MAHIPAL SINGH & ORS vs UNION OF INDIA & ORS
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 3 November 2023
Pronounced on: 10 November 2023
+ W.P.(C) 4601/2013
MAHIPAL SINGH & ORS. ….. Petitioners
Through: None
versus
UNION OF INDIA & ORS. ….. Respondents
Through: Mr. Arushi Reddy, Mr. Deepak Kumar Singh, Mr. Sunny Kumar, Mr. Kuldeep Sharma, Mr. Puneet Aggarwal, Mr. Kanhaya, Mr. Yashvir Yadav and Mr. Abhimanu Sinha, Advs. for the applicants of all the States.
Ms. Nandita Rao, Mr. Kunal Prakash, Mr. Jasraj Singh Chhabra, for AFKL
Mr. Dev P. Bhardwaj, CGSC for UOI with Ms. Anubha Bhardwaj, Mr. Sachin Singh and Ms. Chaahat Khanna, Advocates
Mr. Sanjeev Kumar Dubey, Senior Advocate along with Mr. Venus Anand, Ms. Ruchi Rajput and Mr. Asif Inam Advocates for Review Petitioners No. 3 and 5
CORAM:
HON’BLE MR. JUSTICE YASHWANT VARMA
HON’BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 10.11.2023
per C.HARI SHANKAR, J
REVIEW PET. 10/2019 in W.P.(C) 4601/2013
1. This Review Petition, preferred by Respondent 5, seeks review of para 78 of our judgment dated 3 August 2018, which reads thus:
78. Given the totally clandestine .and surreptitious manner in which the provisions of the MOA were illegally amended, in order to enable Respondent No. 5 to contest for the post of President, we further direct that Respondent No. 5 render accounts of all financial benefits, which have enured to Respondent No. 5, as and in her capacity as President of the AKFI since the time of her appointment to the said post on 19th May, 2013 until date, and the same be recovered from her, forthwith.
2. Mr. Sanjeev Kumar Dubey, learned Senior Counsel for the review petitioner submits that his client seeks review of the afore-extracted para 78 of our judgment to the extent it directs recovery to be made from Respondent 5.
3. Before we advert to the submissions of Mr. Dubey, a brief outline of the controversy would be necessary.
4. The petitioners are players who claim to have earned gold medals for the nation in the international Kabaddi arena. They instituted the present petition by way of a public interest litigation, challenging what they regarded as the hegemonic control exercised by Respondents 4 and 5 over the affairs of the Amateur Kabaddi Federation of India (AKFI) and its affairs since decades. Respondent 5 is the wife of Respondent 4. The petitioners contention was that the Respondent 4 was elected as the President of AKFI in 1984 and continued to remain President of the AKFI without a single election being held till 19 May 2013. On that date, Respondent 4 ceased his reign as President of the AKFI and his wife, Respondent 5, who is a practicing gynecologist and a complete stranger to Kabaddi, took his place. She continued to remain President of the AKFI till the pronouncement of the judgment under review on 3 August 2018. Thus, the contention of the petitioners was that, from 1984 till 2018, Respondents 4 and 5 continued to hold absolute control over the AKFI as its President without any election being held and in complete violation of all democratic principles governing such an important Federation, as well as the clauses of the Memorandum of Association (MOA) of the AKFI.
5. The matter was heard at length by us, over several days. All parties, including Respondents 4 and 5, were represented. Learned Senior Counsel who appears today in the present Review Petition, in fact, argued on behalf of Respondents 3 to 5.
6. After considering all submissions made, we, by our detailed judgment dated 3 August 2018, found substance in the submissions of the petitioners. Paras 59 to 66 and 75 and 78 of our judgment under review may be reproduced thus:
59. In the backdrop of the above noted legal requirements, we are, frankly, appalled at the manner in which every mandatory condition, and stipulation, was ignored, with impunity, by Respondent No. 4 and, vicariously, by Respondent No. 5 as well. Worse, we are informed that Respondent No. 6, the son of Respondent Nos. 4 and 5, has been elected as President of the Rajasthan State Kabaddi Federation (SKF). There is wealth of merit in the submission, of the petitioners, that Respondent Nos. 4, 5 and 6 had, indeed, held the AKFI to ransom, and were treating it as their family enterprise, as if there were none else to further the sport of Kabaddi in the country.
