Kanti Verdhan Sharma vs Union of India (UOI) and Swimming Federation of India

V. Dhanapalan, J.—When the Miscellaneous Petitions are listed for hearing, with consent of the learned Counsel on either side, the main

Writ Petition itself is taken up for disposal.

This Writ Petition has been filed, praying for issuance of a writ of certiorarified mandamus, to call for the records relating to the letter dated

01.03.2011 on the file of the second Respondent and the consequential communication dated 04.03.2011 on the file of the third Respondent,

quash the same and consequently direct the second Respondent to amend the bye-laws in consonance with the guidelines in proceedings in F. No.

8-17/2009-SP-III, dated 01.05.2010, issued by the first Respondent, and thereafter to conduct elections of the office bearers of the Swimming

Federation of India, in short, ""SFI"".

Facts:

3.1. The Petitioner is a Co-opted Member of the Haryana Swimming Association. He has been duly authorized by the President and Secretary of

the Haryana Swimming Association to participate in the elections of the Swimming Federation of India, in short, ""the Federation"", and to attend the

General Body Meeting of the Federation as an accredited representative. He has also filed nomination for the post of General Secretary, without

acquiescing to the irregularities in the proposed election.

3.2. The Federation is affiliated to the Indian Olympic Association and Federation Internationale de Natation Amateur (FINA) and registered

under the West Bengal Societies Registration Act. It is receiving nearly about Rs. 1.00 Crore every year as a grant from the Government of India.

The Bye-laws of the Federation provide for General Council and the Office bearers. The Office bearers are President, Vice-President, Hony.

General Secretary, Hony. Joint Secretaries, Hony. Treasurer and the term of the office though prescribed as three years in the Bye-laws, in

practice, it is being changed to four years.

3.3. One of the functions of the General Council is to elect the Office bearers and the Managing Committee of the Federation. Though the bye-

laws envisage a democratic process of election of the Office bearers, the actual functioning of the Federation has eroded the system and elections

have not been conducted in a fair and transparent manner. On account of the same, the object of establishing the Federation itself has been

defeated. Since the number of tenures a person could be elected has not been prescribed in the bye-laws, the very same person continued to be

elected and re-elected time and again as President and General Secretaries. The present General Secretary has been in post for the past 27 years.

3.4. That being so, the Government of India, Ministry of Youth Affairs and Sports, the first Respondent herein, by Proceedings in F. No. 8-

17/2009-SP-III, dated 01.05.2010, addressed to all the National Sports Federations, had issued a detailed guideline as to the maximum period

the President of a Sports Federation could hold office and similarly prescribed the number of years the Secretary and Treasurer to get elected.

Further, the said proceedings also directed that the compliance to the above directions shall be mandatory and they shall form an integral part of

the guidelines/regulations applicable to National Sports Federation.

3.5. Further, vide Proceedings No. F.46-12/2009-SP-I, dated 11.11.2010, the first Respondent also observed that ""it is unequivocally concluded

that SFI has not only violated the Government guidelines, which make it liable to de-recognition, but has also violated its own constitutional

provisions in not following due process in the conduct of elections of its office bearers, which make it also liable for de-registration as the national

sports federation for swimming in India. However, taking into view the interests of sports and sports persons, had granted 90 days time to amend

its constitution and hold fresh election in a fair, democratic and transparent manner.

3.6. The first Respondent, vide proceedings No. F-46-12/2009-SP-I dated 24.02.2011, after taking into consideration the reply of the

Federation dated 09.02.2011 to the letter dated 11.11.2010, categorically came to the conclusion that the Federation had failed to comply with

the Government order and stated that they should give a reply within 10 days as to why the Federation should not be de-recognized as the

National Swimming Federation for Swimming in India. The second Respondent, without taking immediate steps to comply with the directions of

the Government of India, to avoid de-recognition, has proceeded to once again conduct election without adhering to the guidelines as mandated by

the Government of India. Till-date, the bye-laws of the Federation have not been amended in consonance with the guidelines formulated by the

Government of India.

3.7. The present General Secretary of the Federation, vide letter dated 01.03.2011, addressed to all the State Associations, has informed that the

election of the office bearers of Swimming Federation of India will be held on 26.03.2011 at Chennai, followed by the General Body meeting of

the Federation and has also informed that Mr. Vinayak S. Borkar, Advocate, third Respondent herein, has been appointed as the Returning

Officer to conduct the election process. The election process commenced with the letter of the Returning Officer dated 04.03.2011, addressed to

various State Associations.

