IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 07-07-2011 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.7938 OF 2011 Kanti Verdhan Sharma Petitioner -vs- 1.Union of India, rep.by its Secretary to Government, Ministry of Youth Affairs and Sports, Department of Sports, Govt.of India, Shastri Bhawan, New Delhi-110 001. 2.Swimming Federation of India, rep.by its General Secretary, "Krishna Villa" 128, Paraskunj Society-1, Satellite Road, Ahmedabad-380 015. 3.Vinayak S.Borkar ... Respondents Petition under Article 226 of the Constitution of India. For petitioner : Mr.Mani Sundargopal For respondent 1 : Mr.M.Ravindran, Addl.Solicitor General of India. For respondent 2 : Mr.R.Muthukumarasamy, Senior Counsel, for Mr.L.Muralikrishnan. For respondent 3 : Mr.A.R.Jayapratap. https://hcservices.ecourts.gov.in/hcservices/ O R D E R When the Miscellaneous Petitions are listed for hearing, with consent of the learned counsel on either side, the main Writ Petition itself is taken up for disposal. 2. This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the letter dated 01.03.2011 on the file of the second respondent and the consequential communication dated 04.03.2011 on the file of the third respondent, quash the same and consequently direct the second respondent to amend the bye-laws in consonance with the guidelines in proceedings in F.No.8-17/2009-SP-III, dated 01.05.2010, issued by the first respondent, and thereafter to conduct elections of the office bearers of the Swimming Federation of India, in short, "SFI". 3. Facts : 3.1. The petitioner is a Co-opted Member of the Haryana Swimming Association. He has been duly authorized by the President and Secretary of the Haryana Swimming Association to participate in the elections of the Swimming Federation of India, in short, "the Federation", and to attend the General Body Meeting of the Federation as an accredited representative. He has also filed nomination for the post of General Secretary, without acquiescing to the irregularities in the proposed election. 3.2. The Federation is affiliated to the Indian Olympic Association and Federation Internationale de Natation Amateur (FINA) and registered under the West Bengal Societies Registration Act. It is receiving nearly about Rs.1.00 Crore every year as a grant from the Government of India. The Bye-laws of the Federation provide for General Council and the Office bearers. The Office bearers are President, Vice-President, Hony.General Secretary, Hony.Joint Secretaries, Hony.Treasurer and the term of the office though prescribed as three years in the Bye-laws, in practice, it is being changed to four years. 3.3. One of the functions of the General Council is to elect the Office bearers and the Managing Committee of the Federation. Though the bye-laws envisage a democratic process of election of the Office bearers, the actual functioning of the Federation has eroded the system and elections have not been conducted in a fair and transparent manner. On account of the same, the object of establishing the Federation itself has been defeated. Since the number of tenures a person could be elected has not been https://hcservices.ecourts.gov.in/hcservices/ prescribed in the bye-laws, the very same person continued to be elected and re-elected time and again as President and General Secretaries. The present General Secretary has been in post for the past 27 years. 3.4. That being so, the Government of India, Ministry of Youth Affairs and Sports, the first respondent herein, by Proceedings in F.No.8-17/2009-SP-III, dated 01.05.2010, addressed to all the National Sports Federations, had issued a detailed guideline as to the maximum period the President of a Sports Federation could hold office and similarly prescribed the number of years the Secretary and Treasurer to get elected. Further, the said proceedings also directed that the compliance to the above directions shall be mandatory and they shall form an integral part of the guidelines/regulations applicable to National Sports Federation. 3.5. Further, vide Proceedings No.F.46-12/2009-SP-I, dated 11.11.2010, the first respondent also observed that "it is unequivocally concluded that SFI has not only violated the Government guidelines, which make it liable to de-recognition, but has also violated its own constitutional provisions in not following due process in the conduct of elections of its office bearers, which make it also liable for de-registration as the national sports federation for swimming in India. However, taking into view the interests of sports and sports persons, had granted 90 days time to amend its constitution and hold fresh election in a fair, democratic and transparent manner. 3.6. The first respondent, vide proceedings No.F-46- 12/2009-SP-I dated 24.02.2011, after taking into consideration the reply of the Federation dated 09.02.2011 to the letter dated 11.11.2010, categorically came to the conclusion that the Federation had failed to comply with the Government order and stated that they should give a reply within 10 days as to why the Federation should not be de-recognized as the National Swimming Federation for Swimming in India. The second respondent, without taking immediate steps to comply with the directions of the Government of India, to avoid de- recognition, has proceeded to once again conduct election without adhering to the guidelines as mandated by the Government of India. Till-date, the bye-laws of the Federation have not been amended in consonance with the guidelines formulated by the Government of India. 