60. Significantly despite our repeated queries, no information has been forthcoming regarding participation of either Respondent No. 4 or Respondent No.5 in the sport of Kabaddi, or for that matter, any game or sport.
61. Addressing, now, the 2013 amendment of the MOA of the AKFI. Significantly, this amendment was effected by the General Council, on 29th December, 2011, which meeting, in turn, was chaired by Respondent No. 4 himself. The provisions, in the amended MOA, with which the petitioners claim to be aggrieved, are Clauses 8.9, 15.2, 15.8 and 17.2 and, in our opinion, none of the said Clauses can sustain the scrutiny of law.
62. The Model Election Guidelines annexed to the NSCI and constituting a part thereof clearly set out the officers who would constitute Office Bearers of the NSF, and the post of Life President is not among them. Indeed, neither does the NSCI, nor do any of the Circulars issued prior thereto, contemplate a post of Life President in an NSF. While Clause 19 of its pre-amended MOA included, in the Office Bearers of the AKFI, only the President, Vice Presidents, Honorary General Secretary, Honorary Joint Secretaries and Honorary Treasurer, Clause 8.9 of the amended MOA of the AKFI included, among the Office Bearers, the Life President. This was, on the face of it, illegal, as the NSCI did not visualize any post of Life President at all, in an NSF, either as an Office Bearer, or otherwise.
63. In our opinion, as a beneficiary of the recognition conferred by the Government, the AKFI was bound by the stipulations contained in the NSCI, and other Cognate Guidelines issued by the Government, and had no authority to create posts de hors, and in excess of, those contemplated by the NSCI.
64. Apart from the fact that the AKFI, in its capacity as a NSF availing recognition from the Government, did not have any authority to create a post of Life President, where the NSCI did not contemplate the existence of any such post, Clause 15.8 compounded the illegality by providing that the Life President would hold office during his life entire time. This stipulation, again, directly infracted the tenure limits, specified in the NSCI which, as already noted hereinabove, were binding on all recognised NSFs, including the AKFI. The creation of such an immortal entity, blessed with the gift of ichhamrityu (death at will) was, we are certain, not even remotely within the imagination, not to say contemplation, of the framers of the NSCI.
65. Equally, the post of Life President itself being an illegally created post, there could be no question of the holder of the said post having any right to represent the AKFI at any international forum. The NSCI, as well as the Guidelines issued prior thereto, clearly permitted representation, by any NSF, in continental or international sports events in which India was a participant, only if the NSF complied with the stipulations prescribed therein, which included adherence to the age specifications and tenure limits specified, as well as conducting of elections in accordance with the Model Election Guidelines.
66. In any event, the very creation of the post of Life President being vitiated by law, there could be no question of granting any benefits to the holder of such an illegally created post. Though Mr. Dubey asserted that no salary, or emoluments, were paid to Respondent No. 4, in his capacity as Life President, expenses would, no doubt, be incurred in allowing Respondent No. 4 to travel nationally and internationally, purportedly representing the country in sporting events. These expenses are defrayed out of public monies, and amount to thievery of the ordinary citizen by executive dispensation, which is completely unthinkable in law.
*****
75. Mr. Dubey sought to impress, on us, the fact that Respondent No. 5 had been elected by a democratic election process, and that, therefore, any judicial interdiction, therewith, would clearly be unwarranted. As we have found Respondent No. 5 to have been ineligible, in the first place, to contest for the post of President of the AKFI, her eligibility being dependent on the use of the words or any outsider, as contained in Clause 15.2 of the amended MOA, which, too, we have found to be completely illegal, no further examination, of this contention of Mr. Dubey, would be necessary. We may, nevertheless, note the somewhat disturbing circumstance, revealed from a perusal of the list of nominated candidates, for various posts of Office Bearers in the AKFI, in the elections held in 2013 and 2015, that, apparently, only single candidates had been nominated, against each of the said posts, and all nominated candidates inevitably were elected against the posts. That apart, we find that the names of the successful candidates, elected as Office Bearers consequent on the 2013 and 2015 elections in the AKFI, were practically the same, except for the name of one JP Agarwal, who figures in the list of candidates elected in 2015, but is absent in the list of 2013. These facts, too, seriously undermine the legality, and legitimacy, of the elections held, for the posts of Office Bearers in the AKFI, both in 2013 as well as 2015.
