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2018 DIGILAW 545 (AP)

G. Vivekanand v. Hyderabad Cricket Association

2018-07-31

A.RAJASEKHAR REDDY

body2018
JUDGMENT : A. RAJASEKHAR REDDY, J. 1. This interlocutory application is being taken up for hearing pursuant to the order passed by the Supreme Court in SLA(C) Nos. 16006 & 16007 of 2018, out of turn. Facts stated are:--In the year 2004, the petitioner in the capacity of Managing Director of M/s. Visakha Industries Limited had entered into an agreement with the 1st respondent-Hyderabad Cricket Association, (for short, 'the HCA') to extend financial aid for construction of a stadium (now Rajiv Gandhi International Cricket Stadium, Uppal, Hyderabad), and advanced some of Rs. 4.32 crores. Among other things, the agreement provided for extension of certain benefits, such as naming the stadium as Visakha International Cricket Stadium, allotment of stands and cubicles in the stadium to the Company and the like. But, disputes arose between the parties to the contract i.e., M/s. Visakha Industries Limited and the HCA and the agreement had to be ultimately terminated vide letter dated 16.7.2011, which led to initiation of arbitration proceedings and an award was also passed on 15.3.2016 for Rs. 25.92 crores as damages in favour of M/s. Visakha Industries Limited and against the HCA. Pending arbitration proceedings, M/s. Visakha Industries Limited filed OP under Section 9 of the Arbitration and Conciliation Act, 1996 and had obtained order of injunction and also order of attachment which are subsisting as on date. Against the award of the learned Arbitrators, the HCA filed OP No. 1255 of 2016 and the same is pending adjudication. It is also borne out from the record that at one point of time, the Managing Committee (Apex Council) of the HCA had offered to settle the matter, out of Court, in its entirety, by offering a sum of Rs. 17.5 crores, but the same could not fructify. In the meanwhile, the petitioner was appointed as an Advisor to the Government of Telangana vide G.O. Ms. No. 2601, dated 30.11.2016 conferring upon him the status of a Cabinet Minister. 2. Elections to the 1st respondent-Hyderabad Cricket Association were held on 17.1.2017 and the result of the elections were declared on 31.3.2017. Among others, the petitioner was elected as President and assumed office on the same day. No. 2601, dated 30.11.2016 conferring upon him the status of a Cabinet Minister. 2. Elections to the 1st respondent-Hyderabad Cricket Association were held on 17.1.2017 and the result of the elections were declared on 31.3.2017. Among others, the petitioner was elected as President and assumed office on the same day. It is a matter of record that on his election as President of the HCA, the petitioner himself addressed a letter dated 28.7.2017 to the learned Ombudsman-cum-Ethics Officer-2nd respondent stating that he was the promoter Director of the M/s. Visakha Industries Limited, and had worked in various capacities including as the Managing Director of the Company till October, 2009 and currently continuing as Director, his spouse as Managing Director and son as full-time Director and held 41% of the shares in the Company. The petitioner gave details of the litigation pending in civil Court arising out of an arbitration award between M/s. Visakha Industries Limited and the HCA and requested to advise, guide and resolve any conflict of interest that may be assumed between himself having interest in M/s. Visakha Industries Limited and as President of the HCA. The petitioner also appears to have stated that as an abundant caution and to avoid adverse comments, he would recuse from the discussion and decision, if any, on issues between M/s. Visakha Industries Limited and the HCA. 3. It is also a matter of record that respondents 3 to 8 in the writ petition have filed cases being Case Nos. 3, 4, 5, 6, 7 and 8 of 2018 before the 2nd respondent seeking a declaration to the effect that there exists a clear conflict of interest vis-a-vis the petitioner as President and the HCA and, therefore, he is not entitled to hold or continue in the post of President of the HCA, as defined under the Rules and Regulations framed by the Supreme Court Committee on Reforms in Cricket (for short, 'the Rules') and adopted by the HCA read with the directions issued by the Supreme Court in its judgment in BCCI v. Cricket Association of Bihar, (2015) 3 SCC 251 . Petitioner's appointment is also sought to be invalidated on the ground of his appointment as an Advisor to the Government of Telangana State and conferring on him the status of Cabinet Minister and such appointment being an office of profit under the State Government, he was not entitled to continue in the post of President of the HCA. 4. The 2nd respondent-learned Ombudsman-cum-Ethics Officer, basing on the pleadings of the parties, framed the following issues for consideration:-- (i) Whether the contract that was entered into between M/s. Visakha Industries Limited and Hyderabad Cricket Association; and (a) the proceedings that ensued in