Mr. Narinder Batra vs. Union of India

IN THE HIGH COURT OF DELHI
W.P.(C) 7868/2005

nd
Date of decision: 2 March, 2009
Mr. Narinder Batra ... Petitioner
through: Mr. Arun Jaitley, Sr. Adv with Mr. Maninder
Singh, Mr. Kirtiman Singh and Mr. Girish
Mishra, Advs.
VERSUS
Union of India ....Respondents
through: Mr. P.P. Malhotra, Addl. Solicitor General
with Standing Counsel and Mr. Tanuj
Khurana, Adv. for the respondent no. 1
Dr. A.M. Singhvi, Sr. Adv. With Mr. D.S.
Narula, Ms. Manmeet Arora, Ms. Vandana
Miglani and Mr. M.P. Choudhary, Advs. for
the respondent no. 2
Mr. Arun Bhardwaj, Sr. Adv. with Mr. Aman
Vachher and Mr. Ashutosh Dubey, Advs. for
the respondent no. 3
Mr. Lovkesh Sawhney, Adv. for the
respondent no. 4
Mr. V.P. Singh, Sr. Adv. with Mr. Pradeep
Dewan and Mr. Rajiv Samiyar, Advs. for the
IOA.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
1.Whether reporters of local papers may be allowed
to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3.Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. This writ petition primarily seeks enforcement of guidelines
framed by the respondent no. 1 for dispensation of financial
assistance as well as recognition of National level Sports Federations
('NSFs' hereafter) contending that they are applicable and binding.
1

A grievance is made that the respondent no. 2 herein - the Indian
Hockey Federation ('IHF' hereafter) has been recognised and
granted financial assistance under such guidelines and is bound to
comply with the same and that it has failed to abide by the same.
2. The writ petitioner has claimed that he is a member of the
Jammu & Kashmir Hockey Association and was authorised to
th
represent the Association at the respondent no. 2. On 29 January,
2002, the petitioner was elected as the Senior Vice President of the
respondent no. 2 for the first time and his term of four years was
th
expiring on 28 January, 2006. The petitioner has claimed that he
was vitally interested and concerned with the manner in which the
affairs of the Indian Hockey Federation were conducted.
3. Sh. K.P.S. Gill – respondent no. 3 was elected President of the
respondent no. 2 in 1994 and he has continued to hold the post of
President in all elections ever since and as such he was a President
of the respondent no. 2 – Indian Hockey Federation for a period of
more than 11 years.
Mr. K. Jothikumaran, Honorary Secretary General – respondent
no. 4 is also stated to be holding the post for three consecutive terms
since 1994.
4. The petitioner made allegations of mismanagement and
violation of the terms of the Government guidelines and filed the writ
petition for the reason that the respondent no. 1 had failed to take
any action thereon. A further grievance was made that the
2

respondents were not abiding by the terms of the constitution of the
respondent no. 2 and were perpetuating to convene an Annual
th
General Meeting for the year 2003-04 on 30 January, 2005 without
st
circulating the relevant documents. A complaint dated 21 January,
2005 had been lodged in this behalf. Dissatisfied with the
communications received, the petitioner protested by a letter dated
th th
29 January, 2005 and again on 30 January, 2005 complaining the
meeting of the violations of the constitution of the respondent no. 2.
As his grievances were still not addressed, the petitioner made a
th
complaint on 17 February, 2005.
Further grievances with regard to the manner in which minutes
have been recorded were not addressed by the respondents.
5. The petition is necessitated as the petitioner is aggrieved by the
failure of the respondent no. 1 to take action on the representations
st th th
dated 21 January, 17 February and 4 March, 2005 of the
petitioner pointing out alleged irregularities in the affairs of
respondent no. 2 on the part of respondent nos. 2 to 4 which inter
alia include the following :-
“(a) Telephone expenses paid for by IHF for
various telephones used by President and Hony.
General Secretary, month wise details for
2003/2004.
(b) Domestic travelling/Hotel/and other
expenses paid for by IHF for President and Hony.
General Secretary, month wise details for
2003/2004.
(c) Foreign travelling/hotel/and other
expenses paid for by IHF for President and Hony.
General Secretary, month wise details for
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2003/2004
(d) Money actually received from Ministry of
Sports/Sports Authority of India to be spent on
playes, per player per day in dollar terms. Each
tour wise details be provided for 2003/2004.
(e) Money spent as Miscellaneous expenses/taxi
expenses without receipt/transport expenses
without receipt, during foreign tours in 2003/2004.
Details be given for each tour along with names of
persons who were handling all these expenses
during the tours.
(f) Money received from the sponsors in
2003/2004 and its utilisation and also commission
paid to leisure sports on this money received in
2003/2004, in amount and in percentage terms.
Same information be also provided for PHL, money
received and to be received and its utilisation and
commission to leisure sports.
(g) The petitioner was given to understand that
there are people who have not made their due
payments for over 3 years and on the other side
there are people who are done payment
immediately. If it is so, then the petitioner would
like to have an age wise list of parties who have to
take payment from IHF till 31.3.2004.”
These grievances have been noticed here only for the purpose
of elucidating the nature of violations which were being complained
of and inquiry sought by the petitioner.
6. In addition to the above, the petitioner has asserted that clause
3.5 in the Guidelines for Assistance to National Sports Federations
prohibits the office bearer from participating in an election after
more than two continuous terms and that the respondent nos. 3 and
4 are blatantly violating the same. The writ petitioner has, therefore,
prayed for the following reliefs :-
“(a) Issue a writ of certiorari or any other writ
4

of direction in nature thereof calling the records of
the respondent no. 1 pertaining to the grant of
financial assistance to respondent no. 2 for last ten
years for ascertaining the manner in which the funds
granted by the Union of India have been utilised by
the respondent no. 2.
(b) Issue a writ of mandamus or any other direction
in the nature thereof against the Union of India
directing that in the event of any unsatisfactory
explanation by respondent nos. 2-4 with regard to the
utilisation of the funds provided by the Government of
India, to take appropriate steps towards securing
financial discipline and for initiation of the process of
de-recognition of respondent no. 2 as the National
Sport Federation for the sport of hockey.
(c) Issue a writ of certiorari, quo warranto or any
other writ or direction in the nature thereof calling for
the records of respondent no. 2 and thereafter
quashing the election of respondent no. 3 and 4 as the
President and Hony. Secretary General respectively
being contrary to the rules dated 14.08.2001 framed
by the Government of India.
(d) Issue a writ of certiorari or any other writ or
direction in the nature thereof holding clause 8 of the
constitution of respondent no. 2 to be ultra vires,
illegal in the event it is contended by respondents 2-4
that any person can continue for perpetuity as the
President or Hony. Secretary General of respondent
no. 2 and that clause 8 of the Constitution of
respondent no. 2 is not subject to the prohibition
imposed by the Government of India rules dated
14.08.2001 prohibiting continuation as such for a
period of more than 8 years.
(e) Issue an appropriate writ of prohibition or
direction in the nature thereof restraining the
respondent no. 3 and 4 from either continuing as the
President and Hony. Secretary General of respondent
no. 2 or from contesting the elections for the post of
President and Honorary Secretary General
respectively for the fourth consecutive term in
contravention to the Revised Guidelines for Assistance
to National Sports Federation dated 14.08.2001.
(f) Issue a writ of prohibition or any other direction
in the nature thereof restraining respondents no. 2-4
to conduct the elections to the post of Senior Vice
President before 28.01.2006.
(g) Issue an appropriate order writ or directions to
5

the respondents to furnish the information that has
been sought for by the petitioner from time to time
through various communications including the last
communication dated 21.01.2005 and 17.02.2005.
(h) Pass any other orders which this Hon'ble Court
deems fit and proper in the facts and circumstances of
the case.”
7. The respondents appeared and have opposed the writ petition
on all material facts relating to the merits of the complaints. There
is vehement denial of all allegations of mismanagement and financial
irregularities by the respondent nos. 2 to 4. In view of the discussion
in the later part of the judgment, I am not dwelling at the point wise
response of the respondents at this stage. The various legal
objections to the maintainability of the writ petition by respondent
nos. 2 to 4 assailing the very existence of the clause in the
guidelines; legislative competence of the Union Government to
legislate with regard to the subject of sports and hence power to
issue executive instructions; bindingness of the guidelines;
competence of this court to issue a writ of mandamus to enforce non-
statutory guidelines and entitlement to any relief of the petitioner
have been challenged.
The respondent no. 1 has not joined issue with the objections
raised by the respondents.
8. Alongwith the writ petition, the petitioner has filed CM No.
5616/2005 praying for an interim direction to the respondents to
hold any future Annual General Meeting in accordance with the
applicable rules and regulations. A further prohibition was sought
6

restraining the respondent nos. 3 and 4 from participating in the
election process of the respondent no. 2 otherwise than in
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accordance with the guidelines dated 14 August, 2001 and inter
alia, a prayer was made not to hold any election to the post of Senior
th
Vice President till 28 January, 2006. As the hearing in the matter
was protracted and could not be completed by the parties, by an
th
order passed on 20 May, 2005, it was directed that the respondent
nos. 2 to 4 may proceed with the Annual General Meeting which was
rd
proposed to be held on 23 May, 2005. However, in case elections
were not held, the result thereof shall not be declared and be kept in
sealed cover.
9. Each objection taken by the respondents is of tremendous
importance so far as the issue of sports is concerned. For this
reason, the same are dealt with hereafter in the seriatum in which
the factual context would require them to be considered.
10. Sports has traditionally been considered an integral and
inseparable part of education. Measures in respect thereof fell to the
jurisdiction of the Department of Education under the Ministry of
Education & Social Welfare of the Government of India under the
Allocation of Business Rules framed by the Legislature in exercise of
powers under the Constitution of India. From as far back as in 1975,
the Government was deeply concerned with the growing criticism in
Parliament, Press and otherwise of the low standard of sports and
games and had so stated in the circular no. F.11-4/74-SPI dated the
th
20 September, 1975. It was also noted that the primary
7

responsibility for the development and management of sports and
games in the country especially as the necessary base for
competence in competitions overseas, rests with the Indian Olympic
Association/National/Sports Federations/Associations. As the efforts
of these organisations had fallen short of the country's expectations,
leading to widespread public concern, issues of necessary remedial
action were raised. The Government was concerned with the inability
to raise standards to international levels. It was also aware that the
various national organisations dealing with sports and games had
autonomous functioning. In this circular the Government had
clearly expressed that it had no desire to interfere either with the
internal working or the autonomy of these organisations. However
consistent with its obligations, it was felt that the Government had to
lay down certain norms with reference to which the Government's
assistance and its instrumentality should, on occasions, be made
available to the Indian Olympic Association/the National Sports
Federations/National Sports Associations.
In this background, the Government of India had considered
the matter carefully in consultation with the All India Council of
Sport and therefore decided that in the interest of promotion of
sports and games, the government's financial and other assistance
shall be extended only to those national organisations dealing with
sports and games which fulfilled certain conditions laid down in its
guidelines.
11. It is noteworthy that these guidelines were finalised on a
8

careful and prolonged consideration in inter-ministerial consultation
and with all those concerned and were titled as “Improvement of
Standard of Sports and Games in the country – Conditions For
Financial and Other Assistance to National Sports
Federation/Associations etc .”.
12. The Indian Olympic Association had participated in the
consideration and even requested for time to bring the constitution
of the Indian Olympic Association and concerned National Sports
Federations in line with the guidelines framed by the Government.
The same is apparent from a reading of clause 4, 5 and 6 of the
communication dated 20th September, 1975 of the Government of
India which read thus :-
“4. The guidelines, as enumerated above, have been finalised
after careful consideration of the points raised by the Indian
Olympic Association, National Sports Federation/Associations,
consequent on issue of this Ministry's earlier letter No. F.11-
4/74-YSS 1(2) dated 9th April, 1974, and on the basis of the
advice of the All India Council of Sports. The views expressed
by these organisations have been accommodated to the fullest
extent possible, consistent with the purpose for which the
guidelines are prescribed.
5. However, at the request of the IOA, Government have
agreed, as a special case to give time to the IOA and the
concerned National Sports Federations to change their
respective constitutions, finalise fresh elections where
necessary and take all other consequential action to fully and
finally implement the guidelines before the dates indicated
below :
(i) National Sports Federations/Associations 1.12.1975
(ii) Indian Olympic Association 31.1.1976
6. The IOA/National Sports Federations/Associations are now
requested to confirm immediately, but not later than
15.10.1975, that the guidelines as stipulated in this letter, are
acceptable to them, and that necessary action to implement the
“Guidelines” has been initiated. Details of the arrangements
9

made with regard to the amendment of the constitutions and
holding of fresh elections may also please be intimated.”

13. The guidelines and conditions were circulated by the Ministry
of Education & Social Welfare on 20th September, 1975 to all
Presidents/Secretaries of the Indian Olympic Association; and the
President's/Secretary's of all national sports federations and
associations. These guidelines inter alia stipulated that in order to be
eligible for financial and other assistance, the national organisation
was required to fulfil the following conditions :-
“(i). An office bearer of a National Federation/Association may
hold office as such for one term of 4 years, and may be eligible
for re-election for a like term or period.
(ii). No such office bearer shall hold office consecutively for
more than two terms or 8 years:”
The expression 'office bearer' was defined in explanation 1 as
the President; Secretary; the Secretary General or any other
corresponding office and the treasurer. Clause (i) of explanation 2
declared that no person who had already held these offices in the
National Federation/Association consecutively for two terms or 8
years shall be eligible to seek re-election to any of the said offices or
Vice-President or Treasurer till the expiry of a period of at least four
years from the date on which he last vacated his office.
The clause with regard to the tenure restriction of the named
office bearer was in operation right from 1975 when the Government
made the guidelines applicable for the purposes of recognition and
10

assistance from it were concerned.
14. With the passage of time, several national sports federations
came into existence for the development of specific games/sports
disciplines. In achieving their objectives, the Government of India
actively supported these federations. The existing guidelines for
assisting such national sports federations had been reviewed and
revised based on the experience for preparation of the Asian Games,
1994; Olympic Games, 1996. Recommendations of the committees
set up for promotion of sports were also taken into consideration. It
appears that some revision of the guidelines was given effect to from
10th July, 1997.
15. These revised guidelines were circulated as an order of the
Government of India with the letter dated 14th August, 2001 which
records that the revision was further to the revised guidelines
circulated by the Ministry with its letter dated 16th July, 1997. It was
pointed out that the guidelines stood amended upon consideration of
suggestions received from the Indian Olympic Association and the
National Sports Federations with the approval of the Ministry of
Finance, Department of Expenditure. The Government order clearly
stated that the amended provisions would come into force with
immediate effect. So far as the term of the office bearer was
concerned, there was no amendment to the prescription made in the
guidelines circulated with the approval of the Department of
Expenditure, Ministry of Finance. The Government order clearly
11

stated that the amended provisions would come into force with
immediate effect.
16. The petitioner has urged that the revised guidelines satisfied
all requirements of the manner in which a Government order is to be
made and circulated as prescripted in Article 166 of the Constitution
of India and became binding and applicable. It has been submitted
that the disbursement of grants and assistance was effected in terms
of these guidelines to the various National Sports Federations
including the respondent no. 2.
17. Though the respondents have tried to urge that the guidelines
originally were formulated during the period of emergency in the
year 1975, but from perusal of the guidelines issued on 20th
September, 1975, it is evident that they were under contemplation
and consideration from 1974. The period which was taken before
the issuance of the guidelines in September, 1975 was occupied in
consideration of the suggestions from the various agencies and the
fact that a state of emergency had been declared in June, 1975
would not influence adjudication on the bindingness of the
guidelines.
18. The Government recognised sports and games as an essential
ingredient of the human resource development. The amendments
were made keeping in view the discussions held by the Government
with the Indian Olympic Association and National Sports
Federations, which marked an important departure from the
12

approach followed in the past. Amongst others, the revision provided
for an emphasis on professionalising and upgrading administrative
and financial management of federations; detailed guidelines for
preparation of long term development plans; tripartite agreements
between the National Sports Federations, the department and the
Sports Authority of India; defined criterion for priority categorisation
for Government assistance; a discipline specific project approach for
processing cases for financial assistance; development of systems to
handle players' grievances inter alia were provided for.
The amendments were necessary to streamline the procedure
for effective coordination amongst various agencies involved in
promotion of sports and to extend required infrastructure, training
and other facilities to the sports persons for achieving excellence in
the international events in the coming years.
19. It is noteworthy that these guidelines incorporated innovation
also as 'the flow of funds to federations would also include a
substantial portion of the events of other major schemes of the
department apart from grants to National Federations'. The
perspective of the guidelines was stated in clause 1.4 which was to
help federations achieve financial self sufficiency over a period of
time thereby reducing their dependence on Government.
20. In view of the long submissions addressed by the respondents
contending that these guidelines are beyond he legislative
competence of the Parliament and are violative of the rights of the
13

citizens under Article 19 of the Constitution and are an unreasonable
restriction on their development, it is necessary to examine the
objective as well as the role and responsibility of the Ministry of
Youth & Sports as clearly delineated in the guidelines and the
relevant portions whereof read thus :-
“II. OBJECTIVE OF THE GUIDELINES
2.1 The objective of these Guidelines is three fold :
Firstly to define the areas of responsibility of the
various agencies involved in the promotion and
development of sports.
Secondly, to identify National Sports Federations
eligible for coverage under these guidelines, to set
priorities, and to detail the procedures to be followed by the
Federations, to avail of Government sponsorship and
assistance.
Thirdly, to state the conditions for eligibility which the
Government will insist upon while releasing grants to
Sports Federations.
III ROLE AND RESPONSIBILITY OF THE MYAS,
NATIONAL SPORTS FEDERATIONS AND THE SAF
3.1 The role and responsibility of the agencies involved in
implementation of the guidelines will be as follows :
(a) THE MINISTRY OF YOUTH AFFAIRS AND SPORTS
(i) will determine the eligibility conditions for recognition
of NSFs,
(ii) will establish categories to determine quantum and
scale of assistance which may be provided to NSFs will
have to fulfil if they wish to avail of Government support.
(iii) will lay down conditionalities which NSFs will have to
fulfil if they wish to avail of Government support.
(iv) will provide assistance to NSF against agreed long
term development programme.”
21. In clause IV, the respondent no. 1 had indicated that it would
prioritise sports disciplines for special focus and work out
differential patterns of assistance based on their status and
14

performance. The priority category included such sports which are
included in the Olympic, Commonwealth and Asian Games or such
other sports for which internationally recognised tournaments are
held in which at least 20 countries participated subject to fulfilment
of certain conditions.
So far as hockey is concerned, both men and women hockey is
included at serial no. 8 and 9 of the priority sports discipline.
22. With a view to codify the requirements for granting recognition
at the discretion of the Government to the national level federations
the Government has included Guidelines for Recognition of National
Sports Federations' and Annexure II to the Guidelines. Clause 2.2
thereto states that recognition shall mean recognition of the
leadership of the federation in the development of a particular sport
in the country.
23. The amended guidelines also contain a tenure clause for office
bearers which reads as follows :-
“3.5. Tenure of the Office-bearers:- The tenure of
office-bearers shall be in accordance with the
Government Orders issued under letter No. 11-4/74-
th
SP.I dated 20 September, 1975 (copy placed at
Annexure-XI). As per above Orders, Office-bearers of
NSI's may hold office for one term of four years and
may be eligible for re-election for a like term or period
provided the office bearers have secured not less than
2/3 votes of the members. However, no such office-
bearers shall hold office consecutively for more than
two terms or eight years.”
Clause 3.10 states that 'at the national level, there will be only
one recognised federation for each discipline of sport'. This clause
15

creates a monopolistic status for the national sports federation which
is recognised under the guidelines. Only the duly recognised
national sports federation would be entitled to financial grants as
admissible under the guidelines.
Clause 3.17 mandates that the federation must be autonomous
and resist all pressures of any kind whatsoever, whether of a
political, religious, racial or economic nature.
24. While laying down these conditions, the Government clearly
declared the reasons for the same and stated as follows :-
“ 5.1 xxxx. The intention is further to ensure that NSFs
maintain certain basic standards, norms and procedures with
regard to their internal functioning, which conform to the high
principles and objectives laid down by the concerned
International Federation, and which are also in complete
consonance with the principles laid down in the Olympic
Charter or in the constitution of the Indian Olympic
Association.”
25. While laying down the manner in which the federation seeking
recognition would have to apply, the respondent no. 1 had stated
thus:-
“5.2 II While considering the proposals for
recognition, the Ministry will be guided by the
following:
The current legal status of the Organisation
Recognition by the International and Asian
Federation.
Recognition by the IOA
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Its undisputed status as an Apex Body in India
Its all India spread
The role and contribution of the organisation in
promoting and developing Sports in India
Its internal financial and management practices
and standards.
Its electoral practices.
Its protection and promotion of players' interests
and welfare.”

26. In clause 5.3, the Ministry reserved the right to suspend or
withdraw the recognition of the National Sports Federation in the
event of a serious irregularities being detected in their internal
functioning. The procedure and consequences of suspension and de-
recognition were also indicated as an annexure 3 to the guidelines.
27. Clause 5.1 states that recognition of a federation shall not be a
matter of right and shall be purely at the discretion of the
Government of India which may grant recognition subject to such
terms and conditions as it deems fit. The Government has retained
the power to withdraw recognition which would disentitle the
federation from consideration of any proposal till the cause of the
suspension or withdrawal of the recognition is settled to the
satisfaction of the Government of India.
28. Condition IV in clause 6.1 prescribes that in order to be eligible
for financial assistance and sponsorship, the organisation must
maintain their recognised status with the department. Clause 6.2
stated that the National Sports Federation would be eligible for
assistance under these guidelines immediately after recognition. The
17

funds to the National Sports Federation would flow as grants or from
other schemes of the department for the purposes of the training
requirements; purchase of equipment; participation in tournaments
abroad hosting and holding tournaments in India including
international tournaments and for administrative support. Priority
category sports were entitled to financial assistance for coaches as
well as sports personnel; travelling expenses of players, residence,
board, lodging, training etc; assistance for purchase of sports
equipments; full assistance for participation in international events
as the Olympic, World, Asian, Commonwealth, SAF and Afro Asian
Championships/Games or mandatorily required international pre-
qualifying tournaments for these championships. Allowances for
board and lodging etc were also provided as additional assistance
detailed in the guidelines for other events including national level
championships, their organisation etc is also prescripted under these
guidelines.
29. Other aspects of the guidelines are provided in clause IX and
include clubbing and dove trailing of schemes of the Sports Authority
of India and the Ministry which have a direct bearing on the
promotion and development of sports in the country for which
tripartite agreements may be signed between the Sports
Federations, the Ministry and the Sports Authority of India.
The guidelines in para 10 also provided the selection of sports
persons for participation in major international events.
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30. In Clause 10.1 of the Guidelines, it is stated that the National
Sports Federations are primarily responsible for judicious selection
of the sports persons for participation in major international events
based on merit and with the objective of enhancing national prestige
and bringing glory to the country. It is observed that the best sports
persons/team has to be chosen for representing the country. The
Government has recognised that its intervention be minimised but in
recognition of the need to be associated+, instead of nominees of the
Government or Sports Authority of India, the guidelines now
stipulated that the Selection Committee would be constituted by the
Federation comprising of the President, National Coach and eminent
sports persons. The Government intervention was restricted to
appointing an observer for each discipline who would be associated
with all activities of the National Federation. The national coach
under clause 10.5 is required to be selected by a committee with the
president of the concerned NSF as its chairman; the Director
General, Sports Authority of India; executive director (Teams); one
international (preferably an Arjun Awardee or an international medal
winner) to be nominated by a Government nominee of the Indian
Olympic Association as its members. The coach would be shortlisted
from a panel prepared by the Sports Authority of India. The national
coach would be appointed by the Sports Authority of India after a
careful consideration of the name recommended by the Selection
Committee.
The Indian Hockey Federation/respondent no. 2 is stated to be
19

a society registered under the Societies Registration enactment.
31. A preliminary an objection has been raised that the
petition under Article 226 of the Constitution of India seeking
issuance of a writ against the respondent no. 2/Indian Hockey
Federation is not maintainable on the ground that it is a
society registered under the Societies Registration Act.
32. The very issue urged in the present writ petition arose before
the Division Bench of this court in the pronouncement reported at
114 (2004) DLT 323 Rahul Mehra & Anr. vs. UOI & Ors . An
objection to the maintainability of the petition against the Board of
Control for Cricket of India (a society registered under the Tamil
Nadu Societies Registration Act) was taken. The court observed that
the Government having entered into fields of commerce, industry
and business and private bodies taking up public functions and
duties, the distinction between public law and private law based on
the public or private character of the institution as a result of the
overlap, is no longer clearcut or water tight and law is necessarily
required to remain alive to these dynamics and has to be moulded
keeping in view the changes and developments in society.
33. Placing reliance on important judicial precedents of the Apex
Court wherein a similar question had been raised, the Division Bench
has culled down the applicable principles with utmost clarity which
deserve to be considered in extenso and read thus :
“9. In Anadi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R.
20

Rudani: (1989) 2 SCC 691, the Supreme Court
succinctly put this issue beyond the pale of
controversy in the following words :-
''20. The term ''authority'' used in Article 226 , in the
context, must receive a liberal meaning unlike the
term in Article 12 . Article 12 is relevant only for the
purpose of enforcement of fundamental rights under
Article 32 . Article 226 confers power on the High
Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights.
The words ''any person or authority'' used in Article
226 are, therefore, not to be confined only to statutory
authorities and instrumentalities of the State. They
may cover any other person or body performing public
duty. The form of the body concerned is not very much
relevant. What is relevant is the nature of the duty
imposed on the body. The duty must be judged in the
light of positive obligation with by the person or
authority to the affected party. No matter by what
means the duty is imposed, if a positive obligation
exists, mandamus cannot be denied.''
(underlining added)
The decision in Andi Mukta (supra) was further
explained in Vst Industries Ltd. v. Vst Industries
Workers' Union: (2001) 1 SCC 298 where the Supreme
Court observed as follows [at page 306] :-
''In Anadi Mukta case this Court examined the various
aspects and the distinction between an authority and a
person and after analysis of the decisions referred in
that regard came to the conclusion that it is only in the
circumstances when the authority or the person
performs a public function or discharges a public duty
that Article 226 of the Constitution can be invoked.''
And, then in G. Bassi Reddy v. International Crops
Research Institute:(2003) 4 SCC 225 the Supreme
Court held:-
''28. A writ under Article 226 can lie against a
''person'' if it is a statutory body or performs a public
function or discharges a public or statutory duty
(Praga Tools Corpn. v. C.A. Imanual, Shri Anadi Mukta
Sadguru Trust v. V.R. Rudani SCC at p. 6 and 8 and
VST Industries Ltd. v. Workers' Union)...... Although, it
is not easy to define what a public function or public
duty is, it can reasonably be said that such functions
are similar to or closely related to those performable
by the State in its sovereign capacity.''
21

