IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 364 OF 2009 1. Arjun Bikram Shah, son of Late Mohan Bikram Shah, Resident of Sha Bhawan ,Narainpur, P.S Ramnagar, District –West Champaran being the Chairman, District Sports Assoiation, West Champarn at Bettiah 2. Subodh Kumar Verma S/O Late Shyamdhari Prasad, General Secretary, District Sport Association, West Champaran, Bettiah, resident of Alok Bharti Chowk, P.O and P.S-Bettiah, District- West Champaran 3. District Sport Association, Bettiah District, West Champaran, District-Bettiah through its General Secretary Subodh Kumar Verma at Majaraja Stadium, P.O and P.S.-Bettiah, District-West Champaran. ………Plaintiffs-Petitioner Versus 1. District Magistrate-cum-the then Ex-Officio President of D.S.A. at P.O. and P.S.-Bettiah Town, District-West Champaran. 2. Distinct Planning Officer at and P.O. –Bettiah town, District West Champaran. 3. The State of Bihar through the Chief Secretary, Govt. of Bihar,Patna District –Patna ….Defendants- Respondents --------- For the Petitioners:- M/S. A.P.Jittu, K. Thakur and Binod Kumar, Advocates. For the State :- Mr. Prashoon Sinha, GA-3 & Mr. Satish Narayan Sinha, A.C. to GA- ----------- 7. 06 .01.2010 Heard learned counsel for the plaintiff-petitioners and learned counsel for the State-respondents. The petitioners have filed the present writ application invoking the power of superintendence conferred upon this Court under Article 227 of the Constitution of India for setting aside the order dated 14.11.2008 passed by the Additional District Judge, West Champaran in M.A. No. 1/2008 by which he has affirmed the order dated 14.1.2008 passed in Title Suit No. 51/2007 by the 2 Munsif, Bettiah rejecting the petitioners’ prayer for issuance of interim injunction under Order 39 Rule 2 of the Code of Civil Procedure. The petitioners filed Title Suit No. 51/2007 stating that the District Sports Association, West Champaran, Bettiah (in short, DSA), Plaintiff No.1 is an autonomous body affiliated to Bihar Olympic Association, (in short, BOA) of which the plaintiff nos. 2 and 3 are the principal office bearers having been elected specially in annual general meeting dated 29.3.2007. The DSA has duly approved the Bye-laws through which it functions. Clause 5 of the bye-laws provides for Membership of the Association and lays down that any office bearer or member found working against the interest of the Association and willfully acting in contravention of the spirit of any of the rules of the Association shall be expelled by the order of the Executive Committee, subject to approval by the General Body of the Association. Clause 6 relates to the constitution and function of an Executive Committee of the Association to conduct the day to day affairs of the Association. It is provided that it shall consist not more than 25 members and not less than 17 members who shall hold the office till the next election of the Committee. The said election is to be held once in three years. It provides for a number of ex-officio members and also provides that the District Magistrate will be the ex-officio President of the Association. Eleven members are to be elected from among the Ordinary 3 Members of the Association and the remaining members shall be co-opted by the Executive Committee from time to time as circumstances require. It is provided that the Executive Committee shall manage and conduct all affairs of the Association according to the direction of the General Body of the Association and shall be responsible to the General Body in all matters affecting the interest of the Association. The supreme power of the Association shall be vested in the General Body of the Association which shall meet annually to consider all matters concerning the well being of the Association. Clause 9 provides for meetings of the General Body of the Association and of the Executive Committee. The Rules and Regulations of the Association can be modified or otherwise amended by a majority of the members of the Executive Committee and approved by the General Body meeting and the same is required to be forwarded to the Bihar Olympic Association (BOA) for information. It is stated in the plaint that the defendant no. 1, the District Magistrate issued letter dated 29.11.2006 addressed to the Treasurer of DSA asking him to furnish accounts of last ten years within two days. The office Secretary approached the District Magistrate seeking time on the ground that the General Secretary, plaintiff no. 3 was out of station. The Treasurer also sought time. Again another letter dated 19.12.2006 was issued by the District Magistrate addressed to the Secretary, DSA by way of reminder to the previous letter in which it was stated that since the Account 4 has not been furnished after lapse of long time, it raised suspicion about the functioning of the Association and further asked to submit accounts within 24 hours with a warning that on failure to do so action would be taken. Again another letter of the same date, i.e., 19.12.2006 was issued dissolving the Executive Committee of the DSA with immediate effect and directing that Mr. Prem Prakash, District Planning Officer would work as the Secretary and Mr. Rama Shankar, Anchal Adhikari would work as Treasurer henceforth. It is stated that on learning about the said letter, the then General Secretary, Arjun Vikram Shah, petitioner no.1 met the District Magistrate who advised him to conduct election and submit audited accounts of last ten years. Accordingly, an Annual General Meeting was called which, however, the District Magistrate did not attend and in the said meeting office bearers were elected and the income and expenditure for the financial years 1996 to 2006 duly audited by a Chartered Accountant whose audit report was submitted through letter dated 22.3.2007, was placed before the Annual