3.7. The present General Secretary of the Federation, vide letter dated 01.03.2011, addressed to all the State Associations, has informed that the election of the office bearers of Swimming Federation of India will be held on 26.03.2011 at Chennai, followed by the General Body meeting of the Federation and has also informed https://hcservices.ecourts.gov.in/hcservices/ that Mr.Vinayak S.Borkar, Advocate, third respondent herein, has been appointed as the Returning Officer to conduct the election process. The election process commenced with the letter of the Returning Officer dated 04.03.2011, addressed to various State Associations. 3.8. As per the existing bye-laws viz., bye-law No.19, 21 clear days notice of the meeting should be issued to all members for the meeting of the General Council and only in that meeting, the election of office bearers could be conducted. Since the notice was dispatched on 09.03.2011 and the elections are scheduled on 26.03.2011, the provisions of Bye-law No.19 has been violated and elections are not being conducted in a free, fair and transparent manner. Also, the quorum of the meeting shall be 1/3rd of the total number of members. In the communication sent by the Returning Officer, Annexure-2 Sl.No.7, it has been stated that the election was held between 12.00 Noon and 01.30 p.m. on 26.03.2011, whereas in the communication dated 04.03.2011 issued by the General Secretary, it is stated that the meeting will be held even in the absence of a requisite quorums during the General Council Meeting. 3.9. Aggrieved over the alleged arbitrary, unilateral and unjust action of the Federation in proceeding to conduct election in contravention of the guidelines and directions issued by the first respondent and also in violation of the existing bye-laws, the petitioner has filed this Writ Petition. 4. First respondent has filed a counter, stating as follows : 4.1. SFI is a society registered under the West Bengal Societies Registration Act,1961. The conduct of the day-to-day affairs is governed by its own constitution and a set of bye-laws made thereunder. First respondent does not interfere with the internal functioning and day-to-day affairs of the National Sports Federations, which are responsible for the control, regulation and technical development of different sports and disciplines. However, the sports development being a national priority, the cooperation and partnership between the first respondent and National Sports Federations and other stakeholders organizations is essential for proper development, promotion of sporting excellence, organization of sporting events, promotion of athletes welfare, promotion of drug free sports and the fights against all forms of corruption in sports. For this purpose, the first respondent grants several financial grants, benefit and concessions from the Consolidated Fund of India to the National Sports Federations. The first respondent is thus under a constitutional obligation to ensure that the National Sports Federations which avail themselves of a number of benefits and concessions from the first respondent discharge their duties effectively and follow the highest standards of good governance in the management of respective sports controlled by them as well as in https://hcservices.ecourts.gov.in/hcservices/ the management of their own internal affairs. On 01.05.2010, the first respondent circulated to all National Sports Federations, including SFI, a set of standard guidelines to be followed by them in their internal functioning and for controlling their sports activities for being eligible to receive government assistance. These guidelines, inter alia, laid down certain limits with regard to tenure and age limit of principal office bearers of National Sports Federations, as follows : i) The President of any recognized National Sports Federation, including the IOA, can hold office for a maximum period of twelve years with or without break. ii) The Secretary (or whatever other designation such as Secretary General or General Secretary by which he is referred to) and the Treasurer of any recognized National Sports Federation, including the Indian Olympic Association, may serve a maximum of two successive terms of four years each after which a minimum cooling off period of four years will apply to seek fresh election to either post. iii) The President, the Secretary and the Treasurer of any recognized National Sports Federation, including the IOA, shall cease to hold that post on attaining the age of 70 years. 4.2. These guidelines were earlier approved by the High Court of Delhi by its decision dated 2nd March,2010, in Civil Writ Petition No.7868 of 2005, in the matter of Indian Hockey Federation. The SFI conducted election of its Office bearers at the AGM held in Goa on 15.06.2010 and while holding that election, the aforesaid guidelines of the Government were not followed by the SFI. Accordingly, SFI was issued a show-cause notice on 28.07.2010 by the first respondent to explain why the recognition granted to the Federation by the Government may not be withdrawn for not following the guidelines. The reply furnished by SFI dated 13.08.2010 indicated that the issues raised in the show-cause notice would be discussed in the General Body Meeting of the Federation. Not satisfied with the explanation of SFI, the first respondent issued a final show-cause notice to SFI on 24.02.2011, for its derecognition. In reply to the said final notice, SFI, by letter dated 28.02.2011, informed that it had decided to convene the General Body Meeting in the month of March,2011, to consider the points of the Government's guidelines and to incorporate the same in its constitution. It was further informed that the Federation had accepted in principle the said guidelines and decided to initiate action to implement the same before the end of March,2011. Shortly thereafter, the Federation also sent a letter dated 10.03.2011, informing that it was convening its General Body Meeting at Chennai on 26.03.2011 and that it had decided to hold fresh