-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Public Interest Litigation W.P.(Ld) No.66 of 2006 Chandravardhan Parekh ) aged about 71 years ) residing at 28,Piroja ) Mansion, Ali Bhai ) Premji Marg, ) Mumbai 400 064 ) ..Petitioner vs. 1.The Board of Control ) for Cricket in India ) a registered society ) having its Head ) Quarter at "Brabourne) Stadium, North Stand ) Veer Nariman Road, ) Mumbai 400 021 ) through its Honorary ) Secretary ) Shri Niranjan R.Shah ) 2.Shri Lalit Kumar Modi) C/o M/s Modi ) Enterprises, Nirlon ) House, Dr.Annie ) Beasant Road, Worli ) Mumbai 400 036 ) ..Respondents Mr.K.K.Singhvi, Sr.Counsel with Mr.C.U.Singh, Sr.Counsel with Ms.Soma Singh and Mr.Vivek Sharma for petitioner Mr.Venkatesh Dhond with Ms.Usha Dahanukar, Ms.Neha Bhide and Mr.Kaushal Shroff i/b UKD Legal for respondent no.1 Mr.Janak Dwarkadas, Sr.Counsel i/b M/s Crawford Bayley and Co. for respondent no.2. CORAM : SWATANTER KUMAR C.J. AND CORAM : SWATANTER KUMAR C.J. AND CORAM : SWATANTER KUMAR C.J. AND S.C.DHARMADHIKARI J. S.C.DHARMADHIKARI J. S.C.DHARMADHIKARI J. 7th September, 2007 7th September, 2007 7th September, 2007 Judgment Reserved on : 27.6.2007 Judgment Reserved on : 27.6.2007 Judgment Reserved on : 27.6.2007 -2- Judgment Pronounced on: 7.9.2007 Judgment Pronounced on: 7.9.2007 Judgment Pronounced on: 7.9.2007 J U D G M E N T (Per S.C.Dharmadhikari J.) J U D G M E N T (Per S.C.Dharmadhikari J.) J U D G M E N T (Per S.C.Dharmadhikari J.) 1. The petitioner has approached this Court by the present Public Interest Litigation under Article 226 of the Constitution of India challenging the election of Respondent no.2 to the post of Vice President of Respondent no.1 Association (for short BCCI). The reliefs claimed in the petition are as under: (a) That this Hon’ble Court be pleased to issue a Writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction of this Hon’ble Court directing the respondent no.1 to remove the Respondent No.2 from holding any office or positio in the affairs of the Respondent No.1 as he has been convicted for committed offence involving drug, trafficking, criminal assaults and abused the statutory provisions enacted in the State of Rajasthan. (b) That this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction of this Hon’ble Court prohibiting the -3- Respondent No.2 from continuing to hold any office or position in the affairs of Respondent No.1 including participating in any affairs of the respodent no.1; (c) That this Hon’ble Court be pleased to issue a Writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction of this Hon’ble Court directing the respondent no.1 to act strictly in terms of the statutory principles of not permitting any person to hold any office or position who has been criminally convicted and found to have acted contrary to the "Regulations for Players, Team Officials, Managers, Umpires and Administrators" 2. The petition is by a cricket lover. He claims it is filed in public interest. He contends that he is keenly interested in promotion of game and its development. He also projects the interests of sports and cricket lovers all over the country who look upon the BCCI as protecting and safeguarding the interest of citizens in the game. The petition alleges that Respondent No.2 could not have been elected and in any event cannot continue as Vice President. He is convicted of an offence involving moral -4- turpitude. His involvement is in a case of possession of a substance, which is prohibited in law. In other words, he was convicted after being found in possession of 1 gram of Cocaine. Hence, he deserves to be removed. After relying upon the Rules and Regulations and Memorandumand those pertaining to administrator of BCCI, it is contended thus: "It, therefore, follows that in the event any person is found to have either been possessing or dealing with or in any way being connected with or distribution of any illegal drug or indulging in gambling, betting or receiving any financial speculations or on any Match or any cricketing event in any part of the World or accepting any money from a bookmaker or being convicted in any criminal proceeding involving moral turpitude or detrimental to the game of cricket or endangering the harmony or affect the reputation or interest of the Respondent No.1. Admittedly, "cocaine" is not only a prohibited drug, but mere possessing the same is a criminal offence of serious nature. Any one caught with the said drug and that too more than 400 grams and involved in trafficking of the same is a serious offence and in terms of Regulation 6.2.2 of the Regulation of the Respondent No.1, it is punishable offence. Therefore, no "Administrator" having committed his guilt of drug trafficking of "cocaine" can be permitted to be exonerated by the