IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.07.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU O.A.NOS.1299 AND 1300 OF 2008 AND APPLICATION NO.5740 OF 2008 IN C.S.NO.1167 OF 2008 AND O.A.NO.1042 OF 2008 IN C.S.NO.930 OF 2008 Dr.A.C.Muthiah, S/o (Late) M.A.Chidambaram, Adyar Villa, Chennai-600 085. .. Applicant in all the applications Vs. 1.The Board of Control for Cricket in India, rep. By its Secretary, having its registered office at M.A.Chidambaram Stadium, Chepauk, Chennai-600 005. .. Respondent No.1 in O.A.NOS.1299 & 1300 OF 2008 AND A.NO.5740 OF 2008 2.N.Srinivasan, Secretary, The Board of Control for Cricket in India, Door No.7/3, Boat Club First Avenue, R.A.Puram, Chennai-600 028. .. Respondent No.2 in O.A.NOS.1299 & 1300 OF 2008 AND A.NO.5740 OF 2008 1.The Board of Control for Cricket in India, rep. By its President, having its registered office at M.A.Chidambaram Stadium, Chepauk, Chennai-600 005. 2.N.Srinivasan, Treasurer, The Board of Control for Cricket in India, having its registered office at M.A.Chidambaram Stadium, Chepauk, Chennai-600 005. .. Respondents in O.A.No.1042 of 2008 O.A.No.1299 of 2008: This application is filed seeking for an order of mandatory temporary injunction, directing the first respondent not to permit the second respondent from contesting for any of the posts of Office bearer of the first respondent in future for such reasonable number of years. O.A.No.1300 of 2008 : This application is for an order of temporary injunction restraining the second respondent from functioning as the Secretary of the first respondent, pending disposal of the suit. A.No.5740 of 2008 : This application is filed seeking to suspend the amendment to Clause 6.2.4 of the REGULATIONS FOR PLAYERS, TEAM OFFICIALS, MANAGERS, UMPIRES AND ADMINISTRATORS of the first respondent to the effect that "Clause 6.2.4 will not apply to IPL and Champions T 20 League" introduced by the first respondent in the AGM conducted on 27.09.2008, pending disposal of the suit. O.A.No.1042 of 2008 : This application is filed, seeking temporary mandatory injunction directing the first respondent to act under Clause 32(II) of the Memorandum of Association and Rules and Regulations of the first respondent by appointing a Commissioner to make a preliminary enquiry against the second respondent on the complaint filed by the applicant in his letter dated 5.9.2008 and 19.9.2008 pending disposal of the suit. For Applicant : Mrs.Nalini Chidambaram, SC for Ms.C.Uma For Respondents: Mr.P.S.Raman, Addl. AG for Mr.P.R.Raman for R1 Mr.K.Harishankar for R2 - - - - ORDER When this matter was taken up for arguments before this Court, this Court informed both parties that for the IPL league matches, complementary tickets were given to the Judges of this court and this court, being recipient of one such complementary ticket (though never utilized it), was it proper for this court to hear this matter. Both the Senior counsels emphatically stated that the grant of complementary ticket was part of publicity act of the BCCI and for sponsored events, it has always been the practice to send complementary tickets to VIPs, including the Judges of the High Courts. It was only thereafter this court permitted both sides to advance their arguments. 2.The Board of Control for Cricket in India (for short BCCI) has its own subsidiary regulations for Players, Team Officials, Managers, Umpires and Administrators. Certain amendments made to its regulations, more particularly amendments made to Clause 6.2.4 at its General Body Meeting held at Mumbai on 27.09.2008 has given rise to this litigation. 3.The plaintiff, the past President of the BCCI, filed these two suits, claiming certain reliefs against the second defendant, who is its present Treasurer and for setting aside the amendment made to Clause 6.2.4 of the subsidiary regulations. 4.The first suit C.S.No.930 of 2008 was filed for injuncting permanently the BCCI from allowing the second defendant to participate in its general body meeting scheduled at Mumbai on 27.09.2008 and for taking action against the second defendant in terms of Clause 38(II) of the rules and regulations framed for the BCCI. A further prayer for suspending the second defendant by the first defendant by exercise of its power under subsidiary regulation 8(6). The suit came to be filed before this court on 24.09.2008. Pending the suit, an injunction was sought for against the second defendant from proceeding to attend the general body meeting. 