Ultimately, in Federal Bank Ltd. v. Sagar Thomas:
(2003) 10 SCC 733:
''From the decisions referred to above, the position
that emerges is that a writ petition under Article 226
of the Constitution of India may be maintainable
against (i) the State (Government); (ii) an authority;
(iii) a statutory body; (iv) an instrumentality or agency
of the State; (v) a company which is financed and
owned by the State; (vi) a private body run
substantially on State funding; (vii) a private body
discharging public duty or positive obligation of public
nature; and (viii) a person or a body under liability to
discharge any function under any statute, to compel it
to perform such a statutory function.''
(underlining added)”
34. On a consideration of these binding principles, the Division
Bench laid down the applicable test thus :-
“8. Governments have ventured into the private arena
and private bodies, likewise, have undertaken public
duties or public functions. There is a degree of overlap
and the distinction is no longer clear-cut or
watertight. The law must be alive to these dynamics.
Accordingly, the question of maintainability of a writ
petition must not be addressed from the standpoint of
amenability. Everybody is amenable to the jurisdiction
of the High Courts under article 226 . However, Courts
have exercised restraint and they exercise these
powers only in cases which involve public law.
therefore, the ''litmus'' test for invoking the writ
jurisdiction is whether the act complained of is in the
discharge of a public duty or a public function. It
matters little as to who discharges the public duty or
performs the public function. And so too, the source of
the power to discharge or perform such duty or
function. Whether the person is empowered by statute
or some governmental order or whether such person
arrogates to himself the power to perform a public
function or discharge a public duty, is of no
consequence. What is to be seen is whether there is an
infraction in the discharge of such duty or function. If
there is, the High Court has power to correct it by
issuing an order, direction or writ to any person.
Funding is also not an issue. A privately funded
22

private organisation but discharging a public duty
would still be within the ''net'' of article 226 .”
(Emphasis supplied)
It is these principles which would guide adjudication of the
issue before this court.
35. The wider ambit of the jurisdiction of the High Court in exercise
of its extraordinary jurisdiction under Article 226 of the Constitution
of India as compared to the scope of a writ petition before the
Supreme Court under Article 32 needs no elaboration.
36. A question arose before the Apex Court in the judgment
reported at JT 2005 (2) SC 8 Zee Telefilms Ltd. & Anr. vs. UOI
& Ors. as to whether the Board of Control for cricket of India
('Board' hereafter) was not a 'state' within the meaning of article 12
of the Constitution of India.
In para 30 of the pronouncement, the majority view was
expressed that it cannot be denied that the BCCI does discharge
some duties like the selection of an Indian cricket team, controlling
the activities of the players and others involved in the game of
cricket which activities can be said to be akin to 'public duties' or
'state functions'. The position that the BCCI was exercising public
functions and was performing a public duty was accepted. It was,
however, held that the BCCI was in the nature of a private body
exercising public functions and performing public duties and that by
itself did not suffice to make such a body a state for the purposes of
article 12 of the Constitution of India and for this reason, a writ
petition under article 32 of the Constitution would not lie to the
23

Supreme Court. However, if there was any violation of any
constitutional or statutory obligation or rights of other citizen, an
aggrieved party can seek remedy under the ordinary course of law or
by way of a writ petition under article 226 of the Constitution before
the high courts.
37. The petitioners have urged at length that in any case no writ
could be issued against the Indian Hockey Federation for the reason
that it is not performing any statutory functions.
38. Both the majority and minority views in Zee Telefilms
concluded that judicial review against action of the BCCI would lie.
The divergence came in the remedy. There was no divergence on
the view that judicial review over the action of the national level
sports body could be exercised by the high courts under Article 226
of the Constitution of India. While the minority held that a writ
petition under Article 32 before the Apex Court would also be
maintainable, the majority judgment that an aggrieved party may not
have relief by way of a petition under article 32 before the Supreme
Court but can always seek remedy under the ordinary course of law
and also under the Constitution by way of a writ petition under
Article 226.
39. The evolution of jurisprudence on the issue in several
international pronouncements would guide consideration of this
objection. These have been relied upon in the minority judgment in
Zee Telefilms. It has been considered that when a public function is
delegated by a state to a board (Ref : Brentfood Academy vs.
24

Tennesee Secondary School Athletic Association. 531 US 288;
Pennsylvania vs. Board of Directors of City Trust of Philadephia 353
US 230, 331; I L Ed 2d 792; 77 S Ct 806 (1957); or when such
function is in terms of Governmental policies, or when the
Government is entwised in the management or control of such board;
a nominally private entity has been treated as a state actor (Ref :
Wests vs. Atkins at 56, 101 L Ed 2d 40; Edmonson vs. Leeseville
Concrete Co 500 US 614, 627 & 628). It was further held that the
character of a legal entity is determined neither by its expressly
private characterisation in statutory law nor by the failure of the law
to acknowledge the entities in separability from recognised
government officials or agencies.
40. The powers of the High Court under Article 226 are plenary
and it is constitutionally empowered to issue directions, orders or
writs to 'any person' for the enforcement of a fundamental right and
'for any other purpose'. However, as a rule of prudence and
convenience, the courts have avoided interference in matters
involving disputed questions of law or where alternate remedies for
dispute resolution are available. The courts have also restrained
their hands where the dispute raised is of a purely private nature
without any 'public law' element. However just as state activity has
not remained confined to the narrow issues of governance; private
enterprises are also not confined to areas of private activity and
there is a tremendous interplay between private players and activity
of public nature, with or without direct Government intervention or
25

involvement.
41. Increasingly courts are giving an expanded definition to the
rights of citizens. In the judgment reported at
MANU/SC/0246/1995 Secretary, Ministry of Information &
Broadcasting, Government of India & Ors. vs. Cricket
Association of Bengal & Ors. , the Apex Court was concerned with
an issue as to the rights under Art. 19(1)(a) in the context of the
right to telecast a sporting event and held that when a telecaster
desires to telecast a sporting event, it was held that it would
incorrect to say that the free speech element is absent from this
right. Sports is a form of expressive conduct. The right to freedom
of speech and expression under article 19 (1) (a) also includes the
right to educate, to inform, to entertain and also the right to be
educated, informed and entertained.
42. There are, however, limitations on the extent of judicial review
and the parameters in respect thereof were also laid down by the
Division Bench of this court in Rahul Mehra & Anr. vs. UOI & Ors .
The delineation of the applicable principles of law laid down by the
Bench applies on all fours to the issues raised before this court which
reads as follows:-
“15. The petitioner reiterated the following
observations of the learned single Judge in Ajay Jadeja
(supra), adopting the same as his submissions:-
''When the Government stands by and lets a body like
BCCI assume the prerogative of being a sole
representative of India for cricket by permitting BCCI
to choose the team for India for appearance in events
like the World Cup, then it necessarily imbues BCCI
with the public functions at least in or far as the
26

selection of the team to represent India and India's
representation in International Cricket fora and
regulation of Cricket in India is concerned. Thus the
monopoly status of the respondent No. 2 is evident. It
is also clear that such monopoly status is indisputably
state recognized as evident from the later of Ministry
of Culture, Youth Affairs an Sports dated 22nd
December 2000 and indeed by acquiescence of the
Government, can be considered state conferred.
Similarly the plea of the BCCI that it does not own or
lease the stadia is of no consequence as the stadia are
owned and leased by its members and it is not
disputed that all international matches are played in
such stadia. Similarly membership of BCCI of the
International Cricket Conference (ICC) cannot ipso
facto imply that it is not amenable to writ jurisdiction.
In fact BCCI represented India on this own showing
and depending upon the nature of the action
impugned, would be amenable to writ jurisdiction.''
We agree. BCCI, like everyone else, is amenable to
writ jurisdiction. However, not every action of BCCI
would be subject to the scrutiny of judicial review.
Only those actions which fall within the ambit of public
law would call for any direction, order or writ under
article 226 . Disputes or acts in the sphere of pure
private law having no traces of public law would not be
the subject matter of writs, directions or order to be
issued under article 226 .
17. At the cost of repetition, we may state that the
whole ''amenability'' issue is misplaced. A body, public
or private, cannot be categorised as ''amenable'' or
''not amenable'' to writ jurisdiction. The ''function''
test is the correct one to test maintainability. If a
public duty or public function is involved, any body,
public or private, qua that duty or function, and
limited to that, would be subject to judicial scrutiny
under the extraordinary writ jurisdiction of article
226 . The BCCI which is the smile repository of
everything cricket in India has attained this ''giant''
stature through its organisation, skill, the craze for
the game in India and last but not the least by the
tacit approval of the Government. Its objects are the
functions and duties it has arrogated to itself. Many of
these are in the nature of public duties and functions.
Others may be in the field of private law such as
private contracts, internal rules not affecting the
public at large etc.,. therefore, BCCI cannot be said to
be beyond the sweep of article 226 in all eventualities
27

for all times to come. That is the certificate that BCCI
wants from this court. We are afraid, we cannot grant
that. Consequently, this petition cannot be thrown out
on the maintainability issue.
This does not necessarily mean that the petitioners
would be entitled to the orders, directions or writs
that they seek. That will have to be examined on
merits.”
43. There is no dispute that the Indian Hockey Federation
represents the nation at the international bodies in matters relating
to hockey. In 483 US 522 : 1997 L.Ed. 2d 427 San Francisco Arts &
Athletics, Inc. vs. United States Olympic Committee and
International Olympic Committee, it was stated by Brennan, J that
the United States Olympic Committee performs a distinctive
traditional government function representing the nation to the
International Olympic Committee.
The same can be said of the Indian Hockey Federation and its
office bearers who represent the country and the board at
international forums.
44. As per the bye laws and constitution of Indian Hockey
Federation placed on record. Its address is the 'National Stadium,
New Delhi'. Clause 2 governing the jurisdiction states that the
jurisdiction of the Federation shall extend over the whole of the
Indian union. Under clause 3 of the Memorandum as ell as Rules &
Regulations of IHF – the respondent no. 2, its objects are inter alia
'to promote, encourage and develop the game of hockey in the Indian
union; to maintain general control of the game of hockey in the
Indian union and to keep it on the highest level of amateurism in
28

sports; to coordinate inter member activities in all possible ways
involving holding of inter member tournaments and national
championships tournaments; to encourage the formation of state,
regional and other associations for the control of the game in such
territory as may be assigned to them; to select teams to represent
India; to promote, control and finance visits of such teams abroad; to
control and regulate the terms and visits of any hockey team for the
Union of India going abroad; to promote control, if necessary, to
finance the visits to India of foreign teams' amongst other functions.'
In the definition clause, a 'member' is defined as any state or
regional body or a unit of a National character affiliated as a member
of the federation. Its membership under clause 3 is confined to the
controlling body for hockey in any state within the Indian union and
anybody or a unit of a national character to which the federation in
its discretion may grant affiliation'.
As per the Memorandum placed on record by the petitioner, it
had thirty three member associations which includes state
associations, Railway & Services Sports Control Boards.
45. So far as the BCCI was concerned, it was found that it received
no financial assistance from the State and that the Government does
not exercise any control over BCCI and non-statutory body. It had
also not received recognition under the guidelines from the
Government. For this reason, an argument was raised before the
court that it is a non-statutory body and no public duties were
imposed upon it by statute but that it was a society in the nature of a
29

'private club'.
In Rahul Mehra (supra) the Division Bench rejected this
argument as untenable holding that attention to the source of power
is misplaced and that “the error arose in viewing the classical
prerogative writs of, inter alia, certiorari, mandamus and prohibition
in the traditional sense as being used only against the government or
public authorities.”
46. The Division Bench compared the extensive powers conferred
on the High Courts under Article 226 of the Constitution of India, vis
a vis the traditional limited scope of judicial review under English
Law and held thus :-
“13. The BCCI has a monopoly over organized cricket
in India. Every youngster, maybe an aspiring Rahul
Dravid or an Irfan Pathan, who dreams to play cricket
for his State or zone or India cannot do so without the
permission and approval of the BCCI. We must not
forget that cricket, is no longer what it used to be. It
is not just a sport which people dressed in white
flannels and rolled up shirt-sleeves enjoyed on lazy
summer's afternoons in England between sips of tea
and munches of scones. It is no longer the reserve of
the nawabs, the maharajas, the brown sahibs and the
rich who had the time and the inclination. It now
permeates all levels of society. To many it presents
itself as an opportunity to a better livelihood. Cases
abound in India, where cricket has brought financial
succour to persons and their families who were
otherwise doomed to lead lives enslaved in poverty.
Cricket is regarded as a profession, an avocation.
Many in India, play cricket not just for the love of the
game but for to heir own survival. The BCCI performs
the vital public duty and function of providing this
opportunity. It has an elaborate network and is a
massive organisation controlling every aspect of
cricket in India. Dr Singhvi, the learned senior counsel
who appealed on behalf of BCCI, submitted that no
part of the capital of BCCI is held by the Government;
no financial assistance of the State is enjoyed by it;
30

the Government does not exercise any control over it;
BCCI is a non-statutory body; no public duty is
imposed upon it by statute; it is a society, nothing but
a ''private club'' and as such issuance of a writ against
it would be completely beyond the scope of article 226
of the Constitution of India. This argument is
untenable in the light of the discussion above.
Attention to the source of the power is misplaced.
Perhaps, the error arises in viewing the classical
prerogative writs of, inter alia, certiorari, mandamus
and prohibition in the traditional sense as being used
only against the government or public authorities.
English law is struggling to break out of this tradition
and the scope of judicial review, while it is expanding
is doing so ever so slowly and lags behind even Scots
law18. In India, we have no such difficulty as the
framers of our Constitution have unshackled us from
the traditional fetters and have given us Article 226
which is much wider because it contemplates the
issuance of ''directions, orders or writs, including
writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights
conferred by Part III and for any other purpose'' to
''any person or authority, including in appropriate
cases, any Government''. The fact that the
Government has no financial stake in or control over
BCCI is, therefore, not relevant. We are not examining
the issue as to whether BCCI falls within the meaning
of ''State'' as defined in article 12 . And, we need not,
because the word ''State'' does not appear in article
226 at all! We are examining the question of issuance
of orders, directions or writs to ''any person''.
Assuming that the BCCI is merely a ''private club'',
even then a writ could be issued to it provided, of
course, it was for remedying an infraction of a public
duty or Public function.”
47. Just as the BCCI controlling the game of cricket in India, it is
not disputed that the Indian Hockey Federation controls the game of
hockey in the country at all levels whether it be the sub-junior,
junior, senior level players or the state, zonal, national or
international tournaments. Its members are the state hockey
31

associations and boards of government departments as railways and
services also controlling the game in their services all over the
country etc. The Indian Hockey Federation has been recognised as a
national sports federation. Akin to the control of the BCCI over
cricket players, the Indian Hockey Federation exercises complete
control over team selection and appointment of referees and umpires
organisations of the several hockey events. The Indian Hockey
Federation also imparts coaching and is required to be concerned
with the welfare of the hockey players. It has access to the national
sports coaches as well as sports facilities generated, developed and
maintained by the Government of India. At international forums and
sports events, the team selected by the Indian Hockey Federation is
known as the Indian team, wears the Indian colours and carries the
National Flag. The team selected by it as representing India is so
recognised by not only this country but against the international
opponents.
48. The Indian Hockey Federation regulates the sport of hockey for
the entire country. The Federation represents India in international
bodies, agencies, associations and forums; appoints India's
representative thereto and maintains control and regulation over
coaches, umpires, players and managers etc. There can be no denial
that the respondent no. 2 is performing public functions.
49. The submission on behalf of the respondents also fails to
consider the wide powers conferred under article 226 of the
Constitution of India noted hereinabove. Furthermore, this objection
32

to the maintainability of the writ petition on the ground that the
Indian Hockey Federation was a private registered body is contrary
to the well settled legal principles and is held to be legally untenable.
Legislative competence of the Union of India for framing laws
for regulating sports at the Inter-state, National and
International level.
th
50. Placing reliance on entry 33 of list II of the 7 Schedule of the
Constitution of India, the respondents including the Union of India
have submitted that the parliament has no power to make laws on
the subject of sports. It has further been urged that in view of the
mandate of article 73, the executive power of the union extends to
the subject matter on which the parliament alone is competent to
make law. It is consequently urged that the parliament does not
have the legislative competence to frame any law on the subject
matter of sports as the same is covered as Entry 33 under the List II
which is within the legislative competence of the state and further
that the Union of India has also no power to issue any executive
instructions or guidelines which would regulate or control sports in
view of article 73 of the Constitution. The respondents rely on the
pronouncement of the Apex Court reported at ( 1996) 3 SCC 709
State of A.P. & Ors. vs Mcdowell & Co. & Ors. in support of this
submission. It is contended that the doctrine of occupied
fields/repugnancy has to be applied only to the entries in the list III
of the Seventh Schedule.
51. It has been submitted at length by Mr. V.P. Singh, learned
33

senior counsel for the Indian Olympic Association and by Dr. A.M.
Singhvi, learned senior counsel representing respondent nos. 2 to 4
that the respondent no. 2 as well as other national sports federations
are registered under the Societies Registration Act or under various
state legislations on the subject which alone would have the
jurisdiction to regulate such sports activities which are regulated by
these federations and associations.
52. The basic framework for distribution of legislative power
between the Union and the States and the foundation for a federal
set up for the nation was set out in the Government of India Act,
1915 and 1935. Even though this distribution has not been adopted
verbatim in the Constitution but the basic scheme remains the same.
53. The rules of constitutional interpretation have been laid down
thus by the learned H.M. Seervai in the Constitutional Law of India
in para 2.12 of the Fourth Edition thus :-
“2.12 The golden rule of interpretation is
that words should be read in their ordinary, natural
and grammatical meaning subject to the rider that in
construing words in a Constitution conferring
legislative power the most liberal construction should
be put upon the words so that they may have effect in
their widest amplitude. But this rider is subject to
certain exceptions. Thus a restricted meaning may be
given to words in order to prevent a conflict between
two exclusive jurisdictions........A restricted meaning
may have to be given by considering the language of
the conflicting provisions together and, if necessary, by
modifying the language of the one in the light of the
other. In some cases such light might be thrown by the
legislative history of one, or both, the powers.”
The principles of contemporanea expositio ('contemporaneous
exposition') have also been applied as a tool for interpretation of
34

statutes to construction of earlier statutes.
54. In the instant case, a question as to distribution of legislative
powers between the Union and the States has been raised. Apart
from the objection by respondent nos. 2 to 4, interestingly it is the
stand of the Central Government as well that it does not have
legislative competence on the subject of sports.
55. The extent of legislative powers and its distribution between
the Union of India and the legislature of a state is provided under
article 245 of the Constitution of India which mandates that the
parliament may make laws for the whole or any part of the territory
of India and the legislature of a state may make laws for the whole or
any part of the state.
56. The distribution of the subject matter of laws between those
made by the parliament and those by the legislature of state is
provided by article 246 of the Constitution of India. The parliament
has thereby the exclusive power to make laws with respect to any of
th
the matters enumerated in list I in the 7 Schedule which is referred
to as the Union List. So far as the matters enumerated in the list
th
referred to as the Concurrent List III in the 7 Schedule of the
Constitution is concerned, the parliament, and, subject to clause (1),
the legislature of any state has the power to make laws with respect
to any of the matters enumerated in this List. The legislature of any
state has the exclusive power to make laws for such state or any part
thereof with respect to any of the matters enumerated in list II of the
th
7 Schedule of the Constitution.
35

By virtue of clause 4 of article 246, the parliament is further
empowered to make laws with respect to any matter for any part of
the territory of India not included in a state notwithstanding that
such matter is a matter enumerated in the state list.
57. The power of the parliament under article 246 (1) is supreme
whereas the power of the State legislature in respect of laws under
list II is subject to power exercised by parliament in respect of laws
under list I. However, it has been repeatedly held that while
interpretating central laws and state laws, a harmonious
construction is to be adopted and repugnancy should be avoided.
58. An issue as to the rule of construction in respect of items in the
Federal and Provincial legislative lists had arisen before the Federal
Court in the judgment reported at AIR 1941 Federal Court 47
A.L.S.P.P.L. Subrahmanyan Chettiar vs. Muttuswami Goundan
and the Advocate General Madras (intervenor). The question
which was raised was as to whether the Madras Agriculturists Relief
Act (4 of 1938) was a legislation with respect to matters in List I or
List II in Schedule 7 of the Government of India Act, 1935 and it was
challenged that the same was ultravires of the provincial legislature
as it encroached upon the subject matter of the entries in list I. The
court was called upon to construe the principles which would govern
interpretation of the conferment of legislative power by the lists.
The court observed that it was impossible to deny that the State Act
encroached upon the field covered by instruments which were the
subject matter of List I and that it was open to the provincial
36

legislature expressly to exclude such instruments from the operation
of the Act under consideration but that had not been done. For this
reason, it was held that there was an apparent overlapping and no
clearcut demarcation was discernible with regard to the extent of the
trespass on the Federal legislative field. So as to avoid the obvious
conflict, Gwyer C.J. had referred to different principles of
interpretation. Advancing the principles of 'restricted
interpretation', it was observed that the principle of interpretation
which was applied in 1939 F C R 18 at pp 74, 75 and 87 was that it
should certainly be the earnest endeavour of the court to avoid a
conflict between two apparently competing entries, as too liberal an
interpretation given to both of them might create a clash. “As far as
possible, an undefined term should not be given such a wide scope as
to include a particular provision.” If a subject comes within a special
and specific provision, and can only by defining and enlarging the
meaning of the words be brought within the scope of the general,
then the special provision should be considered to be exclusive of the
other. But, of course, where such a restricted interpretation is not
possible, overlapping may be inevitable.
Furthermore, the learned Judge adverted to the principle of
exception which have been relied upon by other judges in other
pronouncements with which he did not agree in view of the
provisions of the Government of India Act. Gwyer C.J. while
considering the reliance of the Advocate General of India on the
residual power of the Federal Government under section 104 of the
37

Government of India Act had held that resort to that residuary power
should be the very last refuge. It was further stated that it is only
when all the categories in the three lists are absolutely exhausted
that one can think of falling back upon a non-descript.
59. A similar issue relating to the legislative competence of the
Federal legislature and Provincial legislature under the two lists in
the Government of India Act, 1935 fell for consideration before the
Federal Court in the judgment at AIR 1939 FC 1 titled “In the
matter of the Central Provinces & Berar Sales of Motor Spirit
& Lubricants Taxation Act, 1938 .
On the aspect of principles guiding interpretation of legislative
powers of the Federal & Provincial legislatures, Jayakar, J. referred
to cases of conflict between the jurisdiction and legislative
competence of the Parliament of the Dominion and the provinces
jurisdiction. After a detailed consideration of the Privy Council on
this issue, the learned Judge set out earlier valuable principles for
interpretation. Those which guide the questions raised before this
court deserve to be considered in extenso and read thus :-
“(1) That the provisions of an Act like [the Government
of India Act, 1935, should not be cut down by a narrow
and technical construction, but, considering the
magnitude of the subjects with which it purports to
deal in very few words, should be given a large and
liberal interpretation, so that the Central Government,
to a great extent, Attorney-General for Canada v.
Attorney-General for Ontario (1937) 24 A I R P C 89
but within certain fixed limits, may be mistress in her
own house, as the Provinces, to a great extent, but
again within certain fixed limits, are mistresses in
theirs: see (1930) A.C. 12436 at pp. 136 and 137.