General Meeting. Further, orders were issued by the District Planning Officer, defendant no. 2 directing the Office Secretary to hand over all the papers relating to DSA to him as the Secretary appointed by the District Magistrate and in such circumstances, the suit was filed. The reliefs sought in the suit is to hold and declare that the action taken by the District Magistrate by the order dated 5 19.12.2006 is illegal, ultra vires, mala fide, arbitrary and not binding on the plaintiffs and the defendant no. 2, on the basis of the said impugned order made by defendant no. 1, has no authority to interfere in the functioning of the DSA, West Champaran, Bettiah and he be restrained by ad interim injunction from doing so. Subsequently, an injunction petition was also filed on behalf of the plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying to restrain the defendants specially the defendant no. 2 by order of ad interim injunction from implementing the order No. 1991(Go) dated 19.12.2006 against the plaintiffs. The defendants appeared and contested the suit and the injunction application by filing their written statement. The learned Munsif after noticing the aforesaid facts held that the District Magistrate is the ex-officio President of the Association and the Executive Committee is responsible to conduct the day to day affairs and further that the minutes and their copies do not show any resolution said to have been taken on 29.3.2007 whereby the plaintiff nos. 2 and 3 have been elected as office bearers by the Executive Committee as constituted by the bye- laws and further noting that as regards the amendment in the constitution, it has given power to the majority of the Executive Committee in the bye-laws and in view of the said discussion it was held that it does not appear that the plaintiffs have been able 6 to establish a prima facie case and the petition was rejected. Aggrieved by the same the plaintiff-petitioners filed Miscellaneous Appeal No. 01/2008 which was heard by Additional District Judge, FTC III, West Champaran, Bettiah, who, by the impugned order dated 14.11.2008 affirmed the order of the Munsif, Bettiah after recording that the plaintiff has not produced the details of income and expenditure and for the said reason holding that no prima facie case is made out in favour of the plaintiffs. He further held that by order dated 19.12.2006 the Committee of the District Sports Association, Bettiah was dissolved with immediate effect and the Secretary and Treasurer were appointed by the said letter, whereas the plaintiff has brought the suit on 10.5.2007 and after the said date he is no more Secretary of the DSA and therefore, the balance of convenience is not in his favour and further if no interim injunction is granted, he would not suffer any irreparable injury. In the above facts and circumstances, the petitioners have approached this Court in its supervisory jurisdiction under Article 227 of the Constitution of India since after the recent amendments in the Code of Civil Procedure the remedy of Revision under Section 115 of the Code of Civil Procedure has been barred. Learned counsel for the petitioners submits that the orders of the Courts below are perverse as they have failed to look into the basic issue as to whether the District Magistrate, Bettiah on 7 his own or as ex-officio President of the District Sports Association had any authority to dissolve the Executive Committee of the Association and appoint its Secretary and Treasurer by his order dated 19.12.2006. Learned counsel refers to various provisions of the Bye-laws of the DSA which have been quoted above to show that though the District Magistrate is ex-officio President, he can only preside over the meetings and no substantive power has been conferred upon him to either carry on the day to day activities, which power is vested in the Executive Committee, or to dissolve the Executive Committee and appoint and remove the Secretary and Treasurer, which power is vested in the General Body of the Association. Learned counsel also refers to the Rules of the Bihar Olympic Association particularly Rule 7(i) and (v) in which it is stated that affiliation shall mean and connote enrolment of an institution as a member of BOA and District Association shall mean and connote a district unit of BOA affiliated as and continuing to be a member of the BOA. Rule 13 provides that the Honorary General Secretary of an institution, affiliated as a member shall, unless otherwise decided by the Executive Committee of that institution, represent the Member-institution in the BOA. Rule 16 lays down that the affiliation of an institution as a member shall be deemed to be a declaration of its acquiescence in and submission to the Rules and the Regulations while Rule 18 provides that every member shall abide by the 8 Rules and the Regulations and the circulars which the Secretary may, from time to time, issue in pursuance of his duties. Rule 19 provides for termination of the membership of the BOA. Rule 21 declares that election of a Member-institution/Unit/Association can be held only under the supervision of an Observer duly deputed for the same by the BOA. Rule 34 provides that the Secretary may in addition to his other powers affiliate or re- affiliate an institution as a Member, subject to the approval of the Council and enquire into the functioning of the District Associations and State Associations and take appropriate action in the light of his findings and further ensure the observance of rules and regulations of sports in vogue for the time being by the District Associations and the State Associations. Relying on the aforesaid provisions, it is submitted by learned counsel for the petitioners that the District Sports Association, West Champaran, Bettiah is clearly affiliated to the Bihar Olympic Association