3.8. As per the existing bye-laws viz., bye-law No. 19, 21 clear days notice of the meeting should be issued to all members for the meeting of the

General Council and only in that meeting, the election of office bearers could be conducted. Since the notice was dispatched on 09.03.2011 and

the elections are scheduled on 26.03.2011, the provisions of Bye-law No. 19 has been violated and elections are not being conducted in a free,

fair and transparent manner. Also, the quorum of the meeting shall be 1/3rd of the total number of members. In the communication sent by the

Returning Officer, Annexure-2 Sl. No. 7, it has been stated that the election was held between 12.00 Noon and 01.30 p.m. on 26.03.2011,

whereas in the communication dated 04.03.2011 issued by the General Secretary, it is stated that the meeting will be held even in the absence of a

requisite quorums during the General Council Meeting.

3.9. Aggrieved over the alleged arbitrary, unilateral and unjust action of the Federation in proceeding to conduct election in contravention of the

guidelines and directions issued by the first Respondent and also in violation of the existing bye-laws, the Petitioner has filed this Writ Petition.

First Respondent has filed a counter, stating as follows:

4.1. SFI is a society registered under the West Bengal Societies Registration Act,1961. The conduct of the day-to-day affairs is governed by its

own constitution and a set of bye-laws made there under. First Respondent does not interfere with the internal functioning and day-to-day affairs of

the National Sports Federations, which are responsible for the control, regulation and technical development of different sports and disciplines.

However, the sports development being a national priority, the cooperation and partnership between the first Respondent and National Sports

Federations and other stakeholders organizations is essential for proper development, promotion of sporting excellence, organization of sporting

events, promotion of athletes welfare, promotion of drug free sports and the fights against all forms of corruption in sports. For this purpose, the

first Respondent grants several financial grants, benefit and concessions from the Consolidated Fund of India to the National Sports Federations.

The first Respondent is thus under a constitutional obligation to ensure that the National Sports Federations which avail themselves of a number of

benefits and concessions from the first Respondent discharge their duties effectively and follow the highest standards of good governance in the

management of respective sports controlled by them as well as in the management of their own internal affairs. On 01.05.2010, the first

Respondent circulated to all National Sports Federations, including SFI, a set of standard guidelines to be followed by them in their internal

functioning and for controlling their sports activities for being eligible to receive government assistance. These guidelines, inter alia, laid down

certain limits with regard to tenure and age limit of principal office bearers of National Sports Federations, as follows:

i) The President of any recognized National Sports Federation, including the IOA, can hold office for a maximum period of twelve years with or

without break.

ii) The Secretary (or whatever other designation such as Secretary General or General Secretary by which he is referred to) and the Treasurer of

any recognized National Sports Federation, including the Indian Olympic Association, may serve a maximum of two successive terms of four years

each after which a minimum cooling off period of four years will apply to seek fresh election to either post.

iii) The President, the Secretary and the Treasurer of any recognized National Sports Federation, including the IOA, shall cease to hold that post

on attaining the age of 70 years.

4.2. These guidelines were earlier approved by the High Court of Delhi by its decision dated 2nd March,2010, in Civil Writ Petition No. 7868 of

2005, in the matter of Indian Hockey Federation. The SFI conducted election of its Office bearers at the AGM held in Goa on 15.06.2010 and

while holding that election, the aforesaid guidelines of the Government were not followed by the SFI. Accordingly, SFI was issued a show-cause

notice on 28.07.2010 by the first Respondent to explain why the recognition granted to the Federation by the Government may not be withdrawn

for not following the guidelines. The reply furnished by SFI dated 13.08.2010 indicated that the issues raised in the show-cause notice would be

discussed in the General Body Meeting of the Federation. Not satisfied with the explanation of SFI, the first Respondent issued a final show-cause

notice to SFI on 24.02.2011, for its derecognition. In reply to the said final notice, SFI, by letter dated 28.02.2011, informed that it had decided

to convene the General Body Meeting in the month of March,2011, to consider the points of the Government''s guidelines and to incorporate the

same in its constitution. It was further informed that the Federation had accepted in principle the said guidelines and decided to initiate action to

implement the same before the end of March,2011. Shortly thereafter, the Federation also sent a letter dated 10.03.2011, informing that it was

convening its General Body Meeting at Chennai on 26.03.2011 and that it had decided to hold fresh election of its office bearers as per the