38

xxxx
(3) Where there is an absolute jurisdiction vested in a
Legislature, the laws promulgated by it must take
effect according to the proper construction of the
language in which they are expressed. But where the
law-making authority is of a limited or qualified
character, obviously it may be necessary to examine,
with some strictness, the substance of the legislation,
for the purpose of determining what it is that the
Legislature is really doing: Attorney-General for
Ontario v. Reciprocal Insurers (1924) A.C. 328 at p.
337.
xxx
(5) In the interpretation of a completely self governing
constitution founded upon a written organic
instrument (such as the Government of India Act of
1935) if the text is explicit, the text is conclusive, alike
in what it directs and what it forbids. When the text is
ambiguous, as, for example, when the words
establishing two mutually exclusive jurisdictions are
wide enough to bring a particular power within either,
recourse must be had to the context and scheme of the
Act: Att.-Gen. for Ontario v. Att.-Gen. for Canada
(1912) A.C. 571,at page 583.”
60. The principles of interpretation of the items in the Lists laid
down by the Federal Court were relied upon by the Apex Court in
(2002) 4 SCC 275 UOI vs. Delhi High Court Bar Association &
Ors. The court stated the law in the following terms :-
".. As pointed out by Gwyer C.J. in The United Provinces v.
Atiqa Begum [1940] F.C.R. 110 at page 134 none of the
items in the Lists is to be read in a narrow or restricted
sense and that each general word should be held to extend
to all ancillary or subsidiary matters which can fairly and
reasonably be said to be comprehended in it. It is, therefore,
clear-and it is acknowledged by Chief Justice Chagla-that in
construing an entry in a List conferring legislative powers
the widest possible construction according to their ordinary
meaning must be put upon the words used therein. The
cardinal rule of interpretation, however, is that words
39

should be read in their ordinary, natural and grammatical
meaning subject to this rider that in construing words in a
constitutional enactment conferring legislative power the
most liberal construction should be put upon the words so
that the same may have effect in their widest amplitude."
(Emphasis added)
It needs no further elaboration that legislative heads of power
should be read and understood in their widest amplitude and sense.
The same appearing elsewhere in the constitution may be required to
be construed as limited by the context and in the light of the words
preceding and following that phrase. However so far as the
expression appears as a legislative head of power in the lists, the
same cannot be given a restricted meaning (Ref : AIR 1965 Madras
11 In Re. N.V. Natarajan & Anr.)
61. A question requiring determination as to whether a particular
law is relating to a particular subject mentioned in one list or
another, requires the court to take recourse to the doctrine of pith
and substance which requires ascertaining the true character of the
legislation. The enactment as a whole is required to be examined as
well as its main objects and regard has to be added to the scope and
effect of its provisions. The inquiry is to ascertain as to whether the
enactment in question is genuinely referrable to the field of
legislation allotted to the state under the constitutional scheme (Ref :
(2005) 1 SCC 394 E.V. Chenniah vs. State of A.P. & Ors. ).
62. The principles on which this doctrine evolved and the manner
of its application are best stated by the Privy Council in its
40

pronouncement reported as AIR 1947 PC 60 Prafulla vs. Bank of
Commerce wherein the court stated that :-
“33. Similarly, any item in the Concurrent List if dealt
with by the Federal Legislature is outside the power of the
Provinces and it is only the matters specifically mentioned
in list II over which the province has complete jurisdiction,
although so long as any item in the Concurrent list has not
been dealt with by the Federal Legislature the provincial
legislature is binding.
33. In their lordship' opinion this argument should not
prevail. To take such a view is to simplify unduly the
task of distinguishing between the powers of divided
jurisdictions. It is not possible to make so clean a cut
between the powers of the various legislatures: they
are bound to overlap from time to time.
34. Moreover, the British Parliament when enacting the
Indian Constitution Act had a long experience of the
working of the British North America Act and the
Australian Commonwealth Act and must have known
that it is not in practice possible to ensure that the
powers entrusted to the several legislatures will
never overlap. As Sir Maurice Gwyer C.J. Said in
1940.FC.R.188'(supra) at P.201:
“It must inevitably happen from time to time that
legislation though purporting to deal with a subject in
one list, touches also upon a subject in another list,
and the different provisions of the enactment maybe
so closely interwined that blind adherence to a strictly
verbal interpretation would result in a large number
of statutes being declared invalid because the
legislature enacting them may appear to have
legislated in a forbidden sphere. Hence the rule
which has been evolved by the Judicial Committee,
whereby the impugned statute is examined to
ascertain its pith and substance or its true nature and
character for the purpose of determining whether it is
legislation with respect to matters in this list or in
that.”
35. Their Lordships agree that this passage correctly
describes the grounds upon which the rule is founded,
and that it applies to Indian as well as to Dominion
legislation. No doubt experience of past difficulties
has made the provisions of th Indian Act more exact in
some particulars and the existence of the concurrent
41

list has made it easier to distinguish between those
matters which are essential in determining to which
list particular provisions should be attributed and
those which are merely incidental. But the
overlapping of subject-matter is not avoided by
substituting three lists for two or even by arranging
for a hierarchy of jurisdictions.
36. Subjects must still overlap and where they do the
question must be asked what in pith and substance is
the effect of the enactment of which complaint is
made and in what list is its true nature and character
to be found. If these questions could not be asked,
much beneficent legislation would be shifted at birth,
and many of the subjects entrusted to provincial
legislation could never effectively be dealt with.
37.
(3) Thirdly, the extent of the invasion by the
provinces into subjects enumerated in the Federal list
has to be considered. No doubt it is an important
matter, not, as their Lordships think, because the
validity of an Act can be determined by discriminating
between degrees of invasion, but for the purpose of
determining what is the pith and substance of the
impugned act. Its provisions may advance so far into
Federal territory as to show that its true nature is not
concerned with Provincial matters, but the question is
not, has it trespassed more or less, but is the trespass,
whatever it be, such as to show that the pith and
substance of the impugned Act is not money lending
but promissory notes or banking? Once that question
is determined the Act falls on one or the other side of
the line and can be seen as valid or invalid according
to its true content.
38.
This view places the precedence accorded to the
three lists in its proper perspective. No doubt where
they come in conflict, List I has priority over Lists III
and II and List III has priority over List II, but, the
question still remains, priority in what respect? Does
the priority of the Federal Legislature prevent the
Provincial Legislature from dealing with any matter
which may incidentally affect any item in its list or in
each case has one to consider what the substance of
an Act is and, whatever its ancillary effect, attribute it
to the appropriate list according to its true character?
In their Lordships' opinion the latter is the true view.”
(emphasis supplied)
63. Mr. P.P. Malhotra, learned ASG relied upon para 35 of the
42

pronouncement reported at Hindustan Lever & Anr. Vs State of
Maharashtra & Anr. (2004) 9 SCC 438 wherein the court placing
reliance on earlier pronouncements held thus :-
“35. If the matter is within the exclusive competence
of State Legislature, i.e., List II then the Union
Legislature is prohibited to make any law with regard
to the same. Similarly, if any matter is within the
exclusive competence of the Union, it becomes a
prohibited field for the State Legislatures. The
concept of occupied filed is relevant in the case of
laws made with reference to entries in List III. The
doctrine of covered field has to be applied only to the
Entries in List III. This proposition of law is well
settled in a number of decisions of this Court
including State of A.P. and Ors. v. Mcdowell &
Co. and Ors. MANU/SC/0427/1996 ; State of
Rajasthan and Ors. v. Vatan Medical & General
Store and Ors., MANU/SC/0198/2001 and Shri
Krishsna Gyanoday Sugar Ltd. and Anr. v. State
of Bihar, 2003 (2) Scale 226.”
64. In AIR 1975 Andhra Pradesh 50 (51) Lachmandas
Balachand, Paradise Lottery Centre, 124, Park Lane
Secunderabad & Ors. v. The State of Andhra Pradesh & Ors. , it
was held that since the power of the state legislature to legislate
with respect to matters in list II is made subject to the power of the
parliament to legislate with respect to matters in list I, it follows that
if entries in list I and list II appear to overlap, i.e., if they appear
partly to cover the same field, the field of legislation covered by the
entry in list I must be considered to be taken out of the scope of the
entry in list II and deserves to be especially dealt with by parliament.
In other words, to that extent, the power of the state legislature must
be considered to be curtailed.
65. The supremacy of the parliament has been provided for by the
43

non-obstante clause under article 246 (1) and the words 'subject to'
in article 246 (2) and (3). Under article 246 (1), if any of the entries
in the three lists overlap, the entry in list I will prevail. (Ref : AIR
2007 SC 1584 Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex.
Pvt. Ltd. & Ors. : 2007 AIR SCW 2325 Greater Bombay Coop. Bank
Ltd. vs. United Yarn Tex. Pvt. Ltd.)
66. In view of the above discussion, it needs no elaboration that the
state legislatures have no legislative competence to legislate with
regard to any subject outside the territorial boundary of the State.
67. The relevant constitutional scheme and entries have to be
tested on these binding principles.
68. The respondents place reliance on Entry 33 of List II which
reads :-
“33. Theaters and dramatic performances; cinemas
subject to the provisions of Entry 60 of List I, sports,
entertainments and amusements.”
In terms of entry 33 of list II, the encouragement of sports is a
state function. Entries in the list are to be given their ordinary and
natural meaning. The power to make laws with respect to sports as
per Entry 33 in List II of the State legislature is to be construed as a
power to legislate and regulate sports restricted to the precincts of
the state and ending at its boundaries. It is amply clear that the
State Government by reason of legislative action, cannot confer on
itself any extra territorial jurisdiction even in relation to sports or the
subjects which form part of entry 33.
44

69. It cannot be contended or held that a state government can
control or regulate national teams; inter-state and international
sporting events, national level coaching or international events or
inter-state, national and international sporting relations. The State
Government also cannot issue guidelines on the manner in which the
Central Government is to dispense its largesse including financial
assistance.
70. It cannot also regulate the manner in which the Central
Government shall grant recognition to a sports association or
federation as a national level body. It cannot be anybody's case that
without such recognition, the association can select a national team.
71. Sports at the state level is really a minuscule part of the
enormous activities which it takes under its ambit. In its larger
multi-faceted, inter state, national and international facets is
undeniably beyond the legislative competence of the State
Government.
Sports at these levels has to be held to be an exception to the
general power to legislate conferred on the state legislature by the
Constitution.
72. When Entry 33 of List II is so read, it is clearly evident that the
general and residuary powers in all matters relating to sports at the
national level remain beyond the legislative competence of the State.
Hence the same would be clearly beyond the executive competence
of the State as well.
73. The important question which is required to be answered is as
45

to the manner in which a subject which for some purposes falls
under the competence of one legislature, and for others beyond it, is
to be treated for legislative purposes.
74. Sports is not exclusively and explicitly mentioned as a subject
in List I or III.
75. Mr. P.P. Malhotra, learned ASG has submitted at length that
there is no constitutional provision which enables any authority to
legislate or exercise executive control over national level and
international level sports.
76. The submission on behalf of the respondents fails to consider
the admitted position that the state government does not have the
legislative competence to legislate nor the executive power to issue
executive instructions or guidelines with regard to the regulation
and control sports at the national level. Admittedly other than three
states there is no legislation by either the Parliament or the State
Government to control or regulate sports. There is no legislation at
all on any respect of sports at the national level. Furthermore no
state government has issued any executive instructions or passed
any administrative orders on this aspect, which is rightly so.
77. Sports at the macro level has gone beyond not only the
boundary of the State but much beyond the national boundaries.
Several important issues of expertise and diplomatic relations have
come into play. The consideration of sports at the narrow state level
loses all significance when examined from these aspects.
78. In addition to the above, Mr. Arun Jaitley, learned senior
46

counsel appearing for the petitioners has placed reliance on several
other entries in List I and List III. Reliance is placed on Entry 25 in
List III which reads as follows :-
“25. Education, including technical education,
medical education and universities, subject to the
provisions of entries 63, 64, 65 and 66 of List I;
vocational and technical training of labour.”
79. It is noteworthy that by the Constitution (Eighty Sixth)
amendment, Article 21A conferring the right to education has been
incorporated in Chapter 3 of the Constitution of India.
The role and responsibility of the State so far as education is
concerned has to be given an expanded meaning which would take
within its fold the requirement of encouragement of sports and
provision of all facilities at the national level.
80. It has been pointed out that sports has always been considered
as an integral part of education and human resources development
and for this reason it was a complete department under the Ministry
of Human Resource Development.
81. Any educational programme would be incomplete without
sports being an essential part of the same. Participation of the
Indian team puts at stake the national reputation. At the same time,
in order to be able to contribute to matters of rules, regulations and
sporting policies, it is essential that national level bodies or their
personnel are involved in international level decision making.
82. In exercise of executive functions under Article 77 of the
Constitution of India, the President of India has notified the
47

Government of India (Allocation of Business) Rules, 1961. Having
regard to the importance given to the aspect of sports, a separate
ministry known as 'the Ministry of Youth Affairs and Sports' has been
constituted. So far as in Rule 3 setting out the allocation of business
and distribution of subjects is concerned, the same is specified in the
nd
2 Schedule to the rules and includes all attached and subordinate
offices or other organisations including public sector undertakings
nd
concerned with the subjects. I find that in the 2 Schedule so far as
the Ministry of Youth Affairs & Sports is concerned, the following
subjects are allocated to it :-
“1.Sports Policy
2.Sports and Games
3. National Welfare Fund for Sportsmen
4. Netaji Subhas Natinal Institute of Sports
5. Sports Authority of India
6. Matters relating to the indian Olympic Association and
National Sports Federations.
7. participation of Indian Sports teams in tournaments
abroad and participation of foreign sports teams in
international tournaments in India.
8. National Sports Awards, including Arjuna Awards.
9. Sports Scholarships
10. Exchange of Sports persons, youth delegation, experts
and teams with foreign countries.
11. Sports infrastructure, including financial assistance
for creation and development of such infrastructure.
12. Financial assistance for coaching, tournaments,
equipment etc.
13. Sports matters relating to Union Territories.”
83. From the above, there can be no manner of doubt that sports
has been considered an integral part of the earlier the Ministry of
Human Resource Development and now Ministry of Youth Affairs and
Sports an independent ministry.
84. National Sports Federations as recognised by the Government
48

may be established as private bodies. However in order to become a
representative body as a national federation representing the
country, it is essential that they be so recognised by the Government.
They would have no authority to enforce any degree of regulation or
control over the various state bodies but for the authority which is
vested on them only by virtue of the recognition granted by the
Government.
85. It may be desirable that sports federations have autonomy in
areas of the actual conduct of sports. However to represent India as
a nation at international sports meets as well as international fora, it
is an essential part of Government function that scrutiny is effected
by the sporting event or the forum in which participation is
proposed. The source of the legislative competence of the
Government to do so is derived from entry 10 and 13 of List I which
read thus :-
“10. Foreign affairs, all matters which bring the Union
into relation with any foreign country.
13. Participation in international conferences,
associations and other bodies and implementing of
decisions made thereat.”
86. There can be no argument that international sporting events
have been considered an essential part of diplomatic relations of the
nations. Nuances of hostility in political relations, issues of defence,
security concerns of players, objections on account of policies of
discrimination, apartheid and perceived human right violations have
guided nations in decisions to or not to participate in sporting events
in different countries. Political and diplomatic clearance is required
49

by the Indian teams before participation in the international
tournaments and forums. No State Government would have the
competence or the jurisdiction to undertake such exercise. This is
clearly the province of the Union Government.
87. It was pointed out on behalf of the petitioners that
entertainment tax is a state subject which is leviable on sporting
events when considered as part of entertainment. However when
such an event is proposed, an issue as to whether visas or permission
have to be given or denied to sports persons of a particular country
would squarely fall for consideration before the Ministry of Foreign
Affairs of the Central Government. On issues of security, the matter
may require clearance of the Ministry of the Finance or Ministry of
Home Affairs as well. Issues of foreign exchange to meet expenses
of teams and personnel travelling abroad may involve interaction
with the Ministry of Finance as well.
88. The Union Government is involved with dispensation of
financial assistance.
If applied in reverse, certainly no state would have the legal
competence to manage, control or regulate the national level body or
the game or discipline.
89. From the above discussion, it is apparent that sports, when
construed from the aspect of Entry 33 in List II has to be confined to
sports at the state level alone.
90. In ( 1981) 4 SCC 391 Southern Pharmaceuticals &
Chemicals Trichur & Ors. vs. State of Kerala & Ors ., in
50

determining whether the enactment is a legislation 'with respect to'
a given power, “what is relevant is not the consequences of the
enactment on the subject matter or whether it affects it, but
whether, in its pith and substance, it is a law upon the subject matter
in question. The Central and the State Legislations operate on two
different and distinct fields. The Central Rules, to some extent,
trench upon the field reserved to the State Legislature, but that is
merely incidental to the main purpose, that is, to levy duties of excise
on medicinal and toilet preparations containing alcohol. Similarly,
some of the impugned provisions may be almost similar to some of
the provisions of the Central Rules, but that that does not imply that
the State Legislature had no competence to enact the provisions.”
91. The petitioners have placed reliance on a pronouncement of the
Apex Court reported at ( 2006) 3 SCC 1 BSNL vs. UOI. Placing
reliance on an earlier pronouncement reported at ( 1989) 3 SCC
634 Federation of Hotel & Restaurant Association of India vs.
UOI , the Apex Court held that subjects which in one aspect and for
one purpose fall within the power of a particular legislature, may in
another aspect and for another purpose fall within another
legislative power. There might be overlapping; but the overlapping
must be in law. For instance, the same transaction may involve two
or more taxable events in its different aspects. But the fact that
there is overlapping does not detract from the distinctiveness of the
aspects.
92. The most apt enunciation of the principles which would guide
51

adjudication in the instant case is provided in the pronouncement of
the Apex Court reported at (2002) 8 SCC 228 UOI & Ors. Vs.
Shah Goverdhan L. Kabra Teacher's College wherein the court
held thus:-
“It is further a well-settled principle that entries in
the different lists should be read together without giving
a narrow meaning to any of them. Power of the
Parliament as well as the State legislature are expressed
in precise and definite terms. While an entry is to be
given its widest meaning but it cannot be so interpreted
as to over-ride another entry or make another entry
meaningless and in case of an apparent conflict between
different entries, it is the duty of the court to reconcile
them. When it appears to the Court that there is
apparent overlapping between the two entries the
doctrine of “pith and substance” has to be applied to find
out the true nature of a legislation and the entry with
which it would fall. In case of conflict between entries in
List I and List II, the same has to be decided by
application of the principle of “pith and substance”. The
doctrine of “pith and substance” means that if an
enactment substantially falls within the powers expressly
conferred by the Constitution upon the legislature which
enacted it, it cannot be held to be invalid, merely because
it incidentally encroaches on matters assigned to another
legislature. When a law is impugned as being ultra-vires
of the legislative competence, what is required to be
ascertained is the true character of the legislation. If on
such an examination it is found that the legislation is in
substance one on a matter assigned to the legislature
then it must be held to be valid in its entirety even though
it might incidentally trench on matters which are beyond
its competence. In order to examine the true character of
the enactment, the entire Act, its object and scope and
effect is required to be gone into. The question of
invasion into the territory of another legislation is to be
determined not by degree but by substance. The doctrine
of “pith and substance” has to be applied not only in
cases of conflict between the powers of two legislatures
but in any case where the question arises whether a
legislation is covered by particular legislative power in
exercise of which it is purported to be made.”
93. The Ministry of Youth Affairs & Sports is assigned a budget
52

allocation and the dispensation of financial assistance to the sports
federations is part of such allocation whereby tax payers money is
utilised towards assistance to sports.
94. The states have not enacted any laws except the State of Uttar
Pradesh which has enacted Uttar Pradesh Sports (Registration,
Recognition and Regulation of Associations) Act, 2005; the State of
Himachal Pradesh which has enacted The Himachal Pradesh Sports
(Registration, Recognition and Regulation of Associations) Act, 2005
and the state of Rajasthan which has enacted The Rajasthan Sports
(Registration, Recognition and Regulation of Associations) Act, 2005.
These statutes are restricted to the respective states for their
application.
95. None of the other state governments have enacted any
legislation under article 33 of list II.
96. My attention is drawn to the pronouncement of the Apex Court
reported at JT 2005 (2) SC 165 Prefessor Yashpal & Anr. vs.
State of Chattisgarh & Ors . In this case, the Apex Court was
concerned with the validity of The Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002 which
provided for establishment of self financed private universities for
higher education in the stage of Chattisgarh. The legislative
provisions permitted such universities to affiliate any college or
other institution or to set up more than one campus, with the prior
approval of the State Government, 'off campus centres' which means
a centre of the university established by it outside the main campus
53

'within or outside the state' as well as 'off shore campus' which
meant a campus of the university established by it outside the main
campus (within or outside the 'state') operated and maintained as its
constituent unit. It was held by the Apex Court that in view of
article 245(1) of the Constitution, Parliament alone is competent to
make laws for the whole or any part of the territory of India and the
legislature of a state may make laws for the whole or any part of the
state. The impugned Act which specifically made a provision for the
enabling university to have an off-campus centres outside the State
was clearly beyond the legislative competence of the Chhattisgarh
legislature.
97. Sports with all its hues and colours is one such subject which,
for different purposes would be covered under different entries in
th
different Lists in the 7 Schedule to the Constitution of India.
98. It is undisputed that the resources which are put in the hands
Ministry of Youth Affairs & Sports form a considerable part of the
budgetary allocation. There is extensive real estate in the form of
stadias, sports fields and facilities etc which is also under its
jurisdiction which is put to the utilisation of the encouragement and
development of sports. More material is the fact that sports persons
from the country in any state are involved in participating in national
level events as well as international events for which no state
government would have territorial jurisdiction.
99. In the instant case there is substantial funding for the
functioning of the respondent no. 2 by the government apart from
54

other assistance rendered which includes the selection of the
national coach; availability of facilities developed by the Sports
Authority of India and the Ministry of Youth Affairs and Sports;
financial assistance for acquisition of sports goods and materials;
organisation of programmes etc. There is no dispute before this
court that the State Government does not have the legislative
competence to legislate with regard to any subject at the national
and international level aspects and matters. The power therefore of
the state legislature to frame laws regulating sports under entry 33
of list II is restricted to matters relating to sports within the
boundaries of the 'state'. Such empowerment certainly cannot
prohibit or denude the parliament from its legislative competence to
regulate sports at the national and international level.
100. In (1974) 2 SCC 531 G.V. Ramanaiah vs. The
Superintendent of Central Jail Rajahmundry & Ors ., relied upon
by the respondents the Apex Court reiterated the principle that
under the Constitution, the distribution of executive powers follow,
in substance, the distribution of legislative powers. Subject to the
limitations mentioned in Article 73 and 162, the executive power of
the Union or the State is co-extensive and co-terminus with its
respective legislative powers.
101. The Union of India has also not enacted any legislation in
exercise of any of the powers conferred on it. All the decision
making responsibility for national level sports has been consolidated
in the hands of the National Sports Federations.
55

102. There is yet another important aspect to this issue.
103. In view of the submissions being advanced, learned senior
counsel appearing for the respondents were asked as to which
authority, according to them would have the jurisdiction to govern
national and international level sports and relations. The unanimous
answer rings a death knell for Indian sports as the unanimous
submission was that no one would have the jurisdiction and the only
option available in the matter is for the Parliament to effect a
constitutional amendment to make provision and to confer legislative
and executive competence on the government to legislate or to pass
executive orders in respect of this issue.
104. In the light of the above discussion, it is evident that well
settled principles for constitutional interpretation have not been
taken into consideration.
105. The submissions made by learned counsel for the respondents
also attempts to undermine the farsightedness of the Constitution
makers who drafted the various entries in Schedule 7 with great
care. They anticipated the developments in society, science and
technology and also foresaw that it was humanly impossible to
provide for every conceivable subject which could arise.
106. While conferring primacy on the Union, the Constitutional
provisions have clearly deleniated the legislative jurisdiction of the
State. The residuary power to legislate, however, with regard to
subjects which are not enumerated in the concurrent list or the state
list has been conferred on the Parliament by virtue of article 248.
56

Entry 97 of List I gives effect to the power conferred on the
Union under Article 248 which reads as follows :-
“ 248. Residuary powers of legislation.
(1) Parliament has exclusive power to make any law
with respect to any matter not enumerated in the
Concurrent List or State List.
(2) Such power shall include the power of making
any law imposing a tax not mentioned in either of
those Lists.”
“Entry 97. Any other matter not enumerated in List II
or list III including any tax not mentioned in either of
those lists.”
Recourse to this power, however, is restricted.
107. The Constitution of India has been referred to as an organic
and a living document. It was to avoid any kind of vacuum of
legislation and executive powers that the Constitution makers have
vested the residuary powers in the Parliament.
108. It has been emphasised by constitutional interpretation that the
entries in the list have to be given the widest possible constructions.
It is only after the entries in the lists have been given broader liberal
interpretation that resort can be taken to the residual power are
absolutely exhausted. If two constructions on the entry in the list are
possible, the one which will avoid resort to the residuary power is
directed to be preferred. (Ref : AIR 1979 SC 1972 (para 6) Shetkhari
Sehkari Sakhar vs. Collector Sangli and AIR 1966 SC 416 Jaora
Sugar Mills Pvt. Ltd. vs. State of H.P.).
109. It has been held that by virtue of this residuary power, it was
competent for the Parliament to make a law under its own legislative
power, validating an incompetent state law and to give it
57

retrospective effect.
110. Recourse has been taken to the residuary power of the
parliament in proceedings relating to the provisions of the Income
Tax Act (Ref : AIR 1966 SC 619 Hari Krishna Bhargava vs UOI); the
Wealth Tax Act of 1952 (Ref : UOI vs. H.S. Dhillon; AIR 1972 SC
1061 and AIR 1970 SC 999 Second Gift Tax Officer vs. D.H.
Nazarat); Commissions of Inquiry Act (Ref : AIR 1958 SC 682 C.f.
Mithan Lal vs. State of Delhi; Himachal Pradesh Assembly
(Constitution & Proceedings) Validation Act, 1958. The
pronouncement lays down the parameters within which reliance to
Article 97 would be placed.
111. It has been held in UOI vs. H.S. Dhillon
MANU/SC/0060/1971; S.P. Mittal vs. UOI MANU/SC/0039/82
and Kartar Singh vs. State of Punjab MANU/SC/1581/1994 that
while examining the legislative competence of the parliament to
make a law, what is required to be seen is as to whether the subject
matter falls in the State List which the Parliament cannot enter. If
the law does not fall in the State list, Parliament would have the
legislative competence to pass the law by virtue of the residuary
powers under Article 248 read with Entry 97 of the Union List and it
would not be necessary to go into the question as to whether it falls
under any entry in the Union List or the Concurrent List.
It was observed by the Chief Justice that “if a Central Act is
challenged, as being beyond the legislative competence of the
Parliament, it is enough to enquire if it is a law with respect to
58

matters or taxes enumerated in List II. If it is not, no further
question arises.”
112. So far as the pronouncement of the Apex Court reported at
( 1996) 3 SCC 709 State of A.P. vs. Mcdowell & Ors. is
concerned, there can certainly be no dispute with the well settled
principles that the concept of occupied field is relevant in the case of
laws made with reference to entries in the Concurrent List and that,
whenever a piece of legislation is said to be beyond the legislative
competence of a state legislature, what must be done is to find out,
by applying the rule of pith and substance, what would be the true
nature of the legislation and whether it falls within any of the entries
in list II.
113. There can also be no dispute with the principles laid down by
the Apex court in ( 1994) 3 SCC 1 S.R. Bommai & Ors. vs UOI &
Ors. and 1981 Supp. SCC 87 S.P. Gupta vs. President of India
& Ors. relied upon by the respondents. It was held that it is not
permissible for application of the doctrine of cassus, omissus where
the language of a statute is clear and unambiguous as the words
used by the Constitution or the statutes speak for themselves and it
is not the function of the court to add words or expression merely to
suit what the court thinks of the intent of the legislature. However,
in the light of the discussion in the foregoing paragraphs, it is
evident that the instant case is not one of cassus omissus by the
draftsman or the legislation and that there are ample constitutional
provisions laying down the constitutional mandate and empowering
59