election of its office bearers as per the Government's guidelines for the next term of four years. With that letter, a copy of the notice dated 04.03.2011, for holding of the AGM and a copy of https://hcservices.ecourts.gov.in/hcservices/ the circular dated 04.03.2011, issued by Advocate Vinay S.Borkar, in his capacity as Returning Officer, laying down the procedure for holding of the election of office bearers and also laying down the schedule for that election was enclosed. On receiving the said letter, dated 10.03.2011 from SFI, the first respondent appointed Shri S.K.Mendiratta, its Legal Consultant, as the Government Observer for the General Body Meeting of SFI to be held at Chennai on 26.03.2011. The said Government Observer attended the General Body Meeting of SFI at Chennai on 26.03.2011. The report of the Government Observer will show that the declaration and publication of result of election of office bearers of SFI held on 26.03.2011 at Chennai was kept in abeyance, in view of this Court's interim order dated 25.03.2011. In the conduct of the election of office bearers of SFI at Chennai on 26.03.2011, the SFI followed the aforesaid Government guidelines dated 01.05.2010. The petitioner herein duly participated in that election, cast his vote and also remained present at the time of counting of votes by the Returning Officer. Hence, this Writ Petition may be dismissed. 5. Second respondent has filed a counter, stating as under : 5.1. The Writ Petition is not maintainable primarily on the ground that SFI is not a "State" within the meaning of Article 12 of the Constitution of India. SFI is a registered society under the West Bengal Societies Registration Act and, therefore, not a State. Union of India does not have all pervasive control or complete financial control over SFI. SFI is a self-regulated body. Writ Petition is also not maintainable owing to the reason that 14 other contestants (15 in all, including the writ petitioner) have not been arrayed as respondents. SFI is governed by a set of bye-laws, which is referred to as the Constitution of SFI. SFI consists of 27 units. As per the Constitution of SFI, six units have one vote each and the remaining 21 units have 2 votes each (6+42= 48 in all) for electing 12 office bearers viz., one President, five Vice-Presidents, one General Secretary, four Joint Secretaries and one Treasurer. 5.2. The Government of India, Ministry of Youth Affairs and Sports, provides grant for various activities of SFI. Besides grant, there are several other support systems provided by the Government of India. There are also other benefits such as railway concession, customs duty exemption for import of sports equipment for the athletes and for training, support for the coaching camps and international participation. SFI is recognized by the Government of India for sports activity/discipline-Swimming. The Government of India had sent a communication dated 11.11.2010 to SFI, calling for certain clarifications and the same were given by SFI vide communication dated 09.02.2011. Thereafter, the first respondent issued proceedings dated 24.02.2011 in which one aspect was conduct https://hcservices.ecourts.gov.in/hcservices/ of elections for electing above said 12 office bearers for SFI. Pursuant to the same, the second respondent issued an election Notification dated 01.03.2011 and circulated the same to all the affiliated units inter alia notifying that the third respondent was appointed as the Returning Officer. As per the directions of the third respondent, Returning Officer, the list of units and the accredited members were duly hosted in the official website of SFI. Thereafter, the second respondent issued a Notification dated 04.03.2011, convening the General Body Meeting of SFI on 26.03.2011 and the same was communicated to all the units of SFI. The third respondent, who was appointed as Returning Officer, in discharge of his duties, had issued a notification dated 04.032001, enclosing a proforma for proposal, election programme and nomination form. The last day for receiving nomination form was 20.03.2011 at 05.30 p.m. The scrutiny of nomination forms was done on 21.03.2011 as per schedule. The last date for withdrawal is 22.03.2011 at 02.00 p.m. The list of candidates in the fray was published on 22.03.2011 by 05.00 p.m. On the whole, there were 15 contestants in the fray for 12 posts/office bearers of SFI. With regard to President and Treasurer, there were only one nomination each and therefore on the publication of the list of candidates on 22.03.2011, the two contestants for the post/office bearer of President/Treasurer stood elected unopposed. Therefore, the election on 26.03.2011 in Chennai between 12.00 Noon and 01.30 p.m. was only for 5 Vice-Presidents (6 contestants), 1 General Secretary (2 contestants) and 4 Joint Secretaries (5 contestants). The election was by secret ballot. On 26.03.2011. at the polling venue in Chennai, out of 48 electors, 47 were present and they cast their votes for electing the office bearers. The entire process of polling and counting was done in the presence of the contestants, including the writ petitioner. The calendar year commencing from 01.01.2011 is a Olympics qualifying year for the next Olympic Games scheduled to be held in August 2012 in London. Therefore, there is no irregularity in the action of the respondents. 6. Third respondent has also filed a counter, on similar lines with that of the second respondent. 