Government''s guidelines for the next term of four years. With that letter, a copy of the notice dated 04.03.2011, for holding of the AGM and a

copy of the circular dated 04.03.2011, issued by Advocate Vinay S. Borkar, in his capacity as Returning Officer, laying down the procedure for

holding of the election of office bearers and also laying down the schedule for that election was enclosed. On receiving the said letter, dated

10.03.2011 from SFI, the first Respondent appointed Shri S.K. Mendiratta, its Legal Consultant, as the Government Observer for the General

Body Meeting of SFI to be held at Chennai on 26.03.2011. The said Government Observer attended the General Body Meeting of SFI at

Chennai on 26.03.2011. The report of the Government Observer will show that the declaration and publication of result of election of office

bearers of SFI held on 26.03.2011 at Chennai was kept in abeyance, in view of this Court''s interim order dated 25.03.2011. In the conduct of

the election of office bearers of SFI at Chennai on 26.03.2011, the SFI followed the aforesaid Government guidelines dated 01.05.2010. The

Petitioner herein duly participated in that election, cast his vote and also remained present at the time of counting of votes by the Returning Officer.

Hence, this Writ Petition may be dismissed.

Second Respondent has filed a counter, stating as under:

5.1. The Writ Petition is not maintainable primarily on the ground that SFI is not a ""State"" within the meaning of Article 12 of the Constitution of

India. SFI is a registered society under the West Bengal Societies Registration Act and, therefore, not a State. Union of India does not have all

pervasive control or complete financial control over SFI. SFI is a self-regulated body. Writ Petition is also not maintainable owing to the reason

that 14 other contestants (15 in all, including the writ Petitioner) have not been arrayed as Respondents. SFI is governed by a set of bye-laws,

which is referred to as the Constitution of SFI. SFI consists of 27 units. As per the Constitution of SFI, six units have one vote each and the

remaining 21 units have 2 votes each (6+42= 48 in all) for electing 12 office bearers viz., one President, five Vice-Presidents, one General

Secretary, four Joint Secretaries and one Treasurer.

5.2. The Government of India, Ministry of Youth Affairs and Sports, provides grant for various activities of SFI. Besides grant, there are several

other support systems provided by the Government of India. There are also other benefits such as railway concession, customs duty exemption for

import of sports equipment for the athletes and for training, support for the coaching camps and international participation. SFI is recognized by the

Government of India for sports activity/discipline-Swimming. The Government of India had sent a communication dated 11.11.2010 to SFI, calling

for certain clarifications and the same were given by SFI vide communication dated 09.02.2011. Thereafter, the first Respondent issued

proceedings dated 24.02.2011 in which one aspect was conduct of elections for electing above said 12 office bearers for SFI. Pursuant to the

same, the second Respondent issued an election Notification dated 01.03.2011 and circulated the same to all the affiliated units inter alia notifying

that the third Respondent was appointed as the Returning Officer. As per the directions of the third Respondent, Returning Officer, the list of units

and the accredited members were duly hosted in the official website of SFI. Thereafter, the second Respondent issued a Notification dated

04.03.2011, convening the General Body Meeting of SFI on 26.03.2011 and the same was communicated to all the units of SFI. The third

Respondent, who was appointed as Returning Officer, in discharge of his duties, had issued a notification dated 04.032001, enclosing a proforma

for proposal, election programme and nomination form. The last day for receiving nomination form was 20.03.2011 at 05.30 p.m. The scrutiny of

nomination forms was done on 21.03.2011 as per schedule. The last date for withdrawal is 22.03.2011 at 02.00 p.m. The list of candidates in the

fray was published on 22.03.2011 by 05.00 p.m. On the whole, there were 15 contestants in the fray for 12 posts/office bearers of SFI. With

regard to President and Treasurer, there were only one nomination each and therefore on the publication of the list of candidates on 22.03.2011,

the two contestants for the post/office bearer of President/Treasurer stood elected unopposed. Therefore, the election on 26.03.2011 in Chennai

between 12.00 Noon and 01.30 p.m. was only for 5 Vice-Presidents (6 contestants), 1 General Secretary (2 contestants) and 4 Joint Secretaries

(5 contestants). The election was by secret ballot. On 26.03.2011. at the polling venue in Chennai, out of 48 electors, 47 were present and they

cast their votes for electing the office bearers. The entire process of polling and counting was done in the presence of the contestants, including the

writ Petitioner. The calendar year commencing from 01.01.2011 is a Olympics qualifying year for the next Olympic Games scheduled to be held in

August 2012 in London. Therefore, there is no irregularity in the action of the Respondents.