Respondent no.1. "If therefore, if it is detected that although an official of the Respondent No.1 (the Respondent No.2) was caught in a foreign country having involved in drug trafficking of "cocaine" and having admitted his guilt, in addition to other charges of serious nature and sentence is permitted to hold important position in the affairs of the Respondent No.1, being a body discharging public function, such indulgence shall have to be termed as "indulging in capricious and overt acts on the -5- part of the respondent no.1 and in gross violation of its own Regulations. "The petitioner has only recently come to learnt that the Respondent No.2 was convicted in criminal charges of serious nature involving moral turpitude." The gist of the criminal acts and conduct committed by the Respondent No.2 and that too in a foreign country (United States of America) is set out thus:- i. Mr.Lalit Modi was studying in Duke University, Durham, North Carolina, USA. ii. Mr.Lalit Modi was involved in drug trafficking in 1985 and on 24th February, 1985 with Mr.John EI-Masry and Mr.Sheperd Small, two of his accomplishes barged into "Wilson House" and physically assaulted its resident Mr.Alexander Van Dyne and kidnapped him. As a result of beating with fists, kicking and hitting in the face, Mr.Alexander Van Dyne was seriouslsy injured causing soft tissue injuries, bruises, black eye, lacerations about the face and body, kidney damage requiring hospitalisation for two days for treatment. iii. On being called by an onlooker, the Police arrested Mr.Modi along with his accomplishes and they were detained in custody for 3 days. During arrest of Mr.Modi, more than 400 grams of Cocaine was also found in possession of Mr.Modi. iv. Mr.Modi was charged with indictment of 2nd Degree kidnapping and assault of Mr.Alexander Van Dyne and causing serious bodily injury and conspiracy to traffic in drugs in more than 400 grams of cocaine by the District Court of Durham County, North Caroline, USA. v. On 24th June, 1985 Mr.Modi pleaded guilty of the charges, but taking advantage of the North Carolina General Statutes and the mitigating factors listed for first offence and on the recommendatory requests, a plea arrangements were entered into under Chapter 15A, para 1022 of the North Carolina General Statutes and Mr.Modi was sentenced by the Superior Court Division to a 2 year imprisonment in the N.C.Deptt.of Correction along with a $ 10,000 fine. The execution of the -6- said sentence of imprisonment was suspended and Mr.Modi as accused was placed on "supervised probation for 5 years term" with payment of $250.00 monthly plus supervision charges fee beginning from July 26, 1985. Mr.Modi was also sentenced to undergo and perform 300 hours of Community Services under the category of intermediate punishment under section 1340.11, Clause (6) of the North Carolina General Statutes, Chapter 15-A, (Criminal Procedure Code). vi. After undergoing 100 hours of community services and payment of fine as sentenced, the court on 18th April, 1986 after recording that Mr.Modi had paid the fine of $10,000.00 and completed 100 hours of Community Services and being ill and hospitalized, modified the "supervised probation" to "unsupervised probation" subject to undertaking in writing to arrange and perform 200 hours of Community Services in India by June 23, 1990. vii. The respondent No.2 with deliberate motive willfully suppressed and concealed the above ’conviction’ as well as being involved in "drug trafficking" as admittedly before the Court of law. viii. It is submitted that as the Respondent No.2 was convicted for offences involving criminal assault, kidnapping and drug trafficking and having pleaded guilty of the same, the Respondent no.2 could not have been appointed in any office or position of the respondent no.1 in terms of the Rules and Regulations, as stated above, and is not entitled to hold any office or position under the Respondent no.1 in any manner. ix. The respondent no.2 is the president of Rajasthan Cricket Association, a full member of the Respondent No.1. By virtue of representing the Rajasthan Cricket Association in the year 2005, the respondent no.2 contested the election for the office of the "Vice President" of the respodnent no.1 and appointed so and it currently holding the post of "Vice President" of the Respondent No.1 in addition to other positions thereunder. The Respondent No.1 is, therefore, an Administrator within the meaning of the Rules and Regulations of the Respondent No.1 and governed under the ambits of the said rules and regulations. It is shocking -7- to be informed that long prior to being elected to the office of the "Vice President" by the Respondent no.2 in the respondent no.1, all the officials of the Respondent No.1 had full knowledge about various criminal overt acts on the part of the Respondent no.2 and still they have caused the respondent no.2 to hold one of the most important position in the affairs of the respondent no.1. Respondent No.1 who conferred the position of "Vice President" to the respondent no.2 in the affairs of the respondent no.1 has acted in a manner opposed to the law and the Regulations of the respondent no.1 as set out more particularly hereinafter. 