7. Learned Counsel for the petitioner would contend that there is no necessity to conduct the election for the office bearers of the Federation in haste; even as per the existing bye-laws 21 clear days notice is required for conducting the General Council Meeting; the election scheduled to be held on 26.03.2011 is being conducted without following the mandatory guidelines issued by the Government of India and also in violation of the bye-laws of the Federation and, therefore, the election proposed to be conducted by respondents 2 and 3 is per se illegal, arbitrary, mala fide and contrary to the established principles of democracy. In support of his contention, the learned counsel has relied upon the following https://hcservices.ecourts.gov.in/hcservices/ decision : Sun TV Limited, Chennai vs. Tata Sky Limited, New Delhi and another, 2007 (5) MLJ 277, wherein this Court has held as under : "6. With regard to his contention that a part of cause of action has arisen in Chennai by virtue of the fact that the first meeting towards settlement was held in Chennai as per the direction of the Tribunal and that is sufficient to maintain this writ petition on the aspect of territorial jurisdiction, the learned Senior Counsel for the petitioner has placed reliance on a judgment of the Supreme Court reported in (2006) 6 SCC 207 in the case of Om Prakash Srivastava vs. Union of India and another: (para 8) “Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.” 22. As far as the first point for consideration is concerned, it is no doubt trite, as has been held by the Supreme Court in its catena of judgments, that even if a fraction of a cause of action has arisen within the territorial jurisdiction of a court, that is sufficient for the court concerned to entertain a petition which cannot be dismissed on the ground that the court does not have territorial jurisdiction to deal with the said petition. In the instant case, admittedly, while the petitioner is having its registered office in Chennai and carrying on its business in Chennai, the first respondent is having its office in New Delhi and also the Tribunal which has passed the impugned orders is housed in New Delhi. Mr. Habibulla Badsha, learned Senior Counsel for the first respondent, by placing reliance on the judgment reported in AIR 1997 SC 1125 (supra) has vehemently contended that since the Tribunal is located in Delhi, the https://hcservices.ecourts.gov.in/hcservices/ present petitions which have been filed before this Court and that too before a Single Judge, cannot be maintained on account of lack of territorial jurisdiction by this Court. While attacking this contention of Mr. Habibullah Badsha, Mr. P.S. Raman has contended that the judgment relied on by the former cannot be made applicable to the facts of this case since the Tribunal is not a body instituted under Article 323A or 323B of the Constitution but under a statute and this reply given by Mr. Raman sounds to be convincing. Further, it is to be seen that the reach of the package offered by the petitioner is not restricted to one particular area only. Rather, it is going to have a nation-wide coverage. That apart, as per the direction of the Tribunal, the petitioner and the first respondent have also held a meeting in Chennai to come to an amicable settlement, but in vain and this is not disputed by the first respondent. In this case, the petitioner has pleaded every aspect of cause of action and the facts pleaded do have some nexus and relevance with the issue involved in this case. Moreover, the ultimate relief if it is granted, it will have an effect of giving signals from the channels owned by Sun TV. Therefore, there is at least a part of cause of action which does offer jurisdiction to this Court as per clause 2 of the Article 226 of the Constitution of India." 8. On the other hand, Mr.R.Muthukumarasamy, learned Senior Counsel for the second respondent, would contend that this Writ Petition is not maintainable, as the Federation is a society, registered under the West Bengal Societies Registration Act, and it is not a State within the meaning of Article 12 of the Constitution of India; the year 2011 is a Olympics qualifying year for the next Olympic Games scheduled to be held in August 2012 in London; the entire process of election was done only as per the procedure and in the presence of the contestants, including the writ petitioner, and, therefore, there is no irregularity in the action of the respondents. He would rely upon on the following Supreme Court decisions: (i) State of Assam vs. Ajit Kumar Sarma, 1965 (1) SCR 890 : "12. The main question which falls for decision in this appeal is whether the High Court is right in issuing a writ of mandamus to the State through the Director directing it not to give effect to the letter of March 20, 1962. It has not been contended on behalf of the appellants that the Rules have no statutory force and are mere executive instructions given by the Government to private colleges as a condition for the implementation of pay scales etc. recommended by the University Grants Commission for private https://hcservices.ecourts.gov.in/hcservices/ colleges, these scales being apparently higher than those existing from before. It seems to us that the High Court was in error in granting a writ of mandamus against the State through the Director once it found that the Rules had no statutory force and were mere administrative instructions for the purpose of giving grant-in-aid to private colleges. What grants the State should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be prescribed by statutory rules; there is however no law to prevent the State from prescribing the conditions of such grants by mere executive instructions which have not the force of statutory rules. ... Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions, it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-in-aid. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down conditions for grant-in-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the instruction, it could hardly be said that the instruction was being carried out under