76. In view of our reasoning hereinabove, the reliance, by Mr. Dubey, on our judgement in Energy Watchdog (supra), is of no substantial significance. Though, in preference to the multitude of members of various State Federations, Boards and Institutions, who would be members of the AKFI by virtue of such membership, the choice of Respondent No. 5, who was neither a Kabaddi player, nor a member of any such unit, but was a practising gynaecologist/obstetrician, having nothing to do with the sport of Kabaddi except, as the counter-affidavit filed by her would seek to aver, a keen interest in the sport is difficult to digest, we have not chosen to declare her election as President of the AKFI as illegal on that ground, as our findings hereinabove disclose. We have not, therefore, proceeded to examine whether an obstetrician/gynaecologist would, or would not, be fit, or even eligible, to be elected and appointed as President of the AKFI; ergo, our earlier judgement in Energy Watchdog (supra) does not impact our decision, this way or that.
Conclusion
77. In view of the above discussion, we allow the present writ petition. Resultantly, Clauses 8.9, 15.22, 15.8 and 17.2 of the amended MOA of the AKFI, are struck down as illegal. The appointment of Respondent No. 4 as Life President of the AKFI, is also, consequently, declared illegal. Equally, the election and consequent appointment of Respondent No. 5, as President of the AKFI, on 19th May, 2013 and 23rd April, 2017, are also declared illegal, and are accordingly quashed and set aside.
78. Given the totally clandestine and surreptitious manner in which the provisions of the MOA were illegally amended, in order to enable Respondent No. 5 to contest for the post of President, we further direct that Respondent No. 5 render accounts of all financial benefits, which have enured to Respondent No. 5, as and in her capacity as President of the AKFI since the time of her appointment to the said post on 19th May, 2013 until date, and the same be recovered from her, forthwith.
7. It was consequent to our finding that Respondents 4 and 5 had wrested control over the affairs of the AKFI over three decades, without any democratic election ever being held for the post of President of the AKFI, that the directions in para 78, forming subject matter of review, came to be passed by us.
8. Before proceeding to deal with Mr. Dubeys submissions, we may note that Respondent 5 had, in fact, challenged our judgment dated 3 August 2018 before the Supreme Court by way of SLP(C) 21938/2018, which came to be dismissed vide the following order dated 31 August 2018:
The Special Leave Petitions are dismissed.
Pending applications stand disposed of.
However, the Administrator will see that the election is held within a period of 12 weeks from today.
9. We now proceed to deal with the submissions of Mr. Dubey in support of the present Review Petition.
10. To a query from us as to whether it would be appropriate for us to entertain the present Review Petition in the light of the order dated 31 August 2018 passed by the Supreme Court in SLP (C) 21938/2018, Mr. Dubey sought to rely on the well-known decision in Kunhayammad v. State of Kerala1 to contend that, as the SLP preferred by his client against the judgment under review had been dismissed by the Supreme Court in limine, there was no merger of the judgment under review with the decision of the Supreme Court, and the present Review Petition was, therefore, maintainable.
11. Frankly speaking, we have our doubts about the correctness of this proposition in the facts of the present case. It is true that Kunhayammad1 holds that dismissal of an SLP in limine would not result in merger of the judgment against which the SLP has been filed, which would continue to remain a judgment of the Court which passed it and would, therefore, classically be open to review by the said Court. The order dated 31 August 2018 passed in the present case, the Supreme Court in SLP (C) 21938/2018 is not, strictly speaking, an order dismissing the SLP in limine. The Supreme Court has, even while dismissing the SLP, modified the impugned order to the extent of permitting the Administrator, appointed by this Court, to conduct the election of the AKFI within 12 weeks. Inherent in this modification is the according of its imprimatur, by the Supreme Court, to our decision to appoint an Administrator. The order dismissing the SLP, therefore, impliedly approves the decision of this Court to appoint the Administrator which, in turn, reflects approval of our finding that the affairs of the AKFI were indeed being conducted in a manner unknown to law.