the Parliament to legislate.
114. When the sports becomes part of the national or international
level as at the level of selection of sportspersons for representation
of the country; sports activity and exchanges at the national and
international level; the Central Government alone would have the
power and competence to regulate the same.
115. The powers are clear and distinct. The entries in the Lists
when meaningfully and harmoniously construed, display no conflict
of jurisdiction or overlap.
116. The minority view in Zee Telefilms has considered the law/rule
making power of the National level sports body. It was noticed that
a national level sports federation would be entitled to represent the
nation and regulate the sport in the country. It would have duties to
perform towards players, coaches, umpires, administrators and team
officials. Aspects of ensuring several rules for the sport to prevent
physical injury to all concerned has to be continuously reviewed.
Health, sociability and play are important values to be recognised in
the human.
International sporting events promote and aim at good relations
in the comity of nations; promote peace and prosperity for the people
even at the domestic level.
Development of sport at the national level would include
nomination of players for national awards as the Arjuna Award which
are accepted by the Government.
117. This is the position not only with an item like sports. Wealth
60

tax and other taxation issues; drugs and pharmaceuticals etc also
raise similar issues. In the instant case, there is no conflict of
jurisdiction created by different entries nor an overlap. One subject
for different aspects and purposes falls under different entries which
are not in the same list.
I find neither a conflict of jurisdiction nor any overlap with
regard to the jurisdictions of the Parliament and the State
Government to legislate.
118. In this background, so far as the Constitutional vacuum, urged
by the respondents is concerned, the submission is misplaced also
having regard to the vision and farsightedness of the Constitution
makers who empowered the Parliament to legislate in respect of any
subject or matter not enumerated in any of the lists when they vested
and included the residuary power under Entry 97 in List I of the
Seventh Schedule.
119. The department of sports was earlier forming a part of the
Ministry of Human Resource Development till its segregation in
terms of item 6 of the second schedule of the Rules for Allocation of
Business framed in exercise of powers under article 77. The national
nd
sports federations is a specific item at item 6 of the 2 Schedule of
the Rules for Allocation of Business which falls within the jurisdiction
of the Ministry of Youth Affairs & Sports. It is vested with the
power to recognise a federation or association as a national
federation and also to regulate interaction at the international level.
It performs the essential task of coordinating between the activities
61

of different states.
120. The submission on behalf of the respondent, therefore, that
sports necessarily is to be confined to a consideration by the State
Government alone under Entry 33 of list II is devoid of legal merit.
121. In view of the above discussion, the objection raised by the
respondent with regard to the legislative competence of the
Parliament to make laws on the subject of sports is hereby is
rejected.
122. As noticed hereinabove, the executive power of the Union
extends to the matters with respect to which the Parliament has the
power to make laws. It is held that the Union having the legislative
competence would certainly be empowered to issue executive
powers with regard to the sports at the national and international
representation levels.
Bindingness of a minority view in a pronouncement of the
Apex Court
123. So far as the functions of the sports body, the role of the
Central Government and various other entries in the Lists in the
Seventh Schedule of the Constitution of India are concerned, the
same have been considered at length in the minority judgment in the
case reported at JT 2005 (2) SC 8 Zee Telefilms Ltd. & Anr. vs.
UOI & Ors.
124. For the view that I have taken on the various issues it may not
be necessary to say anything more. However, a very important
larger question as to the bindingness of the minority view in a
62

pronouncement of the Apex Court has been argued at great length.
A writ petition titled Zee Telefilms vs UOI & Ors. was filed in the
Supreme Court of India which was decided by a pronouncement
reported at 2005 (2) SC 8 Zee Telefilms Ltd. vs UOI & Ors. An
objection that the Board of Cricket Control of India (impleaded as a
respondent) was not covered within the definition of 'State' under
Article 12 of the Constitution of India and hence a writ petition under
Article 32 of the Constitution of India against it was not maintainable
was taken. By a three Judge majority the objection was sustained
while the two judge minority ruled against the petitioners. The
minority judgment commented on several aspects which are not
mentioned in the majority judgment.
125. So far as maintainability of writ proceedings against the cricket
board was concerned, the minority view observed that sports has
travelled way beyond a pursuit of a mere hobby or interest. With
sponsorships of players and sporting events and the absorption with
sports, today it is pursued as a vocation and a profession. In the
context of the factual matrix that the several players pursue the
game as their profession, it was argued before the Apex Court in JT
2005 (2) SC 8 Zee Telefilms Ltd. & Anr. vs. UOI & Ors. and also
observed in para 143 that the right of the Indian players is
comparable to their constitutional rights contained in article 19 (1)
(g) of the Constitution of India which would include a right to work
and a right to pursue one's occupation.
126. So far as the nature of functions performed by the Board was
63

concerned, the minority view in para 144 observed that the action of
the sports board may disable a person from pursuing his vocation
and in that process subject a citizen to hostile discrimination or
impose an embargo which would make or mar a player's carreer.
On the issue of availability of judicial review against a Board's
action, it was held that 'If the action of the body/authority impinges
upon the fundamental or other constitutional rights of a citizen or if
the same is ultravires or by reasons thereof, an injury or material
prejudice is caused to its member or a person connected with
cricket, judicial review would lie. Such functions on the part of the
board being public function, any violation or departure or deviation
from abiding by the rules and regulations framed by it would be
subject to judicial review'. This would be so even though the body
may be self regulating.
127. So far as legislative powers are concerned it would be
appropriate and useful to consider the observations on this specific
issue in paras 60, 61 and 63 of the report which read as follows :-
“60. Although we will advert to various rival contentions
raised at the Bar at some details a little later but suffice
it to notice at this stage that encouragement of games
and sports is State function in terms of Entry 33 of List
II of the Seventh Schedule of the Constitution of India
which reads thus:
"33. Theaters and dramatic performances; cinemas
subject to the provisions of entry 60 of List 1; spoils,
entertainments and amusements."
61. The State by reason of a legislative action cannot
confer on it extra territorial jurisdiction in relation to
sports, entertainment etc. Education, however, is in
Concurrent List being Item No. 25 of List III. Sport is
considered to be a part of Education (within its
64

expanded meaning). Sport has been included in the
Human Resource Development as a larger part of
education. The Ministry of Youth Affairs and Sports was
earlier a department of the Ministry of Human Resource
Development. Now a separate Ministry of Youth Affairs
and Sports has come into being, in terms of the
Allocation of Business Rules.
Xxx
63. We may notice at this juncture that the Union of
India in exercise of its executive functions in terms of
the Allocation of Business Rules framed under Article 77
of the Constitution of India created a separate Ministry
of Youth Affairs and Sports for the said purpose. One of
the objects of the Ministry is to work in close
coordination with national federations that regulate
sports. Keeping in view the fact that the Union of India
is required to promote sports throughout India, it, as of
necessity is required to coordinate between the
activities of different States and furthermore having
regard to the International arena, it is only the Union of
India which can exercise such a power in terms of Entry
10, List I of the Seventh Schedule of the Constitution of
India and it may also be held to have requisite legislative
competence in terms of Entry 97, List I of the Seventh
Schedule of the Constitution of India.”

128. The respondents would contend that in view of the majority
judgment, the minority view stands overruled and cannot be relied
upon for any purpose. On the other hand it has been pointed out on
behalf of the petitioner that the law laid down by the Apex Court
would be the enunciation of the law by the minority judgment as well
which binds this court.
129. There is no dispute that the majority view did not rule on the
issue with regard to the legislative competence of the parliament
with regard to legislation relating to the subject of sports and only
the minority wrote its opinion thereon.
130. An issue as to the bindingness of the minority judgment had
65

arisen for consideration before the Bombay High Court in AIR 1964
Bombay 170 Mahendra Bhawanji Thakar vs. S.P. Pande & Anr.
The relevant portion of this judgment in paras 21, 22 and 23 on this
issue reads as follows :-
“21. No doubt, two of the Judges, of the Full Bench namely,
Mr. Justice Hidayatullah and Mr. Justice Raghubar Dayal
specifically found that the provisions of the second proviso
to Section 34(3) did not infringe Article 14 , but in view of
the majority decision, they concurred in the final order
passed in the appeal and allowed the appeal. This decision
of the Supreme Court of India, therefore, clearly rules out
any possibility of the second proviso to Section 34(3) being
invoked in the present case because that decision is
absolutely binding upon this Court.
22. Nevertheless Mr. Natu, appearing on behalf of the
Department, has contested that position. He has referred
to the provisions of Article 145(5) read with Article 141 of
the Constitution. He has pointed out that even though
three Judges of the Supreme Court held that Article 14
would be attracted and would make the second proviso to
Section 34(3) unconstitutional, they were not the three
learned Judges on whose decision the appeal was
ultimately allowed. On the other hand, the appeal was
allowed upon the decisions of Mr. Justice A. K. Sarkar, Mr.
Justice Hidayatullah and Mr. Justice Raghubar Dayal. Of
these three learned Judges Mr. Justice Sarkar alone had
given it as his opinion that the second proviso was
unconstitutional. But Mr. Justice Hidayatullah and Mr.
Justice Raghubar Dayal agreed to allow the appeal of the
Department because they held that Sub-section (4) of
Section 34, would save the notice in that case. On these
facts, therefore, Mr. Natu urged that so far as the question
of the applicability of Article 14 is concerned, of the three
Judges who agreed that the appeal should be allowed, only
one was of the view that the proviso was unconstitutional,
whereas two were of the view that the proviso was not un-
constitutional. Therefore, in that decision so far as the
question of the applicability of Article 14 was concerned,
the majority who allowed the appeal did not hold the
proviso unconstitutional.
23. We do not think that we can accede to the contention of
Mr. Natu having regard to the provisions of Article 145(5)
read with Article 141 of the Constitution. Article 141 says
that "The law declared by the Supreme Court shall be bind-
66

ing on all courts within the territory of India." It is the law
declared by the Supreme Court that binds this Court and
not the judgments. This is made clearer when we consider
Article 145(5) . In Article 145(5) the words used are,
"No judgment and no such opinion shall be delivered by the
Supreme Court save with the concurrence of a majority of
the Judges present at the hearing of the case, but nothing
in this clause shall be deemed to prevent a Judge who does
not concur from delivering a dissenting judgment or
opinion."
It is clear from Article 145(5) that a judgment delivered by
the Supreme Court is the one delivered by a majority of the
Judges where there is a difference of opinion, but in that
case the Judge who does not concur also delivers a
judgment albeit a dissenting judgment. Article 145(5)
therefore uses the word 'judgment' both with regard to the
final pronouncement of the Court itself as well as for the
dissenting pronouncement of an individual Judge who does
not concur. There does not appear to be any warrant for
reading the provision of Article 145(5) into the provisions
of Article 141 , and we do not think that the "law declared"
can be approximated to the judgment delivered by the
Supreme Court. On the other hand, having regard to the
provisions of Article 145(5) that a Judge who does not
concur may also deliver a judgment, it is clear that the law
declared may as well be in a dissenting judgment as in a
majority judgment. The argument, therefore, that the three
Judges whose decision resulted in the allowing of the
appeal in Purshottam's case did not form a majority of
those holding that Article 14 applied to the second proviso
to Section 34(3) does not make that the law declared. On
the other hand, as we have already shown three Judges out
of the five who decided Civil Appeal No. 705 of 57:
MANU/SC/0203/1962 had clearly agreed that Article 14
applied and the proviso was ultra vires and we think that
for the purposes of this Court that was "the law declared
by the Supreme Court". We hold that "the law declared"
referred to in Article 141 is the law to be gathered from
any judgment in a case decided by the Supreme Court,
whether it is the judgment of a Judge forming the majority
or of a Judge in a minority and dissenting. The contention
must, therefore, be negatived. In that view, therefore, it is
clear that the Department cannot rely upon the provisions
of the second proviso to section 34(3) as that proviso has
been by law declared void as infringing Article 14 of the
Constitution.”
(Emphasis supplied)
67

131. Valuable light is thrown also on this aspect in the
pronouncement of the Kerala High Court reported at AIR 1963
Kerala 155 V. Padmanabha Ravi Varma Raju & Ors. vs. The Dy.
Tehsildar Chittur & Ors . The court held as follows:-
“168. I may also state that there was a contention raised
on behalf of the petitioners that the Act, though it
purports to levy a tax on land, is really a law relating to
forests in the possession of the petitioners and would not
come within the purview of Entry 18 read by itself or in
conjunction with Entry 45 of list II; and that it is really 3
law relating to Forests under Entry 19.
169. No doubt, this contention has been noted by his
Lordship the Chief justice of the Supreme Court in the
earlier decision, but the majority have not expressed any
view on this aspect and they have assumed that the State
Legislature had the necessary competence to enact the
Land Tax Act, 1955.
170. But Mr. Justice Sarkar, in his dissenting judgment,
has referred to this aspect and has ultimately held that
under Entry 49 taxation of land on which a forest stands
is permissible and legal. Inasmuch as there has been no
adjudication by the majority on this aspect, I am bound by
the decision of Mr. Justice Sarkar on this aspect and I
have to hold that the contention Of the petitioners
regarding the competency of the legislature to enact the
measure in question, if the Act' is otherwise valid, has to
be rejected.”
(Emphasis supplied)

132. Mr. Arun Jaitley, learned senior counsel for the petitioners has
also drawn my attention to the pronouncement of the Apex Court
reported at (2005) 1 SCC 149 Virendra Kumar Srivastava v.
U.P. Rajya Karmachari Kalyan Nigam & Anr. wherein a question
had arisen before the Apex Court as to whether the U.P. Rajya
Karamchari Kalyan Nigam was covered by the definition of 'state'
under article 12 of the Constitution and was amenable to the writ
68

jurisdiction of the High Court under article 226 of the Constitution of
India. The Apex Court in paras 4, 5 and 6 referred to the judgment
of the Apex Court reported at (2002) 5 SCC 111 Pradeep Kumar
Biswas vs Indian Institute of Chemical Institute and the views
taken by both the majority and the minority judgments wherein tests
were laid for answering such a question. In para 27, the court
observed that the 'multiple tests indicated to be applied both by the
majority and minority view in Pradeep Kumar Biswas are fully
satisfied in the present case for recording a conclusion that the said
corporation is covered as an agency and instrumentality of the state
in the definition of state under article 12 of the Constitution.
133. A similar situation where the majority view of the Supreme
Court holding that the suit in question was not maintainable but the
minority holding that the suit was maintainable and also answering
other issues arose in the judgment reported at
MANU/SC/0006/1951 : AIR 1951 SC 253 State of Seraikella vs.
UOI . The minority view held that the suit was not maintainable in
view of the absence of the requisite notice to the defendant under
section 80 of the Civil Procedure Code. This minority view was
relied upon as the law laid down by the Supreme Court by a Division
Bench in AIR 1951 Sau 16 Ishmal Haji v. Gondal Rly.;
MANU/PH/0065/1962 UOI v. Landra Engineering & Foundry
Works; MANU/PH/0126/1959 Ram Sundri v. Collector,
Ludhiana as well as the High Court of Allahabad in the judgment
reported at AIR 1977 All 482 Prem Prakash Gupta v. UOI & Anr .
69

on the same principles.
134. Mr. P.P. Malhotra, learned Additional Solicitor General has
placed reliance on the pronouncement reported at AIR 1981 Guj 15
Prof. Manubhai D. Shah vs. LIC to urge that a dissenting minority
judgment cannot be relied upon. Reliance was placed on para 12 of
the pronouncement. I find that the learned Judges have not
considered the principles laid down in the judicial precedents
noticed herein above which contain a detailed consideration as to
what would constitute law laid down by the Apex Court. In
Manubhai D. Shah (supra), the court merely observed that it is risky
and imprudent for the High Court to rely upon observations made in
a dissenting and minority judgment and consequently they refrained
from making any reference to them less the court was unwittingly
influenced by them.
In the light of the legal principles laid down in the aforenoticed
judgments. I find myself unable to take this view.
135. Dr. A.M. Singhvi, learned senior counsel appearing for the
respondent nos. 2 to 4 has urged at length and reliance is placed on
para 25.99 of the Constitutional law of India by the noted jurist Mr.
H.M. Seervai on pages 2669-2675 where the learned author has
quoted Lord Denning thus :-
“We can only accept a line of reasoning which
supports the actual decision of the House of Lords. By no
possibility can we accept any reasoning which would show
the decision itself to be wrong. The second proposition is
that if we can discover the reasoning on which the majority
based their decision, then we should accept that as binding
upon us. The third proposition is that, if we can discover
70

the reasoning on which the minority bases their decision,
we should reject it. It must be wrong because it led them to
the wrong result.....”
136. A valuable principle has been enunciated above by the learned
jurist. However the issue before this court is substantially different.
The majority view has confined itself to a consideration as to whether
the BCCI would be covered under the definition of 'state' without at
all referring to the issue of legislative competence of the Union of
India on the subject of sports and hence amenable to the writ
jurisdiction of the Supreme Court under Article 32 of the
Constitution. The views expressed in the minority judgment on this
aspect are not the reasoning on which it has arrived on the
conclusion contrary to the majority view and held that the writ
petition was maintainable.
137. Mr. Arun Jaitley, learned senior counsel for the petitioners has
urged that a comment by a jurist on a proposition in law cannot
supersede the Constitutional scheme, statutory provisions or judicial
precedents.
138. The general observations in the above quoted extract of H.M.
Seervai's Constitutional Law of India did not deal with the specific
question as has arisen before this court. The general observations do
not advance the case of the petitioner inasmuch as the learned
author did not have a situation where it was an admitted position
that the State Government did not have the legislative competence to
deal with the subject at the national level. Furthermore, the majority
opinion in Zee Telefilms does not consider the issue of legislative
71

competence or any of the other issue raised on merits.
139. It has been urged at length that the ratio decidendi of the
decision of the minority led to a wrong result and therefore cannot
bind this court. This submission is wholly fallacious and legally
incorrect. A reading of the judgments in Zee Telefilms would show
that both judgments have considered the nature of functions and
duties of the BCCI and by detailed reasons arrived at a similar
conclusion to the effect that the BCCI is performing functions which
are akin to public functions and public duties. The only area of
disagreement is the issue as to whether the definition of 'state' under
article 12 has to take the expanded definition or the narrower view
requires to be adopted.
140. The majority view has laid down that the BCCI being a private
body exercising public functions, it would not be covered under the
definition of state under Article 12 and hence a writ petition under
article 32 of the Constitution against it would not lie. It was however
held by the majority that the remedy to an aggrieved person would
lie under the ordinary law as well as by way of a writ petition under
article 226 of the Constitution of India.
141. In view of the principles laid down by the Bombay High Court in
the abovenoticed three judicial pronouncement at Mahendra
Bhawanji Thakar vs. S.P. Pande & Anr., Kerala High Court in
Padmanabha Ravi Varma Raju & Ors. vs. The Dy. Tehsildar
Chittur & Ors ., Punjab & Haryana High Court in UOI v. Landra
Engineering & Foundry Works; Ram Sundri v. Collector,
72

Ludhiana and Allahabad High Court in Prem Prakash Gupta v.
UOI & Anr . under Article 141, the law laid down by the Supreme
Court is any judgment in a case decided by the Supreme Court
whether it is the judgment of a judge forming the majority or of a
judge in minority and dissenting. This principle would bind
adjudication, in my view this quotation in the renounced text on
constitutional law cannot in any manner would not enable this court
to take any different view.
142. In any case, even if the respondents contention was to be
accepted that the minority pronouncement would not form a binding
precedent, the majority view has not addressed the issue relating to
the legislative competence of the parliament to legislate on the
subject of sports and has confined itself, to holding that the petition
under Article 32 was not maintainable. In this background, it cannot
be held the minority view on this issue stands overruled.
143. The contention raised by learned senior counsel for the
respondents can be examined from yet another angle. The majority
ruled that a writ petition before the Supreme Court under Article 32
would not be competent. Therefore the court would not have
jurisdiction to decide the questions which arose in the case.
144. So far as suits are concerned, it has been held that if the court
has no jurisdiction to try the lis, its orders and judgment would be a
nullity and cannot operate as res-judicata in subsequent proceedings.
Such question arose before the Apex Court in AIR 1979 SC
1911 Avtar Singh & Ors. vs. Jagjit Singh & Anr . wherein the
73

Apex Court has held that if a defendant appears in a case and an
issue as to jurisdiction is raised and the court decides to return the
plaint on grounds of lack of jurisdiction, such decision on the
question of jurisdiction will operate as res judicata in a subsequent
suit although the reasons for its decision may not be so.
145. In AIR 1940 Privy Council 222 Upendra Nath Bose vs. Lall
& Ors. , it was held by the court that a court which declines
jurisdiction cannot bind the parties by its reasons for declining
jurisdiction : such reasons are not decisions, and are certainly not
decisions by a Court of competent jurisdiction. It would indeed be
strange if on a dispute as to the jurisdiction of a Court to try an
issue, that Court by its reasons for holding that it had no jurisdiction,
could, upon the principle of res judicata, decide and bind the parties
upon the very issue which it was incompetent to try.
146. When examined from this aspect as well, it cannot be held that
the view of the minority has been overruled and consequently, if not
bind, cannot even guide adjudication. I see no reason or legal basis
whereby this court would stand precluded from taking the same view
as that in the minority judgment in Zee Telefilms (supra).
th
Whether guidelines dated 14 August, 2001 were merely draft
guidelines or had been kept in abeyance
147. Before this court, efforts have been made by the respondents to
urge that these guidelines have not been accepted by the
Government and cannot be enforced. The respondent no. 1 on the
one side and the respondent nos. 2 to 4 supported by the Indian
74

Olympic Association on the other have placed a conflicting factual
matrix and diametrically opposite grounds which are mutually
destructive on this submission.
148. The respondents are however unanimous in their submission
that there was resentment to the guidelines. The respondent nos. 2
to 4 have stated that the Government of India had set up a
committee under the chairmanship of Sh. A.K. Pandya, DG, Sports
Authority of India to review the position. The Pandya Committee
submitted a report in 1992 unanimously recommending the
scrapping altogether of the provisions limiting the tenure of the
office bearers.
However, after hearing the views of the Government, Indian
Olympic Association and the National Sports Federations, the
Committee submitted its report in 1995 refraining from expressing
any views. The Government admittedly did not take any decision to
scrap any part of the guidelines was taken. It is evident thereby
that the tenure prescription as was contained in the original
guidelines continued to bind recognition and grant of financial
assistance.
149. The respondents have submitted that a four member committee
of the Indian Olympic Association also gave formal comments on
16th July, 1997 expressing the view that the tenure stipulation in the
guidelines should be removed. The recommendations by this
committee have also not found favour with the Government of India
75

which has issued the revised guidelines dated 14th August, 2001
continuing the restriction.
150. The respondent no. 4 has filed a counter affidavit stating that
the Indian Olympic Association called for a meeting of its executive
committee on 31st August, 2001 to which it invited Ms. Uma Bharti,
the then Minister of Youth Affairs & Sports. It is stated that in her
address the Minister took note of the opposition by the Indian
Olympic Association and stated that the views of the Federations
must be duly considered and that she had advised the secretary in
the ministry to inform the Indian Olympic Association and the sports
federations that the guidelines issued were only 'draft guidelines'
and the minister would later correspond with the Indian Olympic
Association and the Sports Federations.
151. Based on such a statement attributed to the minister during the
course of an address in a closed door meeting of the executive
committee of the Indian Olympic Association, the respondents have
advanced prolonged submissions that the guidelines dated 14th
August, 2001 were merely 'draft guidelines' which cannot be relied
upon. A copy of the minutes of such meeting has been placed before
this court in support of this submission.
152. This document has been put forward by and is only available
with the Indian Olympic Association. It is an admitted position that
there is no official record of any such minutes with the government.
It bears no official signatures or acknowledgment. There is nothing
76

to support even the so called direction to the Secretary of the
Ministry noticed hereinabove. The statements attributed to the
Minister in the minutes of the alleged meeting on 31st August, 2001
are also not supported in any affidavit of the Government of India on
record.
153. The communication dated 14th August, 2001 issued under the
authority of the Government of India reflects consideration and
concurrence of the other ministry i.e. the Ministry of Finance which
was involved in the dispensation stood taken.
154. There is no answer to the query that if these guidelines were
merely in the nature of a draft which was pending consideration,
what guided the government's decisions for recognition of national
sports federations or financial assistance between 2001 till the date
of filing of the writ petition.
155. It is evident that if the guidelines on 14th August, 2001 were a
draft, then the guidelines dated 14th September, 1975 as revised in
1997 would bind the respondents for grant of recognition and
dispensation of financial assistance. There is no dispute that these
guidelines contained the very tenure clause complained against
before me and therefore, in order to be entitled to recognition and
assistance from the Government, the National Sports
Federation/Association had to fulfil these requirements.
156. The Government filed a counter affidavit to the writ petition on
16th May, 2005 sworn by Sh. S.K. Sharma, Under Secretary in the
77

ministry. A categorical stand with regard to bindingness of the
th
guidelines in the affidavit dated 16 May, 2005 filed by it to the
following effect :-
“(1) That Indian Hockey Federation (IHF) is an
autonomous society registered under the Societies
Registration Act, 1860 and has got recognition of
Ministry of Youth Affairs & Sports as apex national
level sports federation engaged in promotion of the
game of Men's Hockey in the country.
(2) That the Ministry of Youth Affairs & Sorts is
providing financial assistance to IHF for its various
activities to supplement its effort for the promotion
of the game under its scheme/guidelines namely
'Assistance to Natinal Sports Federations'(NSFs.)
(3) that the 'Sports' figures out in the 'State List' of
the Constitution of India as item no. 33, the Union
Government has no jurisdiction to frame any law or
legislative provision on any matter relating to sports.
These guidelines are only the administrative
guidelines issued by the Ministry lacking legislative
backing, required for the strict enforcement of these
guidelines.
(4) That there are number of National Sports
Federations (NSFs) existing at present which are not
strictly adhering to the instructions given in the
guidelines concerning tenure of office bearers of the
NSFs.”
(Emphasis supplied)
In para 11 of this affidavit, it has been deposed as under:-
“The Government supplements the efforts of
the NSFs includng IHF by providing financial
asistance for their various activities. For this
purpose there exist “Guidelines for Assistance to
national Sports Federations” containing the
provisions for recognition of the NSFs,
suspension/withdrawal of recognition and tenure of
office bearers of the NSFs etc Since 'Sports' figures
out in the “State List” of the Constitution of India as
Item No. 33, the union government does not have
the mandate to frame rules/legislate on any matter
78

related to sports. These guidelines, which have been
issued by the Government of India, are only the
administrative guidelines issued by the Ministry
lacking legislative backing, required for the strict
enforcement of these guidelines. The only action that
the Governent of India can take against these
defaulting National Sports Federations (NSFs) under
the prevailing circumstances is to stop giving
financial assistance being provided to them as per
the guidelines. But the Government, in general,
refrains from taking such a harsh action, as it would
adversely affect the interest of Indian sports persons
having a lot of potential to excel in their respective
sport.”
(Emphasis supplied)
157. In the course of hearing on 17th May, 2005, Mr. P.P. Malhotra,
learned Additional Solicitor General orally submitted that on perusal
of the Government files relating to the matter in issue, it had been
brought to his notice that the clause relating to the tenure of the
office bearers of two terms of four years each, as mentioned in the
1975 guidelines were ordered to be kept in abeyance by an order
dated 24th August, 2002 passed by Km. Uma Bharti, the then
Minister of Youth Affairs and Sports and practically it is in abeyance
right from the inception and has never been implemented for any
sports association/federation.
158. As such stand had not been taken in the counter affidavit dated
12th May, 2005 filed by the Government, a direction was issued to
the Government to file an additional affidavit in this regard.
159. The respondent no.1 has filed an additional affidavit of Sh. S.K.
Sharma, Under Secretary in the Ministry of Youth Affairs and Sports
dated 18th May, 2005 now submitting that a meeting of the Indian
79

Olympic Association and various national sports federations was
taken by the concerned minister on 11th October, 2001. Suggestion
25 of the various bodies was that the issue of tenure of the office
bearer may be kept in abeyance, till the working group submitted its
report to the Ministry of Youth Affairs & Sports. The Government has
th
stated that on this suggestion, on the 24 of August, 2002, the
Minister had directed that the 'issue of tenure will be kept in
abeyance and will be considered alongwith the report of the working
group.'
160. The respondent no.1 has further stated that the working group
constituted under the chairmanship of Sh. Suresh Kalmadi, President
of the Indian Olympic Association submitted its report on 14th June,
2002 recommending scrapping of the guidelines pertaining to the
tenure of office bearers. It is submitted that on this report, the
Minister of Youth Affairs & Sports had recorded as follows :-
“(i) From our experience, the clause limiting the tenure of
office bearers two terms for four years each as mentioned
in the 1975 guidelines appears to be impractical and it
should be scrapped.
(ii) Conformity to the code of conduct should be made a
condition for giving financial assistance to the N.S.Fs and
IOA.”