Third Respondent has also filed a counter, on similar lines with that of the second Respondent.

Learned Counsel for the Petitioner would contend that there is no necessity to conduct the election for the office bearers of the Federation in

haste; even as per the existing bye-laws 21 clear days notice is required for conducting the General Council Meeting; the election scheduled to be

held on 26.03.2011 is being conducted without following the mandatory guidelines issued by the Government of India and also in violation of the

bye-laws of the Federation and, therefore, the election proposed to be conducted by Respondents 2 and 3 is per se illegal, arbitrary, mala fide and

contrary to the established principles of democracy. In support of his contention, the learned Counsel has relied upon the following decision:

Sun TV Limited Vs. Tata Sky Limited and The Telecom Disputes Appellate Tribunal, , wherein this Court has held as under:

With regard to his contention that a part of cause of action has arisen in Chennai by virtue of the fact that the first meeting towards settlement

was held in Chennai as per the direction of the Tribunal and that is sufficient to maintain this writ petition on the aspect of territorial jurisdiction, the

learned Senior Counsel for the Petitioner has placed reliance on a judgment of the Supreme Court reported in Om Prakash Srivastava Vs. Union

of India (UOI) and Another, .: (para 8)

Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction,

order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of

action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government

or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.

As far as the first point for consideration is concerned, it is no doubt trite, as has been held by the Supreme Court in its catena of judgments,

that even if a fraction of a cause of action has arisen within the territorial jurisdiction of a court, that is sufficient for the court concerned to entertain

a petition which cannot be dismissed on the ground that the court does not have territorial jurisdiction to deal with the said petition. In the instant

case, admittedly, while the Petitioner is having its registered office in Chennai and carrying on its business in Chennai, the first Respondent is having

its office in New Delhi and also the Tribunal which has passed the impugned orders is housed in New Delhi. Mr. Habibulla Badsha, learned Senior

Counsel for the first Respondent, by placing reliance on the judgment reported in L. Chandra Kumar Vs. Union of India and others, has

vehemently contended that since the Tribunal is located in Delhi, the present petitions which have been filed before this Court and that too before a

Single Judge, cannot be maintained on account of lack of territorial jurisdiction by this Court. While attacking this contention of Mr. Habibullah

Badsha, Mr. P.S. Raman has contended that the judgment relied on by the former cannot be made applicable to the facts of this case since the

Tribunal is not a body instituted under Article 323A or 323B of the Constitution but under a statute and this reply given by Mr. Raman sounds to

be convincing. Further, it is to be seen that the reach of the package offered by the Petitioner is not restricted to one particular area only. Rather, it

is going to have a nation-wide coverage. That apart, as per the direction of the Tribunal, the Petitioner and the first Respondent have also held a

meeting in Chennai to come to an amicable settlement, but in vain and this is not disputed by the first Respondent. In this case, the Petitioner has

pleaded every aspect of cause of action and the facts pleaded do have some nexus and relevance with the issue involved in this case. Moreover,

the ultimate relief if it is granted, it will have an effect of giving signals from the channels owned by Sun TV. Therefore, there is at least a part of

cause of action which does offer jurisdiction to this Court as per Clause 2 of the Article 226 of the Constitution of India.

On the other hand, Mr. R. Muthukumarasamy, learned Senior Counsel for the second Respondent, would contend that this Writ Petition is not

maintainable, as the Federation is a society, registered under the West Bengal Societies Registration Act, and it is not a State within the meaning of

Article 12 of the Constitution of India; the year 2011 is a Olympics qualifying year for the next Olympic Games scheduled to be held in August

2012 in London; the entire process of election was done only as per the procedure and in the presence of the contestants, including the writ

Petitioner, and, therefore, there is no irregularity in the action of the Respondents. He would rely upon on the following Supreme Court decisions:

(i) State of Assam and Another Vs. Ajit Kumar Sharma and Others, :

The main question which falls for decision in this appeal is whether the High Court is right in issuing a writ of mandamus to the State through the

Director directing it not to give effect to the letter of March 20, 1962. It has not been contended on behalf of the Appellants that the Rules have no

statutory force and are mere executive instructions given by the Government to private colleges as a condition for the implementation of pay scales

etc. recommended by the University Grants Commission for private colleges, these scales being apparently higher than those existing from before.