3. It is, therefore, contended that a person convicted of drug trafficking cannot be associated in any manner with the B.C.C.I. as that is not conducive to Healthy and proper development of the game and its administration. Reliance is placed upon the Rajasthan Sports (Registration, Recognition and Regulations of Associations) Ordinance, 2004 which later has been made an Act of the State Legislature namely Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 and eligibility criteria prescribed thereunder for contesting the Election. It is urged that respondent no.2 hails from a business family in the State of Punjab. He was not a resident of any District in Rajasthan nor was carrying on any business therefrom. In terms of section 15 read with Schedule "C" of the Rajasthan Sports Act, he was not qualified to contest and for being elected to any post or position in Rajasthan Cricket Association, more so, when he was convicted in the criminal case as -8- mentioned above. He was not residing in the State of Rajasthan and yet he contested the election. He has suppressed the above facts. In para 27 of the petition, the manner in which respodnent no.2 contested the State Sports Body Election is set out. 4. Based upon the above facts and circumstances, the reliefs as reproduced hereinabove have been claimed. In substance, it is alleged that respondent no.1 is under public duty to ensure that its office bearers are such who fulfil the eligibility criteria so also their acts are such as would subserve public interest. However, by allowing respondent no.2 to continue as Vice President, the first respondent has violated the Rules and Regulations so also its acts are contrary to public interest. It is alleged that by allowing respondent no.2 to function as Vice President, the respondent no.1 has acted contrary to the interest of the sports. All its actions are, therefore, violative of the mandate of Article 14 of the Constitution of India and in breach of the public duty. Therefore, the reliefs referred to above be granted. 5. Mr.K.K.Singhvi, learned Senior Counsel appearing for the petitioners, submits that it is not disputed that the -9- second respondent has been convicted of a serious charge. He has bargained for the punishment. Thus, guilt is established and proved. Once conviction is for offence involving drugs, then, the rules do not permit his continuation any more. He submits that the first respondent cannot adopt an attitude where under it would wash off its responsibility towards the sports lovers and all those who are interested in game. It has to act reasonably and fairly. All its actions must be transparent and subserving the public good. The Central Cricket Body should set an example in as much as it should be manned by persons of high calibre and character and genuine sportsmen. Today, the position is that the Sports Body is controlled fully by people from the business world and those having political and other connections. In such background, continuance of a person like second respondent is more disturbing. Learned Senior Counsel then submits that the first respondent has to follow the doctrine of fairness and act in good faith. All its activities should be directed towards protecting interest of the game. He invites our attention to the decision of the Hon’ble Supreme Court in the case of Zee Telefilms and another Vs. Union of India and others reported in A.I.R.2005 Supreme Court 2677 and submits that its present actions are contrary to law laid down therein. He submits that the -10- Rules and Regulations of Respondent No.1 specifically prohibits any of its "Administrator" as defined in Rule 1(n) of Regulation 2 from indulging in Gambling, Betting, including accepting moneys from a bookmaker. Further, he submits that any person guilty of moral turpitude cannot hold any office or position in public body discharging public functions. He submits that in the present case the offence complained of is serious and amounts to grave misconduct. In such circumstances, this Court should remove the respondent no.2 and direct the first respondent to hold election afresh for the vacancy that would be caused. 