Based on these submissions, it has been urged that the clause
was first kept in abeyance and then it was directed to be scrapped.
161. It is equally well settled that every noting contained in a
Government file is not a binding and enforceable order of the
80

competent authority. In the judgment reported at AIR 1963 SC 395
Bachhittar Singh v. The State of Punjab , the Apex Court had
occasion to consider the essential ingredients of an order of the
State Government, the court observed that the business of a state is
a complicated one and has necessarily to be conducted through the
tendency of a large number of officials and authorities. Merely
writing something on the file does not amount to an order. Before
something amounts to an order of the State Government two things
are necessary. The order has to be expressed in the name of the
Governor as required by clause (1) of Art. 166 and then it has to be
communicated. As already indicated, no formal order modifying the
decision of the Revenue Secretary was ever made. Until such an
order is drawn up the State Government cannot, in our opinion, be
regarded as bound by what was stated in the file. As along as the
matter rested with him the Revenue Minister could well score out his
remarks or minutes on the file and write fresh ones.
162. In AIR 1987 SC 1554 State of Bihar etc. vs. Kripalu
Shankar etc ., the court observed that a Government functions by
taking decision on the strength of views and suggestions expressed
by various officers at different levels, ultimately getting finality at
the hands of the minister concerned, the court had observed that
Article 166(1) required that all executive action of the State
Government shall be expressed to be taken in the name of the
Governor. Undoubtedly, this clause relates to cases where executive
action has to be expressed in the shape of a formal order or
81

notification and it prescribes the mode in which an executive action
has to be expressed. It was held that notings by an official in the
department file would not come within the ambit of the Article nor
even notings of a minister. Evey executive decision need not be as
laid down under Article 166 (1) but when it takes the form of an
order, it has to comply with Article 166 (1). Clause 2 of Article 166
states that orders and other instruments made and executed under
article 166(1) shall be authenticated in the prescribed manner. The
Apex Court observed that a study of the article, therefore, makes it
clear that the notings in a file culminated into an order effecting
rights of parties only when it reaches the head of the department and
is expressed in the name of the governor, authenticated in the
manner provided in article 166 (2).
163. Learned senior counsel for the petitioner has also placed
reliance on the pronouncement of the Apex Court reported at AIR
1988 SC 782 Doypack Systems Pvt. Ltd. vs. UOI & Ors . which is
also to the same effect. It was held that notings made in various
departments at various levels by the officers is not the view of the
cabinet. The ultimate decision is taken by the cabinet so far the
notings are not the guides as to what decision the cabinet took.
164. Learned standing counsel for the respondent no. 1 has placed
reliance on the pronouncement of the Apex Court reported at AIR
2004 SC 949 M/s Tafcon projects India Ltd. vs. UOI & ors . In
this case, an issue has been raised as to whether the minister's
signatures without anything more amounted to approval of the
82

previous notings. It was on a consideration of the conspectus of
facts including the several steps in the matter and earlier notings
thereon that the court held that the necessary approval or the
decision stood taken in the matter. The position in the instant case is
different as discussed hereinabove.
165. I have noticed in some detail the affidavit filed by the Indian
Olympic Association wherein it has been urged at length that on 31st
August, 2001, the Minister had stated that the Guidelines dated 14th
August, 2001 were merely in the nature of a draft and had directed
the Secretary of the Ministry to so intimate all concerned. This
position has been reiterated by respondent nos. 2, 3 and 4 on
separate affidavits before this court. If the Guidelines dated 14th
August, 2001 as a whole were merely a draft which were directed by
the Minister not to be implemented, it is evident that there is no
question of the same Minister directing that a tenure clause
contained therein be 'kept in abeyance' or 'be scrapped'. There is
neither occasion nor requirement for so ordering on draft Guidelines.
166. So far as tenure was concerned, clause 3.5 has been in
existence since 1975. An issue was raised at the instance of the
sports federations that the same was unreasonable.
167. I find that the Government has placed before this court a
meeting notice and the agenda note for the same. The details of the
proposed amendment which were to be considered by the meeting
have been set out as agenda item no. 1. It is noteworthy that the
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agenda items do not include any discussion relating to the tenure
clause in the guidelines. This was evidently for the reason that no
amendment was being proposed to the said clause.
168. In fact, in the meeting held on 11th October, 2001, it was
directed that the revised guidelines would be implemented with
immediate effect. According to the Government, the Minister had
concluded that 'issue of tenure' would be kept in abeyance and would
be considered with the report of the working group. This by itself
shows that a report of the working group was being awaited before
taking any kind of decision, interim or final with regard to the
objection to the tenure clause.
169. The noting of the minister has to be read strictly and it would
not be permissible to derive any inference therefrom or conclusions
or directions. If the intention was to scrap the tenure clause, it
would have been recorded that the same 'shall stand scrapped' or
other words to this effect. It would not have been noted that it
'should be scrapped' or other words to this effect.
th
On the 11 of October, 2001, therefore, it was the issue as to
whether the tenure restriction is required to be removed or not
which was kept in abeyance and not the applicability of clause 3.5.
The same is supported by the manner in which the noting dated 24th
August, 2002 is recorded.
170. This position is also manifested from the further consideration
on the file. This noting is stated to have been placed before the new
84

st
minister on 31 October, 2002 who had clearly noted that he had
scrutinized the previous noting and that piecemeal decisions were
st
not required to be taken. On 31 October, 2002, the minister had
directed the Secretary of the Ministry to examine all the issues in
totality and put up the matter on relevant files in a period of one
month.
171. At this stage, it becomes necessary to notice some curious
facts. During the pendency of the case, the petitioner has filed CM
No. 6578/2005 enclosing three pages appearing to be an extract
th
from a Government file stating that on 19 May, 2001, these pages
were left at 5 p.m. in the office of the counsel for the petitioner and
contending that if the same were part of the government record, they
authoritatively establish that there was no order altering or
th
modifying the guidelines dated 14 August, 2001 or keeping the
same in abeyance and that they remained applicable in every
manner.
172. The respondent no. 1 has responded to this application, again
by way of an affidavit of its Under Secretary unequivocally admitting
that the noting forms part of Government record. The only
reservation is that the internal file noting of the Minister of Youth
Affairs & Sports filed by the petitioner was without any file number
and that the note annexed by the petitioner “relates to another
section, which does not deal with the policy issue of amendment of
guidelines for assistance to national sports federations (NSFs).” The
85

respondents do not dispute the existence but explain inability to
produce this file for the reason that it is not traceable and that the
answering respondent is making sincere efforts to locate the said
note.
173. It is noteworthy that the respondent no. 1 relies on the notings
produced by the petitioner with C.M. No. 6578/2005 and have
reproduced a part thereof in the body of the affidavit on its behalf to
th
show that the note dated 30 October, 2001 was actually prepared
only to provide assistance in the revised/annexed scales to all NSFs
as well as federations who had become eligible for assistance after
th
the issue of the revised guidelines on 14 August, 2001. The
affidavit further states that the purpose of this note was for seeking
orders to process cases for grant of assistance to N.S.Fs on revised
scale and freshly eligible federations as the office had withheld
processing of files in view of order dated 31.8.2001, 21.9.2001 and
11.10.2001 and that the decision of the then Hon'ble Minister that
the issue of tenure will be kept in abeyance and will be considered
alongwith the report of the working group (as indicated in the
minutes of the meeting held on 11.10.2001 filed before the Hon'ble
High Court on 19.5.2005) as well as to set up a Working Group to
suggest amendments to the Guidelines for Assistance to N.S.Fs,
among other issues relating to sports were not reversed. A working
group was thus set up vide order dated 03.12.2001 to suggest
amendments to the said guidelines.
86

th
174. The note sheets contain approval of a noting dated 30
October, 2001 by the concerned Minister as well as the Secretary of
th
the Ministry. The noting dated 30 October, 2001 records the
sequence of events including the circumstances in which the meeting
th
dated 11 October, 2001 had been called. Para 8 of this noting
summing up the position and setting out the proposal deserves to be
considered in extenso and reads thus :-
“8. It may kindly be observed from above deliberations
that the guidelines were issued to all the National Sports
Federations and all other concerned and made effective
from 14.8.2001 and it was only an internal view that the
guidelines may be discussed with federations, for which
Hon. Minister was apprised on file that these guidelines
have been prepared after due consultation with IOA and
Federations. No formal order for keeping the operation of
the revised guidelines in abeyance was issued as such the
guidelines may considered to be effective and operative in
all manners w.e.f. 14.8.2001 – the date of issue of
guidelines.”
(emphasis supplied)
175. It is noteworthy that the noting records that the earlier revision
in the guidelines had been approved by the concerned minister as
well as the finance minister. The Deputy Secretary (R) endorsed the
noting and wrote on the file that approval of the minister for
application of the provisions of the scheme with effect from the date
of approval of the Ministry of Finance be sought. This noting was
endorsed by all seniors and bears the signatures of the Minister as
well. It certainly negates the respondents' case.
176. Learned senior counsel for the petitioner has placed reliance on
87

the pronouncement of the Apex Court reported at (2001) 8 SCC
606 (paras 25-28) Centre for Public Interest Litigation vs. UOI
in support of its submission that the respondent no. 1 has
deliberately and malafide withheld relevant material from this court
and has filed false affidavits. Perusal of this judgment would show
that a similar stand taken by the Central Bureau of Investigation that
record which was required to be produced before the court was not
traceable was deprecated by the court and it was observed that the
allegation of the petitioner, if true, reflected very poorly on the
integrity of the organisation.
177. It has not been contended before this court that the note sheets
relied upon by the petitioner do not have a bearing or are not
relevant for the purposes of consideration of the pleas raised by the
parties before this court. It needs no elaboration that a party in
possession of the best evidence and material is bound to place the
same before the court irrespective of the onus or burden of proof. In
the instant case, the respondent no. 1 cannot adopt a partisan stand
inasmuch as the petitioner is seeking enforcement of guidelines
framed by it and what is at stake is recognition of a national level
sports body and dispensation of enormous sums of public funds in
the form of financial assistance and utilisation of public resources.
The duty cast on the respondent no. 1 is even more onerous and it
was bound to have placed the complete facts and official records
before this court, leaving it to the court to draw its own conclusions
therefrom. Instead, two contradictory stands have been taken
88

during the course of hearing.
178. The petitioner has urged that it has been the consistent stand
of the Government of India itself before various courts in various
affidavits whereby it has placed the guidelines in totality before the
courts placing reliance on the same in support of submissions
relating to recognition and grant of financial assistance. It has been
stated by the petitioner that the respondent no. 1 has never stated
that the guidelines so far as the tenure clause was concerned were
not applicable or not implemented.
179. Before the Constitution Bench hearing Zee Telefilms & Anr. vs.
UOI, an issue was raised as to whether the Union of India had
granted de facto recognition to the BCCI under the very guidelines
which are placed before this court. In paras 203 to 208 at pages 73
and 74 of the report, the court has dealt at length with these
guidelines and the provisions thereunder.
180. So far as the Government stand was concerned, the same is
found to be referred to in paras 211 and 212 of the report which
makes a reference to an affidavit filed by the Government of India
where placing reliance on its power under the very guidelines, the
court has held thus :-
“211. In the affidavit dated 8th October, 2004 affirmed
by a Deputy Secretary to the Government of India,
Ministry of Youth Affairs and Sports, it is stated:
"1. I am informed that this Hon'ble Court required to
be apprised as to whether it was mandatory for all
sporting bodies including private entities or clubs to
seek permission and to obtain the same for playing in
89

tournaments abroad.
2. In response to the issue raised before this Hon'ble
Court, it is respectfully submitted that only the
recognized. National Sports Federations are required
to apply in the prescribed format for seeking
permission to go abroad to play as a Team
representing India. There have been instances where
club teams; organizations engaged in sports activities
etc. have applied for such permission but the Ministry
has considered their request only when they were
received through the National Sports Federation -
BCCI in this case."
212. It is not disputed that the Union of India has not
recognized, any other national sports body for
regulating the game of cricket in India. It is the
categorical stand of the Union of India that only by
such recognition granted by the Union of India the
team selected by the Board is the Indian cricket team
which it could not do in absence thereof.”
181. It was never stated that these were draft guidelines or that any
portion thereof was in abeyance. The Union of India had pleaded
that the BCCI and its officials are the recipients of State largesse and
recognition under the Government guidelines.
182. The submissions made on behalf of the respondents can be
tested from yet another aspect. If it were to be held that the
th
guidelines dated 14 August, 2001 are not binding, it may result in a
chaotic state of affairs. More than one state level
federation/association may claim that it is the national level
federation/association. These guidelines have been in force since the
year 1975.
183. The stand in the later affidavit is clearly an after thought and
contradicted by the copy of the notings produced by the petitioner
90

and the affidavits of respondent nos. 2 to 4.
184. It is noteworthy that the note sheet produced by the petitioner
also shows that the revision in the guidelines has the approval of not
only the Ministry of Youth Affairs & Sports but also has the
concurrence of the Ministry of Finance and that the circulation of the
th
order on 14 August, 2001 was not in the nature of circulation of a
draft guideline.
185. The guidelines including the tenure clause was in existence
since 1975. It was retained and reaffirmed in 1997 and 201.
Recognition to national level sports federation as well as
dispensation of the state largesse was being effected on compliance
of the conditions laid down in these guidelines. The said guidelines
were definitely not draft guidelines. They are also the only
regulatory guidelines which guide and govern recognition of national
sports bodies. The said guidelines also provide the procedure
including the manner in which applications for aid and assistance
and the dispensation thereof is to be made by the respondent no. 1.
There is also nothing to indicate that the same were kept in
abeyance by any competent authority or binding order.
186. The fact that the Guidelines were admittedly issued in the form
th
of a formal order on behalf of the Government of India on the 11 of
August, 1981 and duly circulated does not support the stand of the
Government of India. The guidelines were evidently not considered
in the nature of 'a draft' by the Government and were actually
binding. The respondents do not rely on any other guidelines which
91

lay down the eligibility or procedure for dispensation of the largesse
or recognition as a national sports federation. The respondent no. 2
has applied under these guidelines, has been recognised as a
National Sports Federation and has received grants and other
assistance from the Government under the guidelines. So have the
other NSFs. This manifests both that the guidelines were not merely
a draft and that they were implemented.
The stand taken before this court by the respondent no. 1 in the
additional affidavit is an after thought and not supported by any
decision or material.
187. The Government files have not been produced for perusal. The
contention that the guidelines were kept in abeyance is concerned, is
also not supported by any authentic or complete record before this
court.
It is, therefore, held that the guidelines were neither draft
guidelines nor kept in abeyance. These guidelines bind the manner
in which recognition is to be granted to National Sports Federations
and financial assistance is to be dispensed.
No writ of mandamus can issue to enforce non-statutory
guidelines
188. It has been urged on behalf of the respondents that the
guidelines being administrative in nature would not be enforceable
by issuance of a writ in the nature of a mandamus. The submission is
that administrative rules, regulations, instructions, which do not flow
92

from statutes have been held to have no force of law. Guidelines
issued by way of executive instructions also cannot override
statutory provisions. Any order passed in violation of such guidelines
cannot be held to be illegal, void or inoperative.
189. It has been urged by Dr. A.M. Singhvi, Senior Advocate as well
as Mr. V.P. Singh, learned Senior Advocate representing the
respondent nos. 2 to 4 on the one hand and the Indian Olympic
Association that no writ in the nature of a mandamus can be issued
to enforce purely administrative instructions and a member of a
private association cannot approach the court for enforcement of
such administrative instructions which do not have the force of law
and cannot bind the associations. In this behalf, reliance has been
placed by learned senior counsels on the pronouncements of the
Apex Court reported at AIR 1965 SC 1196 State of Assam vs. Ajit
Kumar Sharma (Head note, para 12); (1972) 4 SCC 188 Kumari
Regina vs. St. Aloysius Higher Elementary School and Anr . and
(1988) 4 SCC 364 J.R. Raghupati vs. State of Andhra Pradesh
& Ors . (para 17 and 31).
190. By virtue of Article 73, the executive power of the Union of
India is co-extensive with the legislative power of the parliament.
Article 73 does not define what would constitute an executive
function nor does it mention the subject matters over which the
executive power is exercised. The executive power of the Union is
also not circumscribed by any existing legislation on the relevant
subject. In the absence of any legislative provision, regulating or
93

controlling sports activity at the national level, it has been held that
it is open to the Government of India to issue executive instructions
and orders to guide the same. It is trite that such administrative
instructions issued in exercise of executive power, can be changed or
amended by the executive.
191. An identical issue had arisen for consideration before the Apex
Court in the pronouncement reported at (1973) 1 SCC 194 :
MANU/SC/0610/1972 entitled UOI vs. K.P. Joseph & Ors . The
Apex Court placed reliance on an earlier pronouncement reported at
AIR 1967 SC 1910 : (1966) 1 SCR 111 Sant Ram Sharma vs.
State of Rajasthan & Anr. wherein it had been held that the
Government cannot supersede statutory rules by administrative
instructions. Yet if the rules framed under article 309 of the
Constitution of India are silent on any particular point, the
Government can fill up gaps and supplement the rules and issue
instructions not inconsistent with the rules already framed and that
these instructions would govern the condition of service.
192. The Apex court also reiterated the principles laid down by it in
the earlier decision reported at AIR 1968 SC 718 : (1968) 2 SCR
366, 377 UOI & Ors. vs. M/s Indo Afghan Agencies Ltd. wherein
the question which was raised before the Apex Court was as to
whether the import trade policy was legislative in character. It was
held by the court that the trade policy was executive in nature. Yet it
had been held that courts have the power in appropriate cases to
compel performance of the obligation imposed by the schemes upon
94

the departmental authorities.
193. In this background, in UOI vs. K.P. Joseph (supra), the Apex
Court held that 'to say that an administrative order can never confer
any right would be too wide a proposition and that the general rule
that an administrative order confers no justiciable right was subject
to exceptions. There are administrative order which confer rights
and impose duties which would be enforceable. The principles laid
down by the Apex Court in this behalf in this pronouncement read as
follows :-
“10. xxx
To say that an administrative order can never confer any
right would be too wide a proposition. There are-
administrative orders which confer rights and impose
duties. It is because an administrative order can abridge
or take away rights that we have imported the principle
of natural justice of audi alteram partem into this area. A
very perceptive writer has written :
Let us take one of Mr. Harrison's instances, a regulation
from the British War Office that no recruit shall be
enlisted who is not five feet six inches high. Suppose a
recruiting officer musters in a man who is five feet five
inches only in height, and pays him the King's shilling;
afterwards the officer is sued by the Government for
being short in his accounts; among other items he claims
to be allowed the shilling paid to the undersized recruit.
The Court has to consider and apply this regulation and,
whatever its effect may be, that effect will be given to it
by the Court exactly as effect will be given to a statute
providing that murderers shall be hanged, or that last
wills must have two witnesses. (John Chipman Gray on
"The Nature and Sources of the Law").
11. We should not be understood as laying down any
general proposition on this question. But we think that
the Order in question conferred upon the first respondent
the right to have his pay fixed in the manner specified in
the Order and that was part of the conditions of his
service. We see no reason why the Court should not
enforce that right.”
95


194. This very issue arose before this court in the pronouncement
reported at AIR 1976 Delhi 310 Jiwat Bai & Sons vs. G.C. Batra
and the applicable principles were put down with great clarity in the
judgment pronounced by H.L. Anand, J. The contention raised and
the principle laid down by the court were stated so :-
“(8) Shri Dhebar. however, contends that assuming that
the policy confers a right and that the right was denied to
the petitioners in contravention of the policy, the petition
for a writ of mandamus would, nevertheless be not
maintainable and the petitioners would not be entitled to
any relief because the policy was not statutory in nature
and a mere breach of non-statutory policy or instructions
would not afford a cause of action for such a relief. Shri
Dhebar further contends that a claim for a writ of
mandamus must be founded on a legal right and that
breach of a mere non-statutory instructions neither
confers a right nor gives rise to any statutory obligation
which alone could be enforced by a writ of mandamus. It
is further contended that an administrative direction like
the present policy could not confer any justiciable right
upon a citizen which could be enforced in a Court by a
writ or order in the nature of mandamus and that the
foundation for the issue of a writ or order in the nature of
mandamus being the existence of a legal right, and
administrative order being incapable of conferring any
justiciable right, no writ could be issued. It is true that the
policy is not statutory in nature and is, at best, in the
nature of executive instructions issued with a view to
regulate the renewal of vending licenses, and may, in that
sense, be likened to a Government scheme. It is equally
true that when an executive authority commits breach of
these instructions, it could not be said that a statutory
obligation had been violated. It is also undisputed that
ordinarily a claim for mandamus must be based on a legal
right and such a writ is granted to compel the
performance of a statutory duty. There are, however, well
recognised exceptions to this general rule. It has been
recognised that there are administrative orders which
confer right and impose duties and that Courts have a
power in appropriate cases to compel performance of the
obligation imposed by the non-statutory scheme or
administrative instructions upon the executive authorities
96

U.O.I. Vs. K.P. Joseph (1973) 2 SCR 752 : AIR 1973 SC
303, U.O.I. Vs Indo Afghan Co. Air 1963. S.C. 718. At one
time it was no doubt that the executive instructions did
not bind the authorities, could not confer any right or
obligation and could not, therefore, be enforced, in a
Court of law. Recent legal thinking has, however,
recognised that where there is no statutory provision,
executive instructions fill in the gap Sant Ram Vs State of
Rajasthan AIR 1967 SC 1910 and are not only capable of
conferring rights on the citizen and imposing obligations
on the authorities, which are charged with the duty of
carrying out the policy, but that in appropriate cases.
Court may even compel the performance of such a duty.”