It seems to us that the High Court was in error in granting a writ of mandamus against the State through the Director once it found that the Rules

had no statutory force and were mere administrative instructions for the purpose of giving grant-in-aid to private colleges. What grants the State

should make to private educational institutions and upon what terms are matters for the State to decide. Conditions of these grants may be

prescribed by statutory rules; there is however no law to prevent the State from prescribing the conditions of such grants by mere executive

instructions which have not the force of statutory rules.... Where such conditions of grant-in-aid are laid down by mere executive instructions, it is

open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions, it will naturally not get the

grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions

contained in the instructions, it receives the grant-in-aid. If however having accepted the instructions containing the conditions and terms, the

college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a matter

between the Government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of

the private colleges and they cannot ask that either a particular instruction or condition should be enforced or should not be enforced. It is only for

the Governing Body of the College to decide whether to carry out any direction contained in mere administrative instructions laying down

conditions for grant-in-aid. Further it is open to the Governing Body not to carry out any such instruction which is not based on rules having

statutory force, and it will then be naturally open to the State to consider what grant to make. But if the Governing Body chooses to carry out the

instruction, it could hardly be said that the instruction was being carried out under any threat. It is certainly not open to a teacher to insist that the

Governing Body should not carry out the instruction. The rules for the purpose of grant-in-aid being - as in this case - merely executive instructions

confer no right of any kind on teachers and they cannot apply to the High Court for a mandamus asking for the enforcement or non-enforcement of

the rules, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. Such mere

administrative instructions even though called rules are only a matter between the Governing Body and the State through the Director and cannot in

our opinion form the basis of a petition for writ under Article 226 by a teacher.

(ii) Cyril E. Fernandes Vs. Sr. Maria Lydia and Others, :

The main contention of Mr R.K. Garg for the Appellant has been that the Judicial Commissioner was in error in issuing a writ to enforce the

provisions of the grant-in-aid code which have no statutory force. We do not think it is a question which can be raised in this appeal at the instance

of the teacher. The writ petition questioned the validity of the direction on the management of the school to reinstate the teacher and the stoppage

of the grant-in-aid as a penal measure when the management declined to comply with that direction. The authorities who were responsible for

making the impugned orders and against whom the writ has gone, have not appealed. The dispute was between the management of the school and

the Government relating to some of the rights and obligations they have against each other under the grant-in-aid code; the teacher, termination of

whose services gave rise to this dispute, was impleaded as a proper party in the writ petition. The scope of the appeal is limited to what the

judgment contains by which the Appellant can be said to be aggrieved. A person can claim to be aggrieved if his legal rights are directly affected.

In State of Assam v. Ajit Kumar Sharma1 this Court observed:

Where such conditions of grant-in-aid are laid down by mere executive instructions, it is open to a private college to accept those instructions or

not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the

conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions, it receives the grant-

in-aid. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the

Government will naturally have the right to withhold the grant-in-aid. That is however a matter between the Government and the private college

concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either

a particular instruction or condition should be enforced or should not be enforced.

On the authority of State of Assam v. Ajit Kumar Sharma it is clear that the Appellant is not directly concerned with the question whether the rules

in the grant-aid code conferred on the management of the school an enforceable right against the Government which is entirely a matter between

the management and the Government. The Appellant who has no say in the matter cannot challenge the finding on the point. The question as to the

enforceability of the grant-in-aid code does not thus arise in this appeal and we express no opinion on it. The scope of the appeal must therefore

be limited to what directly concerns the Appellant in the impugned judgment. The Judicial Commissioner has held that this was a case of

termination of service under Rule 74(2) which does not require a regular enquiry as in a case to which Rule 74(3) is applicable. In spite of this

finding, the judgment contains some remarks like ""the behaviour of the fifth Respondent was immodest and immoral"" and that though an

opportunity was given to him to answer the charges levelled against him, he did not avail of that opportunity. There has been no proper enquiry to

find out the truth of the allegations against the Appellant; indeed, there was no occasion for any such enquiry as the Appellant''s services were

terminated by applying Rule 74(2) of the grant-in-aid code. We hold that the remarks on the conduct of the Appellant are unjustified and should

not have been made. Subject to this, the appeal is dismissed. We express no opinion as to whether on the facts of the case the Appellant has any

legal claim against the management of the school; if he has, he is free to enforce it in an appropriate forum.