6. Learned Senior Counsel has invited our attention to the memorandum of Rules and Regulations of the first respondent and further contended that the Central Zone, which is one of the zones, over which the first respondent has jurisdiction and control, consists of Rajasthan Cricket Association. He submits that the term "Administrator" as defined in clause 1(n) is an inclusive definition. He submits that "Vice President" is the Administrator of the Board. He submits that the membership and jurisdiction of the members which is falling under clause 3 would make it clear that Rajasthan Cricket Association is a full time member of the first -11- respondent Board. The territorial jurisdiction of a member may be within the territory but the first respondent has over all supervision and control over the members. He has invited our attention to the composition of the Board, which is specified in Clause 7. He submits that the Board comprises of a President, 5 Vice Presidents from each zone and Hon. Secretary and Hon. Joint Secretary and Hon.Treasurer. He submits that a member or the Associate Member is entitled to have one representative on the Board and such representative is capable of being changed. He submits that the powers and duties of the Board are set out in Regulation No.9. Apart from the control over the players, which is one of its prime duty and function, the Board through its working committee and other committees fulfils the obligations stipulated in clause 9. He submits that one of the duties which the Board has to perform is making available for the purpose of this game, facilities and infrastructure, to conduct matches locally and internationally, to buy and sell property, to lay out the grounds, pavilions etc.; to collect funds so also to employ personnel. To take disciplinary action against the player or a Member of Board is also part of the duties. He submits that very wide powers have been conferred on the working committee. The Board is the richest association and has a monopoly -12- status. Once uncontrolled and sweeping powers are conferred, then, it is expected that working committee members act as trustees for all who elected them; sport lovers and general public. 7. He submits that the composition of the working committee is such that one representative of a member from each of the 5 zones, to be elected on principle of rotation in the respective zones, represents his zone on the Board. The process is by election. He submits that the powers of the President and Secretary are also enormous. He submits that clause 20 of the Regulations provides for election. He submits that all office bearers and Vice Presidents from each zone are elected annually and are eligible for re-election. He has invited our attention to the procedure for election and has contended that the Board has enough power to remove the office bearers. He has also invited our attention to clause 6.2 which, according to him, are additional regulations for administrator. 8. At this stage, it would be appropriate to reproduce this clause. "6.2: Additional Regulations for Administrators: -13- The Administrators are required to follow the Regulations as mentioned here under: 1. No Administrator shall make any unsubstantiated allegation against any players, team officials, or administrators (present or past) in public through media or otherwise with respect to the breaches stated above and shall not comment on any matter relating to the functioning of the Board unless and until the said allegation is brought to the notice of the President in writing and a decision is reached by the Board in that behalf. As far as possible the Board shall decide on the said matters within a period of six months. 2. An Administrator shall not use or possess or in any way be concerned in the use or distribution of illegal drugs." He submits that the mandate thereof is absolutely clear in as much as the Administrator shall not use or possess or in any way concerned in use and distribution of illegal drug. He submits that there is a prohibition to continue as Administrator if he is concerned in the use or -14- distribution of illegal drug. Mr.Singhavi has invited our attention to the order of conviction and sentence imposed upon the second respondent by the Court of Superior Division State of North Carolina holding the second respondent guilty and indicating him in conspiracy for trafficking in drugs. In such circumstances, he submits that the petition be allowed and reliefs be granted. 