195. A similar issue relating to enforceability of non-statutory
guidelines arose before the Supreme Court in the pronouncement
reported at 1990 Supp. SCC 440 Narendra Kumar Maheshwari
vs. UOI & Ors. The court was of the view that though the guidelines
were not judicially enforceable, however judicial review of the matter
could be made where there was arbitrariness and malafide or where
the deviations from the guidelines involves arbitrariness or
discrimination or is so fundamental as to undermine a basic public
purpose which the guidelines and the statute under which they are
issued are intended to achieve. In para 106 and 107 of the
judgment, the court held thus:-
“106. It may, however, be stated that being non statutory in
character, these guidelines are not enforceable. See the
observations of this. Court in Fernandez v. State of Mysore
air 1967 SC 1753 (Also see R. Abdullah Rowther v. State of
Transport, etc. AIR 19 9 SC 896 ; by. Asst. Iron & Steel
Controller v. Manekchand Proprietor (1972) 3 SCC 324 ;
Andhra Industrial Work v. CCV&E 1971 SCR 321; K.M.
Shanmugham v. S.R.V.S. Pvt. Ltd. AIR 1963 SC 1626. A
policy is not law. A statement of policy is not a prescription
of binding criterion. In this connection, reference may be
made to the observations of Sagnata Investments Ltd. v.
Norwich Corporation 1971 2 QB 614 and p. 626 Also the
97

observations in British Oxygen Co. v. Board of Trade 1971
AC 610. See also Foulkes' Administrative Law, 6th Ed. at
page 181-184. In Ex P. Khan (1981 1 All. E.R. page ), the
Court held that a circular or self made rule can become
enforceable of the application of persons if it was shown that
it had created legitimate expectation in their minds that the
authority would abide by such a policy/guideline. However,
the doctrine of legitimate expectation applies only when a
person had been given reason to believe that the State will
abide by the certain policy or guideline on the basis of which
such applicant might have been led to take certain actions.
This doctrine is akin to the doctrine of promissory estoppel.
See also the observations of Lord Wilberforce in IRC v.
National Federation 1982 AC 617. However, it has to be
borne in mind that the guidelines on which the petitioners
have relied are not statutory in character. These guidelines
are not judicially enforceable. The competent authority
might depart from these guidelines where the proper
exercise of his discretion so warrants. In the present case,
the statute provided that rules can be made by the Central
Government only. Furthermore, according to Section 6(2) of
the Act, the competent authority has the power and
jurisdiction to condone any deviation from even the
statutory requirements prescribed under Sections 3 and 4 of
the Act. In Regina v. Preston Supplementary 197 I WLR p.
624 at p. 631, it had been held that the Act should be
administered with as little technicality as possible. Judicial
review of these matters, though can always be made where
there was arbitrariness and malafide and where the purpose
of an authority in exercising its statutory power and that of
legislature in conferring the powers are demonstrably at
variance, should be exercised cautiously and soberly.
107. We would also like refer to one more aspect of the
enforceability of the guidelines by persons in the position of
the petitioners in these cases. Guidelines are issued by
Governments and statutory authorities in various types of
situations. Where such guidelines are intended to clarify or
implement the conditions and requirements precedent to the
exercise of certain rights conferred in favour of citizens or
persons and a deviation therefrom directly affects the rights
so vested the persons whose rights are affected have a clear
right to approach the court for relief. Sometimes guidelines
control the choice of persons competing with one another
for the grant of benefits largesses or favours and, if the
guidelines are departed from without rhyme or reason, an
arbitrary discrimination may result which may call for
judicial review. In some other instances (as in the Ramanna
Shetty case), the guidelines may prescribe certain standards
98

or norms for the grant of certain benefits and a relaxation
of, or departure from, the norms may affect persons, not
directly but indirectly, in the sense that though they did not
seek the benefit or privilege as they were not eligible for it
on the basis of the announced norms, they might also have
entered, the fray had the relaxed guidelines been made
known. In other word they would have been potential
competitors in case any relaxations or departure were to be
made. In a case of the present type, however, the guidelines
operate in a totally different field. The guidelines do not
affect or regulate the right of any person other than the
company applying for consent. The manner of application of
these guidelines, whether strict or lax, does not either
directly or indirectly, affect the rights or potential rights of
any others or deprive them, directly or indirectly, of any
advantages or benefits to which they were or would have
been entitled In this context, there is only a very limited
scope for judicial review on the ground that the guidelines
have not been followed or have been deviated from. Any
member of the public can perhaps claim that such of the
guidelines as impose controls intended to safeguard the
interests of members of the public investing in such public
issues should be strictly enforced and not departed from as
departure therefrom will take away the protections provided
to them. The scope for such challenge will necessarily be
very narrow and restricted and will depend to a
considerable extent on the nature and extent of the
deviation. For instance, if debentures were issued which
provide no security at all or if the debt-equity ratio is 6000 :
1 (as alleged) as against the permissible 2:1 (or thereabouts)
a Court may be persuaded to interfere.”
196. In a judgment reported at 1991 (39) BLJR 1266 :
MANU/BH/0132/1991 Mrs. Vineeta Prasad & Ors. vs. The Vice-
Chancellor, Patna University & Ors. , the court placed reliance on
several judicial precedents prior thereto and succinctly summed up
the principles holding that :-
“It is now well established that where there is a
defined procedure, even without statutory force, it
must be scrupulously observed' and non-observance .
results in rendering the act void 'being violative of
Article- 14 of the constitution. In the case of (sic) v.
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Seaton (1959) 359 US 535, Justice Frankfurter in his
classic statement has said that, "he that takes the
procedural sword, shall perish with that award." This
doctrine is, of late, known as doctrine, of "Procedural
sword" and has been accepted as one of the principle
of natural justice. The Supreme Court has referred
the aforesaid case with approval in the case Sukhdev
Singh v. Bhagat Ram MANU/SC/0735/1971 . In the
ease of B.S. Mishra v. Indian Statistical Institute and
Ors. MANU/SC/0235/1983 , it has been said that:
If the bye-laws as have been framed for the conduct
of its affairs to avoid arbitrariness, Respondent No. 1
cannot, therefore, escape the liability for not
following procedure prescribed by bye-law 2.
Again in the case of Sadhu Singh and Ors. v. State of
Punjab (1984) 2 SCC 310, is has been held that:
...Any existing executive instructions could be
substituted by issuing fresh executive instructions for
processing the cases of lifers for premature release
but once issued, these must be uniformity and
invariably applied to' all cases of lifers so as to avoid
the charge of discrimination under Article 14 .
Again in the case of A.I. Kalra v. The Project and
Equipment Corporation of India Ltd. (1984) 3 SCC
316, it has been held that:
An administrative authority who purports to act by its
regulation must be held bound by the regulation.
Even if these regulations have no force of law the
employment under these corporations is public
employment and; therefore, an employee would get a
status which would enable him to obtain a declaration
for continuance in service, if he was dismissed or
discharged contrary to the regulation.”

197. It is trite that the administrative orders or executive
instructions may be changed, rescinded or altered by administrative
orders or executive instructions issued at any time. In (1974) 2 SCC
348 M/s Andhra Industrial Works vs. Chief controller of
Imports & Ors ., the Import Control Policy Statement was held to be
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only a policy statement and not a statutory document. For this
reason, it was held that no person can, merely on the basis of such a
statement, claim a right to the grant of an import license,
enforceable at law.
198. Administrative or executive instructions can supplement
statutory rules. There is a material and obvious distinction between
the impact of an executive instruction which runs contrary to
statutory provision and whittles down their effect which was the
subject matter of consideration before the Apex Court in 1992
Supp.1 SCC 150 State of M.P. vs. G.S. Dall & Flour Mills , which
has been relied upon by the respondent. In this case, by virtue of a
notification issued under the M.P. General Sales Tax Act and M.P.
Deferment of Payment of Tax Rules, 1983, the petitioner became
entitled to certain exemptions. By virtue of certain guidelines,
certain additional requirements were imposed in order to be entitled
to the exemption. In this background, the court reiterated the well
settled principles that executive instructions can supplement a
statute or cover areas to which the statute does not extend but they
cannot run contrary to statutory provisions or whittle down their
effect. For this reason, instructions which denied exemption to a
person who qualified under the statutory notification were liable to
be struck down on the ground of impermissible delegation of
legislative power to the executive.
There can be no dispute with this well settled legal principle.
However as noticed above, there is no statutory provision which
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governs the subject matter of financial assistance or grant of
recognition to a sports association as a national body representative
of the sport and for this reason the principles laid down by the
judgment do not come into play.
199. The nature of an eligibility condition and the very authority of
the respondents to impose the same was assailed before the apex
court in (1979) 3 SCC 489 Ramana Dayaram Shetty vs
International Airport Authority of India & Ors . The court
considered the expanding activities of the Government in a welfare
state and also noticed that the state dispenses large number of
benefits as well as special services which include financial
assistance, jobs, contracts, licenses etc and the manner in which this
dispensation ought to be effected. In this behalf, the observations of
the Apex Court in paras 10, 11 and 12 succinctly laid down the
principles which would govern the consideration of the very issues
raised before this court as well. It would be useful to set down these
principles which reads thus:-
“10. xxx
It is a well settled rule of administrative law that
an executive authority must be rigorously held to the
standards by which it professes its actions to be judged
and it must scrupulously observe these standards on
pain of invalidation of an act in violation of them.
............ Today with tremendous expansion of welfare
and social service functions, increasing control of
material and economic resources and large scale
assumption of industrial and commercial activities by
the State, the power of the executive Government to
affect the lives of the people is steadily growing. The
attainment of socio-economic justice being a conscious
end of State policy, there is a vast and inevitable
increase in the frequency with which ordinary citizens
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come into relationship of direct encounter with State
power-holders. This renders it necessary to structure
and restrict the power of the executive Government so
as to prevent its arbitrary application or exercise.
Whatever be the concept of the rule of law, whether it
be the meaning given by Dicey in his "The Law of the
Constitution" or the definition given by Hayek in his
"Road to Serfdom" and "Constitution of liberty" or the
exposition set-forth by Harry Jones in his "The Rule of
Law and the Welfare State", there is, as pointed out by
Mathew, J., in his article on "The Welfare State, Rule of
Law and Natural Justice" in "Democracy, Equality and
Freedom," "substantial agreement is in juristic thought
that the great purpose of the rule of law notion is the
protection of the individual against arbitrary exercise of
power, wherever it is found". It is indeed unthinkable
that in a democracy governed by the rule of law the
executive Government or any of its officers should
possess arbitrary power over the interests of the
individual. Every action of the executive Government
must be informed with reason and should be free from
arbitrariness. That is the very essence of the rule of law
and its bare minimal requirement. And to the
application of this principle it makes not difference
whether the exercise of the power involves affection of
some right or denial of some privilege.
11. To-day the Government, is a welfare State, is the
regulator and dispenser of special services and provider
of a large number of benefits, including jobs contracts,
licences, quotas, mineral rights etc. The Government
pours forth wealth, money, benefits, services, contracts,
quotas and licences. The valuables dispensed by
Government take many forms, but they all share one
characteristic. They are steadily taking the place of
traditional forms of wealth. These valuables which
derive from relationships to Government are of many
kinds. They comprise social security benefits, cash
grants for political sufferers and the whole scheme of
State and local welfare. Then again, thousands of people
are employed in the State and the Central Governments
and local authorities. Licences are required before one
can engage in many kinds of business or work. The
power of giving licences means power to withhold them
and this gives control to the Government or to the
agents of Government on the lives of many people.
Many individuals and many more businesses enjoy
largess in the form of Government contracts. These
contracts often resemble subsidies. It is virtually
impossible to lose money on them and many enterprises
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are set up primarily to do business with Government.
Government owns and controls hundreds of acres of
pubic land valuable for mining and other purposes.
These resources are available for utilisation by private
corporations and individuals by way of lease or licence.
All these mean growth in the Government largess and
with the increasing magnitude and range of
governmental functions as we move closer to a welfare
State, more and more of our wealth consists of these
new forms. Some of these forms of wealth may be in the
nature of legal rights but the large majority of them are
in the nature of privileges. But on that account, can it be
said that they do not enjoy any legal protection? Can
they be regarded as gratuity furnished by the State so
that the State may withhold, grant or revoke it at its
pleasure? Is the position of the Government in this
respect the same as that of a private giver? We do not
think so. The law has not been slow to recognise the
importance of this new kind of wealth and the need to
protect individual interest in it and with that end in
view, it has developed new forms of protection. Some
interests in Government largess, formerly regarded as
privileges, have been recognised as rights while others
have been given legal protection not only by forging
procedural safeguards but also by confining/structuring
and checking Government discretion in the matter of
grant of such largess. The discretion of the Government
has been held to be not unlimited in that the
Government cannot give or withhold largess in its
arbitrary discretion or at its sweet will. It is insisted, as
pointed out by Prof. Reich in an especially stimulating
article on "The New Property" in 73 Yale Law Journal
733, "that Government action be based on standards
that are not arbitrary or unauthorised." "The
Government cannot be permitted to say that it will give
jobs or enter into contracts or issue quotas or licences
only in favour of those having grey hair or belonging to
a particular political party or professing a particular
religious faith. The Government is still the Government
when it acts in the matter of granting largess and it
cannot act arbitrarily. It does not stand in the same
position as a private individual.
12. We agree with the observations of Mathew, J., in V.
Punnan Thomas v. State of Kerala AIR 1969 Ker 81 that
: "The Government is not and should not be as free as an
individual in selecting the recipients for its largess.
Whatever its activity, the Government is still the
Government and will be subject to restraints, inherent
in its position in a democratic society. A democratic
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Government cannot lay down arbitrary and capricious
standards for the choice of persons with whom alone it
will deal". The same point was made by this Court in
Erusian Equipment and Chemicals Ltd. v. State of West
Bengali (1975) 1 SCC 70 where the question was
whether black-listing of a person without giving him an
opportunity to be heard was bad? Ray, C.J., speaking on
behalf of himself and his colleagues on the Bench
pointed out that black-listing of a person not only affects
his reputation which is in Poundian terms an interest
both of personality and substance, but also denies him
equality in the matter of entering into contract with the
Government and it cannot, therefore, be supported
without fair hearing. It was argued for the Government
that no person has a right to enter into contractual
relationship with the Government and the Government,
like any other private individual, has the absolute right
to enter into contract with any one it pleases. But the
Court, speaking through the learned Chief Justice,
responded that the Government is not like a private
individual who can pick and choose the person with
whom it will deal, but the Government is still a
Government when it enters into contract or when it is
administering largesse and it cannot, without adequate
reason, exclude any person from dealing with it or take
away largess arbitrarily. The learned Chief Justice said
that when the Government is trading with the public,
"the democratic form of Government demands equality
and absence of arbitrariness and discrimination in such
transactions. The activities of the Government have a
public element and, therefore, there should be fairness
and equality. The State need not enter into any contract
with anyone, but if it does so, it must do so fairly
without discrimination and without unfair procedure."
This proposition would hold good in all cases of dealing
by the Government with the public, where the interest
sought to be protected is a privilege. It must, therefore,
be taken to be the law that where the Government is
dealing with the public, whether by way of giving jobs
or entering into contracts or issuing quotas or licences
or granting other forms of largess, the Government
cannot act arbitrarily at its sweet will and, like a private
individual, deal with any person it pleases, but its action
must be in conformity with standard or norms which is
not arbitrary, irrational or irrelevant. The power or
discretion of the Government in the matter of grant of
largess including award of jobs, contracts, quotas,
licences etc., must be confined and structured by
rational, relevant and non-discriminatory standard or
105

norm and if the Government departs from such standard
or norm in any particular case or cases, the action of the
Government would be liable to be struck down, unless it
can be shown by the Government that the departure
was not arbitrary, but was based on some valid principle
which in itself was not irrational, unreasonable or
discriminatory.”
200. So far as the jurisdiction to lay down conditions and enforce the
guidelines for grant of financial assistance and recognition is
concerned, an issue with regard to permissibility of University/State
providing for a condition for granting recognition/affiliation was
raised before the Apex Court in the judgment reported at AIR 2003
SC 3724 Islamic Academy of Education vs. State of Karnataka .
The Apex Court in para 17 of the judgment held that such
provisions/conditions prescribing merit base selection can be made
at the time of granting recognition or affiliation as well as
subsequently after the grant of such recognition or affiliation.
201. It is, therefore, trite that though it may not be possible to assert
a right based on administrative/executive instructions and non-
statutory guidelines, however, a challenge may be available to a
person to assail an action by the authority concerned on grounds of
arbitrariness, malafide for breach thereof. The prayers made by the
petitioner have to be tested in this background.
202. The respondent no. 1 has stated that the Indian Hockey
Federation is the national level federation recognised by the
Government for the game of hockey. It is further stated by the
Government on affidavit that the Indian Hockey Federation is one of
the national sports federations getting financial assistance exceeding
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Rs.1 crore in a year through the Comptroller General of India as per
the provisions of 'guidelines for assistance to National Sports
Federation' and that has been issued necessary instructions for audit
of its accounts. A statement showing grants released by the Ministry
of Youth Affairs & Sports to the Indian Hockey Federation between
1995 to the year 2005 shows that in the year 1995 an amount of
Rs.80,54,831/- was released which in the year 1999, went up to
Rs.1,09,12,796/- and in 2004-2005 has further increased to
Rs.1,94,21,032/-.
203. The respondent no. 2 though has not given the details of the
amounts advanced by the respondent no. 1, however it accepts that
respondent no. 1 is giving financial assistance have identified
activities of the players. It is also stated that apart from the grants
made by the Government of India, the respondent federation is
receiving funds through sponsorship and royalties from sale of
broadcasting rights of matches.
204. From a perusal of the various documents placed before the
court, it would appear that holding of an office in the National Sports
Federation enables the membership in international sports bodies.
Office bearers of the national sports federation are also entitled to be
office bearers in international sports bodies and forums. It enables
absolute control over the national and international level activities of
the sports federation and grants an absolute control to the person
concerned over the sport in question. It enables the official to
manage, control, organise sporting conferences, events competition,
107

nationally as well as internationally. Undoubtedly, the person
concerned gets enormous power over the amounts of finances which
are available to the national sports federations both from
Government and from the private persons; absolute control over the
game of hockey in India and the fate of hockey players in India.
205. The submission and objection on behalf of the respondents also
fails to take into consideration the pronouncement of the Apex Court
in Zee Telefilms vs. UOI & Ors. wherein the Apex Court has
categorically held that the impact thereon is not on the association
or federation alone. The impact of the guidelines and the object and
purpose for which they have been enforced certainly cannot be
ignored and even though the guidelines be non-statutory or issued in
exercise of executive powers by the Government.
206. In the case reported at State of Assam vs. Ajit Kumar
Sharma (supra), Mr. Ajit Kumar Sharma was a teacher in the Hindu
Girls College at Gauhati which received a grant from the State of
Assam. Certain conditions had been imposed by the State
Government of Assam while giving such a grant to private colleges to
enable them to give higher scales of pay etc. to their teachers in
accordance with the recommendations of the University Grants
Commission. The petitioner was seeking enforcement of these rules
as binding on the college and seeking a mandamus based thereon as
an entitlement to the benefits under the rules.
In the judgment reported at AIR 1965 SC 1196 State of
Assam vs. Ajit Kumar Sharma, the Apex Court clearly held that
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there was no law to prevent the state from prescribing the conditions
of the grants made by it by mere executive instructions which do not
have the force of statutory rules. Such conditions of grant in aid laid
down by executive instructions were open to the private college to
accept or not to accept them. If it decides not to accept the
instructions, it would naturally not get the grant and aid which was
contingent on it accepting the conditions contained in the
instructions.
It was held that the state could prescribe instructions laying
down condition of grant. However it was not open to a teacher to
insist that the governing body should carry out the instructions as
they conferred no right of any kind on teachers and consequently
they could not apply to the High Court for a mandamus seeking the
enforcement or non-enforcement of the rules, even if indirectly there
may be some effect on them because of the grant and aid being
withheld in whole or in part.
207. The pronouncement of the Apex Court reported at (1988) 4
SCC 364 J.R. Raghupati vs. State of Andhra Pradesh & Ors.
was concerned with a challenge to a pronouncement of the Andhra
Pradesh High Court involving a question of principle relating to
location of mandal headquarters in the state of Andhra Pradesh
under section 3(5) of the Andhra Pradesh Districts (Formation) Act,
1974. The issue raised before the court was whether location of the
Mandal Headquarters was a purely governmental function and
therefore not amenable to the writ jurisdiction of the High Court
109

under article 226 of the Constitution. The High Court quashed the
Government notification issued after consideration of objections and
a detailed consideration by the authorities on the ground that the
government acted in breach of guidelines. In this case the court was
of the view that mandamus could not be issued to enforce the
guidelines which were in the nature of administrative instructions
not having a statutory force and not giving any legal right in favour
of the writ petitioners.
In this case, the Apex Court set aside the interference by the
High Court in cases where it had directed relocation of the Mandal
Headquarters inter alia for the reason that the location of the
Mandal Headquarters by the Government was on a consideration by
the Cabinet Sub-committee of proposals submitted by collectors
concerned and objections and suggestions received from local
authorities like the Gram Panchayat and the general public keeping
in view the relevant factors. The court was of the view that even if
breach of the guidelines laid down by the Government was
justiciable, the utmost that the high Court could have done was to
quashed the impugned notification in a particular case and direct the
Government to reconsider the question. It was further observed by
the court that there was nothing on record to show that the decision
of the State Government in any of the cases was arbitrary or
capricious or was one not urged in good faith or actuated with
improper consideration or influenced by extraneous considerations.
The issues raised before the Supreme Court in this case do not arise
110

for consideration in the present case.
208. Again in Kumari Regina vs. Saint Aloysius Higher
Elementary School and Anr. reported at (1972) 4 SCC 188 the
Supreme Court held that if the terms of the appointment letter
issued by the school were different from the conditions of the
affiliation to be fulfilled by a school as imposed by the State
Government, a teacher aggrieved thereby may not be entitled to seek
a relief in his favour on the basis of the conditions of affiliation. At
the same time, the Apex Court held that, the state administration
was fully empowered to enforce the fulfilment of the conditions
towards affiliation against the school. It is noteworthy that in para
24 of the pronouncement, the Apex Court has clearly stated that the
Government has the power to admit schools to recognition and
grants in aid; and it cannot be gainsaid that de hors the statutory
enactment, the Government can lay out conditions under which it
would grant recognition and aid. It is further held by the Supreme
Court that “to achieve uniformity and certainty to the exercise of
such executive power and to avoid discrimination, the Government
would have to frame rules which, however, would be in the form of
administrative instructions to its officers dealing with the matters of
recognition and aid. If such rules were to lay down conditions, the
Government can insist that satisfaction of such conditions would be a
condition precedent to obtaining recognition and aid and that a
breach or non-compliance of such conditions would entail either
denial or withdrawal of recognition and aid. The management of a
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school, therefore, would commit a breach or non-compliance of the
conditions laid down in the rules on pain of deprivation of
recognition and aid. The rules thus govern the terms on which the
Government would grant recognition and aid and the Government
can enforce those rules upon the management.
209. It is noteworthy that the conclusions of the Apex Court in the
case were based on the well settled principles that non-statutory
administrative/executive conditions and instructions would confer no
right on the teachers of private college and they cannot ask that
either a particular instruction or condition should be enforced or
should not be enforced to assert a right in his favour based thereon.
However, the Apex Court reiterated its earlier view that the
Government is entitled to insist on compliance with such conditions
for affiliation, recognition and aid; that breach or non-compliance
would vest the consequence of denial or withdrawal thereof.
th
210. A closer look at the guidelines dated 14 August, 2001 would
show that they have been framed with the objective of defining the
areas of responsibility of the various agencies involved in promotion
and development of sports in India; to identify national sports
federations/associations eligible for recognition and coverage under
the guideline; set out priority in sport; to detail procedures to be
followed by the national federations/associations to avail financial
assistance sponsorship and all other assistance which the
Government advances; to state clearly the conditions for eligibility
which the Government would insist upon for recognition of the sports
112

federations/associations as well as those which it would insist upon
for releasing grants to sports federations/associations. The sports
authorities and bodies which are involved include the Sports
Authority of India; Indian Olympic Association etc.
211. It is well settled that a judgment or a judicial precedent is law
for the facts in which it was rendered. In the instant case, the
petitioner is not asserting entitlement to any individual rights in his
favour. Detailed submissions have been made on acts and omissions
of the respondent no. 2 and complaints have been made by the
th
petitioner that there is violation of the guidelines dated 14 August,
2001. The petitioner has made a prayer for initiation of necessary
action in accordance with the guidelines for withdrawal of the
recognition conferred on the respondent no. 2 as a national level
sports federation as well as a prayer for withdrawal of the financial
assistance rendered by the Central Government.
212. Malfunctioning on the part of a recognised national level
sports federation or association causes irreparable damage to the
progress of the sport in the country. There can be no comparison of
the private interest of an individual teacher seeking the benefit of a
particular level of salary or entitlement to a notice provided under
administrative instructions against his employer against the damage
which would result to the sport of hockey and national interest.
Effective and efficient working of the national sports federation
impacts the status, standing and reputation of the entire nation in
the arena of sports.
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213. Mr. Pradeep Dewan, learned counsel appearing for the Indian
Olympic Association has placed reliance on the pronouncement of
the Apex Court reported at MANU/SC/1070/2003 UOI & Ors. vs.
C. Krishna Reddy wherein the respondent had sought issuance of a
writ of mandamus to the petitioners to release an amount by way of a
reward for having given information to concerned officers of the
Department of Customs and Central Excise leading to certain
recoveries. The respondent was placing reliance on certain
th
guidelines issued by the Government of India on 30 March, 1985
regarding the policy, procedure and orders in respect of the grant of
rewards to informers and government servants in case of seizure
made and evasion of tax duty detected under the provisions of the
Customs Act; Central Excise and Salt Act, 1962; Gold Control Act
and Foreign Exchange Regulation Act.
It is noteworthy that the guidelines clearly stated that the
reward was purely an ex gratia payment. This being so, it was held
by the court that no right accrued to the same till it is determined
and awarded. In writ jurisdiction the high court cannot examine or
weigh the various factors which are required to be taken into
consideration while deciding a claim regarding grant of the reward
which are matters exclusively within the domain of the authorities of
the department which alone can weigh and examine the usefulness
or otherwise of the information given by the informer. In this
background, reward cannot be claimed as a matter of right.
No such issue arises in the instant case.
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214. Before this court, it is an admitted position that the Indian
Hockey Federation derives substantial financial assistance from the
Government of India. The Indian Hockey Federation stands formally
recognised as a national sports federation also by the Government of
India. The respondent no. 2 effectively controls the functioning of its
members.
215. The guidelines framed by the Government enable the National
Sports Federations recognised thereunder to derive substantial
financial assistance and other facilities from the Government. Apart
from purchase of valuable equipment, this assistance includes
training/coaching camps; assistance for organisation and
participation in national and international competitions and training
abroad; appointment, availability and expenditure on foreign coaches
for training of sports person, assistance of the Sports Authority of
India as well as facilities at the state owned sports set ups. To
enable meaningful utilisation of its assistance, the Government has
framed guidelines for recognition of national sports federations.
216. As part of its initiative, the Ministry of Youth Affairs and Sports
operates a number of independent schemes alongwith the Sports
Authority of India which are apart from the financial grants to the
national federations. These schemes have a direct bearing on the
promotion and development of sports in the country and include (i)
Exchange of Physical Education Teachers etc(CEPs); (ii) Rural Sports
programme, (iii) National Championships for Women, (iv) Grants for
Creation of Sports infrastructure, (v) Grants to Universities and
115