(iii) Narendra Kumar Maheshwari Vs. Union of India (UOI) and Others, . We would also like to 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 there from 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 Ramana Shetty case1), the guidelines may prescribe certain standards 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 words, they would have been potential competitors in case any relaxation 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;

departure there from will take away the protection 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. A court, however, would be reluctant to interfere simply because one or more of the guidelines have not been adhered to even where

there are substantial deviations, unless such deviations are, by nature and extent such as to prejudice the interests of the public which it is their

avowed object to protect. Per contra, the court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or

public interest warrant, justify or necessitate such deviations in a particular case. This is because guidelines, by their very nature, do not fall into the

category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is

necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only

where the deviation either 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.

Mr. M. Ravindran, learned Additional Solicitor General of India, has relied on a decision of this Court dated 13.10.2009 made in the case of A.

Rajaram v. State of Tamil Nadu, wherein, it is held as follows:

In this context, it is necessary to refer to the judgment of the Supreme Court in Election Commission of India v. Dr. Subramaniam Swamy

reported in Election Commission of India and another Vs. Dr. Subramanian Swamy and another, . The extreme example pointed out by the

Supreme Court as found in paragraph 16 extracted hereunder is not available to the case of the first Respondent herein. We must have a clear

conception of doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not

countenance on the touchstone of judicial propriety. State differently, the doctrine of necessity makes it imperative for the authority to decide and

considerations of judicial property must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If

the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party

would benefit there from. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a

provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such

a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is

between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to

promote decision-making. In the present case also, if the two Election Commissioners are able to reach a unanimous decision, there is no need for

the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.

I have heard the learned Counsel for the parties and also given my thoughtful consideration to their submissions.

This Writ Petition requires adjudication on two aspects viz., (i) maintainability and (ii) merit. The question of going into the second aspect arises

only if the Writ Petition succeeds on the first point. Therefore, let me first examine, whether the Writ Petition is maintainable ?

It is not in dispute that the Federation is a society, registered under the West Bengal Societies Registration Act,1961, and its internal

functioning and the conduct of the day-to-day affairs are governed by its own constitution and a set of bye-laws made there under. At the same

time, it is also not debated that the said Federation is getting several financial grants, benefits and concessions from the Government of India.

Therefore, the first Respondent is under a constitutional obligation to ensure that the Federation, which avails a number of benefits and concessions

from the Government, discharges its duties effectively and follows highest standards of good governance in the management of respective sports

controlled by it as well as in the management of its own internal affairs. As such, the Federation is a ""State"", within the meaning of Article 12 of the

Constitution of India. That apart, the Petitioner is a Member of the Haryana Swimming Association, having residence at Karnal, Haryana, and has

come down to Chennai, armed with a letter of authorisation by the General Secretary of the Association, as a delegate to participate in the election

process to be held in Chennai. Respondent 1 being the Union of India; second Respondent having its headquarters at Calcutta and its members

spread all over the country, including Chennai, and the entire election process having been scheduled, held and concluded in Chennai, cause of

action arose within the territorial jurisdiction of this Court. Hence, this Writ Petition is maintainable.

Coming to the second point of merit, on going through the entire records, what transpires is that on 01.05.2010, the first Respondent circulated

to all National Sports Federations, including SFI, a set of standard guidelines to be followed by them in their internal functioning and for controlling

their sports activities for being eligible to receive government assistance. The guidelines, inter alia, laid down certain limits with regard to tenure and

age limit of principal office bearers of National Sports Federations. The guidelines were framed, following the direction of the High Court of Delhi,

in the matter of Indian Hockey Federation. The SFI conducted election of its Office bearers at the AGM held in Goa on 15.06.2010 and while

holding that election, the aforesaid guidelines of the Government were not followed by the SFI. Accordingly, SFI was issued a show-cause notice

on 28.07.2010 by the first Respondent to explain why the recognition granted to the Federation by the Government should not be withdrawn for

not following the guidelines. The reply furnished by SFI dated 13.08.2010 indicated that the issues raised in the show-cause notice would be

discussed in the General Body Meeting of the Federation. Not satisfied with the explanation of SFI, the first Respondent issued a final show-cause

notice to SFI on 24.02.2011, for its derecognition. In reply to the said final notice, SFI, by letter dated 28.02.2011, informed that it had decided

to convene the General Body Meeting in the month of March,2011, to consider the points of the Government''s guidelines and to incorporate the

same in its constitution. It was further informed that the Federation had accepted in principle the said guidelines and decided to initiate action to

implement the same before the end of March,2011. Shortly thereafter, the Federation also sent a letter dated 10.03.2011, informing that it was

convening its General Body Meeting at Chennai on 26.03.2011 and that it had decided to hold fresh election of its office bearers as per the

