WZ-25,
being a professional wrestler himself would Asalatpur, Janakpuri, New Delhi-110058, this
know that any direction to hold a trial at this Court is of the opinion that action is called
35 stage would seriously jeopardise the chance of for.
India winning a medal in the Olympics
inasmuch as respondent no.5 would have to
halt his training midway and would have to
64. The Supreme Court in Dhananjaya the counsel who not only completed
Sharma vs. State of Haryana (1995). 3 SCC voluminous pleadings but also filed precise
757 1995 Indlaw SC 927 has held as under:- written submissions and advanced arguments
40 on a number of issues in a concise manner.
"38. ......The filing of false affidavits in judicial Without their assistance it would not have
5 proceedings in any court of law exposes the intention of been possible to conclude this matter by way
the party concerned in perverting the course of justice. of a detailed judgment within three weeks of
The due process of law cannot be permitted to be filing of the writ petition.
slighted nor the majesty of law be made a mockery of
by such acts... The stream of justice has to be kept 45 EPILOGUE
10 clear and pure and anyone soiling its purity must be
dealt with sternly so that the message percolates loud 69. In international arena of sports, medals are
and clear that no one can be permitted to undermine won not only by "brawn" but also by "brain".
the dignity of the court....." The last minute challenge to selection can
disturb the mental preparation of the selected.
65. Consequently, the Registry of this Court is 50 Consequently, a sportsperson innocently
15 directed to issue notice without process fee to asking for "just a trial" may be jeopardizing
Mr. Raj Singh, S/o Shri Bhim Sen Sharma, the chances of the selected candidate to win,
Vice President of Wrestling Federation of having disastrous consequences for national
India, R/o. WZ-25, Asalatpur, Janakpuri, New interest. In the duel asked for, the country will
Delhi-110058 under Section 340 Cr.P.C. read 55 be the loser.
20 with Section 195 IPC directing him to file a
response within six weeks. Along with the 70. Keeping in view the conclusions reached
notice, a copy of the judgment shall be above, the petitioner's prayer for a trial is
enclosed. untenable in law as well as contrary to facts.
Accordingly, present writ petition and
66. List the case for consideration of initiation 60 applications are dismissed.
25 of perjury proceedings on 29th July, 2016.
Petition dismissed
67. This Court only hopes that the present
litigation is not an offshoot of internal politics
of respondent no. 4-WFI in which a wrestler
has been 'led down the garden path' by an
30 office bearer and/or has been used 'as a pawn'
to settle his own score either way.
65
MANY THANKS TO ALL THE
COUNSEL
68. Before parting with the judgment, this

35 Court would like to place on record its
appreciation for the assistance rendered by all

All India Women's Hockey Federation 35 members thereof may act illegally in a manner
not authorised by their constitution or in
v violation of principles of natural justice. Even
Indian Olympic Association and Others in such a case, if the constitution governing
them provides them a forum for adjudication
40 of disputes, the court of law would ordinarily
stay its hands, drive the parties to their own
5 Case No :I.A. No. 6432/94 and 6878/94 in
chosen forum and compel them to abide by
Suit No. 1345/94
its decision
Bench :R. C. Lahoti
The plaintiff has entered the court naming
Citation :1994 Indlaw DEL 5 45 itself as All India Women's Hockey
Federation, suing through Mrs. Nirmal Milkha
The Judgment was delivered by R. C. Singh stating herself to the General Secretary.
10 LAHOTI, J. The contesting defendants have come out
with the plea that the plaintiff to be more
Females having adopted hockey sticks in their
50 accurate should have been described as Indian
hands are face to face in a court of law. Their
Women's Hockey Federation. It is not
centre of activities has shifted from hockey
disputed that the plaintiff Federation,
field to court room and they expect the Judge
whatever be its exact descriptive name, is
15 to be a referee; the momentary object being
affiliated with Indian Olympic Association, a
not to have the number of goals counted and
55 parent body, without which affiliation, the
find who has won the match, but to have a
plaintiff Federation would not even exist
judicial verdict on who has won at the election
and who should occupy the coveted seats of The constitution of the Indian Olympic
20 office bearers in the Federation who is named Association known as Memorandum of
as the plaintiff. But they cannot be obliged Association thereof and the Rules and
60 Regulations framed thereunder contained in a
Members of a voluntary sports organisation
printed booklet have been made available for
bound by the commands of the creator
the perusal of the court. What is relevant for
constitution must settle their scores not in a
the purpose of the present order is clause
25 court of law, but before the Judge of their
XIX, which is extracted and reproduced
own choosing, i.e. an Arbitrator. Disputes
65 hereunder
arising among the persons who have
associated themselves to form a club, society XIX. Settlement of Disputes/conflicts in the
or federation are not ordinarily open to National Sports Federation/State Olympic
30 judicial interference. Their disputes must be Associations
settled not with legal subtitles but in a homely
atmosphere before a domestic tribunal, if (i) All National Sports
there be one provided and available. The 70 Federation/Associations/State Olympic
court may interfere if the Association or the Associations affiliations to IOA shall include
in their constitution provision that the
Federations/Associations would have all Federations/Associations and the IOA, or

unresolved disputes settled by the IOA and 40 within the IOA itself will be dealt with in the
their Members shall voluntarily surrender their same manner as laid down in (iii) above
right of seeking redress in any court of law
It appears that elections to the post of various
5 (ii) Every member shall be deemed to office bearers scheduled to be held in 1994,
continue its membership of the IOA on the where so held in the month of February,
specific condition that it voluntarily 45 1994. There was some confusion and
surrenders its right of seeking redress in any disturbance at the meeting on the right to vote
Court of Law exercisable by some of the members. The
elections were held. Strangely enough, there
10 (iii) All unresolved disputes arising within the are two sets of minutes produced by the
National Sports 50 contesting parties. According to the minutes
Federations/Association/State Olympic relied upon by the plaintiff, there is one set of
Associations affiliated to the IOA shall be office bearers while according to the minutes
referred by the Federations/Associations to relied upon by the contesting defendants there
15 IOA for settlement by the IOA. For this
is another set of officer bearers which was
purpose, the IOA Executive Council on the 55 declared elected. On 11.4.1994, an agreement
recommendation of the President IOA shall was arrived at and executed between Mrs.
recommend 9 names to the disputing parties Arnavaz Damania and Mrs. Vidya Stokes
to select one name, in consultation with the representing the two groups, whereby they
20 President IOA which is acceptable to both the had agreed to resolve their disputes in
parties. The Arbitration proceedings shall be 60 accordance with the constitution of IWHF
completed within the period specified by the and/or IOA by reference to Arbitration.
IOA Executive Council. President IOA based Defendant No. 2, who is also the General
on the circumstances of the case has the Secretary of IOA, entered upon the reference
25 authority to extend or vary the period as an arbitrator. On 15th June, 1994 he made
(iv) In the event of an unresolved dispute 65 an award. Mrs. Arnavaz Damania did not
within an affiliated Unit of the IOA which is appear before the Arbitrator. The Arbitrator
referred to the IOA by a Member and which having perused the material available before
affects normal working of the Unit or him gave an award in favour of Mrs. Vidya
30 prevents preparation and training of the Stokes upholding the proceedings of election
sport/team under the charge of the Unit for 70 relied upon by her and finding her the duly
purposes of International elected President of IWAF
representation/competition, the IOA On 22.6.1994, the present petition u/ss. 30
Executive Council will constitute an adhoc and 33 of the Arbitration Act has been filed as
35 body from within the Members of the
a suit challenging the existence and validity of
General Assembly as may be necessary until 75 the arbitration agreement and also the
the dispute within the Unit is resolved(v) All consequent award. An ad interim iunjunction
disputes between National Sports has been sought for restraining the effect and

operation of the award dated 15.6.1994 passed defendants has rightly pointed out that cl.
by defendant No. 2, the result whereof though XIX(1) abovesaid mandatorily obliges the
not so stated in the application would 40 plaintiff Federation to include in its
necessarily be to restrain the elected officer constitution the provision for arbitration and
5 bearers from functioning as such had there been no such provision in the
constitution of the plaintiff Federation, it
The learned counsel for the plaintiff faced would not have been granted affiliation by
with the award given by the Arbitrator, 45 IOA. In the absence of the constitution of the
defendant No. 2 has submitted that the plaintiff Federation having been brought on
factum of very existence of the arbitration record, this court can presume the existence
10 agreement and consequently the arbitration
of an arbitration clause in the constitution of
award is disputed by the plaintiff and so the the plaintiff Federation. The delay in initiating
plaintiff cannot be held bound by the award. 50 the present proceedings speaks volumes
The learned counsel submitted against the plaintiff. Mrs. Arnavaz Damania
(i) that Cl. 19 above said does not come into entered into an agreement referring the matter
15 operation unless and until there be a clause to arbitration on 11.4.1994. Mrs. Arnavaz
for arbitration included in the constitution of Damania was the President of the Federation
the plaintiff Federation and there being no 55 at the relevant time. The award made by the
such arbitration clause in the constitution of Arbitrator states the Arbitrator having entered
the plaintiff Federation, there was no question upon the reference on 6.6.1994 and having
20 of the dispute being referred to arbitration sent notices to both the contesting parties
and an award being pronounced immediately. It appears that all those whom
60 the decision by the Arbitrator did not suit
(ii) that the agreement dated 11.4.1994 is suddenly sprang up in action and initiated the
stated to have been entered into by Mrs. present proceedings on 22.6.1994. They were
Arnavaz Damania alone which would not certainly aware of the contents of the award
25 bind other contestants at the election and also made by the Arbitrator. The learned counsel
not the General Secretary filing the present 65 for the contesting defendants has stated at the
suit; bar that proceedings for making the award a
rule of the court have already been initiated.
(iii) that the award is not said to be stamped
Though the plaintiff is laying challenge to the
nor has it been made a rule of the court and
efficacy of the award on the ground of its
30 hence is incapable of being acted upon
70 being unstamped, the Arbitrator is yet to be
The first contention of the learned counsel for noticed and original award yet to be produced
the plaintiff must fail for the obvious reasons. in the court and it cannot be said positively
The plaintiff has not brought on record its whether it is stamped or not. Even if not
own constitution so as to form an opinion scribed on a stamp paper, the stamp dvty can
35 whether it contains an arbitration clause 75 be supplied and unstamped award validated
contemplated by sub-cl. (1) of cl. XIX above by payment of duty and penalty. If not made a
quoted. Learned counsel for the contesting rule of the court, it does not become a waste

piece of paper inasmuch as it can certainly be the record which is being relied on by the
relied on in defence. Moreover, the plaintiff
proceedings for its being made a rule of the
40 Batokristo Nandy v. Ranadeb Chowdhury
court have been initiated
1972 (2) ILR(Cal) 480 ) is a leading authority
5 It is not alleged that IOA with whom the on the point. On a review of the available case
plaintiff Federation stands affiliated is not law the learned Judge has summed up the law
capable of resolving the controversy raised by in the following terms
the plaintiff before the court
45 "Election of officials is an internal affair of
Even if it be the case of the plaintiff that the every association and it is well-settled that
10 award is not valid or is not capable of being normally the courts have no jurisdiction to
enforced becausethere was no valid reference, interfere with the internal affairs and
the remedy of the plaintiff lies in seeking a management of any association. The right to
reference to arbitration and not by disputing 50 institute legal proceedings on behalf of any
the existence and validity of the alleged association is ordinarily vested in the persons
15 arbitration agreement and consequently the who are in control and management of the
award. It has already been stated in the earlier association. In the internal affairs and
part of this order that the case of the plaintiff management of any association the rule of
that its constitution does not have an 55 majority prevails and under this doctrine,
arbitration clause does not inspire confidence subject to the provisions of the articles and
20 prima facie memorandum as general body of the
members can always validly ratify the acts of
There is yet another infirmity in the case of the managers if the managers have exceeded
the plaintiff. Mrs. Nirmal Milkha Singh 60 their powers in performing their duties or
through whom the plaintiff is suing had have done any act in exercise of their powers
circulated the minutes of Annual General which they were capable of doing regularly
25 Meeting of the plaintiff Federation held on but have done irregularly due to bona fide
13.2.1994 to the IOA, which was received by mistakes, no action lies. Individual members
the latter on 3.3.1994. On 7.3.1994, the same 65 or a group of members cannot bring a
Nirmal Milkha Singh circulated another set of representative action in the name of the
minutes of the same AGM with a covering association for challenging the mere irregular
30 letter that the earlier circular had contained
acts of the managers when those acts are
certain omissions and typing mistakes, which capable of being ratified by the majority of the
stands superseded by the minutes of the 70 members and the majority of the members are
meeting being now despatched along with the willing to do so. If the rules of the association
letter. The list of elected office bearers provide for doing a particular act and the
35 contains a few names not to be found in the
power to do that act is conferred on the
earlier one, as incorporated in the minutes. managers by the rules of the association and if
This throws a doubt on the genuineness of 75 that act is done irregularly or invalidly (not in
the sense of culpa nor in a sense of illegality)

no member of the association can make any 40 injunction merely because it is lawful to do so.
complaint in a court of law. These elementary In the facts and circumstances of the present
principles have long been well established by a case, this court is satisfied that the plaintiff is
long catena of decisions too well known to be not entitled to an indulgence. The redeem its
5 cited."" If the impugned act is tainted with grievance the plaintiff must find a way within
fraud and the evil doers are themselves in a 45 the framework of the Constitution governing
majority so that the wrong done to the the Federation
association cannot be brought to the court at
the instance of the association or the breach For the foregoing reasons, the plaintiff is held
10 of rule is not a mere irregularity but is of not entitled to the grant of ad interim
substance and cuts at the very root of the injunction prayed for. The application under
50 Order 39 Rules 1-2 CPC filed by the plaintiff
impugned act and vitiates the act itself or if
the impugned act is done in a colourable seeking grant of ad interim injunction is
exercise of power with dishonest and rejected
15 capricious motive so as to invade the personal
or the corporate rights of the members or the
act complained of amounts to a breach of a
fundamental obligation or amounts to an
55
oppression on the minority or the ratification
20 of the act complained of will be ultra vires the
powers of the association, the bar imposed on
the jurisdiction of the court is automatically
removed and the court at the instance of any
member is entitled to enter into the arena of
25 the association to strike down the impugned
acts. The jurisdiction of the court to interfere
with the internal affairs and management of 60
the association is based on the well settled
principle of doing justice and whenever the
30 fact are such that the intervention by the court
is the only remedy open to the members, it is
within the exception to the general rule and
the court retains its jurisdiction."
I find myself in entire agreement with the 65

35 view so taken. The present one is not shown
or demonstrated to be a case falling within an
exception
Injunction is discretionery jurisdiction of the

court. The court is not bound to grant an

All India Carrom Federation 35 Code, and the Government directed that the
appellant should hold fresh elections. The
v effect of the said communication was that the
Union of India and another appellant Federation - as represented by the
elected body, elected during the elections held
40 on 29.11.2015, was not being able to function
and interact with the International Federation.
5 Case No :LPA 407/2017 and CM Appl.
At the same time, the Federation is not being
20547/2017
able to hold the various events which it is
Bench :Vipin Sanghi, Najmi Waziri required to under its mandate in respect of the
45 sport of Carrom in the country.
4. We have heard Mr. V.D. Narayan, Mr.
The Judgment was delivered by : Vipin Shukla on behalf of respondent No.1/ UOI
10 Sanghi, J. and Mr. Malhotra on behalf of respondent
No.2.
1. Issue notice. Notice is accepted by Mr.
Shukla on behalf of respondent No.1/ UOI. 50 5. When the matter was taken up on the last
Mr. Malhotra accepts notice on behalf of date of hearing, i.e. 26.05.2017, we had
respondent No.2. suggested that the Court may appoint an Ad-
hoc Committee-with representation of the
15 2. The present Letters Patent Appeal is
petitioner, the other faction represented by
directed against the order dated 17.05.2017,
55 respondent No.2, ex-players, and with a senior
whereby the appellant/ petitioner's
officer in the Ministry of Sports so that the
application, i.e. C.M. No. 18735/2017 seeking
functioning of the Federation is not
early hearing in W.P.(C.) No.3314/2016 was
jeopardized till the writ petition is disposed of.
20 dismissed by the learned Single Judge.
6. In that respect, Mr. Shukla had tendered, in
3. The appellant-represented by Mr. V.D.
60 Court, an email communication dated
Narayan, who claims himself to be General
26.05.2017 received from the Under Secretary,
Secretary of the petitioner Federation, i.e. All-
Ministry of Youth Affairs and Sports,
India Carrom Federation, submits that early
Government of India Mr. A.K. Patro. The
25 hearing of the writ petition was sought in view
said communication states that the matter had
of the fact that the impugned communication
65 been discussed with the Secretary (Sports) Dr.
dated 04.02.2016 issued by the Government
Sagar Preet Hooda. The respondent No.1 is
of India, Ministry of Youth Affairs and Sports
agreeable that the Director (Sports) may head
had the effect of jeopardizing the functioning
the Ad-hoc Committee. It was also stated that
30 of the appellant Federation, since the
the two ex-players - one male and one female,
Government held that the election results - in
70 could also be part of the Committee.
respect of the elections held on 29.11.2015,
were not valid on the ground of violation of 7. Since the Ad-hoc Committee would
election guidelines of the National Sports function for and on behalf of the appellant
Federation, it is agreed that Mr. V.D. Narayan 40 communication in terms of the decisions
and respondent No.2, namely, Mr. S. taken by the Committee. The Federation shall
Udayakumar be also made a part of the said be deemed to be recognized in respect of the
Ad-hoc Committee. We are inclined to decisions taken by the Committee on its
5 include Mr. V.D. Narayan as well as the behalf. In accordance with the decision taken
respondent No.2 as a part of the Ad-hoc 45 by the Committee, Mr. V.D. Narayan shall
Committee, also for the reason that the issue the Railway Concession Forms and the
International Federation corresponds with Prospectus to the players.
and recognizes the Indian Federation while
10 functioning through its office bearers - whose
10. The functioning of the Committee shall
particulars are communicated to the not lead to any financial burden on the
50 Government or its members, and all the
international body. It is informed that,
presently, Mr.V.D. Narayan is the person expenses incurred by the Committee towards
authorized to deal with the international body. holding its meetings shall be to the account of
15 The two ex-players whose consent has been the Federation. The Committee shall, in its
taken for inclusion in the Ad-hoc Committee functioning, keep in mind the mandate of the
are Mr. A. Maria Irudyam (Mobile 55 Federation; the calendar of the Federation; as
No.9841306430) and Ms. Kunja Phanse well as the national and international
(Mobile Nos. 9427329822, 9427033879). obligations in relation to the sports of
Carrom.
20 8. Accordingly, the Ad-hoc Committee is
constituted by this Court consisting of the 11. The first meeting of the Committee shall
Director (Sports) as the Chairperson; Mr. A. 60 be held on 09.06.2017 at 11:30 a.m. in the
Maria Irudyam and Ms. Kunja Phanse as the office of the Director (Sports). No further
two ex-players male and female respectively; communication/ notice in respect of the said
25 Mr. V.D. Narayan and Mr. Uday Kumar as
meeting shall be required to be given to the
the other members. The Committee shall appellant or respondent No.2. However, this
65 order shall be communicated to the ex-player
function under the chairmanship of the
Director (Sports). The decisions shall be taken members by this Court as well as by the
by the Committee preferably unanimously. appellant under recorded delivery within four
30 However, in case there is a tie, the decision days.
shall be taken by the Chairman, i.e. the 12. This Committee has been formed with the
Director (Sports), who shall have the casting 70 consent of all the parties present. It is made
vote. clear that constitution of the Committee shall
9. The decisions of the Committee shall be not vest any rights in either of the contesting
35 deemed to be decisions of the Federation, and factions/ parties and, while formulating this
in case any communication is required to be Committee, this Court has not reflected on
addressed to the International Federation 75 the merits of the claims of either of the two
regarding the said decisions, Mr. V.D. factions. It is hoped that the Committee shall
Narayan shall appropriately send a function keeping in view the interest of the

sport of Carrom and its players in India. The Shubh Gulati and others
Committee shall exist till the writ petition is
disposed-off, and appropriate orders are v
passed in the writ proceedings in relation to 30 Union of India and others
5 the functioning of the Federation by the
Court.
13. The appeal stands disposed-off in the Case No :W.P.(C) 6542/2014 & CM No.
aforesaid terms. 15601/2014
Appeal disposed of Bench :Vibhu Bakhru
10 35 Citation :2014 Indlaw DEL 2831
The Judgment was delivered by : Vibhu

Bakhru, J.
CM No. 15601/2014
Exemption is allowed subject to all just

40 exceptions.
15 The application stand disposed of.
W.P.(C) 6542/2014
1. The petitioners are stated to be

sportspersons who were selected by the
45 Amateur Soft Tennis Federation of India
(ASTFI) for participation in Soft Tennis
events in the 17th Asian Games being held at
20 Incheon. The petitioners have, inter alia,
prayed as under:-
50 "B. Issue a writ of mandamus or any other writ, order

or direction in the nature of mandamus directing the
Respondent No. 1 to grant administrative approval by
reinstating the participation in their Class at the
Asian Games 2014."
25
55 2. Essentially, the grievance of the petitioners
is that respondent no.1 has excluded India's
participation in the discipline of Soft Tennis
in the 17th Asian Games.

3. The petitioners have referred to the entry meet the qualifying standards matching to the
form dated 29.10.2013 whereby the Indian 8th position of the last Asian Games.
Olympic Association (hereafter IOA) had
entered the participation of India in the said 40 7. It is further contended that IOA had sent
5 sport. The learned counsel submits that this entries for participation of the Indian teams in
indicates a decision to include a team for the multi disciplinary events without seeking prior
sport of Soft Tennis as a part of the Indian permission of the Government of India and
Contingent for the Asian Games, had been neither the ASTFI nor IOA had sought prior
taken as early as in 2013. The learned counsel 45 permission for sending the names of the
10 has further stated that coaching camps for athletes for the Asian Games.
preparation of the Asian Games were held It is further contended that Soft Tennis is
with the sanction of respondent no.1 and in included in the Asian Games but is not
July 2014 a team comprising of the petitioners included either in Commonwealth Games or
and two other persons were selected. 50 in Olympics. The learned counsel for
15 4. In the given circumstances, it is submitted
respondent no.1 pointed out that Soft Tennis
that the decision of respondents to exclude Teams as well as players (both men and
the Indian participation in the sport of Soft women) in individual events were eliminated
Tennis is arbitrary and unreasonable. in the pre-quarter finals in the last Asian
55 Games and the result was no better in the last
5. The learned counsel for respondent no.1 Asian Championship held at Taipei. It is
20 contended that a list of approved contended that keeping the same in view,
sportspersons was declared on 09.09.2014 and respondent no.1 had taken a decision to not
the Asian Games commenced on 19.09.2014. participate in the sport of Soft Tennis.
Thus, the present petition is highly belated
60 8. In view of the above, the limited question
and does not warrant consideration.
to be addressed in the present proceeding is
25 6. The learned counsel for respondent no.1 whether the decision of respondent no.1 for
also referred to a file noting dated 04.09.2014, team India not to participate in the sport of
which indicates that two meetings were held Soft Tennis is arbitrary or unreasonable.
on 01.09.2014 and 02.09.2014 between the
officials of the Government of India, Sports 65 9. Admittedly, the entry for participation in
30 Authority of India as well as the IOA and a Asian Games had been sent by the IOA in
decision was taken that teams in the 2013. It is also not disputed that thereafter
disciplines of Bowling, Tenpin, Fencing, coaching camps were held in preparation of
Football, Handball, Rugby, Modern the Asian Games, 2014. The petitioner has
Pentathlon, Soft Tennis, Triathlon, Volleyball 70 placed on record a letter dated 21.05.2014
35 (women), Beach Volleyball be not which indicates that the Government of India
recommended for participation in the 17th had sanctioned an amount of Rs. 15.87 lacs
Asian Games because the said teams did not for organising coaching camps for Soft Tennis
in preparation of the Asian Games, 2014.

Thereafter, coaching camps were held from 12. However, the fact that respondent no.1
13.06.2014 to 04.07.2014 for preparation of 40 has relaxed its own criteria in some cases
the Indian Team and 30 players had would not necessarily imply that the
participated in the said camp. Another camp petitioners would be entitled to the same. The
5 was held from 15.07.2014 to 29.07.2014 decision of respondent no.1 to not participate
where participants had been scaled down to in certain disciplines is clearly a policy matter.
20 (10 men and 10 women) and thereafter, the 45 And, it is well settled that Court cannot
sportspersons for the Indian team were supplant their opinion with that of the
selected. It is noted that the coaching camps administrative authorities. In the present case,
10 referred to by the petitioners were held prior the decision of respondent no.1 to exclude the
to their selection by ASTFI and there is no sport of Soft Tennis is on account of the
material on record to indicate that respondent 50 performance of the sportsperson in the past
no.1 had granted its approval (facit or express) games. The petitioners may disagree with the
to any of the players after their selection. view that participation in sports should be
limited only in those disciplines where the
15 10. The question whether to include India's Indian teams/sportspersons have achieved
participation in a particular discipline or not is 55 the certain rank, nonetheless, the said view
a question of policy that calls for little cannot be said to be perverse so as to warrant
interference by Courts, nonetheless, the interference u/art. 226 of the Constitution of
manner in which respondents had conducted India.
20 the exercise of approving participation in the
Asian Games clearly leaves much to be 13. It is well settled that the scope of
desired. The National Sports Code which sets 60 interference of the court in the policy
down the timelines required for selection of decisions of the government is limited and the
the sportspersons has, clearly, been ignored. court would not ordinarily interfere unless the
action of the government is held to be
25 11. The learned counsel for the petitioners capricious arbitrary or unreasonable. In the
pointed out that although the disciplines of 65 case of State of U.P. v. Chaudhari Ran Beer
Football and Handball were also excluded by Singh: (2008) 5 SCC 550 2008 Indlaw SC 358,
respondent no.1, as indicated by the file note the Supreme Court held as under:-
dated 04.09.2014, yet the same have been
30 subsequently included. The learned counsel "13. .... in matters of policy decisions, the scope of
for respondent no.1 has referred to the file interference is extremely limited. The policy decision
and informed the Court that only reason 70 must be left to the Government as it alone can decide
stated for including the said disciplines after which policy should be adopted after considering all
04.09.2014 was that it was in "larger interest relevant aspects from different angles. In matter of
35 of sports". In the circumstances, the grievance policy decisions or exercise of discretion by the
that the criteria adopted by respondent no.1 Government so long as the infringement of
has been applied on a 'pick and choose' basis 75 fundamental right is not shown, courts will have no
and in an arbitrary manner is, clearly, justified. occasion to interfere and the court will not and should
not substitute its own judgment for the judgment of the

executive in such matters. In assessing the propriety of 40 15. The petition is, accordingly, dismissed.
a decision of the Government the court cannot interfere The parties are left to bear their own costs.
even if a second view is possible from that of the
Government." Petition dismissed
5 14. The learned counsel for the petitioner

referred to the decisions of this Court in Diya Shyam Singh Yadav
Correa & Anr. v. Union of India & Ors.:
W.P.(C) 6232/2014, decided on 18.09.2014 45 v
and in the case of Saurav & Ors. v. Union of
National Rifle Association of India and
10 India & Ors.: W.P.(C) 6478/2014, which was
others
delivered earlier today and contended that the
facts of the present case are similar in all
material aspects. I am unable to accept this
contention in the case of Diya Correa & Anr. Case No :W.P.(C) 6159/2011 & C.M. No.
15 (supra), the athletes had already sent their 50 16893/2011, W.P.(C) 1980/2011
equipments prior to the decision of
Bench :Vipin Sanghi
respondent no.1 on 09.09.2014. This was
necessary because it takes 4-5 weeks for Citation :2012 Indlaw DEL 18
shipping the said equipments. Thus, by
20 necessity, the selection of the sportsman had The Judgment was delivered by : Hon'ble
to take place much prior to 09.09.2014. The Justice Vipin Sanghi
facts clearly indicated that the athletes had
55 These two petitions under Article 226 of the
acted on the necessary implication that their
Constitution of India have been preferred by
selection had the approval of respondent no.1.
the petitioner in relation to the action of the
25 In Saurav & Ors. (supra), the Government
respondent/National Rifle Association of
had approved the selected candidates to be
India (NRAI) in removing him from the post
trained for participation in the Asian Games
60 of Treasurer. The respondent-
and had granted their express approval for the
Association/NRAI is an association, which is
athletes to travel to Tehran for training as a
an autonomous body recognized by the
30 run up to their participation in the Asian
Ministry of Sports at the national level for the
Games. No such representation can be
promotion and advancement of the sport of
inferred in the facts of the present case.
65 shooting in India. It is the National Sports
Although the manner in which respondent
Federation duly recognized and regulated by
no.1 has proceeded to conduct its business in
the Government of India. It receives
35 selection of the Indian contingent is
substantial grants from the Central
dispiriting, the decision of respondent no.1 to
Government. According to the petitioner, it
not participate in the discipline of Soft Tennis
70 received grants of Rs. 22 Crores
in the Asian Games cannot be interfered with
(approximately) between 2007 and July 2011.
in these proceedings.

The petitioner is a government officer Territories, and to Sports Secretaries of

serving under the Government of Uttar 40 Governments of all State Governments and
Pradesh. He states that he is a PCS 1982 Union Territories on the subject of adoption
Batch officer. He claims that he has special of norms relating to obtaining of prior
5 interest in the sport of shooting, and is governmental sanction for contesting and
interested in advancement of the said sport in canvassing in elections to sport bodies. This
India. He has been associated with the NRAI 45 circular took note of the fact that a number of
since 1996. government servants of the State
Governments and the Union Territories
The petitioner states that on 14.08.2001, the Administration are holding posts in various
10 Government, acting through the Ministry of
sports associations and bodies at the national
Sports (Ministry of Youth Affairs & Sports), 50 level, state level and district level. It pointed
notified and introduced the Sports Code for out that holding of elective office by
assistance to National Sports Federations. The government servants by the Central
Government set priorities and detailed the Government is regulated by the Central Civil
15 procedure to be followed by National Sports Services (Conduct) Rules, 1964 [CCS
Federations for their recognition and to avail 55 (Conduct) Rules]. In terms of Rule 15(1) of
sponsorship and assistance from the the CCS (Conduct) Rules, previous sanction
Government. of the Central Government is required to hold
In the year 2004, upon the demise of the an elective office in any body. Under Rule 12
20 erstwhile Treasurer, the petitioner was co- of the CCS (Conduct) Rules, previous
opted as the Hon. Treasurer of the 60 sanction of the Government or the prescribed
respondent- Association. He continued in that authority is also necessary for a government
position till 2005 when the elections, inter alia, servant, associating himself with raising of any
for the said post were held. The petitioner funds or other collections, in pursuance of
25 contested for the said post of Hon. Treasurer any object whatsoever.
in the respondent-Association, and was 65 Pertinently, this circular also referred to
elected to that position. On the expiry of the instructions issued by the Department of
four-year term in the year 2009, the elections Personnel & Training (DOPT) contained in
for the said post were again held, and the its O.M. No. 11013/3/9/93-Estt.(A) dated
30 petitioner again offered his candidature for 22.04.1994 which, inter alia, provides that no
the said post. Once again he was elected as 70 government servant should be allowed to hold
the Hon. Treasurer of NRAI for a term of an elective office in any Sports
four years, which will expire in 2013. Association/Federation for a term of more
On 04.02.2010, the Government of India than four years, or for one term, whichever is
35 through the Ministry of Youth Affairs & less. The circular dated 04.02.2010 called upon
Sports, Department of Sports, issued a 75 the State Governments/Union Territories
circular addressed to the Chief Secretaries of Administrations to formulate, if not already so
all the State Governments and Union formulated, appropriate rules/instructions for

incorporating the above-referred provisions. 40 instructions from the Ministry of Sports &
The Government also required the Youth Affairs with regard to the petitioner's
States/Union Territories to furnish a list of eligibility to continue as an office bearer in the
names of officers, inter alia, belonging to the post of Hon. Treasurer or any other elected
5 State Services holding elective posts in Sports post in NRAI. It was also enquired whether
Federations/Associations, along with details 45 the petitioner had the required No Objection
of their terms and tenure. Certificate (NOC) from his employer, i.e. the
State of Uttar Pradesh, to continue as an
According to the petitioner, this Government office bearer of NRAI. The show cause notice
circular dated 04.02.2010 was not ipso-facto made reference to the governmental response
10 applicable in the case of the petitioner since 50 dated 24.12.2010, which advised the
the petitioner, as aforesaid, belongs to Uttar Federation that, as a serving government
Pradesh State Service and is not a Central servant, the petitioner may not continue as the
Government servant. The petitioner submits Hon. Treasurer, or be elected to any post in
that the CCS (Conduct) Rules are not NRAI for a period exceeding four years or
15 applicable to him. It is also the petitioner's 55 one term, whichever is less.
submission that the State of Uttar Pradesh has
not made any similar rules/instructions as The show cause notice also referred to a
referred to in the circular dated 04.02.2010 of communication sent by the NRAI to the
the Government of India. In this regard, Government of Uttar Pradesh dated
20 reliance is placed by the petitioner on the 21.12.2010 seeking instructions, as to whether
communication dated 28.12.2010 issued by 60 or not the petitioner had taken prior
the Joint Secretary and Public Information permission to contest the elections of NRAI
Officer of the Uttar Pradesh Government, in or to continue as the Hon. Treasurer, or to
response to a query raised under the Right to contest elections for any other post in the said
25 Information Act (RTI Act), wherein it is Association in future. It also made a reference
stated that no guidelines have been issued by 65 to the response received from the Chief
the Appointment Department, Uttar Pradesh, Secretary, Government of Uttar Pradesh, vide
in pursuance of Government of India circular his letter dated 31.12.2010, which states that
dated 04.02.2010. the petitioner had not been accorded any such
permission by the Uttar Pradesh State
30 The petitioner submits that the NRAI, acting 70 Government.
through its President, issued a show cause
notice dated 03.02.2011 to him. In this notice, By this show cause notice the President, in
the respondent-NRAI sought to place reliance exercise of his constitutional duty and on the
upon the correspondence undertaken by it ground of maintaining transparency in the
35 with the Ministry of Sports & Youth Affairs functioning of the respondent-Federation,
vide its communication dated 20.12.2010 and 75 called upon the petitioner to show cause as to
the response received from the said Ministry why the Governing Body should not consider
on 24.12.2010. The show cause notice states his removal from the post of Hon. Treasurer
that NRAI had sought a clarification and of the Federation. The President also sought

to curtail the powers of the petitioner in the Governing Body under Item 14(g). The
interregnum by, firstly, constituting a three- 40 minutes of the said Governing Body Meeting
member committee headed by the petitioner have been placed on record of W.P.(C.) No.
to act as a Special Finance Committee to 6159/2011. From the minutes, it appears that
5 oversee and discharge all the responsibilities the Governing Body after discussions adopted
of the Hon. Treasurer of NRAI. The the proposal mooted by the President that the
President also required the petitioner to 45 petitioner be removed from the post of
interact with the office staff through the Treasurer of NRAI. The Governing Body was
Secretary only. conscious that for this purpose the General
Body should pass a resolution.
10 The petitioner, being aggrieved by the said
communication dated 03.02.2011 issued by Thereafter the General Body Meeting was
the President of NRAI, preferred W.P.(C.) 50 convened on 28.03.2011, where the General
No. 1980/2011 to assail the same. It appears Body considered whether the petitioner
that the petitioner also sought a restraint should continue as the Hon. Secretary of
15 against consideration of the said show cause NRAI or not. The minutes of the meeting of
notice in the proposed Governing Body the General Body held on 28.03.2011 have
Meeting of NRAI. 55 been placed on record by the respondent with
their counter-affidavit.
This writ petition was taken up by the Court
on 25.03.2011. On this date, the petitioner The General Body had a total strength of 40.
20 made a statement that he foregoes his right to Out of 40 members, two members left the
answer to the said show cause notice. The house and were not present at the time of
Court observed that the pendency of the writ 60 voting. 31 out of 38 members voted in favour
petition would not prevent the respondent of the resolution and, accordingly, the said
NRAI from proceeding to dispose of the resolution was passed by overwhelming
25 show cause notice in accordance with law, and majority. Consequently, the petitioner stands
in passing appropriate orders. The Court also removed from the post of Hon. Treasurer of
rejected the petitioner's application for stay, 65 the NRAI.
(which was not numbered, though wrongly
noted in the order as C.M. No. 4198/2011), As aforesaid, the primary submission of the
30 whereby the petitioner sought a restraint petitioner is that the circular dated 04.02.2010
against the holding of the Governing Body is not applicable to the petitioner, as it has
Meeting on 28.03.2011, on the ground that been issued by the Central Government,
the petitioner had not made out a prima-facie 70 whereas the petitioner is a Government
case for interim relief. officer under the State of Uttar Pradesh and is
not bound by the CCS (Conduct) Rules. The
35 The Governing Body Meeting of respondent- second submission of the learned counsel for
Association was held on 28.03.2011. The the petitioner is that the State of Uttar
consideration of the show cause notice issued 75 Pradesh has not yet adopted the said circular
to the petitioner was taken up by the dated 04.02.2010 and there are no guidelines

laid down by the State of Uttar Pradesh for 40 competent to make regulations of National
grant of sanction, to enable the petitioner to Sports Federations and Indian Olympic
continue to serve as the Hon. Secretary of Association.
NRAI. He submits that since there are no
5 rules or guidelines in this regard, the Learned counsel draws attention of the Court
petitioner, possibly, could not have obtained to the circular dated 01.05.2010 issued by the
any prior permission from the State of Uttar 45 Ministry of Youth Affairs & Sports to the
Pradesh. Thirdly, it is submitted that the President of Indian Olympic Association, and
election of the petitioner as Hon. Treasurer all recognized Sports Federations and to the
10 had taken place in the year 2009, whereas the Secretary General/Secretary of, inter alia, of
said Government circular had come to be National Sports Federations, wherein the
issued only on 04.02.2010. It is argued that 50 government, inter alia, observes:
this circular would, at best, be prospective in "Accordingly after taking into account the
its operation and cannot affect the right of the entire facts and circumstances of the case, and
15 petitioner, who is holding the position of the views expressed by the Hon'ble Courts
Hon. Treasurer for a period of four years and Parliament, and the prevailing public
from 2009 to 2013. The petitioner also 55 opinion on the matter, and with a view to
submits that the President of the NRAI has encouraging professional management, good
no authority to curb the powers of the Hon. government, transparency, accountability,
20 Treasurer, as done by him in the show cause democratic elections, etc. in NSFs, including
notice dated 03.02.2011. IOA, the competent authority after satisfying
The petition is opposed by the respondent. 60 himself has set aside the orders keeping the
The submission of learned counsel for the tenure clause in abeyance with immediate
respondent is that the issue of implementation effect subject to the following modifications
25 of tenure restrictions in National Sports
in the existing tenure limit provisions referred
Federations/Associations was pending for a to in letter dated 20th September, 1975
long time and was not implemented due to 65 x x x x x x x x x x
strong opposition of the Indian Olympic
Association and various National Sports ii. The Secretary (or by whatever other
30 Federations. However, this Court in W.P.(C.) designation such as Secretary General or
No. 7868/2005, while dealing with the case of General Secretary by which he is referred to)
Indian Olympic Federation, in its order dated and the Treasurer of any recognized National
02.03.2010 observed that the Government 70 Sports Federations, including the Indian
guidelines governing the National Sports Olympic Association, may serve a maximum
35 Federations were valid, binding and of two successive terms of four years each
enforceable and that the tenure clause was not after which a minimum cooling off period of
in violation of the International Olympic four years will apply to seek fresh election to
Committee's (IOC) Charter. It was also held 75 either post."
that the Government of India was fully

Learned counsel for the respondent submits DOPT O.M dated 22.04.1994, referred to in
that the circular dated 04.02.2010 issued by the circular dated 04.02.1010. This DOPT
the Central Government makes reference to O.M., inter alia, states :-
DOPT instructions dated 22.04.1994 which,
5 inter alia, provides that no government "---------It hardly needs to be emphasized that
servant should be allowed to hold an elective 45 the entire time of the Government servant,
office in any sports association/federation for particularly a senior officer, should be
a term of more than four years or for one available to the Government and no activities
term, whichever is less. He submits that the unconnected with his official duties should be
10 State Government/UT administrations are allowed to interfere with the efficient
50 discharge of such duties. The need for curbing
bound by the said circular, at least in relation
to National Sports Federations, since the the tendency on the part of a Government
National Sports Federations are recognized servant to seek elective office in sports
and regulated by the Central Government and federations/associations at the National/State
15 receive aid and funds from the Central level has been considered carefully and it has
Government. The National Sports 55 been decided that the following principles
Federations are bound by the Central should be followed while considering requests
Government guidelines and no member or from Government servants for seeking
office bearer of National Sports Federation election to or holding elective offices in sports
20 can remain in office in breach of the federations/associations:-
guidelines laid down by the Central 60 (i) No government servant should be allowed
Government. Learned counsel for the to hold elective office in any sports
respondent submits that it is in public interest association/federation for a term of more
that government servants, whether under the than 4 years, or for one term, whichever is
25 Central Government or under a State less.
Government/UT administration, should not
be involved in sports federations for an 65 (ii) ..........................
indefinite period of time in an elected
(iii) ........................
capacity, as it is bound to effect the discharge
30 of their primary responsibilities and duties as a (iv) ........................
government servant. It is for this reason that
Rule 15 of the CCS (Conduct) Rules lays 20. Learned counsel for the respondent
down various prescriptions, and prohibits that submits that the respondent has acted bona
the government servant shall not, except with 70 fide and upon the advice of the Central
35 the previous sanction of the Government Government. He has drawn my attention to
engage in trade or business; undertake any the communication dated 20.12.2010 issued to
other employment; hold an elective office, or the Government of India, Ministry of Youth
canvass for a candidate or candidates for an Affairs & Sports, bringing to its notice the
elective office, in any body, whether 75 fact that the petitioner had been holding an
40 incorporated or not etc. He also refers to the elected office since 2005, and had been

elected for the second time in 2009 to the considered as his reply to the show cause
post of Hon. Treasurer. The respondent had 40 notice dated 03.02.2011. Moreover, since the
sought the advice of the said Ministry as to petitioner is an U.P State Government servant
whether the petitioner could continue as the and not a Central Government servant, the
5 Hon. Secretary or contest elections for any requirement of prior permission/approval
other post in the respondent- Association. from the State Government is not applicable
The Central Government had responded vide 45 so far as the petitioner is concerned, for
letter dated 24.12.2010, inter alia, stating: holding the elective office of Hon. Secretary
of the respondent-Association for more than
"As per the extant guidelines on the subject one term.
10 matter, no Government Servant can hold an
elective post in any sports It is well settled that the Central government
association/federation for more than four 50 is entitled to lay down guidelines to govern
years or one term whichever is less. Further, the National Sports Federations and such
he is required to obtain prior sanction of the guidelines are binding on and enforceable
15 government before holding any elective post. against the National Sports Federations. The
Central Government aids and funds the
Since Sh. Yadav has already completed 6 years 55 activities of the NSFs and regulates them. The
as Hony. Treasurer, he is not entitled to Central Government is also entitled to lay
continue in the post nor can he contest for down the tenure clause for the office bearers
any other elective post in the sports body. It is and members of the National Sports
20 also not known if he had taken prior sanction Federations. By circular dated 01.05.2010, the
from the Government for holding the post". 60 Central Government, in the Ministry of Youth
Learned counsel for the respondent further Affairs and Sports, has laid down the tenure
submits that the petitioner did not even chose for, inter alia, the Hon. Treasurer of any
to respond to the show cause notice dated recognized National Sports
25 03.02.2011, as recorded in the order dated Federation/Association as "a maximum of
25.03.2011 passed in W.P(C) 1980/2011. He 65 two successive terms of four years each after
submits that since the office bearers of the which a minimum cooling off period of four
association are elected by the General Body, years will apply to seek fresh election".
their removal has also to be considered by the However, it is important to note that this
30 General Body. He submits that the petitioner prescription of tenure is a general prescription
has been removed by the General Body in its 70 for all those who may hold the post of, inter
meeting held on 28.03.2011. He further alia, the Hon. Treasurer of the National
submits that the petitioner has not even Sports Federation. This prescription does not
challenged the resolution passed by the whittle down the effect of further restrictions
35 General Body by an overwhelming majority. placed by the Central Government on the
75 holding of an elective office in the National
In his rejoinder, learned counsel for the Sports Federations by government servants.
petitioner submits that his writ petition, being As early as on 22.04.1994, the DOPT has laid
W.P(C) 1980/2011 ought to have been
down that no Central Government servant 40 contest for elective posts in sports
should be allowed to hold an elective office in federations, the petitioner is entitled to
any sports association/federation for a term continue as the Hon. Secretary has no merit.
of more than four years or for one term, This is so because the petitioner, admittedly,
5 whichever is less. has already served for a full term of four years
45 in an elective office i.e as Hon. Treasurer of
No doubt, the said prescription is in respect the respondent-Association from the year
of Central Government employees. However, 2005 to 2009, and even thereafter till his
the reason behind the said prescription is removal from office by the General Body of
what is more important to be taken note of the respondent-Association on 28.03.2011.
10 than even the prescription itself. As noted in 50 Beyond a period of four years the State
the said office memorandum, the entire time Government cannot grant permission to a
of the government servant, particularly a State Government servant to hold an elective
senior officer should be available to the office in a National Sports Federation.
Government and no activities connected with Whatever may the position with regard to
15 his official duties should be allowed to 55 holding of an elective office in a State/District
interfere with the efficient discharge of such Sports Federation by a State Government
duties. The Government while issuing the said servant, in relation to an elective post in a
office memorandum was conscious of the National Sports Federation, the Government
tendency on the part of the government servant - to whichever service he belongs
20 servant to seek elective offices in sports 60 (whether Central or State), must comply with
federations/associations at the National/State the requirements set out by the Central
level, and after taking note thereof laid down, Government vide circular dated 04.02.2010.
inter alia, the principle that no government He cannot defy and breach those conditions
servant should be allowed to hold elective by merely contending that the State
25 office in any sports association/federation for 65 Government of the State of U.P has not laid
a term of more than four years or for one down appropriate rules/instructions for grant
term, whichever is less. If it is true that a of permission.
senior government servant in the Central
Government should be available to the 26. Even though it would be academic to
30 Central Government for rendering his say so, and is not relevant for the purpose
services, and no activities unconnected with 70 of this case, I may also observe that
his official duties should be allowed to merely because the State of U.P may not
interfere in the efficient discharge of such have laid down specific rules/instructions
duties, it is equally true for State Government for grant of appropriate permission, that
35 servants as well. did not preclude the petitioner from
75 applying for permission/sanction from the
The submission of the petitioner that since State Government. Admittedly, the
the State of U.P has not formulated prior petitioner has not applied to the State of
rules/instructions for grant of permission to U.P for grant of permission to hold, or
enable the State Government servants to

continue to hold the elective post of Hon. 40 leaving the parties to bear their respective
Secretary of the respondent-Association. costs.
In its communication dated 24.12.2010, as
extracted above, the Central Government Sportz and Live Entertainment Private
5 has conveyed its decision that the Limited
petitioner is not entitled to hold the post v
of Hon. Secretary any further. In the light
of the aforesaid, the General Body of the 45 Volleyball Federation of India
respondent -Association, by an
10 overwhelming majority removed the
petitioner. That decision/resolution of the Case No :O. M. P. (I) (Comm.) 107/2018
General Body, which is supreme, has not
been assailed in these proceedings. The Bench :Navin Chawla
challenge to the Minutes of the meeting of
15 the Governing Body meeting held on
28.03.2011 is of no avail, as the Governing 50 The Judgment was delivered by : Navin
Body did not take the decision to remove Chawla, J.
the petitioner from his position as the
elected, Hon. Treasurer of the 1. This petition under Section 9 of the
20 respondent-Association. It only Arbitration and Conciliation Act, 1996
considered the issue whether the (hereinafter referred to as the Act) has been
petitioner's case for removal should be 55 filed by the petitioner inter-alia seeking the
placed before the General Body. It is the following reliefs:
General Body of the respondent-
"(a) Pending the appointment of the Ld. Sole
25 Association which could have, and which
Arbitrator, the commencement of the arbitration
has infact removed the petitioner from the
proceedings and final disposal of the arbitration
post of Hon. Treasurer.
60 proceedings including execution of the order passed
In the light of the aforesaid discussion, I do therein, an Order be passed restraining the Respondent
not intend to go into the petitioner's from granting any rights (including but not limited to)
30 submission with regard to the curtailment of the right to set up, organize, manage, market and
his powers as the Hon. Secretary by the operate the Indian Men's, Women's and Beach
President vide communication/show cause 65 Volleyball (both Men and Women) Leagues in India
notice dated 03.02.2011, as the said issue has to any third party apart from the Petitioner;
become academic in view of the petitioner's
(b) Pending the appointment of the Ld. Sole
35 valid removal from his position as the Hon.
Arbitrator, the commencement of the arbitration
Treasurer by the General Body in its meeting
proceedings and final disposal of the arbitration
held on 28.03.2011.
70 proceedings including execution of the order passed
For the aforesaid reasons, I do not find any therein, an Order be passed staying the operation of
merit in these petitions and dismiss the same, any rights which may have already been granted by the

Respondent in relation to the Indian Men's, Women's this 9.54 crores rupees is stated to have been
and Beach Volleyball (both Men and Women) 40 transferred by way of RTGS transfer in favour
Leagues in India to any third party apart from the of the respondent on 10.06.2016. The receipt
Petitioner; of this last payment of Rs. 54 lacs is denied by
the respondent.
5 (c) Pending the appointment of the Ld. Sole
Arbitrator, the commencement of the arbitration 3. Relying upon the Clause 1.1, 1.2 and 1.3 of
proceedings and final disposal of the arbitration 45 the Agreement(s), learned counsel for the
proceedings including execution of the order passed petitioner submits that in terms of these
therein, an Order be passed staying the operation of Agreement(s), the petitioner has been
10 any agreements which may have already been executed assigned the sole and exclusive rights with
by the Respondent in relation to the Indian Men's, respect to the Volleyball League and the
Women's and Beach Volleyball (both Men and 50 Agreement(s) further provide that the
Women) Leagues in India with any third party apart respondent shall not grant any approval,
from the Petitioner; consent, permission or right relating to the
establishment or operation of such League to
15 (d) Pending the appointment of the Ld. Sole
any third person. Learned counsel for the
Arbitration, commencement of the Arbitration 55 petitioner submits that in view of such
proceedings and final disposal of the arbitration negative covenant, the petitioner is entitled to
proceedings including execution of the order passed relief of an injunction restraining the
therein, an Order be passed directing the Respondent respondent from entering into any agreement
20 to maintain status quo in relation to the rights of with a third party with respect to holding of
Indian Men's, Women's and Beach Volleyball (both 60 or conducting such Volleyball League in India.
Men and Women) Leagues in India qua the
Petitioner and the sole and exclusive rights of the 4. Relying upon the judgment of Supreme
Petitioner in relation to the Leagues." Court in Adhunik Steels Ltd. v. Orissa
Manganese and Mineral Pvt. Ltd., AIR 2007
25 2. It is the case of the petitioner that the SC 2563 2007 Indlaw SC 719 , learned counsel
respondent had entered into three 65 for the petitioner submits that the grant of
Agreement(s) all dated 02.01.2016 with the relief under Section 9 of the Act is governed
petitioner through its President Chaudhary by the well known rules with respect to the
Avadhesh Kumar inter-alia assigning the grant of injunction that is the concept of
30 exclusive rights to setup, arrange, manage,
balance of convenience, prima facie case,
market, monetize and operate the Indian 70 irreparable injury and concept of just and
Men's Volleyball League, Women's Volleyball convenient. He submits that as the
League and Indian Beach Volleyball League respondent is the only association recognized
(both men and women) respectively. As the for the conduct of the sport of Volleyball in
35 consideration for these Agreement(s), the
India, the breach of rights granted in favour
petitioner had paid a sum of Rs. 9.54 crores to 75 of the petitioner under the Agreement(s)
the respondent by way of demand drafts, all cannot be remedied by way of damages.
dated 29.12.2015. A sum of Rs. 54 lacs out of

5. On the other hand, learned senior counsel 40 respondent Society which was referred for
for the respondent submits that the adjudication through a Sole Arbitrator.
Agreement(s) dated 02.01.2016 have been
executed by Chaudhary Avadhesh Kumar, 6. The Sole Arbitrator, vide his Interim Order
5 who though was the President of the dated 03.10.2016 inter-alia held as under:
respondent Society, which is a Society "9. Admittedly the Applicant association is a
registered under the Tamil Nadu Society 45 registered Society with Registration No.110/987
Registration Act, 1975, was not authorized to registered under the Tamilnadu Societies
execute such Agreement(s). Relying upon the Registration Act, 1975. It has got registered
10 Minutes of Meetings dated 02.01.2016, byelaws for governing the contact of the members of the
09.01.2016 and 22.02.2016, learned senior Society. A perusal of the byelaws will clearly show that
counsel for the respondent submits that 50 the President of the Society (The Respondent hearing)
Chaudhary Avadhesh Kumar had represented though was given certain emergency and residuary
to the respondent that he has not executed powers but it does not clothe him with the power of
15 such Agreement(s) and based on such removing the Secretary General of the Society.
representation a Core Committee of Members Similarly though the Respondent claims that he has
was constituted in order to finalize the grant 55 been authorized to enter into an agreement for the
of the rights to conduct the Volleyball League purpose of conducting Volleyball Premier league,
in India, to a third party. He submits that even subsequently, on questioning by the Executive
20 the Agreement(s) relied upon by the petitioner members he initially disowned signing of any agreement
state that the Agreement(s) would come into and also was a party for forming a Core committee. In
force upon the encashment of the demand 60 that meeting he had signed the Minutes. Therefore he
drafts purportedly submitted by the petitioner cannot feign any ignorance about those proceedings.
with Chaudhary Avadhesh Kumar. These Further when his authority to enter into any agreement
25 demand drafts were deposited by Chaudhary is withdrawn it .is not open to him to sign an
Avadhesh Kumar only after the disputes had Agreement with third parties and make this issue a
arisen inter-se amongst the office bearers of 65 fait accompali.
the respondent and Chaudhary Avadhesh
Kumar had been expressly informed that he 10. The Argument of the learned senior counsel that
30 could not enter into any Agreements with the since the factum of entering into an agreement has been
petitioner with respect to the rights to established and it is more beneficial to the Society as
conduct the Volleyball Leagues. He submits well as to the volleyball players cannot be accepted.
that in spite of such instructions, not only did 70 Unless it is shown that the Respondent as the
Chaudhary Avadhesh Kumar deposit these president had the authority to enter into an agreement
35 demand drafts in the account of the at the time of signing the same the question of giving a
respondent but also immediately sought seal of approval to such agreement will not arise.
freezing of these bank accounts by issuing Merely because third party interests have accrued that
instructions to the bank in this regard. This 75 cannot be a ground to validate an illegal agreement.
led to a dispute amongst the members of the Further, it is for the persons who may be put at loss to
move the appropriate machinery to establish their right

and the Respondent need not canvas for their rights. "29.1 The order passed does not in any way violate
On the other, hand, if the Respondent is allowed to the interim order passed by the Patiala House Court
Indulge in further activities pursuant to the alleged 40 that enabled the appellant to continue as President of
agreement signed by him it will unnecessarily create VIF. However, does that by any token grant the
5 further complications which should be avoided. appellant any exclusive right to operate, or run VFI
by sidelining the Executive Committee or General
11. Under the said circumstances the applicant has Council? At least not in terms of the Constitution
established a prima facie case and the balance of 45 and Bylaw of the VFI. Article VIII thereof deals
convenience is for grant of an interim order. If such an with the Duties and Power of the Executive
interim order is not granted it may cause an Committee. Article VIII(5) enjoins the Executive
10 irreparable loss to the Society. Under the said Committee with the power or duty "to conduct and
circumstances an interim injunction is granted to administer the day to day work of the Federation and
restrain the Respondent (Chaudhary Avadesh 50 to form standing sub-committee and such other sub-
Kumar) or any person claiming to have been elected at committees as may determine reference be considered
any meeting conducted by the aforesaid Chaudhary necessary and define and their powers, duties, scope
15 Avadesh Kumar or any person acting directly or and terms of unless otherwise provided for." When
indirectly on their behalf, from conducting the Indian compared with the Executive Committee, under
volleyball league meeting on 04.10.2016 and from 55 Article XI Duties and Power of the President are
conducting the Indian volleyball league tournament; or chiefly emergency or supreme emergency powers, and
from conducting any other Volleyball tournament, Article XI(4) insists that they shall be exercised only
20 under the banner of the volleyball federation of India in the interest of the Federation (i.e.VFI.) Under
or falsely representing that their tournament is Article XI(2) and (6) such of the powers that the
recognized by the said federation or from conducting 60 President exercises should be approved or confirmed by
any meetings, public announcements, or events in the the Executive Committee. In otherwords, the Office of
name of Volleyball Federation of India; and from the president of VFI carries an implied duty to report
25 signing any contract with any player, or organization to the Executive Committee to a substantial extent. It
or sponsors or any advertisement agency or any event is therefore apparent that the President of VFI within
management company or any media company on behalf 65 the scheme of its Constitution and Bylaw has no
of the Volleyball Federation of India pending disposal greater authority or power than the Executive
of the Arbitral proceedings." Committee, and wherever he is granted independent
30 7. The above order was challenged by powers they have to be exercised only in case of
Chaudhary Avadhesh Kumar before the High emergency or supreme emergency as the case may be,
Court of Madras by way of CMA No.2823 to 70 and that too only in circumstances where the interest of
2825 of 2016. The same was however the VFI is in peril, and not otherwise.
dismissed by the High Court of Madras vide 29.2 Nowhere, and at no time thus far, the appellant
35 its order dated 06.04.2017 inter-alia taking has attempted to explain or justify that his actions to
note of the various Minutes of Meetings and which the respondents are taking exceptions to, were
holding as under: 75 done in the best interest of the VFI nor has he
explained the pre-dominant interest of the VFI that

he was anxious to secure, and/or alleged that the that he owed the VFI by virtue of his office.
arbitrator has faulted in overlooking the bonafides of 40 Otherwise, how to explain why he informed the
the action that he had so taken. Executive Committee that he had not signed any
contract with SLE why he suddenly pulled a surprise
29.3 In any democratically run institution, any office on the Executive Committee with his announcement
5 created by its constitution or bylaw to preside over its that he had signed the contract at least a month before,
affairs cannot ignore the spirit of the democratic 45 why he participated in the decision to form a Core
principles that govern it. After all, VFI is not the Committee to select a sponsor and why he dissolved it
personal property of its President or any of its other unilaterally without taking the Executive Committee
office bearers, or of the Committee created for its into confidence when the object for which the Core
10 governance under its bylaw. It would have been Committee was formed was in the final leg of its
appropriate if the appellant had attempted to convene 50 fulfillment, what is the emergency or supreme emergency
the Executive Committee or the General Council, that threatened the interest of VFI which warranted
mustered support for his views or plan of actions and the unilateral exercise of Presidential powers within the
acted. Between an individual and the institution of scheme of the Constitution of VFI and what is the
15 which he is a member or an office bearer, the interest of manifest interest of VFI that he, in his capacity as the
the institution must always be considered paramount. 55 President of VFI has pursued with his wild swinging
Any position enjoined with duty to any democraticaly patterns?
run body such as a Society, or a club, or any
association of persons is fiduciary in character, and 31.3 There are endless questions. They however,
20 anyone who holds such position is bound by the remain and continue to remain as an unresolved plot
obligations arising out of a fiduciary relationship. They that the appellant has scripted and put up in
are but trustees of the institution in general and of 60 exhibition. Now when it has all started? Was it not
those members who have elected them in particular. when the VFI contemplated on a JVL and searched
They have been granted powers only for performing for a sponsor? Why the JVL as an idea should inject
25 their duties to the institution whose affairs they faction? What is playing the spoilsport - Is it the
manage for the time being. The order of the arbitrator sport, or the sponsorship? Why is the appellant hyper
reflects this principle broadly while granting prayer (B) 65 anxious to take on the Executive Committee of the
of IA1/2016 and it is therefore in order, and it is not Federation on the choice of the sponsor? Why is he
inconsistent with any of the principles that govern the hesistant to abide by the views of the majority in the
30 grant of interim order by an arbitrator, more Executive Committee? What is the rationale behind
particularly in a case of individual Vs Institution. his actions? Not one was explained. It is this failure
70 to explain any of them, and this inability to deny their
xxxx factual content exposes the key to his cryptic puzzle
31.2 As to the jusification for the aforesaid order of and unravels the plot within. Why fault the arbitrator,
the arbitrator, the reasons discussed in paragraph 29.3 when the appellant himself has unloaded
35 is valid here too. Further, the attitude and conduct of unexplainable deeds of uninspiring quality before the
the appellant that was on display prima facie would 75 arbitrator? The conduct of the appellant is not beyond
not inspire confidence in the mind of the right blames and lacks bonafides.
thinking. They hardly reconcile with the responsibility

8. In a parallel litigation with respect to the 40 these agreement(s) have been genuinely and
election for the office bearers of the validly executed on behalf of the respondent
respondent Society, this Court vide its order in favour of the petitioner.
dated 08.04.2016 passed in FAO 146/2016,
5 allowed the election to go on, however, the 11. Another important factor in this whole
results thereof be not declared. Eventually by scenario is the fact that the agreement(s)
the order dated 27.04.2017 passed in FAO 45 themselves record that they shall come into
203/2016, this Court held that the election operation upon the deposit of the demand
results of the respondent be declared for the drafts. From the various orders passed by the
10 28 posts, except the post of President of the
Courts and by the Arbitrator, it is prima facie
respondent Society. getting established that these demand drafts
50 had been deposited by Chaudhay Avadhesh
9. Pursuant to the declaration of such results, Kumar only after he had been expressly
the Ministry of Youth Affairs and Sports, informed that he cannot enter into such
Government of India vide its order dated Agreement(s) with the petitioner on behalf of
15 20.07.2017 has accepted the results of the the respondent. The contention of the
election and has taken the office bearers, that 55 petitioner that being a third party, it is not in
is the Secretary General and Treasurer who any manner, privy to such internal dispute of
have succeeded in the said election on the the respondent may be correct, however, in
records of the Ministry. I may at this stage, the present case, this would certainly have an
20 note that the learned counsel for the important bearing. Only due to an
petitioner has submitted that the provisional 60 unauthorized deposit of an amount into the
suspension of the respondent Society by the bank account of the respondent, the
International Volleyball Federation has not respondent cannot, even as an interim
been withdrawn. measure, be prevented from parting with
rights to conduct Volleyball Leagues.
25 10. From the submissions of the learned
senior counsel for the respondent and the 65 12. Another important aspect in this whole
various Minutes of Meetings and orders to mess that has been created by the factional
which my attention has been drawn, it is fight amongst the office bearers of the
evident that the execution of the respondent, which would have a vital bearing
30 Agreement(s) dated 02.01.2016 on behalf of on the relief claimed by the petitioner is that
the respondent is a highly disputed and 70 the respondent, by its Press Release dated
contentious matter. Whether Chaudhary 03.10.2016 had issued a notice claiming that
Avadhesh Kumar had been authorized to Chaudhary Avadhesh Kumar is not
enter into such agreement(s) by the authorized to represent the respondent and to
35 respondent Society is not only disputed by the enter into any agreement(s) with respect to the
respondent Society but has been adversely 75 Volleyball League. The petitioner vide its
commented upon by the Arbitrator and by the letter dated 26.10.2016, claiming that it had
Madras High Court against him. Prima facie, rights under the Agreement(s), called upon
therefore, at this stage, it cannot be said that the respondent to keep the amount of Rs.

9.54 crores paid by it along with accrued 40 opinion, the petitioner has disentitled itself
interest in a no lien escrow account with a from claiming any interim relief of injunction
reputed bank. Clearly, the petitioner did not against the respondent at this stage.
assert its rights under the Agreement(s),
5 otherwise there was no necessity for the 15. Counsel for the petitioner further submits
petitioner to have called upon the respondent that the respondent is granting the rights to
to keep this amount in a separate no lien 45 conduct the Volleyball Leagues in India to a
account. If it would have been sure of its third party without inviting any bids and in a
rights under the agreement, it would have non-transparent manner. In my view, the
10 asserted them with full rigour. The respondent same would have no bearing as far as the
on the other hand, by the letter dated present petition is concerned. In fact, the
09.11.2016, claiming that the Agreement(s) 50 Agreement(s) under which the petitioner is
had been unauthorizedly executed by claiming its rights were executed in an equally
Chaudhary Avadhesh Kumar and the amount non-transparent manner. I may hasten to
15 had been deposited in respondent's bank clarify that this Court, in the present
account without its permission, returned the proceedings, is not concerned with the
amount of Rs. 9 crores, which it claimed to 55 manner and authority of the respondent to
have been so deposited in its account. As grant such rights in favour of a third party.
noted above, the respondent has denied the This cannot be the scope of investigation in a
20 receipt of further amount of Rs. 54 lacs from petition under Section 9 of the Act, which is
the petitioner. only for seeking interim protection as far as
60 the subject matter of the arbitration is
13. The petitioner, in response to the refund concerned, based on the asserted contractual
of money, vide its letter dated 16.11.2016, rights and not publication rights.
accepted the refund of the said amount
25 though without prejudice to its rights.
16. In view of the above, I find no merit in
Admittedly, the petitioner at that stage and till the present petition and the same is dismissed,
filing of the present petition, did not assert or 65 with no order as to costs.
seek enforcement of its rights in the alleged 17. I may hasten to add that none of the
agreement(s). observations made by me in the above order
30 14. Counsel for the petitioner submits that as would in any manner bind or influence the
there was a fight between the office bearers of Arbitrator that may be appointed for
the respondent and the respondent Society 70 adjudicating the disputes that have arisen
had been provisionally suspended by the between the parties.
International Volleyball Federation, the Petition dismissed
35 petitioner did not seek enforcement of its
rights through legal remedy, however, in my
opinion, this would have a vital effect on the
prayer of interim injunction now been sought
by the petitioner. By its own conduct, in my 75
35 Societies, appointing Adhoc Executive

Committee for the Association, and the order
Rajasthan Wrestling Association dated 30.10.15 passed by the Secretary,
v Department of Sports and Youth Affairs
(appellate authority) confirming the said
Registrar, Cooperative Society and others 40 order. The other Revision Petition being No.
182/15 has been filed challenging the earlier
5
order dated 2.7.15 passed by the respondent
Case No :S. B. Civil Revision Petition No. No.1-Registrar and the order dated 13.8.15
181/15, S. B. Civil Revision Petition No. passed by the appellate authority. The court
182/15 45 vide order dated 4.11.15, after hearing the
learned counsels for the petitioner as well as
Bench :Bela M. Trivedi for the respondent No.3, had stayed the
elections of the Executive Committee of the
10 Citation :2015 Indlaw RAJ 2262
petitioner Association scheduled to be held on
The Order of the Court was as follows : 50 9.11.15.
1. Both the Revision Petitions filed under 3. The short facts, as transpiring from the
Section 35(2) of the Rajasthan Sports record, giving rise to the present petitions are
(Registration, Recognition and Regulation of that the said Association is registered under
15 Association) Act, 2005 (hereinafter referred to the said Act and affiliated with the Rajasthan
as 'the said Act') pertain to the challenge of 55 State Sports Council, Rajasthan Olympic
appointment of Adhoc Executive Committee Association and Wrestling Federation of
for the Rajasthan Wrestling Association India. Pursuant to the notices dated 27.2.12
(hereinafter referred to as the 'the said issued by the elections Officer for the
20 Association') and therefore with the consent elections of office bearers of the said
of the learned counsels for the parties, they 60 Association, the elections were held on
were heard finally at the admission stage. 18.3.12 in the General Body Meeting of the
After the filing of the petitions and the replies, Association. As per the certificate issued by
the counsels for the parties had sought to the elections Officer, one Mr. R.K. Dhabhai
25 produce additional documents which are was elected as the President, the respondent
taken on record. 65 No.3 Nirbhay Singh was elected as one of the
Vice Presidents and the petitioner Shiv Lal
2. Both the revision petitions have been filed Greval through whom the present petition has
by the petitioner Shri Shivlal Greval as the been filed on behalf of the Association, was
Secretary of the Association against the elected as General Secretary. It appears that
30 respondents under Section 35(2) of the said 70 on 14.3.12 one Shri Ranveer Singh had filed
Act. The Revision Petition being No. 181/15 an application under Section 9 of the
has been filed by the petitioner challenging Arbitration & Conciliation Act, 1996
the order dated 1.10.15 passed by the (hereinafter referred to as 'the Arbitration
respondent No.1- Registrar Co-operative
Act') in the court of District Judge, Jaipur 40 4. It further appears that the present
City, Jaipur seeking injunction against the respondent No.3 who was also elected as the
State Sports Council, and others from holding Vice President of the Association in the
the said election. On 17.3.12, the Addl. elections held on 18.3.12, had filed one writ
5 District Judge No.6, Jaipur City, Jaipur petition being No. 4967/15, on 23.4.15 posing
(hereinafter referred to as 'the trial court') had 45 himself to be the Secretary of Bharatpur
passed an ad-interim order staying the said District Wrestling Association, suppressing
elections of the said Association to be held on the fact that he had also participated in the
18.3.12. On 26.3.12, the said applicant elections held on 18.3.12, and that he was
10 Ranveer Singh filed another application elected as the Vice President. In the said
before the said court for restraining the 50 petition he had prayed for the direction
respondents in the said proceedings from against the Registrar to appoint an Adhoc
entertaining the office bearers of the Executive Committee of the Association to
Association who were elected on 18.3.12. On conduct the elections within three months.
15 3.4.12, while dealing with the said second The court at the first instance disposed of the
application, the trial court observed interalia 55 said petition by passing the following order on
that the interim order dated 17.3.12 was 23.4.15:-
obtained by the applicant Ranveer Singh by
concealing the material facts and therefore the "This writ petition has been filed by the petitioner
20 court refused to grant the ad-interim contending that Rajasthan State Wrestling
injunction as prayed for in the said Association is a registered body and it is governed with
application. On 12.4.12, the present petitioner 60 the Rajasthan Sports Act, 2005 and its own
Shiv Lal Grewal filed an application in the constitution. On 11.7.10, the elections of the executive
said proceedings for impleading him as party- committee were held, which has tenure of four years.
25 respondent under Order I Rule 10 of CPC, On 18.03.2012, few persons tried to conduct elections
which application was allowed by the trial of the Association but on 17.03.2013, Court of
court vide order dated 24.4.12. On 10.5.12, 65 Additional District Judge No.6, Jaipur City passed
the applicant Shri Ranveer Singh again filed an order staying the elections on 18.03.2012. It is
third application for restraining the office contended that despite order passed by this Court,
30 bearers who were elected on 18.3.12 from elections were held illegally on 18.03.2012 and
conducting the affairs of the Association. The Wrestling Federation of India is allowing those
said application came to be rejected by the 70 persons as the representative of the Rajasthan
trial court vide order dated 17.7.12 on merits Wrestling Association. Further the tenure of the
after hearing the learned counsels for the elected body of 2010 has come to an end in 2014, but
35 parties. Thereafter the main application filed no elections has been conducted. The office of Registrar
by the applicant Ranveer Singh under Section has taken no efforts to appoint ad-hoc committee. It
9 of the Arbitration Act came to be dismissed 75 has also not taken any measures for taking elections.
by the said court for want of prosecution vide Contrary to the same, those who were elected in the
the order dated 20.10.14. elections dated 18.03.2012, they are illegally running
the Association.

Having regard to the facts aforesaid, the petitioner is 40 13.8.15 passed by the appellate authority by
required to approach Respondent No.3, the Registrar, filing the petition being No. 12414/15, which
Cooperative Societies, Jaipur by way of filing an according to the respondent No.3 is pending
application along with order of this Court for before this court.
5 appointment of ad-hoc committee for holding elections.
Appropriate order on the application of the petitioner 6. It further appears that after the remand of
be passed within a period of two months from the date 45 the case to the respondent No.1-Registrar, he
of its filing. has passed the order dated 1.10.15 appointing
the same members of the committee who
With the aforesaid direction, writ petition is disposed were appointed in his earlier order dated
10 of. Stay application also stands disposed of." 2.7.15. Being aggrieved by the said order, the
50 petitioner had preferred the appeal before the
5. The respondent No.1-Registrar thereafter appellate authority, who by the order dated
passed the order dated 12.7.15 appointing the 30.10.15 dismissed the said appeal and
Adhoc Executive Committee of the confirmed the order dated 1.10.15 passed by
Association under the guise that the High the Registrar. The said order dated 1.10.15
15 Court had directed to appoint such 55 and 30.10.15 are under challenge in the Civil
committee. The present petitioner therefore Revision Petition No. 181/15.
had preferred an appeal before the Appellate
authority challenging the said order. The 7. It is sought to be submitted by the learned
Appellate authority vide the order dated counsel Mr. Peush Nag for the petitioner that
20 13.8.15 partly allowed the said appeal by the Registrar as well as the Appellate
upholding the decision of the Registrar 60 Authority had appointed the Adhoc Executive
forming the Adhoc Executive Committee to Committee under the guise of complying with
conduct fresh elections, however set aside the the order passed by the High Court in
order of the Registrar constituting the SBCWP No. 4967/15, though no such order
25 Committee, and directed the Registrar to give was passed by the High Court. Taking the
an opportunity of hearing to the appellant i.e. 65 court to the orders passed by the trial court in
the present petitioner and to reconstitute the the application under Section 9 of the
Adhoc Executive Committee within 15 days Arbitration Act filed by the applicant Ranveer
after taking into consideration all relevant Singh, he submitted that the trial court had
30 facts. The appellate authority also directed passed detailed order on 17.7.12 in the said
that the notices dated 28.7.15 issued by the 70 proceedings holding that the said applicant
Adhoc Executive Committee constituted by had suppressed the material facts from the
the Registrar was rendered void. The said said court and that thereafter the said
orders dated 2.7.15 passed by the Registrar application under Section 9 of the Arbitration
35 and order dated 13.8.15 passed by the Act was dismissed by the trial court for
appellate authority are challenged by the 75 default on 20.10.14. Relying upon the decision
petitioner in Revision Petition being No. of the Apex Court in case of Kanwar Singh
182/15. It appears that the respondent No.3 Saini Vs. High Court of Delhi (2012) 4 SCC
had also challenged the said order dated 307 2011 Indlaw SC 601 and in the case of

Amarjeet Singh & Ors. Vs. Devi Ratan & Ors. 40 writ petition in which the order dated 23.4.15
(2010) 1 SCC 417 2009 Indlaw SC 2066, he was passed. On specific querry being put by
submitted that the interim order would always the court as to why the respondent No.3, who
merge into the final order and where the case was petitioner in the said petition, had not
5 is dismissed, interim order stands disclosed the correct facts and more
automatically nullified. Placing reliance on the 45 particularly the fact that he himself had
decision of the Apex Court in the case of participated in the elections held on 18.3.12
Commissioner of Income Tax, Mumbai Vs. and was also elected as Vice President, Mr.
Anjum M.H. Ghaswala & Ors. (2002) 1 SCC Amit Mathur for the respondent No.3 failed
10 633 2001 Indlaw SC 20805 and in the case of to give any reply except that the respondent
Bhavnagar University Vs. Palitana Sugar Mill 50 No.3 had annexed the certificate of Election
(P) Ltd. & Ors. (2003) SCC 111 2002 Indlaw Officer declaring the names of office bearers
SC 1454, he submitted that the authority alongwit the writ petition. Mr. Bhuvnesh
under the Statute has to exercise the powers Sharma appearing for the respondent No.1-
15 in the manner provided under the Act only Registrar has submitted that the Registrar had
and not in any other manner, and that in the 55 appointed the committee in compliance with
instant case the Registrar had failed to exercise the order passed by the court.
his powers of holding enquiry before
appointing Adhoc Executive Committee, as 9. Before adverting to the submissions made
20 contemplated in Section 23 and 24 of the said by the learned counsels for the parties, it will
Act. be appripriate to reproduce the relevant
60 provisions of the Act. It may be stated that
8. However, the learned counsel Mr. Amit the Registrar has the powers to appoint the
Mathur for the respondent No.3 submitted Adhoc Executive Committee after giving
that the earlier order of the appellate authority opportunity of hearing to the affected
25 dated 13.8.15 confirming the decision of the Association, and after holding the enquiry
Registrar to appoint Adhoc Executive 65 under Section 23 of the said Act. The relevant
Committee pursuant to the order passed by provisions are reproduced as under :-
the High Court had remained unchallenged by
the petitioner and it was only when the "23. Inquiry-(1) The Registrar may -
30 subsequent orders were passed by the (a) on the request of a State Level Sports Association,
Registrar and the appellate authority, the or
petitioner challenged the said orders. He also
submitted that the earlier elections held in 70 (b) on the request of not lessthant one tenth of the total
2010 were under challenge before the members of a Sports Association, or
35 concerned court and the elections held on
(c) on his own motion, held an enquiry, either himself
18.3.12 being in violation of the order dated
or by a person duly authorised by him.
17.3.12 passed by the said court, the same
were illegal. The said elections therefore were (2) The Registrar or the person authorised by him
challenged by the respondent No.3 by way of 75 shall, for the purpose of any inquiry have all the

powers to inspect records, direct production and take of hearing to the affected Association, he may
copy of any docuoment of the concerned Sports appoint Adhoc Executive Committee. So far
Association for the purpose of the enquiry. as the facts of the present petitions are
40 concerned, the respondent No.1-Registrar had
24. Disqualification.-(1) After holding an inquiry the appointed Adhoc Executive Committee vide
5 Registrar, after giving an opportunity of being heard to order dated 2.7.15, without holding any
the affected Sports Association, may- enquiry under the guise that the High Court
(a) appoint an Adhoc Executive Committee and cause had directed him to appoint the Adhoc
to hold fresh elections of the Executive Body within 45 Executive Committee. In this regard it is note
three months; worthy that the order dated 23.4.15 passed by
the court in SBCWP No. 4967/15 specifically
10 (b) in the case of misappropriation of funds take action required the petitioner to approach the
in accordance with law." respondent No.3 by way of filing of
50 application alongwith the order of the court,
10. Section 16 which deals with the
for appointment of Adhoc Executive
Conciliation and Arbitration reads as under :-
Committee. It was only the petitioner who
"16. Conciliation and Arbitration- (1) If any dispute was directed to approach the Registrar with
15 arises touching the constitution, management activity, necessary application for appointment of
elections or claim to affiliation of any Sports 55 Adhoc Executive Committee and there was
Association, the same shall be resolved through no direction to the Registrar to appoint the
conciliation and arbitration. Adhoc Executive Committee and that too
without following the procedure as laid down
(2) The Arbitration and Conciliation Act, 1996 under Sections 23 and 24 of the said Act.
20 (Central Act No. 26 of 1996) as amended from time 60 Hence, the Registrar had on the
to time shall apply to the conciliation and arbitration misinterpretation and misconstruction of the
proceedings referred under sub-section(1)." order passed by the High Court had
appointed the committee vide order dated
11. From the bare perusal of the said
2.7.15 which order was absolutely illegal. The
provisions, it transpires that the dispute with
65 appellate authority had also endorsed the said
25 regard to elections has to be resolved through
order without application of mind and had
conciliation and arbitration as per the
remanded the matter to the Registrar again for
provisions contained in the Arbitration &
appointment of Adhoc Executive Committee
Conciliation Act, 1996. So far as the powers
after granting opportunity of hearing to the
of the Registrar to appoint Adhoc Executive
70 petitioner. Both the orders dated 2.7.15 and
30 Committee is concerned, it is required to be
13.8.15 therefore sufferred from non-
noted that the Registrar is required to hold an
applicatin of mind at the instance of the
enquiry on the request of State Level Sports
Registrar and the appellate authority. It is
Association or at the request of not less than
needless to say that in absence of any
one tenth of total members of the Association
75 direction from the High Court to appoint the
35 or on his own, as per Section 23, and after
Adhoc Executive Committee de hors the
holding enquiry, and after giving opportunity
provisions contained in the said Act and 40 that he himself had participated in the said
ignoring the specific provisions contained in elections. He had not stated the correct facts
the said Act, the Registrar could not have and in the petition which had resulted into passing
should not have appointed the Adhoc of the said order dated 23.4.15 by the High
5 Executive Committee and the appellate Court. It is significant to note that when the
authority also should not have confirmed such 45 said order was passed by the High Court, the
decision of the Registrar to appoint Adhoc proceedings of Section 9 filed by the applicant
Executive Committee under the guise of Ranveer Singh had already stood terminated
complying the order of the High Court. It is before the trial court, and that the ex-parte
10 true that the petitioner had not challenged the order dated 17.3.12 passed by the trial court in
orders dated 13.8.15 passed by the appellate 50 the said proceedings had also stood nullified,
authority at the relevant time and has now the said application having been dismissed on
challenged it alongwith subsequent orders 20.10.14 by the trial court, in view of the
passed by the said authorities, nonetheless, the decision of the Apex Court in case of
15 subsequent orders dated 1.10.15 and 30.10.15 Amarjeet Singh & Ors. Vs. Devi Ratan & Ors.
also suffer from gross non- application of 55 2009 Indlaw SC 2066 (supra). The trial court
mind inasmuch as they have reiterated their had also, while dismissing the subsequent
stand of appointing the Adhoc Executive applications filed by the applicant Ranveer
Committee under the pretext of complying Singh in the said proceedings filed under
20 with the order of the High Court. Hence, the Section 9 of the Arbitration Act, had observed
said orders also being in contravention of the 60 in its orders dated 3.4.12 and 17.7.12 interalia
provisions of the said Act are illegal, and that the said applicant had obtained the ex-
deserve to be set aside. parte order dated 17.3.12 suppressing the
material facts from the court. In any case, the
12. Though it was sought to be submitted by said proceedings having already been
25 the learned counsel Mr. Amit Mathur for the 65 terminated as per the order dated 20.10.14, it
respondent No.3 that the said elections held was highly improper on the part of the
on 18.3.12 were in contravention of the respondent No.3 to contend before the High
orders dated 17.3.12 passed by the trial court Court, during the course of hearing of writ
in the application filed by the applicant petition on 23.4.15, that the elections were
30 Ranveer Singh and therefore were illegal, the 70 held on 18.3.12 despite the order dated
said submission cannot be accepted for the 17.3.12 passed by the trial court, when the
simple reason that the respondent No.3 said order had already stood vacated in view
himself had participated in the said elections of the subsequent orders passed by the trial
and was also elected as the Vice President. It court on 3.4.12, 17.7.12 and 20.10.14. It was
35 is also pertinent to note that the respondent
75 sought to be submitted by the learned counsel
No.3 had challenged the said elections held on for the respondent No.3 that the respondent
18.3.12 after about 3 years, by filing the said No.3 being not a party-respondent in the said
writ petition being SBCWP No. 4967/15, proceedings, he was not aware about the said
suppressing the material facts from the court orders, however the said submission is also

devoid of merits. When he knew about the Rajiv Dutta

orderdated 17.3.12 and when the said
40 v
Association was impleaded as the party-
respondent in the said proceedings, the Union of India and others
5 respondent No.3 being Vice President elected
on 18.3.12 was deemed to have knowledge
about the pendency of the said proceedings
Case No :W. P. (C) 8734/2014
and of the orders passed in the said
proceedings. Under the circumstances, the Bench :G. Rohini, Jayant Nath
10 court is of the opinion that the respondent
No.3 had filed the writ petition being No. 45 Citation :2016 Indlaw DEL 57
4967/15 misusing the process of law and
The Judgment was delivered by : G. Rohini, J.
challenging the elections dated 18.3.12
suppressing the fact that he himself had 1. This petition by way of Public Interest
15 participated in the said elections and was Litigation has been filed raising the issue
elected as Vice President. Since the said non- relating to the alleged illegal suspension of the
disclosure of correct facts at the instance of 50 Respondent No.5 from participation in the
the respondent No.3, had led to the passed of competitions of Amateur International
the order dated 23.4.15 by the High Court, Boxing Association (AIBA) and the alleged
20 and subsequently the impugned orders by the failure of the Respondents 1-3 i.e., Union of
Registrar and the Appellate authority, the India, (Department of Sports), the Indian
present petitions deserve to be allowed by 55 Olympic Association and Boxing India to
imposing cost on the respondent No.3. challenge the said decision of AIBA.
13. In that view of the matter, the impugned 2. The Respondent No.5 is a Boxer who
25 orders dated 2.7.15 and 13.8.15 as well as the represented India in the 17th Asian Games
orders dated 1.10.15 and 30.10.15 passed by conducted by AIBA at Incheon, Korea
the respondents-Registrar and by the appellate 60 between 19.09.2014 to 04.10.2014. It is not in
authority deserve to be quashed and set aside, dispute that the respondent No.5 had
and are hereby set aside. The respondent No.3 participated through Respondent No.3/
30 is directed to pay cost of Rs. 25,000/- to the Boxing India, an organization recognized by
petitioner-Association. Both the petitions AIBA to represent the sport of boxing in
stand allowed accordingly. By this order, the 65 India. Alleging discrepancies in the manner of
stay applications in both the petitions also operation of semi final match in which the
stand dismissed. Respondent No. 5 had participated and non-
compliance of Olympic Charter and its
35 14. A copy of this order be placed in the
Statute, the Respondent No.5 along with her
connected revision petition.
70 coaches was provisionally suspended by AIBA
Petition allowed on 21.10.2014.