9. Mr. Singhvi has also invited our attention to Rajasthan Sports Act, 2005 and more particularly chapters 3 and 6 therein. He submits that section 15(1) clearly stipulates that all individual members are eligible to contest the elections of a Primary Sports Body and anyone contesting an election must possess the qualifications prescribed in Schedule "C" of this Act on the date of notification of the elections. He submits that the second respondent does not fulfil these requirements in as much as there is action which has been initiated against him vide show cause notice dated 11th July, 2005 calling upon respondent no.2 to show cause why disciplinary proceedings should not be initiated against him and appropriate action as deemed necessary be not taken including expulsion from the B.C.C.I. A reply is filed to that show cause notice by respondent no.2. He submits that Arbitration before the Arbitral Tribunal with regard to the same allegations -15- has been the subject matter of challenge in further proceedings and has not gained finality. For all these reasons the petition be allowed. Mr.Singhvi has relied upon the following decisions in support of the above submissions: i) Board of Control for Cricket in India and another Vs. Netaji Cricket Club and others (2005) 4 SCC 741 ii) M/s Zee Tele Films Ltd. and another Vs.Union of India (AIR 2005 S.C.2677). 10. On other hand Mr.Dhond, learned Counsel appearing for the first respondent, submits that there is no substance in this petition in as much as it cannot be filed as "Public Interest Litigation". It is an abuse of process of Court. It is filed at the instance of the people who have lost the elections wherein second respondent was elected as a Vice President. The argument is that entire dispute is raised in the context of election to Rajasthan Sports Associations’ elections with which the first respondent Board is not concerned. He submits that the second respondent is not the representative of Rajasthan Cricket Association but represents Punjab Cricket -16- Association. That apart, it is contended that the petition is not maintainable under Article 226 because the allegations do not touch upon the public character or public duties of the Board. It is with regard to the internal affairs of the Board and election of its working committee. It is very clearly held by the Hon’ble Supreme Court that no petition under Article 226 or Article 32 would lie against the Board in so far as its internal affairs and management is concerned. He submits that the rules and regulations of the first respondent do not prescribe for any disqualification or rendering ineligible the second respondent from contesting or being elected to the post of Vice President. There is no eligibility criteria. He submits that Rule 6.2.2 of the Regulations and Rule 38(iv) of the Rules framed by the first respondent would be applicable to a person, who is presently found using, possessing and connected with illegal drugs. The incident which is complained of in the present case is of the year 1985. He submits that in so far as Rule 32(iv) is concerned, a show cause notice was issued by the Board on 11th July, 2005. The show cause notice was challenged by filing a suit in Jaipur District Court being suit no.705 of 2005. There is an interim order sought restraining the Board from proceeding with the disciplinary action. At the same time the Treasurer -17- of Dholpur Cricket Association, Mr.Rana addressed a written complaint on 23th May, 2005 to the Secretary of the Rajasthan Cricket Association. As the Articles of Rajasthan Cricket Association provide for Arbitration, the complaint was referred to the arbitration of Shri Justice R.P.Saxena (Retired Judge of Rajasthan High Court) who entered upon the Reference and after considering the pleadings and other material on record, made an Award on 19th July, 2005 holding that the allegations made by Mr.Rana are not proved. Hence, the second respondent was not disqualified from holding the office of the President of Rajasthan Cricket Association. The award was challenged by Mr.Rana by filing a petition in the District Court, Jaipur being Arbitration No.361 of 2005 which was dismissed by the District Court on 31st March, 2006. These documents were forwarded by the second respondent in reply to the show cause notice and after considering the entire material so also the regulations, the Board has decided to withdraw the show cause notice and dropped the proceedings. In such circumstances, the present petition filed in public interest should not be entertained. 11. Mr.Dwarkadas, learned Senior Counsel appearing for the second respondent, submits that the present petition has been filed only to embarrass and harass the second -18- respondent. It is filed at the behest of Mr.Kishor Rungta, Mr. Kamal Morarka and Mr. Jagmohan Dalmiya who form part of a Group which lost elections to BCCI. He submits that the validity of election to Rajashtan Cricket Association cannot be raised in the present petition. The petitioner has raised the issues which are common to civil Appeal no.1260 of 2005 which is pending before the Hon’ble Supreme Court of India. Therefore, same allegations cannot be repeated and made subject matter of the present petition. 12. The