Government''s guidelines for the next term of four years, for which purpose Mr. Vinay S. Borkar was appointed as the Returning Officer. With that

letter, a copy of the notice dated 04.03.2011, for holding of the AGM and a copy of the circular dated 04.03.2011, issued by the Returning

Officer, laying down the procedure for holding of the election of office bearers and also laying down the schedule for that election was also

enclosed. On receiving the said letter, dated 10.03.2011 from SFI, the first Respondent appointed Shri S.K. Mendiratta, its Legal Consultant, as

the Government Observer for the General Body Meeting of SFI to be held at Chennai on 26.03.2011. The said Government Observer attended

the General Body Meeting of SFI at Chennai on 26.03.2011.

In the election on 26.03.2011, the Petitioner herein duly participated, cast his vote and also remained present at the time of counting of votes by

the Returning Officer. Post polling, when the counting was under way, the Petitioner, who was one of the contestants for the office of General

Secretary, circulated a photo copy of the order of this Court dated 25.03.2011, as per which, the election shall go on, but the results shall not be

published until further orders from this Court. It means, even this Court on 25.03.2011, had not stayed the election and, instead, the said election

was allowed to go on. The only observation made by this Court was that the result of the said election should not be published until further orders.

The entire process of polling and counting was done in the presence of the contestants. Moreover, the said process was monitored by two

observers, one appointed by the first Respondent and the other by the Indian Olympics Association. It is also significant to note that the observer

appointed by the first Respondent is a Legal Consultant of the Election Commission of India.

The writ Petitioner had participated in the election and the entire electoral proceedings. He was personally present for scrutiny throughout

polling and at the time of counting and tabulation of votes polled. In the given situation, he filed the writ petition at the eleventh hour, with an oblique

motive, apparently knowing that he had no chance of succeeding in the election. The election process was undertaken by the second Respondent

in view of the fact that the year 2011 is a Olympics Qualifying Year for the next Olympic Games scheduled to be held in August,2012, at London.

Law permits certain things to be done as a matter of necessity, which it would otherwise not countenance on the touchstone of judicial

propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must

yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed

full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit there from. In such

cases, the doctrine of necessity comes into play. At the same time, if the choice is between allowing a biased person to act or to stifle the action

altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. This is the law laid down by the Supreme

Court in Election Commission of India and another Vs. Dr. Subramanian Swamy and another, . In the present case also, as already stated above,

the election process was undertaken by the second Respondent in view of the fact that the year 2011 is a Olympics Qualifying Year for the next

Olympic Games scheduled to be held in August,2012, at London.

It is also seen that in the recently concluded Commonwealth Games,2010, at New Delhi, 22 Indian swimmers came up to semi-finals stage

and 15 came up to finals. In the Asian Games 2010 held at Gaunshou too, an Indian swimmer won the Bronze Medal and for the first time put

India in the international map in swimming discipline. Therefore, if the interim order of keeping in abeyance the publication of results is continued, it

will amount to scuttling the young and talented swimmers, who are potential olympians, from the Olympic Games, and putting the country''s pride

at stake.

In addition, on 01.03.2011, the second Respondent issued a Notification to all affiliated Units of SFI and National Swimming Association,

stating that as per the Ministry of Youth Affairs & Sports, Government of India guidelines and as directed by President, Swimming Federation of

India, it had been decided to conduct the election of Office Bearers of Swimming Federation of India on 26th March,2011, at Chennai, followed

by General Body Meeting of the Federation. It was also stated therein that Advocate Mr. Vinayak Borkar was appointed as the Returning Officer

to conduct the election process and he would send all necessary documents to all the units for the same. Following that, the third Respondent, who

was appointed as Returning Officer, in discharge of his duties, had sent a communication, dated 04.03.2001, to the Haryana Swimming

Association, regarding the election, enclosing a proforma for proposal, election programme and nomination form. The last day for receiving

nomination form was 20.03.2011 at 05.30 p.m. The scrutiny of nomination forms was done on 21.03.2011 as per schedule. The last date for

withdrawal was 22.03.2011 at 02.00 p.m. The list of candidates in the fray was published on 22.03.2011 by 05.00 p.m. As the Notification was

dated 01.03.2011 and the subsequent communication was dated 04.03.2011 for the election dated 26.03.2011, it is clear that 21 clear days

notice was given to the Haryana Swimming Association. All the above events would indicate that the action of the Respondents in conducting the

election coupled with the procedure followed therefor does not suffer from any illegality, arbitrariness or mala fides, as contended by the learned

Counsel for the Petitioner. Therefore, the contention of the learned Counsel for the Petitioner that there was no 21 clear days notice for the election

and the General Body Meeting is not correct.