3. The present petition came to be filed on that the prayer (a) in the petition, i.e. to direct
05.12.2014 alleging that no guidelines are in the Respondent Nos.1 and 2 to take
place for settlement of disputes with 40 immediate steps to avail the appropriate legal
International Sports Bodies and contending remedies against the decision of AIBA dated
5 that it is necessary to ensure that clear 21.10.2014 placing Respondent No.5 under
guidelines are formulated for dispute suspension does not survive.
settlement within the sports bodies that come
under the jurisdiction of respondent No.1. 9. However, the petitioner seeks a direction to
45 the Respondent No.1/Union of India to take
4. From 10.12.2014 the petition was due cognizance of the Rules and Regulations
10 adjourned to 17.12.2014 by which time a final framed by the Court of Arbitration for Sports
order came to be passed by the Disciplinary (CAS) situated at Switzerland and to direct the
Committee of AIBA placing the Respondent respective Federations and Associations in
No.5 under suspension for a period of one 50 India to incorporate the CAS Arbitration
year. clause within their respective
rules/regulations/bye-laws.
15 5. On 24.12.2014 we have directed notice to
the Respondent No.3. On 05.01.2015, Sh. 10. The material placed before this Court
Chetan Sharma, the learned Senior Counsel shows AIBA is an International Boxing
appeared on behalf of Respondent No.3 and 55 Association registered under the laws of
submitted that no remedy of appeal is Switzerland. The disciplinary matters
20 available against the order dated 17.12.2014 of applicable to AIBA are governed by
AIBA placing the Respondent No.5 under Disciplinary Code adopted by the Executive
suspension. Committee of AIBA. It is also not in dispute
60 that an appeal lies against the decision of the
6. On 14.01.2015 we have directed notice to Respondent No.4/ AIBA to the Court of
the Respondent No.2/ Indian Olympic Arbitration for Sports (CAS) and Respondent
25 Association, Respondent No.4/AIBA as well
No.4 recognizes the jurisdiction of CAS.
as the Respondent No.5.
11. It is pleaded by the petitioner that Rule
7. Both Respondent Nos. 4 and 5 have not 65 61.2 of the Olympic Charter which provides
chosen to appear. Though appearance has that any dispute arising in connection with the
been entered on behalf of Respondent Olympic Games shall be submitted exclusively
30 No.2/Indian Olympic Association, no to CAS in accordance with the Code of Sports
counter affidavit has been filed on its behalf related Arbitration applied to Asian Games
till date. 70 also since the term "Olympic Games"
8. So far as the Respondent No.1/UOI is includes Asian Games.
concerned a short affidavit has been filed on 12. It is contended by Shri Rajiv Dutta/
35 17.03.2015. In the meanwhile, since the period petitioner appearing in person that in terms of
of suspension of one year had expired on prayer (b) of the writ petition, the respondent
01.10.2015, it is conceded by the petitioner 75 No.1/Union of India may be directed to
incorporate CAS Arbitration Clause in the 2014. There is no provision of appeal against
Rules and Regulations of the National Sports 40 the said decision and thus, the decision of
Federations. It is also submitted by him that Disciplinary Commission of AIBA has
the National Sports Code of 2011 which become final.
5 primarily deals with administering the affairs
of the various National Sport Federations 14. We have heard the learned Counsels for
within India contains a provision of appeal to both the parties. It is apparent from the
45 material placed on record that no remedy is
CAS.
available as of today to appeal to CAS against
It is further submitted by Shri Rajiv Dutta that the decision of the International Sports
10 Article 63.3 of AIBA Statute provides that Bodies like AIBA. The fact that CAS is the
recourse to the courts of law of a country is final authority for settlement of disputes
permitted where the law of the country 50 arising out of the decisions of International
mandates such recourse. The petitioner Sports Bodies has not been disputed by the
therefore submits that if a provision is Respondent No.1. It also appears that the
15 incorporated in the National Sports National Sports Code of 2011 contains a
Development Code of India, 2011 providing a provision of appeal to CAS against any
remedy of appeal to CAS, it would empower 55 decision of Sports Federations in India.
sports persons in India to appeal against the
unjust and unlawful decisions of AIBA and 15. Though no mandamus can be issued to
20 other such International sports bodies.
the Respondent No. 1 to incorporate such
provision for remedy of appeal to CAS against
13. In the short affidavit filed by the the decisions of the International Sports
Department of Sports, Union of India it is 60 Bodies, in the light of the facts and
explained that series of meetings were circumstances that have been brought to our
convened by the Department of Sports in notice in the present case, we deem it
25 which representatives of Indian Olympic appropriate to direct the Respondent No. 1 to
Association, Boxing India and Sports consider the contents of this petition as a
Authority of India were present and the issue 65 representation and take an appropriate
of suspension of Respondent No.5 by AIBA decision in accordance with law after giving an
and the feasibility of filing an appeal against opportunity of personal hearing to Shri Rajiv
30 the said decision were discussed. Dutta, Senior Advocate/ petitioner herein to
substantiate his plea that it is essential to
The Minister of State for Youth Affairs and 70 ensure incorporation of a specific provision
Sports Minister addressed to the President for dispute settlement with International
AIBA, to revoke suspension of Respondent sports bodies. The needful may be done
No.5. On 12.12.2014 the Disciplinary within three months from today.
35 Commission of AIBA suspended Respondent
No.5 from any activity at the National, 16. Writ petition is accordingly disposed of.
Confederation and International Levels for a
period of one year starting form 1st October, 75 Petition disposed of

Paralympic Committee of India 35 shooters, the Committee formulated a

selection policy after consulting the relevant
v stakeholders. In accordance with its selection
Naresh Kumar Sharma and another policy, the Committee conducted trials at the
61st National Shooting Championship in
40 Kerala, in which over 100 shooters
participated. Based on the results of this
5 Case No :LPA 208/2018, C. M. Appl.
national competition, athletes were selected by
14838/2018 & 14840/2018
the Committee to represent the country at the
Bench :S. Ravindra Bhat, A.K. Chawla Al Ain World Cup in 2018. With the
45 exception of three shooters, the same team
Citation :2018 Indlaw DEL 1242 was scheduled to represent the country at the
2018 World Shooting Para Sports
The Judgment was delivered by : S. Ravindra
Championships, Cheongju, Korea. The
10 Bhat, J.
Committee failed to select the petitioner to
1. The present appeal has been filed by the 50 represent India for any events; aggrieved, he
Paralympic Committee of India (hereafter preferred a writ petition for a direction that he
"the Committee") impugning the order of a be sent for the 2018 Al Ain Championship
learned single judge dated 09.04.2018 passed and the 2018 Korea Championship. He
15 in a writ petition preferred by the petitioner. attacked the policy of the Committee, issued
By the impugned order, the single judge 55 on 08.11.2017 as "draconian" and arbitrary,
allowed Naresh Kumar Sharma ("the inasmuch as it set unrealistic goals as the
petitioner") to participate in the R7 event at qualifying criteria for selection of shooters;
2018 Korean World Championship and gave specifically the grievance was that the MQS
20 directions to the Committee to do the set for the R7 shooting event (1137 points)
needful. Learned counsel for the petitioner, 60 was arbitrary. The petitioner had urged that
who is present in court, accepts notice. With his non selection was despite his winning the
consent of counsel, the appeal was heard gold and two more medals in the recently
finally. concluded national championship.
25 2. The Committee, a Karnataka registered 3. During the course of hearing of the Writ
society was established for the up-liftment of 65 Petition, the petitioner admitted that he would
Para Athletes and development of sports not be able to prepare himself in time for the
amongst the physically handicapped 2018 Al Ain Championship. He therefore only
sportspersons of India. Before 2016, the wished to participate in the 2018 Korea
30 Committee had not formulated any selection Championship. The learned single judge of
policy for the para shooting team 70 this Court ordered that in order to ascertain
representing India in various international the performance of the petitioner (in the writ
sporting events. In December 2016, owing to proceedings), the Committee would conduct a
growing domestic competition amongst para- trial on 29.03.2018 and the score obtained by

the petitioner in that trial would be compared 40 judge ordered that the petitioner should be
as against the score obtained by the other allowed to participate, if not in all the events,
shooters in the 2018 Al Ain Championship. then at least in the R7 event. This appeal by
The petitioner's trial was to be held in respect the Committee challenges that direction.
5 of R1, R3, R6 and R7 events.
5. It is argued by the Committee that the
4. In accordance with the learned single 45 impugned order failed to appreciate that in
judge's directions, the trial for the petitioner issue in this case was the decision to send or
was held and the Committee furnished a not send a particular athlete to a sporting
report to the Court of the comparison of the event, an evaluation based on policy and one
10 petitioner's performance at the trial with the that the Court was not competent to review.
performance of the other selected shooters at 50 It is urged that in trying to select the best
the 2018 Al Ain Championship. The scores athletes to represent the country at the 2018
were measured against the Minimum Championships, the Committee had to reflect
Qualifying Score (MQS) set by the Committee on a multitude of considerations, including
15 as well as the MQS set by the International not just individual performances at particular
Paralympic Committee (IPC) for participation 55 trials or competitions, but take a complete
at the 2018 World Championship at Korea. view keeping in mind the likelihood of
After analyzing the results of the tests athletes winning medals for the country as
conducted by the Committee, the learned well as the overall aim of promotion of para
20 single Judge held prima facie that although the shooting in the country.
petitioner had scored better in the trial than
some/all of the selectees had in the 2018 Al 60 6. It is also urged that the Committee has to
Ain Championship, such as in the R1, R3 and keep in mind the funds or the budget available
R6 events, he was not considered for selection in which to send the athletes to these
25 in those events. The single judge held that competitions. Therefore, the expenditure
though the court directed trial was to look at incurred in sending a particular athlete to a
65 competition has to be weighed in by the
the petitioner's qualification to be sent for the
2018 Korean Championship, yet the Committee. In this regard, it is highlighted
Committee refused to so send him, relying on that some athletes who did well in particular
30 his previous performances at the 2017 events, have been sent for other events as
Hannover and the 2017 Bangkok well, though they have not done as well in
Championships. The learned single judge 70 those other events, so as to reduce cost, by
found this to be contradictory, on part of the not having to send different athletes for
Committee and that therefore, it was not different events.
35 justified in not selecting the petitioner. Even 7. Moreover, it is contended that while
judged according to his performance at the selecting athletes, the Committee also has to
2017 Hannover Championship, the petitioner 75 keep in mind the age of the athletes and
should in the least have been selected for the prefers to give chance to younger athletes,
R7 event. Having so found, the learned single who in the longer run, with the exposure they

receive at these competitions, are likelier to 40 and 2017 Hannover Championships.

win medals for the country. It is lastly urged However, in respect of the R7 event, the
that in such purely policy decisions, the Court Committee did not consider the petitioner's
cannot interfere and supplant its own wisdom performance at the 2017 Hannover
5 with that of the authority tasked with Championships and instead relied on the
performing the particular function - in this 45 performance at the 61st NSC and the Court
case, selecting the para shooters to represent ordered trial, to find that the equivalent of the
the country. petitioner's performance at the 2018 Al Ain
Championships would mean that the
8. Counsel for the petitioner supported the petitioner would have finished 16th out of 19
10 impugned order and contended that the
50 shooters in the Championship. It is therefore
Committee acted vindictively as far as the contended that the Committee's approach and
petitioner is concerned solely because he had selection is clearly arbitrary and the petitioner
previously highlighted irregularities and should be selected in the least for the R7
arbitrariness in the selection process of the event.
15 Committee. It was contended that the
approach of the Committee was manifestly 55 10. Before proceeding to analyze the merits of
arbitrary inasmuch that it considered different this dispute, this Court, for convenience has
selection parameters at different times for prepared a table listing the performances of
selection for the various events. While in the various selected shooters (and the
20 certain cases, it had considered the MQS fixed petitioner) at various events, in different
by the IPC, at others it considered the MQS 60 competitions and trials.
fixed by itself which was often higher than the
MQS fixed by the IPC. ……
9. It is further contended that despite the 11. …………. to ascertain whether the
25 Court ordered trial evidencing the eligibility of Committee's process of selection is manifestly
the petitioner for selection to the 2018 or prima facie arbitrary. This Court recollects
65 the compass that it has to apply in such
Korean Championship, as compared to the
other selected athletes, the Committee had matters. It is beyond dispute that in matters of
acted in a mala fide manner by still not policy decisions, the Court should be
30 sending the petitioner for the various events circumspect in interfering and must exercise
for which the petitioner had evidently met the its power of judicial review only to prevent
MQS set by the IPC.and fared better than the 70 manifest arbitrary or mala fide action. Beyond
others who had been selected. It is also argued this narrow scope of enquiry, Courts do not
that the Committee adopted differential possess the ability or the wherewithal to
35 standards vis-a-vis the petitioner. For all other "second-guess" policy decisions made by
events, it refused to consider the petitioner's specialized bodies tasked with that purpose.
score at the Court ordered trial, instead 75 Specifically, in the context of selection of
choosing to rely on old scores of the athletes for sporting events, this Court in
petitioner's performance at the 2017 Bangkok previous decisions such as Karamjyoti v.

Union of India (W.P. (C) 6815/2016 decided 40 that even for the other events, on taking an
on 11.08.2016) and Shumel v. Union of India overall view, the performance of the other
(W.P. (C) 5034/2010), has held that a writ selected candidates was facially better than
court will not interfere in the exercise of that of the petitioner.
5 discretion of the national sports federation
except where the discretion is shown to have 13. The Court must resist adopting a one-size-
been exercised in an arbitrary or capricious or 45 fits-all approach. In other words, any one
perverse manner or contrary to the settled single performance at one competition or trial
principles or practices. What then is the task cannot be used as a barometer to make the
10 before this Court, is to ascertain whether on a
decision of whether to select an athlete. In
broad, prima facie view, without getting into sports, as the impugned order also notes,
the intricacies of the policy decision, there is 50 same players perform differently on different
manifest arbitrariness or mala fides in the occasions and a number of factors influence
decision making of the Committee. an athlete's performance. Therefore, the
petitioner's performance at the court ordered
15 12. On an overall examination of the facts, trial cannot, by and of itself, be considered
this Court finds that there is no such 55 sufficient to warrant his selection for
arbitrariness or mala fides in the decision particular events. The Committee has to take
making of the Committee. Looking at the a broader view and analyze the performances
table compiled above, it can be seen that of the athletes/sportspersons over different
20 overall, the performance of the petitioner was competitions and trials. As such therefore, the
not as good as that of the other selected 60 Court does not find any infirmity with the
candidates, judged over a number of reasoning of the Committee, insofar as all
competitions/trials. For instance, in respect of events other than R7 are concerned (to which
R1, the petitioner's performance does not we will turn subsequently).
25 measure to that of the selected candidate
(Swaroop) in both the 61st NSC as well as the 14. This court is conscious that the
65 Committee has to consider a wide variety of
2017 Bangkok Championship. In fact, the
difference between the two in the 2017 other factors, including logistical and practical
Bangkok Championship is stark. True, the considerations, in selecting athletes. For
30 petitioner's performance in the court ordered instance, age is a pertinent consideration; in
trial was better than Swaroop's at the 2018 Al order to promote budding talent and to
Ain Championship. Yet, what cannot be 70 ensure that through exposure over periods of
overlooked is that the game surroundings and time athletes become better prepared and in
the situation in a world championship are turn are likelier to win medals for the country,
35 markedly different from those in a "one man" the Committee has found it necessary to give
trial, and therefore it would not be younger athletes a chance over some older
appropriate to equate the results of the two 75 athletes. This could for example explain
disparate events. Without going into the preferring Avani, who is 16 years old, over the
minutiae, it is apparent from the above table petitioner for event R6 for the 2018 Al Ain
Championship, even though the petitioner

had a higher score than her in the 61st NSC in 40 long run so far as the sporting future of the
the said event. However, in the 2018 Al Ain country is concerned, the burden to change
Championship, Avani's score was higher than that status quo and adopt measures for a
all the other athletes (even when compared to better future where financial reasons do not
5 the petitioner's performance in the court impede or influence decision making by
ordered trial), and that too by a significant 45 sporting authorities and where talent and
margin, thereby in some ways justifying the performance are the sole criteria for selection,
Committee's decision to send her over the would be on the Committee and all other
petitioner. concerned sporting authorities, and not this
Court. In the existent circumstances, this
10 15. Similarly, another factor that the 50 Court discerns nothing illegal or arbitrary in
Committee has to weigh in is the cost the decision taken by the Committee on this
element. In the budget that it has and in terms score.
of directions of the Sports Authority of India,
the Committee had to select para shooters for 16. In the case of event R7, the petitioner is
15 the various events keeping in mind the cost of the only contestant who could have been sent
sending the athletes for these international 55 by the Committee for the 2018 Korean
sporting events. Therefore, in certain cases, Championship. In the trial held pursuant to
the same athlete has been sent for multiple the order of the learned single judge, the
events, even though he or she may have petitioner scored 1113 and it is stated that in
20 performed well in only one of those events the 2017 Hannover Championship, he scored
and may not have performed as well in the 60 1120. Here, what must be considered is that
other(s) as compared to the petitioner. one of the factors that the Committee
Among other things, selecting the same consistently weighs in, while making its
athlete for multiple events means that the decision of selecting athletes, is the chances or
25 same rifle can be used across events, thereby the probability of the athlete winning a medal
proving to be cost effective. Therefore, for 65 for the country. It is stated that if the
some events, the Committee decided to send petitioner's performance at the trial is
the same athletes in order to cut costs, even considered, he would have finished at 16th
though the petitioner's performance may have place out of 19 athletes at the 2018 Al Ain
30 been in some senses, better in that particular Championship, based on the athletes' scores
event, considered individually. However, 70 at the said event. It is stated that since the
considered overall the Committee took the 2018 Korean Championship is an even larger
most appropriate alternative, in the and more competitive sporting event, the
circumstances, given the financial means at its petitioner's performance would not hold any
35 disposal. This Court does not find any fault chance of winning a medal. Even if his score
with such rationale adopted by the 75 at the 2017 Hannover Championship is
Committee. While cutting corners and considered, his performance is still a far-cry
reducing costs in sending athletes, on a from being a medal hope for India. It was
principle level, may not be the best idea in the therefore decided by the Committee to not

send any athlete for the particular event. Here 40 the opinion that granting an interim direction
too, this Court cannot fault with the approach of the nature that the impugned order did,
of the Committee. Given the financial without considering the main challenge to the
constraints highlighted above and taking into criteria setting exercise or the criteria, and
5 consideration the chances of the petitioner based upon a one off court ordered test, is
winning a medal at the said event, the 45 fraught and may not have been resorted to.
Committee's decision to not spend the For these reasons, with respect we disagree
amount required to send the petitioner for with the impugned order which has to be set
only one event, that too one where his medal aside.
10 chances seemed rather bleak, seems
reasonable to this Court. Its decision to not 18. The observations made in the course of
50 the order, it is clarified are not a reflection on
send anyone at all for this event therefore,
cannot be faulted, given that one major factor the merits of the writ petition; all contentions
that the Committee considers in making its of the parties are kept open.
15 selection is the likelihood of the athlete 19. In the circumstances therefore, the learned
returning with a medal for the country. single judge's order is set aside. The appeal is
17. From the above discussion, it is apparent 55 allowed.
that wide gamut of factors have to be Appeal allowed
considered by the Committee in making its
20 decision of selecting athletes to represent the
country. It is not an exercise as simplistic as
comparing scores based on individual
performances. Different factors have to be
weighed in. Which is precisely why, the
25 Courts should not ordinarily interfere in this 60
process in exercise of its power of judicial
review. Absent manifest or evident
arbitrariness or mala fides, both of which are
not discernible here, the Court cannot direct
30 the Committee to select the petitioner for any
particular event(s). Even otherwise, this Court
is of the opinion that without deciding the
challenge to the underlying policy (or absence 65
thereof) of the Committee in selecting athletes
35 for various paralympic sporting events, the
learned single judge, could not have, by way
of an interim order, directed the Committee
to send the petitioner for the R7 event, if not
the other events as well. This court is also of

the team selected to represent India. She

35 claimed that recently in the Asian Athletic
Athletics Federation of India, through its Championships held at Bhubaneswar from
Secretary, New Delhi 6.7.2017 to 9.7.2017, she was the gold
v medalist in 1500m race, which automatically
qualified her as the Area Champion. But for
5 Chitra P. U. D/o Unnikrishnan and others 40 unknown reasons, she was left out.
4. Upon the writ petition being filed and

considering the urgency of the matter, it
Case No :WA. No. 1636 of 2017 in WP(C).
appears that a Single Judge of this Court, on
24620/2017
25.7.2017, directed notices to be issued to the
Bench :Navaniti Prasad Singh, Raja 45 Federation through their e-mail address as
10 Vijayaraghavan v. available. This was done and the matter was
posted to 27.7.2017. On 27.7.2017, when the
Citation :2017 Indlaw KER 1758 matter was listed before the learned Single
Judge, there was no appearance on behalf of
The Judgment was delivered by : Navaniti
50 the Federation. But the Assistant Solicitor
Prasad Singh, J.
General was there representing the Union of
1. The Athletics Federation of India ("the India. The Court requested the Assistant
15 Federation" for short), the 2nd respondent in Solicitor General to inform the Federation
the writ proceedings, is in appeal against the accordingly and the matter was posted to
interim order dated 28.7.2017 in W.P.(C) 55 28.7.2017 keeping in view the urgency of the
No.24620 of 2017, passed by the learned matter. On 28.7.2017, it appears that a counsel
Single Judge. The writ petitioner is the 1st appeared on behalf of the Federation and
20 respondent herein. sought time to get instructions and to file their
response. But in view of the urgency of the
2. We have heard the learned Senior Counsel 60 matter, the IAAF World Championship being
for the appellant and the learned counsel for scheduled to commence on 4.8.2017, the
the writ petitioner and with their consent are Court proceeded to hear the matter for
disposing of this writ appeal at this stage itself. interim relief.
25 3. A writ petition was filed by the 1st 5. The learned counsel for the Federation
respondent/writ petitioner, a young national 65 placed on record an open letter issued by the
level athlete who had displayed her potential Federation under the signature of the
at various venues. Her claim was that though President of the Federation, as allegedly issued
she had qualified for the International on 27.7.2017, which acknowledges that there
30 Association of Athletic Federation World were allegations and complaints against the
Championship ("IAAF World Championship" 70 Federation for the last few days by a section
for short) to be held at London from 4.8.2017 of media, officials and some fans in the social
to 13.8.2017, she was arbitrarily left out from media in relation to the selections made by the

Federation for the aforesaid IAAF World (iii) By way of interim order virtually the final
Championships in respect of the Indian relief, as prayed for in the writ petition, was
contingent. At this stage, we would notice that granted. This is impermissible;
this letter itself acknowledges that even prior
5 to the writ petition, there was a strong public 40 (iv) The writ issued by way of an interim order
perception that all was not right in the was a futile writ in as much as the last date for
selection process. This open letter, keeping in registration of entries was 24th July, midnight
view the allegations being circulated, is Monaco time, which was long over, before the
virtually a counter defence placed in public writ petition was filed and therefore, such a
10 domain to justify the decisions of the selection 45 direction could not be issued.
committee of the Federation. The learned (v) The selection team consisted of eminent
Single Judge considered the athletes and there were justifiable grounds for
arguments/averments as made in the writ selection/non-selection. Courts should
petition, and as controverted in the open ordinarily refrain from interfering in such
15 letter, and passed the impugned interim order 50 decision of an expert body. According to the
on 28.7.2017 directing the Federation to federation, the decision was neither arbitrary
ensure the participation of the petitioner, nor discriminatory.
Chithra P.U, as part of the Indian contingent
for the 1500m race in the IAAF World 7. On the other hand, the leaned counsel for
20 Championship, while adjourning the matter the 1st respondent /writ petitioner submits
for further hearing. 55 that the notice was sent from the Registry in
the e-mail address as available on the web site
6. On behalf of the Federation, arrayed as the of the Federation. Since the e-mail did not
2nd respondent, the following submissions bounce back, it must be deemed to have been
are advanced by the learned Senior Counsel: served. In any view, the Assistant Solicitor
25 (i) Before passing the interim order, 60 General also informed the Federation as
opportunity was denied to the Federation to directed by the Court, which fact is admitted.
put forth their contentions. This has resulted Therefore, considering the urgency of the
in gross prejudice; matter, the Federation ought to have come
prepared rather than seek for time. These
(ii) There is suppression of material fact as the 65 facts justifies the manner in which the learned
30 writ petitioner asserted in the writ petition Single Judge proceeded with the matter. The
that she was the fastest runner in Asia. This learned Counsel would further point out that
was factually incorrect. Though she had the writ petition was filed on 25.7.2017 and
secured the Gold medal in the Asian on 27.7.2017, the Assistant Solicitor General
Championships, she could finish only second 70 informed the Federation. An open letter was
35 in the Nationals held subsequently at Guntur, issued by the Federation on 27.7.2017, which
Andhra Pradesh; was published in the public domain, and the
same was placed on record before the learned
Single Judge on 28.7.2017. This was clearly

with the intention to build a defence, to the 40 in the list of Athletes representing India
averments in the writ petition. According to released by the International Association of
the learned Counsel, in view of the notice that Athletics Federation on 29th and 30th of July,
was served by e-mail on the appellant, much 2017. According to the learned counsel, her
5 emphasis could not have been given to the name figures in the list even on this day. He
open letter. He then submits that the open 45 submits that these facts would show that there
letter emphatically discloses the issues which were scope for names to be added even later
are serious that plagued the selection process. than the 24th of July, 2017.
He would submit that it would also show the
10 whimsical and callous manner in which
10. According to the learned Counsel, the
decisions were taken by the Federation. learned Single Judge had evaluated all these
50 aspects and to secure the interest of justice
8. The learned counsel would further submit and to prevent the writ petition from
that there was no suppression nor any becoming infructuous, interim order was
statement was made by the writ petitioner issued which does not call for any
15 with intent to secure a favourable order. interference. It is pointed out that even at the
According to him, the rule of suppressio veri 55 stage of hearing, the fact that the last day for
suggestion falsi would not apply on facts. filing entries was closed long back was not
disclosed in any manner. Had that been
9. It was then submitted that when on the one disclosed, then the writ petition itself would
hand the stand taken by the Federation is that have been dismissed as virtually infructuous.
20 midnight of 24th July Monaco Standard time 60 The learned Single Judge cannot thus be
was the last date for entries to be filed, the blamed or criticized for the orders as passed is
open letter would show otherwise. In the case the submission.
of G.Lakshmanan, who was included in the
team for two events, it is stated that it was 11. In our view, the fact of the matter is that
25 quite unlikely that he would be allowed to the 24th of July, 2017, midnight Monaco time
participate in the 10000m event. According to 65 was the last day for receipt of entries to be
the learned Counsel, this showed that things filed. That being so, the interim order was a
were still open on 24.7.2017 at least. futile exercise and courts do not issue futile
Expatiating further it was submitted that writs. We have noted the fact that Sudha
30 though one Sudha Singh was shown as not Singh was not sent for the Championships
included in the team in the 3000m 70 according to the Federation figures in the list
steeplechase Womens event, her name figures published by the International Association of
in the list of participants/competitors put up Athletics Federation. This would be a matter
by the International Association of Athletics for the Federation to explain. But by and large
35 Federation in their website on the 29th and it is not in dispute that 24th of July, 2017 was
30th of July, 2017. How was that possible? If 75 the official closure of entries and that being
on 24th July, 2017, the entries were closed and so, the writ could not have been issued. We
the open letter issued on 27.7.2017 says that do not fault the learned Single Judge because
she was not sent, she could not have figured this fact was not brought to his notice.

12. In respect of the plea being taken by the 40 can say is that what is adequate depends on
appellant with regard to suppression of the facts of the case. The Federation was
material fact, the said submission is based on already facing grave media criticism. The
the fact that in the National Inter State notice of the writ proceedings were sent to
5 Championship held from 15.7.2017 to the Federation on their e-mail address and
18.7.2017 at Guntur, the writ petitioner had 45 was not bounced. It could be that whoever
come second. It is undisputed that the received the e-mail, did not consider it
Petitioner is the Area Champion as she had important enough to bring it to the notice of
finished first in the Asian Athletics the responsible office bearers. But
10 Championship held from 6.7.2017 to nevertheless, two days thereafter they received
9.7.2017. Exhibit P2 Qualification System and 50 intimation from the Assistant Solicitor
Entry Standards of the IAAF clearly defines General. On 28.7.2017, a counsel had
who an Area Champion is. It also states that appeared for the Federation and sought for
the Area Champion automatically qualifies for time. In the course of hearing on 28.7.2017,
15 the World Championships, irrespective of the parties produced the open letter. All that
whether her performance has reached the 55 was required to be said in defence to the
entry standard. We note that all that the allegations as made in the writ petition were
petitioner had stated in the writ petition was all there in the open letter produced before
that she was the fastest runner in Asia in the the court. In our view it cannot be urged that
20 1500m event and the same was based on her adequate opportunity was not granted to
achievement as the Gold medal Winner in the 60 represent the case, because virtually even at
Asian Event. On facts, we do not think that this appellate stage nothing new has been
there is any suppression of any material fact. brought on record. Thus, we do not agree that
Even otherwise, the learned Single Judge had the appellant was denied adequate opportunity
25 not passed the order merely on this averment. to defend the case.
The Court examined the open letter which
65 14. However, when we come to the next
showed that the petitioner had come second
in the national championship and submission with regard to the nature of
notwithstanding the same, had passed the interim order that was passed, there is some
30 order, as it did. Therefore, stating that she was substance, for, it is well established that the
the fastest runner in Asia was not a material final relief cannot be granted by way of an
70 interim order. But that is not an inflexible rule
fact which actuated the court to pass the order
or which influenced the court to pass the or an absolute rule. A singular illustration
order. We are cognizant of the legal position would demonstrate the same.
35 of the principle suppressio veri suggestio falsi 15. An individual's house is to be demolished.
dis-entitling a person from getting relief. But The final relief is to quash the order of
this surely is not such a case. 75 demolition and save the house. What is the
13. To the submission that the appellant was nature of interim order that would be granted,
not granted adequate opportunity, all that we if any, staying the demolition itself or staying
the order, ordering demolition, which is the

final relief? It all depends upon the exigency 17. Now coming to the question of
of the situation. If by passing an interim order 40 arbitrary and hostile discrimination,
an irreparable loss can be prevented, then before proceeding, we must note that we
interim order has to be passed. If by not are aware of the law that when there is an
5 passing an interim order, an irreparable expert body for selection, the courts do
damage may occur, then an interim order not substitute their views, for, the expert
ought to be passed. That is the fundamental 45 body is presumed to exercise its discretion
rule. in a lawful and non-arbitrary manner. But,
if the public perception of an action of a
16. While passing the interim order, the public body, may it be an expert body,
10 learned Single Judge was conscious of the fact
raises many questions, then the courts are
that if the name of the petitioner was not 50 not shut out from making enquiries. As
included, the petition would have become noted above, the open letter itself admits
infructous. The athlete would also have been that there are serious allegations and
denied her legitimate and precious right to complaints from a section of media,
15 represent the Country and the tricolour which officials and fans on the social media
is the dream of every sports person. That 55 against the Federation. Thus, there was a
could not be redressed by any other mode public perception concerning the case of
other than by granting the relief as prayed for the writ petitioner, which questioned the
at the interim stage. The writ petition could exercise of discretion or the manner
20 not have been filed earlier because the thereof by the expert body. That being the
decision of the selection committee was 60 situation, it would be the duty of the court
published only on 24.7.2017 and on the next to seek an explanation, at least to clear the
day itself the writ petition was filed. The air surrounding the acts of the expert
competitions were scheduled to start from the body, even if there is no truth in the
25 4th of August, 2017. In such a situation, the allegations raised. After going through the
submission that the learned Single Judge 65 materials, we feel that the public
ought not have passed the interim order on perception was not misconceived.
the 28th of July, 2017 can only be repelled.
Though several contentions can be advanced 18. The submission, as made by the learned
30 touching on legal nuances and technicalities, counsel for the appellant, is that the
the fact situation being what it is, no committee comprised of eminent athletes. But
exception can be taken to the order passed by 70 that does not mean that eminent athletes can
the learned Single Judge. Monetary never make a mistake. There is no such
compensation as damages or exemplary presumption in law. The only caveat is that
35 damages or compensation in any manner can the courts should be cautious while
never be sufficient retribution for denial of disbelieving or doubting the decision taken by
opportunity to the writ petitioner to represent 75 such an eminent committee, nothing more. It
the country in a world meet. is then submitted that adequate reasons have
been given in the open letter as to why a

person was selected and why a person was not 40 qualify subject to local team selection. Now
selected. We shall examine some of them to indisputably the petitioner was the area
show that the moment a rule was laid by the champion. She was the gold medalist at the
committee, exceptions were also set Asian Athletics Championship at
5 simultaneously. Bhubaneswar, which was held recently from
45 6.7.2017 to 9.7.2017. To disqualify her from
19. The stand taken is that at the Asian selection, it is said that in the National Inter
Athletics Championship held at Orissa from State Championship she finished only second
6.7.2017 to 9.7.2017 all the athletes were told and her timing was below the world qualifying
that in order to qualify for the world mark as well as the Indian Junior National
10 championship at London, notwithstanding 50 record. When it comes to one Ajay Kumar
their star performance at Bhubaneswar, it was Saroj, he was the first all along in the
necessary for them to participate at the Federation Cup Seniors, 2017 Asian Athletics
National Inter State Championship, which Champion and National Inter State Champion
was held from 15.7.2017 to 18.7.2017 at in the 1500m Mens' event. But again on the
15 Guntur. If this was the stand, then it is 55 ground that he was slower than the Indian
questionable as to how G.Lakshmanan, who Junior National record and below the
did not participate in the 10000m Mens' event qualifying marks, even though he was the
at Gundur, was recommended. The open national champion, was denied the
letter itself says that as on 27.7.2017, he is opportunity. Incidentally he himself had set
20 unlikely to be allowed to participate, 60 the national record. In all the persons who
irrespective of being area winner. That part we have been disqualified it is not noted that at
will discuss later. Then, we have one Swapna Guntur they were participating in "Hot and
Barman who did not participate in the Guntur Humid" condition, which is the expression
Inter State meet in the Heptathlon event for used to justify inclusion of G.Laxmanan and
25 women. However, she was selected because of 65 the "difficult condition" at Bhubaneswar
her good performance at difficult conditions when it comes to including Swapna Berman.
at a young age. This is yet another exception
to the rule. Similar is the unresolved 21. If such justifications are given and such
controversy of Sudha Singh, who also did not exceptions are made by an expert body, what
30 participate in the National Inter State would be the public perception? Will it not
Championship and as per the open letter she 70 give a legitimate reason to the petitioner, who
was not recommended. However her name is an Asian Champion to raise a grievance?
appears in the list as released by the
International Association of Athletic If we look to the charter of federation, what is
35 Federation at London, as one among the it? Is it a competitive body to give prizes to
athletes in the Indian contingent. the best performer? The object is otherwise.
75 The object is to encourage sports. Is the
20. The rules of International Federation expert committee encouraging sports? It gives
stipulate, as one of the qualifying conditions, an impression that they are picking faults and
that the area champion, would automatically finding reasons to disallow someone. Will it

not be demoralizing for the young athletes? A Pondicherry State Badminton (Shuttle)
large contingents of officials can travel and 40 Association, represented by its President,
enjoy luxury. But, a young athlete is denied Puducherry
the encouragement. Is that the rule of the
5 federation? The petitioner is not the only one v
who is complaining. The open letter Senior Superintendent of Police (L and
acknowledges the complaints raised by the O), Puducherry and others
media, officials and fans. If the acts of an
expert body is bereft of non-arbitrariness and 45
10 favoritism, its actions will not be questioned
Case No :W. P. No. 21925 of 2017 and
in public domain with such vehemence. We
WMP. Nos. 22963 to 22965, 31425 & 31426
have shown only by way of illustration that
of 2017
the selection process did raise questions.
There were more exceptions than the rule Bench :M.S. Ramesh
15 itself. A person performing under difficult
conditions, even though she does not 50 Citation :2018 Indlaw MAD 2484
participate in the national meet, is sent up.
The Order of the Court was as follows :
The other, merely because on a particular day
she does not perform well, even though she is 1. The prayer in the present writ petition is to
20 the Asian Champion and Area Champion quash the order of the second respondent
entitled to be qualified straight away, is not dated 20.07.2017 and the consequential order
sent. These are facts placed on record by the 55 of the first respondent dated 10.08.2017,
appellant themselves. A responsible body wherein the Pondicherry State Badminton
must not only act responsibly, their actions Championship 2017-18 scheduled to be held
25 must appear to be responsible. Be that as it from 11.08.2017 to 20.08.2017 by the
may, in view of the fact that no new entries Pondicherry State Badminton (Shuttle)
could have been filed after 24th of July 2017, 60 Association headed by one faction of the
the writ virtually issued by an interim order is Association under the Presidentship of
a futile one incapable of obedience. Mr.J.Arawindhan came to be restrained.
Though this part of the prayer has become
30 In view of the aforesaid, we have no option
infructuous in view of the interim orders of
but to allow this appeal and vacate the interim
65 this Court dated 24.08.2017, wherein an
order passed by the learned Single Judge in
Observor was appointed for the purpose of
W.P.(C) No.24620 of 2017. This appeal is
conducting the State Level Badminton
allowed and the interim order passed by the
Championship for the aforesaid period, I am
35 learned Single Judge in W.P.(C) No.24620 of
constrained to adjudicate the grounds raised
2017 is vacated.
70 by the petitioner and the third respondent in
Appeal allowed view of the consequential prayer sought for by
the petitioner to refrain the respondents
herein from preventing the petitioner from

conducting Badminton Championship for the inspite of the interim orders of this Court.
year 2017-18 or any other events. 40 This Court, with dismay, would like to place
on record its disappointment in the way which
2. Heard Mr.K.Doraisami, learned Senior the Association has been functioning and
counsel for the petitioner and Mr.D.Bharatha depriving the young players from participating
5 Chakravarthy, learned Additional Public in Inter-State Championship. Since the
Prosecutor (Pondicherry) for the respondents 45 petitioner has sought for a consequential
1 & 2 as well as Mr.D.Ravichander, learned prayer to continue the functioning of the
counsel for the third respondent. Association under the leadership of
3. Before dealing the facts of the present case, Mr.J.Arawindhan, which is opposed by the
10 it would not be out of place to observe that, third respondent herein, this Court is
our country, of late, have been tremendously 50 compelled to render a finding with regard to
improving in the game of Badminton at the rights of these two rival factions, thereby
World Championship and Super Series enabling the qualified players through out the
Events. The young players like Srikanth Union Territory of Puducherry to participate
15 Kidambi, P.V.Sindhu, Saina Nehwal etc., have in national and international levels.
been making their mark and making the 55 5. It is the case of the petitioner that the
Indians proud with their world level petitioner's Association, which has been
achievements. The Government have also functioning from 1983 onwards, is the only
being creating avenues for young Indian recognized Association in the Union Territory
20 Shuttlers and encouraging them to compete in of Puducherry. According to the learned
national and international levels. The 60 Senior counsel for the petitioner, on
Badminton Association of India, which is a 18.06.2017, the election of the office bearers
governing body of Badminton in the country, of the petitioner's Association was conducted
has been holding national level tournaments in the presence of an Observor deputed by
25 among state members. The intent of the the National Badminton Association of India
Association is to encourage and recognize the 65 and Mr.J.Arawindhan was elected as its
young players with talents and place them to president for the tenure 2017-21. On
compete in national and international levels of 13.06.2017, the petitioner's Association was
the game. requested to send players for participation in
30 4. In the present case in hand, the the South Zone Inter-State Championship,
Pondicherry State Badminton (Shuttle) 70 Pondicherry to be held from 27.08.2017
Association has been functioning with two onwards, at which point of time, the
factions, one by the petitioner herein and Association decided to conduct the
other by the third respondent. In consequence Pondicherry State Badminton Championship
35 to the dispute among these two factions, for the purpose of deputing players to the
several players' teams could not participate in 75 South Zone Inter-State Championship. At this
the South Zone Inter-State Championship, juncture, the first respondent had issued the
Pondicherry which was held on 25.08.2017, order dated 10.08.2017 restraining the

Association from conducting the 40 tenure has ceased on completion of 8 years in

championship in view of the dispute between the year 2012 itself.
two factions and hence, the present petition
has been filed challenging the said order. 8. At this juncture, the learned Senior counsel
for the petitioner submitted that as per the
5 6. According to the learned Senior counsel for Amended Rules and Regulations of the
the petitioner, the election of 45 Association, the restriction of an office bearer
Mr.J.Arawindhan as president of the to continue for two terms alone has been
Association was in conformity with the Rules relaxed and as such, Mr.J.Arawindhan is
and Regulations of the Association and as entitled to hold his office for the period 2017-
10 such, the third respondent has no authority to 21, since he has been duly elected for the said
interfere with the functioning of the 50 period. Opposing the same, the learned
Association under the presidentship of counsel for the third respondent submitted
Mr.J.Arawindhan. that the new amendment relaxing the
restriction of the tenure came in the year 2013
7. Mr.D.Ravichander, the learned counsel and since Mr.J.Arawindhan had ceased to be
15 appearing for the third respondent submitted
55 the office bearer in the year 2012 itself, the
that Mr.J.Arawindhan, who claims to be the amendment itself has no validity and that was
president of the Association, has no locus brought defunct by the executive committee
standi to represent the petitioner's Association and is non-est in the eye of law.
and file the present writ petition and hence,
20 the writ petition itself is not maintainable. He 9. I have given careful considerations to the
further submitted that the term of the elected 60 submissions made by the respective counsels.
office bearers is for a period of four years and
as such, as per the Rule 12(4) of the Rules and 10. The Rule 12(3) & (4) of the Rules and
Regulations of the Association, it is mandated Regulations of the Pondicherry State
25 that no office bearers shall continue the office Badminton (Shuttle) Association reads as
for more than two terms. Since follows:
Mr.J.Arawindhan and M.Jagadeesan were 65 "12(iii) An executive committee shall hold office for a
elected as president and secretary on period of 2 years, including the year of election.
05.09.2004 and also for the second term
30 commencing from 29.07.2009, their tenure in 12(iv) An office bearer will hold office for one term
the executive committee concluded in the year only. However, he may seek re-election to one of the
2012 and as such, they cease to be the office offices. Provided that he secures 2/3 majority of the
bearers of the Association. Hence, the 70 General Body. No office bearer may hold office for
affiliated units of the Association resolved to move than 2 terms."
35 conduct an election on 08.05.2017, wherein
11. By an amendment dated 29.06.2017, Rule
the third respondent was elected as president
12 came to be amended as follows:
of the Association. According to the learned
counsel, the claim of Mr.J.Arawindhan as "Amendment of Rule 12.- In Rule 12 of the
president of the Association is illegal since his 75 Pondicherry State Badminton (Shuttle) Association
Rules and Regulations, the existing sub-rule (iv) shall amending Rule 12(3). Subsequently,
be substituted with the following: Mr.J.Arawindhan was again elected to the post
of president for the second term. As such, the
(a) The term of the President shall for be for four years 40 second term to the post of president of
unless he resigns before expiry of his term and he can Mr.J.Arwindhan came to an end in the year
5 be re-elected for two additional terms of four years 2012. While that being so, Rule 12 came to be
each. However, in no case, the total term shall exceed amended on 29.06.2013 i.e., after the term of
maximum of 12 years with or without break. Mr.J.Arawindhan as president had ended. The
(b) The term of the General Secretary shall be for four 45 amendment was pursuant to the Annual
years unless he resigns before expiry of his term and he General Body meeting held on 29.06.2013. It
10 can be re-elected for one additional term of four years is in this Annual General Body meeting dated
each. However, in no case, the total term shall exceed 29.06.2013, that Rule 12(4) of the Pondicherry
maximum of 8 years with or without break. State Badminton (Shuttle) Association's Rules
50 and Regulations came to be amended,
(c) The term of the Treasurer shall be for four years whereby the total term of the president came
unless he resigns before expiry of his term and he can to be extended to 12 years. The said Annual
15 be re-elected for one additional term of four years each. General Body meeting was chaired by
However, in no case, the total term shall exceed Mr.J.Arawindhan and Mr.M.Jagadeesan
maximum of 8 years with or without break. 55 claiming themselves as president and secretary
of Pondicherry State Badminton (Shuttle)
(d) Further, the President, the General Secretary and
Association.
the Treasurer shall automatically cease to hold their
20 respective posts on attaining the age of 70 years." 14. I am unable to comprehend as to how the
amendment could have any validity since
12. The amendment dated 29.06.2013 itself is
60 Mr.J.Arawindhan and Mr.M.Jagadeesan did
under question.
not hold the post of president and secretary as
13. The petitioner's Association came to be on 29.06.2013. In view of the then existing
registered on 17.06.1983 with the Registrar of Rule 12 of the Rules and Regulations of the
25 Companies, Puducherry. As per the original Association, no office bearer was entitled to
rules and regulations, the tenure of an office 65 hold office for more than two terms of four
bearer was for a period of two years alone. years each. After the second term, the then
Mr.J.Arawindhan, and Mr.M.Jagadeesan were president and secretary had became defunct
inducted into the executive committee of the and hence no valid or lawful Annual General
30 petitioner's Association as its president and Body meeting could have been held and in the
secretary on 28.11.2004 and on the same day, 70 absence of the any executive committee of the
i.e., on 28.11.2004, the resolution came to be Association, any decision taken in the so-
passed in the Annual General Body Meeting called Annual General Body meeting dated
of the petitioner's Association whereby the 29.06.2013 is non-est in the eye of law.
35 term of the executive committee was
15. The learned Senior counsel for the
extended to four years from two years by
75 petitioner submitted that after the

amendment, regular election to the Mr.J.Arawindhan came to be elected as

petitioner's Association was held for the first president and the Observer of the Apex body,
time in the year 2013, wherein namely, the Badminton Association of India
Mr.J.Arawindhan came to be elected as had also intimated the election to the second
5 president and accordingly, he has held the 45 respondent herein evidencing the election of
office till 2017 and subsequently, he was re- Mr.J.Arawindhan as president and other office
elected on 18.06.2017 for the tenure 2017-21. bearers. As I had already held,
It is the submission of the learned Senior Mr.J.Arawindhan was incompetent to contest
counsel for the petitioner that since the first for any election in view of bye-laws as it stood
10 regular election came to be conducted in the 50 on the date of expiry of the president's second
year 2013, Mr.J.Arawindhan was entitled to term. The participation of an Observor from
hold three tenures from thereon and therefore the Badminton Association of India or the
there is no illegality in his election. As election conducted by an independent
observed above, the decision to amend Rule Election Officer who was a retired official of
15 12(4) thereby extending the total term to three 55 the Government of Puducherry, has no
tenures itself is non-est in the eye of law. The relevance and will not legalize such an election
Annual General Body meeting and the which is contrary to the Rule 12 of the Rules
election hence conducted in the year 2013 and Regulations of the petitioner's
itself is invalid. As such, all activities and Association. As such, it can only be held that
20 resolutions passed by the defunct office 60 Mr.J.Arawindhan had usurped powers without
bearers of the executive committee of the any legal basis and had indulged in conducting
petitioner's Association has no legal validity. a general body meeting and thereby amending
At this juncture, it is brought to my notice by Rule (4) to suite his covetous ambition.
the learned Senior counsel for the petitioner Consequently, all resolutions and other
25 that the Apex Body namely, Badminton 65 activities passed by the petitioner's
Association of India had made certain Association under the presidentship of
amendments in the Constitution of Mr.J.Arawindhan after the end of his second
Badminton Association of India whereby term of his post of president is illegal and will
maximum period for the term of the president have no effect. It is brought to my notice that
30 was extended to 12 years. By placing reliance 70 Mr.J.Arawindhan has also ventured to affiliate
on the amendment to the Constitution of 12 Badminton Clubs, out of which 9 Clubs
Badminton Association of India, the learned were owned by Mr.J.Arawindhan, as he was
Senior counsel submitted that on 18.06.2017, the Chief Mentor of Aachari Group of
the election was conducted by an Election Educational Institutions. In view of the fact
35 Officer, who was a retired official of 75 that the Association did not have a valid
Government of Puducherry, in which, the executive committee while such affiliations
Joint Secretary of the Badminton Association were made, the same would be invalid.
of India, which is the Apex body, was deputed
as an Observor to participate in the election 16. Incidentally, the third respondent herein
40 proceedings. It is in view of this election that claims to have been elected as a president in

an election conducted on 08.05.2017, which 40 choice, both the factions under

election was alleged to have been conducted Mr.J.Arawindhan and K.S.P.Ramesh should
at the premises Hotel Jayaram at Kamaraj not be permitted to usurp the powers.
Salai, Puducherry by a letter dated 18.05.2017,
5 the management of Hotel Jayaram had 18. It would not be out of place to mention at
certified that there was no meeting of this juncture, when the writ petition was
Pondicherry State Badminton (Shuttle) 45 pending, an interim order came to be passed,
Association held on 08.05.2017 in their appointing an Observor to facilitate for
premises. The second respondent in their participation of teams in South Zone Inter-
10 letters dated 07.07.2017 and 20.07.2017 had State Badminton Championship. Even though
also stated that the petitioner's Association the Observor, who was Under Secretary to
was headed by Mr.J.Arawindhan and 50 Law Department of Government of
Mr.K.S.P.Ramesh of the two rival factions Puducherry, came to be appointed, it is seen
and thereby refrained both of them from that there was no fair selection and many of
15 conducting any tournament or championship the teams were not facilitated to participate.
in Puducherry. In the said letters, it was also Both the petitioner and the third respondent
observed that due to the dispute between the 55 blamed each other for participation and non
two factions, the young budding players were participation of the some of the teams in the
put to disadvantage and their opportunities to Union Territory of Puducherry in the said
20 compete in the tournament was denied. The Championship. I do not intend to probe into
alleged election conducted on 08.05.2017 the cause for the non participation of some of
whereby the third respondent claims to have 60 the teams since it may be a futile exercise.
been elected as president was also improper. However, the fact remains that some teams
The conduct of the election itself is doubtful. have been deprived of opportunities to
25 Hence, I am of the view that the election participate in the championship. In order to
conducted on 08.05.2017 where the third avoid such situation and to ensure a
respondent was elected as president is also 65 democratic selection of teams in future, it
non-est in the eye of law. would be appropriate to conduct a fresh
election for the committee members for the
17. As observed in my introductory paragraph petitioner's Association.
30 of this order, this Court is concerned about
the upcoming young badminton players and 19. In order to ensure that such a fresh
the paramount consideration of this Court 70 election is conducted in a democratic manner,
would be to facilitate their upliftment for it would be appropriate to appoint an Interim
participation in Championships in national Administrator-cum-Election Officer. In view
35 and international levels. Unless and until a of the same, it would be appropriate that the
proper and fresh election is conducted in a day-to-day management of the petitioner's
democratic manner by giving opportunity to 75 Association is relieved from the hands of
all the members of the petitioner's Association Mr.J.Arawindhan till a fresh election is
to elect the executive committee of their conducted.

20. In the result, the Writ Petition is disposed (f) The amendment to Rule 12 of the Rules
of with the following observations: and Regulations of Pondicherry State
Badminton (Shuttle) Association (29.06.2013)
(a) The Sports Authority of India represented 40 is declared as invalid.
by its Centre in-charge, Puducherry Branch
5 shall take over the management of the (g) The election conducted on 08.05.2017
petitioner's Association forthwith and act as electing the third respondent and other office
an Interim Administrator, till the next bearers of the petitioner's Association is also
election. held invalid.
(b) Interim Administrator is directed to 45 (h) The Interim Administrator shall take over
10 manage the affairs of the petitioner's the entire management of the Association and
Association till a fresh election is conducted. do such acts or things to facilitate the smooth
The said Administrator will also act as an running of the Association including selection
Election Officer for conducting the fresh of players for any Zonal, State Level or
election. 50 National Level Championship/Tournaments
from the Union Territory of Puducherry, till a
15 (c) The Interim Administrator shall take over
new Executive Committee is elected.
the entire management affairs of the
Pondicherry State Badminton (Shuttle) (i) The election shall be conducted based on
Association forthwith, in any case, within one the Rules and Regulations of the petitioner's
week from today i.e., 13.03.2018. 55 Association and in a democratic manner by
giving wide publicity to all the members of the
20 (d) Interim Administrator shall also conduct petitioner's Association. The candidates
the General Body meeting on or before eligible to participate in the election for
30.04.2018 for electing the executive executive committee shall be strictly in
committee of the Pondicherry State 60 accordance with the said Rule 12 as amended
Badminton (Shuttle) Association, in a till 28.11.2004.
25 democratic manner. The conduct of the
election shall be strictly in accordance with the (j) The Interim Administrator shall do all such
Rules and Regulations of the petitioner's acts, deeds or things necessary to the best
Association. welfare of the members of the Association as
65 well as all the Badminton/Shuttle players in
(e) The Executive Committee elected in the the Union Territory of Puducherry.
30 General Body meeting held on 18.06.2017 and
all consequent resolutions or actions taken (k) On completion of the Election and
with regard to the affiliations of the member declaration of the Election results, the Interim
clubs, after the expiry of the second term of Administrator shall duly inform the Sports
the executive committee headed under the 70 Authority of India about the results of the
35 presidentship of Mr.J.Arawindhan, is declared Election.
as invalid.

Consequently, connected Miscellaneous Maharashtra Archery Association

Petitions are closed. No costs.
v
Petition disposed of
Rahul Mehra and others
5
30 Case No : Civil Appeal No. of 2019 (Arising
out of SLP (C) Diary No. 29577/2017) with
Civil Appeal No. of 2019 (Arising out of SLP
(C) Diary No. 28788/2017), Civil Appeal No.
of 2019 (Arising out of SLP (C) Diary No.
35 29202/2017)
Bench :A.M. Khanwilkar, Ajay Rastogi

10
Citation :2019 Indlaw SC 492
The Judgment was delivered by : A.M.

Khanwilkar, J.
40 1. Leave granted.
2. The respondent No.1 has filed a public

interest litigation before the High Court of
15
Delhi at New Delhi, being Writ Petition
(Civil) No.195 of 2010, raising issues of
45 transparency in governance and functioning
of the Archery Association of India (for short
the "AAI"). Several interim orders came to be
passed in the said writ petition which are not
relevant for answering the controversy in the
50 present proceedings. The present special leave
20 petitions emanate from the order dated 10th
August, 2017 passed by the High Court in
C.M. No.10461 of 2017 filed by respondent
No.1 (writ petitioner) inter alia for
55 appointment of Administrator/Returning
Officer including to conduct elections of AAI
in compliance with the High Court's order
dated 15th December, 2016, as well as stay of
25 notice dated 2nd March, 2017 of the AAI,

calling for an emergency meeting of the and tenure restrictions and due representation of the
General Council on 15th March, 2017 and, in 40 sports persons are strictly complied with. The entire
the alternative, to stay the outcome of such exercise shall be carried out within a period of 4
meeting if held, till the Court appoints an months from today.
5 Administrator/Returning Officer. The High
Court after hearing the parties passed the (iv) The AAI shall make available to the
following order: Administrator an appropriate office space and
45 facilities for the discharge of the aforesaid directions
"20. In the circumstances, the Court deems it and make available such staff and personnel as the
appropriate that the affairs of the Archery Association Administrator may express the need for.
10 of India (AAI) be brought under the supervision of an Alternatively, the Administrator may appoint such
Administrator till its Constitution is amended and personnel to assist him in the aforesaid matter and
elections are held in terms of this Court's order dated 50 expenses towards the same shall be borne by the AAI.
15.12.2016. The Court also deems it appropriate
that for the present, the affairs and elections of AAI (v) Till the elections are conducted and results declared
15 be conducted by a person of public eminence with
in consonance of the National Sports Code and in
significant experience in sports affairs and compliance with the preceding directions, the AAI
administration and elections. We are of the opinion shall not make any new financial commitments except
that Mr. S.Y. Quraishi, Former Chief Election 55 with the prior approval of the Administrator. Routine
Commissioner of India, who has also served as expenses of AAI too shall be defrayed, with the due
20 Secretary in the Ministry of Youth Affairs and prior approval of the Administrator.
Sports, Government of India would be a suitable 21. The applicant and the AAI shall seek consent of
person to be appointed as the Administrator-cum- Mr. S.Y. Quraishi, of his acceptance of the
Returning Officer for discharge of the following 60 aforementioned responsibility.
functions:
22. The Court would consider fixing an honorarium
25 (i) To resolve the issue of disaffiliation of such for the Administrator's assignment at a later date.
members/units of AAI as on 15.12.2016, within a
month from today by giving them two weeks' notice 23. The application is disposed off in the above
and if their membership can be regularized in terms of terms."
the 'unamended' Constitution, it shall be so
65 3. This decision is assailed by way of an appeal
30 regularized;
[arising out of SLP(C) Diary No.29577/2017]
(ii) the Electoral College of the AAI shall be prepared filed by Maharashtra Archery Association (for
and elections shall be held in six weeks thereafter. short "MAA"), appeal [arising out of SLP(C)
This elected body shall carry out the amendments to Diary No.28788/2017] filed by the Archery
the Constitution to bring it in conformity with the 70 Association of India (for short "AAI"), and
35 National Sports Code. the appeal [arising out of SLP(C) Diary
No.29202/2017] filed by Kerala State Archery
(iii) Thereafter, a fresh round of elections, shall be Association (for short "KSAA"). When these
carried out as per the amended Constitution and in special leave petitions came up for hearing on
terms of the National Sports Code, to ensure that age
18th September, 2017, the Court recorded the 40 office bearers of the AAI shall be held as per the rules
submission of the appellant(s) that the and regulations which may be adopted by the General
constitution of AAI stood amended in Council, and there is no mention in the Constitution
accordance with the National Sports of the AAI that such election shall be held by secret
5 Development Code of India, 2011 (for short ballot.
"the Sports Code"). The counsel appearing for
Union of India prayed for time to verify the 45 ii. As per the principles underlying the NSDCI, an
said position. Later, this Court directed the affiliated member of a National Sports Federation
Ministry of Sports to file an affidavit regarding (NSF), i.e., a full member of the NSF, should be
10 compliance, on or before 26th October, 2017.
represented by two delegates in the General Council (by
Eventually, the affidavit of the competent whatever name called). The Constitution of AAI
50 shows each State Association has been given
officer of the Ministry of Youth Affairs and
Sports, Government of India, came to be representation of three delegates in the General Council
filed. It is not necessary for us to dilate on the i.e. one representative over and above the minimum of
15 contents of the said affidavit. For, the matters two representatives.
were heard on 4th December, 2017 whence, iii. The NSDCI provides that an NSF shall give
after hearing the parties, the Court proceeded 55 affiliation as a full member to a State Association if
to pass the following order: such State Association has at least 50% of the district
"Heard Mr. Sunil Gupta, learned senior counsel and units functioning in that State as per Para 3.10 and
20 Mr. Salwan, learned counsel for the petitioners; Mr.
Para 3.19 of Annexure-II of the Code. But no such
Narasimha, learned Additional Solicitor General for stipulation is found in the eligibility conditions for
the Union of India and Mr. Rahul Mehra, 60 affiliation of State Associations as members of the
respondent appearing in person. It is submitted by Mr. AAI.
Narasimha, learned Additional Solicitor General iv. The Constitution of AAI also makes a
25 that though certain amendments have been carried out provision that up to three persons may be bestowed the
in the constitution, yet they are not in consonance with title of Honorary Life President of AAI, without
the National Sports Development Code, 2011 65 voting rights, in recognition of the services rendered by
(NSDCI) of the MYAS. In the affidavit filed by the past Presidents of AAI. The NSDCI is silent on the
Union of India, certain deviations have been pointed matter.'
30 out. They read as follows :
Mr. Gupta, learned senior counsel and Mr. Salwan,
'i. The NSDCI provides that the election of office learned counsel for the petitioners fairly stated that the
bearer of an NSF shall be conducted in accordance 70 amendment shall be carried out keeping in view the
with the Model Election Bye-laws of the NSDCI, said deviations within a week hence.
copy whereof is annexed herewith and marked
35 ANNEXURE R/3 [PAGE 12 TO 51]. As per In view of the aforesaid, it is directed that amendment
the provisions of the said election bye-laws, the Office shall be incorporated by treating it as an order of the
Bearer and Members of the Managing Committee Court. After the constitution comes into force, election
shall be elected by secret ballot. However, the 75 shall be held under the supervision of Mr. S.Y.
Constitution of the AAI provides that election of Quraishi who has been appointed as the

Administrator by the High Court, within four weeks be submitted by the Administrator in that
therefrom. Mr. Quraishi is requested to see that the regard. The appellant (AAI) filed an
election takes place in accordance with the amended 40 application before this Court on 11th
constitution which stands amended by incorporation by December, 2017, being I.A. No.135882 of
5 virtue of order passed by this Court, as agreed to by 2017 and placed on record the final amended
learned counsel for the parties. Constitution in terms of the order of this
Court dated 4th December, 2017. The
The amended constitution shall be filed before this 45 appellant (AAI) then filed a separate I.A.
Court and a copy whereof be supplied to Mr. No.132436 of 2018 on 13th September, 2018,
Narasimha, learned Additional Solicitor General and seeking directions to hold elections as per the
10 Mr Rahul Mehra, respondent-in-person. But the filing
Court approved Constitution.
of the amended constitution will not postpone the
election, as directed hereinabove. To elaborate, 5. The Administrator, Mr. S.Y. Quraishi,
amendment shall be incorporated stating the same as 50 appointed by the High Court finally filed a
an order of the Court within a week hence and compliance report in the Registry of this
15 thereafter Mr. Quraishi shall proceed to hold the Court on 24th September, 2018, being
election in accordance with the constitution which will document No.139081/2018 in appeal arising
come into existence by virtue of the order passed today. from SLP(C) Diary No.29577/2017, together
55 with the new Constitution (for short
Mr. Quraishi shall be at liberty to see that the "Administrator's Constitution"). Be it noted
constitution of the Association is strictly in accordance that, admittedly, the Constitution filed by the
20 with the Code and thereafter proceed with the election. Administrator contained several other
If he has any reservation, he is at liberty to move this amendments than the permitted or approved
Court. 60 amendments in terms of the order of this
List after eight weeks." Court dated 4th December, 2017. It is also
not in dispute that no formal application has
(emphasis supplied) been moved by the Administrator (appointed
by the High Court) before this Court seeking
25 4. As a matter of fact, the contentious issues
65 liberty to amend the Constitution beyond the
regarding the relevant amendment carried out
amendments referred to in the order of this
to the Constitution of AAI stood resolved in
Court dated 4th December, 2017. Further, no
terms of this order. Further, this Court issued
direction was sought from this Court to
certain peremptory directions to the
permit the Administrator to conduct elections
30 Administrator to ensure compliance thereof
70 on the basis of the amendments incorporated
within the timeline specified in the order. The
by him in the new Constitution. The grievance
appeals could have been disposed of in terms
of the appellants is that this amended
of the said order itself, but the same were kept
Administrator's Constitution was not even
pending with a sanguine hope that the
circulated to the constituent members until it
35 directions given therein would be complied
75 came to be filed in this Court.
with within the time-frame specified in the
order and that the compliance report would

6. Thus, the grievance of the appellant(s) is 8. Resultantly, the election process was
that the Administrator had carried out concluded in accordance with the
amendments beyond what was permitted and Administrator's Constitution and not as per
approved by this Court in terms of the order 40 the amended Constitution in terms of the
5 dated 4th December, 2017, that too without order of this Court dated 4th December,
any discussion with the members and 2017. As a result, the representatives of the
stakeholders. That Constitution however, appellant Association(s) could not contest the
came to be notified for the first time on 4th election due to the restrictions prescribed in
October, 2018, through e-mail to the 45 the Administrator's Constitution.
10 members - State Association(s) along with a
notice for election for the office bearers of 9. The Union of India has also filed a separate
AAI to be conducted by the Administrator on application being I.A. No.15103/2019 on
22nd December 2018, at 11.00 A.M. 24th January, 2019, raising objections to the
Administrator's Constitution being in
7. The appellant (AAI) immediately rushed to 50 violation of the Sports Code. Even the Indian
15 this Court by way of I.A. No.15611 of 2018, Olympic Association (for short "IOA") has
seeking directions to the Administrator to filed document No.24274/2018 on 8th
conduct elections in conformity with the February, 2019, objecting to the
Court approved Constitution and seeking Administrator's Constitution being in
further directions to the Union of India to 55 violation of the Sports Code and the
20 restore recognition of the AAI which was de- Constitution of the World Archery. Another
recognised on 17th December, 2012. That application has been filed by Kerala State
application was moved for passing suitable Archery Association ("KSAA"), being I.A.
directions by this Court on 19th November, No.30011/2019 on 18th February, 2019, for
2018, when the Court, after hearing the 60 directions to declare that the elections
25 parties, passed the following order: conducted by the Administrator on the basis
of the Administrator's Constitution, is null
"Since the election programme has already commenced and void and to appoint a new Returning
in terms of notice dated 4th October, 2018, the same Officer to hold fresh elections in consonance
should proceed as per law uninterrupted. 65 with the Court approved Constitution, in
We clarify that the result of the election will be subject terms of the order dated 4th December, 2017.
30 to the outcome of this application. The appellant (MAA) has also filed an
application on 1st March, 2019, being I.A.
The grievance made in this application inter alia about No.3792/2019 seeking a direction to declare
improper amendments to the Constitution can be 70 the Administrator's Constitution as void ab
considered at a later stage. initio and to appoint a Returning
Officer/Observer to conduct fresh election
List this application in the second week of February,
for AAI in terms of the Court approved
35 2019."
Constitution as per order dated 4th
(emphasis supplied) 75 December, 2017. The Union of India, as per

the liberty given by this Court, has filed an consonance thereto within a period of four
affidavit on 5th March, 2019 highlighting the 40 weeks, after incorporating the amendments
deviations in the Administrator's Constitution within one week from the date of the order.
and the Sports Code. That was the limited mandate given to the
Administrator. Indeed, this Court had given
5 10. During the course of hearing of these liberty to the Administrator to seek
matters, before closing the matter for 45 clarification or directions if and when
judgment, the Court called upon the necessary. That liberty, however, by no stretch
Administrator, appointed by the High Court, of imagination could be mistaken as
to submit a flow chart pointing out the steps authorising the Administrator to carry out
10 taken by him from 4th December, 2017 till
amendments in the Constitution beyond the
22nd December, 2018, until the election of 50 four amendments referred to in the order
the new body. The Administrator has dated 4th December, 2017, much less to do so
accordingly filed a compilation giving details unilaterally without any prior notice to all the
about the follow up steps taken by him in that stakeholders and due deliberations with them
15 regard. as mandated by the Constitution of the AAI.
11. We have heard Mr. K.M. Natarajan, 55 In any case, any further amendments to the
learned Additional Solicitor General appearing Constitution could be incorporated only after
for Union of India, Mr. Shyam Divan, Mr. taking prior permission of this Court which
Sunil Gupta, Mr. Siddharth Dave, Mr. was still in seisen of the matter. The
20 Shekhar Naphade, Mr. Gopal Administrator was also ill-advised not to seek
Sankaranarayanan, learned counsel appearing 60 extension of time for completion of election
for the respective parties and Mr. Rahul process, which was to be completed not later
Mehra, respondent No.1 appearing-in-person. than five weeks from 4th December, 2017.
12. The core issue to be answered in these 13. The stand taken by the Administrator is
25 proceedings is about the purport of the order that the order dated 4th December, 2017 gave
passed by this Court on 4th December, 2017. 65 him liberty to ensure that the Constitution of
The background in which the said order came the Association is strictly in accordance with
to be passed after hearing the parties, leaves the Sports Code and only thereafter to
no manner of doubt that it had modified the proceed with the election. Indeed, liberty was
30 impugned order of the High Court dated 10th given to the Administrator in the last
August, 2017. Further, the contentious issues 70 paragraph of the order dated 4th December,
regarding the proposed amendment in the 2017. However, the order if read as a whole
Constitution stood answered to that extent. In and keeping in mind the spirit of the order, it
that, this Court passed a peremptory order not had directed the Administrator to ensure
35 only for approving the proposed timely completion of election within five
amendments, as noted in the order dated 4th 75 weeks from the date of the order on the basis
December, 2017, but also directed the of four amendments approved by the Court,
Administrator to conduct elections in which were required to be incorporated by the

Administrator within one week from the date 40 having been done by the Court appointed
of the order. No more and no less. For any Administrator, in the guise of an order of this
other doubt or deviation, the Administrator Court, the Court must step in and nullify all
was obliged to seek clarification and the actions taken by the Administrator which
5 appropriate directions from this Court, before are beyond the scope of the order dated 4th
the expiry of the timeline given in the order 45 December, 2017. To buttress this submission,
dated 4th December, 2017. The reliance has been placed on Delhi
Administrator, however, merely filed a Development Authority Vs. Skipper
compliance report on 24th September, 2018, Construction Co. (P) Ltd. and Anr. (1996) 4
10 in the Registry of this Court without SCC 622 1996 Indlaw SC 3923 (paragraph
attempting even once to invite the attention 50 19), Anita International Vs. Tungabadra Sugar
of this Court thereto. The Administrator has Works Mazdoor Sangh and Ors. (2016) 9 SCC
also filed a further report in terms of the order 44 2016 Indlaw SC 483 (paragraphs 54, 55),
dated 28th March, 2019. On perusal of the and Bihari Lal Vs. Shankar Das and Ors. AIR
15 said reports, we may hasten to accept the plea 1925 Lahore 309
that the steps taken by the Administrator were
under a mistaken belief - that he had the 55 15. We are in agreement with the stand taken
authority to proceed in the manner that he did by the appellant(s) that the Administrator
and including to amend the Constitution could have taken only such steps as were
20 beyond the four amendments referred to in permitted by this Court vide order dated 4th
the order dated 4th December, 2017. It is not December, 2017, in their letter and spirit.
a case of defiance or disobedience of the 60 Indisputably, the additional amendments
Court's order as such. incorporated by the Administrator have
resulted in denial of right to represent in and
14. The appellant(s) would contend that even contest elections of the AAI for the existing
25 if it is not a case of intentional disobedience members. Notably, even the direction given
of the order of this Court by the 65 by the High Court whilst appointing the
Administrator, however, since steps taken by Administrator vide the impugned judgment, in
him are not in conformity with the spirit of no way gave authority to the Administrator to
the directions given by the Court, the same be amend the Constitution, but was limited to
30 declared as null and void and non est. For, his conduct elections on the basis of the
actions had caused serious prejudice owing to 70 Constitution as it stood then. As ordered by
the unilateral, unauthorised action taken by the High Court, it was for the newly elected
him, including of having deprived the body to take steps in the right earnest to
members of the appellant Association(s) from amend the Constitution to bring it in line with
35 representing and participating in the election the National Sports Code on specified matters
process of the apex body, which they were 75 and then to conduct fresh elections on the
otherwise entitled to under the Constitution, basis of such amended Constitution. In other
as approved by this Court in terms of the words, the Constitution could be amended
order dated 4th December, 2017. All this only in accordance with law, which means by

the elected body after interacting with all the 40 recognition is accorded to it within six months. In
stakeholders and members. The Administrator other words, the right to form an Association is
had no power to amend the Constitution, conditioned by the existence of the recognition of the
much less unilaterally, except for the four said Association by the Government. If the
5 amendments approved by this Court, for Association obtains the recognition and continues to
which no further formality was required to be 45 enjoy it, Government servants can become members of
undertaken. The Administrator was obliged to the said Association; if the Association does not secure
conduct elections on the basis of such recognition from the Government or recognition granted
amended Constitution in terms of the order to it is withdrawn, Government servants must cease to
10 of this Court dated 4th December, 2017. No be the members of the said Association. That is the
more and no less. 50 plain effect of the impugned rule."
16. Appellants have rightly invited our 17. This dictum was quoted with approval by
attention to the decision of the Constitution the Constitution Bench to conclude that the
Bench of this Court in Smt. Damyanti right to form an Association included the
15 Naranga Vs. The Union of India and Ors. right to its continuance and any law altering
(1971) 1 SCC 678 1971 Indlaw SC 865, which 55 the composition of the Association
had approved the exposition in G.K. Ghose compulsorily will be a breach of the right to
and Anr. Vs. E.X. Joseph. (1963) Supp. 3 SCR form the Association. Thus understood, the
789 In that case, this Court had held that the steps taken by the Administrator beyond the
20 right to form an Association was conditioned scope of the authority bestowed upon him in
by the existence of the recognition of the said 60 terms of the order of this Court dated 4th
Association by the Government. In that case December, 2017, cannot be validated by the
the Court had held: Court but must be treated as non est in law. It
would have been a different matter if the
"It is not disputed that the Fundamental Rights Administrator had presented the additional
25 guaranteed by Article 19 can be claimed by 65 amendments before this Court and invited
Government servants. Article 33 which confers power this Court to approve the same after hearing
on the Parliament to modify the rights in their the concerned parties.
application, to the Armed Forces, clearly brings out
the fact that all citizens, including Government 18. Be that as it may, the question as to
30 servants, are entitled to claim the rights guaranteed by whether the amendments incorporated by the
Article 19. Thus, the validity of the impugned rule 70 Administrator are justified and proper or, so
has to be judged on the basis that the respondent and to speak, essential as per the exposition of this
his co-employees are entitled to form Associations or Court in Board of Control for Cricket Vs.
Unions. It is clear that Rule 4-B imposes a restriction Cricket Association of Bihar and Ors. (2016) 8
35 on this right. It virtually compels a Government SCC 535 2016 Indlaw SC 553, need not detain
servant to withdraw his membership of the Service 75 us. For, the further amendments to the
Association of Government servants as soon as Constitution could be effected only in the
recognition accorded to the said Association is manner provided by the Constitution of the
withdraw or if, after the Association is formed, no AAI including in terms of the order dated 4th

December, 2017. It is thus not necessary for 40 guided by the exposition in Sheela Barse Vs.
us to examine as to whether, in fact, there is Union of India and Ors. (1988) 4 SCC 226
any deviation or not from the dispensation 1988 Indlaw SC 747 (para 1), K. Murugan Vs.
predicated in the National Sports Code, as Fencing Association of India, Jabalpur and
5 contended by the respondents and the counsel Ors. (1991) 2 SCC 412 1991 Indlaw SC 543
appearing for the Administrator. 45 (para 12), and Board of Control for Cricket in
India Vs. Cricket Association of Bihar and
19. For the time being, without any hesitation, Ors, (2015) 3 SCC 251 2015 Indlaw SC 44
we are of the considered opinion that all steps (para 100-103) on which reliance has been
taken by the Administrator, including the placed by the counsel representing the newly
10 elections conducted by him on the basis of 50 elected body of AAI and the respondents, for
the Constitution (as amended by him), will issuing appropriate directions in a public
have to be treated as null and void and non interest litigation. In other words, the High
est in law. The parties will have to be relegated Court will examine all aspects of the matter
to the position as on 4th December, 2017, on their own merits in accordance with law.
15 consequent to incorporation of the four
amendments approved in terms of the same 55 21. We make it clear that the High Court may
order. After carrying out those four also consider the stand taken by the
amendments in the Constitution, the election appellant(s) and Union of India that the
will have to be conducted to constitute the decision of this Court in Board of Control for
20 new body, which would then take steps to Cricket (supra) (2016) 8 SCC 535 2016 Indlaw
introduce further amendments to the 60 SC 553 will be of no avail to the present case,
Constitution, if so required, to bring it in line because the National Sports Code takes
with the National Sports Code, after giving an within its fold fifty-two disciplines of sports
opportunity to all concerned. Only after the and Cricket is not one of the scheduled
25 amendments are accepted and approved, fresh sports. In other words, the dispensation to be
elections be conducted for constituting a new 65 followed must be in conformity with the
body in conformity with such duly amended National Sports Code in so far as AAI is
Constitution. concerned. We keep this issue open to be
considered at the appropriate stage.
20. In reference to certain apprehensions
30 expressed by the respondents due to reactions 22. In view of the above, we dispose of these
of the World Archery body, we must observe 70 appeals and all the applications on the
that the controversy cannot be adjudicated on following basis:
the basis of perception of the World Archery
body. Similarly, we do not wish to expand the (I) We declare that the Constitution of AAI is
35 scope of the present proceedings as the main amended only to the extent of four
writ petition is still pending before the High amendments referred to in the order dated 4th
Court of Delhi, where all issues can be 75 December, 2017, treating it as amended by an
deliberated and answered appropriately. While order of this Court, without requiring to
doing so, the High Court, no doubt, would be comply with any other formality. Rest of the

amendments are declared as null and void and amendment of the Constitution to bring it in
non est in law. The same, at best, may be 40 line with the National Sports Code and that
pursued as a proposal to be considered after process be taken to its logical end
the newly elected body initiates a procedure expeditiously.
5 for carrying out further amendments to the
Constitution of AAI as per law. (VI) Any issue arising from such amendment
may be raised before the High Court where
(II) We further declare that all steps taken by 45 the main matter i.e. Writ Petition (Civil)
the Administrator on the basis of the No.195/2010 is pending. That writ petition be
Administrator's Constitution, including the decided on its own merits and in accordance
10 elections conducted on 22nd December, 2018, with law.
are null and void and non est in law.
(VII) The Committee shall submit a
(III) All concerned parties are relegated to the 50 compliance report before the High Court
position as it stood after the incorporation of immediately after the newly elected body takes
the four amendments referred to in the order over the office but not later than six weeks
15 dated 4th December, 2017. Further, the High from today. Issues concerning the said report
Court-appointed Administrator stands may also be considered by the High Court on
relieved in terms of this order. The elected 55 their own merits in accordance with law.
body, in office, would continue to function
hereafter as a Committee of Administrators 23. The appeals are allowed in the
20 appointed in terms of this order. We deem it
aforementioned terms. All the applications are
appropriate to allow this Committee to disposed of.
continue in office as nothing adverse has been 24. While parting, we place on record our
brought to our notice for their continuation 60 word of appreciation for the services rendered
until the newly elected body takes over. by the High Court appointed Administrator
25 However, the Committee shall discharge only Mr. S.Y. Quraishi. We also appreciate the
routine and day-to-day activities and shall not sincere effort of respondent No.1 for the
take any policy decision or create new cause of sports and for introducing reforms in
financial liability, until the newly elected body 65 the functioning of the apex body (AAI).
takes over.
Appeals allowed
30 (IV) The election for constituting the new
elected body be completed by the
aforementioned Committee appointed by this
Court within four weeks from today and the
election process must be conducted strictly in
35 accordance with the Constitution as amended
in terms of order dated 4th December, 2017. 70
(V) The newly elected body, after taking over

the office, shall move a proposal for further
Messrs Zee Telefilms Limited and 35 Accountants which was engaged by Board in
Another relation to the tender floated on 07.08.2004.
Pursuant to or in furtherance of a notice
v inviting tender for grant of exclusive
Union of India and Others television rights for a period of four years,
40 several entertainment groups including the
5 Petitioners and the Fifth Respondent herein
gave their offers. For the purpose of this
Case No :W.P. (Civil) 541 of 2004 , (Along
matter, we would presume that both the
with S.L.P. (c) No. 20186 of 2004 )
Petitioners and the said Respondent were
Bench :S.B. Sinha, N. Santosh Hegde, B.P. 45 found eligible therefor. The First Petitioner
Singh, H.K. Sema, S.N. Variava gave an offer for an amount of US $
260,756,756.76 (INR equivalent to
10 Citation :AIR 2005 SC 2677 Rs.12,060,000,000/- (Rupees twelve thousand
sixty million only - @ INR 46.25/US $) Or
The Judgment was delivered by : S. B. Sinha,
50 US $ 281,189,189.19 (INR equivalent to
J.
Rs.13,005,000,000/- (Rupees thirteen
1. The matter calls for an authoritative thousand five million only - @ INR 46.25/US
pronouncement as to whether the Board of $).
15 Control for Cricket in India (Board) which is a
3. Upon holding negotiations with the First
cricket controlling authority in terms of the
55 Petitioner as also the Fifth Respondent, the
ICC Rules answers the description of "Other
Board decided to accept the offer of the
Authorities" within the meaning of Art. 12 of
former; pursuant to and in furtherance
the Constitution of India.
whereof a sum of Rs. 92.50 crores equivalent
20 BACKGROUND FACTS: to US $ 20 millions was deposited in the State
60 Bank of Travancore. In response to a draft
2. The First Petitioner is one of the largest letter of intent sent by the Board, the First
vertically integrated media entertainment Petitioner agreed to abide by the terms and
groups in India. The Board, the second conditions of offer subject to the conditions
Respondent herein, is a Society registered mentioned therein.
25 under the Tamil Nadu Societies Registration
Act which is said to be recognized by the 65 4. The Fifth Respondent in the meanwhile
Union of India, Ministry of Youth Affairs and filed a writ petition before the Bombay High
Sports. The Third and Fourth Respondents Court which was marked as Writ Petition (L)
are President and Secretary respectively of the No. 2462 of 2004. The parties thereto filed
30 Second Respondent. The Fifth Respondent, their affidavits in the said proceeding. In its
"ESPN Star Sports", known as "ESS" is a 70 affidavit, the Board justified its action in
partnership firm of the United States of granting the contract in favour of the First
America having a branch office in Singapore. Petitioner. The matter was taken up for
The Sixth Respondent is a firm of Chartered hearing on day to day basis. Arguments of the