5.After hearing both sides, this Court passed an order, dated 26.09.2008 in A.No.1041 of 2008 and dismissed the said application. The ground of dismissal was that the application was brought at the last minute and arrangements for the meeting had already been made. Further, the subsidiary regulation also provides for penalty to be levied in case of any breach of rule. 6.Before filing the suit, it transpires that the plaintiff had sent a letter, dated 5.9.2008 to the President of the BCCI, seeking for an action to be taken against the second defendant. This was on the footing that the subsidiary regulation 6.2.4 specifically prohibits any administrator to have either direct or indirect commercial interest in the matches or events conducted by the BCCI. Regulation 6.2.1 provides for penalty in such cases. 7.It was the stand of the plaintiff that the second respondent, who is the Managing Director of the India Cement Limited and continuing as the Treasurer of the BCCI got a Franchise of Indian Premier League (IPL) tournament to his company and therefore, he had earned commercial interest and benefits from the matches and events conducted by the BCCI. It was followed by a further letter, dated 19.09.2008, wherein a specific reference was made to the subsidiary regulations made in August, 2000, which is a Regulation for Players, team officials, Managers, Umpires and Administrators, including the office bearers of the BCCI. Therefore, regulation 8(5) read with 38(II) provides for actions to be initiated against the second respondent. The suspension of the second respondent, pending further action, was also sought demanded by him in terms of regulation 8.6. 8.The Correspondence which the plaintiff had with the President of the BCCI got wide publicity in the newspapers, including the Times of India, dated 23.09.2008. It was after this publicity, the suit was presented before this Court. It also transpires that the Annual General Meeting of the BCCI was convened at Mumbai on 27.09.2008 and 28.09.2008 and the agenda circulated in the meeting contained no reference to proposals for amendment to the subsidiary regulations. However, it transpired that in the meeting, certain amendments have been made to those regulations. For the first time in the regulation, the Twenty 20 match was defined as one having "a limited over International was classified as Twenty 20 in accordance with the ICC regulations". The amendments were also made to para 1.2 and 6.2.4 of the regulations. The following table will show the subsidiary regulation before and after the amendments made:- Before amendment After amendment 1.2 This Regulations shall apply to : (a) ODI Matches (b)Test Matches (c)Tour Matches (d)Any domestic or international matches 1.2 This Regulations shall apply to: (a)Tes[t Matches (b)ODI Matches (c)Twenty 20 Matches (d)Tour Matches (e)Any domestic or international matches. 6.2 Additional Regulations for Administrators : The Administrators are required to follow the Regulations as mentioned here under: 4.No Administrators shall have, directly, or indirectly, any commercial interest in the matches or events conducted by the Board. 6.2 Additional Regulations for Administrators : The Administrators are required to follow the Regulations as mentioned here under: 4.No Administrators shall have, directly or indirectly, any commercial interest in the matches or events conducted by the Board excluding events like IPL or Champions League Twenty20. (Emphasis added) 9.After amendments were made during September, 2008, the second suit came to be filed by the plaintiff in C.S.No.1167 of 2008. This was presented before the court on 10.12.2008 with the reliefs already set out. It is in this suit, three applications, namely O.A.NOS.1299 and 1300 of 2008 and A.No.5740 of 2008 were filed. The relief claimed in these applications is to deny the second respondent from contesting future elections and also from functioning as the Secretary of the BCCI and that the prohibition found in Clause 6.2.4 must also apply to IPL and Champions Twenty20 league events. 10.On notice from this Court, the respondents have filed detailed counter affidavits, dated 27.1.2009 and 16.2.2009 respectively. The applicant had also filed a reply affidavit, dated 7.3.2009. 11.It is in this factual backdrop, Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the applicant/plaintiff contended that the second respondent was liable to be proceeded in terms of subsidiary regulations, as he had committed grave misconduct inasmuch as India Cement Limited, of which R-2 is the Managing Director had taken a franchise for the IPL matches. He also participated in the general body meeting, in which these amendments were carried out. The amendments were made with a view to protect the second respondent and to get over the objections raised in the first suit filed by the plaintiff. In any event, the said amendment is opposed to the public policy and made with bad faith. Hence it is liable to be struck down by this court. 