Another contention of the learned Counsel for the Petitioner is that the guidelines issued by the Union of India are in furtherance of the

implementation of the direction of the Delhi High Court and, therefore, it is mandatory on the part of the second Respondent to incorporate the

same, pursuant to which only they can proceed with the election process. It is also his contention that the guidelines aim at removing some

discrepancies in the existing and unending period of continuance of office of some office bearers in the bye-laws and, when that being the position,

the existing bye-laws of the second Respondent will have adverse impact on the functioning of the Federation.

The said contentions have been refuted by the learned Senior Counsel for the second Respondent, stating that the Federation is governed by

the provisions of the Act and bye-laws made therefor and as long as the bye-laws are not in conflict with the guidelines, the Respondent can

always proceed with the election process. Further, he would contend that the second Respondent is inclined to incorporate the guidelines in the

bye-laws, for which it may take some time.

To examine the above position, it is to be seen that the directions issued by the Delhi High Court have been taken into consideration by the

Government of India and, accordingly, they issued instructions under Article 73 of the Constitution of India. Any executive instruction is binding on

the institution under the control of Union of India and also it is incumbent upon an institution which depends on the funds and has regulatory

mechanism of the Union of India to follow the guidelines and apply to its rules and regulations. In this regard, a stand has been taken by the second

Respondent that the provisions of the Act, Rules and Bye-laws are not in conflict with the guidelines, but, however, they would adopt the same in

the course of time, and, as there was a compelling circumstance, which they explained to the Union of India, the first Respondent had agreed for

the conduct of the election and sent an observer to the election process.

It is true, incorporation of the guidelines is necessary to every member/unit of the association, but it cannot compel the second Respondent

Federation to first incorporate and thereafter only proceed with the election, particularly when the Union of India itself, though initially had issued

show-cause notice to the Federation, has impliedly consented for the conduct of the election pre-incorporation and sent an observer thereto. It is

not for the individual member to stand on the technicality to stall the functioning of the Federation, when the entire process is to be carried out to

tide over the international obligations and also when the selection process is to be completed within the time frame in order to send various athletes

and other sportspersons for participation in the Olympic Games.

Sports and games have been widely recognised as an essential ingredient of Human Resource Development. The Government of India attaches

considerable importance to development of sports in general and achieving excellence in Olympics and other international events in particular. It is

the endeavour of the Government to streamline the procedures for effective coordination among various agencies involved in promotion of sports

and extend required infrastructure, training and other facilities to the sportspersons for achieving excellence in the international events.

In order to foster and promote international relations and also to maintain just and honourable relations among the nations, guidelines have been

framed and followed by the Federations for decades together. With that aim, the Federations are making selection process of the teams for their

participation in the ensuing Olympic Games. Therefore, the aims and objectives of the Union of India, National Sports Federations, Indian

Olympics Association as well as SFI are the matters for great concern.

Viewed at from that angle, in the case on hand, at a time when the process is undergone by the second Respondent Federation in a

circumstance of necessity to prepare themselves for the ensuing Olympic Games by concluding the election to its office bearers and the publication

of results awaited, this Court is of the considered opinion that the claim of the Petitioner for quashing the action of the Respondents 2 and 3 in

conducting the election would definitely defeat the above very object. Therefore, there is no merit in the claim of the Petitioner and the Writ Petition

deserves dismissal and the same is, accordingly, dismissed, with a direction to the third Respondent to publish the results. If at all the Petitioner has

any grievance, it is open for him to approach the Haryana Swimming Association, which is the competent authority to take up the matter with the

appropriate forum, but not he, in individual capacity. It is needless to say that the second Respondent is entitled for grants from the first

Respondent, only subject to compliance of the guidelines.

To sum up, while answering the point of maintainability in favour of the Petitioner, this Writ Petition is dismissed on merit, with the above

observations and direction. No costs. Consequently, the connected M.P. Nos. 2 and 3 of 2011 are closed.