Fifth Respondent as also the First Petitioner of or in the nature of mandamus commanding
had been advanced. On 21.9.2004, however, 40 upon the Board to act in tems of the decision
the Board before commencing its argument arrived on 5.9.2004.
stated that it purported to have cancelled the
5 entire tender process on the premise that no REFERENCE:
concluded contract was reached between the 7. By an order dated 27.9.2004, a three-Judge
parties as no letter of intent had therefor been Bench of this Court referred the matter to a
issued. The First Petitioner, however, raised a 45 Constitution Bench stating:
contention that such a concluded contract in
10 fact had been arrived at. The Fifth "These petitions involve a question related to the
Respondent, in view of the statements made interpretation of the Constitution of India which
by the counsel for the Board, prayed for will have to be heard by a Bench not less than 5
withdrawal of the writ petition, which was Judges as contemplated u/art. 145(3) of the
permitted. On the same day i.e. on 21.9.2004 50 Constitution. Place this matter before Hon'ble the
15 itself, the Board terminated the contract of the Chief Justice for further orders.
First Petitioner stating :
Since the matter involved requires urgent consideration,
"In the larger interest of the game of cricket and due to we request the Chief Justice to place this matter before
the stalemate that has been created in the grant of the Constitution Bench for further orders on
Television Rights for the ensuing Test Series owing to 55 28.9.2004.
20 litigation and as informed before the Hon'ble High
We direct the Attorney General to take notice on
Court at Bombay this day, the Board of Control for
behalf of first respondent. The petitioner shall take
Cricket in India (BCCI) hereby cancels the entire
steps to serve respondent no.6 dasti. The same shall be
process of tender by invoking Cl. 5.3, 5.4 (c) and 5.4
served today indicating that the matter will be heard
(d) of the invitation to tender (ITT) dated 7 August,
60 tomorrow."
25 2004, the terms of which were accepted and
acknowledged by you. The Security in the form of PRELIMINARY ISSUE:
Bank Guarantee and/or money deposited by you is
being returned immediately." 8. On commencement of hearing, Mr. K.K.
Venugopal, learned Senior Counsel appearing
WRIT PETITION: on behalf of the Second Respondent raised an
65 issue as regard maintainability of the writ
30 5. The order of the Board dated 21.9.2004
petition on the premise that the Board is not a
terminating the contract is in question in this
'State' within the meaning of Art. 12 of the
writ petition contending that the action on the
Constitution of India. The said issue having
part of the Board in terminating the contract
been treated as a preliminary issue, the learned
is arbitrary and, thus, violative of Art. 14 of
35 the Constitution of India. 70 9. counsel were heard thereupon. This
judgment is confined to the said issue alone.
6. In the writ petition, the Petitioners have,
inter alia, prayed for setting aside the said PLEAS OF THE PARTIES :
communication as also for issuance of a writ
Writ Petitioners : it is respectfully submitted, keeping in view the larger

public interest involved in telecasting of such a sport.
10. The factors pleaded by the writ petitioners 40 Surely, the regulatory body that controls solely and to
herein which would allegedly demonstrate that the exclusion of all others, the power to organize such
the Board is an authority that would be games, and to select a team that would participate in
5 subject to the constitutional discipline of Part such games is performing a public function that must
III of the Constitution of India, are as under : be discharged in a manner that complies with the
"a. It undertakes all activities in relation to Cricket 45 constitutional discipline of Part III of the
including entering into the contracts for awarding Constitution. If the events organized are public
telecast and broadcasting rights, for advertisement events, then it is submitted that the body that is the
10 revenues in the Stadium etc. controlling authority of such public events would surely
be subject to the discipline of Art. 14 and 19 of the
b. The team fielded by the BCCI plays as "Indian 50 Constitution.
Team" while playing One Day Internationals or Test
Matches it cannot be gainsaid that the team purports e. It is also submitted that even domestically, all
to represent India as a nation, and its wins are representative cricket can only be under its aegis. No
15 matters of national prestige. They wear uniform that representative tournament can be organized without the
carries the national flag, and are treated as sports permission of BCCI or its affiliates at any level of
ambassadors of India. 55 cricket.
c. The sportsmen of today are professionals who devote f. The BCCI and its affiliates are the recipients of
their life to playing the game. They are paid a State largesse, inter alia, in the form of nominal rent
20 handsome remuneration by the BCCI for their for stadia. It is submitted that the BCCI is performing
participation in the team. Thus, they are not amateurs one of the most important public functions for the
who participate on an honorary basis. Consequently 60 country with the authorization and recognition by the
they have a right u/art. 19(1)(g) to be considered for Govt. of India, is amenable to the writ jurisdiction of
participation in the game. The BCCI claims the power this Hon'ble Court under the provisions of the
25 to debar players from playing cricket in exercise of its Constitution of India."
disciplinary powers. Obviously, it is submitted, a body Union of India:
that purports to exercise powers that impinge on the
fundamental rights of citizens would constitute at least 65 11. Union of India contends that the Board is
an "authority" within the meaning of Art. 12 of the a State. In support of the said plea an affidavit
30 Constitution it can hardly contend that it has the affirmed by Deputy Secretary to the
power to arbitrarily deny players all rights to even be Government of India, Ministry of Youth
considered for participation in a tournament which Affairs and Sports has been filed. A large
they are included as a team from "India". 70 number of documents have also been filed to
show that the Board had all along been acting
d. This Hon'ble Court has already, by its interim as a recognized body and as regard
35 orders., directed a free to air telecast of the matches international matches has always been seeking
that were played in Pakistan in which a team selected its prior permission. The Board had also been
by the Respondent BCCI participated. This was done,

under the administrative control of the which have been consolidated and issued under the title
Government of India. "Sports India Operation Excellence" vide Circular
40 No.F.1-27/86-DESK-1 (SP-IV) dated 16th
12. Board : In support of its plea that it is not February, 1988 issued by the Department of Youth
a 'State', the Second Respondent in its Affairs and Sports, Government of India has neither
5 Counter Affidavit asserted : extended any financial assistance to the Board of
"(a) Board of Control of Cricket in India, the Control for Cricket in India nor has any relationship
Respondent No.2 is an autonomous non-profit 45 of whatsoever nature with it and no financial
making Association limited and restricted to its assistance is also extended for participation of any
Members only and registered under the Tamil Nadu tournament, competition or otherwise organized by the
10 Societies Registration Act. It is a private Respondent No.2. Copies of the said Affidavits are
organization whose objects are to promote the game of annexed hereto as Exhibits "A" and "B"
Cricket. Its functions are regulated and governed by its 50 respectively.
own Rules and Regulations independent of any statute (e) The Respondent no.2 organizes cricket matches
and are only related to its members. The Rules and and/or tournaments between the Teams of its
15 Regulations of the Respondent no.2 have neither any
Members and with the Teams of the members of
statutory force nor it has any statutory powers to make International Cricket Council (ICC) which is also an
rules or regulations having statutory force. 55 autonomous. Body dehors any Government control.
(b) The Working Committee elected from amongst its Matches that are organized are played at places either
members in accordance with its own Rules controls the belonging to Members in India or at the places of
20 entire affairs and management of the Respondent either belonging to its Members of ICC only. Only
No.2. There is no representation of the Government or when for the purpose of organizing any match or
any Statutory Body of whatsoever nature by whatever 60 tournament with foreign participants, the Respondent
form in the Respondent No.2. There exists no control no.2 requires normal and scheduled permissions from
of the Government over the function, finance, the Ministry of Sports for travel of foreign teams, it
25 administration, management and affairs of the obtains the same like any other private organization,
Respondent No.2. particularly in the subject matter of foreign exchange.
65 The Respondent No.2 is the only autonomous sporting
(c) The Respondent No.2 does not discharge or body which not only does not obtain any financial
perform any public or statutory duty. grants but on the contrary earns foreign exchange.
(d) The Respondent no.2 receives no grant of assistance (f) Organizing Cricket Matches and/or Tournaments
30 in any form or manner from the Government in this between the Teams of the Members of the Respondent
context. It may be stated that in a writ petition in the 70 No.2 and/or with the co-members of International
case of Rahul Mehra vs. Union of India 2004 Cricket Council cannot be said to be a facet of public
Indlaw DEL 813 in the Hon'ble High Court at function or government in character. No monopoly
Delhi. "Union of India" filed Affidavits stating status has been conferred upon the Respondent No.2
35 categorically that there is no Government control of any either by Statute or by the Government. Any other
nature upon the Board of Control for Cricket in India 75 body could organize any matches on its own and
and as it does not follow the Government Guidelines neither the Respondent no.2 nor the Government could

oppose the same. As a matter of fact, number of Central Government gives any monetary grant
cricket matches including International matches are 40 nor nominates any member in the Governing
played in the Country which have nothing to do with Body of the Board nor has anything to do
the Respondent No.2. Respondent No.2 has no with its internal affairs. It was pointed out by
5 monopoly over sending teams overseas for the game of the learned counsel that even the Union of
cricket and to control the entire game of cricket in India had agreed before the Bombay High
India. Matches which are sanctioned or recognized by 45 Court that the Board had the exclusive
the ICC are only known as Official Test matches or telecasting rights as owner of the events. The
One day International Matches. Respondent no.2 is Board furthermore does not exercise any
10 entitled to invite teams of other members of ICC or sovereign or governmental functions; Mr.
send teams to participate in such matches by virtue of Venugopal would argue that furthermore the
its membership of ICC." 50 Board has not even been recognized by the
Union of India nor has it any role to play as
ESS : regard framing of its rules and regulations. Dr.
13. Although, as noticed hereinbefore, ESS A.M. Singhvi, learned Senior Counsel
15 itself filed a writ petition before the Bombay appearing on behalf of the Third Respondent
High Court on the ground that the same was 55 herein, would supplement the arguments of
violative of Art. 14 of the Constitution, it now Mr. Venugopal contending that the activity of
contends that although a writ petition u/art. a body like Board does not involve any public
226 of the Constitution before the High Court duty or public function and although its action
20 would be maintainable but not one u/art. 32 is public in nature, the same would not
thereof as the Board is not a 'State'. 60 amount to a governmental action. Reliance, in
this connection, has been placed on R. Vs.
SUBMISSIONS OF THE LEARNED Football Association Ltd, Ex Parte Football
COUNSEL : League Ltd. [1993 (2) AER 833] and R. vs.
Disciplinary Committee of the Jockey Club,
14. Mr. K.K. Venugopal, the learned senior
65 ex parte Aga Khan [1993 (2) AER 853 : [1993]
25 counsel appearing in support of the
1 W.L.R. 909]. The leaned counsel has also
preliminary issue would submit that as the
drawn our attention to a decision of this
Board does not come within the purview of
Court in Federal Bank Ltd. vs. Sagar Thomas
any of the six legal tests laid down by this
and Others [(2003) 10 SCC 733 2003 Indlaw
Court in Pradeep Kumar Biswas vs. Indian
70 SC 806]. According to Dr. Singhvi, there
30 Institute of Chemical Biology and Others
exists a distinction between Arts. 32 and 226
[(2002) 5 SCC 111 2002 Indlaw SC 322], it
of the Constitution of India. Reliance in this
would not be a 'State'. Our attention, in this
behalf has been placed on a decision of this
behalf, has been drawn to the said judgment .
Court in Andi Mukta Sadguru Shree Muktajee
It was contended that the Board is an
75 Vandas Swami Suvarna Jayanti Mahotsav
35 autonomous body and the Central
Smarak Trust and Others vs. V.R. Rudani and
Government does not have any control there
Others [(1989) 2 SCC 691 1989 Indlaw SC
over either financially or administratively or
589].
functionally. It was urged that neither the
15. Mr. Soli J. Sorabjee, the learned Senior 40 dimension of public entertainment. When a
Counsel appearing on behalf the fifth body like the Board has received recognition
Respondent, would contend that the nature of from the Union of India to allow it to
the function of the concerned authority plays represent India as a country, its character
5 an important role in determining the question must be held to have changed from private
and only where the function is governmental 45 body to a public authority. It was submitted
in nature or where the authority is vested that the players put on colours of National
under a statute, it would attract the definition Flag on their attire. Because of the nature of
of "other authorities" within the meaning of its actions the International Cricket Council
10 Art. 12 of the Constitution and not otherwise. has recognized the Board not in its capacity as
The learned counsel would, however, submit 50 a cricket playing club but as a representative
that in Aga Khan (supra), the Court of Appeal of India, a cricket playing country. By its
has accepted that there may be some cases disciplinary action, Mr. Salve would argue, the
where the judicial review would be Board may debar a player from representing
15 maintainable. Drawing our attention to a the country as a result whereof his
decision of this Court in G. Bassi Reddy vs. 55 fundamental right u/art. 19(1)(g) of the
International Crops Research Institute and Constitution of India would be affected. He
Another [(2003) 4 SCC 225 2003 Indlaw SC would submit that the Board, therefore, is not
122], the learned counsel would urge that an autonomous body discharging a private
20 Board does not fulfil the tests laid down function only and in fact it deals with sporting
therein. 60 events of the country. The learned counsel
would argue that the Board acts strictly in
16. Mr. Harish Salve, learned Senior Counsel terms of the foreign policy of the country as it
appearing on behalf of the Writ Petitioners, refused to recognize a player who played in
on the other hand, would take us through the South Africa, as apartheid was being practiced
25 Memorandum and Articles of Association of 65 therein which was consistent with India's
the Board as also the rules and regulations foreign policy. It was further submitted that
framed by it and contend that from a perusal the cricket match between India and Pakistan
thereof it would be manifest that it exercises could be held only with the permission of the
extensive power in selecting players for the Union of India as and when the relationship
30 Indian National team in the international
70 between the two countries improved.
events. The Board, also exercises stringent
disciplinary powers over players, umpires, 17. Mr. Salve, therefore, submits that the
members of the team and other officers. It is Board is a 'State' within the meaning of Art.
the contention of Mr. Salve that the activities 12 of the Constitution of India as:
35 of the Board in effect and substance are
governmental functions in the area of sports. (i) it regulates cricket;
An exclusive right has been granted to it to 75 (ii) It has a virtual monopoly;
regulate the sport in the name of the country
resulting in exercise of functions of larger (iii) it seeks to put restrictions on the
fundamental rights of the players and umpires
to earn their livelihood as envisaged u/art. Indlaw SC 538] while referring to an

19(1)(g) of the Constitution of India; amendment made in U.K. in relation to a
40 provision which was in pari materia with S.
(iv) The cricket events managed by the third 118 of the Indian Succession Act, 1925, this
Respondent have a definite concept, Court observed:
5 connotation and significance which have a
bearing on the performance of individual "...The constitutionality of a provision, it is trite, will
players as also the team as a national team have to be judged keeping in view the interpretive
representing the country in the entire field of 45 changes of the statute effected by passage of time."
cricket.
20. Referring to the changing scenario of the
10 18. Mr. Mohan Parasaran, learned counsel law and having regard to the declaration on
appearing on behalf of Union of India would the right to development adopted by the
contend that the functions of the Board are of World Conference on Human Rights and Art.
public importance and closely related to 50 18 of the United Nations Covenant on Civil
governmental functions. Functions of the and Political Rights, 1966, this Court held:
15 Board, the learned counsel would urge, also
control free speech rights of citizens within a "It is trite that having regard to Art. 13(1) of the
public forum which is essentially a Constitution, the constitutionality of the impugned
governmental function. Reference in this legislation is required to be considered on the basis of
connection has been made to Daniel Lee Vs. 55 laws existing on 26th January, 1950, but while doing
20 Vera Katz 276 F.3d 550.
so the court is not precluded from taking into
consideration the subsequent events which have taken
CONSTITUTIONAL DEVELOPMENT: place thereafter. It is further trite that that the law
although may be constitutional when enacted but with
19. Our Constitution is an ongoing document 60 passage of time the same may be held to be
and, thus, should be interpreted liberally. unconstitutional in view of the changed situation.
Interpretation of Article 12, having regard to
25 the exclusive control and management of Justice Cardoze said :
sport of cricket by the Board and enormous
power exercised by it calls for a new "The law has its epochs of ebb and flow, the flood tides
approach. The Constitution, it is trite, should are on us. The old order may change yielding place to
be interpreted in the light of our whole 65 new; but the transition is never an easy process".
30 experience and not merely in that of what was Albert Campus stated :
the state of law at the commencement of the
Constitution. "The wheel turns, history changes". Stability and
change are the two sides of the same law-coin. In their
[See Missouri vs. Holland (252 US 416 (433) pure form they are antagonistic poles; without stability
and Kapila Hingorani vs. State of Bihar 70 the law becomes not a chart of conduct, but a gare of
35 [(2003) 6 SCC 1 2003 Indlaw SC 483]. chance: with only stability the law is as the still waters
Furthermore in John Vallamattom and Anr. in which there is only stagnation and death."
Vs. Union of India [JT 2003 (6) SC 37 2003

In any view of the matter even if a provision was not This means that in its application on any date, the
unconstitutional on the day on which it was enacted or language of the Act, though necessarily embedded in its
the Constitution came into force, by reason of facts own time, is nevertheless to be construed in accordance
emerging out thereafter, the same may be rendered 40 with the need to treat it as current law."
5 unconstitutional."
At page 764, it is commented :
21. In Liverpool & London S.P. & I
Association Ltd. vs. M.V. Sea Success I and "In construing an ongoing Act, the interpreter is to
Another, (2004) 9 SCC 512 2003 Indlaw SC presume that Parliament intended the Act to be
1446, this Court observed: applied at any future time in such a way as to give
45 effect to the true original intention. Accordingly, the
10 "Referring to Motor General Traders and Another vs. interpreter is to make allowances for any relevant
State of Andhra Pradesh and Others [(1984) 1 changes that have occurred, since the Act's passing, in
SCC 222 1983 Indlaw SC 256], Rattan Arya law, social conditions, technology, the meaning of
and Others vs. State of Tamil Nadu and Another words, and other matters. Just as the US
[(1986) 3 SCC 385 1986 Indlaw SC 417] and 50 Constitution is regarded as 'a living Constitution',
15 Synthetics and Chemicals Ltd. and Others vs. State of so an ongoing British Act is regarded as 'a living
U.P. and Others [(1990) 1 SCC 109 1989 Act'. That today's construction involves the
Indlaw SC 286], this Court held: " supposition that Parliament was catering long ago for
a state of affairs that did not then exist is no argument
"There cannot be any doubt whatsoever that a law 55 against that construction. Parliament, in the wording
which was at one point of time constitutional may be of an enactment, is expected to anticipate temporal
20 rendered unconstitutional because of passage of time. developments. The drafter will try to foresee the future,
We may note that apart from the decisions cited by and allow for it in the wording."
Mr. Sanghi, recently a similar view has been taken in
Kapila Hingorani Vs. State of Bihar [JT 2003 (5) LEGISLATIVE POWERS :
SC 1 2003 Indlaw SC 483] and John
60 24. Although we will advert to various rival
25 Vallamattom and Anr. Vs. Union of India [JT
2003 (6) SC 37 2003 Indlaw SC 538]." contentions raised at the Bar at some details a
litter later but suffice it to notice at this stage
22. Constitution of India is an ongoing that encouragement of games and sports is
document. It must be interpreted accordingly. State function in terms of Entry 33 of List II
65 of the Seventh Schedule of the Constitution
23. In Francis Bennion's 'Statutory of India which reads thus:
30 Interpretation', Fourth Edition at page 762, it
is stated : "33. Theaters and dramatic performances; cinemas
subject to the provisions of entry 60 of List 1; sports,
"It is presumed that Parliament intends the court to entertainments and amusements."
apply to ongoing Act a construction that continuously
updates its wording to allow for changes since the Act 70 25. The State by reason of a legislative action
35 was initially framed (an updating construction). While cannot confer on it extra territorial
it remains law, it is to be treated as always speaking. jurisdiction in relation to sports,

entertainment etc. Education, however, is in 40 be placed in the same scale as the business
Concurrent List being Item No.25 of List III. organizations whose only intention is to make as large
Sport is considered to be a part of Education a profit as can be made by telecasting the game."
(within its expanded meaning). Sport has been
5 included in the Human Resource [Emphasis supplied]
Development as a larger part of education. It was held that sport is a form of expressive
The Ministry of Youth Affairs and Sports was 45 conduct.
earlier a department of the Ministry of Human
Resource Development. Now a separate 27. We may notice at this juncture that the
10 Ministry of Youth Affairs and Sports has Union of India in exercise of its executive
come into being, in terms of the Allocation of functions in terms of the Allocation of
Business Rules. Business Rules framed u/art. 77 of the
50 Constitution of India created a separate
26. In Secretary, Ministry of Information & Ministry of Youth Affairs and Sports for the
Broadcasting, Government of India and said purpose. One of the objects of the
15 Others etc. vs. Cricket Association of Bengal
and Others etc. [(1995) 2 SCC 161 1995 28. Ministry is to work in close coordination
Indlaw SC 2353], this Court held : with national federations that regulate sports.
55 Keeping in view the fact that the Union of
"It may be true that what is protected by Art. India is required to promote sports
19(1)(a) is an expression of thought and feeling and throughout India, it, as of necessity is required
20 not of the physical or intellectual prowess or skill. It is to coordinate between the activities of
also true that a person desiring to telecast sports events different States and furthermore having regard
when he is not himself a participant in the game, does 60 to the International arena, it is only the Union
not seek to exercise his right of self-expression. of India which can exercise such a power in
However, the right to freedom of speech and expression terms of Entry 10, List I of the Seventh
25 also includes the right to educate, to inform and to Schedule of the Constitution of India and it
entertain and also the right to be educated, informed may also be held to have requisite legislative
and entertained. The former is the right of the 65 competence in terms of Entry 97, List I of the
telecaster and the latter that of the viewers. The right Seventh Schedule of the Constitution of India.
to telecast sporting event will therefore also include the ARTICLE 12:
30 right to educate and inform the present and the
prospective sportsmen interested in the particular game 29. Before adverting to the core issues at
and also to inform and entertain the lovers of the some length we may take a look at Art. 12 of
game. Hence, when a telecaster desires to telecast a 70 the Constitution of India which reads as
sporting event, it is incorrect to say that free- speech under :
35 element is absent from his right. The degree of the
"12. In this part, unless the context otherwise
element will depend upon the character of the telecaster
requires, "the State" includes the Government and
who claims the right. An organizer such as the BCCI
Parliament of India and the Government and the
or CAB in the present case which are indisputably
75 Legislature of each of the States and all local or other
devoted to the promotion of the game of cricket, cannot

authorities within the territory of India or under the (i) The Corporations and the Societies created
control of the Government of India." 35 by the State for carrying on its trading
activities in terms of Art. 298 of the
30. In this Article, the 'State' has not been Constitution wherefor the capital,
defined. It is merely an inclusive definition. It infrastructure, initial investment and financial
5 includes all other authorities within the aid etc. are provided by the State and it also
territory of India or under the control of the 40 exercises regulation and control thereover.
Government of India. It does not say that
such other authorities must be under the (ii) Bodies created for research and other
control of the Government of India. The developmental works which is otherwise a
10 word 'or' is disjunctive and not conjunctive. governmental function but may or may not be
a part of the sovereign function.
31. The expression "Authority" has a definite
connotation. It has different dimensions and, 45 (iii) A private body is allowed to discharge
thus, must receive a liberal interpretation. To public duty or positive obligation of public
arrive at a conclusion, as to which "other nature and furthermore is allowed to perform
15 authorities" could come within the purview of regulatory and controlling functions and
Article 12, we may notice the meaning of the activities which were otherwise the job of the
word "authority". 50 government.
32. The word "Other Authorities" contained 35. There cannot be same standard or
in Art. 12 is not to be treated as ejusdam yardstick for judging different bodies for the
20 generis. purpose of ascertaining as to whether it fulfills
the requirements of law therefor or not.
33. In Concise Oxford English Dictionary,
10th Edition, the word 'authority' has been 55 In Pradeep Kumar Biswas 2002 Indlaw SC
defined as under : 322 (supra), a Seven-Judge Bench held :
"1. the power or right to give orders and enforce "That an "inclusive" definition is generally not
25 obedience. exhaustive is a statement of the obvious and as far as
Art. 12 is concerned, has been so held by this Court
2. a person or organization exerting control in a 60 (Ujjam Bai v. State of U.P., AIR 1962 SC 1621 :
particular political or administrative sphere. (1963) 1 SCR 778 1961 Indlaw SC 465 at 968).
3. the power to influence others based on recognized The words "State" and "authority" used in Art. 12
knowledge or expertise." therefore remain, to use the words of Cardozo
(Benjamin Cardozo : The Nature of the Judicial
30 34. Broadly, there are three different concepts 65 Process), among "the great generalities of the
which exist for determining the question Constitution" the content of which has been and
which fall within the expression "other continues to be supplied by courts from time to time."
authorities".
[See also Black Diamond Beverages and
Another vs. Commercial Tax Officer, Central

Section, Assessment Wing, Calcutta and 40 alone which would enable a body to become a
Others (1998) 1 SCC 458 1997 Indlaw SC State but also when a body performs
1515] governmental functions or quasi-
governmental functions as also when its
36. What is necessary is to notice the business is of public importance and is
5 functions of the Body concerned. A 'State' has 45 fundamental for the life of the people. For the
different meanings in different context. In a said purpose, we must notice that this Court
traditional sense, it can be a body politic but in expanding the definition of State did not
in modern international practice, a State is an advisedly confine itself to the debates of
organization which receives the general Constitutional Assembly. It considered each
10 recognition accorded to it by the existing 50 case on its own merit. In Sukhdev Singh 1975
group of other States. Union of India Indlaw SC 107 (supra), Mathew, J. stated that
recognizes the Board as its representative. The even big industrial houses and big trade
expression "other authorities" in Art. 12 of unions would come in the purview thereof.
the Constitution of India is 'State' within the While doing so the courts did not lose sight of
15 territory of India as contradistinguished from 55 the difference between the State activity and
a State within the control of the Government the individual activity. This Court took into
of India. The concept of State under Art. 12 is consideration the fact that new rights in the
in relation to the fundamental rights citizens have been created and if any such
guaranteed by Part-III of the Constitution and right is violated, they must have access to
20 Directive Principles of the State Policy 60 justice which is a human right. No doubt,
contained in Part-IV thereof. The contents of there is an ongoing debate as regard the effect
these two parts manifest that Art. 12 is not of the globalization and/or opening up of
confined to its ordinary or constitutional market by reason of liberalization policy of
sense of an independent or sovereign meaning the Government as to whether that the notion
25 so as to include within its fold whatever 65 of sovereignty of the State is being thereby
comes within the purview thereof so as to eroded or not but we are not concerned with
instill the public confidence in it. the said question in this case. "Other
37. The feature that the Board has been authorities", inter-alia, would be there which
allowed to exercise the powers enabling it to inter alia function within the territory of India
30 trespass across the fundamental rights of a 70 and the same need not necessarily be the
citizen is of great significance. In terms of the Government of India, the Parliament of India,
Memorandum of Association even the States the Government of each of the States which
are required to approach the Board for its constitute the Union of India or the legislation
direction. If the Constitution Bench judgment of the States.
35 of this Court in Sukhdev Singh & Ors. vs. 75 38. Art. 12 must receive a purposive
Bhagatram Sardar Singh [(1975) 1 SCC 421 interpretation as by reason of Part III of the
1975 Indlaw SC 107] and development of law Constitution a charter of liberties against
made therefrom is to be given full effect,, it is oppression and arbitrariness of all kinds of
not only the functions of the Government

repositories of power have been conferred the Jaipur Vs. Mohan Lal & Ors. - (1967) 3 SCR
object being to limit and control power 377 1967 Indlaw SC 23.
wherever it is found. A body exercising
significant functions of public importance 40 41. This court, however, did not stop there
5 would be an authority in respect of these and newer and newer principles were evolved
functions. In those respects it would be same as a result whereof different categories of
as is executive government established under bodies came to be held as State.
the Constitution and the establishments of 42. The concept that all public sector
organizations funded or controlled by the 45 undertakings incorporated under the Indian
10 Government. A traffic constable remains an Companies Act or Societies Registration Act
authority even if his salary is paid from the or any other Act for answering the description
parking charges inasmuch as he still would of State must be financed by the Central
have the right to control the traffic and Government and be under its deep and
anybody violating the traffic rules may be 50 pervasive control has in the past three decades
15 prosecuted at his instance. undergone a sea change. The thrust now is
39. It is not that every body or association not upon the composition of the body but the
which is regulated in its private functions duties and functions performed by it. The
becomes a 'State'. What matters is the quality primary question which is required to be
and character of functions discharged by the 55 posed is whether the body in question
20 body and the State control flowing therefrom. exercises public function.
In Daniel Lee (supra), it was held: 43. In Sukhdev Singh 1975 Indlaw SC 107
"The OAC's functionally exclusive regulation of free (supra), a Constitution Bench of this Court
speech within a public forum, is a traditional and opined that the expression 'other authority'
60 should not be read on the touchstone of the
exclusive function of the State"
principle of 'ejusdem generis'.
25 DEVELOPMENT OF LAW:
44. Mathew, J. in his concurring but separate
40. The development of law in this field is judgment raised a question as to for whose
well-known. At one point of time, the benefit the Corporations were carrying on the
companies, societies etc. registered under the 65 business and in answering the same came to
Indian Companies Act and Societies the conclusion that the Respondents therein
30 Registration Act were treated as separate were 'States' within the meaning of Art. 12 of
corporate entities being governed by its own the Constitution of India. .
rules and regulations and, thus, held not to be
'States' although they were virtually run as 45. It was observed that even big companies
department of the Government, but the 70 and trade unions would answer the said
35 situation has completely changed. Statutory description as they exercise enormous powers.
authorities and local bodies were held to be 46. In UP State Cooperative Land
States in Rajasthan State Electricity Board, Development Bank Ltd. v. Chandra Bhan

Dubey & Ors. [AIR 1999 SC 753 1998 Indlaw It was opined :
SC 2070], the land development bank was
held to be a State. This Court upon analyzing "26. The law exists to serve the needs of the society
various provisions of Act and the rules framed 40 which is governed by it. If the law is to play its allotted
5 thereunder observed:
role of serving the needs of the society, it must reflect the
ideas and ideologies of that society. It must keep time
"20 It is not necessary for us to quote various other with the heartbeats of the society and with the needs
sections and rules but all these provisions and aspirations of the people. As the society changes,
unmistakably show that the affairs of the appellant 45 the law cannot remain immutable. The early
are controlled by the State Government though it nineteenth century essayist and wit, Sydney Smith,
10 functions as a cooperative society and it is certainly an said : 'When I hear any man talk of an unaltelrable
extended arm of the State and thus an instrumentality law, I am convinced that he is an unalterable fool."
of the State or authority as mentioned under Art. 12 The law must, therefore, in a changing society march
of the Constitution." 50 in tune with the changed ideas and ideologies"
However, when the law provides for a general 48. Pradeep Kumar Biswas 2002 Indlaw SC
15 control over a business in terms of a statute 322 (supra) and Bassi Reddy 2003 Indlaw SC
and not in respect of the body in question, it 122 (supra) were recently considered in
would not be a 'State'. [See Federal Bank Ltd. Gayatri De vs. Mousumi Cooperative
2003 Indlaw SC 806 (supra) K.R. Anitha and 55 Housing Society Ltd. and Others [(2004) 5
Others vs. Regional Director, ESI SCC 90 2004 Indlaw SC 344], wherein a
20 Corporation and Another [(2003) 10 SCC 303 mandamus was issued against a Cooperative
2003 Indlaw SC 754] and Bassi Reddy 2003 Society on the ground that the order
Indlaw SC 122 (supra)]. impugned therein was issued by an
60 "administrator" appointed by the High Court
47. Madon, J. in Central Inland Water who had also no statutory role to perform.
Transport Corporation Limited and Another
25 Vs. Brojo Nath Ganguly and Another [(1986) 49. In Chain Singh vs. Mata Vaishno Devi
3 SCC 156 1986 Indlaw SC 645] questioned : - Shrine Board & Anr. [2004 (8) SCALE 348
2004 Indlaw SC 830], it was contended that a
"Should then our courts not advance with the times ? 65 religious board was a 'State'. Although Mata
Should they still continue to cling to outmoded concepts Vaishno Devi Shrine Board was constituted
and outworn ideologies ? Should we not adjust our under a statute, it was per se not a State actor.
30 thinking caps to match the fashion of the day? Should It was observed that the decisions of this
all jurisprudential development pass us by, leaving us Court in Bhuri Nath and Others vs. State of J
floundering in the sloughs of 19th century theories ? 70 & K and Others [(1997) 2 SCC 745 1997
Should the strong be permitted to push the weak to the Indlaw SC 955] requires reconsideration in the
wall ? Should they be allowed to ride roughshod over light of the principles laid down in Pradeep
35 the weak? Should the courts sit back and watch
Kumar Biswas 2002 Indlaw SC 322 (supra).
supinely while the strong trample underfoot the rights
of the weak ?" 50. In Virendra Kumar Srivastava vs. U.P.
75 Rajya Karmachari Kal. Nigam and Another
[2004 (9) SCALE 623 2004 Indlaw SC 993], a 40 "Mr. Harish N. Salve, learned senior counsel
Division Bench of this Court while applying appearing for the petitioner in SLP(C) No. 24266-
the tests laid down in Pradeep Kumar Biswas 24268/2004 and Mr. Arun Jaitley, learned senior
2002 Indlaw SC 322 (supra) observed that counsel appearing for the petitioners in SLP(C) Nos.
5 there exists a distinction between a 'State' 24413/2004 and 24661-24663/2004 state that
based on its being a statutory body and a one 45 the petitioners will be advised to approach the High
based on the principles propounded in the Court to seek clarification of exactly what kind of
case of Ajay Hasia & Ors. vs. Khalid Mujib disclosure the High Court requires them to make. We
Sehravardi & Ors. [(1981) 1 SCC 722 1980 record the statement and dismiss the special leave
10 Indlaw SC 244] Recently a Division Bench of petitions giving liberty to the petitioners to approach
the Rajasthan High Court in Santosh Mittal 50 the High Court for that purpose. In case the
Vs. State of Rajasthan & Ors. (since reported petitioners feel aggrieved by the order passed by the
in 2004 (10) SCALE J- 39) issued a direction High Court on the clarification application, the
to Pepsi Company and Coca-Cola and other dismissal of these special leave petitions will not come
15 manufacturers of carbonated beverages or in their way in challenging the said order.
soft drinks to disclose the composition and
contents of the product including the 55 We may, however, place on record that the learned
presence of the pesticides and chemicals on senior counsel for the petitioners intended to argue
the bottle, package or container, as the case larger constitutional issues touching Arts. 19 and 21
20 may be, observing : of the Constitution which have not been raised on a
second thinking and we leave them open to be decided
"In view of the aforesaid discussion we hold that in 60 in some other appropriate case.
consonance with the spirit and content of Art.
19(1)(g) and 21 of the Constitution the Though the special leave petitions are dismissed, but
manufacturers of beverages namely Pepsi-Cola & the operation of the order dated 3.11.2004 passed by
25 Coca-Cola and other manufacturers of beverages and
the High Court suspending the operation of its
soft drinks, are bound to clearly specify on the bottle or judgment for six weeks, is extended by another two
package containing the carbonated beverages or soft 65 weeks from today."
drink, as the case may be, or on a label or a wrapper 52. The expansion in the definition of State is
wrapped around it, the details of its composition and not to be kept confined only to business
30 nature and quantity of pesticides and chemicals, if any, activities of Union of India or other State
present therein." Governments in terms of Art. 298 of the
51. Pepsi Company and Coca-Cola are 70 Constitution of India but must also take
multinational companies. They are business within its fold any other activity which has a
concerns but despite the same this Court in direct influence on the citizens. The
35 Hindustan Coca-Cola Beverages (P) Ltd. vs. expression "education" must be given a
Santosh Mittal & Ors. [2004 (10) SCALE 360 broader meaning having regard to Article 21A
2004 Indlaw SC 1819] by an order dated 75 of the Constitution of India as also Directive
6.12.2004 dismissed the Special Leave Principles of the State Policy. There is a need
Petitions, stating: to look into the governing power subject to

the fundamental Constitutional limitations Another Vs. State of Karnataka and Others,
which requires an expansion of the concept of (2003) 6 SCC 697 2003 Indlaw SC 611]
State action.
59. Tests or the nature thereof would vary
53. Constitutions have to evolve the mode for depending upon the fact of each case.
5 welfare of their citizens. Flexibility is the
hallmark of our Constitution. The growth of 40 60. We must, however, remember that only
the Constitution shall be organic, the rate of because another authority would be an agency
change glacial. or instrument of the State, the same would
not mean that there exists a relationship of
54. A school would be a State if it is granted "Principal and Agent" between the
10 financial aid. 45 Government of the State and the Corporation
or the society. Only its actions of promoting
55. An association performing the function of the sport making a law of cricket for the entire
Housing Board would be performing a public country, representing the country in
function and would be bound to comply with international forum, appointing India's
Human Rights Act, 1998. [See Poplar 50 representative and the all pervasive control
15 Housing and Regeneration Community over players, managers and umpires are State
Association Ltd. Vs. Donoghue [2002] Q.B. actions. Thus, all autonomous bodies having
48]. But an old age house run by a private some nexus with the Government by itself
body may not. [See R (on the application of would not bring them within the sweep of the
Heather and others) v. Leonard Cheshire 55 expression 'State'. Each case must be
20 Foundation and another (2002) 2 All ER 936 :
determined on its own merits.
[2002] H.R.L.R. 30] A school can be run by a
private body without any State patronage. It is 61. Let us for determining the question have a
permissible in law because a citizen has look at the relevant decisions rendered in
fundamental right to do so as his occupation different jurisdictions.
25 in terms of Arts. 19(1)(g) and 26.
60 INDIAN CASE LAW:
But once a school receives State patronage, its
activities would be 62. In K.S. Ramamurthi Reddiar Vs. The
Chief Commissioner, Pondicherry & Anr.
56. State activities and thus would be subject [(1964) 1 SCR 656 1963 Indlaw SC 102], it
to judicial review. Even otherwise was held that the expressions "under the
65 control of the Government of India" do not
30 57. it is subjected to certain restrictions as
qualify the word "territory" and the
regard its right to spend its money expressions "under the control of the
58. out of the profit earned. [See T.M.A. Pai Government of India" and "within the
Foundation and Others vs. State of Karnataka territory of India" are distinct.
and Others (2002) 8 SCC 481 2002 Indlaw SC
35 1375 and Islamic Academy of Education and

Mathew, J. in Sukhdev Singh 1975 Indlaw SC Edison Company [42 L.Ed. (2d) 477] as
107 (supra) referring to various authorities against the majority opinion of Rehnquist, J.
observed: 40 which was specifically noticed in M.C. Mehta
and Another vs. Union of India and Others
"In so far as public corporations fulfill public tasks on [(1987) 1 SCC 395 1986 Indlaw SC 259],
5 behalf of government, they are public authorities and as
such subject to control by government." 67. In Air India Statutory Corporation and
Others Vs. United Labour Union and Others
63. The said principles were reiterated in 45 [(1997) 9 SCC 377 1996 Indlaw SC 1670],
Ramana Dayaram Shetty Vs. International (since overruled on another point) in Steel
Airport Authority of India and Others [(1979) Authority of India Ltd. and Others Vs.
10 3 SCC 489 1979 Indlaw SC 16] laying down National Union Waterfront Workers and
the factors which would enable the Court to Others [(2001) 7 SCC 1 2001 Indlaw SC
determine as to whether a company or a 50 20484] this Court deliberated upon the
society would come within the purview of distinction between the Private Law and
"other authorities". Public Law. .
15 64. In Ajay Hasia 1980 Indlaw SC 244 (supra),
……
Sukhdev Singh 1975 Indlaw SC 107 (supra)
and Ramana Dayaram Shetty 1979 Indlaw SC ANALYSIS OF CASE LAW:
16 (supra) were noticed with approval. . See
55 99. We have noticed hereinbefore that the
also Som Prakash Rekhi vs. Union of India
20 and another [(1981) 1 SCC 449 1980 Indlaw
Courts of Scotland and New Zealand differ
SC 227] with the English and American majority
approach.
65. The conflict between Ajay Hasia 1980
Indlaw SC 244 (supra) and Sabhajit Tewary vs. 100. The approach of the court as regard
Union of India and Others [(1975) 1 SCC 485 60 judicial review has undergone a sea change
25 1975 Indlaw SC 106] has been resolved in
even in England after the Human Rights Act,
Pradeep Kumar Biswas 2002 Indlaw SC 322 1998 came into force as doctrine of
(supra) by overruling Sabhajit Tewary 1975 incompatibility is being applied more
Indlaw SC 106 (supra) and, thus, there does frequently even in determining the validity of
not exist any conflict. The principles laid 65 legislations.
30 down in Ajay Hasia 1980 Indlaw SC 244 101. The English Courts despite their
(supra) are not rigid ones and, thus, it is reluctance to exercise power of judicial review
permissible to consider the question from over the activities of sports association
altogether a different angle. noticed in the context of Human Rights Act,
66. It is interesting to note that Bhagwati, J. in 70 1998 that there are public bodies which are
35 Ramana Dayaram Shetty 1979 Indlaw SC 16 hybrid in nature who have functions of public
(supra) followed the minority opinion of and private nature but they would be public
Douglas, J. in Jackson Vs. Metropolitan authorities. [See Donoghue (supra)] However,

in San Francisco Arts & Athletics, Inc. (supra) question has since been considered from a
the minority view clearly states that the 40 slightly different angle, viz., when such action
governmental function of the USOC in that affects the human right of the person
they represent the nation. Justice Blackmun, J. concerned holding that the same would be
5 had agreed with the said view. The minority public function. [See Donoghue (supra)]. If
view in Jackson (supra) was noticed in the action of the Board impinges upon the
Ramana Dayaram Shetty 1979 Indlaw SC 16 45 fundamental or other constitutional rights of a
(supra). We agree with the said view. citizen or if the same is ultra vires or by
reason thereof an injury or material prejudice
102. It is interesting to note that even English is caused to its member or a person connected
10 Courts have imposed high standard of fairness
with cricket, judicial review would lie. Such
in conduct in relation to such bodies in sharp 50 functions on the part of the Board being
contrast to purely private bodies. As noticed public function, any violation of or departure
hereinbefore, availability of judicial review has or deviation from abiding by the rules and
been accepted by the English courts. [See regulation framed by it would be subject to
15 M.C. Mehta 1986 Indlaw SC 259 (supra)] judicial review. Time is not far off when
103. The right of Indian players, having regard 55 having regard to globalization and
to the observations made in Greig & Ors. privatization the rules of administrative law
(supra) is comparable to their constitutional have to be extended to the private bodies
right contained in Art. 19(1)(g) of the whose functions affect the fundamental rights
20 Constitution of India which would include a of a citizen and who wield a great deal of
right to work and a right to pursue one's 60 influence in public life.
occupation. PUBLIC FUNCTION AND PUBLIC
104. The Board while enjoying monopoly in DUTY:
cricket exercises enormous power which is 105. Public law is a term of art with definite
25 neither in doubt nor in dispute. Its action may
legal consequences.
disable a person from pursuing his vocation
and in that process subject a citizen to hostile 65 106. The concept of public law function is yet
discrimination or impose an embargo which to be crystalised. Concededly, however, the
would make or mar a player's career as was in power of judicial review can be exercised by
30 the case of Greig & Ors. (supra). The right to this Court u/art. 32 and by the High Courts
pursue an occupation or the right of equality u/art. 226 of the Constitution of India only in
are embedded in our Constitution whereby 70 a case where the dispute involves a public law
citizens of India are granted much higher right element as contradistinguished from a private
as compared to common law right in England. law dispute.2003 Indlaw SC 492
35 A body although self-regulating, if performs
public duty by way of exercise of regulatory 107. General view, however, is that whenever
machinery, a judicial review would lie against a State or an instrumentality of a State is
it as was in the case of Datafin (supra). The 75 involved, it will be regarded as an issue within
the meaning of public law but where
individuals are at loggerheads, the remedy For example, deciding to cross the street when a police
therefor has to be resorted in private law filed. 40 officer says you may is not such a "public function;"
Situation, however, changes with the but authoritatively deciding who is free to cross and
advancement of the State function particularly who must stop is a "public function" whether or not
5 when it enters in the fields of commerce, the person entrusted under state law to perform that
industry and business as a result whereof function wears a police uniform and is paid a salary
either private bodies take up public functions 45 from state revenues or wears civilian garb and serves as
and duties or they are allowed to do so. The a volunteer crossing guard"
distinction has narrowed down but again
10 concededly such a distinction still exists.
109. In the instant case, there does not exist
Drawing an inspiration from the decisions of any legislation made either by any State or by
this Court as also other courts, it may be the Union of India regulating and controlling
safely inferred that when essential 50 the cricketing activities in the country. The
governmental functions were placed or Board authorized itself to make law regulating
15 allowed to be performed by the private body; cricket in India which it did and which it was
they must be held to have undertaken public allowed to do by the States either overtly or
duty or public functions. covertly. The States left the decision making
55 responsibility in the hands of the Board,
108. What would be a public function has otherwise so-called private hands. They
succinctly been stated in American maintain silence despite the Board's
20 Constitutional Law by Laurence H. Tribe at proclamation of its authority to make law of
page 1705 in the following terms: sports for the entire country.
"18-5. The "Public Function" Cases: 60 110. Performance of a public function in the
context of the Constitution of India would be
When the state "merely" authorizes a given "private" to allow an entity to perform the function as
action imagine a green light at a street corner an authority within the meaning of Art. 12
25 authorizing pedestrians to cross if they wish that action which makes it subject to the constitutional
cannot automatically become one taken under "state 65 discipline of fundamental rights. Except in the
authority" in any sense that makes the Constitution case of disciplinary measures, the Board has
applicable. Which authorizations have that not made any rule to act fairly or reasonably.
Constitution triggering effect will necessarily turn on In its function, the ICC does. Board as a
30 the character of the decision-making responsibility
member of ICC or otherwise also is bound to
thereby placed (or left) in private hands. However 70 act in a reasonable manner. The duty to act
described, there must exist a category of responsibilities fairly is inherent in body which exercises such
regarded at any given time as so "public" or enormous power. Such a duty can be
"governmental" that their discharge by private persons, envisioned only under Art. 14 of the
35 pursuant to state authorization even though not
Constitution and not under the
necessarily in accord with state direction, is subject to 75 Administrative Law. The question of a duty to
the federal constitutional norms that would apply to act fairly under administrative law apart from
public officials discharging those same responsibilities. Art. 14 of the Constitution of India, as has

been noticed in Ramana Dayaram Shetty 1979 113. In Donoghue (supra), it is stated: "58.
Indlaw SC 16 (supra) , would not, thus, arise We agree with Mr. Luba's submissions that
in the instant case. the definition of who is a public authority, and
what is a public function, for the purposes of
111. Governmental functions are multifacial. 40 s 6 of the 1998 Act, should be given a
5 There cannot be a single test for defining generous interpretation"
public functions. Such functions are
performed by variety of means. Furthermore, 114. There are, however, public duties which
even when public duties are conferred by arise from sources other than a statute. These
statute, powers and duties do not thereunder duties may be more important than they are
10 limit the ambit of a statute as there are 45 often thought to be or perceived. Such public
instances when the conferment of powers duties may arise by reason of (i) Prerogative,
involves the imposition of duty to exercise it, (ii) Franchise and (iii) Charter. All the duties in
or to perform some other incidental act, such each of the categories are regarded as relevant
as obedience to the principles of natural in several cases.
15 justice. Many public duties are implied by the
50 115. The functions of the Board, thus, having
courts rather than commanded by the
legislature; some can even be said to be regard to its nature and character of functions
assumed voluntarily. Some statutory public would be public functions.
duties are 'prescriptive patterns of conduct' in AUTHORITY:
20 the sense that they are treated as duties to act
reasonably so that the prescription in these 116. All public and statutory authorities are
cases is indeed provided by the courts, not 55 authorities. But an authority in its
merely recognized by them. etymological sense need not be a statutory or
public authority. Public authorities have
112. A.J. Harding in his book 'Public Duties public duties to perform.
25 and Public Law' summarized the said
definition in the following terms: 117. In Aston Cantlow and Wilmcote with
60 Billesley Parochial Church Council Vs.
"1. There is, for certain purposes (particularly for the Wallbank and another [2004] 1 A.C. 546 :
remedy of mandamus or its equivalent), a distinct body [2003] 3 WLR 283 albeit in the context of
of public law. Human Rights Act, 1998, it was held:
30 2. Certain bodies are regarded under that law as being "This feature, that a core public authority is incapable
amenable to it. 65 of having Convention rights of its own, is a matter to
3. Certain functions of these bodies are regarded under be borne in mind when considering whether or not a
that law as prescribing as opposed to merely permitting particular body is a core public authority."
certain conduct. 118. See also Hampshire County Council Vs.
35 4. These prescriptions are public duties."
Graham Beer t/a Hammer Trout Farm [2003]
70 EWCA Civ 1056 : [2004] 1 W.L.R. 233]

119. There, however, exists a distinction (Constitutional and Administrative Law; by

between a statutory authority and a public A.W. Bradley and K.D. Ewing (13th Edn)
authority. A writ not only lies against a Page 303).
statutory authority, it will also be maintainable
5 against any person and a body discharging 40 125. Having regard to the modern conditions
public function who is performing duties when Government is entering into business
under a statute. A body discharging public like private sector and also undertaking public
functions and exercising monopoly power utility services, many of its actions may be a
would also be an authority and, thus, writ may State action even if some of them may be
45 non-governmental in the strict sense of the
10 also lie against it.
general rule. Although rule is that a writ
120. JUDICIAL REVIEW UDNER Arts. 32 cannot be issued against a private body but
& 226 of the Constitution of India: thereto the following exceptions have been
introduced by judicial gloss:
Judicial Review forms basic structure of the
Constitution. 50 (a) Where the institution is governed by a
statute which imposes legal duties upon it;
15 121. It is inalienable. Public law remedy by
way of judicial review is available both under (b) Where the institution is 'State' within the
Arts. 32 and 226 of the Constitution. They do meaning of Art. 12.
not operate in different fields. Art. 226
operates only on a broader horizon. (c) Where even though the institution is not
55 'State' within the purview of Article 12, it
20 122. The courts exercising the power of performs some public function, whether
judicial review both under Articles 226, 32 and statutory or otherwise.
136 of the Constitution of India act as a
"sentinel on the qui vive. [See Padma Vs. 126. Some of the questions involved in this
Hiralal Motilal Desarda and Others (2002) 7 matter have recently been considered in an
60 instructive judgment by High Court Delhi in
25 SCC 564 2002 Indlaw SC 1794 at 577)
Rahul Mehra and Another Vs. Union of India
123. A writ issues against a State, a body and Ors. 2004 Indlaw DEL 813 (Civil Writ
exercising monopoly, a statutory body, a legal Petition No. 1680 of 2000) disposed of on 4th
authority, a body discharging public utility October, 2004. Having regard to the
services or discharging some public function. 65 discussions made therein, probably it was not
30 A writ would also issue against a private necessary for us to consider the question in
person for the enforcement of some public depth but its reluctance to determine as to
duty or obligation, which ordinarily will have whether the Board is a State within the
statutory flavour. meaning of Art. 12 of the Constitution
70 necessitates further and deeper probe.
124. Judicial Review castes a long shadow and
35 even regulating bodies that do not exercise 127. The power of the High Court to issue a
statutory functions may be subject to it. writ begins with a non-obstante clause. It has

jurisdiction to issue such writs to any person 40 1 1994 Indlaw SC 17 and State of U.P. and
or authority including in appropriate cases any Another vs. Johri Mal [(2004) 4 SCC 714 2004
Government within its territorial jurisdiction, Indlaw SC 423].
directions, orders or writs specified therein for
5 the enforcement of any of the rights 130. The recent development in the field of
conferred by Part III and for any other judicial review vis-a-vis human rights also
purpose. Art. 226 confers an extensive 45 deserves a mention, although in this case, we
jurisdiction to the High Court vis-a-vis this are not directly concerned therewith.
Court u/art. 32 in the sense that writs issued 131. In Hatton and Others Vs. United
10 by it may run to any person and for purposes Kingdom [15 BHRC 259 : (2003) 37 E.H.R.R.
other than enforcement of any rights 28] it was noticed that Art. 13 of Convention
conferred by Part III but having regard to the 50 for the Protection of Human Rights and
term 'authority' which is used both u/art. 226 Fundamental Freedoms envisages constitution
and Article 12, we have our own doubts as to of forums where complaint of violation of
15 whether any distinction in relation thereto can human rights can be adjudicated. No such
be made. ) forum was provided for before enactment of
128. This aspect of the matter has been 55 Human Rights Act, 1998. A policy decision
considered in Andi Mukta Sadguru 1989 adopted in the year 1993 by the British
Indlaw SC 589 (supra). It has clearly been Government that more planes will land in
20 stated that a writ petition would be
Heathrow Airport during night led to filing of
maintainable against other persons or bodies a complaint by the nearby residents alleging
who perform public duty. The nature of duty 60 violation of their right of privacy but judicial
imposed on the body would be highly relevant review was denied to them on the ground that
for the said purpose. Such type of duty must the same was a policy decision. The European
25 be judged in the light of the positive
Court of Human Rights, however, observed
obligation owed by a person or authority to be that prior to coming into force of the Human
the affected party. 65 Rights Act, 1998 the Government failed to
provide a forum for adjudication of violation
129. In Assembrook Exports Ltd. & Anr. v. of human rights. The petitioners therein were
Export Credit Guarantee Corpn. of India Ltd. held entitled to compensation in view of Art.
30 & Ors., AIR 1998 Cal 1 1997 Indlaw CAL 13 of Convention for the Protection of
250, it has been held that public law remedy 70 Human Rights and Fundamental Freedoms.
would be available when determination of a
dispute involving public law character is 132. Yet recently in E. Vs. Secretary of State
necessary. The said decision has been affirmed for the Home Department [2004] 2 W.L.R.
35 by this Court in ABL International Ltd. & 1351, the Court of Appeal held that judicial
Anr. Vs. Export Credit Guarantee review in certain circumstances is
Corporation of India Limited & Ors. [JT 2003 75 maintainable even on facts.
(10) SC 300 2003 Indlaw SC 1403], [See also HUMAN RIGHT:
Tata Cellular vs. Union of India AIR 1996 SC

133. Broadcasting in television have a role to 40 spectators cannot apparently act in violation
play in terms of the statute of the City of of human rights.
Jerusalem, approved by the Trusteeship
Council on 4th April, 1950 which provides for APPLICATION OF TESTS:
5 special protective measures for ethnic, 136. The traditional tests which had impelled
religious, or linguistic groups in articles this Court to lay down the tests for
dealing with human rights and fundamental 45 determining the question as to whether a body
freedoms but also the legislative council, the comes within the purview of "Other
judicial system, official and working languages, Authorities" in Ajay Hasia 1980 Indlaw SC
10 the educational system and cultural and 244 (supra), inter alia are : " (3) It may also be
benevolent institutions, and broadcasting and a relevant factor ... whether the corporation
television. Right to development in 50 enjoys monopoly status which is State-
developing countries in all spheres is also conferred or State-protected.
human right. [See Kapila Hingorani 2003
15 Indlaw SC 483 (supra), and Islamic Academy (5) If the functions of the corporation are of
of Education and Another2003 Indlaw SC public importance and closely related to
611 (supra). governmental functions, it would be a relevant
55 factor in classifying the corporation as an
134. To achieve this, the promotion of human instrumentality or agency of Government.
development and the preservation and
20 protection of human rights proceed from a The six tests laid down there are not
common platform. Both reflect the exhaustive.
commitment of the people to promote
137. We in this case, moreover, are required
freedom, the well-being and dignity of
60 to proceed on the premise that some other
individuals in society. Human development as
tests had also been propounded by Mathew, J.
25 a human right has a direct nexus with the
in Sukhdev Singh 1975 Indlaw SC 107 (supra),
increase in capabilities of human beings as
wherein it was observed:
also the range of things they can do. Human
development is eventually in the interest of "The growing power of the industrial giants, of the
society and on a larger canvas, it is in the 65 labour unions and of certain other organized groups,
30 national interest also. Progress and compels a reassessment of the relation between group
development in all fields will not only give a power and the modern State on the one hand and the
boost to the economy of the country but also freedom of the individual on the other. The corporate
result in better living conditions for the organisations of business and labour have long ceased
people of India. 70 to be private phenomena."
35 135. Even a hybrid body is bound to protect (Emphasis supplied)
human rights as it cannot be violated even by
such a body. The Board which has the 138. The learned Judge stated: "The governing
pervasive control over the entire sport of power wherever located must be subject to
cricket including the participants as well as the fundamental constitutional limitations.

The need to subject the power centers to the mere addition of State money would not influence the
control of Constitution requires an expansion conclusion."
of the concept of State action."
139. Conversely put, if the functions of the
Referring to Marsh Vs. Alabama [326 US body falls within the description of the public
5 501], it was opined: 40 function, absence of State financial aid would
not influence the conclusion to the contrary.
"Although private in the property sense, it was public As regards, governmental aid, it was noticed:
in the functional sense. The substance of the doctrine
there laid down is that where a corporation is privately "The State may aid a private operation in various
performing a 'public function' it is held to the ways other than by direct financial assistance. It may
10 constitutional standards regarding civil rights and 45 give the organization the power of eminent domain, it
equal protection of the laws that apply to the State may grant tax exemptions, or it may give it a
itself. The Court held that administration of private monopolistic status for certain purposes."
property of such a town, though privately carried on,
was, nevertheless, in the nature of a 'public function', 140. The legal position in America in this
15 that the private rights of the corporation must therefore behalf was also noticed in the following terms:
be exercised within constitutional limitations, and the 50 "In America, corporations or associations, private in
conviction for trespass was reversed." character, but dealing with public rights, have already
Referring to Art. 13(2), it was held: been held subject to constitutional standards. Political
parties, for example, even though they are not statutory
"In other words, it is against state action that organisations, and are in form private clubs, are
20 fundamental rights are guaranteed. Wrongful 55 within this category. So also are labour unions on
individual acts unsupported by State authority in the which statutes confer the right of collective bargaining."
shape of laws, customs, or judicial or executive
proceedings are not prohibited." (Emphasis supplied)
As regards public function tests, it was held: 141. Drawing the contrast between the
governmental activities which are private and
25 "Another factor which might be considered is whether 60 private activities which are governmental,
the operation is an important public function. The Mathew, J. noticed that besides the so-called
combination of State aid and the furnishing of an traditional functions, the modern State
important public service may result in a conclusion operates a multitude of public enterprises.
that the operation should be classified as a State What is, therefore, relevant and material is the
30 agency. If a given function is of such public importance 65 nature of the function.
and so closely related to governmental functions as to
be classified as a governmental agency, then even the 142. In our view, the complex problem has to
presence or absence of State financial aid might be be resolved keeping in view the following
irrelevant in making a finding of State action. If the further tests :
35 function does not fall within such a description, then 143. i) When the body acts as a public
70 authority and has a public duty to perform;

(ii) When it is bound to protect human rights. 35 became a representative body of the
international organizations as representing the
(iii) When it regulates a profession or vocation country. When the nature of function of such
of a citizen which is otherwise a fundamental a body becomes such that having regard to
right under a statute or its own rule.. the enormity thereof it acquires the status of
5 (iv) When it regulates the right of a citizen 40 monopoly for all practical purposes; regulates
contained in Art. 19(1)(a) of the Constitution and control the fundamental rights of a citizen
of India available to the general public and as regard their right of speech or right of
viewers of the game of cricket in particular. occupation, becomes representative of the
country either overtly or covertly and has a
(v) When it exercises a de facto or a de jure 45 final say in the matter of registration of
10 monopoly; players, umpires and other connecting with a
very popular sport. The organizers of
(vi) When the State out-sources its legislative
competitive test cricket between one
power in its favour;
association and another or representing
(vii) When it has a positive obligation of 50 different States or different organizations
public nature. having the status of a state are allowed to
make laws on the subject which is essentially a
15 144. These tests as such had not been State function in terms of Entry 33 List II of
considered independently in any other the Seventh Schedule of the Constitution of
decision of this Court. 55 India. In such a case, different tests have to be
applied.
145. We, thus, would have to proceed to
determine the knotty issues involved therein 148. The question in such cases may,
20 on a clean slate. moreover, have to be considered as to
whether it enjoys the State patronage as a
146. These traditional tests of a body
60 national federation by the Central
controlled financially, functionally and
Government; whether in certain matters a
administratively by the Government as laid
joint action is taken by the body in question
down in Pradeep Kumar Biswas 2002 Indlaw
and the Central Government; its nexus with
25 SC 322 (supra) would have application only
the Governments or its bodies, its functions
when a body is created by the State itself for
65 vis-a-vis the citizens of the country, its
different purposes but incorporated under the
activities vis-a-vis the government of the
Indian Companies Act or Societies
country and the national interest/ importance
Registration Act.
given to the sport of cricket in the country.
30 147. Those tests may not be applicable in a The tests, thus, which would be applicable are
case where the body like the Board was 70 coercion test, joint action test, public function
established as a private body long time back. test, entertainment test, nexus test,
It was allowed by the State to represent the supplemental governmental activity test and
State or the country in international fora. It the importance of the sport test.

149. An entity or organization constituting a 40 an autonomous body by the Government by

State for the purpose of Part III of the itself may also not be a determinative factor as
Constitution would not necessarily continue the Government may not consider any need
to be so for all times to come. Converse is therefor despite the fact that the body or
5 also true. A body or an organization although organization had been discharging essentially a
created for a private purpose by reason of 45 public function. Such non-interference would
extension of its activities may not only start not make the public body a private body.
performing governmental functions but also WHAT CRICKET MEANS TO INDIA:
may become a hybrid body and continue to
10 act both in its private capacity or as public 151. We have laid down the tests aforesaid
capacity. What is necessary to answer the and the approach which needs to be adopted
50 in determining the issue as to whether the
question would be to consider the host of
factors and not just a single factor. The Board is a State or not. Before we embark on
presence or absence of a particular element this enquiry, it would be necessary to keep in
15 would not be determinative of the issue, if on mind as to what cricket means to the citizens
an overall consideration it becomes apparent of this country.
that functionally it is an authority within the 55 152. Cricket in India is the most popular
meaning of Art. 12 of the Constitution of game. When India plays in international for a,
India. Similarly significant funding by the it attracts the attention of millions of people.
20 Government may not by itself make a body a The win or loss of the game brings 'joy' or
State, if its functions are entirely private in 'sorrow' to them. To some lovers of the game,
character. Conversely absence of funding for 60 it is a passion, to a lot more it is an obsession,
the functioning of the body or the nay a craze. For a large number of viewers, it
organization would not deny it from its status is not enthusiasm alone but involvement.
25 of a State; if its functions are public functions
and if it otherwise answers the description of MEMORANDUM OF ASSOCIATION OF
"Other Authorities". The Government aid BOARD:
may not be confined only by way of monetary
65 153. The Board is a society under the Tamil
grant. It may take various forms, e.g., tax
Nadu Societies Registration Act, 1975. In
30 exemptions, minimal rent for a stadia and
terms of its Memorandum of Association, its
recognition by the State, etc. An over
objects, inter alia, are to control the game of
emphasis of the absence of the funding by the
Cricket in India and to resolve the disputes
State is not called for.
70 and to give its decision on matters referred to
150. It is true that regulatory measures it by any State, Regional or other Association,
35 applicable to all the persons similarly situated, to promote the game, to frame the laws of
in terms of the provisions of a statute would cricket in India, to select the teams to
by itself not make an organization a State in represent India in Test Matches and various
all circumstances. Conversely, in a case of this 75 others and to appoint India's representative or
nature non-interference in the functioning of representatives on the International Cricket

Conference and other Conferences, Seminars, 155. It has thirty full members including the
connected with the game of cricket; State Cricket Associations representing the
States. Apart from the said Associations, any
RULES AND REGULATIONS: direct affiliation therewith is prohibited. In
154. The Board has framed rules and 40 terms of cl. 3(iii) the Central controlling body
5 regulations in exercise of its power under the for cricket in any State within the territory of
Memorandum of Association. Such rules and India may be affiliated and shall be an
regulations are also filed with the Registrar of Associate Member. Even the organization at
Societies under the Tamil Nadu Societies the district level and the State level had to
Registration Act, 1975. The relevant rules and 45 become its member for effective participation
10 regulations are as under : in the game. Rule 8 empowers the Board to
nominate distinguished persons by invitation
"1. INTERPRETATION : to be Patron in Chief or Patrons of the Board.
The powers and duties of the Board have
(i) "REPRESENTATIVE" of a Member or an
50 been referred to in Rule 9; some of which are
Associate Member means a person duly nominated as as under :
such by the Member or the Associate Member.
(a) To grant affiliations as provided in the
15 (l) "TOURNAMENT RULES" means the Rules Rules or to disaffiliate Members on
governing the conduct of Tournaments such as Irani, disciplinary grounds.
Duleep, Ranji, Deodhar, CoochBehar, C.K. Nayudu,
55 (b) To arrange, control and regulate visits of
M.A. Chidambaram, Vijay Hazare, Vijay
foreign cricket teams to India and visits of
Merchant Trophy and Madhavrao Scindia Trophy-
Indian teams to foreign countries and to settle
20 Tournaments and such other Tournaments conducted
the terms on which such visits shall be
by the Board from time to time.
conducted.
(q) DISCIPLINARY COMMITTEE :
60 (c) To lay down conditions on which Indian
The Board shall at every Annual General Meeting players shall take part in a tour to any foreign
appoint a Committee consisting of three persons of country and by which such players shall be
25 whom the President shall be one of them to inquire governed, including terms of payments to
into and deal with the matter relating to any act of such players.
indiscipline or misconduct or violation of any of the
65 (d) To frame bye-laws and lay down
Rules or Regulation by any Player, Umpire, Team
conditions including those of travel,
Official, Administrator, Selector or any person
accommodation and allowances under which
30 appointed or employed by BCCI. The Committee shall
Indian players shall take part in Cricket
have full power and authority to summon any
Tournaments/Matches or Exhibition, Festival
person(s) and call for any evidence it may deem fit and
70 and Charity matches organized by the Board
necessary and make and publish its decision including
or by a Member under the authority of the
imposing penalties if so required, as provided in the
Board in the course of a visit or tour of a
35 Memorandum and Rules and Regulations."
foreign Cricket team to India.
(f) To permit under conditions laid down by "No club or player shall participate in any
the Board or refuse to permit any visit by a tournament or a match for which the permission of the
team of players to a foreign country or to Board has not been previously obtained. A player
India. contravening this Rule shall be dealt with in
40 accordance with the procedure laid down in Rule 38."
5 (g) To frame the Laws of Cricket in India and
to make alteration, amendment or addition to 160. Rule 35 provides for an exclusive right in
the laws of Cricket in India whenever the Board to organize foreign tours and invite
desirable or necessary. teams from abroad, in the following terms :
(n) To take disciplinary action against a player "No organization other than a Member or Associate
10 or a Member of Board. 45 Member, Clubs or Institutions affiliated to such
members shall organize foreign tours to or invite teams
(o) To appoint Manager and/or other official from abroad. Members or Associate Members or such
of Indian teams. clubs or institutions, desirous of undertaking tours
156. Rule 10 provides for complete power and abroad or inviting foreign teams shall obtain the
control over players within the jurisdiction of 50 previous permission of the Board. Such permission
15 a member or an associate member. may be given in accordance with the Rules framed by
the Board."
157. Rule 12 provides that an inquiry into
conduct of players shall be in the manner as 161. The procedure for dealing with the
specified in Rule 38 of the Rules. Rule 32 misconduct on the part of players, umpires,
provides for Standing Committees which 55 team officials, administrators, referees and
20 include an All India Selection Committee, All selector is contained in Rule 38 which also
India Junior Selection Committee, Umpires empowers it to frame Bye-laws regarding their
Committee, Senior Tournament discipline and conduct.
158. Committee, Vizzy Trophy Committee, ICC Rules:

Tour, Programme and Fixtures Committee, 60 "In the Articles of Association of the ICC, the words
25 Technical Committee, Junior Cricket "Cricket Authority", Full Member Country(ies)" and
Committee and Finance Committee. Rule "Member Country(ies)" have been defined as under:
32(A)(ii) provides for constitution of All India
Selection Committee inter alia when Indian "Cricket Authority" a body (whether incorporated or
Team goes on a foreign tour. not) which is recognized by the Council as the
65 governing body responsible for the administration,
30 159. Rule 33 provides that no tournaments by management and development of cricket in a Cricket
any club affiliated to a member or any other Playing Country (being at the date of incorporation of
organization be held without permission of the Council the bodies of that description shown in the
the Board. names and addresses of subscribers to the
Rule 34 imposes ban on participation in 70 Memorandum of Association);
35 tournaments stating :

"Full Member Country (ies)" any Member Country 164. Qualification Rules for International
whose Cricket Authority is a Full Member and shall, Cricket Council Matches, Series and
when the context requires, include the Cricket Competitions read as under:
Authority of that Member Country;
"(a) Definitions
5 "Member Country (ies)" any country or countries
associated for cricket purposes or geographical area, the 40 (b) Qualification Criteria
governing body for cricket of which is a Full Member, 1. A cricketer is qualified to play Representative
an Associate Member or an Affiliate Member, as the Cricket for a Member Country of which he is a
context may require;" national or, in cases of non-nationals, in which he was
10 GUIDELINE CRITERIA FOR FULL born
MEMBERSHIP OF ICC 45 2. A player who has resided for a minimum of 183
"A country applying for admission as a Full Member days in a Member Country in each of the 4
of ICC should use the following criteria." immediately preceding years shall be a "deemed
national" of that country for the purpose of these
162. Paragraph 1 inter alia provides for Rules.
15 playing. Paragraphs 1.2, 4 and 5 provide for
Cricket Structure, Financial and Standing 50 (c) Transfer of "Playing Nationality"
respectively. 1. Cricketers qualified to play for a Member Country
163. The membership guidelines relating to can continue to represent that country without negating
one day international matches speaks of test their eligibility or interrupting their qualification
20 playing nation and formation of national period for another Member Country up until the stage
association. Preamble to One Day 55 that the cricketer has played for the first Member
International (ODI) Status reads as under: Country at under 19 level or above
"ODI status is not an ICC membership category, but (d) Applications

rather a sub-category of Associate Membership. ODI 1. Each Member Country shall require each player to
25 status was created to provide a vehicle by which leading certify his eligibility to represent that Member Country.
Associate Members could play official One Day
International matches against Full Members in order 60 (f) Register of Cricketers and Proof of Qualification
to better equip them to apply for Full Membership at
1. Each Member Country shall, prior to the Effective
the appropriate time.
Date, establish and thereafter maintain a register of
30 The Criteria for ODI status are extremely demanding cricketers which shall record the name, address and
and ODI status will only be conferred when the nationality of those cricketers who shall in each year
applicant country has a history of excellence in both 65 commencing at the beginning of that Member
playing and administration. As a precondition the Country's domestic cricket season be seeking to play
applicant must be a leading Associate Member and first-class cricket in that Member Country (or the
35 meet all the criteria of Associate Membership." equivalent national competition in those countries

which do not have first-class cricket) for any local club asserted that the Government attaches
or team including any State or Country Team. considerable importance to development of
sports in general and achieving excellence in
2. Each Member Country shall from time to time 40 the Olympics and other international events in
provide to the Chief Executive ICC on request and at particular, as also the unsatisfactory
5 the expense of that Member Country details as to any performance of the Indian Team(s) in
entries made in its register of cricketers in respect of important international sports events. It was
any year, including copies of the register or of the recorded that over the years the Government
relevant extracts therefrom. 45 had been actively supporting the National
3. Each Member Country shall from time to time Sports Federations in the matter of
10 provide to the Chief Executive ICC on request and at development of specific games/sports
the expense of that Member Country, any relevant discipline.
information as to the fulfillment by a particular player 167. The objective of the said guidelines was
or players of any one or more of the applicable 50 to define the areas of responsibility of various
qualification criteria (including as appropriate the agencies involved in the promotion and
15 Development Criteria) under these Rules." development of sports, to identify National
165. As per ICC Rules and Guidelines for Sports Federations eligible for coverage
classification of official cricket, the definition thereunder and to state the conditions for
of a Test Match in cl. 1(a)(i) is as follows: 55 eligibility which the Government would insist
upon while releasing grants to Sports
"Any cricket match of not more than 5 days scheduled Federations. Para III speaks of role and
20 duration played between two teams selected by full responsibility of the Ministry of Youth Affairs
members as representatives of their member countries and Sports, National Sports Federations and
and accorded the status of test match by the Council." 60 the Sports Authority. Para IV provides for
priority sports which have been categorized as
GUIDELINES ISSUED BY UNION OF
: (a) 'Priority', (b) 'General Category' and (c)
INDIA:
'Other Category'. Para 8 refers to grants given
25 166. Indisputably, the Union of India had to National Federations under different sub-
issued guidelines which had been reviewed 65 heads. Cl. 8.8 specifies the funds with which
from time to time. The Ministry of Youth the National Sports Federations would be
Affairs and Sports issued the revised assisted for holding the international
guidelines and forwarded the same to the tournaments. Cl. 8.9 provides for cultural
30 Presidents/Secretary General, Indian Olympic exchange.
Association and the Presidents/Hony.
70 168. Para 9 provides for clubbing and
General Secretaries of all recognized Sports
dovetailing of schemes of SAI and the
Federations incorporating therein the
Ministry. Para XI provides for long term
amended provisions. Cricket is included in
development plans. Para XII deals with
35 Annexure-I within the category [Others (C)].
miscellaneous matters.
While issuing the Guidelines, it has been

169. Annexure-II appended to the said issued in exercise of its control over the
guidelines provides for recognition of National Sports Federations. The sport of
National Sports Federations, inter alia, by 40 Cricket was not included within the said
laying down the eligibility therefor and the guidelines. Both mens' and womens' cricket
5 necessity of filing of applications in that had been brought within the purview of the
behalf. Cl. 3.12 reads as under : said guidelines in the year 2001. They provide
for grant of recognition. The Board contends
"There would be only one recognized Federation for 45 that it had never applied for recognition nor
each discipline of sport, irrespective of the fact that the had it asked for financial aid or grant of any
particular sport caters to youngsters, men, women or other benefit. Factually the Union of India has
10 veterans. However, this condition shall not apply to
not been able to controvert this position
Federations already recognized by the Department." although in its affidavit affirmed by a Deputy
170. Cl. 5 provides for grant of recognition. 50 Secretary to the Government of India,
Annexure-III appended to the said guidelines Ministry of Youth Affairs and Sports, it has
provides for the procedure for stated that Board is a recognized National
15 suspension/withdrawal of recognition and Federation. It is true that no document has
consequences thereof. The said guidelines also been produced establishing grant of such
prescribe forms required to be used by the 55 recognition; but in its additional affidavit
federations for different purposes. affirmed by Mrs. Devpreet A. Singh, Deputy
Secretary to the Government of India,
171. The Board for all intent and purport was Ministry of Youth Affairs and Sports, a
20 a recognized body. Probably in that view of number of documents have been annexed
the matter, the Board did not think it 60 which clearly go to show that from the very
necessary to apply for grant of such beginning the Board had been asking for
recognition of the Union of India asking it for permission of the Ministry of Human
passing a formal order. However, the Board Resource Development either to go abroad or
25 had all along been obtaining the requisite to play or participate in other countries or for
permission for sending an Indian team abroad 65 inviting the others to play in India. Such
or for inviting a foreign team in India in the permission had been sought for in the form
prescribed form. prescribed in terms of the said regulations.
The said documents leave no manner of
EXPRESS RECOGNITION ESSENTIAL?
doubt that the Board had asked for and the
30 172. Union of India has issued certain 70 Union of India had granted de facto
guidelines evidently in exercise of its power recognition.
conferred on it u/art. 73 of the Constitution
173. In the affidavit dated 8th October, 2004
of India for regulating sports in India. The
affirmed by a Deputy Secretary to the
said guidelines have been issued having regard
Government of India, Ministry of Youth
35 to objects it sought to achieve including the
75 Affairs and Sports, it is stated:
poor performance of Indian Team abroad.
The said guidelines have been moreover

"1. I am informed that this Hon'ble Court required to 40 of both the Board and the Union of India
be apprised as to whether it was mandatory for all clearly go to show that sub silentio both the
sporting bodies including private entities or clubs to parties had been acting on the premise that
seek permission and to obtain the same for playing in the Board is recognized as the only recognized
5 tournaments abroad. National Federation for the purpose of
45 regulating the game of cricket in India.
2. In response to the issue raised before this Hon'ble
Court, it is respectfully submitted that only the BOARD A STATE?
recognized National Sports Federations are required
to apply in the prescribed format for seeking 175. The Board is a society registered under
10 permission to go abroad to play as a Team
the Tamil Nadu Societies Act. It is not created
representing India. There have been instances where under a Statute but it is an acknowledged fact
club teams, organizations engaged in sports activities 50 that in terms of its Memorandum of
etc. have applied for such permission but the Ministry Association and rules framed by it, it has not
has considered their request only when they were only the monopoly status as regard the
15 received through the National Sports Federation
regulation of the game of cricket but also can
BCCI in this case." lay down the criteria for its membership and
55 furthermore make the law of sport of cricket.
174. It is not disputed that the Union of India The Board for all intent and purport is a
has not recognized any other national sports recognized national federation recognized by
body for regulating the game of cricket in the Union of India. By reason of said
20 India. It is the categorical stand of the Union recognition only, an enormous power is
of India that only by such recognition granted 60 exercised by the second Respondent which
by the Union of India, the team selected by from selection and preparation of players at
the Board is the Indian cricket team which it the grass root level to organize Daleep
could not do in absence thereof. We cannot Trophy, Ranji Trophy etc. select teams and
25 accept the submission of Mr. Venugopal to umpires for international events. The players
the effect that even while playing abroad, the 65 selected by the second Respondent represent
Board sends its own team. It is evident from India as their citizen. They use the national
the records which fact has also been noticed colour in their attire. The team is known as
by the Delhi High Court in its judgment in Indian team. It is recognized as such by the
30 Rahul Mehra 2004 Indlaw DEL 813 (supra) ICC. For all intent and purport it exercises the
that the Board fields its team as Indian Team 70 monopoly.
and not as Board Eleven, which without
having any authority from the Union of India, 176. The Board is in a position to expend
it will not be able to do. The stand that the crores of rupees from its own earnings. The
35 cricket team selected by the Board only tender in question would show that what sort
represents it and not the country is incorrect. of amount is involved in distributing its
Having regard to the rules of the ICC, its own 75 telecasting right for a period of four years,
rules as also various documents placed before inasmuch as both the First Petitioner and the
this Court by the Union of India, the conduct

Fifth Respondent offered US $ 308 millions 40 the test necessary to be evolved in this behalf
therefor. is the qualitative test and not the quantitative
test. The quality and character of a sport
177. A monopoly status need not always be recognized as a measure of education and
created by a law within the meaning of cls. 2 nation building (as a facet of human resources
5 to 6 of Art. 19 of the Constitution of India. 45 development) cannot be confused with an
178. A body which carries on the event that may be a form of entertainment.
monopolistic function of selecting team to Cricket, as noticed hereinbefore, has a special
represent the nation and whose core function place in the hearts of citizens of India.
is to promote a sport that has become a 179. The monopoly status of the Board is
10 symbol of national identity and a medium of 50 undisputed. The monopoly enjoyed by the
expression of national pride, must be held to Board need not be a statutory one so as to
be carrying out governmental functions. A conform to the tests contained in Cl. (6) of
highly arbitrary or capricious action on the Art. 19 of the Constitution. It can be a de
part of such a powerful body would attract facto monopoly which has overtly or covertly
15 the wrath of Art. 14 of the Constitution of 55 received the blessings of Union of India. The
India. The Board itself acted as a de facto monopoly of the Board is manifest as
representative of the Government of India it, as a member of ICC (even if it is technically
before the international community. It makes possible to float any other association), can
representations to the effect that it was send an Indian Team abroad or invite a
20 entitled to select a team which represents the 60 foreign team onto India. In absence of
nation as a cricket playing country, and, thus, recognition from the ICC, it would not be
the same would, without anything more, make possible for any other body including the
its action a State action. For the said purpose, Union of India to represent India in the
actual control of the Board or issuing any international Cricket events featuring
25 direction in that behalf by the Government of 65 competitive cricket. So would be the position
India is not of much significance but the in domestic cricket. The Board in view of
question as to whether the Government, enormity of powers is bound to follow "the
considering the facts and circumstances, doctrine of fairness and good faith in all its
should control the actions of the Board as activities". [See Board of Control for Cricket,
30 long as it purports to select a team to 70 India & Anr. Vs. Netaji Cricket Club and
represent India would be a matter of great Ors., JT 2005 (1) SC 235 2005 Indlaw SC
significance. The guidelines issued by the 1243]
Union of India clearly demonstrate its
concern with the fall in standard of Indian 180. The object of Part III of our
35 Team in sports in important international Constitution is to curtail abuse of power and
sports events. It would not be correct to draw 75 if by reason of the Board's activities, fairness
a comparison between an event of in action is expected, it would answer the
international sport as significant as cricket description of "Other Authorities".
with beauty pageants and other such events as

181. The decisions rendered in different 40 the Board has an exclusive and complete
jurisdictions including those of this Court control. In the international level, the ICC
clearly suggest that a body like the Board recognizes the national federations only who
would come within the purview of the are its members having regard to the fact that
5 expression "Other Authorities" contained in these federations either represent a country or
Art. 12 of the Constitution of India. For the 45 a geographical area. The very fact that
said purpose, a complete new look must be recognition of ICC has been extended to a
bestowed on the functions and structures of geographical area (as for example, the West
the Board. A public authority, in my opinion, Indies comprising of so many countries), goes
10 would be an authority which not only can to show that for the said purpose the
regulate and control the entire sports activities 50 consensus amongst various bodies and several
in relation to cricket but also the decisive nations is necessary.
character it plays in formulating the game in
all aspects. Even the Federations controlled 184. It is true that a country as such is not a
15 by the State and other public bodies as also member of ICC and in some places of the
the State themselves, in view of the Board's Rules for the purpose of election of the
Memorandum of Association and the Rules 55 President, the country is represented through
and Regulations framed by it, are under its its national federation which is its full time
complete control. Thus, it would be subject to member. It is furthermore true that the ICC
20 a judicial review. Rules refer as a nation not only a 'country' but
also a geographical area covering several
182. The history of ICC has been noticed by 60 countries but a bare perusal of the rules in its
the Court of Appeal in Greig (supra) and, entirety would clearly go to show that only
thus, it may not be necessary to retrace it over those national federations which represent the
again. country can become its whole time or
associate members. The expression "country"
25 183. It is not disputed that the Government in 65 has been used at numerous places. It is one
terms of its guidelines recognizes only the thing to say that legally it is permissible to
Board. Its recognition whether formal or make a Club a member but unless it has the
informal is evident as both the Union of India national patronage, it is inconceivable that it
and the Board proceeded on that basis. In can obtain membership of ICC in any
30 international arena the regulated cricket is also 70 capacity. Theoretically in the ICC, the Board
known as official cricket. The rules of the ICC is a member but it without State patronage
suggest that a domicile of one country can directly or indirectly would reduce its
play in county clubs but only citizens or other activities. In case any other body is recognized
persons who come within the purview of the by the Union of India, it would not be entitled
35 said rules must play for their country in test or 75 to regulate the sport of cricket in India.
other official matches in terms of the ICC Perforce it has to abandon its functions
Rules. The tournaments are held between the outside the country.
countries and at the domestic level between
States/regions and the other clubs over which