relation thereto brings about any conflict of interest vis-a-vis Sri G. Vivekanand, the Secretary (sic President) of the HCA. (b) Whether G.O. Ms. No. 2601, dated 30.11.2016 appointing Sri G. Vivekanand as Advisor to the Government of Telangana, as amended, attracts Rule 6(5)(b) of the Rules. (ii) XXX (omitted) 5. By the impugned order, the 2nd respondent after examining the terms of the agreement between the M/s. Visakha Industries Limited and the HCA and the events that led to the appointment of learned Arbitrators and the challenge to the award passed by the learned Arbitrators by the HCA in jurisdictional civil Court and the Company, of which the petitioner had been the Managing Director and presently a Director, had a commercial contract with the HCA, the same understood and examined in the context of Rule 38 of the Rules, held that conflict of interest clearly emerged. As regards the petitioner's appointment as Advisor to the Government of Telangana, by following the judgment of the Supreme Court in Jaya Bachchan v. Union of India, (2006) 5 SCC 266 , observed that same situation is obtaining in the instant case as well though an attempt was made to distinguish that in respect of a Cabinet Minister, oath was administered, but oath was not necessary in the present case as it was sufficient if the person was conferred with the position in the Government to bring about the disqualification provided for under Rule 6 of the Rules. 6. Aggrieved by the disqualification recorded by the 2nd respondent, the above writ petition was filed on 13.3.2018 and this Court granted interim suspension of the impugned order dated 8.3.2018. Respondents in the writ petition who are applicants before the 2nd respondent, preferred writ appeals being WA Nos. 544 and 545 of 2018. 7. 6. Aggrieved by the disqualification recorded by the 2nd respondent, the above writ petition was filed on 13.3.2018 and this Court granted interim suspension of the impugned order dated 8.3.2018. Respondents in the writ petition who are applicants before the 2nd respondent, preferred writ appeals being WA Nos. 544 and 545 of 2018. 7. Division Bench of this Court by order dated 12.6.2018 allowed the writ appeals and set aside the order dated 15.3.2018 and restored the I.A. No. 1 of 2018 to file. In SLA (C) Nos. 16006 and 16007 of 2018 preferred by the writ petitioner, Hon'ble Supreme Court declined to interfere with the judgment of the Division Bench passed in the above writ appeals, but required the above I.A. No. 1 of 2018, which is restored to file, be disposed of within a time frame. 8. Sri P. Sri Raghuram, learned Senior Counsel appearing for the petitioner made elaborate submissions and seeks to suspend the impugned order, as an interim measure. According to the learned Senior Counsel there is no conflict of interest with the HCA as stipulated under Rule 4(g) of the Justice R.M. Lodha Committee Rules, ("the Rules" for short); that the conflict of interest should have a bearing on the game of cricket and in the absence of such an affect, it cannot be said to be a conflict of interest; that the petitioner is neither a 'Minister' nor a Government Servant and cannot be disqualified on the ground that he held the post of Advisor to the Government and unless a person is appointed as Minister under Article 104 of the Constitution and administered the oath of secrecy, the petitioner cannot be considered as Minister though equivalent status is conferred and as such Rule 6 of the Rules cannot be made applicable. It is also contended that though the 2nd respondent is seized of the matter, including the letter addressed by the petitioner to resolve the issue, the 2nd respondent abandoned the letter of the petitioner and entertained the complaints of respondents 3 to 8, adjudicated the matter and held against the petitioner; that the role and jurisdiction of the 2nd respondent is not one of adjudication only, but also arbitration and reconciliation of the issue of conflict of interest, if any; that the 2nd respondent failed to resolve either there is a tractable or intractable conflict; that no acts or omissions committed by the petitioner as President of HCA with regard to the disputes between the HCA and M/s. Visakha Industries Limited and none of the complaints or the impugned order refers to such acts or omissions committed by the petitioner. 9. Sri T. Surya Satish, Sri B. Vijaysen Reddy, Sri Mir Masood Khan and Sri K. Ramakanth Reddy, learned Counsel appearing for respondents 3, 5, 7 and 8 respectively, on the other hand, made submissions in support of the impugned order. 