Colleges, (vi) Assistance for synthetic surfaces and (vii) Scholarships
for training abroad. The Government has recognised that the
National Sports Federations are primarily responsible for judicious
selection of sports persons for participation in major international
events based on merit and with the objective of enhancing national
prestige and bringing glory to the world. Such federation is also
required to be concerned with the development and encouragement
of the sport in the country.
217. The Apex Court has not prohibited the High Court in exercise of
its jurisdiction under article 226 from issuing a mandamus requiring
the Government from ensuring compliance with the guidelines or
conditions which it has fixed for grant of recognition and affiliation.
The absolute prohibition urged by the respondents to the
maintainability of the writ petition seeking directions on a complaint
of breach of statutory guidelines certainly is not legally tenable is
hereby rejected.
218. The Government of India is dispensing not only financial
assistance but also providing other facilities in terms of the
guidelines; has recognised national level federations; framed
priorities in sports and has effected dispensation of state largesse
based thereon.
219. In view of the principles laid down by the Apex Court in the
aforenoticed judicial pronouncements, there can be no dispute that
the Government is entitled to frame the guidelines for dispensation
of its largesse which will take the nature of financial assistance;
116

assistance in the nature of expert coaches, national level facilities
etc. Certainly, the Government is entitled to notify and evolve a
procedure for dispensation of the financing assistance which runs
into crores of rupees as well as guidelines for recognition of the
national sports federation and cannot permit the same to be
disbursed arbitrarily without any clear directives in this behalf. The
guidelines issued by the Government and modified from time to time
have been therefore validly issued and are binding for the purpose
for which they have been issued.
In view of the above discussion, it has to be held that a National
Sports Federation regulating the game of hockey in the country can
be compelled by the Government in discharge of its executive powers
and functions to abide by the rule of law as well as executive
guidelines framed for such recognition and dispensation.
No writ of mandamus can be issued to the Government to
legislate
220. Placing reliance on the pronouncement reported at (2003) 8
SCC 250 Common Cause vs. UOI & Ors; (2004) 11 SCC 360 In
Re. Networking of Rivers and 1992 Supp.(1) SCC 548 State of
J & K vs. A.R. Zakki & Ors , it is also urged by learned senior
counsels for the respondents that no mandamus can be issued to the
Government to legislate.
221. In Common Cause vs. UOI (supra) the Apex Court was
concerned with an amendment to the Delhi Rent Control Act. The
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petitioner's contention was that the amendment bill having received
the Presidential assent under Article 111, stood lawfully enacted and
stood converted into an Act. It was further urged that the same
having been placed on the statute book by a public notification in
terms of Section 366 (19), the Act was out of the legislative area. It
was argued that since the Parliament had not permitted appointment
of different dates for different provisions of the Act, Section 5 of the
General Clauses Act was attracted and the Act came into force as
soon as the the President gave his assent to the bill.
The court held that it could not be said that the Government
was not alive to the problem or was desirous of ignoring the will of
the Parliament. The legislature itself had invested the power in the
Central Government to notify the date from which the Act would
come into force and the Central Government is entitled to take into
consideration various facts while considering whether the Act should
be brought into force or not. Keeping in view these facts, it was held
that no mandamus could be issued to the Central Government to
issue the notification contemplated under section 1(3) of the Act to
bring the Act into force.
222. In (2004) 11 SCC 360 Re Networking of Rivers , the court
was concerned with the project for linking of rivers. Certain aspects
of the matter required consideration by the Government and an
examination as to whether any further pieces of legislation were
necessary to bring about the interlinking. In this context, the court
had observed that it was not open to it to issue any direction to the
118

Parliament to legislate.
223. Similarly, in the pronouncement reported at 1992 Supp.(1)
SCC 548 State of J & K vs. A.R. Zakki & Ors. , the court had
observed that a writ of mandamus could not be issued to the
legislature to enact a particular legislation.
224. There certainly cannot be any dispute with this well settled
principle of law. However, in the instant case, no prayer is made for
issuance of a mandamus to the government to legislate. No question
is raised or prayer made by the petitioner that the legislature be
called upon to make a law on any subject. A simple case for
enforcement of and a grievance with regard to violation of non-
statutory guidelines, which regulate dispensation of state largesse, is
urged. This objection in the present case is wholly misplaced.
225. It has been argued by Mr. V.P. Singh, learned senior counsel
that the role of the Government is confined to grant of recognition
which is in the nature of a contract. This submission fails to take
into consideration the impact of the recognition and the tremendous
power which is created in an organisation which is recognised as a
National Sports Federation.
Even otherwise, it is well settled that a writ would issue even in
matters relating to contract.
Restriction in clause 3.5 of the guidelines restricting the term
of the office bearer to a maximum of two years of four years
each is invalid, illegal, unconstitutional and unenforceable.
226. The respondents have urged that even if it were to be held that
119

the guidelines are valid, enforceable, legal and binding, the
stipulation in clause 3.5 restricting the tenure of the office bearers to
two terms of four years each impacts the constitutional rights of the
citizens guaranteed under article 19 of the Constitution of India and
is therefore unconstitutional and unenforceable.
227. In support of the objection, the respondents have relied on the
pronouncement of the Apex Court reported in (1986) 3 SCC 615
Bijoe Emmanuel vs. State of Kerala and Amreli Distt. Coop.
Sale & Purchase Union Ltd., Amreli & Ors. vs. State of Gujarat
reported at Vol. 20 Coop. Law Journal, October 1984, Page 195 .
228. I find that in K. Suryanaryana vs. Distt. Election Officer
AIR 1976 AP 340 (para 26 & 34) a similar prohibition statutorily
contained in Section 21C in the Andhra Pradesh (Andhra Area)
Cooperative Societies Act (7 of 1961) which stipulated that a person
who holds or has held office as a member of the committee of the
society for two consecutive terms shall not be eligible for being
chosen as a member of the committee for a third term in
continuation. This statutory provision was challenged by the
petitioner inter alia on the ground that the bar to holding office as a
member of the committee for a third time in succession is ultravires
article 19(1)(c) of the Constitution of India. It was observed by the
court that the statement of objects and reasons for the introduction
of the Bill furnished the court with reliable extrinsic evidence as
regards the purpose or object or reason for an Act. The state had
been utilising the device and framework of cooperative societies for
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ushering in some of the welfare functions. Even without the
assistance of 'objects and reasons', it could be said that the function
of the legislature in this mandatory legislative underlying section
21(c) of the Act is only to curb the growth of vested interest in
cooperative societies. The Andhra Pradesh High Court has with
utmost clarity placed the distinction between, 'whether there is
fundamental right to form an association/society'; 'whether there is a
fundamental right to get the society registered and 'whether there is
a fundamental right to be a member of the Executive
Committee/Governing Body.' Challenge was laid to a statutory
restriction on the tenure in the executive body.
Just as the present case, there was no prohibition on the
membership of the association. The grounds of challenge were the
same as those laid before this court. It would be useful to consider
the observations and findings of the court in extenso which reads
thus :-
“26. Apart from the Committee being a committee of
the co-operative society registered under the Act, we do
not think the restriction in question imposed on
becoming a member of the Committee for more than
two consecutive terms violates the fundamental right to
form Association guaranteed under Article 19 (1) (c) of
the Constitution. It is not the case of the petitioners
that they are restricted from forming a co-operative
society under the Act, or there was any compulsion on
them to form a society under the Act or to become
members of a society registered under the Act. Simply
for the reason that some restrictions are imposed in
connection with the working of the Society, that does
not amount to curtailing the freedom of forming a
society unless the restriction goes to the very root of
the matter, which amounts to taking away the freedom
to form an Association. In the present case the
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restriction is only to become a member of the
Committee for a consecutive third term. That means
one cannot become a member of the Committee for
more than two terms continuously. There is no
restriction on becoming member of the Committee once
again there after for two more terms. With an interval
of one term in between one can become a member of
the Committee consecutively for two terms any number
of times. This restriction the Legislature in their
wisdom thought to be necessary in order to prevent
vested rights being established in the Societies which is
not very healthy for proper working of the Societies.
Therefore, this is not a matter which touches the very
right to form a society. We are unable to agree with the
argument of Sri P.A. Chowdary that if such restriction
is imposed that would be abridging or taking away the
right to form a society or an Association. In this
connection Sri Chowdary placed strong reliance on two
decisions of the Supreme Court. Smt. Damyanti
Naranga v. Union of India AIR 1971 SC 966 and
O.K.Ghosh v. E.X. Joseph AIR 1963 SC 812. In the first
decision referred to above, the validity of the Hindi
Sahiya Samelan Act (1962) was in question. Under
Section 4 (4) of the Act apart from persons who are
members of the Society, some more members have
been added without any option being available to the
existing members of the Society to elect or refuse to
elect them as members which was the right they
possessed under construction of the Society itself. The
Supreme Court said that the Act does not merely
regulate the administration of the affairs of the society;
what it does is to alter the composition of the Society
itself. The result of this change in the composition is
that the members, who voluntarily formed the
Association, are now compelled to act in that
Association with other members who have been
imposed as members by the Act and in whose
admission to membership they had no say. Such
alternation in the composition of the Association itself
clearly interferes with the right to continue to function
as members of the Association which was voluntarily
formed by the original founders. The right to form an
Association implies that the persons forming the
Association have also the right to continue to be
associated with only those whom they voluntarily admit
in the Association. Any law, by which members are
introduced in the voluntary Association without any
option being given to the members to keep them out, or
any law which takes away the membership of those who
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have voluntarily joined it, will be a law violating the
right to form an Association. Therefore, the Supreme
Court said on the fact of that case, that the provision of
law by which committee members have been added to
the Society without any opinion being available to the
existing members of the Society to elect or refuse to
elect them as members is violative of Art. 19 (1) (c) of
the Constitution. Thus, the facts of that case are clearly
distinguishable from the facts before us. In the present
case, the only restriction imposed under Section 21-C
of the Act is to be a member of the Committee
continuously for a third term. This is not a provision
which restricts the right to continue the Association
with its composition as voluntarily agreed upon by the
persons forming the Association. In this case, the
Supreme Court referred to their earlier case, which is
the second case mentioned above.
Xxx xxxx
34. Therefore, so long as there is no impediment to
form an Association or to become a member or having
become a member to continue or not as a member of
Association, no provision of law can be said to infringe
the fundamental rights guaranteed under Article 19 (1)
(c) of the Constitution merely because such a provision
seeks to regulate the functioning and administration of
the Association in the day to day working and in the
process imposes some restrictions, more so when they
are conceived in the best interests of the Association. It
is only in cases where a provision of law actually
amounts to curtailing the right to form an association in
the sense mentioned above, that can be said to be
violative of the fundamental rights guaranteed under
Article 19 (1) (c) of the Constitution. As we have
already discussed above, the restriction imposed under
Section 21-C on any person from becoming a member
of the Committee of the Society for more than two
consecutive terms cannot be said to amount to
curtailing the right or freedom of a person to form an
Association. As mentioned above, the Legislature in
their wisdom thought that such a restriction is
necessary in order to prevent any person from
acquiring any vested interest in the Society, which is
not a healthy sign for proper and efficient working of
the society in the best interests of all its members.
Therefore, Section 21-C of the Act is not violative of the
fundamental right guaranteed under Article 19 (1) (c)
of the Constitution not only for the reason that the right
to form a Co-operative Society under a Co-operative
Societies Act is not a fundamental right and it is only a
123

right given under the Act subject to its provisions and
the Rules framed thereunder, but also on the ground
that the restriction like the one imposed under Section
21-C prohibiting a person from becoming a member of
a Managing Committee of a Society consecutively for
more than two terms cannot be said to be the one
which either in reality or in substance amounts to
restricting the right to form an Association guaranteed
under it.”
(Underlying supplied)
229. A condition similar to that incorporated in clause 3.5 of the
guidelines under consideration with regard to tenure of the office
bearers was contained in sub-section 5 of section 73A of the
Maharashtra Cooperative Societies Act (24 of 1961) and a challenge
to its vires was laid on the ground inter alia that it violated article
19(1)(c) of the Constitution of India. This challenge was also
rejected by the Division Bench of the High Court of Bombay in the
judgment reported at AIR 1984 Bombay 47 Manohar vs. State of
Maharashtra holding that the registration of a society was not
compulsory, but, a voluntary act. So far as the tenure restriction
statutorily contained in section 73A of the Act was concerned, the
Bombay High Court held as follows:-
“14. Now coming to the impugned provision of Section
73-A(5) of the Act, all that it does is to restrict the
enjoyment of office by the designated officer, if he has
held the office for a continuous period of six years and
such officer is not eligible to be re-elected or re-
appointed for a period of three years after the expiry of
the period of six years. Such a provision could have
been made in the byelaws of the society at the time of
registration. Such provision could have been made in
the byelaws of the society at the time of registration.
Such a provision could also be made in the byelaws at
the instance of the Registrar at any time during the
continuance of the society or could be made by a
provision of the Act itself as is done in the present case.
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The restrictions whether contained in the byelaws or the
rules or the provisions of the Act comes into operation
by reason of the registration of the society under the Act
which is the result of a purely voluntary act of its
members and as such it is difficult to see how the
petitioner can complain of any infringement of Article
19(1)(c) merely because the period of office of the
designated officer is restricted by the impugned
provision.
xxx xxx
17. As far as the impugned provision of sub-section (5)
of Section 73-A of the Act is concerned, it is not a
provision which restricts the right to continue the
association or composition that is voluntarily agreed
upon by the persons forming an Association. All that it
restricts is the continuance in office of the designated
officer if he has been continuously in the office for a
period of six years and the bar continues to apply only
for a period of three years and thereafter he is free to be
elected as one of the designated officers as per the bye
laws of the society. In our opinion, Damayanti's case AIR
1971 SC 966 is clearly distinguishable in that the
incorporation of the Sammelan under the Central Act
was the result of legislative compulsion and did not
depend upon making voluntary application by the
existing members of Corporation as in the case of a
society registered under the Act on an application for
that purpose made voluntarily by its members,. As we
have noticed from the provisions of the Act above, the
members of the society are under no compulsion to
make an application for registration of the society under
the Act, but by making an application for registration
under the Act, they voluntary application by the existing
members of Corporation as in the case of a society
registered under the Act on an application for that
purpose made voluntarily by its members. As we have
noticed from the provisions of the Act above, the
members of the society are under no compulsion to
make an application for registration on the society
under the Act, but by making an application for
registration under the Act, they voluntarily submit to
the acceptance of the provisions of the Act, as binding
on them. In other words, by voluntarily agreeing to be a
society registered under the Act, they also voluntarily
agree to the Provisions of the Act including the
provisions such as the framing of bye laws consistent
with the object of the provisions such as the framing of
bye laws consistent with the object of the provisions of
the Act and even agreeing to bye laws that may be
125

directed to be made by the Registrar. It is under the bye
laws that the designated officer continues to remain in
the office for a particular period. The period could be
restricted even at the instance of the Registrar by
amending the bye laws as a result of the statutory
provision like sub-section (5) of Sec. 73-A . we do not
see how the provisions of this nature, in any manner,
impinge upon the right of the members to form an
association guaranteed under Article 19(1)(c) of the
constitution. In our opinion, it is equally difficult to
appreciate the argument that a provision of this nature
takes away the rights of the members to continue the
association with its composition as voluntarily agreed
upon by them when there is no obligation or compulsion
to get the society registered. Provision can be said to be
one regulating the affairs of the society without in any
manner encroaching upon the right to continue the
association with its composition agreed upon by them.
xxx xxx
21. Having regard to the above discussion, we are of the
view that the contention that sub-section (5) of S. 73-A
encroaches upon the rights guaranteed under Article
19(1)(c) is without any merit and in this view of the
matter, it would not be necessary to justify the provision
in clause (4) of Article 19 of the Constitution.
22. Even assuming that the impugned provisions can be
said to encroach upon Art. 19(1)(c) , we are also of the
opinion that the provision can be justified under clause
(4) of Art. 19 as it imposes reasonable restriction in the
interest of morality. While, dealing with this aspect, it
would be useful to refer to passages from different
books relating to principles of co-operation extracted in
Brinjgoapal Denga v. State of M. P. AIR 1979 Madh Pra.
173 , where the provisions of S. 19-c(2) of the Madhya
Pradesh Co-operative Societies Act conferring power on
the Registrar " to expel a member when it is necessary
or desirable in the interests of the society" were
challenged as being violative of Art. 19(1) . It was held
by the court having regard to the scheme of the Act and
the fact that there is no compulsion to apply for
registration of the society under the Act, there is no
question of affecting the right under Art. . The Court
also held that the provision was also justified under Art.
19(4) as it imposes reasonable restriction in the interest
of society. The passage from the judgment runs thus
(para 8)
"The basic principle of cooperation is that the members
126

join as human persons and not as capitalists.
Cooperation is a form of organisation wherein persons
associate together as human beings on the basis of
equality for the promotion of the economic interest of
themselves. Cooperation is a method of doing business
with an ethical base. "Each for all, and all for each" is
the motto of cooperation. Cooperation not only develops
the latent business capacity of its members; it produces
leaders; it encourages the growth of social virtues;
honesty and loyalty become imperative; the prospect of
a better life obtainable by concerted effort is opened up;
the individual realises that there is something more to
be sought than mere material gain for himself.
Cooperation being a business - cum-moral movement ,
the success of the enterprise depends upon the reality
with which each one of the members works for the
achievement of the object of the organisation; (See law
and principles of cooperation by H. Calvart, pp. 18, 19,
22, and 45). The committee on cooperation in India
emphasised the moral aspect of cooperation. To quote
their words; "the theory of cooperative is very briefly
that an isolated and power less individual can by
association with others and by moral development and
mutual support, obtain in his own degree the material
advantages available to wealthy or powerful persons
and thereby develop himself to the fullest extent of his
natural abilities. By the union of forces, material
advancement is secured and by united action self-
reliance is fostered and it is from the inter-action of
these influences that it is a hoped to attain the effective
realisation of the higher and more prosperous standard
of life which has been characterised as better business,
better farming and better living; we have found that
there is a tendency not only among the out side public
but also among supporters of the movement to be little
its moral aspect and to regard this as superfluous
idealism. Cooperation in actual practice must often fall
far short of the standards aimed at and details
inconsistent with cooperative ideals have often to be re-
accepeted in the hope that they may lead to better
things. We wish clearly to express our opinion that it is
to true cooperation alone, that is, to a co-operation
which recognises the moral aspect of the question that
Government must look for the amelioration of the
masses and not to a psudo-cooperative edifice, however,
imposing, which is built in ignorance of cooperative
principles. The movement is essentially a moral one and
it is individualistic rather that socialistic. It provides as
a substitute for material assets" honesty and a sense of
127

moral obligation and keeps in view the moral than the
material sanction " (pp . 5 and 6 of the Theory and
practice of Cooperation in India and Abroad by Kulkarni,
vol. 1) Cooperation as a mode of doing business. Is at
present applied as the solution of many economic
problems. Cooperation is harnessed to almost all forms
of economic activity. Though cooperation was
introduced in this country as as remedy for rural
indebtedness, it has been applied successfully in wide
range of activities such as production, distribution,
banking , supply marketing, housing and insurance:
(See Theory and Practice of Cooperation in India and
Abroad by Kulkarni, Vol. I, P.2) As observed by a
Division Bench of this court in Kamta Prasad v.
Registrar, Co-operative Societies, AIR 1967 Madh. Pra.
211, "The cooperative movement is both a theory of life
and a system of business. It is as form of voluntary
association where individable unite for mutual aid in the
production and distribution of wealth upon principles of
equity, reason and common good. It stands for
distributive justice and asserts the principle of equality
and equity ensuring to all those engaged. In the
production of wealth a share proportionately
commensurate with the degree of their contribution. It
provides as a substitute for material assets. Honestly
and a sense of moral obligation and keeps in view the
moral rather than the material sanction. The movement
is thus a great movement."
230. In Bijoe Emmanuel vs. State of Kerala (supra) relied upon
by the respondents, the court had held that in order to regulate or
curtail fundamental rights guaranteed by the sub-clauses of Article
19 (1), the state has to make a law imposing reasonable restrictions
in the circumstances provided in the constitutional provision.
There can be no dispute with the legal principles laid down.
231. So far as the pronouncement reported at Amreli Distt. Coop.
Sale & Purchase Union Ltd., Amreli (supra) also placed by the
respondents is concerned, the same also deals with a statutory
prohibition in the tenure of an office bearer. With due respect to the
128

principles laid down in this judgment, I find that the submission that
registration of an association as a society is not mandatory but
purely a voluntary act was not placed before the court and therefore
not considered in the pronouncements. Furthermore, the court was
not concerned with a guideline framed by the Government for
regulating dispensation of its state largesse and recognition. This
judgment would therefore have no application to the instant case.
232. Yet another aspect to this issue requires to be considered.
There is no statutory compulsion for registration of a society to carry
on the activities for which it is constituted. This would be evident
from the enabling provision which is to be found in the Societies'
Registration enactment of 1960 as well as the state enactments
which use the expression 'may' register. Registration of course can
be obtained only on the basis that the society was willing to abide by
the bye-laws of the society which are required to be approved by the
designated authority under the concerned statute in accordance with
the prescriptions therein and the rules framed thereunder.
233. The submission made by learned senior counsels for the
respondents requires to be examined from yet another angle. It is
noteworthy that in para 18 of the pronouncement in Manohar vs.
State of Maharashtra (supra), the court noticed that it was a
uniform pattern in cooperative law all over the country to restrict
tenure of certain officers and provision similar to those contained in
Section 73A were made in all relevant state enactments pertaining to
cooperative societies in other parts of the country.
129

234. So far as the Delhi Cooperative Societies Act, 1970 was
concerned, a similar disqualification clause based on tenures was
provided by way of section 31(5). The tenure restriction in the
Punjab Cooperative Societies Act was found to be quite analogous to
the one contained in section 73A of the Bombay statute. The court
observed that the decision of the Division Bench of the Bombay High
Court at Nagpur in W.P.(C) No. 1418/1981 (reported at 1983
Maharashtra L.J. 719) showed that an All India conference of the
Chief Ministers and all State Ministers for cooperation was held at
th
Madras on 18 June, 1968. An important measure suggested by the
said conference with regard to curbing of vested interest in
cooperative societies included a restriction on holding offices in the
cooperative societies for more than the prescribed number of terms
inter alia and that in keeping with the national policy of removing
vested interest from cooperative institutions for attaining the object
of the cooperative movement which is to work as an institution for
uplifting of weaker and poorer sections of the society and with a view
to make the cooperative societies broad based democratic
institutions rather than allow them to be monopolised by few persons
and for the purposes of orderly development of the cooperative
movement and further in accordance with the relevant directive
principles of state policy enumerated in the Constitution of India, the
tenure restriction provision in section 73A was inserted by statutory
amendment.
235. In the instant case, this court is concerned with the
130

incorporation of a tenure clause as an eligibility condition for a body
seeking recognition and/or financial assistance from the Government
of India. The principles underlying restriction of the tenures of office
bearers in societies concerned with sports are similar to those on
which other cooperative societies are registered. The
pronouncements afore considered would apply on all fours to the
instant case.
236. I find that there is no prohibition to an unregistered association
or society of persons, either under the Constitution of India or under
any statute, to carry on its activities freely without any restriction.
There is no such restriction even under the Societies Registration
Act, 1860. The guidelines framed by the respondent no. 1 which are
the subject matter of the present consideration also do not restrict
formation of an association or society.
237. Though not placed before this court, but in view of the
submission that the respondent no. 2 is registered under the
Tamilnadu Societies Registration Act, 1975, I find that section 5 of
that statute, specifically mentions that any society which has for its
object, promotion of religion, athletics or sports may at its option
may be registered under this Act. There is therefore no binding that,
in order to carry out its object and activities a society has to be
compulsorily registered even under this enactment.
238. For this reason, the submission on behalf of the respondent that
the guidelines have the impact of supplanting or that they provide a
new condition concerning the working of the societies under the
131

Societies Registration Act is also wholly misconceived. There is no
requirement of complying with the guidelines for registration of the
sports federation or association or a society under the Societies
Registration Act and it is open to get a society registered without
complying with the conditions of the guidelines and it would be open
to such a society to formulate its own bye-laws and rules without the
guidelines interdicting the same in any manner.
239. By the guidelines, the Government has not prohibited formation
of an association, society or federation with regard to any sport. It
has only mandated that in order to be entitled to financial assistance
or recognition as a national level body by the union government, it
would require to be a society or an association or federation which
enforces democracy by fixing the tenure of the office bearers. There
is no comparison between the election as an office bearer of a
national level sports body with the member of the parliament who
represents his constituency in the parliament. For the foregoing
reasons, the conditions and criteria for recognition and grant of
assistance is neither arbitrary nor whimsical.
240. It is noteworthy that the national level federations enjoy a
monopoly position and are directly concerned with selection of teams
to represent the country. Though it should not, but there is every
possibility that vested regional biases and interests may influence
decision making especially in selection of teams. Thus office bearers
from a particular region, religion, political affiliation or having other
clout may be able to control selection and other matters relating to
132

the national sports federations influencing the development of the
sport in the country.
241. If such a tenure clause was not enforced, the office bearers
could be repeatedly elected from a particular region and continue to
dominate the affairs of the association/federation after having
created a monopoly over the sport. Tremendous damage could result
to the sport itself inasmuch as vesting of the control in authorities
from a particular region may result in diversion of funds, selection of
players from and development of a sport from only a particular
region. The national sports federation would then not remain
representative of the hope and aspirations of the sports persons of
the entire nation.
242. A limited office tenure, certainly would have the impact of
minimising, if not eliminating, allegations, criticism and elements of
nepotism, favourtism and bias of any kind. In a country having the
federal structure of the nature that India possesses, the office
bearers being in circulation and there being change in the
representation on the executive of a national level body would go a
long way in promoting the diversity and expertise in the sport. There
must be states who have never been represented on the national
teams. It would contribute to mainstreaming sport persons who are
marginalised on account of lack of regional representation at the
higher managerial echelons of the sports bodies or are otherwise not
visible. Hundreds of sports persons without means, resources or
sources from every corner could hope for recognition of their skills
133

and representation on regional and national teams.
243. Certainly the prescription by the Government of the office
bearers to two tenures which brings a length of the total office held
by them to 8 years as a condition for eligibility for recognition as a
national sports federation or for entitlement of financial assistance
from the Government, cannot by any measure be considered
insufficient for any office bearer to impart his best to the
organisation or the development of the sport or to make a difference.
Such a restriction would ensure new office bearers with fresh ideas,
enthusiasm and the wealth of their experience making a valuable
addition to the organisation. It would also ensure circulation and
removal of such who are corrupt or undesirable in the organisation
who perhaps by virtue of exercise of political might or other
resources, are able to get repeatedly re-elected which would really
sounds a death knell for the sport and talented players.
This is not to say that regional representation alone is the
benchmark for selection of a national team. Merit alone can guide
selection. However inability of a state to ever produce player(s) who
reach national trials or the national team would certainly reflect on
the failure of a national sports federation to develop the sport
nationally which is its prime mandate.
244. The petitioner has pointed out and has placed the constitution
of the respondent no. 2 as was prevailing between 1977 till the year
1992. The constitution of the IHF incorporated a tenure clause
restricting the term of persons holding the positions of President,
134