185. In the Rules framed by the ICC, the "We would like to reiterate that the Annual Reports
principles of natural justice containing of BCCI are already available with your Ministry."
elements (a) the right to a fair hearing; and (b)
the rule against bias has been specifically 40 188. The tenor of the letter, thus, runs
5 provided for. These are in keeping with the contrary to the assertion of the Board that it
function of public body and not private body. has never sent its accounts to the
But, so far as the rules framed by the Board Government.
are concerned, the principles of natural justice 189. It is accepted by the Union of India that
are required to be followed only in the event a 45 the Board is an autonomous organization and
10 disciplinary action is contemplated and not the Government of India does not hold any
otherwise. cricket match series as it is the function of the
186. The submission of Mr. Venugopal that Board, but that is all the more reason as to
Union of India having made a categorical why it has its own responsibilities towards
statement before the Parliament as also in its 50 officials, players, umpires, coaches,
15 affidavit in the case of Rahul Mehra 2004
administrators and above all the cricket loving
Indlaw DEL 813 (supra) before the High public. However, we may place on record that
Court of Delhi wherein it is accepted that the there are a number of documents filed by the
Board is not under the control of the Union Union of India which clearly go to show that
of India nor there exist any statutory rules to 55 either for sending Indian Team abroad or
20 regulate its functioning and further the issues
inviting a foreign team on the soil of India,
raised in the said writ petition relate to the the Board has invariably been taking
internal functioning of the Board, which is permission from the Ministry of Youth
autonomous in its function, having regard to Affairs and Sports. In the counter affidavit
the materials on record may not be of much 60 filed before the Bombay High Court, the
25 significance. We must moreover notice that
Board raised a contention that it seeks
the Minister of Youth Affairs and Sports in an permission of the Union of India for
answer to the Parliament also stated: obtaining visas, foreign exchange and matters
connected therewith; but the said contention
"The promotion of the game of cricket in the country is 65 cannot be accepted in view of the fact that
the responsibility of the Board of Control for Cricket had the same been the position, the Ministry
30 in India (BCCI) which is an autonomous of Human Resource Development (which has
organization." nothing to do in these matters), would not
have been approached therefor and that too
Such responsibility on its part makes it a State 70 in the form prescribed in the guidelines.
actor.
190. The Board's activities representing the
187. When a query was made from the Board country is not confined to international
35 to give reply to a starred question dated forums only. The Board within the country
11.12.2001, the Board in its letter dated organizes and conducts the Ranji Trophy, the
13.05.2003 replied as follows: 75 Irani Trophy, the Duleep Singh Trophy, the

Deodar Trophy and the NKP Salve Challenge 40 would be compelled by the court to abide by
Trophy. Although, there are domestic events, rule of law.
indisputably only those who are members of
the Board and/or recognized by it can take 193. The hallowness of the claim of the Board
5 part therein and none else. This also goes to that its players play for it and not for India is
show that the Board regulates the domestic belied by the claim of the former players who
competitive cricket to the fullest measure and 45 categorically stated that they have played for
exercises control over its members which India and not for the Board. Whenever
represents the five zones in India. All the players play for the Board, the Team is named
10 States Federations besides a few other clubs
as Board-Eleven. [See 'The Times of India'
which are its members, two of which it will October24, 2004 and 'Hindustan Times'
bear repetition to state, are governmental 50 194. October 24, 2004], It undertakes
organizations. activities of entering into contracts for
191. Indisputably the Board is a regulator of telecasting and broadcasting rights as also
15 cricket played at the country level both off advertisements in the stadia.
and on the fields including selection of players 195. While considering the status of the Board
and umpires. ICC possesses and exercises all 55 vis-a-vis Art. 12 of the Constitution of India,
the powers to regulate international the Central Government's reluctance to
competitive cricket. It exercises disciplinary interfere with its day to day affairs or allowing
20 power also as in case of violation of the rules, it to work as an autonomous body, non-
a country member or the player may be assistance in terms of money or the
derecognized. The ICC exercises a monopoly 60 administrative control thereover may not be
over the sports at the international level of much relevance as it was not only given de
whereas Board does so at the country level. It facto recognition but also it is aided,
25 is the Board only, to the exclusion of all facilitated or supported in all other respects by
others, that can recognize bodies who are it.
entitled to participate in the nominated
tournaments. Players and umpires also must 65 196. It would not be correct to contend that a
be registered with it. In the event of violation monopoly status upon a body must be
30 of its rules and regulations, which may include conferred either by way of statute or by the
participation in an unauthorized tournaments State by issuing an appropriate order in that
without its permission, a player or umpire behalf. The question as regard exercise of
would forfeit his right to participate in all 70 monopoly power by the Board of must be
official cricket matches which for all intent determined having regard to the ground
35 and purport shall be the end of career of a realities i.e. it not only represents the country
professional cricketer or umpire. but also controls and regulates the entire field
of competitive cricket.
192. In our constitutional scheme rule of law
would, by all means, prevail over rule of 75 197. Despite the fact that the relationship
cricket. A body regulating the game of cricket between the Board and the players is not that

of an employer and employee, but the players 40 at the international level and the Board at the
are within its complete control. Sports national level that control the game of first
activities of the countries being not a class cricket. It has, thus, enormous power
commercial activity, as has been held in and wields great influence over the entire field
5 Cricket Association of Bengal 1995 Indlaw SC of cricket. Cricket when it comes to
2353 (supra), the same must be considered 45 competitive matches no longer remains a
from a larger spectrum of the Indian mere entertainment it commands such a wide
citizenary as a whole. public interest. It is now recognized that game
of cricket as an activity gives a sense of
198. It is not disputed that as of now except identity and pride to a nation.
10 the Board there is no other authority in the
field. The rules framed by the Board do not 50 200. Legal meaning attributed to the wordings
spell out as to how without virtual recognition of the Art. 12 would lead to the conclusion
of the Union of India as also the patronage of that the Board is a State. It is true that while
States whether de facto or de jure it could developing the law operating in the field a
15 become a national federation and how it could strict meaning was not adhered to by this
become a member of the ICC. It does not 55 Court but it may not now be possible to put
furthermore disclose as to how it could having the clock back. We must remind ourselves
regard to its professed function as a private that if Art. 12 is subjected to strict
club, could grant to itself enormous powers as constructions as was sought to be canvassed
20 are replete in its rules and regulations. Rules by Lahoti, J. in his minority opinion in
and regulations framed by the Board speak 60 Pradeep Kumar Biswas 2002 Indlaw SC 322
out for themselves as to how it represents (supra), the same would give way to the
Indian cricket team and regulates almost all majority opinion.
the activities pertaining thereto. It also
25 legislates law of sports in India in the field of 201. In sum, the control of the Board over the
competitive cricket. There is no area which is sport of competitive cricket is deep and
beyond of the control and regulation of the 65 pervasive, nay complete.
Board. Every young person who thinks of 202. The word 'control' has been defined in
playing cricket either for a State or a Zone or Black's Law Dictionary in the following terms:
30 India must as of necessity be a member of the
Board or its members and if he intends to play "Control-power or authority to manage, direct,
with another organization, it must obtain its superintend, restrict, regulate, govern, administer,
permission so as to enable him or continue to 70 oversee."
participate in the official matches. The
203. In Bank of New South Wales v.
35 professionals devote their life for playing
Common Wealth, [76 CLR 1], Dixon, J.,
cricket. The Board's activities may impinge on
observed that the word 'control' is 'an
the fundamental rights of citizens.
unfortunate word of such wide and
199. There is no gainsaying that there is no 75 ambiguous import that it has been taken to
organization in the world other than the ICC mean something weaker than 'restraint',

something equivalent to 'regulation'. Having 208. It is not in dispute that the players wear
regard to the purport and object of activities 40 national colours in their attires and it also
of the Board, its control over 'cricket' must be appears from the correspondences that the
held to be of wide amplitude. Board drew the attention to the Government
of India that the players to show their pride of
5 204. It is not correct that the Board represents being Indian also exhibit Ashok Chakra on
itself in international area. If it represents the 45 their helmets.
country, indisputably it must have the implied
sanction of the Government of India to do 209. We may notice that in Union of India Vs.
so. Its activities, thus, have so far-reaching Naveen Jindal and Another [(2004) 2 SCC 510
10 effect . 2004 Indlaw SC 25] this Court as regard right
of a citizen to fly the Indian National Flag
205. The Union of India has since filed 50 observed:
affidavits categorically stating that the Board is
a 'State' within the meaning of Art. 12 of the "14. National Flags are intended to project the
Constitution of India. It has further been identity of the country. They represent and foster
15 stated that not only the Board is recognized national spirit. Their distinctive designs and colours
de facto but it had all along been seeking embody each nation's particular character and
permission for going abroad from the 55 proclaim the country's separate existence. Thus it is
Ministry of Human Resource Development veritably common to all nations that a national flag
(Ministry of Youth Affairs and Sports). has a great amount of significance"
20 206. The players who participate in the 210. The State had been taking on more and
competitive cricket whether domestic or more sports related activities and thus courts
international are not amateurs; but 60 have examined the purport and ambit of
professionals. They play on receipt of activities of such bodies keeping in view wider
remuneration therefor and furthermore make and wider range of measures the executive
25 a lot of earnings by way of advertisements. and the Central Government adopt.
They participate in the game for a purpose.
211. The Board, having regard to its functions
207. The Board's commands bind all who are 65 and object, had also been granted exemption
connected with cricket. The rules and from payment of Income-tax. Such exemption
regulations framed by it for all intent and has been granted with a view to fulfill its
30 purport are "the code" which regulate an objectives to promote sports of cricket.
important aspect of national life. Such codes
on the premise whereof the Board has been 212. The Board, thus, in terms of ICC Rules,
70 is representative of India. The membership
permitted by all concerned including the
Union of India and the States to operate so as although is in the name of the Board; it is the
35 to regulate and control not only the sport of
country which matters. It may be that when
cricket as such but also all other intimately the Board and the ICC were constituted the
connected therewith and in particular the concept was that the game of cricket would be
75 played by clubs but with the passage of time,
professionals.
the concept has undergone a sea change. In 215. The Board which represents a nation
any event, the ICC does not say that it does with or without a statutory flavour has duties
not recognize the country and merely 40 to perform towards the players, coaches,
recognizes the clubs. umpires, administrators and other team
officials. They have a duty to create safe rules
5 213. The Board (although such a contention for the sport, if by reason thereof a physical
has not been raised in any affidavit but in the injury to the player is to be avoided and to
written submissions only) allegedly spends 45 keep safety aspect under ongoing review. A
crores of rupees in providing funds to body may be autonomous but with autonomy
construction of stadia, running zonal cricket comes responsibility. Sport is a "good thing"
10 academies under national cricket academy,
wherefor a societal end is to be provided.
providing the State Associations with modern Sport must receive encouragement from the
gymnasium equipments, medical expenses of 50 State and the general public or at least not
the players, pension scheme and expenditure discouraged. Health, sociability and play are
on coaches, physiotherapists, trainers, etc., but considered to be important values to be
15 it is not disputed that it earns a lot of revenue
recognized in a human.
through sale of tickets, advertisements in the
stadia, selling of advertisement in the 216. Encouragement of games and sports in
electronic media, giving out contracts by way 55 terms of Entry 33 of the State List and Entries
of food stalls and installation of other stalls, 45 and 97 of the Union List is a State
20 selling of broadcasting and telecast rights, function. We have noticed the main objects of
highlight programmes. The Board is the Board which are to promote, control,
admittedly not a charitable trust. regulate, make laws for the country and
60 encourage the game of cricket. The Union of
214. The State legislature as also the India or the respective Governments of the
Parliament have the legislative competence to States in stead and place of making a
25 make legislation in respect of sports, but no legislation have thought it fit to allow the
such legislation has yet seen the light of the sports bodies to grow from its grass-root level
day. We have noticed hereinbefore that the 65 by applying the reverse pyramid rules and by
Board in terms of its Memorandum of encouraging all associations and federations
Association as also rules and regulations from village level to national level. We have
30 framed by it is entitled to make laws for seen that whereas in each State there is a State
Cricket in India. The States and the Union of federation, they must as of practice or
India despite knowledge did not object 70 precedent become a member of the Board.
thereto. They, thus, made themselves bound State Federations and some other
by the said Rules and Regulations. In that organizations essentially having regard to their
35 sense, exercise of law making power respective nature of functions only are
contemplated by legislation has been members of the Board. They include
outsourced to the Board. 75 Association of Indian Universities, Railway
Sports Control Board and Services Sports

Control Board. Furthermore, having regard to 40 facet of the Board. A body which makes a law
the nature of activities, viz., the Board for the sports in India (which otherwise is the
represents a sovereign country while selecting function of the State), conferring upon itself
and fielding a team for the country with not only enormous powers but also final say
5 another sovereign country promoting and in the disciplinary matter and, thus, being
aiming at good relations with the said country 45 responsible for making or marring a citizen's
as also peace and prosperity for the people, sports career, it would be an authority which
even at the domestic level the citizens of the answers the description of "other authorities".
said country may be held to be entitled to the
10 right to invoke the writ jurisdiction of this
The Board, it appears, even nominates
Court even if thereby no personal cricketers for the Arjuna Awards.
fundamental right is directly infringed. With 50 218. The game of cricket both in the domestic
the opening up of economy and globalization, fora as also the international fora cannot reach
more and more governmental functions are the desired results unless the Board acts in
15 being performed and allowed to be performed terms of the governmental policies or the
by private bodies. When the functions of a government is entwined in its management or
body are identifiable with the State functions, 55 control of the Board or any of its agencies
they would be State actors only in relation statutory or otherwise. Apart from the above,
thereto. the other tests laid down in Brentwood
20 217. An authority necessarily need not be a
Academy (supra), viz., "willful participant in
creature of the statute. The powers enjoyed joint activity with the State or its agents", in
and duties attached to the Board need not 60 our opinion, would make the Board as a State
directly flow from a statute. The Board may actor.
not be subjected to a statutory control or 219. The activities undertaken by the Board
25 enjoy any statutory power but the source of were taken note of in the case of Cricket
power exercised by them may be traced to the Association of Bengal 1995 Indlaw SC 2353
legislative entries and if the rules and 65 (supra). Therein this Court inter alia rejected
regulations evolved by it are akin thereto, its the contention of the Ministry of Information
actions would be State actions. For the said and Broadcasting that the activities of the
30 purpose, what is necessary is to find out as to Association was a commercial one and it had
whether by reason of its nature of activities, been claiming a commercial right to exploit
the functions of the Board are public 70 the sporting event as they did not have the
functions. It regulates and controls the field of right to telecast the sporting event through an
cricket to the exclusion of others. Its activities agency of their choice in the following terms:
35 impinge upon the fundamental rights of the
players and other persons as also the rights, "We have pointed out that that argument is not
hopes and aspirations of the cricket loving factually correct and what in fact the BCCI/CAB is
public. The right to see the game of cricket 75 asserting is a right u/art. 19(1)(a). While asserting
live or on television also forms an important the said right, it is incidentally going to earn some
revenue. In the circumstances, it has the right to choose
the best method to earn the maximum revenue 40 description of "Other Authorities" as
possible. In fact, it can be accused of negligence and contained in Art. 12 of the Constitution of
may be attributed improper motives, if it fails to India and satisfies the requisite legal tests,
explore the most profitable avenue of telecasting the as noticed hereinbefore. It would,
5 event, when in any case, in achieving the object of therefore, be a 'State'.
promoting and popularizing the sport, it has to
endeavour to telecast the cricket matches." 45 PRECEDENT:
220. The aforementioned findings pose a 222. Are we bound hands and feet by Pradeep
question. Could this Court arrive at such a Kumar Biswas 2002 Indlaw SC 322 (supra)?
10 finding, had it not been for the fact that the
The answer to the question must be found in
association exercises enormous power or it is the law of precedent. A decision, it is trite,
50 should not be read as a statute. A decision is
a 'State' within the meaning of Art. 12. If
Cricket Association of Bengal 1995 Indlaw SC an authority for the questions of law
2353 (supra) was considered to be a pure determined by it. Such a question is
15 private body where was the occasion for this
determined having regard to the fact situation
Court to say that 'if it fails to explore the most obtaining therein. While applying the ratio,
profitable avenue of telecasting the event 55 the court may not pick out a word or a
whereby it would achieve the object of sentence from the judgment divorced from
promoting and popularizing the sport, it may the context in which the said question arose
20 be accused of negligence and may be
for consideration. A judgment, as is well-
attributed improper motives?' known, must be read in its entirety and the
60 observations made therein should receive
221. Applying the tests laid down consideration in the light of the questions
hereinbefore to the facts of the present raised before it. [See Punjab National Bank vs.
case, the Board, in our considered R.L. Vaid and Others (2004) 7 SCC 698 2004
25 opinion, said description. It discharges a Indlaw SC 686]
public function. It has its duties towards
65 223. Although, decisions are galore on this
the public. The public at large will look
forward to the Board for selection of the point, we may refer to a recent one in State of
best team to represent the country. It must Gujarat and Others Vs. Akhil Gujarat Pravasi
30 manage its housekeeping in such a V.S. Mahamandal and Others [AIR 2004 SC
manner so as to fulfill the hopes and 3894 2004 Indlaw SC 263] wherein this Court
aspirations of millions. It has, thus, a duty 70 held:
to act fairly. It cannot act arbitrarily, "It is trite that any observation made during the course
whimsically or capriciously. Public of reasoning in a judgment should not be read divorced
35 interest is, thus, involved in the activities from the context in which they were used."
of the Board. It is, thus, a State actor. We,
therefore, are of the opinion that law 224. It is further well-settled that a decision is
requires to be expanded in this field and it 75 not an authority for the proposition which did
must be held that the Board answers the not fall for its consideration.

225. It is also a trite law that a point not raised questions raised therein. The questions raised
before a Court would not be an authority on 40 herein were neither canvassed nor was there
the said question. any necessity therefor. Pradeep Kumar Biswas
2002 Indlaw SC 322 (supra), therefore, cannot
226. In A-One Granites v. State of U.P. and be treated to be a binding precedent within
5 Others [(2001) 3 SCC 537 2001 Indlaw SC the meaning of Art. 141 of the Constitution of
20282], it is stated as follows :- 45 India having been rendered in a completely
"This question was considered by the Court of Appeal different situation.
in Lancaster Motor Co. (London) Ltd. v. Bremth 228. The question has been considered by us
Ltd. [1941] 1 K.B. 675, and it was laid down that on the touchstone of new tests and from a
10 when no consideration was given to the question, the
new angle.
decision cannot be said to be binding and precedents
sub silentio and without arguments are of no moment." 50 ALLAYING THE APPREHENSION:
[See also State of U.P. and Another Vs. 229. Only because a body answers the
Synthetics and Chemicals Ltd. and Another. description of a public authority, discharges
15 (1991) 4 SCC 139 1991 Indlaw SC 702, Arnit public law functions and have public duties,
Das Vs. State of Bihar, (2000) 5 SCC 488 the same by itself would not lead to the
2000 Indlaw SC 443, Bhavnagar University 55 conclusion that all its functions are public
Vs. Palitana Sugar Mill (P) Ltd. and Others, functions. They are not. (See Donoghue
(2003) 2 SCC 111 2002 Indlaw SC 1454, (supra)) Many duties in public law would not
20 Cement Corporation of India Ltd. Vs. Purya be public duties as, for example, duty to pay
and Others, (2004) 8 SCC 270 2004 Indlaw taxes.
SC 840, Bharat Forge Co. Ltd. Vs. Uttam
Manohar Nakate, JT 2005 (1) SC 303 2005 60 230. By way of illustration, we may point out
Indlaw SC 36], and Kalyan Chandra Sarkar vs. that whereas mandamus can issue directing a
25 Rajesh Ranjan @ Pappu Yadav & Anr. (2005)
private body discharging public utility services
1 SCALE 385 2005 Indlaw SC 1569]. in terms of a statute for supply of water and
electricity energy, its other functions like
227. We have noticed, hereinbefore, that in 65 flowing from a contract etc. would not
Pradeep Kumar Biswas 2002 Indlaw SC 322 generally be amenable to judicial review. (See
(supra) the only question which arose for Constitutional and Administrative Law By
30 consideration was as to whether the decision A.W. Bradley and K.D. Ewing)
of the Constitution Bench in Sabhajit Tewary
1975 Indlaw SC 106 (supra) was correctly 231. There are numerous decisions of this
70 Court where such a distinction between public
rendered by a Constitution Bench of 5-Judges.
As the said decision centered around the law function and private law function has
35 activities of CSIR vis-a-vis the tests laid down
been drawn by this Court. [See Life Insurance
therefor in Sabhajit Tewary 1975 Indlaw SC Corporation of India Vs. Escorts Ltd. and
106 (supra), the ratio must be understood to Others, (1986) 1 SCC 264 1985 Indlaw SC
have been laid down in respect of the 75 368 Kerala State Electricity Board and

Another Vs. Kurien E. Kalathil and Others, yet arisen. It is, however, necessary to
2000 (6) SCC 293 2000 Indlaw SC 363, Johri 40 mention that a question as to whether a
Mal 2004 Indlaw SC 423 (supra)and State of function of the Board would be a public
Maharashtra and Others Vs. Raghunath function or a private function would depend
5 Gajanan Waingankar, 2004 AIR SCW 4701 upon the nature and character thereof. This
2004 Indlaw SC 572] Court cannot be asked to give a hypothetical
45 answer to a hypothetical question.
232. In Johri Mal 2004 Indlaw SC 423 (supra)
it is stated: "The legal right of an individual 235. The contention of Mr. Venugopal to the
may be founded upon a contract or a statute effect that the consequences of treating the
10 or an instrument having the force of law. For Board as State will be disastrous inasmuch as
a public law remedy enforceable u/art. 226 of all the national sports federations as well as
the Constitution, the actions of the authority 50 those bodies which represent India in the
need to fall in the realm of public law be it a international fora in the field of art, culture,
legislative act or the State, an executive act of beauty competitions, cultural events, music
15 the State or an instrumentality or a person or and dance, science and other conferences or
authority imbued with public law element. competitions relating to any subject would
The question is required to be determined in 55 become a 'State' is one of the desperation.
each case having regard to the nature of and
extent of authority vested in the State. 236. We clarify that this judgment is rendered
20 However, it may not be possible to generalize
on the facts of this case. It does not lay down
the nature of the action which would come a law that all national sports federations would
either under public law remedy or private law be State. Amongst other federations, one of
field nor is it desirable to give exhaustive list 60 the important factors which has been taken
of such actions. note of in rendering the decision is the fact
that the game of cricket has a special place in
25 (Emphasis supplied) India. No other game attracts so much
attention or favour. Further, no other sport, in
233. The submission of the learned counsel 65 India, affords an opportunity to make a
for the Board that once it is declared to be a livelihood out of it. Of course, each case may
'State'; the consequences would be devastating have to be considered on its own merit not
inasmuch as all its activities would be subject only having regard to its public functions but
30 to government control, with respect, cannot
also the memorandum of association and the
be accepted as in absence of any statute or 70 rules and regulations framed by it. Only
statutory rules no such control can ordinarily because it is a State within the meaning of
be exercised by Union of India or State. Article 12, the same by itself would not mean
234. It is not necessary for us to consider as to that it is bound by rule of reservation as
35 whether for entering into a contract with the contained in Cl. 4 of Art. 15 and Cl. 4 of the
players or for their induction in a team, the 75 Art. 16 of the Constitution of India.
provisions of Arts. 14 and 16 are required to
be complied with as no occasion threrefor has
237. In Ajit Singh and Others (II) Vs. State of to be decided in each particular case by the court
Punjab and Others [(1999) 7 SCC 209 1999 40 dealing with the grievances brought by an aggrieved
Indlaw SC 725], it has been held that Art. person against the bodies covered by the definition of
16(4) is an enabling provision and, thus, it is 'State' under Art. 12 of the Constitution."
5 not mandatory. The State in its discretion may
provide reservation or may not . [See also 240. The "in terrorem" submission of Mr.
E.V. Chinnaiah vs. State of Andhra Pradesh & Venugopal that a floodgate of litigation would
Ors. 2004 (9) SCALE 316 2004 Indlaw SC 45 open up if the Board is held to be a State
922] Furthermore, only because a corporation within the meaning of Art. 12 of the
10 or a society is a State, the same would not
Constitution cannot also be accepted.
necessarily mean that all of its actions should Floodgate arguments about the claimed
be subject to judicial review. The court's devastating effect of being declared a State
jurisdiction in such matter is limited. [See 50 must be taken with a grain of salt. The courts,
Johrimal 2004 Indlaw SC 423 (supra). firstly, while determining a constitutional
question considers such a question to be more
15 238. It is furthermore well-settled that or less irrelevant. [See Guruvayoor Devaswom
issuance of a writ is discretionary in nature. Managing Committee and Another Anr. Vs.
The Court may in a given case and in larger 55 C.. K. Rajan and Others [(2003) 7 SCC 546
interest may not issue any writ at all. 2003 Indlaw SC 633 Secondly, as would be
noticed hereinafter that this Court has evolved
239. Mr. Venugopal vehemently argued that if principles of judicial restraint as regards
20 the Board is held to be a State within the interfering with the activities of a body in
meaning of Art. 12 of the Constitution, the 60 policy matters. It would further appear from
doors of this Court and the High Courts the discussions made hereinbefore that as all
would be knocked at very frequently actions of the Board would not be subject to
questioning all and single action of the Board judicial review. A writ would not lie where the
25 which may include selection of players for
list involves only private law character.
Indian Team, day to day functioning et al. We
do not agree. 65 241. We are not oblivious of the fact that one
of the grounds why the English Courts
Recently in Virendra Kumar Srivastava 2004 refused to broaden the judicial review concept
Indlaw SC 993 (supra), this Court held: so far as the sporting associations are
30 "Before parting with the case, it is necessary for us to concerned, that the same would open
clarify that even though a body, entity or Corporation 70 floodgate.
is held to be a 'State' within the definition of Art. 12 242. Unlike England, India has a written
of the Constitution what relief to the aggrieved Constitution, and, thus, this Court cannot
person or employee of such a body or entity is to be refuse to answer a question only because there
35 granted is a subject matter in each case for the court to may be some repercussions thereto. As
determine on the basis of the structure of that society 75 indicated hereinbefore, even the decisions of
and also its financial capability and viability. The
subject of denial or grant of relief partially or fully has
this Court would take care of such Churchill Brothers Sports Club Private
apprehension. Limited
243. It is interesting to note that Lord 40 v

Denning M.R. in Bradbury and others vs.
5 London Borough of Enfield (1967) 3 All ER Union of India and another
434 : [1967] 1 W.L.R. 1311] held :- Case No :W. P. (C) No. 9775/2015 & CM
"It has been suggested by the Chief Education Officer No. 23488/2015 (for stay)
that, if an injunction is granted, chaos will supervene. Bench :Rajiv Sahai Endlaw
All the arrangements have been made for the next
10 term, the teachers appointed to the new comprehensive 45 Citation :2016 Indlaw DEL 932
schools, the pupils allotted their places, and so forth. It
would be next to impossible, he says, to reverse all
these arrangements without complete chaos and damage 1. The petition impugns the communication
to teachers, pupils and public. I must say this: if a dated 13th July, 2015 of the respondent no.2
15 local authority does not fulfil the requirements of the All India Football Federation (AIFF)
law, this court will see that it does fulfil them. It will 50 informing the petitioner that the petitioner is
not listen readily to suggestions of "chaos". The not eligible to apply for the grant of licence to
department of education and the council are subject to participate in the I-League Season 2015-16.
the rule of law and must comply with it just like
20 everyone else. Even if chaos should result still the law 2. Notice of the petition was issued on the
must be obeyed but I do not think that chaos will contention of the senior counsel for the
result. The evidence convinces me that the "chaos" is 55 petitioner that though under the Indian Club
much over-stated. I see no reason why the position Licensing Regulations framed by the
should not be restored, so that the eight school retain respondent no.2 AIFF the decision, to whom
25 their previous character until the statutory to license for participation in the I-League is
requirements are fulfilled. I can well see that there may to be given, is to be taken by the Club
be a considerable upset for a number of people, but I 60 Licensing Committee and against the order
think it far more important to uphold the rule of law. whereof remedy of appeal is available to the
Parliament has laid down these requirements so as to Club Licensing Appeal Body but the
30 ensure that the electors can make their objections and application of the petitioner for licence for the
have them properly considered. We must see that their I-League Season 2015-16 had been rejected
rights are upheld." 65 not by the Club Licensing Committee but by
the Manager, Club Licensing.
CONCLUSION :
3. Counter affidavits have been filed by the
244. For the reasons aforementioned, we are respondents and rejoinders whereto have
35 of the considered view that the writ petition been filed by the petitioner. The counsels
u/art. 32 of the Constitution of India is 70 have been heard.
maintainable. It is ordered accordingly.

4. The relevant part of the impugned provisions of the Club Licensing Regulations in the
communication dated 13th July, 2015 is as 40 subsequent years.
under:-
Therefore, as Churchill Brothers does not fulfil any of
"Therefore, in terms of the said direction of the the abovementioned requirements, please be informed
5 Hon'ble High Court dated 10.04.2015 and that you are not eligible to apply for the grant of license
subsequent to submission of license application & to participate in the I-League Season 2015-16."
representation dated 02.07.2015, we would like to
inform you that the licensing procedure is only 45 (emphasis added)
applicable to the clubs already participating in the I- 5. The senior counsel for the petitioner
10 League and the Champions of the 2nd Division contends that the criteria adopted by the
league. Further, only the following clubs can be granted respondent no.2 AIFF for holding the
National and AFC Licence under the Indian Club petitioner not eligible to apply for grant of
Licensing procedure of the I-League Season 2015-16: 50 license is not provided in the Regulations
i. Existing clubs participating in the I-League Season aforesaid.
15 2014- 15 which have not been relegated i.e. the clubs 6. The counsel for the respondent no.2 AIFF
which were playing in the I-League Season 2014-15 has in this regard drawn attention to Article
and which have not been relegated to the second 32 of the Constitution of the respondent no.2
division at the end of the I-League are eligible; 55 AIFF which inter alia provides that the
ii. Champions of the 2nd division league i.e. Clubs Executive Committee shall pass decisions on
20 who participate in the second tier national league
all cases that do not come within the sphere
competition of India i.e. 2nd Division League and win of responsibility of the General Body or are
the competition are eligible to participate in the not reserved for other bodies, by law or under
licensing process of the subsequent season of I-League. 60 the Statutes of the respondent no.2 AIFF.
In the present season, Aizawl FC participated in the He has then drawn attention to the extract of
25 2nd Division League 2014- 15 and won the same, the minutes of the meeting of the Executive
making them eligible to apply for a license to play in I- Committee of the respondent no.2 AIFF held
League Season 2015-16. You were given an on 2nd February, 2008 inter alia providing
opportunity to participate in the 2nd Division League 65 that the clubs not ad- hearing to the licensing
2014-15 at the start of the season, which you also policies and requirements would not be
30 applied for, but later denied participation thus making considered for the next I-League, whatever
you ineligible to qualify for I-League 2015-16 under may be their classification at present, and to
this criterion; the extract of the minutes of the meeting of
70 the Executive Committee of the respondent
Please also note that, clubs entering through the
bidding route (lateral entry) are given a one-time no.2 AIFF held on 11th August, 2008 inter
35 exemption for the 1st year, which was also given to
alia recording that clubs which do not abide
your club, Churchill Brothers for the season 2013-14. by Club Licensing Regulations of AIFF and
Thereafter, as per the provisions of the present Asian Football Confederation (AFC) will not
regulations, such clubs are required to comply with the 75 be considered for participation in the next

edition of the I-League, even if they are not 10. The counsel for the respondent no.2 AIFF
among the demoted teams. Attention is next has contended that the "License Applicant"
invited to the Regulations supra defining a 40 having been defined as an entity participating
License Applicant as a legal entity fully and in National and International club
5 solely responsible for the football team competitions, an entity as the petitioner which
participating in the National and International in the current year has not been participating
club competitions which applies for a license. in the competitions, cannot be considered
45 eligible and if it were to be held that the Club
7. I have enquired from the counsel for the Licensing Committee is to consider even the
respondent no.2 AIFF, where is the "Indian applicants who are not eligible, it could
10 Club Licensing procedure of the I-League
become a mammoth task and the Club
Season 2015-16" referred to in the impugned Licensing Committee would not be able to
communication dated 13th July, 2015 and 50 process and consider all the applications.
Clauses (i) and (ii) of which are quoted in the
said communication. 11. I am of the opinion that (i) in the absence
of any defined procedure prescribed in one
15 8. The counsel for the respondent no.2 AIFF
document, and on the basis whereof an
states that there is no single document applicant for a license can test its eligibility,
containing the same and what is stated therein 55 and (ii) in the absence of any Regulation
is on the basis of practice and decisions taken vesting the Manager of Club Licensing
by various Bodies of the respondent no.2 Committee with a power to reject an
20 AIFF and contained in separate documents application for licence of an applicant and
and which have not been placed before this further (iii) in the absence of the Regulations
Court. 60 providing any remedy against the rejection of
9. I have also drawn attention of the counsel an application by the Manager, the possibility
for the respondent no.2 AIFF to the bullet of the Manager erroneously rejecting an
25 points under the heading "Operations and application and the licence applicant being left
Duties" and under the heading "Powers" in remedyless and wrongfully ousted from
Regulation 3.1.2 titled "Club Licensing 65 participation in the I-League, cannot be ruled
Committee (First Instance Body)"of the out. The procedure adopted by the
Regulations supra and which provide the respondent no.2 AIFF for ousting the
30 procedure for consideration of an application petitioner from participation in I-League, even
and which does not provide that the Club though may be valid and bona fide, does not
Licensing Manager is to screen the 70 inspire confidence. Further, the procedure
applications to consider the eligibility of the followed is also not found to be consistent
applicant so as to enable the Club Licensing with the Regulations, particularly Regulation
35 Committee to consider only those 3.1.2 supra as per which all applications are
applications which are found by the Manager required to be considered and decided by the
to be eligible. 75 Club Licensing Committee. In the absence of
any provision so authorizing the Manager, the

Club Licensing Manager can only submit/put the rejection, even if erroneous, by the
up the applications for licence for 40 Manager of an application, being allowed to
consideration of the Committee along with his be final.
report on the eligibility of the applicant. The
5 application of the petitioner has admittedly 15. Supreme Court, in Babubhai & Co. Vs.
not been considered by the Club Licensing State of Gujarat (1985) 2 SCC 732 1985
Committee. Indlaw SC 256, dealing with the challenge to
45 the validity of provisions of the Bombay
12. The counsel for the respondent no.2 AIFF Town Planning Rules, 1955 on the ground
states that he has already advised the that the same did not provide corrective
10 respondent no.2 AIFF to consider amending machinery of appeal or revision to any
the Regulations in the said light. He has superior authority against an adverse order,
however sought to draw analogy of the 50 held that the power so conferred may be
procedure followed with the scrutiny by the unreasonable and arbitrary unless conferred
Registry of this Court of the plaints, petitions on a high authority/official and depending on,
15 filed before this Court and which come up for (a) nature of power; (b) whether the power is
consideration before the Judge only if found to be exercised objectively or depends on the
by the Registry to be compliant in all respects. 55 subjective satisfaction; (c) whether exercise of
power is compliant with principles of natural
13. The analogy given, though may be correct, justice; (d) whether the exercise of power
but the Rules of filing of this Court are requires making of a speaking order; (e)
20 specific in this regard and not only empower whether the procedure prescribed ensures
the Registry to so scrutinize but also provide 60 application of mind on the part of the
remedy against the objections raised by the authority etc. It was held that all these factors
Registry. That is what is lacking in the will have to be considered in the light of the
Regulations of respondent no.2 AIFF. scheme of the enactment and the purpose
25 14. The Regulations of the respondent no.2 intended to be achieved by the concerned
AIFF as they stand, require the application for 65 provision and that if on an examination of the
licence to, in the first instance, be considered scheme of the enactment as also the purpose
by the Club Licensing Committee and do not of the concerned provision it is found that the
empower the Committee to further empower power to decide or do a particular thing is
30 the Manager to decide the eligibility of the conferred on a very minor or petty officer and
applicant. The Regulations also provide the 70 that the exercise thereof by him depends on
remedy of appeal to the Club Licensing his subjective satisfaction and that he is
Appeal Body to an applicant aggrieved from expected to exercise the power
decision of the Committee. The counsel for administratively without any obligation to
35 the respondent no.2 AIFF on enquiry states make a speaking order, then the absence of a
that against the rejection by the Manager of an 75 corrective machinery will render the provision
application, the remedy of appeal also is not conferring such absolute and unfettered
available. The same, in my view amounts to power invalid. The said view was subsequently

reiterated in Indian Airlines Ltd Vs. Prabha D. 40 Vs. State of West Bengal AIR 1967 Calcutta
Kanan (2006) 11 SCC 67 2006 Indlaw SC 450 1966 Indlaw CAL 129 on the said
1331. proposition and which proposition of law
remains unshaken till date.
16. Applying the aforesaid principles and
5 further considering that the Regulations of the 18. The counsel for the respondent no.2 AIFF
respondent no.2 AIFF do not even provide 45 has then contended that the first game of the
for the Manager of the Club Licensing season is to begin on 9th January, 2016 and
Committee to so screen the applications for the fixtures of the entire season were finalised
license, I am of the view that a case for in December, 2015 and even if a decision
10 interference with the impugned decision is were to be now reached in favour of the
made out, particularly when there is no clarity 50 petitioner, it would not be possible to allow
also on the eligibility. In the absence of the the petitioner's participation in the current
eligibility conditions being specified in a season. He has handed over a Timeline for
singular document visible to all concerned, the the year 2015 of AIFF Club Licensing
15 power exercised by the Manager of rejecting showing that the Core Process thereof was to
the application of the petitioner for license on 55 begin on 31st March, 2015 with the
the ground of the petitioner being not eligible announcement of the licensing applications to
for license and which rejection is without any the clubs and to culminate on 10th October,
opportunity of hearing is indeed found to be 2015 by issuance of licenses to the club.
20 unreasonable and arbitrary.
19. I may in this regard notice that though the
17. Though in the event of it being ultimately 60 impugned communication is dated 13th July,
found that the eligibility conditions indeed are 2015 but this petition was filed only on 9th
as are quoted in the impugned letter, the October, 2015 and came up first for
petitioner may have been rightly denied the consideration on 14th October, 2015 when
25 license but it cannot be lost sight of that the adjournment was sought on behalf of the
right of the petitioner to have its application 65 petitioner and was thereafter taken up for
for license considered by the Club Licensing consideration on 28th October, 2015. I am of
Committee has indeed been violated. Though the view that the delay on the part of the
the Courts cannot substitute their own petitioner (though the senior counsel for the
30 opinion on such matters i.e. whether the petitioner gives explanation therefor) from
petitioner was/is entitled to the license for 70 13th July, 2015 till 28th October, 2015 when
participation in the I-League Season 2015-16 the entire process for licensing had closed, is
or not but upon finding the application to fatal to the grant of any relief to the petitioner.
have been not considered by the authority
35 empowered to consider the same, can 20. The senior counsel for the petitioner then
certainly grant a mandamus for consideration contends that the entire procedure and criteria
thereof by the appropriate authority. I am 75 adopted by the respondent no.2 AIFF is de
tempted to cite an old judgment of the High hors the Regulations and at the ipse dixit of its
Court of Calcutta in Ruttonjee and Company Executive Committee and without any basis.

It is further contended that the procedure is discrimination/favouritism if any practiced by

also arbitrary as it ignores the vintage and past 40 the respondent no.2 AIFF in the licensing for
records of a club as the petitioner which is the Season 2015-16 and seeking appropriate
being denied participation. It is also remedies for the procedure and criteria for
5 contended that the respondent no.2 AIFF has licensing for future seasons.
treated different clubs though identically
placed differently and has thereby indulged in 23. No costs.
discrimination and favouritism. 45 Petition disposed of
21. However there are no proper pleadings on
10 all the said aspects and without any
foundation in pleadings and response of the
respondent no.2 AIFF thereto, the said
Cheteshwar Arvind Pujara
arguments cannot be considered.
v
22. Accordingly, this petition is disposed of
15 with the following directions:- 50 Union of India and others
A. The respondent no.2 AIFF to consider (i)
amending its Regulations to either clearly spell
out the eligibility criteria for licensing therein Case No :Writ Petition No. 1941 of 2018
or if otherwise entitled under the Regulations
Bench :S.C. Dharmadhikari, Prakash D. Naik
20 and its Constitution to decide the eligibility
criteria for licensing from season to season, to Citation :2018 Indlaw MUM 1423
clearly spell out the eligibility criteria at the
time of announcing the licensing applications 55 The Order of the Court was as follows :
itself; and, (ii) if desirous that the eligibility of
1. The petitioner is an Indian citizen. He is a
25 the applicants be considered/screened before
businessman and says that he plays
the application is considered by the Club
international cricket representing India. He
Licensing Committee, to make express
also plays domestic cricket. He participated in
provision therefor in the Regulations
60 what is known as Indian Premier League
including the desirability of a remedy against
(IPL). He was one of the players chosen by
30 the decision of the Screening Body or person,
the franchisee Knight Riders Sports Private
and take a decision thereon before the
Limited. This franchisee is owner of one
announcement of the next licencing
team in the IPL, namely, Kolkata Knight
applications.
65 Riders. An agreement of 21st April, 2008 with
B. The petitioner though not entitled to any the petitioner was executed by this franchisee.
35 relief in this petition would be entitled to file
2. An intelligence was gathered, inquiry made
another proceeding challenging on merits the
and the service tax section of the
criteria for licensing adopted by the
Headquarter, namely, Central Excise
respondent no.2 AIFF as well as the
Commissionerate, Rajkot issued summons, cause notice was issued. The show cause
summoning the petitioner for inquiry. That 40 notice raised a demand. It is stated that the
inquiry culminated in an order against the petitioner was served with a notice to show
petitioner, but what the petitioner terms is cause. Whereas, the petitioner says that part
5 entirely one sided exercise contrary to the apart from merits, there should be a personal
principles of natural justice. The petitioner hearing. The personal hearing was fixed on
could not attend the hearing on account of his 45 29th, 30th and 31st October, 2011, but the
personal difficulties and professional assessee failed to attend the same. It was
commitments. adjourned to 16th, 19th and 20th November,
2012 and there was no communication from
10 3. The matter was carried in appeal and one
the assessee requesting for postponement of
Chartered Accountant firm was engaged to 50 the personal hearing on both occasions. The
represent the petitioner. However, from the officers say that there is due compliance with
record, the petitioner says, it is evident that the principles of natural justice.
the appeal was dismissed as beyond time.
7. It is urged before the appellate authority
15 4. Mr. Jetly appearing for the respondents
and specifically that there was no notice to the
raised a preliminary objection to the 55 petitioner. When the petitioner appeared
maintainability of the petition by submitting through one Chartered Accountant Archit
that the orders under challenge can be Agarwal, a specific plea was raised and that is
appealed to the Customs, Excise and Service that the order-in-original was communicated
20 Tax Appellate Tribunal and its Zonal Bench. by Speed Post and another copy was made
There, the issues of the order-in-original being 60 available on the petitioner's request by letter
violative of principles of natural justice and dated 6th February, 2015, which was received
the appeal being dismissed erroneously on on 7th February, 2015. This is a discussion on
account of limitation can be urged. Hence, we the point of service of the order-in-original.
25 should not entertain the writ petition. The grievance that the petitioner raises is that
5. The only contention raised before us is that 65 he had no opportunity to address the
this petition should be entertained because the competent authority when the order-in-
order-in-original dated 20th November, 2012 original was passed and that is purported to
is passed without affording reasonable be answered in the order-in-original. That it is
30 opportunity of being heard to the petitioner. the assessee's request for personal hearing,
It is, therefore, ex-facie illegal being contrary 70 which was accepted. The hearing was
to the principles of fairness, justice and equity. scheduled in the second week of July, 2012.
Earlier it was in October, 2011. The assessee
6. With the assistance of both sides, we have failed to attend the same.
perused this order. The order proceeds on the
35 footing that the petitioner has been served 8. What we find from a reading of the order-
with a show cause notice. The order proceeds 75 in-original is that it is dated 20th November,
to hold that the intelligence was gathered, 2012. If the record indicates that the assessee
inquiry initiated and thereupon, the show requested for a personal hearing after the

second week of July, 2012, then, any dates of 9. We do not, therefore, understand the
hearing scheduled prior to this month and 40 reasoning in para 13 of the order-in-original
date need not referred. That aspect is wholly and reference to any prior hearings of
irrelevant. The hearing was fixed on 29th, October, 2011. They are, admittedly, prior to
5 30th and 31st October, 2011, but the assessee the issuance of the show cause notice. After
allegedly failing to attend the same has the show cause notice was issued and the
resulted in postponement of the proceedings 45 petitioner requested that the matter be taken
admittedly. Then, the personal hearing was up post second week of July, 2012, then, we
fixed on 16th, 19th and 20th November, 2012 do not see how the order was passed,
10 and what we find is that the order-in-original particularly when the petitioner was notified
is dated 20th November, 2012. It means, it the dates of hearing on 16th, 19th and 20th
was passed immediately on the alleged failure 50 November, 2012. It is thus uncalled for and
of the assessee to remain present on the three avoidable urgency and expediency in disposal
dates in November, 2012. If the assessee was of the proceedings, which prompts us to
15 served with the copy of the show cause notice interfere with the order-in-original.
and which is dated 4th November, 2011, then,
any hearings prior to the issuance of the show 10. It is in these circumstances, we are unable
cause notice are of no significance. There, 55 to agree with Mr. Jetly that this petition
possibly, the assessee may have engaged a should not be entertained. We are mindful of
20 Chartered Accountant to give any clarification the fact that this is a matter of collection of
to the department. However, the issue service tax and when part liability of three
pertains to a show cause notice issued on 4th lakhs has already been paid by the petitioner.
November, 2011. The period covered is 1st 60 In these circumstances, we are of the view
October, 2008 to 30th September, 2011. that rights and equities can be balanced by the
25 Thus, this was a demand of service tax. Once petitioner being called upon to meet 50% of
the show cause notice was issued, the assessee the demand in the show cause notice. The
filed a reply on 30th May, 2012, then, the petitioner should, therefore, deposit a further
assessee pointed out that there were certain 65 sum of Rs. 5 lakhs within a period of four
professional commitments. There was an week from today with the Service Tax
30 injury suffered by the assessee, he was Commissionerate. The petitioner must
operated upon and was undergoing produce proof of such deposit and if that is
rehabilitation upto November, 2011. His produced, the order of the adjudicating
father also suffered massive heart attack and 70 authority, styled as order-in-original would
was unwell. There were professional stand quashed and set aside. Then, the
35 commitments also. That is why he sought petitioner should appear before the
condonation of delay caused in filing of the adjudicating authority on given date and time,
appeal. That is how the hearing was scheduled which will be communicated to him well in
in the second week of July, 2012. 75 advance. The petitioner cannot make a
grievance that he should be allowed to appear
in person or he wants to remain present when

the hearing is scheduled. Given the 30 Ajay Jadeja

petitioner's professional commitments, which
are bound to take priorities, we direct that in v
this case the petitioner must engage a Union of India and Others
5 representative, who will be allowed to inspect
the records and make submissions. The
petitioner cannot insist on personal presence.
Case No :C.M. No. 7650 of 2001 In C.W.P.
The fresh order shall be passed uninfluenced
35 No. 867 of 2001
by the earlier conclusions as expeditiously as
10 possible and after a period of six weeks from Bench :Mukul Mudgal
the date of conclusion of the hearing. All
contentions are kept open. Citation :2001 Indlaw DEL 1777
Order accordingly The Judgment was delivered by : MUKUL

MUDGAL
40 This is an application in a pending writ

15 petition where the respondents 2 and 3 seek a
decision on the preliminary question of
maintainability of this writ petition against
them. This writ petition by a national cricket
45 player, Shri Ajay Jadeja, inter alia, challenges
the 5 year long ban imposed on him by Board
of Control for Cricket in India (hereinafter
referred to as BCCI), respondent No. 2. Apart
20 from respondent No. 2, the petitioner has
50 filed the petition against Union of India,
respondent No. 1 through Secretary, Ministry
of Culture, Youth Affairs and Sports, Shri
A.C. Muthiah, President BCCI, respondent
No. 3, Shri Kamal Murarka, respondent No.
55 4, Shri Ram Pershad, Member Disciplinary
Committee, BCCI, respondent No. 5, Shri K.
25 Madhavan, respondent No. 6 and Secretary,
Ministry of Personnel, respondent No. 7 and
CBI, respondent No. 8. The writ petition also
60 challenges the show cause notice dated 22nd
December, 2000 issued by respondent No. 1,
seeking to withdraw the Arjuna Award
conferred on the petitioner.

2. In 1989 in dealing with a writ petition filed 40 said CBI enquiry. The CBI submitted its
under Article 32 of the Constitution of India report to the Government of India.
challenging the banning of certain current Thereafter the Board appointed Shri K.
cricketers as a punitive measure by BCCI, the Madhavan, respondent No. 6, as the Enquiry
5 Hon'ble Supreme Court observed as under : Officer, who summoned the petitioner, who
45 appeared before him and submitted a
"The word cricket is a synonym for representation refuting allegations in the CBI
gentlemanliness which means discipline, fair report, implicating the petitioner for
play, modesty and high standard of morality." fraternizing with bookies. Thereafter after a
3. The present writ petition arises from the semblance of a hearing by the Disciplinary
10 action of the respondent Nos. 2 and 3 50 Committee of the Board, the petitioner was
imposing a five year ban on the petitioner banned for five years by the order dated
pursuant to the alleged departure by the 5.12.2000 leading to the present writ petition.
petitioner from such high standards, The order banning the petitioner has been
eloquently summed up by the Hon'ble challenged on the ground of lack of
15 Supreme Court. The petitioner's case set out 55 jurisdiction, procedural unfairness as well as
in the writ petition is that the petitioner is a on merits.
professional cricket player and has 4. Mr. Sibal, the learned Senior Counsel
represented India regularly in cricket since appearing on behalf of respondent No. 2 has
1992. He has also captained India in One Day submitted as a preliminary objection that the
20 Internationals in 1999 and has played upto 60 BCCI is not amenable to the writ jurisdiction
date in 196 One Day Internationals at a because :
batting average of 37.44. Justice Y.V.
Chandrachud in an Enquiry concluded in (a) It is a Society registered under the Societies
1999 at the behest of BCCI examined the Registration Act.
25 allegations of betting and match-fixing in
cricket and found that there was no match- (b) It is affiliated to International Cricket
65 Council whose Member can only be a
fixing though possibility of players laying bets
was not ruled out. Pursuant to a registration corporation, individual nominated by a cricket
of an FIR on 5.4.2000 against some bookies playing country and Governmental
30 and Hansie Cronje, the then cricket captain of representation on ICC is not recognised.
South Africa, and the admissions made by (c) BCCI is not an 'authority or
him about match fixing, a public outcry arose 70 instrumentality of the State' within Article 12
in the country and the Parliament, and of the Constitution because it does not
consequently at the behest of Ministry of perform any public duty and has no
35 Culture, Youth Affairs and Sports, an enquiry monopoly status and does not execute any
was conducted by CBI into the allegations of sovereign function.
match-fixing and related malpractices
connected with the game of cricket. The 75 (d) The Government of India has taken a
petitioner co-operated and participated in the stand that the BCCI is an autonomous body

not funded by the Government of India and Government and no Government business
the Government has no control over BCCI's being undertaken by the society, it was not an
affairs and tax relief is available to all sports agency or instrumentality of State so as to
events and stadia at concessional rates and is 40 come within the purview of "other authority"
5 given to the respective State Associations of in Article 12 of the Constitution of India.
BCCI by the State Government in order to
promote sports and the stadia are not owned (ii) In Ramana Dayaram Shetty v. Airport
or leased by BCCI. Authority's case 1979 Indlaw SC 16, it was
held that for an authority to be an
(e) BCCI has its own constitution and 45 instrumentality or agency of State, certain tests
10 functions within its own rules and regulations. have to be satisfied, i.e., (a) the financial
assistance given by the State; (b) whether
(f) In view of the judgment of Mohinder there is any other form of assistance given by
Amarnath's case passed on 1.2.1989 holding the State whether it is of the usual kind or
that the BCCI is not a State within the 50 extraordinary; (c) the extent of control of
meaning of Article 12 of the Constitution no management or policies of the authority by
15 writ would lie against it. The said judgment of
the State; (d) enjoyment of State conferred or
the Division Bench of this Court is binding State protected monopoly and functions of
on the Single Judge. the authority in question being functions
(g) The petitioner's Counsel has submitted 55 closely related to Government functions.
that the petitioner is not claiming any (iii) In Chandermohan Khanna v. NCERT,
20 contractual right. 1991 Indlaw SC 820, it was held that it may be
(h) The petitioner has no legal right a relevant factor if the institution of the
enforceable in a writ proceeding and the corporation enjoys monopoly status which is
petitioner not having any contractual right, 60 State conferred or State protected. Article 12
there could be no direction or a decree of a should not be stretched so as to bring in every
25 Court compelling the BCCI to select any autonomous body within the sweep of the
player in the team and the concept of a 'zone expression 'State'.
of consideration' as in service jurisprudence (iv) In Praga Tools Corpn. v. CV Imanuel,
does not apply in the present case. 65 1969 AIR(SC) 1036, it was held that the
5. For this purpose in support of his plea that mandamus would lie to secure, performance
30 BCCI is neither 'State' nor an Authority as per of a public or statutory duty and not for an
Article 12 so as to be amenable to the writ order of reinstatement which is essentially of a
jurisdiction, he has relied upon the following private character.
judgments : 70 (v) In Sabhajit Tewary v. UOI and Ors., 1975
(i) In Tekraj Vasandi v. UOI and Ors., 1987 Indlaw SC 106, the Hon'ble Supreme Court
35 Indlaw SC 28433, it was held that there being held that a Society registered under the
no deep and pervasive control of the Societies Registration Act which does not
have a statutory character such as ONGC,
LIC or IFCI, is not an authority within the policies subject to just, reasonable and fair
meaning of Article 12 of the Constitution. terms.
6. Mr. Sibal has also sought to distinguish the (v) Calcutta Gas Co. v. State of West Bengal
cases cited by the Counsel for the petitioner 40 and Ors., 1962 Indlaw SC 318, did not apply
5 for the following reasons : as in this case it was held that there must be
an existence of a right for exercise of
(i) Ramana Dayaram Shetty v. The jurisdiction of High Court under Article 226
International Airport Authority of India and of the Constitution.
Others' case (supra), did not apply as the tests
formulated therein were not satisfied and the 45 (vi) M/s. Dwarka Das Marfatia and Sons v.
10 State was functioning through the Airport Board of Trustees of the Port of Bombay,
Authority for discharging its functions. 1989 Indlaw SC 601, was not applicable as the
Board of Trustees of the Port of Bombay was
(ii) Ajay Hasia v. Khalid Mujib, 1980 Indlaw a statutory authority constituted under the
SC 244, did not apply because of the fact that 50 Major Port Trusts Act, 1963 and contractual
due to the control exercised by the obligations were amenable to judicial review
15 Government, the Engineering College run by to the extent that the State must act validly for
the society in question was discharging State a discernible and not a whimsical reason.
functions and was controlled by the State and
hence fell within Article 12 of the (vii) Andi Mukhta Satguru Sri Mumkhtaji
Constitution. 55 Vandas Swami Suvarna Jayanti Mahotsav
Samarak Trust and Ors. v. V.R. Rudani and
20 (iii) UP State Co-operative Land Development Ors., 1989 Indlaw SC 589, was not applicable
Bank Ltd. v. Chander Bhan, 1991 (1) SCC as the concerned trust was an aided institution
741, did not apply because though the Society and like the Government institution
was functioning as a co-operative society 60 discharged public functions.
under the Co-operative Societies Act, it had
25 been constituted under the Bank Act. The 7. The plea raised by Shri A.C. Muthiah,
control of the State Government showed that President of BCCI, respondent No. 3, in his
the Bank was an extended arm of the counter affidavit filed only on the plea of
Government and fell within the definition of maintainability of this writ petition, inter alia,
'instrumentality' of 'State' or 'authority' under 65 reads as under :
30 Article 12 of the Constitution.
"It is submitted, with respect, that a member
(iv) LIC of India v. CE & RCs and Ors., 1995 of an international organisation cannot,
Indlaw SC 288, was not applicable because in possibly, be treated as an instrumentality of
issuing a general life insurance policy of any the "State" under Article 12 of the
type, public element is inherent in prescription 70 Constitution of India. On the other hand, all
35 of terms and conditions and the life insurance the rights and privileges are mainly, controlled
corporation owes a public duty to evolve their by the Memorandum and Articles of

Association of the present body of which this 35 what are its consequences can be decided only
respondent is a member." on evidence adduced by the parties.
Mr. Venugopal has also submitted that the Dismissed."

BCCI is not amenable to writ jurisdiction inter
5 alia for the following reasons :
9. Considerable reliance has also been placed
by respondent No. 3 on the order of the
(i) That it is not performing any public duty in 40 Hon'ble Supreme Court in a Special Leave
which the petitioner may have an interest. Petition (Civil) No. 10142/89 filed against the
above order of this Court in C.W. 632 of 1989
(ii) The petitioner is bound by the contract which came up for hearing alongwith another
with the Board as well as the Rules and Writ Petition No. 859/89 filed under Article
10 Regulations and any challenge based on 45 32 of the Constitution of India in the Hon'ble
contractual matters cannot be investigated in Supreme Court. The order of Hon'ble
writ jurisdiction. The contract with the Supreme Court dated 26.9.1989 reads as
petitioner is non-statutory. follows :
(iii) BCCI is a private society having non- "W.P. No. 859/1989 :
15 statutory regulations.
50 Mr. Soli J. Sorabjee prays for permission to
(iv) Unless the BCCI falls within Article 12, a withdraw this petition on the ground that the
writ petition will not lie. punishments imposed on the concerned
(v) At best a civil suit can be filed. cricketers have been revoked by the Board of
Control for Cricket in India.
8. Significantly the respondent Nos. 2 and 3's
20 pleas relate to it not being a State and/or 55 The word cricket is a synonym for
instrumentality of State in view of the findings gentlemanliness which means discipline, fair
recorded by a Division Bench of this Court in play, modesty and high standard of morality.
dismissing C.W. No. 632/89 in Mohinder We are happy to record that all parties
Amarnath v. BCCI and Ors., in limine in the concerned in the episode have played the
25 following terms : 60 game of cricket in its true spirit. The petition
is dismissed as withdrawn.
"We have examined ourselves all the
functions of the Board and heard the S.L.P. No. 10142/89 :
submissions of the Counsel. We are of the Since the punishment imposed on the
opinion that it does not qualify to be called an petitioner has been revoked, the petition is
30 instrumentality of the State under Article 12 65 disposed of without expressing any opinion
of the Constitution. on the view taken by the High Court of
Even otherwise, the legal relationship between Delhi."
the parties is regulated by a private contract. 10. The learned Senior Counsel for the
Whether there is any breach of contract and respondent No. 3, Mr. K.K. Venugopal, has

submitted that the Division Bench's order in matter to Full Bench, for deciding whether
Mohinder Amarnath is, therefore, binding on the DB judgment should be overruled, based
this Court and has submitted as under : 40 on later other judgments of the Supreme
Court.
1. That the Division Bench judgment is
5 binding on the Single Judge not only on Consequently a decision is sought by this
matters decided, but also on those matters, application on the preliminary question of
which might and ought to have been raised. maintainability of the writ petition.
2. In the case of Mohinder Amarnath, he was 45 11. Mr. Malhotra, the learned Senior Counsel
placed in the same position as Ajay Jadeja, for the petitioner in reply to the plea of the
10 both being subjected to disciplinary action maintainability has submitted as follows :
under the self-same rules (1994) and yet the
writ was dismissed as not maintainable. Surely (a) Encouragement of games and sports is a
the Court was aware of the fact that Article State function falling within the functions of
226 dealt with "any other authority" "or 50 the Ministry of Sports and Youth Affairs.
15 person". This question should also be deemed (b) The name of BCCI itself suggests that it is
to have been decided by the DB, as otherwise controlling the game of cricket in India and it
the Single Judge will be effectively overruling enjoys a monopoly status because nobody can
the DB. play competitive cricket in India without the
55 permission of BCCI.
3. The DB has expressly held that the writ is
20 in the realm of contract. It is certainly not in (c) Functions of BCCI are of public
the realm of Statute. If it is in the realm of importance on account of the State
contract, the DB judgment specifically holds Governments giving assistance in the form of
that no writ will lie. This will be binding on State largesse to the Members of the Board,
the Single Judge. 60 i.e., State Associations in the form of lease of
25 4. The appropriate course for the Single Judge
large grounds at prime urban locations at a
is therefore to refer the issue to the DB, rather nominal rent.
than hold by himself that the DB decision (d) The game of cricket affects high degree of
does not deal with that aspect on which public interest in the country.
maintainability could have been upheld, or lay
30 down a decretal order contrary to the 65 (e) The BCCI performs sovereign functions
judgment of the DB, as that would result in by selecting and sending cricket teams to
confusion. represent India and similarly inviting teams of
other foreign countries to play with the Indian
5. The doctrine of precedent and comity of team. This is evident from the fact that
Courts would require that the Court has to 70 whether or not to play a foreign country such
35 leave it to a DB, which in turn, if it arrives at as Pakistan is governed by a political decision
the conclusion that the earlier DB judgment of the Government. This clearly indicates that
should be overruled, would then refer the

the function of selection of a team to media coverage much larger than the media
represent India is sovereign in character. coverage even for an event as important to
the nation as the Republic Day Parade.
(f) Then BCCI is considered by the Ministry
of Youth Affairs and Sports to be the 40 12. The learned Counsel for the petitioner
5 regulatory authority of cricket in India. has, however, relied upon the above quoted
order dated 26th September, 1989 of the
(g) The team selected by the BCCI represents Hon'ble Supreme Court to contend that the
India bearing the Logo 'India' and flies the Hon'ble Supreme Court left open the question
Indian Flag and Ashok Chakra is worn on the 45 decided by the Division Bench of this Court
team dress and the team is clearly not in Mohinder Amarnath's case by not
10 representing the BCCI but the nation. For all expressing any opinion on the view taken by
international tournaments such as the World the Division Bench of this Court. The learned
Cup or the Commonwealth Games where Counsel for the petitioner submitted that by
only countries participate, the teams are 50 virtue of the law laid down by a Division
selected by the BCCI. Bench of this Court in 60 1995 DLT 169
15 (h) The Government allows large sums of (DB)=1995 DRJ 195, Fashion Linkers and
foreign exchange known as minimum bank Ors. v. Savitri Devi and Anr., and the order of
guarantee amount to be paid to the foreign the Hon'ble Supreme Court dated 28th
teams and also releases foreign exchange 55 September, 1989, the view of the Division
towards expenses for boarding and lodging. Bench in Mohinder Amarnath's case was not
binding on this Court. In Fashion Linkers
20 (i) Cricket laws are framed by the BCCI in (supra), Hon'ble Chief Justice M.J. Rao of this
India. Court as he then was, speaking for the Court
60 held as follows :
(j) The Arjuna Award is granted by the
Government on the recommendation of "3. We pointed out in our judgment in the
BCCI. FAO that the judgment of the Division Bench
in Deepak Kapoor's case did not hold the
25 (k) In International Matches played in India
field because its efficacy as a precedent was
large amount of Government infrastructure
65 lost in view of the fact that in an SLP against
such as live coverage and security, at
the said judgment, the Supreme Court had
considerable public expense is provided by
expressly left the legal question open. We then
the Government machinery. Large sums of
went into the scope of the new rule again and
30 money are earned by the BCCI affiliates by
held that it was not to be treated as an
utilising the prime locations available at
70 Exception to Order 26, CPC but had a wider
nominal or concessional rates for earning
area of operation, in view of the non obstante
huge profits by way of gate money,
clause, that it was intended to be used for
sponsorship and advertising revenue.
appointment of Local Commissioners for
35 (l) International Cricket Matches whether One recording evidence in old cases. We however
Day or a Test Matches receive the widest 75 cautioned that questions of admissibility have

to be dealt with by the Court as provided in Supreme Court without expressing any
Order 26 Rule 16A. We dismissed the FAO. 40 opinion as in Mohinder Amarnath's case. He
submitted that the above Division Bench
4. But now, it is contended before us again judgment in Fashion Linkers (supra), was,
that by not referring the matter to a Full therefore, inapplicable.
5 Bench, we had violated all principles of
judicial discipline and we should therefore set 14. In my view the decision of Fashion
aside the judgment and refer the matter to a 45 Linkers (supra) case fully covers the plea
Full Bench. We pointed out to Counsel that insofar as the applicability of the Mohinder
the judgment of the Division Bench of this Amarnath's order of the Division Bench is
10 Court in Deepak Kapur's case ceased to be a concerned in light of the Hon'ble Supreme
binding judgment because the legal issue as to Court's order dated 28th September, 1989
the effect of the new rule was left open by the 50 which did not express any opinion on the
Supreme Court on appeal vide order of the question thus leaving open the question
Supreme Court dated 24th October, 1994 involved. Furthermore, the distinction sought
15 passed in SLPs (Civil) 17238 and 17239 to be drawn by Mr. K.K. Venugopal between
(against judgment in RA 15/94 in FAO (OS) the question being left open and no view
64/94 and RA 14/94 in FAO 63/94). We had 55 being expressed is a distinction without
extracted the order of the Supreme Court in difference. The effect of both the phrases is
SLP in our judgment in the FAO. The clear essentially the same. Thus, I am of the view
20 words of the Supreme Court are : that Mohinder Amarnath's order does not
bind this Court in view of the decision of the
'The question of law raised by the petitioner 60 Division Bench in Fashion Linker's (supra)
in the Special Leave Petition is left open.' case. In light of this finding it is unnecessary
5. This aspect was already referred to in an to consider the effect of the other judgments
order in the FAO. We were of the view that cited by the learned Counsel on this issue.
25 once the question decided by the Division 15. The Division Bench judgment of the
Bench was left open, this Court was free to 65 Delhi High Court in Mohinder Amarnath's
deal with this question afresh without case refusing the issue of a writ against BCCI
referring the matter to a Full Bench. We were on the ground that the writ was not
therefore clearly within our jurisdiction to maintainable can also be clearly distinguished
30 consider the effect of the new rule,
for the following reasons even apart from the
uninhibited by what was said in Deepak 70 reason that the judgment of Fashion Linker's
Kapur's case by the earlier Division Bench. case (supra), clearly makes it not binding on
Hence this contention is to be rejected." the Single Judge.
13. Mr. K.K. Venugopal, the learned Senior (i) The only question which arose in Mohinder
35 Counsel for respondent No. 3 however Amarnath's case was whether the respondent
sought to draw a distinction between 75 fell within the category of State or other
questions being left open by Supreme Court
as in the above judgment, and disposal by the
authority and the Court in that context held (vi) Furthermore, the direct effect of
that it did not. 40 termination of such contract would be to
prevent the petitioner from continuing to
(ii) That imposition of a fine on account of represent the country in the sport. The
breach of contract in Mohinder Amarnath's respondent carries out the public duty in
5 case was neither the exercise of a statutory supervising and deciding on the selection of
power nor the exercise of a public duty but 45 persons who would represent the country and
was purely under contract. It, therefore, fell this indeed attracts widespread public interest
purely in the realm of private law. The effect engulfing every cricket following citizen of the
of imposition of the fine was also not such as country and an issue with which a large
10 to affect any statutory or fundamental right of
section of the public is interested.
the petitioner.
50 (vii) While levying a fine or not on a particular
(iii) In the present case the punishment sought player may amount only to a private issue as
to be imposed by the respondent is not in between that player and respondent, to
discharge of any particular contractual prevent the player from representing the
15 provision but in discharge of its general public
country whether directly by a ban in exercise
duty. In fact the action would also be sought 55 of its overall functions or powers or indirectly
to be justified on the ground of the public through terminating the contract, would be to
interest which cricket generates and BCCI result in such person's services not being
protects, and has been occasioned by a public made available to the nation. This, therefore,
20 outcry. would not be a purely personal matter
(iv) Not only is the respondent acting in 60 between the individual and the respondent
discharge of its public duty, but the effect of but would affect the interest of the public at
its action is directly to affect the respondent's large who are certainly interested as to who
Fundamental Right under Article 19(1)(g). As are going to be the flag bearers and
25 to whether the restriction placed on the representatives of their country.
exercise of such Fundamental Right is 65 16. Furthermore Mohinder Amarnath's case
justifiable or not is a matter which would fall dealt with the question whether BCCI is a
within the scope of judicial review particularly State or an instrumentality of State. A similar
if the breach of Article 14 is complained of on question was also considered and decided by
30 the ground of arbitrariness. the Karnataka High Court (which is a
(v) Even assuming that the respondent only 70 constituent member of BCCI) in its judgment
claims to terminate its contract with the dated 4th May, 2001 in CWP Nos. 16257-
respondent, the direct effect and consequence 16285/2000 the operation of which is stayed
of the termination of such contract is to by the Hon'ble Supreme Court on 23rd July,
35 prevent the petitioner from carrying on his 2001 in SLP (Civil) Nos. 11075-11103 of 2001
trade, business or profession. The complaint 75 pending the appeal in the Hon'ble Supreme
is clearly of abridgement/abrogation of a Court. The Karnataka High Court had
Fundamental Right. rejected the preliminary objection of the

Counsel for the Karnataka State Cricket 40 company or association or body of

Association (KSCA) that it was not 'State' individuals, whether incorporated or not. The
within the meaning of Article 12 and the writ Constitution is not a Statute. It is
petition was not maintainable. However, the fountainhead of all the Statutes. When the
5 learned Counsel for the petitioner has not language of Article 226 is clear, we cannot put
based his case on the plea that BCCI is 45 shackles on the High Courts to limit their
State/instrumentality of State but on the plea jurisdiction by putting an interpretation on the
that it is a body/person words which would limit their jurisdiction.
exercising/performing a public duty and is When any citizen or person is wronged, the
10 amenable to the writ jurisdiction under Article High Court will step in to protect him, be that
226 as laid down by Hon'ble Supreme Court 50 wrong be done by the State, an
in 1991 (1) SCC 741, UP State Co-op. Land instrumentality of the State, a company or a
Development Bank v. Chandra Bhan Dubey co-operative society or association or body of
and Others. The relevant portion of the said individuals, whether incorporated or not, or
15 judgment reads as under : even an individual. Right that is infringed may
55 be under Part III of the Constitution or any
" .. It does appear to us that Article 226 while other right which the law validly made might
empowering the High Court for issue of confer upon him.."
orders or directions to any authority or
person, does not make any such difference 17. In my view since I am not considering the
20 between public functions and private issue whether BCCI is State/instrumentality
functions. It is not necessary for us in this 60 of State/authority under Article 12, I am not
case to go into this question as to what is the required to consider the impact and effect of
nature, scope and amplitude of the writs of most of the other judgments relied upon by
habeas corpus, mandamus, prohibition, quo the Counsel except U.P. State Co-operative
25 warranto and certiorari. They are certainly Land Development Bank's case (supra). I am
founded on the English system of 65 also not considering this question as to
jurisprudence. Article 226 of the Constitution whether BCCI is State under Article 12 of the
also speaks of directions and orders which can Constitution of India as the decision of the
be issued to any person or authority including, Karnataka High Court rejecting the
30 in appropriate cases, any Government. Under preliminary objection of the Karnataka State
Clause (1) of Article 367, unless the context 70 Cricket Association, which is an affiliate of
otherwise requires, the General Clauses Act, BCCI, that it was not 'State' amenable to writ
1897, shall, subject to any adaptations and jurisdiction, already stands stayed by the
modifications that may be made therein under Hon'ble Supreme Court by its order dated
35 Article 372, apply for the interpretation of the 23rd July, 2001. The order of the Hon'ble
Constitution as applies for the interpretation 75 Supreme Court dated 23rd July, 2001 reads as
of an Act of the Legislature of the Domain of follows :
India. "Person" under Section 2(42) of the
General Clauses Act shall include any "Leave granted. Issue notice on the
application for interim relief. Pending further

orders, the order under challenge shall remain like the Karnataka State Cricket Association
stayed. under Article 226 of the Constitution; and (ii)
40 if the writ petition is found to be
Mr. P.R. Ramasesh, Advocate takes notice for maintainable, whether he impugned resolution
respondent Nos. 1 to 29. He states that he will at Annexure "A" can be said to be valid in
5 file a counter to the application for stay within
law?
three weeks. Rejoinder, if any, within two
weeks. 20. Keeping in view the activities of the
45 association, which arranges domestic and
List after six weeks. In the meantime the other international cricket matches and trains
respondents may be served." players to represent the nation at international
10 18. The Karnataka High Court by its sports events and monopolistic status it has
judgment dated 14th November, 2000 in WP acquired in the area, it cannot be said that it is
Nos. 16257-285/2000, which is now pending 50 engaged only in some private activities and the
in appeal by virtue grant of special leave by game of cricket for enjoyment of its members
the Hon'ble Supreme Court on 23rd July, alone. We can take judicial notice of the fact
15 2001, held as follows : that cricket matches, which are held and
organised by the association has wider
"18. Mr. Narashimamurthy, learned Senior 55 repercussions on the emotions of the citizens
Counsel appearing for the respondent of the nation. Therefore, public watch these
association, has also taken the objection of matches with great involvement and results
maintainability of the writ petition on the are seen as advancing or defeating the national
20 ground that the association is not a State interest in the field of spot.
within the meaning of a Article 12 of the
Constitution of India and therefore 60 Therefore, actions or decisions taken by the
irrespective of the fact whether the impugned association like the cricket association cannot
resolution at Annexure-A and the consequent be treated as falling exclusively in the private
25 communication at Annexure-B are legally law area. Management of such associations in
valid or invalid, the writ petitions filed by the accordance with rules and decisions taken by
petitioners cannot be entertained by this 65 it must stand to the test of fairness and strictly
Court under Article 226 of the Constitution of legal as per its memorandum and rules and
India and their only remedy is to approach the regulations. It is because of the above reason
30 Civil Court for enforcement of their right, if that in various countries these have been
available to them within the framework of the treated as part of public activity permitting the
rules of the association." 70 Courts to interfere with arbitrary actions of
the controlling bodies like the respondent
19. Considering the rival contentions raised at association (See : Wade's Administrative Law,
the Bar, in our opinion, we have to delve 7th Edition, under the heading "Review of
35 upon two questions, namely, (i) whether this Non-Statutory Action" Page 659).
Court can entertain writ petition against the
action of resolution passed by an association

21. It is because the above reason, the instrumentality, agency or the person acting in
Supreme Court, after reviewing those of the public interest, though in the field of private
judgments on the issue at hand, in the case of law, is not free to prescribe any
Air India Statutory Corporation v. United 40 unconstitutional conditions or limitations in
5 Labour Union, 1996 Indlaw SC 1670, Pr. 26, their actions.'
has held that
22. In the above view of the matter, keeping
'26. From the above discussion, the following in view of the nature of the activities
principles would emerge : conducted by the respondent association and
45 the impact of such activities of public interest,
(1) in our opinion, we will not be justified in
10 (9) Functions of an instrumentality, agency or rejecting the present writ petition under
person are of public importance following Article 226 of the Constitution is more in the
public interest element. nature of misnomer. It is well settled that
50 Courts do not interfere in all disputes as a rule
(10) The instrumentality, agency or person of prudence and not on the ground of lack of
must have an element of authority or ability to jurisdiction. Therefore, the preliminary
15 effect the relations with its employees or objection raised on behalf respondent
public by virtue of power vested in it by law, association is rejected."
Memorandum of Association or bye-laws or
articles of association. 55 In the above matter the Karnataka High
Court was deciding in writ jurisdiction issues
(11) The instrumentality, agency or person arising out of a dispute as to the voting rights
20 renders an element of public service and is of the members of the association which
accountable to health and strength of the action may not necessarily be in the public law
workers, men and women, adequate means of 60 field.
livelihood, the security for payment of living
wages, reasonable conditions of work, decent 19. I am, therefore, considering the effect of
25 standard of life and opportunity to enjoy full the judgment of the U.P. State Co-op. Land
leisure and social and cultural activities to the Development Bank's case (supra), where the
workman. Hon'ble Supreme Court expressly held that
65 the language of Article 226 does not admit of
(12) Every action of the public authority, any limitation on the powers of the High
agency interest or any action that gives rise to Court's jurisdiction and that it could be
30 public element should, be guided by public exercised only when the body or authority,
interest in exercise of public power or action decision of which is complained of is
hedged with public element and is open to 70 exercising its power in the discharge of public
challenge. It must meet the test of duty. In para 27 at page 758, the Supreme
reasonableness, fairness and justness. Court clearly recognized that Article 226
speaks of directions or orders to be issued to
35 (13) If the exercise of the power is arbitrary,
any person or authority and particularly
unjust and unfair, the public authority,
recognized that "person" under Section 2(42) 40 by the nature of the right or its infringement
of the General Clauses Act shall include any and in particular would certainly step in when
"company, or association or body of a fundamental right under Para III of the
individuals, whether incorporated or not". Constitution is said to be affected. (B) Would
5 Recognizing that the Constitution is the look into the nature of the duty of the
fountainhead of the all the Statutes, the Court 45 respondent as to whether the respondent is
went on to hold that when the language of only a private body with no public duty.
Article 226 is clear, shackles could not be
placed on the High Courts to limit their 21. In the instant case not only is a violation
10 jurisdiction by putting an interpretation on of fundamental right complained of but the
words which would limit their jurisdiction. nature of the duty being discharged by the
50 respondent is certainly a public duty dealing
And that when any citizen or person is
wronged the High Court will step in to with an activity which is of widest general
protect him, whether the wrong is done by the public interest and is in the furtherance of a
15 State an instrumentality of the State, a sporting activity which is of importance to any
company or a co-operative society or civilised society. In fact modern education
association or body of individuals whether 55 policies regards sports as an essential
incorporated or even an individual. More component of good education.
importantly the Court went on to hold that 22. The Court would not interfere with a
20 the right that is infringed may be under Part wholly contractual matter purely in the private
III of the Constitution or any other rights law field unless such contract gives rise to a
which the law validly made might confer upon 60 public duty in the respondent (which it indeed
him. does in this case), or should the act of the
20. From the above discussions the legal respondent result in a restriction on the
25 position that would follow is that the High
fundamental right. In either of the cases the
Courts' jurisdiction under Article 226 is Court's jurisdiction under Article 226 cannot
governed by the language in such Article and 65 be ousted.
the meaning assigned to the term "authority" 23. However some provisions of the
in Article 12 would not apply to such a term Memorandum of Association of the Board are
30 in Article 226 of the Constitution. relevant and read as under :
Furthermore, Article 226 also includes the
word "person" which would be interpreted in The objects of the Board are :
terms of Section 2(24) of the General Clauses
70 (a) to control the game of cricket in India and
Act and is an all encompassing expression. It
give its decision on all matters which may be
35 is the nature of the right that is relevant in the
referred to it by any State, Regional or other
exercise of this jurisdiction even against a
Association;
body which is neither State nor an
instrumentality of the State or "other (b) to arrange control, regulate and if
authority". The Court, (A) would be governed 75 necessary finance visits of teams that are