12.The learned Senior Counsel further contended that the BCCI has already been held to be an authority amenable to writ jurisdiction and this court has ample power to strike down the impugned regulation. If the intention was to cover the IPL matches to be regulated, the existing regulations are sufficient and it does not require any amendment. Since the purpose of the amendment is to save one individual, i.e. the second respondent, it is an abuse of power vested on BCCI and it does not serve any public good. Further, in the general body meeting held on 27.09.2008 and 28.09.2008, there was no agenda for making any amendment. The President of the BCCI ought to have taken action against the second respondent. In any event, in view of the pendency of the first suit before this court, the particular subject ought not to have been dealt with by the BCCI. 13.The Senior Counsel also stated that the BCCI must made to be controlled by competent persons such as Civil servants or Judges or eminent sportsmen and should not be occupied by business men, having commercial interest in the game. 14.Countering to these arguments, Mr.P.S.Raman, learned Additional Advocate General submitted that both suits are not maintainable as they were filed under misconception. The BCCI is a registered society registered under the Societies Registration Act, 1860 and it came to be a deemed society by virtue of Section 4(2) of the Tamil Nadu Societies Registration Act, 1975. It has got its own memorandum of association and bye-laws. The plaintiff/applicant obviously is trying to confuse the present amendment made to the regulations framed as if it is an amendment to the registered bye-laws of the Society. The general body of the BCCI has got only 30 institutional members and it is the supreme body which can deal with the affairs of the society. 15.He further stated that the meeting convened at Mumbai on 27.9.2008 and 28.09.2008 is the Annual General Body Meeting and apart from the subject introduced therein, the society can transact other business, including the business of amending its regulations. The amendments which is sought to be impugned in the suit are not registered bye-laws of the society, but its subsidiary regulations framed by its Working Committee. Bye-law No.13 authorises the Working Committee to frame regulations for the management and affairs of the Board. Bye-law No.43 provides for an arbitration in case of disputes between the members and the Board or members inter-se or for any other dispute, which the President may think fit, to refer for arbitration. Such disputes can be raised only by the members of the BCCI and not by persons like the plaintiff, who is not a member of the BCCI. As the past President, his attempt to bring him within the definition of the term 'Administrator' as per para 2 of the subsidiary regulations cannot give him locus standi to question the action of the BCCI. Regarding BCCI and its functioning, the plaintiff is a stranger. 16.The sub-regulations, which were amended in 2008, was originally framed at a Working Committee meeting held on 20.08.2000. The framing of the regulations is to regulate the players, team officials, mangers, umpires and administrators. It became necessitated because of wide spread allegations of match fixing in the Cricket World by its stake holders. At the relevant time, the idea of IPL matches was not known and no regulations were made. When IPL matches became part of the BCCI events, necessity arose to include those events. Hence the Working Committee and the general body amended those regulations so as to include the IPL matches within its ambit. The amendments were incorporated after accepting the recommendations made by a two member committee. It has no relevance to the suit instituted by the plaintiff. 17.The learned Additional Advocate General further submitted that it was necessary to regulate the matches like IPL. As it was a new innovation and being conscious of the format of these matches, involving sponsorship and participation by business groups, an exemption was given to members of the BCCI regarding the participation of their business groups. Original regulation 6.2.4 was so wide and if it was applied to IPL matches, it will result in members of the BCCI getting disqualified to hold office. Further, it will be difficult to keep track as to who was having interest. The disqualification was not only for any direct commercial interest, but also for indirect commercial interests. Further, the very idea of IPL matches was commercially oriented and commercial interest in sponsorship of matches cannot be avoided. 