Honorary Secretary General and the Treasurar to a maximum of two
terms of four years each who could, therefore, hold these posts for a
maximum of eight continuous years only.
There is no prohibition to standing for election again after the
break of one term.
245. The respondent no. 2 places reliance on amendments to the
Constitution carried out in the annual general meeting held on 8th
February, 2004 and have placed the amended Constitution on record
which is stated to be governing the functioning of the federation.
This constitution has amended the tenure clause to read that all the
office bearers shall be eligible for re-election for second and
subsequent terms of four years each on obtaining a simple majority
votes of the members present and voting in the election.
246. It is important to note that none of the respondents have till
date assailed any of the guidelines by way of an appropriate legal
proceedings or writ petition or otherwise. On the contrary they have
accepted their validity and acted thereupon. Both recognition, aid
and financial facilities have been sought thereunder, granted by the
Government and enjoyed by respondent nos. 2 to 4. The current
stand that the same are beyond the executive power as the
Parliament does not have the legislative competence has been raised
only when a grievance is made by the petitioner that the respondent
no. 1 is not adhering to the rules. In these circumstances, the
petitioner relies on the pronouncement of this court reported at
1996 (28) DRJ 358 (para 8, 11 and 12) Veterinary Council of
135

India vs. India Council of Agricultural Research to urge that, as
a result, the respondent stands estopped from raising such a
challenge.
247. The petitioner has placed reliance on the pronouncements
reported at AIR 1988 SC 1247 (para 5) Asstt. Commissioner
Commercial Taxes vs. Dharmendra Trading Co. in support of the
submission that the Union of India is estopped from contending that
its own guidelines are ultravires and without jurisdiction.
248. There is every reason why the office bearers of an organisation
would oppose a tenure clause. Having been elected to an office
position, none likes to relinquish charge or demit a position. This is
manifested by the amendment to the constitution of respondent no. 2
in 2004 whereby the tenure restriction was removed.
249. In the case in hand, clause 3.5 in the guidelines does not
impact any right or prohibit any person from becoming a member of
the society. On the contrary it has the impact of ensuring diversity
in the managerial affairs of the association. This is also in keeping
with the spirit, intendment and purpose of the statute under which
the respondent no. 2 is registered.
250. The Full Bench of the Andhra Pradesh High Court and the
Bombay High Court have squarely rejected similar contentions and
challenges to statutory provision. The reasoning in these judicial
pronouncements throws valuable light on the challenge to the
executive guideline before this court on identical grounds.
251. Before this court, a submission was also made that the
136

international Olympic Charter prohibited any intervention by the
Government in the affairs of a society. Firstly, I see no interference
by the stipulation of the tenure condition as a condition for grant of
recognition and assistance by the Government. Secondly, the same
does not enable the Government to have any say of any kind in the
affairs of running of the sports body. Thirdly, I find that the
respondent no. 2 has placed an extract of the rules and regulations
of various international bodies including the ICC; Federation
Internationale de Football Association and the International Olympic
Committee. It is disclosed that the International Olympic Committee
is the supreme authority of the Olympic movement. Its executive
board was founded in 1921 and consists of the president, four vice
presidents and ten other members. All the members of the
executive board are elected for a four year term by the session in a
secret ballot by a majority of votes cast.
252. Perusal of the document placed before this court shows that a
tenure prohibition is to be found even in the rules governing the
duration of some of the office members of the International Olympic
Committee. It is prescribed in rule 19.2.2 that the duration of the
terms of office of the Vice-Presidents and of the ten other members
of the IOC Executive Board is four years. A member may serve for a
maximum of two successive terms on the IOC Executive Board,
regardless of the capacity in which he has been elected.
In case of a member having completed two successive terms of
office pursuant to rule 19.2.2 above, he may be elected again as a
137

member of the International Olympic Committee executive board
after a minimum period of two years.
253. This stipulation in the international Charter shows the
enforcement of democratic values and the reaffirmation of the
principle that the governing sports body has to be representative and
cannot be controlled by any particular person or set of persons and is
very similar to the stipulation contained in the tenure clause 3.5.
254. Therefore it has to be held that there is no legal prohibition to
the restriction of the tenure of an office bearer as a condition for
grant of recognition or financial assistance by the authority or
person awarding or dispensing the same. Such condition does not
adversely impact any fundamental right guaranteed under the
Constitution of India. The objection to this effect raised by the
respondent has no legal basis and is opposed to the spirit,
intendment and the purpose of the Societies Registration Act; the
interests of national sports and hence, national as well as public
interest.
255. To dispel any impression of mal-functioning on the part of the
respondent no. 2, written submissions have been placed on record
stating that the respondent no. 2 has made tremendous efforts to
revive Indian hockey. It is stated in these submissions that the efforts
made by it under the current office bearers have borne fruit which
according to the respondent no. 2 are manifested from the following
Achievements of Indian Hockey Federation since 1994 :-
“Medals/Position Place Year
138

1. ASIAN GAMES :-
th
a) 12 Asian Games Hiroshima 1994 Silver Medal
th
b) 13 Asian Games Bangkok 1998 Gold Medal
th
c) 14 Asian Games Busan 2002 Silver Medal
2. ASIA CUP :-
th
a) 4 Asia Cup Hiroshima 1994 Silver Medal
th
b) 5 Asia Cup Kulalampur 1999 Bronze Medal
th
c) 6 Asia Cup Kulalampur 2003 Gold Medal
th
d) 7 Asia Cup Chennai 2007 Gold Medal
3) JR. ASIA CUP:-
rd
a) 3 Jr. Asia Cup Singapore 1996 Silver Medal
th
b) 4 Jr. Asia Cup Kulalampur 2000 Silver Medal
th
c) 5 Jr. Asia Cup Karachi, Pakistan 2004 Gold Medal
4) SUB-JR.ASIA CUP:-
st
a) 1 Sub Jr.-Asia Cup Singapore 2000 Gold Medal
nd
b) 2 Sub Jr.-Asia Cup Bangladesh, Dhaka 2003 Gold Medal
5. JR.WORLD CUP :-
th
a) 6 Jr. World Cup Milton Keynes, U.K. 1997 Silver Medal
th
b) 7 Jr. World Cup Hobart, Australia 2001 Gold Medal
th
c) 8 Jr. World Cup Rotterdam, Netharland 2006 IVth Position
6. SULTAN AZLAN SHAH CUP :-
th rd
a) 15 Sultan Azlan Malaysia 2006 3 Position
th rd
b) 16 Sultan Azlan Malaysia 2007 3 Position
7. SAF GAMES :-
a) Saf Games Colombo 2006 Silver Medal”
256. The tabulation placed by the respondent no. 2 before this court
unfortunately conceals the real position which is the abysmal fall
from the glory that Indian hockey has displayed. It fails to even state
that the Indian hockey team won a record six gold medals in a row at
six Olympics in the year 1928, 1932, 1936, 1948, 1952 and 1956
which example has not been replicated by any other country. It won
a silver medal in 1960 and a gold again in 1964 as well as 1980. The
Indian hockey team won the bronze medal at the 1968 and 1972
139

Olympics. So far as the World Cup was concerned, the Indian
hockey team won a bronze in 1971, a silver in 1973 and the gold at
the 1975 World Cup. These facts are general knowledge and known
to every sports enthusiast.
257. Absorption of the country with this game prior to its status till
the beginning of the 1980s, was perhaps as much, if not more, than
even cricket. The talent and skill of Indian hockey players of yore as
late Shri Dhyanchand are till date labelled as legendary and
internationally unmatched. No country in the world can boast of
eight Olympic gold medals in a row. The prestige and standing of
Indian hockey in the past remains unparalleled.
258. Hockey is the National Game of India. For the first time in
more than eighty years at the Beijing Olympics, the Indian Hockey
team could not even qualify to play the Olympics. Experience shows
that there is no dearth of sports talent in this great country. In view
of the protracted hiatus certainly blame cannot be apportioned upon
the players. There are most serious causes which remain totally
unexamined. As per the medal tally displayed by the respondent no.
2, the Indian team is now restricted to struggling for medals at the
regional level.
Lesser teams have grown in stature while India languishes at
the bottom.
259. A very telling statement of Abhinav Bindra, the only Indian to
ever win an individual gold medal in 2009 Olympics, merits a
mention. A question was put to him as to whether India could hope
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to win medals not because of the systems but in spite of it. His
th
answer to this question was reported by the Indian Express on the 4
January, 2009. This so very talented Indian sport person
commenting on the Indian performance in the 2009 Olympics is
reported to have answered that “Some really talented athletes will
succeed but it will dry up if there is no vision. For a country of 1.25
billion people, three medals in an Olympics is pretty poor. I was
happy to win the gold but I was also embarrassed that it took our
country so long to win one.”
260. In this background, the allegations made by the petitioner in
th st
the representations dated 10 January, 2005; 21 January, 2005 and
th
29 January, 2005 making allegations of grave mismanagement,
financial irregularities, lack of transparency, no system of approval
of annual accounts, indiscipline in the organisation, no distribution
or assignment of responsibility assume grave importance and require
to be addressed at the earliest. The petitioner has also pointed out
the objections raised by the auditor. The petitioner has stated that
th
he has raised issues and sought clarification even by his letter of 17
February, 2005 which remains un-addressed. Allegations of
th
fabrication of the minutes of the Annual General Meeting held on 30
January, 2005 have been made which were objected by the
th
petitioner's letter dated 25 February, 2005. An allegation has been
made that the auditor for the respondent no. 2 was appointed in the
th
meeting on 8 February, 2004 till 2006. Without any authority, it is
alleged that the respondent no. 3 has appointed another auditor as
141

th
per the fabricated minutes dated 30 January, 2005.
Apart from the irregularities pointed out by the petitioner, it
has also been urged that the auditor's report for the year 2003-04
had also pointed out glaring financial irregularities and
mismanagement in the affairs of the respondent federation.
261. The petitioner's requests to the respondent no. 1 for
investigation into the complaints of breach of the guidelines dated
th
14 August, 2001 have fallen on deaf ears.
262. A very important aspect which may be the root cause for the
malaise which seems to have infested sports management in this
country deserves to be noticed at this stage.
263. Despite the clear guidelines notified and circulated as back as
th
on 20 September, 1975, revised on two occasions first in 1997 and
th
then as circulated on 14 August, 2001, each of which contains the
office bearer tenure stipulation, the Government of India has filed an
affidavit before this court stating that while releasing assistance to
National Sports Federations, the stipulation contained in the
th
Government order dated 20 September, 1975 limiting the tenure of
office bearers to two terms of four years each is not being insisted
upon by the Government. This affidavit states that the same has not
been done 'in the interest of sports person'.
What is the interest of the sports person is neither detailed nor
spelt out, either in the affidavit or in any document which has been
placed on record. There is not a single decision which is contrary to
th
the mandate and stipulation contained in the guidelines dated 20
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September, 1975.
264. It is an admitted position that the guidelines were framed and
circulated in 1975, amended in 1997 and in 2001 with the approval
of the Ministry of Finance, Department of Expenditure. State
revenue was involved. It was incumbent on all those working the
guidelines to ensure that the guidelines were strictly complied with.
Certainly, there cannot be dispensation of state largesse which
include large amounts of funding and other technical assistance,
without compliance of the guidelines laid down for such
dispensation.
265. The consequence of such failure to abide by the guidelines is
that dispensation of state largesse admittedly running into several
crores of rupees has been effected in violation of the guidelines
framed by the Government of India for the same.
266. This matter assumes significance and importance in the light of
nature and extent of assistance rendered by the Central Government
in matters of sports relating to the various disciplines.
267. A submission was made by learned standing counsel for the
Union of India that the approval of the Finance Ministry was
confined to the provisions in the guidelines governing finance alone.
This view certainly undermines the importance and nature of the
approval of the Ministry of Finance and is also not borne out by the
th
communication dated 14 August, 2001 or the guidelines. The
Ministry of Finance would be concerned certainly with not only the
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nature and manner of expenditure but also with the nature of the
body to whom the dispensation was being effected. It is required to
take a holistic view in the matter and is certainly expected to take
into its consideration all provisions in the guidelines.
268. The facts placed before this court and the representations of
the petitioner to the Central Government also display complete
disinterest with the fate of the sport persons or the glory of the
sport. Complete autonomy and arbitrariness in the functioning of
NSFs is being permitted by the Government. Players and coaches
remain almost unrepresented on the sports body or in forums where
their voice and representation may ensure not only the interest of
the sports persons but also that the national interest and glory of the
sport is restored.
269. It takes a sportsman to understand the finest nuances of the
game; the psychology involved in mentally blocking out rowdy
spectators supporting a home team; the herculean effort entailed in
focussing on the game against extreme provocations of the
opponents. Only someone who has played or been involved in the
game can understand why some days are good, others not at all; the
positive support needed when “off form” and how insensitive
criticism can demolish the confidence of an able player. The
essentiality of a good diet and rest regime, a clean environment and
adequate facilities can be also best ensured by those who have been
involved. Sports persons also, understand the importance of 'rest'
and 'retirements'.
144

270. The success of a sports board needs no further evidence than
the performance story of the team it endorses. It is also not the
credentials or laurels of those who constitute the Board on which its
capability is to be evaluated but again the success of the game,
nationally and internationally. Such success may not be evaluated by
medals won but can equally be measured by the spread of the game
in the country, availability of modern facilities in its remote corners,
creation of a body of fit and able coaches and players and, of course,
the increase in popularity of the game amongst the masses.
271. Alongwith the counter affidavit of respondent no. 4 in support
of the credentials of the respondent no. 3, his CV has been placed on
record. The respondent no. 3 has declared his field of specialisation
as the maintenance of law and order and is a renowned officer of the
Indian police service. Undoubtedly, there can be no doubt with
regard to his ability as an expert on law and order issues specially
relating to terrorism. He has several publications in these areas to
his credit for his services so rendered. The respondent no. 3 has
been repeatedly decorated with police medals in 1989 and stands
awarded the Padamshri in 1989. The respondent no. 3 has stated
that he has received a large number honours from public and
voluntary organisations for restoring normalcy in Punjab after over a
decade of terrorism. His areas of interest include English and Urdu
poetry and sports. It is stated that he holds the elected post of the
president of the Indian Hockey Federation, is the vice-president of
the Asian Hockey Federation; is the Chairman, Task Force, Indian
145

Olympic Association and is a council member of the Federation
International DE Hockey. These positions in international bodies are
obviously on account of the office of President of the IHF which is
held by him since 1974.

discipline of the police to the Federation, which is one essential
component of the personality of a sport person. But certainly it is
not the only facet and experience has shown that there is much more
than just a stirling qualities of a highly decorated police officer which
would be required to restore the glory to India's national game
hockey for which India was known.
Similar is the position of respondent no. 4.
273. The facts placed by the respondents and the curtain attempted
to be drawn over what Indian hockey was before this court is a
chilling certification of the negative performance or failure of a
board. The angst of those who labour and toil on the sports fields,
no acknowledgment of the talent of players, the complete lack of
visibility of the spread or encouragement of the sport in the country
and its fall in spectator popularity underline the malaise and no
management or board can refuse responsibility. The very fact that
this situation is persisting for not merely the last couple of years, but
after the 1980s, as manifested from the Olympic results, only
underlines the crying need for critical measures. But that can come
only if managerial bickering's were put on the back burner and
concerns of the sport permitted to come to the fore.
146

274. The parties have placed the details of the boards of
International Olympic Committee, International Rugby Board,
Federation International de Football Association, Association of
Tennis Professionals, International Cricket Council, Hockey, Major
League Baseball, USA Basketball and list of sources before this
court. Each one of them has celebrated sports personalities in
important positions. Today sports is no more something that can be
dealt with in a meeting over a five star meal. It requires technical
knowledge of both the game, the equipment and the training. Every
aspect from the aerodynamics in equipment, even of the clothes
worn by an athlete to shoes of a hockey/football/basket player; hair
cut of the swimmer to 'weight and material of the equipment used is
governed by scientific details and principles. In times of expertise,
sports management experts are as important to a good sports
programme just as experienced competent players or ex-players in
decision and policy making areas who would ensure that the sports
persons got the same, if not better residential/hotel and other
facilities as the office bearers at national and international
competition venues; who understood how important good treatment
is for the self esteem and confidence of the teams and sports
persons, especially when their opponents get the best; where real
expenditure is incurred on and energy is devoted to sports persons
rather than on maintenance of the office bearers or squabbles over
elections.
Only then could it be said that the sporting credentials or the
147

tenure of the controlling board is immaterial for the interest of the
sport.
275. In this background, the representations of the petitioner
deserved a serious examination by the respondent no. 1 and it is
imperative that the respondent no. 1 be directed to examine the
complaints made by the petitioner in accordance with the guidelines
governing recognition and dispensation of the largesse by the
respondent no. 1 out of the public exchequer and facilities developed
by it. Undoubtedly, the action as per the guidelines has to follow
such investigation.
276. An argument was raised by learned senior counsels appearing
for respondent nos. 2 to 4 that permitting Government control into
the affairs of the Indian Hockey Federation, a dynamic body would
result in chaos which cannot be visualised and that the same would
impact the international sporting activities of the federation as well.
Such a submission was also made in respect of the BCCI and has
been considered and rejected by the Division Bench of this court in
114 (2004) DLT 323 Rahul Mehra vs. UOI & BCCI in the
following terms :-
“14. Dr Singhvi then contended that if it were held
that BCCI was amenable to writ jurisdiction ''startling
and legally untenable consequences would follow''.
For example, it may be conceivable to hold that the
selection of a cricket team is discriminatory for
arbitrary. There are several answers, none startling
and all legally tenable. Firstly, not every action of the
BCCI would fall under the scope of judicial review
under article 226 . It must not be forgotten that ''the
High Court does not act like a proverbial ''bull in a
china shop'' in the exercise of its jurisdiction under
148

Article 226 ''. It will not interfere in matters which do
not have any element of public law. Secondly,
''catching the bull by its horns'', as it were, suppose
the selection procedure of the BCCI prescribed that
players from a particular region, or a state or
belonging to a particular community were not to be
selected for the Indian team. Would it be so
preposterous if the High Court stepped in under
article 226 and quashed such a prescription? Let us
take another example. Suppose the Selection
Committee of the BCCI were to alter its rules and
select a team to represent India not on merit but on
the basis of bids. Meaning, the highest bidders got to
play for India. Would the High Court then be justified
in throwing out a petition of aspiring, meritorious but
poor players on the ground that a writ cannot be
issued to the BCCI because, as they contend, it has a
carte blanche to do as it pleases? We think not.
Thirdly, even in cases of judicial review, the High
Court exercises self-imposed restraints. It does not
substitute its views in place of those under review.
Although it has become a hackneyed clich, it bears
repetition that in exercise of powers under article
226 , the High Court is not so much concerned with
the decision itself in the sense as to whether an action
is ''right or wrong'', but with the decision making
process signifying as to whether the action is ''lawful
or unlawful''. So, if the selection of the team is
lawfully made, the Court would not be concerned with
the composition of the team.
16. Another fear of the BCCI must be allayed. It was
submitted and, with some anxiety, that if the court
were to hold that BCCI was within the scope of Article
226 then the splendid institution that has been so
assiduously built-up would lose its independence and
would fall prey to Governmental intervention and
ultimately spell its doom. Without making any value
judgment on quality of Governmental intervention, we
may straight away say that amenability to judicial
review is in no way connected with Governmental
interference in the affairs of the BCCI which is a self-
regulated body and will continue to be one. The only
difference being, that its discharge of public duties and
public functions (as distinct from private duties and
functions) would be open to judicial review under
article 226 of the Constitution. This does not, ipso
facto, translate into governmental intervention in the
internal affairs of BCCI which would remain a private
body.”
149

It could not be put better and unhesitatingly would apply to the
Indian Hockey Federation.
277. Other than the objection to the stipulation with regard to the
re-election and a tenure of the office bearers, the respondents have
no objection to any intervention by the Government in these
guidelines in its activities which includes selection of national
coaches, prescription of priority sports etc.
278. It is noteworthy that the revised guidelines have guided
dispensation of the largesse of the Government which partook the
nature of grants, financial assistance and other infrastructure and
logistic support to the National Sports Federations. Neither the
Indian Olympic Committee nor any of the Sports Federations
including the Indian Hockey Federations/respondent no. 2 herein
have ever assailed the action of the Government or any stipulation in
the guidelines. It would therefore be apparent that the respondents
have accepted the authority and competence of the government to
lay down conditions and guidelines for eligibility and the manner in
which recognition of a federation or an association as a national level
body as well as the manner in which dispensation of the funds and
state largesse would be effected.
279. In this regard, it would be useful to also refer to the
pronouncement of the Supreme Court in AIR 2005 SC 592 : JT
2005 1 SC 235 : 2005 5 SCC 741 : MANU/SC/0019/2005 Board
of Control for Cricket, India & Anr. vs. Netaji Cricket Club &
150

Ors . wherein also an identical issue has been raised in respect of the
BCCI. It was held by the court that in view of the fact that the BCCI
as a member of the ICC, it also represents the country in
international foras. It exercises enormous authority and is
responsible for selecting players, umpires and officials to represent
the country in the international fora. It exercises total control over
the players, umpires and other officers. The Rules of the Board
clearly demonstrate that without its recognition no competitive
cricket can be hosted either within or outside the country. Its control
over the sport of competitive cricket is deep pervasive and complete.
280. So far as the nature of powers of the sports Board is concerned
and the extent of judicial intervention in the functioning of the BCCI
is concerned, the following parameters were laid down by the
Supreme Court :-

82. An association or a club which has framed its
rules are bound thereby. The strict implementation of
such rules is imperative. Necessarily, the office
bearers in terms of the Memorandum and Articles of
Association must not only act within the four corners
thereof but exercise their respective powers in an
honest and fair manner, keeping in view the public
good as also the welfare of the sport of cricket. It is,
therefore, wholly undesirable that a body incharge of
controlling the sport of cricket should involve in
litigations completely losing sight of the objectives of
151

the society. It is furthermore unfortunate that a room
for suspicion has been created that all its dealings are
not fair. The Board has been accused of shady
dealings and double standards.”

omissions on the part of the respondent no. 1 as well.

guidelines framed by the respondent no. 1 but has made serious
allegations with regard to failing to maintain financial discipline by
the respondent nos. 2 to 4. The petitioner has prayed for quashing of
the elections of respondent nos. 3 and 4 as the President and
Honorary Secretary General of the respondent no. 2 as being

against the respondent nos. 3 and 4 from continuing as the President
and Honorary Secretary General of respondent no. 2 or from
contesting the elections to these posts for the fourth consecutive
term.

that non-statutory guidelines and executive instructions would not
create enforceable right in favour of an individual.

Regina vs. St. Aloysius Higher Elementary School and
152

of recognition and aid or affiliation would entail withdrawal of

guidelines laid down by the Government was justiciable and it is
further trite that the Government is bound by guidelines where
framed and cannot act arbitrarily or capriciously.
283. In para 10 of R.D. Shetty vs. IAAI (supra), the Apex Court has
reiterated the settled rule of administrative law that an executive
authority must be rigorously held to the standards by whichit
professes its actions to be judged and it must scrupulously observe
these standards on pain of invalidation of an act in violation of them.
284. With regard to a popular sport like cricket, the Apex Court has
needed to say in para 85 of BCCI & Anr. vs. Netaji Cricket Club &
Ors. (supra) that the events leading to these appeals raises a
abysmal picture and a sordid state of affairs.

binding. The judicial precedents noticed hereinabove have stated
that breach of even non-statutory guidelines which have been framed
for the purposes of regulation of dispensation of largesse results in

Dayaram Shetty vs International Airport Authority of India &

153

Manohar vs. State of Maharashtra)

its guidelines have breached. The deposition on behalf of the
Government on this aspect reads thus :-

not enforced the guidelines. I have held otherwise. It follows as a
result of the above discussion that breach or violation of the
guidelines by the respondent nos. 2 to 4 would vest upon the
respondent no.2, the consequences provided in the guidelines which
include withdrawal of recognition as well as financial assistance.

setting out in detail allegations with regard to breaches by the
respondent nos. 2 to 4. Having regard to the principles laid down by
the Apex Court, so far as complaints of breach of the guidelines
notified by the Government are concerned, it is the respondent no. 1
which is legally competent and best placed to examine the same and
pass appropriate orders thereon. It is trite the scope of judicial
154

review by this court is restricted. Needless to say the appropriate
orders in this behalf would required to be made strictly in terms of

to waive compliance with any provision contained in the guidelines.

petitioner. Prayer (a) in the writ petition seeks a direction to the
respondent no. 1 to produce the record relating to grant of financial
assistance to the respondent no. 2.

court to call for such a record.

directed to examine all complaints made by the petitioner with regad
to breach of the subject guidelines as well as the terms for grant of
financial and other assistance to the respondent no. 2 as well as
utilisation of the funds provided by the Government. It shall be open
for the respondent no. 1 to make such investigation and enquiry in
this behalf as is deemed necessary; to call for a response of the
respondent no. 2 and any clarifications from the petitioner in this
behalf. The complaints shall be disposed of by speaking orders
within a period of eight weeks from today. The copy of the order(s)
which may be passed thereon be made available to the petitioner and
the respondent no. 2 who shall be at liberty if aggrieved thereby to
assail the same in accordance with law.

155

financial impropriety and indiscipline relating to the assistance
dispensed by the respondent no. 1 to the respondent no. 2 as well as
allegations of mismanagement of the affairs of respondent no. 2
against the other respondents and breach of the guidelines dated

contained is an adjudication on the merits of the allegations levelled
against the respondents by the petitioner.

pointed out that the Constitution and bye-laws of the respondent no.
2 were amended in 2004 and they contained no
prescription/prohibition of a tenure clause. The consequence of the

provided therein and would follow on a consideration of the
complaints made by the petitioner in terms of the directions
contained in para (ii) above. No further directions are required to be
given at this stage.

any constitutional or statutory provisions is stated. It is also not
pointed out as to how clause 8 of the constitution of respondent no. 2

2001, if the respondent no. 2 seeks recognition and affiliation, it
would require to abide by clause 3.5 therein. The violations
complained by the petitioner have been directed to be examined by
the respondent no. 1 and the consequences shall flow therefrom.
156

elections to the executive body of the respondent no. 2 and failure of
the respondent nos. 2 to 4 to furnish information relating to the
affairs of the respondent no. 2.

to be made and appropriate relief sought before the competent
authority under the Societies Registration enactments. It shall be
open to the petitioner to make such a grievance before such
authority which shall consider the same in accordance with law.

rendered infructuous.

March 2, 2009
kr/aa
157