Members of the International Cricket Council "2. The BCCI which is the regulatory
and teams of the Countries in India; authority for the game of cricket in India has
imposed the above mentioned ban for 5 years
(c) to arrange, control, regulate and finance with effect from 5th December, 2000."
visits of an Indian Cricket Team to other
5 countries that are Members of the 40 24. Furthermore barring Services and
International Cricket Council or elsewhere in Railways, the Membership of the BCCI is
conjunction with the bodies governing cricket largely State-wise barring certain States such
in the countries to be visited; as Maharashtra, Andhra Pradesh and Gujarat
from which States have more than one
(d) to frame the Laws of Cricket in India and 45 member. This clearly shows that the
10 to make alteration, amendment or addition to respondent No. 2 is a body which represents
the Laws of Cricket in India whenever the cricketing interests of the whole nation.
desirable or necessary;
25. Mr. Malhotra, the learned Counsel for the
(e) to select teams to represent India in test petitioner relied upon the observations made
matches, official or unofficial played in India 50 in Tekraj Vasandi (supra) case for a limited
15 or abroad, and to select such other teams as purpose to the effect that in order to be
the Board may decide from time-to-time; amenable to writ jurisdiction all the tests laid
(f) to appoint manager and/or other official down in R.D. Shetty's case need not be
of Indian Team; satisfied. The Hon'ble Supreme Court held as
55 under :
(g) to appoint India's representative or
20 representatives on the International Cricket "12. It is time to turn to the facts of the
Conference and other Conferences, Seminars, present case to find out as to what the
connected with the game of cricket. conclusion should be when the tests
formulated by the several cases of this Court
The above provisions clearly demonstrate not 60 referred to above are applied. There cannot
only the monopoly character of BCCI but also indeed be a strait jacket formula. It is not
25 its power to select cricket teams for India and necessary that all the tests should be satisfied
to appoint India's representatives in the for reaching the conclusion either for or
International Cricket Conference and to frame against holding an institution to be 'State'. In a
laws of cricket in India. Significantly the 65 given case some of the features may emerge
Union of India's approval of the regulatory so boldly and prominently that a second view
30 status of BCCI is evident from the following may not be possible. There may yet be other
contents of the show cause notice dated 22nd cases where the matter would be on the
December, 2000 seeking to withdraw the borderline and it would be difficult to take
Arjuna Award, issued by the Ministry of 70 one view or the other outright."
Culture, Youth Affairs and Sports, to the
35 petitioner. 26. It is further submitted by the learned
Counsel for the petitioner that the above tests
relevant for finding out whether an institution
is 'State' will equally apply to with increasing assumption of new tasks,

authorities/persons who are amenable to writ 40 growing complexities of management and
jurisdiction. He further submitted that the administration and the necessity of continuing
features of BCCI relating to State approved adjustment in relations between the
5 monopoly status of BCCI and the public corporation and Government calling for
interest inherent in its functioning are so bold flexibility, adaptability and innovative skills, it
and prominent that a second view was not 45 is not possible to make an exhaustive
possible. enumeration of the tests which would
invariably and in all cases provide an unfailing
27. In R.D. Shetty v. International Airport answer to the question whether a corporation
10 Authority of India, 1979 Indlaw SC 16, the
is governmental instrumentality or agency."
Hon'ble Supreme Court held as follows :
50 28. In Wade Administrative Law 8th Edition
" ... But the public nature of the function, if at Pages 633-634, the Author has noted the
impregnated with governmental character or rectitude of the English Courts by declining
"tied or entwined with Government" or interference with the actions of the Sporting
15 fortified by some other additional factor, may
Authorities as under :
render the corporation an instrumentality or
agency of Government. Specifically, if a 55 "Sport is regulated on a national basis by a
department of Government is transferred to a number of powerful bodies such as the Jockey
corporation, it would be a strong factor Club, the Football Association, the National
20 supportive of this interference. Greyhound Racing Club and the British
Boxing Board of Control. They have no
It will thus be seen that there are several 60 statutory basis or authority, but in practice
factors which may have to be considered in they may operate a monopoly so that all
determining whether a corporation is an participants in the sport must accept their
agency or instrumentality of Government. We control or else be excluded; and their
25 have referred to some of three factors and disciplinary powers may have very serious
they may be summarised as under : 65 consequences for trainers, coaches, organisers
Whether it is of the usual kind or its is and so forth. Where membership of such a
extraordinary, whether there is any control of body is contractual there may be express or
the management and policies of the implied terms about fair treatment which the
30 Corporation by the State and what is the member can enforce in private law. But where
nature and extent of such control, whether the 70 there is no such membership private law
corporation enjoys State conferred or State offers no protection against abuse of the
protected monopoly status and whether the controlling body's power, despite occasional
functions carried out by the corporation are indications to the contrary 94 (See the
35 public functions closely related to decision of Sir Robert Megarry V-C in
governmental functions. This particularisation 75 McInnes v. Onslow-Fane, [1978] 1 W.L.R.
of relevant factors is however not exhaustive 1520, favouring limited review of the (non-
and by its very nature it cannot be, because statutory) British Boxing Board of Control's

decisions on applications for licences. See also 40 Committee of the Jockey Club disqualifying a
Nagle v. Fielden, [1996] 2 QB 633, where the racehorse and fining its trainer, when both
question was whether the Jockey Club's owner and trainer were in contractual
refusal to grant a trainer's licence to a woman relationship with the Club [96 (R. v.
5 might be unlawful as being arbitrary and Disciplinary Committee of the Jockey Club
unreasonable and also contrary to public 45 ex. p. Aga Khan, [1993] 1 W.L.R. 909.
policy and to 'the right to work'; it was no
more than a decision that the statement of The decisive factor was that the powers of the
claim should not be struck out, no further Jockey Club were 'in no sense governmental',
10 proceedings being reported). Here there is a
but derived from the consent of racehorse
vacuum of justice which the law ought to fill." owners to be bound by its rules. A complaint
50 of unfair procedure could not therefore be
However, the Author made the following remedied by judicial review, though it might
observations regarding the position of law in still be remediable by an action for breach of
Scotland, New Zealand and Canada while contract. The High Court similarly declined to
15 contrasting it with English law as under : review a decision of the Football Association
55 to establish a premier league for football,
"The Courts, however, have almost holding that the association was a domestic
uniformity declined to regard bodies body existing in private law only and that it
controlling sport as coming within public law. would be a 'quantum leap' to bring it within
In one case, where the Disciplinary the law for controlling Government organs
20 Committee of the Jockey Club had 60 [97 (R. v. Football Association Ltd. ex. p.
disqualified a steward from acting as chairman Football League Ltd., [1993] 2 All E.R. 833.
of boards of inquiry, the High Court was But Scots law has made that leap without
sympathetic to judicial review but held that it difficulty [98 (St. Johnston Football Club Ltd.
was bound by authority rejecting review of the v. Scottish Football Association, 1965 SLT
25 National Greyhound Racing Club [95 (R. v. 65 171, (breach of natural justice, relief granted);
Jockey Club ex p. Massingbred-Mundy, [1993] and see West v. Secretary of State for Scotland
2 All E.R. 207, following Law v. National (below)] and so, it seems, has the law in New
Greyhound Racing Club Ltd., [1983] 1 W.L.R. Zealand [99 (Finnigan v. New Zealand Ruby
1302. See the similarly sympathetic but Football Union Inc. (No. 2) [1985] 2 NZLR
30 negative decision in R. v. Jackey Club ex p. 70 181 (interim injunction granted against
Ram Racecourses Ltd., [1993] 2 All E.R. 207, football Union's decision to send a team to
where the proprietors of a new racecourse South Africa; the proceedings were
were allotted no race meetings and a claim discontinued : (No. 3) [1985] 2 NZLR 190)
based on legitimate expectation failed]. Had and in Canada 1 (Re Parks and B.C. School
35 the Court not been bound by law these 75 Sports (1997) 145 DLR (4th) 174)]. And in
decisions might have been different. For one English case, where a Rugby Football
discussion see [1989] PL 95 (M.J. Beloff). In a Disciplinary Committee had suspended a
later decision the Court of Appeal refused player for fighting, the High Court granted an
review of a decision of the Disciplinary

interim injunction to lift the suspension until 40 might make only reasonable charges and
it could be determined whether the might not discriminate between customers; [5
proceedings lacked basic fairness, the Judge (See M. Taggart in Joseph (ed.), Essays on the
observing that a post was now big business Constitution, 214 (a full survey); [1991] PL
5 and that it was naive to pretend that it could 538 (P. Craig); P. Craig, 'Public Law and
be conducted as it was not many years ago [2 45 Control over Private Power' in Taggart (ed.),
(Jones v. Welsh Football Union, The Times, 6 The Province of Administrative Law, 196;
March, 1997 (Ebsworth J.)]. The complaint [1997] PL 630 (D. Oliver)] and the same
was that the player had not been allowed to principle is seen in modern legislation against
10 challenge adverse evidence. It is not clear monopolies, unfair contracts and
whether it was based on contract, tort or 50 discrimination. Such a system would lie
judicial review). This decision, though out of beyond administrative law, but would draw
line with the authorities, is surely likely to strength from it. New laws and new remedies
outlive them. would be needed, while judicial review
remained confined to the sphere of
15 Contrasting policies 55 Government and to the upholding of the rule
In drawing the line as explained above the of law.
Courts have set limits to the use of judicial In Scots law, by contrast, the distinction
review, which is essentially a mechanism for between public and private law is rejected and
enforcing legality in Government, as a means the supervisory jurisdiction of the Court of
20 of remedying the shortcomings of private law. 60 Session is available wherever a decision-
In many spheres of life, whether commercial, making power is conferred on somebody,
social, sporting or religious, [3 (Judicial review whether by Statute or private contract or
has predictably been refused against religious some other instrument, [6 (Emphasis is put
authorities : R. v. Chief Rabbi ex p. Wach upon the 'tripartite relationship' between the
25 man, [1992] 1 W.L.R. 1036; R. v. Imam of 65 body conferring the jurisdiction, the body
Bury Park Jami Masjid ex p. Sulaiman Ali, The exercising it and the citizen affected by it. But
Independent, 13 September, 1991)] a great this may not be an inflexible requirement :
deal of power is exercised in matters which Naik v. University of Stirling, 1994 SLT 449;
have nothing to do with Government, and Jobaen v. University of Stirling, 1995 SLT 120
30 particularly in the case of monopolies the law 70 and that body exceeds or abuses its power or
should be able to prevent unfairness and fails in its duty [7 (West v. Secretary of State
abuse [4 (See Hoffmann LJ in the Aga Khan for Scotland, 1992 SLT 636, where the law is
case (above) at 932 and the suggestions of Sir fully expounded by Lord President Hope.
Harry Woolf [1986] PL 220 at 224 and Sir Grounds of review are held to be the same as
35 Gordon Borrie [1989] PL 520 at 224 and Sri 75 in England but procedure is different and
Gordon Borrie [1989] PL 552)]. An element problem-free : See below, p. 651. See also
of this appeared in the ancient common law Boyle v. Castlemilk East Housing Co-
rule that tradesmen in 'common callings' such operative Ltd., 1998 SLT 56. The Court may
as in keepers, common carriers and ferrymen

intervene if any such body violates its own 40 the public sector are pushed back by
constitution or rules or errs in law or infringes privatisation and by a diminution of the
natural justice, even if it is the governing body powers of those public bodies (like local
of a private association. Judicial review may authorities) where public law and judicial
5 extend to the decisions of religious [8 (As in review have made most impact in the past,
M'Donald v. Burns, 1940 SLT 325 (sisters 45 these possibilities are worth further thought.
expelled from Roman Catholic convent; Privatisation has generally replaced public
action held competent)] and sporting [9 (As in monopoly power by substantial elements of
St. Johnston Football Club Ltd. v. Scottish private monopoly power and, although
10 Football Association Ltd. (above)]. Bodies if regulatory bodies have been established with a
they act irregularly, oppressively or unfairly. 50 supervisory role, the successful marketing of
Justice can thus be done in cases which lie shares in newly privatised industries has
beyond the reach of the rigid English system required that the prospect of regulation
with its misguided public and private law should not be too all-embracing or too strict.
15 dichotomy, and procedural obstacles and It is sometimes referred to as regulation "with
dilemmas are avoided." 55 a lighter touch".
29. In addition to the above observations in "There seems to me to be a gap in our law
Wade, the current thinking in England too is when that kind of arbitrary action by a
veering towards some measure of judicial powerful body in the private sector seems to
20 supervision over private bodies exercising give rise to no remedy in the Courts for those
powers which have a public element. Sir 60 who suffer from it. It has been rightly said
Gordon Borrie, the then Director General of that complainants "may be the catalyst for a
Fair Trading, while delivering the Fifth Harry referral" {P. Craig, "The Monopolies and
Street Lecture at the University of Manchester Mergers Commission : Competition and
25 in 1989 quoted from Lord Woolf's earlier Administrative Rationality, " in Regulation
Lecture in the same Series in 1986 and 65 and Public Law (ed. R. Baldwin and C.
observed : McCrudden, 1987) p. 221 Mr. Craig points
out that private remedies are not entirely
"Nevertheless, I consider that the extension of absent but they are limited. A private citizen
the scope of judicial review in recent years to may bring a civil claim for injunctive relief or
30 bodies that are not necessarily thought of as 70 damages where a firm has contravened an
public bodies has been a most interesting and order made against it as the result of an
promising development. And the growing adverse report of the M.M.C. on a reference
acceptance of a philosophy that all those who to it by the Government or by the Director
wield power should be accountable and General of Fair Trading. The individual
35 should be subject to general principles of 75 therefore enters the arena only when an
good administration indicates possibilities for institutional decision has been taken to
developing the role of the Courts in investigate a certain industry or practice, the
controlling the power of private corporations industry or practice has contravened the
and self-regulatory bodies. As the frontiers of

relevant legislation and the industry has failed 40 power and do not act arbitrarily, capriciously,
to comply with the subsequent order : Craig unreasonably or unfairly. Private bodies, too,
op. cit pp. 220-221} but complainants are can throw their weight around. Whatever
dependent on discretionary action taken by a other regulatory controls they may be subject
5 statutory official to refer the matter for to, it is becoming increasingly desirable that
investigation and report by a statutory 45 private bodies be generally subject to some
commission and subsequently on the measure of judicial supervision. Litigation and
willingness of the Government to accept the the possibility of litigation can play a useful
Commission's recommendations." regulatory role."
10 "Several privatisation Statutes have unleashed "It is now clear from decided cases that other
new centres of private power in recent years. 50 private bodies with public law powers are also
Private power may also be enhanced by subject to judicial review, such as Lloyd's (R.
mergers, takeovers and the creation of cartels. v. Committee of Lloyds ex parte Posgate, The
Trade associations and professional groups Times January 12, 1983 (1983) CLY 2001) the
15 have considerable power that can act in ways self-regulatory organisations recognised by the
that are inimical to individual members as well 55 Securities and Investments Board [R. v.
as to the general public. Lord Denning Financial Intermediaries Mergers and Brokers
recognised many years ago that so-called Regulatory Association, ex parte Cochrane,
domestic bodies like the Stock Exchange, the The Times June 23, 1989] and the Advertising
20 Jockey Coub, the Football Association and Standards Authority (R. v. Advertising
major trade Unions have "quite as much 60 Standards Authority Ltd. ex parte Insurance
power as statutory bodies ... They can make or Service Plc., The Times, July 14, 1989
mar a man by their decisions. Not only by Glidewell, L.J. said that the A.S.A. was clearly
expelling him from membership, but also by exercising a public law function which, if the
25 refusing to admit him as a member; or, it may A.S.A. had not existed, would no doubt have
be, by a refusal to grant a licence or to give 65 been exercised by the Director General of
their approval (Breen v. Amalgamated Fair Trading.] I see no reason why the Press
Engineering Union, {1972) 2 Q.B. 175, 190}. Council would be treated any differently. All
Private power has also developed space of these bodies perform functions that would
30 through deregulation - the removal of many doubtless be performed by statutory public
legal and informal restrictions on the activities 70 bodies, if these private bodies did not exist.
that particular types of businesses may engage
in. As ring fences have been dismantled, But it is clear to me that many private
building societies, Banks stockbrokers and monopolies exercise a giant's strength, that
35 others have emerged as conglomerates the source of their power is not consensual
engaged in a wide variety of activities. The and that existing private remedies against
75 abuse of their power are inadequate. So, many
potential for abuse of power has increased."
of the points made by the Court of Appeal for
"The Courts' supervisory jurisdiction helps to subjecting the Takeover and Mergers Panel to
ensure that public bodies do not abuse their judicial review apply to powerful private

bodies whether they perform regulatory 40 account or if the decision has been taken on
functions or not." the basis of some irrelevant consideration in
the same way as it does in the case of a public
"Even before the Datafin case, Sir Harry body? Powerful bodies, whether they are
Woolf, in the second Harry Street lecture, saw public bodies or not, because of their
5 advantages in private law emulating "the 45 economic muscle may be in a position to take
supervisory roles which so far has been the decisions which at the present time are not
hallmark of the Courts' public law role" subject to scrutiny and which could be unfair
[Woolf, "Public Law - Private Law : Why the or adversely affect the public interest. (Woolf
Divide?" (1986) P.L. 230, 238. His lecture was op. cit pp. 224-225).'
10 delivered on February 19, 1986]. Specifically,
he posed the question : "if public law has 50 "Although damages are of course the prime
developed so rapidly that it now gives greater remedy in private law, private law does allow
protection than does private law, should for the possibility of other discretionary
consideration be given to whether the type of remedies, such as an injunction or a
15 review which takes place into administrative declaratory judgment and there does exist a
action should as at present be limited to 55 private law supervisory or "longstop"
public bodies?" I pause there in my quotation jurisdiction. The Court of Appeal in Nagle v.
to remind you that nine months later, in the Feilden, [1966] 2 Q.B. 633, held that the
Datafin case, his colleagues in the Court of Jockey Club, who exercised a "virtual
20 Appeal did widen the scope of judicial review monopoly in an important field of human
to private bodies whose activities include a 60 activity, " must not act "arbitrarily and
public element. In his lecture, Sir Harry Woolf capriciously" in rejecting the plaintiff's
continued thus : application for membership. More recently,
the New Zealand Court of Appeal in Finnigan
'The interests of the public are as capable of v. New Zealand Rugby Football Union, [1985]
25 being adversely affected by the decisions of 65 2 N.Z.L.R. 159, held that there was an
large corporations and large associations, be arguable case that, in deciding to tour South
they of employers or employees, and should Africa, the Football Union had shut their eyes
they not be subject to challenge on to public concern over the tour and closed
Wednesbury grounds if that decision relates to their minds to any genuine consideration of its
30 activities which can damage the public 70 effect on the welfare of rugby football. They
interest? ... There is the Monopolies said the case had some analogy with public
Commission, wider power of intervention ... law issues. As one writer has observed (D.
Members of large companies ... delegate to the Oliver, "Is the ultra vires rule the basis of
board of company ... the power to make judicial review?" [(1987) P.L. 543, 555-556],
35 decisions which at times not only affect the 75 the references to arbitrariness and
company ... but the national interest. Should it capriciousness in the decision of the English
not be possible for the Court to intervene if Court of Appeal are close to "Wednesbury
the decision has been reached without a unreasonableness" and "irrationality", and the
relevant consideration being taken into

reference by the New Zealand Court of 30. Thus in several countries sporting bodies
Appeal to the Football Union shutting its eyes 40 exercising monopoly status are increasingly
to public concern over the tour to South coming under judicial scrutiny. It has also
Africa is close to the Wednesbury principle been noted in the above passages that the
5 that relevant considerations should not be distinction between public law and private law
disregarded. In the same writer's words, it in respect of such monopoly sporting
seems that "the boundaries between public 45 associations is minimal. In the present case
and private law and their respective the BCCI by their action can make or mar the
supervisory functions are breaking down, and whole career of a professional cricketer. Can it
10 that principles of good administration which be said that such action cannot be put under
bear a strong resemblance to the substantive judicial scrutiny at all. In the light of the
rules of judicial review were applied to a 50 delineation of the scope of the jurisdiction
private body .... (Oliver op. cit. p. 556)". under Article 226 of the Hon'ble Supreme
Court in U.P. Land Development Bank's case
"Bearing in mind the lack of United States (supra) the answer has to be in the negative
15 style incentives to private litigation such as and the jurisdiction of the Writ Court in such
triple damages and contingency fees, the 55 a situation cannot be totally shut out.
enforcement powers of public bodies and However, the exercise of the wide
public support for individual challenges in discretionary remedy of writ jurisdiction has
Court to the exercise of private power are naturally its own well settled limitations. Thus
20 clearly useful. The existing disincentives for even if this Court was to proceed on the
individuals to engage in litigation to combat 60 assumption that BCCI is a private Body, the
private power mean that at present the large fact that it performs some public functions
can frighten off the small simply by heavy affecting vital public interest cannot be denied
breathing. [Cornish Book Review (1985) and the judicial opinion in Scotland, New
25 E.I.P.R. 210]". Zealand and Canada is already in favour of
"I have had three key points to make in this 65 judicial supervision of sporting bodies while in
lecture. One was to demonstrate that it is as England change is being advocated in respect
important for private power to be accountable of the traditional English view.
as it is for public power to be accountable. 31. The essential question, therefore, would
30 Secondly, I wanted to explore ways in which be, (i) what is the nature of the duty
judicial supervision over public bodies and the 70 performed by the respondent with regard to
ombudsman concept can be usefully which the cause of action has arisen. (ii) What
developed to apply to the private sector. And is the nature of the right whose infringement
thirdly, I felt it timely to welcome such the petitioner complains of. In the instant case
35 developments and to urge more of the same the nature of the duty would amount to a
kind of developments, because there are 75 public duty which would allow the High
concentrations of power in the private sector Court to exercise jurisdiction under Article
which should be challenged." 226. In addition the grievance of the

petitioner is that his fundamental right is an International Cricket Match particularly

affected which the High Court would find that involving India.
within the scope of its judicial review.
Therefore, the question as to whether the (g) Cricket is undoubtedly the most popular
5 respondent is a State or other authority need 40 game in the country.
not be considered in this petition. (h) The Hon'ble Supreme Court had even
32. The foregoing discussion leads to the entertained a writ petition under Article 32
following conclusions qua BCCI : against BCCI for banning certain players for a
misdemeanour.
(a) It is the sole representative of India as a
10 country at all levels of cricket in the 45 33. When the Government stands by and lets
international arena and selects teams for all a body like BCCI assume the prerogative of
representative levels of cricket at the being a sole representative of India for cricket
International level and has been recognized by by permitting BCCI to choose the team for
the Government of India as the Regulatory India for appearance in events like the World
15 Authority for the game of cricket in India.
50 Cup, then it necessarily imbues BCCI with the
public functions at least in so far as the
(b) The team fielded by it plays as India and selection of the team to represent India and
not BCCI XI or even India XI while playing India's representation in International Cricket
One Day Internationals or Test Matches. fora and regulation of cricket in India is
55 concerned. Thus the monopoly status of the
(c) Even domestically all representative cricket respondent No. 2 is evident. It is also clear
20 can only be under its aegis. No representative that such monopoly status is indisputably
tournament can be organized without the State recognized as evident from the letter of
permission of BCCI or its affiliates at any Ministry of Culture, Youth Affairs and Sports
level of cricket. 60 dated 22nd December, 2000 and indeed by
(d) Its affiliates i.e., the State Boards have acquiescence of the Government, can be
25 access to vast tracts of prime urban land at considered State conferred. Similarly the plea
highly concessional and indeed nominal rates. of the BCCI that it does not own or lease the
stadia is of no consequence as the stadia are
(e) By virtue of hosting international 65 owned and leased by its members and it is not
representative matches at stadia available to it disputed that all international matches are
at nominal rates, huge profits are made by played in such stadia. Similarly membership of
30 gate-money, telecast fees, sponsorship and BCCI of the International Cricket Conference
advertising revenues. The BCCI's affiliates are (ICC) cannot ipso facto imply that it is not
the recipients of State largesse, inter alia, in 70 amenable to writ jurisdiction. In fact BCCI
the form of nominal rent for stadia. represents India on its own showing and
depending upon the nature of the action
(f) No event including even the Republic Day
impugned, would be amenable to writ
35 parade and other events ancillary thereto get
jurisdiction.
the kind of media coverage in the country as
34. While a writ petition may be maintainable 40 jurisdiction, but those guidelines cannot be
against a person/body which is neither State mandatory in all circumstances. The High
nor an instrumentality of State, the exercise of Court does not interfere when an equally
writ jurisdiction in such a case has to be efficacious alternative remedy is available or
5 carefully controlled. It is not for every dispute when there is an established procedure to
in the body be it service, intra member or 45 remedy a wrong or enforce a right. A party
election that a Writ Court could and should may not be allowed to bypass the normal
interfere. The very potency and reach of the channel of civil and criminal litigation. The
writ jurisdiction requires caution to be High Court does not act like a proverbial "bull
10 exercised and it is not meant to resolve all in a china shop" in the exercise of its
mundane and internecine controversies arising 50 jurisdiction under Article 226."
in such bodies. It is only when the impugned
action infringes on a fundamental right or is 35. However, the above discussion only
so shocking and arbitrary so as to be resolves the issue whether this writ petition
15 unconscionable in addition to having wide can be thrown out at the threshold on the
ramifications of a public nature, that the Writ question of maintainability qua respondent
Court may interfere. Since the body/person is 55 Nos. 2 and 3. The question whether the Court
brought into the ambit of the writ jurisdiction should nevertheless interfere in the facts of
by the public nature of its duties and the the present case is to be decided in light of the
20 public interest inherent therein, it must follow tests laid down by the Hon'ble Supreme Court
as a corollary that the action complained of for exercise of writ jurisdiction and the
also must be of such a nature which could 60 conclusions in the foregoing paragraphs of the
affect public in addition to private interest in judgment. The question whether the
the wider sense so as to be amenable to writ impugned action is sustainable cannot be a
25 jurisdiction. The following words of caution subject matter of the preliminary objection as
of the Hon'ble Supreme Court in the decision to the maintainability of this writ petition, but
of U.P. Co-operative Bank (supra) as well as 65 would be a subject matter of the
the other limitations laid down by the Hon'ble determination of the disputes on merits and
Supreme Court in the exercise of writ the Court is to determine whether the
30 jurisdiction must inform and guide the challenge to the punishment of 5 years ban
exercise of writ jurisdiction in such cases. The can be looked at and accepted in the light of
relevant portion of the said judgment reads as 70 the foregoing discussion.
follows : 36. I, therefore, hold that in view of the above
".... But then the power conferred upon the discussion the application of respondent No.
35 High Courts under Article 226 of the 2 to determine the preliminary objection as to
Constitution is so vast, this Court has laid the maintainability of the writ petition is
down certain guidelines and self- imposed 75 allowed and the preliminary objection raised
limitations have been put there subject to by respondent Nos. 2 and 3 to the
which the High Courts would exercise maintainability of the writ petition is rejected.

The application accordingly stands disposed competitive events at the National and
of. International level.
3. The OP is a National Sports Federation

35 ('NSF') recognised by the Informant and
Department of Sports, Ministry of Youth responsible for promotion of the sport of
5 Affairs and Sports, New Delhi athletics in India. It was established in 1946
v under the Societies Registration Act, 1860
with the objectives to promote and encourage
Athletics Federation of India, New Delhi 40 athletics; organise and manage/control
athletics; provide facilities for training in
athletics and physical exercises; render
Case No :Reference Case No. 01 of 2015 assistance to individual athletes, officials and
affiliated organisation for promotion of
10 Bench :Devender Kumar Sikri (Chairperson), 45 training in athletics and holding competitions,
Sudhir Mital (Member), Augustine Peter athletics/sporting events as and when
(Member), U.C. Nahta (Member) possible; provide athletes and coaches with
new knowledge and technique in athletics;
Citation :2018 Indlaw CCI 43
enforce all Rules and Regulations of the
The Order of the Court was as follows : 50 International body governing the sport of
athletics etc. It is the apex body for running
15 1. This matter is based on a reference filed by and managing athletics in India and affiliated
the Department of Sports, Ministry of Youth to International Association of Athletics
Affairs & Sports ('MYAS'), Government of Federation ('IAAF'), Asian Athletics
India (hereinafter, 'Informant') under Section 55 Association ('AAA') and Indian Olympic
19(1)(b) of the Competition Act, 2002 Association ('IOA'). AFI has 32 affiliated state
20 (hereinafter, the 'Act') with the Commission units across the country along with 13
against Athletics Federation of India institutional units. Besides receiving financial
(hereinafter, 'OP'/'AFI') for its alleged support from the Informant, AFI has also
contravention of the provisions of Section 4 60 been generating financial resources through
of the Act. sponsorship, royalty etc. while organising
various National and International athletic
25 About the Parties
events.
2. The Informant is a department of the
Facts, in Brief
MYAS, Government of India and is engaged
inter alia in the activity of creation of sports 65 4. The Informant is stated to be aggrieved by
infrastructure and promotion of capacity the decision taken by AFI in its Annual
30 building for broad-basing sports as well as General Meeting ('AGM') held at Varanasi on
for achieving excellence in various 11.04.2015 and 12.04.2015 to take action
against its state units/officials / athletes who

encourage marathons not authorised by AFI 28. The Commission perused the information,
and become part of such marathons. The the investigation report of the DG,
relevant excerpt from the minutes of the said 40 submissions filed by the Informant and the
AGM of AFI is reproduced below: OP in response to the investigation report of
the DG and other material available on
5 "The House unanimously approved to take action record. The Commission also heard the
against the state units/officials/athletes and arguments put forth by the learned counsels
individuals who encourage the unauthorised marathons 45 appearing on the behalf of the OP and the
and become part of such marathons where AFI representatives of the Informant.
permission was not taken and it was made mandatory
10 to seek permission of AFI before organising any road 29. The Commission is of the view that in
race/marathon on National and International level." order to arrive at a decision in the matter the
only issue to be determined is whether AFI
5. It has been averred that the decision taken 50 has abused its dominant position in
by AFI in its AGM held on 11.04.2015 and contravention of the provisions of Section 4
12.04.2015 is restrictive and not conducive for of the Act. However, determination of the
15 development of the sport of athletics in India
said issue requires delineation of relevant
at the grass-root level. As per the Informant, market, assessment of the position of
the said decision of AFI would have an 55 dominance of AFI in the relevant market so
adverse impact on promotion of sports as determined and examination of the alleged
well as protection of the interest of the abusive conduct of the OP in case it is found
20 sports persons and prohibit healthy to be in a dominant position in the relevant
competition in organising athletic events in market.
India. Based on the above averments, the
Informant requested the Commission to 60 Relevant Market
initiate action against AFI in terms of the
25 provisions of the Act.
30. The Commission is required to delineate
the relevant market in terms of Section 2(r) of
6. After forming a prima facie opinion that the Act. The relevant market is to be
there exists a case of contravention of the determined with reference to the relevant
provisions of the Act in the matter, the 65 product market as defined under Section 2(t)
Commission, vide its order dated 16.03.2016 of the Act and the relevant geographic market
30 passed under Section 26(1) of the Act, as defined under Section 2(s) of the Act. As
directed the Director General (hereinafter, per the provisions of the Act, relevant
'DG') to cause an investigation into the matter product market means a market comprising all
and submit the investigation report to the 70 those products or services which are regarded
Commission in terms of the provisions as interchangeable or substitutable by the
35 contained in Section 26(3) of the Act. consumer, by reason of characteristics of the
products or services, their prices and intended
…………….. use and the relevant geographic market means
Findings of the Commission 75 a market comprising the area in which the

conditions of competition for supply of goods 40 International events lies only with AFI. On
or provision of services or demand of goods the demand-side substitutability, the DG
or services are distinctly homogenous and can stated that an athlete cannot shift to a body
be distinguished from the conditions governing any other sport in response to a
5 prevailing in the neighboring areas. change in the supply conditions of the
45 provisions of services for conducting and
31. While determining the relevant product governing athletic activities. Further, the
market, the Commission has to give due athletes desirous of participating in National
regard to all or any of the factors such as and International events cannot avail the
physical characteristics or end-use, price, services of a body other than AFI which
10 consumer preferences, exclusion of in-house
50 governs and conducts athletic activities in
production, existence of specialised producers India.
and classification of industrial products as
provided in Section 19(7) of the Act. Further, 33. With regard to the relevant geographic
as provided in Section 19(6) of the Act, the market, the DG reported that AFI recognises,
15 Commission has to give due regard to all or accepts, applies, observes and abides by the
any of the factors such as regulatory trade 55 Constitution, Rules and Regulations of IAAF
barriers, local specification requirements, and AAA as amended from time to time. It
National procurement policies, adequate governs the entire activity in relation to the
distribution facilities, transport costs, athletics events undertaken in India and
20 language, consumer preferences and need for representation of Indian athletes in
secure or regular supplies or rapid after-sales 60 International athletic events. Not only that,
services while determining the relevant AFI has also been entrusted with the
geographic market. responsibility of coordination for
International events and to finalise the playing
32. The Commission takes note of the fact schedule for the National team. Further, as
25 that while defining the relevant product 65 per the investigation report of the DG, the
market as the market for 'provision of services Rules and Regulations as prescribed by IAAF,
relating to organisation of athletics/athletic AAA, IOA and AFI for organising athletics
activities in India', the DG has considered events are uniformly applicable throughout
both demand and supply side substitutability the country. Accordingly, the DG reported
30 of the said services. The DG gathered that 70 that the relevant geographic market to be
AFI is the de-facto regulator of the sports of considered in this matter is 'India'.
athletics and athletic activities in India. As per
the investigation report of the DG, the 34. The Commission notes that even though
services of AFI do not have supply side the OP contended that the DG has
35 substitutability as it is the apex body incorrectly delineated the relevant product
governing the sports of athletics in India, 75 market it has not suggested any alternative
and so recognised by the Informant as well as relevant product market for analysis of the
IAAF. Further, the authority to select athletes matter. As per the OP, while delineating the
from India for participation in National and relevant market, the DG has examined the

activities related to marathon/road race only, 40 substitutable with the services provided by
which is one out of fifty-five athletics any other sport governing body. For
events/activities of AFI. example, an athlete cannot avail the services
of a body governing any other sport such as
35. After considering the submissions of the football, tennis, etc. in place of the services of
5 OP and the findings of the DG in this regard, 45 AFI as the infrastructure, services, Rules and
the Commission observes that the gravamen Regulations required for governing
of the present information relates to the athletics/athletic activities are different from
conduct of AFI in organising the sport of the other sports such as football, tennis, etc.
athletics/athletic activities. Considering the Thus, the Commission is of the view that the
10 fact and circumstances of the matter, the 50 services relating to organisation of
Commission is of the view that in order to athletics/athletic activities is distinct and
determine the relevant product market in this distinguishable from the services relating to
case, it is to be ascertained whether provision organisation of other sport activities.
of services relating to organisation of Moreover, the Commission observes that AFI
15 athletics/athletic activities is substitutable with 55 has neither suggested any alternate relevant
the provision of services relating to product market to be considered in this
organisation of any other sport activities or matter nor provided any acceptable reason for
whether there exists another product/service delineating relevant product market
which can be considered as close substitute of differently. Therefore, based on the above, the
20 the services related to organisation of 60 Commission holds the view that the market
athletics/athletic activities. for 'provision of services relating to
36. In this regard, the Commission observes organisation of athletics/athletic activities' is
that athletics as a sport is not substitutable to be considered as the relevant market in the
with any other sport like table-tennis, instant matter.
25 badminton, football, hockey, cricket etc. 65 37. The Commission observes that
because of differences in their considering the fact that the Rules and
characteristics/features such as nature of Regulations of the International bodies viz.
sport, number of players, playing time, type of IAAF, AAA and IOA as well as AFI are
sport i.e. indoor or outdoor, rules to conduct applied uniformly throughout India and there
30 the sport, technique and training 70 is no distinction in the conditions of supply of
requirements for the players, physical fitness services relating to organisation of
of the players; consumer preference; athletics/athletic activities in the entire
regulatory mechanism etc. Since, different territory of India, the DG has delineated the
sports have their peculiar characteristics, relevant geographic market in this case as
35 services required for organisation of different 75 'India'. The Commission observes that the
sport events cannot be the same. Further, market for the services relating to organisation
from the investigation report of DG, the of athletics/athletic activities cannot be
Commission notes that the services provided confined to a specific area or region of the
by a sport governing body are not

country as any organisation or person in the of competitive forces or (b) affect its
country can provide such services and any 40 competitors or consumers or the relevant
athlete can avail the said services and market in its favour.
participate in any events organised in any part
5 of the country. Further, the Commission 41. To determine whether an enterprise is in a
observes that the geographic region of India dominant position or not in a relevant market
exhibits a homogeneous and distinct market the Commission is required to have due
condition for provision of services relating to 45 regard to all or any of the factors as
organisation of athletics/athletic activities. In enumerated under Section 19(4) of the Act
10 view of the above, the Commission holds the
such as market share of the enterprise; its size
view that the relevant geographic market to be and resources; size and importance of its
considered in the present matter as 'India'. competitors; its economic power including
50 commercial advantages over competitors;
38. Based on the determination of relevant vertical integration of the enterprise or sale or
product market and relevant geographic service network of such enterprise;
15 market as above, the Commission delineates dependence of consumers; whether monopoly
the relevant market in this case as 'provision or dominant position acquired as a result of
of services relating to organisation of 55 any statute or by virtue of being a
athletics/athletic activities in India'. Government company or a public sector
undertaking or otherwise; entry barriers
39. In Commission's view, there is another including barriers such as regulatory barriers,
20 possible relevant market involved in this case financial risk, high capital cost of entry,
viz., 'market for services of athletes in India', 60 marketing entry barriers, technical entry
keeping in mind the intended restriction barriers, economies of scale, high cost of
sought to be imposed on those athletes who substitutable goods or service for consumers;
participate in marathons not authorized by the countervailing buying power; market structure
25 AFI (through its decision taken by AFI in its and size of market; social obligations and
April, 2015 AGM held at Varanasi). However, 65 social costs; relative advantage by way of
since there is no instance of coercive action contribution to the economic development by
taken by AFI against any athlete, the the enterprise enjoying a dominant position
Commission does not deem it fit to inquire and any other factor which the Commission
30 the conduct of AFI in this relevant market. may consider relevant for the inquiry.
Assessment of Dominance of AFI 70 42. While assessing dominance of AFI in the
40. Having defined the relevant market, now relevant market as defined in para 37, the DG
it is to be examined whether AFI is a has taken note of the fact that it is the apex
dominant entity in the relevant market as body which controls and manages
35 defined above. As per the provisions of the athletics/athletic activities in India. It trains
Act, dominant position means a position of 75 and selects athletes for various National and
strength, enjoyed by an enterprise in the International events such as Olympics, Asian
relevant market to (a) operate independently Games, Common Wealth Games etc. AFI

conducts International and National 40 are recognised by it. As per AFI, the DG has
championships and various meets to promote drawn a wrong conclusion regarding its
and popularise the sport of athletics in India. position of dominance in the relevant market.
It also supervises and assists its state units in
5 their activities, sets up special coaching 44. The Commission notes that as far as
centres, and takes various initiatives for organisation of athletics/athletic activities in
development and promotion of athletics at 45 India is concerned, AFI is the apex body. It is
grass root level in India. Further, the DG has responsible for controlling and managing the
found that AFI is the only recognised athletes and athletic activities in India for
10 National association in India which is National as well as International events. AFI
affiliated to IAAF, AAA and IOA. Thus, also provides training facilities to the athletes
considering the fact that (i) AFI is affiliated 50 and selecting athletes for various National and
with IAAF, AAA and IOA and recognised by International events including various
the Government of India for organising and championship leagues both at National and
15 coordinating the International athletic events International levels. Apart from these, it has
as well as selecting athletes for such events; (ii) been vested with the power to be the official
it is the apex body in the pyramid structure of 55 organisation in complete and sole in-charge of
governance of the sport of athletics in India all athletic matters in India. Being the sole
and (iii) it is the apex body to control and organisation to run, manage, select and train
20 manage the sport of athletics in India, the athletes as well as handles all matters relating
DG has found that AFI is in a dominant to athletics, AFI has a huge advantage over
position in the relevant market. 60 other organisers who organise athletic events.
Further, its affiliation with International
43. However, the OP has argued that the DG athletics governing bodies viz. IAAF, AAA
has investigated only a small part of the and IOA as well as with its state units and
25 relevant market in order to draw the other institutions in India puts it in a position
conclusion regarding its position of 65 of strength in the relevant market. The
dominance in the relevant market as defined Commission is of the view that since the OP
above. It was stated that the DG has taken the is the leading organiser of athletics/athletic
services relating to the organisation of activities in India as well as the apex body to
30 athletics/athletic activities as the relevant control and manage the sports of athletics and
product market which consists of fifty-five 70 related activities in India, it has a definite
sport events/disciplines. While assessing advantage over the other organisers of athletic
dominance of AFI, the DG has examined events in India.
only about the organisation of marathon/road
35 race, which is only one out of the fifty-five 45. The Commission notes that the OP has
athletic events. Further, AFI submitted that contended that it recognised only 11
more than 300 marathons/road races are 75 marathons/road races vis-a-vis more than 300
conducted throughout the country in a year, marathons/road races conducted in a year in
out of which only 11 marathons/road races the country and therefore, it is not in a
dominant position in the relevant market. It is

noted that the 'market for provision of that AFI is in a dominant position in the
services for organisation of athletics/athletic 40 relevant market as defined in para 37.
activities in India' has been considered as the
relevant market in this matter, in which Examination of the alleged conduct of AFI
5 dominance of the OP is to be seen, and not in 48. Now, the Commission proceeds to
the market of provision of services for examine whether the alleged conduct of AFI
organisation of marathons/road races in is abusive in terms of the provisions of
India. Hence, the aforesaid data i.e. number of 45 Section 4 of the Act.
marathons/road races conducted in a year has
10 little relevance as far as assessment of 49. From the information and the DG report,
dominance of AFI in the relevant market is the Commission notes that, in the minutes of
concerned. the AGM of AFI of April, 2015, a decision
was taken to take action against its state units
46. With regard to the contention of the OP 50 / officials / players etc. who encourage
that the DG has examined only a small unauthorised marathons and become part of
15 portion of the relevant market i.e. the such marathons. The DG reported that even
activities relating to marathon/road races though AFI modified the said decision in its
alone to arrive at the conclusion that AFI is subsequent AGM held at Delhi on 15.04.2016
dominant, the Commission notes that the said 55 and 16.04.2016, it was an afterthought act in
conclusion of the DG is based on the order to escape from the scrutiny under the
20 activities of the OP related to athletic activities provisions of the Act. It was observed by the
including marathon/road races and its power DG that earlier AFI never modified the
to regulate the sport of athletics in India vis-a- minutes of any of its AGM in the subsequent
vis other organisers of athletic events in India. 60 AGM.
Further, the Commission notes that OP is the
25 apex body in the pyramid structure of 50. It was also noted by the DG that AFI did
administration of athletics/athletic activities in not grant its approval for conduct of
India. Not only that, because of its affiliation marathons/road races to private organisers
with International bodies governing the viz. Procam and RBITC for organising
sports of athletics viz. IAAF, AAA and IOA, 65 SCMM in 2011 and BMM in 2014,
30 the OP has an edge in the relevant market vis- respectively. In another instance, AFI was
a-vis other organisers. paid Rs. 1,00,000/- by CRA as royalty fee for
grant of approval for organising TWCM in
47. Based on the above, the Commission is of 2012, as AFI threatened that no National level
the view that AFI has a position of strength in 70 athletes would participate in TWCM without
the relevant market to operate independently its approval. It was also reported by the DG
35 of the market forces or affect its competitors that the conducts of other NSFs like AIFF,
or consumers or the relevant market in its AKFI and WFI were not as restrictive as it
favour. Thus, in consonance with the findings was found in case of the OP. Thus, the DG
of the DG, the Commission is of the view 75 concluded that the restrictions placed by AFI
on the organisers of marathons/road races
and athletes limits or restricts the services of 40 its laid down objectives, a sport governing
organising athletic activities and the services body can legitimately impose certain
of athletes which is in violation of Section reasonable restrictions on the organisers or
4(2)(b)(i) of the Act. Further, the DG players of an event to ensure the specified
5 concluded that the aforesaid conduct of the standard of the sport and well-being of the
OP tantamounts to denial of market access to 45 players which cannot be termed as anti-
the organisers, sponsors of the athletic events competitive.
and the athletes which is in contravention of
the provisions of Section 4(2)(c) of the Act. 52. The Commission notes that the OP in the
minutes of its AGM held at Varanasi on
10 51. On the other hand, the OP has submitted 11.04.2015 and 12.04.2015 has recorded that
that it has not abused its dominant position in 50 action will be taken against its state
contravention of the provisions of Section 4 units/officials/athletes and individuals who
of the Act. It was argued that anyone can run encourage unauthorised marathons and
marathon/road race in India and permission become part of such marathons, where
15 for the same from AFI is not needed. Only in permission of AFI was not obtained. Further,
case, the organiser of a marathon / road race 55 vide minutes of the said AGM, AFI made it
wants the services of AFI and use its name, mandatory for the organisers to seek its
then its approval / affiliation is required. On permission before organising any
the impugned minutes of its AGM of April, marathon/road race at National and
20 2015, it was submitted that no decision was International level. The Commission observes
taken in the said AGM and rather the views 60 that even though the DG has found that the
expressed by its member associations on impugned minutes of AGM of April, 2015 of
uncontrolled marathon / road races were the OP is restrictive and therefore abusive, the
recorded in the minutes of the said meeting contention of the OP in this regard that the
25 which were subjected to approval in its next minutes of 11/04/2015 and 12/04/2015 were
AGM. It was contended that the minutes of 65 only draft minutes which required to be
the said AGM were approved with finalized in subsequent AGM and which had
appropriate modification in its subsequent not been effected cannot be overlooked. The
AGM held in Delhi in April, 2016. On the Commission notes that the OP has modified
30 issue of denial of permission to Procam and the minutes of its AGM of April, 2015 in its
RBITC for organisation of marathons, it was 70 subsequent AGM in April, 2016 in the
contended that whereas the organisers of following terms:
BMM did not seek approval of AFI as the fee
demanded was considered to be too high by "it is decided that State Association and the
35 RBITC, SCMM was never stopped by AFI. Federation must be very careful and should restrict and
Further, it was argued by AFI that it is educate the athletes which can be subversive to their
incorrect to say that other NSFs are not 75 health and they are also cheated sometimes for not
putting similar conditions on events organised having paid the money".
by the private parties. As per AFI, to achieve

53. The Commission observes that the 40 services of AFI and use its name, the approval
modified/amended minutes of AGM of April, of AFI is required. The organiser also has to
2015 of the OP does not contain anything pay a fee in lieu of the services rendered by
which can be said to abusive in terms of the AFI. Thus, there is no compulsion on any
5 provisions of Section 4 of the Act. Unlike the organiser of marathon/road race to take
language of minutes of AGM of April, 2015, 45 permission from AFI. The Commission is of
which were found to be restrictive by the DG, the view that, being the regulator of the sport
the contents of the modified minutes cannot of athletics, demanding a fee in lieu of
be termed abusive and are more in the nature provision of certain services as specified
10 of an advisory issued by AFI to its state above to maintain standard of the sport and
associations and athletes to ensure well-being 50 to achieve its laid down objectives does not
of athletes. seem to be unreasonable.
54. The Commission observes that even 56. The Commission also observes that AFI
though the OP had taken the alleged abusive recognising only 11 marathons / road races
15 decision in its AGM of April, 2015, the same out of more than 300 marathons / road races
was not implemented. The OP in its 55 conducted every year throughout the country,
submission has categorically stated that it indicates that more than 96% of road races /
never disallowed anybody for organising marathons conducted in India during a year
marathon/road race. It is also not borne out are without the recognition / approval of
20 from the material available on record that AFI AFI. Therefore, these facts negate the
had disallowed any organiser marathon/road 60 findings by the DG that AFI, by putting
race in furtherance of the alleged decision. restriction on the organisers for conducting
The Commission is of the view that in the marathons/road races, is limiting the market
absence of any evidence that the alleged for organisation of athletics/athletic activities
25 decision was ever implemented, it cannot be in India and foreclosing the market to the
termed as abusive in terms of Section 4 of the 65 organisers, sponsors and participating athletes.
Act especially when those minutes were not
adopted and significantly modified by AFI in 57. It is also noted that the DG has found that
subsequent AGM. Moreover, neither the the OP had prohibited Procam and RBITC
30 athletes nor the organisers of the athletic from organising SCMM in 2011 and BMM in
events i.e. competitors of the OP have been 2014, respectively as well as restricted the
adversely affected because of the alleged 70 athletes to participate in the said marathons.
decision. Further, AFI threatened non participation of
the National level athletes in TWCM in 2012
55. The Commission also takes note of the without its approval. Considering the
35 submission of the OP that anyone who is submissions of the OP in this regard, the
interested to organise a marathon/road race is 75 Commission notes that AFI and RBITC had
free to do so and approval of AFI for the some differences regarding the royalty fee
same is not necessary. Only in case the demanded by AFI and because of this, RBITC
organiser of a marathon is wanting to avail the did not seek its approval for conducting

BMM. The Commission also notes that AFI 40 60. Furthermore, the Commission notes that
did not stop SCMM in 2011 and it was with a view to streamline the procedure for
conducted with the approval of BCDAAA. It organisation of marathons/road races in the
was observed that TWCM was conducted by country, the OP has already submitted a draft
5 CRA in 2012 with the approval of AFI on policy framework on marathons and road
payment of Rs. 1,00,000/- as royalty fee. The 45 races to the Informant for its approval. The
Commission further notes the fact that Commission hopes that once the said policy
RBITC after ignoring the demand of AFI becomes operational, the existing ambiguity
went ahead and conducted BMM in 2014, but relating to organisation of marathons/road
10 AFI did not take any action against the races in India will stand addressed.
organizers of the event or athletes who
50 61. Based on the foregoing, the Commission
participated in that event.
is of the view that even though the OP is
58. The Commission further observes that the found to in a dominant position in the
instances of SCMM in 2011 and BMM in relevant market of 'provision of services
15 2014 happened much before the impugned relating to organisation of athletics/athletic
decision recorded in the minutes of AGM of 55 activities in India', its alleged conduct is not
April, 2015. The Commission observes that found to be abusive in terms of the provisions
the DG has linked the alleged decision of AFI of Section 4 of the Act. Since, no case of
which was taken in April, 2015 with its contravention of any of the provisions of
20 conduct which took place much prior to that Section 4 of the Act is made out against AFI,
i.e. in 2011 and 2014. The Commission is of 60 the matter relating to this information is
the view that the past conduct wherein AFI disposed of accordingly and the proceedings
did not grant its approval to Procam and are closed forthwith.
RBITC for organising SCMM in 2011 and
25 BMM in 2014, respectively cannot be linked 62. The Secretary is directed to inform the
to the decision taken by AFI in 2015. The parties, accordingly.
Commission further noted that DG has not 65 Order accordingly
found any instance of denial / restriction to
organization of any marathon between 2015-
30 16.
59. In the context of the above factual

scenario, the Commission is of the view that it
cannot be held that the OP through its alleged
conduct has limited the provision of services
35 for organising athletics/athletic activities in 70
India and denied market access to the
organisers of the athletic events or athletes in
contravention of the provisions of Section
4(2)(b)(i) and 4(2)(c) of the Act, respectively.

2. Mr. Arun Kumar Singh, Under Secretary

35 submitted that the Law Commission's
Geeta Rani declaration as public authority is still under
v examination. He attended the hearing without
any supporting documents and hence this
PIO, Ministry of Youth Affairs and Sports Commission summoned entire files
40 concerning to the subject matter. Upon
5
perusal of the files including notesheet,
Case No :CIC/MOYAS/A/2018/123236 communication/correspondences, submitted
by the respondent public authority,
Bench :M. Sridhar Acharyulu (Central Commission finds it necessary to hear the
Information Commissioner) 45 question whether BCCI is public authority
under section 2(h) of RTI Act, 2005.
Citation :2018 Indlaw CIC 193
3. The appellant has raised a very important
10 The Order of the Court was as follows :
issue regarding the status of the Cricket team
FACTS: selected by BCCI. Her question whether it is
50 "a Team India" or " Team BCCI", raises
1. The appellant sought information about an issue of exclusive authorisation of BCCI to
provision/guidelines under which the BCCI select team for India. In fact, this
has been representing India and selecting exclusiveness of authorisation created a
15 players for the country. He specifically sought monopoly in favour of federal body of
for whether the players selected by BCCI are 55 sports for Cricket called BCCI and because of
playing for India or BCCI, how can BCCI (a which all its wealth is created. The Apex
Pvt. Association) represent our country in the Court and other High Courts have expressed
National/International cricket tournament, many a time that the BCCI performs a public
20 what is the benefit of Indian Govt. to give function and it is straight away related to
rights/authority to BCCI to represent our 60 public activity because of which the BCCI
country in Domestic and International should be accountable to public in general and
Tournament etc through 12 points. The CPIO in public interest. There have been several
replied on 14.12.2017 that the information is doubts raised by Ministry of Law and Ministry
25 not available with the undersigned CPIO and of Youth Affairs and Sports, even after the
BCCI has not been declared as Public 65 recommendation of the Law Commission as
Authority, hence RTI Application could not to whether the BCCI do come under the
be transferred to BCCI. The appellant filed purview of RTI Act.
the first appeal regarding the same. The FAA
30 upheld the decision of CPIO. Being 4. The Commission thinks that it is the
dissatisfied with the above response the responsibility of the Central Information
appellant approached this Commission. 70 Commission to put an end to this prolonging
uncertainty which makes the BCCI non-
Decision : transparent and unaccountable without any

moral backing and legal reasoning. Hence, the Ms J Varnish v British Cycling Federation
Commission thinks in public interest, in the
interest of fair Cricket and for fair process of V
selection of Indian Cricket team members, the 35 T/A British Cycling
5 BCCI should be made transparent,
accountable and answerable under the Right Appeal No. UKEAT/0022/20/LA [V]
to Information Act, 2005.
Employment Appeal Tribunal
5. Hence, the Commission directs the
20 May 2020
CPIO/authorized representative of BCCI to
10 explain why the Commission should not 2020 WL 03980736
declare the BCCI as public authority in view
of various judicial pronouncements and the 40 Before The Honourable Mr Justice
Law Commission's recommendation in its Choudhury ( President ) Mr P M Hunter Mr P
275th Report. Pagliari
15 6. The Commission also directs the CPIO of At the Tribunal on 19 & 20 May 2020
Ministry of Youth and Sports Affairs to
EMPLOYEE, WORKER OR SELF
present their case in this regard.All the written
45 EMPLOYED
explanations should reach this Commission
on or before 31.07.2018. The instant case is The Claimant is a talented professional
20 posted for compliance on 01.08.2018 at cyclist. The Respondent is a not-for-profit
3:00PM. organisation that promotes and controls the
sport of cycling in the UK. The Claimant
Order accordingly
50 entered into a written agreement with the
Respondent, pursuant to which she undertook
(amongst other things) to train hard for the
common purpose of winning medals for the
British cycling team. The question for the
25
55 Tribunal was whether the Claimant was an
employee or a worker of the Respondent
within the meaning of s.230 of the
Employment Rights Act 1996 . The Tribunal
concluded that the Claimant was neither. The
60 Claimant appealed.
Held , dismissing the appeal, that the

30 Tribunal was entitled to conclude, based on
an evaluative judgment taking account of all
relevant factors, that the Claimant was not an
65 employee or a worker. The Tribunal had not

erred in its approach to the assessment of selected to join the Respondent's World Class
employee status and nor had it reached Programme as a junior sprinter, and was
conclusions that no reasonable tribunal, subsequently selected for the Respondent's
properly directed, could have reached. 40 Olympic Podium Programme ("the Podium
Programme").
5 Judgment
Over the course of her relationship with the
Respondent, the Claimant entered into
The Honourable Mr Justice Choudhury various "Athlete Agreements". The Athlete
(President) 45 Agreement relevant for present purposes was
signed by the Claimant on 16 November 2015
Jessica Varnish ("the Claimant") is a talented ("the Agreement"). The Agreement, which the
10 professional cyclist. The British Cycling Tribunal found accurately reflected the
Federation ("the Respondent"), which goes by relationship between the parties, expressly
the trading name, 'British Cycling', is a not- 50 provides that it is not a contract of
for- profit organisation that promotes and employment and that participation in the
controls the sport of cycling in the UK. The Podium Programme will not create an
15 Claimant entered into a written agreement employment relationship.
with the Respondent, pursuant to which she
undertook (amongst other things) to train Pursuant to the Agreement, the Respondent
hard for the common purpose of winning 55 agreed, amongst other things, to develop a
medals for the British cycling team. The performance plan, known as the Individual
20 question for the Manchester Employment Rider Plan ("IRP"), which identifies the
Tribunal, Employment Judge Ross presiding Claimant's personal performance,
("the Tribunal"), was whether the Claimant development goals and support service
was an employee of the Respondent or a 60 requirements; and agreed to provide a package
worker within the meaning of s.230 of the of services, benefits and other support to the
25 Employment Rights Act 1996 ("the 1996 Claimant, including coaching support, team
Act"). The Tribunal concluded that the clothing and equipment, sports science
Claimant was neither. The Claimant contends support, medical services, travel and
that in so finding the Tribunal erred in law. 65 accommodation expenses, and access to
facilities. It was estimated that the value of the
Background Facts various services and benefits provided by the
Respondent to the Claimant over a four-year
30
period was in the region of £600,000-
The Claimant started competitive cycling 70 £700,000.
from a very young age. By the time she was
Pursuant to Clause 6 of the Agreement, the
aged 12, she was selected for the British
Claimant agreed to comply with the IRP
Talent Team Programme which had been
(described by the Tribunal as the Claimant's
35 established by the Respondent. In 2006, whilst
"primary responsibility"), to train with the
the Claimant was still at school, she was
British Team squad as and when required by 40 departmental public body sponsored by the
the IRP, to attend training camps unless UK Government through the Department for
otherwise agreed with the Senior Management Digital Culture, Media and Sport. UK Sport is
Team ("SMT"), to enter identified responsible for high performance sport at a
5 competitions as specified and agreed with the national level, and for investing HM Treasury
SMT, and to follow all reasonable directions 45 and National Lottery funding into a number
of the Respondent relating to the matters set of different sports and partner organisations
out in the Agreement. The Claimant also in order to support and showcase Olympic
agreed to wear team clothing, to use her best and Paralympic medal success. The Claimant's
10 efforts to obtain and maintain the highest membership of the Respondent's various
possible levels of health and physical fitness 50 development programmes, including the
commensurate with being an elite Podium Programme, meant that she was
international competitor, to conduct herself in eligible to apply to UK Sport for a means-
a proper manner at all times whilst a member tested grant known as an Athlete Performance
15 of the Podium Programme, to comply with Award ("APA"). The APA is a means-tested
Anti-Doping rules, to permit the Respondent 55 contribution towards an athlete's living and
to make use of her image in connection with sporting costs. The Tribunal found that the
the promotion, publicity or explanation of the APA enables athletes to dedicate a significant
Podium Programme, to engage in contractual amount of their time and energy to
20 appearances, to obtain prior written consent maintaining a high level of competitiveness in
of the SMT before working in any media 60 their chosen sport. The Tribunal also found
capacity, and not to engage in any personal that the APA is a grant based on an
commercial work with any third party without assessment of future performance. The
the prior written consent of the Respondent. Claimant received an APA in varying amounts
between the years 2007 and 2016.
25 Clause 10 of the Agreement deals with
suspension and termination. It provides that 65 The Claimant also set up her own business,
the Respondent may, at its absolute discretion, Jess Varnish Management Limited, in 2010.
terminate or suspend the Agreement and the She was successful in obtaining sponsorship
Claimant's membership of the Podium agreements with companies such as Boots and
30 Programme at any time and with immediate Adidas. In the period 2013 to 2016, the
effect by written notice in certain specified 70 Claimant's business made approximately
circumstances. Membership of the £35,000 annually.
programme may also be suspended or
terminated as a consequence of the The Tribunal found that the Claimant agreed
35 disciplinary process under the applicable to a high level of control under the
policy, or for performance-related reasons. Agreement. In particular, the Tribunal noted
75 that both coaches and athletes were working
There was a second respondent in the towards the goal set out in the Agreement,
proceedings before the Tribunal, namely, UK and the Claimant accepted a high degree of
Sport. UK sport is an executive non- control in achieving that goal. The Tribunal

also noted, however, that the Claimant was employee to accept and perform the work in
not obliged under the Agreement to use the exchange for consideration, usually wages.
coach supplied by the Respondent. The 40 The case law refers to this as the "wage/work
Claimant was entitled to have her own coach, bargain". It is of course possible for
5 although any such coach was required to remuneration to be provided in a form other
comply with relevant obligations under the than money. The claimant's representative
Agreement and to use his or her best attempts reminded me an employed domestic servant
to work with the SMT to further the 45 might receive a number of benefits in kind but
Claimant's interests as well as those of the no cash.
10 Podium Programme as a whole.
140. I must ask myself in the language used in
The Claimant's relationship with the the Ready Mixed Concrete case: "Has the
Respondent was terminated for performance- servant agreed that in consideration of a wage
related reasons with effect from 31 March 50 or other remuneration she will provide her
2016. She lodged proceedings in the Tribunal own work and skill in the performance of
15 against both the Respondent and UK Sport. some service for her master?" I find the
Her claims included unfair dismissal and answer to this question is no. I find there was
discrimination. Employee and worker status no wage/work bargain in this case. The
was disputed, and a preliminary hearing was 55 claimant did not work in exchange for a wage.
convened to determine that issue. The first respondent did not provide work for
the claimant to do. The first respondent did
20 The Tribunal's Conclusions not pay her.
141. What occurred was that the claimant was

The issue for the Tribunal was whether the 60 selected, on the basis of her potential, to take
Claimant was employed by or a worker of the part in the first respondent's World Class
Respondent, UK Sport or both the Programme (also referred to as the Podium
25 Respondent and UK Sport under a tri-partite Programme). By 2015 she was taking part at
arrangement. The Tribunal first considered the elite level on the Olympic Podium
whether the Claimant was an employee. 65 Programme. This was reflected in the legal
Having identified that the "irreducible agreement, the Athlete Agreement. The
minimum" for a contract of employment purpose of the Agreement was "to recognise
30 comprised the elements of mutuality of the ultimate goal of everyone involved in the
obligation, control and personal performance, Podium Programme to win medals for the
the Tribunal concluded as follows in respect 70 British Team at international competitions"
of the first of those elements: (see page 2.1.1).
"139. Usually mutuality of obligation is 142. The claimant's responsibilities under the
35 expressed as an obligation on the part of the Agreement are set out at paragraph 6. Her
employer to provide work and a primary responsibility was the individual rider
corresponding obligation on the part of the 75 plan. She agreed to develop and agree an

individual rider plan in close consultation with Nicholl explained that UK Sport retained an
an individual identified by British Cycling. In 40 inherent discretion to reject the application. In
other words, she agreed to train in the hope addition, there were athletes on the Olympic
she would be selected to compete for the Podium Programme who did not receive an
5 British Cycling Team. award because their means meant they were
not eligible.
143. To enable her to have the best chance to
do this the British Cycling offered her 45 147. Another feature of the award from UK
extensive services as detailed in the findings of Sport was that it was variable. I rely on my
fact above and see paragraph5.1.5 of the 2015 findings of fact to show that over the ten
10 Athlete Agreement at page 701 although she years the claimant received an award in
was not obliged to take up those services. See accordance with UK Sport's Development
the evidence of Mr Barnes referred to above. 50 Programme she received different levels of
Indeed she was not required to use the coach award, sometimes at the highest level (A) but
allocated by British Cycling. The Agreement at other times at the lower level (B). The
15 makes it clear she could use her own coach. amount varied, not on the basis of the level of
the claimant's past efforts in training and
144. The claimant did not receive money from 55 competing but on the assessment of her
British Cycling, the first respondent. There is future potential.
no provision within the Athlete Agreement
(see pages 698- 725) for any money to be paid 148. I entirely accept the evidence of Ms
20 to the claimant. Instead the claimant was Nicholl to find that unlike conventional
eligible as an athlete who has been selected for wages, the sum was not payable on the basis
British Cycling's Podium Programme to apply 60 of past performance or past results, or past
for a National Lottery funded Athlete work done. Instead the award was considered
Performance Award (APA) which I find was a on an annual basis by considering the future
25 non repayable means tested grant and thus a potential of an athlete. Although Ms Nicholl
contribution towards her living and/or accepted that past performance would be a
sporting costs as an elite athlete. 65 factor in making that assessment, she stressed
the basis of the assessment was the athlete's
145. I find it is significant that the APA was future potential: it was in future potential that
not funded by British Cycling, the first the National Lottery Fund via UK Sport was
30 respondent. The APA was funded by the
seeking to invest.
National Lottery and the claimant had to
apply to UK Sport, the second respondent, 70 149. In order to obtain an award from UK
for such an award. Sport, the claimant had to complete a detailed
application form and include details of her
146. Although the claimant was only eligible means because the award was means tested.
35 for such an award if she had been selected for The claimant was quite clear in evidence that
British Cycling's Academy or Podium 75 she was careful to fill in that part of the form
Programme, there was no absolute guarantee accurately.
that she would receive such an award. Ms
150. I reject the suggestion by the claimant in 153. In this case I find that that not only did
evidence that she was in some sense the first respondent not provide the claimant
compelled by British Cycling to complete an 40 with remuneration, neither did they provide
application for the APA. I find the chasing work for the claimant. I remind myself I must
5 emails in the bundle are no more than that. I scrutinise the nature of the Agreement. I find
find those emails show that those who the obligations of the parties under the
coached the claimant had her best interests at Athlete Agreement do not amount to a
heart and tried to ensure she completed the 45 mutuality of obligation. The first Respondent
relevant paperwork so she could be selected the claimant for the World Class
10 considered for funding from UK Sport. Programme. They did not provide her with
work. She agreed to train in accordance with
151. I rely on the fact the funding was from a the individual rider plan in the hope she
third party, the fact the claimant had to 50 would achieve success in international
submit an application for funding, the fact the competition.
award was means tested and the fact that the
15 funding was a grant where the award was 154. I find therefore the claimant's claim of
based on assessment of likely future potential, employment by the first respondent fails at
not on the basis of work done in the past as this point because I find there is no mutuality
factors which mean the claimant was not 55 of obligation between the claimant and the
providing work or skill in consideration for first respondent."
20 wages or remuneration, for the first
respondent.
152. I remind myself that Mr Justice Langstaff As to personal performance, the Tribunal
held in Cotswold Developments Construction concluded as follows:
Ltd v Williams 2006 IRLR 188 in relation to 60 "Personal Performance
25 mutuality of obligation that it is important to
know precisely what is being considered under
that label. "Regard must be had to the nature
156. Superficially, it appears the category of
of the obligations mutually entered into to
personal performance here is consistent with a
determine whether a contract formed under
contract of employment. There is obviously
30 those obligations is a contract of employment,
65 no dispute that it was the claimant who
or should be categorised differently. A
performed the rider plan as set out in her
contract of employment where there is no
Agreement with British Cycling. It is certainly
obligation to work could not be a contract of
not a case where there is a power of
employment". Later he states; "The focus
substitution. It was inevitable it was the
35 must be upon whether or not there is some
70 claimant who must train in accordance with
obligation upon an individual to work and for
the rider plan.
the other party to provide or pay for it"
157. However, I consider more closely what
exactly was the claimant's personal
performance under the terms of the Athlete

Agreement. Her personal performance was
necessary in relation to her agreement to train 40 The Tribunal rejected the Claimant's
in accordance with the individual rider submission that the various services provided
5 agreement. There is no doubt the claimant put by the Respondent amounted to
in huge amounts of personal effort to train "remuneration". Instead, the Tribunal found:
hard. However I have already found that the "168. I find that the benefits provided under
first respondent was not providing the 45 the contract at 5.1.5 are benefits and not
claimant with work so care must be taken with remuneration. In making this finding I rely on
10 the concept of personal performance. The the nature of the two most important services
claimant personally performed the agreement listed at (i) and (ii) of clause 5.1.5. The first
to train under the individual rider plan-that is benefit is described as "training, competition
obvious and inevitable: she had been 50 and personal development planning and
individually selected because of her own review" and the second benefit is described as
15 ability to be on the programme. However she "coaching support". I find those are genuinely
was not personally performing work provided services, not remuneration.
by the respondent. Rather she was personally
performing a commitment to train in 169. In addition there was no obligation on
accordance with the individual rider 55 the claimant to accept coaching support from
20 agreement in the hope of achieving success at the coach supplied to her by British Cycling.
international competitions. I find that does Clause 6.1.3 makes it clear that the claimant
not amount to personal performance was entitled to engage the services of a
consistent with a finding of a contract of personal coach. This is reflective of a finding
employment." 60 that these genuinely were services provided to
the claimant rather than remuneration.
25
170. Likewise, I accept the evidence of Mr
Whilst accepting that control was a Dyer whom I found to be a clear,
"significant feature" of the relationship, the conscientious and careful witness. I rely on his
Tribunal found that: 65 evidence to find that the services provided
"165. In conclusion the claimant was subject under the contract are services not
30 to control as reflected in the clauses of the remuneration. He explained that one of the
Athlete Agreement referred to above. types of support available to athletes under
However as I have already found there is no the elite Podium Programme was
mutuality of obligation and no personal 70 psychological support, but some athletes
performance consistent with a contract of chose never to avail themselves of that
35 employment, there is therefore is no contract
support. That is suggestive of a service which
of employment. The claim the claimant was is open to the athlete to use or not, rather
employed by the first respondent fails at this than remuneration.
stage."

171. Clause 5.1.5 states "the services are Having concluded that the Agreement was
"general services benefits and other support" not a sham and that it did accurately reflect
and they are "designed to support you in the arrangements between the parties, the
delivering your individual rider plan." This 40 Tribunal went on to consider the other
5 language suggests the reality I have found-the features of the Agreement and whether these
services are available to support the claimant were or were not consistent with employee
in her training. They are not remuneration status. The Tribunal considered the
awarded in exchange for work or skill Respondent's policies, the Claimant's ability to
performed. 45 negotiate terms, the financial arrangements
(including the Claimant's tax arrangements),
10 172. Furthermore the provision of the
the extent to which the Claimant was
benefits is not automatic: Clause 5.1.5 states; integrated into the Respondent's organisation,
"The level or amount by which you are the restrictions on the Claimant's engagement
entitled to enjoy any of the services benefits 50 with the media, and her obligation to make
and other support is decided upon your appearances. Some of these (integration,
15 individual circumstances and is at the media guidelines and commercial restrictions)
discretion of the programme". An inherent were found by the Tribunal to point towards
discretion on the part of British Cycling in employee status, but the other factors were
allowing enjoyment of a particular benefit or 55 considered to point away from such status.
service is inconsistent with a finding that these The Tribunal, following the guidance of
20 benefits amount to remuneration. Mummery J in Hall v Lorimer [1992] ICR 739
173. Finally, although how the parties are (as approved by the Court of Appeal in Hall v
taxed is not definitive in assessing an Lorimer [1994] 1 WLR 209 ), then 'stepped
employment relationship, it is interesting and 60 back' to look at the whole picture and
relevant to note that the benefits received concluded as follows:
25 under the Athlete Agreement by the claimant,
"Conclusions
which have a very significant monetary value
are not regarded as taxable by the Revenue.
174. For these reasons I find that the services 228. At this point I step back and look at the
and benefits provided under the Athlete 65 whole picture as advised by Mr Justice
30 Agreement are not remuneration. I find there Mummery. The claimant was an athlete. She
is no mutuality of obligation between the wished to perform to the best of her ability
claimant and the first respondent because she and to represent her country at international
was not provided with remuneration in competitions. British Cycling wanted to assist
exchange for work. I find the first respondent 70 athletes who could perform in international
35 did not employ the claimant." competitions at the highest level and win
medals. British Cycling selected the claimant
for their Podium Programme. She agreed to
participate in a detailed training plan. To

support her in her training they offered her perform personally, I find that the answer to
state-of-the-art equipment and a range of the question is that there was not. The
services to which she could avail herself claimant was not personally performing work
should she wish. 40 for British Cycling. She was training in
accordance with the rider plan in the hope she
5 229. The cost of providing these services by would be selected to compete in international
British Cycling was met partly from public competitions.
funds (the National Lottery) and partly from
funds raised by commercial sponsorship. The 243. [Blank in original]
claimant was restricted in terms of her own
45 244. I also rely on my finding that the
10 commercial sponsorship and media
appearances. claimant was not working for British Cycling.
She was an athlete training in accordance with
230. The claimant received no money from the individual rider plan. She was not
the first respondent and could choose her undertaking to do or perform personally any
own coach if she wished. She could choose 50 work or services for another party to the
15 her own equipment in certain circumstances if contract.
she wished. The money she did receive was
from another party, UK Sport, was a non 245. I find that this is not a contract for
repayable grant and was not based on past services. The Athlete Agreement is a contract
"work" but rather on her future potential. It where services are provided to the claimant,
55 not the other way around. I find the analogy
20 was means tested and variable.
with education which has been put in this case
231. I find the picture wholly inconsistent by the first and second respondents counsel
with a contract of employment with the first to be helpful. I rely on the principle in the old
respondent. I find she was not employed by case of Daley v Allied Suppliers [1983] ICR 90
the first respondent." 60 97F-98E, that the relationship is not one of
employment where the purpose of the
25 contract is training for the benefit of the
Having concluded that the Claimant was not trainee.
an employee, the Tribunal turned its attention 246. In stepping back to look at the true
to whether the Claimant was a 'worker' within 65 nature of the relationship between the parties
the meaning of s.230(3)(b) of the 1996 Act , I remind myself of the purpose of this section
30 and in particular, whether there was some in the Employment Rights Act 1996 . It is to
minimum amount of work that the Claimant give employees and workers jurisdiction to
was obliged to perform personally. The bring certain types of claim, including a claim
Tribunal concluded as follows: 70 for enforcement of wages under Part II of the
"242. Alternatively, if the real question is Act as clearly expounded to me by the first
35 whether or not there is some minimum respondent's counsel. I rely on my findings
amount of work that the claimant is obliged to above there were no wages paid by the first
respondent under the terms of the Athlete
Agreement The only remuneration available customer of any profession or business

to the claimant under the contract with the 40 undertaking carried on by the individual" (
first respondent was potentially benefits and section 230(3)(b) ).
services. The general nature of the services is
5 set out in the Athlete Agreement at 5.1.5, at 250. Accordingly, I find that the claimant is
page 701. not a worker for the purposes of the
definition in ERA 1996. "
247. I heard evidence that there are a wide
range of benefits available including world 45
class coaching, top quality clothing and The Tribunal also dismissed the claim that the
10 equipment and a dedicated support team Claimant was employed by or a worker of UK
including mechanics, together with access to Sport or of both the Respondent and UK
physiotherapy, massage, medical support, Sport under a tri-partite arrangement. The
nutritionists, biomechanics, psychologists, 50 Tribunal considered a further issue which was
lifestyle management experts and sports whether the Claimant was an employed under
15 scientists. In addition, the claimant had the a contract personally to do work within the
benefit of personal accident insurance, travel meaning of s.83(2)(a) of the Equality Act 2010
insurance, travel and accommodation for , and found that she was not. That aspect of
training camps and competitions, world class 55 the Tribunal's judgment is not the subject of
facilities and a passport scheme. I rely on the this appeal.
20 evidence of Mr Dyer that different athletes
chose to avail themselves of different parts of ……………
this Programme. It is very difficult to
The Claimant was given permission to pursue
understand how the mechanism of Part II in
three grounds of appeal:
relation to wages could apply. I find this is a
25 pointer to my original finding that the fact the 60 a. Ground 1 – The Tribunal erred in
claimant was availing herself of benefits law in finding that there was no "mutuality of
offered to her, she was not providing services obligation" between the Claimant and the
to the first respondent. Respondent.
248. I rely again on the factors set out in the b. Ground 2 - The Tribunal erred in
30 section of my judgement above dealing with 65 concluding that the claimant was not a worker
employee status to find the picture is not under s.230(3)(b) of the 1996 Act . As is now
consistent with worker status. common, we shall refer to a worker falling
within this provision as a "limb (b) worker";
249. Accordingly, for these reasons the claim
and
fails under "limb b" at that point. There is
35 therefore no need for me to ask myself the 70 c. Ground 3 – The Tribunal's
second question and to deal with the so-called reasoning was irrational in relation to certain
"carve out" provision, namely "whose status is findings of fact.
not by virtue of the contract that of a client or

established that, for professional football

players, the training that they did with a view
We shall deal with each ground in turn. to being selected to play in competitive
Ground 1 – Mutuality of Obligation 40 matches, was work done in order to achieve a
common benefit, i.e. winning competitions,
Submissions and that, by analogy, the same should apply to
the Claimant. On any view, submits Mr
5 Mr Reade QC, who appears with Ms
Reade, such work satisfies the " some minimum
Bannerjee for the Claimant (as they did
45 or at least some reasonable amount of work " test
below), submits that the Tribunal took an
identified by Langstaff J in Cotswold . The
unduly restrictive approach in determining
mere fact that the athlete derives a personal
whether there was mutuality of obligation.
benefit from the arrangement, i.e. by being
10 The first challenge is as to the Tribunal's
provided with state of the art equipment and
conclusion, at [139] to [140] of the Judgment
50 services to enhance their own skill and
that " there was no wage/work bargain in this case ".
reputation, does not undermine the fact that
Mr Reade submits that it is clear from the
some minimum or some reasonable amount
decision of Langstaff J in Cotswold
of work is provided.
15 Developments Construction Ltd v Williams
[2006] IRLR 181 that the question to be asked Moreover, submits Mr Reade, it is clear that in
is whether: 55 order to satisfy the requirement that there is
mutuality of obligation, the work done does
"the natural inference from the facts [is] that
not have to be directed to the employer and
the claimant agreed to undertake some
nor is it necessary for the employer to provide
20 minimum, or at least some reasonable,
the work; it may be enough that the employer
amount of work … in return for being given
60 pays an employee to carry out work for
that work, or pay": Cotswold at [61].
another. In the present case, the Claimant, as
a professional athlete was clearly required to
provide work by training and, when selected,
In relation to the work side of that competing for the common purpose of all
25 requirement, the Tribunal's fundamental error, 65 those involved in the Podium Programme of
submits Mr Reade, was in failing to recognise winning medals for the British Team.
that in the case of a professional cyclist, the
obligation under the Agreement to train hard Mr Reade also challenges the Tribunal's
for the common purpose of achieving medal finding at [153] of the Judgment that, "[the
30 success for the British Team, was work done Respondent] selected the claimant for the World Class
by the Claimant for the Respondent. The 70 Programme. They did not provide her with work ."
Tribunal had been referred to cases, such as This is said to be incompatible with the
Walker v Crystal Palace Football Club Ltd Tribunal's earlier finding that only the athletes
[1910] 1 KN 87 , CA and Eastham v selected could compete in international events
35 Newcastle United FC [1964] Ch 413 and that, in that sense, the athletes were
(together, "the football cases"), which 75 provided with work by the Respondent.

On the remuneration side, although the 40 certain factors, which is a matter for the
Tribunal acknowledged that benefits could be Tribunal. He submits that the football cases
in kind, Mr Reade submits that it erred in take the Claimant nowhere as, not only did
concluding at [167] that the services provided these cases not form the basis of the
5 to the claimant by the Respondent " are not and arguments below, the factual circumstances in
were not regarded by the parties at the time, as 45 those cases (including the fact that in Walker
remuneration ". That error stems, says Mr there was an express contractual term that the
Reade, from the Tribunal's original failure to footballer agreed to " serve the club ", in
regard the training done by the Claimant as consideration for which the club " agrees to pay
10 work; had it been appreciated that it was "), were very different. The Respondent does
work, then the Tribunal would not have 50 not dispute that the Claimant worked very
reached the erroneous conclusion that the hard to achieve the goals set out in the IRP,
Claimant was merely the recipient of services but submits that it was open to the Tribunal
provided by the Respondent. The substantial to conclude that this did not amount to work
15 value of the services in this case was such that in the sense of providing personal service
it could clearly amount to remuneration, and 55 consistent with a contract of employment. Mr
the fact that the Claimant was ot obliged to Galbraith-Marten submitted that a closer
take them all up (e.g. she could use her own analogy to the present case was that of a
coach), or the fact that some benefits were student attending University. Such a student
20 discretionary, were not inimical to such may work hard to achieve success and the
benefits amounting to remuneration. 60 University will provide valuable resources to
help the student achieve that success, but no-
Mr Galbraith-Marten QC, who appears for one would suggest that students are
the Respondent, submits that the Tribunal's employees of the University.
conclusions involved evaluative judgments as
25 to the nature of the contract, with which the Mr Galbraith-Marten submits that a contract,
EAT cannot readily interfere, unless there has 65 the primary or dominant purpose of which is
been a misdirection of law or its decision was to train, support and assist an individual,
one that to reasonable Tribunal, properly cannot be a contract of service or a contract
directing itself, could have reached on the personally to execute any work or labour:
30 facts. In short, submits Mr Galbraith-Marten, Daley v Allied Supplies Ltd [1983[ ICR 90 ,
the Respondent's appeal is a perversity 70 EAT.
challenge. As to Ground 1 specifically, Mr
Galbraith-Marten submits that the Tribunal As to remuneration, Mr Galbraith-Marten
clearly did direct itself correctly in relation to submits that the Tribunal was entitled to
35 mutuality of obligation since it expressly conclude that the true nature of the
referred, at [152], to the test identified in Agreement was for the provision of services
Cotswold . Furthermore, the Respondent's 75 to the Claimant by the Respondent, and that it
challenge comprises little more than criticisms would be unnatural to view these as 'pay' or
of the weight attached by the Tribunal to remuneration for training hard and
competing.