functioning under the over all control and supervision of BOA. In the said circumstances, if the District Magistrate had any grievance then as the ex-officio President of the DSA he could have either called a meeting of the Executive Committee or General body which had been empowered to look into all aspects of the functioning of the DSA or in the alternative he could have written to the BOA and got an appropriate direction issued to the DSA. However, instead of doing so he has without any authority issued the letter dated 19.12.2006 which is 9 non est in the eye of law. It is submitted that the courts below have completely failed to look into the basic aspects of the matter and by not issuing ad interim injunction they have failed to exercise the jurisdiction vested in them and by not looking into all these aspects of the matter they have acted perversely in the exercise of their jurisdiction. Such failure on the part of the Courts below has resulted in travesty of justice as it has paralyzed the functioning of a District Sports Association which has brought to a standstill all sporting activities within the district. Learned counsel for the respondents, on the other hand, submits that the premises of the Association and the concerned stadium were built out of government fund and over government land and since the entire property belongs to the government, in order to protect the interest of the Government the answering respondent in the capacity of the District Magistrate, West Champaran, was forced to dissolve the Committee in the public interest as an interim measure, when no accounts were being furnished by the Secretary of the Association, by the order dated 19.12.2006. It is further submitted by learned counsel that the Maharaja Stadium is situated in the heart of Bettiah district town having several shops which have been let out to different persons on rent and was fetching handsome amount from rent and the same was under the control of the District Administration, of which accounts were maintained by the Association. However, despite notice of the 10 District Magistrate mentioning therein about the defalcation of public money by the Association and to send the accounts for ten years, no accounts were given in respect of the income and expenditure of the Maharaja Stadium. It is further submitted that none of the ex-officio members of the Executive Committee, being nine in number out of a total of 25, participated in the meeting of the Executive Committee alleged to have been held on 29.3.2007 for making amendment in the Bye-laws and election of the plaintiff no. 1 as the Chairman and plaintiff no. 2 as the General Secretary of the Association and thus the same was not in accordance with the bye-laws of the Association and plaintiffs had no right to claim ad interim injunction. It is the further stand of the respondents that the Association is not a statutory body and its bye-laws have no statutory force and thus no reliance can be placed upon the same. It is further alleged that the petitioner no. 1 being an ex-Cabinet Minister of the Government of Bihar on account of his influence occupied the post of Chairman of the Association for more than 15 years without any meeting of the General Body of the Association being held and without maintaining and producing any account of the Association before the same and misused his position entirely for personal benefit. It is further alleged that handsome amount collected through the various shops situated in the Maharaja Stadium was being mismanaged and misappropriated and the same being government revenue, and the District Magistrate 11 being custodian of the district revenue, can take such action against anybody as has been taken by him. It is also submitted by learned counsel that the DSA is not a registered body under the Societies Registration Act and cannot claim any statutory protection. On a consideration of the rival submissions of learned counsels for the parties, the facts and materials on the record as also the orders dated 14.11.2008 and 14.1.2008 of the learned Appellate Court and the trial Court respectively this Court is of the view that the entire issue has been considered in an improper light by the Courts below. It is evident from the bye-laws of the District Sports Association as also the rules of the Bihar Olympic Association that the DSA is an affiliated Sports Body at the district level of the Bihar Olympic Association. It is no doubt true that it is not a statutory body nor registered under the Societies Registration Act; however, it is evident from the provisions of the Societies Registration Act, specially Section 20, that a sports body is neither required to be nor can be registered under the said Act as it does not fall within any of the categories which can be registered under the Societies Registration Act. That however, is wholly irrelevant to the consideration of the present matter, as different sporting associations and other bodies in the country or in the State may not be statutory bodies but they perform important functions in the field of sports which is recognized by all. The right to form associations or unions is a fundamental 12 right under Article 19 (1)(a) of the Constitution and is not at all dependent upon the existence of any statute, though if there is one in existence and lays down any reasonable restriction as provided under Article 19 (4) itself, it would have to be obeyed. Nothing has been brought on the record or submitted by respondents to show that the DSA is required to be registered or is regulated under any statutory provisions. That being the position, it is evident that its functioning can only be regulated in terms of its bye-laws as also, in case it is affiliated to BOA as it admittedly is, as per the rules and regulations as may be framed by the BOA, so long as it