9. Sri T. Surya Satish, Sri B. Vijaysen Reddy, Sri Mir Masood Khan and Sri K. Ramakanth Reddy, learned Counsel appearing for respondents 3, 5, 7 and 8 respectively, on the other hand, made submissions in support of the impugned order. It is contended by learned Counsel for the respondents that writ of certiorari, under Article 226 of the Constitution of India can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals where orders are passed without jurisdiction or in excess of jurisdiction or as a result of failure to exercise jurisdiction and the errors apparent on the face of the record can be interfered with, the impugned order being speaking order does not warrant any interference by this Court; the interim relief sought for cannot be granted till the final adjudication of the writ petition; that inasmuch as a writ of certiorari is a discretionary remedy, this Court may not interfere with impugned order only because it is legally permissible to do so or a different view is possible more so, this Court is not sitting in appeal over the impugned order; that the petitioner himself has addressed a letter to the 2nd respondent to resolve and advise him in the matter, if there exists any conflict of interest with the post held by him as President of HCA and Director of M/s. Visakha Industries Limited and agreed to abide by the decision and, therefore, it is not open for the petitioner now to turn around and assail the same; that HCA is registered under the provisions of the Telangana Societies Registration Act, the petitioner has an efficacious alternative remedy under Section 23 of the Act in respect of any matter relating to the affairs of the HCA and; that the order of the 2nd respondent cannot be found fault for not recording an opinion whether the conflict is tractable or intractable, when a conclusion is reached that there exists conflict of interest and such interest ceases only when the petitioner totally give up the claim and nothing remains to be recovered from the HCA. It is also stated that the petitioner is appointed as an Advisor to the Government of Telangana State in the light of the decision of the Supreme Court in Jaya Bachchan v. Union of India (supra), it is sufficient if the person was conferred with the position in the Government to bring about disqualification provided under Rule 6 of the Rules. Decision of the Supreme Court in M. Karunanidhi v. Union of India, AIR 1979 SC 898 , relied on. 10. Having regard to the contentions advanced by the contesting parties, the point that arises for consideration in this interlocutory application is whether a prima facie case is made out to grant interim order of suspension of the impugned order passed by the 2nd respondent. 11. Writ petition is filed seeking to issue a writ of certiorari to quash the order of the 2nd respondent dated 8.3.2018 on the grounds noted above. As stated, the 2nd respondent having considered the matter held that clear conflict of interest existed vis-a-vis the President of the HCA on account of the commercial contract between M/s. Visakha Industries Limited and the petitioner also stood disqualified from holding the office of the President of the HCA an account of his appointment as an Advisor to the Government of Telangana State. Normally, in exercise of certiorari jurisdiction, this Court will not interfere with the exercise of discretion by the Court below and substitute its view, except where the discretion so exercised by the Court below is arbitrary, capricious, or where the Court had ignored the relevant material and settled principles of law and relied on irrelevant material either to grant or refuse the relief. In Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477 , case, the Supreme Court observed that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals, order passed without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. Para 7 thereof reads as under. "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. Para 7 thereof reads as under. "7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari is a supervisory jurisdiction and the Court exercising can be issued for correcting errors of jurisdiction committed by inferior Courts or Tribunals: these are cases where orders are passed by inferior Courts or Tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced and impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised..." 12. Keeping in view the above parameters, two things need to be examined in this case viz., whether to grant or not to grant interim order, in the facts and circumstances of the case, as both have cascading effect. The effect of former one (grant of interim order of suspension) amounts to permitting the petitioner to continue in office as the President of HCA, despite the order of the 2nd respondent disqualifying him to hold the post of President on account of his conflict of interest with the HCA and the latter one (if no interim order is passed) desists the petitioner from functioning as President, which is an elected post. It is also an irresistible fact that in the event of petitioner succeeding in the proceedings, the period during which was kept out of the post and was not permitted to discharge duties amounts to incursion of his rights, for which there is no appropriate compensation being quantified in terms of damages. (See Raja Khan v. U.P. Sunni Central Waqf Board, (2011) 2 SCC 741 ). 