Discussion The Ready Mixed Concrete approach is not

40 the only test that may be applied, as the
Section 230 of the 1996 Act provides that an judgment of Elias LJ in Quashie makes clear,
"employee" is "an individual who has entered but it is the one that is most frequently
into or works under (or, where the adopted. That is perhaps because the
5 employment has ceased, worked under) a multifactorial approach that it embodies
contract of employment". A "contract of 45 renders it capable of application to the
employment" means a "contract of service or multitude of factual circumstances that can
apprenticeship, whether express or implied, give rise to a contract of employment. The
and (if it is express) whether oral or in third limb of the test, under which the court
10 writing". Thus, the question, in a case where or tribunal is required to consider whether the
there is an issue as to whether a person is an 50 other provisions of the contract are consistent
employee or not, is whether that person with a contract of service, requires an
works (or worked) under a contract of service. assessment of the entirety of the contract and
But the 1996 Act provides no further the obligations thereunder in order to
15 assistance in determining whether or not a determine the nature of the contract. Of
contract is a contract of service. For that one 55 course, that is not to say that any single
must turn to the numerous authorities in the provision pointing away from a contract of
field. One of the key authorities, and one service would necessarily preclude a finding
which has stood the test of time to a that this was a contract of service. As in any
20 remarkable degree, is the judgment of multifactorial analysis, no one factor is likely
MacKenna J in Ready Mixed Concrete (South 60 to be determinative. This inevitably means
East) Ltd v List of Pensions and National that the Tribunal will have to consider and
Insurance [1968] 2 QB 497 . In that decision, evaluate all of the relevant factors. Having
MacKenna J identified three requirements done so, it is not then just a question of
25 before it could be said that there is a contract counting up the factors pointing towards or
of service. The first is that there is an 65 away from a contract of service in order to
agreement that in consideration of a wage or arrive at a conclusion. The exercise is very
other remuneration, an individual will provide much one of judgment based on an analysis of
his own work and skill in the performance of the whole picture. As stated by the Court of
30 some service for the employer. The second is Appeal in Hall v Lorimer (agreeing with
that the individual agrees that in the 70 Mummery J in the EAT):
performance of that service he or she will be
subject to the other's control in a sufficient "… In cases of this sort there is no single path
degree to make that other the employer. The to a correct decision. An approach which suits
35 third is whether the other provisions of the the facts and arguments of one case may be
contract are consistent with its being a unhelpful in another. I agree with the views
contract of service: see Ready Mixed Concrete 75 expressed by Mummery J. in the present
at 515 C to D (set out at [19] above). case[1992] 1 W.L.R. 939, 944:

"In order to decide whether a person carries 40 the EAT will not readily interfere unless there
on business on his own account it is necessary is some misdirection of law or the conclusion
to consider many different aspects of that reached is one that no reasonable tribunal,
person's work activity. This is not a properly directed, would reach.
5 mechanical exercise of running through items
on a check list to see whether they are present Much has been said in this case about
in, or absent from, a given situation. The 45 'mutuality of obligation'. Once a contract is
object of the exercise is to paint a picture found to exist (which in itself would mean
from the accumulation of detail. The overall that there were mutual obligations sufficient
10 effect can only be appreciated by standing for there to be a contract), the question is
back from the detailed picture which has been whether the obligations thereunder are such
painted, by viewing it from a distance and by 50 that it is a contract of service. It is in relation
making an informed, considered, qualitative to that question that the phrase 'mutuality of
appreciation of the whole. It is a matter of obligation' has become something of a term
15 evaluation of the overall effect of the detail, of art, as if it inherently defined the nature of
which is not necessarily the same as the sum the obligations necessary for a contract of
total of the individual details. Not all details 55 employment to arise. Of course, the phrase
are of equal weight or importance in any given itself does no such thing; it tells one nothing
situation. The details may also vary in about the nature of the obligations necessary
20 importance from one situation to another. for there to be a contract of employment. For
The process involves painting a picture in guidance as to what those are, one needs again
each individual case. As Vinelott J. said in 60 to look at the authorities. Some of those
Walls v. Sinnett (1986) 60 T.C. 150 , 164: 'It is, authorities use the phrase as meaning no more
in my judgment, quite impossible in a field than the minimum set of obligations necessary
25 where a very large number of factors have to to create a contract (see, e.g. Quashie above),
be weighed to gain any real assistance by whereas others treat it as a label for the type
looking at the facts of another case and 65 of obligations necessary for there to be a
comparing them one by one to see what facts contract of employment: see Langstaff J's
are common, what are different and what analysis in Cotswold at [12] to [24] and [40] to
30 particular weight is given by another tribunal [53]. Langstaff J, after reviewing the
to the common facts. The facts as a whole authorities, concluded as follows:
must be looked at, and what may be 70 "54. Since "mutuality of obligation" may be
compelling in one case in the light of all the used in either [the minimum necessary to
facts may not be compelling in the context of create a contract] sense, or it may relate to
35 another case.'" those obligations which are of such a nature
that they indicate that the contract might be
75 one of service (although there are differences
A decision that involves an evaluative of definition in case-law as to the nature of
judgment of this type on the part of the the employer's obligation) it is important to
Tribunal, is one with which, as we have seen, know precisely what is being considered under

that label (to adopt the second general point 40 obligation" in the sense of the wage/work
made by Elias J in Stephenson) and for what bargain. That is that it does not deprive an
purpose. Regard must be had to the nature of overriding contract of such mutual obligations
the obligations mutually entered into to that the employee has the right to refuse
5 determine whether a contract formed by the work. Nor does it do so where the employer
exchange of those obligations is one of 45 may exercise a choice to withhold work. The
employment, or should be categorised focus must be upon whether or not there is
differently. A contract under which there is no some obligation upon an individual to work,
obligation to work could not be a contract of and some obligation upon the other party to
10 employment. It may be a contract of a provide or pay for it …." (Emphasis added)
different type: it might, for instance, be a
contract of licence (see Royal Hong Kong 50
Golf Club v Cheng Yuen [1998] ICR 131 The formulation in the underlined words was
(Privy Council) or even carriage, as was the re-stated when Langstaff J identified the
15 contract in Ready Mixed. However, the phrase questions that the tribunal below should
"mutuality of obligations" is most often used consider upon remitting the matter:
when the question is whether there is such a
contract as will qualify a party to it for 55 "61. The consequence of our conclusion is
employment rights or holiday pay. In this that the matter should be remitted to the
20 situation a succession of contracts of short Employment Tribunal. Having regard to the
duration under each of which the person guidance given in cases such as Sinclair Roche
providing services is either an employee or a Temperley v Heard and Fellows [2004] IRLR
worker will give rise to no rights (for instance 60 763 we see no reason why remission should
to pay unfair dismissal or holiday pay) unless not be to the same Tribunal who have heard
25 (i) the individual instances of work are treated the evidence, and are in a position to focus
as part of the operation of an overriding upon the central questions:
contract, or (ii) Section 212 (Continuity of
(a) was there one contract or a succession of
Employment) or, arguably, a continuing
65 shorter assignments?
employment relationship sufficient to satisfy
30 the principal of effectiveness applies (for (b) if one contract, is it the natural inference
holiday pay). Such an overriding contract from the facts that the Claimant agreed to
cannot exist separately from individual undertake some minimum, or at least some
assignments as a contract of employment if reasonable, amount of work for Cotswold in
there is no minimum obligation under it to 70 return for being given that work, or pay ?"
35 work at least some of those assignments. (Emphasis added)
55. We are concerned that Tribunals generally,
and this Tribunal in particular, may, however,
have misunderstood something further which The underlined words, which appear to
characterises the application of "mutuality of encapsulate the EAT's approach in Cotswold
75 as to the nature of the obligations necessary
for there to be a contract of service, may be 40 party. In cases such as the present one, where
seen as a refinement of the first limb of the there is no dispute that there is a contract
test in Ready Mixed Concrete , which governing the relationship and there is no
provides that there must be an agreement intermittency in the relationship, it may not
5 whereby in consideration of pay or always be helpful, given the different usages
remuneration, the individual will provide his 45 of the term of 'mutuality of obligation' in the
own work and skill in the performance of authorities, to analyse the situation by
some service for the employer. The relevant reference to that term. The better approach in
obligations as encapsulated in Cotswold such cases, in our view, is to determine
10 involve an obligation upon an individual to whether the obligations under the contract are
undertake some minimum or at least some 50 of the type that give rise to a contract of
reasonable amount of work, and some employment.
obligation upon the other party to provide or
pay for it. Whereas under the Ready Mixed In the present case, although there was
15 Concrete approach, there is no quantification reference to mutuality of obligation, it is clear
of the amount of work that is to be provided that the Tribunal was applying the refined
by the putative employee, and the putative 55 Ready Mixed Concrete approach. Thus, the
employer's obligation comprises pay and Tribunal asked itself the first question set by
remuneration, it is clear now that a contract of that case:
20 service may exist where the putative employee "140. I must ask myself in the language used
agrees to some reasonable minimum amount of in the Ready Mixed Concrete case: "Has the
work and the putative employer's obligation 60 servant agreed that in consideration of a wage
may be discharged by merely providing the or other remuneration she will provide her
work to be done. own work and skill in the performance of
25 The differences are important, for they have
some service for her master?" I find the
the effect of considerably broadening the answer to this question is no. I find there was
65 no wage/work bargain in this case. The
scope of what is often described as the
'wage/work bargain' that is an essential claimant did not work in exchange for a wage.
prerequisite for there to be a contract of The first respondent did not provide work for
30 employment. However, they do not the claimant to do. The first respondent did
undermine the appropriateness of the Ready not pay her."
Mixed Concrete approach as a starting point 70
in the analysis. In particular, none of the cases
on mutuality of obligation undermine the Mr Reade QC attacks that conclusion as an
35 requirement under the first limb of Ready incorrect application of the test for the
Mixed Concrete that there needs to be an obligations necessary for there to be a
obligation on the part of the putative contract of service as set out in Cotswold : see
employee to provide his own work and skill in 75 above at[36] and [37]. We do not agree. The
the performance of some service for the other Tribunal, at [152], asked itself precisely the
question from Cotswold that Mr Reade
identifies, namely whether or not there was an being an arrangement where any service is
agreement to undertake some minimum, or at 40 performed by the Claimant for the
least some reasonable amount of work in Respondent, it was " a contract where services are
return for being given that work, or pay. The provided to the Claimant ": see [245].
5 Tribunal answered that question as follows:
Mr Reade's real challenge, it seems to us, is
"153. In this case I find that that not only did not that there was some misapplication of the
the first respondent not provide the claimant 45 'mutuality of obligation' test, but with the
with remuneration, neither did they provide Tribunal's conclusion that what the Claimant
work for the claimant. I remind myself I must did under the Agreement did not amount to
10 scrutinise the nature of the Agreement. I find 'work'. He submits that, by analogy with the
the obligations of the parties under the football cases, there is no reason why the
Athlete Agreement do not amount to a 50 training that the Claimant, a professional
mutuality of obligation. The first Respondent athlete, undertook to do could not be seen as
selected the claimant for the World Class work too. In Walker , the Court of Appeal
15 Programme. They did not provide her with was required to consider whether a
work. She agreed to train in accordance with professional footballer was a "workman"
the individual rider plan in the hope she 55 within the meaning of the Workman's
would achieve success in international Compensation Act 1906 ("the 1906 Act").
competition." The definition of 'workman' for the purposes
of 1906 Act bears some similarity to that of an
20 employee under 1996 Act , in that a
The reasoning is terse. However, it is 60 'workman' was " any person who has entered into or
tolerably clear that the Tribunal did not works under a contract of service or apprenticeship
consider that selecting the Claimant for the with an employer, whether by way of manual labour,
training programme or providing her with clerical work or otherwise and whether thecontract is
25 training facilities and services amounted to expressed or implied, is oral or in writing ." The
providing her with 'work'. In other words, the 65 Court noted that the agreement between the
Tribunal did not find against the Claimant player and the club included terms requiring
because of some concern that there was an the player to serve the club, the club to pay
insufficient amount of work being done; its the player, the player to play in all matches
30 finding was based on the more fundamental when required to do so by the club, the player
notion that what the Claimant did was not 70 to keep himself in good playing form and to
'work' at all in this context. That is to say, the attend regularly to training, the player to
Claimant was not found to have provided her comply with the instructions of the club and
own work and skill in the performance of to do all that may be deemed necessary by the
35 some service for the Respondent. In fact, as club to fit himself as an efficient football
the Tribunal later concluded (in a section 75 player. Cozens Hardy MR, at p.92 of the
dealing with the question of whether the judgment, concluded, in the light of these
Claimant was a limb (b) worker), far from this facts, as follows:

"I feel myself quite unable to entertain any of the Club/Respondent in that the athletes'
doubt that this man has entered into a success can result in greater commercial
contract of service with the club. I think it was 40 success or, in the Respondent's case, an
a contract by way of manual labour, but, enhanced reputation and the ability to attract
5 whether it was so or not, I think it is a more commercial sponsorship; and the work
contract which plainly comes within those done by both athletes, i.e. training hard to be
words "or otherwise," and that we should be selected, was similar in nature. Mr Reade
narrowing the Act most unduly to say this 45 rightly acknowledged that there are also some
man is not entitled to get compensation as a differences between the footballer in Walker
10 result of the accident." and the Claimant, the principal one being that
the footballer's contract contained express
provisions consistent with employment. The
Similarly, Fletcher Moulton LJ, at p.92-93, in 50 player was required to "serve the club" and
a concurring judgment held that: the club was required to pay the player. By
contrast, the Agreement expressly states it is
"I cannot see any reasonable room to doubt not a contract of employment. It is, of course,
15 that a professional football player employed as well-established that such labels or exclusions
this man was is within the terms of the Act. 55 are not definitive, but where, as in this case,
Here is a company that carries on the game of the Agreement is not a sham (and there is no
football as a trade, getting up and taking part challenge to that conclusion), such labels can
in football matches. In order to share in the be useful in resolving ambiguity and in
20 proceeds of those matches they must, of ascertaining the true intentions of the parties
course, have a team which they can send to 60 and whether the Agreement gives effect to
represent them in the games. This they those. Another key difference is that there was
obtained by entering into contracts of service a clear obligation on the part of the football
with definite persons who are caught club to pay the footballer, whereas in the
25 professional football players, and who, in the present case there was no payment of money
language of the Master of the Rolls, give up 65 from the Respondent. Mr Galbraith-Marten
their time for the purpose. Now I ask myself also pointed out that whereas the footballer's
why is such a contract, which is in its form a commitment was to play for the success of
contract of service, not to be regarded by us the team employing him, the Claimant's aim
30 as such? I can see no reason; …" was to win medals for Great Britain. It is also
70 significant in our view that that the club in
Walker carried on the game of football "as a
Mr Reade submits that there are numerous trade".
similarities with the Claimant's case: both the
We note that, whilst the footballer analogy
footballer and the Claimant are professional
and the football cases were drawn to the
35 athletes who trained hard in order to be
75 Tribunal's attention, this was by way of a
selected for the team or for competition; the
single a single short sub-paragraph and
interests of the athletes are aligned with those

footnote in the course of substantial 23-page 40 number of factors have to be weighed to gain
closing submissions. Moreover, the Claimant any real assistance by looking at the facts of
had submitted below that her case was not another case and comparing them one by one
about the status of all athletes or cyclists, but to see what facts are common, what are
5 about the Claimant. There is, therefore, some different and what particular weight is given
force in Mr Galbraith-Marten's submission 45 by another tribunal to the common facts. The
that it was not surprising that the Tribunal did facts as a whole must be looked at, and what
not spend any time expressly considering the may be compelling in one case in the light of
position of other athletes including all the facts may not be compelling in the
10 professional footballers. In any case, we do context of another case.'"
not see any error of law on the part of the
Tribunal in not expressly referring to the 50
football cases and/or the analogy that is Another analogy presented to us, and which
drawn with them. In the first place, the did find favour with the Tribunal below (see
15 analogy breaks down at the initial stage of [245] and [257] of the Judgment), was that of
determining the contractual obligations. a student attending University. Whilst the
Given that the fundamental task of the 55 analogy is superficially attractive - given that
Tribunal was to determine the nature of the the student may also work hard, receive the
obligations imposed on each party and benefit of valuable teaching resources and
20 whether these gave rise to a contract of services, and achieve success that will reflect
employment, a key difference as to what those well on the institution, but would not be
obligations were seriously diminishes the 60 considered an employee - it would not be
utility of the analogy. However, even if the prudent to treat it as determinative for the
contractual provisions had not differed in this same reason as in the football cases: there is
25 respect, the mere fact that training done by an no information as to the precise obligations of
athlete in one sport or case was found to either party in the University analogy, and
comprise work (or, as it was described in the 65 what may be compelling in that case in the
Walker case, 'manual labour') does not mean light of all the facts may not be so in the
that the same must apply to any other athlete present. The Tribunal, however, did not A
30 who trains hard for the common purpose of base its decision on the analogy; it merely
achieving success for team or country. To take considered that it provided helpful
that approach would be to focus on one 70 confirmation for its conclusion that the
factor (training to compete) out of the many Agreement is a contract whose purpose was
that must be weighed and considered in primarily to provide services to the Claimant,
35 forming an overall picture. As stated in Hall v and not the other way around.
Lorimer (CA) at p.226 F:
In the present case, the Tribunal considered
" As Vinelott J. said in Walls v. Sinnett (1986) 75 all the relevant factors and came to the
60 T.C. 150 , 164: 'It is, in my judgment, quite conclusion that what the Claimant did, albeit
impossible in a field where a very large that it involved training very hard, did not

amount to personal performance of work or 40 I mean by provisions inconsistent with the

services for the Respondent: see [156] and nature of a contract of service.
[157] of the Judgment (set out above at [12]).
(i) A contract obliges one party to build for
In our judgment, that was a conclusion that the other, providing at his own expense the
5 the Tribunal was entitled to reach and does necessary plant and materials. This is not a
not disclose any error of law. The Tribunal's 45 contract of service, even though the builder
conclusion does not mean that in another may be obliged to use his own labour only
case, where perhaps the contractual and to accept a high degree of control: it is a
provisions, and the balance between services building contract. It is not a contract to serve
10 provided to and performed by the athlete, are another for a wage, but a contract to produce
different, the training done by a cyclist could 50 a thing (or a result) for a price.
not be found to amount to work. The
legislation does not seek to define what is (ii) A contract obliges one party to carry
meant by "work" or "service". The constantly another's goods, providing at his own expense
15 evolving nature of what is regarded as everything needed for performance. This is
amounting to work or service would probably not a contract of service, even though the
make such definition impossible, or at least 55 carrier may be obliged to drive the vehicle
liable to be quickly outmoded. Not all work himself and to accept the other's control over
will be of the kind that gives rise to an his performance: it is a contract of carriage.
20 employment relationship; the hard-working (iii) A contract obliges a labourer to work for
student at University is a possible example of a builder, providing some simple tools, and to
that. It is left to the Tribunal, having found 60 accept the builder's control. Notwithstanding
that there is a contract, to consider all the the obligation to provide the tools, the
relevant factors (including the nature of the contract is one of service. That obligation is
25 work done) and assess whether the contract is not inconsistent with the nature of a contract
one of service or not. This task of classifying of service. It is ot a sufficiently important
the nature of the contract(i.e. whether it is a 65 matter to affect the substance of the contract.
contract of service or some other type of
contract) has been evident since Ready Mixed (iv) A contract obliges one party to work for
30 Concrete, whereby, under the third limb of the other, accepting his control, and to
the test in that case, it is necessary to consider provide his own transport. This is still a
whether the other provisions of the contract contract of service. The obligation to provide
are inconsistent with its being a contract of 70 his own transport does not affect the
service. In giving further guidance on that substance. Transport in this example is
35 limb of the test, MacKenna J stated, at p.516 incidental to the main purpose of the contract.
B to 517 B: Transport in the second example was the
essential part ofthe performance.
"The third and negative condition is for my
purpose the important one, and I shall try 75 (v) The same instrument provides that one
with the help of five examples to explain what party shall work for the other subject to the

other's control, and also that he shall sell him "If this is an accurate account of the course of
his land. The first part of the instrument is no the proceedings, as Mr. Tabachnik submitted
less a contract of service because the second 40 on behalf of the company on this appeal, then
part imposes obligations of a different kind: I think that it must follow that the tribunal
5 Amalgamated Engineering Union v. Minister and the majority of the appeal tribunal erred
of Pensions and National Insurance . 20 in law in reaching their conclusions. The
determination of the statutory issue whether
I can put the point which I am making in 45 the applicant home workers were "employees"
other words. An obligation to do work subject under section 54(1) of the Employment
to the other party's control is a necessary, Protection (Consolidation) Act 1978 involves
10 though not always a sufficient, condition of a
a two-stage process. The first stage requires
contract of service. If the provisions of the the determination of the question whether
contract as a whole are inconsistent with its 50 there was any contractually binding nexus
being a contract of service, it will be some between the alleged employees and the alleged
other kind of contract, and the person doing employer in relation to the "employment" in
15 the work will not be a servant. The judge's question. This must be a question of law. The
task is to classify the contract (a task like that existence or non-existence of a binding
of distinguishing a contract of sale from one 55 contract cannot be anything else. It cannot be
of work and labour ). He may, in performing a question of fact or of degree . The second
it, take into account other matters besides stage, if some binding contract exists as a
20 control." (Emphasis added) matter of law, is then to classify or define the
nature of the contractual relationship. Some
60 contracts which require a person to work for
Elias LJ in Quashie , in a passage cited above another will be "contracts of employment" or
at [88], stated that in applying the test in "contracts of service," to use the statutory
Ready Mixed Concrete , the court or tribunal definitions in section 153(1) of the Act which
25 is required to examine and assess all the derive from "employment" and "employee" in
relevant factors which make up the 65 section 54(1) and which Stephenson L.J. has
employment relationship in order to set out in his judgment. Other such contracts
determine the " nature" of the contract. will be contracts "for services" or to be
Langstaff J in Cotswold stated, at [54], that " classified still more succinctly in some other
30 Regard must be had to the nature of the obligations way. Illustrations of this process of
mutually entered into to determine whether a contract 70 classification were given by MacKenna J. in
formed by the exchange of those obligations is one of Ready Mixed Concrete (South East) Ltd. v.
employment or should be categorised differently ." Mr Minister of Pensions and National Insurance
Galbraith-Marten also drew our attention to [1968] 2 Q.B. 497 , 515 et seq. We were also
35 the following passages in the judgment of referred to the decision of Webster J. in
Kerr LJ in Nethermere (St Neots) Ltd v 75 WHPT Housing Association Ltd. v. Secretary
Gardiner [1984] ICR 612 at 628E to 629B of State for Social Services [1981] I.C.R. 737 ,
748, in this connection, but I do not find

much assistance in the differentiation between judgment, there was no such misdirection, and
cases where the employee provides himself to 40 Mr Reade's challenge does not get near to
serve and where he provides his services for establishing that the Tribunal reached such a
the use of the employer. conclusion.
5 However, at this second stage of classification, That is sufficient to dismiss Ground 1 of the
the correct analysis of the contractual appeal. For completeness, however, we deal
relationship between the parties does involve 45 briefly with some of the other points made by
questions of fact and degree : see Simmons v. Mr Reade in support of this ground:
Heath Laundry Co. [1910] 1 K.B. 543 (Court
10 of Appeal) and Smith v. General Motor Cab
a. It is submitted that the Tribunal
Co. Ltd. [1911] A.C. 188 (House of Lords) . erred in failing to consider that it was merely
But all these cases must necessarily have necessary for the employer to provide or pay
proceeded on the basis that the requirement 50 for work, and that it was not necessary for
of the first stage — the existence of some such work to be directed to the employer as it
15 contract binding as a matter of law — had
could be for the benefit of or direction of
been established." (Emphasis added). another. We do not see any merit in this
submission, which was not pursued in oral
55 submissions. The Tribunal did not decide the
matter on the basis that the Claimant's
As all of these passages make clear, the task training benefitted a third party, but rather
for the Tribunal, having determined that there that, principally, it benefitted the Claimant.
20 is a contract, is to consider all the relevant
factors in order to determine whether the b. It is said that the Tribunal failed to
contract should be classified or categorised as 60 consider the Claimant's other obligations
one of employment. That involves, as Mr under the Agreement and instead focussed
Galbraith-Marten submitted, an evaluative entirely on the obligation to train in
25 judgment on the part of the Tribunal. Mr accordance with the IRP. It is not correct that
Reade's submission effectively amounts to a the Tribunal failed to consider the Claimant's
contention that the Tribunal got that 65 other obligations. The analysis at [101] to
evaluative judgment wrong, that it should [127] of the Judgment, for example, makes
have treated the Claimant's training (amongst that abundantly clear. The challenge here is
30 other matters) as work, and that it should really directed to the weight attached by the
have classified this as a contract of Tribunal to training. However, the weight to
employment. However, that is insufficient to 70 be attached to a particular factor is a matter
demonstrate that the Tribunal erred in law. for the Tribunal, and it can hardly be said to
The EAT can only interfere with such be perverse to focus on what the Tribunal
35 evaluative judgments of the Tribunal if there found to be the Claimant's "primary
is some clear misdirection or if the conclusion responsibility", namely to comply with the
reached is one that no reasonable tribunal 75 IRP: see [142].
properly directed could have reached. In our

c. It is submitted that the Tribunal personal performance of some service for the
failed to take proper account of the fact that 40 Respondent.
both parties had the common goal of winning
medals for the British Team. Insofar as
5 "failing to take proper account" equates to As to remuneration, Mr Reade submitted that,
saying that this issue was not given enough whilst the Tribunal acknowledged that
weight, we make the same point as above. In payment could be in kind, it erred in failing to
any case, it will be rare for a contract to be 45 conclude that the valuable benefits provided
entirely one-sided in terms of the value to be to the Claimant could amount to
10 derived from it, and the mere fact that there is remuneration. That error is said to stem from
a common or shared goal does not mean that the Tribunal's earlier failure to accept that the
the contract must be one of employment. Agreement was one under which the Claimant
d. It is said that the Tribunal erred in 50 provided work. Mr Galbraith-Marten submits
treating the fact that the Claimant benefited that the Tribunal's finding that the Agreement
15 under the arrangement as being decisive
was a contract for the provision of services by
against employee status. In our view, the the Respondent to the Claimant, and not the
Tribunal's analysis and approach was not as other way around, 'feels right', and that it
simplistic as that. The conclusion it reached 55 would be unnatural to view the efforts made
was based on an overall judgment based on a by the Respondent's staff to help the Claimant
20 number of factors including the benefit that the
succeed as the 'pay' she receives for training
Claimant derived from the relationship. Whilst hard and/or competing.
the latter was considered by the Tribunal to be We agree with Mr Galbraith-Marten's
important, it was not determinative on its own 60 submissions. The benefits which the Claimant
and nor was that fact alone treated as received were indeed valuable, but they were
25 rendering the relationship as being provided to the Claimant in order to enable
incompatible with the provision of work or her to train and compete at the highest levels;
with employee status. they were not the Claimant's remuneration for
e. It is submitted that work is 65 doing so. As Mr Galbraith-Marten put it, to
provided by the Respondent in that it selected conclude otherwise would be akin to saying
30 the cyclists who would participate in that the tools given to a person to enable
competitions. It is not clear to us why them to do the job were that person's pay for
selecting the Claimant for competition should doing it. We accept that there may be
be regarded as the provision by the 70 instances where the tools of the trade can be
Respondent of "work" any more than the their own reward; where for example, the
35 requirement that she complies with the IRP; tools have an intrinsic value and the parties
both activities come up against the same agree that the employee can earn the right to
hurdle which is the Tribunal's permissible keep the tools once the job is done. In this
conclusion that they did not amount to the 75 case, however, the services provided by the
Respondent were not ones that would have

any value for the Claimant after the service is inconsistent with a finding that these
Agreement ends. 40 benefits amount to remuneration."
Mr Reade further submits that the Tribunal

placed unjustified restrictions on what can
5 amount to remuneration for these purposes. Mr Reade submits that the fact that an
The findings which are challenged are at [170] employee can choose not to accept a benefit
to [172] of the Judgment: does not mean that there was no
45 remuneration. He gave the example of an
"170. Likewise, I accept the evidence of Mr employee remunerated in stock options which
Dyer whom I found to be a clear, are never exercised. Mr Reade further submits
10 conscientious and careful witness. I rely on his that the fact that the amount of benefits was
evidence to find that the services provided in the Respondent's discretion does not
under the contract are services not 50 detract from the fact that this was still
remuneration. He explained that one of the remuneration in kind which the Respondent
types of support available to athletes under was required to provide.
15 the elite Podium Programme was
psychological support, but some athletes It seems to us that the Tribunal, at [165] to
chose never to avail themselves of that [174], was considering the various services
support. That is suggestive of a service which 55 provided and weighing each one up in order
is open to the athlete to use or not, rather to form an overall picture of whether these
20 than remuneration.
amounted to remuneration. None of the
factors was treated as determinative; thus, the
171. Clause 5.1.5 states "the services are option not to take up certain benefits was said
"general services benefits and other support" 60 to be "suggestive" of a service open to the
and they are "designed to support you in athlete to use or not, rather than
delivering your individual rider plan." This remuneration, and the inherent discretion in
25 language suggests the reality I have found-the relation to the benefits was said to be
services are available to support the claimant "inconsistent" with a finding that they
in her training. They are not remuneration 65 amounted to remuneration. The Tribunal was
awarded in exchange for work or skill entitled to engage in that evaluative exercise
performed. and reach an overall conclusion. Moreover,
the conclusions reached in respect of the
30 172. Furthermore the provision of the particular benefits highlighted by Mr Reade
benefits is not automatic: Clause 5.1.5 states; 70 were ones that were open to the Tribunal. It
"The level or amount by which you are cannot be said to be obviously wrong to
entitled to enjoy any of the services benefits conclude that an option to take up a benefit
and other support is decided upon your or not, points away from this being
35 individual circumstances and is at the remuneration, even in kind. A person who
discretion of the programme". An inherent 75 decides not to exercise his stock options still
discretion on the part of British Cycling in has the benefit of those options, which may
allowing enjoyment of a particular benefit or
have some intrinsic value even in their rely on my finding that the dominant purpose
unexercised state. By contrast, a service such 40 of the Athlete Agreement was the joint
as coaching, if it is not taken up by the "ultimate goal of everyone involved in the
Claimant, has no value for her at all. It is Podium Programme to win medals for the
5 unsurprising in our view that the Tribunal British Team at internal competitions". To
regarded this as "suggestive" of a service being assist the claimant to fulfil this goal British
offered to the athlete rather than remuneration 45 Cycling provided services, facilities and
(in kind) which the Respondent was obliged benefits.
to provide. Similarly, it would, as Mr Reade
10 accepted, be highly unusual for the obligation 257. At this stage it is worth repeating that the
to pay to be comprised entirely of analogy of education is most helpful in this
discretionary benefits (as was the case here, at case. As was submitted by counsel for both
least as to the level or amount of those 50 respondents, the relationship between the
benefits) rather than there being a proportion claimant and the first respondent is much
15 or element of remuneration that is more akin to the relationship between an
discretionary. Once again, we cannot say that Institute of Higher Education such as a
the Tribunal was obviously wrong to conclude University where education including
that a situation where every benefit is subject 55 teaching, lecturing and other services, is
to some discretion appears inconsistent with provided to the student. Funding is nowadays
20 an obligation to pay. provided by a loan but historically was
provided by a grant. The funding provided to
For these reasons, we find that the Tribunal the claimant is analogous to a grant. I rely on
did not err in reaching the conclusion that the 60 the evidence of Ms Nicholl in that regard. I
Claimant was not an employee. rely on the finding in Daley v Allied Suppliers
that the relationship is not one of
The relevance of "dominant purpose" employment where the purpose is training is
25 Before leaving this ground, we should say a for the benefit of the trainee. The claimant
few words about the "dominant purpose" test, 65 wanted to be the best athlete she could
about which there was much argument before possibly be and the dominant purpose of this
us, even though the Tribunal's use of that test contract to enable her to do so."
in this case was not a specific ground of
30 appeal. The Tribunal referred to this at [256]
and [257] as follows: These references to the dominant purpose
70 appear under that part of the Tribunal's
"256. The claimant was a talented athlete who Judgment dealing with the Equality Act 2010 .
agreed that her goal, like the goal of everyone As we have said above, that part of the
involved in the Podium Programme, was to Judgment is not the subject of this appeal.
35 win medals for the British Team, in However, it does appear that the purpose of
international competition. To that end she 75 the contract was a feature of the Tribunal's
agreed to develop a dedicated performance analysis in relation to its assessment of the
plan incorporating her individual training. I
limb (b) worker question: see [245] of the 40 expressed by Mr. Scott in the appeal tribunal.
Judgment. Mr Galbraith-Marten submits that In my judgment, what is contemplated by the
it was appropriate to consider the purpose or legislature in this extended definition is a
dominant purpose of the Agreement as that contract the dominant purpose of which is the
5 was one means of identifying the essential execution of personal work or labour, and I
nature of the contract and whether it was one 45 would allow the appeal on this ground, for
of service or not (or whether it gave rise to quite clearly here the dominant purpose was
limb (b) worker status or not). Mr Reade simply the regular and efficient distribution of
responds that there is a danger in using the newspapers."
10 dominant purpose test in the context of
assessing whether the relationship falls within
s.230 of the 1996 Act , as the test was 50 Thus, it was not sufficient to fall within the
specifically formulated to address whether a terms of the definition for personal service to
person was undertaking personally to do any comprise only a small proportion of the
15 work or labour within the meaning of overall purpose of the contract, in this case,
discrimination legislation as opposed to being the regular and efficient distribution of
in business on their own account. We were 55 newspapers. Elias J (as he then was)
referred to Mirror Newspapers Ltd v Gunning considered the test in James v Redcats
[1986] ICR 145 , where the Court of Appeal (Brands) Ltd [2007] ICR 1006 . There, the
20 considered whether a person engaged in a court was considering whether a parcel
newspaper distribution service was employed courier was a worker within the meaning of
under a " contract personally to execute any work or 60 s.54(3) of the National Minimum Wage Act
labour " within the meaning of s.82(1) the Sex 1998 , or was in business on her own account,
Discrimination Act 1975 . A question arose as even if in a small way. After setting out the
25 to whether the word "any" in that definition, definition of "employment" in the then
meant "any amount" as well as "any kind" of discrimination legislation, Elias J said as
work or labour. After setting out the 65 follows at [53]:
arguments, Oliver LJ concluded as follows at
150H to 151B "On the face of it this might appear to be
wider than the definition of "worker" since
30 "The arguments are closely balanced and there is no exclusion for those operating a
indeed, on analysis, are probably not for business undertaking and contracting with a
practical purposes widely different in their 70 customer. However, the Courts have
results, since, as already mentioned, Mr. Beloff effectively applied such an exclusion by
does not contend that any obligation, however another route. They have not treated the
35 minimal, is sufficient to constitute a personal provision of any services as being
"contract" of the kind in question. On sufficient to engage the legislation, however
balance, however, for my part I am persuaded 75 insignificant that may be under the contract.
that the more natural and logical meaning is Rather they have asked whether the
that contended for by Mr. Irvine and "dominant purpose" of the contract is the

provision of personal services or whether that discrimination statutes. A critical question is

is an ancillary or incidental feature. It is only if whether the definition of worker in the
it is the dominant purpose that the definition National Minimum Wage Act and the other
is engaged." 40 more recent statutes can be similarly analysed.
Certain decisions of the EAT have assumed
5 that it can: see Bamford v Persimmon Homes
Elias J continued at [59]: NW Ltd UKEAT/006/06 (HH Judge Peter
Clark presiding), and Green v St Nicholas
"… the dominant purpose test is really an 45 Parochial Church Council UKEAT/0904/04
attempt to identify the essential nature of the (Rimer J presiding). I agree with them.
contract. Is it in essence to be located in the Although the wording of the two provisions is
10 field of dependent work relationships, or is it different, in each case the crucial feature is an
in essence a contract between two undertaking personally to perform work.
independent business undertakings? The test
does not assist in determining whether a 50 62. The older discrimination statutes talk of
contract is a contract of service or of services; personally executing any work or labour
15 it does not, in other words, help in whilst the more recent provisions talk of
discriminating between cases falling within undertaking personally to perform work or
limbs (a) and (b) of the definition of worker. services. It is possible that the concept of
Its purpose is to distinguish between the 55 services is wider than the concept of labour,
concept of worker and the independent and to that extent the more recent definitions
20 contractor who is in business on his own may be broader. But I do not think that this
account, even if only in a small way." has any bearing on the application of the
dominant purpose test. Mr Rose argued that it
60 was a potentially applicable test, and I agree.
Mr Galbraith-Marten submits that in setting 63. I recognise that the definition of

out the scope of the dominant purpose test in "employment" in the discrimination statutes
25 the way that he did, Elias J was not limiting it do not have the exception for those in
merely to distinguishing between those who business found in the recent definition of
are workers and those in business on their 65 "worker". I do not, however, consider this
own account. There is no reason that the test very significant. In practice the application of
cannot be used to distinguish between the dominant purpose test in the
30 contracts which are in the world of work discrimination statutes has the effect of
(whether as an employee or a worker) or not. excluding from their scope those found to be
There is some support for that proposition in 70 in business on their own account, as the
the subsequent passages of Elias J's judgment Gunning case shows. I am inclined to think
at paras 61 to 68. that even had the exception not been present
in the definition of "worker", the Courts
35 "61. As I have said, these cases concerned the
would have applied a dominant purpose test
definition of employment in various
75 when analysing that definition in a similar

way, given both the similarity in the wording example, the dominant feature of the contract
of the provisions and the fact that the 40 is a particular outcome or objective and the
objective in each case is to, to put it loosely, to obligation to provide personal service is an
determine whether the contract should be incidental or secondary consideration, it will
5 located in the world of work or not . lie in the business field.
64. But even if that is wrong, the existence of 68. This is not to suggest that a Tribunal will
the exception for those in business on their 45 be in error in failing specifically to apply the
own account demands that the courts must "dominant purpose" or indeed any other test.
differentiate between workers and those in The appropriate classification will in every
10 business, and that inevitably requires case depend upon a careful analysis of all the
consideration of whether the contract, elements of the relationship, as Mr Recorder
properly analysed, is predominantly of the 50 Underhill pointed out in Byrne. It is a fact
former or the latter kind. So a similar test to sensitive issue, and there is no shortcut to a
identify the dominant characteristic of the considered assessment of all relevant factors.
15 contract applies. However, in some cases the application of the
"dominant purpose" test may help tribunals to
65. I would add that the description of the test 55 decide which side of the boundary a particular
as one of identifying the dominant purpose is case lies." (Emphasis added).
perhaps not an altogether happy one. As
Maurice Kay LJ observed in Mingeley, "it has
20 its difficulties because the search for the
dominant purpose can be elusive and does not We are inclined to agree with Mr Galbraith-
always result in clear and incontrovertible Marten that the highlighted passages of Elias
conclusions." (para 15). 60 J's judgment might be seen as lending some
support to his submission that the dominant
66. The problem, I suspect, lies in the word purpose test is not limited to distinguishing
25 "purpose" which can mean both immediate between a person who is working and one
and longer term objectives. If I employ bus who is business on her own account. These
drivers who are employees, it may still be said 65 include the references to determining whether
that my purpose is to run an efficient bus the contract should be located " in the world of
service rather than personally to employ the work or not ", and whether the contract lies " in
30 drivers. By "dominant purpose" in this the employment field " or not. Not all contracts
context the courts are focusing on the which fall outside the world of work must
immediate purpose of the contract. 70 necessarily be in the field of being in business
on one's own account; they could, for
67. An alternative way of putting it may be to example, lie in the world of education and/or
say that the courts are seeking to discover training. True it is that Elias J expressly stated
35 whether the obligation for personal service is that the dominant purpose test does not assist
the dominant feature of the contractual 75 in distinguishing between cases falling within
arrangement or not. If it is, then the contract limbs (a) and (b) of the definition of worker.
lies in the employment field; if it is not - if, for
However, that does not preclude it from 40 sanction any approach that treated that
being used to identify whether the case falls question as determinative of the issue on its
outside of both limbs (a) and (b). own. As Elias J stated, at paragraph 68 of
James v Redcats , the " appropriate classification
However, even if we are wrong about the will in every case depend upon a careful analysis of the
5 effect of Elias J's judgment, we do not see any 45 all the elements of the relationship, and there is no
reason why the dominant purpose test cannot shortcut to a considered assessment of all relevant
be used more broadly. Although the dominant factors.. ." Furthermore, caution must be
purpose test was developed specifically with exercised in identifying the purpose of the
the distinction between a worker and a person contract, as the example given by Elias J in
10 in business on her own account in mind, the 50 James v Redcats at [66] makes clear:
identification of the main or principal purpose
of the contract has also been a relevant part of "66 The problem, I suspect, lies in the word
the task of determining whether a contract is "purpose" which can mean both immediate
one of service or not since the days of Ready and longer term objectives. If I employ bus
15 Mixed Concrete . Under the third limb of the drivers who are employees, it may still be said
Ready Mixed Concrete test, one must 55 that my purpose is to run an efficient bus
consider whether other aspects of the service rather than personally to employ the
relationship are inconsistent with its being a drivers. By "dominant purpose" in this
contract of service. MacKenna J went on to context the courts are focusing on the
20 give examples to illustrate its operation: see immediate purpose of the contract."
[49] above. Two of those were considered not
to be contracts of service, notwithstanding the 60
fact there was some element of personal Conclusion on Ground 1
service, because the purpose of the contract
25 was something else, e.g. to produce something For all of these reasons, we consider that
for a price, or the carriage of goods. In other Ground 1 of the appeal fails.
words, the main purpose of the contract was
Ground 2 – Was the Claimant a limb (b) worker?
something other than personal service for the
other party. 65 Mr Reade made two brief points under this
ground: the first was that the Tribunal erred in
30 We do not consider that it would be an error
concluding that mutuality of obligation was a
of law for a tribunal to consider the dominant
requirement for limb (b) workers; and the
purpose of a contract in determining whether
second was that, once it is accepted that there
it is a contract of service or not (or whether it
70 is no such requirement under limb (b), the
gave rise to limb (b) worker status or not). If
only possible conclusion is that the
35 the dominant purpose is not personal service
Agreement was a contract whereby the
for the other party then that may be a factor
Claimant undertook to do or perform
pointing away from the relationship being one
personally any work or services for the
that lies in the world of employment or work.
75 Respondent. Even if training and competing
However, in saying that we would not

for medals is not "work", there can, he 40 that that was a permissible finding: see [51]
submits, be no doubt that it amounted to the and [52] above. Insofar as the Tribunal had
personal performance of services. regard to the purpose of the contract in
reaching its conclusion as to limb (b) worker
Mr Galbraith-Marten submits that, status, that too would not give rise to any
5 irrespective of whether mutuality of obligation 45 error for the reasons set out at [66] above. In
is a requirement for limb (b) workers, the those circumstances, it seems to us that this
Tribunal did not err because it also decided ground of appeal cannot succeed either.
the issue on the alternative basis that it was
not. In any case, the Tribunal was entitled to Ground 3 – Irrational Conclusions
10 consider the same sorts of factors in assessing
whether the claimant was a limb (b) worker as Mr Reade relied upon three aspects of the
50 Tribunal's judgment as being irrational. The
it did in considering whether she was an
employee. Its conclusion, based on those first is its reliance upon the Claimant's
factors, that she was neither cannot be said to inability to negotiate terms of employment as
15 amount to an error of law.
being inconsistent with there being a contract
of employment. Mr Reade submits that this is
There was little developed argument before 55 a feature of many employment relationships
us on whether mutuality of obligation is a given the inherent inequality of bargaining
requirement for a limb (b) worker. That is not power, and that, if anything, it points toward,
surprising as the Tribunal decided the limb (b) rather than away from employee status.
20 worker issue both on the basis that it was a
requirement and on the basis that it was not. We agree with Mr Reade that the Tribunal's
In the circumstances, this is not the case in 60 conclusion in this regard does appear
which to attempt to give any definitive answer surprising. The usual starting assumption (and
to the question whether mutuality of it can be no more than that) is that employees
25 obligation, as that phrase has been applied in are often in a weaker bargaining position than
the caselaw relating to employees, applies also the employer, and therefore unable to exert
to limb (b) workers, save to say that it must at 65 any influence on what the terms of
least apply in the sense of the minimum engagement should be. In the present case,
required to give rise to a contract. The real that starting assumption is probably incorrect,
30 issue here is whether the Tribunal erred in its given the Tribunal's finding that, " the
alternative conclusion that the Claimant was opportunity to obtain advice on the agreement whether
not party to a contract whereby she undertook 70 from her parents or an agent so the claimant was clear
to do or perform personally any work or about its terms ameliorates the inequality of
services for the Respondent. The Tribunal bargaining power…" : para [203]). In that
35 relied on its earlier findings as to employee context, where the Claimant was
status in coming to that conclusion and also professionally represented and in a position at
its findings that the Agreement was " a contract 75 least to attempt to negotiate terms (albeit
where services are provided to the claimant, not the unsuccessfully), the conclusion that the
other way round ". We have already concluded Claimant's position was not consistent with

employee status may be seen as less said to be obviously wrong and is certainly not
surprising, and certainly not wholly irrational. 40 irrational.
However, even if the Tribunal was incorrect The final point made by Mr Reade is that the
in this regard, the inability to negotiate terms Tribunal was wrong to find at [221] of the
5 was but one factor out of many that it took Judgment that the requirement under Clause
into account and was far from being 2.2.5 of the Agreement for the Claimant to be
determinative. That factor was not so 45 responsible for her own financial and tax
significant as to distort the overall picture affairs was inconsistent with employee status.
which the Tribunal formed having regard to This finding must be seen in context. It was
10 all the relevant factors. As such, even though one of a series of findings at [220] to [223]
Mr Reade may be right that the Tribunal was and [225] as to the Claimant's financial
wrong on this point, it does not materially 50 arrangements and tax status. The Tribunal
advance his case. noted, amongst other matters, that the
Claimant was not treated as an employee for
The second finding said by Mr Reade to be PAYE tax purposes, that the benefits she
15 irrational is that the requirement for the
received from the Respondent were not
Claimant to be a member of the Respondent 55 regarded by HMRC as taxable remuneration,
was seen as pointing away from employee and that she had established her own
status. Mr Reade submits that it is not company of which she was an employee. In
uncommon for an individual to be a member those circumstances, it was far from irrational
20 and employee of the same organisation (e.g. a for the Tribunal to consider the contractual
Trade Union) and that the Tribunal ought to 60 provision as to responsibility for tax and
have regarded this as at most a neutral factor financial affairs as being inconsistent with
rather than one weighing against the Claimant. employee status. In any event, as with the
Once again, this seems to us to be a very other points relied upon by Mr Reade under
25 minor point relied upon by the Tribunal in its this ground, it was not determinative and
overall assessment of the relationship. Thus, 65 merely one factor out of many that the
even if it could be said to be wrong, it would Tribunal was clearly entitled to take into
not undermine the Tribunal's overall account.
conclusion. Furthermore, as Mr Galbraith- For these reasons, Ground 3 fails.
30 Marten points out, membership of an
organisation is not synonymous with Conclusion
employment by it, and, in some cases, as
where a Trade Union employs a person to 70
represent its members' interests, there could For the reasons set out above, it is our
35 even be a conflict of interest if that person is judgment that none of the grounds of appeal
also a member. In our view, the Tribunal's succeeds and the appeal is dismissed.
conclusion that compulsory membership
pointed away from employee status cannot be

We would like to express our gratitude to ARBITRAL AWARD

both Counsel and their legal teams for their
helpful submissions, which had to be delivered by the
delivered via an internet-based video link in 30 COURT OF ARBITRATION FOR
5 the EAT's first fully remote hearing SPORT in the arbitration between
conducted with Lay Members. International Surfing Association (ISA), La
Jolla, California, U.S.A.
and
35 International Canoe Federation (ICF),

Lausanne, Switzerland
10
I. PARTIES
1. The International Surfing Association

(“ISA” or the “Claimant”), is the
40 internationalsports federation governing
surfing, recognized as such by the
International OlympicCommittee (the
“IOC”). It is an American non-profit public
15 benefit corporation with itsheadquarters in La
45 Jolla (California, USA).
2. The International Canoe Federation (“ICF”

or the “Respondent”), is the
internationalsports federation governing
canoeing, recognized as such by the IOC. It is
50 an associationincorporated under Swiss law
with its headquarters in Lausanne
20
(Switzerland)(individually, ISA and ICF shall
be referred to as “Party” and collectively as
“Parties”).
55 3. Both the ISA and the ICF are members of

the following Swiss non-profit associations:
(i) Global Association of International Sports

Federations (the “GAISF”), which is
25
composed of autonomous and independent
60 international sports federations, and

(ii) theAssociation of Summer Olympic surfing modality since 2008 (2008 ISA Guide).
International Federations (the “ASOIF”), Likewise, in accordance with its
whosemembers are international federations 40 Statutes, the ICF is a multi-sport organisation
governing sports included in the Olympic focused on all canoeing and paddlingactivities
5 Gamesprogramme. that “embraces every activity in which a paddler is
facing the direction oftravel with a single or double
II. FACTUAL BACKGROUND bladed paddle”.
4. A summary of the most relevant facts and
the background giving rise to the present 45 6. Currently, SUP is one of the fastest growing
dispute will be developed below based on the sports in the world. It has several
10 Parties’ written submissions, the evidencefiled submodalities and it can be practised in
with these submissions, and the statements different bodies of water (ocean, open water,
made by the Parties and the evidencetaken at rivers,lakes, flatwater, etc.). However, in
the hearing held in the present case. 50 general terms, it can be defined as a water
sport inwhich an athlete stands on a board
Additional facts and allegations found inthe and uses a paddle to direct and propel him or
15 Parties’ written submissions and the evidence
herselfthrough the water.
adduced may be set out, whererelevant, in
connection with the legal discussion that (B) SUP events and competitions within
follows. The Panel refers in itsAward only to 55 the years 2008-2019
the submissions and evidence it considers
20 necessary to explain its
7. In 2008, the ISA included SUP in its official
ISA Guide as one of the surfing
reasoning. The Panel, however, has disciplinesmanaged by the ISA. In this Guide,
considered all the factual allegations, legal the ISA defined SUP in the following terms:
arguments and evidence submitted by the
Parties and deemed admissible in the present 60 “Ridersstand on the board to paddle out through the
25 proceedings.
break using a single blade paddle, thencatch and surf
(A) Introduction their wave to shore, again using the paddle as a point
of additionalleverage when turning and as a point of
5. The present dispute relates to the stability when nose riding”.
governance of Stand-Up Paddleboard
(“SUP”), a sportdiscipline that both the ISA 65 8. In January 2009, the ISA issued its first
30 and the ICF consider to fall within their technical rules for SUP activities, which
respective fields ofcompetence. In line with wereincluded in the “Rule Book” for the ISA
this, in its Constitution, the ISA includes 2009 World Junior Surfing Championship,
within its objectives held from 28 March to 5 April 2009 in
70 Ecuador.
“To govern and regulate Surfing and SUP in the
35 Olympic Games and other 9. From 20 to 25 February 2012, the ISA
international, continental and regional multi-sports organized the 2012 ISA World Stand Up
events”, and recognizes it as a Paddleand Paddleboard Championship in

Peru, which was the first SUP competition at programme for the 2017 Central American
aworldwide level. Since then, the ISA has Gamesheld in Nicaragua, alongside surfing.
organized one annual “World
Championship”taking place in Peru (2013), 16. Also in 2017, the ISA entered into a
5 Nicaragua (2014), Mexico (2015), Fiji (2016), 40 partnership with the Association of
Denmark(2017), China (2018) and El Salvador PaddlesurfProfessionals (“APP”), which is the
(2019). official professional world tour for the sport
of SUP.
10. SUP surf and SUP racing were included in
the Bolivarian Beach Games of 2012 17. On 16 March 2017, the ICF’s SUP Canoe
45 Racing Competition Rules entered into
10 (Lima)and 2014 (Huanchaco), with the
national Olympic teams selected by the ISA force,with the aim “to provide the rules that
NationalFederations. govern the way of running ICF SUP
CanoeRacing competitions”.
11. In 2013, SUP was included in the
Bolivarian Games (Trujillo), with the 18. On 30 July 2018, the Portuguese Sports
15 participatingathletes selected by the ISA 50 Arbitration Tribunal (the so-called Tribunal
National Federations (a regional multi-sport Arbitral do Desporto –“TAD”-), rendered a
event held inhonor of Simon Bolivar, and decision by means of which it ruled, inter
organized by the Bolivarian Sports alia, that the ICF could not involve the
Organization, open toathletes from Bolivia, Portuguese Canoe Federation (Fedaraçao
20 Colombia, Ecuador, Panama, Peru, and
55 Portuguesa de Canoagem) in the organization of
Venezuela (Chile wasincluded from 2010). the ICF Stand Up Paddling World
Championship, which the ICF planned to
12. In August 2015, the ISA presented both organize from 30 August to 2 September
surfing and SUP to the Tokyo 2020 2018,
OrganizingCommittee for inclusion in the 60 because under Portuguese law, SUP was
25 Olympic Sports Programme. Finally surfing, governed exclusively by the Portuguese Surf
but notSUP, was included in the Tokyo 2020 Federation (Federaçao Portuguesa de Surf)
Olympic Sports Programme. and the organization of SUP events in
Portugal was the responsibility of the
13. On 28 May 2016, the well-known SUP 65 Portuguese Surf Federation.
race named “The Lost Mills”, which was
30 heldin Bavaria (Germany), became the first 19. On 14 March 2019, the ICF announced
SUP race to be recognized by the ICF. that from 24 to 27 of October 2019, it would
organize the first ICF Stand Up Paddling
14. On 1 January 2017, the ICF’s Canoe World Championships in Qingdao (China).
Sprint Competition Rules entered into force, 70 The World Championships have taken place
whichfor the first time included SUP as announced.
35 categories (SUP Men and SUP Women).
15. In 2017, SUP was included in the 20. In the summer of 2019, the Pan American
Sports Organization (“PASO”) organized

theXVIII Pan American Games, which fairness, as enshrined in the Olympic

included SUP as one of the sport 40 Charter, and the mission and the role played by both
disciplinesofsurfing. ISA and ICF, in the past, in
connection with the sport of SUP.[…]
....... 204.In other words and in summary, the
5 VIII. MERITS Claimant is ultimately requesting the Panel to:
(i) The relief sought by the Parties 45 1. declare that, of the two Parties, the ISA
203.In the present arbitration the Claimant is shall be the International Federation to
requesting CAS to: govern and administer SUP at world level;
(i) Determine that the discipline of Stand Up Paddle 2. declare that, of the two Parties, the ISA
10 (“SUP”) shall be governed from this shall be the International Federation to
point forward by ISA, with ISA being the 50 govern and administer SUP at Olympic level.
international non-governmental organization in 205.On the other hand, the Respondent is
the meaning of, among other sets of rules, the Olympic requesting the Panel to:
Charter; therefore ISA shall be (i) dismiss the claim entirely, holding that
15 the International Federation governing, among other “there is no legal basis in Swiss law at
disciplines, SUP at world and 55 this point in time upon which one body is “entitled” to
Olympic level. be the sole governor or organiser of SUP”.
(ii) Determine that of the two Federations, ISA or
ICF, it is ISA that, taking into due (ii) or, subsidiarily:
20 consideration the history and the activities,
involvement, track record, background, - “hold that it is the ICF that is the one organisation
investments, etc. of the two Federations in connection that should be entitled to govern and organize
with SUP, shall govern Stand Up 60 competitive SUP”,
Paddle (“SUP”), a sporting discipline that both Or - hold that:
25 Parties claim to govern, at international
level. In other words, it is ISA that shall in good faith i. “The ISA should be able to govern and organise
be considered the international SUP only where the relevant activity involves the
non-governmental organization in the meaning of the additional incidental use of a paddle on a
Olympic Charter and therefore be 65 surfboard in ocean surf, with that surf remaining the
30 the International Federation governing, among other only (or on any basis the main) means of propulsion
disciplines, SUP at world and and the stance being a surfing stance or posture.”
Olympic level or shall administer, at least, a vast ii. “The ICF should be the one organisation that
majority of SUP disciplines at should be entitled to
international level, including the Olympic Games. 70 govern and organise all other forms of competitive
35 When taking its decision the Panel SUP.”
shall consider the association principles and rules 206.The Panel will decide first whether the
applicable under Swiss law, and in Claimant’s request to govern and administer
particular the principles of Olympism, trust and SUP at the world level should be accepted

and, if not, then determine whether the 40 involvement, track record, expertise,
Claimant is entitled to such governance and background and funds it has invested in this
administration at the Olympic level. In this sport. In addition, the Claimant affirms that
regard, taking into account the Respondent’s this would be the appropriate resolution in
5 submissions, should the Panel consider light of Arts. 60 et seq. of the SCC and the
that exclusive SUP governance can be 45 regulations of the IOC, GAISF and ASOIF.
awarded at the world and/or Olympic level to Furthermore, in its view, such a finding
one International Federation, the Panel will would also result from the application of Art.
assess which of the Parties, if either, is 2 of the SCC and Arts. 2 and 5 of the
10 entitled to such exclusive governance, either UWG. Finally, and despite laying claim to the
the Claimant or the Respondent. 50 governance of the sport, the Claimant
207.Furthermore, the Panel deems it considers that such potential finding does not
necessary to make clear that its mission is not entail any sort of exclusivity over SUP,
to define the concept, modalities, rules or hence allowing the Respondent the freedom
15 technical characteristics of SUP, which is a to organize SUP events and competitions
matter that belongs to the natural 55 in any case. In this regard, the Panel notes that
development of the sport itself, to the at the hearing the Claimant’s counsel
autonomy of the different stakeholders that affirmed that the ISA is not seeking for any
are involved in its practice and development, kind of exclusivity at the world level, but
20 and to any relevant governing body. No only within the framework of the Olympic
matter its enthusiasm for waterborne 60 Movement.
activities, this Panel is not competent (or 209.The Respondent disagrees with the
capable) to issue any such definitions. Claimant and considers that there is no legal
Therefore, for the avoidance of doubt, it basis
25 should be noted that all the references made in the applicable Swiss law or otherwise upon
in the present award to SUP exclusively refer 65 which one putative governor or organiser
to the sporting disciplines that the Claimant can bring proceedings against another to
and the Respondent currently recognize as secure any declaration of legal entitlement to
such in their statutes and regulations. govern or organise alone. In its view, the fact
that there are international multisport
30 (ii) The governance of SUP at the world level 70 organisations that only accept one organising
208.The Claimant maintains that, in body for each separately and precisely
accordance with the so-called principle of defined sport for purposes of their
“One Sport, One Federation”, pursuant to which membership and their multisport
only one International Federation shall govern competitions, does
35 a certain sport at the worldwide level, only
75 not legally entitle one organisation over
one of the Parties can play this role. In the another one to lay claim over that
Claimant’s view, the International Federation membership position. This choice belongs to
governing SUP at the world level must be the relevant international multisport
the Claimant, due to the history, activities, organisation. Hence, in the absence of that

choice being made by the relevant 212.Likewise, the Panel finds that the legal
international multisport organisation, the 40 provisions invoked by the Claimant do not
Respondent considers that there is no legal serve its purpose. On the contrary, Arts. 60 et
basis upon which one International seq. of the SCC, which regulate the rights of
5 Federation can bring proceedings against associations, confer upon associations a large
another International Federation in order to degree of freedom and autonomy, in
be declared legally entitled to govern or 45 accordance with the freedom of association
organise the sport alone. principles enshrined in Art. 23 of the Federal
Constitution of the Swiss Confederation
210.The Panel agrees with the Respondent in providing as follows:
10 this matter, and finds that the arguments and
legal provisions upon which the Claimant 1 Freedom of association is guaranteed.
intends to rely for the adjudication in its
favour of the governance and administration 50 2 Every person has the right to form, join or belong to
of SUP at world level do not provide for an association and to participate in the activities of an
15 such determination. First of all, in the absence association.
of an agreement from the Parties 3 No person may be compelled to join or to belong to
authorizing the Panel to adjudicate the present an association.
dispute ex aequo et bono, the Panel has
no power to decide the case according to what 55 ........
20 it considers fair or good. For this reason,
231.The Panel further notes that, in addition
in this case the Panel cannot take a decision
to these general criteria, Art. 2.2 of the
solely based on “the history and the
Recognition Rules contains a list of evaluation
activities, involvement, track record, background,
criteria to be considered for the
investments, etc. of the twoFederations in connection
60 recognition of an International Federation in
25 with SUP”, as requested by the Claimant.
connection with each discipline or sport.
Instead, any determination in this issue must
The Panel considers that in this case, as it has
be based on Swiss law.
been requested by the Claimant, it must
211.In this regard, the Panel agrees with the evaluate and apply these criteria in order to
Claimant and considers that the “principle of a 65 decide which of the Parties shall govern and
30 single federation per sport is of particular relevance and administer SUP at the Olympic level.
its rooted in the social importance of sport as the best 232.In particular, regarding the relevant
means of safeguarding the interest of sport and the criteria to be considered in accordance with
benefits that it delivers to society”, as recognized by the evidence available, the Panel observes the
the Resolution of the European Parliament of 70 following:
35 2 February 2017 (P8_TA(2017)0012).
(A) GOVERNANCE:
However, the Panel considers that this general
principle is not useful to decide the present On this point, the Recognition Rules value the
matter. existence of a multi-year strategic

planning process. In this matter the Panel and has been certifying SUP coaches and
notes the following:- 40 instructors, as well as for judges and
event officials. Furthermore, since 2012 the
The Claimant ISA has been working together with
From the evidence produced in these the Association of Paddlesurf Professionals
5 proceedings, it appears that since 2008 the (“APP”), which organizes the world
ISA has been playing a role in the promotion, 45 professional tour for the sport of SUP (“APP
development and governance of World Tour). Moreover, in 2017 the
SUP at International level. In particular, in ISA and the APP entered into a partnership
2008 the ISA included SUP as one of its pursuant to which, inter alia, the ISA
10 surfing disciplines. In 2009 the ISA officially sanctions the APP World Tour, and
established the first technical rules for SUP 50 the APP acknowledges the ISA as
(the so-called “Rule Book”), addressed to being the sole world governing body for SUP.
regulate the SUP competitions at the - The Respondent
2009 ISA World Junior Surfing
15 Championship. In addition, since 2012 the In accordance with the minutes produced of
ISA has organized a World Championship on the ICF’s Ordinary Congresses of
an annual basis (i.e. 8 in total, in the 55 2008, 2010, 2012 and 2014, during this period
years 2012, 2013, 2014, 2015, 2016, 2017, the ICF Congress did not deal with
2018 and 2019), that has taken place any issue related with SUP. In this regard, the
20 in different countries and continents (Peru, first mention to SUP in an Ordinary
Nicaragua, Mexico, Fiji, Denmark, ICF Congress is found in the minutes of the
China and El Salvador). In line with this, in 60 XXXVII ICF Ordinary Congress of
2015 the ISA submitted SUP to the Olympic 2018, where SUP was included in section 17
Programme Commission in order to include (“Reports by ICF Commissions”). Furthermore, in
25 such discipline in the Olympic Sports “The strategic business plan for the International
Programme for the Olympic Games of Tokyo Canoe Federation” for the period January 2016
2020. In addition, in these years the ISA has 65 to December 2020, aimed among other
managed to include and organize SUP things to “to achieve a credible growth in the
competitions in several international paddling disciplines under the responsibility of the
30 multisport competitions, like the Bolivarian ICF”, SUP was not included, nor even
Beach Games of 2012, 2013 and mentioned. In line with this, at least until 15
2014, as well as in some other international 70 February 2017 (date of the screenshot of the
competitions organized under the patronage ICF’s webpage submitted to the file), SUP
of the IOC, such as the 2017 Central was not referred in the ICF’s webpage as one
35 American Games or the 2019 Pan of its sport disciplines. The first international
American Games. SUP competition in which the ICF was
75 involved was the “The Lost Mills” race that
In addition, since 2011 the ISA has several was held in Bavaria on 28 May 2016 and
SUP development programs in place, which was ge 75

recognized by the ICF (even though it was 40 multi-year Strategic planning process for the
not organized by it). In addition, after development of SUP.
its unsuccessful attempt to organize it in
Portugal in 2018, the first World (B) HISTORY AND TRADITION
5 Championship organized by the ICF (i.e. the In accordance with the Recognition Rules,
“ICF Stand Up Paddling World this criterion shall be evaluated taking
Championship”) took place in 2019. By 45 into account (i) the date of establishment of
comparison, in accordance with the ICF the International Federation, (ii) the history of
Events Calendar for the period 2015-2019 the World Championship organized by the
10 produced to the file, during this period International Federation at stake (year in
the ICF did not organize or get involved in which it was first held, number of World
any SUP event different to those that 50 Championships, frequency of World
have been already referred to. Furthermore, in Championships, etc.), (iii) number of times
the Statistics that the ICF has that the sport discipline has been included in
15 published with regard to the years 2017 and one of the multi-sports Games selected by the
2018, SUP competitions or events are rules (i.e. World Games, Universiade,
not mentioned. 55 Commonwealth Games, Continental Games,
The first official SUP competition technical All Africa Games, Asian Games, Pan-
rules of the ICF came into force on 1 American Games and Mediterranean Games,
20 January 2017. In line with this, on 16 March SportAccord Multi-Sport Games). Regarding
2017 the ICF’s SUP Canoe Racing these criteria, the Panel observes:
Competition Rules entered into force, with
the aim “to provide the rules that 60 - Of the two Parties, the ICF is the oldest
govern the way of running ICF SUP Canoe Racing International Federation, being founded
25 competitions”. in 1946, while the ISA was founded in 1964.
In addition, although some of its members
- The ISA organizes one World
(i.e. the American Canoe Association
Championship per year. Given that the ICF
and the British Canoeing) give some SUP
65 has only organized one World Championship,
courses, the ICF does not certify SUP
the frequency of this event is unknown.
30 coaches, instructors, judges or officials.
In addition, under questioning from the Panel, - To date, the ISA has organized 8 SUP World
it became clear that the ICF had not Championships (2012-2019), while the ICF
yet allocated a complete budget to the has organized one (2019).
development of the sport and its athletes as
35 of the time of the hearing, instead allocating 70 - In accordance with the evidence made
resources to its first World available to the Panel, SUP has been included
Championships only. As a result of the above, once in one of the multi-sports Games
the Panel considers that, at least until selected by the Recognition Rules (i.e. the
2016/2017, the Respondent did not have a Pan-American Games of 2017). In this event

the ISA acted as the organizer of the SUP Federation in order to increase the popularity
competition. of the sport at stake.
(C) UNIVERSALITY In the present case, the Panel observes that, in

accordance with the “Post-Event Media and
From the different criteria established in this 40 Marketing ROI Report” of the ISA World SUP
5 section of the Recognition Rules, the Panel Championship of 2017, the ISA has taken
notes the following: many steps to increase the popularity of the
- While the ISA has 104 National Federations, sport, broadcasting SUP competitions,
the ICF has 167 National streaming live its World Championship in
Federations. 45 several platforms (webpage, Facebook, etc.),
being active in social media platforms,
10 - In the ISA SUP World Championship of distributing to broadcasters worldwide a
2017, 286 athletes participated from 42 highlight program, being present in national
countries. In the ISA SUP World and local media (TV, Radio, Web, Print),
Championship of 2018, 200 athletes 50 working with media partners (i.e. SUP Racer,
participated from 26 countries. Surfline, The Inertia, Magicseaweed, etc.),
issuing press releases, running event
15 - With regard to the ICF, information
branding, etc.
regarding the ICF Stand Up Paddling
World Championship of 2019 is not available Conversely, the ICF’s Statistics (2018 SDP
to the Panel. Notwithstanding, given that this 55 Statistics, Online Entries and Accreditations,
competition was held after the Parties’ round 2018 Live Streaming Statistics, 2018 Statistics
20 of submissions and the hearing of this During competitions, 2017 Statistics During
arbitration (i.e. it being materially impossible Competitions) do refer to SUP competitions
for the ICF to submit any information in this at all (as they do to other sport disciplines
regard), in order to assure the Parties’ equal 60 governed by the ICF). Therefore, it can
treatment the Panel will assume that the be concluded that, if the ICF has conducted
25 number of participants in the ICF Stand any action of this type, aimed to
Up Paddling World Championship of 2019 is promote and increase the popularity of SUP,
the same as the average of participants of the it did not have the same extent or the
ISA SUP World Championship. 65 same effectiveness as those conducted by the
ISA.
(D) POPULARITY
(E) ATHLETES
30 This section includes a set of criteria (Youth
appeal, Spectators-World Championships, Both Parties give their athletes the possibility
Broadcasting-World Championships, of participating in their commissions,
Broadcasting RightsWorld Championships, 70 technical committees, executive board or
Digital Media, Sponsors) addressed to assess equivalent. In this regard, the Panel observes
35 the steps taken by the International that, contrary to the ISA’s case, where the
world SUP champion, Mr. Casper Steinfath,
holds a position in its Executive Committee, party has done, respectively, on the
being one of its Vice-Presidents, the ICF does 40 promotion, development, popularity,
not have any SUP athletes in its Executive recognition and standardisation of SUP as an
Committee, nor in its Board of Directors. international sport, the Panel has reached the
5 In addition, as it was evidenced during the conclusion that of the two Parties, only the
hearing of the case, while the ISA has active ISA has been truly active in the development,
SUP athletes in its technical committees, none 45 promotion and governance of this sport. In
of the members of the ICF SUP Commission accordance with the evidence produced by
that gave testimony (i.e. Mr. Ramy Zur, Ms. the Parties, the ISA was the first (in 2008)
10 Ernstfried Prade and Mr. Andrej Kraitor) International Federation recognizing SUP as
were SUP athletes. And very telling was the one of the sports disciplines governed by it (as
fact that the ICF Secretary General was 50 one surfing modality), also the first setting
unable to name any of the top SUP athletes in official technical rules for the sport (the Rule
the world for men and women beyond those Book in 2009), the first in organizing
15 who testified at the hearing. international events at federative level and, in
particular, the first World Championship (8
(F) DEVELOPMENT OF THE SPORT 55 annual editions up to date). It also managed
Regarding the existence of SUP development the inclusion of this sport in different
programmes or events for young people, ISA international multisport competitions, being
has a development programme in place called the first International Federation in claiming
20 ISA Scholarship Program, through which it the official governance of this sport modality
awards financial aid to SUP athletes. 60 within the Olympic Movement and, finally,
Regarding the ICF, during his examination as the ISA is the International Federation that
a witness Mr. Andrej Kraitor, member of the officially sanctions the most popular
ICF SUP Commission, explained that he has professional SUP regular competition
25 been on this commission for three years worldwide (i.e. the APP world tour), whose
discussing how to develop SUP. However, 65 organizer, the APP, considers the ISA as
when he was asked by one of the members of being the sole governing body for SUP at
the Panel if the ICF has a budget allocated to international level.
the development of SUP, he just answered 234.In turn, in the Panel’s view, of the two
30 that he did not know. Parties only the ISA would satisfy, if not
233.The Panel thus notes that, in accordance 70 formally at least in fact, the two criteria
with the foregoing, the party that meets the envisaged by Art. 2.1 of the Recognition
greatest number of the criteria established by Rules, of being
the Recognition Rules to be entitled to (i) “the only Federation governing the sport
35 govern and administer SUP at Olympic level,
worldwide” and
is the Claimant. Furthermore, after having
weighed the background of the Parties in SUP 75 (ii) “Have existed in such
and, in particular, the work that each capacity for at least five years”,

because during this long period and until this

dispute arose, the ICF never acted as the
governing body of SUP, or purported to be
so, and in no way for at least five years. Hemant Sharma and others
5 235.In the Panel’s view, it is not only that the
ISA has been the first in organizing and 40 v
governing de facto SUP at the international
All India Chess Federation, through its
level (which is an important fact but not
Secretary, Chennai
sufficient per se to entitle an International
10 Federation to govern a sport within the
Olympic Movement) but also that, in the
Panel’s opinion, the ISA is the only Case No :79 of 2011
International Federation that has shown a real
45 Bench :Devender Kumar Sikri (Chairperson),
and genuine interest in SUP, having made
Sudhir Mital (Member), Augustine Peter
15 great efforts and spending considerable time
(Member), U.C. Nahta (Member), G.P. Mittal
and money in its promotion, development
(Member)
and governance, not only at the professional
level but also in developing it at the grassroots Citation :2018 Indlaw CCI 45
level, giving financial aid to SUP athletes and
20 high level competition opportunities. As a 50 The Order of the Court was as follows :
consequence, the Panel is of the opinion that,
Order under Section 27 of the Competition
by doing so, the Claimant de facto fulfilled the
Act, 2002
criteria required by Art. 2.1 of the Recognition
Rules and the mission and role that the OC A. Background
25 confers to International Federations within
the Olympic Movement. In particular: 1. The present information has been filed
55 under Section 19(1)(a) of the Competition
- “to establish and enforce, in accordance with the Act, 2002 (the 'Act') by Mr. Hemant Sharma
Olympic spirit, the rules concerning the practice of their ('Informant No.1'), Mr. Devendra Bajpai
respective sports and to ensure their application” ('Informant No.2'), Mr. Gurpreet Pal Singh
30 (Rule 26.1.1 OC); ('Informant No.3') and Mr. Karun Duggal
60 ('Informant No.4') (All collectively referred to
- “to ensure the development of their sports throughout
as the 'Informants') against All India Chess
the world” (Rule 26.1.2 OC).
Federation (the 'OP'/'AICF'), alleging, inter-
alia, contravention of the provisions of
Sections 3 and 4 of the Act.
65 2. The information was filed by the

35 Informants pursuant to the directions of the
Hon'ble Delhi High Court in Writ Petition
(Civil) No.5770 of 2011, contesting certain
conduct and practices of AICF. Looking into 5. The Informants submitted that chess
the nature of allegations and the issues players all over the world are given
involved, the Hon'ble Delhi High Court 40 International ELO ratings by FIDE according
disposed of the Writ Petition with the to their playing strength in various
5 direction to file an information before the tournaments, ELO rating is an important
Commission under Section 19 (1)(a) of the benchmark for all chess players. Being the
Act. benchmark, this rating is essential for any
45 professional chess player. It has been alleged
3. AICF is a society registered under the that the ELO rating points of the Informants
Tamil Nadu Societies Registration Act, 1975 were removed by AICF without giving any
10 as the National Sports Federation ('NSF') for
prior notice due to their participation in the
the sport of chess. AICF is also recognised chess tournament sponsored by the Chess
by and affiliated to, Federation Internationale 50 Association of India ("CAI"), which was not
des Echecs ('FIDE'), which is the apex authorised by AICF. In addition to
International body governing the sport of Informants, AICF also removed ratings of
15 chess.
151 chess players on the ground.
4. The Informants are chess players registered 6. According to the Informants, the above
with AICF on an annual basis. The 55 conduct and practices of AICF are in
Informants have contended that the contravention of the provisions of the
registration form, inter-alia, contains a Sections 3 and 4 of the Act.
20 declaration which states that the player will
not participate in any tournament / B. Prima-facie consideration of Commission
championship that is not authorised by AICF.
It has been further contended that such 7. Upon consideration of information, the
registration is necessary if the players want to 60 Commission was of a view that there existed a
25 be selected for National or International prima-facie case of contravention of the
events. The Informants have alleged that if provisions of the Act by AICF. Accordingly,
any player participates in any tournament not the Commission passed an order dated 9th
authorised by AICF, he/she will be banned February, 2012 under Section 26(1) of the Act
for a period of one (1) year from participating 65 directing the Director General ("DG") to
30 in the National Chess Championships and cause an investigation into the matter. After a
other events. Further, such player would have detailed investigation, the DG submitted its
to surrender fifty (50) percent of the prize investigation report on 12th October, 2012.
money to AICF, if any, from such C. Findings of investigation
unauthorised events and tender an
35 unconditional apology along with an 70 8. Findings of the DG are summarised as
undertaking that he/she will not participate in under:
any unauthorised tournament in future.
8.1 AICF is an enterprise: DG found AICF to
be an enterprise under Section 2(h) of the Act,

which defines the term 'enterprise' as a person 8.3 Dominance: Ministry of Youth Affairs and
or Department of Government engaged in 40 Sports ('MYAS') has granted status of NSF to
any of the economic activity specified in the AICF. Further, AICF is the only national level
Section. Reliance was placed upon the chess federation affiliated to FIDE. As a
5 decision of the Hon'ble Delhi High Court in result, AICF happens to be the sole and
Writ Petition (C) No. 5770/2011 (Hemant exclusive authority to govern the game of
Sharma and Others vs. Union of India and 45 chess in India, which includes selection of
Others), to hold AICF to be an enterprise. Indian chess players, conducting national,
AICF admittedly collects a registration fee open and international tournaments in India,
10 from its players on an annual basis. approving the tournaments, placing
Additionally, the charter documents of AICF restrictions on participation of players in
allow it to organise chess tournaments and 50 tournaments not approved by it, etc., thereby
collect charges from the players participating allowing it to enjoy a position of strength to
in such tournaments. AICF also provides act independently of the market forces.
15 technical support for conduct of chess
tournaments. This clearly brings out the fact 8.4 Abuse of Dominance: AICF has
that AICF provides services to the contravened the provisions of Sections
55 4(2)(a)(i), 4(2)(b)(i) and 4(2)(c) of the Act. The
Informants, other chess players and those
who are interested in conducting chess brief details of contravention found are as
20 tournaments/events. All these economic under:
activities fall within the ambit of Section 2(h) (a) Restrictions on participating in
of the Act and thus, AICF has been found to Authorised/Un-authorised
be an enterprise. 60 Tournaments/Championships of AICF: In
8.2 Relevant market: From the demand side, terms of the registration form submitted by
25 chess players cannot shift to any other sports
chess players to AICF, they are required to
body conducting any other sport in give a declaration to the effect that they will
response to a change in the supply conditions not participate in any
of the sport of chess. From the supply side, 65 tournament/championship not authorised by
conducting and governing chess events in it. AICF Rules and Regulations as well as its
30 India constitute a separate and unique service Code of Conduct provide that players
market as the supply of such service cannot participating in unauthorised chess events may
be considered substitutable or interchangeable be subjected to disciplinary action. Based on
with any other sport like hockey, etc. 70 these, they were banned for a period of one
Accordingly, the relevant market has been (1) year due to their participation in a
35 found to be the market for "conducting and tournament organised by CAI, which was not
governing domestic and international chess authorised by AICF. It has also been noticed
activities for both men and women and the that AICF has displayed a caution on its
underlying economic activities in India". 75 website, which is against the tournaments
organised by CAI. In view of the above, it has
been concluded that AICF restricts chess

players and organisations like CAI in (d) Sharing of non-refundable Earnest Money
providing their services for promotion and Deposit (EMD) by AICF: The investigation
development of the sport of chess and 40 has revealed that the practice of collecting
enhancing the talent of players. Such EMD out of grants provided to AICF
5 stipulation limits and/or restricts the services amounts to misutilisation of funds as it
of players and organisations and was found to deprives the organisers to utilise this amount
be in contravention of the provisions of for meeting the expenses of tournaments.
Section 4(2)(b)(i) and Section 4(2)(c) of the 45 This practice of AICF was found to be in
Act. contravention of Section 4(2)(a)(i) of the Act.
10 (b) Making organization of events (e) Sharing of entry fee for various categories:
commercially unviable for competing In terms of the norms of AICF regarding
organizers: The above discussed restrictions National Championships, any chess player can
imposed by AICF, on organizations such as 50 participate in the competition under the
CAI and the players, including the category 'special/donor entry' and there is no
15 Informants, have a deterrent effect whereby restriction on the number of such entries.
chess players would not prefer to participate AICF collects fifty (50) percent of the entry
in chess tournaments being organised by fee in this process, which ranges between
other associations like CAI. AICF thus, 55 Rupees three hundred and fifty (350) to
indulges in practices which result in denial of Rupees one thousand and five hundred (1500)
20 market access. By imposing ban on players for selected entries and Rupees two thousand
like the Informants and removing their (2000) to Rupees ten thousand (10,000) for
ELO/FIDE rating, AICF makes organisation special/donor entries. This practice was found
of chess events difficult for other competitors, 60 to be unfair and in contravention of Section
by not allowing them to get the best resources 4(2)(a)(i) of the Act.
25 and players for organising/participating in
their events. This was found to be in (f) Special/donor entries and non-
contravention of the provisions of Section implementation of provision of the LTDP
4(2)(c) of the Act. regarding merit in the process of selection of
65 probables in National Championships: Upon
(c) Removal of ELO/FIDE rating of players examining the process adopted in Delhi Chess
30 by AICF: ELO ratings being the benchmark Association, Haryana Chess Association,
of standard performance, is the most Gujarat State Chess Association and Tamil
important rating for chess players. AICF Nadu State Chess Association, it has been
imposes unfair or discriminatory conditions 70 found that AICF did not implement
on players by debarring them from its roll and provisions regarding selection of probables as
35 also by removing their ELO rating on their per Long Term Development Plan ('LTDP'),
participation in chess events not approved by which is prepared by respective NSFs as per
it. the code of MYAS issued in 2011. Contrary to
75 the stipulations of LTDP, AICF has been
allowing entries, other than on merit, under

the type special/donor entries and collecting and various clauses in the Constitution and
higher amount of fees from such special 40 Bye Laws of AICF have caused appreciable
entrants. The players of special/donor entries adverse effect on competition in the country
are not having any meritorious background in because they have harmed competition, in
5 various chess events conducted under the terms of various factors enumerated under
umbrella of tournaments organised by AICF. Section 19(3) of the Act, such as creation of
Such practice of allowing entry to a specific 45 entry barriers, driving existing competitors out
privileged class who are able to pay higher of the market and foreclosure of competition.
entry fee was found to be in contravention of These have the effect of limiting and/or
10 Section 4(2)(a)(i) of the Act. controlling supply, market, technical
development and provisions of services, in
(g) Misuse of discretion by the Secretary in 50 contravention of the provisions of Section
nomination of players and non-maintenance 3(3)(b) of the Act. As regards violation of
of proper record and supervision in the Section 3(4), DG found that vertical
selection of players: As per AICF Regulations, relationship does not exist between AICF and
15 its Secretary is vested with the discretion to its players and thus, would not attract the
nominate players for various chess 55 provisions of Section 3(4) of the Act.
tournaments. The Secretary, AICF has been
found to have nominated players for various D. Consideration of Investigation Report by
national chess tournaments without any the Commission
20 justification. Such practice of AICF granting
undue privilege to select players without any 9. The Commission considered the
justification was found to be in contravention Investigation Report submitted by the DG, in
60 its ordinary meeting, held on 08th November,
of Section 4(2)(a)(i) of the Act.
2012 and decided to forward copies of the
(h) Award of certificates and their misuse: same to the parties for filing their objections /
25 NSFs are authorised to issue certificates to suggestions.
chess players. Investigation has revealed that
AICF has delegated the powers of issuing E. Proceedings before the Hon'ble Madras
certificates to organisers as per their format. 65 High Court
AICF neither has any control over 10. Subsequently, AICF filed a Writ Petition,
30 maintaining the uniformity in the contents bearing Writ Petition (C) No. 34039 of 2012,
and proper serial number/certificate numbers before the Hon'ble Madras High Court
nor has any record of the certificates issued or contesting the proceedings before the
their distribution. In view of these, it was 70 Commission. Vide order dated 18th
concluded that AICF's conduct is in December, 2012, the Hon'ble Madras High
35 contravention of Section 4(2)(a)(i) of the Act. Court granted stay against the proceedings
8.5 Violation of Section 3 of the Act: With before the Commission, till further orders.
regards to violation of Section 3 of the Act, it Thereafter, the Hon'ble Madras High Court,
has been concluded by the DG that practices 75 vide another order dated 05th January, 2017,
vacated the stay. Being aggrieved by the order
of the Learned Single Judge of the Hon'ble 40 dated 11th December, 2017 to the parties
Madras High Court, AICF preferred an intra under Section 26(8) of the Act. The major
court appeal before Division Bench of the observations of the Commission in the said
Hon'ble Madras High Court. The Division order are summarised as under:
5 Bench was pleased to order status-quo on
28th March, 2017. However, on hearing the 11.1 While agreeing with the DG on the
parties, on 05th April, 2017, the Division 45 aspect of AICF as an enterprise, the
Bench of the Hon'ble Madras High Court Commission relied on additional material,
vacated its direction to maintain status-quo including excerpts from the website of FIDE
10 and permitted the Commission to proceed and financials of AICF, to infer AICF as an
with hearing in the instant matter. enterprise. Given the nature of allegations and
Accordingly, on 13th April, 2017, the 50 characteristics of the services involved, the
Commission directed the parties to file their Commission defined two relevant markets: (a)
suggestions/objections to the Investigation 'market for organization of professional chess
15 Report and appear for oral hearing on 23rd tournaments/events'; and (b) 'market for
May, 2017. The suggestions/objections to the services of chess players'. It was observed that
Investigation Report were filed by AICF and 55 AICF enjoys dominant position on account of
the Informants on 12th May, 2017 and 23rd the regulatory powers enjoyed by AICF
May, 2017, respectively. The Commission (under the pyramid structure of sports
20 heard the parties on the Investigation Report governance) in the market for organization of
on 23rd May, 2017 and directed AICF to file professional chess tournaments/events in
an Affidavit to clarify certain issues raised 60 India. AICF was also stated to be dominant in
during the hearing along with its Long Term the market for services of chess players due to
Development Plan. Accordingly, AICF filed its regulatory power including its abilities to
25 an Affidavit and its Long Term Development restrict movement by imposing conditions on
Plan on 29th May, 2017. professional players who do not possess any
65 bargaining power.
F. Order dated 11th December, 2017 passed
by the Commission under Section 26(8) of the 11.2 The abusive conduct, as identified by the
Act DG, relating to the process of bidding and
sharing of non-refundable earnest money
30 11. Considering the materials available on deposit by AICF; sharing of entry fee for
record and upon hearing the parties, the 70 various categories; and making organisation of
Commission did not agree with the findings events commercially unviable for competing
of the DG in relation to the relevant market organisers were observed by the Commission
and existence of vertical relationship between to be in the market for organisation of
35 AICF and chess players and decided to professional chess players in India. The
inquire further into the matter about certain 75 conduct relating to special/donor entries and
additional facts that the Commission non-implementation of LTDP with respect to
considered relevant to the present case. merit in the process of selection of probables
Accordingly, the Commission issued an order in National Championships; use of discretion

by the secretary in the nomination of players 40 their counter response by 9th February, 2018.
and non-maintenance of proper record in It was made clear that the findings of
selection of players and award of certificates Investigation Report that were not differed
were observed to fall in the market for with would be read in conjunction with the
5 services of chess players in India. Restrictions observations recorded therein. AICF filed its
on chess players and organisations like CAI 45 reply on 15th February, 2018. The parties
and removal of ELO/FIDE rating of players were heard by the Commission on 21st
by AICF were observed to be relating to both February, 2018. The Commission directed the
the markets. Informants to file their submissions thereon.
AICF was directed to file its rejoinder, if any,
10 11.3 The Commission also observed that
50 with a copy to Informants, latest by 13th
there exists a vertical relationship between March, 2018. Submissions were filed by
AICF and chess players as AICF buys their Informants and AICF on 6th March, 2018
services for organisation of chess events. The and 13th March, 2018, respectively. These
Commission further noted that the would be dealt with in detail, while analysing
15 undertaking prescribed by AICF regarding 55 the matter on merits.
ban on its players to participate in events not
authorised by AICF amounts to exclusive G. Analysis and findings of the Commission
distribution and refusal to deal. Non-
compliance of such undertaking will result in 13. The Commission has perused the
20 banning of the player and removal of their information, the Investigation Report, the
ELO rating, as was done in the case of the suggestions/objections to the Investigation
Informants. These consequences were stated 60 Report filed by the parties, submissions of
to create entry barriers, foreclose competition parties to the order dated 11th December,
and restrict opportunities available for chess 2018 of the Commission and other material
25 players. Since the said conduct was likely to available on record as well as the contentions
have appreciable adverse effect on raised by the parties in the hearing on 21st
65 February, 2018. Upon consideration of the
competition, the Commission was of the view
that the said conduct was in the nature of aforesaid, the following issues arise for
contravention covered under Sections 3(4)(c) determination in the present matter:
30 and 3(4)(d) read with Section 3(1) of the Act. (i) What is/are the relevant market(s)?
12. Based on the above, the OP was directed (ii) Whether AICF enjoys dominant position
to show cause as to why it should not be held 70 in the relevant market(s)?
to be in contravention of Sections 4(2)(a)(i),
4(2)(b)(i) and 4(2)(c) read with Section 4(1) of (iii) If the answer to Issue No. (ii) is in
35 the Act and Sections 3(4)(c) and 3(4)(d) read affirmative, whether AICF has abused its
with Section 3(1) of the Act. The OP was dominant position in the relevant market(s)?
directed to file its response to the show cause
(iv) Whether the declaration, which the
notice of the Commission by 2nd February,
75 players are made to sign by undertaking not to
2018. The Informants were directed to file