continues to be affiliated to the same. The bye-laws of the DSA do not confer any executive authority upon the District Magistrate as its ex-officio President to either dissolve the Executive Committee or appoint any person as the Secretary or Treasurer of the DSA. For the said reason, it appears that in the counter affidavit before this Court the stand taken is that the District Magistrate as the revenue custodian of the government, has merely acted to protect the revenue of the Government. If that was the intention of the District Magistrate, then this Court is afraid that it was not open to him while protecting the revenue of the Government to act in a manner so as to make defunct the District Sports Association affiliated to Bihar Olympic Association in a district by dissolving its Executive Committee and appointing his own subordinate officers (or any one else) as the Secretary or the Treasurer of the said 13 Association. No such power has been conferred upon him by the Government as a District Magistrate. If the intention was to protect the revenue of the Government from misappropriation, in that event the District Magistrate ought to have taken recourse to other measures under the law as available to him for the same. He certainly cannot be expected to protect the government revenue by taking over the functions of a District Sports Association which is not within his power or jurisdiction. If he was acting as the ex-officio President of the DSA then the only course open to him at the relevant time was to call a meeting of the Executive Committee or General Body of the Association and report to it of the gross illegalities and irregularities being perpetrated by the then office-bearers in not getting the accounts of the Association duly audited and placed before the General Body of the Association. If he felt that such solution would not be effective then the other option open to him was to report the wrongful activities of the office bearers of the Association to the Bihar Olympic Association to take appropriate action against its affiliated District Association. Instead of exercising his powers as an ex-officio President in a legitimate manner, he has chosen a method which has been wrongly sought to be justified by the Courts below on the ground that he was an ex-officio President. In the process he has caused severe damage to the interest of sports and sporting activities within the district. In view of the fact that the plaintiff-petitioners have been 14 able to show that the District Magistrate as the ex-officio President or even as such District Magistrate had no authority to dissolve the Executive Committee of the DSA and the defendant- respondents have failed to show up till this stage as to under what authority of law the District Magistrate had issued the order dated 19.12.2006, it is evident that the plaintiff-petitioners have succeeded in establishing that they have a strong prima facie case in their favour. So far as the balance of convenience is concerned, it is evident that the same would lie in favour of the plaintiffs as the purpose of a District Sports Association is to carry on various sporting activities within a district, which is a function of those who are interested and involved in the sports as members and office bearers of the Association in accordance with its Bye-laws, Rules and Regulations and not the function of public officials of the District under the control of the District Magistrate. Hence, the balance of convenience also is in favour of the plaintiffs. So far as the question of irreparable injury is concerned, it is evident that the sports and sporting activities have to be carried on continuously for excellence to be developed in the same and again the same must be carried on by the various sporting bodies in terms of their own Rules and Bye-laws and not under the whims of any public official who has not been conferred any authority under any statutory provision in that regard. Moreover as pointed out above, the right to form an 15 association or union is a fundamental right and the same can be curtailed only by placing reasonable restrictions through legislation and not executive action as provided under Article 19 of the Constitution. The continued violation of the fundamental right is itself an irreparable injury which cannot be compensated in terms of money or otherwise after the lapse of certain time till the suit is decided. The respondents have rightly not assailed the right of the petitioners to approach this Court in view of the law laid down by the Supreme Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others: (2003) 6 SCC 675. It has been clearly held by the Apex Court in the said decision that if an interlocutory order is not amenable to revisional jurisdiction under Section 115 of the Code of Civil Procedure after its recent amendment, it would still be open to challenge and continue to be amenable to certiorari jurisdiction under Article 226 and supervisory jurisdiction under Article 227 of this Court. In para- 38(4) it has been observed by the Apex Court as follows:- “38(4). - Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” In the light of the aforesaid discussions, I am clearly 16 of the view that the trial court and the appellate Court had failed to exercise their jurisdiction when they did not grant injunction restraining the respondents from acting in terms of the order dated 19.12.2006 as had been sought and the same has resulted in failure of justice and also occasioned grave injustice thereby not only to the plaintiffs but to the cause of sports in the concerned district as the action of the District Magistrate, prima facie on the materials brought on the record till date, appears to be a gross interference in the functioning of sports bodies and the carrying on of sporting activities in the district.