18.He further stated that the plaintiff is confusing the issue by stating that an administrator was prohibited to have any direct or indirect commercial interest in the matches or events. Those regulations were made to enable the BCCI to take action against those indulged in match fixing and unethical acts. The original regulations were framed on 20.08.2000. The amendments made on 28.09.2008 also had the approval of the BCCI. These regulations cannot be the basis for taking action against members of the BCCI. 19.It is also stated that even as early as on 29.12.2007, the second respondent wrote to the President stating that whether it was proper for the India Cement Limited to participate in the tender/bidding process to get franchise for IPL matches. It was replied by the BCCI President on 5.1.2008 that participation of the India Cement Limited will not mean that the second respondent has any personal/direct or indirect commercial interest and there was no impediment for the Company in participating in the bidding process. It was after getting such an authoritative permission, the India Cement Limited participated. ICL became the highest bidder in the bid for the game and they have paid 91 million US Dollors or its rupee equivalent. Even though the plaintiff is aware of the bid participation by the India Cement Limited, he did not challenge the same at the relevant time, but chose to wait for nearly 9 months to move this court. There is no prima facie case for grant of any injunction and that the suit cannot be allowed at the instance of the plaintiff as it was not filed in a representative capacity. 20.Mr.K.Hari Shankar, the learned counsel appearing for the second respondent submitted that the plaintiff was motivated in filing the suit inasmuch as he had lost in the election held for the Tamil Nadu Cricket Association (TNCA) to the second respondent by a huge margin. He also attempted to stall the said election. Having failed to become the office bearer of the TNCA, by which one can be a member of the BCCI, the plaintiff has come forward to file the suit to settle scores with the second respondent. 21.In the light of the above submissions, the learned counsels referred to certain legal precedents, bearing on these applications. 22.The learned Senior Counsel for the applicant/plaintiff referred to the decision of the Supreme Court in Indira Nehru Gandhi v. Raj Narain reported in 1975 Supp SCC 1 to drive home the point that any amendment to save ones own office will be frowned upon by the courts. Emphasis was made to paragraph 308 which reads as follows: "308.If clause (4) was an exercise in legislative validation without changing the law which made the election invalid, when there ought to have been an exercise of judicial power of ascertaining the adjudicative facts and applying the law, the clause would damage the democratic structure of the Constitution, as the Constitution visualises the resolution of an election dispute by a petition presented to an authority exercising judicial power. The contention that there was no election dispute as clause (4) by repealing the law relating to election petition had rendered the petition filed by the respondent non est, if allowed, will toll the death knell of the democratic structure of the Constitution. If Article 329(b) envisages the resolution of an election dispute by judicial process by a petition presented to an authority as the appropriate legislature may by law provide, a constitutional amendment cannot dispense with that requirement without damaging an essential feature of democracy viz. the mechanism for determining the real representative of the people in an election as contemplated by the Constitution." 23.The learned Senior counsel also submitted that Courts will also strike down a law which exhibits discrimination and removes an individual from his office. She referred to the decision of the Supreme Court in the case relating to P. Venugopal v. Union of India reported in (2008) 5 SCC 1. Paragraphs 38 and 39 will show the basis on which the said decision was rested on. "38. In D.S. Reddi, the facts of that case are somewhat similar to that of the writ petitioner. In that decision, D.S. Reddi was already a Vice-Chancellor for the past seven years and had not challenged the fixation of term from five years to three years. He was aggrieved by the second amendment in the University Act whereby Section 13-A was introduced to make the provision of Section 12(2) providing for inquiry by an Honble Judge of the High Court/Supreme Court and hearing before premature termination of the term of the Vice-Chancellor inapplicable to the incumbent to the office of the Vice-Chancellor on the commencement of the second Amendment. The core contention of D.S. Reddi was that this amendment was only for his removal and therefore was a case of naked discrimination as it also deprived the protection of Section 12(2) to him when Section 12(2) was applicable to all other Vice-Chancellors and there being no distinction in this regard between the Vice-Chancellor in office and the Vice-Chancellors to be appointed. In that situation, the plea of the respondent Government was that the provision similar to Section 13-A was also incorporated in two other enactments relating to Andhra University and Shri Venkateswara University and was, therefore, not a one-man legislation. It was further contended by the State that it was always open and permissible to the State Legislature to treat the Vice-Chancellor in office as a class in itself and make provisions in that regard. All the contentions on behalf of the State Government were rejected by the Constitution Bench judgment of this Court in D.S. Reddi and it was held that it was a clear case of naked discrimination for removal of one man and by depriving him of the protection under Section 12(2) of the Act without there being any rationality of creating a classification between the Vice-Chancellor in office and the Vice-Chancellor to be appointed in future. 