play any open tournament, is anti-competitive relating to cooperative societies'. (emphasis

agreement as per the Act and it causes 40 added)
appreciable adverse effect on competition as
per Section 3(4) of the Act read with Section 16. Hence, it may be noted that the definition
5 3(1) of the Act?
of 'enterprise' is wide enough to include
within its purview any economic activity
14. Before dealing with the merits of the case, carried on by any entity. As per this definition,
the Commission would first deal with the 45 an entity which is engaged in any activity
preliminary issue raised by AICF i.e. AICF is relating to production, storage, supply,
not an 'enterprise' within the meaning of distribution, acquisition or control of any
10 Section 2(h) of the Act and therefore, the article or goods, or provision of services is an
provisions of the Act would not apply to it. enterprise. The activity in question merely
50 needs to be an economic activity. An activity
Is AICF an enterprise? can be considered as an economic activity if
15. The Commission notes that Section 2(h) an entity is operating in some market and
of the Act defines the term 'enterprise' as where there are buyers and sellers.
15 under: "enterprise" means a person or a 17. As stated earlier, DG has found that AICF
department of the Government, who or 55 is an enterprise under Section 2(h) of the Act.
which is, or has been, engaged in any activity, The Commission in its order dated 11th
relating to the production, storage, supply, December, 2017, agreed with the DG and
distribution, acquisition or control of articles noted that AICF is an enterprise as defined
20 or goods, or the provision of services, of any under Section 2(h) of the Act as it is engaged
kind, or in investment, or in the business of 60 in organisation of chess tournaments/events
acquiring, holding, underwriting or dealing and also undertakes incidental/related
with shares, debentures or other securities of activities that generate income.
any other body corporate, either directly or
25 through one or more of its units or divisions 18. AICF vehemently objected to the
or subsidiaries, whether such unit or division conclusion of DG as well as observations of
or subsidiary is located at the same place 65 the Commission, in its order dated 11th
where the enterprise is located or at a December, 2017, that AICF is an 'enterprise'
different place or at different places, but does under Section 2(h) of the Act. AICF has
30 not include any activity of the Government claimed that, being a regulator of the game of
relatable to the sovereign functions of the chess, it performs its functions without any
Government including all activities carried on 70 profit motive and is thus not an 'enterprise'
by the departments of the Central under Section 2(h) of the Act. As per AICF,
Government dealing with atomic energy, the sport of chess does not generate interest
35 currency, defence and space. The term of viewers and there is no income earned
'person' in turn has been defined under through sale of tickets, television rights or
Section 2(l) of the Act to include 'a co- 75 advertisements. It was submitted that mere
operative society registered under any law collection of registration fee is not an

economic activity and does not generate 40 India [WP (C) No. 5770 of 2011] holding
income for AICF either. This fee collected is AICF to be an enterprise under the provisions
utilised towards maintenance of the database of the Act. The Informants have also relied
and preparation of the rank list etc. upon the judgment dated 07th March, 2017 of
the Hon'ble Supreme Court in Competition
5 19. It has been further contended that none of 45 Commission of India vs. Coordination
the tournaments referred to in Commission's Committee of Artist & Technicians of W.B.
order dated 11th December, 2017, were Film and Television and others [Civil Appeal
organised by AICF and they were instead No. 6691 of 2014] to suggest that AICF is an
organised by respective State Associations or enterprise.
10 clubs. AICF only monitors and regulates these
tournaments and strictly keeps itself out of the 50 21. From the facts of the present case, the
economic activities associated with Commission notes that AICF is a society
organisation of tournaments. It stated that Rs. registered under the Tamil Nadu Societies
9 lakhs, which was received by AICF from Registration Act, 1975 and is thus a 'person',
15 Doordarshan, was an exception and was for as defined in Section 2(l) of the Act. AICF is
the purpose of preparing highlights of 55 recognised as NSF for the sport of chess by
matches. Otherwise it does not earn any the Government of India. AICF is also the
income from TV rights, advertisements or only organisation from India to be recognised
telecast rights. In view of these, it has been by and affiliated to FIDE, which is the
20 contended that the Commission has no International body governing the sport of
jurisdiction over AICF. 60 chess. In terms of its Constitution and Bye
laws, AICF has inter-alia been established to
20. The Informants, while agreeing with the organise national and international
findings of DG urged that AICF, is an championships. Organisation of chess
"enterprise" under the Act. According to events/tournaments is, inter-alia, a revenue
25 them, AICF neither functions as a regulator of 65 generating activity and falls within the ambit
the game of chess nor discharges any statutory of services covered under Section 2(h) of the
or constitutional functions. They contended Act. Thus, the very fact that AICF has a
that AICF has several sources of income such mandate to undertake the economic activity of
as grants from Government of India, organizing chess events tournaments under its
30 registration fee, recognition fees (i.e. share of 70 Constitution, makes it an enterprise as per the
prize money) entry fee, non-refundable Act.
earnest money deposits, etc. AICF also earns
by organising chess tournaments under its 22. Moreover, a perusal of the material
supervision, granting participation certificates, available on record shows that AICF, inter-
35 sponsorship and television rights. The alia, has been engaged in organisation of chess
Informants have placed reliance on the 75 events. For instance, the Annual Report of
judgment dated 4th November, 2011 passed AICF for the Financial Year 2015-16 states
by the Hon'ble Delhi High Court in the case that "the Central Council of AICF decided to
of Hemant Sharma and others Vs. Union of honour the above medal winning Olympiad

team members by organising an India-China 40 23. In this regard, the Commission observes
summit clash chess match with the prize fund that in terms of Section 2(h) of the Act, a
of Rs. 10 lakhs sponsored by AICF. (emphasis person would be an enterprise, irrespective of
added)" The extracts from the website of whether the activities mentioned therein are
5 FIDE also confirm that "to celebrate the carried out directly or indirectly through units,
historic bronze medal winning performance 45 divisions or subsidiaries. Thus, if AICF
of India in the Tromso Olympiad 2014, All conducts chess events through or in
India Chess Federation organises India - collaboration with the State associations/club,
China Chess summit 2015, supported by these would be deemed to have been
10 Telangna State Chess Association at Marriot organised by AICF making it an enterprise.
Hotel, Hyderabad from 2nd to 10th March". 50 Further, the self-proclamation on the website
The same website, at another place, states that and the annual report, as detailed above,
"The All India Chess Federation (AICF) will which could not be explained by AICF, clearly
organise the World Youth U-16 Chess bring out that AICF had in fact been a part of
15 Olympiad in Ahmedabad, India from 10th organisation of all those chess
December (Arrival) to 20th December 55 events/tournaments and there is no scope to
(Departure), 2017 conducted under the assume the contrary.
auspices of Federation Internationale Des
Echecs (FIDE)". The Annual Report of AICF 24. In addition to the above, the financial
20 for the financial year 2011-12 states that "We statements of AICF for the financial years
[AICF] organized World Junior Chess 2008-09, 2010-11 and 2015-16 clearly show
Championships at Chennai and Asian Schools 60 that AICF received income from sale of
Chess Championships at New Delhi...". All advertisement space, sale of media rights and
these evidences were confronted to the OP sponsorship. AICF in its response has sought
25 vide order dated 11th December, 2017. AICF to negate these findings by submitting that the
has stated that none of these tournaments documents referred by the Commission in its
were "organised" by them but by the 65 order were not audited Financials of AICF
respective State Associations or clubs. It but mere estimates/budgets. The said budgets
further explained that AICF has either are said to be prepared with the intention of
30 conceptualised the said events or was allotted demonstrating that the AICF has identified
the said events by the FIDE. Role of AICF is means to secure the finances it requires to
limited to contributing to the prize money, 70 meet its estimated expenditure for the subject
providing technical support, monitoring, financial years. It has further stated that use of
regulating and advising keeping itself out of the words "advertisement" and "sponsorship"
35 the economic activities associated with it. in the budget does not indicate that the
AICF has placed on record the extracts of advertisement rights are sold by AICF. The
minutes of the meetings in support of its 75 Commission is however, not convinced with
contention that these tournaments were these explanations. AICF has not
organised by the State Associations or clubs. demonstrated as to how the contents of
audited accounts are different from the

unaudited accounts. The minutes of the 40 the ambit of Section 2(h) of the Act. If a
Annual General Body meeting of AICF dated person is engaged in any such activity, no
20th June, 2008, inter-alia, state that "As matter with or without profit motive, it would
recommended by the Central Council it was be considered as an enterprise, as it interfaces
5 resolved to share the remuneration from with the market and hence, with other
Doordarshan for telecast of our chess 45 alternatives for the product or service in
programmes with LIVE Tele Shows in the question. The primary task of a sports
ratio of 40:60 (60% for LTS)". The Informant federation is to undertake regulatory activities
has also submitted that AICF generates such as framing rules and undertaking
10 income from registration fee, recognition fees measures to preserve the integrity of the
(i.e. share of prize money) entry fee, non- 50 sport. However, absence of a profit motive
refundable earnest money deposits, donor does not alter the enterprise status if the
entry fees, etc., which is evident from chart on concerned entity pursues economic activities,
money received by AICF in the Financial Year and that too income generating economic
15 2011-12, 2012-13 and 2013-14. These aspects activities.
clearly establish the revenue generating nature
55 27. The decisional practice of the Commission
of the activity.
has also been to regard sports federations as
25. AICF has also asserted that all fees 'enterprise' if they are engaged in activities
collected by AICF including the registration covered under Section 2(h) of the Act.
20 fees, earnest money deposit is based on its Reference is drawn to the decisions of the
financial regulations and the intention behind 60 Commission in Dhanraj Pillay and others v.
collection of fees is to regulate the game and Hockey India (Case No. 73 of 2011) and
collect funds to plough it back to sport in the Surinder Singh Barmi v. Board for Control of
form of prize money to players, expenses for Cricket in India (Case No. 61 of 2010) in this
25 training of coaches, arbiters, etc. It has further regard. Subjecting economic activities of
submitted that the money received from 65 sports federation to competition law is also
Doordarshan is purely used for promotion of consistent with the practices followed by
the game. It has also been strongly contended mature competition regimes like the European
that AICF does not have profit motive and Union. In Motosyklestistiki Omospondia
30 thus, is not an enterprise under the provisions Ellados NPID (MOTOE) v. Elliniko Dimosio
of the Act. 70 [Case No. C-49/07 (2008) ECR I - 4863], it
was held that "A legal person whose activities
26. The Commission notes that though AICF consist not only in taking part in
may plough back all its revenue into the game administrative decisions authorising the
of chess but that still does not change the organisation of motorcycling events, but also
35 nature of economic activities performed by it. 75 in organising such events itself and in
It is observed that concept of enterprise does entering, in that connection, into sponsorship,
not depend on profit motive alone. The advertising and insurance contracts, falls
defining feature of the concept 'enterprise' is
that it engages in an economic activity within

within the scope of Articles 82 EC and 86 administrative action and the prima-facie
EC." 40 opinion expressed therein is not a final
determination. Therefore, the parties need not
28. In the light of above, the Commission even be heard before passing a direction
concludes that AICF has been engaging in under Section 26(1) and they cannot seek the
5 organisation of professional chess same as a matter of right. In the instant
events/tournaments as well as in incidental 45 matter, the DG had issued a notice dated 19th
revenue generating activities. Performance of March, 2012 to AICF in relation to
these activities by AICF is found to be investigation in the present case. The notice
sufficient to hold it as an enterprise as defined inter-alia mentioned the allegations made
10 under Section 2(h) of the Act. against AICF and that CCI has directed the
29. AICF has raised another preliminary issue 50 DG to initiate investigation proceedings in the
concerning non-service of the order dated matter. It is strange that AICF claims that it
09th February, 2012 under Section 26(1) of was unaware of the proceedings before the
the Act, which according to it amounts to Commission including the investigation
15 violation of principles of natural justice. It has despite service of such notice by the DG. The
contended that the said order came to its 55 records of the case including the said order
knowledge only when it received the were open to inspection and any vigilant party
Investigation Report dated 11th October, could have taken a certified copy of the said
2012. AICF as such was unable to challenge order by making an application under the
20 the proceedings before the Commission relevant provisions of the Competition
including the order passed under Section 60 Commission of India (General) Regulations,
26(1) of the Act due to non-service of the said 2009. However, no effort was made by AICF
order. However, at a later stage, AICF to make use of these provisions. Thus, the
challenged the order dated 09th February, Commission finds no merit in the argument
25 2012 before the Hon'ble Madras High Court of AICF that principles of natural justice were
by filing a writ petition [Writ Petition (C) No. 65 violated on account of non-service of the
34039 of 2012] and the same is pending. order dated 9th February, 2012, passed under
Section 26(1) of the Act, upon it.
30. The Commission notes that a preliminary
conference was held with the parties on 15th 31. Having dealt with the preliminary issues,
30 December, 2012 before forming its prima the Commission proceeds to deal with the
facie opinion. It was only after holding such 70 issues framed by the Commission.
conference, that the order dated 09th Issue 1: What is/are the relevant market(s)?
February, 2012 was passed by the
Commission. The Hon'ble Supreme Court in 32. In any case of alleged abuse of dominant
35 Competition Commission of India v. Steel position, delineation of relevant market is
Authority of India Limited and Another, important as it sets out the boundaries of
(2010) SCC 744, held that issuance of a 75 competition analysis. Proper delineation of
direction under Section 26(1) is only an relevant market is necessary to identify in a

systematic manner, the competing alternatives 40 'market for organization of professional chess
available to the consumers and accordingly tournaments/events' and 'market for services
the competitive constraints faced by the of chess players', keeping in mind the
enterprise under scrutiny. The process of impugned restrictions on the chess players
5 defining the relevant market is in essence a and on the organisers of chess
process of determining the substitutable 45 events/tournaments, and the effects flowing
goods or services as also to delineate the therefrom. AICF objected to the definition of
geographic scope within which such goods or relevant market proposed by the Commission
services compete. It is within the defined as being erroneous.
10 product and geographic boundaries that the
competitive effects of a particular business 34. Given the nature of findings of
50 investigation in the instant case, the
conduct are to be assessed. Section 2(r) of the
Act defines 'relevant market' as the market Commission notes that the allegations
determined with reference to the relevant concern restriction on organisation of chess
15 product market or the relevant geographic events/tournaments without approval of
market or with reference to both the markets. AICF and on chess players from participation
Section 2(s) of the Act defines 'relevant 55 in such events. The Commission reiterates the
geographic market' as a market comprising of view taken in its order dated 11th December,
the area in which the conditions of 2018 that the relevant market for assessment
20 competition for supply of goods or provision of these restrictions needs to be defined by
of services or demand of goods or services are taking into account impugned restrictions and
distinctly homogeneous and can be 60 the probable effects which arise from such
distinguished from the conditions prevailing restrictions.
in the neighbouring areas. Section 2(t) of the 35. In Dhanraj Pillay case, the Commission
25 Act defines 'relevant product market' as a noted that the sports sector comprises
market comprising of all those product or multitude of relationships. For example, a
services which are regarded as interchangeable 65 sports federation may be a seller of various
or substitutable by the consumer by reason of rights such as media rights, sponsorship
characteristics of the products or services, rights, and franchise rights associated with
30 their prices and intended use. sport event (s) under its purview and
33. In the instant case, the DG has found the correspondingly, there would be a separate set
relevant market to be the market for 70 of consumers for each of such rights.
'conducting and governing domestic and However, the ultimate viewers of sport
international chess activities for both men and events are the end consumers, who influence
35 women and the underlying economic activities the popularity of the sport, which in-turn
in India'. While differing with the definition of determines the value proposition of the
DG, the Commission, in its order dated 11th 75 commercials associated in different verticals.
December, 2017 observed that there are two Also, a sports federation requires services of
relevant markets in the instant case, namely, players, officials etc. for staging an event
which makes sports federations themselves

as consumers. In this multitude of 40 tournaments/events". In this regard AICF has

relationships, defining the relevant consumer stated that it does not organise any event and
would enable defining the relevant market. as such is not a constituent of the said
relevant market for organisation of
36. With respect to the assessment of the professional chess tournaments in India. The
5 impugned conducts relating to process of 45 Commission has already dealt with the aspect
bidding and sharing of non-refundable earnest of AICF being an enterprise involved in
money deposit by AICF, sharing of entry fee organisation of professional chess
for various categories and making tournament, hence their argument is not
organization of events commercially unviable tenable.
10 for competing organisers, the Commission
finds focal service to be organisation of 50 37. As regards the assessment of the
professional chess tournaments in India. The impugned conduct relating to special/donor
Commission notes that every sport has unique entries and non-implementation of LTDP
characteristics which distinguish it from other with respect to merit in the process of
15 sports. Given the unique characteristics of selection of probables in National
chess, it is unlikely that consumers will regard 55 Championships; use of discretion by the
any other sport or event as substitutable. secretary in the nomination of players and
Similarly, from an intended use perspective non-maintenance of proper record in
also entertainment from sport may not be selection of players and award of certificates,
20 regarded as substitutable with other forms of the Commission notes that AICF is hiring the
general entertainment. Thus, other sports 60 services of chess players. AICF has argued
and other forms of entertainment do not that neither the chess players are service
constrain chess in any manner. On a perusal providers nor does it avail any service being
of the materials available on record, including provided by the chess players. In this respect
25 the Investigation Report and the written the Commission observed that AICF requires
submission of the parties, it emerges that 65 the services of chess players for organising
chess tournaments are conducted at National, chess events which makes it a consumer of
State and District level. Chess tournaments chess players. AICF cannot substitute the
are also conducted by universities, clubs and service provided by chess players with any
30 other organisations. However, the other service. The monetary consideration for
Commission does not find it necessary to 70 such services is in the form of sharing entry
segment or sub-segment the market based on fee with the organisers of professional chess
different levels as the impugned restrictions of events, irrespective of whether such entry is in
AICF apply to all types of professional chess regular category or special/donors category.
35 tournaments/events organised in India. Accordingly, the relevant product market to
Accordingly, the relevant product market to 75 assess the restrictions on chess players will be
assess restrictions on organisations of the the "market for services of chess players".
chess events will be the "market for
organisation of professional chess 38. The relevant market for assessment of
restrictions on chess players and on

organizations like CAI, and actions taken such tournaments, placing restrictions on
as debarment and removal of ELO/FIDE participation of players, etc. Based on these
rating of players would be market for factors, DG concluded that AICF enjoys
organisation of professional chess 40 dominant position in the market for
5 tournaments/events and market for services conducting and governing domestic and
of chess players, as the said conducts are international chess activities for both men and
relatable to both the relevant markets. women and the underlying economic activities
in India.
39. As regards the relevant geographic market,
it is observed that AICF being the NSF, it 45 42. In its order dated 11th December, 2017,
10 governs the game of chess by way of the Commission also observed that AICF
stipulating rules and regulations that are enjoys dominant position in both the relevant
applicable across India. As a result, the markets delineated therein, i.e., 'market for
conditions of competition in both the product organisation of professional chess
markets defined above are homogeneous 50 tournaments' and 'market for services of chess
15 across the nation and thus, the geographic players'. It was observed that AICF enjoys
dimension of both the product markets would dominant position in both the relevant
cover the whole of India. markets on account of the regulatory powers
enjoyed by it under the pyramid structure of
40. Accordingly, the Commission concludes 55 sports governance. In response, AICF has
that relevant markets in the instant case would contended that it is governed by National
20 be: Sports Code that has a policy of 'One Sport
(a) The 'market for organization of One Body'. As a result, AICF enjoys
professional chess tournaments/events in dominant position for controlling and
India' 60 managing the game of chess. However, its
activities cannot be subjected under Section 4
(b) The 'market for services of chess players in of the Act as it performs only regulatory
25 India'. functions. On the other hand, Informants
agreed with the findings of the DG and
Issue 2: Whether AICF enjoys dominant
65 observations of the Commission in its order
position in the above defined relevant
dated 11th December, 2017.
market(s)?
43. As the factors attributing to dominance of
41. The DG has observed that AICF being
AICF are largely similar in both the relevant
30 the NSF for the game of chess is the only
markets, the assessment of dominant position
national level chess federation affiliated to
70 in both the markets are being commonly dealt
FIDE. It is the sole and exclusive authority to
with in the succeeding paragraphs.
regulate and govern the game of chess in
India, which includes selection of Indian chess 44. The Commission notes that AICF is the
35 players, conducting national, open and only national level chess federation in India
international tournaments, approving affiliated to FIDE, which in-turn is the sole

and supreme international body governing the 46. The authority of AICF is also evident
game of chess. Further, by virtue of its NSF from the rules related to Organisation of
status by MYAS, AICF is vested with the 40 National Championship/Tournaments;
authority to select and field the Indian chess Conditions for organising chess events:
5 team for international level tournaments and
to conduct national and international chess "(j) Players registered with AICF alone will be
events in India, etc. As a result of these, AICF eligible to participate in the Championships."
is the de-facto regulator and an exclusive body 47. These rules undoubtedly confer AICF
responsible for the conduct and governance 45 with control over professional chess players in
10 of all chess events in India. Further, regulatory India, who have no bargaining power. As per
powers enjoyed by AICF include the rules, the players desirous of participating
sanctioning/disapproving proposals for in FIDE/Asian/Commonwealth
organisation of chess events and subjecting Championships are mandatorily required to
players to disciplinary action in case of 50 participate in National Championships
15 participation in unauthorised chess events. organised by AICF. Further, players registered
45. To appraise the extent of authority vested with AICF alone can participate in State,
in AICF, it would be relevant to refer to the National and International Championships
Code of Conduct for the Players contained in recognised by FIDE and AICF. By
its Constitution and Bye-Laws. The relevant 55 controlling the participation of professional
20 extract is reproduced as under:
chess players in chess events organised by
other entities, AICF enjoys control over
"(x) Players desirous of participating in any official organisation of chess events. The
FIDE/Asian/Commonwealth Championships Commission notes that sports federation like
should have participated in the last year's respective 60 AICF engaged/involved in organisation of
age group, open National Championships. However, sports events and economic exploitation of
25 the Federation shall have the right to accept or reject such events are put to advantage if they are
any such requests. vested with the authority to approve/sanction
organisation of similar events by other.
(y) Players shall strictly abide by the Constitution, 65 Undoubtedly, such advantage is a significant
Rules, Regulations and Orders/Instructions of the source of market power. Further, AICF's
Federation in force from time to time and also abide by regulatory role empowers it to create entry
30 the Instructions of Arbiters and AICF office bearers. barriers for other chess events other than
(z) No player shall participate in any tournament not those recognised by it, in form of requiring
authorised by All India Chess Federation or its 70 recognition.
affiliate members or District Association and units 48. The Commission has already noted that
affiliated to them. The above violation shall attract subjecting the activities of sports association
35 disciplinary proceedings including cash penalties apart to competition law is consistent with its
from debarring from participating in any tournaments decisional practice as well as mature
in future." (emphasis added) 75 competition jurisdictions like European

Commission. Regulatory power of any power of AICF vis-a-vis professional chess

Sports Federation is considered to be a 40 players.
significant source of market power/dominant
position. In MOTOE (supra), the Court 50. Having due regard to the regulatory
5 (Grand Chamber), on the issue of dominance powers enjoyed by AICF under the pyramid
of sports association observed that: structure of sports governance and the
predominant buyer of the services provided
"....a system of undistorted competition, such as that 45 by professional chess players, the Commission
provided for by the treaty, can be guaranteed only if has no hesitation to conclude that AICF
equality of opportunity is secured between the various enjoys dominant position in both the relevant
10 economic operators. To entrust a legal person such as markets i.e. market for organization of
ELPA, the National Association for Motorcycling in professional chess tournaments/events in
Greece, which itself organises and commercially 50 India and market for services of chess players.
exploits motorcycling events, the task of giving the
competent administration its consent to applications for Issue 3: Whether AICF has abused its
15 authorization to organize such events, is tantamount
dominant position in the said relevant
de facto to conferring upon it the power to designate the market(s)?
persons authorized to organize those events and to set 51. Having established the dominance of
the conditions in which those events are organized, 55 AICF in both the relevant markets,
thereby placing that entity at an obvious advantage Commission would now deal with the alleged
20 over its competitors. Such a right may therefore lead to abuses.
an undertaking which it possesses it to deny other
operators access to the relevant market...." (i) Restriction on chess players and
organisation of chess tournaments
49. The Commission also notes that AICF is
the dominant consumer of services provided 60 52. The Commission notes that the impugned
25 by chess players. Attention needs to be drawn restrictions on chess players to participate in
to clause Z of the Code of conduct for Players tournaments, such as those organised by CAI,
contained in Constitution and Bye Laws of not authorised by AICF, actions taken thereof
AICF and declaration given by players at the are relatable to both the relevant markets.
time of their registration with AICF for not 65 Accordingly, they are being dealt with
30 participating in any other events organised by together.
any other rival organisation of Chess. If a
53. At the outset, the Commission notes that
registered player participates in any
competition cases relating to sports
tournament not authorised by AICF, he/she
associations/federations usually arise due to
is subjected to disciplinary proceedings
70 conflict between their regulatory functions
35 including cash penalties and debarment from
and economic activities undertaken by them.
participating in any tournaments in future.
The Commission is of the view that system of
These regulations and undertakings given by
approval under the pyramid structure of
players stand testimony to the monopsony
sports governance is a normal phenomenon

of sports administration. However, rules "...in respect of the regulatory aspects of sport, the
governing the players and the organisation of assessment whether a certain sporting rule is
sport events/tournaments often create a 40 compatible with EU competition law can only be made
restrictive environment for the economic on a case-by-case basis, as recently confirmed by the
5 activities that are incidental to sport. Unlike European Court of Justice in its Meca-Medina ruling
other abuse cases, these could be justified if it [Case C-519/04P, ECR 2006, I-6991]. The
is demonstrated that the restraint on Court provided a clarification regarding the impact of
competition is a necessary requirement to 45 EU law on sporting rules. It dismissed the notion of
serve the development of sport or preserve "purely sporting rules" as irrelevant for the question of
10 its integrity. However, if restrictions impede the applicability of EU competition rules to the
competition without having any plausible sport sector...The Court recognised that the specificity
justification, the same would fall foul of of sport has to be taken into consideration in the
competition law. In Dhanraj Pillay v. Hockey 50 sense that restrictive effects on competition that are
India (Order dated 31st May, 2013 in Case inherent in the organisation and proper conduct of
15 No. 73 of 2011), the Commission has noted competitive sport are not in breach of EU
that competition rules, provided that these effects are
proportionate to the legitimate genuine sporting interest
"The Commission......is of the opinion that 55 pursued. The necessity of a proportionality test implies
intent/rationale behind introduction of the guidelines the need to take into account the individual features of
as submitted by FIH relating to sanctioned and each case. It does not allow for the formulation of
20 unsanctioned events needs to be appreciated before general guidelines on the application of competition law
arriving at any conclusions. Factors such as ensuring to the sport sector." (emphasis added)
primacy of national representative competition, deter
free riding on the investments by national associations, 60 55. Commission notes that DG has relied
maintaining the calendar of activities in a cohesive upon several evidences to arrive at its finding
25 manner not cutting across the interests of participating of abusive conduct on account of restrictions
members, preserving the integrity of the sport, etc. are imposed. These are discussed hereunder:
inherent to the orderly development of the sport,
which is the prime objective of the sports (a) In the present case, while registering with
associations. Moving further, on the proportionality 65 AICF, chess players are made to sign a
30 aspect, the Commission opines that proportionality of registration form, which amongst other
the regulations can only be decided by considering the declarations also contain a declaration to the
manner in which regulations are applied." effect that they will not participate in any
unauthorised tournament/championship.
54. A similar approach has been the practice 70 Relevant portion of the Registration Form
of mature competition regimes also. The reads as follows:
35 White Paper on Sports issued by the
European Commission [COM(2007) 391] "I also declare that I will not participate in any un-
states that authorised tournament/championship".
It is noted that the restriction is absolute and

75 does not leave any scope for players to
participate in any tournament not authorised today and pursuant to a Show cause notice
by AICF. Further, neither the Bye laws nor 40 issued by AICF in 2015, it was informed that
the constitution of AICF define what is an the Rules and Regulations framed by AICF
unauthorised tournament. are not just applicable to its members but to
every chess player in the country.
5 (b) Clause Z of the Code of Conduct for the
Players further stipulates that players (c) On its website, AICF has also displayed a
participating in unauthorised chess 45 caution against the tournaments organised by
tournaments may be subjected to disciplinary CAI. The caution notice displayed on the
action including cash penalties apart from website of AICF reads as under:
10 debarring them in participating in any
tournaments in future. The text of this CAUTION
provision reads as follows: "This is to inform all chess players/organisers/fficials
50 that any chess event organized under the banner of
"No player shall participate in any tournament not
authorised by All India Chess Federation or its "Chess Association of India" is not recognised by All
15 affiliate members or District Association and units India Chess Federation."
affiliated to them. The above violation shall attract CAUTION
disciplinary proceedings including cash penalties apart
from debarring from participating in any tournaments A set of disgruntled elements have announced that they
in future." 55 have formed a chess association as rivals to All India
Chess Federation. In their mails the Chess
20 Thus, the consequences of participating in any Association of India has announced that, with the
unauthorised events are very harsh and there permission of World Chess Federation Inc (a rival to
is no provision of seeking any permission or FIDE) they will organize an open tournament at
being heard for offering an explanation. 60 Delhi from 23rd Dec, with a prize fund of Rs. 15
The facts on record show that AICF had Lacs.
25 implemented this provision against players All India Chess Federation cautions all chess players
since very long. In the present case, affiliated to us not to participate in these tournaments
Informants, in 2010, along with 150 players or any other tournaments to be organized by Chess
were initially banned for a period of one (1) 65 Association of India in future as their events are not
year, due to their participation in a organized by All India Chess Federation and as such
30 tournament organised by CAI, which was not not authorized by AICF. This is to further remind all
authorised by AICF. Further, their ELO AICF registered players that you have signed a
ratings, earned by them over a period of time, declaration in the players' registration form, which we
were also removed and they were asked to 70 quote for your ready reference.
surrender fifty (50) percent of the prize
35 money won. Informants have stated that the "I also declare that I will not participate in any
action was taken without serving any show unauthorized tournament/championship".
cause notice on them. Further, as submitted
by the informant, the ban continues even
By playing in the tournaments or conducted by Chess (RSPB) which is one of affiliates of AICF that
Association of India, the registered players of AICF its four players, including Shri Gurpreet Pal
will attract disciplinary action and hence are cautioned Singh, played in tournaments which are not
against playing in the tournaments to be organized by 40 authorized by AICF, despite its web-site
5 the rival body. - Published on 09 December, 2009". communication in this regard. AICF further
informed in the above mention letter that
The aforesaid brings out that AICF used the these unauthorized tournaments are organized
power it possessed to deny other organisers by some people of CAI. These players are
like CAI to access the relevant markets. It is 45 therefore not allowed to play my tournament
pertinent to mention that AICF has referred authorized by AICF and its affiliates and their
10 to CAI as a rival body. ELO/FIDE rating has been removed by the
(d) The investigation has revealed that there FIDE as per the decision of Central Counsel
were other instances of AICF restricting of AICF. AICF has also advised RSPB to
players who had participated in events not 50 ensure such players should not be permitted
recognised by AICF, from participating in to participate in any of the tournaments
15 other chess events. The relevant extracts of organized by RSPB as well.
the Investigation Report are reproduced as (iii) Circular dated 24th June 2011 of RSPB
under:
RSPB sent a circular dated 24th June, 2011 to
(i) E-mail dated 4th April, 2011 of Bangkok 55 its associations conveying that the information
Chess Club received from AICF about participation by
20 Bangkok Chess Club invited Shri Gurpreet some of its players in unauthorized
Pal Singh, one of the IP(s) in this case vide its tournaments has been considered by RSPB
letter 31-01-2011 to participate in its 11th and its has been decided that Zonal railway
Thailand Open 2011. Subsequently, Bangkok 60 and production units shall not allow their
Chess Club vide its e-mail dated 04-04-2011 chess players in any such tournament which is
25 wrote to Shri Gurpreet Pal Singh, that AICF not authorized by AICF. Further if any player
via FIDE's Secretary informed that his participates in such unauthorized
membership was not valid under their tournaments, the player will not be allowed to
federation and hence he should contact AICF 65 participate in All India Railway Chess
urgently. After intervention by the Bangkok Championship and will also not be selected
30 Chess club with FIDE Secretary and for Indian Railway Chess Team.
correspondence with above IP(s), he was (iv) AICF's letter dated 11th July, 2011 to
allowed to participate in the open Group. Secretary, RSPB
(ii) Letter dated 5.01.2011 of AICF 70 AICF in its letter dated 11th July, 2011
In another instance, AICF vide their letter addressed to Joint Secretary, RSPB has stated
35 dated 05-01-2011 informed to the Joint that some players who participated in such
Secretary, Railways Sports Promotion Board unauthorized tournaments have submitted
apology letters to AICF and subsequently
Central Council of AICF has decided that 40 AICF. Further, in the absence of participation
those such players who have not won any by chess players it would not be feasible for
cash prizes in such unauthorized tournaments any entity to organise any chess tournament
may be permitted to play in all tournaments of thereby restricting competition in the market
5 AICF and its affiliates after one year of their of organisation of professional chess
apology letter if recommended by respective 45 tournaments. The issue thus left before the
State Associations. For those players who Commission is whether the aforesaid conduct
have won cash prizes, a penalty equal to won and practices followed by AICF are justified.
cash prizes is imposed before permitting them AICF has sought to justify the impugned
10 to play in all tournaments of AICF and its restrictions by stating that it is the regulator of
affiliates after one year of their apology letter. 50 the game of chess and the restrictions
AICF has further conveyed that if such imposed are required to instil discipline
players repeat the mistake after giving apology amongst the players. This authority is said to
letter, a life ban will be imposed upon them. be derived from the Constitution and bye laws
of AICF, FIDE Code of Ethics and National
15 The Commission notes that AICF wrote 55 Sports Code. It argued that as such, the
letters to Bangkok Chess Club and Railways authority to impose punishment is inherent to
Sports Promotion Board informing CAI's the functions of a sports federation to
initiatives to be unauthorised and advised that maintain discipline, promote fair play and
players associated with it should not be secure interest of players. Hence, it urged that
20 allowed to participate in chess 60 the action taken against the Informants may
tournaments/events. Pursuant to these only be regarded as regulation and cannot be
communications RSPB also issued a circular viewed as a restraint on competition. It also
inter alia conveying its decision that any player contended that any player aggrieved by the
who participates in any chess tournament sanction(s) imposed by AICF can file an
25 which is not recognised by AICF, will not be 65 appeal in terms of rules/regulations of AICF.
allowed to participate in All India Railway There is no restriction on organisation of any
Chess Championships and will also not be chess tournament but if an organiser intends
selected for Indian Railways Chess Team. to update the outcomes in ELO rankings of
The aforesaid brings out the great length to the players, then the tournament has to be
30 which AICF went against the rival 70 recognised by AICF. Events recognised by
organisation and participating players to oust AICF comply with FIDE Regulations and
them from the relevant markets. thus, the outcomes can be merged with ELO
56. The contents of the rules, registration ratings of the participating players. With
form, letters/circulars and cautions notices, respect to the caution notice issued against
35 discussed above, thus confirm the allegations 75 CAI, it has been claimed that the same is
levelled by the informants. These had the justified as it was claiming to be a National
effect of restricting the movement of Federation and illegally using the word "India"
professional players and deter them from to deceive the general public. It has also
participating in any event not authorised by referred to the order of the Madras High

Court preventing Chess Association of India 40 country. Informant has further stated that
from using the word "India". The action taken AICF offered to register him provided
was thus said to be Regulatory in nature. apology for playing in unauthorised
tournaments was submitted and cases against
57. On the other hand, the Informants have AICF are withdrawn.
5 agreed with the findings of DG and
Commission's observations in its order dated 45 58. The Commission notes that due to the
11th December, 2018 on this aspect. The impugned restrictions, chess players cannot
Informants have highlighted that declaration participate in tournaments not recognised by
requiring the players not to participate in AICF. As discussed earlier due to these
10 unauthorised tournaments which is contained restrictions, it is not feasible for any entity to
in the registration form was introduced in the 50 organise a chess tournament, without the
year 2011, with the amendment in byelaws. authorisation of AICF. The evidences
However, AICF has been enforcing this available on record clearly establish that AICF
undertaking even prior to amendment of bye created hurdles for CAI for organising chess
15 laws. According to them such a clause is not tournaments as well as prevented chess
in consonance with the spirit of free and fair 55 players, who participated in these, from
competition. Such undertakings are not a part playing in other chess tournaments. AICF has
of the player's registration forms by other however, sought to justify its action by stating
NSFs in games such as Kabbaddi, Badminton, that CAI was trying to mislead the people by
20 Boxing and many more. The Informants have using the word India and it wanted to instill
contended that AICF, by imposing 60 discipline amongst professional chess players.
restrictions has spoiled career of more than In this context, Commission notes as also
2500 chess players in India. AICF has taken pointed out by the DG, that neither the
punitive action of removal of International byelaws nor the constitution of AICF defines
25 ratings and thus, denied them from what unauthorised tournament is. The
participation in national and international 65 Commission also finds it pertinent to mention
events. Further, their ELO ratings were also that AICF has not shown any document
removed and they were asked to surrender which lays down the parameters governing
fifty (50) percent of the prize money won. authorisation/sanctioning of chess
30 Informants have stated that the action was tournaments that is followed by AICF. In the
taken by AICF based on a caution notice 70 absence of such guidelines, AICF can exercise
issued on its website without serving any absolute discretion in treating any tournament
show cause notice on them. Further, as as unauthorised. Further, Commission notes
submitted by the Informant no. 3, the ban that the restriction imposed on players by way
35 continues and pursuant to a Show cause of declaration is absolute and does not leave
notice issued by AICF in 2015, it was 75 any scope for players to participate in any
informed that the Rules and Regulations tournament not authorised by AICF. As
framed by AICF are not just applicable to its brought out earlier, consequences of
members but to every chess player in the participating in any unauthorised events are

very stringent and unilateral without offering 40 integrity of the sport. Due regard needs to be
an opportunity of being heard. In the present given to the specificity of the sport while
case, the Informants were internationally rated stipulating any conditions. It is important that
chess players. The purported event took place restrictions imposed by sports federations
5 in 2010, however, the ban has continued till serve the interest of the sport and at the
date. Removal of ELO ratings which were 45 same time maintain a fine balance between the
earned by these players over the years by extent of regulation and its implication on the
participating in authorised events is also not competition in the economic activities
found to be justified. The restrictions have incidental to the sport. Some of the relevant
10 deprived informants from playing chess over factors to be considered in this regard are
several years causing irreparable loss given 50 nature of sport, limited professional life and
that in sports, players have short professional level of opportunities for professional players.
career. While participation in events not
recognised by AICF may not be considered 60. The Commission also notes that chess
15 for ELO ratings, complete prohibition from unlike other sports does not involve physical
being part of such events denies them stress and is not as popular as cricket etc. in
professional opportunities for career growth. 55 India. Thus the restrictions in the Registration
Usually the calendar for National and Form, Clause Z of Code of Conduct of the
International events is known well in advance. Players and actions such as those taken against
20 Hence, it is not understandable why there the Informants have put the professional
should be complete restriction in participating chess players and potential organisers at a
in events that are not clashing with major 60 disproportional disadvantage and are thus
National and International events or conflict found to be unjustified and unfair. Further,
with the training schedule. Normally, the impugned declaration/rules and
25 participating in other chess tournaments may restrictions flowing therefrom have the object
not entail risks in terms of safety and health of as well as the effect of restricting free
the players, which could be true for other 65 movement of chess players and thereby,
sports, as it does not involve rigorous physical foreclosing entry of potential organisers by
activity. Thus, AICF has not been able to depriving them of the services provided by
30 demonstrate how such a blanket ban is professional chess players. The Commission
necessary to preserve the integrity of sport observes that entry of rival chess
and towards promoting the game. 70 organisations/federations and participation of
chess players in tournaments organised by
59. Being the de-facto regulator of the game them cannot be a sufficient reason to restrain
of chess, it is understandable that AICF would competition. In view of the foregoing, the
35 have to put in place certain restrictions or Commission concludes that AICF indulged in
some regulatory mechanism that are 75 practices that result in denial of market access
indispensable to preserve the interest of the to organisers of chess events/tournaments.
game. Such stipulations however have to be
proportionate and inherent to preserving the 61. At this juncture it is also pertinent to note
that an entity which commercially exploits a

game and is also vested with the authority to grants are not given by the Government.
regulate the game, by way of imposing rules 40 Therefore, there is no question of
and regulations including sanctioning of third misutilisation of funds.
party chess events, has incentives to foreclose
5 competition and protect its commercial 65. In this regard, the Commission notes that
interest in organizing sports events and though the sharing of non-refundable EMD
competitions. There is thus an inherent and entry fee reduces the money available
conflict of interest due to dual capacity of 45 with the organizers, it may not be regarded as
Regulator and organiser. anti-competitive. Considering the low
popularity of the game of chess in India,
10 62. Accordingly, the Commission concludes AICF does not earn huge amounts of money
that the impugned restrictions are in unlike Board of Control for Cricket in India.
contravention of the provisions of Section 50 Further, as submitted by AICF, such grants
4(2)(b)(i) and Section 4(2)(c) of the Act. from MYAS are available only for three (3)
National Championships and the Opposite
(ii) Sharing of non-refundable EMD and entry Party organizes more than sixteen (16)
15 fee National Championships. The Commission
63. In relation to sharing of non-refundable 55 finds merit in the submissions of AICF that
EMD and entry fee, investigation revealed the the money received from the MYAS, entry
practice of collecting EMD out of grants fees and in form of EMD from organizer are
provided to AICF. Investigation also brought used for various expenses like prize money,
20 out that AICF has been sharing the entry fee cash award for players and various other
in respect of all types of entries (normal / 60 promotional activities, boarding and lodging
seeded entry / special or donor) as a pre- for players, coaches, for medals etc. Thus, the
condition in the process of awarding the task Commission is of the view that the sharing of
of organising the chess championships to its non-refundable EMD and entry fee is not
25 affiliates. The use of this amount by the AICF unfair and thus, not in contravention of the
deprives the organisers to utilise this amount 65 provisions of the Act.
for meeting the expenses of tournaments and (iii) Special/Donor entries and non-
promoting the welfare of the game of chess. implementation of provisions of LTDP
This conduct of AICF was found to be in regarding merit in the process of selection of
30 contravention of Section 4(2)(a)(i) of the Act. probables in National Championships, use of
64. In response, AICF contended that the 70 discretion by Secretary in nominating players
money collected from Government (MYAS) and award of certificates
directly goes to State Associations. Further, 66. The investigation revealed that AICF did
the money given by Government is spent on not implement provisions regarding selection
35 boarding and lodging for players and coaches. of probables as LTDP. Contrary to the
Money received as entry fees and EMD is 75 stipulations for LTDP, AICF has been
used for various expenses like prize money allowing entries, other than on merit, under
and other promotional events for which
the type special/donor entries and collecting 40 AICF's sole discretion and is purely based on
higher amount of fees from such special performance and merit. AICF has stated that
entrants. The players of special/donor entries award of certificates has been done properly.
do not have any meritorious background in
5 various chess events conducted under the 68. In this connection, the Commission finds
umbrella of tournaments organised by AICF. merit in the submissions of AICF that such
Such practice of allowing entry to a specific 45 entries may help in discovering hidden talent.
privileged class who are able to pay higher Such practices are internationally accepted and
entry fee was found to be unfair and Commission has no reason, whatsoever, to
10 discriminatory and is contrary to the consider the practices of allowing donor
provisions of the LTDP. It was also revealed entries/special entries/wild card entries as
during the investigation that Secretary, AICF 50 abusive under Section 4 of the Act.
has nominated players for various national 69. With regard to issuance of the certificates,
chess tournaments without any justification. the Commission is of the view that the
15 Such practice of AICF granting undue irregularities pointed out do not have any
privilege to select players without any exclusionary or exploitative effect either on
justification was found to be in contravention 55 players or competition. Thus, such conduct
of Section 4(2)(a)(i) of the Act in the relevant does not merit examination under the
market. Investigation has also observed that provisions of Section 4(2)(a)(i) of the Act.
20 AICF has delegated the powers of issuing
certificates to organizers as per their format. Issue 4: Whether the declaration, which the
AICF neither has any control over players are made to sign by undertaking not to
maintaining the uniformity in the contents 60 play any open tournament is anti-competitive
and proper serial number/certificate numbers agreement as per Section 3(3) of the Act and
25 nor has any record of the certificates issued or it causes appreciable adverse effect on
their distribution. In view of these, it was competition as per section 3(4) of the Act
concluded by the DG that AICF's conduct is read with Section 3(1) of the Act?
in contravention of Section 4(2)(a)(i) of the
65 70. In relation to contravention of the Section
Act.
3(3), it has been concluded by the DG that
30 67. AICF, on the other hand, has submitted practices and various clauses in the
that AICF has not violated LTDP by Constitution and Bye Laws of AICF have
permitting special/wild card entries. caused appreciable adverse effect on
Special/Wild card/Donor entries help to 70 competition in the country because they have
discover hidden talents and the rationale for harmed competition, in terms of various
35 charging a higher fee charged for such entries factors enumerated under Section 19(3) of the
is to restrict the number of entries. It has been Act, such as creation of entry barriers, driving
further contended that allowing such donor existing competitors out of the market and
entries is an international practice and cannot 75 foreclosure of competition. These have the
be regarded as unfair. Selection of players is effect of limiting and/or controlling supply,
market, technical development and provisions
of services, in contravention of the provisions said restrictions are likely to have appreciable
of Section 3(3)(b) of the Act. As regards 40 adverse effect on competition in terms of
violation of Section 3(4), DG found that factors contained in Section 19 (3) of the Act.
vertical relationship does not exist between The Commission is thus, of the view that
5 AICF and its players and thus, would not AICF has contravened Sections 3(4)(c) and
attract the provisions of Section 3(4) of the 3(4)(d) of the Act read with Section 3(1) of
Act. 45 the Act.
71. The Commission is of the view that the ORDER

investigation has not revealed any agreement
10 which amount to a horizontal agreement and
74. Having found the conduct of AICF to be
as such Commission finds no need to in contravention of Section 4, the
scrutinise the case from the perspective of Commission orders the following remedies,
50 which are necessary, sufficient and
Section 3(3)(b) of the Act.
proportionate to address the harm to
72. As contained in the order dated 11th competition flowing from the impugned
15 December, 2018, the Commission further abuses:
notes that, unlike the finding of DG that
chess players and AICF do not exhibit vertical (a) AICF shall cease and desist from indulging
55 into the aforesaid conduct, which is found to
relationship, there exists vertical relationship
between them. In the present case, AICF is be in contravention of the provisions of
20 the consumer of services of chess players for
Sections 4(2)(b)(i) and 4(2)(c) read with
the organisation of any chess event. This Section 4(1) of the Act;
relationship between AICF and the players (b) AICF shall lay down the process and
tantamount to a vertical relationship as AICF 60 parameters governing
and the chess players are at different stages of authorisation/sanctioning of chess
25 the supply chain. tournaments. In doing so, AICF will ensure
73. It is further noted that the undertaking that they are necessary to serve the interest of
prescribed by AICF regarding non- the sport and shall be applied in a fair,
participation of its players in events not 65 transparent and equitable manner. Besides,
authorised by it, amounts to restraints that are AICF shall take all possible measure(s) to
30 in the nature of exclusive distribution and ensure that competition is not impeded while
refusal to deal as defined in Section 3(4)(c) preserving the objective of development of
and 3(4) (d) of the Act. Also, non-compliance chess in the country; and
of such undertaking will result in banning of 70 (c) AICF shall establish prejudice caused by a
the player and removal of their ELO rating, as chess player before taking any disciplinary
35 has been done in the case of the Informants. action against him. Needless to say, the
These consequences create entry barriers, disciplinary actions taken shall be
foreclose competition and restrict proportional, fair and transparent. The
opportunities available to chess players. The 75 disciplinary actions against the Informant and

other similar players shall be reviewed by penalty would be imposed in respect of the infringing
AICF on these lines; product, the 'maximum penalty' imposed in all cases
40 be prescribed on the basis of 'all the products' and the
(d) AICF shall file a report to the Commission 'total turnover' of the enterprise. It would be more so
on the compliance of the aforesaid directions when total turnover of an enterprise may involve
5 from (a) to (c) within a period of 60 days from activities besides production and sale of products, like
the receipt of this order. rendering of services etc. It, therefore, leads to the
75. The Commission has also considered the 45 conclusion that the turnover has to be of the infringing
issue of imposition of monetary penalty on products and when that is the proper yardstick, it
AICF and has given its thoughtful brings home the concept of 'relevant turnover'.
10 consideration thereon. 78. Thus, the starting point of determination
76. Under the provisions contained in Section of appropriate penalty should be to determine
27(b) of the Act, the Commission may impose 50 the relevant turnover and then, to calculate
such penalty upon the contravening parties, as the appropriate percentage of penalty based
it may deem fit which shall be not more than on facts and circumstances of the case. The
15 ten (10) per cent of the average of the Commission has held that the contravening
turnover for the last three (3) preceeding anti-competitive conduct of AICF amounts to
financial years, upon each of such person or 55 denial of market access in the market for
enterprises which are parties to such organisation of professional chess
agreement or abuse. tournaments and imposition of unfair
conditions as a consumer in the market for
20 77. In this connection, it would also be services of chess players. The relevant
apposite to refer to the decision of the 60 turnover for this contravention would be the
Hon'ble Supreme Court in Excel Crop Care revenue of AICF from the market for
Limited v. Competition Commission of India organisation of professional chess
and Anr. [common judgment dated 8th May, tournaments.
25 2017 in CA No. 53-55, 2874 and 2922 of
2014], holding that 'turnover' to be taken for 79. Accordingly, Income reported under the
imposition of penalty should be the relevant 65 sub-head "Tournament and Fees Receipts", in
turnover from the product in question and the audited financial statements of the AICF,
not the total turnover of the enterprise. The available on its own website http://aicf.in/
30 Hon'ble Court has observed as under: has been taken as relevant turnover. Further,
the Commission notes that the conduct has
"92. When the agreement leading to contravention of 70 continued till date and thus, it can impose
Section 3 involves one product, there seems to be no penalty based on financials of AICF during
justification for including other products of an the preceding three (3) years. Accordingly, the
enterprise for the purpose of imposing penalty. This is average of relevant turnover during the
35 also clear from the opening words of Section 27 read financial years 2014-15, 2015-16 and 2016-17,
with Section 3 which relate to one or more specified 75 is as under:
products. It also defies common sense that though

Table 1: Revenue of AICF from Tournament AICF for infringing the provisions of Section
and Fees Receipts for FY 2014-15, FY 2015- 30 4 of the Act.
16 and FY 2016-17
82. The Commission directs AICF to deposit
(Amount the aforesaid penalty amount within 60 days
in INR) of the receipt of this order and file a report to
the Commission on compliance of the
Nam Turnover Turnover Turnover Average 35 aforesaid directions.
e of for FY for FY for FY turnover
OP 2014-15 2015-16 2016-17 for three 83. The Secretary is directed to forward copies
years of this order to all concerned.
Order accordingly
AIC 3,06,98,5 3,80,69,2 3,50,84,7 3,46,17,5
F 60 22 91 24
80. Having decided what constitutes relevant 40

5 turnover, the Commission now proceeds to
calculate the appropriate percentage of
penalty. The twin objectives behind
imposition of penalty are: (a) to reflect the
seriousness of the contravention; and (b) to
10 ensure that the threat of penalties will deter
the infringing undertakings. Therefore, the
quantum of penalty imposed must be 45
proportional to the gravity of the
contravention and must be determined after
15 having due regard to the mitigating and
aggravating circumstances of the case.
81. The Commission notes that denial of

market access is one of the severe forms of
abuse of dominant position. Although penalty
20 up to ten (10) percent of the relevant turnover 50
of AICF can be imposed, the Commission
finds it appropriate to impose penalty at the
rate of two (2) percent of the average relevant
turnover for the financial years 2014-15, 2015-
25 16 and 2016-17. Consequently, the
Commission imposes a penalty of INR
6,92,350/- only (Rupees six lakhs ninety two
thousand three hundred and fifty only) upon 55

35 of foot-ball games as also laws/rules relating

to international foot-ball
matches/tournaments. The pro forma
Indian Football Association, West Bengal defendant is a member of the said Federation
and Another of International Foot-ball Association which
40 is popularly known as FIFA.
5 v
2. The plaintiff conducted foot-ball League
Mohan Bagan Athletic Club and Others for the year 1986 and the defendant 1 Mohan
Bagan Athletic Club, defendant 2 Police
Athletic Club and 12, other Clubs participated
Case No :Originating Summons No. 430 of 45 in the First Division 'A' Group of the Calcutta
1987 Foot-ball League for the year 1986. In terms
of the arrangement and/or fixtures each of
10 Bench :SACHI KANTA HAZARI the said 14 terms was to play 28 matches.
Citation :1987 Indlaw CAL 186, AIR 1988 3. On 15th July, 1986 Mohan Bagan Athletic
CAL 217 50 Club played a league match with Rajasthan
Club at its home ground. In the same match
one Mastan Ahmed participated and played
This is an application under Rule 1 Chapter for the Mohan Bagan Athletic Club. During
15 XIII of the original Side Rules of the Calcutta the said match the said Mastan Ahmed for
High Court. The point involved in this case is 55 committing an offence was shown "Yellow
of great public importance in the field of Card" by the Referee conducting the said
sports and as such. the point requires careful match. The concerned Referee duly submitted
consideration. Here, the court has been called a report of the said match to the Indian Foot-
20 upon to interpret certain rules framed by the ball Association. By the letter dated 16th July,
Indian Foot-ball Association. The plaintiff 60 1986 the Indian Foot-ball Association duly
No. 1 is the Indian Foot-ball Association and communicated to the Mohan Bagan Athletic
the plaintiff No. 2 is Shri Pradyut Kumar Club as to the said caution given to its said
Dutta, the Secretary of the Indian Foot-ball player by the Referee.
25 Association. The plaintiff is an affiliated
….
Association of the pro forma defendant, All
India Foot-ball Federation. There is an 65 4. On 26-7-86 Mohan Bagan Athletic Club
Association called Federation of International played another league match against Port
Foot-ball Association which controls and Trust at its home ground. During the said
30 manages the International Foot-ball Matches match the said Mastan Ahmed due to
and Tournaments. The said Federation of commission of an offence was also shown
International Foot-ball Association has its 70 'Yellow Card' by the Referee conducting the
own Rules and Regulations and also said match. The said match, however, could
constituted the international laws and/or rules not be concluded due to heavy downpour and
was abandoned after 65 minutes of play. In case of repetition, to spectators or suspend

Mohan Bagan A.C. played its next match on 35 the player for one match in the
28-7-86 against Police Athletic Club. The said competition/competition to come.
match was played by the football players of
5 the Mohan Bagan A.C. including the said In the case of third caution to suspend from
Mastan Ahmad and Mohan Bagan wan the further participation in the tournament or
said match by two nil. After the play was over suspend for 2 games for the competition to
the Police A.C. lodged a protest in writing to 40 come."
the Calcutta. Football Sub-Committee of the 6. Here the question is whether the
10 I.F.A., inter alia, contending that Mohan abandoned match should be taken to be a
Bagan A.C. illegally fielded to and/or allowed valid match and 'Yellow Card' shown in that
Mastan Ahmed to play the match between abandoned match should be and/or could be
Mohan Bagan A.C. and Police A.C. played an 45 taken into account for the purpose of
29-7-86. It was further contended that Mastan suspending the player in question in the
15 Ahmed was not entitled to participate in the subsequent match.
said Match in view of the 'Yellow Card'
shown to him twice in the matches held on 7. In course of argument the I.F.A. produced
15-7-86 and 26-7-86. the Caution register and it transpires from the
50 Caution Register that there is no entry of
5. The rule for disciplinary measures of the showing 'Yellow Card' during the second
20 I.F.A. is as follows :- match. It was contended by Mr. Somnath
Sl. No. Nature of Offence Punishment Chatterjee appearing for Mohan Bagan A.C.
adopted by the A.I.F.F that the I.F.A. considered the second match.
55 which was an abandoned match as non est
1. When a player is cautioned by the Referee and that is why in the Caution Register there
(without expulsion) for :- is no entry of the second match and for all
practical purposes, the second match was an
25 (a) rough play. abandoned match and was non est and as
(b) Criticism of the Referee's 60 such, the 'Yellow card' shown to Mastan
Ahmed during the second match is also non
(c) Damaging remarks concerning other est for all purposes. I hold that the second
players, spectators or referees. match which was abandoned after 65 minutes
of play was non est and the 'Yellow Card'
(d) Temporarily leaving the field of play
65 shown in the second match should not be
30 without notifying the referee before.
taken into account for the purpose of
(e) other less important unsporting gestures. If inflicting any punishment on any player.
it is the first offence
8. The point involved in that case is of great
to confirm the caution in writing. public importance in the field of sports and as
70 such the point requires careful consideration.
Here the court had been called upon to
interpret certain rules framed by Indian may be pointed out that all the parties have
Football Association. In this case he admitted submitted that the goals scored in such
the fact that Mastan Ahmed was shown a abandoned match are not counted in the
yellow card in the first match against tournament and for all practical purposes the
5 Rajasthan Athletic Club and he was again 45 match is treated as non est. But the Counsel
shown Yellow Card for the second match appearing on behalf of the Indian Football
against port Trust which was admittedly Association and East Bengal Club submitted
abandoned after the 65 minutes of the play. In that the effect of showing yellow card in such
this case Mastan Ahmed had taken part in the abandoned match remains valid and is to be
10 third match, namely against police Athletic 50 taken into account for the purpose of
Club who lost in the match by two goals to nil disciplinary action. In this case in the rules, it
and after the match was over, the Police is expressly pointed out that in case of first
Athletic Club lodged a complaint alleging that offence, a caution is to be given in writing, but
the Mohan Bagan Club should not be given in case of second offence, nothing appears to
15 any points for winning the match as it acted 55 have been given in writing. Now the rule
illegally in allowing the said player to provides in case of repetition to suspend the
participate against Police Athletic Club and player for one match. Points have been raised
the point which was due to be earned by and a lot of arguments has been advanced on
Mohan Bagan Club should be awarded to the question whether notice has to be given
20 them on this ground. The relevant rule in this 60 before any suspension is to be made effective
behalf is that for rough play, punishment in such case. The rule provides "in case of
adopted by Indian Football Association is that repetition to suspend the player." The word
"if it is the first offence confirm the caution in "to suspend" contemplates that a positive
writing. In case of repetition suspend the action has to be taken in other words, some
25 player for one match in the competition to 65 overt acts have to be done to suspend such a
come. In case of third caution to suspend for player formally. If the interpretation sought to
further participation in the tournament for be given by I.F.A. and East Bengal Club is
suspension of two games in the competition accepted, in that event this court have to hold
to come." Here the question is whether the that in case of first offence notice is to be
30 abandoned match should be taken to be a 70 given in writing giving a caution and there is
valid match and the Yellow Card shown in no requirement for giving any notice in
that abandoned match should be and/or writing when for repetition of second offence
could be taken into account for the purpose suspension is to be made. If the
of suspending the player in question in the interpretation, as sought to be given by the
35 subsequent match. Admittedly, the player 75 Counsel appearing on behalf of the Indian
concerned was not given anything in writing Football Association and East Bengal Club is
regarding the second offence alleged to have accepted in this regard in my view, it will lead
been committed by the player in the second to anomalous situation and in this connection
match which was ultimately abandoned. reference may be made to the judgement of
40 Regarding the effect of abandoned match, it 80 the House of Lords in the case of Seaford

Court Estates Ltd. v. Asher reported in (1949) player concerned. If it be the intention of rule-
2 K. B. 481 at page 499 wherein it was making authority that in case of first offence
observed that "we do not sit here to pull the entailing no punishment excepting a caution, a
language of Parliament to, pieces and make notice is to be given in writing. But in case of
5 nonsense of it. That is an easy thing to do and 45 repetition of offence which entails a severe
it is a thing to which lawyers are too often punishment of suspense no notice is to be
prone. We sit here to find out the intention of given. Such an unreasonable intention could
Parliament and of ministers and carry it out not be assured. After all, this rule governs
and we do this better by filling in the gaps and players and clubs who are engaged in the
10 making sense of the enactment than by 50 sports world and who play and during the play
opening it up to destructive analysis". occasionally make rough play, which are
Reference also may be made in this punishable but after all the persons concerned
connection. The observation of Lord Justice who are subject to these rules are all
Denning in the case of Eddis v. Chichestov- sportsmen and in this matter of the sports
15 onstable reported in (1969) 2 Ch.345 at page 55 world Court will not take a legalistic view.
358 also reported in (1969) 2 All ER 912
wherein Lord Denning observed that "I know 9. It may be further pointed out that the rule
this means that we in this court are filling in a of construction in such penal statutes pointed
gap left by the legislature - a course which was out by Lord Esher in the case of Tuck and
20 frowned on some years ago. But it would Sons v. Priester (1887) 19 Q.B.D. 629 at page
rather the courts fill in a gap than wait for 60 638 "if there is a reasonable interpretation
Parliament to do it. Goodness knows when which will avoid the penalty in any particular
they would set down to it. It would apply the case, we must adopt that construction. If
principle which I stated in Seaford Court there are two reasonable constructions we
25 Estates Ltd. v. Asher, "a judge, should ask must give the more lenient one. That is the
himself this question : If the makers of the 65 settled rule for construction of penal
Act had themselves come across this ruck in Sections."
the texture of it how would they have 10. Accordingly, I held that in case of
straightened it out. He must then do as they repetition of offence a formal communication
30 would have done. A judge must not alter the suspending the player has to be made and the
material of which it is woven, but he can and 70 player concerned should be made aware of
should iron out the creases". If the such suspension. The word "to suspend" in
construction as sought to be given by the my view should be construed as to pass an
Counsel appearing for Indian Football order of suspension and communicate the
35 Association and East Bengal Club is accepted same in writing. It is clear that the context
in my view, it would lead to some palpable 75 demands that the words should be construed
and evident absurdity. Accordingly, I hold that in the way I have indicated. Before a player is
in case of repetition of offence for the second punished he must be informed of the same.
time an order of suspension had to be passed
40 in writing and to be intimated in writing to the

11. Accordingly, I hold that a decision has to with football will take such a view long after
be taken suspending the player for repetition the match was over. The other interesting
of offence and the same is to be point is that the said rules nowhere provide,
communicated to the player and the club that in such a case the points earned by the
5 concerned. In this particular ease nobody was 45 club should be deducted and given to the
fully aware of the legal effect of such an opponent. In the matter of Sports World in
abandoned match. If the match is treated to my view Indian Football Association should
have been abandoned for all practical not take such a destructive view.
purpose, it must be held that no match at all
10 took place, in other words the match took 12. On the contrary Mohan Bagan Club
50 Authorities should have taken care that before
place was non est in the eye of law. Under
such circumstances it is difficult to uphold a allowing such a player to play in such a
contention that even the match is abandoned position they should have enquired about the
and everything in the said match is treated as view of the Indian Football Association about
15 null and void, but the yellow card shown in the effect of such an abandoned match, in
such a match remains valid and carried 55 which the said player was shown yellow card.
forward for the purpose of punishment. Such Such a big club should not act in such a
an interpretation, as already held, could not be cavalier fashion and in my view the club also
given as that would lead to an absurd situation had not acted in a responsible manner.
20 which would be destructive of the rules of the Similarly, I have to condemn the action of the
games. In this connection it may be 60 Indian Football Association which is the
mentioned that all the parties were quite oldest sports organisation in this part of the
ignorant about the effect of showing yellow country for taking such a step in a manner
card in an abandoned match. It appears that which is unwarranted. The said authority has
25 before the disputed match was started, no forgotten that they are dealing with the players
objection whatsoever was taken by the Police 65 and clubs engaged in sports and if the spirit of
Athletic Club and it also appears that interest sports is to be maintained, in that event, the
of any party was not affected by allowing the Indian Football Association should have acted
said player to play in such a match. In any in a manner consistent with that spirit. As
30 event, when the match was over and hereinbefore stated the action taken by the
everybody returned home knowing the result 70 Indian Football Association had produced
of the game, it is unfortunate that long injustice, absurdity, anomaly or contradiction
thereafter sitting in a cool room, the result of and as such I have to take this view even
the said game was nullified and instead of though the rules do not provide in clear words
35 giving three points to Mohan Bagan Club the that order of suspension is to be made in
same was taken as if in the said match Mohan 75 writing, I am inclined to hold that such a
Bagan Club had lost in the match and three notice is imperative. Otherwise, it could create
points were given to a team who was defeated good deal of complication and produce results
on the playground. It is not expected that the adverse to the interest of sports. Such a
40 Indian Football Association who is dealing responsible authority is not expected to take

action which is on the face of it unreasonable 40 and 26th July, 1986 the defendant No. 1 and
and they must remember that they were Rajasthan Club and Port Trust respectively,
dealing with the conduct of the players. In the the said Mastan Ahmed was debarred from
Sports World, the spirit of sports had to be playing and/or participating in the
5 maintained and that the rule must be made immediately next match (held on 29th July,
clear and there was no rule authorising the 45 1986 between the defendant No. 1 and Police
Indian Football Association to count an A.C.) following the match held on 26th July,
abandoned match for the purpose of 1986?
imposition of penalty. When such a severe
10 penalty is imposed it is expected that the rules Ans. No.
must be clear so that one can understand the Ques. II) Whether a caution, given to a player
matter. It is now a firmly established principle 50 for the second time in a match which could
of law that where misconduct when proved not be completed but had to be abandoned
entails penal consequences, it is obligatory to due to circumstances beyond the control of
15 specify and if necessary define it with the participating teams and/or referee, would
precision and accuracy. So that any ex post remain operative and/or be binding upon
facto interpretation of some incident may not 55 such player; although the said abandoned
be camouflaged as misconduct. See the case match was subsequently replayed ?
of Supreme Court in A.L. Kalra v. Project and
20 Equipment Co. Corporation of India Ltd. Ans. No.
AIR 1984 SC 1361. In my view on the basis of
Ques. III)(a) Whether it is incumbent and/or
the languages in the rule it was neither fair nor
obligatory and/or mandatory upon the
proper on the part of I.F.A. to award three
60 plaintiff No. 1 to communicate the factum of
points to Police Athletic Club who lost in the
caution shown to any player for the second
25 play ground and deduct three points from the
time to any participating team in writing or
account of Mohan Bagan A.C. who won the
otherwise ?
match in the field. The fruit of the victory
cannot be allowed to be taken away on the Ans. Yes.
basis of such vague rules causing serious
30 prejudice to a football team, I.F.A. dealing in 65 Ques. III)(b) If so, whether non-
such matter relating to football matches did communication of the occurrence of such
not play fairly though they were required to offence and caution made in respect thereof,
do so. to any participating team would absolve such
offending player from the offence and
13. Accordingly the questions are answered as 70 participation of the said player in the
35 follows :- immediately next match would not amount to
illegal and unlawful participation by him ?
Ques. I) Whether by reasons of showing
"Yellow Card" by the Referee to Sri Mastan Ans. No.
Ahmed (a player of the defendant No. 1) in
two league matches held on 15th July, 1986

14. All the parties submitted before this court

that this court should not enter into the
question as to whether this application under
Rule 1 of Chapter 13 of the Original Side 35
5 Rules of the Calcutta High Court (sic) and the
parties submitted that the decision should be Joachim Carvalho
made by this Court so that the controversy in
v
the field should come to an end. Accordingly,
I hold that this decision will not operate as a Union of India and others
10 precedent and this decision is made in the
facts and circumstances of this particular case
without entering the question as to mandatory
40 Case No :W.P.(C) No 8422 of 2011
(sic) of the application.
Bench :A. K. SIKRI, Rajiv Sahai Endlaw
15. Since the championship in respect of the
15 Calcutta Football League Group 'A' Matches Citation :2012 Indlaw DEL 4256
is pending for the year 1986 for a long time,
the Indian Football Association is directed to The Judgment was delivered by : A. K. Sikri, J.
hold its meeting within a week from this date
1. This petition is filed in public interest by
and to dispose of the matter according to the
45 the petitioner who is a former member of the
20 Rules.
Indian Hockey Team and an Olympian. The
petitioner claims himself to be a public
spirited person. He states that he was awarded
the Arjuna Award for his outstanding
50 achievements as one of India's best captains
and has a genuine interest in the future of the
sport of Hockey in India.
25 2. This petition has been filed on the ground

that hockey players of eminence are being
55 subjected to threats and are being prevented
from participating in a world class hockey
tournament being organized in the country.
3. The respondents impleaded in the present

writ petition include the Union of India
60 through the Ministry of Youth Affairs and
30 Sports (respondent no.1), Hockey India
(respondent no.2), Indian Olympic
Association (respondent no.3) and Nimbus
Communication Ltd. (respondent no.4).
Respondent no. 1 is, amongst other, assigned 40 with varying domestic and international
the role of creating infrastructure and experience entered into contracts with the
promoting capacity building for broad basing company for a 3 years? period to participate in
sports as well as for achieving excellence in this domestic event sanctioned by the
5 various competitive events at the national and respondent no.4. Many players want to
international levels. 45 participate in these competitions.
In this regard, it has introduced the National 5. Some restrictions, however, are put by the
Sports Development Code of India through a respondent no.2 in the way of hockey players
statutory notification with effect from to participate in the aforesaid hockey events
10 31.01.2011 with the objective of sports contemplated by the respondent no.4. It
development, inter alia, through adoption of 50 would be pertinent to mention here that
good governance practices by the National though the respondent no.2 stands
Sports Federation. Respondent no.2 is a derecognized by the respondent no.1 and
Society registered under the Indian laws and even this decision is conveyed to FIH,
15 established, inter alia, for promotion of the currently it is only the respondent no.2 which
game of hockey. Respondent no. 3 is a Society 55 is recognized by the FIH as a National
registered under the Indian laws and is the Association admitted into the membership of
apex body in the field of Olympic Sports in the FIH as the Government Body for India.
India. Respondent no. 4 is another National Therefore, insofar as in the national events are
20 Sports Federation which is recognized by the concerned, the FIH recognizes the
Central Government for management and 60 respondents no.2 and not the respondent
regulation of hockey in India. Respondent no. no.4. The FIH has also introduced new bye-
5 is a company incorporated under the laws in respect of its own functioning as well
Companies Act, 1956 which is, inter alia, as that of its member National Association,
25 engaged in the business of sports promotion under the shelter of these bye laws respondent
and event management in India. 65 no.2 enacted a code of conduct adopting the
principles forming the basis of the FIH bye-
4. The respondent no.1 has derecognized the laws and providing for disciplinary action
respondent no.2 as the National Federation against Indian players who participate in
for the Management, Control and Promotion domestic events which are not sanctioned by
30 of Hockey in India and conveyed this decision 70 respondent no.2. Respondent no.2 in exercise
to the FIH on 06.08.2010. In its place, the of its functions as the member of the FIH has
respondent no.4 has been recognized as the refused to grant sanction in favour of this
National Sports Federation for Hockey in event. Consequently, the players who have
India by the respondent no.1. However, FIH signed the contracts with the sports promoter
35 continues to recognize the respondent no.2 75 are faced with the threat of disciplinary action
only. The respondent no.4 sanctioned a new and a potential denial of the opportunity to
domestic Hockey event to be organized with a represent India at international hockey events
reputed sports promotion and event
management company. Indian hockey players

in terms of the Code of Conduct introduced respondent no.4 was suspended with
by Respondent no.2. 40 immediate effect and that respondent no. 3
was to form an Ad-hoc Committee of five
6. By this petition, the petitioner is challenging members to administer and manage the affairs
the decision of the respondent no.2 to give of respondent no.4 till all issues relating to its
5 effect to the "Code of Conduct For all Players
governance were finally resolved.
in Domestic/International Competitions"
(hereinafter referred to as the "Code of 45 10. The respondent no.4 filed Writ Petition
Conduct") under which Indian Hockey (Civil) No.3713/2008 in this Court on
players including the petitioner would be 13.05.2008 against its suspension by the
10 made subject to the disciplinary action by Executive Council of respondent no.3, and
respondent no.2 and denied the opportunity later against the suspension ordered by
to represent India at International Hockey 50 respondent no.1 vide letter dated 12.05.2005.
events if the said players participated in any During the pendency of this Writ Petition,
event which is not sanctioned by respondent respondent no.3 disaffiliated the respondent
15 no.2. no.4 as the National Sports Federation for
Hockey in India on 10.05.2009, and the ad-
7. Now we proceed to take note of the events 55 hoc committee appointed by the Executive
in some detail which led to this litigation Council of respondent no.3 was dissolved and
between the two federations. disbanded.
8. Pursuant to the unification of the 11. On 20.05.2009, respondent no.2 was
20 respondent no. 4 and the Indian Women's registered as a new society, and was given
Hockey Federation to form the India Hockey 60 provisional affiliation on 28.05.2009. The
Confederation (hereinafter referred to as respondent no.1 also granted recognition to
"IHC") on 04.11.2000, the FIH approved the the respondent no.2 pursuant to the affiliation
formation and constitution of IHC for the by the respondent no.3.
25 governance of the game in India.
12. By order dated 21.05.2010, the suspension
9. Since 2001, all matters concerning hockey 65 and disaffiliation of respondent no.4 by the
in India were administered by the IHC which respondent's no.1 and.3 were quashed by this
conducted International events with the Court. It was held:
approval of the FIH. Citing several reasons,
30 which included the mis- governance "This court believes that even now it is not too late for
accountable to the respondent no.4, the the MYAS to get its act together and set things in
Executive Council of the respondent no.3 70 order with the cooperation of both the IHF and the
suspended the respondent no.4 by a IOA and any other body that may have been set up.
resolution dated 28.04.2008, from its position Instead of again panicking about the revival of the
35 as a National Sports Federation under the IHF, it requires to be seen how the interests of hockey
guidelines for assistance to National Sports in India can be best served. Sports bodies have to have
Federation, 2001. It was intimated to 75 a degree of autonomy with the government playing the
respondent no.4 and all its state units that role of an effective regulator. They must be allowed to
function in a democratic manner with persons really hockey in India, in the light of the judgment
interested in developing the game participating in its 40 dated 21.05.2010 of this court in Writ Petition
affairs. The knee-jerk reaction to losses at (Civil) No.3713/2008. The respondent no.1
international events, which are inevitable in competitive addressed a letter dated 06.08.2010 to FIH
5 events, and looking for persons to blame, cannot be informing them about the development as
conducive to a healthy development of any national regards the restoration of the status of
sport. 45 respondent no.4 as the National Sports
Federation for Hockey in India, and the
For a proper enquiry into the problems besetting consequent de-recognition of respondent
Indian hockey the cloud of „suspension? over the IHF no.2, with the request to not assign any
10 should be lifted. The past should be put behind and
international tournament or have any
new beginning made. The submission made by Mr. 50 commercial dealings with respondent no.2
Harish Malhotra that IHF;s suspension should thereafter. The Respondent no.2 challenged
continue is accordingly rejected. For the aforementioned the aforementioned letters dated 05.08.2010
reasons the decision dated 28th April, 2008 of the and 06.08.2010 before the Supreme Court in a
15 IOA placing the IHF under suspension and the Writ Petition u/art. 32 of the Constitution of
decision dated 10th May, 2009 of the IOA 55 India. The matter is still pending adjudication.
disaffiliating the IHF are hereby quashed. The However, certain interim arrangements were
decision dated 12th May, 2008 passed by the permitted at the request of respondent no.2
MYAS temporarily withdrawing the recognition of the by the Supreme Court while keeping in view
20 IHF and the subsequent order dated 10th/11th the urgency in certain situations. Some of
August 2009 passed by the MYAS derecognizing the 60 these orders are as under:-
IHF are also hereby quashed."
(a) Order dated 17th August, 2010 whereby
13. Respondent no.1 addressed letter dated the Apex Court took note of the fact that FIH
27.07.2010 to the office bearers of the had recognized the respondent no.2 Hockey
25 respondents no.2, 3 and 4 issuing a India and team selected by it alone would be
clarification in light of the decision of this 65 permitted to participate and in view thereof,
Court on 21.05.2010. It was stated in this following directions were given:-
letter that there were two recognized National
Sports Federations, only one of which, "In the circumstances, pending further orders, we
30 namely, Respondent no.2 enjoyed the support permit the petitioner (hockey India) and the second
of FIH. In view of the same, the Respondent respondent (IOA) to finalize the Women Hockey
no. 1 undertook to comply with the directions 70 Team for participation in the World Cup and take all
of this Court and to resolve the matter in the necessary steps in that behalf for sending the team so
best interest of hockey in the country. that participation of Indian Team in the World Cup
is assured."
35 14. By a speaking order dated 05.08.2010,
respondent no.1 derecognized respondent (b) Order dated 27th August, 2010 wherein
no.2 as the National Sports Federation for the 75 the Supreme Court considered the question
management, control and promotion of who will field the Men's Hockey Team and

Women's Hockey Team in the the entire cost of the said domestic event and
Commonwealth Games to be held in 40 was to pay the respondent no.4 an annual fee
October, 2010 in New Delhi. The Court again of Rs 30 crores for the development of
permitted the Olympics Association to field Hockey in India. It is pertinent to note that
5 the team in collaboration with the Hockey the said domestic event was the first of a
India/respondent no.2. financially sustaining hockey event in India.
(c) Orders dated 22nd October, 2010 which 45 16. One of the most welcome features of the
was passed for making arrangement in regard said domestic event was that the earnings of
to participation of the hockey teams in the the players participating in the event were
10 Asian Games which was held in China in stipulated under the contract, which also
November, 2010. In this order the Hockey guaranteed a minimum payment along with
India (R.2), Indian Hockey Federation (R.4) 50 income from endorsements and performance
and Indian Olympic Association were directed incentives available to the players.
to held discussion with Sports Ministry and
15 sort out the matter.
17. The respondent no.5 entered into three-
year agreements with over 140 Indian hockey
(d) Orders dated 11th March, 2011 directing players to participate in the said domestic
that interim orders dated 27th August, 2010 55 event. Under the terms of the agreement, the
would apply in regard to participation of the contracting player is required to perform his
hockey teams in future games as well which services exclusively during the period
20 would mean permitting the respondent no.2 beginning from the date of signing of the
to select the team and send the team in agreement till 30.04.2014, and this exclusivity
international squad. 60 condition was made applicable where the
contracting party was playing for his national
(e) Orders dated 8th April, 2011 whereby team, or in test matches for his international
leave is granted and while expediting the team.
25 hearing, ad-interim orders are directed to
continue till further orders. To sum up, the 18. Once these players signed the agreement
effect of the aforesaid orders of the Supreme 65 with the respondent no.5 for participating in
Court is that insofar as international events the aforesaid domestic event, they come
are concerned, authority is given to under threat insofar as their participation in
30 respondent no.2 to select Indian team and international events is concerned. As pointed
send the same since it is respondent no.2 out above, the respondent no. 2 has enacted
which is recognized by FIH. 70 Code of Conduct as per which disciplinary
action can be taken against any Indian player
15. In December, 2010, the respondent no.5, who participate in domestic event which is
a reputed sports promoter and event manager not sanctioned by the respondent no.2.
35 launched "Worlds Sports Hockey"
(hereinafter referred to as the "said domestic ……
event") with the sanction of the respondent
no.4. the respondent no. 5 was to underwrite
20. According to the respondent no.2 this 40 22. At other level, the laudable object behind
Code of Conduct is the by- product of the organizing such domestic hockey event which
Code of Conduct prescribed by FIH and the respondent's no.4 & 5 want to organize,
respondent no.2 has no option but to adhere cannot be undermined. By participating in
5 to the FIH mandate. Otherwise, the FIH may these events, the hockey players would be able
even bar the entry of India in the 45 to make a respectful earning which has eluded
International events. the hockey players of this country till now. It
may attract more youngsters to the game of
21. It is a piquant position that emerges at two hockey, who at present are driven to other
levels. At first level, the situation is that sports as greener pastures. This may also
10 though the respondent no.1 i.e. Union of 50 sound well for the future of the game of
India has derecognized the respondent no.2 hockey in this country and the event may
and in its place has given recognition to serve a public purpose. Thus, not only new
respondent no.4, insofar as FIH is concerned, domestic hockey events to be organized by
it has not accepted this decision of the the respondent no.4, with a reputed sport
15 respondent no.1. As per the FIH, the 55 promotion and event management company,
respondent no.2 currently stands recognized. may prove to be a boon for the Indian hockey
The FIH is the controlling body of players, boosting their morale and securing
International events and all participating them financially, but there are also good
countries have to conform and subscribe to chances of it lending valuable support to the
20 the rules made by FIH for participating 60 promotion and up-liftment of the game of
countries. Furthermore, having regard to the hockey in this country and to regain its past
interim orders passed by the Apex Court, glory.
insofar as International events are concerned,
as of now, the respondent no.2 is the body 23. This conflicting scenario at the aforesaid
25 which represents India. Therefore, when two levels poses a difficult problem, solution
question of selecting National Hockey Team 65 whereof is not easy. If these players
for participating in International events arises, participate in the domestic events, their
it is the respondent no.2 which is to play participation in the international events is
dominant and exclusive role and send teams threatened. If they do not participate in the
30 to such international events. While doing so, proposed domestic hockey events planned by
the respondent no. 2 is also supposed to 70 the respondent no.4 that may not be good for
ensure that the rules and regulations as well as the sport of hockey in the country. One cause
Code of Conduct of FIH is respected and of this unfortunate scenario is the fight
followed. Once, this is kept in mind, it between the respondent no.2 on the one hand
35 becomes difficult for the players to participate and the respondent no.4 on the other. Before
in the domestic events proposed to be 75 we ponder over the issue and find the
organized by the respondent no.4 and 5 as solution, we would like to make certain
that may debar such players from participating observations on the basis of arguments
in international competition.