13. Coming to the merits or otherwise of this interlocutory application, prima facie this Court is of the opinion that petitioner as President of the HCA has conflict of interest as all through he has been associated with the contract and even today continuing as Director, besides his family members are continuing in different capacities in M/s. Visakha Industries Limited. 13. Coming to the merits or otherwise of this interlocutory application, prima facie this Court is of the opinion that petitioner as President of the HCA has conflict of interest as all through he has been associated with the contract and even today continuing as Director, besides his family members are continuing in different capacities in M/s. Visakha Industries Limited. Though it is contended by learned Senior Counsel appearing for the petitioner, Sri P. Sri Raghuram, that the conflict of interest should have a bearing on the game of cricket and in the absence of such an affect, particularly no acts or omissions committed by the petitioner as President of HCA with regard to the disputes between the HCA and M/s. Visakha Industries Limited there cannot be existence of conflict of interest. But one cannot be oblivious of the fact that the transaction in between M/s. Visakha Industries Limited and the HCA is purely commercial in nature and the dispute is still alive. Under Rule 38 of the Rules commercial conflict is also enumerated. What constitutes a conflict of interest is defined in Rule 38 of the Rules. Rule 38(1) a conflict of interest may take any of the following forms as far as any individual associated with the BCCI is concerned. Under Rule 38 conflict of interest is stated to be in the following cases; (i) direct or indirect interest; (ii) roles compromised; (iii) commercial conflicts; (vi) prior relationship and (v) position of influence. Though the illustrations given under these heads do not cover the commercial transaction that exists between M/s. Visakha Industries Limited and the HCA, such of those illustrations are not exhaustive and illustrations are only illustrative. So, prima facie, it cannot be said there is no conflict of interest in this case. The question whether the conflict of interest is restricted to only commercial transaction and nothing to do with the game of cricket, will have to be examined at the final hearing stage of the writ petition, as any probe in that behalf amounts to adjudication of the main lis in the writ petition. The learned Ombudsman-cum-Ethics Officer-2nd respondent has also held that conflict of interest is not tractable in nature. The learned Ombudsman-cum-Ethics Officer-2nd respondent has also held that conflict of interest is not tractable in nature. The other grounds raised by the learned Senior Counsel that the petitioner is neither a 'Minister' nor a Government Servant and cannot be disqualified on the ground that he held the post of Advisor to the Government requires consideration as this Court is prima facie of the view that petitioner does not come under the purview of disqualifications mentioned under Rule 6 of the Rules as he is not sworn as Minister or Government Servant. The issue as to the maintainability of the writ petition in view of the statutory appeal remedy provided under Section 23 of the Telangana Societies Act, 2001, is also to be decided finally as already writ petition is admitted and more so as existence of an alternative statutory remedy is not a bar for maintaining writ petition to be entertained under Article 226 of the Constitution and it is for this Court having regard to the facts and circumstances of the case and for valid reasons, to decide whether or not a writ petition should be maintained despite existence of statutory remedy of filing of appeal against the impugned order. Learned Ombudsman-cum-Ethics Officer-2nd respondent was appointed in compliance of the directions of the Supreme Court issued in BCCI v. Cricket Association of Bihar (supra), for resolving issues as stated in the Rules and the petitioner agreed to abide by the decision of the learned Ombudsman-cum-Ethics Officer-2nd respondent in his letter dated 28.7.2017 addressed to the 2nd respondent, but challenged the decision of the 2nd respondent. In view of the above facts and circumstances, the petitioner, prima facie, has not made out a case. Hence, this Court is of the opinion that it is not a fit case for grant of interim relief. This Court while exercising certiorari jurisdiction cannot act as appellate Court and interfere in the matter just because a different view is possible. Such a course is not permissible even under appellate jurisdiction. More so, this Court is dealing with interlocutory application and findings of fact rendered by the learned Ombudsman-cum-Ethics Officer-2nd respondent on the admitted facts cannot be interfered at this interlocutory stage. In view of the above facts and circumstances, this Court is not inclined to grant interim relief and suspend the operation of the impugned order dated 8.3.2018 passed by the 2nd respondent. In view of the above facts and circumstances, this Court is not inclined to grant interim relief and suspend the operation of the impugned order dated 8.3.2018 passed by the 2nd respondent. Accordingly, I.A. is dismissed.