39.It was further held in D.S. Reddi that such a classification was not founded on an intelligible differentia and was held to be violative of Article 14 of the Constitution of India. Accordingly, the provision of Section 13-A was held to be ultra vires and unconstitutional and hit by Article 14 of the Constitution. Similarly in the present case, the impugned proviso to Section 11(1-A) itself states that it is carrying out premature termination of the tenure of the writ petitioner. It is also admitted that such a premature termination is without following the safeguards of justifiable reasons and notice. It is thus a case similar to D.S. Reddi and other decisions cited above that the impugned legislation is hit by Article 14 as it creates an unreasonable classification between the writ petitioner and the future Directors and deprives the writ petitioner of the principles of natural justice without there being any intelligible differentia." 24.The learned Senior Counsel submitted that if the BCCI wanted an amendment explicitly for covering IPL matches within its ambit, it can do so. But while covering the IPL within its ambit by the impugned amendment, it made the very exercise only to cover the private interest of R-2. The impugned amendment to Rule 6.2.4 goes contrary to the inclusion of IPL matches into the rule by the grant of exemption to members who have commercial interest in the games. In this context, she referred to the decision of the Supreme Court in R.S. Garg v. State of U.P. and others reported in (2006) 6 SCC 430. She referred to the following passage found in para 31 which reads as follows:- "31.The State proceeded on the basis that the act of conversion would require an amendment to the Rules. Whether such an amendment was necessary or not, as was argued by Mr Dwivedi, loses much significance in view of the fact that the State itself was of the opinion that the same was necessary. Despite the same, the Principal Secretary, Labour Department had put up the note, as noticed hereinabove, before the Chief Minister without bringing the same to her notice. The note was not put up only highlighting the necessity therefor. Two views were placed: Firstly, the conversion would not entail any financial loss and provide promotional avenues for candidates of Scheduled Castes, which by itself cannot be a matter of public interest; and secondly, the case of the 3rd respondent was highlighted, stating that he had been in service since 1987-88 with interruption and since 1989 without interruption and up to 1995 on ad hoc basis and in regular service since 15-11-1995. It was also stated that relaxation could be given to fulfil reservation quota under the 1994 Act, in terms whereof relaxation for qualifying service for the aforementioned post could be accorded. Why the Public Service Commission was ignored, has not been explained. The idea of conversion of the post should have been mooted keeping public interest in view and not the interest of an individual. The entire approach of the authorities of the State of U.P., thus, was only for achieving a private interest and not the public interest. It was in that sense, the action suffered from the vice of malice in law. It has not been disputed that there were other employees also who belonged to the Scheduled Caste and were senior to the 3rd respondent." 25.The learned Senior Counsel contended that an unfair and untenable or irrational clause in a contract is unjust and always amenable to judicial review. She stated that Rule 6.2.4 insofar it excludes the disqualification clause for the events like IPL and Champions League Twenty 20. She made a reference to the decision of the Supreme Court in its judgment in LIC of India and another v. Consumer Education & Research Centre and others reported in (1995) 5 SCC 482. Paragraph 32 of the said judgment reads as follows:- "32. An unfair and untenable or irrational clause in a contract is also unjust and amenable to judicial review. In common law a party was relieved from such contract. In Gillespie Bros. & Co. Ltd. v. Roy Bowles Transport Ltd.21 Lord Denning for the first time construing the indemnity clause in a contract questioned that are the courts to permit party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreasonably, as to be unconscionable, and stated:" 26.The learned