advanced by the learned counsel for the 40 aforesaid effective dates. Minutes of the
parties. meeting of Hockey India and Indian Hockey
Federation held on 25th July, 2011 confirm to
24. The FIH had written letter dated 15th the same effect as per which the respondent
March, 2011 referring to the proposed events. no.2 Hockey India itself confirm that they
5 No doubt, in para 3 of this communication, it 45 would not impose restrictions on the
is stated that the event known as "World participation of the players who were
Series Hockey" is not recognized or a contracted before 1st April, 2011 in the
sanctioned event as far as the FIH and its proposed World Series Hockey league being
members are concerned, the main concern organized by respondent no.4 (IHF). The only
10 expressed in this communication is that the 50 stipulation made therein was that such
dates of the events were clashing with period commitment should be subject to training
when the players were required for national schedule in the national camps and duration
representative duty (which included for which the players can be spared for such
participation in international events as well as participation.
15 training and preparation for those events). It
was for this reason, the FIH impressed that it 55 26. It has also come on record that the
had adopted regulations requiring members respondent no.2 has already organized
not to participate in unsanctioned events and preparatory campus for Olympic Qualifier
requiring players to choose whether to no.1. The first camp was to be held from 15th
20 participate in sanctioned or unsanctioned December, 2011 to 6th January, 2012 i.e. for
events. At the same time, in para 5.1 it is 60 23 days, though according to respondent no.2
clarified that the new regulations would apply it was only a fitness camp. Second camp was
in respect of the commitments made after from 16th January, 2012 till the Olympic
31st march, 2011. It would mean that new Qualifiers no.1 i.e. for a period of 40 days
25 regulations are not applicable for those which was a skill camp.
commitments which are made prior to 31st
65 27. When the matter is to be looked into in
March, 2011. It is in this context in para 5.2
wherein it is further mentioned by FIH that this perspective, according to us, the problem
players are required to ensure that in their can be resolved once it is ensured that the
30 contractual arrangements they retain the domestic event to be organized by respondent
ability to comply with the regulatory no.4 with respondent no.5 as sponsor, do not
requirements of the sport and not the other 70 come in conflict with the training schedule
way around. prescribed for international events viz. not
only the international competitions but the
25. Even the Regulations of FIH clarifies that training schedule for that as well. Though,
35 they are coming into force from 31st March, originally the respondent no.4 had scheduled
2011 and will not have any retrospective 75 to start the series from 17th December, 2011,
effect and would not affect any legally binding which was somewhat conflicting with the
commitment with the national association, international training schedule, during the
organization or individual as made prior to the course of arguments it was suggested by

counsel for respondents no.4 and 5 that they 31. We may also place on record another
will not go ahead with the said domestic argument of the learned counsel for the
events "World Series Hockey" as per the 40 respondent namely regulations which are
aforesaid schedule but would be ready to framed by the FIH is based on the decision of
5 reschedule the entire event. If the dates are the experts and it is also necessary to have the
fixed in March, 2012, the apprehension of the preparatory camps for Olympic events, if
FIH can be taken care of as those dates do India wants to put a good show in the said
not come in conflict with any international 45 event. There cannot be any quarrel about this
event. argument. It is for this reason, we have
already suggested that the domestic event can
10 28. Keeping in view the boost which this
be arranged in such a manner that it does not
series can give to the game of hockey in India, come in conflict with preparatory camps or
thereby not only sub serving a larger public 50 the period when the international events are
interest, but also benefiting the individual going to be held.
players financially by participating in this
15 series, we are of the view that Endeavour 32. The writ petition stands disposed of in
should be made to hold this domestic event. terms of the observations made herein above.
All pending applications also stand disposed
29. Since the FIH is not a party nor we have 55 of.
any jurisdiction over the same, and for this
purpose cooperation of FIH is required, we Petition disposed of
20 are of the opinion that the matter can be
placed before the FIH in the same perspective
as narrated by us in this judgment. Thus,
clarification on this aspect can be sought from
FIH. At the same time, the FIH can be K. Bhaskaran and Others
25 impressed upon to sanction the event if it is
60 v
still required, more so, when the new dates to
be fixed by the organizers are not in any way Union of India and Others
clashing with the schedule fixed by the FIH
for international events.
30 30. We may place on record that counsel for Case No :Civil Writ Petn. No. 5966 of 1998
the respondent no.2 had argued that it was a and C.M. No. 11294 of 1998.
motivated petition filed by the petitioner who
65 Bench :A. D. Singh
had personal interest in the matter as he was
associated with respondent's no.4 & 5. Citation :AIR 1999 DEL 150
35 However, having regarded the public
importance of the issue, it may not be The Order of the Court was as follows :
necessary to go into this aspect.
1.This is a writ petition whereby the
petitioners seek a direction to the respondents
to announce Indian Kabaddi Team President of the Indian Olympic Association,

comprising of petitioners by clearing all the 40 as an arbitrator for resolving the disputes
formalities at the earliest so as to enable them between the above said two factions.
to participate in the 13th Asian Games at
5 Bangkok which are starting on December 6, 4. The fourth respondent herein through Shri
1998. A. K. Saha belonging to the faction led by
Shri Vats filed a writ petition in the High
2. The genesis of this case is in a dispute 45 Court of Andhra Pradesh at Hyderabad being
between two factions of the fourth Writ Petition No. 25087 of 1998 for direction
respondent, Amateur Kabaddi Federation of to the Union of India, Indian Olympic
10 India. While one faction is led by Shri Association, Amateur Kabaddi Federation of
Kuldeep Vats, the other faction is led by Shri India represented by the Secretary General.
J. S. Gehlot. Both S/Shri Vats and Gehlot 50 The Director General Sports Authority of
were claiming to have been elected to the post India and the Chairman, Railway Board, to
of the President of the said association. The accord permission to the team comprising of
15 faction led by Shri Vats under the supervision the petitioners to participate in the 13th Asian
of an observer of the Sports Authority of Games at Bangkok. The learned single Judge
India selected the Kabaddi team comprising 55 of the Andhra Pradesh High Court passed an
of the petitioners to represent India at the interim order dated November 2, 1998
13th Asian Games. According to the directing the authorities to clear the way to
20 petitioners, various Kabaddi coaching camps enable the sponsored sportsmen to travel to
were organised for them at different places Bangkok for participating in the Asian Games.
60 The Indian Olympic Association not satisfied
….. with the order of the Andhra Pradesh High
3. It is significant to point out that in Civil Court filed a writ appeal. On November 19,
Writ Petition No. 2883 of 1998 a single Judge 1998 the Division Bench of the Andhra
25 of the Rajasthan High Court passed an order Pradesh High Court directed the Arbitrator
on September 18, 1998 which had the effect 65 Shri B. S. Ojha, Vice-President, Indian
of directing the concerned authority to Olympic Association, to hear both the parties
appoint an arbitrator for the resolution of and decide the arbitration matter within three
disputes between the two factions in days from the receipt of the copy of the order.
30 accordance with the decision of the Supreme The writ appeal with the said direction was
Court in M.P. Triathlon Association through 70 disposed of with the consent of the parties.
its Secretary v. Indian Triathlon Federation 5. While the arbitration proceedings were in
1996 Indlaw SC 1712 : 1996 Indlaw SC 1712). progress, the Indian Olympic Association on
Pursuant to the direction of the Rajasthan November 23, 1998 constituted a Selection
35 High Court and in accordance with Rule XIX
Committee to select the Kabaddi team for
of the Rules and Regulations of the Indian 75 13th Asian Games. At the same time it
Olympic Association, the Indian Olympic directed the ten best players each from the
Association appointed Shri B. S. Ojha, Vice- coaching camps being held at Jaipur (by the

Gehlot faction) and Patiala (by the Vats 40 factions this unsavoury controversy has
faction) respectively to participate at the trials cropped up. It goes without saying that the
which were to be held at the National sporting interest of the country is being
Stadium, New Delhi, on November 25, 1998 jeopardised because of their inter se rivalry. It
5 along with their coaches. Pursuant to the is because of this controversy that selection of
direction of the Indian Olympic Association, 45 the team by the Indian Olympic Association
it appears that the ten players selected by each was delayed.
of the factions converged at the National
Stadium, New Delhi, on November 25, 1998 8. The question for consideration in this writ
10 for selection trials. The Committee consisting
petition is whether any illegality attaches to
of Shri Ajay Kumar Sarnik, Member the team selected by the Selection Committee
Parliament; Col. G.A. Siddiqui, Secretary 50 constituted by the Indian Olympic
(Services), Sports Control Board; Shri Asan Association. As per para 10.3 of the
Kumar, Coach; and Shri S. P. Singh, Coach, Guidelines for Assistance to National Sports
15 selected twelve players including two stand- Federations issued in July, 1997 by the
byes and notified the team to the Indian Government of India, Ministry of Human
Olympic Association on November 26, 1998. 55 Resource Development, Department of
Six of the petitioners have found their place in Youth Affairs and Sports, Shastri Bhavan,
the team. New Delhi, the Selection Committee is to be
constituted by the concerned federation
20 6. Learned counsel for the petitioner comprising of the President, the National
submitted that the petitioners having 60 Coach and eminent ex-sport persons. The
undergone extensive training under the Government of India is required to appoint
auspices of the Sports Authority of India an observer for each discipline who is to be
should be sent to the Asian Games at associated with all the activities of the
25 Bangkok to represent India in the discipline of National Federation. Since there was a dispute
Kabadi. He also contended that as per the 65 between the two factions of the fourth
direction of the learned single Judge of the respondent, which is affiliated to the Indian
Andhra Pradesh High Court the authority Olympic Association, the matter was required
should have cleared their names to enable to be resolved in accordance with the Rules
30 them to travel to Bangkok for participating in and Regulations of the Indian Olympic
the Asian Games. He also canvassed that the 70 Association. Rule XIX (iii) of the Rules and
decision of the Indian Olympic Association in Regulations of the Indian Olympic
nominating the Selection Committee at the Association provides for resolution of the
eleventh hour is mala fide and is based on disputes arising within the National Sports
35 extraneous grounds. Federations/Associations/State Olympic
75 Associations affiliated to the IOA through
7. I have given my anxious consideration to arbitration. According to the said Rule, the
the submissions of the petitioners. It is dispute is required to be placed by the
unfortunate that due to the internal Federations/Associations before the IOA for
squabblings and fight between the two

appointment of an arbitrator. On October 19, copy of the communication was presented in

1998, in consonance with the said Rule, the Court by the learned senior counsel for the
IOA appointed Shri B. S. Ojha as the IOA. Thus, the team sponsored by Shri Vats
arbitrator for resolving the disputes between cannot claim to be the team selected
5 the two factions of the fourth respondent. It 45 according to the Rules.
needs to be noticed that before the Andhra
Pradesh High Court parties agreed for a 9. Learned counsel for the petitioners
direction to the arbitrator to decide the matter submitted that according to the order passed
expeditiously. It is worthwhile to mention that by the Andhra Pradesh High Court only they
10 both the factions were represented before the can be sent to Bangkok for participating in the
50 Asian Games. As already pointed out the
Andhra Pradesh High Court by their
respective counsel. Since there was a dispute order of the learned single Judge of the
as to whether Vats or Gehlot was the Andhra Pradesh High Court was subject-
President of the fourth respondent, it was not matter of a writ appeal. The Division Bench
15 possible to associate the President of the while disposing of the writ appeal only passed
Federation in the deliberations of the 55 an order directing the arbitrator to expedite
Selection Committee in accordance with para the matter. This was a consent order. Since
10.3 of the Guidelines for Assistance to the petitioners claim that the order passed by
National Sports Federations. Therefore, the the learned single Judge was still effective
20 IOA constituted the Selection Committee in even after the order passed by the Division
pursuance of para XIX(iii) of the Indian 60 Bench disposing of the writ petition, they
Olympic Association Rules without ought to have moved the Andhra Pradesh
nominating either Gehlot or Vats thereto. The High Court for a direction to the respondents
Selection Committee constituted on to comply with the same. But they have not
25 November 23, 1998 by the Indian Olympic selected this course of action.
Association selected the Indian contingent to 65 10. Learned counsel for the petitioners has
participate in the 13th Asian Games from presented in Court an additional affidavit to
both the factions after judging their the Court Master today in which it is claimed
performance at the trial. The coach who was that the players of Gehlot faction should not
30 imparting training to the petitioners was also a have been selected to participate in the
member of the Selection Committee. There is 70 forthcoming Asian Games as they had been
no reason to doubt the bona fides of the attending to their duties in their respective
Selection Committee in selecting the best offices, thereby claiming that they had not
sportsmen for the Indian team. The arbitrator been given extensive coaching for the
35 after the selection of the team on December forthcoming Asian Games. It is not necessary
2, 1998 informed the President of the IOA 75 to go into the allegation as the matter of
that he has reached the conclusion that Shri J. selection must rest with the Selection
S. Gehlot was legally elected as the President Committee.
of the fourth respondent in the meeting held
40 at Sawaimadhopur on September 19, 1997. A

11. In the circumstances, the writ petition is

dismissed.
12. Before parting with the order I am

constrained to observe that the Indian
5 Olympic Association ought to have moved
early in the matter of selection of the team so
that extensive training could have been 35
imparted to the members thereof. The
K. Murugan
arbitrator also took considerably long time in
10 resolving the disputes between the parties. It v
should have been the endeavour of the
members of the fourth respondent to rise Fencing Association of India, Jabalpur
above the internal politics in the interest of and Others
the country. Rivalry between the members has
40
15 the potential of destroying the sport.
Case No :CIVIL APPELLATE
JURISDICTION: Civil Appeal No. 848 of
1991 etc etc. From the Judgment and Order
dated 14.12.1990 of Madhya Pradesh High
45 Court in M.A. No. 227 of 1990.
Bench :Ranganath Misra, Kuldip Singh, M.H.

Kania
20
Citation :(1991) 2 SCC 412
The Judgment was delivered by : Ranganath

50 Misra, J.
1. The Olympic games are ancient in origin.

According to the Encyclopaedia Britannica
they commenced some 3,500 years ago and
25 the name came from its association with the
55 place known as Olympia in Greece. These
games were played once in every four years
and were abolished in 393 AD by the Roman
Emperor Theodosius-I. In recent times, they
were revived in 1896 and have until now been
60 held at the turn of every four years excepting
during the first and the second world wars.
30 The Olympic games are one of the biggest
international events and provide great particularly in connection with the Olympic
opportunities to amateur sportsmen in the games and other games under the patronage
different classifications. of the IOC as well as the IOA,
2. Indian participation in the Olympic games (7) to have full and complete jurisdiction over
5 dates back to 1900 when a single 40 all matters pertaining to the participation of
representative had joined the Olympics at India in the Olympic games and other games
Paris. Gradually, such participation became under the patronage of the IOC as well as the
more systematic and broad-based. While the IOA,
Ministry of Youth Affairs and Sports of the
10 Union Government looks after development
(8) to assist in cooperation with National
of sports within the country, the management 45 Sports Federations/Associations the selection,
of the Olympic participation has been training and coaching of the teams that will
entrusted to a society registered under the represent Indian in the Asian,
Societies Registration Act (21 of 1860) known Commonwealth, Olympic and other
15 by the name 'Indian Olympic Association' (for
international competitions and tournaments,
50 under the patronage of the teams in the said
short IOA')
competitions and tournaments after selection,
3. The Memorandum of Association of this
society indicates that the principal objects of (9) to undertake with the assistance of
the society, inter alia, are: National Sports Federations/Associations the
financing, management, transportation,
20 (1) to develop and promote the Olympic 55 maintenance and welfare of teams from India
movement and amateur sport, taking part in the Olympic games and other
games under the patronage of the IOC as well
(2) to promote and encourage the physical, as the IOA; and
moral and cultural education of the youth of
the nation for the development of character, (10) to timulate the interest of the people of
25 good heath and good citizenship, 60 the country in the promotion of sports and
games in the Olympic programme, and to that
(3) to enforce all rules and regulations of the end the formation of State Olympic
International Olympic Committee (hereinafter Association for the development of sports
referred to as 'IOC') and the IOA; and games within a State and National Sports
(4) to be the official organisation in complete 65 Federations for games and sports in the
30 and sole charge of all Olympic matters in the Olympic programme.
country, 4. We have quoted most of the important
(5) to educate the public of the country as to objectives to bring it to the forefront that the
the value of amateurism in sports; I.O.A. has been brought into existence to
70 sponsor, supervise, finance, regulate and
(6) to maintain the highest ideals of control all aspects of sports activity in relation
35 amateurism and to promote interest therein, to the Asian, Commonwealth, Olympic and

international competitions and tournaments majority vote. The very rule provides as to the
under the patronage of the IOC. While its voting power of the different units composing
funding is partially out of membership fee, the IOA.
bulk of it comes from Government
5 contribution.
6. Rule 12 deals with the office-bearers like
40 the President, the Vice-President, the
5. The society has a set of rules and Secretary-General, the Joint Secretaries, the
regulations. There are five categories of Treasurer etc. For the resolution of the
members as described in rule 3. The dispute before us perhaps reference to the
management of the affairs of the Association other rules is not necessary.
10 is entrusted to an Executive Council defined
in rule 1(v). Rule 8 provides that the 45 7. The IOA was reconstituted with effect
Executive Council shall have from 28th of October, 1984, with appellant
Shri V.C. Shukla as the President. K.
(i) a President Murugan, appellant in C.A. No. 848 of 1991
(arising out of SLP 1064/91) was one of the 6
(ii) 9 Vice-Presidents 50 Joint Secretaries.
15 (iii) a Secretary-General 8. In November, 1988, Shri B.S. Adityan, one
(iv) 6 Joint Secretaries of the vice- President of the 1984 Executive
Council was elected as President for a term of
(v) a Treasurer four years. On 16th of May, 1990, there was a
55 requisition of 17 Members for a special
(vi) 7 Members elected from among
general meeting for considering the move of a
representatives of State Olympic Associations
no confidence motion against Shri Adityan
20 and
and his Executive Council. With this started a
(vii) 12 members elected from among the period of confrontation between the two
representatives of National Sports 60 groups in the Association.
Federation/Association/ SSCB. Rule 8
9. In May, 1990, the Executive Council
provides the manner of elections to be held
overruled the requisition as invalid and
25 for the Executive Council. The term of the
President Adityan called a meeting of the
Executive Council is 4 years. Rule 11 provides
General assembly at Madras for 15th of June,
the voting procedure. Clause (b) of that rule
65 1990. For the same day the other group
requires that voting if necessary in the IOA
summoned a meeting of the general assembly
Executive Council, IOA Emergency
at New Delhi. This led to Court proceeding
30 Executive Council and/or at the annual
and the Delhi High Court restrained the
general or special general meetings of the IOA
requisitionists from holding their meeting at
shall be by show of hand. However, if in a
70 New Delhi and appointed a retired Judge of
particular case the procedure has to be
the Delhi High Court as an observer for the
changed, the same will be done by a
meeting to be held at Madras. In the
35 resolution of the concerned body passed by
convened meeting of 15th of June, minutes of
the proceedings whereof have been seriously 12. Long arguments have been advanced
disputed Shri Shukla claimed to have been 40 before us by Mr. Venugopal for Shri Adityan
elected. and by Mr. Sibal for Shri Shukla. The main
contention of Mr. Venugopal is that under the
10. A little before the meeting of the 15th of rules the terms of the President and the
5 June at Madras, further proceedings were Executive Council is four years and in the
taken in Court which have been labelled as 45 absence of a clear provision for a vote of no.
collusive and manipulations for obtaining an confidence, which would curtail the period,
order for the manner of voting. The warring there could be no reduction of the period of
factions lost sight of the laudable goals of the office. It has also been contended that the
10 IOA and the purpose for which the
entire Executive Council could not be voted
Association had been set up and put their 50 out of office by a motion of no confidence
entire attention on winning control over the and, therefore, Shri Adityan had rightly
affairs of the IOA in their grip through overruled the requisition. Serious challenge
litigation. has been advanced by Mr. Sibal against the
15 11. A Single Judge of the Madras High Court proceedings taken before the Madras High
having decided in favour of Shri Adityan, the 55 Court and particularly, the learned Judge
matter ultimately came before a Full Bench making an order changing the manner of
which by its order dated 3rd of January, 1991, voting from show of hands to one by ballot in
remitted the matter to the learned Single what is stated to be a collusive proceeding.
20 Judge and appointed Justice Natarajan, a 13. This does not appear to us to be a matter
retired Judge of this Court, to discharge the 60 where individual rights in terms of the rules
functions of the President of the IOA as an and regulations of the Society should engage
interim measure. This order is challenged in our attention. Sports in modern times has
the appeal by Shri Murguan and Shri V.C. been considered to be a matter of great
25 Shukla by two different appeals being Civil importance to the community. International
Appeals Nos. 852.853 of 1991 (arising SLPs 65 sports has assumed greater importance and
1599 and 1787/91). Not content with the has been in the focus for over a few decades.
litigation in the Delhi and Madras High
Courts, the Fencing Association of India filed 14. In some of the recent Olympic games the
30 a civil suit at Jabalpur asking for declaration performance of small States has indeed been
that Shri Shukla had been duly elected as excellent and laudable while the performance
President. An application for injunction in 70 of a great country like India with world's
support of Shri Shukla having been rejected second highest populations has been
by the trial Judge an appeal had been taken miserable. It is unfortunate that the highest
35 before the High Court where a learned Single body in charge of monitoring all aspects of
Judge made a status quo order. The other two such sports has got involved in group fight
appeals arise out of proceedings including 75 leading to litigation and the objectives of the
contempt taken therein. Society have been lost sight of. The

representation of India in the IOA has been in aspect. A fresh Executive Council should be
jeopardy. 40 set up and for that purpose elections should
be held within two months hence.
15. The grooming of amateurs has been
thrown to the winds and the responsibility 18. The general assembly should be convened
5 placed on the Society has not been responded. to meet at Calcutta on 28th of April, 1991. We
This, therefore, does not appear to us to be a appoint Mr. Justice A.D. Koshal, a retired
situation where rights to office will have to be 45 Judge of this Court to conduct the elections
worked out by referring to the provisions of keeping the provisions of the rules and
the law relating to meetings, injunction and regulations of the IOA in view. Voting shall
10 rights appurtenant to elective office. What be by secret ballot. The list of voters should
seems to be of paramount importance is the be finally settled within four weeks from now
healthy conditions must be restored as early as 50 and if it is necessary to have any hearing in the
possible into the working of the Society and a matter we authorise such hearing to be
fresh election has to be held as that seems to undertaken by Mr. Justice Koshal. Until then,
15 be the only way to get out of the malady. Mr. Justice Natarajan will continue to exercise
his powers as conferred by the order of the
16. The entire nation is looking up to the 55 Madras High Court. Once the results of the
results of the competitions at the international elections are announced, Mr. Justice Natarajan
games when they are held. As we have already would cease to be in office and the
pointed out, IOA has great responsibities to Association would take over.
20 discharge in organising and streamlining the
national sport activities intended for 19. To enable Mr. Justice Koshal to discharge
international events. The monitoring has to be 60 the obligations cast upon him by this decision,
a continuous one and unless the scheme is the Ministry of Youth Affairs and Sports is
ongoing and is made result-oriented, the directed to place at his disposal a sum of
25 international performance cannot be up to Rs.25,000 (Twenty five thousand) within two
any appreciable level. weeks and a small group of assistants as he
65 may need. Payment of remuneration for the
17. The question for consideration, therefore, work done shall be fixed by the Court later.
is not as to which of the two factions should
succeed. On the other hand, it is appropriate 20. All the proceedings in the different High
30 that all the litigations now pending should Courts abate; the suit in the Jabalpur High
abate. In the interest of the appropriate Court shall stand dismissed. The contempt
functioning of the Society the litigation 70 proceedings now pending shall not be
outside the headquarters of the Society should proceeded with.
not be permitted. We accordingly direct that
35 any litigation, if at all, should only be within
21. In the course of arguments some criticism
the jurisdiction of the Delhi High Court and was advanced against the order of the High
no Court in India would entertain litigations Court providing monthly remuneration to Mr.
relating to the functioning of IOA in any 75 Justice Natarajan. We leave this aspect to be
considered by Mr. Justice Natarajan himself
and do not propose to deal with it in our

order.
22. Before we leave this matter we would like

to point that the Union of India should take
5 greater interest in organising sports both for
national and international purposes. Sports
have a role to play in building up good 35
citizens. That aspect should be kept in view.
Master Sagar Prakash Chhabria
We have a feeling that while a lot of money is
10 allotted for the purpose of improvement of v
sports, the result has been considerably poor
and deceptive. We hope and trust that this Board of Control For Cricket In India,
aspect of the criticism heard from everywhere Through its Secretary, A Society
in this country shall also be given due 40 Registered Under Societies, Mumbai
15 consideration.
Appeals disposed of
Case No :Writ Petition (L) No. 3080 of 2015
Bench :S.C. Dharmadhikari, B.P. Colabawalla
Citation :2015 Indlaw MUM 1606
45 The Judgment was delivered by : S. C.

20 Dharmadhikari, J.
…….
3. This Writ Petition under Article 226 of the

Constitution of India seeks firstly a Writ of
50 certiorari or a Writ in the nature thereof or
other appropriate Writ, order or direction
under Article 226 of the Constitution of India
25 calling for the TW-3 test report dated 1st
October, 2015, copy of which is at Annexure
55 'A' to the Writ Petition and after examining
the entire record, papers and proceedings so
also scrutinising the said report as to its
legality and validity, the same be quashed and
set aside. This Court should declare that the
60 Petitioner is qualified to play Under- 16
30 Tournament known as Vijay Merchant

Trophy, 2015-16. The further relief prayed is 40 Maharashtra Government Gazette

to issue a Writ of Mandamus or a Writ in the Notification, copy of which is relied upon so
nature thereof or any other appropriate Writ, also the records of the admission of the
order or direction directing the Respondents Petitioner's mother for delivery in Breach
5 to declare and accept the Petitioner's Candy Hospital are reflecting the Petitioner
documentary evidence submitted and copies 45 having been born on this date. Coupled with
of which are annexed as Annexures 'B' to 'I' this, the birth certificate issued by the
and permit him to participate in the process Municipal Corporation on 20th July, 2000 and
of selection of Under-16 team of Respondent the Petitioner's School Leaving Certificate,
10 No. 2 in the ensuing Vijay Merchant Trophy, Passport and Adhar Card are being relied
2015-16. 50 upon to evidence the date of birth as 12th
January, 2000 and therefore, the Petitioner
4. The Petitioner is a minor and filing this being below 16 years of age is fully qualified
Petition through his father and natural to play the tournament.
guardian Mr. Prakash Chhabria. The first
15 Respondent is a Society registered under the 6. It is then urged that the second Respondent
Societies Registration Act, 1860 at Madras 55 is in the process of selecting Cricket players
(Now Chennai). It is deemed to have been below 16 years of age and from a team which
registered under the Tamil Nadu Societies will then participate in the Vijay Merchant
Registration Act, 1975. It is the governing and Trophy, 2015-16 to be held in December,
20 regulating body for the game of Cricket in 2015. The second Respondent has, for the
India. We are not concerned as much with its 60 purpose of selection of Under-16 Cricket
composition, as it is common ground that in players, fixed 1st September, 1999 as the
matters of selection of players, holding of chronological cut off date. That only such of
tournaments at national and international level the Cricket players as are born on or after 1st
25 the acts and deeds of the first Respondent are September, 1999 would be eligible to
amenable to the Writ Jurisdiction of this 65 participate in the process of selection of
Court under Article 226 of the Constitution of Respondent No. 2's Under-16 Cricket team.
India. The second Respondent before us is Since the Petitioner was born after this
the Mumbai Cricket Association, which stipulated date, he desired participation and
30 governs and regulates the game of Cricket in for that purpose, had approached this
the city of Mumbai, Mumbai Suburban and 70 Association. It is then stated in the Petition
Thane District. It is a permanent member of that the first Respondent had adopted and
Respondent No. 1. imposed Tanner Whitehouse Test (TW-3) for
verification of age of Cricket players for
5. The Petitioner has taken the game of deciding their eligibility to participate in the
35 Cricket as a profession. The minor has 75 process of selection. This test has been
sacrificed his educational opportunities so as adopted and applied by Respondent No.1
to fully involve himself in the game of Cricket. BCCI. Thus, the results of this test +/-
He claims that he was born on 12th January, (plus/minus) to the extent indicated and to be
2000 at Breach Candy Hospital, Mumbai. The

referred in detail hereinafter are decisive of 40 conducted in the year 2013. However, in the
the age. It is therefore considered to be most year 2014, the same two players were re-tested
authentic and reliable test for determining the under the said TW-3 age verification test and
age. The computation and determination of were declared eligible. This itself shows the
5 the age of Cricket players by this method is fallacy of the said test. Among the current 40
being questioned. 45 probables for 2015- 16 Vijay Merchant
Trophy, six probables have been tested last
7. The Petitioner submits that having year. All players should be tested on same
produced authentic and contemporaneous platform and same date. The test conducted
documents maintained and/or issued by one year back maybe considered as proper for
10 public/local authorities, the date of birth 50 the last year but the same player would have
mentioned therein was not taken as grown in body in the last 12 months and if his
conclusive. The Petitioner has submitted that bone test is done in current year, the results
other methods of determining the age of would be different. Uniform pattern for
Cricket players has come under severe conducting this test has not been applied and
15 criticism. The Petitioner states that though he 55 followed.
subjected himself to such a medical test, what
has been found by the Petitioner is that its 8. It is in these circumstances that the
report cannot be said to be authentic, as there Petitioner tried to seek redressal of his
are variations. The correctness of the test grievance after having been declared ineligible
20 report, copy of which is annexed as Annexure and not qualified. In other words, the test
'A' and which holds the Petitioner to be above 60 reports not supporting the stand of the
16 years, has been challenged by pointing out Petitioner with regard to his age that after
that the Petitioner independently underwent a approaching the authorities and finding that
similar verification test based on the same there is no redressal, the Petitioner has sent an
25 methodology at Breach Candy Hospital, Advocate's notice. The Petitioner states that
which has, vide its report dated 12th October, 65 he has played in the tournaments conducted
2015 (Annexure - 'L') declared that the age of by Maharashtra School Sports Association.
the Petitioner, as on the date thereof, was The Advocate's letter having not been replied
between 15 and 16 years. Similarly, what is nor being there any other mode of redressal
30 contended is that the first Respondent that this Writ Petition has been filed.
recently decided to abandon the TW-3 age
verification test for verifying the age of players 70 9. On being served with the papers and
for Under-19 Tournament. It means that such proceedings, Respondent No. 1 has filed an
a test would not be required to be undertaken affidavit in reply. In the affidavit in reply,
35 by those who are seeking to play at that level. reliance is placed on, firstly, the qualification
Further, our attention is invited to the case of rules and secondly, on the validity of the same
two players, namely, Agni Chopra and 75 being upheld by a Division Bench judgment
Jahangir Khan, who were declared ineligible of the Hon'ble Delhi High Court, delivered
for the Cricket tournament that was on 22nd September, 2015.

10. It is in the light of the above affidavit and 40 13. Mr. Dani therefore elaborated this
the contents thereof that the Petition has been challenge by submitting that several statutes in
amended. There are sufficient grounds in the the country prescribe a particular age. There is
Petition which would indicate that the therefore an age and which is to be mentioned
5 Petitioner had knowledge of these rules and for declaring oneself as a major. In that
the policy. It is therefore that by amendment, 45 context, the statute such as the Indian
their validity has been challenged together Majority Act is referred. Secondly, birth date
with the aforementioned reliefs sought by the has to be set out for obtaining several public
Petitioner. documents and certificates. In that regard, our
attention is invited to the requirement in that
10 11. Mr. Dani, learned Senior Counsel 50 behalf under the Citizenship Act, 1955 and
appearing for the Petitioner raised three fold Passport Act, 1967. While issuing a passport
contentions. His first contention is that the and granting proof of citizenship, public
qualification rules have been determined records are relied upon. Mr. Dani would
unilaterally by the BCCI and without any submit that the Birth and Death Registration
15 support from any statutory regime. In other 55 Act, which records the date of birth of
words, there is no statute in the field which child/minor is therefore taken as authentic
empowers Respondent No. 1 to make and and conclusive proof, based on which
frame such rules. The rules override all educational and other benefits such as public
statutory records and public documents. Even employment can be sought. Therefore,
20 if the BCCI has monopoly status and controls 60 overriding all these documents no set of rules
and regulates the game of Cricket exclusively, can be prescribed. Mr. Dani, therefore, would
still, it cannot frame such rules. It cannot submit that the rules in question completely
frame such rules in the garb of being a Society disregard these parliamentary statutes. The
registered under the Societies Registration chronological age is therefore given a
25 Act, 1860. 65 complete go bye. Such rules are patently
12. The second submission is that assuming discriminatory. They are excessive and
without admitting that BCCI has power to arbitrary because the test results have been
make rules so as to declare the eligibility given a finality.
criteria of a particular age and the manner in 14. Alternatively and without prejudice and
30 that has to be determined, still, by virtue of 70 assuming that all the concerned rules and
the judgment of the Hon'ble Supreme Court stipulations therein are valid and legal, still, the
of India, it is apparent that such rules, mandate of Article 14 of the Constitution of
regulations and policy of the BCCI are India which guarantees equality before law
capable of being challenged in Writ and equal protection of law postulates a
35 Jurisdiction of this Court. They can be 75 redressal mechanism. This has to be
challenged on the ground that they are prescribed within the rules. In the absence of
arbitrary, excessive and violative of the such mechanism, the mandate of Article 14 of
mandate of Article 14 of the Constitution of
India.

the Constitution of India is breached and 40 were questioned and the Delhi High Court
violated. The Petition therefore be allowed. has upheld the same.
15. On the other hand, Mr. Saxena appearing The BCCI age verification programme 2015-
for contesting Respondent No. 1 submits that 16 clearly stated that the players would, as a
5 the Petitioner has raised a challenge to the first step, be required to submit scanned
rules belatedly. The Petitioner was aware of 45 original birth certificate for the purpose of
the fact that the chronological date of birth is identifying the chronological age and only
not determinative and final. That it is not those players who are born on or after 1st
decisive is known to the Petitioner because September, 1999 would be entitled to undergo
10 through his parents he has subjected himself the selection process specified in the age
to the TW-3 test. The voluntary submission of 50 verification policy. The salient features of the
the Petitioner to this test would denote as to same are set out in the affidavit and our
how after the results were not found to be in attention is invited to these rules, copy of
his favour that such a challenge has been which is at page 75 of the paper book. It is
15 raised. This Court therefore should not stated that there is complete fallacy in the
countenance any of the submissions of Mr. 55 arguments, as the Petitioner seeks to
Dani. The Petitioner being aware of the rules, participate in a Cricket tournament meant for
cannot now turn around and challenge them. the age group of Under-16. The Petitioner is
not seeking a Passport or any other public
16. Assuming without admitting that such a document. The Petitioner is not seeking
20 challenge can be raised, still, Respondent No. 60 admission to any educational institution nor
1 has given a complete answer to the same. It public employment. In the field of sports, it is
is a governing body for the sport of Cricket in open for the sports authorities or the
India. It is responsible for ensuring that managing and controlling bodies to prescribe
proper protocols are put in place to ensure a rules, that ensures a level playing field. In such
25 level playing field for competitive 65 rules, apart from public documents, for
participation of players in its age group determining the age and to ensure fairness and
tournaments. The first Respondent ensures transparency, other tests can be evolved and
competition between players of similar prescribed. Mere prescription and evolution
skeletal maturity. The first Respondent has of such test in addition to furnishing of proof
30 adopted scientific method of determining 70 of chronological age by itself cannot fall foul
skeletal maturity known as TW-3 method or of the mandate of Article 14 of the
test in the year 2012. This method or test was Constitution of India. There is nothing
adopted after decision of the Asian Cricket excessive or arbitrary because only the
Council in 2007 to curb the rampant menace Petitioner has come forward to question the
35 of manipulation of birth certification 75 same. There are several persons and children
documents. Since 2012 this test has been who have come forward and volunteered to
applied for all Under-16 age group Cricket undergo such tests. The Petitioner also
tournaments. It has also been adopted by initially underwent the same. In such
several sport organisations. The very rules

circumstances, when the two fields and two 40 foolproof, but this Court, in its Writ
sources of entry and participation or seeking Jurisdiction, cannot substitute it with any
opportunity are different, then, there cannot other policy, simply because that other policy
be a complaint of discrimination. There is, is better in its opinion. Therefore, it is prayed
5 therefore, nothing excessive and arbitrary that the Writ Petition be dismissed.
because the policy is uniformly applied and
now for all sport activities. Further, as a 45 19. With the assistance of the learned Counsel
precautionary measure and to avoid abuse and appearing for the contesting parties, we have
manipulation of the birth certification perused the Writ Petition and the affidavit in
10 documents for proving the age that this
reply on record. We have perused them
method has been adopted. In the together with all Annexures.
circumstances, merely because the Petitioner 50 20. We are mindful of the fact that in limited
is required to undergo the test and the results matters, the BCCI is amenable to this Court's
are not to his liking, this Court should not Writ Jurisdiction. The matter, which is
15 interfere in its Writ Jurisdiction with such a brought before us is pertaining to a
policy measure. tournament at national level and therefore it is
17. Our attention is also invited to page 77 of 55 only in this limited sphere that we are required
the paper book to clause 2(iii), wherein, it is to find out, whether this is a fit case for
stated that if the results of the two BCCI AVP interference in and exercising our Writ
20 radiological consultants tally so as to be within Jurisdiction.
the standard deviation of +/- 6 months of 21. The Petitioner has questioned the validity
each other, then, the lower TW-3 bone age 60 of the rules and by urging that the same was
will be accepted. If the results do not tally not subject matter of challenge before the
within the standard deviation of +/- 6 Hon'ble Delhi High Court. In order to
25 months, the two BCCI AVP radiological consider as to whether this submission is
consultants will be called upon to jointly correct or not, we have perused the judgment
review the AVP date of that player and 65 of the Delhi High Court with the assistance of
attempt to reach a consensus. If such a the learned Counsel. The controversy before
consensus cannot be reached between the the Delhi High Court and particularly before a
30 two, a third BCCI AVP radiological Division Bench presided over by the Hon'ble
consultant will be appointed to the Chief Justice was that the Writ Jurisdiction
analyze/interpret the AVP date of the player 70 of the said High Court was invoked by filing a
and the majority decision shall prevail. Writ Petition. That Writ Petition was allowed
18. It is submitted that this is a complete by a learned Single Judge. He issued the
35 redrerssal mechanism and ensures that no directions as are reproduced in para 1 of the
injustice is done nor a qualified player is left Division Bench judgment. Aggrieved by these
out. Once for determination of age this care 75 directions, an Appeal was preferred before the
has been taken, then, though the system Division Bench and which came to be decided
adopted and the policy chosen may not be on 22nd September, 2015. The facts have

been noted in para 2 and therein. The Writ 40 Division Bench of the Delhi High Court in its
Petitioners before the Delhi High Court judgment.
desired to participate in the very tournament,
namely Under-16, organised by the BCCI in 22. It is such a controversy and which is
5 the year 2012-13.
identical to the one before us that was
considered by the Delhi High Court and the
Their case was that they were born on or after 45 Division Bench held as under:-
the cut off date and therefore eligible to
participate. However, in the age determination 6. As could be seen from the material
test conducted through TW-3 method, the available on record, from 01.04.2010, the
10 Petitioners were found to be not under 16 Ministry of Sports, government of India
years of age. One of the Petitioners was held adopted a National Code Against Age Frauds
eligible to play, but the other Petitioners were 50 in Sports (NCAAFS). The said Code set out
found to be ineligible to participate. They also the procedure for medical examination by
relied upon the birth certificate issued to them medical and scientific testing paramount
15 under the Registration of Births and Deaths which are to be conducted by Sports
Act, 1969, the School Leaving Certificate and Authority of India and National Sports
the Passports. The Writ Petitions were 55 Federations. The Working committee of
contested precisely on the same grounds as BCCI at its meeting held on 12.05.2012 in
are urged before us. The BCCI pointed out Chennai resolved to adopt the TW3 policy for
20 that this is a most authentic and scientific all future BCCI Under-16 age group
method of determining age adopted at the tournaments and the same was communicated
national level. It is also adopted by 60 to the concerned radiology centers inviting
international bodies. It prevents age them to be partners in the process. The details
manipulation. That is evolved after it was of how the test was to be conducted were also
25 revealed that birth certificates were altered conveyed. The BCCI also conveyed to the
and changed in South Asia. That is how the affiliated State Cricket Associations the AVP
age testing process and which was scientific 65 Rules and Regulations of BCCI which are to
and more accurate was adopted. The learned be followed for all Under-16 players. The said
Single Judge did not accept this stand and AVP became effective from 01.09.2012.
30 opined that it would be highly unreasonable if 7. It is also relevant to note that BCCI is the
despite submitting authentic and genuine governing body for the sport of cricket in
documents the Petitioners are not given 70 India. The Age Verification Programme has
opportunity to participate and play. Some been undertaken by BCCI to ensure a level
medical opinion, therefore, cannot override playing field for competitive participation of
35 the contents of the documents and obtained players in its age group tournaments by
from statutory authorities. In furtherance of ensuring competition only between players of
such a view and opinion, the learned Single 75 similar skeletal maturity.
Judge allowed the Writ Petitions/disposed
them of with directions reproduced by the 8. As rightly pointed out by the learned
counsel for the Appellant/BCCI, the
petitioners never challenged the policy of 40 Merely because the age determined by TW3
BCCI to adopt a scientific method of method did not tally with the birth certificates
determination of the age. It is not in dispute and other documents produced by the
that BCCI was earlier adopting GP method petitioners, they cannot now turn around and
5 which is also one of the bone age testing seek a mandamus directing BCCI to rely upon
methods for determination of the age of 45 the birth certificates.
players. From 01.09.2012 onwards, the BCCI
has started adopting TW3 method in the place 11. Having regard to the admitted fact that
of GP method since TW3 method is found to BCCI has been adopting the scientific method
10 be more authenticated scientific method all
of bone age test for age determination of
over the world. The fact that all the players for all Under-16 tournaments for the
50 past several years and that the petitioner were
participants in Under-16 tournaments are
subjected to the age determination test by very well aware of the said fact and
TW3 method is also not in dispute. particularly in view of the undisputed fact that
all the players participated in the Under-16
15 9. Under these circumstances the policy tournaments in the year 2012-13 were
decision taken by BCCI for adopting TW-3 55 subjected to age determination test by TW3
Tournaments cannot be held to be based on method, the impugned action of BCCI cannot
either irrational or extraneous criterion. The be held to be arbitrary, unreasonable or
decision of BCCI, according to us, stands to discriminatory.
20 the test of reasonableness and under no
circumstances can be held to be against public 23. We are, with respect, in complete
interest. The law is well-settled that such a 60 agreement with the above views. We are also
decision does not warrant interference under mindful of the fact that the Division Bench
Article 226 merely because it is possible to judgment of Hon'ble Delhi High Court has
25 take a different view.
only a persuasive value as far as this Court is
concerned. Therefore, apart from the
10. We are also of the view that BCCI cannot 65 observations and conclusions in the Division
be expected to have the method of Bench judgment, independently we have
verification of genuineness of documents examined the record.
which are given as proof of age by the players
30 from all over the country. Evidently, the bone 24. We have found from the record that the
age test adopted by BCCI is to avoid Petitioner does not claim an absolute right to
discrimination between the players and to 70 participate in the tournament and being
ensure a level playing field in age group selected for the same. The Petitioner is aware
tournaments. It may be added that even the that before he can actually play as a part of the
35 petitioners did not raise any objection to the team, he would have to undergo a selection
procedure/method of age determination process. For participation in such a process
being adopted by BCCI and had voluntarily 75 and being included therein, he would have to
subjected themselves to the age determination satisfy the authorities that he is of the required
test by TW3 method conducted by BCCI. age. Meaning thereby, he is below 16 years of

age. Apart from producing documents and or participate in a sport activity only on the
records certifying his age issued by public 40 strength of this chronological age proof.
bodies and statutory/legal authorities, he
would have to undergo the TW-3 test. The In the absence of any other rule or policy,
5 Petitioner underwent such a test and the may be such a claim could be raised, however,
results thereof indicated that he is ineligible once the participation in the sport activity is
and not qualified being over 16 years of age. subject to the policy to be determined by the
45 managing and controlling authority like BCCI,
The +/- criteria evolved also cannot come to then, parties like the Petitioner cannot ignore
his aid and assistance. That this method has or bypass the same or call upon the Court to
10 been chosen by sports bodies and for several ignore or bypass them. The parties cannot
sport activities at national and international insist that the Court must rely on the
level and hence adopted by BCCI. That is a 50 chronological date of birth in preference over
policy decision with which this Court cannot such rules. Such a plea at best can be raised,
interfere in its Writ Jurisdiction. One cannot but it would have to be substantiated. It
15 equate a sport activity with a right to obtain a would have to be demonstrated and proved
Passport or other certificates certifying the that the policy or rule is arbitrary,
age, place of residence, occupation etc. 55 discriminatory or its application has resulted
Similarly, when the date of birth is entered in in gross injustice and material prejudice. That
the local body record by relying on the it takes away the level playing field and
20 materials produced from the concerned excludes eligible persons from participating in
hospital where the child was delivered or born sport activities undertaken by monopoly
these, could, at best, be a primary document 60 organisations like the BCCI. Such is not a case
enabling the child or person to later on claim before us. We have not found from the
certain benefits. The Registration of Births records that the BCCI has acted arbitrarily,
25 and Deaths Act, 1969 requires registration of unreasonably or has discriminated by only
births and deaths and the obligation and duty excluding the Petitioner from the selection
in that regard is prescribed. 65 process. The tests have been conducted on
several participants. Some of them may have
That obligation is to be discharged by a public been found to be of the required age, some
body. The entries therein are based on may not have been. However, merely because
30 medical records. Therefore, the chronological the test results are not positive or to the liking
date of birth is mentioned therein. That would 70 of the Petitioner, we cannot discard them.
facilitate the parties like the Petitioner in There is no reason to disbelieve the same
obtaining several benefits or enforcing rights because the tests have been conducted by
under several statutes and policies of the experts. Pertinently, the Petitioner does not
35 State. However, as a matter of absolute question the qualification of the experts nor
proposition no right much less a vested one, is 75 of the institution or the organisation where
conferred in the Petitioner. He cannot claim the tests have been conducted. There is no
that he must be allowed to play a tournament complaint about the genuineness or

authenticity of the records of the test nor it is 25. We are, therefore, not in agreement with
said that the results cannot be believed and 40 Mr. Dani that the proof of chronological age
relied upon. should ordinarily be accepted and no other
method or test for age verification ought to be
Once the tests have been conducted by the prescribed. The proof of ones' date of birth
5 experts in the field and they indicated the and skeletal maturity are two different things.
skeletal maturity as per the accepted standard, 45 If the chronological proof of age cannot be
then, we do not think that in our Writ held to be decisive and the documents in that
Jurisdiction we must interfere with the actions behalf could be manipulated and may be
of the BCCI. As held by the Delhi High misleading, then, the determination of age by
10 Court, if the procedure for medical a scientific method or process can definitely
examination is set out in the rules and that is a 50 be adopted and prescribed. The BCCI,
method adopted by Sports Authority of India therefore, was fully empowered to make the
and National Sports Federations, then, all the rules or prescribe the policy. That cannot be
more the selection by such a test and its struck down or quashed on the ground that
15 adoption by the BCCI cannot be interfered in there is no such process or method prescribed
our Writ Jurisdiction. Eventually, it is not for 55 while enabling parties like the Petitioner to
this Court to substitute its views with that of obtain proof of citizenship or passport. That
the experts in the field. In the matter of is a distinct process and statutory right. For
holding tournaments, selecting players, it is that purpose under those statutes one may
20 the BCCI which has been conferred the rely on the proof of age as certified and set
status. Its registration as a Society coupled 60 out in the birth records and certificates.
with the status given to it enables it to frame
policies and make rules. If the tournaments However, once a sport activity is being
are organised and held by BCCI consistent undertaken and managed, then, the
25 with the rules, then, we do not find that the controlling and regulating authorities are not
Petitioner's complaint is justified. The Delhi precluded from prescribing a set of rules and
High Court has found that the Ministry of 65 framing a policy for participation in the same.
Sports, Government of India adopted a Any policy or criteria of age etc. can be
National Code Against Age Frauds in Sports. prescribed. That is not questioned. This
30 The said Code sets out the procedure for power to make a rule or frame a policy may
medical examination by medical and scientific also provide for a procedure in order to
testing paramount which are to be conducted 70 enable the controlling authority or governing
by the Sports Authority of India and National body to record a satisfaction that in
Sports Federations. The rules are thus valid, tournaments held for children under a
35 legal and binding. They ensure that players of particular age only those participate and play
similar skeletal maturity complete with each who fulfill the age criteria. The procedure
other. It is to ensure a level playing field for 75 prescribed could include subjecting the
competitive sports at national level. candidates to medical and scientific tests.
These are recognisied and accepted methods

and standards world over. The sports bodies 40 mechanism, inasmuch as the BCCI has
subject the child to tests to determine the age, ensured that the test results are analysed and
sex etc. We are not concerned with the reviewed. They are analysed and reviewed by
wisdom of prescribing the same. They may be independent experts. On account of any
5 held in exceptional cases or as a rule before difference of opinion amongst them, the
allowing the child to be a part of the selection 45 redressal mechanism ensures that the player
process. Right to engage oneself in a activity does not suffer. Therefore, on matters of
like sport and provision of a opportunity for determination of age by scientific method or
participation therein by the State or its agency by medical examination over which the minor
10 may be claimed as a part and parcel of the player may have no control, the BCCI has in
larger Constitution guarantee enshrined in 50 terms of the mechanism carved out within the
Article 21 and directive principles of the rules, ensured that he does not suffer and is
Constitution but that carries no assurance of allowed to participate. That is how the +/-
selection in a team sport necessarily. The criteria has been determined. A better option
15 selection process must be gone through by all. could have been thought of is argued,
These fundamental principles are undisputed. 55 however, we cannot only on that ground
interfere with the said rules and the policy as a
26. In these circumstances, we do not find whole.
that the BCCI's rules and as challenged in the
present case can be quashed and set aside on 27. We have also found that there is no
20 the ground that for obtaining of passport or substance in the plea of discrimination. The
other benefits such tests are not prescribed. 60 only averment in the Petition is that the
We also cannot term the BCCI's actions and Petitioner has learnt that in the case of TW-3
eventually the policy as noted above as age verification test conducted in the year
excessive, arbitrary or discriminatory in any 2013 for this very tournament, two of the
25 manner. We find that the BCCI has placed players were declared ineligible. They were
before us adequate materials enabling us to 65 declared ineligible for the Cricket tournament
hold that it has not disregarded any statute of 2014. However, in the year 2014, the same
while implementing the policy. It has not two players were retested in the said TW-3
given the chronological age a complete go bye test and were declared eligible. Apart from
30 or discarded it totally. It has, in addition to making such a bald assertion and leveling
accepting the relevant documents, also 70 vague allegation, we do not find any
prescribed the test and the reasons for document placed on record in relation to
prescription of the same have a nexus with these players for substantiating these
the object sought to be achieved. That all allegations. We do not have any proof of
35 those who are of the required age are able to these players having been retested as claimed.
participate and compete with each other. 75 Whether they were found eligible by a
None is excluded simply because there is a mechanism of retesting or the results of their
complaint about the age or he being under or test underwent the process of review, as
over age. We also find that there is a redressal carved out in the policy, is therefore not

known to us. We cannot indulge in guess

work and take cognizance of such a
complaint. Therefore, we do not think that on
such vague grounds we can interfere with the
5 subject decision.
28. As a result of the above discussion and

being in complete agreement with the view of 35
the Division Bench of the Hon'ble Delhi High
Court so also on our independent appraisal of
10 the materials, we cannot interfere with the Rhiti Sports Management Private Limited
impugned decision of the BCCI in our limited
Writ Jurisdiction. The Writ Petition therefore v
fails. It is dismissed. Rule is discharged
Power Play Sports and Events Limited
without any order as to costs. The parties to
15 act upon an authenticated copy of this order. 40
Petition dismissed Case No :O. M. P. (Comm) 394/2017
Bench :Vibhu Bakhru
The Judgment was delivered by : Vibhu

45 Bakhru, J.
20
Introduction
1. Rhiti Sports Management Private Limited

(hereafter 'the petitioner') has filed the present
petition under Section 34 of the Arbitration
50 and Conciliation Act, 1996 (hereafter 'the
Act') impugning an order dated 19.09.2017
(hereafter 'the impugned order') passed by the
25
Arbitral Tribunal constituted by a sole
arbitrator (hereafter 'the Arbitral Tribunal').
55 By the impugned order, the Arbitral Tribunal
has rejected the petitioner's application filed
under Order VIII Rule 1A(3) Code of Civil
Procedure for taking "on record the e- mail
dated 06.09.2013 and the Services Agreements
60 dated 23.07.2010 and 24.09.2012"
30

2. The first and foremost question that falls 3.3 It is claimed that the petitioner paid the
for consideration of this Court is whether the agreed fee for the initial term of three years;
impugned order can be construed as an however, thereafter the petitioner failed to pay
arbitral award that is susceptible to challenge 40 the agreed fee on renewal of the sponsorship
5 under Section 34 of the Act. agreement by a sponsor - Gulf Oil Limited.
The respondent claimed that it sent various
Factual context communications demanding the said fee;
3. Briefly stated, the aforesaid controversy however, the petitioner failed and neglected to
arises in the following context: 45 pay the same.
3.1 The India Cements Limited (ICL) was 3.4 In view of the above disputes, the
10 granted franchise rights by the Board of respondent invoked the arbitration clause as
Control for Cricket in India (BCCI) for contained in the Agreement. However, the
forming a cricket team to represent the City of petitioner failed to nominate an arbitrator.
Chennai in twenty-twenty Cricket 50 This led the respondent to file an application
Tournaments. The said team is now called under Section 11 of the Act (ARB P. No.
15 "Chennai Super Kings". The petitioner 265/2015) in this Court. The said application
(arrayed as respondent in the arbitral was allowed by an order dated 20.08.2015. It
proceedings) claimed to have been granted the was further directed that the arbitration shall
sponsorship rights exclusively by ICL for its 55 take place under the aegis of Delhi
team Chennai Super Kings for the period International Arbitration Centre (DIAC) and
20 2011-13. The petitioner was desirous of in accordance with its Rules.
procuring sponsorship for the Chennai 3.5 The respondent filed its Statement of
Team for league matches and the respondent Claims, inter alia, claiming a sum of Rs. 30
claimed that it had the expertise, knowledge 60 lakhs along with interest at the rate of 18%
and the resources to procure such per annum.
25 sponsorship for the Chennai team.
3.6 The petitioner filed its Statement of
3.2 In view of the above, the parties entered Defence contesting the claims made by the
into an agreement dated 25.02.2011 (hereafter respondent. The petitioner, inter alia, claimed
'the Agreement'), whereby the respondent 65 that the Agreement was novated by the
agreed to procure sponsors for the Chennai respondent's conduct and the Agreement
30 Team for IPL League Tournament and to "stood negated in its entirety as null and void
facilitate ICL and the relevant sponsors in and the terms therein ceased to be in force
entering into a sponsorship agreement or since then"
arrangement. In terms of the Agreement, the
petitioner agreed to pay the respondent a fee 70 3.7 The respondent led its evidence and the
35 equivalent to 5% of the total fee paid by each witness produced by the respondent was also
sponsor arranged by the respondent. cross-examined. Thereafter, the petitioner
filed an affidavit of evidence of one Sh Sanjay
Pandey wherein reference was made to an
agreement dated 23.07.2010 and a subsequent the production of additional documents,

agreement dated 24.09.2012. The said which vitally affects the interest of the parties.
evidence was objected to by the respondent He submitted that any adjudication of rival
on the ground that it was beyond the 40 contentions advanced by the parties would
5 pleadings filed by the petitioner. constitute an arbitral award. In this case, the
Arbitral Tribunal had provided reasons for
3.8 Thereafter, on 01.04.2017, the petitioner declining the petitioner's application and this
filed an application captioned as "Application constituted an award within the meaning of
under Order VIII Rule 1A(3) read with 45 Section 2(1)(c) of the Act.
Section 151 of Code of Civil Procedure for
10 placing additional documents on record which 5. He also referred to the decision of a
could not be placed on record by the Division Bench of this Court in National
respondent at the time of filing of reply to the Highways Authority of India v. Baharampore-
statement of claim filed by the claimant", inter Farakka Highways Ltd.: FAO(OS)(COMM)
alia, praying as under: 50 47/2017, decided on 02.03.2017 and, on the
strength of the said decision, contented that
15 "take on record the e-mail dated 06.09.2013 and the
adjudication of any of the contentions
Services Agreements dated 23.07.2010 and advanced by the parties would constitute an
24.09.2012" award.
3.9 The respondent objected to the said 55 6. He further contended that the term order
application and, in particular, the production would cover only those orders that are
20 of an e-mail dated 06.09.2013. On 01.04.2017, referred to in Section 37(2) of the Act - that is,
the Arbitral Tribunal took the said application an order accepting the plea referred to in
on record subject to the arguments being Section 16(2) or 16(3) of the Act and an order
heard on the admissibility of the documents 60 granting or refusing to grant interim measures
mentioned therein at the stage of final under Section 17 of the Act - and any
25 arguments. ministerial order or direction which do not
3.10 The Arbitral Tribunal considered the adjudicate any rights or contentions. He
aforesaid application and passed the contended that any order adjudicating any
impugned order rejecting the petitioner's 65 rights and/or contentions of the parties would
application and this has led the petitioner to necessarily have to be construed as an arbitral
30 file the present petition. award and the same could be assailed under
Section 34 of the Act.
Submissions
7. Next, he referred to the decision of the
4. Mr Alag, the learned counsel appearing for 70 Supreme Court in Indian Farmers Fertilizer
the petitioner earnestly contended that the Cooperative Limited v. Bhadra Products:
impugned order widely affected the rights and (2018) 2 SCC 534. He drew the attention of
35 interests of the petitioner in as much as it this Court to paragraph 8 of the said decision
adjudicated an important issue with regard to wherein the Supreme Court had explained

that the expression "matter" is of a very wide evidence. She stated that it is settled law that
nature and subsumes issues at which parties 40 matter regarding the extent of disclosure of
are in dispute. He submitted that since the documents is procedural in nature and, thus,
question of production of additional any decision in that respect cannot be
5 documents as sought for by the application, considered as an award. She referred to the
was contested between the parties, the decision of the Bombay High Court in the
impugned order would necessarily have to be 45 case of Anuptech Equipments Pvt. Ltd. v.
construed as an interim award. He also Ganpati Cooperative Hosing society Ltd.,
referred to paragraph 14 of the aforesaid :1999 (2) Mh. L.J. 161 in support of her
10 decision, wherein the Supreme Court after contention.
referring to its earlier decision in Mc Dermott
International Inc. v. Burn Standard Co. Ltd.: Reasons and Conclusions:
(2006) 11 SCC 181 2006 Indlaw SC 1268 had 50 10. Arbitration has also been described as
observed as under:- 'private justice'. It is an alternate dispute
15 "The aforesaid judgment makes it clear that an
resolution mechanism that is founded on the
interim award or partial award is a final award on fundamental principles of party autonomy and
matters covered therein made at an intermediate stage minimal judicial intervention. Thus, unless
55 specifically provided, no judicial intervention
of the arbitral proceedings."
would be permissible in arbitral proceedings.
8. Ms Diya Kapur, the learned counsel One of the stated primary object of the Act is
20 appearing for the respondent countered the "to minimize the supervisory role of courts in
submissions made on behalf of the petitioner. the arbitral process". The above principle
She contended that an arbitral award must be 60 finds statutory expression in Section 5 of the
distinguished from procedural orders and Act, which expressly provides that
directions, which deal with matters such as "Notwithstanding anything contained in any
25 exchange of evidence, production of other law for the time being in force, in
documents etc. She referred to the decisions matters governed by this Part, no judicial
in Shyam Telecom Ltd. v. Icomm Ltd.: 2010 65 authority shall intervene except where so
(116) DRJ 456; Deepak Mitra v. District provided in this Part."
Judge, Allahabad and Ors. : AIR 2000 All 9
30 1999 Indlaw ALL 3 ; Anand Prakash v. Asst. 11. Undisputedly, in view of the express
Registrar Coop Societies: AIR 1968 All 22 provisions of Section 5 of the Act, recourse to
1966 Indlaw ALL 186 ; M/s Uttam Singh courts is not available except in cases where
Dugal & Co. Pvt. Ltd. v. M/s Hindustan Steel 70 specific provisions have been made in this
Ltd., AIR 1982 M.P. 206 1981 Indlaw MP 141 regard. It is in this context, the petitioner has
35 in support of her contentions. founded the present petition on the assertion
that the impugned order is an arbitral award.
9. Ms Kapur also contended that the The respondent disputes this assertion. Thus,
impugned order was not an award as it only 75 the principal controversy to be addressed is
concerned the matter regarding production of whether the impugned order is an arbitral

award that is amenable to judicial review (3) Subject to section 33 and sub-section (4) of section
under Section 34 of the Act. 34, the mandate of the arbitral tribunal shall
35 terminate with the termination of the arbitral
12. Section 2(1)(c) of the Act provides for an proceedings."
inclusive definition of the term "arbitral
5 award". In terms of the aforesaid clause, 15. In terms of Section 32(1) of the Act, the
arbitral award is defined to include an interim arbitral proceedings would stand terminated
award. by the final arbitral award or by an order of
40 the Arbitral Tribunal as referred to in Section
13. Section 31 of the Act provides for the 32(2) of the Act. Since the arbitral
form and content of the arbitral award. Sub- proceedings terminate on passing of the final
10 section (6) of Section 31 of the Act reads as award, it is obvious that the final award would
under:- embody a decision on all or the remaining
"(6) The arbitral tribunal may, at any time during 45 disputes (disputes that have not been decided
the arbitral proceedings, make an interim arbitral earlier) between the concerned parties. Section
award on any matter with respect to which it may 32(2) of the Act provides an exception to the
15 make a final arbitral award." rule that arbitral proceedings would be
terminated other than by passing a final
14. It would also be relevant to refer to 50 award. A plain reading of Section 32(2) of the
Section 32 of the Act, which is set out below:- Act indicates that it, essentially, contemplates
situations where it is not necessary to enter an
"32. Termination of proceedings.-
award for settlement of the disputes or where
(1) The arbitral proceedings shall be terminated by the the same becomes impossible. In terms of
20 final arbitral award or by an order of the arbitral 55 Clause (a) of Section 32(2) of the Act, an
tribunal under sub-section (2). arbitral proceeding would come to an end
with a claimant withdrawing his claim unless it
(2) The arbitral tribunal shall issue an order for the is necessary to enter a final award at the
termination of the arbitral proceedings where- instance of the respondent. Clause (b) of
60 Section 32(2) of the Act contemplates
(a) the claimant withdraws his claim, unless the
circumstances where parties by consent seek
25 respondent objects to the order and the arbitral
termination of the arbitral proceedings. This
tribunal recognises a legitimate interest on his part in
may arise where the parties have resolved
obtaining a final settlement of the dispute,
their difference or no longer seek to obtain an
(b) the parties agree on the termination of the 65 arbitral award. Clause (c) of Section 32(2) of
proceedings, or the Act contemplates the situation where
continuing the arbitral proceedings has
30 (c) the arbitral tribunal finds that the continuation of become unnecessary or has been rendered
the proceedings has for any other reason become impossible.
unnecessary or impossible.
70 16. A plain reading of Section 32 of the Act
indicates the fact that the final award would

embody the terms of the final settlement of for oral argument, or whether the arbitral
disputes (either by adjudication process or 40 proceedings are to be conducted on the basis
otherwise) and would be a final culmination of documents and other materials as required
of the disputes referred to arbitration. Section to be decided - unless otherwise agreed
5 31(6) of the Act expressly provides that an between the parties - in terms of Section 24(1)
Arbitral Tribunal may make an interim arbitral of the Act. There are also other matters that
award in any matter in respect of which it may 45 the arbitral tribunal may require to determine
make a final award. Thus, plainly, before an such as time period for filing statement of
order or a decision can be termed as 'interim claims, statement of defence, counter claims,
10 award', it is necessary that it qualifies the appointment of an expert witness etc. The
condition as specified under Section 31(6) of arbitral tribunal may also be required to
the Act: that is, it is in respect of which the 50 address any of the procedural objections that
arbitral tribunal may make an arbitral award. may be raised by any party from time to time.
However, none of those orders would qualify
17. As indicated above, a final award would to be termed as an arbitral award since the
15 necessarily entail of (i) all disputes in case no same do not decide any matter at which the
other award has been rendered earlier in 55 parties are at issue in respect of the disputes
respect of any of the disputes referred to the referred to the arbitral tribunal.
arbitral tribunal, or (ii) all the remaining
disputes in case a partial or interim award(s) 20. At this stage, it may be also relevant to
20 have been entered prior to entering the final refer to certain authoritative texts as to what
award. In either event, the final award would would constitute an award. In Russell on
necessarily (either through adjudication or 60 Arbitration (Twenty-Third Edition), the
otherwise) entail the settlement of the dispute author explains as under:-
at which the parties are at issue. It, thus,
25 necessarily follows that for an order to qualify
"No statutory definition. There is no statutory
as an arbitral award either as final or interim, it definition of an award of English arbitration law
must settle a matter at which the parties are at despite the important consequences which flow from an
issue. Further, it would require to be in the 65 award being made. In principle an award is a final
form as specified under Section 31 of the Act. determination of a particular issue or claim in the
arbitration. It may be contrasted with orders and
30 18. To put it in the negative, any procedural directions which address the procedural mechanisms to
order or an order that does not finally settle a be adopted in the reference. Such procedural orders and
matter at which the parties are at issue, would 70 directions are not necessarily final in that the tribunal
not qualify to be termed as "arbitral award". may choose to vary or rescind them altogether. Thus,
questions concerning the jurisdiction of the tribunal or
19. In an arbitral proceeding, there may be the choice of the applicable substantive law are suitable
35 several procedural orders that may be passed
for determination by the issue of an award. Questions
by an arbitral tribunal. Such orders may 75 concerning the timetable for the reference or the extent
include a decision on whether to hold oral of disclosure of documents are procedural in nature and
hearings for the presentation of evidence or are determined by the issue of an order or direction and

not by an award. The distinction is important because English law as regards issues explicitly or implicitly
an award can be the subject of a challenge or an appeal decided as intermediate steps on the way to the final
to the court, whereas an order or direction in itself 40 decision, issues which could have been raised, the effect
cannot be so challenged. A preliminary decision, for on parties with derivative interests, and so on.
5 example of the engineer or adjudicator under a
construction contract which is itself subject to review by (b) Since the making of the award constitutes a
an arbitration tribunal, is not an award." complete performance of the mandate entrusted to the
arbitrators, it leaves them with no powers left to
21. In Mustill & Boyd on Commercial 45 exercise: except of course, in the case of a partial
Arbitration (Second Edition), the author award, when the exhaustion of the arbitrator' powers
10 suggests two characteristics, which could be is complete as to part and incomplete as to the
accepted as indicia of an award. The relevant remainder."
extract of the aforesaid text reads as under:-
22. In Centrotrade Minerals and Metal Inc. v.
". ...we do suggest two characteristics which we believe 50 Hindustan Copper Ltd.: (2017) 2 SCC 228
would be accepted as indicia of an award by the 2016 Indlaw SC 1035 , the Supreme Court
15 arbitrating community at large: had, inter alia, referred to the passages from
Comparative International Commercial
1. An award is the discharge, either in whole or in Arbitration Kluwer Law International, 2003
part, of the mandate entrusted to the tribunal by the 55 and Redfern and Hunter on International
parties;namely to decide the dispute which the parties Arbitration (sixth edition) and observed as
have referred to them. That is, the award is concerned under:-
20 to resolve the substance of the dispute. Important
aspects of the arbitrators duties are naturally concerned "9....The distinction between an award and a decision
with the processes which lead up to the making of the of an Arbitral Tribunal is summarized in Para 24-
awards, and they are empowered to arrive at decisions 60 13 [Chapter 24: Arbitration Award in Julian D.M.
which enable those processes to be performed. The Lew, Loukas A. Mistelis, et al., Comparative
25 exercise of these powers are, however, antecendent to international Commercial arbitration ] . It is observed
the performance of the mandate, not part of the that an award:
ultimate performance itself. Thus, procedural decisions,
and the documents in which they may be embodied are (i) concludes the dispute as to the specific issue
65 determined in the award so that it has res judicata
not 'awards'.
effect between the parties; if it is a final award, it
30 2. Constituting as it does the discharge of the terminates the tribunal's jurisdiction;
arbitrators mandate the award has two effects:
(ii) disposes of parties" respective claims;
(a) Since the parties have, by their agreement to
arbitrate, promised to be bound by the arbitrator' (iii) may be confirmed by recognition and enforcement;
decision of their dispute, they are for all purposes 70 (iv) may be challenged in the courts of the place of
35 bound by it between themselves, although others are not arbitration.
so bound. That is, the dispute becomes res judicata,
with all that the concept implies for the purposes of

10. In International Arbitration [Chapter 9. Award. Putting it differently therefore an interim

Award in Nigel Blackaby, Constantine 40 Award has to take the colour of a final Award. An
Partasides, et al., Redfern and Hunter on interim Award is a final Award at the interim stage
International Arbitration (Sixth Edition), 6th viz a stage earlier than at the stage of final arguments.
5 edition: Kluwer Law International, Oxford It is a part final Award because there would remain
University Press 2015 pp. 501-568] a similar pending other points and reliefs for adjudication. It is
distinction is drawn between an award and 45 therefore, that I feel that an interim Award has to be
decisions such as procedural orders and in the nature of a part judgment and decree as
directions. It is observed that an award has envisaged under Section 2 (2) of CPC and the same
10 finality attached to a decision on a substantive must be such that it conclusively determines the rights
issue. Paragraph 9.08 in this context reads as of the parties on a matter in controversy in the suit as
follows: 50 done in a final judgment. An interim order thus
cannot be said to be an interim Award when the order
"9.08 The term "award" should generally be reserved is not in the nature of a part decree. In my opinion the
for decisions that finally determine the substantive impugned order in view of what I have said
15 issues with which they deal. This involves hereinabove, is not an interim Award as it is not in
distinguishing between awards, which are concerned 55 the nature of a part decree being only an interim
with substantive issues, and procedural orders and order."
directions, which are concerned with the conduct of the
arbitration. Procedural orders and directions help to 24. In Sahyadri Earthmovers v. L&T Finance
20 move the arbitration forward; they deal with such Limited & Anr: 2011 (6) BomCR 393 2011
matters as the exchange of written evidence, the Indlaw MUM 1168 , the Bombay High Court
production of documents, and the arrangements for the 60 considered an application filed whereby the
conduct of the hearing. They do not have the status of petitioner had, inter alia, prayed for directions
awards and they may perhaps be called into question to be issued to the arbitral tribunal to
25 after the final award has been made (for example as "formulate and prescribe the appropriate legal
evidence of "bias", or "lack of due process"). " procedure for adjudicating the arbitration
65 proceedings and convening the arbitration
23. The question whether in the given meetings and more particularly to record the
circumstances, a determination by an arbitral evidence as per the Indian Evidence Act ".
tribunal is an award has come up before The said application was moved under Section
30 courts in several matters. In Shyam Telecom 9 read with Section 19 of the Act, but was
Ltd. v. Icomm Ltd.: 2010 (116) DRJ 456, this 70 occasioned by an order passed by the arbitral
Court considered the challenge laid to an tribunal on an application filed by the
order of the arbitral tribunal dismissing an petitioner for determining the arbitral
amendment application filed by the petitioner. procedure. In the aforesaid context, the Court
35 In this context, the Court observed as under:- observed as under:
"Clearly an interim Award has to be on a matter 75 "3. The first and foremost thing is that section 9 or
with respect to which a final Award can be made i.e. section 19 or any other section under the Arbitration
the interim Award is also the subject matter of a final Act, nowhere permit a party to challenge such order

passed by the Arbitrator pending the arbitration "But the further contention that an aggrieved party has
proceedings. It is neither final award and/or interim 40 no right to assail the same, once the said decision is not
award. Therefore, there is no question of invoking even assailed at this stage, does not appear to be correct.
Section 34 of the Arbitration Act. The The ultimate arbitral award could be assailed on the
5 Arbitration Act permits or provides the power of grounds indicated in sub-section (2) of Section 34 and
Court to entertain or interfere with the order passed by an erroneous decision on the question of venue, which
the Arbitrator, only if it is prescribed and not 45 ultimately affected the procedure that has been followed
otherwise. Section 5 of the Arbitration Act is very in the arbitral proceeding could come within the sweep
clear which is reproduced as under." of Section 34 (2) and as such it cannot be said that an
aggrieved party has no remedy at all."
10 25. In the present case, the impugned order
relates to rejection of the petitioner's 28. In Harinarayan G. Bajaj v. Sharedeal
application to file additional documents. 50 Financial Consultants Pvt. Ltd. and Anr.: AIR
Clearly, this is a procedural matter and does 2003 Bom 296 2002 Indlaw MUM 339 , the
not decide any issue for adjudicating the Bombay High Court, inter alia, considered the
15 dispute between the parties. Thus, the issue as to whether an application under
contention that the same would qualify as an Section 34 of the Act would be maintainable
interim award is wholly unmerited. 55 against the decision of the arbitral tribunal
rejecting an application filed by the petitioner
26. In Sanshin Chemicals Industry v. Oriental under Section 27 of the Act, inter alia, praying
Carbons and Chemicals Ltd. and Ors.: (2001) that the arbitral tribunal apply to the Court for
20 3 SCC 341 2001 Indlaw SC 20285 , the assistance in taking evidence on certain
Supreme Court considered the question 60 documents. The arbitral tribunal (in that case)
whether a decision of the arbitral tribunal rejected the said application on the ground
regarding the venue of the arbitral that the petitioner had not brought out any
proceedings could be assailed in an appeal evidence to establish that the said documents
25 under Section 34 of the Act. It is relevant to were necessary for adjudication of the subject
note that in that case, the petitioner had 65 disputes. In this context, the Court held as
contended that the decision on the venue of under:-
the arbitration proceedings was vital as the
rules for resolving the disputes would also be "It is, therefore, clear that every order or decision is not
30 dependent on the said decision and if the an Award. An order or decision in the course of
court did not entertain the petition, the proceedings which are continuing and in respect of
petitioner would be rendered remediless. 70 which no remedy is provided under the Act could
normally be challenged while challenging the Award
27. The Supreme Court did not accept the under section 34, provided the challenge was available
contention that such decisions could be under section 34(2) of the Act. In the instant case the
35 challenged under Section 34 of the Act. The
order rejecting the application under section 27 is a
Court also repelled the contention that the 75 decision and/or order. It is not definitely an interim
petitioner would be rendered remediless in the award. It would, therefore, be open to the petitioner if
following words:- finally aggrieved by an award to challenge the Award

in which the order has merged, under section 34(2) if the Act cannot be immediately assailed and
in law a challenge would be available under section 40 the party challenging the arbitrator(s) has to
34(2) of the Act." necessarily follow the discipline of Section 13
of the Act. If such challenge is rejected, the
29. In Ranjiv Kumar and Ors. v. Sanjiv arbitral tribunal is required to continue with
5 Kumar and Ors.: A.P. 679 of 2017, decided the proceedings and make an arbitral award.
on 13.02.2018, the Calcutta High Court 45 The party raising the challenge to the
rejected the contention that an order passed appointment of an arbitrator would, subject to
by an arbitrator in respect of admissibility of provision of Section 34(2) of the Act, be at
the documents could be considered as an liberty to challenge the arbitral award.
10 interim award. In this context, the Court
observed as under:- 31. Mr Alag had relied upon the observations
50 made by the Division Bench of this Court in
"it can safely be concluded that a decision of an National Highways Authority of India v.
arbitral tribunal can be held to be an 'interim award', Baharampore-Farakka Highways Ltd.:
within the meaning of Section 2(1)(c) of the Act of FAO(OS)(COMM) 47/2017, decided on
15 1996, when the decision finally decides an issue, at an
02.03.2017. In that case, a Division Bench had
intermediate stage of the arbitral proceeding, relating to 55 observed that any adjudication of the
the claim or counter-claim of the respective parties to contentions of parties other than orders that
the arbitral proceeding. Therefore, any decision of an are referred to in Section 31(2) constitutes an
arbitral tribunal in exercise of power under sub- award. In that case, the Court observed as
20 Section (4) of Section 17 of the Act of 1996 with
under:-
regard to the procedural aspects of the arbitral
proceeding, including any decision with regard to 60 "27. .....Any adjudication of the contentions of the
admissibility of a document in evidence cannot be held parties constitutes an award, orders are those issued
to be an "interim award" within the meaning of under Section 31(2)[sic Section 37(2)] and / or
25 Section 2(1)(c) of the same Act." ministerial orders in the nature of directions which
donot adjudicate any rights or contentions...."
30. There are several types of orders against
which a remedy is specifically provided under 65 32. The said decision is per incuriam as it
the Act. In case of a challenge to the ignores the earlier decision of the Division
jurisdiction of an arbitral tribunal, the decision Bench of this Court in Progressive Career
30 rejecting such challenge is not immediately Academy Pvt. Ltd. v. FIITJEE Ltd.: 180
amenable to judicial review and the party (2011) DLT 714. It appears that the said
raising such challenge has to necessarily await 70 decision was not been brought to the notice
the final award to pursue the said challenge, of the Court. In that case, the Division Bench
albeit against the arbitral award. However, an of this Court had held as under:-
35 order accepting the said challenge is
appealable under Section 37(2) of the Act. "16. On a reading of Section 13(5), the legislative
Similarly, a decision of the arbitral tribunal intent becomes amply clear that Parliament did not
rejecting the challenge under Section 12(1) of 75 want to clothe the Courts with the power to annul an
Arbitral Tribunal on the ground of bias at an
intermediate stage. The Act enjoins the immediate 40 sufficient indicator of Parliament's resolve not to brook
articulation of a challenge to the authority of an any interference by the Court till after the publication
arbitrator on the ground of bias before the Tribunal of the Award. Indian Law is palpably different also
itself, and thereafter ordains that the adjudication of to the English, Australia and Canadian Arbitration
5 this challenge must be raised as an objection under Law. This difference makes the words of Lord
Section 34 of the Act. Courts have to give full 45 Halsbury in Eastman Photographic Materials Co. all
expression and efficacy to the words of the Parliament the more pithy and poignant.
especially where they are unambiguous and
unequivocal. The golden rule of interpretation requires 21. .....Relief against possible mischief has been
10 Courts to impart a literal interpretation and not to
provided by making clarification in Section 13(5) that
deviate therefrom unless such exercise would result in apart from the challenges enumerated in Section 13(4),
50 an assault on the independence or impartiality of the
absurdity.
Arbitral Tribunal is permissible by way of filing
*** *** *** *** Objections on this aspect after the publishing of the
Award......."
20. A comparison of the provisions dealing with the
15 challenge to the arbitrator's authority in the A&C 33. It is also relevant to refer to the decision
Act and the UNCITRAL Model Law discloses that 55 in the case of S.B.P. and Co. v. Patel
there are unnecessary and cosmetic differences in these Engineering Ltd. and Another: (2005) 8 SCC
provisions, except for one significant and far- reaching 618 2005 Indlaw SC 696 . In that case, the
difference. The UNCITRAL Model Law, in Article Supreme Court had observed as under:-
20 13(3), explicitly enables the party challenging the
decision of the Arbitral Tribunal to approach the "45 .... Under Section 34, the aggrieved party has an
60 avenue for ventilating its grievances against the award
Court on the subject of bias or impartiality of the
Arbitral Tribunal. However, after making provisions including any in-between orders that might have been
for a challenge to the verdict of Arbitral Tribunal on passed by the Arbitral Tribunal acting under Section
25 the aspect of bias, the UNCITRAL Model Law 16 of the Act. The party aggrieved by any order of the
prohibits any further Appeal. It seems to us, therefore, Arbitral Tribunal, unless has a right of appeal under
65 Section 37 of the Act, has to wait until the award is
that there is no room for debate that the Indian
Parliament did not want curial interference at an passed by the Tribunal. This appears to be the scheme
interlocutory stage of the arbitral proceedings on of the Act.
30 perceived grounds of alleged bias. In fact, Section xxxx xxxx xxxx
13(5) of the A&C Act indicates that if a challenge
has been made within fifteen days of the concerned 46. The object of minimizing judicial intervention
party becoming aware of the constitution of the 70 while the matter is in the process of being arbitrated
Arbitral Tribunal or within fifteen days from such upon, will certainly be defeated if the High Court
35 party becoming aware of any circumstances pointing could be approached under Article 227 of the
towards impartiality or independence of the Arbitral Constitution of India or under Article 226 of the
Tribunal, a challenge on this score is possible in the Constitution of India against every order made by
form of Objections to the Final Award under Section 75 the Arbitral Tribunal. Therefore, it is necessary to
34 of the A&C Act. Indeed, this is a significant and indicate that once the arbitration has commenced in the

Arbitral Tribunal, parties have to wait until the could, therefore, have been challenged under Section 34
award is pronounced unless, of course, a right of appeal of the Act."
is available to them under Section 37 of the Act even
40 36. The aforesaid decision is not an authority
at an earlier stage."
for the proposition that any order adjudicating
5 34. It is also apparent that the several rulings, any contention would be an arbitral award
which pertain to the distinction between an within the meaning of Section 2(1)(c) of the
order and an award, were not brought to the Act.
notice of the Division Bench in National
Highway Authority of Indi v. Baharampore- 45 37. In view of the above, the petition is
10 Farakka Highways Ltd. (supra).
dismissed. The parties are left to bear their
own costs.
35. The reliance placed by Mr Alag in the case
of M/s Indian Farmers Fertilizer Co-operative Petition dismissed
v. M/s Bhadra Products (supra) is also
misplaced. In that case, the Court held that
15 the decision of the arbitral tribunal on the 50
issue of limitation could be considered as an
arbitral award. Indisputably, whether the
claims are barred by limitation is a decision on
a matter at which the parties are at issue. The
20 decision on the issue of limitation is
indisputably a decision on the disputes and is
a matter on which a final award can be
entered. A plain reading of the decision of the 55
Supreme Court also indicates that the Court
25 had observed that the award had finally
determined one of the issues between the
parties, which could not be re-adjudicated all
over again. The Court, after referring to
various decisions and principles, observed as
30 under:-
"15. Tested in the light of the statutory provisions and 60

the case law cited above, it is clear that as the learned
Arbitrator has disposed of one matter between the
parties i.e. the issue of limitation finally, the award
35 dated 23 rd July, 2015 is an "interim award" within
the meaning of Section 2(1)(c) of the Act and being
subsumed within the expression "arbitral award"


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Damodaram Sanjivayya National Law University

Cases for Discussion in the Classroom

Unit Topic No. of

For Classroom Discussions |Strictly for Private Circulation

 Copyright - Hot news doctrine

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 Cheteshwar Arvind Pujara v Union of India and others, 2018 Indlaw

Articles and Book Chapters:

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63 (© Kluwer Law International; Kluwer Law International 2015)

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 'Chapter 10: Sports Arbitration', in Daniel Girsberger and Nathalie

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Percept D'Markr (India) Private Limited 35 FACTS:

v 3. The appellant is a company incorporated

45 4. Respondent No.1 - Zaheer Khan is an

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the agreement is a contract of service. 40 Promotion Agreement entered into between

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74. As already noticed, no interim relief

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Case No : FAO(OS) 153/2013, CM APPL.

Bench :S. Ravindra Bhat, Najmi Waziri

40 Citation :2013 Indlaw DEL 3427

15 The Judgment was delivered by : S. Ravindra