12. We have our doubts, therefore, whether, in such circumstances, it would be permissible for us to tinker with our judgment beyond the extent to which the Supreme Court has modified it, in its order dated 31 August 2018 in SLP(C) 21938/2018. We are, however, quite clear that the present case is not one which directly falls within the sphere of the Kunhayammad principles.
13. The second, and only other, submission advanced by Mr. Dubey was that there is no prayer in the present writ petition, for recovery of any amount from Respondent 5. In such circumstances, he submits that, in directing such recovery, this Court exceeded its jurisdiction. He has relied, for the said purpose, on two decisions of the Supreme Court. He cites para 26 of Krishna Priya Ganguly v. University of Lucknow2, which reads as under:
26. The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for. Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to us to be extremely shocking. Although much could be said against the view taken by the High Court yet we would not like to say more than this that the High Court had made a very arbitrary, casual and laconic approach to the case and based its judgment purely on speculation and conjectures swept away by the consideration that Dr. Sinha possessed a diploma when in fact other candidates also had obtained diploma but that could not be taken into consideration, because the Rules did not so provide.
Mr. Dubey also placed reliance on para 29 of Bharat Amritlal Kothari v. Dosukhan Samad Khan Sindhi3:
29. The approach of the High Court in granting relief not prayed for cannot be approved by this Court. Every petition under Article 226 of the Constitution must contain a relief clause. Whenever the petitioner is entitled to or is claiming more than one relief, he must pray for all the reliefs. Under the provisions of the Code of Civil Procedure, 1908, if the plaintiff omits, except with the leave of the court, to sue for any particular relief which he is entitled to gel, he will not afterwards be allowed to sue in respect of the portion so omitted or relinquished.
14. The reliance, by Mr. Dubey, on these decisions appears to us to be misplaced. The position of law that the afore-extracted paragraphs enunciate is that a Court cannot, in exercise of its jurisdiction under Article 226 of the Constitution of India, grant, to a petitioner, reliefs in excess of those sought in the petition. That principle, in our view, does not apply to the present case. The direction to recover amounts illegally earned by Respondent 5 does not amount, in any manner, to grant of relief to the petitioners in excess of that sought in the present petition. The petitioners had not filed the present petition in personal interest or for earning any monetary benefits. Nor does para 78 of the judgment under review grant any monetary benefits to the petitioners, much less any benefits which are in excess of what they sought. The present writ petition was motivated purely by public interest, as the petitioners, who are Kabaddi players of repute, were aghast in the manner in which the affairs of AKFI were being held to ransom by Respondents 4 and 5. We found substance in this grievance. It is after a detailed process of ratiocination that we came to a conclusion that Respondent 5 occupied the post of President of AKFI in a completely illegal fashion and, therefore, directed that the amounts earned by her as President of AKFI were required to be recovered.
15. That direction, in our considered opinion, is well within the scope of our jurisdiction under Article 226 of the Constitution of India, especially given the fact that the present petition is a Public Interest Litigation, and that our judgment was intended to curb such malpractices in premier athletic associations such as the AKFI.
Conclusion
16. Resultantly, we find no reason to entertain the present Review Petition.
17. Nonetheless, as Mr. Dubey has expressed an apprehension that, as Respondent 5 has been directed to provide accounts of her earnings, excess amounts may be recovered from her beyond her lawful earnings during the period that she held the post of President of AKFI, we, even while dismissing the present Review Petition, merely clarify that the recovery from Respondent 5 would be restricted to the amounts that she has earned in her capacity as President of the AKFI. Any legitimate earnings by Respondent 5, which were not earned by her in her capacity as President of the AKFI, shall not be recoverable from Respondent 5.
18. Subject to the above limited clarification, the Review Petition is dismissed.
C.HARI SHANKAR, J
YASHWANT VARMA, J
NOVEMBER 10, 2023
rb
Click here to check corrigendum, if any
1 (2000) 6 SCC 359
2 (1984) 1 SCC 307
3 2010 (1) SCC 234
—————
————————————————————
—————
————————————————————
W.P.(C) 4601/2013 Page 11 of 11